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

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0436
Issued: January 20, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 18, 2014 appellant, through counsel, filed a timely appeal from an
August 21, 2014 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.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an employment-related injury on January 21, 2012; and (2) whether appellant met his
burden of proof to establish a recurrence of disability on January 21, 2012 causally related to his
May 23, 1991 employment injury.
On appeal, counsel argues that appellant’s original injury in 1991 was permanently
aggravated by his employment duties of January 21, 2012.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on May 23, 1991 appellant sustained a right knee sprain while in the
performance of duty as a carrier. It assigned the claim OWCP File No. xxxxxx082. Appellant
returned to work on November 18, 1991 in a “limited-duty” capacity, a position he continued to
perform until January 22, 2012.
On January 21, 2012 appellant, then a 62-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) assigned OWCP File No. xxxxxx499, alleging that on that date he suffered a
swollen and painful right knee while walking his route.
In a February 13, 2012 report, Dr. Teofilo A. Dauhajre, appellant’s treating Boardcertified orthopedic surgeon, noted that appellant was initially seen at his office on
January 30, 2012. He noted that appellant was a mail carrier in his usual state of health until
January 21, 2012 when he developed increasing pain in his right knee. Dr. Dauhajre noted that
appellant was initially evaluated by his private internist, who placed him on two weeks of
disability and prescribed an analgesic. He noted that his initial impression was internal
derangement of the right knee. Dr. Dauhajre noted that the clinical examination of the right knee
is supportive of pathology localized to the posteromedial joint line of the right knee. He referred
appellant for x-rays and indicated that he was provided total disability from returning back to
work from “January 30 through February 30, 2012” [sic]. Dr. Dauhajre further noted that
appellant was reevaluated on February 6, 2012 and that the x-rays of his right knee on
February 6, 2012 demonstrated moderate tricompartmental knee osteoarthritis with spurring of
the tibial spine and narrowing of the intercondylar notch region, one centimeter lose body in the
posterior joint space, small knee joint effusion, no fractures, or dislocations. His impressions
from this visit were internal derangement of the right knee. Dr. Dauhajre noted that the clinical
examination was supportive of pathology localized to the medial joint line that can be as a result
of his degenerative changes to the medial joint line versus a tear of the posterior horn of the
medial meniscus of the right knee.
In a February 20, 2012 report, Dr. Dauhajre found that appellant was totally disabled
from returning back to work until further notice. Appellant also submitted supporting disability
certificates and duty status reports from Dr. Dauhajre. In a January 30, 2012 disability
certificate, Dr. Dauhajre found that appellant was totally incapacitated from January 30 through
“February 30, 2012” [sic]. In a disability status report of the same date, he listed his clinical
findings as internal derangement of the right knee, questionable tear of the medial meniscus.
Dr. Dauhajre noted that this was due to a January 21, 2012 injury and that appellant was totally
disabled for the aforementioned dates.
In a February 17, 2012 duty status report, received February 28, 2012, Dr. Dauhajre
found that appellant was totally disabled from January 30 through March 30, 2012. In a
February 17, 2012 disability certificate, he noted that appellant’s diagnosis was internal
derangement of knee and tear of medial meniscus of the knee, and that he was totally
incapacitated.
Appellant also submitted notes from his physical therapy sessions with Joseph Banda at
Sports Care of America, PC, dated February 6 and 10, 2012.

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By decision dated March 12, 2012, OWCP denied appellant’s traumatic injury claim in
File No. xxxxxx499 as the medical evidence did not demonstrate that the claimed medical
condition was related to the established employment-related events of January 21, 2012.
On April 5, 2012 appellant requested reconsideration. In a March 5, 2012 report,
Dr. Dauhajre noted continued treatment of appellant for internal derangement of the right knee,
noting that the clinical examination was consistent with chondromalacia of the medial femoral
condyle, and pathology of the medial joint line of the right knee. In an attending physician’s
report of that date, he opined that appellant’s internal derangement of the right knee was causally
related to the employment activity, as appellant was a letter carrier and that required use of his
right knee.
In a March 12, 2012 report, Dr. Dauhajre noted that appellant underwent a magnetic
resonance imaging (MRI) scan of the right knee on March 8, 2012 which demonstrated chronic
anterior cruciate ligament tear; degeneration and tear of posterior horn of the lateral meniscus;
and small joint effusion with slightly complex fluid, tear of the posterior horn of the medial
meniscus adjacent to the meniscal root and probable meniscal ossicle. He also noted that the
MRI scan showed moderate-to-severe cartilage loss in the medial femoral condyle and central
portion of the posterolateral femoral condyle, and that degenerative cartilage loss of the
patellofemoral joint was also present. Dr. Dauhajre listed his impression as internal derangement
of the right knee, probable tear of the posterior horn of the lateral meniscus of the right knee, and
moderate degenerative joint disease of the right knee. In a March 12, 2012 duty status report, he
indicated that appellant was totally disabled from January 30 through April 30, 2012 due to
internal derangement of the right knee and tear of the medial meniscus of the right knee.
The record also contains follow-up reports by Dr. Dauhajre. In a March 24, 2012 report,
Dr. Dauhajre noted that in addition to the prior diagnoses, appellant sustained aggravation of
preexisting degenerative joint disease of the right knee that was asymptomatic prior to the
employment-related injury of January 21, 2012. He then opined, within a reasonable degree of
medical probability, that the above impressions were causally related to appellant’s work-related
activities as a mail carrier that aggravated his preexistent right knee condition that was
asymptomatic prior to January 21, 2012. Dr. Dauhajre concluded, within a reasonable degree of
medical probability, that appellant’s job requirements as a mail carrier, requiring ambulation
approximately five miles per day with weights and climbing up and down hills, was the
competent cause in aggravation of his preexisting right knee condition which had been
asymptomatic until January 21, 2012. He also noted that it was within a reasonable degree of
medical probability, that appellant’s employment-related activities aggravated his preexistent
right knee condition due to having a preexisting anterior cruciate ligament (ACL) tear causing
deficiency in the right knee resulting in progressive degenerative joint disease of the right knee
that was asymptomatic prior to the recent onset at work on January 21, 2012.
In April 2 and 30, 2012 reports, Dr. Dauhajre noted that appellant elected to undergo an
arthroscopy of the right knee. In a June 4, 2012 report, he indicated that appellant was totally
disabled from returning to his regular duties until further notice.

3

Appellant continued to submit treatment notes from his physical therapist at SportsCare.
He also submitted medical reports from the May 23, 1991 employment injury, which included an
operative report from a September 13, 1991 arthroscopic partial medial meniscectomy.
By decision dated July 6, 2012, OWCP denied modification of its March 12, 2012
decision in File No. xxxxxx499.
On October 1, 2012 appellant, through counsel, requested reconsideration. In support of
his reconsideration request, appellant’s counsel submitted a September 4, 2012 medical report
wherein Dr. Leonard Jaffe, an orthopedic surgeon, opined, based on review of his records,
appellant had an aggravation of a preexisting condition resulting from the employment incident
of January 21, 2012. He noted that it was clear that with the aggravation of the preexisting
condition appellant was going to continue to develop progressive degenerative arthritis and in the
future require the need for a total knee replacement. Appellant’s counsel noted that appellant
was originally injured on May 23, 1991 assigned File No. xxxxxx082 and that his doctor at that
time was Dr. Jaffe.
In a December 19, 2012 decision, OWCP denied modification of its July 6, 2012 decision
in File No. xxxxxx499.
Appellant again requested reconsideration. In a January 7, 2013 report, Dr. Jaffe noted
that it was common that an ACL injury will lead to early degeneration and post-traumatic
arthritis. He further noted that in the event appellant has ongoing symptoms and changes in the
symptoms in the form of aggravation of the preexisting injury, appellant may require an
arthroscopic procedure. In a January 22, 2013 note, Dr. Jaffe noted that appellant had been
under his care for many years and was involved in an injury in May 1991 that he sustained at
work. He noted that appellant returned to be evaluated by him on July 26, 2012 after seeing
another orthopedist for problems with his knee after he sustained an employment-related injury
in January 2012. Dr. Jaffe noted that he reevaluated appellant on January 22, 2013. He opined
that as a result of appellant’s walking in the snow in January 2012, he aggravated a preexisting
right knee injury that occurred on May 23, 1991. Dr. Jaffe opined that considering appellant was
doing fairly well until he began walking his route, his prior history of injury, which was of
significant enough magnitude to be severe, resulted in an aggravation of a preexisting condition
and appellant required arthroscopic surgery.
On February 27, 2013 appellant filed a Form CA-2a claim for a recurrence of the
May 23, 1991 employment injury in OWCP File No. xxxxxx082 on January 21, 2012. He
alleged that for the last several years he was driving a truck and on January 21, 2012 the
employing establishment made him deliver mail and his knee swelled up.
By letter dated March 4, 2013, the employing establishment controverted appellant’s
claim for a recurrence in File No. xxxxxx082. It indicated that on January 18, 2012 he was in his
second motor vehicle accident, that his license was revoked until he had remedial training, and
that he was afforded the opportunity to deliver mail since he could not drive pending training.
The employing establishment noted that appellant worked on January 20 and 21, 2012. The
employing establishment noted that his claim in File No. xxxxxx499 was denied by OWCP.

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In an April 29, 2013 decision, OWCP denied modification of its December 19, 2012
decision in File No. xxxxxx499.
By decision dated May 31, 2013, in File No. xxxxxx082, OWCP denied appellant’s claim
for a recurrence of disability because he had not established that he was further disabled due to a
material change or worsening of his accepted work condition.
On June 29, 2013 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative with regard to his recurrence claim in File No. xxxxxx082. At the
hearing held on September 11, 2013, he discussed his prior injury of May 23, 1991, indicated
that his doctor told him at that time that he could expect problems in the future, and stated that
after the initial injury and surgery his knee had some pain in the side and a little instability while
walking, but that with medication he was able to live with pain. Appellant noted that he was
apprehensive to walk at his job because of the condition with his knees and that on January 21,
2012 his knee swelled. Appellant’s counsel argued that if appellant had not delivered mail on
those two days in January 2012 he would still be working because he was functioning in the
other position. He also asked that appellant’s cases be consolidated.
By letter dated September 30, 2013, counsel requested reconsideration of the April 29,
2013 OWCP decision in File No. xxxxxx499. In a statement dated October 4, 2013, appellant
noted that he had a bad injury to his right knee on May 23, 1991, that he underwent surgery by
Dr. Jaffe on September 13, 1991 for a torn meniscus, and that Dr. Jaffe also noted that he had a
torn anterior cruciate ligament. He noted that for the past several years he had been working as a
truck driver for the employing establishment, but was involved in an accident and the employing
establishment indicated that he must deliver mail, that he delivered mail for only two days
(January 20 and 21, 2012), and that when he returned from his route on January 21, 2012 his
right knee was very swollen. Appellant noted that on January 21, 2012 he was going up and
down stairs and stepping through snow while on his route. He attached a supervisor’s report
from the accident.
Appellant also submitted an October 7, 2013 report wherein Dr. Dauhajre continued to
note that appellant was totally disabled. Dr. Dauhajre noted that he reviewed the operative report
of September 13, 1991 and other medical evidence and that within a reasonable degree of
medical probability appellant’s current right knee condition was causally related to his jobrelated activities as a letter carrier for the employing establishment. He noted that according to
appellant, his job description required excessive ambulation of 5 to 6 hours a day, climbing up
and down stairs of approximately 35 to 45 minutes per 8-hour shift, repetitive squatting and
kneeling on the right lower extremity, and carrying objects greater than 50 pounds. Dr. Dauhajre
also noted that appellant’s prior full anterior cruciate ligament tear and medical necessity for a
partial medial meniscectomy of the right knee on September 13, 1991 predisposed him to
progressive degenerative joint disease on the right knee that made his knee more vulnerable to
aggravation and reinjuries to his right knee with his activities of employment. He concluded
that, within a reasonable degree of medical probability, appellant’s current right knee condition
is causally related to his employment-related activity, as the activity resulted in an aggravation of
his preexisting degenerative joint disease of the right knee which had been asymptomatic prior to
the employment-related injury of January 21, 2012. The activity resulted in a probable tear of

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the medial meniscus of the right knee that is noted by clinical examination and by MRI scan of
the right knee on March 8, 2012.
In a November 25, 2013 report, Dr. Dauhajre opined that appellant’s right knee injury
originated on May 23, 1991 and that he currently aggravated his right knee by his job duties of
January 21, 2012. Appellant noted that his employment duties on that date resulted in severe
swelling and aggravation of his right knee condition, as well as a tear of the medial meniscus that
was noted on clinical examination by MRI scan of the right knee on March 8, 2012.
By decision dated December 4, 2013, the hearing representative affirmed OWCP’s
May 31, 2013 decision denying a recurrence of disability in File No. xxxxxx082. The hearing
representative also noted that OWCP should consider combining appellant’s files in xxxxxx499
and xxxxxx082.
In a December 31, 2013 decision, OWCP denied modification of its April 29, 2013
decision in File No. xxxxxx499.
On March 27, 2014 OWCP combined File Nos. xxxxxx499 and xxxxxx082 with File No.
xxxxxx082 as the Master File.
On July 31, 2014 appellant, through counsel, requested reconsideration of the
December 4, 2013 decision in File No. xxxxxx082 and of the December 31, 2013 decision in
File No. xxxxxx499. Counsel requested that the alleged January 21, 2012 employment incident
be approved as an aggravation and that the recurrence of the May 23, 1991 employment injury
be approved. In support thereof, appellant’s counsel submitted new medical evidence.
In a March 13, 2014 operative report, Dr. Jaffe noted that he performed chondroplasty,
significant fibrosis resection, medial, and lateral meniscectomy on appellant.
In a September 10, 2013 report, Dr. Svetlana Salerno, a family practitioner, urged
approval of a right knee arthroscopic surgery which she opined would greatly improve
appellant’s chronic pain and debilitation. She noted that he had an ongoing condition which
caused constant medial and lateral joint line pain, recurrent effusions, and locking and giving out
of the knee. Dr. Salerno noted that appellant is in pain when ambulating, squatting, kneeling,
and climbing, and that he continued to be disabled due to chronic pain.
By decision dated August 15, 2014, OWCP denied modification of its December 31,
2013 decision issued in File No. xxxxxx499, finding that appellant did not establish an injury
resulting from the January 21, 2012 employment incident. It also noted that this case had been
combined with File No. xxxxxx082. OWCP did not provide findings regarding appellant’s
reconsideration request of the December 4, 2013 decision, which affirmed the denial of
appellant’s recurrence claim in File No. xxxxxx082.
On August 21, 2014 OWCP reissued the August 15, 2014 decision, but instead noted File
No. xxxxxx082, which is the master file for both claims.

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LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. 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.2
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 or exposure, which is alleged to have occurred.3
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.4
Under FECA, when employment factors cause an aggravation of an underlying condition,
the employee is entitled to compensation for the periods of disability related to the aggravation.5
Where the medical evidence supports an aggravation or acceleration of an underlying condition
precipitated by working conditions or injuries, such disability is compensable.6 However, the
normal progression of untreated disease cannot be stated to constitute aggravation of a condition
merely because the performance of normal work duties reveals the underlying condition.7 For
the conditions of employment to bring about an aggravation of preexisting disease, the
employment must cause acceleration of the disease or precipitate disability. When the
aggravation is temporary and leaves no permanent residuals, compensation is not payable for
periods after the aggravation ceased.8
OWCP’s definition of a recurrence of disability means an inability to work after an
employee has returned to work, caused by a spontaneous change in a medical condition, which
had resulted from a previous injury or illness without an intervening injury or new exposure.
The term also means the inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
2

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

3

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (August 2012).

4

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

5

Raymond W. Behrens, 50 ECAB 221 (1999); James L. Hearn, 29 ECAB 278 (1978).

6

A.S., Docket No. 16-614 (issued June 25, 2015).

7

Glenn C. Chasteen, 42 ECAB 493 (1991).

8

Raymond W. Behrens, supra note 6.

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injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.9
ANALYSIS
The Board finds that this case is not in posture for decision.
The Board finds that OWCP failed to address all relevant issues in its August 21, 2014
merit decision. Appellant filed a claim for a January 21, 2012 traumatic injury. This claim was
assigned OWCP File No. xxxxxx499. By decision dated March 12, 2012, OWCP denied this
claim. It denied modification of this decision in decisions dated July 6 and December 19, 2012,
and April 29 and December 31, 2013. Meanwhile, on February 27, 2013 appellant filed a claim
for recurrence of a May 23, 1991 injury on January 22, 2012. This file had previously been
assigned OWCP File No. xxxxxx082. This claim for a recurrence was denied on May 31, 2013.
By decision dated December 4, 2013, the hearing representative affirmed the May 31, 2013
decision. At that time the hearing representative also noted that OWCP should consider
combining appellant’s files in File Nos. xxxxxx499 and xxxxxx082. On March 27, 2014 OWCP
combined these two files, with File No. xxxxxx082 serving as the Master File. On July 31, 2014
counsel requested reconsideration of the December 31, 2013 decision concerning appellant’s
claim for a new injury on January 21, 2012 (xxxxxx499) and the December 4, 2013 decision on
the claim that appellant sustained a recurrence of a May 23, 1991 injury on January 22, 2012
(xxxxxx082). However, in its August 21, 2014 decision, OWCP only addressed appellant’s
appeal in OWCP File No. xxxxxx499, the claim for a new injury on January 21, 2012, despite
the fact that appellant also appealed the December 4, 2013 decision regarding his recurrence
claim, OWCP failed to address this issue.
Furthermore, the Board finds that OWCP failed to adequately discuss the facts of the case
and failed to provide a detailed analysis of the issues. An OWCP decision must contain adequate
findings of fact and a statement of reasons.10 In the instant case, OWCP failed to adequately
discuss the medical evidence that was submitted prior to the December 31, 2013 decision. The
Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its
final decision.11 As the Board’s decisions are final with regard to the subject matter appealed, it
is crucial that all relevant evidence be addressed by OWCP.12 OWCP did not provide an
adequate statement of reasons for its findings in light of the medical evidence of record. The
August 21, 2014 OWCP decision provided only a cursory discussion addressing appellant’s
claim for a new injury on January 21, 2012. The rationale for the denial is conclusory and is
insufficiently detailed. Accordingly, the matter shall be returned to OWCP to provide a
comprehensive, supported analysis of appellant’s claims.

9

See John I. Echols, 53 ECAB 481 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

10

20 C.F.R. § 10.126.

11

Id. at § 501.2(c)(1) (2010).

12

Id. at § 501.6(d); see William A. Couch, 41 ECAB 548, 553 (1990).

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CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 21, 2014 is set aside, and the case is remanded for further
consideration pursuant to this decision.13
Issued: January 20, 2016
Washington, DC

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

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

13

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
DEPOT, Corpus Christi, TX, Employer
__________________________________________

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Appearances:
Kenneth A. Weeks, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1447
Issued: October 21, 2014

Case Submitted on the Record

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

JURISDICTION
On June 9, 2014 appellant, through his representative, filed a timely appeal from the
February 25, 2014 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s reconsideration request under
5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 3, 2002 appellant, a 43-year-old pneudraulics systems mechanic, claimed a
traumatic injury in the performance of duty when, while walking down stairs, his right foot

1

5 U.S.C. § 8101 et seq.

slipped, his right knee twisted and he heard a popping sound. OWCP accepted his claim for
right knee sprain/strain and right medial meniscus tear.
Appellant underwent two authorized arthroscopic surgeries. On January 18, 2006 he
received a schedule award for a 22 percent impairment of his right lower extremity.
In 2011 appellant underwent a total right knee replacement. On August 23, 2013 he
received an additional schedule award of 3 percent, representing a total right lower extremity
impairment of 25 percent.
On January 21, 2014 appellant submitted an appeal request form indicating with a
checkmark that he wished to request reconsideration of the August 23, 2013 schedule award.
OWCP received this request on January 29, 2014.
In a decision dated February 25, 2014, OWCP denied appellant’s reconsideration request.
It found that the request neither raised substantive legal questions nor included new and relevant
evidence and was therefore insufficient to warrant a review of the prior decision.
Appellant contends on appeal that an impairment rating of April 23, 2013 showed a
greater impairment.
LEGAL PRECEDENT
OWCP may review an award for or against payment of compensation at any time on its
own motion or upon application.2 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
decision. The request for reconsideration, including all supporting documents, must be in
writing and must set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.3
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.4 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or argument that meets at
least one of these standards. If reconsideration is granted, the case is reopened and the case is
reviewed on its merits. Where the request is timely but fails to meet at least one of these
standards, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.5

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606.

4

Id. at § 10.607(a).

5

Id. at § 10.608.

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ANALYSIS
The Board has no jurisdiction to review the August 23, 2013 additional schedule award.
Appellant had 180 days, or until February 19, 2014, to appeal that decision to the Board. The
only decision that the Board may now review is OWCP’s February 25, 2014 nonmerit decision
denying his reconsideration request.
OWCP received appellant’s reconsideration request within one calendar year of the
August 23, 2013 schedule award decision. Appellant’s request was therefore timely. The
question for determination is whether this request met at least one of the three standards for
obtaining a merit review of his case.
Appellant’s request consisted solely of an appeal request form and a checkmark
indicating that he wished to request reconsideration. He offered no argument or evidence to
support his request. Appellant provided no reason why he wanted OWCP to reconsider the
additional schedule award. Such a bare request is insufficient on its face to warrant a reopening
of his case.6
Appellant’s request did not show that OWCP erroneously applied or interpreted a specific
point of law. It did not advance a relevant legal argument not previously considered by OWCP
nor did it contain relevant and pertinent new evidence not previously considered by OWCP.
As appellant’s request did not meet at least one of these standards, the Board finds that
OWCP properly denied the request. The Board will therefore affirm OWCP’s February 25, 2014
decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s reconsideration request.

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X.R., Docket No. 12-373 (issued June 1, 2012).

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ORDER
IT IS HEREBY ORDERED THAT the February 25, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 21, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
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__________________________________________ )
M.B., Appellant

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

Docket No. 09-1831
Issued: April 26, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 13, 2009 appellant filed a timely appeal of the May 8, 2009 decision of the
Office of Workers’ Compensation Programs which affirmed the denial of his occupational
disease claim on the grounds that it was not timely filed. Under 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he timely filed his occupational disease
claim under 5 U.S.C. § 8122.
FACTUAL HISTORY
On April 1, 2009 appellant, then a retired 68-year-old aircraft mechanic, filed an
occupational disease claim alleging that he developed bilateral knee arthritis as a result of his
work duties which included climbing, standing, bending and squatting. He first related his
bilateral knee condition to his employment on June 1, 1984. Appellant advised that he delayed
in filing a claim for compensation because he was told he could not file a claim and should
accept civil service retirement because it was better to retire than to go out on disability. He first
reported his condition to a supervisor on February 1, 1999, and stopped work on June 2, 2000,

the date he retired from federal service. The supervisor’s report on the CA-2 form noted that
appellant first reported his condition on February 1, 1999.
By letter dated April 7, 2009, the Office requested additional information from appellant
noting that the evidence submitted was insufficient to establish his claim.
Appellant submitted an employee safety health record which noted the hazards associated
with his duties as an aircraft engine mechanic and a record of briefing and job safety training
from 1989 to 1992. He submitted a civil service application form dated October 4, 1965, an
appointment affidavit for an aircraft mechanic dated May 2, 1966, requests for personnel action
dated February 19, 1967 to June 2, 2000 regarding promotions, reassignments, pay adjustment
and retirement.
Appellant submitted medical notes from Dr. John R. Hunter, a Board-certified orthopedic
surgeon, dated December 21, 1999 to February 9, 2000. Dr. Hunter treated appellant for bilateral
knee pain. He reviewed appellant’s job description and opined that prolonged work activities
would aggravate his bilateral knee condition. On January 23, 2004 appellant underwent a right
total knee arthroplasty which was performed by Dr. Thomas K. Tkach, a Board-certified
orthopedic surgeon, who diagnosed severe degenerative arthritis of the right knee. In a
January 13, 2009 report, Dr. John W. Ellis, a Board-certified family practitioner, treated
appellant for his bilateral knee condition. Appellant reported working as an aircraft mechanic for
34 years where he was required to bend, squat, lift and carry heavy engine parts throughout his
day. Dr. Ellis diagnosed repetitive strains and repetitive trauma to the cartilage of both knees
causing severe traumatic arthritis. He opined that the injuries were caused by appellant’s job and
that he was totally disabled. In a patient injury form prepared by appellant, he noted working as
a jet engine mechanic and developing bilateral knee injuries due to his work.
The employing establishment submitted a March 9, 2000 memorandum noting that
appellant was identified as medically disqualified from his position as an aircraft mechanic. On
April 2, 2009 it controverted the claim as appellant failed to timely file an occupational disease
claim within three years of the onset of his condition.
By decision dated May 8, 2009, the Office denied appellant’s claim on the grounds that
the evidence of record failed to establish that it was timely filed in accordance with 5 U.S.C.
§ 8122. It found that appellant first became aware of his condition on June 1, 1984 and was
aware of the relationship between his employment and the claimed condition by that date.
Appellant retired on June 2, 2000 and did not file a claim until April 1, 2009, which was over
three years after he was last exposed to the implicated work factors. It further noted that there
was no evidence that appellant’s supervisor had knowledge of an employment-related injury
within 30 days.
LEGAL PRECEDENT
Section 8122(a) of the Act states that, “[a]n original claim for compensation for disability
or death must be filed within three years after the injury or death.”1 Section 8122(b) provides
that, in latent disability cases, the time limitation does not begin to run until the claimant is
1

5 U.S.C. § 8122(a).

2

aware, or by the exercise of reasonable diligence should have been aware, of the causal
relationship between the employment and the compensable disability.2 The Board has held that,
if an employee continues to be exposed to injurious working conditions after such awareness, the
time limitation begins to run on the last date of this exposure.3
An employee’s claim would still be regarded as timely under section 8122(a)(1) of the
Act if his immediate supervisor had actual knowledge of his alleged employment-related injury
within 30 days. The knowledge must be such as to put the immediate superior reasonably on
notice of appellant’s injury.4 An employee must show not only that his immediate superior knew
that he was injured, but also knew or reasonably should have known that it was an on-the-job
injury.5
ANALYSIS
The Office denied appellant’s claim for compensation on the grounds that he failed to
timely file it in accordance with 5 U.S.C. § 8122. Appellant filed his claim for compensation on
April 1, 2009 alleging that on June 1, 1984 he first became aware that his bilateral knee arthritis
was due to the work duties he performed in federal employment. The record establishes that his
last exposure to the implicated work duties was June 2, 2000, when he retired from federal
service. The time limitation began to run on June 2, 2000, the date appellant was last exposed to
the employment conditions to which he attributed his bilateral knee arthritis. Since he did not
file his claim for occupational disease until April 1, 2009, the Board finds that it was not filed
within the three-year time limitation period.
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of the Act if
his immediate supervisor had actual knowledge of the injury within 30 days of his last exposure
to the conditions alleged to have caused his condition i.e., within 30 days of June 2, 2000. The
knowledge must be such as to put the immediate superior reasonably on notice of an on-the-job
injury or death.6 Additionally, the claim would be deemed timely if written notice of injury or
death was provided within 30 days.7 Appellant’s Form CA-2 indicated that he first reported the
bilateral knee condition to his supervisor on February 1, 1999. This statement is, in and of itself,
insufficient to establish that his supervisor was placed on notice of an on-the-job injury.
Appellant did not submit evidence to establish that his supervisor, another employing
establishment official or an employing establishment physician or dispensary, had actual

2

Id. at § 8122(b).

3

See Larry E. Young, 52 ECAB 264 (2001); Garyleane A. Williams, 44 ECAB 441 (1993); Alicia Kelly, 53
ECAB 244 (2001); Mitchell Murray, 53 ECAB 601 (2002).
4

5 U.S.C. § 8122(a)(1); see also Jose Salaz, 41 ECAB 743 (1990); Kathryn A. Bernal, 38 ECAB 470 (1987); see
also Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3(a)(3) (March 1993).
5

Charlene B. Fenton, 36 ECAB 151 (1984).

6

5 U.S.C. § 8122(a)(1); see Jose Salaz, 41 ECAB 743, 746 (1990); Kathryn A. Bernal, 38 ECAB 470,
472 (1987).
7

5 U.S.C. §§ 8122(a)(1) and (2).

3

knowledge of his claimed employment injury within 30 days after the date of his last exposure to
the implicated employment factor.8
Appellant submitted various documents in support of his claim including a civil service
application form dated October 4, 1965, an appointment affidavit for an aircraft mechanic dated
May 2, 1966, requests for personnel action for a promotion, reassignment, pay adjustment and
retirement dated February 19, 1967 to June 2, 2000. However, none of this evidence establishes
that his supervisor had actual knowledge of the claimed bilateral knee condition and its
relationship to his federal employment. Appellant submitted medical records, including reports
from Dr. Hunter, Dr. Tkach and Dr. Ellis. However, this evidence does not address whether
appellant timely filed a claim for compensation and does not otherwise support that appellant’s
immediate supervisor had the type of knowledge to put him reasonably on notice of an on-thejob injury caused by performing repetitive aircraft mechanic duties.9
The Board finds that appellant has not established actual knowledge by his supervisors of
his work-related condition within 30 days. Therefore, he has not established a timely claim.
Section 8122(d)(3) of the Act10 provides that, time limitations for filing a claim do not
run against any individual whose failure to comply is excused by the Secretary on the grounds
that such notice could not be given because of exceptional circumstances. Appellant’s excuse
for not filing a timely claim was that he was told he could not file a claim and should accept civil
service retirement because it was better to retire than to go out on disability. However, the Board
has held that unawareness of possible entitlement,11 lack of access to information12 and
ignorance of the law or of one’s obligations under it13 do not constitute exceptional
circumstances that could excuse a failure to file a timely claim.14 Appellant has not established
that he could not file a timely claim due to exceptional circumstances as that term is used in
section 8122(d)(3) of the Act. The Board finds that appellant has not established that he timely
filed a claim for compensation within three years after his retirement on June 2, 2000.

8

See Ralph L. Dill, 57 ECAB 248 (2006) (appellant’s statement on his claim form that he reported his injury to
his supervisor was insufficient to show that his supervisor was on notice in the absence of other evidence that his
supervisor had actual knowledge of a work injury within 30 days of his last workplace exposure).
9

See Linda J. Reeves, 48 ECAB 373 (1997) (where the Board held that, while appellant submitted a statement
from a former supervisor that established that he had some knowledge of appellant’s complaints, this statement is
not sufficient to establish that her immediate superior had actual knowledge of a work-related injury as the statement
only makes a vague reference to appellant’s health and does not indicate that she sustained any specific
employment-related injury, rather the knowledge must be such as to put the immediate superior reasonably on notice
of an on-the-job injury or death).
10

5 U.S.C. § 8122(d)(3).

11

See supra note 8.

12

Kathryn L. Cornett (Elmer Cornett), 54 ECAB 812 (2003).

13

George M. Dickerson, 34 ECAB 135 (1982).

14

Michael Thomas Plante, 44 ECAB 510 (1993).

4

On appeal appellant asserts that his bilateral knee condition was a progression of
degenerative arthritis of the knees due to his job. He indicated that his physician advised him
that he could no longer work as an aircraft mechanic and he subsequently filed for civil service
retirement. Appellant asserts that he was never advised of his options and was encouraged to
retire and not file a compensation claim. As noted, the Board has held that unawareness of
possible entitlement, lack of access to information and ignorance of the law or of one’s rights
and obligations under it do not constitute exceptional circumstances that could excuse a failure to
file a timely claim.15
CONCLUSION
The Board finds that the Office properly denied appellant’s compensation claim on the
grounds that he did not establish that his claim was filed within the applicable time limitation
provisions of the Act.
ORDER
IT IS HEREBY ORDERED THAT the May 8, 2009 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 26, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

See supra notes 11-13.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
DEPARTMENT OF THE AIR FORCE, ROBINS
AIR FORCE BASE, Warner Robins, GA,
Employer
__________________________________________

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

Docket No. 20-0433
Issued: August 6, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 18, 2019 appellant filed a timely appeal from a November 6, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the November 6, 2019 decision, OWCP received additional evidence. The Board
notes that appellant further submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On August 12, 2019 appellant, then a 34-year-old aircraft mechanic, filed an occupational
disease claim (Form CA-2) for a cubital nerve injury causally related to factors of his federal
employment including repetitive use of hand tools to perform his work duties. He indicated that
he first became aware of his condition and first realized that it resulted from factors of his federal
employment on July 25, 2019. Appellant did not stop work. In an accompanying narrative
statement, he indicated that his left fourth and fifth fingers and outside palm had been numb since
July 25, 2019. Appellant further noted that his left elbow throbbed at times with numbness
radiating from his left fifth finger to his left elbow due to utilizing ratchets, wrenches, hi-lok tools,
pneumatic hand tools, and other hand tools.
In support of his claim, appellant also submitted a position description and a Notice of
Personnel Action (Form SF-50) dated November 25, 2018.
In a series of reports dated August 5, 12, and 19, 2019, Dr. Sean Moore, a Board-certified
public health and general preventative medicine specialist, diagnosed medial epicondylitis, left
elbow with compression around the cubital tunnel. He noted that appellant reported that he was
installing hi-loks in the cockpit of an F-15 aircraft on July 25, 2019, which required turning a
wrench with appellant’s right hand and holding an Allen key with his left hand. Afterwards,
appellant experienced tenderness in the medial part of his left elbow and tingling in the fourth and
fifth fingers of his left hand. Dr. Moore provided restrictions for light work with minimal repetitive
use of the left hand/arm for up to 2 hours and 40 minutes per 8-hour shift, and no vibratory tools,
awkward use, or strenuous use of the left hand/arm.
In an undated report of work status, the employing establishment indicated that appellant
returned to his date-of-injury position on August 5, 2019 with restrictions accommodated by his
supervisor.
In a development letter dated August 21, 2019, OWCP informed appellant of the type of
factual and medical evidence necessary to establish his claim and provided a questionnaire for his
completion. It afforded him 30 days to submit the necessary evidence. Appellant did not submit
any additional evidence.
By decision dated September 27, 2019, OWCP denied appellant’s occupational disease
claim, finding that the medical evidence was insufficient to establish a causal relationship between
his diagnosed left elbow condition and the accepted factors of his federal employment.
On October 22, 2019 appellant requested reconsideration.
By decision dated November 6, 2019, OWCP denied modification of its September 27,
2019 decision.

2

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,3 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.4 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
To establish that an injury sustained in the performance of duty in an occupational disease
claim, a claimant must submit: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which compensation
is claimed; and (3) medical evidence establishing that the diagnosed condition is causally related
to the identified employment factors.6
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, 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 incident.7
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment.
OWCP received a series of reports from Dr. Moore wherein he noted that appellant
reported an injury to his left arm and hand on July 25, 2019 after installing Hi-Loks in an aircraft
cockpit at work. Appellant explained that his work required repetitive use of hand tools and on
July 25, 2019 he was turning a wrench with his right hand and holding an Allen key with his left
hand and thereafter, began experiencing tenderness in his left elbow and tingling in his left fourth
and fifth fingers. Dr. Moore diagnosed medial epicondylitis of the left elbow with compression
around the cubital tunnel. While he provided a firm medical diagnosis, he did not offer a specific
opinion as to whether appellant’s employment caused or aggravated appellant’s left elbow
3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

J.L., Docket No. 18-1804 (issued April 12, 2019).

3

condition. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value.8 As such, Dr. Moore’s reports are
insufficient to establish appellant’s burden of proof.9
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the November 6, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 6, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8

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

9

R.G., Docket No. 19-0233 (issued July 16, 2019); S.W., Docket No. 18-1489 (issued June 25, 2019).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
SERVICES, NAVAL AIR STATION
COMMISSARY, Meridian, MS, Employer
__________________________________________

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

Docket No. 18-1126
Issued: December 7, 2018

Case Submitted on the Record

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

JURISDICTION
On May 14, 2018 appellant filed a timely appeal from a March 14, 2018 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 to
consider the merits of the case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the March 14, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted December 29, 2017 employment incident.
FACTUAL HISTORY
On January 31, 2018 appellant, then a 49-year-old store worker, filed a traumatic injury
claim (Form CA-1) alleging that, on December 29, 2017, she pulled a muscle in her back unloading
incoming shipments and lifting boxes while in the performance of duty. She did not stop work.
By development letter dated February 9, 2018, OWCP requested that appellant provide
additional factual and medical evidence supporting her traumatic injury claim. Specifically, it
requested that she submit a rationalized medical opinion which explained how a diagnosed medical
condition was causally related to the alleged incident. OWCP noted that the medical evidence
submitted must be from a qualified physician and notified appellant of the circumstances under
which a chiropractor can be considered a physician under FECA. It afforded appellant 30 days to
respond.
Appellant provided a series of notes from Dr. Arthur J. Hall, a chiropractor, beginning
January 31, 2018, indicating that he examined appellant due to a back injury from a work-related
incident. He diagnosed subluxation of L4-5 lumbar vertebra, sprain of ligaments of the lumbar
spine, radiculopathy lumbar region, and low back pain.
By decision dated March 14, 2018, OWCP denied appellant’s traumatic injury claim,
finding that she had not submitted medical evidence containing a medical diagnosis causally
related to the accepted employment incident. It noted that as the evidence submitted from a
chiropractor did not include a diagnosis of subluxation of the spine based on review of x-rays, it
is not considered medical evidence.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that
any disability or specific condition for which compensation is claimed is causally related to the
employment injury. 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.4
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. There
are two components involved in establishing fact of injury. First, the employee must submit
3

Supra note 1.

4

A.D., Docket No. 17-1855 (issued February 26, 2018); Gary J. Watling, 52 ECAB 357 (2001).

2

sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged.5 Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.6
Causal relationship is a medical question, which requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant
s specific employment factors.9
Chiropractors are considered physicians only to the extent that their reimbursable services
are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray.10 Consequently, their medical findings and/or opinions which are not
based on x-rays will not suffice for purposes of establishing entitlement to FECA benefits.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted December 29, 2017 employment incident.
Appellant’s chiropractor, Dr. Hall, diagnosed spinal subluxations at L4-5. The case record,
however, does not contain x-rays of appellant’s spine and Dr. Hall did not indicate that he relied
on x-rays to establish his diagnosis of spinal subluxations. As such, the Board finds that Dr. Hall
is not considered a physician within the meaning of FECA and his reports do not constitute
probative medical evidence.12 As appellant did not submit probative medical evidence, she has

5

A.L., Docket No. 18-0420 (issued August 21, 2018).

6

A.D., supra note 4; T.H., 59 ECAB 388 (2008).

7

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

8

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

9

Id.

10

5 U.S.C. § 8101(2); see A.L., supra note 5; T.W., Docket No. 17-1819 (issued March 14, 2018); Kathryn
Haggerty, 45 ECAB 383, 389 (1994).
11
A.L., supra note 5; R.M., Docket No. 17-1656 (issued January 16, 2018); David P. Sawchuk, 57 ECAB 316, 320
n.11 (2006). Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013).
12
5 U.S.C. § 8101(2); see A.L., supra note 5; R.M., id.; Kathryn Haggerty, 45 ECAB 383, 389 (1994). 20 C.F.R.
§ 10.5(bb); see Bruce Chameroy, 42 ECAB 121, 126 (1990).

3

not met her burden of proof to establish a diagnosed medical condition causally related to the
accepted employment incident.13
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a diagnosed
condition causally related to the accepted December 29, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the March 14, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 7, 2018
Washington, DC

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

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

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

13

Supra note 6.

4


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

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

Docket No. 14-1002
Issued: December 19, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On March 25, 2014 appellant filed a timely appeal from a February 25, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied her
occupational disease 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 met her burden of proof to establish a back and hip injury
causally related to factors of her employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the February 25, 2014 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 with a request for reconsideration.

FACTUAL HISTORY
On November 12, 2013 appellant, then a 63-year-old mail handler, filed an occupational
disease claim alleging that she experienced intermittent pain in her back and hips as a result of
lifting and bending at work. While lifting and bending she felt like she moved the wrong way
and her back and hips would lock up for a minute. Appellant first became aware of her condition
on November 5, 2013 and realized it was due to her employment on November 12, 2013. She
stopped work on November 6, 2013 and returned to work the next day.3
In a November 5, 2013 statement, John W. Norman III, a coworker, stated that on
November 5, 2013 he arrived at the double doors at the entrance of the building when he
observed appellant finishing up the third automated postal center (APC) of her load. The second
APC in her tow line was not moving freely, which caused her to catch the mail staged on the
dock as she attempted to drive around it. Mr. Norman observed that the APC continued to cause
problems so he and another employee helped to unhook the last APC and move the troubled one
to the side.
In a December 3, 2013 letter, Brandon Gardner, a human resource specialist at the
employing establishment, controverted appellant’s claim. He contended she did not submit
sufficient medical evidence addressing how her claimed condition was causally related to her
federal employment. Mr. Gardner also noted that appellant filed a traumatic injury claim for the
same alleged injury.
By letter dated January 9, 2014, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It requested that she submit a factual statement detailing
the employment-related activities that contributed to her condition and activities outside of her
federal employment. OWCP also requested a medical report from an attending physician, which
included an explanation of how appellant’s work activities caused, contributed to or aggravated
her medical condition. It asked appellant to clarify whether she claimed a traumatic injury or an
occupational disease and provided the definitions of both. OWCP sent a development letter to
the employing establishment requesting information regarding her employment.
By letter dated January 22, 2014, Mark Smider, a Distribution Operations Supervisor,
stated that appellant first claimed that she was injured on November 5, 2013 but she did not
report the injury until the next day. He contended that there was no evidence that she sustained
an injury and no witnesses validated an injury on that date. Mr. Smider stated that appellant’s
duties as an equipment operator included bending to hook up containers to the power tug, lifting
and pushing containers into place to hook them up or unhook them and pushing them into the
delivery area. On an average day, appellant hooked up about 300 containers in an eight-hour
workday. She had two 15-minute breaks and one half-hour lunch in a workday, as well as breaks
in-between transporting equipment throughout the building.
Mr. Smider included a description of appellant’s duties as a mail handler and as an
equipment operator. A mail handler’s duties involved unloading mail from trucks, carrying mail
3

The record indicates that appellant also filed a traumatic injury claim for a November 5, 2013 injury, which was
denied under File No. xxxxxx536.

2

to the distributors for processing, handling sacks and inspecting equipment for mail, cancelling
stamps on parcel posts, operating cancelling machines, assisting in supply and slip rooms,
operating copy machine and office-related equipment, making occasional simple distribution of
parcel post mail, operating electric forklifts, rewrapping damaged parcels, weighing incoming
sacks, cleaning and sweeping work areas and acting as an armed guard for a valuable registry
shipment when approved by the chief postal inspector. The duties of a mail handler equipment
operator included operating a jitney, forklift or pallet truck, moving empty equipment utilized in
transporting mail to storage or staging area, performing routine safety inspection of vehicular
equipment, observing established safety practices and requirements, and performing other mail
handler duties.
In a February 6, 2014 prescription notes, Dr. George R. McCollum, a Board-certified
family practitioner, reported that he saw appellant in his office that day for lumbar pain and
spasms caused by a work-related injury.
In a February 7, 2014 return to work note, Dr. Brandon Wentzel, a chiropractor, indicated
that appellant was able to return to work on February 7, 2014 with no restrictions.
In a decision dated February 25, 2014, OWCP denied appellant’s claim finding
insufficient factual evidence to establish that the lifting or bending activities occurred as she
described. It also determined that the medical evidence was insufficient to establish that she
sustained medical condition causally related to her employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5 Whether an employee actually sustained an injury in the
performance of duty begins with an analysis of whether fact of injury has been established. To
establish fact of injury in an occupational disease claim, an employee must submit: (1) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.7 An
4

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

5

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

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

7

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

3

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, as alleged, but the employee’s
statements must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action.8 An employee has not met his or her burden of proof 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 statement in determining whether a prima facie case has been
established.9
The employee must also submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.10 Causal
relationship is a medical issue and the medical evidence generally required to establish causal
relationship is rationalized medical opinion evidence.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
ANALYSIS
Appellant alleged that she sustained a back and hip injury as a result of her duties as a
mail handler at the employing establishment. OWCP denied her claim, finding insufficient
factual and medical evidence to establish that she actually performed any lifting or bending
activities or that she sustained a medical condition as a result of those employment duties. The
Board finds that the evidence of record is sufficient to establish that appellant’s duties as a mail
handler involved repetitive lifting and bending; but, she did not submit sufficient medical
evidence to establish that she sustained a back or hip condition causally related to her
employment duties.
Appellant alleged that she experienced back and hip pain while lifting and bending as a
result of repetitively bending and lifting at work. In a letter dated January 22, 2014, Mr. Smider,
a Distribution Operators Supervisor, stated that she occasionally worked as a mail handler
equipment operator. He confirmed that appellant’s duties as an equipment operator included
“bending to hook up containers to the power tug, lifting and pushing containers into place to
hook them up or unhook them to push them into the delivery area.” The record also contains
8

Gene A. McCracken, Docket No. 93-2227 (issued March 9, 1995); Joseph H. Surgener, 42 ECAB 541,
547 (1991).
9

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

10

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

11

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

12

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

4

position descriptions for a mail handler and mail handler equipment operator positions. The
descriptions corroborate that appellant bent over in a repetitive manner to load and unload mail
and lifted mail and other mail equipment. The Board finds that the evidence of record
establishes that appellant’s duties as a mail handler and equipment operator involve repetitive
bending and lifting.
The Board finds, however, that appellant did not meet her burden of proof to establish
that she sustained a back or hip condition causally related to her employment duties. Appellant
submitted prescription notes dated February 6, 2014 from Dr. McCollum, who noted only that
she was examined in his office for lumbar pain and spasms caused “by a work-related injury.”
The Board has held that pain is generally a description of a symptom, not a firm medical
diagnosis.13 Similarly, spasm is also a symptom.14 Dr. McCollum did not present any findings
from his examination of appellant, did not provide a full or accurate history of appellant’s
condition or offer a firm medical diagnosis of a back or hip condition. Appellant did not submit
a medical report based on a complete factual and medical background, supported by medical
rationale which explained the nature of the relationship between the diagnosed conditions and
the employment factors identified in this case. The Board finds that she has not submitted
sufficient medical evidence to establish her claim.
As to the report of Dr. Wentzel, the chiropractor, the Board notes that under FECA
chiropractors are defined as a “physician” only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist.15 If the diagnosis of a subluxation as demonstrated by x-ray is
not established, the chiropractor is not a physician and his or her report is of no probative
medical value.16 Dr. Wentzel did not diagnose spinal subluxation as demonstrated by x-rays to
exist; therefore, he is not a physician as defined under FECA and his opinion is insufficient to
establish causal relationship.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a medical condition as a result of factors of her employment.

13

See H.B., Docket No. 12-1496 (issued January 19, 2013).

14

See E.B., Docket No. 13-1705 (issued January 8, 2014).

15

5 U.S.C. § 8101(2).

16

See Jack B. Wood, 40 ECAB 95, 109 (1988).

5

ORDER
IT IS HEREBY ORDERED THAT the February 25, 2014 merit decision of the Office
of Workers’ Compensation Programs is affirmed, as modified.
Issued: December 19, 2014
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
East Austin, TX, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-817
Issued: August 1, 2007

Case Submitted on the Record

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

JURISDICTION
On February 5, 2007 appellant, through his attorney, filed a timely appeal from a
January 25, 2007 merit decision of the Office of Workers’ Compensation Programs granting him
a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the schedule award decision.
ISSUE
The issue is whether appellant has more than a three percent permanent impairment of the
left lower extremity for which he received a schedule award.
FACTUAL HISTORY
This case is before the Board for the second time. In the first appeal, the Board affirmed
a February 15, 1995 decision denying appellant’s request for reconsideration of the termination
of his compensation on the grounds that it was untimely and did not establish clear evidence of

error.1 The findings of fact and conclusions of law from the prior decision are hereby
incorporated by reference.
On December 1, 2005 appellant filed a claim for a schedule award. By letter dated
January 24, 2006, the Office requested that Dr. Richard D. Tallman, a Board-certified internist
and neurologist, provide an impairment evaluation in accordance with the American Medical
Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A., Guides).
On January 30, 2006 Dr. Tallman notified the Office that he did not provide impairment ratings.
In a decision dated March 2, 2006, the Office denied appellant’s schedule award claim on
the grounds that the medical evidence was insufficient to show that he was at maximum medical
improvement (MMI) and had a ratable permanent impairment. It noted that it had accepted
appellant’s claim for abdominal strain, a left inguinal hernia, an aggravation of other
monomeuritis of the left lower limb and an aggravation of scrotal varices.
On August 9, 2006 appellant, through his attorney, requested reconsideration. He
submitted an impairment evaluation dated February 17, 2006 from Dr. N.F. Tsourmas, a Boardcertified orthopedic surgeon, who described appellant’s history of a left inguinal hernia at work.
He stated, “[Appellant] underwent a herniorrhaphy [that] was complicated postoperatively by
pain and the appearance of a left varicocele which was operated on. Despite this operative
intervention, subsequent to this operative intervention he became a chronic pain patient for what
was described as ilioinguinal neuropathy.” Dr. Tsourmas noted that appellant sustained
increased pain in the left groin subsequent to a May 2005 motor vehicle accident. On
examination he found an inguinal scar with no hernias. Dr. Tsourmas opined that appellant had
reached MMI. He applied Chapter 6 of the A.M.A., Guides relevant to digestive system and
determined that appellant had a Class II or 10 percent impairment of the whole person due to his
hernia. Dr. Tsourmas opined that appellant had no impairment due to his mononeuritis as it was
controlled by pain medication.
Appellant also submitted a report dated July 24, 2006 from Dr. Richard I. Zamarin, a
Board-certified orthopedic surgeon, who reviewed Dr. Tsourmas’ report and disagreed with his
finding that appellant had no impairment due to mononeuritis. Dr. Zamarin opined that appellant
had a 10 percent sensory impairment due to chronic groin pain and irritation of the
genitoinguinal nerve according to Table 13-23 on page 846 of the A.M.A., Guides. He noted
that Table 17-37 on page 552 of the A.M.A., Guides which provides impairments of the lower
extremity due to nerve deficits, did not refer to the ilioinguinal nerve. Dr. Zamarin assigned the
ilioinguinal nerve five percent which he determined was “in line with injuries to other sensory
nerves in the lower extremities.” Dr. Zamarin multiplied the 10 percent Class II sensory
impairment by the 5 percent assigned to the ilioinguinal nerve to find a 0.5 percent lower
extremity impairment due to mononeuritis.
By decision dated August 21, 2006, the Office denied appellant’s request for merit
review under 5 U.S.C. § 8128. It found that appellant had not submitted any evidence with his
reconsideration request. On August 29, 2006 appellant again requested reconsideration and
resubmitted the reports of Drs. Zamarin and Tsourmas. An Office medical adviser reviewed the
1

Dwight A. Benford, Docket No. 95-2200 (issued November 4, 1997).

2

reports on October 26, 2006 and noted that Dr. Tsourmas found a 10 percent whole person
impairment and Dr. Zamarin found a 0.5 percent lower extremity impairment. He stated, “I am
unable to reconcile these two reports for a probative schedule award determination.” The Office
medical adviser recommended a second opinion evaluation.
On November 13, 2006 the Office referred appellant to Dr. Michael D. LeCompte, an
osteopath, to determine the extent of any permanent impairment of the left lower extremity. On
December 1, 2006 Dr. LeCompte found tenderness to palpation when testing for an inguinal
hernia and over the left testes. He described appellant’s complaints of “tingling in the medial
aspect of the thigh and leg and some erectile dysfunction, occasional grabbing pain in the groin”
and continuous groin pain “exacerbated by working.” Dr. LeCompte opined:
“Based on [appellant’s] mechanism of injury, the medial thigh and medial leg
pain/numbness is not compatible with the mechanism of injury [and], therefore, is
not rated. The diffuse ilioinguinal discomfort is not ratable per se, as a sensory
deficit using the [A.M.A., Guides] 5th ed. However, referencing Figure 18-1 from
the [A.M.A., Guides], [appellant] does have a three [percent] impairment for
pain[-]related impairment that increases the individuals condition slightly.”
An Office medical adviser reviewed Dr. LeCompte’s report and converted his three
percent whole person impairment to a three percent permanent impairment of the left lower
extremity.
By decision dated January 25, 2007, the Office issued appellant a schedule award for a
three percent permanent impairment of the left lower extremity. The period of the award ran for
8.64 weeks, December 1, 2006 to January 30, 2007.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing federal regulation,3 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides (5th ed. 2001) as the uniform standard
applicable to all claimants.4 Office procedures direct the use of the fifth edition of the A.M.A.,
Guides, issued in 2001, for all decisions made after February 1, 2001.5
No schedule award is payable for a member, function or organ of the body that is not
specified in the Act or in the implementing regulations. The Act identifies members such as the
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

20 C.F.R. § 10.404(a).

5

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

3

arm, leg, hand, foot, thumb and finger, functions as loss of hearing and loss of vision and organs
to include the eye.6 Section 8107(c)(22) provides for the payment of compensation for
permanent loss of “any other important external or internal organ of the body as determined by
the Secretary of Labor.” The Secretary of Labor has made such a determination, and pursuant to
the authority granted in section 8107(c)(22), added the breast, kidney, larynx, lung, penis,
testicle, ovary, uterus and tongue to the schedule.7 The Secretary made no provision in the
implementing regulations for a hernia, repair of a hernia or residual abdominal symptomatology.8
Chapter 18 of the A.M.A., Guides provides methods for evaluating impairments due to
pain. Section 18.3d on page 573 of the A.M.A., Guides provides as follows:
“A detailed protocol for assessing pain-related impairments is described below
and outlined in Figure 18-1.
A. Evaluate the individual according to the body or organ rating
system, and determine an impairment percentage. During the
evaluation, the examiner should informally assess pain-related
impairment.
B. If the body system impairment rating appears to adequately
encompass the pain experienced by the individual due to his or
her medical condition, his or her impairment rating is as
indicated by the body system impairment rating.
C. If the individual appears to have pain-related impairment that
has increased the burden of his or her condition slightly, the
examiner may increase the percentage found in A by up to
[three percent].” (Emphasis in the original.)
For impairments that either increases the individual’s impairment more than the three
percent provided above or that are not associated with a ratable impairment in other chapters of
the A.M.A., Guides, a formal assessment of the pain-related impairment must be performed.9
Examiners should not use Chapter 18 to rate pain-related impairments for any condition that can
be adequately rated on the basis of the body and organ impairment systems given in other
chapters of the A.M.A., Guides.10

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404; Henry B. Ford, III, 52 ECAB 220 (2001).

8

See J.D., 58 ECAB ___ (Docket No. 06-1924, issued January 5, 2007).

9

A.M.A., Guides 573.

10

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(June 2003); A.M.A., Guides at 18.3(b); see also Philip Norulak, 55 ECAB 690 (2004).

4

Proceedings under the Act are not adversarial in nature, nor is the Office a disinterested
arbiter. While the claimant has the responsibility to establish entitlement to compensation, the
Office shares responsibility in the development of the evidence. It has the obligation to see that
justice is done.12 Accordingly, once the Office undertakes to develop the medical evidence
further, it has the responsibility to do so in the proper manner.13
11

ANALYSIS
The Office accepted that appellant sustained an inguinal hernia, other mononeuritis of the
left leg and left scrotal varices due to an October 21, 2985 employment injury. Appellant filed a
claim for a schedule award on December 1, 2005. In a report dated February 17, 2006,
Dr. Tsourmas found that appellant had no impairment due to mononeuritis. He further
determined that appellant had a 10 percent impairment pursuant to Chapter 6 of the A.M.A.,
Guides relevant to digestive disorders. Neither section 8107 of the Act, nor section 10.404 of the
regulations, however, provide a schedule award for a hernia or residual abdominal symptoms.14
Thus, Dr. Tsourmas’ report does not establish that appellant sustained a permanent impairment
to a scheduled member.
Dr. Zamarin reviewed Dr. Tsourmas’ report on July 24, 2006 and disagreed with his
finding that appellant had no impairment due to mononeuritis. He applied Chapter 13 of the
A.M.A., Guides relevant to impairments of the central and peripheral nervous system and
determined that he had a 10 percent sensory deficit due to a peripheral nerve disorder according
to Table 13-23 on page 346. Dr. Zamarin then assigned a five percent impairment percentage for
the ilioinguinal nerve which he found in accord with the percentages assigned for other sensory
nerves affecting the lower extremity under Table 17-37 on page 552. He multiplied the 10
percent peripheral nerve deficit by the 5 percent impairment that he assigned to the ilioinguinal
nerve to find a 0.5 percent impairment of the left lower extremity. As noted by Dr. Zamarin,
Table 17-37 of the A.M.A., Guides does not provide an impairment percentage for an
ilioinguinal nerve deficit. Consequently, Dr. Zamarin’s opinion is not in conformance with the
A.M.A., Guides and thus, is of diminished probative value.15
The Office medical adviser was unable to provide an impairment rating under the
A.M.A., Guides based on a review of the opinions of Dr. Tsourmas and Dr. Zamarin. The Office
referred appellant to Dr. LeCompte for a second opinion evaluation. Dr. LeCompte found
tenderness when palpating the inguinal area without evidence of a hernia. Appellant described
tingling in the thigh and leg, some erectile problems and sporadic sharp groin pain which
worsened with work activities. Dr. LeCompte determined that he had no impairment due to his
medial thigh and leg numbness and pain because it was “not compatible with the mechanism of
11

Vanessa Young, 55 ECAB 575 (2004).

12

Richard E. Simpson, 55 ECAB 490 (2004).

13

Melvin James, 55 ECAB 406 (2004).

14

See J.D., supra note 8.

15

Mary L. Henninger, 52 ECAB 408 (2001).

5

injury.” He did not, however, explain his finding that appellant’s leg pain and numbness was not
employment related given that the Office accepted an aggravation of mononeuritis of the left
lower limb. Dr. LeCompte concluded that he had a three percent whole person impairment
pursuant to Figure 18-1 on page 574 of the A.M.A., Guides. An Office medical adviser
reviewed Dr. LeCompte’s report and found that appellant had a three percent left lower
extremity impairment due to pain pursuant to section 18.3d of the A.M.A., Guides. It is unclear,
however, whether Dr. LeCompte based his determination that appellant had an impairment due
to pain on abdominal pain which would not be covered as a scheduled member under the Act and
implementing regulations or on pain of the left lower extremity. Further, Chapter 18 provides
that an impairment percentage determined according to the body or organ rating system in other
chapters may be increased by up to three percent based on an informal pain assessment.16
Dr. LeCompte, however, did not find that appellant had any impairment based on other chapters
of the A.M.A., Guides. In order to provide an impairment due to pain not associated with a
ratable impairment from other chapters, a formal assessment of the pain-related impairment must
be performed under Chapter 18.17 Dr. LeCompte did not provide a formal assessment of
appellant’s pain; consequently, his opinion is not in conformance with the A.M.A., Guides. His
opinion is thus, of little probative value and insufficient to resolve the issue of the extent of any
permanent impairment of appellant’s left lower extremity.
It is well established that proceedings under the Act are not adversarial in nature, nor is
the Office a disinterested arbiter.18 While appellant has the burden to establish entitlement to
compensation, the Office shares responsibility in the development of the evidence to see that
justice is done.19 The Office undertook development of the medical evidence by referring him to
Dr. LeCompte for a second opinion examination. It thus, has an obligation to secure a report
adequately addressing the relevant issue of the extent of appellant’s left lower extremity
impairment. The case will be remanded for the Office to obtain an opinion on the extent of
appellant’s permanent impairment in accordance with the A.M.A., Guides.
CONCLUSION
The Board finds that the case is not in posture for decision.

16

Supra note 9.

17

Id.

18

See Vanessa Young, supra note 11.

19

Richard E. Simpson, supra note 12.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 25, 2007 is set aside and the case is remanded for further
proceedings consistent with this decision by the Board.
Issued: August 1, 2007
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

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Appearances:
Brat Blumstein, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1272
Issued: October 15, 2008

Case Submitted on the Record

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

JURISDICTION
On April 1, 2008 appellant filed a timely appeal of a February 27, 2008 merit decision of
the Office of Workers’ Compensation Programs denying her claim for a recurrence of disability.
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 the Office properly determined that the issue presented was whether
appellant sustained a recurrence of disability.
FACTUAL HISTORY
On September 1, 1989 appellant, then a 43-year-old letter carrier, filed a traumatic injury
claim for a right shoulder injury sustained when she was shot while delivering mail on
August 31, 1989. On November 29, 1989 she filed an occupational disease claim alleging that
she developed stress as a result of the August 31, 1989 incident. The Office administratively
consolidated the claims under File No. 13-898682. Appellant’s claim was accepted for

contusion of the right shoulder and episode of post-traumatic stress disorder (PTSD). She
returned to light duty on November 1, 1992.
By decision dated January 20, 1993, the Office determined that appellant’s actual
earnings in the light-duty position since November 1, 1992 fairly and reasonably represented her
wage-earning capacity. It found that she had no loss of wage-earning capacity.
On March 29, 2006 appellant filed a claim for a recurrence of disability as of
February 2005. In a June 7, 2005 report, Dr. Henry S. Johnson, a Board-certified internist, stated
that appellant’s physical and psychological condition had progressively worsened over the past
five years to the degree that she was totally and permanently disabled. On May 25, 2006 he
indicated that appellant’s acute reaction to stress had degenerated over time and had become
chronic. Dr. Johnson stated that she had developed PTSD as a result of the 1989 shooting
incident, and opined that she was totally disabled due to this condition.
By decision dated June 16, 2006, the Office denied the claim for a recurrence of
disability. It found that the medical evidence did not establish that the claimed recurrence
resulted from the accepted condition. On February 14, 2007 an Office hearing representative
affirmed the June 16, 2006 decision finding that the evidence failed to establish that the alleged
disability was causally related to the accepted employment injury.
On June 4, 2007 appellant requested reconsideration. In a report dated April 19, 2007,
Barbara Sziraki, PhD., a psychologist, stated that appellant had developed PTSD as a result of
her accepted injury. She opined that appellant had been totally disabled since March 7, 2005,
when she stopped working.
By decision dated February 27, 2008, the Office denied modification of its previous
decisions. It found that the evidence failed to establish that appellant sustained a recurrence of
disability.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination, which
remains undisturbed until properly modified.1
The Office’s procedure manual provides that, if a formal loss of wage-earning capacity
decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss. In this instance, the claims examiner will need
to evaluate the request according to the customary criteria for modifying a formal loss of wageearning capacity.2
1

See Sharon C. Clement, 55 ECAB 552 (2004).

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment, Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).

2

Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.3 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.4
ANALYSIS
In the present case, the Office developed the evidence and determined that the issue
presented was whether appellant had established a recurrence of disability as of February 2005.
Under the circumstances of this case, however, the Board finds that the issue presented was
whether the January 20, 1993 wage-earning capacity determination should be modified.
The record reflects that on January 20, 1993 the Office determined that appellant’s wageearning capacity was represented by her actual earnings in a light-duty position since
November 1, 1992. Appellant filed a notice of recurrence, claiming total disability from her job
as of February 2005 and submitted evidence from her treating physicians supporting her inability
to work. The Board has held that, when a wage-earning capacity determination has been issued,
and appellant submits evidence with respect to disability for work, the Office must evaluate the
evidence to determine if a modification of his wage-earning capacity is warranted.5 As noted,
the Office’s procedure manual directs the claims examiner to consider the criteria for
modification when the claimant requests resumption of compensation for total wage loss.
Appellant’s entitlement to compensation is based on the wage-earning capacity determination,
and it remains undisturbed until modified. The Board finds that the Office should have
considered the issue of modification of the wage-earning capacity determination.
CONCLUSION
The Board finds that appellant’s claim for compensation raised the issue of whether a
modification of the January 20, 1993 wage-earning decision was warranted, and the case must be
remanded for a proper decision on the issue presented.

3

Sue A. Sedgwick, 45 ECAB 211 (1993).

4

Id.

5

See Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, supra note 1. The Board notes that
consideration of the modification issue does not preclude the Office from acceptance of a limited period of
employment-related disability, without a formal modification of the wage-earning capacity determination. Id. at
n.10, slip op. at 5; Cf. Elsie L. Price, 54 ECAB 734 (2003) (acceptance of disability for an extended period was
sufficient to establish that modification of the wage-earning capacity determination was warranted).

3

ORDER
IT IS HEREBY ORDERED THAT the February 27, 2008 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision of the Board.
Issued: October 15, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4