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

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

Docket No. 12-659
Issued: August 22, 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 January 31, 2012 appellant filed a timely appeal from a September 14, 2011 merit
decision of the Office of Workers’ Compensation Programs’ (OWCP) hearing representative
which denied his traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.2
ISSUE
The issue is whether appellant sustained a back injury in the performance of duty on
January 29, 2011.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the September 14, 2011 decision. Since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration.

FACTUAL HISTORY
On January 29, 2011 appellant, then a 59-year-old letter carrier, filed a traumatic injury
claim alleging that that day he sustained an injury to his back and experienced difficulty
breathing when he slipped on ice and fell on his back as he walked down stairs at work. He
stopped work on January 30, 2011.
A January 29, 2011 hospital discharge sheet reflected that Dr. Robert Rajkumar, a Boardcertified internist, examined appellant and authorized him to return to work on February 3, 2011.
He indicated that appellant sustained a contusion of the back.
Dr. Robert Fisch, a Board-certified orthopedic surgeon, related in a February 3, 2011
progress report that on January 29, 2011 appellant slipped on ice when he walked down the stairs
on his route and fell on his lower back. He experienced sudden pain but was able to walk back
to the employing establishment and was treated in the emergency room. Dr. Fisch reviewed
appellant’s history and noted that diagnostic imaging reports of the thoracolumbar spine revealed
severe degenerative disease in the lower thoracic upper lumbar spine area with osteophyte
formation. He did not find any evidence of acute fracture or subluxation. Upon examination,
Dr. Fisch observed tenderness along appellant’s thoracolumbar spine and the lower thoracic
upper lumbar area and less severe tenderness in the paraspinal region. Forward flexion at 50
degrees produced pain and extension was limited to 15 degrees. Lower extremities deep tendon
reflexes were 1+ bilaterally. Straight leg raise testing was negative bilaterally but produced back
pain. Dr. Fisch reviewed x-rays and stated there appeared to be wedge compression fractures of
L1 and T2. He also observed extensive osteophytic formation at the anterior vertebral bodies
and disc degenerative disease. Dr. Fisch diagnosed acute L1 and T12 compression fracture.
In an attached duty status report, Dr. Fisch diagnosed spine pain and tenderness and T12
compression fracture and advised that appellant was unable to resume work.
On February 25, 2011 OWCP advised appellant that his claim was initially accepted as a
minor injury but it was now reopened for consideration. It informed him that the evidence
submitted was insufficient to establish his claim and requested additional medical evidence to
establish that he sustained a diagnosed condition as a result of the January 29, 2011 employment
incident.
Appellant submitted handwritten January 29, 2011 emergency room records indicating he
was seen for back pain. In a triage nursing assessment form, an unknown provider indicated that
appellant fell on ice and experienced lower and mid-back pain.
Dr. Fisch noted that he reexamined appellant on February 17, 2011 for T12 and L1
compression fractures sustained after a January 29, 2011 fall at work. Appellant stated that he
experienced less pain with movement but was still out of work as a mail carrier. Examination of
the lumbar spine revealed less overall tenderness to overall palpation at the lower thoracic and
upper lumbar spine. No radicular symptoms were noted.
In a March 3, 2011 report, Dr. Fisch related that appellant’s pain had improved but he
still complained of pain in his mid to lower back when he carried his laundry basket.

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Examination of the thoracolumbar spine revealed much less tenderness to palpation of the
midline and better range of motion forward. Extension and forward bending at 50 degrees
produced lower thoracic upper lumbar pain. Dr. Fisch diagnosed improvement of overall pain
status post work injury with acute T12 and L1 compression fractures. He authorized appellant to
return to light duty on March 7, 2011 and included a duty status report.
In a decision dated April 11, 2011, OWCP denied appellant’s claim finding insufficient
medical evidence to establish that he sustained an injury on January 29, 2011 in the performance
of duty. It noted that the record did not contain copies of his x-rays or MRI scan reports to
support the diagnoses of L1 and T12 fractures.
Denise C. Pineau, a physical therapist, stated in her March 10, 2011 physical therapy
report that on January 29, 2011 appellant was walking his mail route when he slipped on icy
steps and fell on his buttocks. Appellant complained of severe pain in the lower back region and
was unable to continue working. Ms. Pineau noted that appellant received treatment at the
hospital and underwent x-rays which were unremarkable. Appellant presently complained of a
constant dull ache in the right lumbar region and frequent throbbing-type pain across the thoracic
region. The examination revealed increased thoracic spine kyphosis and flattening of the lumbar
spine lordosis. No evidence of myotome weakness of the lower extremities and hypesthesia of
the lower extremities were present. Ms. Pineau diagnosed thoracolumbar sprain associated with
compression fractures of T12 and L1. Appellant submitted physical therapy notes dated
March 10 to April 11, 2011.
In an April 7, 2011 report, Dr. Fisch noted appellant’s complaints that his first two days
of office work were tolerable but he continued to experience mid and lower back pain throughout
the day. Examination of the thoracolumbar spine revealed mild upper lumbar paralumbar
tenderness not at the midline. Appellant’s range of motion was good and seemed to improve in
flexion extension rotation and lateral side bending.
Appellant, through his representative, requested an oral hearing, which was held on
August 2, 2011. He was represented by Bruce Didriksen of the National Association of Letter
Carriers. Appellant related that on January 29, 2011 he walked down a couple of steps, slipped
on a patch of black ice, and landed on his backside very hard. He was treated in the emergency
room. The hearing representative noted that OWCP was confused about whether he underwent
x-rays at the hospital and appellant explained that he submitted the x-rays to OWCP. He advised
appellant that he needed a diagnostic report to confirm that he sustained fractures.
Appellant resubmitted hospital records, physical therapy reports dated from March 10 to
May 18, 2011 and duty status reports.
A January 29, 2011 lumbar spine x-ray report, read by Dr. Alan Zakheim, a Boardcertified radiologist, revealed severe degenerative disease in the lower thoracic and upper lumbar
spine with flowing anterior osteophytes. Disc spaces and vertebral body heights were
maintained. No evidence of acute fracture or subluxation was found. Dr. Zakheim diagnosed
severe degenerative disease and no fracture.

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In an April 28, 2011 report, Dr. Fisch related that appellant described improvement in his
overall lower back and mid back pain and felt that he could return to full duty. Upon
examination, he observed good range of motion and much less pain at the endpoints. No overall
tenderness to palpation of the paraspinal muscles or midline thoracolumbar spine. Dr. Fisch
authorized appellant to return to full duty on May 2, 2011 and on May 23, 2011 prescribed
continued physical therapy.
In a June 1, 2011 report, Dr. Fisch noted that appellant continued to improve and that on
days when he took pain medicine he did not have back pain. Examination revealed normal gait,
good overall range of motion and rotation and flexion extension. No overall tenderness to
palpation of the paraspinal muscles or midline was observed. Dr. Fisch diagnosed pain to range
of motion status T12 and L1 compression fractures and thoracolumbar strain.
Dr. Fisch related, in his August 31, 2011 report, that appellant was doing very well
although he complained of pain when he woke up in the mornings. Appellant was able to return
to work. The examination revealed relatively good range of motion with flexion, extension,
rotation and lateral side bending. No overall tenderness to palpation and muscle spasms were
found. Dr. Fisch diagnosed status post-traumatic T12 and L1 compression fractures of the
thoracolumbar spine.
By decision dated September 14, 2011, an OWCP hearing representative affirmed the
April 11, 2011 denial decision. It found that the medical evidence failed to demonstrate that
appellant sustained any diagnosed condition on January 29, 2011 in the performance of duty.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of her claim by the weight of the reliable, probative, and substantial evidence4
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.6
There are two components involved in establishing the fact of injury. 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.7 Second, the employee must submit
3
4

5 U.S.C. §§ 8101-8193.
J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989); M.M., Docket No. 08-1510 (issued
November 25, 2010).
6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

7

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

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evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.8 An employee may establish that the
employment incident occurred as alleged but fail to show that his or her disability or condition
relates to the employment incident.9
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence providing a diagnosis or opinion as to
causal relationship.10 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 specified employment factors or incident.11 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.12 The weight of the medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.13
ANALYSIS
OWCP accepted that on January 29, 2011 appellant slipped on icy steps and fell on his
back at work but found that the medical evidence failed to establish that he sustained any
condition as a result of the accepted incident. The Board finds that he has failed to provide
sufficient medical evidence to establish any back condition as a result of the January 29, 2011
employment incident.
Appellant submitted several medical reports by Dr. Fisch who related that appellant
complained of back pain since January 29, 2011 when he slipped on icy steps and fell on his
back at work. Dr. Fisch revealed appellant’s history and conducted several examinations. He
observed tenderness along appellant’s thoracolumbar spine and the lower thoracic upper lumbar
area. Forward flexion at 50 degrees produced pain and extension was limited to 15 degrees.
Dr. Fisch reported that January 29, 2011 x-ray reports of the thoracolumbar spine revealed
degenerative disease in the lower thoracic upper lumbar spine area with osteophyte formation.
He did not observe any evidence of acute fracture or subluxation, but he stated that there
appeared to be wedge compression fractures of L1 and T12. Dr. Fisch diagnosed acute L1 and
T12 compression fracture. The Board finds that Dr. Fisch’s opinion regarding the wedge
compression fractures of L1 and T12 is speculative in nature. Dr. Fisch read x-rays but noted
only that there “appeared” to be fractures. The Board has held that medical opinions that are
8

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

9

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

10

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

12

B.B., 59 ECAB 234 (2007); D.S., Docket No. 09-860 (issued November 2, 2009).

13

James Mack, 43 ECAB 321 (1991).

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speculative or equivocal in character diminish the probative value of the medical opinion.14 In
later reports, Dr. Fisch continued to refer to the post-traumatic compression fractures; yet when
the January 29, 2011 x-rays were entered into the record, no evidence of compression fractures
was observed.
In addition, the Board notes that, while Dr. Fisch mentions the January 29, 2011 slip and
fall at work, he does not provide any opinion explaining how the accepted incident caused any
back condition. 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.15 Because
Dr. Fisch’s reports do not provide a rationalized medical opinion establishing that appellant
sustained a back injury as a result of the January 29, 2011 employment incident, these reports are
insufficient to meet appellant’s burden of proof to establish his claim.
The additional medical evidence is also insufficient to establish appellant’s traumatic
injury claim. The diagnostic reports by Dr. Zakheim did not reveal any evidence of acute
fracture or subluxation. He only noted severe degenerative disease and did not provide any
opinion on whether the January 29, 2011 incident was causally related to appellant’s back
condition. Likewise, Dr. Rajkumar’s hospital discharge instructions also did not contain a firm
diagnosis or opinion on causal relationship. Thus, these records are insufficient to establish
appellant’s claim.
Similarly, the physical therapy reports are of no probative medical value on the issue of
causal relationship because nurses, physician’s assistants, physical and occupational therapists
are not “physicians” as defined by FECA.16
On appeal, appellant contends that the hearing representative’s decision was based on
inaccuracies and relates that he sustained a back condition as a result of the January 29, 2011
employment incident. The Board notes, however that the evidence of record supports the
hearing representative’s decision. Causal relationship is a medical issue that can only be shown
by reasoned medical opinion of reasonable medical certainty and supported by medical
rationale.17 Appellant has not provided such evidence in this case. Thus, the Board finds that he
did not meet his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

14

D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004).

15

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

16

Section 8102(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005).
17

Supra note 8.

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CONCLUSION
The Board finds that appellant did not establish that she sustained a back injury in the
performance of duty on January 29, 2011.
ORDER
IT IS HEREBY ORDERED THAT the September 14, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 22, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF AGRICULTURE,
NATIONAL RESOURCES CONSERVATION
SERVICE, Stillwater, OK, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 17-1162
Issued: December 27, 2017

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

On May 5, 2017 appellant filed an application for review of a March 2, 2017 Office of
Workers’ Compensation Programs (OWCP) decision which denied authorization for lumbar
fusion surgery.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In the case of William A. Couch,1 the Board held that
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a
claimant and received by OWCP before the final decision is issued. Following appellant’s
request for approval of lumbar surgery, OWCP sent appellant’s physician, Dr. Robert L.
Remondino, an August 18, 2016 letter requesting that the physician comment on the report of an
OWCP medical adviser who recommended that the surgery request be denied. It subsequently
received additional evidence from Dr. Remondino that included May 19 and July 21, 2016 and
February 20, 2017 reports. These reports were received by OWCP on September 1 and 14, 2016
and March 1, 2017. In its March 2, 2017 decision, OWCP denied authorization for lumbar
fusion surgery as appellant provided insufficient medical evidence to support authorization of the
requested surgery. It noted that, in response to its August 18, 2016 letter, it had “not received
1

41 ECAB 548 (1990).

any additional evidence.” OWCP did not note receipt or consideration of the additional reports
from Dr. Remondino.
The Board finds that OWCP, in its March 2, 2017 decision, did not review the reports
from Dr. Remondino dated May 19, July 21, 2016 and February 20, 2017. For this reason, the
case will be remanded to OWCP to enable it to properly consider all the evidence submitted at
the time of the March 2, 2017 decision. Following such further development as OWCP deems
necessary, it shall issue an appropriate merit decision on the claim.
IT IS HEREBY ORDERED THAT the March 2, 2017 decision of the Office of
Workers’ Compensation Programs is set aside. The case recorded is remanded to OWCP for
further proceedings consistent with this order of the Board.
Issued: December 27, 2017
Washington, DC

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

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
TENNESSEE VALLEY AUTHORITY,
PARADISE FOSSIL PLANT,
Drakesboro, KY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0796
Issued: August 16, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
On April 29, 2021 appellant sought an appeal from a purported “2019” decision of the
Office of Workers’ Compensation Programs. The Clerk of the Appellate Boards docketed the
appeal as No. 21-0796.
The Board, having duly considered the matter, notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.1
This jurisdiction encompasses any final adverse decision issued by OWCP within 180 days of the
date appellant filed his appeal.2 The case record as transmitted to the Board does not contain a
final adverse decision of OWCP issued within 180 days from the date of docketing of the current
appeal.3 The most recent final adverse decision was issued by OWCP on July 1, 2016 regarding

1

5 U.S.C. § 8101, et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
2

3

Id.

the denial of an increased schedule award.4 As there is no final adverse decision issued by OWCP
over which the Board may properly exercise jurisdiction, the Board concludes that the appeal
docketed as No. 21-0796 must be dismissed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0796 is dismissed.
Issued: August 16, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4
The Board also affirmed February 26 and March 22, 2016 OWCP decisions regarding the same issue. See Docket
No. 16-1533 (issued March 15, 2018).

2


States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hancock, MN, Employer
__________________________________________

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

Docket No. 17-1569
Issued: November 14, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 11, 2017 appellant filed a timely appeal from a January 30, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an occupational
disease condition in the performance of duty.
FACTUAL HISTORY
On July 28, 2016 appellant, then a 60-year-old postmaster, filed an occupational disease
claim (Form CA-2) alleging that he sustained several medical conditions, including generalized
anxiety and fibromyalgia, due to his work over a period of time. He indicated that he first
1

5 U.S.C. § 8101 et seq.

became aware of his claimed condition on February 12, 2016 and first realized on the same date
that it was caused or aggravated by his employment. Appellant stopped work on July 28, 2016.
On the same form, appellant’s immediate supervisor indicated that appellant’s regular
hours were 7:00 a.m. to 1:00 p.m., six days per week. He advised that the employing
establishment was continuing appellant’s claim because he had not alleged specific events as
causing his claimed conditions and had not provided specific information in support of his claim.
The supervisor indicated that appellant worked in a very small employing establishment that
attracted a minimal number of customers and had only one rural mail delivery route. He
indicated that appellant did not request use of any annual leave, but had used more than 400
hours of sick leave. The supervisor asserted that appellant had significant stressors outside his
federal employment, including the fact that his mother had been ill and recently passed away,
and that he performed concurrent nonfederal work (driving a school bus and doing lawn care
work).
In an August 16, 2016 letter, OWCP requested that appellant provide additional evidence
and information in support of his claim. It requested that he complete and return a questionnaire
which posed various questions about his claimed employment factors. OWCP requested that
appellant submit a physician’s opinion supported by a medical explanation regarding the cause
or causes of his claimed medical condition.
Appellant submitted a September 6, 2016 statement in which he listed medical conditions
that he related to the stressful conditions of his federal employment. These included anxiety,
headaches, fatigue, low body temperature, plantar fasciitis, white and leathery skin, leg muscle
weakness, body itching, nausea, poor appetite, low metabolism, neck and spine misalignment,
abnormal walking gait, dry mouth, numbness/tingling in the hands and feet, irritable bowel
syndrome, and loss of hearing, smell, and taste. Appellant indicated that, in August 2012, after
working seven years with the employing establishment, he became the temporary postmaster of
the Hancock Post Office. He advised that the Hancock Post Office was open 44 hours per week
(40 hours on Monday through Friday and 4 hours on Saturday). Appellant noted that he had a
clerk working for him for approximately the first month he worked as a postmaster. He asserted
that the employing establishment should have hired another clerk after he left, but that it failed to
do so. Appellant worked without a clerk from September 2012 to June 2013, at which time he
left his position. He asserted that the Hancock Post Office was very busy and that his job
required him to work more than 50 hours per week on many occasions. As postmaster, appellant
was required to work the hours necessary to complete all tasks.
Appellant noted that, by February 2013, the employing establishment had implemented a
program called Post Plan, which for the Hancock Post Office meant that operating hours were
reduced to 32.5 hours on Monday through Friday and 3.5 hours on Saturday. He asserted that,
although some duties were transferred to the Administrative Post Office (APO) in Benson,
Minnesota, during most weeks 40 or more hours were needed to complete all the tasks at the
Hancock Post Office. Appellant indicated that the APO in Benson was supposed to find a
substitute for him when he took annual leave, but noted that this did not happen as the APO in
Benson claimed that it did not have anyone to send over as a replacement. If he wanted any time
off, he had to find a postmaster from Clontarf, Minnesota or another neighboring town to relieve
him, but this only happened when someone was available. Appellant indicated that in June 2013

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a permanent postmaster job at the Hancock Post Office was advertised and he transferred to the
Clontarf Post Office which was open for 40 hours on Monday through Friday and 2 hours on
Saturday. He noted that the Clontarf Post Office had a postmaster so he worked Monday
through Friday and the postmaster worked on Saturday. By the end of August 2013, the Clontarf
Post Office became a level two office as part of the Post Plan program which meant that is was
open Monday through Saturday for two hours each day. Appellant indicated that he then
transferred to the nearby Danvers Post Office which was open for 40 hours from Monday
through Saturday. He worked Monday through Friday and a postmaster worked on Saturday.
Appellant advised that on July 14, 2014 he became the permanent postmaster at the
Hancock Post Office where he worked 32.5 hours on Monday through Friday and a postmaster
relief employee worked most Saturdays. The postmaster relief employee left after a month and
he was the only employee at the Hancock Post Office. Appellant noted that the Hancock Post
Office was 10 to 20 times busier than the Clontarf Post Office, which had two employees. He
indicated that the APO at Benson was supposed to provide a replacement for his use of annual
leave or sick leave, but that he was provided a replacement for only one day (November 7, 2015)
between July 14, 2014 and the date he collapsed, February 18, 2016. Appellant asked for a few
other days off, but they were never granted. He indicated that he accumulated 600 hours of
annual leave and 400 hours of sick leave. Appellant noted that the Christmas season (October
through December) at the Hancock Post Office was unbelievably busy with three to five times
more mail being received compared to a typical summer day. He indicated that he would arrive
at work at 7:30 a.m. and would sort mail, scan packages, work the window serving customers,
and answer the telephone all at the same time. Appellant noted that he had to spend time with
two carriers when they arrived at 8:00 a.m. and 8:30 a.m., respectively. After sorting mail for
1.5 to 2 hours, he would scan packages, place mail in the box section, engage in computer
transactions, produce reports, and order stamps and supplies. Appellant asserted that he was
unable to take breaks. He also had to scan and sort more than 100 United Parcel Service and
FedEx packages. Appellant claimed that in 2014 he worked extra hours to complete all his tasks,
sometimes four to six extra hours per week. In 2015 the manager of post office operations did
not allow extra hours to be worked, including during the Christmas season, and he was not
provided with any extra help.
Appellant submitted numerous medical reports dated beginning in February 2016,
including several reports of Dr. Richard R. Horecka and Dr. Stephen C. Olsen, attending Boardcertified family practitioners. In an April 27, 2016 report, Dr. Horecka noted that appellant
reported experiencing stress from attempting to complete his work tasks. He diagnosed anxiety
with somatic features and fatigue. In a September 15, 2016 report, Dr. Olsen indicated that he
agreed with appellant that anxiety and stress could lead to a number of symptoms and that his
current work setting was not conducive to his general health. A number of the reports addressed
appellant’s complaints about foot pain and tingling/numbness in his lower extremities.
In a January 30, 2017 decision, OWCP found that appellant had not met his burden of
proof to establish an occupational disease condition due to factors of his federal employment. It
determined that he had not established any compensable employment factors. OWCP noted
appellant’s claims that he had an excessive workload, worked without help, and did not receive
time off work. However, it found that appellant failed to provide evidence to establish that his
claims about employment factors were factual.

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LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that the injury was sustained while in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.2 To establish fact of injury, an employee must submit
evidence sufficient to establish that he or she experienced a specific event, incident, or exposure
occurring at the time, place, and in the manner alleged.3 An employee must also establish that
such event, incident, or exposure caused an 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
OWCP regulations define the term “[o]ccupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.6 To
establish that an injury was sustained in the performance of duty in an occupational disease
claim, an employee must submit the following: (1) medical evidence establishing the presence
or existence of 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 employee.7
The medical evidence required to establish causal relationship generally is rationalized medical
opinion evidence.8 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 established employment factors.9
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 the employment, but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
2

5 U.S.C. § 8101(1); B.B., 59 ECAB 234 (2007); Elaine Pendleton, 40 ECAB 1143 (1989).

3

J.C., Docket No. 16-0057 (issued February 10, 2016); E.A., 58 ECAB 677 (2007).

4

Id.

5

R.H., 59 ECAB 382 (2008); Ellen L. Noble, 55 ECAB 530 (2004).

6

20 C.F.R. § 10.5(q); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of
Claims, Chapter 2.800.2b (June 2011).
7

D.H., Docket No. 15-1876 (issued January 29, 2016); D.I., 59 ECAB 158 (2007); Victor J. Woodhams, 41
ECAB 345 (1989).
8

F.S., Docket No. 15-1052 (issued July 17, 2015); Tomas Martinez, 54 ECAB 623 (2003).

9

P.K., Docket No. 08-2551 (issued June 2, 2009); John W. Montoya, 54 ECAB 306 (2003).

4

emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.10 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reduction in
force or his or her frustration from not being permitted to work in a particular environment or to
hold a particular position.11
As a rule, allegations alone by a claimant are insufficient to establish a factual basis for a
condition related to work stress.12 The claimant must specifically delineate those factors or
incidents to which the stress-related condition is attributed and submit supporting factual
evidence verifying that the implicated work situations or incidents occurred as alleged.13 Based
on the evidence submitted by the claimant, OWCP is then required to make factual findings
which are reviewable by the Board.14 The primary reason for requiring factual evidence from the
claimant in support of his or her allegations of stress in the workplace is to establish a basis in
fact for the contentions made, as opposed to mere perceptions of the claimant, which in turn may
be fully examined and evaluated by OWCP and the Board.15
ANALYSIS
Appellant alleged that he sustained multiple occupational conditions as a result of his
work. The Board must initially review whether these claimed conditions of employment are
covered employment factors under FECA. The Board notes that appellant’s claims ostensibly
pertain to his regular or specially assigned duties under Lillian Cutler.16
Appellant alleged that his work for the employing establishment, including his work as a
postmaster, was stressful in nature and that the resultant stress caused him to develop a number
of medical conditions. He claimed that he was required to work long hours and did not have
adequate employee support given his heavy workload, especially during the Christmas season
when mail volume was higher than usual. Appellant asserted that he had to perform multiple
tasks, without being allowed a break, including sorting mail, scanning packages, working the
window serving customers, and answering the telephone. He indicated that he worked alone for
part of his employment and claimed that he was only able to take leave to a limited extent
because management would not provide him with a replacement employee in his absence.
Appellant’s argument that he sustained various medical conditions due to stress in
carrying out his employment duties may constitute a compensable employment factor. As the
10

See Lillian Cutler, 28 ECAB 125 (1976).

11

Gregorio E. Conde, 52 ECAB 410 (2001).

12

See T.V., Docket No. 16-1519 (issued September 12, 2017).

13

M.G., Docket No. 16-1453 (issued May 12, 2017).

14

Paul Trotman-Hall, 45 ECAB 229 (1993) (Michael E. Groom, Alternate Member, concurring).

15

Id.

16

See supra note 10.

5

Board noted above, allegations alone are insufficient, as a rule, to establish a factual basis for a
claim of a stress-related condition.17 Appellant must specifically delineate those factors or
incidents to which the stress-related condition is attributed and submit supporting factual
evidence verifying that the implicated work situations or incidents occurred as alleged.18 The
Board finds that he has not established a factual basis for his claim. The allegations lack a
contextual foundation and are unsupported by any evidence. Appellant failed to submit any
factual evidence to support his claim such as job descriptions, time records, or statements from
coworkers and superiors to substantiate his assertions about long work hours, heavy workload,
and lack of adequate support to carry out his work duties. The Board notes that the employing
establishment disputed his characterization of his work and challenged his occupational disease
claim. Appellant’s immediate supervisor indicated that appellant worked in a very small
employing establishment that attracted a minimal number of customers and had only one rural
mail delivery route. He indicated that appellant did not request use of any annual leave, but had
used more than 400 hours of sick leave.
For these reasons, appellant has not established any compensable employment factors
under FECA and, therefore, has not met his burden of proof to establish that he sustained an
occupational condition due to his federal employment.19
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish an
occupational disease condition in the performance of duty.

17

See supra note 12.

18

See supra note 13.

19

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

6

ORDER
IT IS HEREBY ORDERED THAT the January 30, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 14, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 08-2557
Issued: August 11, 2009

Oral Argument April 7, 2009

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

JURISDICTION
On September 22, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs decisions dated December 7, 2007, July 24 and September 4, 2008.
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 met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
Appellant, a 48-year-old professional specialist trainee, filed a claim for benefits based on
an emotional condition on October 19, 2007. She alleged that she developed chest pain and
shortness of breath due to factors of her employment on October 18, 2007.

In an October 19, 2007 report, Dr. Robyn Sanders, a specialist in internal medicine,
stated that she was treating appellant for stress and indicated that she would be unable to work
for 16 days.
On October 31, 2007 the employing establishment controverted appellant’s claim. It
stated that the conditions she claimed appeared to be personal and unrelated to employment
factors. The employing establishment further stated that appellant did not list any employment
factors that contributed to these conditions, that the medical documentation she submitted did not
causally relate her condition to specific work factors or list a diagnosis.
By letter dated November 5, 2007, the Office requested that appellant submit additional
medical evidence in support of her claim, including a comprehensive medical report describing
how the claimed incident on October 18, 2007 resulted in the diagnosed condition and provide
factual evidence, which would establish that she had developed an emotional condition caused by
factors of her employment.
In an October 23, 2007 statement received by the Office on December 7, 2007, appellant
stated that she had developed an emotional condition because the employing establishment had
allegedly misled her about a new program to which she had been assigned. Appellant asserted
that she had relocated from Long Island, N.Y., to Greensboro, N.C., to begin a new assignment
based on statements from the employing establishment which assured her that she would receive
appropriate training for the position. She stated; however, that when she arrived at her new
station in May 2006 the program she began working on was not the one which management had
advertised. Appellant alleged that the Personnel Storage Table (PST) program was supposed to
train her in various levels of human resources, but when she began her job she was placed in a
classroom with trainers who knew nothing about the employing establishment. According to
her, she did not learn anything and did not understand the process in which she was supposed to
be involved. Appellant also alleged that management told her she would not be answering
telephones in her new job for at least two years; however, despite this assurance, she was placed
in a cubicle answering telephones with limited training, using a script answering questions from
employees about subjects with which she was unfamiliar. She asserted that she had to deal with
outstanding problems which existed prior to her arrival, a job for which she was given little
assistance or guidance. Appellant asserted that this confusion regarding management’s program
objectives and the blurring of her job duties resulted in anxiety and high blood pressure.
Appellant stated that her workload and the pressure of her work increased because
management added additional districts into her human resources section even though she had not
been sufficiently trained at her PST position in the first place and lacked assistance in completing
all of her required tasks. She further alleged that, about four months into the program,
management gave her a schedule for shift rotations which would change every three months.
This caused appellant difficulty sleeping, and disrupted her eating patterns, she continued to
experience elevated blood pressure. Shortly thereafter, she stated that management imposed a
mandatory overtime requirement, including weekends, because her workload had grown to the
point where she could no longer complete her assignments within normal work hours. Finally,
appellant stated that about six months into the program she was reassigned to another process
and another location. She stated that she was provided minimal training to deal with an
excessive workload which entailed inputting numerous disability retirement cases, answering

2

telephones and processing disability claims with deadlines, all of these issues aggravated her
problems with stress, anxiety, sleeplessness, poor eating habits and elevated blood pressure.
Appellant’s problems culminated on October 18, 2007, when she began experiencing severe
chest pains and shortness of breath and was taken by ambulance to High Point Regional
Hospital. She stated that she did not have any work-related problems until she was placed into
this environment and that her job-related stress was destroying her health.
In a report dated November 16, 2007, Dr. Rapinder Kaur, Board-certified in psychiatry
and neurology, stated that appellant was experiencing major stress, high blood pressure,
sleeplessness, crying, low appetite, weight loss and feelings of emptiness and unworthiness
because she relocated to the Greensboro area in May 2006 and discovered that her job was not
what she had been told or what she had expected. He related appellant’s complaints that
management did not provide her with sufficient training to perform her new position and
constantly changed her schedule. Dr. Kaur stated that appellant was stressed out and depressed
to the extent that she experienced chest pain when she went near the worksite; he noted that she
required hospitalization on November 12, 2007. He diagnosed major depressive disorder, single
episode, moderately severe without psychotic features, hypertension, with multiple stressors.
Dr. Kaur recommended that appellant undergo counseling.
By decision dated December 7, 2007, the Office denied appellant’s claim.
By letter dated May 20, 2008, appellant requested reconsideration.
Dr. Kaur submitted a May 2, 2008 report in which he essentially reiterated his previous
findings and conclusions. He opined that the multiple stressors at her workplace both caused and
exacerbated appellant’s depression.
By decision dated July 24, 2008, the Office denied modification of the December 7, 2007
decision.
By letter dated August 25, 2008, appellant requested reconsideration.
In an addendum to Dr. Kaur’s May 2, 2008 report, received by the Office on August 29,
2008, he stated that his diagnosis of major depressive disorder, single episode moderately severe
was directly related to appellant’s employment at the employing establishment.
By decision dated September 4, 2008, the Office denied appellant’s application for review
on the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.
LEGAL PRECEDENT
To establish that an emotional condition was sustained in the performance of duty there
must be factual evidence identifying and corroborating employment factors or incidents alleged
to have caused or contributed to the condition, medical evidence establishing that the employee
has an emotional condition, and rationalized medical opinion establishing that compensable

3

employment factors are causally related to the claimed emotional condition.1 There must be
evidence that implicated acts of harassment or discrimination did, in fact, occur supported by
specific, substantive, reliable and probative evidence.2
The first issue to be addressed is whether appellant has cited factors of employment that
contributed to her alleged emotional condition or disability. Where the disability results from an
emotional reaction to regular or specially assigned work duties or a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.3 On the other hand, disability is not covered where it results from an employee’s fear of a
reduction-in-force, frustration from not being permitted to work in a particular environment or to
hold a particular position, or to secure a promotion. Disabling conditions resulting from an
employee’s feeling of job insecurity or the desire for a different job do not constitute a personal
injury sustained while in the performance of duty within the meaning of the Act.4
ANALYSIS
The Board finds that appellant has established two factors of employment, which may
have resulted in a compensable emotional condition; i.e., the employer’s failure to clarify and
fully inform her about the duties and consequences of her transfer to the Greensboro, N.C.,
worksite. The Board has held that allegations relating to administrative or personnel matters that
are unrelated to the employee’s regular or specially assigned work duties do not fall within the
coverage of the Act.5 However, the Board has also found that an administrative or personnel
matter will be considered to be an employment factor where the evidence discloses error or
abuse on the part of the employing establishment. In determining whether the employing
establishment erred or acted abusively, the Board has examined whether it acted reasonably.6
Appellant has alleged that management was not supposed to assign her to answer telephone
inquiries, did not sufficiently train her for her new position, and provided confusing guidelines
regarding its program objectives and her job duties during her transition to the new job. As the
employing establishment has not submitted any statements or documentation which rebutted her
allegations that it misrepresented and did not clarify her work duties at the new job site, the
Board finds that she has established a factor of employment in this regard.
In addition, appellant alleged that she sustained stress in the performance of her duties at
the new worksite because management began changing her work schedule every three months,
gave her an excessive workload, did not provide her with adequate assistance to help her meet
her deadlines and imposed a mandatory overtime requirement which included having her work
1

See Debbie J. Hobbs, 43 ECAB 135 (1991).

2

See Ruth C. Borden, 43 ECAB 146 (1991).

3

Lillian Cutler, 28 ECAB 125 (1976).

4

Id.

5

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
6

See Richard J. Dube, 42 ECAB 916, 920 (1991).

4

weekends. The Board has held that emotional reactions to situations in which an employee is
trying to meet his or her position requirements are compensable.7 As she has related that her
emotional condition was aggravated by the requirements of her work at her new worksite, she
has established a second compensable factor of employment.
Appellant noted that she became so stressed due to her increasingly excessive work
demands that she had to be hospitalized on October 18, 2007. The reports from Dr. Kaur
indicated that she was experiencing increasing anxiety, hypertension, professional self-doubt,
feelings of hopelessness and crying spells related to stress at work since being transferred to the
new position in May 2006. He noted that appellant felt overwhelmed, extremely stressed and
very concerned about maintaining her job status. Dr. Kaur diagnosed major depressive disorder,
single episode, moderately severe directly related to appellant’s employment at the employing
establishment, he also noted that appellant required hospitalization on November 12, 2007. The
Board therefore finds that appellant has established a second compensable factor of employment
under Cutler. Accordingly, appellant has established a prima facie claim for compensation.
The Board further finds that the reports from Dr. Kaur are sufficient to raise an inference of
causal relationship between her emotional condition and her accepted employment factors to
require further development of the medical evidence, as they attribute an aggravation of her
condition, in part, to the work requirements of her position. For this reason, the case will be
remanded to the Office for further development of the claim.8
On remand, therefore, the Office should further develop the medical evidence as is
appropriate. After such development of the case record as it deems necessary, a de novo decision
shall be issued.
CONCLUSION
The Board finds that the case is not in posture for decision.

7

See Lillian Cutler, supra note 4.

8

In light of the Board’s decision to set aside the December 7, 2007 Office decision of the hearing representative,
it need not consider the September 4, 2008 nonmerit decision. However, the Board notes that the Office did not
consider Dr. Kauri’s November 16, 2007 report, submitted by appellant with her request for reconsideration, in its
December 7, 2007 decision, though it gave it cursory consideration in its July 24, 2008 decision. This report
provided an extensive, thorough review of the evolution of appellant’s emotional condition and constituted probative
evidence of how this condition may have been aggravated or contributed to by her work environment. The Board
therefore instructs the Office, on remand, to consider this report along with any other medical evidence adduced
prior to the issuance of its de novo decision.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 7, 2007 is set aside and the case is remanded for
further action in accordance with this decision.
Issued: August 11, 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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEPARTMENT OF THE ARMY, TOOELE
ARMY DEPOT, Tooele, UT, Employer
__________________________________________

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

Docket No. 18-0176
Issued: August 21, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 30, 2017 appellant filed a timely appeal from a June 22, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish more than seven
percent permanent impairment of each upper extremity, for which he previously received schedule
award compensation.
FACTUAL HISTORY
On November 7, 2013 appellant, then a 41-year-old blocker bracer, filed an occupational
disease claim (Form CA-2) alleging that he experienced aching and numbness in both hands and
1

5 U.S.C. § 8101 et seq.

wrists as a result of his repetitive federal-employment duties. He noted that he first became aware
of his condition on October 28, 2013 and realized its relation to his federal employment on
November 6, 2013. Appellant did not stop work, but began modified duty on November 7, 2013.
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome, bilateral lesion of
the ulnar nerve, and bilateral radial styloid tenosynovitis. Appellant continued to receive medical
treatment.
On June 5, 2014 appellant underwent authorized right carpal tunnel surgery performed by
Dr. Jennifer Nicole Jarrell, an orthopedic surgeon. He subsequently underwent authorized right
cubital tunnel release surgery on July 31, 2014 by Dr. Angela A. Wang, a Board-certified
orthopedic surgeon. Appellant stopped work and OWCP paid him wage-loss compensation for
total disability until he returned to full-time modified-duty work on August 18, 2014.
Appellant subsequently underwent an authorized left cubital tunnel release surgery on
September 25, 2014 and an authorized left carpal tunnel release on May 7, 2015 by Dr. Wang. He
stopped work and returned to full duty on July 7, 2015.
OWCP received a June 20, 2016 impairment rating report by Dr. Michael M. Hess,2 an
orthopedic surgeon. Dr. Hess reviewed appellant’s history and noted that he underwent bilateral
ulnar nerve release and bilateral carpal tunnel release surgeries. Upon physical examination of
appellant’s right elbow, he observed positive Tinel’s sign over the right elbow and negative Tinel’s
sign over the right wrist. Dr. Hess reported that sensory testing on the right demonstrated two
point discrimination in the median and ulnar nerve distribution. Examination of appellant’s left
elbow and wrist showed negative Tinel’s sign. Dr. Hess referenced Table 15-23 of the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides)3 and opined that appellant sustained five percent permanent impairment of the
upper extremity for ulnar nerve impairment. He explained that according to page 450 of the
A.M.A., Guides, involving multiple nerve entrapments, appellant’s ulnar nerve had the highest
impairment value for all diagnosed conditions. Dr. Hess combined the 5 percent impairment with
50 percent of appellant’s carpal tunnel impairment (3 percent permanent impairment), which
resulted in 1.5 percent permanent impairment, for a combined 6.5 percent permanent impairment
of each upper extremity.
On October 24, 2016 appellant filed a claim for a schedule award (Form CA-7).
In a letter dated November 8, 2016, OWCP informed appellant that it had received an
impairment rating report from his physician and would forward the report to an OWCP district
medical adviser (DMA) for review. Appellant was afforded 30 days to submit additional
documentation that he wanted reviewed in consideration of his schedule award claim.

2
The record reveals that Dr. Hess had previously examined appellant on December 8, 2014. In a report of the same
date, Dr. Hess provided a history of appellant’s injury and physical examination findings. He related that it was too
early to determine a date of maximum medical improvement (MMI) for appellant’s cubital tunnel symptoms because
his surgery had occurred less than six months prior.
3

A.M.A., Guides (6th ed. 2009).

2

On April 28, 2017 OWCP routed Dr. Hess’ June 20, 2016 report, a statement of accepted
facts (SOAF), and the case file to Dr. Arthur S. Harris, a Board-certified orthopedic surgeon
serving as a DMA, for review and determination regarding whether appellant sustained permanent
impairment of his bilateral upper extremities and the proper date of MMI.
In an April 29, 2017 report, the DMA noted appellant’s accepted conditions and reviewed
his history, noting appellant’s previous surgeries. He reviewed Dr. Hess’ June 20, 2016 report and
noted that his physical examination findings revealed diminished sensation in the bilateral ulnar
and median nerve distribution. The DMA agreed with Dr. Hess’ finding that appellant sustained
6.5 percent permanent impairment of each upper extremity and provided a date of MMI of June 20,
2016, the date of Dr. Hess’ examination.
Regarding appellant’s right upper extremity, the DMA referenced Table 15-23, page 449,
and indicated that appellant sustained five percent permanent impairment (grade modifier 2B) for
residual problems with moderate cubital tunnel symptoms status post cubital tunnel surgery. He
opined that appellant sustained three percent permanent impairment (grade modifier 1D) for
residual problems with mild carpal tunnel symptoms status post carpal tunnel release. The DMA
explained that in patients with multiple compression neuropathies, the second or smaller nerve
impairment was rated at 50 percent of the impairment listed in Table 15-23, page 449. He assigned
1.5 percent permanent impairment for appellant’s right carpal tunnel symptoms, which he rounded
up to 2 percent permanent impairment. Utilizing the Combined Values Chart, the DMA calculated
that appellant had a combined of seven percent permanent impairment of the right upper extremity.
Regarding appellant’s left upper extremity, the DMA assigned the same impairment rating
of five percent (grade modifier 2B) for residual problems with moderate cubital tunnel symptoms
and three percent impairment (grade modifier 1D) for residual problems with mild carpal tunnel
symptoms status post carpal tunnel release. He calculated that 50 percent of the smaller nerve
impairment (3 percent) resulted in 1.5 percent permanent impairment, which he rounded up to 2
percent, finding 7 percent permanent impairment of the left upper extremity.
The DMA concluded that appellant had seven percent permanent impairment of each upper
extremity.
On June 22, 2017 OWCP granted appellant a schedule award of seven percent permanent
impairment for each upper extremity. The period of the award ran for 43.68 weeks from June 20,
2016 to April 21, 2017. OWCP found that the schedule award was based on Dr. Hess’ June 20,
2016 report and the DMA’s April 29, 2017 report.
LEGAL PRECEDENT
The schedule award provisions of FECA4 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
4

Supra note 1.

3

consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has
been adopted by OWCP as a standard for evaluation of schedule losses and the Board has
concurred in such adoption.5 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides, published in 2009.6
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).7 Under the sixth edition, the evaluator identifies the impairment for the class of
diagnosis condition (CDX), which is then adjusted by grade modifiers based on functional history
(GMFH), physical examination (GMPE), and clinical studies (GMCS). The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).8 Evaluators are directed to
provide reasons for their impairment rating choices, including the choices of diagnosis from
regional grids and calculations of modifier scores.9
However, permanent impairment due to carpal tunnel and cubital tunnel syndrome is
evaluated under the scheme found in Table 15-23 (Entrapment/Compression Neuropathy
Impairment) and accompanying relevant text in section 15.4f of the A.M.A., Guides.10 In Table
15-23, grade modifier levels (ranging from zero to four) are described for the categories of test
findings, history, and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down based on functional scale, an assessment of impact on daily
living activities.11
OWCP’s procedures provide that, if a claimant’s physician provides an impairment rating,
the case should be routed to a DMA for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides with OWCP’s medical adviser providing
rationale for the percentage of impairment specified.12

5

20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.806.6.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
and Exhibit 1 (January 2010).
7

A.M.A., Guides 3, section 1.3 (6th ed. 2009).

8

Id. at 385-419.

9

See R.V., Docket No. 10-1827 (issued April 1, 2011).

10

Supra note 7 at 449.

11

Id. at 448-49.

12
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(e) (February 2013); Tommy R. Martin, 56 ECAB 273 (2005).

4

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than seven
percent permanent impairment of each upper extremity, for which he previously received schedule
award compensation.
In support of his claim, appellant submitted a June 20, 2016 impairment rating report by
Dr. Hess in which he found a combined 6.5 percent permanent impairment of each upper
extremity. Thereafter, OWCP properly routed the report of Dr. Hess to a DMA. In an April 29,
2017 report, Dr. Harris, the DMA, reviewed Dr. Hess’ June 20, 2016 impairment report and agreed
with his finding that appellant had 7 percent permanent impairment of both upper extremities. He
noted a date of MMI of June 20, 2016, when appellant was examined by Dr. Hess. In calculating
permanent impairment, the DMA utilized Table 15-23, page 449, of the A.M.A., Guides and
indicated that appellant had five percent permanent impairment (grade modifier of 2B) for residual
problems with moderate cubital tunnel symptoms status post cubital tunnel surgery. He assigned
three percent permanent impairment (grade modifier of 1D) for residual problems with mild carpal
tunnel symptoms status post carpal tunnel release. The DMA calculated that according to page
450 of the A.M.A., Guides for multiple compression neuropathies, appellant had 1.5 percent
impairment (50 percent of 3 percent impairment) for his carpal tunnel symptoms. Utilizing the
Combined Values Chart, he calculated that appellant had a total of 6.5 percent, which he rounded
to 7 percent permanent impairment of the right upper extremity.
Regarding appellant’s left upper extremity, the DMA assigned the same impairment rating
of five percent (grade modifier of 2B) for residual problems with moderate cubital tunnel
symptoms and three percent impairment (grade modifier of 1D) for residual problems with mild
carpal tunnel symptoms status post carpal tunnel release. He calculated that 50 percent of the
smaller nerve impairment (3 percent) resulted in 1.5 percent permanent impairment, which he
rounded to 2 percent. The DMA indicated that appellant had seven percent permanent impairment
of the left upper extremity.
OWCP granted appellant’s schedule award based on the opinions of his treating physician
Dr. Hess and the DMA. There is no current medical evidence of record, in conformance with the
sixth edition of the A.M.A., Guides, showing a greater percentage of permanent impairment. As
appellant bears the burden of proof to establishment entitlement to an additional schedule award,
he was required to submit rationalized medical evidence on which an additional award could be
based. He has not done so for his claim. Therefore, the Board finds that appellant has not met his
burden of proof to establish more than seven percent permanent impairment of each upper
extremity.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than seven
percent permanent impairment of each upper extremity, for which he previously received schedule
award compensation.
ORDER
IT IS HEREBY ORDERED THAT the June 22, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 21, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEPARTMENT OF THE ARMY, ROCK
ISLAND ARSENAL, Rock Island, IL, Employer
__________________________________________

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

Docket No. 07-589
Issued: June 19, 2007

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 December 27, 2006 appellant timely appealed the October 27, 2006 merit decision of
the Office of Workers’ Compensation Programs, which affirmed a schedule award for bilateral
lower extremity impairment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the schedule award.
ISSUE
The issue is whether appellant has more than six percent bilateral impairment of the
lower extremities.
FACTUAL HISTORY
Appellant, a 57-year-old former meat cutter, has an accepted claim for lumbar sprain and
herniated disc at L5-S1, which arose on July 16, 1986.1 On July 23, 1996 the Office granted a
schedule award for two percent impairment of both lower extremities. On June 11, 2004
1

Appellant retired effective September 30, 1995.

appellant underwent a lumbar laminectomy at L4. The Office issued an additional schedule
award on April 22, 2005 for three percent bilateral lower extremity impairment.2 On June 15,
2005 appellant had a second lumbar laminectomy, but this time at the L5 level. He filed a claim
for an additional schedule award on October 24, 2005. Appellant also requested reconsideration
of the April 22, 2005 schedule award, noting that he had undergone additional surgery in
June 2005.
The Office received additional medical records regarding appellant’s June 15, 2005
surgery, as well as postoperative radiology reports and treatment notes dated July 27, 2005 from
Dr. Gregory W. Albert, an attending physician. Appellant reported lower extremity weakness
and worsening numbness in his legs and feet. A recent magnetic resonance imaging scan
revealed central disc bulging at L4-5 and L5-S1 and significant scar tissue at the site of the prior
surgeries. Dr. Albert indicated that the scar tissue was likely contributing to appellant’s
symptoms, and it was not amenable to surgery.
In a report dated January 30, 2006, the Office medical adviser found that appellant had
six percent impairment to both lower extremities. This rating included the three percent
impairment previously awarded on April 22, 2005, plus an additional three percent for pain and
dyesthesias in the distribution of the S1 nerve root bilaterally. The Office medical adviser found
that appellant reached maximum medical improvement six months following his June 15, 2005
surgery.
On March 1, 2006 the Office awarded an additional one percent for the left and right
lower extremities. The Office noted that appellant had a six percent total impairment of each
lower extremity and that he had already received schedule awards for five percent for both lower
extremities. The March 2, 2006 additional award of one percent covered 5.76 weeks from
December 15, 2005 to January 24, 2006.
Appellant requested an oral hearing, which was held on July 25, 2006. Following the
hearing, he submitted an October 4, 2006 impairment rating from Dr. Xerxes R. Colah, a Boardcertified orthopedic surgeon, who rated a 20 percent impairment of the whole person. Dr. Colah
applied the diagnosis related-estimate (DRE) method in rating appellant’s impairment of the
spine. He characterized appellant’s condition as DRE lumbar Category IV.
By decision dated October 27, 2006, the Office hearing representative affirmed the
March 2, 2006 schedule award.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions

2

The Office medical adviser subsequently advised the claims examiner that the 2005 schedule award for three
percent bilateral impairment partially duplicated the 1996 award for two percent impairment. Therefore, appellant
should have been paid only an additional one percent impairment of both lower extremities, rather than the
combined five percent he received.

2

and organs of the body.3 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.4 Effective February 1, 2001, schedule awards are
determined in accordance with the A.M.A., Guides (5th ed. 2001).5
ANALYSIS
Appellant contends on appeal that he is entitled to an additional schedule award based
upon Dr. Colah’s October 4, 2006 impairment rating. As noted, Dr. Colah found 20 percent
impairment of the whole person by applying the DRE method of rating impairment due to
lumbar spine injury.6 He did not separately assess appellant’s impairment of the lower
extremities. Neither the Act nor the regulations provide for the payment of a schedule award for
the permanent loss of use of the spine or the body as a whole.7 Consequently, Dr. Colah’s
October 4, 2006 impairment rating does not conform to the Office’s established protocols.
The Office medical adviser found that appellant’s current lower extremity impairment
was six percent of each leg. He explained that three percent was due to residual leg pain in the
distribution of the L5 nerve root, which was identical to the award appellant received on
April 22, 2005.8 The medical adviser further explained that the only additional lower extremity
impairment was for residual pain and dyesthesias in the distribution of the S1 nerve root
bilaterally. He found a Grade 3 (60 percent) sensory deficit in accordance with Table 15-15,
A.M.A., Guides 424.9 According to the A.M.A., Guides 424, Table 15-18, a S1 nerve root
impairment affecting the lower extremity represents a maximum five percent loss due to sensory
deficit or pain. To determine the lower extremity impairment one multiplies appellant’s Grade 3
classification (60 percent) by the maximum percentage loss due to sensory deficit or pain (5
percent). Applying this formula, appellant had 3 percent impairment for sensory deficit (60
percent x 5 percent) in each lower extremity with respect to the S1 nerve root. When properly

3

For a total loss of use of a leg, an employee shall receive 288 weeks’ compensation.
§ 8107(c)(2) (2000).
4

20 C.F.R. § 10.404 (2006).

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

6

See A.M.A., Guides 384, Table 15-3.

7

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

8

See A.M.A., Guides 424, Tables 15-15, 15-18.

9

5 U.S.C.

With respect to sensory loss, a Grade 3 classification is characterized by “[d]istorted superficial tactile
sensibility (diminished light touch and two-point discrimination), with some abnormal sensations or slight pain, that
interferes with some activities. This classification represents a 26 to 60 percent sensory deficit. A.M.A., Guides
424, Table 15-15.

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combined with the three percent bilateral impairment involving the L5 nerve root, appellant’s
total bilateral lower extremity impairment is six percent.10
The January 30, 2006 impairment rating provided by the Office medical adviser
conforms to the A.M.A., Guides (5th ed. 2001), and his finding constitutes the weight of the
medical evidence.11 Appellant has not submitted probative medical evidence to establish that he
has greater than six percent impairment of the left and right lower extremities. Furthermore, the
Office properly reduced the current six percent award by five percent in light of appellant’s two
prior schedule awards for impairment of his lower extremities.12
CONCLUSION
Appellant has not demonstrated that he has greater than six percent impairment of the
lower extremities.

10

See Combined Values Chart, A.M.A., Guides 604.

11

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

12

Any previous impairment to the schedule member under consideration is included in calculating the percentage
of loss except when the prior impairment is due to a previous work-related injury, in which case the percentage
already paid is subtracted from the total percentage of impairment. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.7(a)(2) (November 1998).

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ORDER
IT IS HEREBY ORDERED THAT the October 27, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 19, 2007
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.G., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Edison, NJ, Employer
__________________________________________

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

Docket No. 13-1672
Issued: March 19, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 3, 2013 appellant, through his attorney, filed a timely appeal of a March 20, 2013
Office of Workers’ Compensation Programs’ (OWCP) merit decision addressing his traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained a traumatic injury on July 31, 2012.
On appeal counsel argued that appellant had submitted sufficient factual and medical
evidence to establish his traumatic injury claim or to require additional development by OWCP.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 7, 2012 appellant, then a 43-year-old clerk, filed a traumatic injury claim
alleging that he developed lower back pain as well as numbness in both legs and feet due to
twisting and turning while moving boxes and turning on a machine on July 31, 2012. The
employing establishment completed an authorization for examination and/or treatment on
August 8, 2012. Appellant stopped work on July 31, 2012.
Appellant submitted a statement dated August 7, 2012 and noted that on July 31, 2012 he
experienced lower back pain and numbness down both legs beginning on 12:45 a.m. while at
work.
In a letter dated August 22, 2012, OWCP requested additional factual and medical
evidence from appellant and allowed 30 days for a response.
Dr. Frank M. Moore, a Board-certified neurosurgeon, completed a form report on
August 15, 2012 and indicated that appellant was disabled due to pain with twisting following a
lumbar fusion. He stated that appellant may not be able to return to his position until further
notice.
Appellant submitted a narrative statement dated September 6, 2012, which noted that he
was working on a conveyor belt on July 31, 2012 lifting boxes that weighed between 5 and 70
pounds. He stated that he had to twist and reach to lift the boxes and place them on the belt.
Appellant stated that he had no pain when he began working on July 31, 2012, but that at
3:30 a.m. he asked to leave work due to his back pain. He stated that his supervisors required
him to file a new injury form despite his statements that his pain was the result of a prior injury,
on November 8, 2009, claim number xxxxxx692.2
By decision dated September 27, 2012, OWCP denied appellant’s claim on the grounds
that he failed to submit any medical evidence of a diagnosed condition in connection with his
employment injury.
Counsel requested an oral hearing before an OWCP hearing representative on
October 10, 2012. Dr. Moore completed a note dated August 10, 2011 which stated that
appellant’s symptoms were worsening with increasing numbness in both legs and he
recommended a decompressive laminectomy at L3-4 and L4-5. Appellant underwent an
intervertebral fusion at L3-4 and L4-5 on September 22, 2011. On July 2, 2012 Dr. Moore
examined appellant and noted appellant’s report of discomfort in the lumbosacral area following
a workday including twisting 4,000 times. He examined appellant on August 15, 2012 and stated
that his low back symptomatology had improved with time, but that he remained partially
disabled. In a report dated September 24, 2012, Dr. Moore stated that appellant had previously
2

The Board notes that appellant has a separate claim for a back injury in claim number xxxxxx692. This claim is
not currently before the Board. Appellant returned to work on May 25, 2012 following surgery under this claim and
stopped his light-duty work on July 31, 2012 within 90 days of his return to work. OWCP’s procedures provide a
separate standard for recurrences of disability within the first 90 days of a return to duty. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.7 (October 2009) (superseded June 2013).

2

undergone a lumbar decompression, fusion and instrumentation at L3-4 and L4-5. He stated that
appellant reported residual numbness in both legs and exacerbations of low back symptoms with
work activities of repetitive lifting and twisting.
Appellant was unable to testify at the oral hearing on February 6, 2013 due to recent back
surgery. He submitted a narrative statement describing his history of back injury at the
employing establishment beginning on August 19, 2003. Appellant stated that he experienced a
second back injury on November 18, 2009. Both claims were accepted. Appellant noted that he
returned to light-duty work following surgery on May 25, 2012 with a lifting restriction of 25
pounds. He continued to bend, twist, pull and push and continued to experience back pain, but
completed his work. Appellant stated that on July 31, 2012 he initially experienced minimal
pain but that as the day progressed his low back pain became intense and began to shoot into his
legs. He stated that he first received medical treatment on August 6, 2012 and first saw
Dr. Moore on August 15, 2012. On January 31, 2013 appellant underwent additional surgery to
replace hardware. He stated that he “helped boxes down the slide that got stuck on their way to
his station.” Appellant stated that he believed that some of the boxes were as heavy as 70
pounds. He stated that he did not lift and carry boxes, but sometimes took boxes off of the floor
and put them on the belt. Appellant also stated that he twisted to the left and pushed a button to
start the machine.
Dr. Moore completed a report on February 6, 2013 and stated that appellant’s low back
pain became significantly worse after a lifting and twisting episode on July 31, 2012. He stated
that appellant had “acute exacerbation of his underlying symptomatology.” Dr. Moore examined
appellant on August 15, 2012 and diagnosed mechanical low back pain with radiculopathy. He
stated, “It was felt that on July 31, 2012 the lifting and twisting incident caused aggravation of
his preexisting condition.” Dr. Moore stated, “His job description entailed heavy lifting with a
twisting motion. The job description is responsible for his recurrent symptomatology of lumbar
pain with lower extremity radiculopathy including weakness and numbness in both legs. These
symptoms required surgical decompression which was performed on January 31, 2013.”
By decision dated March 20, 2013, OWCP’s hearing representative denied appellant’s
claim on the grounds that there was no specific incident of employment on July 31, 2012 that
caused any aggravation of appellant’s back condition and that by August 15, 2012 his symptoms
had improved.
LEGAL PRECEDENT
OWCP defines 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.”3 In order to
determine whether an employee actually sustained an injury in the performance of duty, OWCP
begins with an analysis of whether fact of injury has been established. Generally, fact of injury
consists of two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
3

20 C.F.R. § 10.5(ee).

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which is alleged to have occurred.4 The second component is whether the employment incident
caused a personal injury and generally can be established only by medical evidence.
With respect to the first component of fact of injury, the employee has the burden of
establishing the occurrence of an injury at the time, place and in the manner alleged, by a
preponderance of the reliable, probative and substantial evidence. An injury does not have to be
confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury in
the performance of duty, but the employee’s statements must be consistent with the surrounding
facts and circumstances and his subsequent course of action. An employee has not met his
burden of proof of establishing the occurrence of an injury when there are such inconsistencies in
the evidence as to cast serious doubt upon the validity of the claim. Such circumstances as late
notification of injury, lack of confirmation of injury, continuing to work without apparent
difficulty following the alleged injury and failure to obtain medical treatment may, if otherwise
unexplained, cast sufficient doubt on an employee’s statements in determining whether a prima
facie case has been established. However, an employee’s statement alleging that an injury
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong or persuasive evidence.5
Second, the employee must submit sufficient evidence, generally only in the form
medical evidence, to establish that the employment incident caused a personal injury.6 A
medical report is of limited probative value on a given medical question if it is unsupported by
medical rationale.7 Medical rationale includes a physician’s detailed opinion on the issue of
whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated employment activity. The opinion of the physician must be based on a complete
factual and medical background of the claim, must be one of reasonable medical certainty, and
must be supported by medical reasoning explaining the nature of the relationship between the
diagnosed condition and specific employment activity identified by the claimant.8
ANALYSIS
Appellant filed a traumatic injury claim alleging that on July 31, 2012 he was performing
his job duties of lifting and twisting when he experienced low back pain and shooting pain into
his legs. He stopped work. Appellant has noted that he had two previous claims for back injury
and was recovering from back surgery on September 22, 2011. He returned to light-duty work
on May 25, 2012 and stopped work on July 31, 2012. Appellant provided several statements that
he was performing his regular light-duty work on July 31, 2012 when he experienced an increase
in his back pain, such that he could no longer work. He stopped work on July 31, 2012 and did
not return.
4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

D.B., 58 ECAB 464, 466-67 (2007).

6

J.Z., 58 ECAB 529 (2007).

7

T.F., 58 ECAB 128 (2006).

8

A.D., 58 ECAB 149 (2006).

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OWCP’s hearing representative denied appellant’s traumatic injury claim on the grounds
that there was no specific incident of employment on July 31, 2012. The Board notes that a
traumatic injury claim includes a 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. Appellant has
identified a series of events within a single workday, July 31, 2012, caused by lifting and
twisting, which affected his back resulting in pain and radiculopathy. The Board finds that the
evidence is sufficient to establish that an event within the definition of a traumatic injury
occurred on July 31, 2012.
The Board finds, however, that appellant has not submitted sufficient medical evidence to
establish his claim. The medical evidence consists of reports from Dr. Moore who examined
appellant on August 10, 2011 and recommended a decompressive laminectomy at L3-4 and
L4-5. Appellant underwent this surgery on September 22, 2011. Dr. Moore examined appellant
on July 2, 2012 and noted appellant’s report of discomfort in the lumbosacral area following a
workday including twisting 4,000 times. In a report dated September 24, 2012, he stated that
appellant reported residual numbness in both legs and exacerbations of low back symptoms with
work activities of repetitive lifting and twisting. Dr. Moore completed a report on February 6,
2013 and stated that appellant’s low back pain became significantly worse after a lifting and
twisting episode on July 31, 2012. He stated that appellant had “acute exacerbation of his
underlying symptomatology.” These reports are not sufficient to meet appellant’s burden of
proof as Dr. Moore merely repeated appellant’s complaints of increased symptoms without
providing any opinion supporting a causal relationship between appellant’s condition and his
employment activities on July 31, 2012.
On August 15, 2012 Dr. Moore diagnosed mechanical low back pain with radiculopathy
and stated that appellant’s employment activities of lifting and twisting on July 31, 2012 caused
aggravation of his preexisting condition. He stated, “[Appellant’s] job description entailed heavy
lifting with a twisting motion. The job description is responsible for his recurrent
symptomatology of lumbar pain with lower extremity radiculopathy including weakness and
numbness in both legs. These symptoms required surgical decompression which was performed
on January 31, 2013.” In a narrative report dated February 6, 2013, Dr. Moore stated that
appellant’s low back pain became significantly worse after a lifting and twisting episode on
July 31, 2012.
He stated that appellant had “acute exacerbation of his underlying
symptomatology.” Dr. Moore stated, “It was felt that on July 31, 2012 the lifting and twisting
incident caused aggravation of his preexisting condition.” He diagnosed lumbar pain with lower
extremity radiculopathy including weakness and numbness in both legs. While these reports
provide an accurate history of injury and an opinion that appellant’s employment aggravated his
underlying condition, Dr. Moore did not provide the necessary rationalized medical opinion
evidence needed to meet appellant’s burden of proof. He did not explain how appellant’s
employment activities on July 31, 2012 resulted in an aggravation of his underlying back
condition. Without medical reasoning supporting his conclusions of causal relationship,
Dr. Moore’s reports are not sufficient to meet appellant’s burden of proof.

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CONCLUSION
The Board finds that appellant has submitted sufficient factual evidence to establish that
his claim is a traumatic injury. The Board further finds that he has not submitted sufficient
medical evidence to meet his burden of proof in establishing that he developed radiculopathy as
a result of his employment.
ORDER
IT IS HEREBY ORDERED THAT the March 20, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: March 19, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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