United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ROBLEY REX VA MEDICAL CENTER,
Louisville, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-0602
Issued: March 10, 2022

Case Submitted on the Record

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

JURISDICTION
On March 9, 2021 appellant, through counsel, filed a timely appeal from a February 17,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted January 30, 2019 employment incident.
FACTUAL HISTORY
On October 29, 2019 appellant, then a 51-year-old health technician, filed a traumatic
injury claim (Form CA-1) alleging that on January 30, 2019 she sustained an injury to the left side
of her hip and lower back when she fell on a wet floor after exiting an elevator to walk to her
assigned clinic while in the performance of duty. She stopped work on February 1, 2019 and
returned to work on February 12, 2019. The employing establishment contended that appellant
was not injured in the performance of duty as she was en route to her workplace location, but had
not yet reported for duty.
In a development letter dated November 6, 2019, OWCP informed appellant of the
deficiencies of her claim. It advised her of the type of factual and medical evidence needed and
provided a questionnaire for her completion. By separate development letter of even date, OWCP
requested additional information from the employing establishment regarding the circumstances
of appellant’s claimed injury. It afforded both parties 30 days to respond.
OWCP subsequently received an emergency department report dated January 30, 2019,
wherein a physician assistant diagnosed right knee contusion with possible right knee strain and
right quadriceps strain.
A magnetic resonance imaging (MRI) scan of the left hip obtained on September 4, 2019
demonstrated no internal derangement of the hips, avascular necrosis, or fracture; bilateral gluteal
tendon pathology, worse on the left, where there is gluteus minimus tear/detachment and mo derate
peritendinous inflammation with adjacent peritrochanteric fluid; and minimal inferior sacroiliac
joint subarticular marrow edema without effusion or erosion, likely arthritic. An MRI scan of the
lumbar spine obtained on the same date demonstrated multilevel degenerative disc disease and
facet arthropathy with no significant change from a previous scan obtained on May 28, 2019. An
MRI scan of the pelvis obtained on October 8, 2019 demonstrated: mild left and minimal right
anterior inferior sacroiliac joint subarticular marrow edema, predominating on the sacral side
anteriorly on the left with minimal anterior spurring; intact subchondral bone plats; no evidence of
definitive erosive arthropathy; no effusion or periarticular inflammation; suspected m inimal
subarticular sclerosis; possible osteoarthrosis with stress-related marrow change favored over a
primary inflammatory or crystal arthritis; no change in end plate marrow edema at L4 -5 and
bilateral L4-5 facet arthrosis with a moderate inflammatory component; and no change in the
pelvis and hips compared to an MRI scan obtained in September 2019.
In an October 10, 2019 report, Dr. Gary Reasor, Board-certified in anesthesiology and pain
medicine, examined appellant for complaints of low back pain, beginning seven months prior.
Appellant also told Dr. Reasor that the pain was a result of an incident at work on January 30, 2019
when she slipped and fell on her left hip due to water on the floor, and that the pain became much
worse in March and April. Dr. Reasor noted past medical history including back pain, sciatica,
degenerative disc disease, and kidney stones. He related appellant’s physical examination findings

2

and diagnosed lumbar spondylosis without myelopathy or radiculopathy, lumbosacral
intervertebral disc degeneration, and low back pain. In an accompanying note of the same date,
Dr. Reasor recommended work restrictions of no standing for more than 15 minutes and no
repetitive bending or twisting of the waist.
In a letter dated October 25, 2019, Dr. Reasor noted that appellant had been seen on
October 10, 2019 on referral from her rheumatology office for severe back pain. Appellant told
Dr. Reasor that she was injured at work on January 30, 2019 when she entered the employing
establishment and slipped on a wet floor, landing on the left hip. She continued to have significant
back pain after the fall and was markedly increased after she was asked to participate in
cardiopulmonary resuscitation (CPR) training. Dr. Reasor reviewed his physical findings on
examination and MRI scan results. He opined that appellant developed significant low back pain
attributable to injury of her left sacroiliac joint as well as inflammation of the left lower lumbar
facet joints, directly related and caused by her fall at work as the history and mechanism of injury
matched her findings on examination.
In a note dated November 15, 2019, Dr. Reasor recommended work restrictions of no
lifting, bending, standing, or squatting for more than 15 minutes. In a note dated November 20,
2019, he recommended that appellant be excused from work from November 11 through 22, 2019.
On November 27, 2019 the employing establishment controverted appellant’s claim,
contending that a medical condition had not been diagnosed resulting from the claimed injury on
January 30, 2019 and that the medical evidence of record did not establish a causal relationship
between any diagnosed condition and the claimed January 30, 2019 injury.
In a letter dated December 7, 2019, Dr. Reasor diagnosed lumbar spondylosis with pain
derived from the lumbar facet joints. He opined that appellant was injured on January 30, 2019
and that the mechanism of injury was a slip and fall on a wet floor as she entered the workplace.
Dr. Reasor noted that appellant struck the floor on her left hip and has had back and hip pain since
that time. His physical examination revealed tenderness over the lumbar spine and he noted that
further examination of the lumbar facets demonstrated concordance between the facets and her
complaints of pain. Dr. Reasor stated that an MRI scan study demonstrated hypertrophy of the
lumbar facets and opined that without question, the lumbar facets were injured as a result of the
fall. He opined to a high degree of medical certainty that there was a direct cause and effect
relationship between appellant’s fall and her current back and hip pain.
By decision dated December 16, 2019, OWCP denied appellant’s claim, finding that the
factual evidence of record was insufficient to establish that the January 30, 2019 employment
incident occurred, as alleged. It noted that she had not provided a clear description of the events
supporting an injury at work on January 30, 2019. OWCP concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
On December 30, 2019 appellant requested reconsideration.
By decision dated February 27, 2020, OWCP reviewed the merits of appellant’s claim and
found that the medical evidence of record was sufficient to establish that the January 30, 2019
incident occurred as alleged; however, the claim remained denied as the medical evidence of

3

record was insufficient to establish causal relationship between her diagnosed lumbar spondylosis
and the accepted employment incident.
On July 1, 2020 appellant, through counsel, requested reconsideration. Submitted with the
request was a letter from Dr. Reasor dated June 7, 2020. Dr. Reasor explained that appellant was
referred on October 10, 2019 from an advanced practice registered nurse (APRN) who saw
appellant for widespread osteoarthritis and was asked to evaluate appellant’s complaints of left
back, buttock, and leg pain. Appellant recounted that she fell at work on January 30, 2019 when
she slipped on a wet floor, causing her to fall and land on her left hip. Over the course of the next
two to three months her pain worsened, particularly when she underwent mandatory CPR training.
Dr. Reasor reviewed his physical findings on examination and MRI scan findings. He diagnosed
lumbar spondylosis without myelopathy, lumbosacral intervertebral disc degeneration, and low
back pain. Dr. Reasor described administering the lumbar medial branch nerve blocks bilaterally
at L3, L4, and L5 on November 15, 2019 and January 24, 2020. He noted that to his knowledge,
there were no imaging studies of the lumbar spine or hip antedating the January 30, 2019 fall; but,
opined that taking that into account, it remained his medical opinion to a high degree of certainty
that her fall was the cause of her continued back pain. Dr. Reasor explained that assuming
appellant developed lumbar facet arthropathy before the fall in which she slipped on a wet floor
and landed on her left hip, it would have caused, at a minimum, an aggravation of underlying facet
arthropathy. He further noted that it was unknown if she had an annular tear of the L5 -S1 disc,
but that the fall “could have easily been the cause of the annular tear in an already-desiccated disc.”
Dr. Reasor stated that the fall on the left hip, wherein appellant landed on her left buttock, was
“the most likely cause of the torn or detached left gluteus minimus tendon. The mechanism of
injury, in my opinion, is clear to see.”
In a report dated May 6, 2019, an APRN, Sheena Steele, diagnosed cervical radiculopathy,
thoracic and low back pain. An MRI scan of appellant’s lumbar spine obtained on May 28, 2019
demonstrated a small central annular tear posterior disc margin at L5-S1 that could be a source of
back pain, but with no evidence of nerve root impingement, bilateral L4-5 facet arthropathy, and
mild inflammation/edema surrounding the L4-5 facet joints that may indicate an active process.
In a report dated May 30, 2019, Ms. Steele diagnosed thoracic spine and low back pain,
cervical radiculopathy, and unspecified joint pain.
An MRI scan of appellant’s thoracic spine obtained on June 5, 2019 demonstrated: a mild
chronic compression fracture of T11, healed with mild deformity; normal thoracic cord signal
intensity, no pathologic cord enhancement, no thoracic canal stenosis, and no significant foraminal
impingement; and thoracic degenerative changes.
In a report dated June 7, 2019, Lori Weiss, an APRN, diagnosed thoracic and low back
pain, cervical radiculopathy, and current long-term use of an opiate analgesic. In a report dated
August 15, 2019, she diagnosed thoracic spine, left hip, and low back pain, cervical radiculopathy,
and long-term current use of an opiate analgesic. Appellant told the nurse that while completing
a CPR class recently, she experienced increased pain to her back and reinjured her alread y-chronic
symptoms from earlier in 2019.

4

Additional reports received from Dr. Reasor indicated that on November 15, 2019 he
performed a medial branch nerve block at L3, L4, and L5 for treatment of diagnosed lumbar
spondylosis without radiculopathy.
In a report dated December 3, 2019, Dr. Reasor followed up with appellant after her
November 15, 2019 procedure. He opined that her pain was facet-related and due to her fall. On
physical examination, Dr. Reasor observed pain with palpation of the lumbar spine with bilateral
tenderness over the lumbar facets and pain on extension. He diagnosed lumbar spondylosis
without myelopathy or radiculopathy, low back pain, and lumbosacral intervertebral disc
degeneration.
On January 24, 2020 Dr. Reasor performed another medial branch nerve block at L3, L4,
and L5 bilaterally for treatment of diagnosed lumbar spondylosis without radiculopathy. He noted
post-procedure pain reduction of 100 percent.
In a report dated February 14, 2020, Dr. Reasor followed up with appellant after her
January 24, 2020 medial branch nerve block at L3, L4, and L5. He noted post-procedure relief of
eighty percent for several hours. Appellant advised Dr. Reasor that her pain remained at 8 out of
10 at this follow-up examination. On physical examination of the lumbar spine, Dr. Reasor
observed pain with palpation of the midline and bilateral facets and pain on flexion and extension.
He diagnosed lumbar spondylosis without myelopathy or radiculopathy, lumbosacral
intervertebral disc degeneration, and low back pain.
In a report dated March 5, 2020, Dr. Reasor examined appellant for low back, buttocks,
and left lower extremity pain with tingling. He noted that the pain began seven months prior and
that it was a result of a work-related incident. Dr. Reasor observed that appellant had an antalgic
gait. On physical examination of the lumbar spine, he observed pain with palpation, marked
tenderness of the left facets, decreased range of motion, and pain on flexion, e xtension, lateral
movement, and rotation. On examination of the thoracic spine, Dr. Reasor observed pain with
palpation, marked tenderness of the left facets, and pain on rotation. He diagnosed thoracic spine
pain, lumbar spondylosis without myelopathy or radiculopathy, lumbosacral intervertebral disc
degeneration, and low back pain.
By decision dated February 17, 2021, OWCP denied modification.3
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 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
3

The February 17, 2021 decision was a reissuance of a decision dated September 29, 2020, wherein OWCP
reviewed the merits of appellant’s claim and denied modification of the February 27, 2020 decision. A copy of this
decision was not mailed to appellant’s counsel of record. On October 8, 2020 the employing establishment requested
that a copy of the September 29, 2020 decision be mailed to appellant’s counsel of record, as it had not yet been
annotated as being forwarded to counsel. In a letter dated October 15, 2020, counsel requested an update as to the
request for reconsideration in appellant’s case.
4

Id.

5

States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 5 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 6 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.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.8
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted January 30, 2019 employment incident.
In his October 25, 2019 report, Dr. Reasor opined that appellant developed significant low
back pain attributable to injury of her left sacroiliac joint as well as inflammation of the left lower
lumbar facet joints. He opined that her condition was directly related and caused by her fall at
work, as the history and mechanism of injury matched her findings on examination. In his
December 3, and 7, 2019 reports, Dr. Reasor opined that appellant was injured on January 30,
2019 and that the mechanism of injury was a slip and fall on a wet floor as she entered the
5

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).
6

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).
7

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).
8

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).
9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

6

workplace. He opined that without question, the lumbar facets were injured as a result of the fall.
Dr. Reasor further opined to a high degree of medical certainty that there was a direct cause and
effect relationship between appellant’s fall and her current back pain. In the June 7, 2020 report,
he opined that it remained his medical opinion to a high degree of certainty that her fall was the
cause of her continued back pain. Dr. Reasor explained that assuming appellant developed lumbar
facet arthropathy before the fall in which she slipped on a wet floor and landed on her left hip, it
would have caused, at a minimum, an aggravation of underlying facet arthropathy . He further
noted that it was unknown if she had an annular tear of the L5-S1 disc, but that the fall could have
easily caused the tear in an already-desiccated disc. The Board has found that in any case where
a preexisting condition involving the same part of the body is present and the issue of causal
relationship therefore involves aggravation, acceleration, or precipitation, the physician must
provide a rationalized medical opinion that differentiates between the effects of the work-related
injury or disease and the preexisting condition.11 While Dr. Reasor noted appellant’s past medical
history including back pain, sciatica, and degenerative disc disease. He did not specifically
differentiate between appellant’s preexisting condition(s) and the effects of the January 30, 2019
employment incident. These reports were therefore insufficient to establish causal relationship
between the diagnosed lumbar conditions and the accepted January 30, 2019 employment incident.
Regarding appellant’s left hip condition, Dr. Reasor stated that the fall on the left hip,
wherein appellant landed on her left buttock, was “the most likely cause” of her torn or detached
left gluteus minimus tendon. He opined that the mechanism of injury was clear to see. The June 7,
2020 report is insufficient to establish appellant’s claim as Dr. Reasor couched his conclusions
that the fall “could have easily been” the cause of an annular disc tear and that her detached left
gluteus minimus tendon was “most likely” caused by the fall in equivocal terms. The Board has
held that while the opinion of a physician supporting causal relationship need not be one of
absolute medical certainty, it must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty. 12 The Board also notes that
Dr. Reasor did not discuss the apparent inconsistency between his account of appellant’s fall onto
her left side on January 30, 2019 and the emergency department report of January 30, 2019, in
which the fall was described involving her left leg extending to the front falling hard on her right
knee and upper front right thigh. Medical opinions based on an incomplete or inaccurate history
are of diminished probative value.13 Without a discussion of the apparent inconsistency between
his account of appellant’s fall onto the left side and the January 30, 2019 emergency department
report’s account of a fall onto the right knee and right thigh, Dr. Reasor’s opinions are therefore
insufficiently rationalized to establish appellant’s claim.
Appellant submitted additional reports and notes dated October 10, November 15,
November 20, and December 7, 2019; and January 24, February 14, and March 5, 2020 from
Dr. Reasor. These reports and notes did not offer a medical opinion regarding the cause of
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); see
L.C., supra note 6; R.D., Docket No. 18-1551 (issued March 1, 2019).
12

L.S., Docket No. 18-1494 (issued April 12, 2019); Ricky S. Storms, 52 ECAB 349 (2001).

13

See D.B., Docket No. 19-0663 (issued August 27, 2020); D.W., Docket No. 18-0123 (issued October 4, 2018);
L.G., Docket No. 09-1692 (issued August 11, 2010).

7

appellant’s diagnosed conditions. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship. 14 Therefore these reports are insufficient to establish appellant’s claim.15
Appellant also submitted a report dated January 30, 2019 from a physician assistant and
reports dated May 6, May 30, June 7, and August 15, 2019 from APR nurses. However, certain
healthcare providers such as physician assistants, nurse practitioners, and physical therapists are
not considered physicians as def ined under FECA. 16 Consequently, these reports will not suffice
for purposes of establishing entitlement to FECA benefits. 17
The remaining evidence consists of diagnostic reports dated May 28, June 5, September 4,
and October 8, 2019. The Board has held that diagnostic tests, standing alone, lack probative value
on the issue of causal relationship as they do not provide an opinion on the relationship between
the employment incident and a claimant’s diagnosed condition. 18
As appellant has not submitted rationalized medical evidence establishing that her
diagnosed medical conditions were causally related to the accepted employment incident of
January 30, 2019, the Board finds that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden proof to establish a medical condition
causally related to the accepted January 30, 2019 employment incident.

14

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
15

S.W., Docket No. 19-1579 (issued October 9, 2020); see L.B., id.; D.K., id.

Section 8101(2) provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law,”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); M.F., Docket No. 19-1573 (issued March 16, 2020); N.B., Docket
No. 19-0221 (issued July 15, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (finding that lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA).
16

17

See M.C., Docket No. 19-1074 (issued June 12, 2020) (nurse practitioners are not considered physicians under
FECA); R.K., Docket No. 20-0049 (issued April 10, 2020) (physician assistants are not considered physicians under
FECA).
18

See C.F., Docket No. 18-1156 (issued January 22, 2019); T.M., Docket No. 08-0975 (issued February 6, 2009).

8

ORDER
IT IS HEREBY ORDERED THAT the February 17, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 10, 2022
Washington, DC

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

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

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

9


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

)
)
)
)
)
)
)
)

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

Docket No. 18-0135
Issued: August 20, 2018

Case Submitted on the Record

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

JURISDICTION
On October 24, 2017 appellant filed a timely appeal from an August 29, 2017 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 to consider the merits of the case.2
ISSUES
The issues are: (1) whether appellant has established more than two percent permanent
impairment of his right lower extremity for which he previously received schedule award
compensation; and (2) whether appellant has established more than one percent permanent

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the August 29, 2017 decision OWCP received additional evidence in this claim.
However, the Board’s jurisdiction is limited to the evidence that was in the record at the time OWCP issued its final
decision. Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. See 20
C.F.R. § 501.2(c)(1); M.B., Docket No. 09-0176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008).

impairment of his right upper extremity for which he previously received schedule award
compensation.
FACTUAL HISTORY
On January 22, 2007 appellant filed an occupational disease claim (Form CA-2) alleging
that he developed pain in his right shoulder, right elbow, right wrist, as well as numbness and pain
in his right hand. He attributed his upper extremity conditions to his job duties, including operating
a motor vehicle, delivering mail, lifting trays of mail, and casing mail. OWCP assigned the claim
File No. xxxxxx227 and, on March 8, 2007, accepted it for sprain of the right shoulder and upper
arm. Appellant returned to modified work on May 23, 2008. On November 7, 2008 OWCP
expanded acceptance of the claim to include right shoulder calcifying tendinitis and right trigger
thumb. It further expanded acceptance of the claim, on February 11, 2010, to include right knee
tear. On March 30, 2011 appellant underwent a surgical right thumb A1 pulley release.
On November 4, 2014 appellant filed a traumatic injury claim (Form CA-1) alleging that
on October 31, 2014 his right knee collapsed, he lost his balance, missing a step, and sprained his
left ankle. OWCP assigned that claim OWCP File No. xxxxxx240 and accepted it for sprain of
the right knee and leg, lumbar sprain, sprain of the left ankle, and contusion of the left hip.3
In a series of reports dated beginning on October 10, 2014, Dr. Kamal Eldrageely, a
physiatrist, noted that appellant complained of right knee pain. He indicated that appellant had a
prior injury to his patella and had undergone knee surgery.
In a report dated November 24, 2014, Dr. Eldrageely reviewed appellant’s right knee
magnetic resonance imaging (MRI) scan and found a severe thinning and fraying of the patellar
articular cartilage. He diagnosed right knee strain.
On January 29, 2015 Dr. Ronald Glousman, a Board-certified orthopedic surgeon,
performed a diagnostic arthroscopy, partial medial meniscectomy, synovectomy, and
chondroplasty on appellant’s right knee. On July 13, 2015 OWCP expanded the acceptance of
appellant’s claim to include late effect of right tendon injury to the right thumb and tear of the
medial meniscus of the right knee.
Through a letter dated July 21, 2015, OWCP referred appellant, a statement of accepted
facts (SOAF),4 and a list of questions for a second opinion evaluation with Dr. Ernest B. Miller, a
Board-certified orthopedic surgeon. In his August 13, 2015 report, Dr. Miller diagnosed superior
labral tear of the right shoulder with full range of motion and excellent strength. He also found
that appellant had full range of motion of his right thumb following the trigger thumb release, and

3
OWCP File Nos. xxxxxx227 and xxxxxx240 have been administratively combined, with File No. xxxxxx227
serving as the master file.
4

The July 13, 2015 SOAF indicated that appellant had undergone left shoulder surgery on January 29, 2015 as well
as his documented right knee surgery on that date. OWCP advised Dr. Miller of the error and received a revised report
which omitted references to the left shoulder procedure.

2

that he had full range of motion of his right knee following the partial medial meniscectomy with
no swelling or instability.
Appellant retired from the employing establishment on July 31, 2015.
Dr. Richard E. Sall, a Board-certified physiatrist, completed a report on November 19,
2015 and noted loss of range of motion for appellant’s right thumb and right shoulder, as well as
minor discomfort in his right knee. He opined that appellant had reached maximum medical
improvement (MMI).
On February 3, 2016 Dr. Sall completed an impairment rating for schedule award purposes.
He evaluated appellant’s percentage of permanent impairment in accordance with the fifth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).5 Dr. Sall determined that appellant reached MMI on February 3, 2016. He
noted appellant’s history of injury on January 2, 2003, as well as appellant’s October 31, 2014
work injury which resulted in right knee strain, lumbar strain, left ankle strain, and contusion to
the hip. Dr. Sall provided range of motion figures for appellant’s extremities including his right
shoulder as: 130 degrees of flexion, 30 degrees of extension, 26 degrees of adduction, 130 degrees
of abduction, 21 degrees of internal rotation, and 50 degrees of external rotation. Appellant’s right
thumb exhibited: 60 degrees of metacarpophalangeal (MP) joint flexion, 35 degrees of MP joint
extension, 50 degrees of radial abduction; and 3 degrees of carpometacarpal (CMC) joint
adduction. The right knee MRI scan on November 19, 2014 demonstrated a tear of the posterior
horn of the medial meniscus, severe thinning and fraying of the patella articular cartilage, and
minimal marginal osteophytes of the patella. Dr. Sall diagnosed partial medial meniscectomy of
the right knee, surgical release of the right trigger thumb, and healed calcific tendinitis of the right
shoulder.
On July 18, 2016 appellant filed a claim for a schedule award (Form CA-7).
On August 2, 2016 OWCP requested that Dr. Sall provide an opinion on the extent of
appellant’s percentage of permanent impairment for schedule award purposes utilizing the sixth
edition of A.M.A., Guides.6
In a supplemental report dated September 3, 2016, Dr. Sall evaluated appellant’s
percentage of permanent impairment. He found that appellant had no permanent impairment of
his right thumb, as his digital stenosing tenosynovitis was corrected by surgery.7 Dr. Sall
determined, using the diagnosis-based impairment (DBI) methodology, that appellant had one
percent permanent impairment of his right shoulder due to class 1 functional history, as well as
mild physical examination and functional history grade modifiers which are consistent with grade

5

A.M.A., Guides (5th ed. 2001).

6

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

7

Id. at 392, Table 15-2.

3

C.8 He evaluated appellant’s right knee permanent impairment as a meniscal injury, grade C, with
a two percent permanent impairment rating.9
In a report dated March 16, 2017, OWCP’s medical adviser, Dr. Herbert White, Jr., a
physician Board-certified in occupational medicine, reviewed Dr. Sall’s reports and found that
appellant reached MMI on February 3, 2016. He calculated two percent permanent impairment of
appellant’s right lower extremity due to his partial medial meniscectomy.10 Dr. White, also
utilizing the DBI methodology, determined that appellant had grade 1 modifiers for functional
history and physical evaluation. He applied the net adjustment formula and determined that
appellant’s default impairment at class 1, grade C was two percent impairment of the right lower
extremity.
In regard to appellant’s right shoulder, Dr. White found that the diagnosis was shoulder
tendinitis and class 1 diagnosis.11 He determined that appellant had grade 1 modifiers for
functional history and physical evaluation. Dr. White applied the net adjustment formula and
reached an impairment rating of one percent of the right upper extremity. He also agreed with
Dr. Sall’s finding that appellant had no permanent impairment of his right thumb.
On April 24, 2017 OWCP requested a supplemental report from Dr. Sall addressing
whether appellant’s permanent impairment rating was based on the whole person or on specific
affected, scheduled members.
In a report dated May 7, 2017, Dr. Sall noted that appellant’s impairment rating was based
on permanent impairment of the specific effected members and not the whole person.
In a report dated July 14, 2017, Dr. Sall listed appellant’s range of motion (ROM) in his
left lower extremity. He completed a report on July 26, 2017 and found that appellant had reached
MMI. Dr. Sall noted appellant’s history of injury on October 31, 2014 including tenderness over
the right knee. He opined that appellant had recovered following right knee surgery, but continued
to have pain in the left ankle, hip, and back. Dr. Sall’s diagnoses included status post partial medial
meniscectomy of the right knee, arthroscopically healed, chronic lumbar strain, chronic
trochanteric bursitis of the left hip, severe sprain of the left ankle with osteochondral lesion of the
medial talar dome, and split peroneus brevis tendon of the left ankle. He provided appellant’s
impairment ratings in accordance with the sixth edition of the A.M.A., Guides. Dr. Sall found one
percent permanent impairment of the whole person due to the partial medial meniscectomy of the
right knee.
By decision dated August 29, 2017, OWCP granted appellant schedule award
compensation for two percent permanent impairment of his right lower extremity and one percent
permanent impairment of his right upper extremity. It found that appellant should receive
8

Id. at 402, Table 15-5.

9

Id. at 509, Table 16-3.

10

Id.

11

A.M.A., Guides 402, Table 15-5.

4

compensation for 5.76 weeks or 40.32 days for two percent permanent impairment of his right
lower extremity and 3.12 weeks or 21.84 days for one percent permanent impairment of his right
upper extremity, for a total of 8.88 weeks or 62.16 days of compensation for both permanent
impairments in the amount of $7,100.35.12
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA13 and its implementing regulations14 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for loss
or loss of use, of scheduled members or functions of the body. FECA, however, does not specify
the manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a matter which rests in the discretion of OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so that
there may be uniform standards applicable to all claimants. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides, published in 2009.15
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the knee, reference is made to Table 16-3 (Knee Regional Grid)
beginning on page 509.16 After the Class of Diagnosis (CDX) is determined from the Knee
Regional Grid (including identification of a default grade value), the net adjustment formula is
applied using the grade modifier for Functional History (GMFH), grade modifier for Physical
Examination (GMPE), and grade modifier for Clinical Studies (GMCS). The net adjustment
formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).17 Under Chapter 2.3, evaluators are
directed to provide reasons for their impairment rating choices, including choices of diagnoses
from regional grids and calculations of modifier scores.18

12

On April 9, 2018 OWCP issued a decision denying appellant’s claim for a schedule award under File No.
xxxxxx240. Appellant subsequently requested a hearing and OWCP’s Branch of Hearings and Review issued a
decision on July 2018, which vacated the April 9, 2018 decision and remanded the case for further development of
that issue. The Board and OWCP may not simultaneously have jurisdiction over the same issue. Because the April 9
and July 20, 2018 decisions were issued while the same issue was pending before the Board, those decisions are null
and void. Arlonia B. Taylor, 44 ECAB 591, 597 (1993).
13

5 U.S.C. § 8107.

14

20 C.F.R. § 10.404.

15

For decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides. A.M.A.,
Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability
Claims, Chapter 2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010).
16

A.M.A., Guides 509, Table 16-3.

17

Id. at 515-22.

18

Id. at 23-28.

5

ANALYSIS -- ISSUE 1
The Board finds that appellant has not established more than two percent permanent
impairment of his right lower extremity for which he previously received schedule award
compensation.
OWCP accepted that appellant sustained a right knee sprain and medial meniscal tear with
resulting surgery. Appellant’s physician, Dr. Sall, and OWCP’s medical adviser, Dr. White,
agreed that appellant had two percent permanent impairment of his right lower extremity due to
his medial meniscal tear under the DBI methodology. The A.M.A., Guides provide that a partial
medial meniscectomy is a class 1 impairment with a default grade C impairment value of two
percent of the lower extremity.19 Dr. White determined that appellant had grade 1 modifiers for
functional history and physical examination. He applied the net adjustment formula and
determined that appellant’s default impairment at class 1, grade C was two percent permanent
impairment of the right lower extremity. OWCP properly found that the medical evidence does
not establish more than two percent impairment of appellant’s right lower extremity for which he
previously received a schedule award.
On appeal appellant argues that he should receive a longer period of compensation due to
the two percent impairment of his right lower extremity. For a complete loss of use of a leg, an
employee shall receive 288 weeks of compensation.20 As appellant has 2 percent permanent
impairment of his right lower extremity, he is entitled to 2 percent of 288 weeks or 5.76 weeks of
compensation as determined by OWCP. Appellant has not submitted any medical evidence
establishing that he has more than two percent permanent impairment of his right lower extremity.
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.
LEGAL PRECEDENT -- ISSUE 2
The sixth edition requires, for upper extremity permanent impairment ratings, identifying
the impairment CDX condition, which is then adjusted by grade modifiers based on GMFH,
GMPE, and GMCS.21 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCSCDX).
The A.M.A., Guides also provide that the ROM impairment method is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
diagnosis-based sections are applicable.22 If ROM is used as a stand-alone approach, the total of
motion impairment for all units of function must be calculated. All values for the joint are
19

Id. at 509, Table 16-3.

20

5 U.S.C. § 8107(c)(2).

21

A.M.A., Guides 401-19.

22

Id. at 461.

6

measured and added.23 Adjustments for functional history may be made if the evaluator
determines that the resulting impairment does not adequately reflect functional loss and functional
reports are determined to be reliable.24
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating upper extremity impairments.25 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)26
The Bulletin further advises:
“If the medical evidence of record is not sufficient for the DMA to render a rating
on ROM where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available evidence.
“Upon receipt of such a report, and if the impairment evaluation was provided from
the claimant’s physician, the CE should write to the claimant advising of the
medical evidence necessary to complete the impairment assessment and provide 30
days for submission. Any evidence received in response should then be routed back
to the DMA for a final determination. Should no evidence be received within 30
days of the date of the CE’s letter, the CE should proceed with a referral for a second
opinion medical evaluation to obtain the medical evidence necessary to complete

23

Id. at 473.

24

Id. at 474.

25

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

26

Id.

7

the rating. After receipt of the second opinion physician’s evaluation, the CE
should route that report to the DMA for a final determination.”27
ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for decision regarding the rating of
appellant’s right upper extremity permanent impairment due to his accepted right shoulder and
thumb conditions.
OWCP has accepted appellant’s claim for sprain of the right shoulder and calcifying
tendinitis of the right shoulder, as well as right trigger finger and right thumb tendon injury. In his
February 3, 2016 report, Dr. Sall provided range of motion measurements for appellant’s right
shoulder as well as his right thumb, but he did not use the measurements to rate appellant’s
permanent impairment pursuant to the A.M.A., Guides. In his supplemental report dated
September 3, 2016, Dr. Sall provided a right upper extremity impairment rating utilizing the DBI
method. He concluded that appellant had one percent permanent impairment of the right shoulder
and zero percent permanent impairment of the right trigger finger.
On March 16, 2017 OWCP’s DMA reviewed Dr. Sall’s DBI rating and agreed that
appellant had one percent permanent impairment of his right shoulder and zero percent permanent
impairment of his right trigger finger. As the A.M.A., Guides allow for the use of both the DBI
and ROM methods to calculate an impairment rating for the diagnoses in question, the method
producing the higher rating should have been used. The DMA should also have rated appellant’s
permanent impairment using the stand-alone ROM methodology to determine whether there was
a higher possible rating. If the medical evidence of record was insufficient for the DMA to render
a rating on ROM methodology where allowed, the DMA should have advised as to the medical
evidence necessary to complete the rating.
On remand OWCP shall obtain a supplemental report from the DMA, pursuant to FECA
Bulletin 17-06. After such further development as deemed necessary OWCP shall issue a de novo
decision regarding appellant’s entitlement schedule award compensation for permanent
impairment of his right upper extremity.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than two
percent permanent impairment of his right lower extremity for which he previously received
schedule award compensation. The Board further finds that this case is not in posture for decision
with respect to the extent of appellant’s right upper extremity permanent impairment.

27

Id.

8

ORDER
IT IS HEREBY ORDERED THAT the August 29, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed with respect to the schedule award for appellant’s
right lower extremity. The August 29, 2017 decision is set aside with respect to the schedule award
for appellant’s right upper extremity and the case is remanded to OWCP for action consistent with
this decision.
Issued: August 20, 2018
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
U.S. POSTAL SERVICE, MID-MISSOURI
PROCESING & DISTRIBUTION FACILITY,
Columbia, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-0950
Issued: October 24, 2019

Case Submitted on the Record

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

JURISDICTION
On April 1, 2019 appellant, through counsel, filed a timely appeal from a March 5, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left knee condition
causally related to the accepted September 4, 2016 employment incident.
FACTUAL HISTORY
On October 8, 2016 appellant, then a 55-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on September 4, 2016 she suffered a left knee strain when
she tripped and fell while in the performance of duty. On the reverse side of the claim form, the
employing establishment concurred that the injury occurred while she was in the performance of
duty and noted that she had not stopped work.
OWCP received an attending physician’s report (Form CA-20) dated October 10, 2016,
which was mostly illegible.
In a January 10, 2017 report, Dr. Clayton W. Nuelle, a Board-certified orthopedic surgeon,
described that on September 4, 2016 appellant slipped on a piece of plastic binder and fell onto the
concrete floor at work. He recounted her complaints of left knee intermittent pain and swelling as
a result of the incident. Upon examination of appellant’s left knee, Dr. Nuelle observed positive
middle third medial joint line tenderness to palpation and mild effusion. He provided range of
motion testing and noted positive McMurray’s test for pain. Dr. Nuelle reviewed a January 10,
2017 left knee x-ray that revealed some moderate medial joint space narrowing. He also noted
that appellant’s October 14, 2016 left knee magnetic resonance imaging (MRI) scan showed
significant chondral loss throughout the medial compartment and a large joint effusion with no
obvious meniscal or ligament tears. Dr. Nuelle explained that he thought it was an “acute on
chronic condition and it was greatly exacerbated by [appellant’s] fall and her injury at work, she
was not having any knee pain prior to this injury.” He diagnosed left knee medial compartment
chondromalacia.
In a development letter dated February 13, 2017, OWCP informed appellant that her claim
was initially accepted as a minor injury, but it was now considering the merits of her claim because
she had requested authorization for a knee brace. It advised her of the factual and medical evidence
necessary to establish her claim and also provided a questionnaire for completion. OWCP afforded
appellant 30 days to provide the necessary factual information and medical evidence.
Appellant underwent physical therapy and submitted daily treatment notes beginning
February 10, 2017.
On March 3, 2017 OWCP received appellant’s completed questionnaire dated
February 19, 2017. Appellant recounted that she experienced instant pain in her left knee and that
she told her supervisor that she fell on her hands and knees after her left knee got caught in a plastic
binder. She noted that she first sought medical treatment on September 14, 2016 when she realized
that the pain and swelling in her left knee was not going away. Appellant indicated that she had
no similar, previous disability or symptoms before the injury.

2

Appellant submitted diagnostic testing reports. In a September 14, 2016 left knee x-ray
examination report, Dr. Samir S. Ashraf, an osteopath specializing in diagnostic radiology,
reported no acute bony abnormality. An October 14, 2016 left knee MRI scan revealed a large
joint effusion and chondral loss medially with degenerative change.
OWCP also received an October 10, 2016 progress note by Dr. Thomas Ciolino, a Boardcertified internist. Dr. Ciolino recounted that on September 4, 2016 appellant fell at work and still
showed pain and swelling in her left knee. He provided examination findings and diagnosed knee
injury.
In a February 28, 2017 report, Dr. Nuelle recounted that appellant still experienced left
knee pain six months after a slip and fall injury at work. He reported left knee examination findings
of significant tenderness to palpation on the patella, some tenderness to palpation of the iliotibia l
band, decreased extension, and pain with straight leg raise testing. Dr. Nuelle diagnosed continued
left knee pain and recommended diagnostic arthroscopy.
By decision dated March 22, 2017, OWCP denied appellant’s traumatic injury claim. It
accepted that the September 4, 2016 employment incident occurred as alleged, but denied her
claim finding that the evidence of record failed to establish a medical diagnosis in connection with
the accepted employment incident.
On April 11, 2017 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. A hearing was held on
October 12, 2017.
Appellant submitted a May 30, 2017 report by Dr. Nuelle. Dr. Nuelle related that on
September 4, 2016 she experienced immediate left knee pain and swelling after she sustained a
fall at work. He reviewed appellant’s history, including diagnostic testing, and diagnosed left knee
chondromalacia. Dr. Nuelle noted his opinion on causal relationship as “aggravation.” He opined:
“[appellant] has an underlying condition that the work condition/injury resulted in an acute injury
to the left knee that inflamed her left knee.” Dr. Nuelle indicated that the pathophysiological
explanation was “the direct blow that resulted from the fall on September 4, 2016 caused an
increase in inflammation and exacerbated the underlying condition of chondromalacia to the left
knee.”
In an October 20, 2017 report, Dr. Seth L. Sherman, a Board-certified orthopedic surgeon,
recounted that in September 2016 appellant sustained a slip and fall injury at work and never
returned to normal. He noted her complaints of diffuse medial and lateral based pain, swelling,
and mechanical symptoms daily. Dr. Sherman reviewed appellant’s history and conducted an
examination. He observed mild decreased mobility, mild effusion, pain patellar compression, and
diffuse nonlocalizable joint line tenderness in her left knee. Dr. Sherman indicated that appellant’s
imaging studies were consistent with a “likely exacerbation” of her preexisting medial femoral
condyle chondral disease.
An October 20, 2017 left knee MRI scan showed mild medial displacement of the
mechanical axis right, greater than left.

3

By decision dated December 15, 2017, an OWCP hearing representative modified the
March 22, 2017 decision. She found that the medical evidence of record was sufficient to establish
a diagnosis of left knee chondromalacia, but denied appellant’s claim finding insufficient medical
evidence of record to establish that the diagnosed left knee condition was causally related to the
accepted September 4, 2016 employment incident.
On October 9, 2018 appellant, through counsel, requested reconsideration and submitted
additional medical evidence.
In an October 2, 2018 narrative report, Dr. Sherman reviewed appellant’s history,
including the September 4, 2016 employment injury and the medical treatment that she had
received. He conducted an examination and noted that he was asked to discuss causal relationship
between the September 4, 2016 employment injury and her current medical condition.
Dr. Sherman explained that appellant likely had a preexisting, asymptomatic chondral lesion of
the medial femoral condyle with underlying varus malalignment. He reported that direct blow
type injuries could overload the chondral surface and cause subchondral edema, which may render
a previously asymptomatic lesion symptomatic. Dr. Sherman related that the October 14, 2016
left knee MRI scan showed a subchondral edema within the lesion bed that can be consistent with
overload after an impaction type work injury. He explained that chondral lesions, in general, may
be symptomatic or asymptotic and that direct blow type injuries can overload the chondral surface
and cause subchondral edema which may render a previously asymptomatic lesion symptomatic,
requiring intervention. Dr. Sherman noted his review of the diagnostic testing of record and opined
that it is likely that the work-related traumatic injury caused this lesion to become symptomatic,
requiring substantial, and continued treatment.
By decision dated March 5, 2019, OWCP denied modification of the December 15, 2017
decision.
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 the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time 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

3

Id.

4
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

4

the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
In order to determine whether a federal employee has sustained a traumatic injury in the
performance of duty, OWCP must first determine whether fact of injury has been established. 7
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, place, and in the manner alleged. 8 Second, the employee must submit evidence, generally
only in the form of probative medical evidence, to establish that the employment incident caused
a personal injury.9
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence.10 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factor(s) identified by the employee. 11 The weight of the medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
analysis manifested, and the medical rationale expressed in support of the physician’s opinion.12
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.13
ANALYSIS
The Board finds that this case is not in posture for decision.

5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

D.B., Docket No. 18-1348 (issued January 4, 2019); S.P., 59 ECAB 184 (2007).

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Bonnie A. Contreras, 57 ECAB 364 (2006).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB
354 (1989).
10

See S.A., Docket No. 18-0399 (issued October 16, 2018); see also Robert G. Morris, 48 ECAB 238 (1996).

11

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).
12

James Mack, 43 ECAB 321 (1991).

13

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

5

In support of her claim appellant provided narrative medical reports from Dr. Nuelle in
which he provided his opinion as to the cause of her diagnosed left knee condition relative to the
accepted September 4, 2016 employment incident. OWCP has accepted that she slipped on a piece
of a plastic binder and fell onto the concrete floor at work.
Initially, Dr. Nuelle acknowledged that appellant had an underlying condition, but that the
employment incident on September 4, 2016 resulted in an acute injury to the left knee that inflamed
her left knee. He then indicated that the pathophysiological explanation was “the direct blow that
resulted from the fall on September 4, 2016 caused an increase in inflammation and exacerbated
the underlying condition of chondromalacia to the left knee.” Dr. Nuelle’s opinion demonstrates
his knowledge of the preexisting left knee condition and provides an explanation as to how that
condition was made worse by the fall, beyond the expected progression of the condition.
Appellant also submitted medical evidence on the issue of causal relationship from
Dr. Sherman. In his October 2, 2018 narrative report, Dr. Sherman reported that direct blow type
injuries, as she had sustained, could overload the chondral surface and cause subchondral edema,
which may render a previously asymptomatic lesion symptomatic. He noted that the October 14,
2016 left knee MRI scan showed a subchondral edema within the lesion bed, consistent with
overload after an impaction type employment injury. Dr. Sherman also provided an explanation
as to the pathophysiological cause of appellant’s left knee condition. He explained that chondral
lesions, in general, may be symptomatic or asymptotic and that direct blow type injuries can
overload the chondral surface and cause subchondral edema which may render a previously
asymptomatic lesion symptomatic, requiring intervention. Dr. Sherman noted his review of the
diagnostic testing of record and opined that it is likely that the work-related traumatic injury caused
this lesion to become symptomatic, requiring substantial, and continued treatment.
The Board finds that, when read together, the reports of Dr. Nuelle and Dr. Sherman are
sufficient to require further development of the medical evidence to see that justice is done. 14 Both
physicians are qualified in their field to render rationalized opinions on causal relationship, they
explain that appellant’s preexisting condition was aggravated beyond what would be expected
from a normal progression, and they each provided a pathophysiologic explanation instructing as
to the mechanism of injury causing the current condition.
On remand OWCP shall refer appellant to an appropriate specialist, along with the case
record and a statement of accepted facts. Its referral physician shall conduct a physical evaluation
and provide a rationalized medical opinion as to whether her left knee condition was caused or
aggravated by the accepted September 4, 2016 employment incident. After such further
development of the case record as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

14
D.S., Docket No. 17-1359 (issued May 3, 2019); X.V., Docket No. 18-1360 (issued April 12,
2019); C.M., Docket No. 17-1977 (issued January 29, 2019); William J. Cantrell, 34 ECAB 1223 (1983).

6

ORDER
IT IS HEREBY ORDERED THAT the March 5, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further development consistent
with this order of the Board.
Issued: October 24, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
ALCOHOL, TOBACCO & FIREARMS,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-1453
Issued: February 17, 2010

Case Submitted on the Record

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

JURISDICTION
On May 20, 2009 appellant filed a timely appeal from the May 7, 2009 decision of the
Office of Workers’ Compensation Programs concerning an overpayment of compensation.
Pursuant to 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 the Office properly determined that appellant received a
$15,990.22 overpayment of compensation; (2) whether the Office properly determined that
appellant was at fault in creating the overpayment of compensation, thereby precluding waiver of
recovery of the overpayment; and (3) whether the Office properly required repayment of the
overpayment by deducting $408.79 from his compensation payments every 28 days.

FACTUAL HISTORY
In late 1996, the Office accepted that appellant, then a 36-year-old special agent,
sustained post-traumatic stress disorder due to the duties of his job. He stopped work at that time
and received wage-loss compensation for periods of disability. In a February 2, 2001 decision,
the Office adjusted appellant’s compensation based on its determination that he was capable of
earning wages in the constructed position of elementary school teacher. The decision advised
him that his wage-loss benefits every four weeks would decrease to $2,528.00 beginning
February 25, 2001.1 In a January 3, 2002 decision, an Office hearing representative affirmed the
February 2, 2001 decision.
In a May 2, 2008 letter, the Office advised appellant of its preliminary determination that
he received a $15,990.22 overpayment of compensation and that he was at fault in creating the
overpayment, thereby precluding waiver of recovery of the overpayment. It advised that he
received a $15,990.22 overpayment for the period February 26, 2001 to March 15, 2008 because
it reduced his entitlement to compensation in the February 2, 2001 wage-earning capacity
decision but failed to adjust his compensation payments for this period. Rather, appellant
received benefits for total disability. Regarding the matter of fault in creation of the
overpayment, the Office stated:
“As you received your compensation benefits by direct deposit, you were also
notified by a benefits statement mailed directly to you, of the amount your
compensation check. You had plenty of time to be cognizant of the incorrectly
paid money, the fact it differed from the amount provided in the February 02,
2001 decision, the same amount you appealed to the Branch of Hearings and
Review. You did not inform this Office or inquire when or why your
compensation benefits were not reduced.”2
On the overpayment questionnaire completed on October 10, 2008 appellant listed
$7,781.24 in monthly income and $7,767.30 in monthly expenses.3 After a September 24, 2008
prerecoupment hearing before an Office hearing representative, he submitted additional financial
information. Appellant listed $7,781.24 in monthly income as follows: $2,758.52 in wage-loss
compensation; $2,731.32 for his wife’s income; $200.00 for payments from Chenairco; and
$2,091.40 for his teacher salary. He again listed $7,767.30 in monthly expenses.

1

The Office found that appellant could earn $488.94 per week as a teacher.

2

The Office requested that appellant complete an enclosed financial information questionnaire even if he was not
requesting waiver of the overpayment. The record contains documents showing that he received $273,054.59 in
compensation for the period February 26, 2001 to March 15, 2008, but that he would have received $257,064.37 for
this period if his compensation had been properly reduced in accordance with the Office’s February 2, 2001
decision.
3

The record contains a Form EN1032 completed on March 14, 2009 in which appellant listed a yearly salary of
$39,727.00 as a teacher.

2

In a May 7, 2009 decision, the Office hearing representative determined that appellant
received a $15,990.22 overpayment of compensation. She found that he was at fault in creating
the overpayment of compensation, thereby precluding waiver of recovery of the overpayment.
The Office hearing representative indicated that the overpayment would be recovered by
deducting $408.79 from appellant’s compensation payments every 28 days. She determined that
he could pay this amount because he had $7,693.63 in monthly expenses4 and $9,002.42 in
monthly income. The Office hearing representative noted that appellant listed $2,091.40 for his
teacher salary on the questionnaire, but indicated that she was using the $39,727.00 per year
salary listed on the EN1032 form. Dividing the $39,727.00 per year salary by 12 yielded a
higher monthly salary for his teaching job of $3,310.58.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act5 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty.6 Section 8129(a) of the Act provides, in
pertinent part:
“When an overpayment has been made to an individual under this subchapter
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.”7
Section 8116(a) of the Act provides that, while an employee is receiving compensation or
if he has been paid a lump sum in commutation of installment payments until the expiration of
the period during which the installment payments would have continued, the employee may not
receive salary, pay or remuneration of any type from the United States, except in limited
specified instances.8 Under section 8115(a) of the Act, wage-earning capacity is determined by
the actual wages received by an employee if the earnings fairly and reasonably represent his
wage-earning capacity. If the actual earnings do not fairly and reasonably represent wageearning capacity or if the employee has no actual earnings, the Office may, under certain
circumstances, base a wage-earning capacity determination reducing compensation on a
constructed position.9

4

The Office hearing representative disallowed $73.67 for guitar lessons because this did not represent a necessary
expense.
5

5 U.S.C. §§ 8101-8193.

6

5 U.S.C. § 8102(a).

7

Id. at § 8129(a).

8

Id. at § 8116(a).

9

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

3

ANALYSIS -- ISSUE 1
In a February 2, 2001 decision, the Office adjusted appellant’s compensation based on its
determination that he was capable of earning wages in the constructed position of elementary
school teacher.10 The decision reduced caused his entitlement to wage-loss compensation to
$2,528.00 every four weeks beginning February 25, 2001. The record contains documents
establishing that appellant received $273,054.59 in compensation for the period February 26,
2001 to March 15, 2008; but he was only entitled to receive $257,064.37 under the Office’s
February 2, 2001 decision. Appellant was not entitled to receive wage loss for total disability.
The difference between these two figures is $15,990.22. Therefore, the Board finds that he
received an overpayment of compensation in the amount of $15,990.22.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of the Act provides that where an overpayment of compensation has
been made “because of an error of fact or law,” adjustment shall be made by decreasing later
payments to which an individual is entitled.11 The only exception to this requirement is a
situation which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery
by the United States may not be made when incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of this
subchapter or would be against equity and good conscience.”12 No waiver of payment is
possible if the claimant is not “without fault” in helping to create the overpayment.13
In determining whether an individual is not “without fault” or alternatively, “with fault,”
section 10.433(a) of Title 20 of the Code of Federal Regulations provides in relevant part:
“An individual is with fault in the creation of an overpayment who-(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….”14

10

In a January 3, 2002 decision, an Office hearing representative affirmed the Office’s February 2, 2001 decision.

11

5 U.S.C. § 8129(a).

12

Id. at § 8129(b).

13

Robert W. O’Brien, 36 ECAB 541, 547 (1985).

14

20 C.F.R. § 10.433(a).

4

Section 10.433(c) of the Office’s regulations provides:
“Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”15
ANALYSIS -- ISSUE 2
The Office’s February 2, 2001 decision notified appellant that his wage-loss
compensation every four weeks would decrease to $2,528.00 beginning February 25, 2001 based
on his capacity to earn wages as a school teacher. The Board finds that he accepted amounts that
he knew or should have known to be incorrect. The length of time that appellant received
improper checks, a period of more than seven years, shows that he knew or should have known
that he received improper payments. During this extended period, he did not contact the Office
to inquire why his compensation checks had not been reduced in accordance with the Office’s
February 2, 2001 wage-earning capacity determination.
Even though the Office may have been negligent in continuing to issue appellant checks
at the rate of compensation for total disability after the issuance of its February 2, 2001 decision
reducing his benefits, this does not excuse his acceptance of such payments which he knew or
should have known to be incorrect and returned to the Office.16 For these reasons, it properly
determined that appellant was at fault in creating the $15,990.22 overpayment of compensation,
thereby precluding waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441(a) of Title 20 of the Code of Federal Regulations provides in pertinent
part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
the same. If no refund is made, [the Office] shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.”17

15

Id. at § 10.433(c).

16

Robert W. O’Brien, 36 ECAB 541, 547 (1985).

17

20 C.F.R. § 10.441(a); see Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

5

ANALYSIS -- ISSUE 3
The Office hearing representative determined that the $15,990.22 overpayment would be
recovered by deducting $408.79 from appellant’s compensation payments every 28 days. She
determined that he could pay this amount because he had $7,693.63 in monthly expenses and
$9,002.42 in monthly income. The Office hearing representative stated that appellant listed
$2,091.40 for his teacher salary on a financial information questionnaire, but indicated that she
was using the $39,727.00 per year salary listed on an EN1032 form. She divided the $39,727.00
per year salary by 12 to yield a higher monthly salary for appellant’s teaching job of $3,310.58.
The Board finds, however, that the Office hearing representative did not adequately explain why
she chose to list appellant’s monthly income for teaching as $3,310.58 rather than $2,091.40 or
some other figure. It remains unclear whether the $39,727.00 per year salary is a gross or net
figure for appellant’s teaching salary. Until this matter is clarified, it remains unclear whether
deducting $408.79 from his compensation payments every 28 days would be proper under the
Act. The case will be remanded to the Office for further development of the method of recovery
of the $15,990.22 overpayment.
CONCLUSION
The Board finds that the Office properly determined that appellant received a $15,990.22
overpayment of compensation. The Board finds that the Office properly determined that he was
at fault in creating the overpayment of compensation and that; therefore, the overpayment was
not subject to waiver. The Board further finds that the case is not in posture for decision
regarding whether the Office properly required repayment of the overpayment by deducting
$408.79 from appellant’s compensation payments every 28 days.

6

ORDER
IT IS HEREBY ORDERED THAT May 7, 2009 decision of the Office of Workers’
Compensation Programs is affirmed with respect to the issues of fact, amount, fault and waiver
of overpayment. The decision is set aside with respect to the method of recovery of the
overpayment. The case is remanded to the Office for further proceedings consistent with this
decision of the Board.
Issued: February 17, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
E.C., Appellant
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Enfield, CT, Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 18-0274
Issued: January 6, 2020

Case Submitted on the Record

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

JURISDICTION
On November 20, 2017 appellant filed a timely appeal from a September 20, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that his back
conditions and/or bilateral inguinal hernias are causally related to the accepted July 19, 2017
employment incident.
FACTUAL HISTORY
On July 26, 2017 appellant, then a 42-year-old city carrier assistant (CCA), filed a
traumatic injury claim (Form CA-1) alleging that on July 19, 2017 he felt something pull in the

1

5 U.S.C. § 8101 et seq.

lower left side of his back when he lifted and carried a box while in the performance of duty. He
stopped work on July 19, 2017.
In reports dated July 20 and 31, 2017, Dr. David M. Kruger, a Board-certified orthopedic
surgeon, noted that appellant initially experienced back pain following an injury 20 years ago. He
explained that appellant fell down stairs on September 13, 2016 and was again reinjured on
March 17, 2017 when he slipped and fell on ice with the return of the same low back pain.
Dr. Kruger then noted that he reinjured himself on July 19, 2017 while twisting to move a package
at work when he felt a “pop” in his back with immediate onset of increased low back pain. He
diagnosed low back pain and lumbar disc degeneration. Dr. Kruger explained that appellant’s
current condition was an exacerbation of an old injury from September 13, 2016 and March 17,
2017, super imposed by a new work injury. He saw appellant on August 7, 2017 and diagnosed
chronic left-sided low back pain with left-sided sciatica. Dr. Kruger completed a Form CA-17 on
August 7, 2017 in which he noted that appellant experienced low back pain after lifting a box on
July 19, 2017. OWCP also received a separate August 7, 2017 Form CA-17, in which Dr. Kruger
noted that appellant indicated that he had a fall while descending stairs. He indicated that appellant
could resume part-time work on August 8, 2017.
In a July 20, 2017 Form CA-17, Dr. George W. Moore, Board-certified in occupational
medicine, advised that appellant pulled a back muscle while carrying a parcel. He noted that
appellant had pain on flexion and extension of the lumbar spine. Dr. Moore diagnosed lumbago
and responded “no” with regard to whether appellant was able to resume work.
In an August 10, 2017 letter, the employing establishment controverted the claim. It noted
that appellant had two prior claims for low back injury, and that he remained on limited duty as a
result of these previous claims.2 Appellant’s supervisor alleged that appellant had only filed the
present claim because he was upset with management regarding his assigned route. He also noted
discrepancies with regard to the description of the injury, which included that in an August 7, 2017
report wherein appellant indicated that he fell while descending stairs. Appellant’s supervisor
provided an undated letter, received on August 10, 2017, in which he noted that, on July 19, 2017,
appellant was directed to throw and sort parcels, which he agreed to do. However, after
approximately 10 minutes, appellant informed him that he was feeling sore and indicated that it
was a flare up of prior back injuries.
In an August 14, 2017 report, Dr. Moore noted that appellant described the incident as
occurring while carrying a 50- to 60-pound box, and he felt something tweak in his back and groin.
He explained that appellant’s primary problem was pain located in the lower back, right groin, left
groin, which appellant felt was not improving. Dr. Moore also indicated that appellant informed
him that the pain ran down the bilateral posterior leg to the foot. He also noted that appellant had
a history of small herniated discs in 2016. Dr. Moore provided appellant’s physical examination
findings and diagnosed sprain of the ligaments of the lumbar spine, initial encounter, and bilateral
inguinal hernia, without obstruction or gangrene, not speciﬁed as recurrent. He opined that the
cause of this problem “appears to be in part, related to work activities.” On August 14, 2017
2

Appellant’s prior traumatic injury claims were identified as OWCP File No. xxxxxx526 and OWCP File No.
xxxxxx151. OWCP accepted lumbar strain and abrasions of the left elbow and knee in File No. xxxxxx526.
Appellant’s prior claims have not been administratively combined with the current claim.

2

Dr. Moore also completed Part B of an authorization for examination and/or treatment (Form CA16), in which he indicated by checking a box marked “yes” that appellant’s bilateral hernia
condition was caused or aggravated by the alleged employment incident. OWCP also received a
Form CA-17 that Dr. Moore completed on August 14, 2017. Dr. Moore diagnosed bilateral hernia
and related a history of injury of “pulled back carrying parcel.”
In a development letter dated August 16, 2017, OWCP informed appellant that additional
factual and medical evidence needed to support his claim. It requested that he complete a
questionnaire to substantiate how the injury occurred. OWCP afforded appellant 30 days to submit
the necessary evidence.
In an August 17, 2017 statement, the employing establishment again controverted the claim
reiterating prior arguments as well as arguing that it questioned how appellant would have
sustained injury “lifting heavy boxes” since he had a 10-pound lifting limitation. It also
controverted whether his hernia condition was employment related.
OWCP subsequently received an August 22, 2017 Form CA-17 from Dr. Kruger, who
indicated that appellant pulled his back while carrying a parcel.
Appellant provided a narrative statement dated September 11, 2017, describing the
July 19, 2017 incident. He indicated that he lifted a parcel that weighed between 50 and 60 pounds
and was in the process of carrying it to the proper bin that he felt a tweak in his back. Appellant
noted that he immediately informed his supervisor that he felt pain in his back and his supervisor
responded by saying he was going to “dispute his grievance for sorting parcels.” He also described
his prior back injuries which included a minor back injury 20 years ago, which he indicated
resolved within six months, and another work injury in September 2016 which occurred when he
fell.
In a July 20, 2017 report, received by OWCP on September 14, 2017, Dr. Kruger explained
that appellant was originally evaluated in his ofﬁce on January 9, 2017. He noted that appellant
had experienced low back pain at work 20 years prior. Dr. Kruger explained that x-rays of the
lumbosacral spine revealed degenerative changes primarily at L5-S1. He advised that appellant
indicated that he was feeling well until September 13, 2016, when he fell down stairs at work and
did a “somersault” in midair. Dr. Krueger also noted that appellant was reinjured on March 17,
2017 when he slipped on ice while working. Additionally, he explained that appellant hurt his
back a third time on July 19, 2017 while twisting and trying to move a package at work. Dr. Kruger
related that appellant felt a pop in his back. He noted that a magnetic resonance imaging (MRI)
scan of his lumbosacral spine was obtained on November 25, 2016, which revealed degenerative
disc changes with minor disc bulge at L4-5 and a diffuse disc bulge at L5-S1. Dr. Kruger indicated
that other diagnoses could include: multiple bulging discs, lumbar spondylosis or degenerative
disc disease. He opined: “with reasonable medical probability I believe he developed back pain
after falling down a ﬂight of stairs, slipping on ice and twisting while lifting a package while at
work. Clearly this could happen to a radiographically normal spine, but in his case it happened
one with radiographic evidence of degeneration. Regardless, it is common sense that these events
can lead to pain and disability.”

3

By decision dated September 20, 2017, OWCP accepted that the July 19, 2017
employment incident occurred as alleged, but denied the claim as the evidence was insufficient to
establish that the diagnosed medical conditions were causally related to the accepted employment
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.7 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.8 Second, the employee
must submit sufficient evidence to establish that the employment incident caused a personal
injury.9
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.10 Rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized opinion on the issue of whether there
is causal relationship between the claimant’s diagnosed condition and the implicated employment
incident. 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

3

Id.

4
S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
5

S.C., id.; J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden,
Sr., 40 ECAB 312 (1988).
6

S.C., id.; K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7,
2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

G.E., Docket No. 19-1190 (issued November 26, 2019); R.C., Docket No. 19-0376 (issued July 15, 2019).

8

Id.

9

Id.

10

J.G., Docket No. 19-1116 (issued November 25, 2019); T.H., 59 ECAB 388, 393 (2008).

4

by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment incident identified by the claimant.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his back
conditions and/or bilateral inguinal hernias are causally related to the accepted July 19, 2017
employment incident.
In reports dated July 20 and 31, 2017, Dr. Kruger noted that appellant initially experienced
back pain from an injury 20 years ago. He explained that appellant fell down stairs on
September 13, 2016 and was reinjured on March 17, 2017 when he slipped and fell on ice with the
return of the same low back pain. Dr. Kruger then noted that appellant reinjured himself again on
July 19, 2017 while twisting to move a package at work. He felt a “pop” in his back with
immediate onset of increased low back pain. Dr. Kruger diagnosed low back pain and lumbar disc
degeneration. He explained that it was an exacerbation of an old injury from September 13, 2016
and March 17, 2017, superimposed on a new work injury. Dr. Kruger also provided a narrative
report, from an examination on July 20, 2017 which was received on September 14, 2017. He
explained that appellant was originally evaluated in his ofﬁce on January 9, 2017. Dr. Kruger
noted appellant’s history of prior injuries and then explained that appellant hurt his back a third
time on July 19, 2017 while twisting and trying to move a package at work and felt a pop in his
back. The Board notes that Dr. Kruger’s description of the incident on July 19, 2017 contains a
variation on appellant’s version of the history of injury, in that Dr. Kruger added that appellant
was twisting to move a package, while appellant indicated that he was injured while carrying a
large parcel. Dr. Kruger also referred to an MRI scan from November 25, 2016, which revealed
degenerative disc changes with minor disc bulge at L4-5 and a diffuse disc bulge at L5-S1. He
opined that “with reasonable medical probability I believe he developed back pain after falling
down a ﬂight of stairs, slipping on ice and twisting while lifting a package while at work. Clearly
this could happen to a radiographically normal spine, but in his case it happened one with
radiographic evidence of degeneration. Regardless, it is common sense that these events can lead
to pain and disability.” These reports from Dr. Kruger are of limited probative value and are
insufficient to establish appellant’s claim as he did not provide a rationalized opinion explaining
how, physiologically, the accepted employment incident of lifting and carrying a parcel on July 19,
2017 caused the diagnosed conditions.12 The need for a rationalized medical opinion based on
medical rationale is especially important in this case as the evidence suggests that appellant had
preexisting medical conditions.13
Dr. Kruger also saw appellant on August 7, 2017 and diagnosed left-sided low back pain
and left-sided sciatica. He also completed a Form CA-17 on August 7, 2017 wherein he noted that
appellant lifted a box on July 19 2017 and experienced back pain. The Board has held that pain is

11

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

12

J.G., supra note 10; see also A.B., Docket No. 16-1163 (issued September 8, 2017).

13

See M.E., Docket No. 18-0940 (issued June 11, 2019); E.V., Docket No. 17-0417 (issued September 13, 2017).

5

a symptom and not a compensable medical diagnosis.14 Furthermore, while Dr. Kruger noted a
correct history of injury in the August 7, 2017 CA-17 report, he did not provide an opinion on
causal relationship between appellant’s diagnosed medical conditions and the accepted
employment incident. Therefore, his reports are of no probative value and insufficient to establish
appellant’s claim.15
Dr. Moore also provided several reports. They included a July 20, 2017 Form CA-17
report in which he advised that appellant pulled his back muscle carrying a parcel. Dr. Moore
diagnosed lumbago. However, he did not offer an opinion on causal relationship. Medical
evidence that does not offer an opinion regarding the cause of an employee’s condition is of no
probative value on the issue of causal relationship.16
In an August 14, 2017 report, Dr. Moore noted that appellant described the incident as
occurring while carrying a 50- to 60-pound box, and he felt something tweak in his back and groin.
He examined appellant and diagnosed: sprain of the ligaments of the lumbar spine, initial
encounter, and bilateral inguinal hernia, without obstruction or gangrene, not speciﬁed as
recurrent. Dr. Moore opined that the cause of appellant’s condition “appears to be in part, related
to work activities.” The Board finds that this opinion regarding the cause of appellant’s medical
conditions is speculative and equivocal in nature, and therefore insufficient to establish causal
relationship.17 Dr. Moore also completed a Form CA-16 on August 14, 2017 wherein he indicated
by checking a box marked “yes” that appellant’s bilateral hernia condition was caused by the
employment incident. The Board has held, however, that when a physician’s opinion on causal
relationship consists only of checking “yes” to a form question, without explanation or rationale,
that opinion has little probative value and is insufficient to establish a claim.18
In an August 14, 2017 Form CA-17 report Dr. Moore, diagnosed bilateral hernias and
indicated that appellant pulled his back while carrying a parcel, he again provided no opinion on
causal relationship. As such, Dr. Moore’s opinion is of no probative value and, thus, insufficient
to establish appellant’s claim.19
Because appellant has not submitted rationalized medical evidence establishing a causal
relationship between his claimed conditions and the accepted July 19, 2017 employment incident,
the Board finds that he has not met his burden of proof to establish his traumatic injury claim.

14

R.C., Docket No. 19-0376 (issued July 15, 2019).

15

R.Z., Docket No. 19-0408 (issued June 26 2019); P.S., Docket No. 18-1222 (issued January 8, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018).
16

Id.

17

F.C., Docket No. 19-0594 (issued August 13, 2019); medical opinions that are speculative or equivocal in
character are of little probative value. See Kathy A. Kelley, 55 ECAB 206 (2004).
18

See M.O., Docket No. 18-1056 (issued November 6, 2018); Deborah L. Beatty, 54 ECAB 340 (2003).

19

Supra note 15.

6

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his back
conditions and/or bilateral inguinal hernias are causally related to the accepted July 19, 2017
employment incident.
ORDER
IT IS HEREBY ORDERED THAT the September 20, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 6, 2020
Washington, DC

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

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

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

7