United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, TX, Employer
__________________________________________

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

Docket No. 08-338
Issued: May 15, 2008

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 November 9, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 13, 2007 which denied her traumatic
injury claim. She also filed a timely appeal from the October 10, 2007 nonmerit decision which
denied her request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained a traumatic injury in the performance of
duty; and (2) whether the Office properly refused to reopen appellant’s claim for further review
of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 18, 2000 appellant, then a 28-year-old clerk, filed a traumatic injury claim
alleging that on May 15, 2000 she sustained a right shoulder injury after reaching with her right

hand in the performance of duty.1 A June 30, 2000 insurance benefits statement was also
submitted.
On August 9, 2007 the Office informed appellant that the information currently submitted
was insufficient and that additional factual and medical information was needed in order to
assess her claim.
Appellant responded in an August 23, 2007 letter and explained that she works in a
gatehouse at the postal facility and her job requires her to open the sliding window to receive
paperwork from the truck drivers as they enter and exit the facility. Additional information was
also submitted. On January 11, 1999 an arthrogram of the right and left wrists was performed
which found tears of the triangular fibrocartilage (TFC) in both wrists. In a February 16, 1999
operative report, Dr. E. Olayinka Ogunro, Board-certified in orthopedic and hand surgery,
diagnosed a rupture of the TFC ligament in the right wrist and stated that an arthroscopic
debridement of the TFC ligament was performed. A May 4, 1999 operative note from
Dr. Ogunro diagnosed TFC ligament tear in the left wrist and recorded that an arthroscopic
debridement of the TFC ligament was performed. In a November 18, 1999 progress note,
Dr. Ogunro diagnosed cubital tunnel on the left and early symptoms on the right. Dr. Ogunro
also opined that appellant was most likely using her left arm to open the sliding windows and
doors at work. In a May 31, 2000 progress note, Dr. Ogunro diagnosed bilateral carpal tunnel
syndrome and noted that appellant complained of pain all over her right forearm.
In a September 13, 2007 decision, the Office denied appellant’s traumatic injury claim
finding that while the event occurred as alleged the medical evidence failed to provide a
diagnosed condition connected to the event.
On September 19, 2007 appellant requested reconsideration and stated that additional
medical reports were included.2 No additional information was received.
In an October 10, 2007 nonmerit decision, the Office denied appellant’s request for
reconsideration finding that no new and relevant evidence was submitted nor any legal questions
raised which would require a merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act3 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 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

1

The Office received appellant’s claim on August 1, 2007.

2

Additional medical information was submitted after the October 10, 2007 decision. However, the Board cannot
consider new evidence for the first time on appeal. 20 C.F.R. § 501.2(c) (2004).
3

5 U.S.C. §§ 8101-8193.

2

for which compensation is claimed are 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 upon a traumatic injury or an occupational disease.5
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident that is allegedly to have occurred.6 The second
component is whether the employment incident caused a personal injury.7 Causal relationship is
a medical question that can generally be resolved only by rationalized medical opinion
evidence.8
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained a right shoulder condition when she was working in
a gatehouse on May 15, 2000. The Office accepted that the May 15, 2000 employment incident
occurred as alleged. Dr. Ogunro diagnosed her with bilateral carpal tunnel syndrome. The issue
is whether the accepted employment incident caused appellant’s right carpal tunnel syndrome.
The Board finds that the medical evidence fails to establish the requisite causal relationship
between the accepted incident and appellant’s diagnosed condition.
Physicians’ reports on or after May 15, 2000 are the only reports that can establish causal
relationship between the incident and the condition. Various reports diagnosed appellant with
left and right wrist conditions prior to the May 15, 2000 incident; however ,they are not relevant
to the issue on hand, whether the accepted employment incident caused an injury. Causal
relationship can only be established by rationalized medical evidence.9 Appellant’s own belief
that there is causal relationship between her claimed condition and her employment is not the
basis for an award of compensation.10
The medical reports submitted from Dr. Ogunro fail to provide a rationalized medical
opinion describing the causal relationship between appellant’s diagnosed condition and the
4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

Elaine Pendleton, supra note 4.

7

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

8

See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of causal relationship must be
based on a complete factual and medical background of the claimant. Victor J. Woodhams, supra note 5 at 352.
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a reasonable degree
of medical certainty and must be supported by medical rationale, explaining the nature of the relationship between
the diagnosed condition and the claimant’s specific employment factors. Id.
9

Calvin E. King, 51 ECAB 394 (2000).

10

Robert A. Boyle, 54 ECAB 381 (2003); Patricia J. Glann, 53 ECAB 159 (2001).

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May 15, 2000 incident. Dr. Ogunro diagnosed bilateral carpal tunnel syndrome but did not
provide an opinion as to the cause of this condition. 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.11 The Board has previously held that a physician’s opinion on the issue of
causal relationship must be based on a complete factual and medical background of the claimant.
In order to be considered rationalized, the opinion must be expressed in terms of a reasonable
degree of medical certainty and must be supported by medical rationale, explaining the nature of
the relationship between the diagnosed condition and the claimant’s specific employment
factors.12
The medical reports fail to provide the medical opinion on causal relation necessary to
demonstrate that appellant’s condition is related to the employment incident. As such, appellant
has failed to submit sufficient medical evidence to support her claim.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act, the Office’s regulations provide that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (1) shows that the Office erroneously applied or interpreted a specific point
of law; (2) advances a relevant legal argument not previously considered by the Office; or
(3) constitutes relevant and pertinent new evidence not previously considered by the Office.13
Section 8128(b) provides that when an application for reconsideration does not meet at
least one of the three requirements enumerated under section 10.606(b)(2), the Office will deny
the application for reconsideration without reopening the case for review on the merits.14
Evidence or argument that repeats or duplicates evidence previously of record has no evidentiary
value and does not constitute a basis for reopening a case.15 Likewise, evidence that does not
address a particular issue involved does not constitute a basis for reopening a case.16
ANALYSIS -- ISSUE 2
In the instant case, appellant has not met any of the criteria for reopening her case for
review on the merits. Her case was denied as she did not submit adequate medical evidence
establishing a causal relationship between her bilateral carpal tunnel and her employment
incident of opening a window. Appellant did not submit any evidence with her reconsideration
request. Furthermore, she did not provide any new legal arguments not previously considered by
11

Michael E. Smith, 50 ECAB 313 (1999).

12

Victor J. Woodhams, supra note 5.

13

20 C.F.R. § 10.606(b)(2)(i-iii).

14

20 C.F.R. § 10.606(b)(2).

15

Helen E. Paglinawan, 51 ECAB 407, 591 (2000).

16

Kevin M. Fatzer, 51 ECAB 407 (2000).

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the Office, nor did she show that the Office incorrectly applied a specific point of law. As she
has not met any of the requirements for reopening her case for merit review under section
8128(a) of the Act, the Office properly denied reconsideration of appellant’s case on the merits.
CONCLUSION
The Board finds that appellant failed to establish that she sustained a traumatic injury in
the performance of duty and that the Office properly denied reconsideration of appellant’s case
on the merits.
ORDER
IT IS HEREBY ORDERED THAT the October 10 and September 13, 2007 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 15, 2008
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Houston, TX, Employer
__________________________________________

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

Docket No. 16-1794
Issued: April 4, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 9, 2016 appellant filed a timely appeal from an August 17, 2016 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 established disability from April 17 to 23, 2016
causally related to her October 9, 2015 employment injury.
FACTUAL HISTORY
On October 12, 2015 appellant, then a 62-year-old transportation security screener, filed
a traumatic injury claim (Form CA-1) alleging that on October 9, 2015 she injured her left leg
1

5 U.S.C. § 8101 et seq.

and lower back lifting bags. Following her injury, she worked part time in a limited-duty
assignment. OWCP accepted the claim for a ligament sprain of the lumbar spine and paid wageloss compensation for intermittent time lost from work beginning December 17, 2015. On
January 27, 2016 Dr. Frank J. Kromelis, an attending Board-certified internist, released her to
resume work for eight hours per day with restrictions of not lifting over 15 pounds. OWCP
continued to pay appellant intermittent wage-loss compensation for medical appointments.
Appellant, on April 25, 2016, filed a claim for compensation (Form CA-7), requesting
wage-loss compensation from April 17 to 23, 2016.
By letter dated April 28, 2016, OWCP requested that appellant submit medical evidence
to establish that she was unable to perform her modified employment from April 17 to 23, 2016.
It noted that the evidence of record supported that the employing establishment had limited-duty
work available within the limitations set forth by her physician.
In a progress report dated April 15, 2016, Dr. Kromelis obtained a history of appellant
experiencing pronounced low back pain after lifting bags. He provided examination findings and
diagnosed a lumbar ligament sprain. Dr. Kromelis advised that appellant had been taken off
work by Dr. Stephen I. Esses, a Board-certified orthopedic surgeon.
In an April 15, 2016 work status form report, Dr. Kromelis determined that appellant
could resume work with restrictions on April 15, 2016, including no lifting more than 15 pounds.
Dr. Esses, in a work status form dated April 21, 2016, found that appellant could resume
work on April 24, 2016 with restrictions. The form provided the date of injury as October 9,
2015 and indicated that she experienced sharp pain in her low back after lifting bags.
In a report dated April 21, 2016, Dr. Esses reviewed a November 25, 2015 magnetic
resonance imaging (MRI) scan study showing L2-3 and L3-4 moderate stenosis and L4-5 severe
stenosis. He noted that an electromyogram (EMG) revealed radiculopathy on the left at L5-S1.
Dr. Esses opined that appellant’s condition had improved and that she could return to work with
restrictions, including no lifting over 10 pounds.
By decision dated August 17, 2016, OWCP denied appellant’s claim for compensation
from April 17 to 23, 2016. It found that she had not submitted rationalized medical evidence
supporting that she was unable to perform her light-duty work from April 17 to 23, 2016.
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.2 For each period of
disability claimed, the employee has the burden of proof to establish that she was disabled for
work as a result of the accepted employment injury.3 Whether a particular injury causes an

2

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986).

3

See Amelia S. Jefferson, id.

2

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.4
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.5 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.6 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages that she was receiving at
the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.7 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in her employment, she is entitled to compensation for any loss of wages.
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.8
ANALYSIS
OWCP accepted that appellant sustained a sprain of the ligaments of her lumbar spine
due to an October 9, 2015 employment injury. She worked limited duty following her injury.
On April 25, 2006 appellant filed a claim for compensation for lost time from work for the
period April 17 to 23, 2016. The employing establishment confirmed that there was work
available within her restrictions.
Appellant has the burden of proof to establish by the weight of the substantial, reliable,
and probative evidence, a causal relationship between her claimed disability for that period and
the accepted conditions.9 The Board finds that she failed to submit sufficient medical evidence
to establish employment-related disability for the period claimed due to her accepted injury.10
On April 15, 2016 Dr. Kromelis discussed appellant’s history of low back pain after
lifting bags. He diagnosed a lumbar ligament sprain and noted that Dr. Esses had taken her off
work. In a work status form dated April 15, 2016, Dr. Kromelis found that appellant could work
with restrictions of no lifting over 15 pounds. While he noted that Dr. Esses indicated that she
4

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

5

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); 20 C.F.R. § 10.5(f).

6

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

7

Merle J. Marceau, 53 ECAB 197 (2001).

8

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

9

See J.S., Docket No. 16-1014 (issued October 27, 2016).

10

See Alfredo Rodriguez, 47 ECAB 437 (1996).

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was not able to work, he did not render an independent finding of total disability but instead
released her to resume her modified employment.
Dr. Esses, on April 21, 2016, reviewed the findings of a November 25, 2015 MRI scan
study of moderate stenosis at L2-3 and L3-4 and severe stenosis at L4-5, and the findings on an
EMG study of left radiculopathy at L5-S1. He found that appellant had improved and that she
could resume with restrictions of no lifting over 10 pounds. Dr. Esses also completed a form
report on April 21, 2015 which indicated that she experienced low back pain after lifting bags
and provided the injury date as October 9, 2015. He determined that appellant could resume
work on April 24, 2016 with restrictions. Dr. Esses did not specifically address the dates of
disability claimed or provide medical rationale explaining whether and why she was disabled
from April 17 to 23, 2016. Consequently, his report is of little probative value.11
As noted, appellant must submit reasoned medical evidence directly addressing the
specific dates of disability for work for which she claims compensation.12 She did not provide
medical evidence containing a rationalized opinion supporting that she could not work from
April 17 to 23, 2016 due to her accepted condition, and thus did not meet her burden of proof.
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established disability from April 17 to 23, 2016
causally related to her October 9, 2015 employment injury.

11

See C.S., Docket No. 08-22178 (issued August 7, 2009); Sandra D. Pruitt, 57 ECAB 126 (2005).

12

See K.A., Docket No. 16-0592 (issued October 26, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the August 17, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 4, 2017
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
P.B., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU, Dallas, TX, Employer
__________________________________________

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

Docket No. 11-1884
Issued: April 9, 2012

Case Submitted on the Record

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

JURISDICTION
On August 15, 2011 appellant filed a timely appeal from an April 22, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that her left hip,
left leg and low back conditions are causally related to a May 4, 2010 employment incident, as
alleged.
FACTUAL HISTORY
On May 19, 2010 appellant, then a 61-year-old census enumerator, filed a traumatic
injury (Form CA-1) alleging that while in the performance of duty on May 4, 2010 she sustained
1

5 U.S.C. § 8101 et seq.

a left hip, left leg and low back injury after being hit by a car door due to a gust of wind while
reaching into a vehicle to retrieve work materials.
By letter dated June 4, 2010, OWCP requested additional factual and medical evidence.
It allotted appellant 30 days to submit additional evidence and respond to its inquiries.
In a June 9, 2010 report, Dr. Mark L. McClanahan, a Board-certified family medicine
osteopath, diagnosed left hip pain secondary to sacroilitis and sciatica, possibly related to
radiculopathy. He reported that appellant’s left hip pain was described more as posterior in
nature, but at times radiated down the posterior leg all the way to the heel. Dr. McClanahan
noted that she had been on treatment for sciatica and that the precipitating injury was that she
was bumped by a car door.
On June 16, 2010 Dr. McClanahan diagnosed left hip pain secondary to
sciatica/radiculitis and lumbar region pain. He reported some mild tenderness about the left
sciatic nerve and reiterated that the apparent precipitating event was the car door hitting her hip.
On June 30, 2010 Dr. McClanahan reiterated his diagnoses and placed appellant in
limited-duty work status.
Appellant also submitted physical therapy notes dated May 17 to 28, 2010.
By decision dated July 8, 2010, OWCP denied appellant’s claim on the basis that the
factual and medical evidence submitted was insufficient to establish causal relationship between
the diagnosed conditions and the May 4, 2010 employment incident.
On July 22, 2010 appellant requested reconsideration and submitted additional evidence,
including two May 13, 2010 radiological reports demonstrating a normal left hip and osteopenia
of the lumbar spine. In a July 14, 2010 report, Dr. McClanahan indicated that upon her
presentation on May 10, 2010 she reported that the wind blew her car door, causing it to strike
her and twist her back. Appellant had symptoms since that time. Dr. McClanahan opined that
her injury was employment related and that a medical provider could not be expected to provide
any more evidence other than a patient’s subjective history of injury. Appellant reported that she
did report the injury to her supervisor, which in Dr. McClanahan’s opinion, further substantiated
her claim. In a second July 14, 2010 report, Dr. McClanahan reiterated his diagnoses and
increased her work status to where she could work eight hours a day with a 25-pound lifting
restriction. In a July 30, 2010 report of medical evaluation, he indicated that appellant had
reached maximum medical improvement that same day and checked a box indicating his
certification that she did not have any permanent impairment as a result of the May 4, 2010
injury.
Appellant also submitted reports by Lisa Allen, a physician’s assistant, dated May 10
to 28, 2010.
By decision dated September 24, 2010, OWCP denied modification of a July 20, 2007
decision regarding appellant’s occupational disease claim, which was doubled under the current
claim.

2

On February 17, 2011 appellant requested reconsideration and submitted a narrative
statement from that same day, a map of the area where she was working during the employment
incident and a wind data report of the area on May 4, 2010.
By decision dated April 22, 2011, OWCP affirmed its July 8, 2010 decision, noting that
this decision superseded the decision dated September 24, 2010. It found that the evidence
submitted failed to establish causal relationship between the May 4, 2010 employment incident
and the claimed medical conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury3 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.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.
A fact of injury determination is based on two elements. 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. 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. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.5
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
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.6
2

Id. at §§ 8101-8193.

3

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
4

T.H., 59 ECAB 388 (2008).
1143 (1989).

See Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB

5

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

6

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

3

ANALYSIS
OWCP has accepted that the employment incident of May 4, 2010 occurred at the time,
place and in the manner alleged. The issue is whether appellant’s left hip, left leg and low back
conditions resulted from the May 4, 2010 employment incident. The Board finds that she did not
meet her burden of proof to establish a causal relationship between the conditions for which
compensation is claimed and the May 4, 2010 employment incident.
In his reports, Dr. McClanahan diagnosed left hip pain and lumbar region pain. He
reported that a wind blew appellant’s car door and caused it to strike her and twist her hip and
back. On July 14, 2010 Dr. McClanahan opined that her injury was employment related and that
a medical provider could not be expected to provide any more evidence other than a patient’s
subjective history of injury. Appellant reported that she did report the injury to her supervisor,
which in Dr. McClanahan’s opinion, further substantiated her claim. On July 30, 2010
Dr. McClanahan indicated that she had reached maximum medical improvement that same day
and checked a box indicating his certification that appellant did not have any permanent
impairment as a result of the May 4, 2010 injury. The Board has held that medical evidence that
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.7 The Board finds that Dr. McClanahan failed to
directly address the issue of causal relationship as he did not explain how the mechanism of the
May 4, 2010 employment incident caused or aggravated appellant’s conditions. Dr. McClanahan
did not provide medical rationale explaining how appellant’s left hip, left leg and low back
conditions were caused or aggravated by being struck by a car door on May 4, 2010. Lacking
thorough medical rationale on the issue of causal relationship, the reports are of limited probative
value and not sufficient to establish that appellant sustained an employment-related injury in the
performance of duty on May 4, 2010.
The May 13, 2010 radiological reports are diagnostic in nature and therefore do not
address causal relationship. The reports from Ms. Allen, a physician’s assistant, are of no
probative value as she is not a physician under FECA.8 Similarly, the physical therapy notes
dated May 17 to 28, 2010 do not constitute medical evidence as they were not prepared by a
physician.9 As such, the Board finds that appellant did not meet her burden of proof with these
submissions.
In support of her February 17, 2011 request for reconsideration, appellant submitted a
map of the area where she was working during the employment incident and a wind data report
of the area on May 4, 2010. However, causal relationship is a medical question that can
generally be resolved only by rationalized medical opinion evidence.10 These documents do not
7

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

8

5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N. Fassi,
42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).
9

Physical therapists are not physicians under FECA. See 5 U.S.C. § 8101(2).

10

See Robert G. Morris, 48 ECAB 238 (1996).

4

constitute medical evidence and appellant’s submission thereof is insufficient to establish causal
relationship.
As appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained an injury causally related to a May 4, 2010 employment incident,
she has failed to meet her burden of proof.
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 submitted sufficient rationalized medical opinion
evidence to establish that her left hip, left leg and low back conditions were sustained on May 4,
2010 in the performance of duty, as alleged. Therefore, appellant has failed to meet her burden
of proof to establish a claim for compensation.
ORDER
IT IS HEREBY ORDERED THAT the April 22, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 9, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Coram, NY, Employer
__________________________________________

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

Docket No. 18-1322
Issued: January 2, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 20, 2018 appellant filed a timely appeal from a January 9, 2018 merit decision and
an April 23, 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 this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a left
shoulder condition causally related to the accepted July 6, 2016 employment incident; and
(2) whether OWCP properly denied appellant’s request for further review of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 6, 2016 appellant, then a 44-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date he injured his left shoulder lifting a parcel while in the
performance of duty. He explained that around 9:30 a.m. he was attempting to lift a parcel out of
a hamper when he felt something painful in his left shoulder. The parcel was reportedly very
bottom heavy, but was not marked as “heavy.” Appellant stopped work on July 6, 2016 and
resumed full-time, regular duty on August 1, 2016.
On the same date the employing establishment issued an authorization for examination
and/or treatment (Form CA-16).2 Appellant submitted a report dated July 6, 2016 from a nurse
practitioner, which noted that he had injured his left shoulder at work when he picked up a package
and assessed a left shoulder impingement or dysfunction. In a duty status report (Form CA-17)
dated July 6, 2016, the nurse practitioner indicated that appellant was not advised to return to work
and assessed a left shoulder impingement. She noted that appellant stated that he hurt his left
shoulder lifting a parcel from a hamper.
In a July 20, 2016 development letter, OWCP informed appellant that he had not submitted
sufficient evidence to establish his claim. First, it noted that he had not submitted sufficient
evidence to establish a diagnosis of a condition resulting from his employment incident. OWCP
advised appellant to submit a narrative report from a physician, including diagnoses and a
rationalized medical opinion on causal relationship. It also requested additional information
regarding similar disability or symptoms before the claimed injury of July 6, 2016. OWCP
afforded appellant 30 days to submit the requested evidence.
A July 18, 2016 x-ray demonstrated a normal left shoulder.
In a July 22, 2016 duty status report (Form CA-17), Dr. Antoun S. Mitromaras, Boardcertified in urgent care medicine, diagnosed left shoulder sprain and advised that appellant could
work part time (six hours) “only desk job” for one week. The restrictions included simple grasping
no more than five hours per day, no pushing/pulling, no reaching above shoulder, and only one
hour of driving.
In a duty status report dated July 29, 2016, a nurse practitioner assessed a resolved left
shoulder impingement. The duty status report dated July 29, 2016, noted that appellant could
return to full-time work on August 1, 2016 without restrictions.3
In a report dated August 5, 2016, Dr. Mitromaras examined appellant for complaints of left
shoulder pain. He noted that appellant was experiencing less pain and diagnosed left shoulder
2

When the employing establishment properly executes a Form CA-16 which authorizes medical treatment as a
result of an employee’s claim for an employment-related injury, the Form CA-16 creates a contractual obligation,
which does not involve the employee directly, to pay for the cost of the examination or treatment regardless of the
action taken on the claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days from
the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB
608, 610 (2003).
3

The signature of the nurse practitioner on the duty status report is illegible.

2

impingement -- resolved. Dr. Mitromaras checked a box indicating that the incident described by
appellant was the competent cause of his diagnosis and advised that appellant could return to work
on August 1, 2016 without restrictions.
By decision dated August 25, 2016, OWCP denied appellant’s claim finding that he had
not submitted medical evidence containing a diagnosis in connection with the claimed incident of
July 6, 2016.
On November 17, 2016 appellant requested reconsideration of OWCP’s August 25, 2016
decision. With his request for reconsideration, he submitted the attending physician’s report from
the Form CA-16 dated November 7, 2016 from Dr. Mitromaras. Dr. Mitromaras examined
appellant for complaints of pain in the left shoulder and noted that appellant had told him it
occurred when lifting a package. He diagnosed left shoulder sprain and noted that appellant was
totally disabled from July 6 through 29, 2016. Dr. Mitromaras checked a box marked “yes” noting
that he believed that the left shoulder sprain was caused or aggravated by the described
employment activity.
By decision dated February 14, 2017, OWCP reviewed the merits of appellant’s claim and
denied modification. It found that he had submitted sufficient evidence to establish a diagnosis of
left shoulder strain. However, OWCP denied his claim because he had not submitted a wellreasoned medical explanation with supporting objective findings as to how the incident of July 6,
2016 directly caused or aggravated his left shoulder strain.
On March 13, 2017 appellant requested reconsideration of OWCP’s February 14, 2017
decision. With his request, he resubmitted the duty status reports of July 6 and 29, 2016 with
added counter-signatures from Dr. Mitromaras.
By decision dated May 15, 2017, OWCP reviewed the merits of appellant’s claim and
affirmed its decision of February 14, 2017. It noted that none of the evidence submitted on
reconsideration contained an explanation of how his diagnosed left shoulder impingement was
caused or aggravated by lifting a single parcel from a hamper.
On June 14, 2017 appellant requested reconsideration of OWCP’s May 15, 2017 decision.
With his request, he submitted a June 2, 2017 addendum to the report of July 6, 2016, which had
been counter-signed by Dr. Mitromaras. Dr. Mitromaras noted that on July 6, 2016 a physical
examination revealed reduced range of motion of the left shoulder. He noted that left shoulder
pain presented immediately after lifting a package at work that morning. Dr. Mitromaras
explained that it was clear that lifting a box “high” on July 6, 2016 at work was the immediate
cause of appellant’s instantaneous pain.
By decision dated January 9, 2018, OWCP reviewed the merits of appellant’s claim and
found that the June 2, 2017 addendum had not provided a well-rationalized opinion as to how the
work incident of July 6, 2016 had directly caused or aggravated appellant’s conditions, and that it
was insufficient for Dr. Mitromaras to merely indicate that his condition was caused by lifting a
box without providing further medical reasoning.
On March 9, 2018 appellant requested reconsideration of OWCP’s January 9, 2018
decision. With his request, he resubmitted the addendum from Dr. Mitromaras dated June 2, 2017.
3

By decision dated April 23, 2018, OWCP denied appellant’s request for reconsideration.
It noted that the addendum of June 2, 2017 was already in the case file as of the decision of
January 9, 2018 and was discussed in that decision. As such, OWCP found that the evidence
submitted on reconsideration was repetitious.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 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 timely filed within the applicable
time limitation period of FECA, that an injury5 was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether “fact of injury” has been established. A
fact of injury determination is based on two elements. 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. 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. An employee may establish that the employment incident occurred as alleged, but fail to
show that his or her condition relates to the employment incident.7
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.8 A physician’s opinion on whether there is a causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.9 Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty, and must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).10

4

Supra note 1.

5

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the body
affected. 20 C.F.R. § 10.5(ee).
6

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40 ECAB
1143, 1145 (1989).
7

See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

8

Robert G. Morris, 48 ECAB 238 (1996).

9

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10

Id.

4

Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.11
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.12
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a left shoulder
condition causally related to the accepted July 6, 2016 employment incident.
In support of his claim appellant submitted medical reports, including a series of reports
from his attending physician Dr. Mitromaras. In a June 2, 2017 addendum to his report of July 6,
2016, Dr. Mitromaras noted that on July 6, 2016 a physical examination revealed reduced range
of motion of the left shoulder. He noted that left shoulder pain presented immediately after lifting
a package at work that morning. Dr. Mitromaras explained that it was clear that lifting a box on
July 6, 2016 at work was the immediate cause of appellant’s instantaneous pain.
Neither the mere fact that a disease or condition manifests itself during a period of
employment, nor the belief that the disease or condition was caused or aggravated by employment
factors or incidents is sufficient to establish causal relationship.13 As noted above, to establish
causal relationship between a condition and an employment event or incident, the employee must
submit rationalized medical opinion evidence based on a complete factual and medical
background, supporting such causal relationship.14 Dr. Mitromaras provided no rationale to
support his opinion that lifting a box on July 6, 2016 was the immediate cause of appellant’s left
shoulder conditions. His opinion was conclusory in nature and failed to explain in detail how the
left shoulder condition was caused by the incident of July 6, 2016.15 A mere conclusory opinion
provided by a physician without the necessary rationale explaining how and why the incident was
sufficient to result in the diagnosed medical condition is insufficient to meet a claimant’s burden
of proof to establish a claim.16 As such, the addendum of June 2, 2017 was insufficient to establish
a causal relationship between appellant’s conditions and the incident of July 6, 2016.
In a report dated August 5, 2016 and in duty status reports dated July 6 and 29, 2016,
Dr. Mitromaras noted that appellant told him that the injury occurred due to lifting a parcel at
work, diagnosed left shoulder impingement, and advised that appellant follow work restrictions.
The Board has found that medical evidence offering no opinion about the cause of an employee’s
11

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

12

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician
assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified physician.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
13

Dennis M. Mascarenas, 49 ECAB 215 (1997).

14

Supra note 9.

15

See D.O., Docket No. 18-0086 (issued March 28, 2018).

16

J.D., Docket No. 14-2061 (issued February 27, 2015).

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condition is of no probative value on the issue of causal relationship.17 While Dr. Mitromaras
reviewed appellant’s history of injury in these reports, he did not offer a clear opinion on the cause
of appellant’s diagnosed conditions. Rather, he merely repeated the history of injury given to him
by appellant, without offering rationale of his own on the issue of causal relationship.18 As such,
these reports are insufficient to establish causal relationship.
Appellant submitted several reports that were signed by a nurse practitioner, but not
counter-signed by a physician. These reports do not qualify as probative medical evidence, as they
were not signed by a qualified physician.19
The issue of a causal relationship between appellant’s claimed conditions and a workrelated incident is a medical question that must be established by probative medical opinion from
a physician.20 In this case, the Board finds that none of the medical evidence appellant submitted
constitutes rationalized medical evidence sufficient to establish causal relationship between the
work incident and his diagnosed conditions.21 Accordingly, the Board finds that appellant has not
met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.22 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.23 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.24
A timely application for reconsideration, including all supporting documents, must set forth
17

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

18

See G.O., Docket No. 16-0311 (issued June 14, 2016); K.W., Docket No. 10-0098 (issued September 10, 2010).

19
Supra note 12. Certain healthcare providers such as physician assistants, nurse practitioners, physical therapists,
and social workers are not considered physicians as defined under FECA. R.B., Docket No. 17-0890 (issued
October 18, 2017).
20

W.W., Docket No. 09-1619 (issued June 2010); David Apgar, 57 ECAB 137 (2005).

21

See T.C., Docket No. 16-0586 (issued August 9, 2016); Patricia J. Bolleter, 40 ECAB 373 (1988).

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 his own motion or on application.” 5 U.S.C. § 8128(a).
22

23

20 C.F.R. § 10.607.

24

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 OWCP’s 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 (iFECS). Id. at Chapter 2.1602.4b.

6

arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.25 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.26
ANALYSIS -- ISSUE 2
On March 9, 2018 appellant requested reconsideration of OWCP’s January 9, 2018
decision, which denied appellant’s claim because he had not submitted sufficient evidence to
establish causal relationship between his diagnosed left shoulder conditions and the incident of
July 6, 2016. By decision dated April 23, 2018, OWCP denied further merit review. The issue
presented on appeal is whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3),
thereby warranting further merit review.
In his request for reconsideration, appellant did not show that OWCP erroneously applied
or interpreted a specific point of law or advance a relevant legal argument not previously
considered by OWCP. Thus, he was not entitled to a review of the merits based on the first and
second requirements under section 10.606(b)(3).27
Appellant also failed to submit any relevant and pertinent new evidence with the March 9,
2018 request for reconsideration. The underlying issue in this case is whether appellant submitted
sufficient evidence to establish a causal relationship between his diagnosed left shoulder
conditions and the incident of July 6, 2016. On reconsideration appellant resubmitted the June 2,
2017 addendum from Dr. Mitromaras, which had previously been considered and discussed in
OWCP’s January 9, 2018 decision. Providing additional evidence that either repeats or duplicates
information already in the record does not constitute a basis for reopening a claim.28 Because
appellant did not provide relevant and pertinent new evidence he was not entitled to a review of
the merits based on the third requirement under section 10.606(b)(3).29 Accordingly, OWCP
properly denied appellant’s request for reconsideration under 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left shoulder
condition causally related to the accepted July 6, 2016 employment incident. The Board further

25

20 C.F.R. § 10.606(b)(3).

26

Id. at § 10.608(a), (b).

27

Id. at § 10.606(b)(3)(i) and (ii).

28

James W. Scott, 55 ECAB 606, 608 n.4 (2004).

29

20 C.F.R. § 10.606(b)(3)(iii).

7

finds that OWCP properly denied appellant’s request for review of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 23 and January 9, 2018 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 2, 2019
Washington, DC

Christopher J. Godfrey, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bend, OR, Employer
__________________________________________

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

Docket No. 12-1898
Issued: March 1, 2013

Case Submitted on the Record

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

JURISDICTION
On September 14, 2012 appellant filed a timely appeal of June 4 and August 30, 2012
merit decisions 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.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she was
entitled to disability compensation for the period April 16 to May 4, 2012; and (2) whether
OWCP properly denied appellant’s request for reconsideration under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 1, 2012 appellant, then a 59-year-old custodian, slipped and fell while in the
performance of duty. OWCP accepted her traumatic injury claim for head contusion. Appellant
received continuation of pay (COP) for the period March 2 to April 15, 2012.2
Appellant filed claims for disability compensation for the combined period April 16 to
May 4, 2012 and submitted medical evidence. In an April 6, 2012 report, Dr. Anthony G.
Hadden, Jr., a Board-certified neurological surgeon, related that appellant sustained intermittent
headaches and dizziness due to the March 1, 2012 work injury. On examination, he observed
frontal scar and tenderness of the occiput and cervical spine. Computerized tomography (CT)
scans of the head and neck that were obtained on March 1, 2012 showed soft tissue edema as
well as cervical degenerative disc disease and facet arthrosis. Dr. Hadden diagnosed brain
concussion syndrome, cervical sprain, cervicalgia and memory loss. He advised that appellant
be placed off duty from April 6 to May 6, 2012.3
In an April 6, 2012 report, Fran Manti, a physical therapist, evaluated appellant and found
cervical nerve root compression, increased thoracic kyphosis, right scapula pain, right latissimus
dorsi muscle weakness and right rhomboid, trapezius, and scalene muscle tenderness and trigger
points. She opined that appellant could not perform her normal maintenance duties for the
employing establishment as she was unable to lift or carry heavy items, twist her neck while
driving, or use her right upper extremity to reach out or above her head.
By decision dated June 4, 2012, OWCP denied appellant’s compensation claim, finding
that the medical evidence did not sufficiently establish total disability for the period April 13 to
May 4, 2012.
Appellant requested reconsideration on August 21, 2012. She submitted a copy of
Ms. Manti’s April 6, 2012 report that was cosigned by Dr. Hadden.4 By decision dated
August 30, 2012, OWCP denied appellant’s request on the grounds that it did not receive new
and relevant evidence warranting further merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA bears 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 must establish 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.5 Such medical
2

The case record indicates that appellant received disability compensation for the period May 5 to 22, 2012.

3

A May 4, 2012 follow-up report from Dr. Hadden noted that appellant exhibited improvement and released her
to regular duty effective May 23, 2012.
4

Appellant also provided copies of Dr. Hadden’s April 16 and May 4, 2012 reports, March 1, 2012 emergency
department charts and various medical records from January 28, 2009 to November 17, 2010.
5

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

2

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.6
Monetary compensation benefits are payable to an employee who has sustained wage loss
due to disability for employment resulting from the employment injury.7 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.8
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained head contusion while in the performance of duty
on March 1, 2012 and granted COP for the period March 2 to April 15, 2012. Thereafter,
appellant filed multiple claims for disability compensation for the combined period April 16 to
May 4, 2012.
The Board finds that appellant did not establish her entitlement to disability
compensation because the medical evidence did not sufficiently demonstrate that she was
disabled for the period April 16 to May 4, 2012 due to her accepted condition. In an April 6,
2012 report, Dr. Hadden related that appellant remained symptomatic as a result of the March 1,
2012 work injury. Following a physical examination and review of the medical file, he
diagnosed brain concussion syndrome, cervical sprain, cervicalgia, and memory loss and
recommended that appellant refrain from working from April 6 to May 6, 2012. Although
Dr. Hadden opined that appellant was disabled, he did not offer adequate medical rationale
setting forth the pathophysiological mechanism by which her head contusion rendered her unable
to perform her regular duties as a custodian.9 Medical reports consisting solely of conclusory
statements without supporting rationale are of diminished probative value.10
In addition, a medical issue such as disability can only be resolved through the
submission of probative medical evidence from a qualified physician.11 Ms. Manti’s April 6,
2012 report, which was not originally cosigned by a physician, did not constitute competent
medical evidence because a physical therapist is not a “physician” as defined under FECA.12 In
view of the totality of the evidence, the Board finds that appellant did not discharge her burden
of proof.
6

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

7

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

8

Jefferson, supra note 5.

9

Emma R. Bowman, Docket No. 94-2431 (issued September 13, 1996); Arita M. Cruz, Docket No. 94-1694
(issued June 11, 1996).
10

William C. Thomas, 45 ECAB 591 (1994).

11

A.D., Docket No. 10-1837 (issued May 10, 2011). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949).

12

5 U.S.C. § 8101(2); Jennifer L. Sharp, 48 ECAB 209 (1996).

3

LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,13
OWCP’s regulations provide that the evidence or argument submitted by a claimant must either:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.14 Where the request for
reconsideration fails to meet at least one of these standards, OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.15
ANALYSIS -- ISSUE 2
On August 21, 2012 appellant timely filed a request for reconsideration of the June 4,
2012 merit decision. She submitted a copy of Ms. Manti’s April 6, 2012 report that was
cosigned by Dr. Hadden, inter alia. OWCP denied the request on August 30, 2012, finding that
appellant did not offer new evidence warranting further merit review.
The Board finds that the copy of the April 6, 2012 physical therapy report, signed by
Dr. Hadden, constitutes relevant and pertinent new evidence not previously considered by
OWCP.
The Board notes that Ms. Manti’s original report was received and considered by OWCP
prior to issuance of the June 4, 2012 merit decision. At that point, it did not constitute competent
medical evidence because it was not cosigned by a qualified physician.16 The copy subsequently
furnished by appellant was signed by both Ms. Manti and Dr. Hadden. The Board has held that
medical documents from a nonphysician may be considered probative if cosigned by a
physician.17 Because the copy of the April 6, 2012 physical therapy report contains
Dr. Hadden’s signature, it constitutes new competent medical evidence that may be assessed for
its probative value.
The underlying issue of the June 4, 2012 merit decision was whether appellant was
unable to perform her regular job duties from April 16 to May 4, 2012 due to her accepted head
contusion. In the April 6, 2012 report, Ms. Manti opined that she could not perform her
maintenance duties for the employing establishment. Since the report addressed the relevant
issue, OWCP was obligated to conduct a merit review of the claim. Reopening a claim for merit
review does not require a claimant to submit all evidence that may be necessary to discharge her
burden of proof.18 If OWCP should determine that the new evidence submitted lacks probative
13

5 U.S.C. § 8128(a).

14

E.K., Docket No. 09-1827 (issued April 21, 2010). See 20 C.F.R. § 10.606(b)(2).

15

L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.608(b).

16

See supra notes 11 and 12.

17

S.R., Docket No. 12-126 (issued June 1, 2012); Rosita F. Brown, Docket No. 03-1076 (issued July 1, 2003);
Federal (FECA) Procedure Manual, Part 3 -- Medical, Overview, Chapter 3.100.3(c) (March 2010).
18

Kenneth R. Mroczkowski, 40 ECAB 855 (1989); Helen E. Tschantz, 39 ECAB 1382 (1988).

4

value, it may deny modification of the prior decision, but only after the case has been reviewed
on the merits.19
On remand OWCP shall conduct a merit review of the case, further develop the record as
necessary and issue an appropriate merit decision.
CONCLUSION
The Board finds that appellant did not establish that she was entitled to disability
compensation for the period April 16 to May 4, 2012. The Board also finds that OWCP
improperly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the June 4, 2012 decision of the Office of Workers’
Compensation Programs be affirmed. The August 30, 2012 decision of OWCP is set aside and
the case remanded for further merit review.
Issued: March 1, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

19

Dennis J. Lasanen, 41 ECAB 933 (1990).

5


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

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Appearances:
Edward L. Daniel, for the appellant
Office of Solicitor, for the Director

Docket No. 09-1235
Issued: April 13, 2010

Case Submitted on the Record

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

JURISDICTION
On April 10, 2009 appellant, through her representative, filed a timely appeal of the
decisions of the Office of Workers’ Compensation Programs dated September 15, 2008 and
March 19, 2009. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of this case.
ISSUE
The issue is whether appellant has more than 24 percent impairment of her right upper
extremity and 8 percent impairment of her left upper extremity, for which she received schedule
awards.
On appeal, appellant’s representative notes that there is a dispute between the opinion of
appellant’s physician and the Office medical adviser and that therefore appellant should be
referred to an impartial medical examiner to resolve the conflict.

FACTUAL HISTORY
This is the second time this case has been before this Board. The facts and the law as set
forth in the Board’s prior decision are hereby incorporated by reference.1 The relevant facts are
set forth below.
The Office accepted appellant’s claim for right shoulder tendinitis, right shoulder
impingement syndrome and left shoulder impingement syndrome. On August 5, 2002 appellant
underwent an arthroscopy with debridement of joint, debridement of labral tear and subacromial
decompression with distal clavicle excision of the right shoulder. On August 19, 2003 she
underwent an open Bankart repair and anterior glenoid based capsular shift.
On July 18, 2008 appellant filed a claim for a schedule award. In support thereof,
appellant submitted a May 19, 2008 report wherein Dr. John W. Ellis, a Board-certified family
practitioner, diagnosed appellant with bilateral shoulder strain and tendinitis; bilateral shoulder
impingement and rotator cuff syndrome and bilateral brachial plexus impingement. Dr. Ellis
opined that these conditions arose out of appellant’s employment and that appellant had reached
maximum medical improvement in July 2005. He assessed regional impairment due to her
combined injuries to her thumb/fingers, wrist, elbow and shoulder as 24 percent for the right
upper extremity based on 15 percent impairment due to decreased shoulder range of motion
based on the American Medical Association, Guides to the Evaluation of Permanent Impairment
(5th ed. 2001) (“A.M.A., Guides”), 474-79, Figures 16-38 to 462 and 10 percent impairment
based on resection arthroplasty distal clavicle, pursuant to the A.M.A., Guides 506, Table 16-27.
Dr. Ellis then added five percent based on brachial plexus pursuant to page 490, Table 16-14.3
Using the Combined Values Chart he determined that appellant had 28 percent impairment to her
right upper extremity. With regard to the left upper extremity, Dr. Ellis found eight percent
decreased shoulder range of motion based on the A.M.A., Guides 475-79, Figures 16-38 to 46.4
1

Docket No. 06-609 (issued December 27, 2006).

2

In accompanying worksheets, Dr. Ellis noted that in appellant’s right shoulder she had 116 degrees of flexion
for five percent impairment and 41 degrees of extension for one percent impairment or a total impairment of six
percent. A.M.A., Guides 476, Figure 16-40. Dr. Ellis further noted 29 degrees of adduction for one percent
impairment and 101 degrees of abduction for four percent impairment for a total impairment of five percent.
A.M.A., Guides 477, Figure 16-43. Dr. Ellis then noted 18 degrees of internal rotation for four percent impairment
and 81 degrees of external rotation for zero percent impairment for an impairment of four percent. A.M.A., Guides
479, Figure 16-46. Adding the sum of these figures (6 percent plus 5 percent plus 4 percent), Dr. Ellis determined
that appellant had a 15 percent impairment to the right upper extremity based on decreased range of motion.
3

In his accompanying worksheets, Dr. Ellis, in evaluating brachial plexus in appellant’s right upper extremity,
found a Grade 4 impairment due to sensory deficit or pain, A.M.A., Guides 482, Table 16-10 and a Grade 4
impairment due to motor/loss of power deficits, A.M.A., Guides 484, Table 16-11. He then calculated that, pursuant
to the A.M.A., Guides 490, Table 16-14, appellant was entitled to three percent impairment for sensory pain and two
percent impairment for motor loss for a total impairment of five percent for brachial plexus for her right shoulder.
4

In accompanying worksheets, Dr. Ellis found 123 degrees of flexion in appellant’s left shoulder for four percent
impairment and 55 degrees of extension for zero percent impairment. A.M.A., Guides 476, Figure 16-40. Dr. Ellis
further found 47 degrees of adduction for zero percent impairment and 114 degrees of abduction for three percent
impairment. A.M.A., Guides 477, Figure 16-43. Dr. Ellis then noted 41 degrees of internal rotation in the left
shoulder for three percent impairment and 66 degrees of external rotation for one percent impairment. A.M.A.,
Guides 479, Figure 16-46.

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He then found appellant entitled to two percent impairment based on brachial plexus pursuant to
page 490, Table 16-14 of the A.M.A., Guides.5 Applying the Combined Values Chart, he
determined that appellant had an impairment rating of 10 percent for her left upper extremity.
On August 6, 2008 the Office referred the case to the Office medical adviser to calculate
appellant’s impairment. In a report dated August 17, 2008, the Office medical adviser calculated
appellant’s impairment as 24 percent of the right upper extremity and 8 percent of the left upper
extremity. He noted that the Office had not accepted appellant’s claim for entrapment
neuropathies in the peripheral right and left upper extremities. The Office medical adviser
opined that the evidence does not support that appellant had any condition affecting either upper
extremity except for right and left shoulder impingement syndrome. He found that the right
upper extremity impairment was derived by combining the impairment rating for range of
motion limitation of 15 percent as shown in Dr. Ellis’ report with the 10 percent due to a distal
clavicle excision as discussed on pages 505 and 506 of the A.M.A., Guides. Combining these
two figures using the Combined Values Chart, the Office medical adviser determined that
appellant had 24 percent impairment of her right upper extremity. With regard to the left upper
extremity, he found that Dr. Ellis’ rating of eight percent for decreased shoulder range of motion
was appropriate under the A.M.A., Guides, and represented appellant’s impairment rating for her
left upper extremity.
By decision dated September 15, 2008, the Office issued a schedule award for 24 percent
impairment of the right upper extremity and 8 percent impairment of the left upper extremity.
On December 22, 2008 appellant, through her representative, filed a request for
reconsideration. In support thereof, appellant submitted a December 19, 2008 report wherein
Dr. Ellis indicated that the Office medical adviser did not mention the fact that the total
combined value was 28 percent to the right upper extremity and 10 percent of the left upper
extremity in accordance with the Combined Values Chart of the A.M.A., Guides, pages 604-06.
The Office forwarded this report to the Office medical adviser on February 5, 2009 and
requested that he determine if this report was sufficient to revise the impairment ratings. In a
report dated February 16, 2009, the Office medical adviser found that Dr. Ellis’ findings for a
greater schedule award based on brachial plexus was not substantiated by his examination
findings. He noted, “The only possible finding that may have been the basis of the claimed
‘brachial plexus’ add on was ‘gentle pressure’ on the [left] trapezius and some tingling in the
little and ring fingers.” The Office medical adviser noted that based on normal anatomy, this
reported subjective response to the assessment process was nonphysiologic. He found that
Dr. Ellis provided ratings for brachial plexus weakness, which are not explained in the
examination findings as a consequence of weakness due to permanent damage to the motor
function of the brachial plexus. Moreover, the Office medical adviser noted that when the
resection arthoplasty method is used to offer the impairment rating, the only other factor of
assessment permitted according to section 16.76 of the A.M.A., Guides, is range of motion. He
concluded that appellant was not entitled to an increase in schedule award.

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Dr. Ellis noted in his worksheet that appellant had a Grade 4 sensory impairment, A.M.A., Guides 482, Table
16-10, and a Grade 4 impairment based on motor loss, A.M.A., Guides 484, Table 16-11. He then calculated that
appellant had two percent impairment based on brachial plexus in the left upper extremity. A.M.A., Guides 490,
Table 16-14.

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By decision dated March 19, 2009, the Office denied modification of its prior decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act6 and its
implementing regulations7 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of schedule members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants, the
Office has adopted the A.M.A., Guides as the uniform standard applicable to all claimants.8 The
A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard
for evaluating schedule losses.9
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make such an examination.10 Where a case is referred
to an impartial medical specialist for the purpose of resolving a conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual and medical background,
must be given special weight.11
ANALYSIS
In the instant case, the Office accepted appellant’s claim for right shoulder tendinitis,
right shoulder impingement syndrome and left shoulder impingement syndrome. The Office
issued a schedule award based on 24 percent impairment of appellant’s right upper extremity and
an 8 percent impairment of appellant’s left upper extremity. Appellant contends that she is
entitled to a greater award as Dr. Ellis indicated that she had 28 percent impairment to her right
upper extremity and 10 percent impairment of her upper left extremity.
The Board finds that this case is not in posture for decision due to an unresolved conflict
between Dr. Ellis, appellant’s physician, and the Office medical adviser with regard to the degree
of impairment in appellant’s upper extremities. The Office medical adviser and Dr. Ellis are in
basic agreement concerning appellant’s impairment based on regional impairment but disagree
with regard to whether appellant sustained a peripheral nerve system impairment causally related
to her accepted work injury.

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Id.

10

5 U.S.C. § 8123(a).

11

Id. See also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan), 45 ECAB
207 (1993).

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The Board notes that both physicians found that appellant established an impairment to
her right upper extremity of 24 percent based on regional impairment. The Office medical
adviser, using Dr. Ellis’ calculations, found that appellant had 15 percent impairment of the right
upper extremity based on range of motion limitations. Dr. Ellis noted that in her right shoulder
appellant had 116 degrees of flexion for five percent impairment and 41 degrees of extension for
one percent impairment or a total impairment of six percent.12 He further noted 29 degrees of
adduction for one percent impairment and 101 degrees of abduction for four percent impairment
for a total impairment of five percent.13 Dr. Ellis then noted 18 degrees of internal rotation for
four percent impairment and 81 degrees of external rotation for zero percent impairment for an
impairment of four percent.14 Adding the sum of these figures, he determined that appellant had
15 percent impairment to the right upper extremity based on decreased range of motion. Both
Dr. Ellis and the Office medical adviser also agreed that appellant was entitled to 10 percent
impairment based on her resection arthoplasty distal clavicle.15 Using the Combined Values
Chart, Dr. Ellis and the Office medical adviser found that appellant was entitled to 24 percent
impairment based on loss of range of motion in the right upper extremity.
With regard to range of motion in the left upper extremity, both the Office medical
adviser and Dr. Ellis agree that appellant was entitled to an eight percent impairment rating.
Dr. Ellis applied the A.M.A., Guides when he determined that appellant had 123 degrees of
flexion for four percent impairment and 55 degrees of extension for zero percent impairment.16
He also found that appellant had 47 degrees of adduction for zero percent impairment and 114
degrees of abduction for three percent impairment.17 Dr. Ellis found appellant had 41 percent
internal rotation, which he calculated to be 3 percent impairment.18 However, he improperly
determined that appellant’s 66 degrees of external rotation would equal one percent impairment,
when the A.M.A., Guides, indicate that 66 degrees of external rotation would result in zero
percent impairment. Moreover, in adding the figures for impairment due to internal/external
rotation together, Dr. Ellis incorrectly added his three percent calculation and his one percent
calculation to equal one percent whereas properly adding these figures would yield a total of four
percent. Furthermore, because this Board has determined, based on the proper application of the
A.M.A., Guides, that appellant has zero percent impairment for external rotation, appellant
would be entitled to three percent impairment based on internal rotation and no impairment
based on external rotation. The Office medical adviser did not discuss these specific calculations
and merely agreed with the eight percent determination for loss of range of motion in the left
shoulder. The fact that Dr. Ellis improperly calculated the percentage allowed for external
rotation and the fact that the Office medical adviser did not discuss this error negatively impacts
the probative values of their reports.
12

A.M.A., Guides 476, Figure 16-40.

13

Id. at 477, Figure 16-43.

14

Id. at 479, Figure 16-46.

15

Id. at 506, Table 16-27.

16

Id. at 476, Figure 16-40.

17

Id. at 477, Figure 16-43.

18

Id. at 479, Figure 16-46.

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With regard to the impairment based on peripheral nerve system impairment, the Board
finds that there is a conflict between the Office medical adviser and Dr. Ellis with regard to
whether appellant is entitled to a schedule award for brachial plexus. Dr. Ellis determined that
appellant was entitled to five percent impairment based on brachial plexus in the right shoulder
and two percent impairment based on brachial plexus in the left shoulder.19 The Office medical
adviser strongly disagrees with a rating for brachial plexus and contends that Dr. Ellis has not
supported his finding that appellant is entitled to an impairment rating for brachial plexus.
Accordingly, the Board finds that the case must be remanded to the Office for an
impartial medical examination to resolve the conflict with regard to degree of impairment to both
upper extremities including a determination as to whether there is any impairment due to brachial
plexus as a result of appellant’s accepted injury, followed by an appropriate de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 19, 2009 and September 15, 2008 are set aside and the
case is remanded for further action in accordance with the terms of this decision.
Issued: April 13, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

19

Id. at 490, Table 16-14.; 482, Table 16-10; 484, Table 16-11.

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