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

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

Docket No. 13-571
Issued: July 22, 2013

Case Submitted on the Record

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

JURISDICTION
On January 15, 2013 appellant timely appealed the September 24, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP) which denied his recurrence claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.2
ISSUE
The issue is whether appellant’s claimed recurrence beginning March 1, 2012 is causally
related to his June 1, 2007 employment injury.

1
2

5 U.S.C. §§ 8101-8193.

The record includes evidence received after the September 24, 2012 decision. As this evidence was not part of
the record when OWCP issued its final decision, the Board is precluded from considering it for the first time on
appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
Appellant, a 66-year-old retired health technician, has an accepted traumatic injury claim
for right medial meniscus tear which occurred on June 1, 2007 while repositioning a patient in
bed. There was also evidence of preexisting right knee degenerative joint disease which OWCP
has not accepted as employment related.3 Appellant underwent arthroscopic surgery on
September 11, 2007 performed by Dr. J. Thomas McClure, a Board-certified orthopedic surgeon.
The procedure, which OWCP preauthorized, included right knee medial and lateral partial
meniscectomies, chondroplasty of the medial and lateral femoral condyle and trochlear groove
and resection of hypertrophic medial plica.4 Appellant returned to work in a limited-duty
capacity on October 3, 2007, and continued to undergo physical therapy.
In mid-November 2007, Dr. McClure discontinued physical therapy because it was
thought to have aggravated appellant’s right knee condition. In January 2008, he implemented a
series of five Supartz injections. Dr. McClure subsequently performed a right total knee
arthroplasty. His July 8, 2008 pre and postoperative diagnoses were degenerative joint disease of
the right knee. OWCP declined to authorize appellant’s July 8, 2008 knee replacement surgery.
On November 7, 2008 appellant received a schedule award for 28 percent impairment of
the right lower extremity.5 The overall rating included impairment attributable to his preexisting
arthritis 20 percent and his right medial and lateral partial meniscectomies 10 percent. The
award covered a period of 80.64 weeks beginning March 24, 2008.
Appellant voluntarily retired effective April 30, 2010.
Six weeks after his retirement, Dr. McClure examined appellant and noted he could
“continue to work without restrictions.” When he saw appellant on June 16, 2010,
approximately two years had passed since the right total knee arthroplasty. Dr. McClure noted
that the latest x-rays showed good alignment and position without any evidence of loosening. He
also indicated that appellant was doing “reasonably well.”6 With respect to his right knee,
Dr. McClure advised that appellant should continue to have annual radiographs and he should
follow-up in a year’s time to make sure there was no evidence of loosening of the prosthesis.
On July 26, 2012 appellant filed a notice of recurrence (Form CA-2a) for medical
treatment only. He identified March 1, 2012 as the date of recurrence. Appellant explained that
for several months he had been experiencing pain in his knee area. He also reported limited
mobility and numbness in his right leg muscle.
3

A June 4, 2007 right knee x-ray revealed, inter alia, tri-compartmental osteoarthritis.

4

The postoperative diagnoses included severe right knee tri-compartmental arthritis, medial plica with
impingement, grade 4 chondromalacia, medial meniscal tear and lateral meniscal tear.
5

The award was calculated under the fifth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (2001).
6

However, appellant also reported having some significant problems with his back for which he was seeing a
chiropractor.

2

The recurrence claim was preceded by a July 24, 2012 request for authorization from
Dr. McClure, who sought preapproval for treatment of appellant’s right knee prosthesis (ICD-9
Code(s) 996.49, V43.65).
By letter dated August 17, 2012, OWCP acknowledged receipt of appellant’s recurrence
claim. Appellant was reminded that his June 1, 2007 employment injury had been accepted only
for right medial meniscus tear. OWCP further explained that the July 8, 2008 knee replacement
surgery had not been approved because it was due to his nonwork-related osteoarthritis.
Dr. McClure’s latest authorization request was also for treatment of appellant’s nonwork-related
condition. OWCP noted that the current evidence did not fully explain the necessity for further
medical treatment due to the accepted right knee meniscus injury. Additionally, the August 17,
2012 development letter explained the legal criteria for demonstrating a recurrence for medical
treatment only and the evidence required to establish appellant’s claim. OWCP afforded
appellant at least 30 days to submit the requested information.
By decision dated September 24, 2012, OWCP denied appellant’s claim. The decision
noted, inter alia, that he had not submitted anything in response to OWCP’s August 17, 2012
recurrence development letter.
LEGAL PRECEDENT
A recurrence of a medical condition means a documented need for further medical
treatment after release from treatment for the accepted condition or injury when there is no
accompanying work stoppage.7 Continuous treatment for the original condition or injury is not
considered a “need for further medical treatment after release from treatment,” nor is an
examination without treatment.8 A claim for recurrent medical treatment must, at a minimum,
include an attending physician’s statement supporting causal relationship between the current
condition and the accepted condition.9
ANALYSIS
The record indicates that appellant had preexisting right knee degenerative joint disease.
OWCP has not accepted that the June 1, 2007 employment incident aggravated his right knee
osteoarthritis. Thus far, the only accepted condition is right medial meniscus tear.10 As noted,
OWCP also authorized a September 2007 arthroscopic procedure to repair appellant’s torn right
meniscus. However, it specifically declined to authorize the July 2008 right total knee
arthroplasty.

7

20 C.F.R. § 10.5(y).

8

Id.; see J.F., 58 ECAB 124, 126-27 (2006).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 (May 2003).

10

Where an employee claims that a condition not accepted or approved by OWCP was due to an employment
injury, he or she bears the burden of proof to establish that the condition is causally related to the employment
injury. Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

3

Appellant’s recurrence claim coincided with Dr. McClure’s July 2012 medical
authorization request which pertained to the right knee prosthesis he implanted four years prior.
According to the records provided, it had been at least two years since Dr. McClure had last
treated appellant for his right knee condition. Treatment records from June 2010 indicated that
appellant was doing reasonably well at the time and was capable of working without restrictions.
Although appellant had been advised to follow-up in a year, there is no indication that he
returned to see Dr. McClure in 2011 or received any other treatment elsewhere.
Although OWCP had not terminated medical benefits for appellant’s accepted right knee
meniscus injury, a significant interval of time had passed since he had received any treatment for
his right knee condition. Because of the significant lapse of time, it was incumbent upon him to
demonstrate a causal relationship between his accepted June 1, 2007 employment injury and
Dr. McClure’s proposed treatment in July 2012. OWCP fully explained the legal and medical
criteria for establishing a recurrence for medical treatment only. The August 17, 2012
development letter afforded appellant 30 days within which to submit the required information to
support his claim. Appellant, however, failed to respond in a timely manner.
As noted, a claim for recurrent medical treatment must, at a minimum, include an
attending physician’s statement supporting causal relationship between the current condition and
the accepted condition.11 Dr. McClure’s July 24, 2012 authorization request provided no insight
as to the necessity of the proposed treatment. He also did not specifically relate the proposed
treatment to appellant’s June 1, 2007 accepted employment injury and/or OWCP-approved
September 11, 2007 arthroscopic procedure. Accordingly, OWCP properly denied appellant’s
recurrence claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision.12
CONCLUSION
Appellant failed to establish the need for continuing medical treatment causally related to
his June 1, 2007 employment injury.

11

See supra note 10.

12

See 5 U.S.C. § 8128(a); 20 C.F.R. §§ 10.605, 10.607.

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ORDER
IT IS HEREBY ORDERED THAT the September 24, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 22, 2013
Washington, DC

Richard J. Daschbach, 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
__________________________________________
V.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Redmond, WA, Employer
__________________________________________

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

Docket No. 16-0161
Issued: May 24, 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 November 2, 2015 appellant, through counsel, filed a timely appeal from a
September 4, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty due to factors of her federal employment.
FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances included in
the Board’s prior decision are incorporated herein by reference. The facts relevant to this appeal
will be set forth.
1

5 U.S.C. § 8101 et seq.

On January 6, 2012 appellant, then a 51-year-old customer service supervisor, filed an
occupational disease claim (Form CA-2) alleging major depression, panic attacks, and anxiety
causally related to factors of her federal employment. She stopped work on December 12, 2011.
In a January 11, 2012 statement, appellant related that she worked as a letter carrier since
1984. She injured her elbow in 2002 and her shoulder in 2003. In 2008, appellant relocated to
work as a supervisor. She experienced difficulties with a supervisor who used work time
inappropriately and with the new postmaster, who changed her schedule and implemented
policies that violated the union contract. In 2010, appellant alleged that the postmaster marked
her absent without leave when her flight was cancelled after she had visited her terminally ill
mother.
In March 2011, appellant returned to work after her mother died and found that the office
had relocated and she had 40 more employees to supervise. She contended that the employing
establishment wanted her to work fewer hours with an increased workload. Rich Miele, a
manager in charge of the operation, instructed appellant to manually fix express mail that had
been scanned or delivered improperly. Appellant’s work location had poor results for delivering
packages, so he ordered her to manually scan parcels so that the office could “get off the poor
performers list.” She received calls from customers who were not getting their packages.
Mr. Miele would give carriers a 1260 form and indicate that they ended the tour without
overtime even if this was inaccurate. Appellant related, “I did this a few times because I was
given a direct order to do so, but felt bad because it was wrong.” On November 23, 2011 she
refused to change the times for the carrier who worked overtime. J.C., a fellow supervisor, took
family and medical leave to which she was not entitled. Appellant was not comfortable breaking
rules. She began to have attacks of stress and stated, “Part of what was causing my attacks was
the notion that if I reported what I knew about my fellow supervisor, they could possibly lose
their jobs.”
In a statement dated February 27, 2012, Mr. Miele advised that appellant requested his
assistance in 2010 because the postmaster, Harleynda Wilcox, had changed appellant’s work
hours such that appellant could not easily attend Employees’ Assistance Program sessions. In
August 2012, Ms. Wilcox indicated that carriers on the “no lunch” list could not work overtime.
Appellant questioned Ms. Wilcox about this action in light of prior grievances, after which
Ms. Wilcox changed appellant’s work schedule. In 2011, Mr. Miele became postmaster. He
related that the employing establishment had “more work to do with fewer employees.” From
March 2011 to January 2012, Mr. Miele was under pressure to have carriers finish by 5:00 p.m.
He “gave direct orders to [appellant] to ensure that any employee who worked over 10 hours
would fill out a 1260 stating their end tour time was 10 hours or less.” Mr. Miele asserted:
“In July and August 2011, our office kept showing up on the poor performance
list for scans for express mail and delivery confirmation packages. I tried
everything I could think of to improve our performance, but nothing seemed to
work. I finally gave direct orders to [appellant] that when she checked our
express mail delivery and delivery confirmation labels at the end of the day, to fix
any errors. That meant she would have to manually input false information so
that we could get off the poor performer list. When [appellant] told me that she
had been told not to do that by [a manager], I told her to still do it anyway. When

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she finally refused to do it anymore, I assigned that task to my morning
supervisors.”
Mr. Miele also ordered appellant in September and October 2011 to “falsely manually
input any missing scans” on parcels not sorted before carriers left on their routes. In
October 2011, he instructed her to enter time for J.C.’s absence as sick leave instead of annual
leave because he “did not want to make any waves with [J.C.] and thought that someone else
would tell her that she was not entitled to use that type of leave.”
On February 29, 2012 appellant again described the actions to which she attributed her
condition. She provided the dates from October through November 2011 that Mr. Miele had
instructed her “to change carrier clock rings so our office did not show any penalty overtime.”
By decision dated April 13, 2012, OWCP denied appellant’s claim, finding that she had
not established any compensable employment factors. On May 11, 2012 appellant requested an
oral hearing.
A hearing was held on October 25, 2012. Appellant’s counsel attributed appellant’s
condition to management instructing her to manipulate data to meet standards, as confirmed by
Mr. Miele.
In a report dated November 12, 2012, Dr. David P. Shaw, a Board-certified psychiatrist,
noted that appellant was “repeatedly asked to bend or to break the rules, or to overlook someone
else ignoring the rules and guidelines.” He related that Mr. Miele advised appellant to manually
input inaccurate data, and that managers used work time for personal business, misrepresented
vacation days, and changed her schedule when she was on vacation. Appellant had an additional
40 employees when she returned to work in March 2011 after the death of her mother. She
addressed angry complaints from customers because packages were not delivered. Dr. Shaw
diagnosed moderate major depression, anxiety disorder with panic attacks, and post-traumatic
stress disorder and found that she could no longer perform her usual work. He attributed
appellant’s condition, in part, to work stressors that occurred during the course of her usual
employment.
In a decision dated January 2, 2013, an OWCP hearing representative set aside the
April 13, 2012 decision. She found that appellant had established as compensable work factors
that in July and August 2011 Mr. Miele instructed her to fill out 1260 forms indicating that
carriers worked 10 hours or less even if they worked more than 10 hours and to fix errors in
Express Mail delivery. In October and November 2011, Mr. Miele told appellant to falsely
change scans on express mail. The hearing representative concluded, “Therefore, I find that
[appellant] has established [employing establishment] error or abuse in July, August, September,
and October 2011, when Mr. Miele directed [her] to input false information regarding inputting
carrier time, scanning express mail delivery, delivery confirmation, and [J.C.’s] [Family Medical
Leave Act (FMLA)].” She instructed OWCP to prepare a statement of accepted facts (SOAF)
describing the compensable and noncompensable work factors and refer appellant for a second
opinion examination.

3

In a January 18, 2013 SOAF, OWCP listed as compensable factors of employment that
Mr. Miele told her to change scans on express mail and carrier clock rings, instructed her to hand
out 1260s, and advised her to allow J.C. to take leave under FMLA when it was not warranted.
On February 6, 2013 OWCP referred appellant to Dr. Douglas Robinson, a Boardcertified psychiatrist, for a second opinion examination.
In a report dated February 28, 2013, Dr. Robinson discussed appellant’s work history and
the factors to which she attributed her condition. He also described the work stressors that
occurred outside of work, including a custody dispute over grandchildren. Dr. Robinson
diagnosed recurrent major depressive disorder, panic disorder with agoraphobia, and some
obsessive-compulsive personality traits. He found that the compensable work factors “did not
directly cause, aggravate, precipitate, or accelerate the identified psychiatric disorders.”
Dr. Robinson opined that appellant’s condition occurred one year or more before the events of
October 2011 and found that she had not adjusted to her transfer to a new work location. He
noted that she did not sustain panic disorder and recurrent depression until “significant personal
stressors.” Dr. Robinson determined that appellant’s personality caused her to see incidents as
illegal or wrong doing. He found that the SOAF did not establish her allegations against her
supervisor and thus it was “unclear whether her perceptions are valid and if such behaviors
represented a violation or some form of illegal activity.”
By decision dated April 25, 2013, OWCP denied appellant’s emotional condition claim,
finding that the weight of the medical evidence established that she did not sustain any condition
as a result of the accepted employment factors.
On April 30, 2013 appellant, through her counsel, requested a review of the written
record.2
In a report dated May 20, 2013, Dr. Shaw diagnosed a single episode of moderate major
depression, anxiety disorder with panic attacks, and post-traumatic stress disorder. He noted that
appellant’s supervisor instructed appellant to ignore or break the rules. Dr. Shaw opined that
“work factors have certainly contributed to [appellant’s] emotional condition. Her family,
personal and occupational history, and perhaps her genetic vulnerability, rendered her unable to
cope with and conflicted over requirements to violate [employing establishment], and union
rules.”
By decision dated November 5, 2013, an OWCP hearing representative affirmed the
April 25, 2013 decision. She found that the opinion of Dr. Robinson represented the weight of
the evidence and established that appellant had not established a causal connection between the
compensable work factors and her psychiatric condition.

2

By letter dated March 26, 2013, appellant’s counsel challenged Dr. Robinson’s report, noting that he questioned
the occurrence of the accepted compensable work factors. On May 29, 2013 he submitted a February 19, 2005 letter
indicating that due to a work injury appellant was giving up her bid position and becoming an unassigned regular.

4

Appellant appealed to the Board. In a decision dated July 3, 2014, the Board set aside the
November 5, 2013 OWCP decision denying her emotional condition claim.3 The Board noted
that OWCP accepted as compensable work factors that appellant’s supervisor, Mr. Miele,
committed error and abuse when he instructed appellant to improperly input scans on Express
Mail, told her to place a coworker on sick leave, and required her to indicate on 1260 forms that
letter carriers worked less than 10 hours. The Board found that Dr. Robinson’s opinion was not
based on the SOAF as he determined that she had not established her allegations of misconduct
by her supervisor. The Board remanded the case for OWCP to prepare a SOAF clearly
describing the compensable work factors and to further develop the medical evidence.4
On July 17, 2014 OWCP prepared an updated SOAF. It accepted as compensable work
factors that, in October and November 2011, Mr. Miele made appellant alter scans on Express
Mail and delivery packages and ordered her to change clock rings to avoid overtime penalties.
OWCP also indicated that, in November 2011, he erroneously told her to hand out 1260 forms to
carriers out after 6:00 p.m. Mr. Miele further told appellant to give J.C. leave under FMLA to
which she was not entitled.
By letter dated July 17, 2014, OWCP requested that Dr. Robinson review the amended
SOAF and explain whether appellant had a diagnosed condition causally related to the accepted
work factors.
In a supplemental report dated August 26, 2014, Dr. Robinson related:
“The potential new events occurred in October and November 2011, well after the
onset of [appellant’s] psychiatric symptoms. The current SOAF also indicates
that events not a factor of employment include many of the other stressors that
[she] cited. That some additional events have been found to be compensable
factors of employment does not alter any of the opinions, including the opinions
set forth in the last paragraph in response to the first question.
“I find the totality of evidence persuasive that [appellant’s] condition is related to
factors independent of her employment.”
He concluded that appellant’s emotional condition was not directly related to the compensable
factors of her employment as identified as accepted events that are factors of employment in
SOAF.
By decision dated September 30, 2014, OWCP denied appellant’s claim finding that
Dr. Robinson’s opinion constituted the weight of the medical evidence and established that she
did not have an emotional condition as a result of compensable work factors.
On October 22, 2014 appellant’s counsel requested a telephone hearing.
3

Docket No. 14-0433 (issued July 3, 2014).

4

The Board found that appellant had not established as compensable work factors that her schedule changed
unreasonably, that she was forced to give up a bid position, that she was overworked, or that she had to deal with
angry customers.

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At the telephone hearing, held on June 18, 2015, appellant’s counsel asserted that
Dr. Robinson had not provided any rationale for his opinion and did not address whether her
condition was indirectly related to work factors by aggravation or acceleration.5
By decision dated September 4, 2015, the hearing representative affirmed the
September 30, 2014 decision.
On appeal appellant’s counsel notes that the hearing representative who issued the
September 4, 2015 decision was the same one who issued the prior decision remanded by the
Board. He asserts that SOAF minimizes the compensable work factors by describing them as
showing error by the employing establishment rather than error and abuse. Counsel also
maintains that Dr. Robinson’s report is not reasoned or based on the SOAF. He further argues
that the physician did not use the proper standard of causation in finding appellant’s condition
not directly related to employment. Counsel maintains that the case should be referred to a new
second opinion examiner in accordance with OWCP’s procedures.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment, but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.6 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his frustration from not being permitted to work in a particular environment or to hold
a particular position.7
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.8 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of

5

In a statement dated June 18, 2015, appellant’s counsel maintained that Dr. Robinson’s supplemental report was
not rationalized and did not apply the proper causation standard.
6

Supra note 1; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

7

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

8

Dennis J. Balogh, 52 ECAB 232 (2001).

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record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.9
Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.10 The opinion of the
physician must be based on a complete factual and medical background of the claimant,11 must
be one of reasonable medical certainty12 explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.13
OWCP’s procedure manual provides as follows:
“When the [district medical adviser], second opinion specialist or referee
physician renders a medical opinion based on a SOAF which is incomplete or
inaccurate or does not use the SOAF as the framework in forming his or her
opinion, the probative value of the opinion is seriously diminished or negated
altogether.”14
ANALYSIS
On prior appeal, the Board found that Dr. Robinson, an OWCP referral physician, failed
to rely on the SOAF in reaching his conclusion that the diagnosed conditions of recurrent major
depressive disorder, panic disorder with agoraphobia, and obsessive-compulsive personality
traits were unrelated to employment as he inaccurately found that appellant had not established
her allegations of unethical or illegal acts by her supervisor. The Board remanded the case for
OWCP to clarify the SOAF and further develop the medical evidence.
On remand, OWCP prepared an updated SOAF indicating that appellant had established
as error that in October and November 2011 Mr. Miele made her change scans on Express Mail
and delivery packages and ordered her to change clock rings to avoid overtime penalties. It
further set forth that in November 2011 Mr. Miele erroneously told her to hand out 1260s to
carriers out after 6:00 p.m. He additionally required that appellant approve J.C.’s leave under
FMLA to which she was not entitled. In his February 27, 2012 statement, however, Mr. Miele
indicated that he had told her as early as July and August 2011 to manually input inaccurate
information on scans. He had also instructed supervisors to alter overtime forms during an
unspecified period from March 2011 to January 2012 and told appellant in October 10, 2011 to
approve J.C.’s leave under FMLA.
9

Id.

10

John J. Montoya, 54 ECAB 306 (2003).

11

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

12

Supra note 10.

13

Judy C. Rogers, 54 ECAB 693 (2003).

14

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600(3)
(October 1990).

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OWCP requested that Dr. Robinson review the July 17, 2014 SOAF and address whether
appellant had a diagnosed condition caused or aggravated by compensable work factors. On
August 26, 2014 Dr. Robinson discussed the compensable work factors set forth in the SOAF
and noted that the incidents occurred in October and November 2011, significantly later than the
start of appellant’s psychiatric condition. He opined that appellant’s condition was “not directly”
related to the compensable work factors. Dr. Robinson, however, had based her report on an
incomplete SOAF as it had not identified the proper time frames for the compensable factor.
Consequently, the basis for his conclusion that her psychiatric condition was unrelated to work
factors as it had begun well before the occurrence of the compensable work factors in
November 2011 is based on an inaccurate history.15 As discussed on prior appeal, if an OWCP
referral physician fails to utilize the SOAF in forming his opinion, or relies on an incomplete or
inaccurate SOAF, the probative value of the report is diminished or negated.16 As the SOAF
provided to Dr. Robinson did not accurately provide the dates of the compensable work factors,
his report fails to resolve the issue of whether appellant sustained an emotional condition in the
performance of duty.
Additionally, as noted by appellant’s counsel, Dr. Robinson’s finding that compensable
work factors did not directly cause her condition is insufficient to negate causal relationship.
Board precedent provides that it is not necessary to provide a significant contribution of factors
of employment to establish causal relationship. If the medical evidence revealed that a work
factor contributed in any way to appellant’s condition, such condition is employment related.17
Once OWCP undertakes to develop the medical evidence further, it has the responsibility
to do in a manner that will resolve the relevant issues in the case.18 As it has requested
clarification from Dr. Robinson, but did not receive an adequate response, it should refer
appellant on remand to another referral physician.19 OWCP should also prepare an accurate
SOAF setting forth the dates of the compensable work factors. After such further development
as deemed necessary, OWCP should issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

15

Medical opinions based on an incomplete or inaccurate history are of little probative value. See Douglas M.
McQuaid, 52 ECAB 382 (2001).
16

See supra note 14.

17

See R.L., Docket No. 11-115 (issued June 14, 2011).

18

See Melvin James, 55 ECAB 406 (2004).

19

OWCP’s procedures provide, “When OWCP undertakes to develop the evidence by referring the case to an
[OWCP]-selected physician, it has an obligation to seek clarification from its physician upon receiving a report that
did not adequately address the issues that OWCP sought to develop…. Only if the second opinion physician does
not respond, or does not provide a sufficient response after being asked, should the [claims examiner] request
scheduling with another physician.” Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and
Evaluating Medical Evidence, Chapter 2.810.9(j) (June 2015).

8

ORDER
IT IS HEREBY ORDERED THAT the September 4, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion by the Board.
Issued: May 24, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Honolulu, HI, Employer
__________________________________________

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Appearances:
Howard L. Graham, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-840
Issued: February 5, 2009

Case Submitted on the Record

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

JURISDICTION
On January 25, 2008 appellant, through counsel, filed a timely appeal of a November 27,
2007 merit decision of the Office of Workers’ Compensation Programs finding that the selected
position of small products assembler represented her wage-earning capacity. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation effective
November 30, 2007 based on its determination that the constructed position of small products
assembler represented her wage-earning capacity.
FACTUAL HISTORY
On August 17, 1992 appellant, then a 34-year-old mail processor, sustained injury after
she returned from a tiptoe position to a standing position while placing mail in trays and felt
something snap in her heels. She stopped work on August 18, 1992 and returned to work on
August 23, 1992. On January 26, 1993 the Office accepted the claim for aggravation of bilateral

Achilles tendinitis. On August 7, 2000 appellant underwent gastric resection and retrocalcaneal
exostectomy of the right foot, which was performed by Dr. Nicholas Heath, an attending
podiatrist. She has not returned to work.
On April 1, 2005 the Office found a conflict in the medical opinion evidence between
Dr. Heath and Dr. Barry Lichter, an Office referral physician. Dr. Heath opined that appellant
was totally disabled for work and that she required the use of a scooter. Dr. Lichter opined that
appellant could perform her regular work duties as a mail processor eight hours per day without
the use of a scooter. By letter dated May 10, 2005, the Office referred appellant, together with
the case record, a statement of accepted facts and a list of questions to be addressed, to
Dr. Donald D. Hubbard, a Board-certified orthopedic surgeon, for an impartial medical
examination.
In a July 11, 2005 medical report, Dr. Hubbard reviewed a history of appellant’s
August 17, 1992 employment injury and medical background. On physical and neurological
examination, he reported essentially normal findings regarding her upper and lower extremities.
Appellant sustained mild loss of range of motion of the hind foot and midfoot bilaterally. Based
on his review of diagnostic test results and appellant’s history, Dr. Hubbard concluded that she
sustained bilateral Achilles tendinitis and was status postsurgical intervention due to the accepted
condition. Appellant sustained deformity of the bilateral ankle and foot and was “status post
bilateral gastrocnemius recession.” She was also status post exostectomy of the right calcaneus
for reactive spur formation. Appellant experienced chronic bilateral leg pain, loss of lower
extremity function and permanent partial impairment of her bilateral lower extremities due to the
diagnosed conditions. Dr. Hubbard opined that the diagnosed conditions were causally related to
the accepted August 17, 1992 employment injury. He stated that appellant further sustained
bilateral knee osteoarthritis, right greater than the left and bilateral foot bunions and, she was
status post left bunionectomy by history. Dr. Hubbard requested additional information
including a description of her mail processor position, to determine whether she could perform
her regular duties. He stated that the use of a scooter by appellant in her mail processor position
was not necessary without considerable ergonomic change to her worksite.
In a supplemental report dated October 15, 2005, Dr. Hubbard reviewed the physical
requirements of appellant’s mail processor position. He opined that she was unable to perform
the duties of the position due to her employment-related conditions. Dr. Hubbard recommended
vocational rehabilitation services and a functional capacity evaluation. In a work capacity
evaluation (Form OWCP-5c), he stated that appellant was unable to work eight hours per day.
Dr. Hubbard opined that she had reached maximum medical improvement. He restricted her
from walking more than one hour per day, standing more than two hours per day and, pushing
and pulling more than 30 pounds and lifting more than 25 pounds for more than one hour per
day. Appellant was also restricted from squatting, kneeling and climbing.
By letter dated December 12, 2005, the Office requested that Dr. Hubbard address the
number of hours that appellant could work per day. In a December 27, 2005 report, Dr. Hubbard
advised that appellant could work eight hours per day. He mistakenly and inadvertently checked
the wrong box on the OWCP-5c form in response to question 1b. Dr. Hubbard meant to indicate
that appellant could work eight hours per day within his restrictions.

2

On January 13, 2006 the Office referred appellant to a vocational rehabilitation
counselor. On August 28, 2006 the vocational rehabilitation counselor identified the position of
wholesale/retail marker as being within her physical limitations, vocational skills and
geographical area.
In a September 6, 2006 notice, the Office advised appellant that it proposed to reduce her
compensation because the medical and factual evidence of record established that she was no
longer totally disabled. It found that she had the capacity to earn the wages of a retail marker.
Applying the formula developed in Albert C. Shadrick,1 the Office determined that appellant’s
compensation would be reduced to $1,637.00 every four weeks. By decision dated October 11,
2006, it finalized the reduction of appellant’s compensation benefits.
On May 14, 2007 appellant, through counsel, requested reconsideration. By decision
dated August 10, 2007, the Office set aside the October 11, 2006 decision. It found that the
position of retail marker exceeded her restrictions. The Office found that she was entitled to
retroactive compensation for total disability.
On July 3, 2007 a vocational rehabilitation counselor reviewed appellant’s case record.
She identified the position of small products assembler as being within appellant’s physical
limitations, vocational skills and geographical area. The small products assembler position, as
noted in the Department of Labor, Dictionary of Occupational Titles (DOT), was classified as a
light-strength position. The position involved assemblage of various materials such as, plastic,
wood, metal, rubber or paperboard, to produce small products such as, roller skates, toys, shoe
lasts, musical instrument parts or loudspeakers. It required the positioning of parts in specified
relationship to each other, using hand, tweezers or tongs. The position further required bolting,
screwing, clipping, cementing or fastening parts together by hand, using hand tools, portable
powered tools or bench machines. It also required fastening, force fitting or light cutting
operations, using machines such as arbor presses, punch presses, taps, spot-welding or riveters.
The physical requirements included light strength and, constant reaching, handling, fingering,
near acuity, depth perception and accommodation. No climbing, balancing, stooping, kneeling,
crouching, crawling, feeling, talking, hearing, taste/smelling, far acuity, color vision and field of
vision were required. The vocational rehabilitation counselor found that appellant’s transferable
skills and prior work experience qualified her for the selected position. She stated that the
selected position was available on a full-time basis and in appellant’s commuting area based on a
labor market survey. In a June 30, 2007 job analysis for the selected the position, the vocational
rehabilitation counselor stated that lifting up to 20 pounds occasionally and 10 pounds
occasionally to frequently were required. The position generally involved sitting with standing
occasionally. The ability to vary sitting and standing as needed was permitted. The position
required seldom walking short distances.
In an August 10, 2007 notice, the Office advised appellant that it proposed to reduce her
compensation because the medical and factual evidence of record established that she was no
longer totally disabled. It found that she had the capacity to earn the wages of a small products
assembler. The Office applied the Shadrick formula and determined that appellant’s
1

5 ECAB 376 (1953).

3

compensation would be reduced to $848.00 every four weeks. Appellant’s salary effective
February 25, 1993, the date her disability began, was $743.66 per week; the current adjusted pay
rate for her job on the date of injury was $704.08 per week effective August 10, 2007 and she
was currently capable of earning $517.20 per week, the pay rate of a small products assembler.
The Office determined that appellant had a 73 percent wage-earning capacity, which resulted in
an adjusted wage-earning capacity of $542.87 per week. It determined that she had a loss of
wage-earning capacity of $200.79 per week. The Office concluded that, based upon a threefourths compensation rate, appellant’s compensation would be $150.59 per week, increased by
applicable cost-of-living adjustments to $212.00 per week. Appellant was provided 30 days to
submit additional evidence or argument in support of any objection to the proposed reduction.
On September 4, 2007 appellant’s attorney contended that the small products assembler
position was not suitable. It required stooping and crouching occasionally and standing at least
for two and two-thirds hours, which exceeded her work restrictions.
In an August 24, 2007 treatment note, Dr. Heath stated that appellant sustained bilateral
calcaneal spurs and equinus. He recommended that she work in a position that only required her
to sit. Dr. Heath opined that anything that required standing for more than one hour would be
detrimental to appellant’s condition and would worsen it. He stated that standing would cause
pressure to the Achilles and the attachment of the calcaneus. The large bone spurs would only
enlarge with continued pressure. In a September 5, 2007 OWCP-5c form, Dr. Heath advised that
appellant was unable to perform her regular work duties and that she could not work eight hours
per day. She was permanently restricted from walking, standing and, pushing, pulling and lifting
more than 25 pounds for more than one hour per day. Appellant was also restricted from
squatting, kneeling and climbing. In a September 6, 2007 report, Dr. Heath reiterated that
appellant could only work in a sedentary position that did not require her to stand more than one
hour per day. He stated that she could not stand more than 15 minutes at a time. Dr. Heath
opined that appellant had reached maximum medical improvement.
By decision dated November 27, 2007, the Office finalized the reduction of appellant’s
compensation benefits effective that date.
LEGAL PRECEDENT
Once the Office has made a determination that an employee is totally disabled as a result
of an employment injury and pays compensation benefits, it has the burden of justifying a
subsequent reduction of benefits.2
Under section 8115(a) of the Federal Employees’ Compensation Act, wage-earning
capacity is determined by the actual wages received by an employee if the earnings fairly and
reasonably represent her wage-earning capacity. If the actual earnings do not fairly and
reasonably represent wage-earning capacity or if the employee has no actual earnings, her wageearning capacity is determined with due regard to the nature of her injuries and the degree of
physical impairment, her usual employment, the employee’s age and vocational qualifications
2

William H. Woods, 51 ECAB 619 (2000); Harold S. McGough, 36 ECAB 332 (1984); Samuel J. Russo,
28 ECAB 43 (1976).

4

and the availability of suitable employment.3 Wage-earning capacity is a measure of the
employee’s ability to earn wages in the open labor market under normal employment
conditions.4 The job selected for determining wage-earning capacity must be a job reasonably
available in the general labor market in the commuting area in which the employee lives.5
After the Office makes a medical determination of partial disability and of special work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist for
selection of a position listed in the DOT or otherwise available in the open market, that fits the
employee’s capabilities with regard to her physical limitations, education, age and prior
experience. Once this selection is made, determination of wage rate and availability in the open
labor market should be made through contact with the state employment services or other
applicable services.6 Finally, application of the principles set forth in Shadrick will result in the
percentage of the employee’s loss of wage-earning capacity.7 This has been codified by the
regulations in 20 C.F.R. § 10.403(c).
Section 8123(a) of the Act provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”8 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.9
ANALYSIS
Appellant received compensation for total disability due to her accepted aggravation of
bilateral Achilles tendinitis. She stopped work on August 7, 2000 following surgery to the right
foot. In a November 27, 2007 decision, the Office found that appellant was physically capable
of performing the duties of small products assembler based on the medical opinion of
Dr. Hubbard. The Board finds that the Office properly determined that appellant was physically
capable of performing the duties of the selected position.
A conflict in the medical opinion arose between Dr. Heath, an attending physician, and
Dr. Lichter, an Office referral physician, regarding appellant’s capacity for work. Dr. Heath
3

Samuel J. Chavez, 44 ECAB 431 (1993).

4

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

5

Id. The commuting area is to be determined by the employee’s ability to get to and from the worksite. See
Glen L. Sinclair, 36 ECAB 664, 669 (1985).
6

Karen L. Lonon-Jones, 50 ECAB 293, 297 (1999).

7

See William H. Woods, supra note 2; Albert C. Shadrick, supra note 1.

8

5 U.S.C. § 8123(a).

9

Gloria J. Godfrey, 52 ECAB 486 (2001).

5

opined that appellant was totally disabled for work and she required the use of a scooter.
Dr. Lichter opined that appellant could perform her regular work duties as a mail processor eight
hours per day without using a scooter.
The Office referred appellant to Dr. Hubbard, selected as the impartial medical specialist.
In a July 11, 2005 report, Dr. Hubbard reported essentially normal findings on physical and
neurological examination. He stated that appellant sustained mild loss of range of motion of the
hind foot and midfoot bilaterally. Based on his review of diagnostic test results and appellant’s
history, Dr. Hubbard stated that she sustained bilateral Achilles tendinitis and was status
postsurgical intervention precipitated by the tendinitis. He also stated that she sustained
deformity of the bilateral ankle and foot and, was status post bilateral gastrocnemius recession.
Dr. Hubbard related that appellant was also status post exostectomy of the right calcaneus for
reactive spur formation. Due to chronic bilateral leg pain, loss of lower extremity function and
permanent partial impairment of her bilateral lower extremities she was found to have
restrictions on her work activities. Dr. Hubbard stated that appellant sustained bilateral knee
osteoarthritis, right greater than the left and bilateral foot bunions and, she was status post left
bunionectomy by history.
In an October 15, 2005 supplemental report, Dr. Hubbard opined that, based on his
review of a description of the mail processor position, her date-of-injury position, appellant was
unable to perform the duties of her regular position due to her employment-related conditions.
He advised that she had reached maximum medical improvement. Dr. Hubbard restricted
appellant from walking more than one hour, standing more than two hours and, pushing and
pulling more than 30 pounds and lifting more than 25 pounds for more than one hour. He also
restricted her from squatting, kneeling and climbing. On December 27, 2005 Dr. Hubbard
clarified his opinion regarding appellant’s capacity for work by specifying that she could work
eight hours per day within the restrictions he set forth.
The Board finds that Dr. Hubbard’s opinion is well rationalized and based on a proper
factual background. Dr. Hubbard is entitled to the special weight accorded an impartial medical
specialist and his opinion establishes that appellant was capable of working full time as long as
the position did not involve walking more than one hour per day, standing more than two hours
per day, pushing and pulling more than 30 pounds and lifting more than 25 pounds for more than
one hour per day and, squatting, kneeling and climbing.
The selected small products assembler position required assemblage of various materials
such as, plastic, wood, metal, rubber or paperboard, to produce small products such as, roller
skates, toys, shoe lasts, musical instrument parts or loudspeakers. It further required the
positioning of parts in specified relationship to each other, using hand, tweezers, or tongs. The
position also required bolting, screwing, clipping, cementing or fastening parts together by hand,
using hand tools, portable powered tools or bench machines. It required fastening, force fitting,
or light cutting operations, using machines such as arbor presses, punch presses, taps, spotwelding or riveters.
The vocational rehabilitation counselor stated that appellant’s transferable skills and prior
work experience qualified her for the selected position. In light of the above, the Board finds
that appellant is capable of performing the duties of the selected position.

6

The physical requirements of the small products assembler position involved light
strength, constant reaching, handling, fingering, near acuity, depth perception and
accommodation, lifting up to 20 pounds occasionally and 10 pounds occasionally to frequently,
sitting with occasional standing with ability to either position as needed and, seldom walking
short distances. No climbing, balancing, stooping, kneeling, crouching, crawling, feeling,
talking, hearing, taste/smelling, far acuity, color vision and field of vision were required. Based
on the evidence of record, the Board finds that the selected position was within appellant’s work
restrictions set forth by Dr. Hubbard and was appropriate for a wage-earning capacity
determination.
Dr. Heath’s subsequent treatment notes and work restrictions found that appellant was
unable to walk, stand and, push, pull and lift more than 25 pounds for more than one hour per
day. The Board notes that he was part of the conflict in the medical opinion regarding
appellant’s work capacity which required her to be referred to Dr. Hubbard.10 Dr. Heath advised
that she could not perform her regular duties but did not provide any opinion with respect to
appellant’s ability to perform the selected position. He did not provide any findings and
rationale to support that appellant was unable to perform the small products assemble position.
The Board finds that his report is insufficient to overcome the special weight of the medical
evidence accorded the impartial medical specialist Dr. Hubbard.
The vocational rehabilitation counselor confirmed that the selected position is available
on a full-time basis and in appellant’s commuting area based on a labor market survey.
The Board finds that the Office properly determined appellant’s loss of wage-earning
capacity in accordance with the formula developed in Shadrick11 and codified at section 10.403
of the Office’s regulations.12 In this regard, the Office indicated that appellant’s salary on
February 25, 1993, the date her disability began, was $743.66 per week; that the current adjusted
pay rate for her job on the date of injury was $704.08 per week and that she was currently
capable of earning $517.20 per week, the pay rate of a small products assembler. It determined
that appellant had a 73 percent wage-earning capacity, which resulted in an adjusted wageearning capacity of $542.87 per week. The Office determined that appellant had a loss of wageearning capacity of $200.79 per week. It concluded that, based upon a three-fourths
compensation rate, appellant’s new compensation rate was $150.59 per week, increased by
applicable cost-of-living adjustments to $212.00 per week and that her net compensation for each
four-week period would be $848.00. The Board finds that the Office’s application of the
Shadrick formula was proper and, therefore, it properly found that the position of small products
assembler reflected appellant’s wage-earning capacity effective November 27, 2007.13

10

Submitting a report from a physician who was on one side of a medical conflict that an impartial specialist
resolved is, generally, insufficient to overcome the weight accorded to the report of the impartial medical examiner
or to create a new conflict. Jaja K. Asaramo, 55 ECAB 200 (2004).
11

See Albert C. Shadrick, supra note 1.

12

20 C.F.R. § 10.403.

13

Elsie L. Price, 54 ECAB 734 (2003); Stanley B. Plotkin, 51 ECAB 700 (2000).

7

CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation effective
November 27, 2007 based on its determination that the constructed position of small products
assembler represented her wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the November 27, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 5, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Las Vegas, NV, Employer
__________________________________________

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)
)
)
)
)
)
)

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

Docket No. 14-1656
Issued: January 8, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 25, 2014 appellant filed a timely appeal from an April 7, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant established more than an 11 percent permanent
impairment to the right arm, for which she received a schedule award.
FACTUAL HISTORY
On August 20, 2012 appellant, then a 51-year-old city letter carrier, filed an occupational
disease claim alleging that she developed a right shoulder and arm conditions due to pitching
mail, lifting, and delivering mail. OWCP accepted the claim for right shoulder tendinitis and
1

5 U.S.C. § 8101 et seq.

right shoulder labrum tear. It authorized a January 17, 2013 right shoulder arthroscopy with
adhesion resection, acromioplasty, mumford, and manipulation. This surgery was performed by
Dr. Robert J. Grondel, a Board-certified orthopedic surgeon. After her surgery, appellant
returned to light duty on February 19, 2013. OWCP paid wage-loss compensation.
In an April 17, 2013 report, Dr. Grondel noted that appellant was three months
postsurgery. He advised that appellant had mild tenderness, mild limited range of motion in her
right shoulder, and numbness in the right arm. Dr. Grondel recommended that appellant undergo
an electromyogram (EMG) and nerve conduction study (NCS). In a May 15, 2013 report,
Dr. Leo Germin, a Board-certified neurologist, noted the findings of the EMG and NCS testing
and found that there was no evidence of right carpal tunnel syndrome, ulnar neuropathy, atonal
or demyelinating sensory motor peripheral neuropathy. He also found that motor unit action
potential firing pattern and configuration was within a normal range for all muscles tested.
In a July 29, 2013 report, Dr. Bradley Baker, a Board-certified orthopedic surgeon to
whom appellant was referred by Dr. Grondel, noted that appellant was experiencing right
shoulder pain despite surgery. He reported normal range of motion with some discomfort at
times. Dr. Baker stated that appellant appeared to have reached the maximum improvement and
that he did not recommend any additional treatment options.
In an August 30, 2013 report, Dr. Grondel noted that appellant complained of right
shoulder pain. He recommended that appellant undergo a functional capacity evaluation and an
additional magnetic resonance imaging scan to track her progress. On September 18, 2013
Dr. Alison Nguyen, Board-certified in diagnostic radiology, advised that a right shoulder
arthrogram revealed moderate supraspinatus tendinosis with undersurface tendon spurring. The
testing did not show a full thickness tear of the rotator cuff.
In an October 4, 2013 report, Dr. Grondel noted reviewing a September 27, 2013
functional capacity evaluation and noted current findings. He advised that appellant was
experiencing tenderness, swelling, and limited range of motion. Dr. Grondel assessed right
rotator cuff tendinitis, right shoulder pain, right shoulder adhesive capsulitis, right biceps
tendinitis and chronic right rotator cuff tear. Dr. Grondel recommended that appellant be placed
on permanent disability with limitations. He stated that her case was considered closed. In an
accompanying October 4, 2013 duty status report (CA-17), Dr. Grondel reiterated the work
restrictions outlined in the functional capacity evaluation. The record contains a September 27,
2013 functional capacity evaluation from a physical therapist. The report concluded that
appellant had the ability to perform light work and noted her physical work abilities.
On November 13, 2013 appellant claimed a schedule award. On December 4, 2013
OWCP advised appellant of the type of medical report that she needed to support her claim for a
schedule award. In a December 16, 2013 letter, appellant informed OWCP that Dr. Grondel did
not provide impairment calculations. Appellant asked that OWCP refer her to a physician who
would provide an impairment rating.
On December 30, 2013 OWCP referred appellant, together with the medical record and a
statement of accepted facts, to Dr. Aubrey Swartz, a Board-certified orthopedic surgeon, for an
opinion regarding permanent impairment. In a January 29, 2014 report, Dr. Swartz noted

2

appellant’s history and reviewed her medical record. He reported his findings on examination
and advised that she was status post January 17, 2013 right shoulder surgery. In addressing
permanent impairment, Dr. Swartz used the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment. Referring to page 403, Table 15-5 for
acromioclavicular (AC) joint injury or disease, he found that appellant had a class 1 impairment
for Class of Diagnosis (CDX) with a default 10 percent impairment. For a Functional History
(GMFH) adjustment under Table 15-7, at page 406, Dr. Swartz advised that appellant had a
QuickDASH score of 22, suggesting a grade modifier of one. He further explained that she had
pain with vigorous activity which also supported a grade one modifier. Using the formula
GMFH-CDX (1-1), Dr. Swartz found that there was a net zero grade modifier for functional
history. For Physical Examination (GMPE) adjustment, he found that appellant was very tender
and had pain with provocative testing, which suggested a grade two modifier under Table 15-8,
page 408. Using the formula GMFH-CDX (2-1), he found that there was a grade modifier of
one. Dr. Swartz advised that the Clinical Studies (GMCS) adjustment was not applicable for
appellant’s condition. Dr. Swartz found that appellant had a net adjustment of +1. He indicated
that this moved the grade C default rating of 10 percent to grade D which provided 11 percent
impairment of the arm. Dr. Swartz advised that appellant’s maximum medical improvement
(MMI) was January 7, 2014, 12 months postoperative.
On March 22, 2014 an OWCP medical adviser reviewed Dr. Swartz January 29, 2014
report and concurred with his determination that appellant had 11 percent impairment of the right
arm.
By decision dated April 7, 2014, OWCP granted appellant a schedule award for 11
percent permanent impairment of the right arm. The period of the award ran from January 7 to
September 4, 2014.
On appeal, appellant argued that her impairment rating should have been higher than 11
percent and that OWCP overlooked vital medical evidence.
LEGAL PRECEDENT
The schedule award provisions of FECA provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such determination is a matter which rests in the sound
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all
claimants. The A.M.A., Guides has been adopted by OWCP as a standard for evaluation of
schedule losses and the Board has concurred in such adoption.2
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

2

See Bernard A. Babcock, Jr., 52 ECAB 143 (2000). See also 5 U.S.C. § 8107.

3

and Health (ICF).3 Under the sixth edition, the evaluator identifies the impairment class for the
Class of Diagnosis (CDX), which is then adjusted by grade modifiers based on GMFH, GMPE
and GMCS.4 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
Evaluators are directed to provide reasons for their impairment rating choices, including the
choices of diagnoses from regional grids and calculations of modifier scores.5
ANALYSIS
The Board finds that OWCP properly determined appellant’s permanent impairment of
her right arm. OWCP accepted the claim for right shoulder tendinitis and right shoulder labrum
tear and it authorized a January 17, 2013 right shoulder arthroscopy. It accepted the claim for
aggravation of preexisting right knee synovitis and popliteal cyst. After appellant claimed a
schedule award, OWCP referred her to Dr. Swartz for an impartial evaluation.
The Board finds that Dr. Swartz applied the appropriate tables and grading schemes of
the A.M.A., Guides, in determining that appellant has 11 percent permanent impairment to the
right arm. He found that the diagnosis-based estimate for AC joint injury or disease, under Table
15-5 (shoulder-region grid), page 403, was a class 1, default position C, which equated to 10
percent permanent impairment. This selection was appropriate because the medical evidence of
record specifies that appellant underwent a distal clavicle resection. Dr. Swartz then explained
that he assigned a grade modifier 1 for functional history, under Table 15-7, page 406, and a
grade modifier 2 for physical examination, according to Table 15-8, page 408. He found that
clinical studies were not applicable. Using the net adjustment formula of (GMFH-CDX) +
(GMPE-CDX) + (GMCS-CDX), he found that (1-1) + (2-1) + (n/a) resulted in a net grade
modifier +1. This moves the default grade C impairment to grade D which results in 11 percent
permanent impairment of the right arm. In a March 22, 2014 report, an OWCP medical adviser
concurred with Dr. Swartz’ determination. There is no probative medical evidence of record, in
conformance with the sixth edition of the A.M.A., Guides, establishing that appellant has more
than an 11 percent permanent impairment of the right arm.
On appeal, appellant argued that her impairment rating should have been higher than 11
percent and that OWCP overlooked vital evidence and had not sufficiently considered her pain
and the way that the injury affected her ability to engage in everyday activities. As previously
stated, OWCP calculates schedule awards in conformance with the sixth edition of the A.M.A.,
Guides. In this case, there is no other probative medical evidence that calculates an impairment
rating using the sixth edition of the A.M.A., Guides. Furthermore, the Board has held that
factors such as limitations on daily activities have no bearing on the calculation of a schedule
award.6

3

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.
4

Id. at 494-531.

5

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

6

Kimberly M. Held, 56 ECAB 670 (2005).

4

Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that she sustained more than 11 percent
permanent impairment to the right upper extremity, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the April 7, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 8, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, HIGHPOINT
BRANCH, Clearwater, FL, Employer
__________________________________________

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Appearances:
Richard S. Webster, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1203
Issued: January 22, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On May 9, 2019 appellant, through counsel, filed a timely appeal from a November 21,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days have elapsed from OWCP’s last merit decision of the issue on appeal, dated July 9,
2012, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.3

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.

3
The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s October 2, 2018 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances set forth in
the Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.
On June 18, 2009 appellant, then a 52-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that on that day he sustained an injury to his right shoulder, arm, hand, ribs, and
low back when he tripped on a plastic strap while in the performance of duty. On December 9,
2010 OWCP accepted his claim for lumbar sprain and right shoulder sprain.5 On April 3, 2012 it
expanded appellant’s accepted conditions to include temporary aggravation of lumbar
degenerative disc disease, right shoulder impingement, and myofascial pain.
On April 26, 2012 appellant filed a claim for wage-loss compensation (Form CA-7) for the
period January 8, 2011 to March 31, 2012.
In a development letter dated May 4, 2012, OWCP advised appellant of the deficiencies of
his claim and informed him of the evidence necessary to establish his claim. Appellant was
afforded 30 days to submit the necessary evidence.
In a report dated May 16, 2012, Dr. Ashraf F. Hanna, Board-certified in pain medicine,
reviewed appellant’s history of injury and performed a physical examination. He diagnosed
discogenic syndrome, lumbar spinal stenosis, facet syndrome, and thoracic or lumbosacral neuritis
or radiculitis. Under a heading titled, “work status,” Dr. Hanna noted temporary total disability.
By decision dated July 9, 2012, OWCP denied appellant’s claim, finding that appellant had
not established that he was disabled during the period commencing January 8, 2012.
Appellant continued to file wage-loss compensation claims (Form CA-7). He submitted
reports dated December 7, 2012, and March 11, April 23, May 22, and September 11, 2013 from
Dr. Hanna who noted that appellant was temporarily totally disabled.
On November 16, 2015 appellant, through counsel, requested reconsideration of OWCP’s
July 9, 2012 decision.
In a report dated January 22, 2016, Dr. Hanna reviewed appellant’s history of injury and
performed a physical examination. He diagnosed chronic pain syndrome, displacement of lumbar
intervertebral disc without myelopathy, paresthesia, and lumbar spinal stenosis.

4

Docket No. 14-0558 (issued December 17, 2014).

5
On January 14, 2011 appellant filed a wage-loss compensation claim (Form CA-7) for leave without pay for total
disability for the period August 3, 2009 to January 7, 2011. By decision dated April 6, 2015, OWCP accepted his
claim for wage-loss compensation for the period August 3, 2009 to January 7, 2011 for 3,056.14 hours of leave without
pay.

2

By decision dated February 19, 2016, OWCP denied appellant’s request for reconsideration
finding that it was untimely filed and failed to demonstrate clear evidence of error.
Thereafter, appellant resubmitted reports from Dr. Hanna that had already been considered
by OWCP’s in its decisions dated February 26, 2010, and August 2 and October 16, 2013. He also
submitted a report not previously considered by OWCP dated October 6, 2016 from Dr. Hanna in
which he noted appellant’s history of injury and reiterated his diagnoses.
On October 2, 2018 appellant, through counsel, again requested reconsideration of
OWCP’s July 9, 2012 decision.
By decision dated November 21, 2018, OWCP denied appellant’s request for
reconsideration finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.6 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.7 Timeliness is determined by the document receipt date of
the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System (iFECS).8 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.9
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s application for review is untimely filed, it must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error.10 If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.11
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.12 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.13 Evidence which does not raise a
6

5 U.S.C. § 8128(a); see M.E., Docket No. 18-1497 (issued March 1, 2019); J.W., Docket No. 18-0703 (issued
November 14, 2018); Y.S., Docket No. 08-0440 (issued March 16, 2009).
7

20 C.F.R. § 10.607(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

9

See M.E., supra note 6; E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB
104 (1989).
10

See 20 C.F.R. § 10.607(b); M.E., supra note 6; Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

11
G.G., Docket No. 18-1074 (issued January 7, 2019); see also 20 C.F.R. § 10.607(b); supra note 8 at Chapter
2.1602.5 (February 2016).
12

J.F., Docket No. 18-1802 (issued May 20, 2019); J.D., Docket No. 16-1767 (issued January 12, 2017); see
Dean D. Beets, 43 ECAB 1153 (1992).
13

Id.; see also Leona N. Travis, 43 ECAB 227 (1999).

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substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error.14 It is not enough merely to demonstrate that the evidence could be
construed so as to produce a contrary conclusion.15 This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP.16 To
demonstrate clear evidence of error, the evidence submitted must be of sufficient probative value
to shift the weight of the evidence in favor of the claimant and raise a substantial question as to
the correctness of OWCP’s decision.17
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard.18 The claimant must present evidence which, on its face, demonstrates that
OWCP made an error. Evidence such as a detailed, well-rationalized medical report which, if
submitted before the denial was issued, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error.19 The Board makes an independent
determination of whether a claimant has demonstrated clear evidence of error on the part of
OWCP.20
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations21 and procedures22 establish a one-year time limit for requesting
reconsideration, which begins on the date of the last merit decision issued in the case. The last
decision on the merits of the issue of disability for the claimed period was OWCP’s July 9, 2012
decision, which had found that the evidence of record failed to establish that appellant was disabled
during the period on and after January 8, 2012. Appellant had one year from the date of that
decision to timely request reconsideration. As his reconsideration request was received on

14

J.F., supra note 12; J.D., supra note 11; Jimmy L. Day, 48 ECAB 652 (1997).

15

Id.

16

Id.

17

J.F., supra note 12; M.E., supra note 6; Robert G. Burns, 57 ECAB 657 (2006).

18

See G.G., supra note 11.

19

J.F., supra note 12; J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 8 at Chapter 2.1602.5(a)
(February 2016).
20

See M.E., supra note 6; D.S., Docket No. 17-0407 (issued May 24, 2017).

21

20 C.F.R. § 10.607(a); see G.G., supra note 11; Alberta Dukes, 56 ECAB 247 (2005).

22

Supra note 8 at Chapter 2.1602.4 (February 2016); see A.F., Docket No. 18-0645 (issued October 26, 2018);
Veletta C. Coleman, 48 ECAB 367, 370 (1997).

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October 2, 2018, over six years after the July 9, 2012 merit decision, it was untimely filed.
Therefore, appellant must demonstrate clear evidence of error by OWCP.23
The Board finds that appellant failed to demonstrate clear evidence of error on the part of
OWCP. On reconsideration appellant submitted medical reports from Dr. Hanna which were
previously considered by OWCP, as well as a new report from Dr. Hanna that failed to opine as to
the claimed disability period. He did not sufficiently explain how this evidence raised a substantial
question as to the correctness of OWCP’s decision.24
The Board accordingly finds that the evidence submitted on reconsideration is of
insufficient probative value to shift the weight of the evidence in favor of appellant and raise a
substantial question as to the correctness of OWCP’s July 9, 2012 decision.25 Appellant has not
raised an argument or submitted evidence that demonstrates on its face that OWCP committed an
error in denying his claim, nor has he provided evidence of sufficient probative value to raise a
substantial question as to the correctness of OWCP’s July 9, 2012 decision. Thus, OWCP properly
determined that his untimely request for reconsideration failed to demonstrate clear evidence of
error.26
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.

23

20 C.F.R. § 10.607(b); S.M., Docket No. 16-0270 (issued April 26, 2016).

24

See G.G., supra note 11; see also A.M., Docket No. 10-0526 (issued November 8, 2010).

25

See G.G., supra note 11; J.S., Docket No. 10-0385 (issued September 15, 2010); B.W., Docket No. 10-0323
(issued September 2, 2010).
26

See S.M., Docket No. 18-0075 (issued April 11, 2018); see also M.B., Docket No. 17-1505 (issued
January 9, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the November 21, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 22, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

Docket No. 17-0627
Issued: June 28, 2017

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 January 25, 2017 appellant filed a timely appeal from a September 20, 2016 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 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 his burden of proof to establish an injury in the
performance of duty on August 3, 2016.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its September 20, 2016
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision; therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 501.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

FACTUAL HISTORY
On August 3, 2016 appellant, then a 64-year-old tractor trailer operator, filed a traumatic
injury claim (Form CA-1) alleging that on that same date he sustained a neck sprain when a
private vehicle hit his vehicle head-on in a front-end collision. The incident was recorded as
having occurred at 1:00 a.m. on Route 83 North and 3rd Avenue in Bensenville, Illinois.
Appellant’s routine work hours were noted as Monday through Friday from 6:30 p.m. to 3:00
a.m. He stopped work and received medical care on the date of injury. On the reverse side of
the claim form, appellant’s supervisor checked a box marked “yes” indicating that his knowledge
of the facts about the injury comported with appellant’s statements and that the injury was not
caused by a third party.
An August 3, 2016 Elmhurst Memorial Healthcare emergency department report related
that appellant sought treatment on that same date with Dr. Kevin P. Keron, a Doctor of
Osteopathic Medicine, following a motor vehicle accident. He was diagnosed with lumbar and
thoracic strain and released from care.
By letter dated August 15, 2016, OWCP informed appellant that the evidence of record
was insufficient to establish that he actually experienced the incident or employment factor
alleged to have caused injury, there was no diagnosis of any condition, nor was there a
physician’s opinion as to the cause of his injury. It provided a questionnaire for completion and
requested that he submit a response in order to substantiate the factual basis of his claim.
Appellant was afforded 30 days to provide the requested information.
On August 19, 2016 appellant responded to OWCP’s development letter stating that his
postal vehicle was hit head on by an oncoming vehicle. He also noted that he had no prior
injuries.
By decision dated September 20, 2016, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that the August 3, 2016 employment incident occurred as
alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was filed within the applicable
time limitation, that an injury was sustained while in the performance of duty as alleged, and that
any disability 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 on a traumatic injury or an occupational disease.4

3

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

4

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

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.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
When an employee claims that he or she sustained an injury in the performance of duty
he or she must submit sufficient evidence to establish that he or she experienced a specific event,
incident, or exposure occurring at the time, place, and in the manner alleged. He or she must
also establish that such event, incident, or exposure caused an injury.6 Once an employee
establishes that he or she sustained an injury in the performance of duty, he has the burden of
proof to establish that any subsequent medical condition or disability from work for which he or
she claims compensation is causally related to the accepted injury.7
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.8 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.9
To arise in the course of employment, an injury must occur at a time when the employee
may reasonably be said to be engaged in his master’s business, at a place when he may
reasonably be expected to be in connection with his employment and while he was reasonably
fulfilling the duties of his employment or engaged in doing something incidental thereto.10 In
deciding whether an injury is covered by FECA, the test is whether, under all the circumstances a
causal relationship exists between the employment itself or the conditions under which it is
required to be performed and the resultant injury.11

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
7

Supra note 3.

8

5 U.S.C. § 8102(a).

9

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

10

T.F., Docket No. 08-1256 (issued November 12, 2008); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006);
Eugene G. Chin, 39 ECAB 598 (1988).
11

See Mark Love, 52 ECAB 490 (2001).

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ANALYSIS
The Board finds that appellant failed to establish that he sustained a neck injury in the
performance of duty on August 3, 2016, as alleged.
Appellant has not provided sufficient detail to establish that a traumatic incident occurred
as alleged.12 On his Form CA-1 he stated that he sustained a neck sprain on August 3, 2016
when a private vehicle hit his vehicle in a head-on collision. The Board notes that appellant’s
description of the traumatic incident is vague and fails to provide any specific detail or evidence
establishing that the motor vehicle accident occurred as alleged.13
Appellant’s August 19, 2016 response to OWCP’s development letter also fails to
provide sufficient detail regarding the traumatic incident. His statement that he was hit head on
by an oncoming vehicle is generalized and fails to establish fact of injury.14 The record does not
contain a police report describing the incident. By failing to submit evidence which establishes
the employment incident and circumstances surrounding his alleged injury, appellant has not met
his burden of proof to establish a traumatic injury as alleged while in the performance of duty.15
While the August 3, 2016 Emherst Memorial Healthcare report documents treatment for
a motor vehicle accident on that date, the Board finds that it is also insufficient to establish fact
of injury. While this document has some connection to appellant’s claim, it is not relevant to the
issue for which OWCP denied the claim, the failure to establish that the traumatic incident
occurred as alleged.16 The report noted that appellant was involved in a motor vehicle accident
and treated for a lumbar and thoracic sprain yet failed to establish the factual element of
appellant’s claim.17 Further, the report was not signed by a treating physician to establish a firm
medical diagnosis.18
Thus, the Board finds that the record lacks factual evidence to support appellant’s
allegation that he sustained an injury on August 3, 2016, in the performance of duty as alleged.19

12

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

13

See C.E., Docket No. 17-0106 (issued April 20, 2017).

14

P.T., Docket No. 14-598 (issued August 5, 2014).

15

A.H., Docket No. 16-0888 (issued August 4, 2016).

16

David J. McDonald, 50 ECAB 185 (1990).

17

B.S., Docket No. 13-405 (issued July 18, 2013).

18

To establish a firm medical diagnosis and causal relationship, appellant must submit a physician’s report in
which the physician reviews the established incident or factors of employment alleged to have caused his condition
and, taking these factors into consideration, as well as findings upon examination and appellant’s medical history,
explain how the incident or factors of employment caused or aggravated any diagnosed condition, and present
medical rationale in support of his opinion. C.B., Docket No. 08-1583 (issued December 9, 2008).
19

David R. Clark, Docket No. 16-0083 (issued March 8, 2016).

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On appeal appellant argues that his injury was work related and submitted additional
evidence in support of his claim. As previously noted, this evidence cannot be considered by the
Board as it was not submitted prior to OWCP’s September 20, 2016 decision.20
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 and 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish an injury in
the performance of duty on August 3, 2016.
ORDER
IT IS HEREBY ORDERED THAT the September 20, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 28, 2017
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

20

Supra note 2.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Nashville, TN, Employer
__________________________________________

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

Docket No. 14-509
Issued: June 3, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 6, 2014 appellant filed a timely appeal from a September 10, 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 is entitled to continuation of pay (COP).
FACTUAL HISTORY
On July 22, 2013 appellant, then a 60-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that she sustained an injury to her right thumb and right kneecap in the
performance of duty on June 13, 2013. She tripped on her shoes in the restroom and fell through
1

5 U.S.C. § 8101 et seq.

a door, landing on her thumb and knee. The employing establishment controverted COP, stating
that appellant did not report the injury on a Form CA-1 within 30 days of the incident.
In a September 10, 2013 decision, OWCP accepted appellant’s claim for traumatic injury
for a right metacarpophalangeal sprain of her thumb and a right medial collateral ligament sprain
of her knee. In a decision of the same date, it found that she was not entitled to COP from
June 14 through July 29, 2013. OWCP found that appellant did not report her June 13, 2013
traumatic injury on a form approved by it within 30 days. It explained that the decision
concerned only COP and did not affect her entitlement to other monetary benefits. OWCP
stated, “You may claim compensation for wage loss resulting from this decision by filing Form
CA-7.”
On appeal, appellant contends that she was physically unable to come into work to file a
Form CA-1 in a timely manner, and that at least four people knew directly or indirectly about the
June 13, 2013 incident, but failed to file a Form CA-1 on her behalf.
LEGAL PRECEDENT
Section 8118(a) of FECA authorizes COP, not to exceed 45 days, of an employee who
has filed a claim for a period of wage loss due to a traumatic injury with his or her immediate
superior on a form approved by the Secretary of Labor within the time specified in section
8122(a)(2) of this title.2 The latter section provides that written notice of injury shall be given
within 30 days. The context of section 8122 makes clear that this means within 30 days of the
injury.3
The Board has held that section 8122(d)(3) of FECA,4 which allows OWCP to excuse
failure to comply with the time limitation provision for filing a claim for compensation because
of exceptional circumstances, is not applicable to section 8118(a), which sets forth the filing
requirements for COP. Thus, there is no provision in the law for excusing an employee’s failure
to file a claim within 30 days of the employment injury.5
ANALYSIS
For employees who sustain a traumatic injury, FECA provides that the employing
establishment must continue the employee’s regular pay during any period of resulting disability,
up to a maximum of 45-calendar days. This is called COP. The employing establishment, not
OWCP, pays COP.6

2

Id. at § 8118(a).

3

George A. Harrell, 29 ECAB 338, 340 (1978).

4

5 U.S.C. § 8122(d)(3).

5

William E. Ostertag, 33 ECAB 1925, 1932 (1982).

6

20 C.F.R. § 10.200(a).

2

One purpose of COP is to eliminate an interruption to the injured employee’s salary due
to delay between the notice of injury and payment of compensation benefits.7 The late filing of a
claim for a period of wage loss defeats that purpose.
Appellant’s employment injury occurred on June 13, 2013. She did not file a written
claim for a period of wage loss due to the traumatic injury within 30 days. Appellant’s claim
was not filed until July 22, 2013. As there is no provision in FECA for excusing a late filing, she
is not entitled to COP. This is so regardless of any failure or alleged failure on the part of the
employing establishment8 or local FECA representative.
Appellant contends that she was physically unable to file her claim in a timely manner
and that at least four people knew directly or indirectly of her injury. As OWCP noted in its
September 10, 2013 decision, the denial of COP does not affect her entitlement to other
monetary compensation benefits. Appellant may pursue a claim for wage loss, as distinguished
from COP, for any disability or period of wage loss caused by the accepted employment injury
with the submission of a Form CA-7.
CONCLUSION
The Board finds that appellant is not entitled to COP.

7

Federal (FECA) Procedure Manual, Part 2 -- Claim, Continuation of Pay and Initial Claims for Compensation,
Chapter 2.807.2 (June 2012).
8

See 20 C.F.R. §§ 10.210-211 (detailing the employee’s and employer’s responsibilities in COP cases).

3

ORDER
IT IS HEREBY ORDERED THAT the September 10, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 3, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

4