United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
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L.G., Appellant
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and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Tampa, FL, Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 16-0856
Issued: August 12, 2016

Case Submitted on the Record

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

JURISDICTION
On March 22, 2016 appellant filed a timely appeal from a March 4, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish a traumatic injury in
the performance of duty on January 11, 2016.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence with her appeal to the Board. The Board cannot consider this evidence
as its review is limited to evidence which was before OWCP at the time of its merit decision. 20 C.F.R.
§ 501.2(c)(1); P.W. Docket No. 12-1262 (issued December 5, 2012).

FACTUAL HISTORY
On January 19, 2016 appellant, then a 50-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on January 11, 2016, on her first day of on-the-job
training (OJT), she stepped out of her vehicle “(rear door)” and injured her left rib in the
performance of duty. She indicated that she had either a rib contusion or a fracture. Appellant
stopped work on January 11, 2016. The employing establishment checked the box marked “no”
in response to whether their knowledge of the facts corresponded with statements of appellant. It
indicated “sick call on January 9 first OJT” and then she was injured on January 11, 2016.
In a January 15, 2016 Form CA-17 duty status report, Dr. Ritchie Plummer, an osteopath,
Board-certified in family medicine, noted that appellant stepped out of her truck and fell and
struck her left ribs. He found tenderness in the left ribs and prescribed sedentary work only. In a
disability certificate of the same date, Dr. Plummer indicated that appellant was evaluated and
treated for one week for left rib pain.
A January 16, 2016 computerized tomography (CT) scan of the chest read by Dr. Elliot
Wagner, a Board-certified diagnostic radiologist, revealed no evidence of any displaced fracture
in the rib cage and no pneumothorax. Additionally, the CT scan revealed postoperative status
with pedicle screws and side bars at multiple levels in the dorsolumbar spine.
In a January 18, 2016 statement, Daryl Maung, a customer service supervisor,
controverted the claim. He indicated that appellant called in sick on numerous occasions while
attending the city carrier academy prior to being hired. Mr. Maung explained that on her first
day on the job she “allegedly fell in the grass saying she bruised her ribs?” He advised that
appellant also “allegedly fell” on January 11, 2016 and pointed out that it was not witnessed and
appellant did not report it until January 15, 2016. Mr. Maung indicated that appellant was
working the whole time until January 15, 2016. He further explained that the person who was
training her did not witness the fall. Mr. Maung advised that when appellant came into the
office, she indicated that she was fine and going home and returning the next day for duty. He
also noted that she went to the doctor without their knowledge and then filed a claim.
Mr. Maung advised that he believed the claim was “fraudulent” and she was taking advantage of
the employing establishment.
By letter dated January 26, 2016, OWCP informed appellant of the type of evidence
needed to support her claim and requested that she submit such evidence within 30 days.
Appellant was advised that she had the burden of proof to establish that she was injured as a
result of her work-related duties. OWCP informed her that she needed to submit a detailed
description of how her injury occurred along with factual evidence regarding the incident to
include statements from any persons who witnessed her injury or had immediate knowledge or
other documentation to support her claim.
OWCP received a January 11, 2016 x-ray of the left ribs read by Dr. Kiran Chavda, a
Board-certified interventional radiologist, which revealed no acute fracture or osseous
abnormalities.

2

In a January 11, 2016 report, Dr. Harry Borno, Board-certified in emergency medicine,
noted that appellant had fallen out of her employing establishment vehicle and injured her left
ribs. He examined appellant, reviewed the January 11, 2016 x-rays, and diagnosed rib pain with
no acute fracture and no pulmonary disease.
In a January 15, 2016 Florida Workers’ Compensation Uniform Medical Treatment/
Status Reporting Form, Dr. Plummer diagnosed a rib contusion versus a fracture and prescribed
sedentary duty. He checked the box marked “yes” and advised that the condition was work
related. Dr. Plummer saw appellant again on January 29, 2016 and diagnosed sprain of ribs,
obesity, and provided a zero percent impairment rating. OWCP also received physical therapy
reports and nursing notes.
On February 8, 2016 appellant resigned from the employing establishment. She
explained that, after her fall a couple of weeks ago and the enduring pain from the fall, she
“realized that this career in delivering mail is not the career for me.”3
By decision dated March 4, 2016, OWCP denied appellant’s claim as she had not
submitted evidence establishing that the claimed events occurred as described. It explained that
the manner in which the injury occurred was not clear cut and no response explaining the details
of how the injury occurred had been received.
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 filed within the applicable time limitation
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 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 sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.5

3

The employing establishment submitted the resignation letter along with a February 3, 2016 investigation report
from the employing establishment’s Office of Inspector General, covering the period January 20 to
February 3, 2016. The report noted that the investigation was begun after appellant allegedly injured her ribs/back
on her first day on the job on January 11, 2016 and later filed a workers’ compensation claim. The report noted
observations from video surveillance from January 26 to 29, 2016.
4

Gary J. Watling, 52 ECAB 357 (2001).

5

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

3

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.6
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and her subsequent
course of action. An employee has not met his or her burden in 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. Circumstances such 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 doubt on an employee’s statement
in determining whether a prima facie case has been established.7
ANALYSIS
In this case, appellant alleged that on January 11, 2016 she injured a left rib when she
stepped out of her work vehicle. OWCP denied her claim because she failed to establish the
factual basis of her claim. The Board has carefully reviewed the record and finds that there is
insufficient factual evidence to support fact of injury as alleged.
The Board notes that appellant’s notice of traumatic injury provides very little description
of how the claimed injury occurred. Appellant indicated that she was stepping out of the rear
door of her vehicle, but did not explain how this caused the claimed injury. To clarify how the
injury occurred, OWCP, in a January 26, 2016 letter, advised appellant that she needed to submit
a detailed description of how her injury occurred, along with statements from any persons who
witnessed her injury or had immediate knowledge of the injury or other documentation to
support her claim. However, the Board notes that appellant did not respond to the request for
additional factual information. The record before OWCP at the time of its March 4, 2016
decision does not otherwise have any evidence confirming how the claimed incident occurred.
The need for an explanation by appellant is particularly important as the employing
establishment controverted the claim and noted that there were no witnesses or other evidence to
support the alleged incident. It also noted that appellant waited until January 15, 2016 to report
the claimed January 11, 2016 injury. Because appellant failed to provide the requested factual
information to clarify how her claimed injury occurred, the Board finds that appellant has not
met her burden of proof to establish her claim.
On appeal appellant argues that her injury occurred while at work. She also noted that
she was with a person named “Jesse.” The Board notes however, that the record before the
Board does not contain a statement from appellant or any other person addressing how the
claimed incident occurred on January 11, 2016. 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.

6

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

7

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

4

CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish a traumatic
injury in the performance of duty on January 11, 2016.
ORDER
IT IS HEREBY ORDERED THAT the March 4, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 12, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Butler, PA, Employer
__________________________________________

)
)
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)
)

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

Docket No. 14-673
Issued: July 9, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 29, 2014 appellant, through counsel, filed a timely appeal from an
October 30, 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 appellant met his burden of proof to establish a neck or back injury
in the performance of duty on May 17, 2012.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board.2 Appellant filed a traumatic injury claim
alleging low back and neck injuries in the performance of duty on May 17, 2012. He attributed
his condition to driving a small bus on a bumpy road, with the seat back as far as possible and
being jolted from the bumpy ride. The Board noted that appellant’s attending, orthopedic
surgeon, Dr. John Steele, opined that appellant sustained cervical and lumbar strain/sprains, as
well as an aggravation of spinal stenosis. The Board found that Dr. Steele did not provide a
complete medical history discussing appellant’s prior back and neck injuries, nor did he explain
the nature and extent of any aggravation by the May 17, 2012 employment incident. Dr. Steele
did not provide adequate medical rationale in support of his opinion on causal relation. The
Board affirmed a January 31, 2013 OWCP decision denying the claim for compensation. The
history of the case as provided in the Board’s prior decision is incorporated herein by reference.
On August 30, 2013 appellant requested reconsideration and submitted a March 14, 2013
report from Dr. Steele, who noted that appellant had been tossed around while driving over a
bumpy road on May 17, 2012. He opined that the employment incident aggravated his
preexisting spinal stenosis, stating “Comparing his previous MRI scan reports, his MRI scan
from June 25, 2012 revealed moderately severe spinal stenosis at LS-S1 which was not evident
on his previous MRI scan from 1994.” Dr. Steele also noted that an MRI scan of the cervical
spine revealed a protruding disc at C7-T1, “which was not previously reported on an MRI scan
from 1990. Stenosis was evident at C6-C7 and C7-T1 and was not present in 1990.” With
respect to the claimed sprain and strains, Dr. Steele stated, “Within a reasonable degree of
medical certainty, there is a causal relationship between the mechanism of injury and his
diagnoses of lumbar sprain/strain and cervical sprain/strain. Repeated jarring up and down on
the spine can cause sprain of the musculature and aggravate spinal stenosis[-]related symptoms.”
By decision dated October 30, 2013, OWCP reviewed the case on its merits and denied
modification of the January 31, 2013 decision.
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”3 The
phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of “arising out of and in the course of
employment.”4 An employee seeking benefits under FECA has the burden of establishing that
he or she sustained an injury while in the performance of duty.5

2

Docket No. 13-901 (issued August 1, 2013).

3

5 U.S.C. § 8102(a).

4

Valerie C. Boward, 50 ECAB 126 (1998).

5

Melinda C. Epperly, 45 ECAB 196, 198 (1993).

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 which is alleged to have occurred. The second
component is whether the employment incident caused a personal injury and generally this can
be established only by medical evidence.6
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between a diagnosed
condition and the identified employment factor. The opinion of the physician must be based on a
complete factual and medical background, must be of reasonable medical certainty and
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. The weight of medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.7
ANALYSIS
Dr. Steele submitted a March 14, 2013 report with respect to the conditions claimed as
causally related to the May 17, 2012 employment incident. With respect to an aggravation of
lumbar spinal stenosis, he opined that this condition was causally related to the employment
incident. The Board finds that the medical rationale provided by Dr. Steele is of diminished
probative value. Dr. Steele stated that the MRI scan from June 25, 2012 showed moderately
severe spinal stenosis at L5-S1, whereas “this was not evident” in an MRI scan 18 years earlier.
The one-page opinion provided by him did not set forth a full medical history of appellant’s
cervical or lumbar conditions. This does not cure the deficiency previously noted in this case.
The June 25, 2012 MRI scan documents a spinal stenosis condition; but Dr. Steele did not
adequately explain why there was any contribution from the May 17, 2012 employment incident.
The stated conclusion that jarring up and down can aggravate spinal stenosis does not explain the
nature of such aggravation. Similarly, the existence of a cervical protruding disc on the MRI
scan does not substitute for medical rationale on how or why the condition was related to the
employment incident.
The Board finds that appellant has not established an aggravation of spinal stenosis or the
cervical protruding disc as employment related. In this case, Dr. Steele failed to correct the
deficiencies the Board noted in its prior decision. He did not provide a complete medical history,
and the only additional statement he provided was that being jarred up and down can cause a
sprain. This statement is general, speculative in nature and does not provide the rationale needed
to establish causal relation.

6

See John J. Carlone, 41 ECAB 354, 357 (1989).

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

3

Based on the evidence of record, appellant has not established the claim for
compensation. Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a neck or low
back injury causally related to the May 17, 2012 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 30, 2013 is affirmed.
Issued: July 9, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Marion, IL, Employer
__________________________________________

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)
)

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

Docket No. 21-1058
Issued: March 2, 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, through counsel, filed a timely appeal from a June 2, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 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

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than 29
percent permanent impairment of the left upper extremity, for which he previously received
schedule award compensation.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On September 8, 2003 appellant, then a 41-year-old senior correctional ofﬁcer, filed a
traumatic injury claim (Form CA-1) alleging that on September 6, 2003 he possibly fractured his
left shoulder blade and experienced swelling in his arm when he hit th e corner of a security cabinet
door with his left shoulder while in the performance of duty. He stopped work on the date of
injury. OWCP accepted the claim for complete rotator cuff tear or rupture, other joint derangement
of the left shoulder, sprain of the left shoulder and upper arm, superior glenoid labrum lesion, and
left exostosis, site unspecified. On December 3, 2003 appellant underwent authorized left shoulder
arthroscopic surgery. He returned to full-time, modified-duty work with restrictions, effective
June 8, 2004, until he stopped work on June 24, 2004.4
On August 2, 2004 appellant ﬁled a claim for compensation (Form CA-7) for a schedule
award.
By decision dated June 27, 2005, OWCP granted appellant a schedule award for eight
percent permanent impairment of the left upper extremity. The period of the award ran for 24.96
weeks from December 3, 2004 through May 26, 2005.
In a September 26, 2007 decision, OWCP granted appellant a schedule award for an
additional 10 percent permanent impairment of the left upper extremity, for a total of 18 percent
permanent impairment. The period of the award ran for 31.20 weeks from April 23 through
November 27, 2007.
By decision dated March 19, 2013, OWCP granted appellant a schedule award for an
additional three percent permanent impairment of the left arm, for a total of 21 percent left upper
extremity permanent impairment. The award ran for 9.36 weeks for the period October 26 to
December 30, 2012.
By decision dated August 6, 2018, OWCP expanded the acceptance of appellant’s claim to
include complex regional pain syndrome (CRPS) of the left upper limb.

3

Docket No. 06-2068 (issued April 20, 2007).

4

Appellant retired from the employing establishment effective April 15, 2007.

2

OWCP subsequently received a June 12, 2019 medical report by Dr. John W. Ellis, an
attending Board-certified family practitioner. Dr. Ellis determined that appellant had 16 percent
permanent impairment of the left upper extremity using the diagnosis-based impairment (DBI)
rating method, 45 percent permanent impairment of the left upper extremity using the range of
motion (ROM) rating method, and 80 percent permanent impairment of the left upper extremity
based on the accepted condition of CRPS under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 He
determined that MMI was reached on the date of his evaluation.
On September 15, 2019 Dr. Herbert White, Jr., a Board-certified orthopedic surgeon
serving as an OWCP DMA, reviewed the medical record, including Dr. Ellis’ June 12, 2019
findings. He found that appellant had 13 percent permanent impairment of the left upper extremity
based on CRPS and five percent permanent impairment of the left upper extremity based on a
labral tear using the DBI method, and 36 percent permanent impairment of the left upper extremity
using the ROM method in accordance with the sixth edition of the A.M.A., Guides. Dr. White
determined that the date of MMI was June 12, 2019, the date of Dr. Ellis’ impairment evaluation.
He noted discrepancies in Dr. Ellis’ impairment ratings.
By letter dated October 25, 2019, OWCP requested that Dr. Ellis review Dr. White’s
September 15, 2019 findings. In a November 14, 2019 addendum report, Dr. Ellis disagreed with
the DMA’s 13 percent left upper extremity impairment rating for CRPS and advised that his 80
percent left upper extremity impairment rating for the same condition remained unchanged.
On November 26, 2019 OWCP requested that DMA, Dr. White, review Dr. Ellis’
November 14, 2019 report. In a December 5, 2019 addendum report, the DMA related that
Dr. Ellis did not provide any additional information that would change his impairment rating.
On January 6, 2020 OWCP determined that a conflict in medical opinion existed between
Dr. Ellis and the DMA regarding the extent of appellant’s left upper extremity permanent
impairment. On January 29, 2020 it referred appellant, along with a statement of accepted facts
(SOAF) and the medical record, to Dr. Sunil Dedhia, a Board-certified orthopedic surgeon, for an
impartial medical examination.
In a March 10, 2020 report, Dr. Dedhia on examination of appellant’s left shoulder noted
that there was no evidence of obvious atrophy within the supraspinatus or infraspinatus fossa.
There was tenderness to palpation over the coracoid process, acromioclavicular joint, long head
biceps tendon, posterior capsule. ROM measurements included 90 degrees of flexion, 80 degrees
of abduction, 0 degrees of external rotation, 10 degrees of internal rotation, passive forward
elevation to 100 degrees, and passive adduction to 90 degrees.
Upon gross examination of appellant’s left upper extremity, there was no evidence of
obvious side-to-side upper extremity swelling or edema. There was no appreciable side-to-side
difference in temperature changes throughout the upper arm or forearm and very minimal coolness
was noted over the left hand compared to the right. There was no evidence of obvious hair changes
5

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

3

on the right and left side. There was evidence of curved dystrophic nails on the left side compared
to the right. Skin turgor and texture was fairly symmetric with no evidence of glistening or
nonelastic skin. There was no evidence of obvious changes in the sweat pattern of the left upper
extremity compared to the right. Using Table 15-25 of the sixth edition of the A.M.A., Guides,
Dr. Dedhia assigned a point score of 4 for CRPS, class of diagnosis (CDX), based on his
examination findings. He determined the score of 4 resulted in a class 1 impairment under
Table 15-26. Dr. Dedhia took into account grade modifiers for functional history (GMFH) and
physical examination (GMPE) which resulted in a grade E, 13 percent permanent impairment of
the left upper extremity. He noted that a grade modifier for clinical studies (GMCS) was not
included in his calculations because clinical studies had not been provided to him. Dr. Dedhia
related that appellant had advised that radiographic studies, including a bone scan had been
performed; however, the actual reports and images were not available for his review. Utilizing
Table 15-5, he found that a labrum lesion resulted in a class 1, five percent impairment, with a
range adjustment to grade E based on GMPE and GMFH adjustments. Dr. Dedhia also found a
grade E seven percent impairment, for a full-thickness rotator cuff tear under Table 15-5 based on
GMFH and GMPE findings. He noted that his seven percent impairment rating included all
diagnoses related to appellant’s shoulder condition and was the greater rating based on the DBI
method.
Dr. Dedhia also utilized the ROM method at Table 15-34 to rate permanent impairment of
the left shoulder. He found 3 percent impairment for flexion, 6 percent impairment for abduction,
2 percent impairment for external rotation, 1 percent impairment each for extension and adduction,
and 4 percent impairment for internal rotation, totaling 17 percent permanent impairment of the
left upper extremity. Dr. Dedhia advised that since his 17 percent ROM permanent impairment
rating was greater than the DBI permanent impairment ratings, it was the predominate rating for
appellant’s left shoulder conditions. He determined that appellant had reached MMI.
By letter dated July 10, 2020, OWCP requested that Dr. Dedhia clarify his calculation of
the 17 percent ROM impairment rating as it calculated a 16 percent ROM impairment rating,
whether his 13 percent DBI impairment rating should be added to the 17 percent ROM impairment
rating for a total of 30 percent left upper extremity permanent impairment, and whether his current
total impairment rating considered the 18 percent left upper extremity impairment rating for which
appellant previously received schedule award compensation.
In a September 15, 2020 addendum report, Dr. Dedhia acknowledged that OWCP was
correct in finding that appellant had a 16 percent left shoulder ROM impairment rating. He
therefore found that appellant had 29 percent permanent impairment of the left upper extremity
based on CRPS and shoulder ROM deficits. Dr. Dedhia related that, if appellant had been given
a previous schedule award for 18 percent impairment, then he had an additional 11 percent
permanent impairment. He advised that his 29 percent impairment rating was not in addition to
the 18 percent previously awarded.
OWCP, by decision dated November 12, 2020, granted appellant a schedule award for an
additional 11 percent permanent impairment of the left upper extremity, resulting in a total of 29
percent permanent impairment. The period of the award ran for 34.32 weeks from March 10
through November 5, 2020 and was based on the impartial medical opinion of Dr. Dedhia.

4

On November 19, 2020 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review.
OWCP subsequently received progress notes dated July 3 and August 22, 2018 by
Dr. Alan G. Shepard, a neurologist, who diagnosed Type 1 CRPS of the left upper extremity,
degeneration of the lumbar or lumbosacral intervertebral disc, and hand weakness.
OWCP issued an amended decision dated December 10, 2020, again granting appellant a
schedule award for an additional 11 percent permanent impairment of the left upper extremity, for
a total 29 percent permanent impairment, based on Dr. Dedhia’s impairment rating.
An oral hearing was held on March 18, 2021.
By decision dated June 2, 2021, OWCP’s hearing representative affirmed the
December 10, 2020 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA 6 and its implementing regulations 7 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, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses. 8 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).9 The Board has approved the use
by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 10
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).11 In addressing impairment for the upper extremities, the sixth edition of the
A.M.A., Guides requires identifying the impairment class for the diagnosed condition, which is
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6a (March 2017).
10

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

11

A.M.A., Guides 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement (6 th ed. 2009).

5

then adjusted by GMFH, GMPE, and GMCS. 12 Evaluators are directed to provide rationale for
their impairment rating choices, including the choices of diagnosis from regional grids and
calculations of modifier scores.13
Impairment due to CRPS is evaluated under the scheme found in Table 15-26 (Complex
Regional Pain syndrome (UEI)) as well as Table 15-24 and Table 15-25 and the accompanying
relevant text.14 The grade modifier level (ranging from zero to four) are described from the
categories of functional history, clinical studies, and physical examination. The grade modifier
levels are averaged to arrive at the appropriate overall grade modifier level and to identify a class
rating value. If that class number is not supported by the objective diagnostic criteria point, the
highest class specified by those points is selected. The rating for CRPS is a “stand alone”
approach.15
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that, if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).”16
FECA provides that, if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination. 17
For a conflict to arise, the opposing physicians’ viewpoints must be of virtually equal weight and
rationale.18 Where OWCP has referred the case to an impartial medical examiner (IME) to resolve
a conflict in the medical evidence, the opinion of such a specialist, if sufficiently well-reasoned
and based upon a proper factual background, must be given special weight. 19
ANALYSIS
The Board finds that this case is not in posture for decision.

12

A.M.A., Guides 385-419; see M.P., Docket No. 13-2087 (issued April 8, 2014).

13

D.S., Docket No. 19-0292 (issued June 21, 2019); R.V., Docket No. 10-1827 (issued April 1, 2011).

14

A.M.A., Guides 450-54.

15

Id.

16

FECA Bulletin No. 17-06 (May 8, 2017).

17

5 U.S.C. § 8123(a); A.R., Docket No. 18-0632 (issued October 19, 2018).

18

C.H., Docket No. 18-1065 (issued November 29, 2018.

19

W.M., Docket No. 18-0957 (issued October 15, 2018).

6

OWCP properly found a conflict in the medical opinion evidence between appellant’s
attending physician, Dr. Ellis and the DMA, Dr. White, regarding the extent of permanent
impairment of the left upper extremity due to his accepted left shoulder injury. It referred
appellant’s case to Dr. Dedhia pursuant to 5 U.S.C. § 8123(a) for an impartial medical examination
in order to resolve the conflict in medical opinion. In his March 10, 2020 report, the IME,
Dr. Dedhia, reviewed appellant’s history of injury and the relevant medical evidence, and provided
physical examination findings. He noted appellant’s accepted conditions of left shoulder,
including rotator cuff tear and left arm CRPS. In evaluating appellant’s permanent impairment
due to CRPS, using the DBI method at Table 15-25 of the sixth edition of the A.M.A., Guides,
Dr. Dedhia assigned a point score of 4 due to his examination findings. He determined that, under
Table 15-26, the CDX for appellant’s CRPS resulted in a class 1 impairment. Dr. Dedhia
considered adjustments for GMFH and GMPE which resulted in a grade E impairment with a
default value of 13 percent permanent impairment. He noted that an adjustment for GMCS was
not applicable as clinical studies had not been provided to him.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden of proof to establish entitlement to compensation. However,
OWCP shares responsibility in the development of the evidence to see that justice is done. 20 Once
it undertakes development of the record, it must do a complete job in procuring medical evidence
that will resolve the relevant issues in the case. 21
In a situation where OWCP secures an opinion from an IME for the purpose of resolving
a conflict in the medical evidence and the opinion from such IME requires clarification or
elaboration, it has the responsibility to secure a supplemental report from the examiner for the
purpose of correcting the defect in the original opinion. 22
The Board finds that while Dr. Dedhia attempted to rate appellant’s permanent impairment
of the left shoulder for CRPS, he clearly noted that appellant’s entire medical record, including all
diagnostic studies, was not provided for his review. He therefore did not apply the GMCS in the
net adjustment formula. OWCP should have referred the entire medical record including all
diagnostic reports and/or studies to Dr. Dedhia, once he noted this discrepancy. 23 On remand it
shall refer appellant’s entire medical record to Dr. Dedhia and request that he provide a
supplemental opinion regarding appellant’s permanent impairment of the left shoulder based upon
his CRPS diagnosis.
The Board also notes that Dr. Dedhia also used the ROM method under Table 15-34 to rate
permanent impairment of appellant’s left shoulder. Dr. Dedhia found 3 percent impairment for
flexion, 6 percent impairment for abduction, 2 percent impairment for external rotation, 1 percent
20

See L.B., Docket No. 19-0432 (issued July 23, 2019); William J. Cantrell, 34 ECAB 1223 (1983).

21

Id.; see also S.A., Docket No. 18-1024 (issued March 12, 2020).

22

J.C., Docket No. 20-0064 (issued September 4, 2020); S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy
Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).
23

Id.

7

impairment each for extension and adduction, and 4 percent impairment for internal rotation,
totaling 17 percent permanent impairment of the left upper extremity. However, he did not record
or otherwise report that he had taken three independent ROM measurements of appellant’s left
shoulder.24 On remand, OWCP should also request that Dr. Dedhia explain whether three ROM
measurements were taken to evaluate appellant’s left shoulder loss of ROM. Following this and
other such further development, as deemed necessary, it shall issue a de novo decision on
appellant’s schedule award claim.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 2, 2021 decision of the Office of Workers’
Compensation Programs is set aside. The case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: March 2, 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

24

The Board also notes that the record does not substantiate that Dr. Dedhia was advised by OWCP that three
independent measurements were necessary.

8


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

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

Docket No. 11-465
Issued: October 26, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On December 14, 2010 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ (OWCP) merit decision dated December 2, 2010 finding that he had
received an overpayment of compensation resulting from the application of the incorrect pay rate
when calculating his schedule awards. The Board docketed the appeal as No. 11-465.
The Board has duly considered the matter and notes that section 10.432 of OWCP’s
regulations provide that, in response to a preliminary notice of an overpayment, a claimant may
request a prerecoupment hearing within 30 days of the written notice of overpayment.1 Failure
to request the hearing within this 30-day time period shall constitute a waiver of that right.2
OWCP issued its preliminary overpayment determination on November 2, 2010 which advised
appellant that he had 30 days within which to respond. The 30-day period for determining the
timeliness of his waiver request commenced on November 3, 2010, the date following the
issuance of the November 2, 2010 preliminary determination. Appellant dated his request for
waiver on December 2, 2010, which was received by OWCP on December 7, 2010. The Board
notes that OWCP did not retain or scan into the record the envelope containing his request for
waiver. As such, the date of appellant’s request for waiver of the recovery of the overpayment,
1

20 C.F.R. § 10.432. See Willie C. Howard, 55 ECAB 564 (2004).

2

Afegalai L. Boone, 53 ECAB 533, 537 n.12 (2002); John B. Montoya, 43 ECAB 1148 (1992).

December 2, 2010, is used to determine its timeliness. As it was within 30 days of the issuance
of the November 2, 2010 preliminary overpayment decision as required by 20 C.F.R. § 10.432, it
is considered timely.3 The case will be remanded to OWCP for a decision on waiver as
requested by appellant.
IT IS HEREBY ORDERED THAT the December 2, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this order of the Board.
Issued: October 26, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3

Where OWCP neglects to retain the postmarked envelope that contained the request, the date of the letter shall
be used for the purposes of determining the timeliness of the request. See James B. Moses, 52 ECAB 465 (2001).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION HEALTH
CENTER, El Paso, TX, Employer
__________________________________________

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

Docket No. 07-63
Issued: March 22, 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 October 6, 2006 appellant timely appealed the August 28, 2006 merit decision of the
Office of Workers’ Compensation Programs which denied his claim for an employment-related
emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction
over the merits of the claim.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On June 28, 2006 appellant, a 52-year-old supervisory diagnostic radiologic technologist,
filed an occupational disease claim for an employment-related depressive disorder. He identified
June 19, 2006 as the date he first realized his condition was employment related. Appellant also
stopped working on June 19, 2006.

Appellant indicated that he had been retaliated against for reporting the theft of office
equipment. On June 13, 2006 an employee noticed a cabinet missing from the front desk in
radiology service. Appellant stated that an employee admitted to opening the department door to
allow a former radiology service employee to remove the cabinet.1 He subsequently reported the
incident to the Human Resources department. The “disgruntled” former employee reportedly
accused appellant of inappropriate behavior and making sexual remarks.2 Similar accusations
were made by four current female employees in radiology service. Appellant stated that the five
employees had not previously filed a complaint or grievance against him. He also noted that the
disgruntled former employee waited until she was caught stealing before accusing appellant of
improper behavior.
According to appellant, the Chief of Staff, Dr. Stephen R. Shapiro, immediately retaliated
against him without first investigating the radiology service department staff. On June 19, 2006
Pam Hillers, head of Human Resources, and Dr. Shapiro reportedly placed appellant on a detail
outside the radiology service department pending further investigation of the alleged sexual
misconduct. Appellant stated that he totally lost his composure when Dr. Shapiro asked him to
sign an unspecified document. He immediately requested four weeks of emergency medical
leave and access to an employing establishment psychiatrist. Appellant stated that he sought
counseling through the Employee Assistance Program (EAP). The EAP counselor, a clinical
psychologist, diagnosed adjustment disorder with mixed anxiety and depressed mood. However,
he reported seeing appellant on June 16, 2006 rather than June 19, 2006, as appellant claimed.3
The document appellant refused to sign was a June 16, 2006 memorandum from
Dr. Shapiro advising him that he was immediately being detailed to another department. The
memorandum explained that Dr. Shapiro had recently met with five female employees -- four
current radiology service employees and one former department employee -- at their request to
discuss allegations concerning appellant’s conduct as supervisor of radiology service. Appellant
was accused of “inappropriate behavior and sexual comments.” Dr. Shapiro further explained
that the immediate transfer was to ensure that there was no disruption to “patients” services or
disruption of the work environment for the other employees in radiology service. He also
advised appellant not to enter the radiology service department until the pending matter was
resolved.
In an August 22, 2006 letter to the Office, Dr. Shapiro explained the circumstances that
gave rise to appellant’s June 16, 2006 transfer. He noted that he met with five female employees
on June 15, 2006 at their request to discuss allegations of inappropriate behavior and sexual
comments by appellant. Dr. Shapiro further stated that he informed appellant on June 16, 2006
that the allegations were being reviewed and that, in the interim, he would be detailed to another
department. Appellant became extremely emotional and stormed out of Dr. Shapiro’s office
1

Appellant stated that the former radiology service employee had been transferred to another department within
the same facility approximately seven months earlier.
2

Appellant would later identify Zelda Lord as the disgruntled former radiology service employee. He once
counseled Ms. Lord for, among other things, tardiness. Appellant also claimed that she had made inappropriate
sexual comments to him and that she was always very forward and sexually explicit when around him.
3

Appellant would later clarify that the meeting with Dr. Shapiro occurred June 16, 2006.

2

without signing the June 16, 2006 memorandum. Dr. Shapiro explained that his actions that day
were consistent with the employing establishment’s policy regarding immediate and appropriate
corrective action where incidents of sexual harassment have been alleged.
A copy of the employing establishment’s sexual harassment policy was also submitted
into the record. The policy states, in part, that “[s]upervisory officials must be able to show that
immediate and corrective action was taken in instances where sexual harassment has been
alleged.”
In a decision dated August 28, 2006, the Office denied appellant’s claim because he
failed to establish a compensable employment factor as the cause of his emotional condition.
LEGAL PRECEDENT
To establish that he sustained an emotional condition causally related to factors of his
federal employment, appellant must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to his condition;
(2) rationalized medical evidence establishing that he has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that his emotional condition is
causally related to the identified compensable employment factors.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless, does not come within the purview of
workers’ compensation. 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. Disability is not compensable, however, when it results from factors such
as an employee’s fear of a reduction-in-force or frustration from not being permitted to work in a
particular environment or hold a particular position.5 Perceptions and feelings alone are not
compensable. To establish entitlement to benefits, a claimant must establish a basis in fact for
the claim by supporting his allegations with probative and reliable evidence.6 When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, the Office must base its decision on an analysis of the medical evidence.7
ANALYSIS
Appellant’s primary complaint is that the Chief of Staff, Dr. Shapiro, improperly
removed him from his supervisory position in radiology service without fully investigating the
allegations of sexual harassment levied against him by, among others, a disgruntled former
4

See Kathleen D. Walker, 42 ECAB 603 (1991).

5

Lillian Cutler, 28 ECAB 125 (1976).

6

Kathleen D. Walker, supra note 4. Unless a claimant establishes a compensable factor of employment, it is
unnecessary to address the medical evidence of record. Garry M. Carlo, 47 ECAB 299, 305 (1996).
7

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

3

subordinate employee, who appellant had recently accused of theft. He characterized his
reassignment as a “drastic action” by Dr. Shapiro that “caused [him] great emotional stress and
depression.” Appellant’s desire to continue working in radiology service is, by itself, not
compensable.8
Dr. Shapiro’s decision to transfer appellant to another department pending further
investigation of the alleged sexual misconduct is an administrative matter that would normally
fall outside the Act’s protective umbrella.9 However, an employee’s emotional reaction to a
personnel or administrative matter is compensable if the record demonstrates that the employing
establishment either erred or acted abusively in discharging its responsibilities.10
Appellant believed that the alleged sexual misconduct should have been more thoroughly
investigated before any corrective action was taken. Dr. Shapiro’s actions on June 16, 2006
comply with the employing establishment’s policy regarding sexual harassment. As a
supervisory official, he was obligated to take “immediate and corrective action” in response to
allegations of sexual harassment. The policy does not dictate that implementation of corrective
measures must await a full and complete investigation of the alleged misconduct, as appellant
would have preferred.
While Dr. Shapiro’s actions may have seemed premature to appellant, he, in fact, acted in
accordance with the employing establishment’s policy of promptly responding to allegations of
sexual harassment. Given that four of the complaining employees continued to work under
appellant’s direct supervision, Dr. Shapiro’s decision to transfer appellant out of radiology
service was neither erroneous nor abusive. He explained that his intention was to avoid
disrupting patients’ services and to avoid disrupting the work environment of the other radiology
service employees. Accordingly, the Board finds that appellant did not establish error or abuse
on Dr. Shapiro’s part in transferring appellant effective June 16, 2006.
There is also no evidence establishing that the sexual harassment accusations levied
against appellant were a form of harassment or retaliation. For harassment to give rise to a
compensable disability there must be evidence that harassment occurred.11 A claimant’s mere
perception of harassment is not compensable.12 The allegations of harassment must be
substantiated by reliable and probative evidence.13 The record in the instant case does not
contain any reliable and probative evidence of harassment.

8

An employee’s frustration from not being permitted to work in a particular environment or hold a particular
position is not compensable. Lillian Cutler, supra note 5.
9

Ruthie M. Evans, 41 ECAB 416 (1990).

10

Id.

11

Donna J. DiBernardo, 47 ECAB 700, 703 (1996).

12

Id.

13

Joel Parker, Sr., 43 ECAB 220, 225 (1991).

4

Appellant failed to establish that he was harassed by a “disgruntled” former subordinate.
He also failed to demonstrate that the June 16, 2006 transfer from radiology service was either
erroneous or abusive. Because appellant failed to establish a compensable employment factor,
the Office properly denied his claim for an emotional condition.
CONCLUSION
Appellant failed to establish that he sustained an emotional condition in the performance
of duty.
ORDER
IT IS HEREBY ORDERED THAT the August 28, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 22, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, CARDISS COLLINS
POST OFFICE, Chicago, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-1588
Issued: November 7, 2013

Case Submitted on the Record

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

On June 26, 2013 appellant filed a timely appeal from the March 27, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her schedule award claim.
The Board assigned Docket No. 13-1588.
The Board has duly considered the matter and finds that this case is not in posture for
decision. In a September 27, 2011 decision, OWCP denied appellant’s schedule award claim
under File No. xxxxxx149, the subject of the current appeal, based on the medical opinion of an
OWCP medical adviser who determined that she had no permanent impairment to either the right
or left lower extremity under the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment, (A.M.A., Guides).1
By letter dated August 14, 2012, appellant requested reconsideration and submitted a new
medical report dated June 11, 2012 from Dr. Jay M. Brooker, an attending Board-certified
orthopedic surgeon, who explained his previous finding that appellant had 15 percent impairment
of the left lower extremity which represented 7 percent impairment of the whole person under
the sixth edition of the A.M.A., Guides.
1

OWCP accepted that on October 26, 2007 appellant, then a 51-year-old clerk, sustained a contusion of the left
hip and thigh and lumbago when she tripped and fell on her hip at work.

On September 19, 2012 OWCP requested that a second OWCP medical adviser review
the medical record in the instant claim, as well as in appellant’s claim assigned File
No. xxxxxx713, which was accepted for lumbosacral spondylosis without myelopathy, to
determine whether she had any employment-related bilateral lower extremity impairment.
In a September 22, 2012 report, the second OWCP medical adviser utilized Dr. Brooker’s
June 11, 2012 findings, referenced the sixth edition of the A.M.A., Guides and opined that
appellant had no residual functional or physical loss. He stated that the notes from File
No. xxxxxx713 did not shed any additional light on her ratable impairment as her back pain did
not have any manifestations in the lower extremities. The medical adviser concluded that since
the additional information provided did not change the previous right and left lower extremity
impairment ratings rendered by the first OWCP medical adviser, these ratings and her date of
maximum medical improvement remained the same.
In an October 4, 2012 decision, OWCP reviewed the merits of appellant’s claim and
denied modification of the September 27, 2011 decision. It found that the medical evidence did
not support a finding of permanent impairment due to appellant’s accepted employment-related
back condition. On December 8, 2012 appellant requested reconsideration.
In a March 27, 2013 decision, OWCP again reviewed the merits of appellant’s claim and
denied modification. It found that the new medical evidence submitted did not contain any
objective findings not previously considered in its October 4, 2012 decision to support a finding
of permanent impairment.
The record forwarded to the Board includes evidence suggesting that appellant has an
accepted claim for lumbosacral spondylosis without myelopathy in File No. xxxxxx713 that is
relevant to File No. xxxxxx149 presently before the Board. However, the case record presently
before the Board is limited to evidence in File No. xxxxxx149. The Board finds, therefore, that
this case is not in posture for decision as the record before the Board is incomplete and would not
permit an informed adjudication of the case by the Board. Thus, the case should be remanded to
OWCP to combine the claim files. OWCP procedures provide that cases should be doubled
when a new injury is reported for an employee who previously filed an injury claim for a similar
condition and further indicates that the cases should be doubled as soon as the need to do so
becomes apparent.2 On remand, OWCP should combine the present case record, File No.
xxxxxx149, with File No. xxxxxx713. After combining these two case records, it should
consider the evidence contained in the combined case record and, following any necessary
further development, issue a de novo decision regarding whether appellant has any permanent
impairment of her bilateral lower extremities, warranting a schedule award.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Doubling Case Files, Chapter 2.400.8(c)(1)
(February 2000).

2

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 27, 2013 is set aside and the case remanded for further
proceedings consistent with this order of the Board.
Issued: November 7, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Seattle, WA, Employer
__________________________________________

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

Docket No. 10-136
Issued: September 27, 2010

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 October 19, 2009 appellant filed a timely appeal from the September 17, 2009 merit
decision of the Office of Workers’ Compensation Programs denying her claim. 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 sustained rheumatoid and degenerative arthritis of her left
knee as a consequence of a March 23, 2004 employment injury.
On appeal, appellant contends that the medical evidence establishes that her left knee
conditions and surgery were due to her accepted employment injury. She further contends that
the medical report of the impartial medical examiner is not entitled to special weight because it
was not based on an accurate factual background.

FACTUAL HISTORY
The Office accepted that on March 23, 2004 appellant, then a 58-year-old claims
examiner, sustained a torn medial cartilage or meniscus of the right knee while in the
performance of duty.1 On May 3, 2006 she underwent right total knee replacement surgery. On
October 4, 2006 appellant underwent left total knee replacement surgery to treat her rheumatoid
arthritis.
On July 19, 2007 appellant filed a claim for a schedule award. On October 27, 2007
Dr. Daniel D. Zimmerman, an Office medical adviser, reviewed her medical records. He
requested that the Office obtain all of appellant’s medical records commencing with the date of
her rheumatoid arthritis diagnosis for his review before he could determine the extent of any
permanent impairment.
In reports dated August 15, 2002 to November 26, 2007, Dr. Nancy M. Shasteen, an
attending Board-certified rheumatologist, advised that appellant had bilateral erosive rheumatoid
arthritis. Diagnostic tests dated May 15, 2002 to November 26, 2007 addressed appellant’s
bilateral knee and feet condition, including degenerative changes in her left knee.
On December 30, 2007 Dr. Zimmerman reviewed appellant’s medical records. He
recommended that the Office accept that the March 23, 2004 employment injury aggravated her
preexisting degeneration of the right knee and authorize her right total knee replacement surgery.
Dr. Zimmerman advised that appellant’s claim for rheumatoid arthritis of the left knee and
surgery not be accepted as the diagnosed condition was systemic in nature and not causally
related to the accepted employment-related injury.
By letter dated April 9, 2008, the Office authorized appellant’s May 3, 2006 right total
knee replacement surgery.2
In an April 30, 2008 report, Dr. Larry D. Iversen, an attending Board-certified orthopedic
surgeon, reviewed a history of appellant’s March 23, 2004 employment injury and her medical
records. He advised that her left knee rheumatoid arthritis or degenerative arthritis was
accelerated by the accepted employment condition, which resulted in her October 4, 2006 left
knee surgery.
On October 6, 2008 the Office found a conflict in the medical opinion between
Dr. Iversen and the Office medical adviser regarding whether appellant’s left knee degenerative
condition and surgery were due to her March 23, 2004 employment injury.
By letter dated October 6, 2008, the Office referred appellant, together with the case
record and a statement of accepted facts, to Dr. Lance N. Brigham, a Board-certified orthopedic
surgeon, for an impartial medical examination. In an October 27, 2008 report, Dr. Brigham
1

The record reflects that appellant tripped over an electrical cord on March 23, 2004 and fell.

2

In a May 23, 2008 decision, the Office granted appellant a schedule award for 37 percent impairment of the
right lower extremity.

2

reviewed a history of the March 23, 2004 employment injury medical treatment, social
background and medical records. On physical examination, he reported essentially normal
findings, noting that although appellant found it difficult to walk on her tiptoes and heels due to
ankle pain, she could stand on her toes and heels without problems. Appellant had a history of
falling to the floor on both knees due to the March 23, 2004 employment-related injuries. She
also had a history of rheumatoid arthritis unrelated to her employment-related condition.
Dr. Brigham advised that appellant was status post bilateral total knee replacement secondary to
rheumatoid arthritis and probable secondary osteoarthritis. He noted that there were no
subjective complaints related to appellant’s right or left knee replacements, which demonstrated
excellent results. Dr. Brigham found that appellant’s left knee condition was not caused by her
March 23, 2004 employment injuries. He stated that she failed to timely report her injury and
did not file a claim of injury until December 13, 2004. Appellant complained of discomfort to
both knees as early as May 5, 2004 to Dr. Nancy M. Shasteen, her rheumatologist. She was seen
for significant systemic rheumatoid arthritis of multiple different joints. Appellant first
mentioned the accepted March 23, 2004 employment incident during an evaluation by
Dr. Andres Munk, a Board-certified orthopedic surgeon, on January 3, 2005. Additional medical
records did not mention the employment incident or specifically identify a left knee injury.
Dr. Brigham advised that the March 23, 2004 incident resulted in a contusion to the left knee
with a possible torn meniscus but did not cause or accelerate the rheumatoid arthritis condition
which necessitated her left total knee replacement surgery. The medical treatment records
established that appellant’s arthritis condition was poorly controlled for erosive arthritis and that
Dr. Shasteen was doing the best she could to control the disease process with medication. The
medical records also showed that after the March 23, 2004 employment injury there was no
change in her pain medication or activity level.
By decision dated December 2, 2008, the Office denied authorization of the October 4,
2006 surgery, finding that the medical evidence was insufficient to establish that the March 23,
2004 fall at work necessitated the left knee total replacement.
On December 6, 2008 appellant requested an oral hearing before an Office hearing
representative.
In a July 21, 2009 decision, an Office hearing representative set aside the December 2,
2008 decision and remanded the case to the Office for further development. The hearing
representative found that Dr. Brigham’s medical opinion was not based on an accurate factual
background as the statement of accepted facts he reviewed did not reflect that appellant actually
fell on her knees on March 23, 2004. He stated that the case should again be referred to
Dr. Brigham for review to determine the causal relationship between her left knee condition and
resultant surgery and her March 23, 2004 employment injuries.
In an August 26, 2009 report, Dr. Brigham reviewed the history of appellant’s March 23,
2004 employment injury and medical treatment. He noted that she tripped over a typewriter cord
and fell on both knees. Appellant related to him that there was no pain to either knee. She could
walk about one-half mile and performed an exercycle routine three days a week for one-half hour
to 45 minutes. Appellant did not take any pain medication. She denied any swelling except for
an occasional little lump above the left patella. Appellant’s hands were still quite painful and she
took Enbrel. On physical examination, Dr. Brigham reported essentially normal findings with

3

the exception of her gait pattern which revealed a slight limp on the left side secondary to
posterior tibial tendinitis that was being treated with a walking boot. He advised that appellant
sustained a sprain of the left knee and subsequent bone bruise as demonstrated by a December 3,
2004 magnetic resonance imaging (MRI) scan that was due to the March 23, 2004 injury. In
September 2003, prior to the fall at work, appellant complained of effusions of the left knee and
in November 2003 she complained of pain with range of motion without a large amount of
effusion. Dr. Brigham noted that there was no mention of the March 23, 2004 injury until the
January 3, 2005 evaluation performed by Dr. Andres Munk, a Board-certified orthopedic
surgeon.3 He further noted that Dr. Munk’s report did not mention any left knee complaints.
The first mention of appellant’s left knee problem was in May 2004 when it was found to be
tender with no fluid noted. Dr. Brigham stated that the lack of any medical documentation of an
injury sustained on March 23, 2004 until nine months later denoted no significant injury to
appellant’s left knee other than a sprain. He noted that she had episodes of swelling of the knee
which were compatible with her rheumatoid arthritis condition but her primary problem was
degenerative arthritis of the left knee which required surgery. Appellant’s arthritis was unrelated
to the fall at work not aggravated by her accepted injury. Dr. Brigham concluded that her left
total knee replacement surgery was solely due to the changes resulting from her rheumatoid and
degenerative arthritis.
By letter dated September 17, 2009, the Office accepted appellant’s claim for contusion
and sprain of the left knee. On September 17, 2009 it also issued a decision denying
authorization for the October 4, 2006 left total knee replacement surgery. The Office found that
Dr. Brigham’s August 26, 2009 medical opinion was entitled to special weight accorded an
impartial medical specialist and established that authorization for the surgery should not be
granted.
LEGAL PRECEDENT
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.4
Regarding the range of compensable consequences of an employment-related injury, Larson
notes that, when the question is whether compensability should be extended to a subsequent
injury or aggravation related in some way to the primary injury, the rules that come into play are
essentially based upon the concepts of direct and natural results and of claimant’s own conduct
as an independent intervening cause. The basic rule is that a subsequent injury, whether an
aggravation of the original injury or a new and distinct injury, is compensable if it is the direct
and natural result of a compensable primary injury. Thus, once the work-connected character of
any condition is established, the subsequent progression of that condition remains compensable

3

The Board notes that Dr. Shasteen referred appellant to Dr. Munk for consultation.

4

Albert F. Ranieri, 55 ECAB 598 (2004).

4

so long as the worsening is not shown to have been produced by an independent nonindustrial
cause.5
A claimant bears the burden of proof to establish a claim for a consequential injury.6 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. Rationalized medical
evidence is evidence, which relates a work incident or factors of employment to a claimant’s
condition, with stated reasons of a physician. The opinion must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship of
the diagnosed condition and the specific employment factors or employment injury.7
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician (known as
a referee physician or impartial medical specialist) who shall make an examination.8 In cases
where the Office has referred appellant to an impartial medical examiner to resolve a conflict in
the medical evidence, the opinion of such a specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.9
ANALYSIS
Appellant’s physician, Dr. Iversen, opined that appellant’s left knee degenerative
rheumatoid arthritis was accelerated by her March 23, 2004 employment-related injury which
necessitated the left total knee replacement surgery of October 4, 2006. Dr. Zimmerman, the
Office medical adviser, found that the diagnosed left knee conditions were not causally related to
the employment injury and advised against authorization of the October 4, 2006 surgery. The
Office determined that a conflict of medical opinion arose as to whether the fall at work
contributed to the need for surgery. It properly referred her to Dr. Brigham, a Board-certified
orthopedic surgeon, selected as the impartial medical examiner.
The Board finds that the special weight of the medical evidence rests with the opinion of
Dr. Brigham. In an August 26, 2009 report, Dr. Brigham examined appellant, reviewed the
medical evidence of record and found that she had significant left knee rheumatoid and
degenerative arthritis which necessitated the left total knee replacement surgery. He found that
the March 23, 2004 employment injury did not contribute to the need for surgery. On physical
examination, Dr. Brigham reported essentially normal findings noting, that her gait pattern
revealed a limp on the left side secondary to posterior tibial tendinitis that was being treated with
a walking boot. He advised that appellant sustained a left knee sprain with a bone bruise based
on a December 3, 2004 MRI scan that was due to the fall at work, which the Office accepted.
5

A. Larson, The Law of Workers’ Compensation § 10.01 (November 2000).

6

J.J., 60 ECAB ____ (Docket No. 09-27, issued February 10, 2009).

7

Charles W. Downey, 54 ECAB 421 (2003).

8

5 U.S.C. § 8123(a); see S.T., 60 ECAB ___ (Docket No. 08-1675, issued May 4, 2009).

9

B.P., 60 ECAB ___ (Docket No. 08-1457, issued February 2, 2009); Gloria J. Godfrey, 52 ECAB 486 (2001).

5

Dr. Brigham found that her rheumatoid arthritis was not related to her injury at work and that the
medical records revealed treatment for erosive arthritis affecting primarily her right knee, that
was poorly controlled. He noted that the first mention of appellant’s left knee problem was in
May 2004 when the knee was found to be tender with no fluid noted. Dr. Brigham stated that the
lack of medical documentation pertaining to the left knee indicated no significant injury to her
left knee other than a sprain. He further stated that appellant’s episodes of swelling of the knee
were compatible with her rheumatoid arthritis and her primary problem was degenerative
arthritis of the left knee, which necessitated the October 4, 2006 surgery with no employment
relationship.
As noted, a reasoned opinion from a referee examiner is entitled to special weight.10 The
Board finds that Dr. Brigham provided a well-rationalized opinion based on a complete
background, his review of the accepted facts and the medical record and his examination
findings. Dr. Brigham’s opinion that appellant did not sustain rheumatoid and degenerative
arthritis which necessitated her left total knee replacement surgery causally related to her
March 23, 2004 employment injuries is entitled to special weight and represents the weight of
the evidence.11
CONCLUSION
The Board finds that appellant has failed to establish that she sustained rheumatoid and
degenerative arthritis of her left knee for which she underwent surgery as a consequence of her
March 23, 2004 employment injuries.

10

Id.

11

Id.

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ORDER
IT IS HEREBY ORDERED THAT the September 17, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 27, 2010
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
__________________________________________
A.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HOSPITAL, Livermore, CA,
Employer
__________________________________________

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

Docket No. 08-865
Issued: August 19, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 1, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated December 12, 2007. 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 sustained a right shoulder injury in the performance of
duty.
FACTUAL HISTORY
Appellant, a 53-year-old food service worker, filed a (Form CA-2) claim for benefits on
February 26, 2007, alleging that she strained her right shoulder on February 12, 2007 while
trying to turn a food cart and prevent it from tipping over. She stated on the form that “I cannot
remember the exact date this injury occurred; shoulder worsened with continued pushing of
carts.”

By letter dated March 2, 2007, the Office advised appellant that she needed to submit
additional factual and medical evidence in support of her claim. It stated that appellant had
30 days to submit the requested information.
In a statement dated March 23, 2007, appellant stated:
“I was working at [the employing establishment] at the nursing home. I had
complained previously about the condition of the food dispensing kart wheels. The
wheels do not turn or swivel as they should. On February 12 I was trying to make a
right turn with a fully loaded kart and the wheels locked up and started to fall to the
right. As a reflex I grabbed the kart and righted the kart and I felt a sharp pain
shoot through my shoulder. I screamed and my coworker came running to see what
happened. I have gone to my doctor and took an x-ray but he needs authorization
from workmans comp to see a specialist. In my daily life I still have problems
getting dressed and I work with the pain.... I have been on light duty.…”
By decision dated April 3, 2007, the Office denied appellant’s claim, finding that she failed
to submit sufficient medical evidence in support of her claim. It accepted that the February 12,
2007 work incident had occurred; however, it stated that she failed to submit medical evidence
establishing that she sustained a condition or disability resulting from the February 12, 2007
work incident.
In a February 12, 2007 form report, Dr. William C. Beck, a Board-certified family
practitioner, indicated that appellant was experiencing shoulder pain as of February 12, 2007. In
an April 9, 2007 report, he stated that appellant had chronic right shoulder pain and diagnosed
right-sided impingement syndrome. Dr. Beck stated that appellant could return to modified duty
as of May 2, 2007, with no pushing or pulling.1
Appellant submitted a May 4, 2007 magnetic resonance imaging (MRI) scan from
Dr. Scott Werden, Board-certified in radiology, who stated that the MRI scan results indicated a
moderate acromioclavicular degenerative change, with moderate inferior surface spurring.
Dr. Werden opined that the MRI scan also showed moderate bony impingement on the rotator
cuff from the lateral aspect of the acromion and from the inferior surface of the
acromioclavicular joint. In addition, he stated that appellant had a fairly extensive superior
labrum lesion; a moderate amount of fluid in the intertubercular groove was consistent with
tenosynovitis and the tendon appeared to be partially subluxed.
On April 18, 2007 appellant requested an oral hearing, which was held on
September 27, 2007. At the hearing, she reiterated that she injured her right shoulder when she
tried to stop a cart from falling. Appellant stated that she screamed when the incident occurred
and that her screams were overheard by a coworker, Thelma Wilson, who came to her aid. She
stated that she then told Ms. Wilson what had occurred and described the injury to her.
Appellant further testified that she informed her supervisor, Barbara Forbes, about the
1

The record also contains a disability slip dated April 17, 2007 from a physician which indicates that she could
return to modified duty for four hours per day as of April 18, 2007. The slip contains an illegible signature from a
physician.

2

February 12, 2007 work incident and that Ms. Forbes told her she would put in a work order for
the carts. She was asked at the hearing why she submitted a Form CA-2 for occupational illness
despite the fact that she had alleged she experienced a traumatic injury on February 12, 2007.
Appellant stated that she merely completed the form that she was given, although she
acknowledged stating on the form that she was unable to remember the exact date the injury
occurred and that the shoulder worsened with continued pushing of carts.
In a report received by the Office on October 16, 2007, Dr. Beck stated:
“[Appellant] has been a patient of mine for many years. I saw her in my office on
February 12, 2007 with a complaint of right shoulder pain for two weeks. She
denied any known injury. I diagnosed her with shoulder pain. I ordered an x-ray
and prescribed Naprosyn. The x-ray revealed mild arthritis. She was seen again
on March 2, 2007 with the same problem. At that time [appellant] recalled that
she had suffered an on-the-job injury on February 12, 2007 and reported this to
her supervisor. I made a diagnosis of impingement syndrome and referred her to
an orthopedist who confirmed the diagnosis. In my opinion this is a work-related
injury.”
Ruth A. Sachen, appellant’s supervisor, submitted an October 30, 2007 letter in which she
responded to appellant’s hearing testimony. With regard to appellant’s statement that she was
injured on February 12, 2007, when the cart almost tipped over, Ms. Sachen stated:
“[Appellant] called in sick and was not at work on February 12, 2007. [She] stated
that she was unable to work on February 12, 2007 due to a shoulder injury.
However, medical documentation provided only indicated that [appellant] was
incapacitated [for] work and did not indicate the reason for her absence nor did it
state that her absence was the result of an on-the-job injury. [She] provided
additional medical documentation, dated February 13, 2007, indicating that an x-ray
was performed. Again, medical documentation did not indicate the reason for the
x-ray. [The] doctor’s first report of occupational injury or illness form was not
completed by appellant until March 2, 2007.”
With regard to appellant’s statement that she told supervisor Ms. Forbes about her injury,
Ms. Sachen stated:
“[Ms.] Forbes, cook supervisor, stated that [appellant] never mentioned her injury
had occurred on the job. [She] does remember having a conversation with
[appellant] regarding [her] possibly having arthritis or bursitis in her shoulder.
[Appellant] and Ms. Forbes discussed the number of aches and pains they are
experiencing as they get older. Ms. Forbes was under the impression that
[appellant’s] shoulder problems were related to a chronic condition and not an
on-the-job injury.”

3

With regard to appellant’s statement at the hearing that she was not aware of the type of
claim form she was filing, one for traumatic injury or occupational illness, Ms. Sachen stated:
“On February 26, 2007 [appellant] came to my office and asked me to input an
accident report for her since her immediate supervisor, [Ms.] Forbes, was on leave.
[She] stated that she had an accident at work and had informed Ms. Forbes but
Ms. Forbes had not inputted an accident report. [Appellant] stated that she had an
x-ray done on her shoulder and now required an MRI [scan]. [She] wanted to make
sure an accident report was submitted in order to cover the MRI [scan] that needed
to be performed. I assisted [appellant] to submit an accident report and file a claim
with [the Office].
“[Appellant] stated that she pulled her shoulder muscle when she stopped a food
transport cart from falling over. When asked when the injury occurred, [she] could
not remember when the injury occurred. [Appellant] was also asked when she first
saw her doctor regarding her shoulder and if she had any medical documentation.
[She] stated that she did not see her physician immediately after the injury occurred.
[Appellant] went to her physician after progressive pushing of carts resulted in
continued shoulder pain.
“I informed [appellant] I was going to fill out a CA-2 [form]; Notice of
Occupational Disease and Claim for Compensation since the shoulder pain seemed
to occur over time. The CA-2 [form] was completed and signed by [appellant].”
By decision dated December 12, 2007, an Office hearing representative affirmed the
April 3, 2007 Office decision as modified. The hearing representative found that based on the
evidence of record appellant had failed to establish the alleged work incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
2

5 U.S.C. § 8101 et seq.

3

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

4

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

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the employment incident at the time, place and in the manner alleged.5 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.6
The Office cannot accept fact of injury if there are such inconsistencies in the evidence as
to seriously question whether the specific event or incident occurred at the time, place and in the
manner alleged or whether the alleged injury was in the performance of duty.7 Nor can it find fact
of injury if the evidence fails to establish that the employee sustained an “injury” within the
meaning of the Act. An injury does not have to be confirmed by eyewitnesses in order to establish
the fact that an employee sustained an injury in the performance of duty, as alleged, but the
employee’s statements must be consistent with surrounding facts and circumstances and her
subsequent course of action.8 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 case doubt on an employee’s statements in
determining whether he or she has established his or her claim.9
ANALYSIS
In this case, appellant has not established fact of injury because of inconsistencies in the
evidence that cast serious doubt as to whether the specific event or incident occurred at the time,
place and in the manner alleged. She stated on her CA-2 form that she remembered injuring her
right shoulder on February 12, 2007 while trying to turn a cart to prevent it from tipping it over.
However, this statement was contradicted by her additional statement on the Form CA-2 in which
she indicated that she was unable to remember the exact date of injury and that her right shoulder
pain had worsened over time with continued pushing of carts. Further, it is hard to comprehend
how appellant’s lack of awareness of which form to file -- which she claimed at the hearing -could account for the discrepancies in the accounts of injury she provided to several different
people. Appellant can be reasonably imputed to have knowledge of when she sustained an injury
that caused her to be medically released from work.10 This contradictory evidence created an
uncertainty as to the time, place and in the manner in which appellant sustained her alleged lower
back injury. Further, the employing establishment indicated that appellant was on sick leave and
was not at the worksite on February 12, 2007, the date the incident allegedly occurred.11
5

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

6

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

7

Elaine Pendleton, supra note 3.

8

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

See Constance G. Patterson, 42 ECAB 206 (1989).

10

The evidence submitted by an employing establishment on the basis of their records will prevail over the
assertions from the claimant unless such assertions are supported by documentary evidence. See generally Sue A.
Sedgwick, 45 ECAB 211, 218 n.4 (1993); Federal (FECA) Procedure Manual, Part 2 -- Claims, Computation of
Compensation, Chapter 2.900(b)(3) (September 1990).
11

Id.

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Appellant’s treating physician, Dr. Beck, stated in his October 16, 2007 report that he saw
appellant in his office on February 12, 2007 with a complaint of experiencing right shoulder pain
for two weeks. During this visit, she denied any known injury; however, when Dr. Beck saw her
again on March 2, 2007 for complaints of right shoulder pain, appellant alleged that she had
suffered an on-the-job injury on February 12, 2007, which she reported to her supervisor.12
In addition, appellant did not submit to the Office a corroborating witness statement in
response to the Office’s request. While she alleged that her screams of pain emitted during the
occurrence of her February 12, 2007 injury were overheard by a coworker, Ms. Wilson, to whom
she described her injury, Ms. Wilson did not submit a witness statement. This casts additional
doubt on appellant’s assertion that she strained her right shoulder while trying to turn a cart and
prevent it from tipping on February 12, 2007. The Office requested that appellant submit
additional factual and medical evidence explaining how she injured her right shoulder on the date
in question. Appellant failed to submit such evidence. Therefore, given the inconsistencies in the
evidence regarding how appellant sustained her injury, the Board finds that there is insufficient
evidence to establish that she sustained an injury in the performance of duty as alleged.13
CONCLUSION
The Board finds that the Office properly found that appellant failed to meet her burden of
proof to establish that she sustained a right shoulder injury in the performance of duty.

12

Ms. Sachen asserted in her October 30, 2007 statement that Ms. Forbes, appellant’s supervisor, did not receive
an accident report from appellant until March 2, 2007. She related that Ms. Forbes told her that appellant never
mentioned to her that her injury had occurred on the job. While Ms. Forbes remembered having a conversation with
appellant pertaining to her having arthritis or bursitis in her shoulder and experiencing a growing number of aches and
pains with age, Ms. Forbes was under the impression that appellant’s shoulder problems were related to a chronic
condition, not an employment-related injury.
13

See Mary Joan Coppolino, 43 ECAB 988 (1992) (where the Board found that discrepancies and inconsistencies in
appellant’s statements describing the injury created serious doubts that the injury was sustained in the performance of
duty).

6

ORDER
IT IS HEREBY ORDERED THAT the December 12, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 19, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, 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
__________________________________________
R.E., Appellant
and
DEPARTMENT OF THE ARMY, DEFENSE
COMMISSARY AGENCY, Fort Benning, GA,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 17-1289
Issued: March 7, 2018

Case Submitted on the Record

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

On May 24, 2014 appellant filed an application for review of a December 20, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 The appeal was docketed
as No. 17-1289.2
In the December 20, 2016 decision, an OWCP hearing representative affirmed a
January 26, 2016 OWCP decision that denied appellant’s claim for wage-loss compensation for
the period May 13 through June 4, 2011. It found that appellant submitted insufficient evidence
to establish that she was disabled from work due to the accepted right shoulder conditions.
1

Appellant timely requested oral argument. 20 C.F.R. § 501.5(b). By order dated November 3, 2017, the Board
exercised its discretion and denied the request, finding that the arguments on appeal could adequately be addressed
based on the case record. Order Denying Request for Oral Argument, Docket No. 17-1289 (issued
November 3, 2017).
2

In the instant claim, OWCP accepted that, on May 17, 2006, appellant, a part-time sales store checker working
modified duty, sustained rotator cuff strain and adhesive capsulitis of the right shoulder. She had right shoulder
surgery on November 11, 2008 and February 5, 2010. Appellant also has a claim, accepted for low back strain,
adjudicated under File No. xxxxxx105. Under that claim, appellant has a second appeal before the Board, Docket
No. 17-1288, that will be adjudicated separately.

The relevant facts include that on May 21, 2011 appellant filed a claim for compensation
(Form CA-7) for the period May 13 to 21, 2011. In correspondence dated October 21, 2014, the
employing establishment notified appellant that, in compliance with a June 24, 2014 bench
decision issued by an Equal Employment Opportunity Commission (EEOC) judge, she was
awarded back pay for the period May 12 through June 18, 2011.3
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 Section 8116 of FECA defines the limitations on the right to receive
compensation benefits. This section of FECA provides that while an employee is receiving
compensation, he or she may not receive salary, pay or remuneration of any type from the United
States, except in limited circumstances.5 Section 10.500 of OWCP’s regulations provides that
“compensation for wage loss due to disability is available only for any periods during which an
employee’s work-related medical condition prevents him or her from earning the wages earned
before the work-related injury.”6
The Board has duly considered the matter and concludes that OWCP’s December 20,
2016 decision must be set aside. The merit issue in the instant claim, whether appellant
established entitlement to wage-loss compensation for the period May 13 through June 4, 2011 is
moot.7 The record supports that appellant has received wages for the period she is claiming
compensation in this appeal. Appellant is, therefore, not entitled to wage-loss compensation for
this period.8

3

The EEOC decision also awarded appellant $8,000.00 in non-pecuniary compensatory damages. The record
also includes an incomplete copy of a bench decision.
4

5 U.S.C. § 8102(a).

5

Id. at § 8116(a); see Danny E. Haley, 56 ECAB 393 (2005).

6

20 C.F.R. § 10.500.

7

See L.L., Docket No. 13-1122 (issued September 26, 2014).

8

Supra note 6.

2

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 20, 2016 is set aside.
Issued: March 7, 2018
Washington, DC

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

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

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

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