United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.O., Appellant
and
DEPARTMENT OF THE ARMY,
DEPARTMENT OF PUBLIC WORKS,
Fort Drum, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-1483
Issued: June 20, 2019

Case Submitted on the Record

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

On July 27, 2018 appellant filed a timely appeal from a February 28, 2018 decision of the
Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards
docketed the appeal as No. 18-1483.
On March 29, 2013 appellant, then a 40-year-old engineering equipment operator, filed an
occupational disease claim which OWCP has an accepted for a right wrist fracture sustained in the
performance of duty on January 7, 2002 (OWCP File No. xxxxxx373). On June 18, 2002 he
underwent authorized corrective osteotomy of the distal right radius with iliac crest bone graft and
distal oblique plate and screw fixation. Appellant resumed work on September 7, 2002 with a
lifting restriction.
On May 30, 2017 appellant claimed a recurrence of disability (Form CA-2a) under OWCP
File No. xxxxxx373. He alleged that on February 3, 2017, while in the performance of duty, he
was tightening a nut and felt a pop in his right wrist, later diagnosed as an extensor pollicis longus
1

Appellant timely requested oral argument before the Board. By order dated December 6, 2018, the Board
exercised its discretion and denied the request as the matter could be adequately addressed based on a review of the
case record. Order Denying Oral Argument, Docket No. 18-1483 (issued December 6, 2018).

tendon rupture caused by friction against the distal oblique fixation plate from the June 28, 2002
authorized surgery. OWCP administratively created a new traumatic injury claim and assigned it
OWCP File No. xxxxxx078.
By decision dated August 17, 2017, under OWCP File No. xxxxxx078, OWCP accepted
that the February 3, 2017 employment incident occurred as alleged, but denied the claim as causal
relationship had not been established.
On September 12, 2017 appellant requested an oral hearing before an OWCP hearing
representative, which was conducted on January 29, 2018. During the hearing, the hearing
representative acknowledged the prior claim under File No. xxxxxx373. Appellant contended that
his physician opined that the February 3, 2017 tendon rupture would not have occurred, but for the
fixation plate used to correct the accepted January 7, 2002 distal right radius fracture under File
No. xxxxxx373.
By decision dated February 28, 2018, under OWCP File No. xxxxxx078, OWCP denied
modification, finding that appellant’s physician attributed the February 3, 2017 tendon rupture to
friction against the fixation plate and not the action of tightening a screw.
The Board finds that this case is not in posture for decision. Pursuant to 20 C.F.R.
§ 501.2(c)(1), the Board’s review of a case is limited to the evidence in the case record that was
before OWCP at the time of its final decision. Decisions on claims are based on the written record,
which may include forms, reports, letters, and other evidence of various types such as photographs,
videotapes or drawings.2 Evidence may not be incorporated by reference, nor may evidence from
an individual’s other case file be used.3 Evidence contained in another of the claimant’s case files
may be used, but a copy of that evidence should be placed into the case file being adjudicated.4
All evidence that forms the basis of a decision must be in that case record of the claimant.5
In adjudicating appellant’s claim under File No. xxxxxx078, OWCP acknowledged the
right wrist fracture with plate fixation accepted under File No. xxxxxx373. However, it discounted
the opinion of appellant’s physician under File No. xxxxxx078 as he attributed the tendon rupture
to friction against the fixation plate rather than tightening a screw on February 3, 2017. Although
the medical evidence in File No. xxxxxx078 clearly implicates the prior injury and authorized
surgery performed under File No. xxxxxx373, OWCP did not combine the two right wrist injury
case records or incorporate the relevant evidence, such as the operative note and any follow-up
reports, into the current claim.6 The adjudication of appellant’s claim under File No. xxxxxx078
requires reference to the medical evidence of record in File No. xxxxxx373. Therefore, the Board
2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a
(June 2011).
3

Id.

4

Id.

5

Id.

6
See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c
(February 2000).

2

is not in a position to make an informed decision regarding appellant’s entitlement to FECA
benefits.7 The case shall be remanded to OWCP to consolidate case File Nos. xxxxxx373 and
xxxxxx078. After OWCP has developed the record consistent with the above-noted directive, it
shall issue a de novo decision regarding appellant’s claim for FECA benefits under File No.
xxxxxx078.
IT IS HEREBY ORDERED THAT the February 28, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: June 20, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

7
L.H., Docket No. 17-1960 (issued August 16, 2018); see K.P., Docket No. 15-1945 (issued February 10, 2016);
M.C., Docket No. 15-1706 (issued October 22, 2015).

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

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

Docket No. 19-1102
Issued: November 7, 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 18, 2019 appellant filed a timely appeal from a December 10, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish bilateral upper
extremity conditions causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On January 16, 2018 appellant, then a 44-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she had developed shoulder pain with numbness in her
shoulder and fingers due to casing and loading mail while in the performance of duty. She
1

5 U.S.C. § 8101 et seq.

indicated that she first became aware of her condition in January 2017 and first attributed it to her
employment activities on January 9, 2018. In a January 16, 2018 narrative statement, appellant
attributed her shoulder condition to heavy mail volume on January 9, 2018 which aggravated her
shoulder and resulted in a painful tearing sensation with numbness in the last three fingers of her
left hand.
In support of her claim, appellant provided a January 9, 2018 note from Thomas Heittich,
a physician assistant, indicating that she was seen in the emergency department on that day and
that he had diagnosed left shoulder pain. Mr. Heittich released appellant to light-duty work as a
result of her left shoulder pain.
In a statement dated January 18, 2017, the employing establishment controverted
appellant’s claim indicating that she had a “preexisting injury.”
On January 20, 2018 appellant accepted a light-duty position as a modified rural carrier
associate.
In a January 29, 2018 development letter, OWCP advised appellant of the deficiencies of
her claim. It requested additional factual and medical evidence from appellant, and provided a
questionnaire for her completion. OWCP afforded her 30 days to respond.
On January 9, 2018 appellant underwent a left shoulder x-ray which was read as no acute
fracture or dislocation. On January 12, 2018 Dr. Christopher Grayson, a Board-certified
orthopedic surgeon, noted appellant’s history of moving heavy mail at work when she developed
significant left shoulder pain that radiated down to her three ulnar fingers. He diagnosed workrelated numbness and tingling in the ulnar nerve distribution as well as left shoulder injury. On
February 14, 2018 appellant underwent a left shoulder magnetic resonance imaging (MRI) scan
which demonstrated distal supraspinatus tendinosis without tear and long head of the biceps
tendinopathy also without tear. In a February 19, 2018 note, Dr. Grayson repeated appellant’s
history of injury and reviewed her diagnostic studies. He diagnosed carpal tunnel and rotator cuff
tendinosis.
On February 22, 2018 appellant submitted a narrative statement responding to OWCP’s
questionnaire and noted that during December 2015 and January 2016 she experienced pain in her
left shoulder, elbow, and wrist when she was working a heavy mail volume. She sought medical
attention on March 10 and 28, 2016 receiving a diagnosis of left shoulder bursitis, and age-related
osteoporosis. Appellant received left shoulder cortisone injections in March 2016, September
2016, and on March 29, 2017. She provided March 29, 2017 notes from Dolores Stefanski, a
registered nurse practitioner.
By decision dated February 28, 2018, OWCP denied appellant’s occupational disease
claim. It accepted her duties as a rural carrier as described, but denied her claim because the
medical evidence of record was insufficient to establish a valid medical diagnosis.
On May 16, 2018 appellant, through her then-representative, requested reconsideration of
the February 28, 2018 decision and (submitted additional medical evidence including diagnostic
studies. In a February 27, 2018 note, Dr. Ioannis Pappou, a Board-certified orthopedic surgeon,
examined appellant due to her left shoulder pain. He noted that appellant was a rural mail carrier
2

and that she had previous left shoulder issues that had been treated with cortisone injections.
Dr. Pappou reported that appellant’s left shoulder pain recurred on January 9, 2018 while
performing repetitive work. Appellant also experienced numbness and tingling in her left arm.
Dr. Pappou diagnosed left arm pain largely from impingement and left hand numbness resulting
from a combination of thoracic outlet and cubital syndromes. He found carpal tunnel syndrome
on diagnostic nerve studies.
On April 19, 2018 Dr. Mark A. Seldes, a Board-certified family practitioner, examined
appellant due to pain in her left shoulder with limited range of motion as well as numbness and
tingling in her left hand in the median nerve distribution. He noted that appellant sought treatment
for her left shoulder in March 2016 and sustained relief through a series of three cortisone
injections. Appellant reported that during December 2017 there was a significant volume increase
in the volume of mail and parcels. She believed that this resulted in increased pain in her left
shoulder as well as numbness and tingling in her left hand. Appellant stopped work on January 9,
2018 due to increased pain. Dr. Seldes diagnosed bilateral shoulder impingement, bilateral carpal
tunnel syndrome, and thoracic outlet syndrome. He described appellant’s work duties of casing,
lifting, and delivering mail and parcels and opined that she had experienced a work-related injury
to her bilateral shoulders, wrists, and hands as well as probable thoracic outlet syndrome due to
employment-related repetitive activities. In May 7, June 25, and July 11, 2018 notes, Dr. Seldes
repeated his diagnoses and noted that appellant’s repetitive work duties put stress on her shoulders,
wrists, and hands which led to the development of impingement of her shoulders bilaterally as well
as bilateral carpal tunnel syndrome symptoms.
In a May 18, 2018 second development letter, OWCP requested that appellant provide
additional information regarding her concurrent employment as a waitress. On May 25, 2018
appellant responded and noted that she worked as a waitress from September through
November 2017 for three days a week, approximately three hours a day, averaging nine hours a
week. Appellant also asserted that she believed her previous shoulder condition in 2015 and 2016
was employment related.
By decision dated July 17, 2018, OWCP modified its February 28, 2018 decision denying
appellant’s claim. It found that the medical evidence of record provided valid medical diagnoses
of bilateral shoulder impingement and bilateral carpal tunnel syndrome. OWCP, however,
continued to deny appellant’s claim as the medical evidence submitted was insufficient to establish
causal relationship between her diagnosed conditions and her employment activities.
On September 13, 2018 appellant, through counsel, requested reconsideration of the
July 17, 2018 OWCP decision. In an August 14, 2018 note, Dr. Seldes reported appellant’s work
as a waitress for three three-hour shifts per week, for the period September through
November 2017. He noted that appellant’s left shoulder condition originally arose prior to her
work as a waitress and that her shoulder conditions worsened again in December 2017 during the
holiday season at the employing establishment after she had stopped waitressing. Dr. Seldes
opined that it was possible that appellant’s work as a waitress may have exacerbated her right
shoulder pain as she was right-hand dominant, but was unlikely to have aggravated her left
shoulder. He further opined that the waitress job contributed mildly to her bilateral shoulder
conditions, but he continued to assert that the heavy volume of mail that appellant handled during
the December 2017 holiday season aggravated her shoulder pain and numbness resulting in her

3

disability from work on January 9, 2017.
diagnoses.

On September 24, 2018 Dr. Seldes repeated his

By decision dated December 10, 2018, OWCP denied modification of the July 17, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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,3 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.4 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.5
In an occupational disease claim, to establish that an injury was sustained in the
performance of duty, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;6 (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition;7 and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.8
Neither the condition becoming apparent during a period of employment, nor the belief of
the employee that the hearing loss was causally related to noise exposure in federal employment,
is sufficient to establish causal relationship.9 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
2

Id.

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

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).
6

R.A., Docket No. 16-1218 (issued November 10, 2016); Michael R. Shaffer, 55 ECAB 386 (2004).

7
C.C., Docket No. 18-1229 (issued March 8, 2019); Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB
468 (2001).
8

T.J., Docket No. 17-1850 (issued February 14, 2018); Beverly A. Spencer, 55 ECAB 501 (2004).

9

C.C., supra note 7.

10

M.B., Docket No. 17-1999 (issued November 13, 2018).

4

is causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical background
of the claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish bilateral upper
extremity conditions causally related to the accepted factors of her federal employment.
Appellant submitted several reports from Dr. Seldes. Beginning on April 19, 2018 and
continuing through August 14, 2018, Dr. Seldes opined that appellant’s bilateral shoulder
conditions were causally related to her work duties. He diagnosed bilateral shoulder impingement,
bilateral carpal tunnel syndrome, and thoracic outlet syndrome. Dr. Seldes described appellant’s
daily work duties including casing, lifting, and delivering mail and parcels. He opined that
appellant sustained an occupational injury to her shoulders, wrists, and hands as a direct result of
her normal work duties as a rural carrier.
The Board notes that Dr. Seldes accurately described appellant’s rural carrier employment
duties and provided an affirmative opinion relative to causal relationship. However, Dr. Seldes
had not provided sufficient explanation, based on medical rationale, of how appellant’s duties
caused or contributed to her bilateral shoulder impingement, bilateral carpal tunnel syndrome, and
thoracic outlet syndrome. He did not explain the mechanism of how casing, lifting, and delivering
mail and parcels repetitively caused or contributed to appellant’s various medical conditions.12
Medical statements merely asserting causal relationship cannot discharge appellant’s burden of
proof.13 The medical evidence must also include rationale explaining how the physician reached
the conclusion he or she is supporting.14
In a February 19, 2018 note, Dr. Grayson repeated appellant’s history of injury diagnosed
carpal tunnel and rotator cuff tendinosis. On February 27, 2018 Dr. Pappou diagnosed left arm
pain largely from impingement and left hand numbness resulting from a combination of thoracic
outlet and cubital syndromes. These reports, however, did not offer an opinion on the causal
relationship between appellant’s diagnosed conditions and her federal employment duties.
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.15
11

T.K., Docket No. 19-0074 (issued May 15, 2019); M.L., Docket No. 18-1605 (issued February 26, 2019).

12
H.A., Docket No. 18-1466 (issued August 23, 2019); M.M., Docket No. 15-0607 (issued May 15, 2015); M.W.,
Docket No. 14-1664 (issued December 5, 2014).
13

H.A., id.; Sedi L. Graham, 57 ECAB 494 (2006).

14

H.A., id.; Beverly A. Spencer, 55 ECAB 501 (2004).

15
K.L., Docket No. 19-0580 (issued August 23, 2019); see L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).

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OWCP also received a number of diagnostic studies. However, the Board has explained
that diagnostic studies lack probative value as they do not address whether the accepted
employment incident caused any of the diagnosed conditions.16
In support of his January 9, 2018 occupational disease claim, appellant also provided a
March 29, 2017 note from a registered nurse practitioner and a January 9, 2018 note from a
physician assistant. These notes are of no probative medical value in establishing appellant’s
claim. Certain healthcare providers such as physician assistants, nurses, nurse practitioners,
physical therapists, and social workers are not considered “physician[s]” as defined under FECA.17
Consequently, their medical findings and/or opinions do not suffice for purposes of establishing
entitlement to FECA benefits.18 As such the March 29, 2017 and January 9, 2018 notes are
insufficient to satisfy appellant’s burden of proof.
As appellant has not provided sufficiently rationalized medical evidence to establish that
bilateral upper extremity conditions were causally related to the accepted factors of her federal
employment, the Board finds that she has not met her burden of proof to establish her occupational
disease claim.
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 of proof to establish bilateral upper
extremity conditions causally related to the accepted factors of her federal employment.

16

N.P., Docket No. 18-0173 (issued August 21, 2019); M.S., Docket No. 19-0587 (issued July 22, 2019).

17

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

18

S.J., Docket No. 17-0783, n.2 (issued April 9, 2018) (a nurse practitioner is not considered a physician under
FECA); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as nurses, physician assistants, and
physical therapists are not competent to render a medical opinion under FECA). Federal (FECA) Procedure Manual,
Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).

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ORDER
IT IS HEREBY ORDERED THAT the December 10, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and

U.S. POSTAL SERVICE, MARGATE POST
OFFICE, Margate City, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-213
Issued: September 21, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 1, 2010 appellant, through his representative, filed a timely appeal from a
July 22, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
regarding a schedule award. Pursuant to the Federal Employees’ Compensation Act (FECA)1
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained more than a 22 percent permanent
impairment of the left upper extremity and a 12 percent impairment of the right lower extremity,
for which he received a schedule award; and (2) whether OWCP used the proper pay rate in
calculating her compensation.
On appeal, counsel asserts a conflict of medical opinion between an attending physician
and OWCP’s medical adviser regarding the appropriate percentage of permanent impairment.
1

5 U.S.C. § 8101 et seq.

He also contends that appellant sustained ratable injuries of the right upper and left lower
extremities. Counsel also argues that OWCP paid appellant compensation at an incorrect pay
rate.
FACTUAL HISTORY -- ISSUE 1
OWCP accepted that on November 30, 2007 appellant, then a 56-year-old custodian,
sustained a left shoulder sprain, left rotator cuff sprain/strain, aggravation of a torn right medial
meniscus and a lumbar sprain when he fell while moving a floor mat. Under a separate claim, it
accepted a January 26, 2006 right meniscal tear requiring arthroscopic surgery on
February 14, 2006. Following the November 30, 2007 injury, appellant used continuation of pay
through January 14, 2008. He returned to modified, sedentary duty for four hours a day on
January 15 to March 7, 2008.
In reports from December 4, 2007 to March 6, 2008, Dr. Glenn Zuck, an attending
osteopath Board-certified in orthopedic surgery, diagnosed a lumbar strain/sprain, medial and
lateral meniscus tears of the right knee and a rotator cuff tear of the left shoulder.2
On January 16 and 18, 2008 Dr. F.J. Delasotta, an attending Board-certified
neurosurgeon, diagnosed post-traumatic bursitis of the left shoulder, a right medial meniscus
tear, anterior and posterior cruciate ligament tears and L4-5 lumbar radiculopathy causally
related to the November 30, 2007 injury.
He submitted progress notes through
September 4, 2008.
Dr. Zuck performed a right knee arthroscopy on April 1, 2008, with partial medial and
lateral meniscectomies, chondroplasty and debridement of a partial tear of the anterior cruciate
ligament. Appellant returned to limited duty for four hours a day on April 14, 2008.
On June 13, 2008 Dr. Zuck performed an arthroscopic debridement of the left rotator cuff
tear, arthroscopic acromioplasty/bursectomy, release of coracoacromial ligament and anterior
labral repair. Appellant returned to part-time light-duty work on June 23, 2008 and to full-time
modified duty on September 22, 2008. Dr. Zuck provided permanent work restrictions on
October 30, 2008, based on an October 16, 2008 functional capacity evaluation reflecting a
sedentary work capacity. He provided periodic progress notes through July 2010.
On April 13, 2009 appellant claimed a schedule award. He submitted a February 6, 2009
impairment evaluation by Dr. Arthur F. Becan, an attending orthopedic surgeon consulting to
counsel. Dr. Becan opined that appellant had attained maximum medical improvement. He

2

A January 10, 2008 magnetic resonance imaging (MRI) scan of the right knee showed anterior and posterior
cruciate ligament tears and a medial meniscal tear. A January 14, 2008 lumbar MRI scan showed a small central
L2-3 protrusion, a broad-based L4-5 disc bulge and L5-S1 epidural lipomatosis impinging multiple nerve roots. A
January 15, 2008 MRI scan of the left shoulder demonstrated a partial thickness tear of the supraspinatus tendon,
labral degeneration and mild acromioclavicular joint arthropathy. A March 21, 2008 lumbar myelogram showed
minimal instability at L4-5 without herniation or spinal stenosis.

2

noted a QuickDash score of 59 percent for the left arm. Referring to the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter,
“A.M.A., Guides”), Dr. Becan found the following impairments of the left upper extremity
according to Table 16-40, Figure 16-43 and Figure 16-463 seven percent for shoulder flexion
limited to 80 degrees, five percent for shoulder abduction at 70 degrees, one percent for shoulder
adduction at 20 degrees, four percent for internal rotation at 30 degrees and one percent for
external rotation at 30 degrees. He added 3 percent impairment due to pain according to Figure
18-1, page 5744 to total 21 percent impairment of the left arm. Regarding the right leg,
Dr. Becan found a 10 percent impairment for medial and lateral meniscectomy and 17 percent
for moderate cruciate laxity according to Table 17-335 and a 9 percent impairment for 4/5 motor
strength deficit in the extensor hallucis longus according to Table 15-16 and Table 15-18.6 He
combined these impairments to equal 32 percent. Dr. Becan added a 3 percent impairment due
to pain according to Figure 18-1, resulting in a 35 percent impairment of the right leg. He also
found a 12 percent impairment of the left leg, 9 percent due to 4/5 motor strength deficit in the
extensor hallucis longus and 3 percent due to pain.
On June 5, 2009 OWCP requested Dr. Becan to submit an impairment rating according to
the sixth edition of the A.M.A., Guides in effect as of May 1, 2009. Dr. Becan did not respond.
On December 18, 2009 OWCP referred the medical record to OWCP’s medical adviser
for an impairment rating of the left upper and right lower extremities according to the sixth
edition of the A.M.A., Guides. In a December 18, 2009 report, OWCP’s medical adviser
reviewed the medical record and Dr. Becan’s February 6, 2009 impairment evaluation.
Regarding the left upper extremity, he opined that, according to Table 15-34, page 475, entitled
Shoulder Range of Motion, flexion limited to 80 degrees equaled a nine percent impairment,
adduction at 70 degrees equaled a six percent impairment, internal rotation at 30 degrees equaled
a four percent impairment, external rotation at 30 degrees equaled a two percent impairment and
adduction at 20 degrees equaled a one percent impairment. OWCP’s medical adviser totaled
these impairments to equal 22 percent impairment of the left upper extremity. He stated that
there was no additional award recommended for the left arm. Regarding the right lower
extremity, OWCP’s medical adviser found that, according to Table 16-3, page 509, the Knee
Regional Grid, partial medial and lateral meniscectomies equaled a class 1, grade C impairment
3

Table 16-40, page 476 of the fifth edition of the A.M.A., Guides is entitled “Pie Chart of Upper Extremity
Motion Impairments Due to Lack of Flexion and Extension of Shoulder.” Figure 16-43, page 477 of the fifth edition
of the A.M.A., Guides is entitled “Pie Chart of Upper Extremity Motion Impairments Due to Lack of Abduction and
Adduction of Shoulder.” Figure 16-46, page 479 of the fifth edition of the A.M.A., Guides is entitled “Pie Chart of
Upper Extremity Motion Impairments Due to Lack of Internal and External Rotation of Shoulder.”
4

Figure 18-1, page 574 of the fifth edition of the A.M.A., Guides is entitled “Algorithm for Rating Pain-Related
Impairment in Conditions Associated with Conventionally Ratable Impairment.”
5

Table 17-33, page 546 of the fifth edition of the A.M.A., Guides is entitled “Impairment Estimates for Certain
Lower Extremity Impairments.” According to Table 17-33, a partial medial or lateral meniscectomy equals a two
percent impairment of the lower extremity.
6

Table 15-16, page 424 of the fifth edition of the A.M.A., Guides, is entitled “Determining Impairment Due to
Loss of Power and Motor Deficits.” Table 15-18, page 424 of the fifth edition of the A.M.A., Guides, is entitled
“Unilateral Spinal Nerve Root Impairment Affecting the Lower Extremity.”

3

with a default value of 10 percent. Dr. Becan observed mild ligamentous laxity, equal to a class
1, grade C impairment with a default value of 10 percent, equaling a Diagnosed Condition
impairment class (CDX) of one. OWCP’s medical adviser found a grade 1 modifier for
Functional History (GMFH) according to Table 16-67 a grade 2 Physical Examination modifier
(GMPE) according to Table 16-78 for moderate anterior cruciate laxity, and a grade 1 modifier
for Clinical Studies (GMCS) according to Table 16-8.9 Using the mathematical formula GMFHCDX + GMPE-CDX + GMCS-CDX, he calculated that (1-1) + (2-1) + (1-1) resulted in a grade
modifier of plus one, adjusting the grade C impairments upward to class D, equaling 12 percent
impairment of the right lower extremity.
By decision dated January 14, 2010, OWCP granted appellant a schedule award for a 22
percent impairment of the left upper extremity and a 12 percent impairment of the right lower
extremity. The period of the award ran from February 6, 2009 to January 29, 2011.
On January 11, 2010 appellant requested an oral hearing, held on May 17, 2010. At the
hearing, he contended that he sustained greater percentages of impairment than those awarded
and that there was a conflict of medical opinion between Dr. Becan and OWCP’s medical
adviser. Following the hearing, counsel submitted a modified-duty job offer appellant accepted
on May 20, 2010.10
By decision dated and finalized July 22, 2010, OWCP’s hearing representative affirmed
OWCP’s January 14, 2010 decision, finding that appellant did not establish that he sustained
more than a 12 percent impairment of his right leg and a 22 percent impairment of his left arm.
OWCP’s hearing representative accorded the weight of the medical evidence to OWCP’s
medical adviser’s interpretation of Dr. Becan’s clinical findings. OWCP’s hearing representative
further found that appellant was compensated at the proper rate, based on his pay rate on
November 30, 2007.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA11 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of the
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
7

Table 16-6, page 516 of the sixth edition of the A.M.A., Guides is entitled “Functional History Adjustment,
Lower Extremities.”
8

Table 16-7, page 517 of the sixth edition of the A.M.A., Guides is entitled “Physical Examination Adjustment -Lower Extremities.”
9

Table 16-8, page 519 of the sixth edition of the A.M.A., Guides is entitled “Clinical Studies Adjustment -Lower Extremities.”
10

OWCP accepted a recurrence of disability commencing May 20, 2010 when appellant’s eight-hour-a-day
light-duty position was withdrawn and he began working four hours a day.
11

5 U.S.C. §§ 8101-8193.

4

single set of tables so that there may be uniform standards applicable to all claimants. The A.M.A.,
Guides has been adopted by OWCP as a standard for evaluation of schedule losses and the Board
has concurred in such adoption.12 For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides, published in 2008.13
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).14 Under the sixth edition, the evaluator identifies the impairment class for the
CDX, which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS.15 The net
adjustment formula is GMFH-CDX + GMPE-CDX + GMCS-CDX.
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a left shoulder sprain, left rotator cuff strain,
aggravation of a torn right medial meniscus and a lumbar sprain. Appellant claimed a schedule
award on April 13, 2009. He submitted a February 6, 2009 impairment rating from Dr. Becan,
an orthopedic surgeon consulting to appellant’s counsel. Dr. Becan utilized the fifth edition of
the A.M.A., Guides then in effect to calculate a 21 percent impairment of the left upper extremity
based on pain and restricted motion and a 32 percent impairment of the right lower extremity due
to ligamentous laxity, weakness and pain. In a June 25, 2009 letter, OWCP requested that he
submit an impairment rating according to the sixth edition of the A.M.A., Guides, but he did not
comply.
OWCP’s medical adviser applied the sixth edition of the A.M.A., Guides to Dr. Becan’s
clinical findings. Regarding the left shoulder, he utilized Table 15-34 to calculate that the
limitations of flexion, abduction, adduction, external and internal rotation equaled a 22 percent
impairment of the left upper extremity with no applicable grade modifiers. Regarding the right
knee, OWCP’s medical adviser relied on Table 16-3, the Knee Regional Grid, to find a class 1,
grade C CDX impairment. He found a grade 1 GMFH, a grade 2 GMPE for anterior cruciate
laxity and a grade 1 GMCS. OWCP’s medical adviser then used the A.M.A., Guides net
adjustment formula GMFH-CDX + GMPE-CDX) + GMCS-CDX to calculate a grade modifier
of plus one, adjusting the grade C CDX to class D, equaling 12 percent impairment of the right
lower extremity.
The Board finds that OWCP’s medical adviser applied the appropriate tables and grading
schemes of the sixth edition of the A.M.A., Guides to Dr. Becan’s clinical findings. Also, there
is no medical evidence of record utilizing the appropriate elements of the sixth edition of the
12

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
14

A.M.A., Guides (6th ed. 2008), page 3, Section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”
15

A.M.A., Guides (6th ed. 2008), pp. 494-531.

5

A.M.A., Guides demonstrating a greater percentage of permanent impairment. Therefore,
OWCP properly relied on its medical adviser’s assessment of a 22 percent impairment of the left
upper extremity and a 12 percent impairment of the right lower extremity.
On appeal, appellant contends that there was a conflict of medical opinion between
Dr. Becan, for appellant and OWCP’s medical adviser, for the government that required
resolution by an impartial medical specialist. As stated, Dr. Becan did not utilize the appropriate
edition of the A.M.A., Guides. OWCP’s medical adviser provided a thorough report correctly
applying the sixth edition of the A.M.A., Guides to Dr. Becan’s clinical findings. The two
opinions are not in conflict as Dr. Becan’s opinion was not based on the correct edition of the
A.M.A., Guides.
On appeal, counsel also asserts that appellant provided unspecified medical evidence
establishing permanent impairment to the right upper extremity and left lower extremity due to
bilateral lumbosacral radiculopathy. In their reports from December 4, 2007 to July 2010,
neither Dr. Zuck, an attending osteopathic physician Board-certified in orthopedic surgery or
Dr. Delasotta, an attending Board-certified orthopedic surgeon, noted an injury or impairment to
the right arm or left leg. The only medical evidence of record addressing a left lower extremity
injury or impairment was Dr. Becan’s February 6, 2009 report. Dr. Becan did not provide
medical rationale explaining how and why the accepted injuries would cause a left lower
extremity injury or impairment. Therefore, his opinion is insufficient to establish that appellant
sustained a left lower extremity injury or impairment due to a work-related condition.16
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
FACTUAL HISTORY -- ISSUE 2
Following the November 30, 2007 injury, appellant used continuation of pay through
January 14, 2008. He returned to modified, sedentary duty for four hours a day on January 15
through March 7, 2008. Appellant did not return to regular duty.
According to the employing establishment’s January 30, 2008 responses on a claim for
compensation (Form CA-7), appellant’s annual pay rate as of November 30, 2007 was
$47,371.00 or $910.98 a week. OWCP issued wage-loss compensation based on the
November 30, 2007 date-of-injury pay rate for intermittent work absences through
March 30, 2008.
OWCP accepted a recurrence of disability commencing April 1, 2008; the date appellant
underwent surgery for the accepted knee injury. It continued to issue compensation at the
November 30, 2007 pay rate for periods of wage loss from April 4 to January 16, 2010.
By decision dated January 14, 2010, OWCP granted appellant a schedule award, to be
paid from February 6, 2009 to January 29, 2011 based on the November 30, 2007 date-of-injury
16

Deborah L. Beatty, 54 ECAB 340 (2003).

6

pay rate. At an oral hearing held on May 17, 2010, appellant asserted that his pay rate on
November 30, 2007 was $50,541.00 and not $47,371.00 as the employing establishment noted.
OWCP’s hearing representative left the record open for 30 days to allow appellant to submit pay
stubs corroborating his date-of-injury pay rate.
OWCP continued to pay compensation at the November 30, 2007 date-of-injury pay rate
through May 21, 2010. It accepted a recurrence of disability commencing May 20, 2010 when
his eight-hour-a-day light-duty position was withdrawn and he began working four hours a day.
By decision dated and finalized July 22, 2010, OWCP’s hearing representative found that
appellant was compensated at the proper rate, based on his November 30, 2007 date-of-injury
pay rate. Appellant did not submit pay stubs as instructed by OWCP’s hearing representative.
LEGAL PRECEDENT -- ISSUE 2
Section 8107 of FECA17 provides that compensation for a schedule award shall be based
on the employee’s monthly pay.18 Section 8105(a) of FECA provides: If the disability is total,
the United States shall pay the employee during the disability monthly monetary compensation
equal to 66 2/3 percent of his monthly pay, which is known as his basic compensation for total
disability.19
Section 8101(4) of FECA defines monthly pay for purposes of computing compensation
benefits as follows: The monthly pay at the time of injury or the monthly pay at the time
disability begins or the monthly pay at the time compensable disability recurs, if the recurrence
begins more than six months after the injured employee resumes regular full-time employment
with the United States, whichever is greater.20 OWCP regulations provide that a recurrence of
disability means an inability to work after an employee has returned to work, caused by a
spontaneous change in a medical condition resulting from a previous injury or illness without a
new or intervening injury.21
In applying section 8101(4), the statute requires OWCP to determine monthly pay by
determining the date of the greater pay rate, based on the date of injury, date of disability or the
date of recurrent disability. The Board has held that rate of pay for schedule award purposes is
the highest rate which satisfies the terms of section 8101(4).22
17

5 U.S.C. §§ 8101-8193.

18

Id. at § 8107.

19

Id. at § 8105(a). Section 8110(b) of FECA provides that total disability compensation will equal three fourths
of an employee’s monthly pay when the employee has one or more dependents. 5 U.S.C. § 8110(b).
20

Id. at § 8101(4). The present case concerns a traumatic injury claim. In an occupational disease claim, the date
of injury is the date of last exposure to the employment factors which caused or aggravated the claimed condition.
Patricia K. Cummings, 53 ECAB 623, 626 (2002).
21

20 C.F.R. § 10.5(x).

22

Robert A. Flint, 57 ECAB 369 (2006).

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ANALYSIS -- ISSUE 2
OWCP accepted that appellant sustained left shoulder, right knee and low back injuries
on November 30, 2007. Appellant did not return to regular duty after the injury. OWCP
accepted an April 1, 2008 recurrence of disability, and continued to issue wage-loss
compensation at the date-of-injury pay rate through January 16, 2010. It granted appellant a
schedule award on January 14, 2010 for the period February 6, 2009 to January 29, 2011.
OWCP also paid the schedule award based on the November 30, 2007 date-of-injury pay rate.
On appeal, counsel contends that appellant was entitled to a recurrent pay rate as of the
April 1, 2008 recurrence of disability, when he underwent surgery for the accepted knee injury
and stopped work. OWCP accepted that appellant sustained a recurrence of disability on
April 1, 2008.23 However, to be entitled to a recurrent pay rate under 5 U.S.C. § 8101(4),
appellant must establish that he sustained a recurrence of disability more than six months after he
returned to regular, full-time employment.
Following the November 30, 2007 injuries, appellant did not resume regular, full-time
employment. He performed part-time sedentary duty through April 1, 2008 and continuing. As
appellant did not resume regular, full-time work after the accepted injuries, he is not entitled to a
recurrent pay rate.24
On appeal, counsel also contends that OWCP did not issue compensation at a correct rate
as his date-of-injury pay rate was $50,541.00 a year, not $47,371.00 as noted by the employing
establishment. At the May 17, 2010 hearing, appellant was afforded 30 days to submit pay stubs
corroborating his date-of-injury pay rate. However, he did not do so. Appellant has therefore
not established that OWCP used an incorrect pay rate in calculating his compensation from
January 15 to March 30, 2008.
CONCLUSION
The Board finds that appellant did not establish that he sustained more than a 22 percent
permanent impairment of the left upper extremity and a 12 percent impairment of the right lower
extremity, for which he received a schedule award. The Board further finds that OWCP issued
compensation at the correct pay rate.

23

Supra note 21.

24

5 U.S.C. § 8101(4); Jeffrey T. Hunter, 52 ECAB 503 (2001); see also L.W., Docket No. 10-1425 (issued
April 26, 2011).

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 22, 2010 is affirmed.
Issued: September 21, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, ADMINISTRATION FOR
CHILDREN & FAMILIES, Chicago, IL,
Employer
__________________________________________

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

Docket No. 18-1381
Issued: April 8, 2019

Case Submitted on the Record

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

JURISDICTION
On July 2, 2018 appellant, through counsel, filed a timely appeal from a January 24, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

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.

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.3
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury on
December 6, 2017 while in the performance of duty, as alleged.
FACTUAL HISTORY
On December 7, 2017 appellant, then a 49-year-old financial operations specialist, filed a
traumatic injury claim (Form CA-1) alleging that on December 6, 2017 at 12:50 p.m., while
teleworking from his residence, he was seated at a desk using a notebook computer, rose to a
standing position, then fell when his left ankle gave way. He stopped work at the time of injury.
Appellant’s supervisor indicated that his duty shift was from 9:00 a.m. to 5:00 p.m. and that the
claimed incident was employment related. In an authorization for examination and/or treatment
(Form CA-16) dated December 6, 2017, the supervisor noted that appellant “fell at his residence
while teleworking and sprained his left ankle.”
By development letter dated December 21, 2017, OWCP advised appellant of the type of
medical and factual evidence needed to establish his claim, including a detailed description of the
December 6, 2017 employment incident specifying what he was doing at the time the injury
occurred, and a narrative report from his physician explaining how and why that event would cause
the claimed injury. It afforded him 30 days to submit the necessary evidence.
In response, appellant submitted a December 7, 2017 report from Dr. Frederick
Richardson, Jr., an attending Board-certified family practitioner. Dr. Richardson opined that
appellant sustained a left ankle sprain on December 7, 2017 when he fell at his residence while
teleworking. He noted that the “cause of this problem is related to work activities.”
Dr. Richardson indicated in a form report dated December 7, 2017 that appellant had sustained a
fracture of the left cuboid bone related to unspecified employment activities.4 He restricted
appellant to sedentary work.
In a report dated December 8, 2017, Dr. Vivek Patel, an attending podiatrist, related that
on December 6, 2017, appellant was seated at his desk while at work and rose to a standing
position. “[Appellant’s] left ankle apparently gave out and he rolled it.” Dr. Patel diagnosed a
2

5 U.S.C. § 8101 et seq.

3

The Board notes that following the January 24, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.
4

Dr. Richardson obtained x-rays of the left foot and ankle on December 7, 2017 which demonstrated a fracture of
the distal lateral aspect of the cuboid bone. In an addendum report dated December 8, 2017, he diagnosed a fracture
of the left cuboid bone.

2

nondisplaced left cuboid fracture and fibromyalgia. He prescribed a controlled ankle movement
(CAM) walking boot.
By decision dated January 24, 2018, OWCP denied the claim finding the December 6, 2017
incident had not occurred in the performance of duty. It accepted that the December 6, 2017
incident occurred as alleged. OWCP found, however, that the evidence of record did not establish
that appellant sustained an injury and/or medical condition that arose during the course of
employment and within the scope of compensable work factors as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed 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 on a traumatic injury or an occupational disease.7
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”8 The phrase
“sustained while in the performance of duty” has been interpreted by the Board to be the equivalent
of the commonly found prerequisite in workers’ compensation law of “arising out of and in the
course of employment.”9 The phrase “in the course of employment” is recognized as relating to
the work situation, and more particularly, relating to elements of time, place, and circumstance.
To arise in the course of employment, an injury must occur at a time when the employee may
reasonably be said to be engaged in the master’s business, at a place where he or she may
reasonably be expected to be in connection with the employment, and while he or she was
reasonably fulfilling the duties of his or her employment or engaged in doing something incidental
thereto.”10 This alone is not sufficient to establish entitlement to benefits for compensability. The
concomitant requirement of an injury “arising out of the employment” must be shown, and this
encompasses not only the work setting, but also a causal concept, the requirement being that the
employment caused the injury.11

5

Supra note 2.

6

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

7

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

8

5 U.S.C. § 8102(a).

9

A.K., Docket No. 16-1133 (issued December 19, 2016); Charles Crawford, 40 ECAB 474, 476-77 (1989).

10

D.L., 58 ECAB 667 (2007); Mary Keszler, 38 ECAB 735, 739 (1987).

11
M.T., Docket No. 16-0927 (issued February 13, 2017); Vitaliy Y. Matviiv, 57 ECAB 193 (2005); Eugene G. Chin,
39 ECAB 598 (1988).

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OWCP’s procedures address off-premises injuries sustained by workers who perform
service at home. It provides:
“Ordinarily, the protection of [FECA] does not extend to the employee’s home, but
there is an exception when the injury is sustained while the employee is performing
official duties. In situations of this sort, the critical problem is to ascertain whether
at the time of injury the employee was in fact doing something for the employer.
The official superior should be requested to submit a statement showing:
(a) What directives were given to or what arrangements had been made with
the employee for performing work at home or outside usual working hours;
(b) The particular work the employee was performing when injured; and
(c) Whether the official superior is of the opinion the employee was
performing official duties at the time of the injury, with appropriate
explanation for such opinion.”12
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted that on December 6, 2017, during a scheduled telework shift, while sitting
at his desk using a notebook computer, appellant rose to a standing position and his left ankle gave
way, causing him to fall and sustain a diagnosed left ankle injury. However, it denied the claim
finding that the available evidence of record was insufficient to establish that appellant sustained
the injury while in the performance of duty. Appellant contends that his injury is compensable
because he was injured while working at his residence under a telework agreement with the
employing establishment. In his Form CA-1, appellant related that on December 6, 2017 he was
working on a notebook computer and when he stood his left ankle gave way and he fell, however,
he did not submit a detailed account of the alleged incident or any additional corroborating factual
evidence describing how he sustained an injury on that date. The Board has found that such a
vague recitation of facts does not support a claimant’s allegation that a specific event occurred to
cause a work-related injury.13
By letter dated December 21, 2017, OWCP informed appellant that the evidence it received
was insufficient to establish his claim as it lacked a factual basis description of the employment
incident and how it resulted in an injury. It asked appellant to complete an attached questionnaire.
However, at the time of OWCP’s decision on January 24, 2018 the record did not contain his

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(f)(1) (August 1992);
R.H., Docket No. 15-1339 (issued June 13, 2016); J.J., Docket No. 15-1365 (issued September 23, 2015); J.K., Docket
No. 15-0198 (issued March 10, 2015). See also S.F., Docket No. 09-2172 (issued August 23, 2010).
13

See M.C., Docket No. 18-1278 (issued March 7, 2019); M.B., Docket No. 11-1785 (issued February 15, 2012).

4

response. As appellant has not provided a sufficient factual statement describing the December 6,
2017 incident, he has not met his burden of proof to establish his claim.14
OWCP procedures provide coverage under FECA for off-premises workers who perform
services from home for their employing establishment.15 OWCP has provided that employees
directly engaged in the performance of their duties during authorized telework are covered under
FECA.16 In these cases, the procedures direct OWCP how to determine whether the employee was
performing assigned duties, was engaged in an activity reasonably incidental to the assignment, or
had deviated from the assignment and was engaged in a personal activity.17 No such development
was undertaken in this claim.
The Board finds that OWCP failed to properly adjudicate whether appellant’s off-premises
activity was incidental to his employment duties at the time of the claimed injury on
December 6, 2017.18 As noted, OWCP procedures provide that the official superior should
provide a statement regarding the details of the matter and, if such statements are not sufficiently
detailed, additional statements should be obtained from others in a position to know the
circumstances.19 Although appellant’s supervisor provided generalized statements on the Form
CA-1 and an authorization for examination and/or treatment (Form CA-16) dated December 6,
2017, the Board finds these statements insufficiently detailed to constitute proper development of
the factual basis of the claim.
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of establishing entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.20 Accordingly, the
January 24, 2018 decision will be set aside and the case remanded for further development,
including, but not limited to obtaining and analyzing evidence as to whether appellant was
reasonably fulfilling the duties of his federal employment or engaged in activities incidental thereto
on December 6, 2017.

14

S.J., Docket No. 17-1798 (issued February 23, 2018).

15

Federal (FECA) Procedure Manual, supra note 12 at Chapter 2.804.5(a)(4). See also S.F., supra note 12; see
Mona M. Tates, 55 ECAB 128 (2003); Julietta M. Reynolds, 50 ECAB 529 (1999).
16

Id.

17

Federal (FECA) Procedure Manual, supra note 12 at Chapter 2.804.5(b); R.H., supra note 12.

18

R.H., supra note 12.

19

Id.

20

Id., see Phillip L. Barnes, 55 ECAB 426 (2004); Virginia Richard (Lionel F. Richard), 53 ECAB 430 (2002).

5

Following this and any other development deemed necessary, OWCP shall issue a de novo
decision on the merits of appellant’s claim.21
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 24, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: April 8, 2019
Washington, DC

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

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

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

21

The Board notes that the employing establishment issued a Form CA-16 on December 6, 2017. A properly
completed CA-16 form authorization may constitute a contract for payment of medical expenses to a medical facility
or physician, when properly executed. The form creates a contractual obligation, which does not involve the employee
directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim. The period
for which treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated
earlier by OWCP. See 20 C.F.R. § 10.300(c); P.R., Docket No. 18-0737 (issued November 2, 2018); N.M., Docket
No. 17-1655 (issued January 24, 2018), Tracy P. Spillane, 54 ECAB 608 (2003).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
AGENCY FOR INTERNATIONAL
DEVELOPMENT, FIELD SUPPORT UNIT,
Mogadishu, Somalia, Employer
__________________________________________

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Appearances:
P. Chinedu Nwaneri, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1708
Issued: March 15, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 20, 2006 appellant filed a timely appeal of an April 20, 2006 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant was entitled to
compensation for wage loss commencing April 14, 1998; and (2) whether the Office properly
determined the pay rate for compensation purposes.
FACTUAL HISTORY
The case was before the Board on a prior appeal.1 Appellant was a driver for the
employing establishment when he suffered gunshot wounds to the arms on December 14, 1990.
1

Docket No. 04-1620 (issued December 27, 2004).

He received treatment at a Somalian hospital, then went to a refugee camp and eventually
immigrated to the United States in 1993. The Office determined in a March 11, 2004 decision
that appellant was entitled to wage-loss compensation from April 14, 1998 to April 19, 2002, and
that, under Somali law, he was entitled to $3,361.00. The Board remanded the case for further
development on several issues. The medical evidence did not clearly establish the period of
employment-related disability. In addition, there remained the issue as to the amount of
compensation. Appellant was not a resident of the United States on December 14, 1990, but had
immigrated to the United States and apparently became a resident in 1995. If appellant was
owed compensation for a period when he was not a U.S. citizen or resident, it may be appropriate
to pay benefits under local law pursuant to 5 U.S.C. § 8137. The complete history of the case is
contained in the Board’s prior decision and is incorporated herein by reference.
The Office referred appellant to Dr. Edward Kelly, an orthopedic surgeon, for a second
opinion examination. In a report dated April 28, 2005, Dr. Kelly provided a history and results
on examination. He diagnosed status post gunshot wounds of the right forearm and left upper
arm, with fracture of the right proximal radius. Dr. Kelly indicated that appellant was
permanently disabled. With regard to the period of disability, Dr. Kelly stated, “He has not
worked since 1998 and I do not believe he was able to work in his position as a chauffeur or any
other driving occupation. That type of work demands full use of forearm rotation that he does
not have.”
In a letter dated June 28, 2005, appellant’s representative stated that appellant last worked
in February 1998. He indicated that appellant did not remember the specific date. The Office
advised appellant by letter dated July 28, 2005 that he would be entitled to compensation for
wage loss from the last day he worked, if he provided the specific date.
By decision dated September 13, 2005, the Office determined that appellant was entitled
to compensation for wage loss from April 14, 1998. The Office found that, since appellant
became as U.S. resident in 1995, he would not be paid compensation pursuant to Somali law.
According to the Office, the pay rate on the date of injury was $21.81 per week. With respect to
a schedule award, the Office made additional findings.
Appellant requested a hearing before an Office hearing representative, which was held on
January 19, 2006. He indicated that after he was injured he did not return to work and the
American Embassy evacuated on January 27, 1991. After appellant left the hospital, he went to
Kenya and lived in a refugee camp. He then came to the United States in 1993, and in 1994 he
began working in various jobs, including meat packing, cashier and small truck driver.
Appellant indicated that the last job he had in 1998 was as an automobile mechanic; he
underwent surgery in 1998 and his condition deteriorated.
By decision dated April 20, 2006, the hearing representative affirmed the September 13,
2005 decision with respect to the period of disability and pay rate. The case was remanded for
further development on the schedule award issues.

2

LEGAL PRECEDENT
The factors that comprise the evaluation of medical evidence include the opportunity for
and the thoroughness of physical examination, the accuracy and completeness of the physician’s
knowledge of the facts and medical history, the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion.2 When the Office refers a claimant for
a second opinion evaluation and the report does not adequately address the relevant issues, the
Office should secure an appropriate report on the relevant issues.3
ANALYSIS
With respect to the period of disability claimed in this case, the Office relied on the
opinion of Dr. Kelly, the second opinion examiner. Dr. Kelly, however, provided only a brief
statement that appellant “has not worked since 1998 and I do not believe he was able to work” as
a driver. He did not discuss appellant’s work history or provide additional explanation. The
history of the case indicated that appellant received gunshot wounds, was hospitalized, then
immigrated to Kenya and eventually came to the United States and began working in 1994. A
physician’s opinion on the total period or periods of disability must address the factual and
medical history and clearly explain whether appellant was disabled during the period
December 14, 1990 through 1998. It is understood that under the circumstances of this case
there is little medical evidence prior to appellant’s treatment in 1998, but the issue is a medical
issue and a physician must provide a rationalized medical opinion based on the available
evidence.
The case will be remanded for the Office to secure a supplemental report from Dr. Kelly
on the issue of disability for the date-of-injury position. The statement of accepted facts should
reflect the testimony of appellant regarding the factual history after December 14, 1990 and his
work history in the United States. The Board notes that, if appellant had disability prior to
becoming a U.S. resident in 1995, this would again raise the issue of compensation pursuant to
local law as opposed to benefits under the Federal Employees’ Compensation Act. The Office
should make appropriate findings in this regard as discussed in the Board’s prior decision.
It is also noted that the date disability began is relevant to the issue of pay rate for
compensation purposes. The September 13, 2005 decision found that the pay rate was based on
the date of injury, although at the same time it found the date disability began was
April 14, 1998. Section 8101(4) provides monthly pay is the pay at the time of injury or the date
disability began, whichever is greater. On remand the Office should ensure that findings
regarding pay rate are consistent with section 8101(4) and the relevant medical evidence, and are
documented by the evidence of record.

2

Anna M. Delaney, 53 ECAB 384 (2002).

3

See Robert Kirby, 51 ECAB 474, 476 (2000); Mae Z. Hackett, 34 ECAB 1421 (1983); Richard W. Kinder, 32
ECAB 863 (1981).

3

CONCLUSION
The case is remanded to the Office for additional development of the medical evidence
regarding the total period of disability.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 20, 2006 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: March 15, 2007
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

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Appearances:
Desmond Neurohr, for the appellant
Office of Solicitor, for the Director

Docket No. 06-573
Issued: February 6, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 10, 2006 appellant filed an appeal of a decision of the Office of Workers’
Compensation Programs dated November 21, 2005, denying his claim for a traumatic injury
sustained on June 26, 2005. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained an injury on June 26,
2005 while in the performance of duty.
FACTUAL HISTORY
On June 26, 2005 appellant, then a 49-year-old clerk, filed a traumatic injury claim
alleging that on June 26, 2005 he sustained an injury to his lower back and right leg when he
slipped and fell on a banana peel in a stairwell.
By letter dated June 29, 2005, the employing establishment challenged his claim based on
the time, date and place of injury. The employing establishment noted that appellant was not on

duty at the time of the alleged injury and the injury occurred at a facility at which appellant was
no longer employed.
On June 28, 2005 the Office received medical documents consisting of appellant’s triage
assessment, emergency physician record and a work status report.
In a letter dated July 18, 2005, the Office informed appellant that further information was
needed, specifically, evidence to support that appellant was injured while performing an
employment duty. In response, appellant submitted emergency reports, a written statement
describing the incident and a doctor’s prescription1 which stated that appellant was disabled and
would not return to work for another month.
In an August 18, 2005 decision, the Office denied appellant’s claim on the grounds that
the evidence was insufficient to establish that the injury arose out of and in the course of
employment.
In a September 19, 2005 letter, appellant requested reconsideration. Accompanying his
letter was a copy of his written statement describing the incident. Appellant stated that he came
to the employing establishment to take an examination for a job for which he had applied. An
investigative memorandum dated August 24, 2005 from the United States Postal Inspection
Service with exhibits was also submitted to the Office.
By decision dated November 21, 2005, the Office found that the evidence submitted did
not establish that the injury occurred in the performance of duty and affirmed the August 18,
2005 decision.
LEGAL PRECEDENT
In providing for a compensation program for federal employees, Congress did not
contemplate an insurance program against each and every injury, illness or mishap that might
befall an employee contemporaneous or coincidental with his employment; liability does not
attach merely upon the existence of an employee/employer relation.2 Instead, Congress provided
for the payment of compensation for disability or death of an employee resulting from personal
injury sustained while in the performance of duty. The Board has interpreted the phrase while in
the performance of duty to be the equivalent of the commonly found prerequisite in workers’
compensation law of rising out of and in the course of employment.3 In addressing this issue, the
Board has stated in the compensation field, it is generally held that an injury arises out of and in
the course of employment when it takes place: (a) within the period of employment; (b) at a
place where the employee may reasonably be expected to be in connection with the employment;
(c) while the employee is reasonably fulfilling the duties of the employment or engaged in doing
something incidental thereto; and (d) when it is the result of a risk involved in the employment or
1

The signature is illegible.

2

Bruce A. Henderson, 39 ECAB 692 (1988); Minnie M. Huebner, 2 ECAB 20 (1948).

3

Timothy K. Burns, 44 ECAB 125 (1992); Jerry L. Sweeden, 41 ECAB 721 (1990).

2

the risk is incidental to the employment or to the conditions under which the employment is
performed.4
Under the Federal Employees’ Compensation Act,5 an injury sustained by an employee,
having fixed hours and place of work, while going to or coming from work is generally not
compensable because it does not occur in the performance of duty. This is in accord with the
weight of authority under workers’ compensation statutes that such injuries do not occur in the
course of employment. However, many exceptions to the rule have been declared by courts and
workers’ compensation agencies. One such exception almost universally recognized is the
premises rule: an employee going to or coming from work is covered under workers’
compensation while on the premises of the employer. This exception includes a reasonable
interval before and after official working hours while the employee is on the premises engaging
in preparatory or incidental acts.6 What constitutes a reasonable interval depends not only on the
length of time involved, but also on the circumstances occasioning the interval and nature of the
employment activity. The mere fact that an injury occurs on an industrial premises following a
reasonable interval after working hours is not sufficient to bring the injury within the
performance of duty. The employee must also show that the injury resulted from some risk
incidental to the employment and that the employing establishment received some substantial
benefit from the activity involved.7
In determining whether an injury occurs in a place where the employee may reasonably
be or constitutes a deviation from the course of employment, the Board will focus on the nature
of the activity in which the employee was engaged and whether it is reasonably incidental to the
employee’s work assignment or represented such a departure from the work assignment that the
employee becomes engaged in personal activities, unrelated to his or her employment. The
Board has noted that the standard to be used in determining that an employee has deviated from
his or her employment requires a showing that the deviation was aimed at reaching some specific
personal objective.8

4

Barbara D. Heavener, 53 ECAB 142 (2001); Angela J. Burgess, 53 ECAB 568 (2002).

5

5 U.S.C. §§ 8101-8193.

6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Industrial Premises, Chapter
2.804.4a. (August 1992).
7

Narbik A. Karamian, 40 ECAB 617 (1989).

8

Rebecca LeMaster, 50 ECAB 254 (1999).

3

ANALYSIS
Appellant’s injury did not occur at a time when one could reasonably say he was engaged
in his employer’s business. The alleged injury in this case occurred at an employing
establishment facility. This factor alone is not sufficient to establish entitlement to benefits for
compensation. The injury must have arisen out of and been in the course of employment. In
order to arise out of employment, the facts must show some substantial employer benefit or
requirement that gave rise to the injury.9
The Board finds that appellant was at the employing establishment facility solely for
personal reasons. On the date of the injury, June 26, 2005, appellant was not scheduled for work.
Additionally, he did not work at the facility where he was injured. Appellant was present at the
facility to make an appointment with the Postal Employee Development Center to take an
examination for a new position. The center was closed at the time appellant arrived. Appellant
states that he was not directed by his supervisor to go to the facility. He did not have an
appointment, did not call ahead of time and was stopping by the facility because he lived close
by. Appellant was not at the facility to perform his employment duties nor was he required to be
there. Thus, his activity at the facility was a personal errand and not a requirement of his
employment.10
The Board finds that appellant’s injury did not arise in the course of his employment. In
the absence of time and place, the burden of establishing work connection rests solely with
activity. There is no evidence that the employing establishment expressly or impliedly required
appellant’s presence at the time of the injury. Appellant’s activity at the time of the injury was
not required as a condition of his employment, nor was he involved in any preparatory activity
reasonably incidental to his employment activities as he was not scheduled to work at that time
or place.
CONCLUSION
The Board finds that appellant has not established that he sustained injury on June 26,
2005 arising in the course of his federal employment.

9

Catherine Callen, 47 ECAB 192 (1995).

10

Paula G. Johnson, 53 ECAB 722 (2002) (the claimant was injured while at the employing establishment on her
scheduled day off to remove plants from her office, a personal errand unrelated to her work duties).

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ORDER
IT IS HEREBY ORDERED THAT the November 21, 2005 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

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

Docket No. 11-2055
Issued: June 4, 2012

Case Submitted on the Record

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

JURISDICTION
On September 8, 2011 appellant, through her attorney, filed a timely appeal from
March 23 and July 21, 2011 merit decisions of the Office of Workers’ Compensation Programs
(OWCP), which denied her occupational disease claim. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that her right knee
condition was causally related to factors of her employment.
On appeal, appellant’s attorney contends that the July 21, 2011 OWCP decision is
contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 20, 2010 appellant, then a 47-year-old rural mail carrier, filed an
occupational disease claim alleging that a tendon in her right knee snapped and hurt severely
when she stood and turned to sort mail. She explained prior surgery in 2007 for a right meniscus
tear that she sustained while she was delivering a large package and turned to close her car door.2
Appellant stopped work on December 16, 2010.
On January 14, 2011 OWCP advised appellant that the evidence submitted was
insufficient to establish her claim. It requested that she provide a factual statement describing
the employment factors that contributed to her right knee condition and a medical report from a
physician explaining how her diagnosed medical condition was causally related to her federal
employment duties.
Appellant submitted a description of her position as a rural carrier. She also submitted
several handwritten records from Dr. Martin Russo, a Board-certified family practitioner, who
indicated that she suffered from right knee pain.
In a March 3, 2010 radiology report, Dr. E.T. Ostermann, a Board-certified diagnostic
radiologist, noted appellant’s complaints of knee pain. He observed narrowing of the medial
joint space with spurring and moderate hypertrophic spurring and narrowing at the
patellofemoral joint. Dr. Ostermann diagnosed moderate osteoarthritic changes.
In a January 20, 2011 report, Dr. Brian Hood, a Board-certified orthopedic surgeon,
stated that he examined appellant for complaints of right knee pain since 2007. The examination
revealed intact skin with no erythema, open sores or palpable lymphadenopathy. No signs or
symptoms of infection or gross muscular wasting were seen to either lower extremity.
McMurray’s and Apley grind tests were positive. Dr. Hood diagnosed right knee pain and
possible meniscus tear and recommended that appellant undergo a magnetic resonance imaging
(MRI) scan test.
In a January 25, 2011 MRI scan report, Dr. John Meyer, a Board-certified diagnostic
radiologist, noted that appellant’s medial meniscus was partially extruded. He observed
abnormal morphology and increased signal of the majority of her medial meniscus, which could
be related to previous meniscal surgery. Dr. Hood found moderate to large joint effusion and
medial patellar plica. He reported diffuse full-thickness loss of articular cartilage and
full-thickness or high-grade partial-thickness loss of medial facet patellar articular cartilage.
Large osteophytes were seen in the medial compartment and moderate-sized osteophytes were
seen in the patellofemoral compartment.
In a February 1, 2011 duty status report, Dr. Russo noted that appellant was unable to
kneel and requested that she use a stool at work. He listed a history that on April 8, 2007 she
turned to get a package out of her vehicle and her knee snapped. Dr. Russo authorized appellant
to work eight hours per day with restrictions.
2

The record reflects that appellant sustained an employment-related right knee injury on August 9, 2007, which
was accepted for a right knee medial meniscus tear. (File No. xxxxxx725).

2

In a February 3, 2011 report, Dr. Hood stated that the MRI scan revealed a partial tear to
appellant’s medial meniscus and degenerative arthritis in the medial compartment of her knee.
He reported that this was consistent with her having pain in her knees since 2007. Upon
examination, Dr. Hood observed tenderness on palpation in appellant’s right knee medial joint
line. McMurray and Apley grind tests were positive with pain medially. He diagnosed right
knee degenerative arthritis with left knee synovitis.
In a February 8, 2011 statement, appellant explained that in 2007 she tore her meniscus
while on duty and underwent surgery. Her physician informed her that she would feel a
snapping behind her right knee once in awhile. Appellant noted that she was unable to stand for
too long or her knee would snap really badly. She explained that she was told to file an
occupational disease claim.
In a decision dated March 23, 2011, OWCP denied appellant’s claim finding insufficient
medical evidence to establish that her right knee condition was causally related to factors of her
federal employment.
On April 29, 2011 appellant submitted a request for reconsideration.
In a March 10, 2011 report, Dr. Hood stated that appellant was reevaluated for bilateral
knee pain and diagnosed of degenerative arthritis. He noted limited range of motion in both
lower extremities. Appellant’s ligaments appeared intact to varus and valgus stress testing and
anterior and posterior drawer testing bilaterally. She was tender to palpation along the medial
joint line bilaterally, but no effusion or gross muscular wasting was observed. Dr. Hood
recommended appellant proceed with right total knee arthroplasty.
By decision dated July 21, 2011, OWCP denied modification of its March 23, 2011
decision, finding that the medical evidence failed to demonstrate that her right knee condition
was causally related to her employment duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of her claim by the weight of the reliable, probative and substantial evidence3
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.4 In an occupational disease claim, appellant’s burden requires submission of the
following: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is

3

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

4

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).

3

claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
specified employment factors or incident.7 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 factors identified by the
employee.8
The mere fact that work activities may produce symptoms revelatory of an underlying
condition does not raise an inference of an employment relation. Such a relationship must be
shown by rationalized medical evidence of a causal relation based upon a specific and accurate
history of employment conditions which are alleged to have caused or exacerbated a disabling
condition.9
ANALYSIS
The record reflects that appellant sustained a previous knee injury in August 2007 and
returned to work without restrictions. She noted a continuing right knee condition since the 2007
injury that was aggravated by her duties as a mail rural carrier. Appellant contended that her
right knee snapped when she stood and turned to sort mail. OWCP accepted that she worked as
a rural mail carrier, but denied her claim finding insufficient medical evidence to establish that
her right knee condition causally related to her employment duties. The Board finds that
appellant failed to provide sufficient medical evidence to establish that she sustained a right knee
condition as a result of her rural route carrier duties.
In support of her claim, appellant submitted reports from Dr. Hood, who noted her
history and conducted an examination. Dr. Hood observed intact skin without erythema, open
sores and palpable lymphadenopathy. He also noted tenderness on palpation in appellant’s right
knee medial joint line. Dr. Hood diagnosed right knee degenerative arthritis with left knee
synovitis. Although he provided a diagnosis, he failed to provide an opinion on the cause of
appellant’s condition. While Dr. Hood noted her history of a previous knee injury in 2007, he
5

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB
623 (2000).
6

I.R., Docket No. 09-1229 (issued February 24, 2010); W.D., Docket No. 09-658 (issued October 22, 2009); D.I.,
59 ECAB 158 (2007).
7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

8

D.S., Docket No. 09-860 (issued November 2, 2009); B.B., 59 ECAB 234 (2007); Solomon Polen, 51 ECAB
341 (2000).
9

Patricia J. Bolleter, 40 ECAB 373 (1988).

4

offered no medical explanation as to how the 2007 injury contributed to her current condition;
nor did he describe her specific duties as a rural mail carrier or explain how standing and turning
to sort mail caused or contributed to appellant’s right knee condition in 2000. The Board has
held that medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.10 Thus, Dr. Hood’s
medical reports are insufficient to establish appellant’s claim.
The additional diagnostic reports by Dr. Ostermann and Dr. Meyer and Dr. Russo’s duty
status reports are likewise insufficient to establish appellant’s claim as none of the reports
contain any opinion regarding the cause of her right knee condition.
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 of proof in establishing that she
sustained a right knee condition causally related to factors of her employment.

10

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the July 21 and March 23, 2011 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 4, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6