United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, CORONADO
STATION, Santa Fe, NM, Employer
__________________________________________

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

Docket No. 13-1308
Issued: January 15, 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 May 8, 2013 appellant filed a timely appeal from an April 4, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly determined appellant’s compensation benefits.
On appeal, appellant contends that he remains entitled to an additional amount of $88.57
in disability compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been on appeal before the Board with respect to the termination
of appellant’s compensation benefits.2 In a February 14, 2013 decision, the Board reversed an
August 31, 2012 OWCP decision terminating benefits effective February 21, 2012. The Board
found an unresolved conflict in medical opinion regarding whether appellant had any continuing
employment-related residuals or disability causally related to his accepted December 4, 1996
employment-related injuries and whether the accepted injuries caused his headache, cervical and
back conditions.3 The facts of the case as set forth in the Board’s prior decisions are hereby
incorporated by reference.4
The record reflects that OWCP previously paid appellant compensation for total
disability in the amount of $797.14 for the period February 12 to 20, 2012 and $2,480.00 for the
period January 15 to February 11, 2012. These payments were based on his date-of-injury
weekly pay rate of $670.50.
By letter dated February 21, 2013, appellant requested that OWCP pay him the
retroactive disability compensation benefits due to him as a result of the Board’s February 14,
2013 decision. In addition, he noted that he was still owed $88.57 for the period OWCP had
failed to pay him for one of the days in the period of February 12 to 20, 2012.
OWCP advised appellant on March 5, 2013 that pursuant to the Board’s February 14,
2013 decision, retroactive compensation for disability in the amount of $33,515.78 had been
approved for February 21, 2012 through February 21, 2013. Appellant received an electronic
payment for the stated amount on March 8, 2013.
In an April 4, 2013 decision, OWCP denied appellant’s claim for the additional
compensation in the amount of $88.57 for February 20, 2012. It noted that he was on the
periodic rolls and received disability compensation every 28 days. OWCP further noted that it
had paid appellant $797.14 for the partial period of disability from February 12 to 20, 2012. It
stated that his periodic gross payment at that time was $2,480.00 and the number of days
between February 12 and 20, 2012 was nine. OWCP then divided $2,480.00 by 28 days which
resulted in $88.57. It then multiplied $88.57 by nine days resulting in $797.14, which appellant
had received.
2

Docket No. 13-47 (issued February 14, 2013).

3

Subsequent to filing of the instant appeal, appellant appealed a February 22, 2013 OWCP decision that
suspended his compensation benefits on the grounds that he failed to attend a scheduled medical examination. In a
September 11, 2013 decision, the Board set aside the February 22, 2013 decision, finding that OWCP improperly
selected an impartial medical specialist to conduct the examination and remanded the case for proper selection of a
referee physician. Docket No. 13-968 (issued September 11, 2013).
4

OWCP accepted that on December 4, 1996 appellant, then a 49-year-old custodial laborer, sustained cervical
and lumbar sprains, myalgias and myositis while in the performance of duty. Appellant stopped work on
December 6, 1996. OWCP placed him on the periodic rolls beginning January 22, 1997 and paid him disability
compensation based on his date-of-injury weekly pay rate of $670.50. Appellant resigned from the employing
establishment in August 1997.

2

LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his duty.5
Section 8105(a) of FECA provides: “If the disability is total, the United States shall pay
the employee during the disability monthly monetary compensation equal to 66 2/3 percent of his
[or her] monthly pay, which is known as his [or her] basic compensation for total disability.”6
Section 8101(4) of FECA defines monthly pay for purposes of computing compensation benefits
as the employee’s pay at the time of injury, time disability began or when compensable disability
recurred, if the recurrence began more than six months after the employee resumed regular fulltime employment with the United States, whichever is greater.7
The word disability is used in several sections of FECA. With the exception of certain
sections where the statutory context or the legislative history clearly shows that a different
meaning was intended, the word as used in FECA means incapacity because of injury in
employment to earn wages which the employee was receiving at the time of such injury. This
meaning, for brevity, is expressed as disability for work.8
ANALYSIS
The Board finds that OWCP properly determined appellant’s pay rate for compensation
purposes and properly compensated appellant for the entire period in question.
The evidence of record reveals that OWCP calculated the pay rate with reference to
appellant’s date-of-injury pay rate, i.e., his pay as of December 4, 1996, which was $670.50 per
week. It properly used the weekly pay rate to calculate his pay rate. OWCP noted that appellant
had gross compensation of $2,480.00, which covered a period of 28 days and then calculated that
the per day rate of compensation was $88.57. It multiplied the per day rate of compensation
times nine days of compensation he was entitled to receive from February 12 to 20, 2012 to
calculate $797.14 in total disability compensation, which it had already paid. The confusion in
this case arose due to a letter from OWCP, dated March 20, 2012, advising appellant that he was
being paid for the period February 11 to 20, 2012 in the amount of $797.14. In fact, the record
reflects that he had already been paid for February 11, 2012 in the previous payment of
$2,480.00 for the period from January 15 to February 11, 2012, but the period for the payment
referenced in the March 20, 2012 letter mistakenly included February 11, 2012. Appellant had
already been paid for February 11, 2012 in the $2,480.00 payment. The March 20, 2012
payment was correct for February 12 to 20, 2012 in the amount of $797.14 (for nine days). The
Board finds that appellant has not submitted any evidence showing that OWCP’s calculation
5

5 U.S.C. § 8102(a).

6

5 U.S.C. § 8105(a). Section 8110(b) of FECA provides that total disability compensation will equal three
fourths of an employee’s monthly pay when the employee has one or more dependents. Id. at § 8110(b).
7

Id. at § 8101(4); see also 20 C.F.R. § 10.5(s); John M. Richmond, 53 ECAB 702 (2002).

8

See Charles P. Mulholland, Jr., 48 ECAB 604, 606 (1997).

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of his pay rate was improper and the evidence of record does not otherwise reveal that an error
was made.
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 OWCP properly calculated appellant’s pay rate for compensation
purposes and he was not entitled to an additional $88.57.
ORDER
IT IS HEREBY ORDERED THAT the April 4, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 15, 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
__________________________________________
D.S., Appellant
and
DEPARTMENT OF THE NAVY, REGIONAL
FIRE-RESCUE, NORTHWEST DISTRICT,
Chesapeake, VA, Employer
__________________________________________

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

Docket No. 07-282
Issued: April 23, 2007

Case Submitted on the Record

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

JURISDICTION
On November 13, 2006 appellant filed a timely appeal from a schedule award decision of
the Office of Workers’ Compensation Programs dated October 24, 2006. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has greater than a five percent hearing loss of both ears for
which he has received a schedule award. On appeal, appellant contends that the pay rate used for
schedule award compensation purposes was incorrect.
FACTUAL HISTORY
On January 27, 2004 appellant, then a 54-year-old retired supervisory firefighter, filed a
Form CA-2, occupational disease claim, alleging that factors of his federal employment caused
hearing difficulty and tinnitus. In an attached statement, he described his employment history
noting that he began civilian employment with the employing establishment in 1975 and became

a firefighter in 1977. Appellant submitted a Notice of Personnel Action, Form 50, noting that he
retired effective February 23, 2002 with a total pay rate of $42,416.00. He also submitted
employing establishment audiograms dating from July 12, 1974 to June 5, 2001 and additional
material regarding his employment.
On March 16, 2004 the Office referred appellant to Dr. Alan S. Keyes, a Board-certified
otolaryngologist, for an impairment evaluation. Dr. Keyes was provided with a statement of
accepted facts and a set of questions. In a report of May 18, 2004, Dr. Keyes diagnosed bilateral
noise-induced sensorineural hearing loss and tinnitus which he advised was due to appellant’s
employment-related noise exposure. He recommended hearing aids and submitted results of
audiometric testing performed by a certified audiologist. The audiogram, performed on April 22,
2004, reflected testing at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second
and revealed the following: right ear -- 20, 20, 25 and 40 decibels; left ear -- 20, 10, 20 and 35
decibels, respectively. Dr. Keys concluded that appellant had a 1.56 percent binaural hearing
loss and an additional 5 percent for tinnitus which impacted his ability to perform activities of
daily living, to total a 6.56 percent binaural impairment.
On May 21, 2005 appellant filed a schedule award claim. On April 11, 2006 the Office
accepted that he sustained employment-related bilateral noise-induced hearing loss. In a report
dated April 23, 2006, an Office medical adviser advised that maximum medical improvement
had been reached on April 22, 2004 and diagnosed bilateral high frequency sensorineural hearing
loss. He authorized a hearing aid for appellant’s right ear and concluded that he had a 0.3125
binaural impairment. In a September 20, 2006 report, the Office medical adviser stated that an
additional five percent impairment was appropriate for appellant’s diagnosed tinnitus. In a
September 30, 2006 report, he advised that appellant had a 5.3125 percent binaural impairment.
By decision dated October 24, 2006, the Office granted appellant a schedule award for a
five percent impairment to both ears, for 10 weeks of compensation to run from April 22 to
June 30, 2004, based on a weekly pay rate of $815.69.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 specifies the number of
weeks of compensation to be paid for permanent loss of use of specified members, functions and
organs of the body.2 The Act does not, however, specify the manner by which the percentage
loss of a member, function or organ shall be determined. The method used in making such a
determination is a matter which rests in the sound discretion of the Office. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants.3 The Office evaluates industrial hearing loss in accordance with the standards
contained in the American Medical Association, Guides to the Evaluation of Permanent
1

5 U.S.C. §§ 8101-8193.

2

Id. at § 8107(c).

3

Renee M. Straubinger, 51 ECAB 667 (2000).

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Impairment (hereinafter A.M.A., Guides).4 Using the frequencies of 500, 1,000, 2,000 and 3,000
cycles per second, the losses at each frequency are added and averaged.5 The “fence” of 25
decibels is then deducted because, as the A.M.A., Guides points out, losses below 25 decibels
result in no impairment in the ability to hear everyday speech under everyday conditions.6 The
remaining amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing
loss.7 The binaural loss is determined by calculating the loss in each ear using the formula for
monaural loss; the lesser loss is multiplied by five, then added to the greater loss and the total is
divided by six to arrive at the amount of the binaural hearing loss.8 The Board has concurred in
the Office’s adoption of this standard for evaluating hearing loss.9
The A.M.A., Guides allow for compensation of up to five percent for tinnitus in the
presence of measurable hearing loss if the tinnitus impacts the ability to perform activities of
daily living.10
ANALYSIS
The Board finds that the record establishes that appellant has no more than a five percent
bilateral hearing loss. The Board notes that the employing establishment’s audiograms dating
from July 12, 1974 to June 5, 2001 do not comport with the appropriate standards because there
is no evidence that appellant underwent examination by an otolaryngologist, that the audiometric
testing was performed by a certified audiologist or that all the equipment used for testing met the
required standards.11
4

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

5

A.M.A., Guides at 250.

6

Id.

7

Id.

8

Id.

9

Horace L. Fuller, 53 ECAB 775 (2002).

10

Leslie M. Mahin, 55 ECAB 311 (2004).

11

The Office has delineated requirements for the type of medical evidence used in evaluating hearing loss. The
requirements, as set forth in the Office’s Procedure Manual, are, inter alia, that the employee undergo both
audiometric and otologic examination; that the audiometric testing precede the otologic examination; that the
audiometric testing be performed by an appropriately certified audiologist; that the otologic examination be
performed by an otolaryngologist certified or eligible for certification by the American Academy of Otolaryngology;
that the audiometric and otologic examination be performed by different individuals as a method of evaluating the
reliability of the findings; that all audiological equipment authorized for testing meet the calibration protocol
contained the accreditation manual of the American Speech and Hearing Association; that the audiometric test
results include both bone conduction and pure tone air conduction thresholds, speech reception thresholds and
monaural discrimination scores; and that the otolaryngologist’s report must include: date and hour of examination,
date and hour of employee’s last exposure to loud noise, a rationalized medical opinion regarding the relation of the
hearing loss to the employment-related noise exposure and a statement of the reliability of the tests. See Federal
(FECA) Procedure Manual, Part 3 -- Requirements for Medical Reports, Special Conditions, Chapter 3.600.8(a)
(September 1995); Raymond Van Nett, 44 ECAB 480 (1993).

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The Office referred appellant for a second opinion evaluation with Dr. Keyes. The Board
finds that the audiometric results submitted by Dr. Keyes conform to applicable criteria and thus,
constitutes the weight of the medical evidence. The Board, however, notes that Dr. Keyes erred
in concluding that appellant had a 6.56 percent impairment. In making this determination,
Dr. Keyes did not follow the proper procedure which is outlined in the A.M.A., Guides because
he multiplied the greater loss of 1.875 by 5 rather than the lesser loss of 0.12 The Office medical
adviser reviewed Dr. Keyes’ report and audiometric findings and properly applied the Office’s
standardized procedures in determining that appellant had a five percent impairment to both
ears.13 He advised that maximum medical improvement was reached on April 22, 2004 and
applied the Office’s standardized procedures to the April 22, 2004 audiogram performed on
Dr. Keyes behalf finding that the recorded frequency levels at the 500, 1,000, 2,000 and 3,000
hertz levels on the right of 20, 20, 25 and 40 respectively totaled a decibel loss of 105. He then
divided this total by 4 which resulted in an average loss of 26.25 decibels. The Office medical
adviser then subtracted the fence of 25 decibels to equal 1.25 decibels which he multiplied by the
established factor of 1.5 to result in a 1.875 percent monaural hearing loss for the right ear. He
then followed the same procedure on the left, noting that testing for the left ear at the frequencies
of 500, 1,000, 2,000 and 3,000 hertz revealed decibel losses of 25, 15, 10 and 25 decibels
respectively, for a total of 75 decibels which, when divided by 4, resulted in an average hearing
loss of 18.75 decibels. He then subtracted the fence of 25 decibels, for a total of 0 which when
multiplied by the established factor of 1.5, equaled a 0 percent monaural hearing loss for the left
ear. The Office medical adviser then multiplied the zero percent monaural hearing loss for the
left ear, as it was the lesser loss by five which yielded a product of zero. He then added the 0 to
the 1.875 percent hearing loss for the right ear, to obtain a total of 1.875 which was divided by 6
in order to calculate a binaural hearing loss of 0.3125. The Office medical adviser then added
the 5 percent binaural impairment for tinnitus, to equal a total binaural impairment of 5.3125
which, when appropriately rounded down,14 equaled a 5 percent binaural hearing loss. The
record establishes that appellant has no more than a five percent binaural hearing impairment.15
On appeal, appellant contends that the pay rate used for schedule award compensation
purposes was incorrect. The Board has held that where an injury is sustained over a period of
time, as in this case, the date of injury is the date of last exposure to those employment factors
causing the injury.16 In determining appellant’s schedule award pay rate, the Office utilized the
pay rate effective February 23, 2002, the date he retired or $815.69 per week. As provided on
the Form 50 found in the record, this was the date of appellant’s last exposure and the pay rate
provided on the Form 50 was $42,416.00 annually or $815.69 per week. There is nothing in the
record to indicate that appellant was entitled to additional pay. The Board, therefore, finds that
12

A.M.A., Guides, supra note 4 at 250.

13

Id.

14

Section 2.5d of the A.M.A., Guides provides that the impairment rating should be rounded to the nearest whole
number. A.M.A., Guides, supra note 4 at 20; see Carl J. Cleary, 57 ECAB ____ (2006).
15

The Board notes that, if appellant’s employment-related hearing loss worsens in the future, he may apply for an
additional schedule award for any increased permanent impairment. Robert E. Cullison, 55 ECAB 570 (2004).
16

Barbara A. Dunnavant, 48 ECAB 517 (1997).

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the Office properly calculated the October 24, 2006 schedule award based on appellant’s pay rate
on the date he retired.17
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
greater than a five percent binaural hearing loss.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 24, 2006 be affirmed.
Issued: April 23, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

17

Id. Appellant also questioned the 3/4 compensation rate. The basic rate of compensation paid under the Act is
66 2/3 percent of the injured employee’s monthly pay. Where the employee has one or more dependents, as in this
case, as defined in the Act, the employee is entitled to have his or her basic compensation augmented at the rate of
8 1/3 percent for a total of 75 percent of monthly pay. 5 U.S.C. § 8110(b). The number of weeks of compensation
for a schedule award is determined by the compensation schedule found in section 8107(c) of the Act. 5 U.S.C.
§ 8107(c); Dennis R. Stark, 57 ECAB____ (Docket No. 05-1826, issued January 10, 2006).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.M., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, Quantico, VA,
Employer
__________________________________________

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

Docket No. 18-0931
Issued: March 20, 2020

Case Submitted on the Record

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

JURISDICTION
On April 3, 2018 appellant filed a timely appeal from a January 3, 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 over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition causally related to the accepted compensable factors of employment.
FACTUAL HISTORY
On August 7, 2017 appellant, then a 33-year-old special agent in training, filed an
occupational disease claim (Form CA-2) alleging that he sustained anxiety as a result of attending

1

5 U.S.C. § 8101 et seq.

a required training class. He identified August 3, 2017 as the date he first realized his condition
and its relationship to his federal employment.
In an undated statement, appellant indicated that he noticed he was having a difficult time
paying attention during the first week of academy training and became very anxious. He further
indicated: that he had a difficult time sleeping, which continued throughout his time there; that he
felt overwhelmed by the amount of information he was learning; that he had a difficult time
retaining information; and that he became more anxious because he could not stay focused.
Appellant noted that he often spent eight hours in the classroom and felt this amount of time and
the large workload were responsible for his anxiety as he had to review topics he had never seen
before. He indicated that he had little time to decompress, and that the anxiety became
overwhelming. Appellant further noted that the elevator next to his room gave off an audible tone
as it stopped on each floor, which made it difficult for him to get a restful night’s sleep.
In a development letter dated August 24, 2017, OWCP informed appellant that the evidence
of record was insufficient to establish his claim. It advised him of the type of medical and factual
evidence required to establish his claim and enclosed a questionnaire. OWCP afforded appellant
30 days to provide the requested information.
Dr. Christopher McManus, a Board-certified internist, noted on August 29, 2017 that
appellant was seen in his office for situational anxiety on August 4 and 15, 2017 when he reported
physical symptoms associated with a career change and training program. He indicated that once
appellant removed himself from that environment, his symptoms ameliorated. Dr. McManus
concluded that appellant currently felt well, that he was stable without any mental health issues,
and that he was fit for regular duty, outside the special program that caused the stress.
On September 1, 2017 appellant responded to OWCP’s questionnaire. He reiterated the
concerns outlined in his earlier undated statement and added that the eight hours spent in the
classroom involved instructors reading off of PowerPoint slides. Appellant indicated that he had
never been under the care of a psychologist or psychiatrist before, had never been hospitalized for
an emotional condition, and had never taken medication for an emotional condition. He further
maintained that he had never had anxiety to his current degree, and had no other sources of stress
during this same time frame. Appellant noted that, after speaking with a nurse at the academy,
withdrawing from training would be his best course of action.
By decision dated January 3, 2018, OWCP denied appellant’s claim. It accepted
employment factors that he spent time in a classroom at the academy with short breaks and a large
workload, that he spent eight hours with the instructors reading off PowerPoint slides, and that his
room was next to an elevator that gave off an audible tone. OWCP found that the medical evidence
of record failed to establish a causal relationship between accepted compensable employment
factors and appellant’s diagnosed condition.
LEGAL PRECEDENT
To establish a claim for an emotional condition in the performance of duty, an employee
must submit: (1) factual evidence identifying employment factors or incidents alleged to have
caused or contributed to his or her condition; (2) medical evidence establishing that he has an
emotional or psychiatric disorder; and (3) rationalized medical opinion evidence establishing that
2

the identified compensable employment factors are causally related to his or her emotional
condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within coverage under FECA.4
When disability results from an emotional reaction to regular or specially assigned work duties or
a requirement imposed by the employment, the disability is deemed compensable.5
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.6 This includes matters
involving the training of an employee.7 Where, however, the evidence demonstrates that the
employing establishment either erred or acted abusively in discharging its administrative or
personnel responsibilities, such action will be considered a compensable employment factor.8
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.9 Rationalized medical opinion evidence is
medical evidence that includes a physician’s rationalized opinion on whether there is a causal
relationship between the employee’s diagnosed condition and compensable employment factors.10
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
compensable employment factors identified by the employee.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an emotional
condition causally related to the accepted compensable factors of employment.
2

See R.B., Docket No. 19-0343 (issued February 14, 2020).

3

28 ECAB 125 (1976).

4

M.A., Docket No. 19-1017 (issued December 4, 2019); Robert W. Johns, 51 ECAB 137 (1999).

5

R.B., supra note 2; Pamela D. Casey, 57 ECAB 160 (2005); supra note 3.

6

D.T., Docket No. 19-1270 (issued February 4, 2020).

7

See supra note 2; L.R., Docket No. 1990 (issued January 27, 2015); James E. Norris, 52 ECAB 93 (2000).

8

M.A., supra note 4.

9

T.H., Docket No. 19-0599 (issued January 28, 2020).

10

K.C., Docket No. 18-0529 (issued January 21, 2020).

11

D.J., Docket No. 19-1301 (issued January 29, 2020).

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OWCP accepted the following employment factors as compensable: that appellant spent
time in training at the academy with short breaks and a large workload, that he spent eight hours
with the instructors reading off of PowerPoint slides, and that his classroom was next to an elevator
that gave off an audible tone. While Dr. McManus indicated that appellant had situational anxiety,
the Board finds that his August 29, 2017opinion, the only medical evidence of record, does not
sufficiently establish a causal connection between the accepted compensable employment factors
and appellant’s diagnosed emotional condition. He did not identify any specific factors as the
cause of appellant’s diagnosed situational anxiety. Although Dr. McManus indicated that a special
program had caused stress, he did not explain, with rationale, how the accepted compensable
employment factors caused or aggravated appellant’s diagnosed situational anxiety. His report is,
therefore, insufficient to meet appellant’s burden of proof.12
As the evidence of record does not contain rationalized medical evidence establishing that
appellant’s emotional condition was caused or aggravated by the accepted compensable
employment factors, the Board finds that he has not met his burden of proof.
Appellant contends on appeal that the employing establishment’s training per se caused his
emotional condition. The Board, however, has long held that matters involving the training of an
employee are administrative functions and, absent error or abuse, are not compensable.13 There is
no evidence here that the employing establishment acted abusively in conducting appellant’s
training.
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 an emotional
condition causally related to the accepted compensable factors of employment.

12

B.W., Docket No. 19-0718 (issued October 18, 2019); William P. George, 43 ECAB 1159 (1992).

13

Supra note 7.

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ORDER
IT IS HEREBY ORDERED THAT the January 3, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 20, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
South Hackensack, NJ, Employer
__________________________________________

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

Docket No. 14-915
Issued: September 15, 2014

Case Submitted on the Record

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

JURISDICTION
On March 13, 2014 appellant, through her attorney, filed a timely appeal from an Office
of Workers’ Compensation Programs’ (OWCP) decision dated November 12, 2013. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly found the date of appellant’s maximum medical
improvement as February 21, 2012.
FACTUAL HISTORY
This case has previously been before the Board.2 Appellant, a 26-year-old letter carrier,
filed a claim for benefits on May 16, 2007 under case number xxxxxx819 after injuring her left
1

5 U.S.C. § 8101 et seq.

2

Docket No. 11-1145 (issued December 6, 2011).

knee on May 12, 2007. OWCP accepted a left knee contusion. Appellant filed an occupational
disease claim for a left knee condition on September 20, 2007 under case number xxxxxx367,
which OWCP accepted for dislocation of the left patella.
On December 23, 2008 appellant underwent arthroscopic surgery for ligament
reconstruction. She filed an occupational disease claim for a left knee condition on June 28,
2009 under case number xxxxxx815, which OWCP accepted for acute exacerbation of the left
medial collateral ligament sprain. The claims were combined under case number xxxxxx819.
In a November 12, 2009 report, Dr. Arthur Becan, Board-certified in orthopedic surgery,
found that appellant had an 18 percent permanent impairment of the left leg pursuant to the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) sixth edition. On examination, appellant had complaint of daily left knee pain, swelling
and stiffness of intermittent severity. Dr. Becan stated that she also had complaint of instability
with locking of her left knee. He diagnosed post-traumatic internal derangement to the left knee,
recurrent patellofemoral instability to the left knee and post-traumatic chondromalacia patella.
Dr. Becan found that the date of maximum medical improvement was November 12, 2009.
On March 11, 2010 appellant claimed a schedule award based on the partial loss of use of
her left lower extremity.
In a June 10, 2010 report, Dr. Henry J. Magliato, Board-certified in orthopedic surgery
and an OWCP medical adviser, found that appellant had an eight percent permanent impairment
of the left lower extremity under the A.M.A., Guides.
On July 23, 2010 OWCP granted appellant a schedule award for an eight percent
permanent impairment of the left leg for the period November 12, 2009 to April 13, 2010, for a
total of 23.04 weeks of compensation.
By decision dated December 20, 2010, an OWCP hearing representative affirmed the
July 23, 2010 decision. In a December 6, 2011 decision, the Board set aside OWCP’s
December 20, 2010 decision, finding that there was a conflict in medical opinion between
Dr. Becan and Dr. Magliato, regarding the extent of permanent impairment to appellant’s left
knee. The facts of this case as set forth in the Board’s December 6, 2011 decision are herein
incorporated by reference.
On December 21, 2011 appellant filed a Form CA-2a claim for benefits, alleging that she
sustained a recurrence of disability on November 29, 2011 which was causally related to her
accepted left knee conditions. She stated on the form that the recurrence was the result of the
employing establishment no longer having light-duty work available for her, within her treating
physician’s prescribed restrictions.
In order to resolve the conflict in medical evidence, OWCP referred appellant for a
referee impairment evaluation with Dr. Ronald E. Gennace, Board-certified in orthopedic
surgery and selected as the impartial medical examiner. In a February 21, 2012 report,
Dr. Gennace found that appellant had a 16 percent permanent impairment of the left lower
extremity under the A.M.A., Guides. He stated that appellant had reached maximum benefit
from treatment and that he considered her last visit in 2009 with her treating physician as the
2

cutoff point. Dr. Gennace stated that she had attained an incomplete recovery with contusion
and a subluxation of the knee and indicated that any further treatment was of a palliative nature.
On April 19, 2012 OWCP accepted appellant’s claim for a recurrence of disability.
In an August 5, 2012 report, Dr. Andrew A. Merola, an OWCP medical adviser and a
specialist in orthopedic surgery, agreed with Dr. Gennace’s 16 percent impairment rating for
appellant’s left leg. He found that the date of maximum medical improvement was February 21,
2012, within a reasonable degree of medical certainty, as that was the date of Dr. Gennace’s
examination upon which the physical findings were used to assess the lower extremity
impairment rating.
By decision dated November 9, 2012, OWCP granted appellant a schedule award for an
additional eight percent impairment to the left leg. This award covered the period October 6,
2012 to March 16, 2013, for an additional 23.04 weeks of compensation. OWCP found that
maximum medical improvement was February 21, 2012, in accordance with the finding of
Dr. Merola.
By letter dated November 15, 2012, appellant’s attorney requested an oral hearing, which
was held on February 6, 2013. At the hearing, counsel challenged OWCP’s finding that the date
of maximum medical improvement was February 21, 2012, the date Dr. Gennace issued his
report. Counsel argued that there was no reason to disturb the original date of maximum medical
improvement, November 12, 2009 and, that appellant had since received no additional treatment.
He contended that the November 9, 2012 eight percent schedule award payment should have
commenced on April 23, 2010, the date payments for the first award ended. As a result of the
2012 date, no schedule award payment was issued because appellant received payments for
wage-loss compensation pursuant to her recurrence of disability claim, which became effective
on November 29, 2011. Counsel contended that, the medical adviser, Dr. Merola, gave no
rationale for selecting the date of maximum medical improvement.
By decision dated March 20, 2013, the hearing representative set aside the November 9,
2012 schedule award decision, finding that the date of maximum medical improvement was not
sufficiently explained. She remanded the case to the district office to obtain clarification from
Dr. Merola.
In a April 8, 2013 report, Dr. Merola explained that he chose the date of Dr. Gennace’s
examination as the date of maximum medical improvement for appellant’s supplemental
schedule award because that was the date upon which the physical examination and findings
were obtained which supported the additional left leg impairment rating. He advised that
Dr. Gennace determined that, since the last day of her treatment in 2009, she had achieved an
incomplete recovery with contusion and a subluxation of the knee.
By decision dated April 17, 2013, OWCP found that the medical evidence supported a
finding that the date of maximum medical improvement was February 21, 2012, the date of
Dr. Gennace’s impartial medical report. It found that Dr. Merola had sufficiently clarified the
rationale for choosing February 21, 2012 as the date for the supplemental schedule award.
OWCP further noted that a schedule award is payable consecutively but not concurrently with

3

wage loss for the same injury; therefore the starting date of the schedule award was adjusted to
October 6, 2012 because appellant received compensation for disability through October 5, 2012.
By letter dated August 22, 2013, appellant’s attorney requested a review of the written
record. He reiterated his arguments regarding the date of maximum medical improvement and
argued that there was a conflict between Dr. Merola and Dr. Becan as to this issue, which
required referral to an impartial medical examiner.
By decision dated November 12, 2013, an OWCP hearing representative affirmed the
April 17, 2013 decision.3
LEGAL PRECEDENT
FECA authorizes the payment of schedule awards for the loss or loss of use of specified
members, organs or functions of the body.4 Such loss or loss of use is known as permanent
impairment. OWCP evaluates the degree of permanent impairment according to the standards
set forth in the specified edition of the A.M.A., Guides.5
Permanent impairment is rated according to the A.M.A., Guides and only after maximum
medical improvement is determined. Impairment should not be considered permanent until a
reasonable time has passed for the healing or recovery to occur. This will depend on the nature
of underlying pathology, as the optimal duration for recovery may vary considerably from days
to months. The clinical findings must indicate that the medical condition is static and well
stabilized for the person to have reached maximum medical improvement.6
The period covered by a schedule award commences on the date that the employee
reaches maximum medical improvement from the residuals of the injury. The question of when
such date has been reached is a factual one that depends upon the medical findings in the record.
The determination of such date is to be made in each case upon the basis of the medical evidence
in that case.7 The date of maximum medical improvement is usually considered to be the date of
the medical examination that determined the extent of the impairment.8

3

OWCP’s hearing representative noted that appellant had returned to full duty with the employing establishment
on April 6, 2013.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).
6

A.M.A., Guides 24 (6th ed. 2009); see Orlando Vivens, 42 ECAB 303 (1991) (a schedule award is not payable
until maximum medical improvement -- meaning that the physical condition of the injured member of the body has
stabilized and will not improve further -- has been reached).
7

Marie J. Born, 27 ECAB 623 (1976).

8

E.g., Richard Larry Enders, 48 ECAB 184 n.12 (1996) (date of the audiologic examination).

4

If the claimant sustains increased impairment at a later date which is due to work-related
factors, an additional award will be payable if supported by the medical evidence. In such a
case, the original award is undisturbed and the new award has its own date of maximum medical
improvement, percent and period of compensability.9
ANALYSIS
Appellant does not dispute the impairment rating she received. She contests the date the
schedule award began.
On appeal, counsel reiterated that there was no reason to disturb the original date of
maximum medical improvement as, November 12, 2009, which was based on Dr. Becan’s
report. He contends that the November 9, 2012 eight percent schedule award should have
commenced on April 23, 2010, the date payments under the first award ended and the period ran
until sometime in October 2010. Counsel also contends that the November 12, 2013 decision of
the hearing representative be set aside and remanded for a new determination as to maximum
medical improvement or a finding of a conflict in medical opinion on this issue.
As noted, the date of maximum medical improvement is usually considered to be the date
of the medical examination that determined the extent of the impairment.10 That date was
February 21, 2012, the date that Dr. Gennace, the impartial medical examiner, issued his report
finding that appellant had a 16 percent left leg impairment, an increase of 8 percent over the
8 percent initially awarded, based on his examination findings and impairment calculations.
Dr. Gennace stated that she reached maximum benefit from treatment as of her last medical visit
in 2009 with her treating physician, at which point any further treatment was palliative. The
Board notes that he also advised that appellant had achieved an incomplete recovery with
contusion and subluxation of the left knee. On April 8, 2013 Dr. Merola, advised that he
determined that the date of Dr. Gennace’s examination, February 21, 2012, to be the date of
maximum medical improvement because that was the date upon which the physical examination
findings were obtained and the most recent rating of impairment was provided. The Board notes
that OWCP’s procedures provide that an additional schedule award has its own date of maximum
medical improvement. For these reasons, the Board finds that OWCP properly found
February 21, 2012 as the date of maximum medical improvement in this case. The Board
affirms the November 12, 2013 decision of OWCP’s hearing representative.
CONCLUSION
The Board finds that OWCP properly determined February 21, 2012 as the date of
maximum medical improvement.

9

Federal (FECA) Procedure Manual see supra note 5, Chapter 2.808.7.b(2) (January 2010).

10

Id.

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ORDER
IT IS HEREBY ORDERED THAT the November 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 15, 2014
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MEDICAL COMMAND, TRIPLER ARMY
MEDICAL CENTER, Honolulu, HI, Employer
__________________________________________

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

Docket No. 21-1122
Issued: March 23, 2022

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 July 6, 2021 appellant filed a timely appeal from a March 23, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

1
The Board notes that, following the March 23, 2021 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 additional
evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

1

ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
a traumatic injury in the performance of duty on January 3, 2021, as alleged.
FACTUAL HISTORY
On January 4, 2021 appellant, then a 58-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on January 3, 2021 she fell due to lightheadedness and hit the floor head
first, the left side of her body, and both knees while in the performance of duty. She stopped work
on the date of the claimed injury. On the reverse side of the claim form, appellant’s supervisor
acknowledged that appellant was injured in the performance of duty.
In support of her claim, appellant submitted discharge instructions dated January 3, 2021
from Dr. Douglas Waffen, a Board-certified emergency medicine specialist. Dr. Waffen
recounted that appellant had experienced a near fainting episode, without loss of consciousness,
which happened when her blood pressure suddenly dropped and not enough blood flowed to the
brain. He listed the causes of sudden blood pressure drop and related that the exact cause of
appellant’s near fainting was unknown. Dr. Waffen diagnosed multiple contusions to the left
periorbital area as well as to the knees.
OWCP received a memorandum dated January 7, 2021 from appellant’s supervisor, A.T.,
which stated that the incident happened in the hallway and that the surface was level and clear
from any obstacles or hazards.
Appellant submitted a medical report dated January 7, 2021 from Dr. Clayton Everline, a
Board-certified sports medicine specialist who noted that appellant had a trip and fall at work and
had fallen head first, impacting her eye. Dr. Everline diagnosed contusion of the left eye,
instability of the left knee joint, post-traumatic osteoarthritis of the left knee, and somatic
dysfunction of the knee region. He also provided appellant with work restrictions.
Appellant submitted an x-ray dated January 7, 2021 from Dr. Thomas Williams, a Boardcertified diagnostic radiologist who diagnosed bilateral knee osteoarthritis.
In reports dated January 15 and February 2, 2021, Dr. Everline related that appellant had
undergone a full cardiac work up and noted assessments, which included aortic valve insufficiency,
unspecified etiology of cardiac valve disease, as well as left eye contusion, left knee joint
instability and post-traumatic osteoarthritis of the left knee.
In a development letter dated February 11, 2021, OWCP advised appellant that additional
factual and medical evidence was necessary to establish her claim. It explained the type of factual
and medical evidence needed and provided her with a questionnaire. The questionnaire noted that
the cause of appellant’s fall was unclear; therefore, appellant was asked to address the
circumstances that caused her to fall, whether she had a history of fainting spells, a heart condition,
or epileptic seizures, whether there was a special hazard or condition, i.e., slippery floor, which
contributed to her fall, and whether she struck anything on the way down. OWCP afforded her 30
days to submit the necessary evidence.

2

In a medical report dated March 3, 2021, Dr. Everline noted that appellant was seen for a
follow-up appointment. He repeated his prior assessments. In a letter dated March 4, 2021,
Dr. Everline related that appellant fell at work on January 3, 2021 and that he had diagnosed
derangement of left knee, post-traumatic osteoarthritis of left knee, and patellar tendinitis of left
knee. He stated that degenerative joint disease is aggravated by prolonged weight-bearing
activities because of the compressive and shear forces applied over the knee during these activities.
In addition, Dr. Everline attested that the force on the knee joint is increased with lifting as well
as walking on an incline or climbing stairs. He opined that given the patient’s history and the
impact with the hospital floor, the incident either caused or aggravated appellant’s diagnosed
medical condition.
By decision dated March 23, 2021, OWCP denied appellant’s claim finding that the
evidence did not support that the injury occurred. It noted that she had alleged on the CA-1 form
that her fall occurred due to light-headedness; however, she had not responded to the questionnaire,
which had asked appellant for further information regarding her medical history of fainting spells,
heart condition, or seizures, as well as details regarding any special conditions, which may have
contributed to her fall. OWCP concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA, 4 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. 5 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. 6
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. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is

3

Id.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

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whether the employment incident caused a personal injury and can be established only by medical
evidence.7
It is a well-settled principle of workers’ compensation law that an injury resulting from an
idiopathic fall where a personal, nonoccupational pathology causes an employee to collapse and
to suffer injury upon striking the immediate supporting surface, and there is no intervention or
contribution by any hazard or special condition of employment, is not within coverage of FECA. 8
Such an injury does not arise out of a risk connected with the employment and is, therefore, not
compensable. 9 However, the fact that the cause of a particular fall cannot be ascertained or that
the reason it occurred cannot be explained, does not establish that it was due to an idiopathic
condition.10
This follows from the general rule that an injury occurring while in the performance of
duty is compensable unless the injury is established to be within an exception to such general
rule.11 OWCP has the burden of proof to submit medical evidence showing the existence of a
personal, nonoccupational pathology if it chooses to make a finding that a given fall is idiopathic
in nature.12 If the record does not establish that the particular fall was due to an idiopathic
condition, it must be considered as merely an unexplained fall, one which is distinguishable from
a fall in which it is definitely proven that a physical condition preexisted and caused the fall.13
ANALYSIS
The Board finds appellant has not met her burden of proof to establish a traumatic injury
in the performance of duty on January 3, 2021, as alleged.
Appellant has not provided sufficient detail to establish that a traumatic incident oc curred
in the performance of duty, as alleged.14 On her Form CA-1 she explained that she experienced

7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

M.A., Docket No. 19-0341 (issued July 10, 2019); H.B., Docket No. 18-0278 (issued June 20, 2018); Carol A.
Lyles, 57 ECAB 265 (2005).
9

Id.; see also D.T., Docket No. 19-1486 (issued January 17, 2020).

10

H.B., supra note 8; M.M., Docket No. 08-1510 (issued November 25, 2008).

11

P.N., Docket No. 17-1283 (issued April 5, 2018); Dora Ward, 43 ECAB 767 (1992).

12

A.B., Docket No. 17-1689 (issued December 4, 2018); P.P., Docket No. 15-0522 (issued June 1, 2016); see
also Jennifer Atkerson, 55 ECAB 317 (2004).
13

P.N., supra note 11; John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988).

14

See J.W., Docket No. 19-0335 (issued July 2, 2019).

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light-headedness and fell. OWCP could not determine, based upon appellant’s vague statement,
whether appellant’s fall was idiopathic or otherwise remained unexplained. 15
Appellant was subsequently provided an opportunity to submit evidence to establish how
her alleged injury occurred on January 3, 2021. By development letter dated February 11, 2021,
OWCP requested that she describe the factual circumstances of her injury and provided her with a
factual development questionnaire for completion. Appellant was specifically asked whether she
had any medical conditions, which caused the fall or whether any employing establishment
conditions, such as a wet floor contributed to her fall. She did not respond to the questionnaire
and failed to provide a narrative statement detailing the traumatic incident. The only explanation
appellant provided pertaining to the alleged January 3, 2021 employment incident is a general and
vague statement noted on her Form CA-1. The evidence of record indicates that Dr. Waffen, in
his January 3, 2021 report, assessed that appellant sustained a near fainting episode due to a drop
in blood pressure, and Dr. Everline on January 15, 2021 ordered a cardiac work up, which revealed
aortic valve insufficiency. By failing to describe the employment incident and any employmentrelated circumstances surrounding her alleged injury, appellant has not established that the
traumatic injury occurred in the performance of duty, as alleged. 16 Thus, the Board finds that
appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on January 3, 2021, as alleged.

15

Id.; see also John R. Black, supra note 13; Judy Bryant, supra note 13; Martha G. List, 26 ECAB 200 (1974).

16

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the March 23, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 23, 2022
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.K., Appellant
and
DEPARTMENT OF THE ARMY, SAVANNA
ARMY DEPOT, Savanna, IL, Employer
__________________________________________

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

Docket No. 17-0308
Issued: December 21, 2017

Case Submitted on the Record

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

JURISDICTION
On November 23, 2016 appellant filed a timely appeal from an August 3, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision, dated November 9, 2015, to the filing of this appeal,
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 request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 17, 1997 appellant, then a 52-year-old purchasing agent, filed a traumatic injury
claim (Form CA-1) alleging that she sustained injury to her legs, arms, and back when her desk
1

5 U.S.C. § 8101 et seq.

leg fell off and the desk collapsed on her. On October 9, 1997 OWCP accepted her claim for
lumbosacral strain. Appellant filed a claim for recurrence of disability (Form CA-2a) on
December 17, 2002 alleging additional back pain. On January 28, 2004 OWCP accepted the
additional condition of cervical radiculopathy as due to her June 17, 1997 work injury. By a
July 15, 2008 decision, it also accepted thoracic strain and thoracic spasm. Appellant returned to
light-duty work, but later retired on July 15, 2004.2
On January 4, 2005 appellant underwent magnetic resonance imaging (MRI) scans of the
cervical, thoracic, and lumbar spines which demonstrated mild spondylosis of the cervical spine
involving multiple levels. Her thoracic MRI scan was normal, while her lumbar MRI scan
showed spondylosis predominately at L4-5 with evidence of disc height loss and mild canal
stenosis. Appellant underwent additional lumbar and thoracic MRI scans on January 4, 2008
which were “essentially normal” and “unremarkable,” respectively. She had a cervical MRI scan
on May 30, 2008 which showed mild-to-moderate spondylosis with no sites of neural
impingement.
Appellant underwent electrodiagnostic testing on February 10, 2009 including
electromyogram and nerve conduction velocity studies which demonstrated normal
electrodiagnostic study of the left upper limb. A lumbar MRI scan on April 1, 2009
demonstrated degenerative changes with no evidence of disc herniation or central spinal stenosis
as well as minimal broad-based posterior disc bulging at L4-5 with no significant nerve root
impingement.
On April 23, 2009 Dr. Curtis Evenson, a physician Board-certified in pain medicine,
reported appellant’s history of injury and noted her lower back pain with leg and thoracic pain.
He diagnosed chronic lower pain with etiology difficult to access and possibly facet pain, as well
as chronic pain with psychological overtones.
In a note dated May 21, 2010, Dr. Fred G. McQueary, a Board-certified orthopedic
surgeon, described appellant’s history of injury and ongoing back pain. He noted that she
received epidural steroid injections in 2000 and 2001. Appellant described her condition as 80
percent lumbar spine pain and 15 percent left leg pain with 5 percent right leg pain.
Dr. McQueary found that her lower extremity reflexes and muscle strength was normal. He
reviewed x-rays which demonstrated lumbar degenerative disc disease. Dr. McQueary
diagnosed multiple level degenerative changes in the spine with facet arthropathy. He
recommended conservative treatment.
Appellant underwent MRI scans on September 27, 2011 which were read as
demonstrating mild degenerative disc disease of the cervical, thoracic, and lumbar spines.
Appellant filed a claim for a schedule award (Form CA-7) on October 28, 2014. In a
letter dated November 12, 2014, OWCP informed her that additional information was necessary
including a detailed medical report addressing her permanent impairment for schedule award
purposes.
2

Appellant’s original employing establishment duty station closed on March 18, 2000. She transferred to U.S.
Army Engineer District, Kansas City, Missouri, effective October 10, 1999.

2

On October 27, 2014 appellant underwent x-rays of her whole spine which demonstrated
mild scoliotic deformity in the lumbar spine, multilevel spurring, and mild multilevel
thoracolumbar spondylosis. Dr. Joel Travis Jeffries, a Board-certified orthopedic surgeon,
examined her on October 27, 2014 and noted her employment injury as well as her reports of
neck, midback, and low back pain with left arm pain and left leg pain. He found diminished
range of motion (ROM) in the cervical spine, mild bilateral grip strength weakness, make-break
weakness of left elbow extension, but intact light touch sensation. Dr. Jeffries reported that
appellant’s thoracolumbar spine had mild-to-moderate mid-thoracic and low lumbar tenderness
with no paraspinous muscle spasm. Appellant had limited lumbar ROM. Dr. Jeffries found
make-break weakness of the left lower extremity with intact sensation to light touch. He
reported that the sitting root test was negative bilaterally.
In a note dated December 15, 2014, appellant’s physician, Dr. Mark W. Drymalski, a
Board-certified physiatrist, noted appellant history of work injury in 1997 and described her
ongoing back pain. He noted that her back pain radiated to her knee a few times a month and
had gone down to her foot rarely. Dr. Drymalski found that appellant’s lower extremity strength
was normal and that her reflexes were symmetrical.
In a letter dated January 15, 2015, OWCP informed appellant that her medical evidence
did not address whether she had reached maximum medical improvement (MMI). On
February 12, 2015 Dr. Drymalski determined that she had reached MMI.
On June 9, 2015 OWCP referred appellant for a second opinion examination with
Dr. Michael S. Clarke, a Board-certified orthopedic surgeon. In a report dated June 29, 2015,
Dr. Clarke reviewed her history of injury and performed an examination. He found that
appellant had no atrophy in her left lower extremity, with equal reflexes, and normal ROM.
Dr. Clarke determined that she had degenerative changes in her spine that were commensurate
with her age, body habitus, and work history. He diagnosed mild lumbar, dorsal, and cervical
spondylosis, and no radiculopathy.
OWCP’s medical adviser reviewed Dr. Clarke’s report on September 23, 2015 and found
that there was no evidence of permanent impairment to either appellant’s upper or lower
extremities as a result of her accepted employment injury.3
By decision dated November 9, 2015, OWCP denied appellant’s claim for a schedule
award finding that the medical evidence of record was insufficient to establish permanent
impairment of a scheduled member.
Following the November 9, 2015 decision, appellant submitted additional medical
evidence. In a note dated October 31, 2015, Dr. Jeffrey Kerr, an osteopath, examined her due to
chronic pain in the back and neck radiating into her legs and arm. He diagnosed acute
3

No schedule award is payable for a member, function, or organ of the body not specified in FECA or in the
regulations. W.D., Docket No. 10-0274 (issued September 3, 2010); William Edwin Muir, 27 ECAB 579 (1976).
Neither FECA nor the regulations provide for the payment of a schedule award for the permanent loss of use of
whole person or the back or spine, as FECA itself specifically excludes the back from the definition of organ.
5 U.S.C. § 8101(19). No claimant is entitled to a schedule award for the spine, but only to resulting impairments to
the upper or lower extremities. Rozella L. Skinner, 37 ECAB 398 (1986).

3

exacerbation of chronic low back pain. On December 17, 2015 Dr. Jeffries found muscle spasms
in appellant’s back and diagnosed acute exacerbation of chronic low back pain.
Dr. Ossama Al-Assafeen, a Board-certified internist, examined appellant on February 3,
2016 and diagnosed acute exacerbation of chronic low back pain with sciatica.
Appellant had additional spine x-rays on April 22, 2016 which showed degenerative
findings. Dr. Drymalski examined her on April 22, 2016 and noted that she reported worsening
numbness in both feet, worse on the left. He found absent bilateral Achilles tendon reflexes.
Dr. Drymalski diagnosed chronic neck and back pain from a work injury.
On May 25, 2016 Dr. Al-Assafeen again diagnosed acute exacerbation of chronic low
back pain and noted that appellant’s increased back pain began when she bent to tie her shoe.
Appellant requested reconsideration on July 8, 2016 and alleged that Dr. Clarke did not
have time for a complete and intensive examination as he was planning to retire. She submitted
a series of medical records from Cathy Gray, a family nurse practitioner, as well as multiple
medical records addressing her various conditions from 1998 through 2015. Appellant submitted
a duplicate copy of Dr. Al-Assafeen’s May 25, 2016 report. She also submitted September 26,
2015 and June 1, 2016 chest x-rays.
By decision dated August 3, 2016, OWCP denied appellant’s request for reconsideration,
finding that the evidence submitted was insufficient to warrant a merit review.
LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.4
Section 10.606(b)(3) of the Code of Federal Regulations provides that a claimant may obtain
review of the merits of the claim by submitting in writing an application for reconsideration
which sets forth arguments or evidence and shows that OWCP erroneously applied or interpreted
a specific point of law; or advances a relevant legal argument not previously considered by
OWCP; or includes relevant and pertinent new evidence not previously considered by OWCP. 5
Section 10.608 of OWCP’s regulations provides that when a request for reconsideration is
timely, but does meet at least one of these three requirements, OWCP will deny the application
for review without reopening the case for a review on the merits.6 Section 10.607(a) of OWCP’s
regulations provides that to be considered timely an application for reconsideration must be
received by OWCP within one year of the date of OWCP’s merit decision for which review is
sought.7
4

Supra note 1.

5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.608.

7

Id. at § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations¸ Chapter 2.1602.4
(February 2016).

4

ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
OWCP issued a November 9, 2015 merit decision denying appellant’s claim for a
schedule award. Appellant timely requested reconsideration on July 8, 2016. When the
underlying compensation issue is a schedule award, an initial question is whether the claimant
has submitted an application for reconsideration or has requested an increased schedule award.
Even if appellant has requested reconsideration, if there is new and relevant evidence with
respect to increased permanent impairment, then a claimant may be entitled to a merit decision
on the issue,8 but when a claimant does not submit any relevant evidence with respect to
increased impairment, then OWCP may properly determine that he or she has filed a request for
reconsideration of a schedule award decision.9 In this case, she did not submit any relevant
evidence with respect to increased permanent impairment and; therefore, OWCP properly
reviewed her submission as a request for reconsideration.
As noted above, to require merit review, the request for reconsideration must set forth
arguments or evidence that shows that OWCP erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered by OWCP, or constitute
relevant and pertinent new evidence not previously considered by OWCP.10
The Board finds that appellant has not submitted argument or evidence that OWCP
erroneously applied or interpreted a specific point of law. Appellant instead generally argued
that Dr. Clarke, the second opinion physician, failed to conduct a complete examination. While
a reopening of a case may be predicated solely on a legal premise not previously considered,
such reopening is not required where the legal contention does not have a reasonable color of
validity.11 Because appellant did not provide any support for his allegation regarding the
deficiencies of Dr. Clarke’s examination, the Board finds that these arguments do not have a
reasonable color of validity.12 Appellant’s argument is therefore insufficient to require OWCP to
reopen her schedule award claim for consideration of the merits.
Appellant also provided additional medical evidence in support of her request for
reconsideration. The Board finds that this evidence is irrelevant to the specific issue for which
OWCP denied her claim and therefore insufficient to require OWCP to reopen her claim for
consideration of the merits. The medical evidence submitted by appellant either predated her
date of MMI as determined by her physician, addressed another part of her body, or was not
8

See Linda T. Brown, 51 ECAB 115 (1999).

9

See J.M., Docket No. 15-1634 (issued September 16, 2016); W.J., Docket No. 12-1746 (issued
February 5, 2013).
10

Supra note 5.

11

M.E., Docket No. 07-1189 (issued September 20, 2007).

12

See O.W., Docket No. 09-0427 (issued November 19, 2009); Jennifer A. Guillary, 57 ECAB 485 (2006).

5

signed by a physician. Healthcare providers such as nurse practitioners and physical therapists
are not considered physicians under FECA and their reports and opinions do not constitute
competent medical evidence sufficient to establish a medical condition, disability, or causal
relationship.13
As appellant did not submit relevant and pertinent new evidence or a relevant legal
argument, OWCP properly declined to reopen her claim for review of the merits of her claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT that August 3, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 21, 2017
Washington, DC

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

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

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

13

5 U.S.C. § 8101(2); see also G.G., 58 ECAB 389 (2007); Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J.
Williams, 40 ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Lanham, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-1875
Issued: March 23, 2010

Case Submitted on the Record

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

JURISDICTION
On July 14, 2009 appellant filed a timely appeal of a June 18, 2009 decision of the Office
of Workers’ Compensation Programs denying her claim for compensation. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury on May 6, 2009 in the performance of duty.
FACTUAL HISTORY
On May 13, 2009 appellant, then a 57-year-old computer specialist, filed a traumatic
injury claim alleging that on May 6, 2009 she slipped on a floor and dislocated her right shoulder
in the performance of duty. She did not stop work.
On May 18, 2009 the Office advised appellant of the factual and medical evidence
necessary to establish her claim and allowed her 30 days to submit such evidence. In particular,

it requested a physician’s report that provided a diagnosis of appellant’s condition and explained
whether such condition was caused or aggravated by the claimed injury.
In a May 6, 2009 report from the employing establishment’s health unit, a nurse noted
that appellant reported sustaining a fall after losing her balance. The nurse also noted possible
right shoulder fracture and an abrasion to the left knee. She found restricted movement of the
right shoulder and no bleeding. The nurse indicated that appellant was transported to a hospital.
In May 6, 2009, discharge instructions, Dr. Yiju Liu, an emergency room physician,
noted that appellant was seen at a hospital on May 6, 2009 for a dislocated shoulder. Dr. Liu
advised that appellant could return to work on May 7, 2009 with lifting restrictions of the right
arm. Dr. Liu advised that appellant follow up with her primary care physician in one week and
keep her sling on for three days.
In a May 7, 2009 employing establishment form report, appellant’s supervisor indicated
that appellant reported slipping on a floor while reaching down for paper and alleged that she
dislocated her right shoulder.
In a June 18, 2009 decision, the Office denied appellant’s claim finding that, although the
evidence supported that the claimed event occurred, there was no medical evidence providing a
diagnosis that could be connected to the event.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of her claim, including the fact that the individual is
an “employee of the United States” within the meaning of the Act; that the claim was filed
within the applicable time limitation; that an injury was sustained while in the performance of
duty as alleged and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury. These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged. Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.3
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
1

5 U.S.C. §§ 8101-8193.

2

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

Id.

2

opinion evidence is medical evidence, which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.4
ANALYSIS
The record reflects that on May 6, 2009 appellant slipped and fell while reaching down
for paper, but the medical evidence does not establish that the May 6, 2009 fall caused or
aggravated appellant’s alleged right shoulder condition.
Dr. Liu’s discharge instructions noted that appellant was seen at the hospital on
May 6, 2009 for a dislocated shoulder. The physician also advised that appellant could return to
work the next day and provided her with recommendations for further medical care. However,
Dr. Liu did not mention or discuss appellant’s fall at work on May 6, 2009, or address whether
her fall caused or aggravated her alleged right shoulder dislocation. The Board has held that
medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.5 Appellant did not submit any
other evidence from a physician, which addressed causal relationship between sustaining a fall at
work and a right shoulder dislocation. As noted, causal relationship is a medical issue. To meet
her burden of proof, appellant must submit medical evidence from a physician addressing how
the May 6, 2009 incident caused or aggravated a specific right shoulder condition.
The record also contains an employing establishment health unit report from a nurse.
However, nurses are not “physicians” as defined under the Act. Their opinions are of no
probative medical value.6
The Office notified appellant of the type of evidence necessary to establish her claim on
May 18, 2009. Specifically, it advised that appellant needed to submit a physician’s report
explaining how the claimed work incident contributed to her right shoulder condition. Appellant
did not submit a reasoned medical opinion explaining how the May 6, 2009 work incident caused
or aggravated a diagnosed medical condition.
On appeal, appellant submitted new evidence and referred the Board to a letter dated
June 18, 2009, an emergency room report and physicians’ reports dated May 18 and
June 2, 2009. The Board may not, however, consider new evidence on appeal. None of these

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
5

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009).

6

Roy L. Humphrey, 57 ECAB 238 (2005). See 5 U.S.C. § 8101(2) (defining the term “physician”); see also
Charley V.B. Harley, 2 ECAB 208 (1949) (the Board held that medical opinion, in general, can only be given by a
qualified physician).

3

reports were of record at the time the Office issued its June 18, 2009 decision.7 Appellant also
asserts that the record contains a report from the employing establishment’s health unit. As
noted, this record was from a nurse and is of no probative medical value. It did not contain a
physician’s opinion regarding whether the May 6, 2009 workplace fall caused or aggravated a
diagnosed medical condition.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a traumatic injury on May 6, 2009 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated June 18, 2009 is affirmed.
Issued: March 23, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

The Board’s review of a case is limited to the evidence that was in the case record that was before the Office at
the time of the Office’s final decision. See 20 C.F.R. § 501.2(c)(1).

4