United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oakland, CA, Employer
__________________________________________

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

Docket No. 12-1712
Issued: February 21, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 13, 2012 appellant, through her attorney, filed a timely appeal of a July 11,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying
modification of her loss of wage-earning capacity determination. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to modify the June 11, 2003 loss
of wage-earning capacity determination.
On appeal counsel argues that OWCP’s decision was contrary to fact and law.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the July 11, 2012 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
OWCP accepted that appellant, then a 40-year-old clerk, sustained bilateral epicondylitis
due to factors of her federal employment. She underwent left elbow surgery on June 7, 2002 and
then returned to full-time modified-duty work on July 9, 2002. OWCP paid wage-loss
compensation and medical benefits. On July 3, 2003 it granted a schedule award for four percent
permanent impairment of the right and left upper extremities.
In an October 1, 2002 report, Dr. Donald Lewis, a Board-certified orthopedic surgeon,
opined that appellant was able to work full time with the following restrictions: no repetitive
movement of the wrists and elbows bilaterally.
On November 20, 2002 appellant accepted a modified clerk position as a video coding
system (VCS) technician which did not require any use of the hands and no manual mail
handling. Her duties included: reading aloud, speaking, sitting and/or standing as needed for
comfort and allowed a five-minute break every hour.
In a May 14, 2003 letter, the employing establishment advised that appellant started
performing the VCS technician job on October 14, 2002. It further indicated that from July 9
through October 14, 2002 appellant was worked at a modified job assignment eight hours a day.
By decision dated June 11, 2003, OWCP reduced appellant’s compensation benefits. It
found that she was employed as a modified clerk effective July 9, 2002 and that her earnings
fairly and reasonably represented her loss of wage-earning capacity.
By letter dated February 11, 2010, the employing establishment advised appellant that
there was no work available for her within the operational needs of the service. Appellant was
placed on administrative leave. It noted that, if she presented new medical documentation during
her administrative leave period, the District Reassessment Team (DAT) would review the
documentation and make a work assignment determination.
Appellant filed a recurrence of disability claim on March 5, 2010 for disability as of
February 11, 2010. Through her attorney, she filed claims requesting wage-loss compensation.
In a letter dated July 6, 2010, OWCP informed appellant that, as a formal loss of wage-earning
capacity decision had been issued, she must meet the criteria to modify the loss of wage-earning
capacity determination to receive compensation benefits.
By decision dated December 2, 2011, OWCP denied the claims for compensation on the
basis that appellant did not meet any of the criteria to modify the wage-earning capacity
determination. It noted that the employing establishment recently initiated the National
Reassessment Process (NRP) and appellant’s work hours were reduced beginning on
February 11, 2010 because the DAT was unable to identify sufficient available necessary tasks
within her medical restrictions for her to continue working in her modified position.
On December 28, 2011 appellant, through her attorney, requested a hearing before an
OWCP hearing representative. She provided testimony at a telephone hearing held before an
OWCP hearing representative on April 4, 2012.

2

By decision dated July 11, 2012, OWCP’s hearing representative denied modification of
the June 11, 2003 loss of wage-earning capacity determination.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.3 When an employee cannot return to the dateof-injury job because of disability due to work-related injury or disease, but does return to
alternative employment with an actual wage loss, OWCP must determine whether the earnings in
the alternative employment fairly and reasonably represent the employee’s wage-earning
capacity.4
Once wage-earning capacity is determined, a modification of such determination is not
warranted unless there is a material change in the nature and extent of the injury-related
condition, the employee has been retrained or otherwise vocationally rehabilitated, or the original
determination was, in fact, erroneous. These are the customary criteria for modification and the
burden of proof is on the party attempting to show that modification of the determination is
warranted.5
FECA Bulletin No. 09-05, however, outlines OWCP procedures when limited-duty
positions are withdrawn pursuant to NRP. If, as in the present case, a formal loss of wageearning capacity decision has been issued, OWCP must develop the evidence to determine
whether a modification of that decision is appropriate.6
ANALYSIS
After OWCP issued its formal loss of wage-earning capacity decision, the employing
establishment reassessed appellant’s rated position under NRP, resulting in a withdrawal of
limited duty and claims for wage-loss compensation beginning June 5, 2010. OWCP analyzed
the case under the customary criteria for modifying a loss of wage-earning capacity
determination, but did not acknowledge FECA Bulletin No. 09-05 or fully follow the procedures
outlined therein for claims, such as this, in which limited-duty positions are withdrawn pursuant
to NRP.
When a loss of wage-earning capacity decision has been issued, FECA Bulletin No. 0905 requires OWCP to develop the evidence to determine whether a modification of the decision
is appropriate. OWCP is to review the loss of wage-earning capacity decision to determine
whether it was based on an actual bona fide position. To this end, the Bulletin directs OWCP to
confirm that the file contains documentary evidence supporting that the position was an actual
3

5 U.S.C. § 8102(a).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (October 2009).
5

See Daniel J. Boesen, 38 ECAB 556 (1987).

6

FECA Bulletin No. 09-05 (issued August 18, 2009). See also M.A., Docket No. 12-316 (issued July 24, 2012).

3

bona fide position. It also requires OWCP to review the record to determine whether a current
medical report supports employment-related disability and establishes that the current need for
limited duty or medical treatment is a result of injury-related residuals, and to further develop the
evidence from both the claimant and the employing establishment if the case lacks current
medical evidence.
The Bulletin states that OWCP, in an effort to proactively manage these types of cases,
may undertake further nonmedical development, such as requiring that the employing
establishment address in writing whether the position on which the loss of wage-earning capacity
determination was a bona fide position at the time of the rating, and to direct the employing
establishment to review its files for contemporaneous evidence concerning the position.
If, after development and review by OWCP, the evidence establishes that the loss of
wage-earning capacity decision was proper and none of the customary criteria for modifying the
determination were met, then OWCP may issue a decision denying modification of the loss of
wage-earning capacity determination.7
As OWCP failed to follow the guidelines in FECA Bulletin No. 09-05, the Board will set
aside the July 11, 2012 decision and remand the case for further consideration. After proper
compliance with FECA Bulletin No. 09-05 guidelines, OWCP shall issue a de novo decision on
appellant’s entitlement to wage-loss compensation beginning June 5, 2010.8
CONCLUSION
The Board finds that this case is not in posture for determination on whether appellant
has met her burden of proof to modify the June 11, 2003 loss of wage-earning capacity
determination. Further action by OWCP is warranted.

7

Id. at (Section I.A.1-4).

8

See M.E., Docket No. 11-1416 (issued May 17, 2012).

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ORDER
IT IS HEREBY ORDERED THAT the July 11, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: February 21, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Atlanta, GA, Employer
__________________________________________

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

Docket No. 11-1517
Issued: March 9, 2012

Case Submitted on the Record

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

JURISDICTION
On June 14, 2011 appellant, through her attorney, filed a timely appeal from a May 9,
2011 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
request for reconsideration without further merit review. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
this decision. Because more than 180 days elapsed from May 6, 2010, the date of the most
recent OWCP merit decision, to the filing of this appeal, the Board lacks jurisdiction to review
the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 22, 2010 appellant, then a 52-year-old transportation security officer, filed an
occupational disease claim alleging that she sustained degenerative disc disease. She became
aware of her condition and realized its relationship to her employment on December 7, 2009.
Appellant did not incur any lost time from work.2
OWCP informed appellant in an April 7, 2010 letter that additional evidence was needed
to establish her case. It gave her 30 days to submit a factual statement detailing the employment
factors that caused or aggravated her degenerative disc disease and a medical report from a
physician explaining how this condition resulted from these factors.
In statements dated March 21 and April 20, 2010, appellant specified that she worked as
a transportation security officer since 2002. Her regular job duties, such as operating x-ray
machines and handheld security wands, patting down passengers, screening baggage, and
carrying trays and bins to checkpoints, entailed repetitive bending, stooping, squatting, lifting,
pushing and pulling. Appellant indicated that she previously sustained three separate back
injuries in January 2003, July 2007 and January 2009.
A March 26, 2009 magnetic resonance imaging (MRI) scan obtained by Dr. Darren M.
Cutter, a Board-certified diagnostic radiologist, revealed minor lumbar degenerative disc disease
and L4-L5 and L5-S1 facet arthropathy.
In a December 18, 2009 report, Dr. Allen P. McDonald III, a Board-certified orthopedic
surgeon, related that appellant experienced bilateral hip pain and previously sustained back
injuries in 2003 and 2007. On examination, he observed hip discomfort during range of motion
(ROM) testing. X-rays showed mild to moderate degenerative changes, particularly in the right
hip. Dr. McDonald diagnosed bilateral hip pain. He later diagnosed degenerative disease of the
right hip in January 15 and March 12, 2010 follow-up reports.3
A December 28, 2009 MRI scan obtained by Dr. Gerald Domescik, a Board-certified
diagnostic radiologist, exhibited osteoarthritic changes involving the articular surface of the
femoral head and acetabulum, anterosuperior acetabular labral tearing and degenerative changes
of the symphysis pubis.
In a March 17, 2010 report, Dr. David M. Sack, an employing establishment physician
Board-certified in occupational medicine, reviewed the medical file and noted that none of the
medical reports attributed appellant’s hip condition to her federal employment. He opined,
“Degenerative changes are quite common, increase with age, and may or may not be
symptomatic. As a result, assigning cause to a specific event or activity is very problematic.”

2

The case record indicates that appellant filed at least one prior claim regarding a January 13, 2009 back injury.
OWCP File No. xxxxxx301. This other claim is not presently before the Board.
3

Dr. McDonald’s January 15 and March 12, 2010 reports essentially reiterated the contents found in his earliest
report.

2

The employing establishment controverted the claim in an April 14, 2010 letter, asserting
that appellant primarily performed sedentary activities.
By decision dated May 6, 2010, OWCP denied appellant’s claim, finding the medical
evidence insufficient to demonstrate that the accepted employment factors caused or aggravated
a hip condition.
Appellant’s counsel requested reconsideration on May 3, 2011. He submitted an undated
statement from appellant reiterating that her right hip injury was causally related to her job
duties.
By decision dated May 9, 2011, OWCP denied appellant’s request for reconsideration on
the grounds that she did not present new evidence or legal contentions warranting further merit
review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP regulations provide that the evidence or argument submitted by a claimant must either:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 Where the request for
reconsideration fails to meet at least one of these standards, OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.6
ANALYSIS
On May 3, 2011 appellant’s counsel filed a reconsideration request. He submitted an
undated statement from appellant maintaining that her federal employment caused her right hip
condition. This evidence, while new and not previously considered, was not relevant to the
underlying medical issue. The Board has held that the submission of evidence that does not
address the relevant issue involved does not constitute a basis for reopening a case.7
Furthermore, appellant neither showed that OWCP erroneously applied or interpreted a specific
point of law nor advanced a relevant legal argument not previously considered by OWCP.8
Because she failed to meet one of the standards enumerated under section 8128(a) of FECA, she
was not entitled to a further merit review of her claim.

4

5 U.S.C. § 8128(a).

5

E.K., Docket No. 09-1827 (issued April 21, 2010). See 20 C.F.R. § 10.606(b)(2).

6

L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.608(b).

7

D.K., 59 ECAB 141 (2007).

8

See Charles A. Jackson, 53 ECAB 671 n.14 (2002); Daniel O’Toole, 1 ECAB 107 (1948) (request for
reconsideration predicated on legal premise should contain at least an assertion of an adequate legal premise having
some reasonable color of validity).

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Appellant’s counsel argues on appeal that the decision was contrary to fact and law. As
noted, appellant did not provide evidence or argument satisfying any of the three regulatory
criteria for reopening a claim. Therefore, OWCP properly denied the reconsideration request.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 9, 2011 decision of the Office of Workers’
Compensation Programs be affirmed.
Issued: March 9, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
AUDIE L. MURPHY VETERANS HOSPITAL,
San Antonio, TX, Employer
__________________________________________

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

Docket No. 08-994
Issued: September 15, 2008

Case Submitted on the Record

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

JURISDICTION
On February 9, 2008 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated July 27, 2007 and January 24, 2008 that denied her
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
employment-related injury on May 3, 2007.
FACTUAL HISTORY
On June 1, 2007 appellant, then a 50-year-old medical technologist, filed a traumatic
injury claim alleging that on May 3, 2007 she injured her back, buttocks and right ankle while
climbing on a step stool at work. She did not stop work. In a June 11, 2007 form report,
Dr. Frank J. Garcia, a Board-certified orthopedic surgeon, diagnosed right gluteal tendinitis,

trochanteric bursitis and right ankle pain/sprain. He noted that x-rays demonstrated a healed
right ankle fracture and that both the ankle and right hip demonstrated mild osteoarthritic
changes. Dr. Garcia advised that appellant could work four hours a day and provided restrictions
of no pushing, pulling, prolonged standing or walking, climbing, bending, or squatting with a
lifting restriction of 5 to 10 pounds.
By statement dated May 3, 2007, Agapito Lambert, Jr., safety manager, described the
May 3, 2007 incident. He noted that, because appellant stated that she could not sit in the chair
in the urinalysis section and raise it to the desired level without difficulty, he visited the
laboratory to evaluate the problem. Mr. Lambert stated that, after he demonstrated the required
steps to raise the chair, he put it back to the lowest level and asked appellant to sit in the chair
and attempt to raise it, which she could not do. He then placed the chair against a desk to keep it
from rolling and used an available step stool to assist her so that she could keep her feet flat.
Mr. Lambert related that at that point appellant became visibly upset so he immediately stopped
the evaluation and she left for the day.
On June 26, 2007 the Office informed appellant of the evidence needed to support her
claim. She was given 30 days to respond.
By decision dated July 27, 2007, the Office denied the claim. It found that the evidence
submitted was insufficient to establish that the May 3, 2007 incident occurred as alleged and that
the medical evidence did not provide a diagnosis which could be connected to the incident.
On August 13, 2007 appellant, through her attorney, requested a hearing. She submitted
reports dated July 2, 2007 in which Dr. Garcia reiterated his diagnoses and restrictions. In an
attending physician’s report dated July 17, 2007, Dr. Garcia diagnosed right hip contusion and
right ankle fracture and checked a “yes” box, indicating that the condition was employment
related. He stated that appellant was able to return to work on May 3, 2007. In a July 30, 2007
duty status report, Dr. Garcia again advised that appellant could work four hours a day with
restrictions.
By letter dated July 24, 2007, appellant asserted that her hip was also injured on
May 3, 2007. On that day, she informed David Teplicek, her supervisor, and Mr. Lambert that
she was restricted from climbing due to a previous injury, but was ignored and told to climb on
the chair, which would roll away. Appellant stated that she felt pain shoot up her leg to her back.
She became upset, left work, and had to sit in the parking lot until she was able to drive home.
In an e-mail dated April 28, 2007, Mr. Lambert advised that an ergonomic assessment of the
urinalysis work area had been completed that day and the existing stool was replaced with one
that could easily be raised and lowered and had been tested by two employees who commented
that it was easy to use.
At the hearing appellant described the May 3, 2007 incident, stating that she was injured
at work in 2004 in a fall from a chair. The employing establishment obtained a new, high chair
to work in the urinalysis unit after her return from an employment-related ankle fracture.1
1

The ankle fracture claim was adjudicated by the Office under file number 162081154, and the instant claim
under file number 162128046.

2

Appellant stated that on May 3, 2004 she was wearing an air cast on her ankle and, after her shift
ended, the safety manager tried to instruct her in use of the new chair. As she tried to climb on
it, she experienced pain from her ankle into her hip, and could only work four hours a day.
In a December 12, 2006 report, Dr. Garcia noted that appellant was wearing a walking
cast for her right ankle fracture that had occurred a few weeks previously. He diagnosed a lateral
malleolus fracture of the right ankle and a right hip contusion. On April 3, 2007 Dr. Garcia
reported that appellant was seen for follow-up of the right ankle fracture which, on x-ray, was
healing nicely. He advised that she continue light duty for four hours a day.
On May 24, 2007 Dr. Christine Vidouria, an osteopath, reported that appellant needed a
walker at all times. In a June 12, 2007 duty status report, Dr. Patricia Snoga, Board-certified in
family medicine, noted physical findings of right hip and lumbar tenderness with radiculopathy.
She diagnosed right hip bursitis and lumbar sciatica and provided restrictions that appellant
could sit, grasp, perform fine manipulation, drive a vehicle and operate machinery for four hours
daily, could stand for two hours daily, walk for one to two hours daily, and could not climb,
kneel, bend, stoop, twist, push, pull or reach above the shoulder, with a lifting restriction of 0 to
10 pounds. On September 28, 2007 Dr. Garcia advised that, following appellant’s ankle fracture,
she experienced pain and discomfort when she pushed off the step stool and tried to climb,
stating “this could be considered an exacerbation of the preexisting condition to some degree.”
He noted that physical examination of the ankle showed no swelling with good range of motion,
and that she had tenderness over the trochanteric bursa. Dr. Garcia diagnosed trochanteric
bursitis and abduction strain and ankle sprain.
By letter dated November 30, 2007, Arlene B. Rubin, R.N., M.S., workers’ compensation
coordinator, advised that appellant was off work for over a year due to a 2004 ankle injury but
had been examined by both a second opinion physician and an impartial examiner and that both
opined she could work eight hours a day.
In a January 24, 2008 decision, an Office hearing representative found the May 3, 2007
incident established and affirmed the July 27, 2007 Office decision, finding the medical evidence
insufficient to support a medical condition resulting from the incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 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 the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. Regardless of whether
the asserted claim involves traumatic injury or occupational disease, an employee must satisfy
this burden of proof.3
2

5 U.S.C. §§ 8101-8193.

3

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

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Section 10.5(ee) of Office regulations defines a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.4 To determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must determine whether “fact of injury” is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place and in
the manner alleged, by a preponderance of the reliable, probative and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.5
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.6 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. 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.7 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.8
ANALYSIS
The Office hearing representative found that the May 3, 2007 incident occurred. The
Board, however, finds that the evidence of record is insufficient to establish that appellant
sustained an injury or medical condition caused by this incident. In a May 24, 2007 report,
Dr. Vidouria merely advised that appellant should use a walker. On June 12, 2007 Dr. Snoga
provided physical findings, diagnoses and restrictions to appellant’s physical activity. Neither
Dr. Snoga nor Dr. Vidouria provided an opinion regarding the cause of the diagnosed conditions.
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.9 Dr. Garcia submitted several
reports but most did not include any opinion on causal relationship.10 In a July 17, 2007
4

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

5

Gary J. Watling, supra note 3.

6

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

7

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

8

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

9

Willie M. Miller, 53 ECAB 697 (2002).

10

Id.

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attending physician’s report, he checked a form question “yes,” indicating that the diagnosed
conditions were employment related. It is well established that where, as here, a physician’s
opinion on causal relationship merely consists of checking “yes” to a form question is of
diminished probative value.11 On September 28, 2007 Dr. Garcia reported a history that
following her ankle fracture, appellant had pain and discomfort when she pushed off the step
stool and tried to climb, and opined that “this could be considered an exacerbation of the
preexisting condition to some degree.” The Board finds this report insufficient to meet
appellant’s burden of proof because Dr. Garcia did not explain the mechanism of injury.12
Furthermore, Dr. Garcia used equivocal language, advising that “this could be considered an
exacerbation of the preexisting condition to some degree.” While the opinion of a physician
supporting causal relationship need not be one of absolute medical certainty, the opinion must
not be speculative or equivocal. The opinion should be expressed in terms of a reasonable
degree of medical certainty.13 Dr. Garcia’s opinion on causal relationship is speculative.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an employment injury on May 3, 2007.

11

Cecelia M. Corley, 56 ECAB 662 (2005).

12

See T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008).

13

Ricky S. Storms, 52 ECAB 349 (2001).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 24, 2008 is affirmed.
Issued: September 15, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Miami, FL, Employer
__________________________________________

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

Docket No. 21-0773
Issued: December 28, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On April 27, 2021 appellant filed a timely appeal from an April 19, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
in the performance of duty on November 19, 2020, as alleged.

1
The Board notes that, following the April 19, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 3, 2020 appellant, then a 56-year-old postal employee, filed a traumatic
injury claim (Form CA-1) alleging that on November 19, 2020 she tripped over straps after exiting
her vehicle and suffered from contusions to both knees and her left hand. On the reverse side of
the claim form, appellant’s supervisor acknowledged that she was injured in the performance of
duty.
On November 19, 2020 the employing establishment issued an authorization for
examination and/or treatment (Form CA-16) wherein appellant’s history of injury regarding a fall
after exiting a vehicle was noted.
In a development letter dated December 10, 2020, OWCP informed appellant that
additional factual and medical evidence was necessary to establish her claim. It advised her of the
type of factual and medical evidence needed and provided a questionnaire for her completion.
OWCP afforded appellant 30 days to submit the necessary evidence.
Appellant submitted several reports dated December 7, 2020 from Dr. Mauricio F. Herrera,
Board-certified in orthopedic sports medicine. Dr. Herrera related that she fell at work onto both
knees on November 19, 2020 and that she sought treatment at the emergency room the following
day. He diagnosed: osteoarthritis, right and left knee; effusion, right knee; osteophyte, left knee;
and bursitis of knee, left knee and indicated that appellant’s conditions were work related.
By decision dated April 19, 2021, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the November 19, 2020 incident occurred as
alleged. It noted that she had not provided a detailed statement in response to its development
letter.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the

3

Id.

4

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

2

employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. The second component is whether the employment
incident caused a personal injury and can be established only by medical evidence. 7
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.8 The employee has not met his or her burden of proof of establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity
of the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast serious doubt on an employee ’s statements
in determining whether a case has been established. An employee’s statement alleging that an
injury occurred at a given time and in a given manner is of great probative value and will stand
unless refuted by strong or persuasive evidence. 9
ANALYSIS
The Board finds that appellant has met her burden of proof to establish an employment
incident in the performance of duty on November 19, 2020, as alleged.
As noted, an employee’s statement alleging that an injury occurred at a given time and
place, and in a given manner is of great probative value and will stand unless refuted by strong or
persuasive evidence. 10 Appellant alleged that she sustained an injury to her left and right knees on
November 19, 2020 when she tripped and fell after exiting her employing establishment vehicle.
The employing establishment issued a Form CA-16 on November 19, 2020 where her history of
injury was noted. Additionally, appellant sought medical care on December 7, 2020 with
Dr. Herrera. He noted her history of injury on November 19, 2020 and diagnosed bilateral knee
5

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

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

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

See J.M., Docket No. 19-1024 (issued October 18, 2019); M.F., Docket No. 18-1162 (issued April 9, 2019).

9

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

10

See id.

3

osteoarthritis, right knee effusion, left knee osteophyte and bursitis. The injuries appellant claimed
are consistent with the facts and circumstances she set forth, her actions, and the medical evidence
she submitted. The Board thus finds that she has met her burden of proof to establish an
employment incident in the performance of duty on November 19, 2020, as alleged.
As appellant has established that the November 19, 2020 employment incident factually
occurred as alleged, the question becomes whether the incident caused an injury. 11 As OWCP
found that appellant had not established fact of injury, it has not evaluated the medical evidence.
The Board will, therefore, set aside OWCP’s April 19, 2021 decision and remand the case for
consideration of the medical evidence of record. 12 After this and other such further development
as deemed necessary, OWCP shall issue a de novo decision addressing whether appellant has met
her burden of proof to establish an injury causally related to the accepted November 19, 2020
employment incident.13
CONCLUSION
The Board finds that appellant has met her burden of proof to establish an employment
incident in the performance of duty on November 19, 2020, as alleged. The Board further finds
that the case is not in posture for decision regarding whether the medical evidence is sufficient to
establish an injury causally related to the November 19, 2020 employment incident.

11

See M.H., Docket No, 20-0576 (issued August 6, 2020); M.A., Docket No. 19-0616 (issued April 10, 2020);
C.M., Docket No. 19-0009 (issued May 24, 2019).
12

M.H., id.; S.M., Docket No. 16-0875 (issued December 12, 2017).

13

The Board notes that the employing establishment issued a Form CA-16, dated November 19, 2020. A completed
Form CA-16 authorization may constitute a contract for payment of medical expenses to a medical facility or
physician, when properly executed. The form 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. See 20 C.F.R.
§ 10.300(c); V.S., Docket No. 20-1034 (issued November 25, 2020); J.G., Docket No. 17-1062 (issued February 13,
2018); Tracy P. Spillane, 54 ECAB 608 (2003).

4

ORDER
IT IS HEREBY ORDERED THAT the April 19, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: December 28, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Florence, AZ, Employer
__________________________________________

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

Docket No. 21-1413
Issued: March 28, 2022

Case Submitted on the Record

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

JURISDICTION
On September 20, 2021 appellant filed a timely appeal from an April 20, 2021 merit
decision and a May 7, 2021 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award; and
1
The Board notes that, following the May 7, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of her
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 8, 2019 appellant, then a 28-year-old deportation officer, filed a traumatic injury
claim (Form CA-1) alleging that she developed cysts on both wrists on July 5, 2019 during
physical training while in the performance of duty.3 OWCP accepted the claim for bilateral carpal
tunnel syndrome and left wrist ganglion and resulting surgery. It authorized wage-loss
compensation on the supplemental rolls beginning on June 9, 2020. Appellant returned to fulltime light-duty work on July 12, 2020 and full-duty work on September 13, 2020.
On November 25, 2019 appellant underwent electromyogram and nerve conduction
velocity (EMG/NCV) studies of the upper extremities, which exhibited no electrodiagnostic
evidence of neuropathy or radiculopathy.
On December 2, 2019 appellant underwent a magnetic resonance imaging (MRI) scan of
her left wrist, which demonstrated small synovial cyst and capsular defect of the radiocarpal
articulation without vascular involvement, and a tiny partial tear or degeneration of the triangular
fibrocartilage complex.
On June 9, 2020 appellant underwent OWCP-authorized bilateral carpal tunnel surgical
releases and left snuffbox ganglion excision.
On July 29, 2020 appellant underwent an MRI scan of her right wrist due to a right wrist
lump following her carpal tunnel release surgery. This scan demonstrated joint effusion.
In a report dated October 9, 2020, appellant’s attending physician, Dr. Joseph L. Haber, a
Board-certified hand and plastic surgeon, found that she had reached maximum medical
improvement (MMI) with excellent sensation of the digits, a negative Tinel’s sign over the median
nerves, and intact sensation. He reported that appellant had zero percent disability.
On March 9, 2021 appellant filed a claim for (Form CA-7) for a schedule award. By letter
dated March 15, 2021, she noted that she received a response to her Form CA-7, that she would
need to be seen by a doctor for an impairment rating and requested approval to see a different
doctor.
In a March 15, 2021 development letter, OWCP requested that appellant provide an
impairment rating using the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).4 It afforded her 30 days to submit
additional medical evidence in support of her schedule award claim.

3

In her April 11, 2020 response to an OWCP development questionnaire, appellant clarified that her claim was for
an occupational disease developing from June through July 2019.
4

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

2

In a March 22, 2021 report, Dr. Haber found that appellant had no permanent impairment.
In a letter of even date, appellant requested an evaluation by another physician.
By decision dated April 20, 2021, OWCP denied appellant’s schedule award claim, finding
that the medical evidence of record was insufficient to establish permanent impairment of a
scheduled member or function of the body, warranting a schedule award.
On April 25, 2021 appellant requested reconsideration of the April 20, 2021 decision. She
asserted that Dr. Haber failed to consider the fluid in her right wrist, her pain, and her inability to
perform common tasks such as pushups as well as gripping and carrying heavy objects.
By decision dated May 7, 2021, OWCP denied appellant’s request for reconsideration of
the merits of appellant’s claim.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA 5 and its implementing regulations 6 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. OWCP has adopted the
A.M.A., Guides as the uniform standard applicable to all claimants. As of May 1, 2009, the sixth
edition of the A.M.A., Guides is used to calculate schedule awards. 7
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in A.M.A.,
Guides, Table 15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying
relevant text.8 In Table 15-23, grade modifier levels (ranging from zero to four) are described for
the categories of test findings, history, and physical findings. The grade modifier levels are
averaged to arrive at the appropriate overall grade modifier level and to identify a default rating
value. The default rating value may be modified up or down based on functional scale, an
assessment of impact on daily living activities (QuickDASH).9
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury. 10 OWCP’s procedures
provide that, to support a schedule award, the file must contain competent medical evidence, which
shows that the impairment has reached a permanent and fixed state and indicates that the date on
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5.a. (March 2017); Chapter 3.700.2 and Exhibit 1 (January 2010).
8

A.M.A., Guides 449.

9

Id. at 448-49.

10

J.P., Docket No. 21-0801 (issued December 22, 2021); N.S., Docket No. 21-0508 (issued September 22, 2021);
Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

3

which this occurred (date of MMI), describes the impairment in sufficient detail so that it can be
visualized on review, and computes the percentage of impairment in accordance with the A.M.A.,
Guides.11 Its procedures further provide that, if a claimant has not submitted a permanent
impairment evaluation, it should request a detailed report that includes a discussion of how the
impairment rating was calculated. 12 If the claimant does not provide an impairment evaluation
and there is no indication of permanent impairment in the medical evidence of file, the claims
examiner may proceed with a formal denial of the award. 13
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedu le award.
OWCP, on March 15, 2021, requested that appellant submit a permanent impairment
evaluation from her physician addressing the extent of any employment-related permanent
impairment using the A.M.A., Guides. Appellant did not, however, submit any medical evidence
establishing permanent impairment.
In his October 9, 2020 report, Dr. Haber found that appellant had reached MMI with
excellent sensation of the digits, a negative Tinel’s sign over the median nerves, and intact
sensation. He did not report any permanent impairment.
As noted above, appellant must submit an evaluation from a physician that includes a
description of impairment in sufficient detail so that the claims examiner and others reviewing the
file will be able to clearly visualize the impairment with its resulting restrictions and limitations. 14
As she has not submitted any medical evidence supporting permanent impairment of a scheduled
member or function of the body due to her accepted conditions, the Board finds that she has not
met her burden of proof.
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 or increased impairment.

11

Supra note 7 at Chapter 2.808.5 (March 2017).

12

Id. at Chapter 2.808.6a. (March 2017).

13

Id. at Chapter 2.808.6c. (March 2017).

14

See D.J., Docket No. 20-0017 (issued August 31, 2021); B.V., Docket No. 17-0656 (issued March 13, 2018);
C.B., Docket No. 16-0060 (issued February 2, 2016); P.L., Docket No. 13-1592 (issued January 7, 2014).

4

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 15
To require OWCP to reopen a case for merit review, pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.16
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 17 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 18 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request fo r reconsideration without
reopening the case for review on the merits. 19
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
OWCP previously denied her claim because the medical evidence of record was
insufficient to establish permanent impairment of scheduled member or function of the body,
warranting a schedule award. Thus, the Board must determine if appellant presented sufficient
evidence or argument regarding her schedule award claim to warrant a merit review pursuant to
5 U.S.C. § 8128(a).20
In her April 25, 2021 reconsideration request, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law and did no t advance a new and relevant
15

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
16

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
17

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of the merit decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). 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). Chapter 2.1602.4b.
18

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

19

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

20

See S.M., Docket No. 21-0392 (issued August 12, 2012); H.T., Docket No. 20-1318 (issued April 27, 2021).

5

legal argument not previously considered by OWCP. Accordingly, the Board finds that appellant
is not entitled to a review of the merits based on the first and second above -noted requirements
under 20 C.F.R. § 10.606(b)(3).21
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP. With her reconsideration request, appellant submitted a
statement noting her disagreement with Dr. Haber’s October 9, 2020 report finding no evidence of
permanent impairment. The underlying issue of the present case is whether appellant has
submitted sufficient medical evidence to establish impairment of scheduled member o r function
of the body. The Board has held that the submission of evidence or argument which does not
address the particular issue involved does not constitute a basis for reopening a case. 22 Thus, she
is not entitled to a review of the merits of her claim based on the third requirement under 20 C.F.R.
§ 10.606(b)(3). 23
The Board accordingly finds that OWCP properly determined that appellant was not
entitled to further review of the merits of her claim pursuant to any of the three requirements under
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.24
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award. The
Board further finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

21

Supra note 15.

22

A.M., Docket No. 20-1417 (issued July 30, 2021); E.J., Docket No. 19-1509 (issued January 9, 2020); M.K.,
Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224-25 (1979).
23

Supra note 15; see T.H., Docket No. 18-1809 (issued May 23, 2019); Johnny L. Wilson, Docket No. 98-2536
(issued February 13, 2001).
24

See D.M., Docket No. 18-1003 (issued July 16, 2020); D.S., Docket No. 18-0353 (issued February 18, 2020);
Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b), OWCP will deny the request for reconsideration without reopening
the case for a review on the merits).

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ORDER
IT IS HEREBY ORDERED THAT the April 20 and May 7, 2021 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: March 28, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


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

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Docket No. 13-1111
Issued: July 15, 2013

Case Submitted on the Record

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

On March 16, 2013 appellant filed an application for review of a September 24, 2012
decision of the Office of Workers’ Compensation Programs (OWCP) denying his occupational
disease claim for a back and upper extremity condition. OWCP assigned File No. xxxxxx723 to
this claim. The evidence of record also shows that appellant filed a traumatic injury claim that
was accepted for lumbar sprain under File No. xxxxxx293.1 This earlier claim, to which OWCP
assigned File No. xxxxxx293, is not presently before the Board.
Having duly reviewed the matter, the Board finds that the case is not in posture for a
decision. The Board notes that, in the present claim, OWCP referred to and relied upon medical
evidence from File No. xxxxxx293. It referenced diagnostic reports from 2004 and a
November 30, 2009 medical report regarding appellant’s medical treatment for a back strain and
bilateral wrist tendinitis and carpal tunnel syndrome. OWCP stated that the evidence of record
failed to establish that he sustained any back and bilateral upper extremity conditions as a result
of his employment duties. By decisions dated May 2 and September 24, 2012, it denied
appellant’s claim finding that the evidence failed to establish that he sustained a diagnosed
condition causally related to his federal employment.

1

The record reveals that appellant also filed a previous traumatic injury claim under File No. xxxxxx047.

Cases should be combined when correct adjudication of the issues depends on frequent
cross-reference between files. OWCP procedures provide for the doubling of a claim when a
new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body and also where two or more separate injuries (not
recurrences) have occurred on the same date.2 The case record now before the Board does not
contain the case file for File No. xxxxxx293. Therefore, for a full and fair adjudication,
appellant’s claims should be doubled. On remand, OWCP shall combine File Nos. xxxxxx723
and xxxxxx293. Following this and such other development as deemed necessary, it shall issue
an appropriate decision on his claim for compensation.
IT IS HEREBY ORDERED THAT the September 24, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: July 15, 2013
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

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).

2


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

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

Docket No. 12-1173
Issued: January 14, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 8, 2012 appellant filed a timely appeal from the December 6, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which found him at fault
in creating an overpayment. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $140,814.99; and (2) whether he was at fault in creating the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 29, 2002 appellant, then a 40-year-old city letter carrier, filed an occupational
disease claim alleging that he sustained bilateral knee injuries as a result of employment
activities.2 OWCP accepted his claim for bilateral medial meniscal tears and aggravation of
traumatic arthropathy. Appellant returned to full-time, unrestricted duty on March 4, 2006, at
which point OWCP terminated him from the compensation rolls.
On July 18, 2006 OWCP issued schedule awards for a 50 percent permanent impairment
of appellant’s left leg and a 50 percent impairment of the right leg. The period of the awards ran
from May 1, 2006 to November 6, 2011.
In a letter dated August 10, 2006, appellant requested a lump sum in lieu of periodic
schedule award payments. By letter dated September 22, 2006, OWCP acknowledged his
request and asked him to complete an enclosed form authorizing the one-time, lump-sum
payment of $152,037.62 in full satisfaction of his schedule award. On September 26, 2006
appellant signed the release form accepting a lump-sum payment in lieu of future periodic
payments during the period of the award.
The record reflects that appellant received the lump-sum award in the amount of
$152,037.62, but he also continued to receive periodic compensation payments under the award
through October 23, 2010. A December 2, 2010 payment worksheet reflects payments to
appellant from May 1, 2006 to October 23, 2010 in the amount of $140,814.99.
On December 3, 2010 OWCP issued a preliminary determination that appellant had
received an overpayment in the amount of $140,814.99. It found him at fault in creating the
overpayment on the grounds that he knew or should have reasonably known the payments were
incorrect.
On an overpayment recovery questionnaire, appellant requested a telephone conference.
The form reflected that he had monthly income in the amount of $4,736.00 and monthly
expenses in the amount of $5,899.00. The record does not contain any supporting
documentation.
In a January 6, 2011 decision, OWCP found that appellant was at fault in creating an
overpayment in the amount of $140,814.99 because he accepted payments that he knew or
reasonably should have known were incorrect.
Appellant appealed the January 6, 2011 decision to the Board. In an order dated
September 28, 2011, the Board found the case was not in posture for a decision due to OWCP’s
failure to provide appellant with a telephonic hearing. The case was remanded to OWCP for the
requested hearing and a de novo decision.

2

This case was previously before the Board. In an order dated September 29, 2011, the Board set aside OWCP’s
January 6, 2011 overpayment decision on procedural grounds and remanded the case for further development.
Docket No. 11-650 (issued September 28, 2011).

2

During a November 3, 2011 telephone conference, appellant reiterated his contention that
he was not at fault because OWCP had erred in the creation of the overpayment. He stated that
repayment would create a financial hardship. OWCP’s hearing representative reviewed
appellant’s overpayment recovery questionnaire, which listed monthly income in the amount of
$4,736.00 and monthly expenses in the amount of $5,899.00. The hearing representative advised
appellant that he would not be able to establish hardship without documentation supporting his
income and expenses. The record was kept open for 20 days in order to provide appellant with
the opportunity to submit additional information. No additional evidence was received.
In a December 6, 2011 decision, OWCP’s hearing representative found that appellant was
at fault in creating an overpayment in the amount of $140,814.99 because he had accepted
payments that he knew or reasonably should have known were incorrect. The hearing
representative directed appellant to repay the overpayment by submitting a monthly check in the
amount of $1,000.00.
LEGAL PRECEDENT -- ISSUE 1
FECA authorizes the payment of a schedule award for the loss or loss of use of a
specified member, organ or function of the body. Compensation for the total loss of a lower
extremity, as with amputation at the hip, is 288 weeks of compensation. Partial losses are
compensated proportionately.3
ANALYSIS -- ISSUE 1
The fact and amount of overpayment are not in dispute. Appellant’s September 22, 2006
schedule award was paid in a lump-sum payment in the amount of $152,037.62. He
acknowledged that he was not to receive any additional compensation during the period of the
schedule award, May 1, 2006 through November 6, 2011. Appellant continued, however, to
receive periodic payments through October 23, 2010 in the amount of $140,814.99. As he was
not entitled to such payments, an overpayment arose. The Board has reviewed the compensation
payment history and finds that appellant received $140,814.99 in compensation from May 1,
2006 through October 23, 2010. The Board will therefore affirm OWCP’s December 6, 2011
decision on the issues of fact and amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
When an overpayment of compensation has been made because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which an individual is entitled. According to section 8129(b) of FECA, the
only exception to this general rule is that adjustment or recovery by the United States may not be
made when incorrect payment had been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.4
3

5 U.S.C. § 8107.

4

Id. at § 8129(b).

3

OWCP may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payment he or she
receives from OWCP are proper. The recipient must show good faith and exercise a high degree
of care in reporting events which may affect entitlement to or the amount of benefits. A recipient
who has done any of the following will be found to be at fault with respect to creating an
overpayment: (1) made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or (2) failed to provide information which he or she knew or
should have known to be material; or (3) accepted a payment which he or she knew or should
have known to be incorrect.5
Whether or not an individual was at fault with respect to the creation of an overpayment
depends on the circumstances. The degree of care expected may vary with the complexity of
those circumstances and the individual’s capacity to realize that he is being overpaid.6
The fact that OWCP may have erred in making the overpayment does not by itself relieve
the individual who received the overpayment from liability for repayment if the individual also
was at fault in accepting the overpayment.7
ANALYSIS -- ISSUE 2
The provisions of appellant’s July 18, 2006 schedule award defined the period of the
award as May 1, 2006 to November 6, 2011. Further, he sought payment of a lump sum which
was approved by OWCP. The terms of the lump sum was in full satisfaction of the award and
precluded appellant’s receipt of any further monetary compensation benefits during the period of
the award. He agreed to these terms. Having been placed on notice, appellant knew or should
have known that he was not entitled to additional compensation payments after he received the
lump sum. Notwithstanding, accepted receipt of compensation payments for more than five
years. Under the circumstances of this case, the Board finds that appellant was at fault in
creating the overpayment because he accepted payments that he should have known to be
incorrect and is, therefore, not entitled to consideration of waiver.
Appellant contends that he was not at fault because OWCP’s error created the
overpayment. OWCP’s negligence, however, does not relieve him of fault in accepting the
incorrect payments.8 Appellant also stated that he is financially unstable. As the Board has
determined that he was at fault in the creation of the overpayment, waiver cannot be considered.
The Board finds that appellant was at fault in creating the overpayment, as he knew or
should have known that the payments he accepted after receiving the lump-sum schedule award

5

20 C.F.R. § 10.433(a).

6

Id. at § 10.433(b).

7

Id. at § 10.435(a).

8

Id.

4

were incorrect. As he was with fault in this matter, appellant is not entitled to consideration of
waiver. The Board will affirm OWCP’s December 6, 2011 decision on the issue of fault.
CONCLUSION
The Board finds that appellant was at fault in creating an overpayment of $140,814.99
and is thus not eligible for consideration of waiver.9

9

The Board does not have jurisdiction over recovery of the overpayment as OWCP has not issued a final decision
directing recovery from continuing compensation benefits. See 20 C.F.R. § 501.2(c); see D.R., 59 ECAB
148 (2007).

5

ORDER
IT IS HEREBY ORDERED THAT the December 6, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 14, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE TREASURY,
)
INTERNAL REVENUE SERVICE, NATIONAL )
OFFICE, IRS WORKERS’ COMPENSATION
)
CENTER, Richmond, VA, Employer
)
___________________________________________ )
G.L., Appellant

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

Docket No. 13-19
Issued: April 2, 2013

Case Submitted on the Record

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

JURISDICTION
On October 3, 3012 appellant filed a timely appeal from the August 30, 2012 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 on appeal is whether OWCP properly terminated appellant’s compensation and
medical benefits effective September 23, 2012.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 8, 1997 appellant, then a 30-year-old data transcriber, filed an
occupational disease claim alleging that she experienced pain in her right upper extremity as a
result of repetitive keying while in the performance of duty. OWCP accepted her claim for
bilateral carpal tunnel syndrome and right lateral epicondylitis.2 Appellant underwent a right
carpal tunnel release on October 22, 1998 and a left carpal tunnel release on July 22, 1999.
Effective August 17, 2004, she was reemployed in the private sector as a preschool teacher and
continues to work as a preschool teacher.
By decision dated December 13, 2004, OWCP advised appellant that her entitlement to
compensation had been reduced, effective August 17, 2004, based upon her actual earnings as a
preschool teacher, which fairly and reasonably represented her wage-earning capacity.
In an August 17, 2005 report, Dr. James Billys, a Board-certified orthopedic surgeon, and
treating physician, noted that appellant was followed for overuse syndrome involving the right
hand and had increased right arm pain. He noted objectives that included soft tissue swelling of
the wrist and hands and decreased sensation of the median nerve distribution and tenderness over
the elbow and wrist. Dr. Billys provided appellant with a Medrol dose pack she would be
referred to another physician as he was leaving the area.
By letters dated April 3, 2009, March 24, September 1 and 26, 2010, OWCP asked
appellant to submit a report from her physician regarding her accepted conditions. No new
evidence was received.
On April 2, 2012 OWCP referred appellant to Dr. Michael Bronshvag, a Board-certified
neurologist, for a second opinion regarding appellant’s current status and work ability.
In an April 15, 2012 report, Dr. Bronshvag noted appellant’s history and conducted a
physical examination. He found that her elbows were normal, the wrists showed slight
discomfort, and mid and low back, hips, knees, legs and feet were unremarkable with no gross
sensory or motor neurological deficits noted. Tinel’s neuroma sign was not grossly present at
either wrist, but the patient had discomfort on palpation of the arms and hands (the right more
than the left). Dr. Bronshvag indicated that the electrodiagnostic studies were unremarkable. He
explained that carpal tunnel syndrome and ulnar neuropathy were not demonstrated.
Dr. Bronshvag indicated that physical findings were minimal and nonspecific and they did not
definitely correlate with the continuing condition. He opined that appellant had other conditions
which were uncertain and would likely be demonstrated after further work up. Dr. Bronshvag
advised that he would conduct further testing.
In a May 14, 2012 supplemental report, Dr. Bronshvag explained that appellant did not
demonstrate carpal tunnel difficulties. He indicated that the alternate possibilities included that
her difficulties were inflammatory or represented cervical disc disease. Dr. Bronshvag advised
that a magnetic resonance imaging (MRI) scan of the neck was normal. He indicated that he was
awaiting the results of the bone scan and would report his findings. In a supplemental report
2

On March 17, 1998 OWCP also accepted appellant’s claim for a recurrence.

2

dated June 16 and 17, 2012, Dr. Bronshvag noted that his findings included that appellant’s
cervical MRI scan and electrodiagnostic studies were normal. He advised that her bone scans
did not show any pertinent abnormalities of the arms or hands. Dr. Bronshvag opined that he did
“not find a clinical-objective correlate for difficulty that the patient perceives. He advised that he
currently identified no diagnosis or set of limitations related to appellant’s described symptoms
from 1997 to 2000.
On August 21, 2009 OWCP issued a notice of proposed termination of compensation. It
proposed to terminate appellant’s compensation on the basis that the weight of the medical
evidence, as represented by the report of Dr. Bronshvag, established that the residuals of the
work injury of August 22, 1997 had ceased.
On August 28, 2012 appellant indicated that she disagreed with Dr. Bronshvag’s findings
as she continued to suffer from her work-related disability. She requested a new second opinion
examination.
In an August 30, 2012 decision, OWCP terminated appellant’s compensation benefits
effective September 23, 2012.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.3 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.4
The Board has held that once a loss of wage-earning capacity is determined, it remains in
place unless modified. See Katherine T. Kreger, 55 ECAB 633 (2004). In certain situations, if
the medical evidence is sufficient to meet OWCP’s burden of proof to terminate benefits, the
same evidence may also negate a loss of wage-earning capacity such that a separate evaluation of
the existing wage-earning capacity determination is unnecessary. OWCP’s burden to
demonstrate no further disability is effectively the same, irrespective of whether there is an
existing determination in place finding loss of earning capacity. Case law may suggest that a
threshold evaluation of the wage-earning capacity needs to be performed before there is a
termination of benefits. The Board finds, however, that the burden is often substantially the
same, the evidence is the same and the process of terminating benefits need only be done once.
While a claimant may still have unrelated medical conditions or impairments, the medical
evidence must establish that the employment-related disability and medical conditions no longer
exist. A.P., Docket No. 08-1822 (issued August 5, 2009).

3

Curtis Hall, 45 ECAB 316 (1994).

4

Jason C. Armstrong, 40 ECAB 907 (1989).

3

ANALYSIS
In the instant case, OWCP accepted that appellant sustained bilateral carpal tunnel
syndrome and right lateral epicondylitis. Appellant underwent a right carpal tunnel release on
October 22, 1998 and a left carpal tunnel release on July 22, 1999.
The Board notes that OWCP requested medical evidence from appellant regarding her
accepted conditions in letters dated April 3, 2009, March 24, September 1 and 26, 2010. No new
medical evidence was received. On April 2, 2012 OWCP referred appellant for a second opinion
examination with Dr. Bronshvag, a Board-certified neurologist.
In an April 15, 2012 report, Dr. Bronshvag provided examination findings which
included that appellant’s elbows were normal and the wrists showed slight discomfort.
Dr. Bronshvag advised that the electrodiagnostic studies were unremarkable. He determined that
carpal tunnel syndrome and ulnar neuropathy were not demonstrated and that physical findings
were minimal, nonspecific and did not definitely correlate with the continuing condition.
Dr. Bronshvag pursued additional testing to identify appellant’s condition. In a May 14, 2012
supplemental report, he explained that appellant “did not demonstrate carpal tunnel difficulties.”
Dr. Bronshvag found her MRI scan of the neck was normal and that her bone scans did not show
any pertinent abnormalities of the arms and/or hands. Dr. Bronshvag opined that he did “not find
a clinical-objective correlate for difficulty that the patient perceives. “ The Board notes that his
findings support that appellant did not have residuals from the employment injury and that her
accepted conditions had resolved.
The Board finds that Dr. Bronshvag’s opinion is well rationalized and represents the
weight of the medical evidence regarding appellant’s accepted conditions. The Board also notes
that there are no current reports from a treating physician supporting any continuing residuals of
the accepted conditions. Because appellant no longer has residuals or disability related to her
accepted employment conditions, OWCP properly terminated entitlement to wage-loss
compensation and medical benefits effective September 23, 2012. Accordingly, OWCP’s
decision to terminate appellant’s compensation and medical benefits shall be affirmed.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof in terminating appellant’s benefits
effective September 23, 2012.

4

ORDER
IT IS HEREBY ORDERED THAT the August 30, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 2, 2013
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
__________________________________________
C.J., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Atlanta, GA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-1697
Issued: February 5, 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 August 6, 2015 appellant, through counsel, timely appealed a June 24, 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.2
ISSUE
The issue is whether appellant’s closed fracture of the left distal radius is causally related
to the September 30, 2014 employment incident.

1
2

5 U.S.C. §§ 8101 et seq.

The case record provided to the Board includes evidence received after OWCP issued its June 24, 2015
decision. The Board is precluded from considering evidence that was not in the case record at the time OWCP
rendered its final decision. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On September 30, 2014 appellant, then a 59-year-old modified rural carrier, was walking
around the employee parking lot during her lunch break when she tripped, stumbled, and fell. At
the time, she was accompanied by a coworker, Varonda Williams. Appellant fell forward and hit
the ground with her left hand extended outward. Ms. Williams indicated that she was walking
ahead of appellant and when she looked back, she saw appellant had fallen. She helped appellant
up and noted that appellant was holding her left hand. Additionally, Ms. Williams reported that,
by the time they returned to the building, appellant’s hand had begun to swell.
Appellant initially sought treatment at Concentra Medical Centers’ (CMC) urgent care
facility, but later transferred to Atlanta Medical Center’s (AMC) emergency department. The
employing establishment completed a Form CA-16 authorizing appellant’s initial September 30,
2014 medical examination and treatment. Appellant’s supervisor, Mary Daniel, accompanied
her to CMC.
According to the September 30, 2014 CMC treatment records, appellant reported that she
had tripped and fell while walking through the company parking lot, landing on her left side, and
injuring her left wrist and hand. She immediately felt sharp (10/10) left wrist pain. The CMC
treatment records identified appellant as a postal worker, and also noted a prior surgical history
of right and left rotator cuff repairs in 2012 and 2013, respectively. X-rays of her left wrist and
forearm revealed a fracture of the distal radius. Appellant received a diagnosis of closed fracture
of the left distal radius (ICD-9 813.42), and she was referred to AMC’s emergency department
for further evaluation.3 Additional left hand/wrist/forearm x-rays obtained at AMC revealed a
comminuted impacted distal radius fracture and mild widening of the scapholunate (SL) space.4
Appellant returned to CMC for follow up on October 2, 2014 where she was treated by
Annette S. Williams, PA-C. At the time, her left arm was noted to be “casted from hand to distal
humerus.” CMC personnel referred appellant to an orthopedic specialist for further evaluation.
Dr. Gary M. Lourie, a Board-certified orthopedic surgeon with a subspecialty in hand
surgery, examined appellant on October 14, 2014. He noted that she had sustained a hyperdorsiflexion injury to her left wrist on September 30, 2014. Dr. Lourie diagnosed distal radius
intra-articular dorsal comminution and possible SL dissociation. He recommended open
reduction and internal fixation (ORIF) of the left distal radius and possible repair of the SL
ligament, which was scheduled for October 22, 2014.
OWCP also received Dr. Lourie’s follow-up treatment notes for October 17 and 23, and
November 4, 2014, as well as a brief note regarding appellant’s October 22, 2014 surgery. With
3

While at CMC, Jennifer J. Jackson, a certified physician assistant (PA-C), examined and treated appellant. The
September 30, 2014 CMC treatment records note that the “case was reviewed and discussed with Dr. [Kathleen M.]
Gunchick,” who agreed with the management plan. Dr. Gunchick is Board-certified in emergency medicine, but
neither Ms. Jackson nor Dr. Gunchick signed the September 30, 2014 CMC treatment records.
4

An October 1, 2014 left wrist computerized tomography (CT) scan also revealed a distal radius fracture and
widening of the interval between the scaphoid and lunate, consistent with a ligamentous injury. Dr. Alan R.
Johnson, a Board-certified diagnostic radiologist, interpreted appellant’s left wrist CT scan.

2

respect to the latter, Dr. Lourie identified appellant’s left wrist pre- and postoperative diagnosis,
and described the October 22, 2014 surgical procedure as “ORIF three-part distal radius dorsal
Accu-Lock standard plate with EPL transposition and excision posterior interosseous nerve.”5
In a November 11, 2014 attending physician’s report (Form CA-16, Part B), Dr. Lourie
diagnosed employment-related left distal radius fracture (ICD-9 813.42). He also noted
appellant’s October 22, 2014 surgery, and advised that she was able to return to work with
restrictions as of November 6, 2014.
By decision dated November 25, 2014, OWCP denied appellant’s traumatic injury claim
because the evidence was insufficient to establish that her “medical condition [was] causally
related to the accepted work event(s).”
On May 18, 2015 appellant timely requested reconsideration. OWCP received duplicate
copies of the September 30 and October 2, 2014 CMC treatment records, as well as Dr. Lourie’s
treatment notes and his November 11, 2014 report. Additionally, it received a September 30,
2014 CMC transfer request form that included a diagnosis of nondisplaced left radius fracture.
The reported reason for the transfer to AMC was “higher level of care.” Appellant also
submitted her September 30, 2014 discharge instructions from AMC, where she was seen by
Dr. Ivan Cazort, who diagnosed distal radius (Colles) fracture. Dr. Cazort is Board-certified in
emergency medicine.
Due to a prior work-related injury (OWCP File No. xxxxxx258), appellant had been
working in a limited-duty capacity as a sales solution team member. She subsequently filed a
separate occupational disease claim (Form CA-2) for a left upper extremity injury claim number
(OWCP File No. xxxxxx135) that allegedly arose on or about September 30, 2014. Since the
November 25, 2014 OWCP decision, appellant submitted a December 11, 2014 medical report
regarding a separate September 30, 2014 left wrist and shoulder occupational disease claim
number (xxxxxx135).
Additionally, OWCP received a February 10, 2015 duty status report (Form CA-17)
which included diagnoses of cervical radiculitis and forearm joint pain (ICD-9 723.4 and 719.43,
respectively). Dr. Srihari R. Malempati, a Board-certified general surgeon, examined appellant
on December 11, 2014 and diagnosed left shoulder and left wrist sprains, which he attributed to
her “work doing data entry and making [tele]phone calls….” The February 10, 2015 duty status
report similarly attributed appellant’s diagnoses to making “customer calls … and performing
data entry….”6
By decision dated June 24, 2015, OWCP reviewed the merits of appellant’s traumatic
injury claim, but denied modification of its November 25, 2014 decision. It continued to find
that appellant had not established a causal relationship between her September 30, 2014 workrelated fall and her diagnosed left distal radius fracture.

5

The October 22, 2014 operative report is not part of the current record.

6

It is unclear who authored the February 10, 2015 Form CA-17.

3

LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.7
To determine if an employee sustained a traumatic 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 that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that
allegedly occurred.8 The second component is whether the employment incident caused a
personal injury.9 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.10
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.11 However, in clear-cut traumatic injury claims, where the
fact of injury is established and is clearly competent to cause the condition described (for
instance, a worker falls from a scaffold and breaks an arm), a fully rationalized medical opinion
is not needed.12 The physician’s diagnosis and an affirmative statement are sufficient to accept
the claim.13
Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.14
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing

7

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

8

Elaine Pendleton, 40 ECAB 1143 (1989).

9

John J. Carlone, 41 ECAB 354 (1989). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factor(s) must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factor(s). Id.
10

Shirley A. Temple, 48 ECAB 404, 407 (1997).

11

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

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3d(1) (January 2013).

13

Id.

14

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

4

entitlement to FECA benefits.15 A report from a physician assistant or certified nurse
practitioner will be considered medical evidence if countersigned by a qualified physician.16
A medical report should bear the physician’s signature or signature stamp.17 OWCP may
require an original signature on the report.18
ANALYSIS
Appellant indicated that, while walking in the employee parking lot, she fell forward and
hit the ground with her left hand extended outward. Ms. Williams, who was with appellant at the
time, helped her up and noted that appellant was holding her left hand. By the time they returned
to the building, appellant’s hand had begun to swell. Ms. Williams reported the incident to her
supervisor, Ms. Daniel, and afterwards Ms. Daniel accompanied appellant to CMC’s urgent care
facility for treatment. The September 30, 2014 Form CA-16 authorizing medical treatment noted
that appellant “Fell and hurt left arm.” Left hand/wrist/forearm x-rays obtained at CMC and
AMC revealed a distal radius fracture. A contemporaneous left wrist CT scan confirmed the
presence of a distal radius fracture, as noted by Dr. Johnson, a Board-certified diagnostic
radiologist. OWCP denied appellant’s traumatic injury claim on the basis that she failed to
establish a causal relationship between her diagnosed left distal radius fracture and the accepted
September 30, 2014 employment incident.
Rationalized medical opinion evidence is generally required to resolve the issue of causal
relationship.19 However, in clear-cut traumatic injury claims, where the fact of injury is
established and is clearly competent to cause the condition described -- “for instance, a worker
falls from a scaffold and breaks an arm” -- a fully rationalized medical opinion is not needed.20
The physician’s diagnosis and an affirmative statement are sufficient to accept the claim.21
As noted, the employing establishment authorized appellant’s initial medical treatment on
September 30, 2014, and Ms. Daniel accompanied her to an urgent care facility (CMC) where a
physician assistant provided medical treatment. The September 30, 2014 CMC treatment records
noted that appellant tripped and fell while walking through the parking lot, and that she landed
on her left side, injuring her left wrist and hand. The physician assistant who treated appellant
diagnosed closed fracture of the left distal radius. However, a physician assistant is not

15

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).

16

Supra note 12 at Chapter 2.805.3a(1).

17

20 C.F.R. § 10.331(a).

18

Id.

19

Robert G. Morris, supra note 11.

20

Supra note 12 at Chapter 2.805.3d(1).

21

Id.

5

considered a “physician” as defined under FECA.22 OWCP correctly noted this in its June 24,
2015 decision.
Appellant was later transferred to AMC’s emergency department for a more extensive
workup. The AMC records include multiple left upper extremity x-rays, a CT scan, and a
discharge summary with a diagnosis of distal radius (Colles) fracture. The AMC diagnostic
studies note a history of “Injury” or “Wrist injury” without elaboration and the AMC discharge
instructions offer no information regarding the cause of appellant’s Colles fracture. The AMC
records provided thus far are insufficient to establish causal relationship.
Appellant returned to CMC’s urgent care facility on October 2, 2014, where she was
treated by another physician assistant, Annette S. Williams.23
Dr. Lourie first examined appellant on October 14, 2014 and performed left wrist surgery
on October 22, 2014.24 When he initially examined appellant, Dr. Lourie noted that she had
sustained a hyperdorsiflexion injury to her left wrist on September 30, 2014. However, he did
not indicate what appellant was doing at the time of her injury or further provide any rationalized
medical evidence tying the September 30, 2014 incident to the diagnosed condition.
Dr. Lourie’s subsequent treatment notes from October 17, 22, and 23, and November 4, 2014 are
similarly devoid of any explanation regarding the cause of appellant’s September 30, 2014 left
wrist condition.
Dr. Lourie’s November 11, 2014 attending physician’s report (Form CA-16, Part B)
noted a history of left distal radius fracture, but did not otherwise describe how the injury
occurred. He checked a box marked “yes” on the Form CA-16 indicating that he believed
appellant’s condition was caused or aggravated by an employment activity. However, Dr. Lourie
did not provide an explanation. Merely placing a checkmark, without rationale will not suffice
for purposes of establishing causal relationship.25
Although a Colles fracture is consistent with Dr. Lourie’s mention of a hyperdorsiflexion injury, currently there is a paucity of competent medical evidence linking
appellant’s left wrist diagnosis to the September 30, 2014 employee parking lot incident where
she stumbled, fell forward, and hit the ground with her left hand extended outward. This injury
is not one which meets the factual basis for a “clear-cut traumatic injury.” Although there was
swelling, no fracture was diagnosed until after x-rays were taken.26 Accordingly, the Board finds
that appellant failed to establish causal relationship.

22

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). A report from a physician assistant will be considered medical
evidence if countersigned by a qualified physician. Supra note 18.
23

The October 2, 2014 CMC progress notes were similarly unsigned.

24

As previously noted, the operative report is not part of the current record.

25

See D.D., 57 ECAB 734, 739 (2006); Deborah L. Beatty, 54 ECAB 340, 341 (2003).

26

Supra note 12.

6

CONCLUSION
Appellant failed to establish that her closed fracture of the left distal radius is causally
related to the September 30, 2014 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 24, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 5, 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

7