United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL CORRECTIONAL
COMPLEX, Yazoo City, MS, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1529
Issued: June 30, 2021

Case Submitted on the Record

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

JURISDICTION
On August 20, 2020 appellant, through counsel, filed a timely appeal from a June 24, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.3
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective November 19, 2019, as she no longer had
residuals or disability causally related to her accepted April 9, 2019 employment injury; and
(2) whether appellant has met her burden of proof to establish continuing employment-related
disability or residuals on or after November 19, 2019 causally related to the April 9, 2019
employment injury.
FACTUAL HISTORY
On April 10, 2019 appellant, then a 38-year-old dental hygienist, filed a traumatic injury
claim (Form CA-1) alleging that on April 9, 2019 she slipped on water and injured the right side
of her body while in the performance of duty. She indicated that she was pregnant at the time of
the accident. OWCP accepted the claim for sprain of the ligaments of the cervical spine and
thoracic spine, subsequent encounter and contracture of the muscle of the right shoulder.
Appellant stopped work on April 9, 2019 and OWCP paid her wage-loss compensation on the
supplemental rolls beginning May 27, 2019 and on the periodic rolls beginning June 23, 2019.
Appellant was treated by Dr. A. Alfred Norville, a chiropractor, from April 9 through
May 24, 2019, for injuries sustained at work when she slipped and fell in a puddle of water and
landed on her right side.4 Dr. Norville diagnosed sprain of the ligaments of the cervical and
thoracic spine, initial encounter, pain in the right shoulder, contracture of muscle of the right
shoulder, and low back pain. He indicated that chiropractic manipulative procedures were
administered, electrical muscle stimulation was applied, and myofascial release was administered.
In a work capacity evaluation (Form OWCP-5c) dated April 29, 2019, Dr. Norville diagnosed
sprain of the ligaments of the cervical spine and thoracic spine, right shoulder pain, contracture of
the muscle right shoulder, and strain of the muscle, fascia, and tendon of the low back. He noted
that appellant was unable to perform any work duties until reexamined on May 20, 2019.
Appellant was treated by Dr. Paul W. Pierce, III, a Board-certified internist, on May 14,
2019 for an injury that occurred at work on April 9, 2019, when she slipped on water and fell onto
her right side, using her left hand to catch herself. She reported that she was pregnant and presented
with muscle ache, joint and back pain, and myalgia. Dr. Pierce diagnosed shoulder joint painful
2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the June 24, 2020 decision, appellant submitted additional evidence to OWCP.
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.
4
Appellant was initially treated in the emergency room on April 9, 2019 and underwent an x-ray of the right hip
and pelvis, which revealed no fracture, dislocation, or any significant bony pathology.

2

on movement, neck, hip, and back pain, and falls. He referred appellant to an orthopedist. In a
Form OWCP-5c dated May 14, 2019, Dr. Pierce diagnosed right shoulder, wrist, hip, back, left
wrist, back, and right neck injury and noted that appellant was unable to work until seen by an
orthopedist.5
On May 16, 2019 Dr. William Porter, a Board-certified orthopedist, treated appellant for
injuries sustained to her right hip, low back, right shoulder, neck, elbow, and left wrist at work
when she slipped on water on the floor and fell. Appellant reported being pregnant at the time of
the fall. Examination of the right shoulder revealed limited active and passive range of motion.
Dr. Porter diagnosed fall and referred appellant for physical therapy.
Appellant attended physical therapy treatment from May 24 through June 13, 2019.
OWCP received additional medical evidence. Dr. Norville continued to treat appellant
from May 24 through July 19, 2019 using chiropractic manipulative procedure, electrical muscle
stimulation, and myofascial release.
In a June 14, 2019 follow-up visit, Dr. Pierce treated appellant for persistent severe pain to
the right shoulder, wrist, hip, groin, back, neck and left wrist after the April 9, 2019 work injury.
Findings on examination revealed muscle aches, joint pain, back pain, abdominal tenderness, and
right groin pain. Dr. Pierce diagnosed inguinal hernia, “falls,” back, elbow, neck, and hip pain,
shoulder joint pain with movement, and wrist pain. He recommended an abdominal ultrasound.
In an attending physician’s report (Form CA-20) dated June 14, 2019, Dr. Pierce indicated that
appellant was injured at work on April 9, 2019 when she slipped and fell on water on the floor.
He diagnosed right low back, neck, shoulder, bilateral wrist, and pelvic pain and checked a box
marked “Yes,” indicating that appellant’s condition had been caused or aggravated by an
employment activity, noting appellant “Fell.” Dr. Pierce advised that appellant was totally
disabled from work beginning April 9, 2019. In an accompanying duty status report (Form CA17) of even date, he noted that appellant was totally disabled from work. Dr. Pierce related in a
June 21, 2019 progress note that appellant’s medical work up was limited because she was
pregnant. Appellant continued to report significant pain in the right shoulder, right hip, right knee,
pelvis, back, neck, and left wrist. Dr. Pierce diagnosed back and elbow pain, falls, hip, neck, and
wrist pain, and painful shoulder joint. He recommended physical therapy.
Appellant was treated by Dr. Robert Moore, a Board-certified family physician, on
June 28, 2019 for shoulder, hip, and knee pain after a fall at work. He noted findings of decreased
range of motion of the right shoulder secondary to pain and tenderness to the pelvic area with
palpation. Dr. Moore diagnosed joint pain. He examined appellant on July 29, 2019 and related
no change in physical findings. Dr. Moore diagnosed shoulder pain. In notes dated June 28 and
July 29, 2019 he advised that appellant was five and six months pregnant, respectively and
sustained injuries on April 9, 2019 after a fall at work. Appellant reported that physical therapy
exacerbated her symptoms. Dr. Moore indicated that appellant required a magnetic resonance
imaging (MRI) scan for further evaluation, but was unable to have one until after her pregnancy.

5
Appellant filed claims for compensation (Form CA-7) for leave without pay for the period May 27 through
June 10, 2019, June 10 through 24, 2019, and June 24 through July 8, 2019.

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On a Form OWCP-5c dated July 31, 2019, Dr. Pierce noted that appellant was unable to
work due to pain in the shoulder, hip, pelvis, wrist, neck, and low back and would be reevaluated
in 30 days.
Appellant was treated on July 31, 2019 by Baleigh Ford, a physician assistant, in followup status post fall at work with pain to the right knee, back, pelvis, neck, and left wrist. She
presented in a wheelchair. Ms. Ford diagnosed: back, elbow, hip, neck and wrist pain; “falls”;
and shoulder joint painful on movement.
On a Form OWCP-5c dated August 8, 2019, Dr. Porter noted appellant’s accepted
conditions were contracture of muscle, right shoulder, and sprain of the ligaments of the cervical
and thoracic spine, subsequent encounter. He noted with a checkmark “Yes” that appellant was
able to perform her usual job without restrictions. Dr. Porter released appellant from his care. In
response to the claims examiner’s request for an updated work status, he indicated that appellant
was released to work without restrictions on August 8, 2019.
Dr. Norville continued to treat appellant from August 9 through 23, 2019, using
chiropractic manipulative procedure, electrical muscle stimulation, and myofascial release.
Ms. Ford evaluated appellant on August 28, 2019 and reported pressure on her abdominal
lymph node from pregnancy and right shoulder pain like “something is stuck in there.” She
diagnosed back and elbow pain, falls, hip, neck and wrist pain, and shoulder joint pain of
movement and continued the current regimen. On an August 28, 2019 Form OWCP-5c, Dr. Pierce
indicated that appellant was unable to return to work due to pain in the shoulder, hip, pelvis, neck,
low back, and right groin.
In an August 30, 2019 office visit, Dr. Moore related that appellant was pregnant and
sustained injuries in an April 9, 2019 fall at work. Findings on examination revealed right shoulder
pain with limited range of motion, right neck pain, and lower pelvic/hip pain. Dr. Moore noted
physical therapy exacerbated her symptoms and further diagnostic studies would occur after the
pregnancy.
On September 19, 2019 OWCP advised appellant of its notice of proposed termination of
her wage-loss compensation and medical benefits based on Dr. Porter’s report, finding that she
had no further employment-related residuals or disability due to her April 9, 2019 employment
injury. It afforded her 30 days to submit additional evidence or argument if she disagreed with the
proposed termination. OWCP indicated that it was enclosing the August 8, 2019 reports from
Dr. Porter.
OWCP continued to receive evidence. A June 14, 2019 ultrasound of the right inguinal
canal revealed multiple benign-appearing lymph nodes with no suspicious characteristics.
Dr. Norville continued to treat appellant from August 30 through September 13, 2019,
using chiropractic manipulative procedure, electrical muscle stimulation, and myofascial release.
In a report dated October 7, 2019, he diagnosed sprain of the ligaments of the cervical and thoracic
spine, initial encounter, pain in the right shoulder, contracture of muscle right shoulder, and low
back pain. Dr. Norville recommended continued chiropractic treatments.

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In a report dated September 19, 2019, Dr. Michael G. Dulske, a Board-certified
orthopedist, treated appellant for diffuse right shoulder pain, limited range of motion, instability,
and popping and catching, which began after she slipped on a wet floor at work on April 9, 2019.
Appellant reported pain in the right pelvis, neck, right upper arm, right hip, upper and lower back,
right bilateral elbow, right thigh, mid-back, bilateral forearms, right knee, right wrist, buttocks,
right hand, and coccyx. Findings on examination revealed that appellant was pregnant, there was
tenderness over the acromioclavicular joint, diffuse tenderness to palpation throughout the
shoulder, limited active and passive range of motion, negative anterior and drawer sign, positive
Neer’s and Hawkins impingement sign. Dr. Dulske diagnosed pain in the right shoulder and
possible right rotator cuff syndrome versus labral tear and performed a steroid injection into the
subacromial space. In another note dated September 19, 2019, he released appellant to work with
restrictions of no reaching overhead, no lifting, carrying, pushing, or pulling over five pounds. On
October 2, 2019 Dr. Dulske noted that an MRI scan of the right shoulder revealed a tear, but the
radiologist suggested an MRI arthrogram to further evaluate and confirm. He opined that
evaluation of appellant in the clinic confirmed a present labral tear for which she would need
surgical intervention after her pregnancy. In another note dated October 2, 2019, Dr. Dulske
indicated that she could not work until her next appointment. In status progress reports of
illness/injury dated September 19 and October 2, 2019, he advised that appellant was totally
disabled from work.
Appellant was treated by Dr. Pierce on October 9, 2019 for multiple joint pain after a fall
at work. Dr. Pierce noted findings on examination of muscle ache, muscle weakness, joint pain,
back pain, and myalgia. He diagnosed: rotator cuff tear; falls; hip pain; shoulder joint pain on
movement; and neck, wrist, and back pain.
In an October 9, 2019 note, Dr. Moore indicated that appellant was pregnant and sustained
injuries after an April 9, 2019 fall at work. Findings on examination revealed right shoulder pain
with limited range of motion, right neck pain, and lower pelvic/hip pain. Dr. Moore noted that an
MRI scan indicated a possible tear of the shoulder labrum and she required an MRI arthrogram
which could not be performed until after her pregnancy.
In an October 11, 2019 statement, appellant disagreed with the proposed termination. She
asserted that OWCP improperly proposed to terminate her compensation based on the reports
provided by Dr. Porter. Appellant provided a history of injury on April 9, 2019 and subsequent
treatment. She explained that she sought to terminate Dr. Porter as her treating physician because
the physical therapy he prescribed was “barbaric” and aggravated her symptoms and he improperly
released her back to work without restrictions. Appellant related that she continued to suffer
residuals of her work injury of April 9, 2019.
By decision dated November 18, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective November 19, 2019.
An MRI scan of the right shoulder dated October 2, 2019 revealed nonspecific intermediate
signal in the posterior labrum, which may or may not represent true pathology, if there was clinical
concern for labral injury an MRI arthrogram could be obtained, increased T2 signal in the posterior
deltoid musculature suggestive of muscle injury or strain.

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Dr. Dulske evaluated appellant on December 6, 2019 for her work-related injury to her
right shoulder that occurred on April 9, 2019. Appellant reported worsening symptoms, noting
that her shoulder gets “stuck” and was clicking and popping. Findings on examination of the right
shoulder revealed no gross deformity, ecchymosis or erythema, no palpable effusion, AC joint
tenderness, diffuse tenderness to palpation throughout the shoulder, decreased range of motion,
decreased strength, negative anterior and posterior drawer signs, and positive Neer’s and Hawkins
impingement signs. Dr. Dulske diagnosed other sprain of the right shoulder joint, subsequent
encounter and posterior labral tear of the right shoulder. He opined that it was clear that appellant’s
right shoulder pain did not begin until she fell at work on April 9, 2019. Dr. Dulske stated that,
within a reasonable degree of medical probability, appellant’s shoulder injury, the posterior labral
tear, was a direct result of the fall she sustained at work on April 9, 2019. In status progress reports
of illness/injury dated December 6, 2019 and January 24, 2020, he noted that appellant could not
work. In a Form OWCP-5c dated December 13, 2019, Dr. Dulske related that appellant was
unable to use her right arm due to a labral tear and, therefore, could not work. He noted right arm
pain, decreased range of motion, decreased strength, low back pain, and pelvic pain. Dr. Dulske
further noted that appellant required right shoulder arthroscopy to repair a labral tear. In a Form
CA-17 report dated December 13, 2019, he noted examining appellant on December 6, 2019 and
advised that she could not resume work.
On December 13, 2019 appellant requested reconsideration. She submitted an MRI scan
of the right shoulder and reports from Dr. Dulske in support of her claim that she continued to have
residuals of the April 9, 2019 work injury and was disabled from work.
By decision dated March 4, 2020, OWCP denied modification of the November 18, 2019
termination decision.
In a statement dated March 11, 2020, appellant requested reconsideration and resubmitted
a copy of the MRI scan of the right shoulder. She requested authorization to undergo an MRI
arthrogram.
By decision dated June 24, 2020, OWCP denied modification of the March 4, 2020
decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.6 After it has been determined that an
employee has a disability causally related to his or her employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to

6
Z.D., Docket No. 19-0662 (issued December 5, 2019); see R.P., Docket No. 17-1133 (issued January 18, 2018);
S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

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the employment.7 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective November 19, 2019.
OWCP based its termination of appellant’s wage-loss compensation and medical benefits
on the August 8, 2019 reports of Dr. Porter, appellant’s treating physician. However, the Board
finds that these reports do not contain adequate medical rationale in support of its opinion that she
ceased to have disability and residuals of her accepted employment conditions and, therefore, are
insufficient to serve as the basis for OWCP’s termination action.9
On a Form OWCP-5c dated August 8, 2019, Dr. Porter noted appellant’s accepted
conditions were contracture of muscle, right shoulder, and sprain of the ligaments of the cervical
and thoracic spine, subsequent encounter. He noted with a checkmark “Yes” that appellant was
able to perform her usual job without restrictions. Dr. Porter released appellant from his care. In
response to OWCP’s request for an updated work status, he indicated that appellant was released
to work without restrictions on August 8, 2019. The Board finds that Dr. Porter failed to provide
adequate medical rationale for the opinion expressed in his August 8, 2019 report that appellant
ceased to have residuals of her accepted employment-related conditions.10 He did not specifically
address whether the accepted conditions of contracture of muscle, right shoulder, and sprain of the
ligaments of the cervical and thoracic spine had resolved. The absence of medical rationale on the
crucial issue of continuing residuals/disability from work significantly diminishes the probative
value of Dr. Porter’s opinion.11
As Dr. Porter did not provide a well-rationalized, unequivocal opinion that appellant had
no residuals or disability related to the accepted April 9, 2019 employment injury on or after
November 19, 2019,12 OWCP has not met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective November 19, 2019.

7

See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L.
Minor, 37 ECAB 541 (1986).
8

See R.P., id.; Del K. Rykert, 40 ECAB 284, 295-96 (1988).

9

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, id.

10

See T.F., Docket No. 11-0763 (issued November 7, 2011); Leon Harris Ford, 31 ECAB 514, 518 (1980) (a
medical report is of limited probative value if it contains an opinion on a medical matter which is unsupported by
medical rationale).
11

M.R., Docket No. 20-0707 (issued November 30, 2020).

12

See R.P., supra note 6; Del K. Rykert, supra note 8.

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CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective November 19, 2019.13
ORDER
IT IS HEREBY ORDERED THAT the June 24, 2020 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: June 30, 2021
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

13

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Madison, AL, Employer

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

Docket No. 07-1939
Issued: January 16, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 17, 2007 appellant filed a timely appeal from November 16, 2006 and May 4,
2007 decisions of the Office of Workers’ Compensation Programs denying his claim for an
emotional condition. 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’s claimed emotional condition is causally related to a
compensable factor of his employment.
FACTUAL HISTORY
On August 10, 2006 appellant, then a 50-year-old postmaster, filed a claim for an
emotional condition alleging that he developed stress and high blood pressure due to harassment
by management and coworkers. He alleged that staffing levels were inadequate at the employing
establishment.

The employing establishment controverted appellant’s claim. On August 21, 2006 Julia
Boykin, appellant’s manager, denied that she had ever harassed him. She had no knowledge of
any harassment by his coworkers. Ms. Boykin stated that management provided the appropriate
staffing, equipment and supplies for appellant to be successful in his position. Appellant stopped
work on January 26, 2006. A notice of proposed removal was issued on August 1, 2006 due to
appellant’s unsatisfactory attendance and failure to comply with postal regulations and
procedures.
By letter dated October 12, 2006, the Office advised appellant to submit additional
factual and medical evidence. No additional evidence was submitted.
By decision dated November 16, 2006, the Office denied appellant’s claim on the
grounds that the factual and medical evidence failed to establish fact of injury.
Appellant requested a hearing that was held on February 26, 2007. He testified that
management conducted a staffing level review after he stopped work, which showed that four
additional clerks were needed to properly staff his postal facility. Appellant expressed his
concern that staffing was inadequate to Ms. Boykin but she merely told him to go home. He
testified that employees filed Equal Employment Opportunity (EEO) complaints to harass him
and that a study conducted by the inspector general’s office supported his allegation. Appellant
submitted a January 4, 2006 investigative report in which an agent in the inspector general’s
office, David Poarch, stated that there was no evidence that appellant committed timekeeping
fraud or misused postal property to conduct a real estate business as alleged by certain
employees. However, the investigation revealed security and revenue accountability concerns.
Appellant did not always lock the door leading to the retail unit and workroom floor. He did not
always require that managers perform cash counts of the clerks’ cash drawers. Appellant
submitted a May 1, 2006 hospital discharge report. Dr. Naila Siddiqui indicated that appellant
was hospitalized on April 26, 2006 for psychiatric and cardiac evaluation due to his allegations
of a stressful work environment. An electromyogram was normal. Dr. Siddiqui did not provide
any diagnosis or address causal relationship.
Responding to a transcript of appellant’s testimony at the hearing, Ms. Boykin stated that
reviews of the staffing levels at his postal facility were conducted in May 2006 and March 2007.
The reviews did not find that additional positions were needed. Ms. Boykin stated that the
August 1, 2006 notice of proposed removal was issued because appellant’s attendance was
unsatisfactory and he failed to comply with employing establishment procedures regarding
overages and shortages, key and vending accountability, box service, retained cash credit
accounts and the accountability of credit cards and trust accounts. She indicated that
management found no evidence that anyone had harassed appellant.
By decision dated May 4, 2007, the Office hearing representative affirmed the denial of
appellant’s emotional condition claim. He modified the November 16, 2006 decision to find no
compensable factor of employment.

2

LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with employment but nevertheless does not come within the
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his regular or specially assigned work duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.1 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.2
Generally, actions of the employing establishment in administrative or personnel matters,
unrelated to the employee’s regular or specially assigned work duties, do not fall within coverage
of the Act. However, where the evidence demonstrates that the employing establishment either
erred or acted abusively in the administration of personnel matters, coverage may be afforded.3
When working conditions are alleged as factors in causing disability, the Office, as part
of its adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable work factors of employment, which may be considered by a physician
when providing an opinion on causal relationship, and which are not deemed compensable
factors of employment and may not be considered.4 When a claimant fails to implicate a
compensable factor of employment, the Office should make a specific finding in that regard. If a
claimant does implicate a factor of employment, the Office should then determine whether the
evidence of record substantiates that factor.5 As a rule, allegations alone by a claimant are
insufficient to establish a factual basis for an emotional condition claim but rather must be
corroborated by the evidence.6 Where the claimant alleges compensable factors of employment,
he must substantiate such allegations with probative and reliable evidence.7 When the matter
asserted is a compensable factor of employment and the evidence of record establish the truth of
the matter asserted, then the Office must base its decision on an analysis of the medical
evidence.8

1

5 U.S.C. §§ 8101-8193.

2

Lillian Cutler, 28 ECAB 125 (1976).

3

Michael Thomas Plante, 44 ECAB 510 (1993).

4

Dennis J. Balogh, 52 ECAB 232 (2001).

5

Margaret S. Krzycki, 43 ECAB 496 (1992).

6

See Charles E. McAndrews, 55 ECAB 711 (2004).

7

Joel Parker, Sr., 43 ECAB 220 (1991).

8

See Charles D. Edwards, 55 ECAB 259 (2004).

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ANALYSIS
Appellant alleged that his emotional condition was caused by staffing shortages, an
improper notice of proposed removal and harassment by management and employees.
The allegations of inadequate staffing and unfair disciplinary actions concern personnel
or administrative matters. The Board has held that an administrative or personnel matter will be
considered to be an employment factor only where the evidence discloses error or abuse on the
part of the employing establishment.9 In determining whether the employing establishment erred
or acted abusively, the Board has examined whether the employing establishment acted
reasonably.10 Ms. Boykin stated that management provided the appropriate staffing, equipment
and supplies for appellant to be successful in his position. She stated that reviews of the staffing
levels at appellant’s employing establishment conducted in May 2006 and March 2007 did not
find that additional staffing was needed. There is insufficient evidence that management erred or
acted abusively in its handling of the staffing at appellant’s postal facility. Regarding his
allegation that management unfairly issued a notice of proposed removal on August 1, 2006
Ms. Boykin stated that the notice was issued due to appellant’s unsatisfactory attendance and
failure to comply with postal regulations and procedures regarding overages and shortages, key
and vending accountability, box service, retained cash credit accounts and the accountability of
credit cards and trust accounts. A January 2006 investigation by the inspector general’s office
revealed security and revenue accountability problems, including his failure to lock the door
leading to the retail unit and workroom floor and to require that managers perform cash counts of
the clerks’ drawers. This investigation supports the basis provided by Ms. Boykin for the notice
of proposed removal. The record does not establish that the disciplinary action was baseless or
otherwise improper. Accordingly, there is insufficient evidence to establish that management
erred or acted abusively regarding the notice of proposed removal. Because there is insufficient
evidence of error or abuse in the handling of these administrative or personnel matters, these
allegations are not deemed compensable factors of employment.
Appellant alleged harassment by management and employees. Mere perceptions of
harassment or discrimination are not compensable under the Act. Appellant’s burden of proof is
not discharged with allegations alone. He must support his allegations with probative and
reliable evidence.11 The record shows that the inspector general’s office conducted an
investigation into employee allegations that appellant was conducting personal business on work
time. The investigation concluded that there was no evidence of wrongdoing by appellant.
However, the fact that the employee’s allegations were not substantiated does not establish that it
was improper for the employing establishment to conduct the investigation. Appellant also
alleged that employees filed EEO complaints in order to harass him. There is no evidence of
record, such as an EEO decision, that any EEO complaint filed against appellant was retaliatory
or without merit. Ms. Boykin denied that she ever harassed appellant and there is insufficient
evidence to establish that she did so. The Board finds that there is insufficient evidence to
9

Id.

10

Janice I. Moore, 53 ECAB 777 (2002).

11

Cyndia R. Harrill, 55 ECAB 522 (2004).

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establish that appellant’s allegations of harassment and discrimination are factual. Therefore,
these allegations are not deemed to be compensable employment factors.12
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained an emotional condition in the performance of duty causally related to a compensable
factor of employment.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 4, 2007 and November 16, 2006 are affirmed.
Issued: January 16, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

12

Unless appellant alleges a compensable factor of employment substantiated by the record, it is unnecessary to
address the medical evidence. See Barbara J. Latham, 53 ECAB 316 (2002); Garry M. Carlo, 47 ECAB
299 (1996).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Columbia, SC, Employer
__________________________________________

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

Docket No. 09-1055
Issued: December 14, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On February 25, 2009 appellant filed a timely appeal of a February 23, 2009 decision of
the Office of Workers’ Compensation Programs denying modification of a decision denying her
claim for compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained
an occupational disease in the performance of duty.
FACTUAL HISTORY
On August 24, 2006 appellant, then a 49-year-old nurse, filed an occupational disease
claim alleging that she developed lumbar and cervical subluxation and left thigh numbness from
a chair at her workstation that caused her to bend repetitively over her keyboard. She first

realized that her condition was caused by her employment activities on May 1, 2006. Appellant
did not stop work. The employing establishment controverted the claim.
On September 18, 2006 the Office advised appellant of the factual and medical evidence
necessary to establish her claim and allowed her 30 days to submit such evidence. In an
August 14, 2006 statement, appellant described her work duties and noted that they required
sitting in a chair with a slant causing her to lean over a keyboard. She indicated that three years
prior she began experiencing low back pain with a tingling numbness sensation on her left thigh
that increased with standing and walking. Appellant noted that nine months prior she began to
experience neck pain and stiffness. She self-treated her condition for two years and began
treatment with a physician in June 2006. Appellant noted that she had no prior back or neck
problems. In an October 14, 2006 statement, she asserted that her job requirements caused her
neck and back problems. Appellant reiterated that her job duties required sitting in a slanted
chair causing her to lean inward and strain her spine. She summarized the history of injury and
noted that she had no major acute or chronic back or orthopedic injuries. Appellant also noted
that within the last four years she was diagnosed with osteopenia.
On August 22, 2006 Dr. John Bracey, a chiropractor, noted treating appellant on June 19,
2006 for complaints of low back pain with numbness and burning sensation through her left
thigh to her knee. He stated that these symptoms had persisted for two years. Dr. Bracey opined
that the etiology of appellant’s condition was unclear but that she believed that her chair at work
caused her problems. He indicated that her job duties required sitting for long hours at a call
center. In a June 19, 2006 x-ray report of appellant’s lumbar and cervical spine, Dr. Bracey
found moderate degenerative disc disease of L5-S1, early degenerative disc disease of the
cervical spine and evidence of areas of segmental dysfunction. In treatment notes dated between
June 19 and August 15, 2006, Dr. Bracey noted appellant’s complaint of left thigh burning and
tingling and low back pain. He reiterated that the causative factor was unknown but may have
been aggravated by a work chair.
In a November 21, 2006 decision, the Office denied appellant’s claim finding that the
medical evidence did not provide a medical diagnosis connected to the claimed employment
factors.
On November 19, 2007 appellant requested reconsideration. In an undated statement, she
indicated that she had been seen by several physicians with lumbar computerized tomography
(CT) and magnetic resonance imaging (MRI) scan results that support her claim. Appellant
reiterated that her job required sitting for prolonged periods with nonergonomically structured
chairs and repetitive reaching over a keyboard causing wear and tear on her lumbar spine. She
noted constant low back pain and left thigh numbness caused by lumbar disc degeneration with
herniated and bulging disc based on diagnostic test results. Appellant also noted that she was
submitting medical documentation.
In a November 15, 2007 report, Dr. M. Craig Ward, Board-certified in family medicine,
noted reviewing appellant’s MRI scan and medical records. He opined that her back pain was
caused by the physical demands of her job. Dr. Ward noted that he had patients with similar
acute and chronic back pain with similar jobs. He also opined that people who performed low
impact repetitive activities using nonergonomically designed facilities were clearly at risk to

2

suffer degenerative conditions similar to appellant’s back problems.
appellant was a victim of injury suffered on the job and in the workplace.

Dr. Ward noted that

In a January 17, 2008 decision, the Office denied modification of its November 21, 2006
decision finding that the medical evidence did not establish that a diagnosed condition was
causally related to appellant’s employment factors.
On February 9, 2008 appellant requested reconsideration. She also submitted a
February 5, 2008 report from Dr. Ward who clarified his previous diagnosis of back pain to
chronic lumbago. Dr. Ward indicated that his new diagnosis was supported by medical records
and symptoms that included tingling in the thigh, low back pain and the inability to lean forward
without pain. He opined that repetitive activities using nonergonomically designed equipment
were causal factors. Dr. Ward further opined that appellant’s constant need to lean forward over
her keyboard and the lack of corrective action to provide her with an ergonomically-appropriate
chair result in chronic lumbago. Appellant subsequently submitted several statements dated
July 17, 2008 and February 5, 2009 requesting a decision on her reconsideration request.
In a February 23, 2009 decision, the Office denied modification of its January 17, 2008
decision. It found that the medical evidence did not provide a firm diagnosis connected to
identify employment factors as lumbago was another way of diagnosing pain.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act 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 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. 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.1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.2
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
1

J.E., 59 ECAB ___ (Docket No. 07-814, issued October 2, 2007); Elaine Pendleton, 40 ECAB 1143 (1989).

2

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Roy L. Humphrey, 57 ECAB 238 (2005).

3

compensable employment factors. 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.3
ANALYSIS
The record reflects that appellant’s job as a nurse requires prolonged sitting and repetitive
leaning over a keyboard. The Office accepted that the employment events occurred as alleged.
However, appellant submitted insufficient medical evidence to establish that she has a diagnosed
back condition causally related to her employment activities.
Dr. Ward’s February 5, 2008 report diagnosed chronic lumbago based on appellant’s
symptoms including tingling in her thigh, low back pain and the inability to lean forward without
pain. He opined that repetitive leaning over a keyboard caused chronic lumbago. The Office
found that, as lumbago is another way of reporting low back pain,4 Dr. Ward did not provide a
firm medical diagnosis. 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.5
Furthermore, to the extent that lumbago may be considered a diagnosis, Dr. Ward did not explain
why particular employment activities that he identified would cause or aggravate an injury or
disease in the back. As noted, part of appellant’s burden of proof includes the submission of
rationalized medical evidence explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee. Similarly, in a
November 15, 2007 report, Dr. Ward opined that her low back pain was caused by the physical
demands of her job. He advised that people who performed low impact repetitive activities with
nonergonomic facilities were at risk for degenerative conditions similar to appellant’s back
condition. Dr. Ward noted that he had patients like appellant with similar back pain and similar
jobs. Although his opinion provided some support for causal relationship, he did not identify
specific work activities that caused her condition and explain the process by which such
activities caused or aggravated a specific degenerative condition. Moreover, Dr. Ward’s
reasoning supporting causal relationship generally referred to patients with back conditions and
did not specifically pertain to appellant’s diagnosed condition and her specific workplace
situation.6

3

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
4

Lumbago is defined as pain in the lumbar region. Dorland’s Illustrated Medical Dictionary (30th ed. 2003).

5

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

6

Rationalized medical evidence is evidence which relates a work incident or factors of employment to a
claimant’s condition, with stated reasons of a physician. The opinion must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship of the diagnosed condition and
the specific employment factors or employment injury. J.J., 60 ECAB ___ (Docket No. 09-27, issued
February 10, 2009).

4

The record also contains several reports and treatment notes from Dr. Bracey dated
between June 19 and August 22, 2006. In particular, on June 19, 2006 Dr. Bracey noted that
x-rays of appellant’s lumbar and cervical spine found moderate degenerative disc disease of L5S1, degenerative disc disease of the cervical spine and evidence of segmental dysfunction.
However, he did not diagnose a spinal subluxation based on his review of x-rays. The Board
notes that a chiropractor is not considered a physician under the Act unless it is established that
there is a spinal subluxation as demonstrated by x-ray to exist.7 As Dr. Bracey did not diagnose
a spinal subluxation based on x-ray, he is not a “physician” under the Act and his reports are of
no probative value.8
For these reasons, appellant did not submit sufficient medical evidence to establish that
she sustained a back condition causally related to her employment duties as a nurse.
On appeal, appellant asserts that the Office informed her that she only needed a diagnosis
to complete her claim and therefore she submitted a report from Dr. Ward with a diagnosis. As
noted, to establish an injury requires medical evidence with not only a diagnosis, but also a
physician’s rationalized opinion explaining how the diagnosed condition is causally related to
appellant’s employment activities. Appellant has not submitted such evidence to the Office.
CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing that she
sustained an occupational disease in the performance of duty.

7

See 5 U.S.C. § 8101(2) (the term “physician” includes chiropractors only to the extent that their reimbursable
services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist); Mary A. Ceglia, 55 ECAB 626 (2004).
8

See A.O., 60 ECAB ___ (Docket No. 08-580, issued January 28, 2009); Isabelle Mitchell, 55 ECAB 623 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated February 23, 2009 is affirmed.
Issued: December 14, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
CENTRAL ARKANSAS VETERANS
HEALTHCARE SYSTEMS,
North Little Rock, AR, Employer
__________________________________________

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

Docket No. 12-682
Issued: November 8, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 6, 2012 appellant filed a timely appeal from two decisions of the Office of
Workers’ Compensation Programs (OWCP) dated October 20, 2011 and from decisions dated
December 2 and 5, 2011 and January 10, 2012 denying appellant’s claims for intermittent
periods of compensation. 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.
ISSUE
The issue is whether appellant established intermittent periods of disability from
February 22 through October 12, 2011.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 28, 2011 appellant, then a 55-year-old urology health technician, sustained
injury when her right foot got caught in a rug and she fell and landed on her right knee and left
side of her face. She listed the nature of her injury as left knee contusion with swelling. On
April 13, 2011 OWCP accepted appellant’s claim for effusion of joint, lower leg and left knee. It
paid medical benefits and compensation for intermittent periods. OWCP denied appellant’s
claim for wage-loss compensation for certain dates.
On August 8, 2011 appellant filed claims for intermittent compensation between
February 22 and July 28, 2011. Her claim included a request for compensation for 3.5 hours on
March 21, 2011 for a physician’s visit; 8 hours on March 22 and 23, 2011 because “[Physician]
ordered off”; and 3 hours on April 29, 2011 for a physician’s visit. The claim also included
requests for physical therapy for July 8, (1.25 hours), 19, (1.5 hours) and 26, 2011 (1.25 hours).
On March 21, 2011 Dr. Thomas P. Rooney, a treating Board-certified orthopedic
surgeon, noted that, due to knee effusion, appellant was not to work until the next available
office appointment of March 23, 2011. He completed a duty status report on March 23, 2003
that he examined her on that date, that she had work restrictions and that she was limited to only
intermittent sitting and standing at work.
Dr. Rooney listed the date of injury as
January 28, 2011. He indicated in a clinic note with regard to her March 23, 2011 visit that
appellant had been having pain medially with burning up the thigh for the last few days but she
continued working. Dr. Rooney noted a slight effusion and medial tenderness. He also noted a
half-inch atrophy on the left side and full motion with pain beyond 110 degrees flexion. By
letter dated August 16, 2011, OWCP asked for further information.
The record contains notes of physical therapy on numerous dates including July 14, 18,
21 and 28, 2011. The notes indicate that appellant did not show for an appointment on July 19,
2011 and that she cancelled an appointment on July 26, 2011.
By decision dated October 20, 2011, OWCP denied appellant’s claim for compensation
for the period March 21 through 23, 2011.
In a decision dated October 20, 2011, OWCP accepted appellant’s claim for certain hours
of compensation between July 8 and 28, 2011. It denied her claim for compensation for
April 29, (3 hours) and July 8 (1.25 hours), 19 (1.5 hours) and 26, 2011 (1.25 hours).
On October 4, 2011 appellant filed a claim for compensation for intermittent periods
between August 18 and September 27, 2011. OWCP paid for certain periods but in letters dated
October 12, 2011 asked for further information as to August 23 (7 hours ) and 25 (1/2 hour) and
September 13, 2011 (8 hours). Medical evidence was submitted showing that appellant visited
Dr. Rooney on August 22, 2011. Dr. Rooney noted that moderate swelling in her knee had
subsided, with definite mild effusion and tenderness medially. There is also a medical report
indicating that on September 14, 2011 appellant underwent an arthroscopy and chondroplasty of
the patella.

2

By decision dated December 2, 2011, OWCP denied appellant’s claim for compensation
on August 23 and 25 and September 13, 2011.
On October 20, 2011 appellant filed a claim for compensation for total disability from
October 6 through 12, 2011. She submitted an October 5, 2011 office visit note from Dr. Ann D.
Layton, a Board-certified internist, who noted that appellant was having swelling in her left leg
with left knee pain post arthroscopy. In a medical note also dated October 5, 2011, Dr. Layton
stated that appellant was off work for one week due to her medical condition of leg/knee
swelling and pain.
By letter dated October 25, 2011, OWCP requested further information from appellant.
No further evidence was received.
In a decision dated December 5, 2011, OWCP denied appellant’s claim for compensation
from October 6 through 12, 2011.
Appellant disagreed with the October 20, 2011 decisions and requested reconsideration.
The request was dated November 16, 2011 and received by OWCP on December 5, 2011.
Appellant submitted a November 28, 2011 chart note from Dr. Rooney, who indicated that her
knee was doing well with no swelling and very minimal pain. Dr. Rooney noted that she still
had ankle and foot swelling. He indicated that appellant could resume her normal activities.
Dr. Rooney opined that the swelling in the ankles was more secondary to venous insufficiency.
He also completed a duty status report of the same date, noting that appellant may work full
time. Appellant also resubmitted medical reports by Dr. Layton dated February 4 and 22 and
October 5, 2011.
By decision dated January 10, 2012, OWCP denied modification of the decisions issued
on October 20, 2011.
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 evidence. For each period of disability
claimed, the employee has the burden of establishing that he or she was disabled for work as a
result of the accepted employment injury. 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 reliable, probative and substantial medical opinion evidence.2
Such medical evidence must include findings on examination and the physician’s opinion,
supported by medical rationale, showing how the injury caused the employee disability for his or
her particular work.3

2

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

3

Dean E. Pierce, 40 ECAB 1249 (1989).

3

Monetary compensation benefits are payable to an employee who has sustained wage loss
due to disability for employment resulting from the employment injury.4 The Board will not
require OWCP 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 his or her disability and entitlement to
compensation.5
Appellant’s burden of proving she was disabled on particular dates requires that she
furnish medical evidence from a physician who, on the basis of a complete and accurate factual
and medical history, concludes that the disabling condition is causally related to the employment
injury and supports that conclusion with medical reasoning.6 Where no such rationale is present,
the medical evidence is of diminished probative value.7 Generally, findings on examination are
needed to justify a physician’s opinion that a claimant is disabled for work.8
An injured employee may be entitled to compensation for lost wages incurred while
obtaining authorized medical services.9 This includes the actual time spent obtaining the medical
services and a reasonable time spent traveling to and from the medical provider’s location.10 As
a matter of practice, OWCP generally limits the amount of compensation to four hours with
respect to routine medical appointments.11 However, longer periods of time may be allowed
when required by the nature of the medical procedure and/or the need to travel a substantial
distance to obtain health care.12
ANALYSIS
OWCP accepted appellant’s traumatic injury claim for effusion of joint, lower leg and
left knee. Thereafter, appellant claimed wage-loss compensation for intermittent periods of
disability and for compensation for time taken for medical appointments. Although her claims
for compensation were granted for numerous periods of time, there was a dispute about certain
dates of compensation.

4

Laurie S. Swanson, 53 ECAB 517, 520 (2002). See also Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

5

T.B., Docket No. 12-244 (issued June 8, 2012).

6

E.C., Docket No. 11-2089 (issued May 21, 2012); Ronald A. Eldridge, 53 ECAB 218 (2001).

7

Mary A. Ceglia, 55 ECAB 626 (2004).

8

See Dean E. Pierce, 40 ECAB 1249 (1989); Paul D. Weiss, 36 ECAB 720 (1985).

9

See 5 U.S.C. § 8103(a); Gayle L. Jackson, 57 ECAB 546, 547-48 (2006).

10

20 C.F.R. § 10.315; see J.C., Docket No. 12-611 (issued September 12, 2012); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16a (October 2009).
11

See J.C., id.; see also, A.O., Docket No. 11-1892 (issued August 13, 2012); Federal (FECA) Procedure Manual,
Part 3 -- Medical, Administrative Matters, Chapter 3.900.8 (November 1998).
12

Id.

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OWCP denied appellant’s claim for compensation for 3.5 hours on March 21, 2011 and
for 8 hours on both March 22 and 23, 2011. Appellant’s claim for 3.5 hours for a physician’s
appointment on March 21, 2011 is not supported by the evidence of the record. The March 21,
2011 note by Dr. Rooney appears to reference a telephone consultation, as he indicated that she
should see him for the next available office appointment on March 23, 2011. The record does
not support that appellant saw him on this date. With regard to March 22 and 23, 2011, there is
no medical report establishing disability on these dates. Dr Rooney noted pain and had slight
effusion, medial tenderness and half-inch atrophy on the left side. He did not provide a
rationalized opinion stating that appellant was unable to work on March 22 and 23, 2011 due to
her accepted employment-related condition. Because the record fails to contain a physician’s
finding to support that she was disabled from work on the claimed days of disability due to her
employment injury, the Board finds that she did not meet her burden of proof to establish her
claim.13 The evidence submitted with appellant’s request for reconsideration provided does not
support that she was disabled on March 22 or 23, 2011 or that she was attending a physician’s
appointment on March 21, 2011.
OWCP also determined that appellant did not establish disability for intermittent hours on
April 29 and July 8, 19 and 26, 2011. Although there is some evidence that appellant was
receiving physical therapy, there are no records that she was seen by a physical therapist or a
physician on April 29 or July 8, 2011 or that therapy was for treatment of the employment
injuries. The physical therapy notes indicate that she did not show for her appointment on
July 19, 2011 and that she cancelled an appointment for July 26, 2011. The evidence submitted
on reconsideration does not establish any appointments on these dates. Accordingly, the Board
finds that appellant did not establish entitlement to wage-loss compensation on April 29 or
July 8, 19 and 26, 2011.
On December 2, 2011 OWCP denied appellant’s claim for compensation for certain
hours on August 23 and 25 and September 13, 2011. There is no indication that appellant was
seen on any of these dates by a medical professional. She was seen on August 22, 2011 by
Dr. Rooney, but he made no comment with regard to excusing her for any portion of the
workday on August 23 or 25, 2011. Although appellant did have surgery on September 14, 2011
there is no indication that she was disabled on the day prior to the surgery, September 13, 2011.
Accordingly, the Board finds that she did not establish entitlement to wage-loss compensation on
these dates.
On December 5, 2012 OWCP denied appellant’s claim for compensation for total
disability from October 6 through 12, 2011. Appellant saw Dr. Layton on October 5, 2011 and
she excused appellant for one week from that date for leg/knee swelling and pain. However,
Dr. Layton did not provide objective findings explaining her conclusion that appellant could not
work that week or that the disability was employment related. Accordingly, OWCP properly
denied appellant’s claim for benefits from October 6 through 12, 2011.

13

L.C., Docket No. 12-530 (issued May 21, 2012).

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The Board finds that appellant did not establish her entitlement to wage-loss
compensation because the medical evidence did not sufficiently demonstrate that she was
disabled during the claimed periods due to her accepted conditions.
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 and 10.607.
CONCLUSION
The Board finds that appellant has not established intermittent periods of disability from
March 21 through October 12, 2011.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 10, 2012, December 5 and 2 and October 20, 2011 are
affirmed.
Issued: November 8, 2012
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
U.S. POSTAL SERVICE, PORT CHARLOTTE
CARRIER ANNEX, Port Charlotte, FL,
Employer
__________________________________________

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

Docket No. 11-1889
Issued: August 1, 2012

Case Submitted on the Record

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

JURISDICTION
On August 8, 2011 appellant filed a timely appeal from a February 9, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) determining her pay rate.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.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s merit
decision was issued on February 9, 2011, the 180-day computation begins February 10, 2011. One hundred and
eighty days from February 19, 2012 was August 8, 2011. Since using August 15, 2011, the date the appeal was
received by the Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is considered
the date of filing. The date of the U.S. Postal Service postmark is August 8, 2011, which renders the appeal timely
filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly determined appellant’s pay rate for compensation
purposes.
FACTUAL HISTORY
On February 6, 1997 appellant, then a 32-year-old rural mail carrier, filed a recurrence of
disability claim beginning that date causally related to a 1991 employment injury. OWCP
adjudicated the alleged recurrence of disability as an occupational disease claim and accepted the
claim for right shoulder strain and a cervical herniated disc. On April 9, 1997 appellant returned
to work for four hours a day and on June 2, 1997 she returned to work in her date-of-injury
position for eight hours a day. OWCP accepted that she sustained a recurrence of disability
commencing on November 3, 1998.
Appellant returned to modified part-time employment in 2002. By decision dated
August 4, 2004, OWCP reduced her compensation based on its finding that her actual earnings
working 20 hours a week as a part-time modified mail processing clerk fairly and reasonably
represented her wage-earning capacity. It utilized appellant’s weekly pay rate of $781.17
effective November 7, 1998, when disability recurred, to determine her wage-earning capacity.
OWCP calculated that she had a loss of wage-earning capacity of $390.59 per week.
On January 11, 2010 appellant requested compensation for lost wages beginning
December 19, 2009 after the employing establishment reduced her work hours from four to two
hours per day under the National Reassessment Process (NRP). In a decision dated March 9,
2010, OWCP modified the August 4, 2004 decision after finding that its wage-earning capacity
determination was erroneous as the position of modified mail processing clerk was makeshift in
nature. It paid appellant compensation for lost wages based on a pay rate date of November 7,
1998, the date of her prior recurrence of disability.
By letter dated April 26, 2010, appellant related that she should be paid what she was
currently earning as she “was never given a chance to return to a full[-]time job as a rural
carrier.” She maintained that OWCP should pay her at her current pay rate.
By decision dated July 13, 2010, OWCP found that appellant was not entitled to a
recurrent pay rate as she had not returned to regular full-time employment. It concluded that it
properly based her compensation rate on her pay rate effective November 7, 1998.
On August 11, 2010 appellant requested an oral hearing. A telephone hearing was held
on December 22, 2010. At the hearing, appellant related that when she returned to work as a
clerk she did the same job as the other clerks. She asserted that she should be paid at the current
pay rate instead of a 1997 pay rate. Appellant indicated that she stopped work in 1997 and
returned to work in 2002 following surgery. She currently worked four hours per day.
By decision dated February 9, 2011, the hearing representative affirmed the July 13, 2010
decision as modified to show that appellant was entitled to a recurrent pay rate. He found that
following her injury she returned to full-time regular employment on June 2, 1997 and worked

2

until her recurrence of disability on November 3, 1998. In 2002 appellant returned to part-time
work for four hours per day. On December 19, 2009 the employing establishment reduced her
work hours to two per day. The hearing representative found that appellant was entitled to a
recurrence pay rate beginning December 19, 2009. He determined, however, that her pay rate as
of December 19, 2009 was $1,214.17 a week, or $607.09 for a 20-hour week, and her pay rate as
of November 7, 1998 was $787.17 a week. The hearing representative concluded that
appellant’s pay rate of $607.09 in December 2009 was less than her pay rate in November 1998
of $787.17 a week. Consequently, he found that OWCP properly paid her compensation based
on the November 1998 pay rate.
On appeal appellant indicated that OWCP correctly found that she earned $607.09 per
week beginning December 19, 2009. She argued, however, that OWCP erred in finding that her
current compensation was based on a weekly pay rate of $787.17. In an attached copy of the
hearing representative’s decision, appellant noted that $787.17 divided by her 20-hour workweek
equaled $393.58 per week.
LEGAL PRECEDENT
Section 8105(a) of FECA3 provides: “If the disability is total, the United States shall pay
the employee during the disability monthly monetary compensation equal to 66 2/3 percent of
[her] monthly pay, which is known as [her] basic compensation for total disability.”4 Section
8110(b) of FECA provides that total disability compensation will equal three fourths of an
employee’s monthly pay when the employee has one or more dependents.5 Section
8101(4) defines monthly pay for purposes of computing compensation benefits as the monthly
pay at the time of injury, the time disability begins or the time disability recurs, if the recurrence
is more than six months after returning to full-time work, whichever is greater.6
In Johnny A. Muro,7 the employee sustained a recurrence of disability more than six
months after he resumed regular, full-time employment with the employer and the Board found
that under 5 U.S.C. § 8101(4) he was entitled to have his compensation increased based on his
pay at the time of this first recurrence of disability. In Muro, the Board also found that, if an
employee had one recurrence of disability which meets the requirements of 5 U.S.C. § 8101(4),
any subsequent recurrence of disability would also meet such requirements and would entitle the
employee to a new recurrence pay rate.8

3

Id.

4

Id. at § 8105(a).

5

Id. at § 8110(b).

6

Id. at §§ 8101(4); 8114; see also 20 C.F.R. § 10.5(s).

7

19 ECAB 104 (1967).

8

See Muro, supra note 7; see also Carolyn E. Sellers, 50 ECAB 393 (1999).

3

ANALYSIS
OWCP accepted that appellant sustained right shoulder strain and a cervical herniated
disc due to factors of her federal employment. Following her injury she returned to modified
work for four hours per day on April 9, 1997. Appellant resumed her full-time regular
employment on June 2, 1997. OWCP accepted that she sustained a recurrence of disability in
November 1998.
Appellant returned to part-time work in 2002. By decision dated August 4, 2004, OWCP
found that her actual earnings as a part-time modified mail processing clerk fairly and reasonably
represented her wage-earning capacity. It based appellant’s compensation payments on her
weekly pay rate effective November 7, 1998 of $781.17 per week.
Beginning December 19, 2009, the employing establishment reduced appellant’s hours
from four to two per day. Appellant filed a claim for compensation for lost time. On March 9,
2010 OWCP modified its August 4, 2004 wage-earning capacity decision after finding that the
original determination was in error as the position of modified mail processing clerk was
makeshift in nature. It paid appellant compensation for lost time beginning December 19, 2009
based on her recurrent pay rate of November 7, 1998.
Section 8101(4) of FECA defines monthly pay for purposes of computing compensation
benefits as the monthly pay at the time of injury, the monthly pay at the time disability begins, or
the monthly pay at the time compensable disability recurs, if the recurrence begins more than six
months after the injured employee resumes regular full-time federal employment, whichever is
greater.9 The Board has held that, if an employee has one recurrence of total disability which
meets the requirements of 5 U.S.C. § 8101(4), any subsequent recurrence of total disability
would also meet such requirements and would entitle the employee to a new recurrence pay
rate.10 As appellant returned to her regular full-time employment in June 1997 and worked until
November 7, 1998, she was entitled to compensation based on her recurrent pay rate at the time
of her November 7, 1998 recurrence of disability. She was also entitled to the pay rate in effect
at the time of any subsequent recurrence of disability. The hearing representative thus properly
found that appellant was entitled to a recurrent pay rate as of December 19, 2009, the date that
the employing establishment reduced her hours from four to two a day.11 He, however, further
determined that appellant’s pay rate on November 1998 working 40 hours per week was higher
than her pay rate at the time of her recurrence of disability on December 19, 2009 when she
worked only 20 hours per week. The hearing representative calculated that her pay rate effective
December 19, 2009 was $1,214.17 per week, or $607.09 for a 20-hour workweek. He compared
the $607.09 she earned working 20 hours per week for the employing establishment with
$787.17 per week, the amount that she earned working full time prior to her November 7, 1998
recurrence of disability. The hearing representative thus concluded that OWCP properly based
9

5 U.S.C. § 8101(4); Carl R. Benavidez, 56 ECAB 596 (2005).

10

See supra note 8.

11

For the purposes of 5 U.S.C. § 8101(4), recurrence of disability includes a change from a no disability status to
one of partial disability or a change from partial disability to total disability. See Melvin Hoff, Sr., 27 ECAB
458 (1976).

4

her pay rate on the rate in effect at the time of her November 7, 1998 recurrence of disability as it
was a higher amount.
On appeal appellant argues that the hearing representative should have compared the
$607.09 pay rate she earned working a 20-hour week with the amount she earned working 20
hours per week for the employing establishment after her November 7, 1998 recurrence of
disability. She seeks compensation based on the pay rate of a full-time employee rather than the
pay she actually earned working 20 hours per week. OWCP’s procedure manual states that “the
recurrent pay rate should be considered the actual weekly amount the claimant earned.”12 It
further provides that a lower pay rate can occur “when the claimant is working part time or has
been rated for loss of wage-earning capacity. Even if the [employing establishment] reports a
higher hourly pay for a [date of recurrence], the recurrent pay rate should be considered the
actual weekly amount the claimant earned.”13 In such cases, OWCP procedures provide that the
pay rate on either the date of injury, date disability began or the date of a prior recurrence of
disability should be used as it would be higher. A recurrent pay rate may thus be lower than the
pay rate at the time of injury or at the time of prior recurrence of disability, as in this case when
appellant was working full time at the time of the prior recurrence of disability and only part
time at the time of the subsequent recurrence of disability.14 Her recurrent pay rate on
November 7, 1998 was based on her weekly pay rate working full time of $787.17. Appellant’s
recurrent pay rate at the time of her December 19, 2009 recurrence of disability was her weekly
pay rate working 20 hours per week of $607.09. The hearing representative thus properly found
that OWCP properly paid her based on her pay rate at the time of her November 7, 1998
recurrence of disability as it was higher than her pay rate at the time of her subsequent recurrence
of disability.
CONCLUSION
The Board finds that OWCP properly determined appellant’s pay rate for compensation
purposes.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.5(a)(6)
(November 2007).
13

Id.

14

Id.; see also Carla D. Allen, Docket No. 96-306 (issued November 6, 1998).

5

ORDER
IT IS HEREBY ORDERED THAT the February 9, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 1, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, 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
__________________________________________
V.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Reading, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Dan Flathers, for the appellant
Office of Solicitor, for the Director

Docket No. 09-234
Issued: July 28, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 31, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs decision dated July 22, 2008. Pursuant to 20 C.F.R. §§ 501.2 and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a right ankle injury in the performance of duty in
April 2007.
FACTUAL HISTORY
Appellant, a 43-year-old mail handler/heavy equipment operator, filed a claim for
benefits on May 2, 2007, alleging that he twisted his right ankle while exiting his vehicle on
April 25, 2007.
On May 10, 2007 the employing establishment controverted the claim, stating that its
records indicated that appellant was not at work on the date that he claimed he sustained his
injury. It noted that appellant completed his workshift on April 19, 2007, at 2:00 am and did not

inform anyone that he had injured his ankle. He called in sick from April 19 through 21, 2007,
returned to work on Sunday, April 22, 2007, called in sick on Tuesday, April 24, 2007 and had
not returned to work since that date.1
By letter to the employing establishment dated May 15, 2007, appellant requested that a
correction be made to his initial claim regarding the actual date of injury. He stated that the date
of injury was actually April 18 and not April 25, 2007. Appellant related that he saw his primary
care doctor on April 19, 2007 because of this injury and followed up with Dr. Denis P. Byrne,
Board-certified in orthopedic surgery, on April 23, 2007.
By letter dated May 21, 2008, the Office advised appellant that he needed to submit
additional factual and medical evidence in support of his claim. It stated that appellant had 30 days
to submit the requested information.
Appellant submitted an April 19, 2007 disability slip from Dr. Andrew S. Lim, a
specialist in family practice, who indicated that appellant was unable to work from April 19 to
April 20, 2007 due to leg pain, an April 23, 2007 treatment note from Dr. Byrne, which indicated
that appellant was being treated for right ankle pain and released him to return to work on
April 26, 2007 and a May 2, 2007 treatment note, which stated that appellant was unable to work
due to right ankle pain and recommended that he return to work on May 14, 2007.
In an April 23, 2007 report, Dr. Byrne stated that appellant had been bothered by some
pain in his right ankle for the past couple of weeks with no particular injury. He advised that his
job required him to stand most of the day while riding a machine, and also required him to
frequently get up and off the machine. Dr. Byrne noted swelling and discomfort in the
anterolateral and posterolateral aspect in the right ankle and advised that x-rays of his right ankle
showed no fractures or dislocations and a well-preserved joint.
In two reports dated May 14, 2007, Dr. Byrne noted complaints of continuing discomfort
in appellant’s right ankle. He stated that on April 19, 2007 appellant felt a twist in his right ankle
while getting down from his vehicle and had experienced pain since that time. Dr. Byrne
released appellant to return to light duty and outlined restrictions of limited standing, walking
and getting up and down from his equipment. He scheduled appellant for a magnetic resonance
imaging (MRI) scan.
In a statement received July 3, 2007, appellant clarified that his injury occurred on
April 19, 2007, at 1:20 a.m. and that he returned to work on April 22, 2007, at which time he
informed his acting supervisor Angela Russell about his situation. He stated that Ms. Russell
assigned him to work on damaged mail but that he stopped working after six hours because of
his right ankle pain.

1

The employing establishment submitted May 9, 2007 statements from two of appellant’s supervisors, Brian
Gilbert and Armand Scopiochio which indicated that they saw him at work on April 19, 2007 and did not witness
him limping or in discomfort at any time. Mr. Scopiochio stated that he saw appellant working overtime on
April 22, 2007 at which time his right ankle was wrapped in an ace bandage. He stated that when he asked appellant
if he had injured his ankle at work, appellant replied “I do n[o]t think so.”

2

By decision dated July 12, 2007, the Office denied the claim. It accepted that a work
incident had occurred on April 19, 2007, but found that appellant failed to submit evidence
indicating that the incident had caused a condition or disability. The Office stated that appellant
had failed to submit a diagnosis of any medical condition related to work. It, therefore, found
that appellant failed to establish that he sustained a right ankle injury in the performance of duty
on April 19, 2007.
On August 7, 2007 appellant requested an oral hearing, which was held on
February 27, 2008. At the hearing, the hearing representative indicated that the Office had
already accepted that an incident had occurred at work on April 19, 2007 in its July 12, 2007
decision and that the only outstanding issue was whether appellant submitted sufficient medical
evidence to establish that the employment incident caused a personal injury.
In an August 22, 2007 report, Dr. Byrne stated that appellant underwent an MRI scan on
August 17, 2007 which indicated he had peroneus brevis tendinitis of the right ankle, with no
evidence of rupture. He opined that appellant’s ankle pain was subsequent to his April 19, 2007
work injury and noted that he remained on light duty.
In a March 4, 2008 report, Dr. Byrne reviewed the history of injury, noted the results of
diagnostic tests and essentially reiterated his previous findings and conclusions. He stated that
appellant’s condition had improved with physical therapy and medication, with good strength
and good range of motion. Dr. Byrne advised that he examined appellant on November 19,
2007, at which time he released him from treatment and noted that he was functioning at work
without difficulty. He opined that, based upon a reasonable degree of medical certainty, his
diagnosis was peroneus brevis tendinitis of the right ankle, which was a direct result of the
April 2007 work injury.
By decision dated July 22, 2008, an Office hearing representative affirmed the July 12,
2007 decision denying appellant’s claim. The hearing representative found, however, that there
were unresolved and unexplained inconsistencies in both the factual and medical which cast
serious doubt as to whether an injury was sustained at work in the manner alleged, and that
therefore, appellant did not meet his burden of proof with regard to fact of injury.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing that 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
timely filed within the applicable time limitation period of the Act, that an injury was sustained 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

2

5 U.S.C. § 8101-8193.

3

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

3

elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.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 usually rationalized medical 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 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 claimant.7 The Board
has held that the mere fact that a condition manifests itself during a period of employment does
not raise an inference that there is a causal relationship between the two.8
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
her belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.9 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
The Board finds that the Office hearing representative erred, in his July 22, 2008
decision, in finding that appellant did not establish that an incident had occurred in the
performance of duty on April 19, 2007. While appellant subsequently changed the date of injury
that he stated in his May 2, 2007 Form CA-1 from April 25 to April 19, 2007 the Office in its
July 12, 2007 decision accepted that he had sufficiently clarified the circumstances of the alleged
incident such that he had established fact of injury. It found that the evidence appellant
submitted was sufficient to establish that the April 19, 2007 incident occurred at the time, place
and in the manner alleged. The Office hearing representative had also informed appellant to this
effect at the February 27, 2008 hearing; therefore, there were insufficient grounds to change this
finding in the July 22, 2008 decision, as the issue had been resolved and was no longer contested.
4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

John J. Carlone, 41 ECAB 354 (1989).

6

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(14).

7

Id.

8

See Joe T. Williams, 44 ECAB 518, 521 (1993).

9

Id.

4

However, the question of whether the employment incident caused a personal injury can only be
established by medical evidence.10 Appellant has not submitted rationalized, probative medical
evidence to establish that the employment incident on April 19, 2007 caused a personal injury
and resultant disability.
Appellant submitted reports from Dr. Byrne in which he stated findings on examination
and indicated that he had right ankle tendinitis, as indicated by an MRI scan. These reports,
however, did not contain a probative, rationalized medical opinion relating this diagnosis to the
April 19, 2007 incident at work. In his April 23 and May 14, 2007 reports, Dr. Byrne related
appellant’s history that he injured his right ankle on April 19, 2007 while exiting a heavy
equipment vehicle. He noted that appellant had complained of pain ever since the incident had
occurred. In both of these reports Dr. Byrne placed appellant off work and then released him to
work with restrictions. He stated, in his August 22, 2007 report, that an MRI scan indicated
peroneus brevis tendinitis of the right ankle and advised in his March 4, 2008 report that he had
stopped treating appellant on November 19, 2007, as he was functioning at work without
difficulty. Dr. Byrne opined that appellant’s diagnosed right ankle condition, peroneus brevis
tendinitis, was a direct result of the April 2007 work injury based on reasonable medical
certainty.
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.11 Although Dr. Byrne presented a diagnosis of appellant’s
condition, he did not adequately address how this condition was causally related to the April 19,
2007 work incident. Dr. Lim’s April 19, 2007 disability note merely indicated that appellant was
kept out of work from April 19 to 20, 2007 due to leg pain. There is therefore insufficient
rationalized evidence in the record that appellant’s right ankle injury was work related.
Appellant failed to provide a rationalized, probative medical opinion relating his current
condition to any factors of his employment. Therefore, he failed to provide a report from a
physician that explains how the work incident of April 19, 2007 caused or contributed to the
claimed right ankle injury.
The Office advised appellant of the evidence required to establish his claim; however,
appellant failed to submit such evidence. Appellant did not provide a medical opinion which
describes or explains the medical process through which the April 19, 2007 work accident would
have caused the claimed injury. Accordingly, he did not establish that he sustained a right ankle
injury in the performance of duty. The Office properly denied appellant’s claim for
compensation.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a right ankle injury
in the performance of duty.
10

John J. Carlone, supra note 5.

11

See Anna C. Leanza, 48 ECAB 115 (1996).

5

ORDER
IT IS HEREBY ORDERED THAT the July 22, 2008 decision of the Office of
Workers’ Compensation Programs be affirmed as modified.
Issued: July 28, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6