United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Manchester, NH, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 10-19
Issued: September 9, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 30, 2009 appellant filed a timely appeal of the May 5, 2009 merit decision
of the Office of Workers’ Compensation Programs finding that she did not sustain an injury
while in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained left shoulder and neck
injuries on March 19, 2009, as alleged.
On appeal, appellant contends that the medical evidence of record is sufficient to
establish that her claimed injuries were causally related to her federal employment.
FACTUAL HISTORY
On March 24, 2009 appellant, then a 44-year-old letter carrier/collector, filed a traumatic
injury claim alleging that on March 19, 2009 at 5:00 p.m. she experienced a pinching sensation
in her left shoulder while lifting tubs over her shoulder. Her pain worsened following the date of
injury. Appellant did not stop work. She reported the injury to the employing establishment on

March 24, 2009. A March 23, 2009 report from Kerry O’Malley, a physician’s assistant,
reviewed the history that on March 19, 2009 appellant was lifting tubs of mail when she
experienced sharp pain in her neck and left arm. She advised that appellant sustained cervical
radiculopathy and that appellant could perform sedentary work with restrictions. Appellant
accepted the employing establishment’s March 2009 job offer for a modified letter carrier
position.
In a March 26, 2009 letter, an employing establishment customer services manager
controverted appellant’s claim contending that during a conversation with a supervisor on
March 23, 2009 she never stated that she sustained a work-related injury. Appellant also failed
to request the proper paperwork to seek medical attention. The manager questioned whether the
claimed injury was caused by her prior nonemployment-related broken collarbone injury. In a
March 30, 2009 letter, an employing establishment human resource specialist also controverted
appellant’s claim contending that on March 19, 2009 she continued to work until 7:00 p.m.
following the alleged injury. Appellant did not report the injury to anyone on that date. On
March 20, 2009 she worked nine and one-half hours and on March 21, 2009 she worked eight
hours of overtime. After being off work on March 22, 2009 appellant called in sick on
March 23, 2009. The specialist stated that she did not mention sustaining an injury. On
March 24, 2009 appellant reported the injury to the employing establishment. The specialist
requested documentation establishing that she was not currently receiving medical treatment for
her prior shoulder injury.
By letter dated April 3, 2009, the Office advised appellant that the evidence submitted
was insufficient to establish her claim. It addressed the factual and medical evidence she needed
to submit.
Reports dated March 31 through April 8, 2009 from Carolann Altieri, a physical
therapist, addressed the treatment of appellant’s cervicalgia.
A March 25, 2009 authorization for examination and/or treatment (Form CA-16) from
Ms. O’Malley reiterated the history related to her by appellant regarding the March 19, 2009
incident and her prior diagnosis of cervical radiculopathy. She opined that the diagnosed
condition was causally related to the March 19, 2009 incident.
In an April 4, 2009 magnetic resonance imaging (MRI) scan report of appellant’s cervical
spine, Dr. Peter Van Der Meer, a Board-certified radiologist, found bilateral C5-6 foraminal
stenosis, right more than the left. He also found probable aberrant right sublolavian artery
coursing between the spine in the esophagus, which was in anatomic variant associated with
swallowing problems.
An April 10, 2009 report from Dr. Thomas J. Kleeman, an attending Board-certified
orthopedic surgeon, reviewed the history that on March 19, 2009 appellant experienced a sharp
pain in her neck and left arm while lifting tubs of mail weighing up to 70 pounds. He also
reviewed the history of her medical treatment, social and family background and x-ray and MRI
scan results. Dr. Kleeman reported essentially normal findings on physical and neurological
examination, noting that appellant rigidly held her neck. He advised that she had left-sided
symptoms with C5-6 herniation that seemed to be acutely more on the right side. Dr. Kleeman
stated that appellant’s numb fingers suggested a lower level than C5-6. He ordered nerve
conduction studies. In an April 10, 2009 treatment note, Dr. Kleeman advised that nerve
2

conduction studies test results were normal. He noted appellant’s complaint of pain radiating
into her left shoulder for which he scheduled a C6 nerve block. In an April 10, 2009
prescription, Dr. Kleeman ordered physical therapy to treat her cervical herniated nucleus
pulposus. In an April 10, 2009 New Hampshire Workers’ Compensation medical form, he
reiterated the history of the March 19, 2009 tub lifting incident and his diagnosis of cervical
herniation. Dr. Kleeman advised that appellant was totally disabled for work and that she had
not reached maximum medical improvement. It was undetermined whether appellant’s injury
caused any permanent impairment.
By decision dated May 5, 2009, the Office denied appellant’s claim on the grounds that
she did not establish that the claimed employment incident occurred at the time, place and in the
manner alleged.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act; that the claim was
filed within applicable time limitation; that an injury was sustained while in the performance of
duty as alleged; and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.2 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
of an occupational disease.3
To determine whether an employee sustained a traumatic injury in the performance of
duty, the Office must determine whether fact of injury is established. An employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.4 The employee must also
submit medical evidence to establish that the employment incident caused a personal injury.5 An
employee may establish that the employment incident occurred as alleged, but fail to show that
his or her disability and/or condition relates to the employment incident.6
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 2.
4

Delphyne L. Glover, 51 ECAB 146 (1999).

5

Donna A. Lietz, 57 ECAB 203 (2005); Alvin V. Gadd, 57 ECAB 172 (2005); David Apgar, 57 ECAB
137 (2005).
6

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

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actually experienced the employment incident which is alleged to have occurred.7 An injury
does not have to be confirmed by eyewitnesses in order to establish that an employee sustained
an injury in the performance of duty, but the employee’s statements must be consistent with the
surrounding facts and circumstances and his or her subsequent course of action.8 An employee
has not met his or her burden of proof in establishing the occurrence of an injury when there are
such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.9
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury and failure to obtain medical
treatment may, if otherwise unexplained, cast doubt on an employee’s statements in determining
whether a prima facie case has been established.10 However, an employee’s statement regarding
the occurrence of an employment incident is of great probative force and will stand unless
refuted by strong or persuasive evidence.11
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.12 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.13 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.14
ANALYSIS
Appellant alleged that she sustained left shoulder and neck injuries in the performance of
duty on March 19, 2009. The Board finds that she established that the employment incident
occurred on March 19, 2009, as alleged.
Appellant consistently maintained that she sustained left shoulder and neck injuries on
March 19, 2009 while lifting tubs of mail in the performance of duty as a letter carrier/collector.
She received medical treatment contemporaneous to the March 19, 2009 incident and related a
history of injury. On March 23, 2009 Ms. O’Malley, a physician’s assistant, recorded that
appellant experienced sharp pain in her neck and left arm while lifting tubs of mail on
March 19, 2009. On March 30, 2009 she opined that appellant’s cervical radiculopathy was
caused by lifting tubs of mail on March 19, 2009. Dr. Kleeman’s April 10, 2009 report and state
7

See Louise F. Garnett, 47 ECAB 639 (1996); Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803(2)(a) (June 1995).
8

See Betty J. Smith, 54 ECAB 174 (2002).

9

Id.

10

Linda S. Christian, 46 ECAB 598 (1995).

11

Gregory J. Reser, 57 ECAB 277 (2005).

12

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
13

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

14

Charles E. Evans, 48 ECAB 692 (1997).

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workers’ compensation form stated that appellant experienced sharp neck and left arm pain while
lifting tubs of mail on March 19, 2009. Appellant also provided notice to the employing
establishment on March 24, 2009, which was contemporaneous to the injury.
Although the employing establishment contended that the March 19, 2009 incident did
not occur at the time, place and in the manner alleged, the Board finds that the reports of
Ms. O’Malley and Dr. Kleeman provide a consistent history of incident and that appellant
received medical treatment for her left arm and neck contemporaneous to the March 19, 2009
incident. Accordingly, the Board finds that the evidence supports that the March 19, 2009
incident occurred as alleged.15
The Board, however, finds that appellant did not submit sufficient medical evidence to
establish that she sustained a left shoulder or neck injury due to the accepted March 19, 2009
employment incident. As noted, Dr. Kleeman’s April 10, 2009 report and state workers’
compensation form described the March 19, 2009 employment incident. He also listed
essentially normal findings on physical and neurological examination and diagnosed C5-6
herniation. In an April 10, 2009 prescription, Dr. Kleeman ordered physical therapy to treat the
diagnosed cervical condition. However, he did not provide an opinion addressing the causal
relationship between the diagnosed condition and the March 19, 2009 employment incident.16
The Board finds that Dr. Kleeman’s reports and prescription are insufficient to establish
appellant’s claim.
Dr. Kleeman’s April 10, 2009 treatment note provided normal nerve conduction studies.
He scheduled C6 nerve block procedure to treat appellant’s pain radiating into her left shoulder.
Dr. Kleeman did not provide a firm diagnosis causally related to the accepted employment
incident. The Board has held that a physician’s mere diagnosis of pain does not constitute a
basis for payment of compensation as pain is a symptom, not a medical condition.17 The Board
finds, therefore, that Dr. Kleeman’s treatment note is insufficient to establish appellant’s claim.
The reports of Ms. O’Malley and Ms. Altieri, a physical therapist, are of no probative
medical value, as neither a physician’s assistant18 nor a physical therapist19 is considered to be a
physician as defined under the Act.
Dr. Van Der Meer’s diagnostic test results are insufficient to establish appellant’s claim.
He did not provide an opinion on the causal relationship between the March 19, 2009
employment incident and the diagnosed conditions.20

15

Louise F. Garnett, 47 ECAB 639, 643-44 (1996); Constance G. Patterson, 41 ECAB 206 (1989); Julie B.
Hawkins, 38 ECAB 393 (1987).
16

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

17

See C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008); Robert Broome, 55 ECAB
339 (2004).
18

5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238, 242 (2005).

19

A.C., 60 ECAB ___ (Docket No. 08-1453, issued November 18, 2008).

20

See cases cited supra note 16.

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The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a left shoulder or neck injury causally related to the accepted
March 19, 2009 employment incident. Appellant did not meet her burden of proof.
The Board further finds that appellant’s contention on appeal, that she sustained
employment-related left shoulder and neck injuries on March 19, 2009 has not been established.
As stated, the medical evidence of record does not provide an opinion addressing whether her
left shoulder and neck conditions were caused by the accepted March 19, 2009 employment
incident.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained left shoulder and
neck injuries on March 19, 2009, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the May 5, 2009 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 9, 2010
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.U., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Nogales, AZ, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 11-1948
Issued: May 8, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 23, 2011 appellant filed a timely appeal from a February 25, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant sustained permanent impairment to her left leg, warranting
a schedule award.
FACTUAL HISTORY
On January 30, 2002 appellant, then a 47-year-old canine enforcement officer, twisted his
left ankle when he slipped off the steps of a travel trailer. OWCP accepted the claim for left
1

5 U.S.C. §§ 8101-8193.

ankle strain and he returned to full duty. It subsequently accepted bilateral Achilles tendinitis
and left calcaneal spur as work related. Appellant underwent excision of the retrocalcaneal
exostosis and calcific Achilles tendinitis with repair of left Achilles tendon on December 1, 2008
which OWCP authorized.
On March 10, 2010 appellant filed a claim for a schedule award. In a May 25, 2010
letter, OWCP advised him of the medical evidence necessary for a schedule award. It forwarded
a permanent impairment worksheet for the lower extremity under the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter
A.M.A., Guides).
In a July 30, 2010 report, Dr. Ike Gorman, an attending podiatrist, noted the history of
injury and provided findings on examination which reflected residual symptoms in the left foot
and left lower extremity. He found pain on the posterior aspect of the left heel with direct
palpation with appellant unable to do single calf raise. Dorsalis pedis pulses, posterior tibial
pulses and capillary fill time were equal on both sides. Inspection of posterior aspect of left heel
showed normal appearing cicatrix, with normal touch, pin, vibratory and proprioception
sensations with exception of decreased sensation limited to previous incisional site left heel.
Dr. Gorman was unable to elicit deep tendon reflexes. Appellant had an antalgic gait and full
muscle strength for all group tests. Examination demonstrated a full range of motion without
muscle weakness, atrophy or neurologic deficit. Dr. Gorman diagnosed Achilles tendinitis, left
side and found that appellant had reached maximum medical improvement.
Dr. Gorman completed a permanent impairment worksheet for the lower extremity on
October 14, 2010. He found that, under the A.M.A., Guides, appellant had zero percent left
lower extremity impairment. Dr. Gorman noted that there was no diagnosis-based impairment,
peripheral nerve impairment, complex regional pain syndrome (CRPS) impairment, amputation
or range of motion impairment.
In a November 28, 2010 report, OWCP’s medical adviser reviewed the medical record.
He stated that the accepted conditions of status post excision of retrocalcaneal exostosis and
calcific Achilles tendinitis with repair of left Achilles tendon, December 1, 2008, were
established and that maximum medical improvement was reached July 30, 2010, the date of
Dr. Gorman’s examination. The medical adviser agreed with Dr. Gorman that appellant had no
left lower extremity impairment resulting from the accepted January 30, 2002 work injury.
By decision dated February 25, 2011, OWCP denied appellant’s schedule award claim
finding that he failed to establish that he had any left foot or leg impairment under the sixth
edition of the A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations2 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
2

20 C.F.R. § 10.404.

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specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.3 For
consistent results and to ensure equal justice under the law to all claimants, good administrative
practice necessitates the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.4 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.5
In determining impairment for the lower extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the lower
extremity to be rated. With respect to the lower extremity and foot, the relevant portion of the
leg for the present case, reference is made to Table 16-2 (Foot and Ankle Regional Grid)
beginning on page 501. Then the associated class is determined from the Foot and Ankle
Regional Grid and the adjustment grid and grade modifiers (including functional history,
physical examination and clinical studies) are used to determine what grade of associated
impairment should be chosen within the class defined by the regional grid.6 Under Chapter 2.3,
evaluators are directed to provide reasons for their impairment rating choices, including choices
of diagnoses from regional grids and calculations of modifier scores.7
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.8
ANALYSIS
OWCP accepted that appellant sustained a left ankle sprain, bilateral Achilles tendinitis
and left calcaneal spur. It authorized excision of retrocalcaneal exostosis and calcific Achilles
tendinitis with repair of left Achilles tendon, which he underwent on December 1, 2008.
Appellant subsequently filed a claim for a schedule award. By decision dated February 25, 2011,
OWCP denied the schedule award claim finding that he did not meet his burden of proof to
establish permanent impairment to the left leg based on the accepted condition. OWCP relied on
the opinions of Dr. Gorman, appellant’s attending podiatrist and its medical adviser.

3

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

4

Ronald R. Kraynak, 53 ECAB 130 (2001).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims , Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical , Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
6

See A.M.A., Guides page 499-501 (6th ed. 2009).

7

Id. at 23-28.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

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The Board finds that the opinions of Dr. Gorman and OWCP’s medical adviser establish
that appellant did not sustain any permanent impairment of his left leg. On July 30, 2010
Dr. Gorman provided a history of appellant’s left foot condition and subsequent treatment. He
noted that, upon physical examination of the left heel and left lower extremity, appellant showed
some residual symptoms in the left foot and left lower extremity but the examination
demonstrated a full range of motion without muscle weakness, atrophy or neurologic deficit.
Dr. Gorman stated that on the lower extremity permanent impairment worksheet appellant had
no left leg impairment as there was no diagnosed-based impairment, peripheral nerve
impairment, CRPS impairment, amputation or range of motion impairment. OWCP’s medical
adviser reviewed the record and agreed that appellant had no impairment under Table 16-2, page
501 of the A.M.A., Guides. He noted that Dr. Gordon’s findings on examination showed no
impairment to the left leg and agreed with his assessment that appellant had no impairment under
the standards of the sixth edition of the A.M.A., Guides.
On appeal, appellant argued that the decision is contrary to fact and law. The issue in the
present case is medical in nature and must be resolved by probative medical evidence. The
reports of Dr. Gordon and OWCP’s medical adviser conform with the A.M.A., Guides and
constitute the weight of the medical evidence.9 OWCP properly denied appellant’s schedule
award claim.
Appellant may request an increased schedule award based on evidence of a new exposure
or medical evidence showing progression of an employment-related condition resulting in
permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish entitlement to
schedule award compensation.

9

See Bobby L. Jackson, 40 ECAB 593, 601 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the February 25, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 8, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
D’Iberville, MS, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 16-0396
Issued: April 18, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 29, 2015 appellant filed a timely appeal from an August 3, 2015 merit
decision and a September 8, 2015 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish head,
abdominal, and right upper extremity injuries causally related to a June 18, 2015 employment
incident; and (2) whether OWCP properly denied appellant’s request for reconsideration under
5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence accompanying his request for appeal to the Board. The Board may not
consider evidence for the first time on appeal that was not before OWCP at the time it issued the final decision in the
case. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On June 19, 2015 appellant, then a 57-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging right upper extremity, abdominal, and head injuries in a June 18, 2105
motor vehicle accident while in the performance of duty. The employing establishment issued a
Form CA-16 authorizing medical treatment related to the accident. Appellant submitted June 18,
2015 emergency room discharge instructions for “minor head injury,” signed by Deborah
Anderson, a nurse practitioner. He did not return to work.
In a June 29, 2015 letter, OWCP advised appellant of the additional evidence needed to
establish his claim, including a description of the motor vehicle accident alleged to have caused
the claimed injuries, and a narrative report from his attending physician explaining how and why
that accident would cause those injuries. It afforded appellant 30 days to submit such evidence.
Appellant provided reports dated from June 24 to July 20, 2015 by Dr. Eric Graham, an
attending Board-certified orthopedic surgeon, who held appellant off work for unspecified
reasons.
By decision dated August 3, 2015, OWCP denied the claim, finding that appellant had
not established causal relationship as there was no medical diagnosis of an injury. It accepted
that the June 18, 2015 motor vehicle accident occurred at the time, place, and in the manner
alleged. OWCP found, however, that appellant had failed to provide sufficient medical evidence
supporting that the incident caused any injury.
Appellant disagreed and on August 12, 2015 signed the appeal rights form accompanying
the August 3, 2015 decision, marking an “X” on the line next to the paragraph describing
reconsideration.
He did not provide additional evidence or argument on or before
September 8, 2015.
By decision dated September 8, 2015, OWCP denied reconsideration, finding that
appellant’s August 12, 2015 reconsideration request neither raised substantive legal questions
nor included new and relevant evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of the FECA; that the claim was filed within the
applicable time limitation; that an injury was sustained while in the performance of duty as
alleged; and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.4
3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

2

In order to determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered
conjunctively. First, the employee must submit sufficient evidence to establish that he or she
actually experienced the employment incident that is alleged to have occurred.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.6
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medial certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS -- ISSUE 1
OWCP accepted that appellant was involved in a June 18, 2015 motor vehicle accident.
Appellant claimed that this incident caused head, abdominal, and right arm injuries.
The Board finds, however, that appellant has failed to submit sufficient medical evidence
to establish his traumatic injury claim. To be of probative value, a physician’s opinion must
relate the condition to the accepted incident, must be based on a complete and accurate factual
history, and must contain adequate medical rationale in support of the conclusions.8
Dr. Graham, an attending Board-certified orthopedic surgeon, provided reports dated
from June 24 to July 20, 2015 holding appellant off work. However, he did not provide a
diagnosis, or identify any injury or condition disabling appellant for work. The Board has held
that medical opinions which do not provide a firm diagnosis are insufficient to establish causal
relationship.9 As Dr. Graham did not opine that the June 18, 2015 motor vehicle accident caused
any injury, his reports are insufficient to establish causal relationship.10

5

Gary J. Watling, 52 ECAB 278 (2001).

6

Deborah L. Beatty, 54 ECAB 340 (2003).

7

Solomon Polen, 51 ECAB 341 (2000).

8

Mary J. Ruddy, 49 ECAB 545 (1998).

9

Paul Foster, 56 ECAB 208 (2004).

10

Deborah L. Beatty, 54 ECAB 340 (2003).

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The June 18, 2015 hospital discharge instructions signed by Ms. Anderson are not
probative medical evidence, as nurse practitioners are not considered physicians under FECA.11
Section 8101(2) of FECA provides that physicians include surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their
practice as defined by State law.12
OWCP advised appellant on June 29, 2015 of the necessity of providing a narrative
report from his attending physician with medical rationale supporting causal relationship. As
appellant did not provide such evidence, OWCP’s August 3, 2015 decision denying the claim is
proper under the law and facts of the case.
On appeal appellant contends that he submitted all medical evidence necessary to
establish his claim. He alleges that OWCP did not fully consider his physician’s reports. As
explained, Dr. Graham failed to diagnose any condition resulting from the June 18, 2015
accident. The discharge instructions do not constitute medical evidence as they were signed only
by a nurse practitioner. Therefore, OWCP properly found that appellant had not provided
sufficient medical evidence to establish his claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,13
section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provides that a claimant must
set forth arguments and contain evidence that either: (1) shows OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.14 Section 10.608(b) provides that when an application for review of the
merits of a claim does not meet at least one of the three requirements enumerated under section
10.606(b)(3), OWCP will deny the application for reconsideration without reopening the case for
a review on the merits.15
In support of a request for reconsideration, a claimant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.16 A claimant need
11

P.W., Docket No. 15-1814 (issued January 15, 2016); L.D., 59 ECAB 648 (2008).

12

5 U.S.C. § 8101(2).

13

Id. at § 8128(a).

14

20 C.F.R. § 10.606(b)(3).

15

20 C.F.R. § 10.608(b). See also D.E.., 59 ECAB 438 (2008).

16

Helen E. Tschantz, 39 ECAB 1382 (1988).

4

only submit relevant and pertinent new evidence not previously considered by OWCP.17 When
reviewing an OWCP decision denying a merit review, the function of the Board is to determine
whether OWCP properly applied the standards set forth at section 10.606(b)(3) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.18
ANALYSIS -- ISSUE 2
OWCP accepted that appellant was involved in a June 18, 2015 motor vehicle accident
that occurred in the performance of his duties. It denied the claim because appellant had failed to
provide medical evidence from a physician diagnosing any conditions causally related to the
accepted incident. Appellant on August 12, 2015 requested reconsideration, but did not provide
additional evidence or argument.
The Board finds that OWCP appropriately denied reconsideration as appellant failed to
submit any relevant or pertinent new evidence or argument for OWCP to consider. He submitted
nothing other than the appeal form requesting reconsideration. A claimant may be entitled to a
merit review by submitting argument or evidence that either shows that OWCP erroneously
applied or interpreted a specific point of law, advances a relevant legal argument not previously
considered by OWCP, or constitutes relevant and pertinent new evidence not previously
considered by OWCP. Appellant did not do so in this case. Therefore, pursuant to 20 C.F.R.
§ 10.608, OWCP’s September 8, 2015 decision properly denied merit review.
On appeal appellant contends that his physician provided additional evidence on
reconsideration. However, there is no medical evidence of record submitted between the
August 3 and September 8, 2015 decisions.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. § 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained a cervical spine injury
causally related to a June 18, 2015 employment incident. The Board further finds that OWCP
properly denied reconsideration under 5 U.S.C. § 8128(a).19

17

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

18

Annette Louise, 54 ECAB 783 (2003).

19

The Board notes that the record contains a CA-16. Ordinarily, where there is a properly executed CA-16 form,
OWCP is under a contractual obligation to pay for the medical care provided. Upon return of the case record, this
matter should be reviewed. Val D. Winn, 40 ECAB 666 (1989).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 8 and August 3, 2015 are affirmed.
Issued: April 18, 2016
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 12-35
Issued: May 11, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 12, 2011 appellant filed a timely appeal from the July 8, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP), which denied her schedule award
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. The Board also
has jurisdiction to review OWCP’s August 12, 2011 nonmerit decision denying reconsideration.
ISSUES
The issues are: (1) whether appellant has a compensable permanent impairment as a
result of her accepted employment injury; and (2) whether OWCP properly denied her July 19,
2011 reconsideration request pursuant to section 8128(a) of FECA.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 5, 2008 appellant, a 44-year-old mail handler, filed an occupational disease
claim alleging that the pain in her right shoulder acromioclavicular joint was a result of
performing the duties of her position, which included emptying sacks and crab cages and moving
the bar back and forth on the dumper. OWCP accepted her claim for sprain of the right shoulder
and upper arm, unspecified site.
On July 27, 2010 appellant underwent an authorized right shoulder arthroscopic rotator
cuff repair, subacromial decompression and distal clavicectomy. The postoperative diagnosis
was right shoulder rotator cuff tear and impingement.
The attending Board-certified orthopedic surgeon, Dr. Marcos V. Masson, reported on
February 7, 2011 that appellant should be at maximum medical improvement (MMI) in the next
four weeks. On April 4, 2011 he found that appellant was at functional MMI and would obtain
an impairment rating. Under work status, however, he noted, as he had in previous reports:
“N/A No MMI.”
Appellant claimed a schedule award. OWCP notified her that when she reached MMI,
she was responsible for submitting a physician’s report establishing permanent impairment to her
right upper extremity.
On May 13, 2011 Dr. Masson offered a right upper extremity impairment rating of 10
percent based on loss of shoulder motion. On June 8, 2011, however, he noted once again that
appellant’s work status was “N/A No MMI.”
An OWCP medical adviser reviewed the medical record and agreed with Dr. Masson’s
impairment rating for the right upper extremity. He noted, however, that Dr. Masson later
reported appellant’s work status as “N/A No MMI.” The medical adviser asked OWCP to please
confirm whether MMI was, in fact, the date of the impairment evaluation.
In a July 8, 2011 decision, OWCP denied appellant’s schedule award claim. It noted that
it had informed appellant of the evidence needed to support her claim, but “an impairment rating
was not received from you or your doctor.”
Appellant requested reconsideration, but OWCP denied that request on August 12, 2011.
OWCP noted that appellant submitted no new evidence.
On appeal, appellant argues that OWCP did not properly develop the evidence.
LEGAL PRECEDENT -- ISSUE 1
FECA authorizes the payment of schedule awards for the loss or loss of use of specified
members, organs or functions of the body.2 Such loss or loss of use is known as permanent
impairment. OWCP evaluates the degree of permanent impairment according to the standards
2

5 U.S.C. § 8107.

2

set forth in the specified edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment.3
Only permanent impairment may be rated according to the A.M.A., Guides, and only
after the status of “[m]aximum [m]edical [i]mprovement” is determined. Impairment should not
be considered permanent until a reasonable time has passed for the healing or recovery to occur.
This will depend on the nature of underlying pathology, as the optimal duration for recovery may
vary considerably from days to months. The clinical findings must indicate that the medical
condition is static and well stabilized for the person to have reached MMI.4
A request for medical information from the attending physician may be the most efficient
and expeditious means to obtain a medical status update and address any unresolved medical
issues. OWCP must ensure, however, that the attending physician’s reply is well reasoned and
responsive to the questions asked. The quality of the attending physician’s reports will vary
greatly. Sometimes reports are lacking in detail because the physician is unaware of the type of
information required to meet OWCP standards in a given case. If reports from the attending
physician lack needed details and opinion, or if the subjective complaints and time loss from
work appear inconsistent with the objective findings and the claimant’s diagnosis, OWCP can
write back to the physician, clearly state what is needed, and request a supplemental report.
Development for a schedule award may also prompt an inquiry to the attending physician
regarding the extent of permanent impairment and date of MMI.5
OWCP will consider all evidence submitted appropriately.6
ANALYSIS -- ISSUE 1
OWCP denied appellant’s schedule award claim because an impairment rating was not
received from appellant or her doctor. The record, however, shows that appellant’s orthopedic
surgeon, Dr. Masson, signed an impairment rating on May 13, 2011, one that calculated a 10
percent right upper extremity impairment based on loss of shoulder motion. Indeed, OWCP’s
medical adviser reviewed this impairment rating and agreed with the calculation. To the extent
that OWCP did not consider all the evidence submitted, its July 8, 2011 decision denying
appellant’s schedule award claim must be set aside and the case remanded for proper
consideration of the evidence.

3

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).
4

A.M.A., Guides 24 (6th ed. 2009); see Orlando Vivens, 42 ECAB 303 (1991) (a schedule award is not payable
until maximum medical improvement -- meaning that the physical condition of the injured member of the body has
stabilized and will not improve further -- has been reached).
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating the Medical Evidence, Chapter
2.810.7.b (September 2010).
6

20 C.F.R. § 10.119.

3

Further, there appears to be no disagreement between Dr. Masson and OWCP’s medical
adviser on the nature and extent of appellant’s impairment. The only outstanding issue is
whether appellant had reached MMI at the time of the impairment evaluation. The narrative
portions of Dr. Masson’s reports indicate that appellant was at MMI, but a continuing notation
for work status has prompted a question for the attending physician. On remand, OWCP shall
obtain clarification from Dr. Masson on the date of MMI. After such further development as
may be required, OWCP shall issue an appropriate de novo decision on appellant’s schedule
award claim.7
CONCLUSION
The Board finds that this case is not in posture for determination. Further development of
the medical evidence is warranted.
ORDER
IT IS HEREBY ORDERED THAT the August 12 and July 8, 2011 decisions of the
Office of Workers’ Compensation Programs are set aside. The case is remanded for further
action consistent with this decision of the Board.
Issued: May 11, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

7

As the case is being remanded for a merit review and a de novo decision on appellant’s entitlement to a schedule
award, the second issue presented on appeal, whether OWCP properly denied a merit review on August 12, 2011,
has become moot.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.K., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, Miami, FL,
Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 12-1157
Issued: December 21, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 10, 2012 appellant filed a timely appeal from an April 23, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP). He also filed a timely appeal from an
April 30, 2012 nonmerit decision. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof by retroactively reducing
appellant’s compensation effective November 2, 2011 based on his actual earnings as an
attorney; and (2) whether OWCP properly refused to reopen his case for further review of the
merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

On appeal appellant contends that OWCP erred in its consideration of his arguments
regarding the reduction of his wage-loss compensation.
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated July 11, 2006, the
Board reversed OWCP’s January 11, 2005 decision2 which found that appellant’s earnings as an
insurance investigator fairly and reasonably represented his wage-earning capacity.3 The Board
found that OWCP improperly relied upon the opinion of Dr. Patrick J. Barry as he was not the
physician selected to act as an impartial medical specialist. The Board found there was
unresolved conflict in medical opinion between Dr. Michael A. Abrahams, an attending Boardcertified orthopedic surgeon, and Dr. D. Barry Lotman, a second opinion Board-certified
orthopedic surgeon, with regard to appellant’s work restrictions and the extent of his remaining
residuals. In a second appeal, the Board issued an order dismissing appellant’s appeal on
July 25, 2007.4 The Board found it lacked jurisdiction as OWCP had not issued a final adverse
decision within a year of appellant’s November 26, 2006 appeal. On April 5, 2007 OWCP
issued a notice of proposed reduction of wage-earning capacity. The Board issued an order dated
January 30, 2008 which dismissed appellant’s appeal.5 The Board found that OWCP had not
issued a final decision on the reduction of his wage-loss compensation. In a January 14, 2009
decision, the Board reversed a May 20, 2007 OWCP decision reducing his compensation based
upon a constructed loss of wage-earning capacity determination. The facts of the case as set
forth in the Board’s prior decision are hereby incorporated by reference.
In an April 19, 2010 letter, appellant informed OWCP that he had accepted a position
with TLO, LLC on March 15, 2010. He requested that OWCP suspend his wage-loss
compensation. Appellant noted that his salary at his new employment was equivalent to the
amount he had made as a special agent.
Appellant filed claims for wage-loss compensation (Form CA-7) for the period July 23 to
August 27, 2011.

2

Docket No. 06-503 (issued July 11, 2006).

3

On May 14, 2001 appellant, a 40-year-old special agent, filed a traumatic injury claim alleging that on April 27,
2001 he sustained injuries to his right knee, left wrist, right ankle and lower back due to an automobile accident.
OWCP accepted the claim for right knee open wound, lumbar sprain/strain, right ankle strain/sprain and left wrist
strain/sprain, which was subsequently expanded to include closed fracture of the right metatarsal and right
chondromalacia of the patella. It authorized right knee arthroscopic surgery, which was performed on November 12,
2002 and right ankle arthroscopic surgery, which was performed on January 14, 2003. By letter dated January 27,
2003, OWCP placed appellant on the periodic rolls for temporary total disability. On June 4, 2003 appellant had
metatarsophalangeal arthroscopy surgery. On March 12, 2012 OWCP accepted the conditions of right hip
trochanteric bursitis, left knee chondromalacia, left ankle synovitis, left foot plantar fasciitis and left heel spur as
consequential injuries.
4

Docket No. 07-407 (issued July 25, 2007).

5

Docket No. 07-1734 (issued January 30, 2008).

2

By correspondence dated August 16, 2011, appellant requested that his wage-loss
compensation under FECA be resumed.
By letter dated September 29, 2011, OWCP informed appellant that the evidence of
record was insufficient to establish that his wage loss was due to his accepted employment
injury. The evidence of record showed that he had worked for TLO as an attorney since
March 16, 2010 with an annual salary of $104,000.00 and that his annual salary was reduced to
$52,000.00 on July 23, 2011 due to corporate downsizing. OWCP advised appellant as to the
evidence required to support his claim for wage-loss compensation and gave him 30 days to
provide additional information.
By letter dated October 3, 2011, appellant stated that, while he was an attorney based on
his passing the Florida Bar examination, his employment with TLO was not as an attorney.
In an October 6, 2011 report, Dr. Abrahams, a treating Board-certified orthopedic
surgeon, diagnosed right hip trochanteric bursitis, lumbar spondylosis, status post right knee
arthroscopic surgery, status post right ankle arthroscopic surgery, right great toe joint
replacement, left knee chondromalacia patellae, left ankle synovitis and left foot plantar
fasciitis/heel spur. He noted that appellant’s work restrictions as of July 2011 included no
prolonged standing, lifting, squatting, bending and walking and no involvement in meetings or
conferences requiring him to stand eight hours per day.
By decision dated November 2, 2011, OWCP found that appellant’s actual wages as an
attorney for TLO, effective March 15, 2010, with wages of $2,000.00 per week ($104,000.00 per
annum) represented his wage-earning capacity as he demonstrated an ability to perform the
duties of the job for two months or more. The position was found suitable to his partially
disabled condition. OWCP noted that appellant’s date-of-injury pay rate was $1,605.89 effective
November 11, 2002 and that the current pay rate for his date-of-injury position effective
October 28, 2011 was $1,808.47. It concluded that, as his wages exceeded the wages of the job
he held when injured, his entitlement to wage-loss compensation ceased when he was
reemployed with no loss in wage-earning capacity.
On November 3, 2012 appellant requested an oral hearing before an OWCP hearing
representative, which was held on February 8, 2012. At the hearing appellant testified that his
duties for TLO did not include attorney work, but required attending meetings and conferences
and reviewing applications. He testified that he currently did not have any duties to perform in
his job and that his salary was reduced in July 2011.
By decision dated April 23, 2012, OWCP’s hearing representative affirmed the
November 2, 2011 decision.

3

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.6 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.7 Under section 8115(a) of FECA, wage-earning capacity is determined by the
actual wages received by an employee if such earnings fairly and reasonably represent his or her
wage-earning capacity.8 Generally, wages actually earned are the best measure of a wageearning capacity and, in the absence of evidence showing that they do not fairly and reasonably
represent the injured employee’s wage-earning capacity, will be accepted as such measure.9
When an employee cannot return to the date-of-injury job because of disability due to
work-related injury or disease, but does return to alternative employment with an actual wage
loss, OWCP must determine whether the earnings in the alternative employment fairly and
reasonably represent the employee’s wage-earning capacity.10 The procedure manual notes that
reemployment may not be suitable if the job is part time, seasonal or of a temporary nature.11
After the employee has worked for 60 days, OWCP will determine whether his or her actual
earnings represent his or her wage-earning capacity. In so doing, OWCP will apply the Shadrick
formula in determining the claimant’s monetary entitlement.12
The Federal (FECA) Procedure Manual provides that OWCP make a retroactive wageearning capacity determination if an employee has worked in the position for at least 60 days, the
position fairly and reasonably represented his wage-earning capacity and the work stoppage did
not occur because of any change in the injury-related condition affecting the ability to work.13
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not properly determine appellant’s loss of wage-earning
capacity based on his actual earnings as an attorney. When OWCP learns that an employee has
returned to alternative work more than 60 days after the fact, the claims examiner may consider a
6

H.N., Docket No. 09-1628 (issued August 19, 2010); T.F., 58 ECAB 128 (2006); Kelly Y. Simpson, 57 ECAB
197 (2005).
7

20 C.F.R. §§ 10.402, 10.403.

8

M.A., 59 ECAB 624 (2008); Sherman Preston, 56 ECAB 607 (2005). See 5 U.S.C. § 8115(a).

9

S.B., 59 ECAB 482 (2008); Lottie M. Williams, 56 ECAB 302 (2005).

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Capacity, Chapter 2.814.7(a) (October 2009).

Determining Wage-Earning

11

Id. See Connie L. Potratz-Watson, 56 ECAB 316 (2005).

12

Id. See Albert C. Shadrick, 5 ECAB 376 (1953). This has been codified by regulation at 20 C.F.R. § 10.403.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(e) (October 2009).

4

retroactive loss of wage-earning determination. Such a determination is generally to be
considered appropriate where an investigation reveals that appellant held private employment
and had substantial earnings, which were not reported to OWCP or were otherwise not used in
adjusting compensation entitlement.14
The November 2, 2011 decision, which an OWCP hearing representative affirmed on
April 23, 2012, constitutes a retroactive wage-earning capacity determination. Appellant
returned to work on March 15, 2010. He informed OWCP of his employment in an April 19,
2010 letter that on March 15, 2010 he accepted an offer of employment with TLO. OWCP
reduced appellant’s compensation in its November 2, 2011 decision finding that his actual
earnings as an attorney represented his wage-earning capacity as he held the position for more
than 60 days. It found that the position was suitable because he had demonstrated his ability to
perform the duties for two months or more. OWCP did not address, however, how such
employment fairly or reasonably represented his wage-earning capacity, or whether his
subsequent work stoppage was due to his injury-related condition, as alleged by appellant and
required by its procedures.15 It did not address appellant’s work at TLO as part of its
adjudication. In this regard, appellant maintained that he did not work as an attorney, which
OWCP determined as fairly and reasonably representing his loss of wage-earning capacity.
Moreover, OWCP did not consider Dr. Abrahams’ October 6, 2011 report and work restrictions.
Dr. Abrahams recommended against appellant attending conferences and meetings involving
standing in excess of eight hours, as well as limiting standing, lifting, squatting, bending and
walking. Accordingly, the Board finds that it did not fully consider all criteria for making a
retroactive wage-earning capacity determination.16
CONCLUSION
The Board finds that OWCP improperly reduced appellant’s compensation benefits based
on his actually earnings as an attorney. OWCP did not follow its procedures in making a
retroactive loss of wage-earning capacity decision.

14

Id.

15

Id.

16

Id.; see also Selden H. Swartz, 55 ECAB 272 (2004) (OWCP procedures provide that OWCP can make a
retroactive wage-earning capacity determination if the claimant worked in the position for at least 60 days, the
position fairly and reasonably represented his or her wage-earning capacity and the work stoppage did not occur
because of any change in his injury-related condition affecting the ability to work).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 23, 2012 is reversed.17
Issued: December 21, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

17

In view of the Board’s disposition of the merits, the issue of whether OWCP properly denied his request to
reopen his case for further review of the merits under 5 U.S.C. § 8128(a) in its April 30 2012 decision is moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
RESERVE, Norfolk, VA, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 16-1395
Issued: February 2, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 20, 2016 appellant filed a timely appeal from a December 22, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
stroke causally related to factors of his federal employment.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Board. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from December 22, 2015, the date of OWCP’s last decision was
June 19, 2016, a Sunday; consequently, the period for filing the appeal ran to the next business day Monday,
June 20, 2016. See 20 C.F.R. § 501.3(f)(2). The appeal was received on Monday, June 20, 2016 rendering it timely.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 29, 2015 appellant, then a 63-year-old warrior and family support program
specialist, filed an occupational disease claim (Form CA-1) alleging that he sustained a stroke as
a result of stress and added job responsibilities as a defense travel administrator. He noted that
the job position forced him to become an expert in defense travel system, supplies, and joint
travel federal regulations. Appellant indicated that he first became aware of his condition and
realized that it resulted from his employment on April 25, 2015. He stopped work on
April 26, 2015.
In an April 27, 2015 letter, Vicki Rose, an employing establishment management support
specialist, related that appellant notified her by telephone on April 25, 2015 that he had a stroke
while on travel status when he left the Navy Operational Support Center (NOSC) where he was
conducting deployment readiness training. Appellant stated that his job duties had caused him
stress for the last four years. Ms. Rose explained that appellant had to become the subject matter
expert in various programs over the last few years, which had been added to his responsibilities.
Appellant believed that he did not get any rest while away from the job because there was no one
else at the command that could fill in for him when he was out of the office. He further noted
that he received numerous telephone calls at his home on the weekends and when traveling.
Ms. Rose reported that appellant had previously suffered a minor stroke about four months
before he started his current position.
The employing establishment submitted various documents including a position
description for a warrior and family support program specialist.
Appellant was initially treated in the hospital and he provided hospital records dated
April 25 to 27, 2015. In an April 26, 2015 report, Dr. Gabriel Gabasan, a Board-certified
internist, indicated that appellant was transported to the hospital via emergency medical services
(EMS) after onset of right-sided weakness. He related that on April 25, 2015 appellant noticed
acute onset of right hand pain in the afternoon, but did not think much of it. Appellant explained
that during dinner he experienced right leg weakness and urinary evacuation. He indicated that
he spent the rest of the night in his hotel room and that around 2:00 a.m. he went to use the
bathroom and had difficulty moving his right arm and leg and had slurred speech. Appellant
sought treatment at an urgent care center, from which he was transported to the hospital.
Dr. Gabasan reviewed appellant’s history and related that appellant had a previous cerebral
vascular accident (CVA) in 2011. Upon examination, he observed no gross deficits or focal
weakness neurologically. Strength was equal and bilaterally symmetric in upper and lower
extremities. Cardiovascular examination showed regular rate and rhythm with no murmurs,
rubs, or gallops. Dr. Gabasan related that a computerized tomography (CT) scan of the brain
showed no acute abnormality. He noted that appellant would be admitted for observation for
right-sided hemiparesis and hypertension.
Dr. Gabasan reexamined appellant on April 27, 2015 and in a progress note of that date
related left-sided weakness on his upper and lower extremities and positive right-sided paresis.
He related that a magnetic resonance imaging (MRI) scan of the brain demonstrated an acute
lacunar infarct involving left modular pyramid superiorly, small chronic lacunar infarct, and

2

white matter leukoaraiosis, and cerebral atrophy. Dr. Gabasan diagnosed right-sided hemiparesis
and acute CVA -- left medullary.
Appellant also underwent a neurological consultation with Dr. Mridula Prasad, a Boardcertified psychiatrist and neurologist, who indicated, in an April 27, 2015 report, that around
5:00 p.m. on April 25, 2015 appellant was on his way to his car after finishing work when he
suddenly lost control of his bladder and noticed right arm weakness. Later that night he
observed that his right arm weakness had worsened and he had weakness in his right leg.
Appellant went to urgent care for medical treatment and was transported by EMS to the
emergency room where he was admitted. Dr. Prasad related that appellant had been stressed at
work from working more than 40 hours a week and travelling. Upon examination, she observed
focal motor and sensory deficits. Cardiovascular examination revealed regular rate rhythm with
no murmurs, rubs, or gallops. Dr. Prasad related that neurologic examination showed impaired
right side. She reported that general sensory examination showed impaired position of
appellant’s right foot and impaired pin and touch distally of both legs. Dr. Prasad discussed
various laboratory results. She diagnosed acute right (dominant) hemiparesis secondary to left
medullary pyramidal acute infarct and stroke. Dr. Prasad conducted a follow-up examination
and in an April 28, 2015 progress note indicated no new symptoms and no changes.
In various diagnostic examination reports dated April 28, 2015, Dr. Anand S. Jagannath,
a Board-certified diagnostic radiologist, related that a CT angiography of the brain did not show
an aneurysm, but most likely secretions in a mucous retention cyst of the left sphenoid sinus. A
CT angiography of the neck revealed atherosclerotic disease of the carotid arteries, fusiform mild
stenosis of the left proximal internal carotid artery, marked ectasis of the distal internal carotid
arteries bilaterally, and cervical spondylosis.
In a magnetic resonance angiography of the head and neck, Dr. Jason L. Pennypacker, a
Board-certified vascular, interventional, and diagnostic radiologist, noted an incidental aneurysm
within the cephated portion of the left sphenoid sinus. He reported that the remainder of the
arteriographic evaluation of the head and neck was within normal limits.
On April 29, 2015 appellant was admitted to a rehabilitation hospital. In an April 30,
2015 examination report, Dr. Steven Morganstein, Board-certified in physical medicine and
rehabilitation, related that appellant was traveling on business on April 25, 2015 and experienced
acute onset of right hand pain. Appellant did not think much of it until he went to dinner and
experienced an episode of right leg weakness and urinary incontinence. He spent the rest of the
night in his hotel room and around 2:00 a.m. he attempted to use the bathroom and experienced
trouble with his right arm and leg, increased weakness, and slurred speech. Appellant went to
urgent care for treatment where he was taken to the emergency room. He was admitted for
further evaluation and possible treatment of stroke. Dr. Morganstein discussed the results of
various diagnostic testing and the medical treatment appellant received at the hospital. Appellant
advised Dr. Morganstein that on April 29, 2015 he had been transferred to the rehabilitation
hospital for continuation of therapy. Dr. Morganstein reviewed appellant’s history, which
included a stroke in 2011 with no residual deficits, and provided examination findings. He
reported that appellant had ambulatory dysfunction secondary to left medullary infarction with
right hemiplegia, dysphagia, and deep venous thrombosis prophylaxis.

3

In a May 18, 2015 narrative report, Dr. Morganstein reiterated that appellant was
hospitalized on April 24, 2015 for treatment of acute onset of right-sided weakness and found to
have a left hemisphere ischemic infarct. He related that, since appellant was admitted to the
rehabilitation hospital, appellant had made progress with functional mobility, but still required
assistance with ambulation, transfers, and activities of daily living. Dr. Morganstein indicated
that an initial CT scan of the brain showed no bleed and an MRI scan of the brain revealed
evidence of the CVA. He noted diagnoses of acute ischemic stroke with right hemiparesis,
hypertension, and diabetes mellitus. Dr. Morganstein opined that appellant remained totally
disabled from work and would require further intensive therapies to maximize his functional
independence.
Appellant was discharged from the rehabilitation hospital on May 22, 2015. According
to the discharge report, Dr. Morganstein noted that appellant had achieved his inpatient
rehabilitation goals. He diagnosed ambulatory dysfunction secondary to left medullary infarct,
right hemiparesis, hypertension, diabetes mellitus, right foot drop, and hypomagnesemia.
Dr. Morganstein indicated that appellant was returning home and would follow up with his
primary care physician on May 28, 2015. He provided appellant’s laboratory results.
By letter dated June 4, 2015, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It requested that he respond to the attached questionnaire and
provide medical evidence to establish that he sustained a diagnosed condition as a result of
factors of his employment. Appellant was afforded 30 days to submit this additional evidence.
Dr. Joseph Olinger, a Board-certified family practitioner, treated appellant and, in an
attending physician’s report dated June 22, 2015, explained that on April 25, 2015 appellant
experienced right-sided paralysis and speech impairment from left-sided infarction. He noted a
history of hypertension and type 2 diabetes. Dr. Olinger diagnosed left lacunar infarct with
right-sided paralysis. He checked a box marked “yes” that appellant’s condition was caused or
had been aggravated by his employment. Dr. Olinger reported that high levels of work stress and
excess travel exacerbated appellant’s hypertension and diabetes.
On June 25, 2015 OWCP received appellant’s response to its questionnaire. Appellant
related that he believed that the nature of his job contributed to his condition. He explained that
he was responsible for the training and preparation of service members and their loved ones for
deployment overseas by organizing deployment readiness training events prior to their
deployment. Appellant related that it was a constant battle to get the service members and their
family members to attend the training and that he often received a call at the last minute from
NOSC asking him how to get a family member and his family to an event. He reported that
organizing the event required arranging all travel arrangements such as coordinating flights,
lodging, and meals. Appellant described the various problems that often occurred when trying to
coordinate with so many different individuals and the stressful impact it caused. He noted that
he often received telephone calls from members at all hours of the day and night regarding
requirements, flights, and orders. Appellant related that he was also responsible for providing
returning service members with a returning warrior workshop (RWW) and with other resources
to assist them in reintegrating into civilian life. He explained that the resources necessary were
as complex and varied as to the member’s needs and required a great deal of coordination with

4

hotels and event facilitators. Appellant noted that he was responsible for conducting five
deployment readiness trainings and three RWWs events annually throughout the region.
Appellant asserted that the pressures of his job were crippling and caused a rise in his
blood sugar and blood pressure. He also pointed out that approximately 2½ years ago a study
was conducted, which determined that his position required 2 people to adequately fulfill its
obligation. Appellant reported that he had exposure to no other conditions outside of his federal
employment that would cause him stress and that he had no similar disability or symptoms prior
to this injury. He indicated that his wife first noticed the onset of his condition about two years
ago and that each stroke seemed to take a greater toll on him, leaving him physically and
emotionally exhausted.
Dr. Olinger continued to treat appellant and in progress notes dated June 1 and 25, 2015
noted that he examined appellant for follow-up of right-sided stroke on April 25, 2015. He
discussed appellant’s stroke symptoms and the treatment he received. Dr. Olinger noted that
diagnostic examinations revealed a lacunar infarct on appellant’s left side. He reviewed
appellant’s history and noted a past medical history of type 2 diabetes, essential hypertension,
stroke, hyperlipidemia, lipoprotein deficiencies, and arthritis. Upon examination, Dr. Olinger
observed normal speech and no slurring. Neurological examination revealed marked weakness
of the right hand and arm and the right leg. Deep tendon reflexes demonstrated 2+ in the upper
and lower extremities. Dr. Olinger diagnosed left-sided lacunar infarction, hemiplegia affecting
right dominant side, and diabetes mellitus without complication type 2, uncontrolled, essential
hypertension, and lipoprotein deficiencies. He reported that appellant continued to make
progress, but would not be able to work for at least one year as he continued with occupational,
physical, and speech therapy.
In a July 1, 2015 statement, appellant described his activities one week prior to his stroke
incident. He noted that on April 19, 2015 he attended church. From April 20 through 22, 2015
appellant prepared for his business trip by fielding calls from soldiers, checking orders, and
communicating with event resources and staff. On April 23, 2015 he traveled. On April 24,
2015 appellant set up the building for the event and continued communicating with traveling
sailors. He indicated that he first began to notice symptoms of dizziness and fatigue. On
April 25, 2015, when the event started, appellant worked with the staff, resources, presenters,
sailors, and families to ensure proper execution of the event. He explained that during the event
he became increasingly dizzy, but thought it was due to the stress of the event. Appellant related
that after the event the symptoms increased and he returned to his hotel and went to bed. On
April 26, 2015 he was returning to go home, but noticed that he was unable to drive. Appellant
went to the emergency room and was admitted to the hospital. He reported that he had no
history of heart problems and was not a smoker. Appellant resubmitted hospital records and
diagnostic examination reports dated April 26 to 28, 2015.
Dr. Olinger provided a narrative report dated August 21, 2015, where he indicated that he
had evaluated appellant on May 22 and June 22, 2015. He related that appellant was initially
traveling for work in Pennsylvania when he began to feel fatigue and unsteady on his feet.
Appellant went to sleep and woke up with right-sided weakness of his arm and leg, some speech
deficits, and difficulty walking. He was admitted to the hospital and diagnosed by MRI scan
with a left-sided lacunar infarction/stroke causing worsening right-sided hemiplegia and speech

5

deficit. Dr. Olinger reported that appellant also suffered a myocardial infarction on July 15,
2015 which required the placement of a stent followed by a triple coronary artery bypass graft on
July 20, 2015. He related that appellant continued with physical, occupational, and speech
therapy. Dr. Olinger diagnosed left-sided lacunar infarction with right hemiplegia and
dysarthria, atherosclerotic coronary artery disease status post myocardial infarction, surgical
coronary artery bypass grafting, hypertension, type 2 diabetes mellitus, and hyperlipidemia.
Dr. Olinger indicated that appellant was under enormous stress with his work, traveled
often, and was being asked to take on additional responsibility. He related that at one point a
study indicated that two people were needed to do appellant’s job, but appellant was given
additional responsibility, sufficient for a third person. Dr. Olinger opined that the stress and
responsibilities of appellant’s job contributed significantly and directly to the events which have
ensued, primarily the stroke and heart attack requiring stenting and subsequent bypass surgery.
He reported that the elements of the job creating this stress were travel commitments, stress of
added responsibilities, and the time required for him to complete the work of three individuals.
Dr. Olinger explained that this level of work-related stress and travel contributed significantly to
markedly elevated stress hormones, hypertension, and difficult to control diabetes. He reported
that at the time appellant was home and continuing with therapy, which would likely go for up to
one year to achieve maximum medical improvement.
Appellant submitted various physical therapy and occupational therapy reports.
On September 21, 2015 appellant retired due to disability.
OWCP denied appellant’s claim in a decision dated December 22, 2015. It accepted that
the factors of employment occurred as alleged and that he sustained a stroke, but denied his
claim finding that the medical evidence failed to establish that his medical condition was
causally related to factors of his employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).

6

compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
Where an employee is on temporary-duty assignment away from his federal employment,
he or she is covered by FECA 24 hours a day with respect to any injury that results from
activities essential or incidental to his temporary assignment.8
However, the fact that an employee is on a special mission or in travel status during the
time a disabling condition manifests itself does not raise an inference that the condition is
causally related to the incidents of employment.9 The medical evidence must establish a causal
relationship between the condition and factors of employment.10
ANALYSIS
Appellant alleged that he sustained a stroke due to factors of his employment. OWCP
accepted his employment duties as a warrior and family support specialist and that he sustained a
stroke, but denied his claim because the medical evidence failed to establish a causal relationship
between factors of his employment and his medical condition. The Board finds that appellant
did not meet his burden of proof to establish that his stroke was causally related to his federal
employment duties.
Appellant was initially treated in the hospital by Drs. Gabasan and Prasad. In reports
dated April 26 and 27, 2015 both physicians provided a detailed account of the symptoms
appellant experienced on April 25 and 26, 2015 and noted that he was traveling for work.
Drs. Gabasan and Prasad provided physical examination findings and related that diagnostic
testing revealed an acute lacunar infarct. Although they provided medical diagnoses of rightsided hemiparesis and CVA of the left medullary and noted that appellant was stressed at work,
none of the physicians provided an opinion on the cause of appellant’s stroke. The Board has

5

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

6

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

8

See Cherie L. Hutchings, 39 ECAB 639 (1988).

9

See William B. Merrill, 24 ECAB 215 (1973).

10

Samuel P. Isenberger, Docket No. 06-864 (issued June 23, 2006).

7

held that medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.11
Likewise, Dr. Morganstein’s rehabilitation notes dated April 30 to May 22, 2015 and the
various diagnostic examination reports dated April 28, 2015 by Drs. Jagannath and Pennypacker
also fail to contain any opinion on the cause of appellant’s stroke. These reports, therefore, are
insufficient to establish appellant’s claim.12
Subsequently, appellant was treated by Dr. Olinger. In various notes dated June 1 to 25,
2015, Dr. Olinger related that on April 25, 2015 appellant experienced acute onset of right-sided
weakness and paralysis. He provided examination findings and diagnosed left lacunar infarct. In
a June 22, 2015 attending physician’s report, Dr. Olinger checked a box marked “yes” that
appellant’s condition was caused or aggravated by his employment. The Board has held that a
report that addresses causal relationship with a check mark, without more by way of medical
rationale, is of diminished probative value.13 Dr. Olinger further explained in an August 21,
2015 narrative report that appellant was under enormous stress and had taken on additional
responsibility at work. He noted that although a study indicated that two people were needed to
do appellant’s job, appellant was given additional responsibility, sufficient for a third person.
Dr. Olinger reported that the stress and responsibilities of appellant’s job contributed
significantly and directly to the events which have ensued, primarily the stroke, and heart attack.
He explained that the elements of appellant’s job creating this stress were travel commitments,
stress of added responsibilities, and the time required for him to complete the work of three
individuals. Dr. Olinger opined that this level of work-related stress and travel contributed
significantly to markedly elevated stress hormones, hypertension, and difficult to control
diabetes. The Board notes that although Dr. Olinger reports contain an accurate description of
appellant’s employment duties and affirmative statements of causation, they do not contain a
sufficient explanation, based on medical rationale, of how any of his duties would have
physiologically caused or contributed to a stroke.14 Dr. Olinger failed to explain how appellant’s
particular employment duties caused or contributed to his medical condition.15 His opinion,
therefore, is insufficient to establish causal relationship.
Thus, the Board concludes that while appellant was on travel status at the time of his
stroke, he has not submitted the necessary medical evidence to establish causal relationship
between his medical condition and factors of his federal employment.16

11

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
12

Id.

13

K.A., Docket No. 16-592 (issued October 26, 2016).

14

See M.M., Docket No. 15-607 (issued May 15, 2015); M.W., Docket No. 14-1664 (issued December 5, 2014).

15

Id.

16

Supra note 10.

8

On appeal appellant alleges that a causal relationship was established between his work
environment and his stroke. He described the problems and stressful responsibilities of his work
environment and noted that he had been in rehabilitation treatment since April 2015. Appellant
pointed out that he was not working due to paralysis on his right side and that he was financially
ruined. As found above, however, the medical evidence of record is not of sufficient probative
value to establish that his stroke was causally related to factors of his employment.17
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.606 through § 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a stroke causally related to his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the December 22, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 2, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

17

Supra note 7.

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, ROCHESTER
PROCESSING & DISTRIBUTION CENTER,
Rochester, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 21-0970 & Docket
No. 21-0972
Issued: March 3, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On January 3, 2021 appellant also filed a timely appeal from a November 24, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx550. The Clerk of the Appellate Boards docketed the appeal as No. 21-0972. On June 10,
2021 appellant filed a timely appeal from a December 29, 2020 merit decision of OWCP under
OWCP File No. xxxxxx896. The Clerk of the Appellate Boards docketed that appeal as No.
21-0970.
With regard to OWCP File No. xxxxxx550, on October 27, 2007 appellant, then a 45-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed
neck, shoulder, and wrist conditions due to factors of her federal employment, including lifting
trays, pushing containers, and moving mail. She noted that she first became aware of her condition
and its relation to her federal employment on October 27, 2007. OWCP accepted the claim for
right biceps strain and sprain of the shoulder and upper arm. On November 12, 2008 OWCP
expanded the acceptance of appellant’s claim to include right lateral epicondylitis, lesion of the
left ulnar nerve, and bilateral carpal tunnel syndrome.
With regard to OWCP File No. xxxxxx896, on January 3, 2017 appellant, then a 54-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed

a left wrist condition due to factors of her federal employment, including repetitive fixing and
bagging of the mail. On April 5, 2017 OWCP accepted the claim for left radial styloid
tenosynovitis (de Quervain’s) under OWCP File No. xxxxxx896.
On June 1, 2020 appellant filed claims for compensation (Form CA-7) for a schedule award
under both OWCP File Nos. xxxxxx896 and xxxxx550. By decision dated November 24, 2020,
under OWCP File No. xxxxxx550, OWCP granted appellant a schedule award for seven percent
permanent impairment of her right upper extremity and nine percent permanent impairment of her
left upper extremity. The award ran for 47.76 weeks during the period September 14, 2020 to
August 14, 2021. By decision dated December 29, 2020, under OWCP File No. xxxxx896, OWCP
denied appellant’s schedule award claim, finding that the evidence of record was insufficient to
establish permanent impairment of a scheduled member or function of the body.
The Board has duly considered the matter and finds that these cases are not in posture for
decision.
Under its procedures, OWCP has determined that cases should be administratively
combined where a new injury case is reported for an employee who previously filed an injury
claim for the same part of the body and where correct adjudication depends on frequent crossreferencing between files.1 This will allow OWCP to consider all relevant claim files in developing
these schedule award claims.2
Appellant has claimed schedule awards in two claims, both accepted for injuries to her left
upper extremity. Therefore, for full and fair adjudication, the cases must be remanded to OWCP
to administratively combine OWCP File Nos. xxxxxx896 and xxxxxx550.3 Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision on
appellant’s schedule award claims.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
2

Id. at Chapter 2.400.8(c)(1); E.J., Docket No. 20-1556 (issued July 27, 2021); V.G., Docket No. 19-0670 (issued
April 30, 2020); L.P., Docket Nos. 18-1558, 18-1568 (issued June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867,
17-1868 (issued April 18, 2018); W.S., Docket No. 15-0969 (issued October 5, 2015); C.C., Docket No. 14-1576
(issued March 9, 2015).
3

Id.

2

IT IS HEREBY ORDERED THAT the November 24 and December 29, 2020 decisions
of the Office of Workers’ Compensation Programs under OWCP File Nos. xxxxxx550 and
xxxxxx896 are set aside and the cases are remanded to OWCP for further proceedings consistent
with this order of the Board.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

3