United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.C., Appellant
and
U.S. POSTAL SERVICE, TEXTILE FINANCE
POST OFFICE, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 14-1927
Issued: February 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 2, 2014 appellant, through counsel, filed a timely appeal from an
August 11, 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 met her burden to prove that she sustained an injury to her
neck, shoulder, arms, and hands causally related to factors of her federal employment.
FACTUAL HISTORY
This case has previously been before the Board. On April 1, 2011 appellant, then a 52year-old sales associate clerk, filed an occupational disease claim alleging that she sustained an
injury to her neck, shoulder, arms, and hands due to performing repetitive work duties. She
1

5 U.S.C. § 8101 et seq.

became aware of her condition and its asserted relationship to her employment on
March 2, 2011. Appellant did not stop work.
By letter dated April 15, 2011, OWCP requested that appellant submit further factual and
medical information, including a detailed report from her attending physician addressing the
causal relationship between any diagnosed condition and the identified work factors.
In a decision dated June 3, 2011, OWCP denied appellant’s claim after finding that she
did not submit sufficient factual evidence to establish that she experienced the identified work
duties. It noted that she had not responded to its request for additional evidence.
An August 6, 2009 magnetic resonance imaging (MRI) scan study, received by OWCP
on June 9, 2011, showed straightening of the cervical lordotic curve, degenerative spondylosis
from C4-5 to C6-7 with osteophyte formation and narrowing of the intervertebral disc spaces, a
small syrinx from mid C6 to C6-7, and an arachnoid cyst at C6-7 on the right.
In a report dated September 28, 2009, Dr. Ben Shwachman, a Board-certified
anesthesiologist, reviewed appellant’s history of neck pain radiating into the left upper extremity
for the past year. He diagnosed degenerative disc disease of the cervical spine with
radiculopathy. In a September 28, 2009 addendum, Dr. Shwachman reviewed the MRI scan
study and diagnosed cervical lordotic curve straightening and spondylosis from C4-5 and C6-7
with disc space narrowing and osteophyte formation.
On April 19, 2010 Dr. Shwachman discussed appellant’s complaints of “neck pain
radiating to the left upper extremity with some cramping in her hand.” He noted that an MRI
scan study showed an arachnoid cyst at C6-7.2
In an August 31, 2010 certification of health care provider form submitted in connection
with a leave request under the Family and Medical Leave Act, Dr. Shwachman diagnosed
cervical sprain/strain, degenerative disc disease, cervical syrinx at C5 to C7, foraminal stenosis
of the cervical spine, and a right arachnoid cyst at C6-7. He advised that appellant would have
flare-ups of her condition and be periodically incapacitated from work.
On May 11, 2011 Dr. Kaleem Uddin, a Board-certified neurologist, discussed appellant’s
symptoms of pain on the left side from the hand to the scapula area. He diagnosed possible left
scapular myofascitis and left carpal tunnel syndrome. Electrodiagnostic testing performed on
May 18, 2011 yielded normal findings.
On November 17, 2011 Dr. Antoine G. Khoury, a chiropractor, diagnosed cervical sprain
and strain and myofascial pain syndrome of the cervical spine with left radiculopathy, thoracic
and lumbar strain/sprain, bilateral carpal tunnel syndrome, cephalgia, and depression. He
indicated that the injury occurred due to bending, lifting, reaching over the shoulder, and using a
keyboard. Dr. Khoury advised that x-rays of the cervical spine revealed a reversal of the normal
cervical lordosis, osteoarthritis, osteoporosis, and discogenic conditions at C5-6 and C6-7. He
further found that x-rays of the lumbar spine showed straightening of the normal lumbar lordosis,
2

On May 5, 2010 Dr. Shwachman preformed a cervical epidural steroid injection.

2

osteoarthritis, osteoporosis, severe rotatory scoliosis on the left, and discogenic conditions at L3
to S1.
On November 19, 2011 appellant requested reconsideration. She described in detail the
repetitive work duties to which she attributed her condition, including casing mail, lifting trays,
working at the window section, working as a machine operator, and working as a flat sorter
operator.
In a progress report dated December 28, 2011, Dr. Khoury diagnosed cervical
sprain/strain with myofascial pain syndrome and radiculopathy on the left side, thoracic and
lumbar sprain/strain, cephalgia, depression, bilateral carpal tunnel syndrome, and foraminal
stenosis of the cervical spine.3 He found that appellant was disabled from work.
By decision dated February 22, 2012, OWCP modified its June 3, 2011 decision to reflect
that appellant established the occurrence of the work factors identified as causing her condition.
It denied her claim after finding that the medical evidence was insufficient to show that she
sustained a diagnosed condition as a result of the accepted work factors.
By letter dated November 12, 2012, counsel for appellant wrote, “I am submitting
documentation to support the above-numbered claim. Upon receipt, please review the file and
provide the status.” He enclosed a November 5, 2012 report from Dr. Khoury, who again
discussed the November 2011 x-ray findings and further found that a March 8, 2012 MRI scan
study showed disc bulging at L4-5 and a possible disc herniation with some spinal stenosis and
degenerative changes at multiple levels.
Dr. Khoury diagnosed cephalgia, cervical
radiculopathy, carpal tunnel syndrome, thoracic, and lumbar sprain/strain, cervical disc
conditions, and stenosis, a disc herniation and stenosis at L4-5, degenerative disc disease of the
cervical and lumbar spine, anxiety and insomnia.
In a report dated January 8, 2013, Dr. Frederic G. Nicola, a Board-certified orthopedic
surgeon, noted that appellant had worked 34 years for the employing establishment. He
discussed her work duties, including reaching, pushing, pulling, and performing repetitive neck
and back movement using a computer. Dr. Nicola reviewed appellant’s history of resolved
injuries to her lower back in 1983 and 2001 from unspecified events and an injury to her low
back in 2002 from a motor vehicle accident. Appellant also experienced a whiplash injury in
2006 from a fall. Dr. Nicola provided findings on examination and reviewed the diagnostic
studies. He diagnosed cervical degenerative disc disease with radiculopathy and lumbosacral
degenerative disc disease. Dr. Nicola stated, “Review of records indicates that [appellant] has
been treated for long periods of time with a permanent aggravation sustained to her neck and
back from her industrial exposure of working for the [employing establishment] from
January 1979 until current. She has been on partial disability and temporary disability in those
timeframes and has been on restrictions by her treating physician.” He opined that appellant
experienced a permanent aggravation of degenerative joint disease of the cervical and lumbar
spine based on her history, findings on examination, and his review of past medical records. He
provided work restrictions.
3

Dr. Khoury provided similar findings in progress reports dated February 9 through September 5, 2012.

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By letter dated May 14, 2013, counsel related that on March 19, 2013 he forwarded a
January 8, 2013 report from Dr. Nicola. He asserted that OWCP had received the report within
one year of its prior denial and requested that OWCP determine whether the report was
“sufficient for reconsideration.”
In a letter dated June 5, 2013, counsel maintained that he requested reconsideration
before OWCP on December 5, 2012. On July 25, 2013 OWCP informed him that it did not have
a request for reconsideration. By letter dated August 1, 2013, counsel related that he had
submitted medical evidence from Dr. Nicola in April 2013 and noted that OWCP had also
received a January 8, 2013 medical report from Dr. Nicola. Citing S.C.,4 he argued that a request
for reconsideration did not need to be in any certain form and that OWCP had an obligation to
develop new medical evidence received.
By decision dated August 12, 2013, OWCP denied appellant’s request for reconsideration
as untimely and insufficient to establish clear evidence of error. It indicated that it had received
her May 14, 2013 request for reconsideration, submitted by counsel, on May 16, 2013, more than
one year from the last merit decision. OWCP considered the January 8, 2013 report from
Dr. Nicola, which it noted it had received on April 15, 2013, and found that it was insufficient to
establish clear evidence of error.
On September 6, 2013 appellant, through counsel, requested reconsideration. He argued
that in S.C.,5 the Board found that “the filing of additional information constituted a request for
reconsideration.” Counsel also maintained that OWCP found that appellant had established fact
of injury in its February 22, 2012 decision, but denied the claim based on causal relationship. He
contended that the January 8, 2013 report from Dr. Nicola was sufficient to establish causal
relationship.
By decision dated September 25, 2013, OWCP denied appellant’s request for
reconsideration after finding that the request was untimely and did not show clear evidence of
error. It found that it was not required to further develop a claim upon receipt of new medical
evidence and that a request for reconsideration was necessary to consider the evidence.
Appellant appealed to the Board. By decision dated June 3, 2014, the Board determined
that OWCP improperly concluded that appellant did not timely file a reconsideration request.6
The Board found that counsel submitted a request for reconsideration on November 12, 2012,
which was within one year from the last merit decision dated February 22, 2012. The Board
noted that, even though counsel did not use the word reconsideration, he submitted additional
evidence under the proper file number and requested that OWCP review the evidence. It thus set
aside the August 12 and September 24, 2013 OWCP decisions and remanded the case for OWCP
to consider the evidence submitted under the standard for timely reconsideration requests.

4

Docket No. 13-0738 (issued July 8, 2013).

5

Id.

6

Docket No. 14-170 (issued June 3, 2014).

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By decision dated August 11, 2014, OWCP denied modification of its February 22, 2012
decision. It determined that Dr. Khoury was not a physician under FECA as he did not diagnose
a spinal subluxation. OWCP further found that Dr. Nicola’s report was insufficiently
rationalized to establish that appellant sustained a permanent aggravation of a spinal condition
due to factors of her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA7 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.8 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.9
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;10 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;11 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.12
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
medical background of the claimant,13 must be one of reasonable medical certainty14 explaining
the nature of the relationship between the diagnosed condition and the specific employment
factors identified by the claimant.15

7

See supra note 1.

8

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

9

See Ellen L. Noble, 55 ECAB 530 (2004).

10

Michael R. Shaffer, 55 ECAB 386 (2004).

11

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

12

Beverly A. Spencer, 55 ECAB 501 (2004).

13

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

14

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

15

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

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Section 8101(2) of FECA provides that the “term ‘physician’ includes chiropractors only
to the extent that their reimbursable services are limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist….”16 A
chiropractor cannot be considered a physician under FECA unless it is established that there is a
subluxation as demonstrated by x-ray evidence.17 OWCP regulations at 20 C.F.R. § 10.5(bb)
define subluxation as an incomplete dislocation, off-centering, misalignment, fixation, or
abnormal spacing of the vertebrae, which must be demonstrable on any x-ray film to an
individual trained in the reading of x-rays.18
ANALYSIS
Appellant alleged that she experienced pain in her neck, shoulder, arms, and hands as a
result of repetitive work duties. OWCP accepted the occurrence of the claimed employment
factors. The issue therefore is whether the medical evidence establishes a causal relationship
between the claimed conditions and the identified employment factors.
In a report dated September 28, 2009, Dr. Shwachman discussed appellant’s history of
neck pain for the past year radiating into the left upper extremity. He diagnosed degenerative
disc disease of the cervical spine with radiculopathy and, after reviewing an MRI scan study,
straightening of the cervical lordotic curve, spondylosis from C4-5 and C6-7 with disc space
narrowing, and osteophyte formation. On April 10, 2010 Dr. Shwachman related that appellant
complained of radiating neck pain and that an MRI scan study showed a C6-7 arachnoid cyst. In
his reports, however, he did not address the cause of the diagnosed conditions. Medical evidence
that does not offer any opinion regarding the cause of an employee’s condition is of diminished
probative value on the issue of causal relationship.19
In a certification of health care provider form dated August 31, 2010, Dr. Shwachman
diagnosed cervical sprain/strain, degenerative disc disease, cervical syrinx at C5 to C7, foraminal
stenosis of the cervical spine and a right arachnoid cyst at C6-7. He opined that appellant would
experience intermittent disability from employment due to her condition. Again, however,
Dr. Shwachman did not address causation and thus his report is of little probative value on the
issue of causal relationship.20
In a report dated May 11, 2011, Dr. Uddin reviewed appellant’s history of pain from the
left hand to left scapula. He diagnosed possible left scapular myofascitis and left carpal tunnel
syndrome. Dr. Uddin did not provide an opinion on the cause of the diagnosed conditions of left
scapular myofascitis and left carpal tunnel syndrome. Consequently, his report is insufficient to
meet appellant’s burden of proof.
16

5 U.S.C. § 8101(2); see also Michelle Salazar, 54 ECAB 523 (2003).

17

Pamela K. Guesford, 53 ECAB 726 (2002).

18

20 C.F.R. § 10.5(bb); Mary A. Ceglia, 55 ECAB 626 (2004).

19

S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

20

Id.

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On November 17, 2011 Dr. Khoury diagnosed cervical sprain and strain and myofascial
pain syndrome of the cervical spine with left radiculopathy, thoracic and lumbar strain/sprain,
bilateral carpal tunnel syndrome, cephalgia, and depression. He attributed the conditions to
appellant’s work duties. Dr. Khoury advised that x-rays of the cervical spine revealed a reversal
of the normal cervical lordosis, osteoarthritis, osteoporosis, and discogenic conditions at C5-6
and C6-7. He further found that x-rays of the lumbar spine showed straightening of the normal
lumbar lordosis, osteoarthritis, osteoporosis, severe rotatory scoliosis on the left, and discogenic
conditions at L3 to S1.21 In a report dated November 5, 2012, Dr. Khoury found that appellant’s
work duties at the employing establishment caused her neck, back, and wrist injury. He
diagnosed cephalgia, cervical radiculopathy, carpal tunnel syndrome, thoracic, and lumbar
sprain/strain, cervical disc conditions and stenosis, a disc herniation and stenosis at L4-5,
degenerative disc disease of the cervical and lumbar spine, anxiety and insomnia and provided
permanent work restrictions. As discussed, section 8101(2) of FECA provides that the “term
‘physician’ includes chiropractors only to the extent that their reimbursable services are limited
to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist….”22 A chiropractor cannot be considered a physician under
FECA unless it is established that there is a subluxation as demonstrated by x-ray evidence.23
Dr. Khoury did not diagnose a subluxation as demonstrated by x-ray; consequently, he is not
considered a “physician” under FECA and his reports are of no probative value.24
On January 8, 2013 Dr. Nicola discussed appellant’s history of working at the employing
establishment performing repetitive movements with her neck and back using a computer and
reaching, pushing, and pulling. He noted that she sustained prior low back injuries in 1983,
2001, and 2002 and a whiplash injury in 2006. Dr. Nicola diagnosed cervical degenerative disc
disease with radiculopathy and lumbosacral degenerative disc disease. He determined that
appellant sustained a permanent aggravation of cervical and lumbar degenerative joint disease
from working at the employing establishment. Dr. Nicola did not, however, provide any
rationale for his causation finding. A mere conclusion without the necessary rationale explaining
how and why the physician believes that a claimant’s accepted exposure could result in a
diagnosed condition is not sufficient to meet a claimant’s burden of proof.25
An award of compensation may not be based on surmise, conjecture, speculation, or upon
appellant’s own belief that there is a causal relationship between her claimed condition and his
employment.26 She must submit a physician’s report in which the physician reviews those
21

Dr. Khoury submitted progress reports dated December 28, 2011 through September 5, 2012 in which he
diagnosed cervical sprain/strain with myofascial pain syndrome and radiculopathy on the left side, thoracic and
lumbar sprain/strain, cephalgia, depression, bilateral carpal tunnel syndrome, and foraminal stenosis of the cervical
spine.
22

5 U.S.C. § 8101(2).

23

See supra note 18.

24

Isabelle Mitchell, 55 ECAB 623 (2004).

25

See supra note 12.

26

D.E., 58 ECAB 448 (2007); George H. Clark, 56 ECAB 162 (2004); Patricia J. Glenn, 53 ECAB 159 (2001).

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factors of employment identified by her as causing his condition and, taking these factors into
consideration as well as findings upon examination and the medical history, explain how
employment factors caused or aggravated any diagnosed condition and present medical rationale
in support of his or her opinion.27 Appellant failed to submit such evidence and therefore failed
to discharge her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden to prove that she sustained an
injury to her neck, shoulder, arms, and hands causally related to factors of her federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the August 11, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 13, 2015
Washington, DC

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

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

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

27

D.D., 57 ECAB 734 (2006); Robert Broome, 55 ECAB 339 (2004).

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

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

Docket No. 15-1382
Issued: December 9, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 9, 2015 appellant filed a timely appeal from a January 9, 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 met her burden of proof to establish a left knee injury on
May 27, 2014 while in the performance of duty.
FACTUAL HISTORY
On May 28, 2014 appellant, then a 43-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 27, 2014 she sustained a left knee injury while entering into
her truck. She stated that when she got back in her truck, her left knee popped and it became
1

5 U.S.C. § 8101 et seq.

sore. By the next morning, it was difficult for appellant to move and she experienced pain when
she put weight on her knee.
In a May 28, 2014 narrative statement, appellant reiterated her prior description of the
May 27, 2014 incident. She scheduled an evaluation of her left knee condition for
May 29, 2014.
A May 16, 2014 ambulatory work/school release form from Carolinas HealthCare
System, containing an unknown signature, listed the date of injury as May 16, 2014. The form
requested that appellant be excused that same day.
In a May 29, 2014 note, Edward Hall, a supervisor, related that appellant failed to notify
her supervisor on Tuesday night or Wednesday morning about her knee issues. Appellant
worked the entire day and did not submit a leave slip until Wednesday after completing both of
her runs. Mr. Hall noted that appellant had provided documentation regarding an injection she
had received for arthritis in her knee and that she would need an injection every three months.
On May 13, 2014 appellant submitted a leave slip to attend a knee appointment as appellant
contended that she could not wait for her next appointment in June. She had submitted a Form
3971 requesting sick leave on August 29, 2014 to receive an additional injection. Mr. Hall
contended that her injury was not work related, but related to a prior injury for which she was
receiving treatment.
An undated Form CA-16, authorization for examination, signed by Mr. Hall, authorized
appellant’s medical treatment related to the claimed May 27, 2014 injury. The description of
injury was reported as a popped knee.
In undated office visit work/school excuse reports, Dr. Gordon K.W. Lam, a Boardcertified internist, noted that appellant was evaluated in his office on May 29 and June 5, 2014
and that, due to medical necessity, she should be excused from work through June 20, 2014.
In an orthopedic visit note dated June 17, 2014, Dr. Brad A. Freidinger, a Board-certified
orthopedic surgeon, provided a history that appellant was evaluated by Dr. Lam and noted her
complaint of new left knee pain which she rated as 7 out of 10. Appellant reported an injury
with a popping sensation that occurred about three weeks ago and an injury while getting out of
her mail truck at work. Since then, she reported extreme difficulty with her knee. Appellant had
swelling and an inability to twist and squat. She denied numbness or tingling. Dr. Freidinger
provided a history of appellant’s medical treatment, family and social background. He listed
examination findings and diagnosed subacute medial meniscus tear of the left knee.
Dr. Freidinger recommended knee arthroscopy as appellant was rather symptomatic, was having
difficulty with twisting and squatting, and did not demonstrate an effusion. He also diagnosed
left knee degenerative joint disease. Dr. Freidinger advised that appellant had preexisting
arthritis which would not be cured by the recommended procedure, but it would help improve
her symptomatology significantly given her new onset of meniscal pain.
In a June 17, 2014 work restriction report, he reiterated his diagnosis of left knee
meniscus tear and surgery recommendation and advised that appellant would be unable to work
during her four-to-six week postoperative recovery. In an orthopedic visit note dated July 10,

2

2014, he indicated that appellant had presented for her first postoperative visit status post left
knee arthroscopy. Appellant was doing well and denied any complaints of fevers or chills. She
had no nausea or vomiting. Her pain was controlled. Dr. Freidinger provided normal physical
examination findings. He diagnosed status post left arthroscopy, partial meniscectomy, and
chondroplasty medial femora I condyle and trochlea. Dr. Freidinger advised that she could not
work at that time and that she should continue with activity restrictions as discussed.
A June 23, 2014 continuation of pay nurse report indicated that appellant stopped work
on May 29, 2014 pending surgical repair of her left medial meniscus. Appellant’s anticipated
return to work was August 18, 2014.
By letter dated June 23, 2014, OWCP notified appellant of the deficiencies of her claim
and afforded her 30 days to submit additional medical evidence. It also requested that the
employing establishment submit medical evidence, if appellant had been treated at its medical
facility.
In a July 28, 2014 decision, OWCP accepted that the May 27, 2014 incident occurred as
alleged. However, it denied appellant’s claim because she had failed to provide a rationalized
medical opinion explaining how the accepted employment incident caused or aggravated her
medical condition.
On August 19, 2014 appellant requested a review of the written record by an OWCP
hearing representative.
In a May 29, 2014 report, Dr. Lam noted that appellant had presented as an urgent
evaluation for acute left knee pain and swelling following a May 27, 2014 employment incident.
He noted that when she was last seen on May 16, 2014, x-rays noted mild osteoarthritic changes
along her knees bilaterally. Appellant received Kenalog injections which were helpful. Dr. Lam
reported examination findings and provided an impression of quiescent polymyalgia rheumatic,
osteoarthritis of the knees, shoulders, and elbows, confirmed mild osteoarthritis of the bilateral
knees, ongoing functional somatic and central pain syndrome, Vitamin D deficiency, acute left
knee. He reported that the cause of appellant’s knee pain was uncertain.
In a June 4, 2014 left lower extremity magnetic resonance imaging (MRI) scan report,
Dr. Scott R. Kennedy, a Board-certified radiologist, dictated and verified an impression of
medial meniscal tear as described with mild medial joint line edema, tri-compartmental
osteoarthritis that was most evident in the medial and patellofemoral compartments, and small to
moderate joint effusion with popliteal cyst.
Dr. Freidinger reiterated his finding on July 10, 2014 that appellant was status post left
knee arthroscopy. He advised that she was unable to work. In an August 19, 2014 report,
Dr. Freidinger provided a history of the May 27, 2014 employment incident, referenced his
June 17 and July 10, 2014 reports, and noted that appellant’s left knee arthroscopy was
performed on June 30, 2014. Dr. Freidinger opined that her injury was work related. He
recommended that appellant be transitioned to a work van. In a work restrictions form dated
August 19, 2014, Dr. Freidinger again advised that appellant could return to work on
September 15, 2014 with transition to a work van. In an October 7, 2014 medical information

3

form and an undated medical restrictions assessment form, he listed appellant’s physical
restrictions and advised that she could return to full-duty work three months postoperative.
Dr. Freidinger noted that she had pain with prolonged walking, squatting, and kneeling which
impacted her work life and life outside work.
In a January 9, 2015 decision, an OWCP hearing representative affirmed the July 28,
2014 decision. She found that the medical evidence was insufficient to establish a left knee
injury causally related to the accepted May 27, 2014 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.9

2

5 U.S.C. §§ 8101-8193.

3

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

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

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

6

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

7

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

4

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury caused by the accepted May 27, 2014 employment incident. Appellant failed to submit
sufficient medical evidence to establish that the accepted employment incident caused a left knee
injury.
Appellant submitted medical reports from Dr. Freidinger, an attending physician. In his
August 19, 2014 report, Dr. Freidinger opined that appellant’s left knee medial meniscus tear
was causally related to the May 27, 2014 employment incident. He recommended that she be
transitioned to a work van. Although Dr. Freidinger opined that appellant’s condition was
related to the accepted employment incident, he did not provide any medical rationale to support
his conclusion. Medical evidence that states a conclusion but does not offer any rationalized
medical explanation regarding the cause of an employee’s condition is of limited probative value
on the issue of causal relationship.10
Dr. Freidinger’s remaining reports are also insufficient to establish causal relationship.
Within these additional reports, he did not provide an opinion stating that the accepted May 27,
2014 employment incident caused or contributed to appellant’s diagnosed left knee conditions,
resultant surgery, disability status, and work restrictions. The Board has found that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.11
Dr. Lam’s May 29, 2014 report provided a history of the May 27, 2014 employment
incident. He listed findings on examination and provided an impression of quiescent
polymyalgia rheumatic, osteoarthritis of the knees, shoulders, and elbows, confirmed mild
osteoarthritis of the bilateral knees, ongoing functional somatic and central pain syndrome, acute
left knee injury. Dr. Lam noted, however, that the cause of her knee pain was uncertain. As he
did not opine that the accepted May 27, 2014 employment incident caused or contributed to
appellant’s left knee conditions, the Board finds that his report is insufficient to establish her
claim.
Dr. Lam’s remaining reports are likewise insufficient to establish causal relationship. He
found that appellant was disabled for work from May 29 to June 20, 2014 due to medical
necessity, but failed to provide any medical opinion stating that the accepted employment
incident caused or contributed to her disability.12
Similarly, Dr. Kennedy’s June 4, 2014 left lower extremity MRI scan report lacks a
medical opinion on causal relationship.13

10

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

11

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

12

Id.

13

Id.

5

The May 16, 2014 note from Carolinas HealthCare System which contained an unknown
signature is insufficient to establish appellant’s claim. A report that is unsigned or bears an
illegible signature lacks proper identification as a physician cannot be considered probative
medical evidence.14
Therefore, the Board finds that there is insufficient medical evidence to establish that
appellant sustained a left knee injury causally related to the accepted May 27, 2014 employment
incident.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
The Board also notes that the employing establishment issued a Form CA-16 authorizing
medical treatment.15 The Board has held that when the employing establishment properly
executes a Form CA-16 which authorizes medical treatment as a result of an employee’s claim
for an employment-related injury, the Form CA-16 creates a contractual obligation, which does
not involve the employee directly, to pay for the cost of the examination or treatment regardless
of the action taken on the claim. The period for which treatment is authorized by a Form CA-16
is limited to 60 days from the date of issuance, unless terminated earlier by OWCP.16 Although
OWCP denied appellant’s claim for an injury, it did not address whether she would be entitled to
reimbursement of medical expenses pursuant to the Form CA-16. Upon return of the case
record, OWCP should further develop this issue.17
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish a left
knee injury on May 27, 2014 while in the performance of duty.

14

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

15

20 C.F.R. § 10.300 provides that, when an employee sustains a work-related traumatic injury requiring medical
treatment, the employing establishment should issue a CA-16 form.
16

See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003).

17

See P.B., Docket No. 14-837 (issued August 12, 2014).

6

ORDER
IT IS HEREBY ORDERED THAT the January 9, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 9, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF AIR FORCE, HILL AIR
FORCE BASE, Ogden, UT, Employer
__________________________________________

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

Docket No. 16-0983
Issued: August 24, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 8, 2016 appellant, through counsel, filed a timely appeal from a March 4, 2016
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days has elapsed from the last merit decision dated January 12, 2015 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 the claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was not timely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On September 23, 2014 appellant, then a 59-year-old sheet metal mechanic, filed an
occupational disease claim (Form CA-2), alleging that, while using air hammers, vibrating and
rotational tools, and equipment while in the performance of duty, he developed a large tear of the
left superior aspect of the labrum, a superior labrum anterior and posterior (SLAP) tear and
acromioclavicular joint degeneration. On June 14, 2013 he first became aware of his condition
and its relation to his federal employment. Appellant stopped work on July 17, 2013 and
returned to work on September 17, 2013.
Appellant submitted a June 14, 2013 left shoulder magnetic resonance arthrogram which
revealed mild supraspinatus tendinosis, no rotator cuff tear, type 5 SLAP tear associated with a
paralabral cyst and mild acromioclavicular joint degenerative disease.
Appellant was treated by Dr. Jeffrey Sorenson, a Board-certified orthopedist, on July 9,
2013 for left shoulder pain. His history was significant for right shoulder rotator cuff repair in
April 2012. Dr. Sorenson noted left shoulder findings of positive labral click test and pain and
crepitance with shoulder range of motion. On July 17, 2013 he performed a left shoulder
arthroscopic anterior labral reconstruction and a SLAP repair. Dr. Sorenson diagnosed left
shoulder SLAP tear with a Bankert or anterior labral tear. He noted that appellant was doing
well postoperatively but continued to have pain and referred him for physical therapy. On
February 10, 2014 Dr. Sorenson performed a left shoulder arthroscopic anterior labral repair with
placement of a pain catheter in the subacromial space. He diagnosed left shoulder recurrent
anterior labral tear. Appellant also submitted physical therapy notes and records from a nurse
practitioner.
By letter dated December 8, 2014, OWCP advised appellant of the type of factual and
medical evidence needed to establish his claim. It noted that the evidence submitted was
insufficient to support that he was injured while performing work duties. OWCP asked that
appellant describe in detail all work activities that contributed to his condition and describe how
often he performed such activities.
The employing establishment submitted a notification of personnel action (SF-50) dated
July 8, 2013 noting that appellant was furloughed due to the Budget Control Act of 2011.
By decision dated January 12, 2015, OWCP denied appellant’s claim because the
evidence of record did not support that the injury and or events occurred as alleged.3
Appellant continued to submit medical evidence, including records from a nurse
practitioner and a magnetic resonance imaging (MRI) scan of the right shoulder dated August 1,
3

The Board notes that OWCP initially issued a decision on January 9, 2015, but reissued it on January 12, 2015.

2

2014 which revealed mild articular surface fraying, partial thickness tearing at the infraspinatus
attachment and postsurgical artifact along the anterior joint line with evidence of previous
laprocapsular repair.
Also provided were reports from Dr. Lonnie Paulos, a Board-certified orthopedist. On
September 30, 2014 he performed a right shoulder arthroscopy with debridement, chondroplasty
of the capsular release, humeral head resurfacing, anterior Bankert and capsular shift of the
shoulder. In reports dated October 8 and 22, and December 17, 2014, Dr. Paulos noted
appellant’s postoperative progress and recommended physical therapy. He noted that appellant
was complaining of left shoulder pain as he was using it more after his recent right shoulder
surgery. Dr. Paulos diagnosed traumatic glenohumeral arthritis and left compensatory shoulder
pain. In a January 9, 2015 report, he noted treating appellant on May 14, 2014 for right shoulder
pain and was last seen on December 17, 2014 at which time he reported having trouble with his
left shoulder as well. Dr. Paulos advised appellant to avoid heavy lifting and overhead activities
and continue physical therapy. On January 14, 2015 he noted appellant’s postsurgical status.
On an appeal form and letter dated January 11, 2016, and received on February 1, 2016,
appellant requested reconsideration. In a January 11, 2016 statement, he noted over a year delay
in responding to OWCP’s decision because he had two right shoulder surgeries and three left
shoulder surgeries. Appellant indicated that mishandling and positioning of his body caused his
right shoulder to dislocate and he overcompensated with his left shoulder which was now
injured. He noted that reinjury while forced back to work too early had prolonged his recovery.
Appellant indicated that daily use of tools contributed to his condition and spinal surgery. He
asserted that his treatment by OWCP was unacceptable. Appellant attached a copy of OWCP’s
decision dated January 12, 2015 which was a duplicate of OWCP’s decision dated
January 9, 2015.4 He also submitted a position description for a sheet metal mechanic dated
December 14, 1992.
By decision dated March 4, 2016, OWCP denied appellant’s request for reconsideration
as 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.5 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.6 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.7

4

Id.

5

5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009).

6

20 C.F.R. § 10.607(a).

7

E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

3

OWCP may not deny a reconsideration request solely on the grounds that it was not
timely filed. When a claimant’s application for review is not timely filed, OWCP must
nevertheless undertake a limited review to determine whether it establishes clear evidence of
error. If an application demonstrates clear evidence of error, it will reopen the case for merit
review.8
To establish clear evidence of error, a claimant must submit evidence that is relevant to
the issue that was decided by OWCP,9 is positive, precise, and explicit, and manifests on its face
that OWCP committed an error.10 The evidence must not only be of sufficient probative value to
create a conflict in medical opinion or establish a clear procedural error, but must also shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision for which review is sought. Evidence that does not raise a
substantial question is insufficient to establish clear evidence of error. It is not enough merely to
show that the evidence could be construed so as to produce a contrary conclusion. A
determination of whether the claimant has established clear evidence of error entails a limited
review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record.11
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. As noted, an application for reconsideration must be received within one
year of the date of OWCP’s decision for which review is sought.12 As appellant’s request for
reconsideration was not received by it until February 1, 2016, more than one year after issuance
of the January 12, 2015 merit decision by OWCP, it was untimely. Appellant argued that he was
unable to file a timely request for reconsideration because he has had six surgeries in four and a
half years. Section 10.607(a), however, sets forth the time limitation period of one year. Late
filing may not be excused by extenuating circumstances, except if appellant establishes through
probative medical evidence that she was unable to communicate in any way, and her testimony is
necessary to obtain modification.13 The evidence of record does not establish any extenuating
circumstances. Appellant has not submitted medical evidence to substantiate that she was unable
to communicate in any way to request reconsideration. Consequently, he must demonstrate clear
evidence of error by OWCP denying his claim for compensation.

8

M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011) (the term “clear evidence of
error” is intended to represent a difficult standard).
9

Dean D. Beets, 43 ECAB 1153 (1992).

10

Leona N. Travis, 43 ECAB 227 (1991).

11

J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued September 2, 2010).

12

20 C.F.R. § 10.607(a).

13

Id. at § 10.607(c).

4

The Board finds that appellant has not demonstrated clear evidence of error on the part of
OWCP. In a reconsideration request dated January 11, 2016 and received on February 1, 2016,
appellant disagreed with OWCP’s decision denying his claim for compensation. In his
January 11, 2016 statement, appellant noted that mishandling and positioning of his body caused
his right shoulder to dislocate and he overcompensated by using his left shoulder which was now
injured. He noted that reinjury while forced back to work too early has prolonged his recovery.
Appellant noted that the daily use of hand tools contributed to his condition and spinal surgery.
He stated the treatment by OWCP was unacceptable. The Board notes that while appellant
addressed his disagreement with OWCP’s decision denying his claim for an occupational
disease, his general allegations do not establish clear evidence of error as they do not raise a
substantial question as to the correctness of OWCP’s most recent merit decision which denied
appellant’s claim for an occupational disease. The Board notes that clear evidence of error is
intended to represent a difficult standard.14
Appellant also submitted evidence from Dr. Paulos, a diagnostic test report, and notes
from a nurse practitioner. However, this evidence is insufficient to show clear evidence of error
as it does not address the underlying factual issue in this case.15 Even a well-rationalized
medical report which, if timely filed, would have created a conflict in medical evidence is not
sufficient to establish error in the prior decision.16 Appellant also submitted a position
description for a sheet metal mechanic dated December 14, 1992. This document is not germane
to the reason for the denial of the claim as it does not address how the claimed injury occurred.
This evidence is not so positive, precise and explicit that it manifests on its face that OWCP
committed an error. Therefore, this evidence is insufficient to raise a substantial question as to
the correctness of OWCP’s decision.
For these reasons, appellant has not established clear evidence of error by OWCP in its
January 12, 2015 decision.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.

14

D.G., 59 ECAB 455 (2008).

15

See F.R., Docket No. 09-575 (issued January 4, 2010) (evidence that is not germane to the issue on which the
claim was denied is insufficient to demonstrate clear evidence of error).
16

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(e)
(December 2011).

5

ORDER
IT IS HEREBY ORDERED THAT the March 4, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 24, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.O., Appellant
and
DEPARTMENT OF THE ARMY, AVIATION &
MISSILE COMMAND, CORPUS CHRISTI
ARMY DEPOT, TX, Employer
__________________________________________

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Appearances:
Glenda Turner, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1618
Issued: June 14, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 21, 2017 appellant, through his representative, filed a timely appeal from a
May 30, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a ratable hearing
loss due to factors of his federal employment.
FACTUAL HISTORY
On July 15, 2015 appellant, then a 68-year-old retired aircraft sheet metal mechanic, filed
an occupational disease claim (Form CA-2) for a bilateral hearing loss condition due to factors of
his federal employment.3 He indicated that, while working as a sheet metal mechanic between
1983 and 2014, he was exposed to excessively loud, high frequency noises (over 130 decibels)
from hammering, banging, and rivet guns on a continuous basis. Appellant indicated that he first
became aware of his claimed condition on December 3, 2013 and first realized on April 27, 2015
that it was caused or aggravated by his federal employment.
Appellant submitted a statement in which he provided a detailed account of his
employment and exposure to hazardous noise since 1967. He indicated that, with respect to his
work as a sheet metal mechanic since 1983, he had to use a rivet gun to shoot rivets into helicopter
frames (creating noises of more than 130 decibels) and a cutting machine to cut metal (creating
noise of more than 110 decibels). Appellant noted that he was exposed to these noises for 8 to 10
hours per day and that he was not required to use hearing protection until 2007.4
Appellant submitted an April 27, 2015 audiogram performed by an audiologist and an
April 27, 2015 report in which Dr. Paul W. Loeffler, an attending Board-certified otolaryngologist,
diagnosed tinnitus.
OWCP referred appellant, along with a SOAF and the case file, to Dr. Matthew Steehler,
a Board-certified otolaryngologist, for a comprehensive otologic and audiological evaluation. In
a report dated November 5, 2015, Dr. Steehler discussed appellant’s work history and his findings
on examination, and indicated that appellant had bilateral high-frequency hearing loss and bilateral
tinnitus that was related to noise exposure from his federal employment. In an accompanying
report, Cheryl Gould, an audiologist, described her findings, including the results of a November 5,
2015 audiogram which revealed decibel losses in the frequencies of 500, 1,000, 2,000, and 3,000
Hertz. Appellant had the following decibel losses at these respective levels: 15, 15, 30, and 25
decibels in the left ear, and 25, 25, 20, and 20 decibels in the right ear.5 Dr. Steehler specifically
certified the results of the November 5, 2015 audiogram as accurate. He provided a calculation
3

Appellant voluntarily retired effective December 24, 2014.

4

Appellant indicated that he also was exposed to hazardous noise when he was in the U.S. Army from 1967 to 1969
and when he was a temporary federal employee (air frame repairman) for the Corpus Christ Army Depot from 1972
to 1973. He denoted periods of private employment, but did not indicate that he was exposed to significant hazardous
noise during these periods. In a July 10, 2015 letter, OWCP requested that the employing establishment submit
information about appellant’s exposure to hazardous noise in the workplace. The employing establishment did not
respond to this letter. The Board notes that OWCP accepted appellant’s claimed noise exposures as alleged and
incorporated his statements about these exposures into its September 21, 2015 statement of accepted facts (SOAF).
5

The report included a copy of the November 5, 2015 audiogram.

2

showing that appellant’s decibel losses did not qualify him for a ratable hearing loss under the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).6 However, Dr. Steehler added a five percent rating for appellant’s
tinnitus.
On December 7, 2015 OWCP accepted appellant’s claim for bilateral sensorineural hearing
loss and bilateral tinnitus.
On January 12, 2016 appellant filed a claim for a schedule award (Form CA-7).
OWCP referred appellant’s case to Dr. Morley Slutsky, a Board-certified occupational
medicine physician serving as an OWCP medical adviser, and requested that he evaluate
appellant’s hearing loss under the standards of the sixth edition of the A.M.A., Guides.
On February 21, 2016 Dr. Slutsky reviewed the otologic and audiologic testing performed
on November 5, 2015 by Dr. Steehler and applied the standards of the sixth edition of the A.M.A.,
Guides to this evaluation. Testing for the left ear at the frequency levels of 500, 1,000, 2,000, and
3,000 cycles per second revealed decibel losses of 15, 15, 30, and 25, respectively. These decibel
losses were totaled at 85 decibels and were divided by 4 to obtain the average hearing loss of 21.25
decibels. This average loss was then reduced by 25 decibels to equal 0, which was multiplied by
the established factor of 1.5 to compute 0 percent hearing loss in the left ear. Testing for the right
ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per second revealed decibel
losses of 25, 25, 20, and 20, respectively. These decibel losses total 90 decibels and when divided
by 4 result in an average hearing loss of 22.5 decibels. This average loss when reduced by 25
decibels equals 0 which when multiplied by the established factor of 1.5 to equals 0 percent hearing
loss in the right ear. Dr. Slutsky noted that appellant would not be entitled to an impairment rating
for tinnitus because he did not have a ratable hearing loss due to decibel losses at the relevant
decibel levels. He indicated that appellant reached maximum medical improvement on
November 5, 2015, the date of Dr. Steehler’s evaluation.
By decision dated July 27, 2016, OWCP found that appellant’s hearing loss was not
sufficiently severe to be considered ratable for a schedule award under the standards of the sixth
edition of the A.M.A., Guides. It indicated that this finding was supported by the February 21,
2016 report of Dr. Slutsky, OWCP’s medical adviser, noting that he properly applied the sixth
edition of the A.M.A., Guides to the November 5, 2015 findings of Dr. Steehler, OWCP’s referral
physician.
Appellant disagreed with OWCP’s July 27, 2016 decision and requested a telephonic
hearing with a representative of OWCP’s Branch of Hearings and Review.
During the hearing, held on March 16, 2017, appellant’s representative indicated that she
disagreed with OWCP’s decision that appellant’s hearing loss was not ratable. She noted that
appellant had worked for more than 30 years as a sheet metal mechanic during which time he was

6

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

3

exposed to loud noises. Appellant’s representative advised that appellant reported having ringing
in his ears and difficulty hearing normal conversations.
Appellant submitted a February 15, 2017 report from Dr. Robert Oshman, an attending
Board-certified otolaryngologist. In his report Dr. Oshman diagnosed bilateral sensorineural
hearing loss and bilateral tinnitus. A February 15, 2017 audiogram, which was obtained by an
audiologist, was attached to the report.
By decision dated May 30, 2017, OWCP’s hearing representative affirmed OWCP’s
July 27, 2016 decision noting that the evidence of record did not establish that appellant had a
ratable hearing loss due to factors of his federal employment. He noted that this finding was
justified by the February 21, 2016 report of Dr. Slutsky, noting that he properly applied the sixth
edition of the A.M.A., Guides to the November 5, 2015 findings of Dr. Steehler.
LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing regulation8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants. As
of May 1, 2009, schedule awards are determined in accordance with the sixth edition of the
A.M.A., Guides (2009).9 The Board has approved OWCP’s use of the A.M.A., Guides for the
purpose of determining the percentage loss of use of a member of the body for schedule award
purposes.10
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.11 Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
losses at each frequency are added up and averaged.12 Then, the “fence” of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in the
ability to hear everyday speech under everyday conditions.13 The remaining amount is multiplied

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (March 2017).
10

Isidoro Rivera, 12 ECAB 348 (1961).

11

A.M.A., Guides 250-51 (6th ed. 2009).

12

Id.

13

Id.

4

by a factor of 1.5 to arrive at the percentage of monaural hearing loss.14 The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the
amount of the binaural hearing loss.15 The Board has concurred in OWCP’s adoption of this
standard for evaluating hearing loss.16
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing
rationale for the percentage of impairment specified.17 It may follow the advice of its medical
adviser or consultant where he or she has properly utilized the A.M.A., Guides.18
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a ratable hearing
loss due to factors of his federal employment.
On February 21, 2016 OWCP’s medical adviser reviewed the otologic and audiologic
testing performed on November 5, 2015 by Dr. Steehler and applied the standards of the sixth
edition of the A.M.A., Guides to this evaluation. The Board concludes that Dr. Slutsky properly
applied these standards to find that appellant did not have a ratable hearing loss.
Dr. Slutsky noted that testing for the left ear at the frequency levels of 500, 1,000, 2,000,
and 3,000 cycles per second revealed decibel losses of 15, 15, 30, and 25 respectively. These
decibel losses were totaled at 85 decibels and were divided by 4 to obtain the average hearing loss
of 21.25 decibels. This average loss was then reduced by 25 decibels (25 decibels being discounted
as discussed above) to equal 0 which was multiplied by the established factor of 1.5 to compute a
0 percent hearing loss in the left ear. Testing for the right ear at the frequency levels of 500, 1,000,
2,000, and 3,000 cycles per second revealed decibel losses of 25, 25, 20, and 20 respectively.
These decibel losses total 90 decibels and when divided by 4 result in an average hearing loss of
22.5 decibels. This average loss when reduced by 25 decibels (25 decibels being discounted as
discussed above) equals 0 which when multiplied by the established factor of 1.5 to equals a 0
percent hearing loss in the right ear.
Appellant submitted April 27 and November 5, 2015 audiograms obtained by an
audiologist. However, these audiograms do not constitute probative medical evidence of hearing
loss because they have not been certified by a physician as being accurate. The Board has held
14

Id.

15

Id.

16

Donald Stockstad, 53 ECAB 301 (2002); petition for recon. granted (modifying prior decision), Docket No. 011570 (issued August 13, 2002).
17

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (March 2017); Hildred I. Lloyd, 42 ECAB 944 (1991).
18

See Ronald J. Pavlik, 33 ECAB 1596 (1982).

5

that, if an audiogram is prepared by an audiologist, it must be certified by a physician as being
accurate before it can be used to determine the percentage of hearing loss.19
Appellant submitted a February 15, 2017 report from Dr. Robert Oshman, an attending
physician, but he did not provide any opinion on the extent of his hearing loss under the A.M.A.,
Guides.
On appeal appellant contends that he should receive a schedule award for tinnitus which
interferes with his sleep.20 Regarding tinnitus, the A.M.A., Guides provides that tinnitus is not a
disease, but rather a symptom that may be the result of disease or injury.21 The A.M.A., Guides
notes that, if tinnitus interferes with the activities of daily living, including sleep, reading (and
other tasks requiring concentration), enjoyment of quiet recreation, and emotional well-being, up
to five percent may be added to a measurable binaural hearing impairment.22 For the reasons
explained above, appellant has not established a measurable binaural hearing impairment under
the A.M.A., Guides and Dr. Slutsky properly noted in his February 21, 2016 report that, due to
this circumstance, he would not be entitled to receive schedule award compensation for his
tinnitus.23
For these reasons, appellant did not meet his burden of proof to establish a ratable hearing
loss due to factors of his federal employment.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a ratable
hearing loss due to factors of his federal employment.

19

See Joshua A. Holmes, 42 ECAB 231, 236 (1990).

20
The Board notes that, in his November 5, 2015 report, Dr. Steehler provided a calculation showing that
appellant’s decibel losses did not qualify him for a ratable hearing loss under the sixth edition of A.M.A., Guides.
However, he also added a five percent rating for appellant’s tinnitus.
21

See A.M.A., Guides 249.

22

Id. See also Robert E. Cullison, 55 ECAB 570 (2004).

23

See id.

6

ORDER
IT IS HEREBY ORDERED THAT the May 30, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 14, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
U.S. POSTAL SERVICE, SAGINAW POST
OFFICE, Saginaw, MI, Employer
__________________________________________

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

Docket No. 08-1443
Issued: November 14, 2008

Case Submitted on the Record

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

JURISDICTION
On April 15, 2008 appellant, through his attorney, filed a timely appeal from a March 27,
2008 merit decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained a hand injury in the
performance of duty on March 7, 2007, as alleged.
FACTUAL HISTORY
On March 9, 2007 appellant, then a 50-year-old mail processor, filed a traumatic injury
claim alleging that he picked up a tray of mail and his left hand went numb while at work on
March 7, 2007.
Appellant obtained emergency care treatment at Covenant Emergency Care Center,
Saginaw, MI from March 7 through 8, 2007. He was diagnosed with paresthesia and numbness.
Emergency clinic notes by Dr. Timothy H. Kaufman, a Board-certified emergency medicine

specialist, indicate that appellant reported “some tingling and prickly sensation in … [his] fingers
at work” and that “he was loading some boxes earlier, but otherwise does not recall any type of
injury.”
In progress notes dated May 16, 2007, Dr. Branislav Behan, Board-certified in orthopedic
surgery, found that appellant “apparently spends most of his day sorting mail” and “over the past
[one and a half] months he has developed numbness.” He further observed signs and symptoms
consistent with left cubital tunnel syndrome. On May 30, 2007 Dr. Behan confirmed his
diagnosis of cubital tunnel syndrome based on a May 17, 2007 electromyography study
conducted by Dr. Gregory J. Dardas, Board-certified in neurology.
In a letter dated July 31, 2007, the Office requested that appellant provide additional
information, including medical evidence relating his left hand condition with his work duties. It
also sought clarification on whether appellant was claiming injury due to a traumatic accident or
occupational disease.
Responding to the Office’s July 31, 2007 letter, appellant submitted two reports from
Bangor Medical Center dated March 8 and May 2, 2007. Both contain illegible signatures.
In a September 5, 2007 decision, the Office denied appellant’s claim finding that he did
not submit sufficient medical evidence to establish that his left hand condition was caused by the
accepted employment incident.
On September 28, 2007 appellant filed a request for an oral hearing, which took place on
February 5, 2008. During the hearing, attended by appellant’s representative, appellant was
questioned as to whether he intended to file a claim for an occupational injury or traumatic
incident. No additional evidence was submitted in clarification of these questions.
On March 27, 2008 the hearing representative affirmed the Office’s September 28, 2007
decision denying appellant’s claim for a traumatic injury. The hearing representative found that
the submitted medical evidence did not establish a causal relationship between his left hand
condition and picking up mail on March 7, 2007.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,2 including that he is an “employee” within the meaning of

1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).

2

the Act3 and that he filed his claim within the applicable time limitation.4 The employee must
also establish that he sustained an injury in the performance of duty as alleged and that his
disability for work, if any, was causally related to the employment injury.5 These are the
essential elements of each compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.9
ANALYSIS
The Office accepted that while at work on March 7, 2007 appellant picked up a mail tray
and experienced numbness in his left hand. Therefore, the issue is whether appellant submitted
sufficient medical evidence to establish that this incident caused an injury. The Board finds
appellant did not meet his burden of proof in establishing causation as he failed to provide
sufficient medical evidence explaining how his left cubital tunnel syndrome was caused by
picking up a mail tray.10
3

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
4

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

Delores C. Ellyett, 41 ECAB 992, 998-99 (1990); Ruthie M. Evans, 41 ECAB 416, 423-27 (1990).

7

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

8

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
9

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
10

Appellant may wish to file a claim for an occupational injury, defined by 20 C.F.R. § 10.5(q) as “a condition
produced by the work environment over a period longer than a single workday or shift,” so that consideration may
be given to employment duties outside of those accepted for the alleged traumatic incident.

3

Appellant submitted several reports taken while he was treated in the emergency clinic by
Dr. Kaufman. These reports reflect that appellant alleged he “developed some tingling and
prickly sensation in the left fourth and fifth fingers tonight at work” and that he “was loading
some boxes earlier, but otherwise does not recall any type of injury.” These statements do not
provide medical rationale because they merely reflect appellant’s belief regarding the
circumstances surrounding his symptoms. Dr. Kaufman offered no opinion as to the cause of
appellant’s left hand condition discussed in any way how appellant’s work on March 7, 2007
caused or contributed to the diagnosed condition. Therefore these medical reports are of
diminished probative value.11
Similarly, none of the progress notes from Dr. Behan are probative as they do not discuss
causation.12 In a May 26, 2007 progress report, Dr. Behan mentioned that appellant “apparently
spends most of his day sorting mail” and “over the past [one and a half] months he has developed
numbness.” However, this is a speculative statement about appellant’s work activities and
symptoms. Dr. Behan further fails to describe how the stated employment factors caused the
condition, which he later diagnosed as cubital tunnel syndrome. Moreover, he noted a one and a
half month history of left hand numbness and failed to address the March 7, 2007 incident
claimed by appellant. Therefore, this report does not constitute probative medical evidence.
Finally, appellant submitted two medical charts from Bangor Medical Center, both
containing illegible signatures. Because the signatures are illegible there is no way to determine
whether the person completing the report is as a “physician” as defined by 5 U.S.C. §§ 8101(2).
Consequently, these charts are not probative on the issue of causation.13
CONCLUSION
The Board finds appellant did not establish that he was injured in the performance of
duty.

11

See Robert Broome, 55 ECAB 339 (2004).

12

See id.

13

See Merton J. Sills, 39 ECAB 572 (1988); Bradford L. Sutherland, 33 ECAB 1568 (1982).

4

ORDER
IT IS HEREBY ORDERED THAT the March 27, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 14, 2008
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

5


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

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

Docket No. 14-626
Issued: June 13, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 28, 2014 appellant filed a timely appeal from the December 27, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on August 8, 2013.
FACTUAL HISTORY
On August 14, 2013 appellant, then a 52-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained injury on August 8, 2013 due to a fall on a wet

1

5 U.S.C. §§ 8101-8193.

slope at work. Regarding the nature of the injury, he stated, “Upon losing footing and falling, [I]
felt a snap in left knee before landing on my backside.”2
In an August 15, 2013 form report, Dr. Reginald G. Moore, Jr., an attending Boardcertified family practitioner, listed the date of injury as August 8, 2013. He noted that appellant
reported injuring his left knee when he lost his footing on wet grass while walking down a slope.
He listed antalgic gait and knee effusion as clinical findings and the “diagnosis due to injury” as
internal derangement of the left knee. Dr. Moore advised that appellant could work eight hours a
day with restrictions, including walking (with crutches) no more than one hour a day and
standing (with crutches) no more than two hours a day. In an August 15, 2013 note, he
diagnosed left knee pain. In another brief report dated August 15, 2013, Dr. Moore stated that
appellant presented with “knee pain” and that he reported that he was “walking and slipped on
wet grass and hurt his left knee at work as a postal worker.”3
The findings of August 15, 2013 x-rays of appellant’s left knee showed no fracture or
dislocation of the knee with preserved joint space. It was noted that the lateral view was difficult
to evaluate for joint effusion due to a poorly seen suprapatellar fad pad, but that no large joint
effusion was detected. The clinical history portion of the report indicated that appellant reported
left knee pain starting two weeks prior.
In an August 29, 2013 report, Dr. Moore indicated that appellant presented with “[followup] knee pain” and that he had reported that his symptoms began 22 days prior. In an injury
status report dated August 29, 2013, he diagnosed internal derangement of the left knee and
indicated that appellant could only return to limited-duty work after he was cleared by an
orthopedic specialist.
In a September 18, 2013 form report, Dr. Donald A. Campbell, an attending Boardcertified orthopedic surgeon, listed the date of injury as August 8, 2013. He noted that appellant
reported falling and hurting his left knee. He listed the clinical findings and “diagnosis due to
injury” as medial meniscus tear and recommended work restrictions.4
The findings of October 9, 2013 magnetic resonance imaging (MRI) scan testing of
appellant’s left knee showed a complex tear of the posterior horn of the medial meniscus, mild
medial collateral ligament sprain versus soft tissue inflammation without tear and osteoarthritis
with cartilage loss from trochlea and medial femoral condyle. On October 23, 2013
Dr. Campbell noted that appellant had a left medial meniscus tear superimposed on

2

Appellant did not stop work but in mid-September 2013 he began working in a limited-duty position for the
employing establishment.
3

In an injury status report dated August 15, 2013, Dr. Moore indicated that appellant could return to limited-duty
work in two weeks.
4

The findings of September 18, 2013 x-ray testing of appellant’s right arm showed no metal foreign body was
seen in the visualized portions of the arm.

2

patellofemoral degenerative joint disease and recommended that he undergo a left knee
arthroscopy.5
In a November 15, 2013 letter, OWCP requested that appellant submit additional factual
and medical evidence in support of his traumatic injury claim.6
In a December 3, 2013 letter, appellant provided further description of the fall he
sustained at work on August 8, 2013. While on his delivery route on August 8, 2013, he fell to
the ground when walking down a slight incline with wet grass. Appellant felt something give in
his left knee and, after a while, he got up and completed his duties for the rest of the day. He
stated that he went to an urgent care unit on August 9, 2013 (an off workday) but was told that he
could not be seen because it was a workers’ compensation matter. Due to his dedication to his
work, appellant delivered his mail route on August 10, 2013 and the following days. He then
received medical care on August 15, 2013.7
In a September 18, 2013 narrative report Dr. Campbell noted that appellant reported the
onset of knee problems in February 2013 when he fell while carrying mail at work.
Dr. Campbell indicated that he thought “he has had about five more falls on various occasions.”
Appellant also reported falling on wet grass in August 2003 and stated, “The history at that time
was of knee pain for two weeks, but as I get the history from [him], this dates all the way back to
February of 2013.” Dr. Campbell detailed examination findings noting that the left knee was
completely stable with no laxity to varus and valgus stress. Appellant exhibited some left knee
medial pain when he squatted and also complained of superlateral pain adjacent to the left
patella. Dr. Campbell recommended a left knee arthroscopy to obtain a picture of the menisci
and stated, “Seven months of knee symptoms following a fall with multiple episodes of falls in
the interim, with medial joint-line tenderness, no effusion and no instability. This certainly
sound like a medial meniscal tear.”
By decision dated December 27, 2013, OWCP denied appellant’s claim on the grounds
that he did not submit sufficient medical evidence to establish that he sustained a traumatic
injury in the performance of duty on August 8, 2013. It accepted the August 8, 2013 work
incident, but found that the medical reports of record did not provide a rationalized medical
opinion relating the claimed left knee condition to the work factor.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
5

A request for authorization of such surgery was submitted to OWCP on November 11, 2013.

6

In another November 15, 2013 letter, OWCP noted appellant’s request for authorization of left knee arthroscopy
and requested that he submit additional evidence in support of this request.
7

Appellant indicated that he had suffered at least two falls at work on unspecified dates and that his leg was
hurting during the workweek from July 27 to August 2, 2013. However, he appears to attribute the current condition
of his left knee to the fall that he suffered at work on August 8, 2013.

3

limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.8 These are the essential elements of each compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.9
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.10 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.11
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.12
ANALYSIS
On August 14, 2013 appellant filed a traumatic injury claim alleging that he sustained a
left knee injury on August 8, 2013 when he fell to the ground on a wet, downward slope in the
performance of duty. He felt something snap in his left knee. Appellant did not stop work but in
mid-September 2013 he began working in a limited-duty position for the employing
establishment.
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a traumatic injury in the performance of duty on August 8, 2013. OWCP accepted the
August 8, 2013 work incident, but found that he did not submit sufficient medical evidence to
establish that his left knee condition was due to the work factor.

8

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

9

Delores C. Ellyett, 41 ECAB 992, 998-99 (1990); Ruthie M. Evans, 41 ECAB 416, 423-27 (1990). A traumatic
injury refers to injury caused by a specific event or incident or series of incidents occurring within a single workday or
work shift whereas an occupational disease refers to an injury produced by employment factors which occur or are
present over a period longer than a single workday or work shift. 20 C.F.R. § 10.5(q), (ee); Brady L. Fowler, 44 ECAB
343, 351 (1992).
10

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
11

John J. Carlone, 41 ECAB 354, 356-57 (1989); see Federal (FECA) Procedure Manual, id.

12

See Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

4

In an August 15, 2013 form report, Dr. Moore, an attending Board-certified family
practitioner, listed the date of injury as August 8, 2013 and noted that appellant reported injuring
his left knee when he lost his footing on wet grass while walking down a slope. He listed
antalgic gait and knee effusion as clinical findings and the “diagnosis due to injury” as internal
derangement of the left knee.13 The Board finds that this report is of limited probative value
because Dr. Moore did not provide a rationalized medical report relating appellant’s left knee
condition to his August 8, 2013 fall. Dr. Moore did not describe the August 8, 2013 in any detail
or explain how it was competent to cause or aggravate the left knee condition. In a brief form
report, he did not provide detailed results of any physical examination of appellant’s left knee.
Dr. Moore’s report is of limited probative value for the further reason that he failed to provide a
complete factual and medical history. There is no discussion of appellant’s left knee condition
prior to August 8, 2013. Dr. Moore produced other reports in which he mentioned the August 8,
2013 fall and diagnosed left knee pain and internal derangement of the left knee, but these
reports also lack medical rationale on the matter of causal relationship.
In a September 18, 2013 form report, Dr. Campbell, an attending Board-certified
orthopedic surgeon, listed the date of injury as August 8, 2013 and noted that appellant reported
falling and hurting his left knee. He listed the clinical findings and “diagnosis due to injury” as
medial meniscus tear and recommended work restrictions. Dr. Campbell provided a different
diagnosis than Dr. Moore. Further, he did not provide medical rationale regarding causal
relationship. He did not explain how the August 8, 2013 fall could have caused a left medial
meniscus tear. Dr. Campbell did not provide any history of appellant’s left knee condition prior
to August 8, 2013. In other reports dated in September and October 2013, he noted that
appellant had preexisting degenerative disease of his left knee, but he did not provide any
discussion regarding why his left knee problems would not be solely due to this or some other
nonwork-related medical condition.14
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a traumatic injury in the performance of duty on August 8, 2013.

13

Dr. Moore indicated that appellant could work eight hours a day with restrictions on such actions as walking
and standing.
14

Dr. Campbell also mentioned a fall that appellant reported happened at work on an unspecified date in
February 2013, but he did not clearly indicate that this fall caused any injury. On appeal, appellant mentioned his
difficulty in obtaining medical evidence and asserted that his left knee still bothered him. However, he did not
identify rationalized medical evidence that supported his claim of a work-related left knee injury.

5

ORDER
IT IS HEREBY ORDERED THAT the December 27, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 13, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6