United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF THE ARMY, CIVILIAN
PERSONNEL ADVISORY CENTER,
FORT McCOY, Sparta, WI, Employer
__________________________________________

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

Docket No. 17-2009
Issued: March 22, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 25, 2017 appellant filed a timely appeal from a March 27, 2017 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 this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained
left foot, hand, and wrist injuries in the performance of duty on February 3, 2017, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. The Board is precluded from reviewing
evidence which was not before OWCP at the time it issued its final decision. Thus, the Board may not consider the
new evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On February 3, 2017 appellant, then a 46-year-old supervisory staff administrator, filed a
notice of traumatic injury (Form CA-1) alleging that, at 6:45 a.m. on that date, he fell in the lobby
of his duty station, sustaining “wrist, hand, and foot” injuries.”
In support of his claim, appellant submitted a February 3, 2017 urgent care center report
from Dr. Douglas Woodward, Board-certified in internal medicine and family practice.
Dr. Woodward related that appellant “was standing on a ladder that slipped and fell 12 feet to the
ground,” with the onset of left hand and wrist pain and “to the left second and third toes from
where the ladder struck his boots.” He noted appellant’s history of active thrombocytopenia. On
examination Dr. Woodward observed contusion and swelling of the left second and third toes,
snuff box tenderness of the left wrist, and tenderness of the left hand. He obtained x-rays of
appellant’s left hand and wrist and the left second and third toes which were negative for fracture.
Dr. Woodward diagnosed left hand and wrist pain, and contusion of the left second and third toes.
He ordered application of a thumb spica cast, and “buddy taping” of the left second and third toes.
By development letter dated February 17, 2017, OWCP informed him that the evidence
submitted was insufficient to establish that he actually experienced the incident or employment
factor alleged to have caused injury, and that a physician’s opinion explaining how the alleged
injury caused a diagnosed condition had not been received. It provided a development
questionnaire for his completion and requested that he submit a response in order to substantiate
the factual basis of his claim. Appellant was afforded 30 days to submit the necessary evidence.
OWCP requested that appellant submit a detailed factual statement corroborating the
alleged February 3, 2017 work incident, and a medical report from his attending physician which
explained how and why that event would have caused the claimed injuries. It afforded appellant
30 days to submit such evidence.
In response, appellant provided a February 17, 2017 follow-up report from Dr. Woodward,
who related that appellant’s contusions to his left second and third toes had resolved, but that his
left wrist remained symptomatic. On examination Dr. Woodward elicited mild pain in the
proximal left hand with lateral movement of the left hand. He diagnosed left hand and wrist pain.
Dr. Woodward also restricted lifting, pulling, and pushing to five pounds with the left arm.
Appellant was directed to wear a prescribed splint “while at work and with activities at home.”
By decision dated March 27, 2017, OWCP denied appellant’s claim as fact of injury had
not been established. It found that appellant submitted insufficient factual evidence to establish
that the injury occurred in the performance of duty on February 3, 2017. OWCP noted that
appellant failed to respond to the February 17, 2017 request for additional evidence describing the
alleged fall, or any witness statements corroborating the incident.

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LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 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 or specific condition for which compensation is claimed is causally related to the
employment injury.4 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.5
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.6 An employee has not met his or her burden of proof of
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.7 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.8
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.9 Moreover,
an injury does not have to be confirmed by eyewitnesses. The employee’s statement, however,
must be consistent with the surrounding facts and circumstances and his or her subsequent course
of action. An employee has not met his or her burden 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. Circumstances such 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 statement in
determining whether a prima facie case has been established.10

3

Id.

4

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

5

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

6

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

7

S.N., Docket No. 12-1222 (issued August 23, 2013); Tia L. Love, 40 ECAB 586, 590 (1989).

8

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

9

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

10

Betty J. Smith, 54 ECAB 174 (2002); L.D., Docket No. 16-0199 (issued March 8, 2016).

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ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he sustained
left foot, hand, and wrist injuries in the performance of duty on February 3, 2017, as alleged.
Appellant claimed that he sustained work-related wrist, hand, and foot injuries when he
fell in the lobby of his duty station on February 3, 2017 at 6:45 a.m. While a February 3, 2017
medical report relates his account of falling from a ladder while at work, there is no corroboration
of this incident. Appellant subsequently submitted additional medical evidence, but did not
provide the requested factual statement or other evidence to corroborate the claimed February 3,
2017 fall. OWCP denied the claim, finding that he failed to establish fact of injury as he failed to
provide sufficient factual evidence to establish that the claimed February 3, 2017 work incident
occurred as alleged.
By letter dated February 17, 2017, OWCP requested that appellant respond to its factual
development questionnaire and provide a more detailed description of the alleged employment
incident in order to establish the factual element of his claim. Appellant did not respond to the
questionnaire, nor did he provide any supplemental statement or detailed information surrounding
the alleged February 3, 2017 work incident.11 The evidence of record does not contain a detailed
account of the alleged injury sufficient to establish that the incident occurred at the time, place,
and in the manner alleged.
As appellant failed to submit sufficient factual evidence to establish that the claimed
February 3, 2017 work incident occurred at the time, place, and in the manner alleged, he has failed
to meet his burden of proof.12 Consequently, the Board need not address the secondary issue of
causal relationship.13
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 has not met his burden of proof to establish that he sustained
left foot, hand, and wrist injuries on February 3, 2017 in the performance of duty, as alleged.

11

R.V., Docket No. 17-1286 (issued December 5, 2017).

12

Supra note 5.

13

Alvin V. Gadd, 57 ECAB 172 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated March 27, 2017 is affirmed.
Issued: March 22, 2018
Washington, D

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.D., Appellant
and
U.S. POSTAL SERVICE, WICHITA REMOTE
ENCODING CENTER, Wichita, KS, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-366
Issued: September 7, 2010

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 November 23, 2009 appellant, through counsel, filed a timely appeal from an
October 19, 2009 merit decision of the Office of Workers’ Compensation Programs. 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 established that she sustained an occupational disease in
the performance of duty.
FACTUAL HISTORY
On December 6, 2008 appellant, then a 44-year-old data conversion operator, filed an
occupational disease claim alleging that on that date she first realized the pain in her shoulders
and arm and possible carpal tunnel syndrome were employment related. She did not stop work.
By letter dated December 16, 2008, the Office advised appellant of the deficiencies in her
claim and to submit additional medical and factual evidence. Appellant was given 30 days to
provide the requested information. No evidence was received.

In a decision dated March 9, 2009, the Office denied appellant’s claim, finding that there
was no medical evidence providing a diagnosis of a condition that could be related to her
accepted employment exposure.
On March 25, 2009 appellant’s counsel requested a telephonic hearing before an Office
hearing representative, which was held on July 17, 2009.
In a December 31, 2008 attending physician’s report (Form CA-20) received on
March 12, 2009, Dr. Heba S. Ferguson, a Board-certified family practitioner, diagnosed acute
onset of wrist and arm pain on December 6, 2008. She checked “yes” to the form question of
whether the condition was employment related. Under explanation, Dr. Ferguson wrote “typing,
key entry.” She noted that appellant had a history degenerative disc disease and cervical
stenosis.
In a January 14, 2009 certification of health care provider, Dr. Ferguson diagnosed
degenerative disc disease and stenosis of the neck. She noted December 6, 2008 as the
approximate date the condition began and that it was chronic with acute exacerbations which
could last up to three weeks.
On March 12, 2009 Dr. Ferguson stated that appellant was disabled from working due to
neck, back and hand pain which was caused by her thoracic and cervical disc disease.
In an October 19, 2009 decision, the hearing representative affirmed the March 9, 2009
denial of appellant’s claim. He found that the medical evidence did not adequately explain how
her accepted work duties caused or contributed to any diagnosed conditions of the upper
extremities or cervical spine.
LEGAL PRECEDENT
An occupational disease or illness means a condition produced in the work environment
over a period longer than a single workday or shift by such factors as systemic infection,
continued or repeated stress or strain or other continued or repeated conditions or factors of the
work environment.1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) medical evidence establishing the
presence or existence of a condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the condition; and
(3) medical evidence establishing that the employment factors identified by the employee were
the proximate cause of the condition or illness, for which compensation is claimed or stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the employee.2

1

Donald W. Wenzel, 56 ECAB 390 (2005); William Taylor, 50 ECAB 234 (1999); see also 20 C.F.R. § 10.5(q).

2

D.D., 57 ECAB 734 (2006); Donna L. Mims, 53 ECAB 730 (2002).

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Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.3 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between an employee’s diagnosed conditions and the implicated
employment factors.4 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
conditions and the specific employment factors identified by the employee.5
ANALYSIS
Appellant attributed her upper extremity and neck conditions to repetitive work of typing
and key entry. The Office accepted the employment factors identified by her, but denied her
claim on the grounds that she failed to submit sufficient medical evidence. The issue is whether
the medical evidence submitted by appellant is sufficient in explaining how her wrist and arm
pain, degenerative disc disease or cervical stenosis were caused or aggravated by her federal
employment. The Board finds that she did not provide sufficient medical evidence to meet her
burden of proof.
In a December 31, 2008 attending physician’s report, Dr. Ferguson diagnosed acute onset
of wrist and arm pain and checked “yes” as to whether the conditions were employment related
with a supporting explanation of “typing, key entry.” This report is of reduced probative value
for several reasons. Dr. Ferguson did not provide any detailed findings from examination or
make a specific diagnosis. The Board has held that a diagnosis of pain, without more by way of
an explanation, does not constitute a basis of payment for compensation, as pain is considered to
be a symptom rather than a specific diagnosis.6 Moreover, the Board has held that, when a
physician’s opinion on causal relationship consists only of checking “yes” to a form question,
without explanation or rationale, it is of diminished probative value and is insufficient to
establish a claim.7 Dr. Ferguson provided no supporting rationale beyond a checkmark and a
statement attributing appellant’s condition to her work duties.
Dr. Ferguson’s January 14, 2009 health care note and March 12, 2008 disability note are
also insufficient to establish appellant’s claim. She diagnosed degenerative disc disease and
stenosis of the neck and noted December 6, 2008 as the approximate date the condition began.
Dr. Ferguson noted that it was a chronic condition with acute exacerbations which could last up
to three weeks. The disability note attributed disability due to neck, back and hand pain which
was caused by thoracic and cervical disc disease. Dr. Ferguson provided no narrative opinion as
to the cause of these conditions. She did not provide a full or accurate factual or medical history
3

I.R., 61 ECAB ___ (Docket No. 09-1229, issued February 24, 2010); David Apgar, 57 ECAB 137 (2005).

4

G.G., 58 ECAB 389 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

5

J.M., 58 ECAB 303 (2007); Roy L. Humphrey, 57 ECAB 238 (2005).

6

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

7

D.D., 57 ECAB 734 (2006); Cecelia M. Corley, 56 ECAB 662 (2005).

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of appellant’s condition or explain how her work as a data conversion operator was sufficient to
contribute to any of the medical conditions listed. The Board has long held that medical
evidence which does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.8 The medical evidence from
Dr. Ferguson is not sufficient to establish appellant’s claim.
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an occupational disease in the performance of duty. Appellant failed to provide a
rationalized medical opinion explaining how these conditions were related to the employment
factors she identified.
CONCLUSION
The Board finds that appellant did not establish that she sustained upper extremity back
or cervical condition, causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the October 19, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: September 7, 2010
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

8

A.D., 58 ECAB 149 (2006); Robert Broome, supra note 6.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.D., Appellant
and
OFFICE OF SPECIAL COUNSEL,
HEADQUARTERS, Washington, DC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 10-1655
Issued: May 25, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On June 8, 2010 appellant filed an application for review of a March 31, 2010 decision of
the Office of Workers’ Compensation Programs finding that she did not establish that she
sustained a stress-related condition in the performance of duty due to an incident alleged to have
occurred on March 9, 2006. The appeal was docketed as No. 10-1655.
On April 21, 2006 appellant filed a Form CA-1, notice of traumatic injury, alleging that
she sustained a stress-related condition in the performance of duty on March 9, 2006.1 The case
file for this claim was given the number xxxxxx252.2
On February 8, 2006 appellant had filed a Form CA-2, notice of occupational disease,
under a different case file, claiming that she sustained a stress-related condition due to a number
of incidents and conditions at work to which she was exposed over an extended period. The case
file for this claim was given the number xxxxxx775.
1

A traumatic injury refers to injury caused by a specific event or incident or series of incidents occurring within a
single workday or work shift whereas an occupational disease refers to an injury produced by employment over a
period longer than a single workday or shift. 20 C.F.R. § 10.5(q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992).
2

Case file number xxxxxx252 was created as a master file with case file number xxxxxx253 serving as a
subsidiary file. Both of these files pertain to the April 21, 2006 occupational disease claim.

In a May 4, 2009 decision, issued in connection with the present case files (numbers
xxxxxx252 and xxxxxx253), the Office denied appellant’s claim that she sustained a stressrelated occupational disease in the performance of duty. In a December 17, 2009 decision, an
Office hearing representative affirmed the Office’s May 4, 2009 decision with respect to the
finding that appellant had not established a stress-related occupational disease in the performance
of duty. In both of these decisions, reference was made to documents contained in case file
number xxxxxx775. In the December 17, 2009 decision, the Office hearing representative also
found that the Office’s May 4, 2009 decision had not adequately considered appellant’s claim
that she sustained a stress-related traumatic injury in the performance of duty on March 9, 2006.
He remanded the case to the Office for this purpose and directed the Office to combine the case
files for the traumatic injury claim (numbers xxxxxx252 and xxxxxx253) with the case file for
the occupational disease claim (number xxxxxx775). In a March 31, 2010 decision, the Office
denied appellant’s claim that she sustained a stress-related traumatic injury in the performance of
duty on March 9, 2006. The Office did not combine the case files for the traumatic injury claim
with the case file for the occupational disease claim as directed by the Office hearing
representative.3
The Board has duly considered the matter and notes that the case is not in posture for a
decision. Pursuant to Office procedures, it has determined that cases should be combined where
correct adjudication depends on cross-referencing between files.4 Consequently, the Board finds
that, for a full and fair adjudication in accordance with Office procedures, the case files
pertaining to appellant’s claim for a stress-related traumatic injury should be combined with the
case file pertaining to her claim for a stress-related occupational disease. This will allow the
Office to consider all relevant claim files in evaluating appellant’s claims. Moreover, to consider
appellant’s appeal at this stage would involve a piecemeal adjudication of the issues in this case
and raise the possibility of inconsistent results. It is the Board’s policy to avoid such an
outcome.5
The case will be remanded to the Office to combine case file numbers xxxxxx252 and
xxxxxx253 with case file number xxxxxx775. Following this and such other development as
deemed necessary, the Office shall issue an appropriate merit decision on appellant’s claim.

3

Moreover, the Office has not forwarded the case file for claim number xxxxxx775 to the Board.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
5

See William T. McCracken, 33 ECAB 1197 (1982).

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IT IS HEREBY ORDERED THAT the March 31, 2010 decision of the Office of
Workers’ Compensation Programs be set aside and the matter remanded to the Office for further
proceedings consistent with this order of the Board.
Issued: May 25, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees' Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Capital Heights, MD, Employer
__________________________________________

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Appearances:
Lynne K. Zusman, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-626
Issued: February 25, 2010

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 January 5, 2009 appellant, through her attorney, filed for review from an October 6,
2008 decision of an Office of Workers’ Compensation Programs’ hearing representative who
affirmed the denial of her recurrence of disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d), the Board has jurisdiction over the merits of the appeal.
ISSUE
The issue is whether appellant was disabled from August 3 to 29, 2005, May 22 to
June 18, 2006 and September 11 to November 5, 2006 causally related to her December 31, 2002
employment injury.
FACTUAL HISTORY
On December 31, 2002 appellant, then a 51-year-old parcel keyer, injured her low back
and buttocks when she slipped and fell at work. Her claim was accepted by the Office for a back
contusion, sacrum and lumbosacral strains and cervical disc degeneration.

Appellant was treated by Dr. Roger L Raiford, an orthopedic surgeon, for complaints of
low back pain. On January 9, 2004 Dr. Raiford noted tenderness and tightness of the paraspinal
muscles in the lumbosacral region. Straight leg raising was negative and deep tendon reflexes
were equal and active. Dr. Raiford found no motor or sensory deficit. He diagnosed an acute
lumbosacral strain and contusion and ordered x-rays which were obtained on January 21, 2004
and revealed mild osteoarthritis of the lumbar spine at L4-5 and L5-S1 with no compression
fracture. On February 14, 2004 appellant was released to return to light-duty work. Dr. Raiford
recommended a course of physical therapy and on April 8, 2004 noted a resolving lumbosacral
strain. He noted that appellant could continue work at light duty. Following examination on
May 20, 2005, Dr. Raiford diagnosed a resolved lumbosacral strain. Examination revealed no
discomfort in the lumbosacral region. He advised that appellant could return to regular work and
would be seen as necessary. Dr. Raiford saw appellant again on November 22, 2004 for pain in
the low back without radiation. Straight leg raising was reported as negative with deep tendon
reflexes equal and active and no sensory deficits. Dr. Raiford advised that she would resume
regular work.
On January 6, 2005 appellant was treated by Dr. Hampton J. Jackson, Jr., a Boardcertified orthopedic surgeon, for complaint of back pain radiating into the legs, more on the left
side. Dr. Jackson noted the diagnosis of chronic lumbar strain provided by Dr. Raiford. He
advised that examination was suspicious for a disc injury as straight leg raising was positive on
the left and negative on the right. Dr. Jackson recommended a magnetic resonance imaging
(MRI) scan. Diagnostic testing was obtained on January 13, 2005 which revealed degenerative
changes at L4-5 and a mile five millimeters anterior subluxation of L4 relative to L5 and
associated disc disease. At L5-S1, there was mild disc and facet degenerative changes with disc
bulging. Dr. Jackson subsequently treated appellant with epidural blocks. On February 17, 2005
he noted that she was to remain on light duty. On July 21, 2005 Dr. Jackson noted that appellant
was again experiencing pain, noting that the block had worn off. He noted restriction of motion
and worsening spasm in the low back; however, straight leg raising was not terribly positive.
Dr. Jackson diagnosed aggravation of psuedospondylolisthesis at L4-5. In an attached duty
status report, he continued appellant’s light-duty work restrictions.
Appellant filed claims for wage-loss compensation from August 3 to 29, 2005, May 22 to
June 18, 2006 and September 11 to November 5, 2006.
In an August 23, 2005 note, Dr. Jackson advised that appellant was seen that day for
worsening back pain. He noted that she had taken off work since August 3, 2005 but was getting
better. Dr. Jackson found that she was fit to return to light-duty work as of August 29, 2005. On
September 27, 2005 he noted that appellant was back at work. Dr. Jackson advised that she was
doing okay and was in a new position as a dock clerk with a 20-pound restriction on lifting and
up to an hour a day of sitting and standing.
On May 2, 2006 Dr. Jackson noted that appellant returned and remained on light-duty
work. He noted that she took Tylenol for arthritis and that examination revealed some
tenderness and spasm in the back, but no worsening of her reflex, sensory or motor status.
Dr. Jackson found that she could continue at full time light duty. He saw appellant again on
June 13, 2006 for complaint of worsening pain, noting that she had worked up to May 21, 2006.
On examination, Dr. Jackson noted back spasm and straight leg raising positive at 45 degrees.

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He advised that she was to continue off work and return to physical therapy. On July 11, 2006
Dr. Jackson noted that appellant was back at work part time performing light duty. On
examination, he noted lower back spasm, restriction of motion and tenderness with no worsening
of motor, sensory or reflex status.
Dr. Jackson noted that, from August 8 to September 5, 2006, appellant was working
light-duty full time. He diagnosed chronic lumbar radiculopathy and lumbar disc injury due to
the December 31, 2003 fall at work. On October 4, 2006 appellant was seen for worsening of
her condition since September 5, 2006. Dr. Jackson diagnosed L4-5 listhesis and L4-5 disc
herniation. On physical examination, he noted tenderness and spasm, 50 degrees straight leg
raising and no worsening of the reflex or sensory status. Dr. Jackson noted that appellant was
able to return to work on October 9, 2006. In a November 1, 2006 progress note, he reiterated
the diagnoses. Dr. Jackson noted having recommended that appellant remain off work until he
saw her that day. Examination showed less spasm. Dr. Jackson found no basis for appellant not
to return to work on November 6, 2006.
In a May 4, 2007 letter, the Office informed appellant that the medical evidence was
insufficient to support her claims of total disability. Appellant was requested to submit a medical
report from Dr. Jackson which listed the dates of examination and treatment, provided a
complete medical history and findings on examination and an opinion on the causal relationship
of her claimed disability to the accepted conditions.
On May 31, 2007 appellant noted that following the 2003 injury she had problems in
performing her duties in parcel keying due to heavy lifting and stair climbing. She bid on a job
as a dock clerk which would not involve stairs and performed the duties for six months.
Appellant subsequently worked as a floater, working at whatever dock needed a clerk. She
contended that her duties included heavy pushing and pulling, which contributed to her disability
beginning May 22 and September 11, 2006.
In a June 12, 2007 note, Dr. Jackson advised that he had completed a series of epidural
injections with some improvement. He noted that her December 31, 2003 employment injury
had been aggravated by walking up and down stairs every two hours and using her left trunk and
arm to push objects, twist and bend. Dr. Jackson stated that she was currently working at a
different position; however, appellant was reinjured on May 22, 2006 by lifting doors and
aggravated on September 11, 2006 with lifting truck doors. Appellant also had to repeatedly pull
chains to open dock doors which contributed to her disability beginning September 11, 2006.
In a March 6, 2008 decision, the Office denied appellant’s claims for wage-loss
compensation, finding that the medical evidence was insufficient to establish her disability as of
August 3, 2005, May 21 and September 11, 2006.
On March 13, 2008 appellant requested an oral hearing before an Office hearing
representative that was held on July 3, 2008. She was represented by counsel. In a June 24,
2008 report, Dr. Jackson noted that appellant was injured on December 31, 2003 when she
slipped and fell at work. The claim was accepted for a lumbar sprain/strain. Dr. Jackson advised
that the performance of her duties since December 31, 2003 had aggravated and accelerated the
deterioration of her accepted disabling condition. He advised that appellant’s repetitive job

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duties incrementally and progressively aggravated and accelerated the deterioration of her workrelated musculoskeletal pathology since December, 2003.
By decision dated October 6, 2008, the Office hearing representative affirmed the denial
of appellant’s wage-loss claims.
LEGAL PRECEDENT
For each period of disability claimed, the employee has the burden of establishing that
she was disabled for work as a result of the accepted employment injury.1 Whether a particular
injury causes an employee to become disabled for work and the duration of that disability, are
medical issues that must be proved by a preponderance of probative and reliable medical opinion
evidence.2 The Board will not require the Office to pay compensation for disability in the
absence of medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so, would essentially allow an employee to self-certify their
disability and entitlement to compensation.3
ANALYSIS
Appellant sustained injury to her low back on December 31, 2002 which was accepted
for a back contusion and strains of the sacrum and lumbosacral spine. She came under the
treatment of Dr. Raiford, who diagnosed an acute lumbosacral strain. Dr. Raiford obtained xrays that showed mild osteoarthritis of the lumbar spine at L4-5 and L5-S1 with no compression
fracture. Appellant received physical therapy and, as of May 20, 2005, Dr. Raiford diagnosed a
resolved lumbar strain. Dr. Raiford advised that appellant could return to her regular duty.
Appellant was treated by Dr. Jackson on January 6, 2005 for back pain radiating into her
left leg. Dr. Jackson obtained an MRI scan which revealed degenerative changes at L4-5 and
L5-S1. He diagnosed psuedospondylolisthesis at L4-5 and provided a series of epidural
injections. Dr. Jackson recommended that appellant work light duty.
As to appellant’s claim of disability from August 3 to 29, 2005, the Board notes that she
was treated by Dr. Jackson on August 23, 2005. Dr. Jackson advised that appellant had taken
herself off work since August 3, 2005 and he found her capable to returning to light-duty work as
of August 29, 2005. His report is not sufficient to establish that appellant was disabled for work
commencing August 3, 2006 as she was not examined that day or until August 23, 2009.
Dr. Jackson, however, did not provide any medical opinion on the question of whether residuals
of appellant’s accepted condition caused her to be disabled for work during this period. As
noted, an employee may not self-certify his or her disability for work. Whether a particular
injury causes an employee to be disabled for work and the period of such disability are medical

1

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also David H. Goss, 32 ECAB 24 (1980).

2

See Edward H. Horton, 41 ECAB 301 (1989).

3

Mary A. Ceglia, 55 ECAB 626 (2004); Maurissa Mack, 50 ECAB 498 (1999).

4

issues to be proved by reliable and probative medical evidence.4 Dr. Jackson’s treatment notes
are not sufficient to establish appellant’s claim for wage loss for this period.
Through early 2006, appellant continued under treatment by Dr. Jackson whose reports
relevant to the May 22 to June 18, 2006 claim for compensation consists of a June 13, 2006
treatment record. Dr. Jackson noted that appellant had worked up to May 21, 2006 when she
took herself off work. He listed findings on examination, including back spasm and positive
straight leg raising. Dr. Jackson advised that appellant was to remain off work pending
additional physical therapy. On July 11, 2006 he noted that appellant was back at work. The
Board finds that the medical evidence does not support appellant’s claim of disability due to
residuals of her back condition from May 21 through June 12, 2006. Appellant was not
examined by Dr. Jackson until June 13, 2006, when he listed objective findings of back spasm
and positive straight leg raising. Dr. Jackson found appellant disabled for work and returned her
to physical therapy. The Board will modify the Office’s October 6, 2008 decision to find that
appellant established disability for work from June 13 to 18, 2006 due to residuals of her
accepted condition.
For the period September 11 to November 5, 2006, the record establishes that appellant
was not treated by Dr. Jackson until October 4, 2006. Dr. Jackson diagnosed L4-5 listhesis and
an L4-5 disc herniation. On examination, he noted findings of back spasm, positive straight leg
raising but advised that appellant was capable of returning to work on October 9, 2006. The
medical evidence does not establish appellant’s disability for work from September 11 to
October 4, 2006, as it appears she again took herself off work. The medical evidence from
Dr. Jackson establishes disability for work from October 4 to 9, 2006. He did not treat appellant
again until November 1, 2006, at which time he noted having recommended that appellant
remain off work until he examined her that date. This report is insufficient to establish
appellant’s disability for work from October 10 to November 5, 2006. Although noting that
Dr. Jackson recommended that appellant not return to work until November 6, 2006, he provided
no medical explanation addressing how her disability was due to residuals of her accepted
condition. His subsequent medical reports do not cure the deficiencies noted in the
contemporaneous treatment notes.
The Board will modify the October 6, 2008 decision to find that appellant established her
disability for work from June 13 to 18, 2006 and October 4 to 9, 2006. In all other respects, the
medical evidence is insufficient to establish her disability for the remaining periods claimed.
CONCLUSION
The Board finds that the medical evidence is sufficient to establish appellant’s disability
from June 13 to 18 and October 4 to 9, 2006 was causally related to her accepted injury. The
remainder of the periods of compensation denied by the Office are affirmed.

4

See Tammy L. Medley, 55 ECAB 182 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the October 6, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: February 25, 2010
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MEMPHIS VETERANS ADMINISTRATION
MEDICAL CENTER, Memphis, TN, Employer
__________________________________________

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

Docket No. 19-1843
Issued: April 24, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 3, 2019 appellant filed a timely appeal from an August 22, 2019 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 this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an aggravation of a
preexisting emotional condition in the performance of duty.
FACTUAL HISTORY
On March 27, 2019 appellant, then a 50-year-old motor vehicle operator, filed a traumatic
injury claim (Form CA-1) alleging that on March 18, 2019 at 11:30 a.m. his preexisting anxiety
1

5 U.S.C. § 8101 et seq.

and stress conditions were aggravated while in the performance of duty. He explained that when
he was standing in line in the second floor cafeteria, the logistics chief, D.R., walked up behind
him and assaulted him by punching his back and slapping the left side of his abdomen. On the
reverse side of the claim form, the employing establishment contended that appellant was not
injured in the performance of duty because he was on his lunch break in the cafeteria when the
incident allegedly occurred. It indicated that appellant stopped work on March 27, 2019.
In a March 19, 2019 voluntary witness statement, appellant noted that on March 18, 2019
between 11:00 a.m. and 1:30 p.m. the logistics chief, D.R., walked up behind him and began
punching his back and side and slapped his stomach with an open fist. He indicated that he turned
around to see who was responsible, and upon seeing that it was D.R. his anxiety, anger, and stress
were triggered. D.R. then said something, but appellant did not recall what it was. Appellant
noted that this was a violation of his workplace’s assault policy, and at the time of the incident
there was a lot of tension between him and D.R. He postulated that D.R. may have tried to
intimidate him or could have been retaliating against him for whistleblower activity.
In a form signed on March 27, 2019, appellant indicated that he sustained a stress-related
injury at work on March 18, 2019. He stated that he was a veteran and was currently receiving
benefits for a service-connected disability. Appellant noted that his military claim included posttraumatic stress disorder.
March 27, 2019 medical records signed by Victoria L. Carroll, a mental health nurse
practitioner, noted that she had provided appellant psychological, cognitive, and solution-based
therapy. A May 27, 2019 work status letter signed by Ms. Carroll indicated that appellant had a
psychiatric disability and therefore was unable to work from March 27 to April 26, 2019. She
concluded that appellant would be able to return to work without restriction on April 27, 2019.
In an April 4, 2019 controversion letter, the employing establishment related that appellant
failed to provide any statements from witnesses to substantiate that the alleged incident occurred.
It noted that appellant’s medical evidence was insufficient to establish his claim for compensation
benefits and indicated that it disputed appellant’s claim on the basis of fact of injury, performance
of duty, and causal relationship.
In an April 15, 2019 development letter, OWCP informed appellant that additional
evidence was required in support of his claim. It advised him of the type of factual and medical
evidence necessary to establish his claim and attached a questionnaire for his completion. OWCP
afforded appellant 30 days to submit the requested evidence. By letter of even date, OWCP
requested additional information from the employing establishment regarding the circumstances
of the alleged March 18, 2019 assault. The employing establishment was asked to describe the
events and circumstances which immediately preceded and led up to the assault, and whether there
was any animosity between appellant and the alleged assailant. Further, it was asked if any
investigation subsequent to the incident was conducted.
March 21, 2019 progress notes from Dr. Anne Ayres, a clinical psychologist, indicated that
appellant related that he was still having difficulties with work-related stress. She noted
appellant’s provisional diagnoses as adjustment disorder with depressed and anxious features
(work stressors), alcohol use disorder, unspecified depression, and post-traumatic stress disorder

2

(PTSD). Dr. Ayres recounted that he filed charges against a coworker and expressed concerns
regarding how he is regarded by the employing establishment.
May 2, 2019 progress notes signed by Dr. Tammie Tucker, Board-certified in internal
medicine, indicated that appellant complained of left-sided pain in his head, neck, and chest,
shortness of breath, diaphoresis, and lightheadedness. Appellant’s medical history was listed as
including depression, sleep apnea, and alcohol abuse, and a physical examination revealed
reproducible chest wall tenderness upon palpation. Dr. Tucker diagnosed chest pain and
musculoskeletal pain, and she additionally provided a differential diagnosis of angina and anxiety.
A May 2, 2019 emergency department discharge instruction report signed by Dr. Joel Raja, a
resident physician, noted that appellant was treated for nonanginal chest pain and recommended
follow-up appointments.
A May 14, 2019 e-mail from the employing establishment responding to OWCP’s
development letter indicated it was unaware of any animosity between appellant and D.R., and
that the employing establishment’s police conducted the only investigation of the alleged assault.
It further indicated that it had no knowledge of any witnesses to the alleged assault or if appellant
had similar preexisting injuries or conditions prior to the alleged assault. The employing
establishment also noted it that had no knowledge about whether appellant sustained any other
injuries between the date of his alleged injury and the date he reported the alleged injury.
May 6, 2019 medical records signed by Dr. Uzma Shirwany, Board-certified in internal
medicine, indicated that appellant presented paperwork for retirement disability, and he noted that
the nature of his disability was PTSD and stress. He also indicated that he was experiencing chest
pain, and an electrocardiogram revealed no acute ST-segment changes.
A May 15, 2019 letter from the employing establishment provided additional information
in response to OWCP’s development letter. The employing establishment related that it could not
provide a full description of the events and circumstances leading to the assault because appellant’s
supervisor was not present at the time of the alleged incident. It also related that appellant’s
supervisor had no knowledge of any animosity between appellant and the alleged assailant. In
response to OWCP’s request for the employing establishment to forward a copy of the
investigative report of the alleged assault, it noted that the employing establishment police took a
statement from appellant and had provided the voluntary witness statement to OWCP. The
employing establishment also noted that while appellant’s medical documentation indicated that
he experienced work-related stress, it did not identify specific work factors contributing to his
stress or provide a medical opinion that his symptoms were a direct result of specific work factors.
It indicated that appellant had therefore failed to establish causal relationship.
By decision dated May 16, 2019, OWCP denied appellant’s emotional condition claim,
finding that the evidence of record failed to establish that the claimed incident occurred, as alleged.
On June 11, 2019 appellant requested reconsideration and submitted a March 19, 2019
incident report from the employing establishment police department which related appellant’s
report that, between the hours of 11:00 a.m. and 1:30 p.m. on March 18, 2019, D.R. approached
him from behind and physically assaulted him by punching him in the back and on the side and

3

slapping his stomach. Appellant recounted that he could not understand why his supervisor was
playing in the manner that he did due to the recent tension that had arisen.
OWCP subsequently received an April 10, 2019 voluntary employing establishment police
witness statement by D.R. who noted that on March 18, 2019 he and two colleagues went to lunch
at the employing establishment’s canteen. D.R. parted ways with his colleagues and as he was
walking towards the soda cooler he saw appellant standing in the fast food line in front of the
condiment section and they made eye contact. As he approached appellant, appellant stopped
stooping, which he noted in the report was a bad posture look, straightened his back, and nodded
his head. D.R. further noted that he walked up to appellant and touched his stomach with an open
hand while patting his back. He indicated that he asked appellant “what was good for lunch” and
appellant replied that he was having a hamburger and French fries. D.R. related that he chatted
with appellant until appellant and the three people in front of him received their meals. He then
met up with his two colleagues and walked back to the office. D.R. recounted that when he
received appellant’s claim a week later his coworkers and appellant’s supervisor were not aware
of any injury sustained by appellant.
By decision dated August 22, 2019, OWCP denied modification of its May 16, 2019
decision.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, appellant must submit the
following: (1) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; (2) rationalized medical evidence establishing that he or she has
an emotional condition or psychiatric disorder; and (3) rationalized medical opinion evidence
establishing that the emotional condition is causally related to the identified compensable
employment factors. 2
It is well established as a general rule of workers’ compensation law that, as to employees
having fixed hours and places of work, injuries occurring on the premises of the employing
establishment, while the employees are going to or from work, before or after working hours, or
at lunch time, are compensable.3
Assaults arise out of the employment either if the risk of assault is increased because of the
nature or setting of the work or if the reason for the assault was a quarrel having its origin in the
work. Assaults for private reasons do not arise out of employment unless, by facilitating an assault
that would not otherwise be made, the employment becomes a contributing factor. 4

2

See W.F., Docket No. 18-1526 (issued November 26, 2019); C.M., Docket No. 17-1076 (issued November 14,
2018); C.V., Docket No. 18-0580 (issued September 17, 2018); Kathleen D. Walker, 42 ECAB 603 (1991).
3

Eileen R. Gibbons, 52 ECAB 209 (2001); Narbik A. Karamian, 40 ECAB 617, 618 (1989).

4

J.G., Docket No. 17-0747 (issued May 14, 2018).

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In this regard, Federal (FECA) Procedure Manual, Chapter 2.08045 provides the following
as to the development of assault cases:
“10. Assault Cases. Where the injury or death is caused by the assault of another
person, it is necessary to establish to the extent possible whether the assault was
accidental, arose out of an activity directly related to the work or work environment,
or arose out of a personal matter having no connection with the employment. In
the case of a personal matter, the evidence must show whether it was materially and
substantially aggravated by the work association. An assault occurring off the
[employing establishment’s] premises and outside of work hours may be
compensable if it arose for reasons related to the employment.
a. It is the responsibility of the [claims examiner] CE to obtain copies of
any police reports which may have been made. Statements should also be
obtained from the official superior and coworkers or other witnesses
showing:
(1) Whether there was any animosity between the injured or
deceased employee and the assailant by reason of a personal
association away from work and, if so, this should be explained
fully; and
(2) A full description of the events and circumstances which
immediately preceded, led up to, and resulted in the assault.
b. A similar statement should be obtained from the assailant, if possible, and
in disability cases, from the injured employee.’”
ANALYSIS
The Board finds that this case is not in posture for decision.
Physical contact by a coworker or supervisor may give rise to a compensable work factor,
if the incident is established factually to have occurred as alleged. 6 In his April 20, 2019 voluntary
witness statement, logistics chief D.R. related that on March 18, 2019 while in the employing
establishment’s canteen he walked up to appellant and touched his stomach with an open hand
while patting his back. The Board therefore finds that the record establishes that on March 18,
2019 D.R. touched appellant’s back and stomach in the employing establishment’s cafeteria at
lunch time and that this incident occurred in the performance of duty. 7 Whether this touching

5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.10 (August 1992).

6

D.B., Docket No. 19-1543 (issued March 6, 2020).

7

Supra note 3.

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incident constituted an assault sufficient to cause an emotional condition, is however, a separate
inquiry.8
The Board finds that OWCP did not sufficiently develop the evidence to determine whether
this touching constituted an egregious physical assault, sufficient to cause an aggravation of
appellant’s emotional condition. In his March 19, 2019 voluntary witness statement, appellant
alleged that there recently was tension between him and D.R., and he noted that D.R.’s assault may
have been retaliation for engaging in whistleblowing activity. He also noted that there was tension
between him and D.R. in the March 19, 2019 employing establishment’s police incident report. In
his statement as a part of the police report, D.R. reported that he approached the appellant patted
his stomach and patted his pack and asked him what was for lunch. He further noted that he spoke
with appellant while three people in front of them were served, then left without issue.
OWCP requested that the employing establishment describe the events that led up to the
alleged incident and whether there was animosity between appellant and the alleged assailant ;
however, appellant’s supervisor responded that he could not answer these questions as he was not
present at the incident.
As previously noted, OWCP’s procedures provide that a statement should be obtained from
the assailant, if possible, detailing whether there was any animosity between the injured employee
and the assailant by reason of a personal association away from work and, if so, this should be
explained fully, and should additionally provide a full description of the events and circumstances
which immediately preceded, led up to, and resulted in the injury.9 OWCP, however, did not
request that the employing establishment obtain the statement from the alleged assailant.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter.
While appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence, particularly when such evidence is of the
character normally obtained from the employing establishment or other governmental source. 10
Accordingly, the Board will remand the case for OWCP to obtain the necessary
information from D.R. regarding the claimed March 18, 2019 employment incident. Following
such further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.

8

See Edward L. Gerwe, Docket No. 06-0181 (issued April 11, 2006); Rem Vescosi, Docket No. 01-1712 (issued
June 5, 2003).
9

See supra note 5.

10

A.M., Docket No. 18-0630 (issued December 10, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the August 22, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: April 24, 2020
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board
Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board
Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Laguna Hills, CA, Employer
__________________________________________

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

Docket No. 19-0113
Issued: July 12, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On October 19, 2018 appellant filed a timely appeal from a July 24, 2018 merit decision
and a September 7, 2018 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 the case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.

ISSUES
The issues are: (1) whether OWCP abused its discretion by denying authorization for
appellant’s lumbar laminectomy; and (2) whether OWCP properly denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 27, 2015 appellant, then a 55-year-old distribution clerk, filed an occupational
disease claim (Form CA-2) alleging that on February 26, 2015 she first realized that she had
developed a lumbar condition due to repetitive work tasks she had performed for 28 years in the
performance of duty. She did not stop work.
On October 9, 2015 OWCP accepted the claim for aggravation of intervertebral disc
disorder with myelopathy, lumbar region. It later expanded acceptance of the claim to include
radiculopathy, lumbar region; lumbar annular tear; and lumbar facet arthrosis.
In an August 3, 2016 report, Dr. Robert J. Jackson, a Board-certified neurosurgeon, noted
appellant’s history of injury dating back to February 2015 and indicated that she had an
exacerbation of severe lumbar back pain and lumbar radiculopathy. He noted that a February 2015
magnetic resonance imaging (MRI) scan revealed severe spinal stenosis. Dr. Jackson further noted
that appellant underwent physical therapy since that time which helped stabilized her pain, but it
provided no significant improvement. He noted that her electromyography scan revealed bilateral
anterior tibialis neuropathy and peroneus longus irritation. Dr. Jackson examined appellant and
discussed treatment options to include continued conservative treatment. Regarding surgery, he
indicated that “[i]f all the treatment alternatives fail, and [her] symptoms continued, surgical
intervention would be a reasonable approach.” Dr. Jackson explained that appellant had severe
spinal stenosis at L4-5 and moderate stenosis at L5-S1 which would “likely need to be addressed
surgically at some point in the future.” He noted that she wished to pursue conservative treatment
as her pain was manageable and she had a high pain tolerance.
A May 3, 2017 MRI scan read by Dr. Qiging Ge, a diagnostic radiology specialist, revealed
at L4-5 a four millimeter anterolisthesis with severe facet arthropathy, severe central canal
stenosis, and mild to moderate bilateral foraminal narrowing; as well as moderate central canal
stenosis and mild-to-moderate bilateral neural foraminal narrowing at L5-S1, when compared to a
prior study from March 13, 2015, with no significant interval change.
In a June 21, 2017 report, Dr. Jackson examined appellant, reviewed the May 3, 2017 MRI
scan, and recommended an L4, L5, and S1 lumbar laminectomy with decompression and fusion
with instrumentation.
In a separate report also dated June 21, 2017, Dr. Neeraj Gupta, an orthopedic surgeon,
noted that appellant reported continued back pain radiating into her right leg with numbness. He
diagnosed repetitive work injury, industrial-related, lumbosacral sprain and strain with disc
bulging, moderate-to-severe stenosis, and radiculopathy in the right lower extremity. Dr. Gupta
advised that he agreed with Dr. Jackson’s June 21, 2017 recommendation for surgery.

2

On July 27, 2017 OWCP referred appellant for a second opinion evaluation with
Dr. Steven Ma, a Board-certified orthopedic surgeon.
In an August 29, 2017 report, Dr. Ma reviewed the statement of accepted facts, appellant’s
history of injury, and medical treatment records. He reported findings from his physical
examination, and noted that the x-rays of her lumbar spine and pelvis revealed degenerative
spondylosis of L4 and L5, and narrowing of the L5-S1 disc space and small spurs from L4 to S1.
Dr. Ma diagnosed aggravation of lumbar intervertebral disc disorder. He addressed Dr. Jackson’s
June 21, 2017 report and explained that appellant “was told that the second MRI [scan] was much
worse than the previous MRI [scan] and that is the basis for the surgery.” Dr. Ma noted that the
radiologist indicated that there was no significant interval change from the original MRI scan and
that her physical examination was essentially the same. He also noted that appellant believed that
she would have 90 percent success rate with surgery which would alleviate her symptoms for 20
years. Dr. Ma indicated that he did not know of any such procedure of any nature that would give
such high results for such a long time. He concurred with Dr. Jackson’s original opinion of
August 3, 2016, which found that surgery was unnecessary, and he disagreed with Dr. Jackson’s
June 21, 2017 recommendation for surgery.
In a development letter dated January 2, 2018, OWCP advised appellant that the evidence
of record was insufficient to authorize the requested surgery because it did not appear to be
medically necessary. It requested that she provide a copy of Dr. Ma’s second opinion report to her
treating physician for a supplemental opinion. OWCP afforded appellant 30 days to submit the
requested evidence.
In response, OWCP received reports dated December 10, 2015, September 7, 2017, and
January 11, February 22, April 5, and May 31, 2018 from Dr. Hosea Brown, III, a treating Boardcertified internist. In his September 7, 2017 report, Dr. Brown indicated that Dr. Ma’s opinion
was “biased, unfair, unethical” and that there was inappropriate delay of surgical authorization.
However, he also indicated that he was awaiting Dr. Ma’s report. In his January 11, 2018 report,
Dr. Brown indicated that appellant had been thoroughly evaluated by a Board-certified orthopedic
neurosurgeon, who opined that she was a candidate for surgical intervention. He noted that he
continued to treat her and requested authorization for the lumbar spine surgery.
OWCP received reports dated May 17, July 12, September 20, October 18, and
November 29, 2017, and January 10, February 21, March 1, 21, and 22, April 18, May 16, and
June 27, 2018, from Dr. Neil R. Soni, Board-certified in physical medicine and rehabilitation, who
requested authorization for transforaminal lumbar epidural injections, myelography, fluoroscopy,
and acupuncture therapy, and noted that appellant was awaiting authorization for lumbar spine
surgery recommended by Dr. Jackson.
By decision dated July 24, 2018, OWCP denied authorization for appellant’s requested L4,
L5, and S1 lumbar laminectomy. It found that the weight of the medical opinion evidence rested
with Dr. Ma who indicated that there was no significant change in the MRI scans warranting the
prescribed surgery and that appellant was provided with incorrect information regarding the
expected results of the surgery. As a result, OWCP determined that the medical evidence of record
did not establish that the requested treatment was medically necessary for appellant’s accepted
employment injuries.

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On August 16, 2018 appellant requested reconsideration.
In an August 8, 2018 report, Dr. Soni requested authorization for pain management,
including medication and acupuncture.
In August 9, 2018 reports, Dr. Brown noted that he had received and reviewed Dr. Ma’s
report. He indicated that he disagreed that surgical intervention was unnecessary. Dr. Brown
explained that he had continued to treat appellant and explained that she continued to have
objective findings which showed that her conditions were deteriorating. He repeated his opinion
that her surgery should be authorized.
By decision dated September 7, 2018, OWCP denied appellant’s request for
reconsideration without conducting a merit review.
LEGAL PRECEDENT -- ISSUE 1
Section 8103 of FECA3 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or period of disability, or aid in lessening the amount of monthly compensation.4 While
OWCP is obligated to pay for treatment of employment-related conditions, the employee has the
burden of proof to establish that the expenditure is incurred for treatment of the effects of an
employment-related injury or condition.5
Section 10.310(a) of OWCP’s implementing regulations provides that an employee is
entitled to receive all medical services, appliances, or supplies which a qualified physician
prescribes or recommends and which OWCP considers necessary to treat the work-related injury.6
In interpreting this section of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided under section 8103, with the only limitation on OWCP’s
authority being that of reasonableness.7 Abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to
both logic and probable deductions from established facts. It is not enough to merely show that
the evidence could be construed so as to produce a contrary factual conclusion.8 To be entitled to
reimbursement of medical expenses, a claimant has the burden of proof to establish that the

3

5 U.S.C § 8103.

4

See J.L., Docket No. 18-0990 (issued March 5, 2019); D.C., Docket No. 18-0080 (issued May 22, 2018);
Thomas W. Stevens, 50 ECAB 288 (1999).
5

D.C., id.; Kennett O. Collins, Jr., 55 ECAB 648 (2004).

6

20 C.F.R. § 10.310(a).

7

N.M., Docket No. 18-1584 (issued March 15, 2019); see D.K., 59 ECAB 141 (2007).

8

See N.M., id.; Minnie B. Lewis, 53 ECAB 606 (2002).

4

expenditures were incurred for treatment of the effects of an employment-related injury or
condition.
Proof of causal relationship in a case such as this must include supporting rationalized
medical evidence.9 In order for a surgical procedure to be authorized, a claimant must submit
evidence to show that the surgery is for a condition causally related to an employment injury and
that it is medically warranted. Both of these criteria must be met in order for OWCP to authorize
payment.10 In interpreting section 8103, the Board has recognized that OWCP has broad discretion
in approving services provided under FECA. OWCP has the general objective of ensuring that an
employee recovers from his or her injury to the fullest extent possible in the shortest amount of
time. It therefore has broad administrative discretion in choosing means to achieve this goal. The
only limitation on OWCP’s authority is that of reasonableness.11
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not abuse its discretion in denying authorization for
appellant’s lumbar laminectomy.
For a surgical procedure to be authorized, the evidence must establish that the surgery is
for a condition causally related to an employment injury and that it is medically warranted. Both
of these criteria must be met in order for OWCP to authorize payment.12
Appellant’s attending physicians, Drs. Jackson, Gupta, and Brown, indicated that the
requested surgery was needed based on the deterioration of her condition. However, they did not
provide a rationalized explanation, based upon medical findings, that the proposed surgery was in
fact medically necessary.13
The Board notes that Dr. Ma, the second opinion physician, provided a rationalized opinion
to explain why the surgery was unnecessary. Dr. Ma indicated that the radiologist determined that
there were no significant interval changes from the original MRI scan and that appellant’s physical
examination was essentially the same. He also noted that Dr. Jackson’s original report found no
need for surgery at that time, based upon the February 2015 MRI scan, and had not explained why
her May 3, 2017 MRI scan reflected a change in her condition, such that the surgical procedure
was medically necessary. Dr. Ma further explained that appellant also had an unrealistic
expectation of what the proposed surgery would provide as she believed that the surgery would
have 90 percent success rate and would alleviate her symptoms for 20 years, but he noted that there
was no procedure which was known to have such results. The Board finds that he accurately

9

N.G., Docket No. 18-1340 (issued March 6, 2019); M.B., 58 ECAB 588 (2007).

10

See N.G, id.; R.C., 58 ECAB 238 (2006).

11

D.C., supra note 4; D.K., 59 ECAB 141 (2007); Daniel J. Perea, 42 ECAB 214, 221 (1990).

12

See J.L., supra note 4; R.C., 58 ECAB 238 (2006).

13

R.C., Docket No. 12-0437 (issued October 23, 2012).

5

summarized the relevant medical evidence, provided detailed findings on examination, and
reached conclusions about her proposed surgery which comported with his findings.14
The Board thus finds that OWCP did not abuse it discretion in denying authorization for
the proposed lumbar surgery. As noted above, the only restriction on OWCP’s authority to
authorize medical treatment is one of reasonableness.15 As Dr. Ma explained that the proposed
surgery was not medically necessary, the Board finds that OWCP acted reasonably in denying
appellant’s request for authorization for lumbar laminectomy.16
Appellant may submit new evidence and/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
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.17 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.18 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.19
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that 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.20 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration, without
reopening the case for a review on the merits.21

14

See J.L., supra note 4; Manuel Gill, 52 ECAB 282 (2001).

15

Supra note 11.

16

B.L., Docket No. 15-1452 (issued September 20, 2016).

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on [the Secretary’s] own motion or on application.” 5 U.S.C. § 8128(a).
17

18

20 C.F.R. § 10.607.

19

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of its decision for which review is sought. Federal (FECA) Procedure Manual,
Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document
receipt date of the request for reconsideration as indicated by the received date in the integrated Federal Employees’
Compensation System. Id. at Chapter 2.1602.4b.
20

Id. at § 10.606(b)(3).

21
Id. at § 10.608(a), (b); C.C., Docket No. 18-0136 (issued March 14, 2019); see also E.R., Docket No. 09-1655
(issued March 18, 2010).

6

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s request for reconsideration did not show that OWCP erroneously applied or
interpreted a specific point of law or advance a new and relevant legal argument not previously
considered by OWCP. Consequently, she was not entitled to a review of the merits based on the
first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant has not submitted relevant and pertinent new
evidence in support of her request for reconsideration under 20 C.F.R. § 10.606(b)(3). The Board
notes that the underlying issue in this case is whether OWCP abused its discretion by denying
authorization for her lumbar laminectomy. Authorization for surgery is a medical issue which, on
reconsideration, must be addressed by relevant medical evidence not previously considered.22
On reconsideration, OWCP received August 9, 2018 reports from Dr. Brown, and an
August 8, 2018 report from Dr. Soni. The reports from Dr. Brown were cumulative and
substantially similar to his previously submitted reports. The Board has held that the submission
of evidence which repeats or duplicates evidence already in the case record does not constitute a
basis for reopening a case.23 The report from Dr. Soni, while new, did not address the underlying
issue of the need for surgery. Evidence which does not address the particular issue under
consideration does not constitute a basis for reopening a case.24 Thus, appellant is not entitled to
a review of the merits of her claim based on the third above-noted requirement under section
10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP has not abused its discretion by denying authorization for
appellant’s lumbar laminectomy. The Board further finds that OWCP properly denied her request
for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

22

See Bobbie F. Cowart, 55 ECAB 746 (2004).

23

See L.R., Docket No. 18-0400 (issued August 24, 2018).

24

H.H., Docket No. 18-1660 (issued March 14, 2019).

7

ORDER
IT IS HEREBY ORDERED THAT the September 7 and July 24, 2018 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: July 12, 2019
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newtown, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-75
Issued: August 22, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 13, 2010 appellant filed a timely appeal from a July 13, 2010 schedule award
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the schedule award decision.
ISSUE
The issue is whether appellant has greater than a 10 percent impairment of the right lower
extremity.
On appeal, his attorney asserts that a conflict in medical evidence has been created
between the opinions of the attending physician and OWCP’s medical adviser.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On June 18, 2001 appellant, then a 46-year-old letter carrier, filed a traumatic injury
claim alleging that he injured his right knee and ankle when a step broke. A July 15, 2001
magnetic resonance imaging (MRI) scan of the right knee demonstrated no evidence of a
meniscal tear and a partial tear of the quadriceps tendon, small joint effusion and Stage 3
chondromalacia patellae. On August 9, 2001 OWCP accepted that appellant sustained an
employment-related right meniscus tear and authorized arthroscopy.
Arthroscopic examination of the right knee on August 30, 2001, done by Dr. Anthony
Balsamo, Board-certified in orthopedic surgery, demonstrated full knee range of motion, no sign
of a quadriceps mechanical problem and chondromalacia of the patella, with grade 3 osseous
calcifications. The medial meniscus, anterior and posterior cruciates were normal.
Appellant retired in November 2004. On November 20, 2008 he filed a schedule award
claim, and submitted a September 23, 2008 report in which Dr. Arthur Becan, an orthopedic
surgeon, advised that in accordance with the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),2 appellant had
a five percent right lower extremity impairment due to knee patellofemoral pain and crepitance.
On April 7, 2009 OWCP asked appellant to submit a report within 30 days in accordance with
the sixth edition of the A.M.A., Guides,3 which was required for impairment evaluations. By
decision dated May 20, 2009, it denied appellant’s schedule award claim on the grounds that he
did not submit appropriate medical evidence. Appellant’s attorney timely requested a hearing
and in an August 14, 2009 decision, OWCP’s hearing representative vacated the May 20, 2009
decision and remanded the case to OWCP for review by OWCP’s medical adviser.
In a September 22, 2009 report, Dr. Morley Slutsky, OWCP’s medical adviser who is
Board-certified in occupational medicine, reviewed the record, including Dr. Becan’s
September 23, 2008 report. He advised that this was the date of maximum medical improvement
and that, in accordance with Table 16-3 of the sixth edition of the A.M.A., Guides, for a partial
meniscectomy, appellant had a Class 1 impairment with a default grade C which was equal to a
two percent right lower extremity impairment.
Dr. Becan submitted a revised September 23, 2008 report in which he provided analysis
in accordance with the sixth edition of the A.M.A., Guides. He reported that appellant had Class
2 impairment due to right knee patellofemoral arthritis equal to 15 percent impairment.
Dr. Becan then used the net adjustment formula and found an additional 2 percent impairment,
for a total 17 percent right lower extremity impairment, with a date-of-maximum medical
improvement of September 23, 2008.
OWCP referred appellant to Dr. Steven J. Valentino, a Board-certified osteopath
specializing in orthopedic surgery. In a December 15, 2009 report, Dr. Valentino reported the
history of injury, appellant’s complaint of occasional right knee pain and his review of the
2

A.M.A., Guides (5th ed. 2001).

3

A.M.A., Guides (6th ed. 2008).

2

medical record including the July 13, 2001 MRI scan study and August 30, 2001 operative
report. He provided physical examination findings which, he advised, were completely normal.
Dr. Valentino diagnosed resolved strain of the right knee and advised that appellant was fully
and completely recovered from the work-related injury with no residuals. He explained that,
although the statement of accepted facts noted a tear of the medial meniscus, intraoperative
findings demonstrated an intact meniscus with no tear. Dr. Valentino advised that the
degenerative changes about the undersurface of the patella bore no connection to the
employment injury and were preexisting and that appellant was capable of working full duty
without restriction.
On January 16, 2010, Dr. Arnold T. Berman, OWCP’s medical adviser who is Boardcertified in orthopedic surgery, noted his review of the record including Dr. Becan’s sixth edition
assessment and Dr. Valentino’s report. He advised that he was in agreement with Dr. Becan’s
diagnosis because it was consistent with the medical documentation, noting that it would not be
appropriate to make a diagnosis of meniscal tear as one was not documented on the MRI scan or
operative report. Dr. Berman, however, disagreed with Dr. Becan’s impairment rating, stating
that Dr. Becan found Class 2 impairment due to patellofemoral arthritis under Table 16-3, Knee
Regional Grid. Dr. Berman maintained that, because the operative report indicated that there
was remaining cartilage, it was not appropriate to choose Class 2 which is described as having
either a one millimeter (mm) or no cartilage interval and that Class 1 was the more appropriate
choice as Class 1 is described as having a 2 mm cartilage interval and has a default value C for a
10 percent impairment. Dr. Berman then utilized the adjustment modifiers and found a net
adjustment of zero. He concluded that appellant had 10 percent right lower extremity
impairment with maximum medical improvement attained on September 23, 2008, the date of
Dr. Becan’s examination.
On January 29, 2010 appellant was granted a schedule award for a 10 percent impairment
of the right lower extremity, for a total of 28.8 weeks, to run from September 23, 2008 to
April 12, 2009. His attorney timely requested a hearing, which was held on May 18, 2010. At
the hearing appellant testified that he had right knee pain, laxity, grinding and clicking and that it
was difficult for him to walk up stairs. His attorney argued that a conflict in medical evidence
existed between the opinions of Dr. Becan and OWCP’s medical adviser.
By decision dated July 13, 2010, OWCP’s hearing representative found that the weight of
the medical evidence rested with the opinion of Dr. Berman and affirmed the January 29, 2010
schedule award decision.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing federal regulations,5 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. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

3

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.7
For decisions issued after May 1, 2009, the sixth edition will be used.8
Under the sixth edition, for lower extremity impairments the evaluator identifies the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS).9 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX).10 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.11
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with medical adviser
providing rationale for the percentage of impairment specified.12 In determining entitlement to a
schedule award, preexisting impairment to the scheduled member is to be included.13
ANALYSIS
The Board finds that appellant has not established that he has an impairment of the right
lower extremity greater than 10 percent. The sixth edition of the A.M.A., Guides provides that,
in the event that a specific diagnosis is not listed in the diagnosis-based impairment grid, the
examiner should identify a similar listed condition to be used as a guide to the impairment
calculation. The rationale for this decision should be given.14 As noted by Drs. Becan,
Valentino and Berman, a meniscal tear was not found on the July 15, 2001 MRI scan or during
the August 30, 2001 arthroscopic procedure. Dr. Berman, OWCP’s medical adviser, opined that
Dr. Becan correctly diagnosed patellofemoral arthritis, which was documented by MRI scan and
examination. It was therefore appropriate for appellant’s impairment to be rated for
patellofemoral arthritis.
6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

8

FECA Bulletin No. 09-03 (issued March 15, 2009).

9

A.M.A., Guides 494-531.

10

Id. at 521.

11

Id. at 23-28.

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
13

Peter C. Belkind, 56 ECAB 580 (2005).

14

A.M.A., Guides, supra note 2 at 500.

4

Dr. Berman, however, disagreed with Dr. Becan’s choice of Class 2 impairment, under
Table 16-3, Knee Regional Grid.15 Dr. Berman advised that, because the operative report
indicated that there was remaining cartilage, it was not appropriate to choose Class 2, noting that
it is described as having either a one mm or no cartilage interval. He maintained that Class 1 was
the more appropriate choice as Class 1 is described as having a 2 mm cartilage interval and has a
default value of C for 10 percent impairment. Dr. Berman then utilized the adjustment modifiers
and net adjustment formula and found a net adjustment of zero. He concluded that appellant had
10 percent right lower extremity impairment with maximum medical improvement attained on
September 23, 2008, the date of Dr. Becan’s examination.
Table 16-3 states that Class 1 is defined as having a mild problem and Class 2 as having a
moderate problem. It further provides that a Class 1 patellofemoral arthritis me be rated as 1 to
13 percent with 1 to 5 percent for a full-thickness articular cartilage defect of ununited
osteochondral fracture and 7 to 13 percent for a 2 mm cartilage interval. Class 2 is rated at 14 to
24 percent with a one mm cartilage interval yielding a 14 to 17 percent impairment and no
cartilage interval yielding a 16 to 24 percent impairment.16 The sixth edition explains that an
impairment is initially assigned the default value of C and then the final impairment is calculated
using the grade modifiers described in section 16.3.17
Dr. Valentino, who examined appellant in December 2009, advised that he could return
to full duty without restrictions. There is no objective evidence in this case describing a specific
cartilage interval. Dr. Berman properly explained his calculations under the sixth edition of the
A.M.A., Guides and explained why Dr. Becan’s rating was not in conformance with the A.M.A.,
Guides. There is no probative medical evidence of record that appellant had a greater
impairment. Accordingly, there is no conflict in medical evidence and appellant has not
established entitlement to greater than a 10 percent impairment of the right lower extremity for
which he received a schedule award.
Appellant may request a schedule award or 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.18
CONCLUSION
The Board finds that appellant has not established that he has right lower extremity
impairment greater than 10 percent for which he received a schedule award.

15

Id. at 511.

16

Id.

17

Id. at 497, section 16.2.

18

For example, appellant could submit evidence such as an x-ray or MRI scan describing a specific cartilage
interval.

5

ORDER
IT IS HEREBY ORDERED THAT the July 13, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 22, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6