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

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

Docket No. 17-0878
Issued: June 14, 2018

Case Submitted on the Record

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

JURISDICTION
On March 13, 2017 appellant filed a timely appeal from a September 30, 2016 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 more than 34 percent
permanent impairment of each lower extremity, for which he previously received schedule awards.
FACTUAL HISTORY
On January 2, 2001 OWCP accepted that appellant, then a 40-year-old city letter carrier,
sustained an occupational disease in the form of aggravation of degenerative lumbar disc disease

1

5 U.S.C. § 8101 et seq.

due to walking, lifting heavy mail, and carrying a heavy mailbag at work. On August 8, 2001
appellant underwent OWCP-approved laminectomy at L3-4 and L4-5 and foraminotomy at L3.
On November 9, 2004 appellant received a schedule award for five percent permanent
impairment of each lower extremity. The award was calculated under the standards of the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).2 On December 27, 2005 appellant received a schedule award for eight percent
permanent impairment of each lower extremity. The award also was calculated under the standards
of the fifth edition of the A.M.A., Guides.
On April 4, 2013 appellant received a schedule award for 21 percent permanent impairment
of each lower extremity. The award was calculated under the standards of the sixth edition of the
A.M.A., Guides.3 Appellant had then been compensated for a total permanent impairment of each
lower extremity of 34 percent.
On April 7, 2015 appellant filed a claim for compensation (Form CA-7) seeking an
increased schedule award due to his accepted employment injury.
Appellant submitted a September 17, 2014 report in which Dr. John W. Ellis, an attending
Board-certified family practitioner, determined that appellant had 38 percent permanent
impairment of each lower extremity under the sixth edition of the A.M.A., Guides. Dr. Ellis noted
that, in reaching this determination, he referenced The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter).4
In April 2015, OWCP referred appellant’s case to Dr. Morley Slutsky, a Board-certified
occupational medicine physician serving as an OWCP medical adviser. It requested that
Dr. Slutsky review the medical evidence of record, including Dr. Ellis’ September 17, 2014 report,
and provide an opinion on the extent of appellant’s permanent impairment.
In an April 24, 2015 report, Dr. Slutsky asserted that Dr. Ellis had consistently documented
findings of L4, L5, and S1 nerve root deficits which were not supported by objective diagnostic
test results of the findings of other physicians of record. He recommended that appellant be
referred for a second opinion examination with a Board-certified orthopedic surgeon.
On June 5, 2015 OWCP wrote to Dr. Ellis and forwarded him a copy of Dr. Slutsky’s
April 24, 2012 report. It afforded Dr. Ellis 30 days to review the report and provide his response
to address the issues raised by Dr. Slutsky. On July 13, 2015 OWCP received a June 29, 2015
report in which Dr. Ellis indicated that his opinion remained the same as expressed in his
September 17, 2014 report.
In October 2015, OWCP determined that there was a conflict in the medical opinion
evidence between Dr. Ellis and Dr. Slutsky regarding the extent of permanent impairment of
2

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

3

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

4

See infra note 12.

2

appellant’s lower extremities. It referred appellant to Dr. Julie Wehner, a Board-certified
orthopedic surgeon, for an impartial medical examination and an opinion regarding his permanent
impairment.
In a November 4, 2015 report, Dr. Wehner discussed appellant’s factual and medical
history and detailed the findings of the physical examination she conducted on that date. She noted
that she was evaluating the permanent impairment of appellant’s lower extremities by using Table
16-12 (Peripheral Nerve Impairment) beginning on page 534 of the sixth edition of the A.M.A.,
Guides. Dr. Wehner indicated that she did not find that appellant had a speciﬁc sensory or motor
deficit in a speciﬁc nerve distribution as his reported pain was not in any speciﬁc nerve distribution.
Appellant complained of circumferential numbness and tingling and pain down both legs, but this
pattern was nonanatomic in nature. Dr. Wehner indicated that appellant exhibited self-limited
behaviors on ﬂexion/extension and heel and toe walking, as well as his subjective complaints with
Waddell testing and therefore his subjective complaints were not veriﬁable. She also noted that a
January 16, 2013 electromyogram (EMG) testing of the lower extremities revealed normal results.
Dr. Wehner concluded that appellant had zero percent permanent impairment of his lower
extremities at the present time.
In January 2016, OWCP referred appellant’s case to a different OWCP medical adviser,
Dr. Arnold T. Berman, a Board-certified orthopedic surgeon. It requested that Dr. Berman review
the medical evidence of record, including Dr. Wehner’s November 4, 2015 report, and provide an
opinion on appellant’s permanent impairment.
In a January 29, 2016 report, Dr. Berman indicated that he had reviewed Dr. Wehner’s
November 4, 2015 report, but noted that she used the improper standards when she used Table 1612 on the sixth edition of the A.M.A., Guides without applying the standards of The Guides
Newsletter. He determined that appellant had three percent permanent impairment of each lower
extremity by applying the standards of The Guides Newsletter. Dr. Berman noted that he had mild
sensory/pain deficit with a grade C default value of one percent permanent impairment for the left
and right L4 nerve roots, mild sensory/pain deficits with a grade C default value of one percent for
the left and right L5 nerve roots, and mild sensory/pain deficits with a grade C default value of one
percent for the left and right S1 nerve roots.5 He found that appellant reached maximum medical
improvement (MMI) by November 4, 2015, the date of Dr. Wehner’s examination.
On April 28, 2016 OWCP provided Dr. Wehner with a copy of Dr. Berman’s January 29,
2016 report and afforded her 30 days to submit an impairment evaluation using The Guides
Newsletter. In a May 18, 2016 report, Dr. Wehner continued to opine that appellant had zero
percent permanent impairment of his lower extremities.
On May 25, 2016 OWCP forwarded Dr. Wehner’s May 18, 2016 report to Dr. Berman for
review and response. In his June 1, 2016 report, Dr. Berman opined that both Dr. Ellis and
Dr. Wehner have misapplied the sixth edition of the A.M.A., Guides and The Guides Newsletter.
He essentially repeated the evaluation he provided in his January 29, 2016 report and continued to
opine that appellant had three percent permanent impairment of each lower extremity.
5

Dr. Berman further found that there was no adjustment from these default values.

3

By decision dated September 30, 2016, OWCP determined that appellant did not have more
than 34 percent permanent impairment of each lower extremity, for which he previously received
schedule awards. It discussed Dr. Berman’s January 29 and June 1, 2016 impairment ratings,
finding three percent permanent impairment of each lower extremity, and indicated that his opinion
constituted the weight of the medical opinion evidence. Therefore, the current medical evidence
of record did not show that appellant had more than 34 percent permanent impairment of each
lower extremity.6
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.7 FECA, however,
does not specify the manner by which the percentage loss of a member, function or organ shall be
determined. To ensure consistent results and equal justice under the law, good administrative
practice requires the use of uniform standards applicable to all claimants. The implementing
regulations have adopted the A.M.A., Guides as the appropriate standard for evaluating schedule
losses.8 Effective May 1, 2009, schedule awards are determined in accordance with the sixth
edition of the A.M.A., Guides (2009).9
Neither FECA nor the regulations provide for the payment of a schedule award for the
permanent loss of use of the back/spine or the body as a whole.10 However, a schedule award is
permissible where the employment-related spinal condition affects the upper and/or lower
extremities.11 The sixth edition of the A.M.A., Guides (2009) provides a specific methodology for
rating spinal nerve extremity impairment.12 It was designed for situations where a particular
jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the spine.
The FECA-approved methodology is premised on evidence of radiculopathy affecting the upper

6

OWCP indicated that a separate decision finding an overpayment of compensation would be issued. However, it
did not issue a preliminary overpayment determination or final overpayment decision prior to appellant’s filing of the
present appeal. Therefore, the present appeal does not concern an overpayment issue. See 20 C.F.R. §§ 501.2(c) and
501.3.
7

5 U.S.C. § 8107(c). For a total or 100 percent loss of use of a leg an employee shall receive 288 weeks’
compensation. 5 U.S.C. § 8107(c)(2). With respect to a total or 100 percent loss of use of an arm, an employee shall
receive 312 weeks’ compensation. Id. at § 8107(c)(1).
8

20 C.F.R. § 10.404.

9

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

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

11

Supra note 9 at Chapter 2.808.5c(3).

12
The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009). Id.

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and/or lower extremities. The appropriate tables for rating spinal nerve extremity impairment are
incorporated in the procedure manual.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than 34
percent permanent impairment of each lower extremity, for which he previously received schedule
awards.
OWCP accepted that appellant sustained an occupational disease in the form of aggravation
of degenerative lumbar disc disease due to walking, lifting heavy mail, and carrying a heavy mail
bag at work. Appellant received schedule awards which compensated him for a total permanent
impairment of each lower extremity of 34 percent. By decision dated September 30, 2016, OWCP
determined that appellant did not have more than 34 percent permanent impairment of each lower
extremity. It discussed the January 29 and June 1, 2016 impairment ratings of Dr. Berman, an
OWCP medical adviser, which calculated three percent permanent impairment of each lower
extremity. OWCP determined that Dr. Berman’s opinion constituted the weight of the medical
opinion evidence regarding appellant’s permanent impairment.
The Board finds that OWCP properly afforded the weight of the medical opinion evidence
to Dr. Berman’s January 29 and June 1, 2016 impairment rating reports. Dr. Berman properly
applied the standards of The Guides Newsletter to find that appellant had three percent permanent
impairment of each lower extremity.14 He correctly found that Dr. Wehner, the impartial medical
specialist, used improper standards when she applied Table 16-12 of the sixth edition of the
A.M.A., Guides without applying the standards of The Guides Newsletter.15 In his January 29 and
June 1, 2016 impairment rating reports, Dr. Berman noted that appellant had mild sensory/pain
deficit with a grade C default value of one percent permanent impairment for the left and right L4
nerve roots; mild sensory/pain deficits with a grade C default value of one percent for the left and
right L5 nerve roots; and mild sensory/pain deficits with a grade C default value of one percent for
the left and right S1 nerve roots.16 He found that appellant reached MMI by November 4, 2015,
the date of Dr. Wehner’s examination.
For these reasons, OWCP properly determined in its September 30, 2016 decision that
appellant did not present evidence showing that he had more than 34 percent permanent
impairment of each lower extremity, for which he previously received schedule awards.

13

See supra note 9 at Chapter 3.700, Exhibit 4.

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.8k (September 2010), which provides in pertinent part: “If a case has been referred for a referee evaluation to
resolve the issue of permanent impairment, it is appropriate for the [District Medical Adviser] to review the
calculations to ensure the referee physician appropriately used the [A.M.A., Guides].”
15

See supra notes 10 through 13.

16

Dr. Berman further found that there was no adjustment from these default values.

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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.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than 34
percent permanent impairment of each lower extremity, for which he previously received schedule
awards.
ORDER
IT IS HEREBY ORDERED THAT the September 30, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 14, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS STATIONS, LOGISTICS BASE,
Barstow, CA, Employer
__________________________________________

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

Docket No. 17-0395
Issued: August 2, 2017

Case Submitted on the Record

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

JURISDICTION
On December 12, 2016 appellant filed a timely appeal from a November 18, 2016 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.
ISSUES
The issues are: (1) whether appellant has more than seven percent permanent impairment
of his left upper extremity, for which he previously received a schedule award; and (2) whether
appellant has established right upper extremity impairment for purposes of a schedule award.
On appeal, appellant contends that he has 15 percent permanent impairment to his left
upper extremity, for schedule award purposes.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 16, 2013 appellant, then a 49-year-old heavy mobile equipment mechanic,
filed a traumatic injury claim (Form CA-1) alleging that on August 13, 2013 he injured both of
his shoulders while using an eight-pound hammer to remove road arms and torsion bars from an
air admittance valve. He did not stop work on the date of injury. OWCP accepted appellant’s
claim for sprain of the right shoulder and upper arm and other affections of the left shoulder
region.
On December 5, 2013 appellant underwent a repair of a chronic rotator cuff tear to the
left shoulder and release of the coracoacromial ligament to the left shoulder. He stopped work
on the date of the surgery and returned to full-duty work on April 21, 2014.
In an October 2, 2014 report, Dr. Jacob E. Tauber, appellant’s treating Board-certified
orthopedic surgeon, prepared an impairment rating report in which he listed appellant’s diagnosis
as status post left rotator cuff repair and subacromial decompression. Using the American
Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009),
(A.M.A., Guides), Table 15-5, Dr. Tauber opined that appellant had seven percent permanent
impairment of the left shoulder due to residuals from his surgery.2
On November 24, 2014 appellant filed a claim for a schedule award (Form CA-7).
OWCP referred appellant’s case to a district medical adviser (DMA), and in a response
dated December 23, 2014, Dr. Ellen Pichey, a Board-certified occupational medicine specialist,
and the DMA noted that appellant had a permanent impairment due to a left rotator cuff tear or
tendon rupture, class 1 default position C as per Table 15-5 of the A.M.A., Guides.3 Dr. Pichey
made an adjustment for a grade modifier of 2 for physical examination and a functional history
modifier of 2. She determined that using the net adjustment formula, appellant’s default position
was modified by 1, and that appellant therefore had seven percent permanent impairment of his
left upper extremity. Dr. Pichey noted that there was no evidence of impairment to appellant’s
right upper extremity.
In a December 11, 2014 report, Dr. Tauber noted that he had previously provided an
impairment rating based on appellant’s condition which resulted in a rating of seven percent. He
noted that his prior rating needed to be amended, as appellant had acromioclavicular pathology
as well, which according to Table 15-5 of the A.M.A., Guides, affords an additional eight
percent permanent impairment of his left upper extremity. Using the Combined Values Chart,
Dr. Tauber noted a combined 14 percent left upper extremity permanent impairment rating.
On March 10, 2015 OWCP issued a schedule award for seven percent permanent
impairment of the left upper extremity and zero percent permanent impairment of the right upper
extremity.

2

A.M.A., Guides 404, Table 15-5.

3

Id.

2

On March 18, 2015 appellant’s, then counsel, requested a telephonic hearing before an
OWCP hearing representative. At the hearing, held on October 7, 2015, he contended that
OWCP should review the new medical evidence, that the evidence now established an
impairment to the right extremity, and that OWCP should further develop the record, as needed.
On August 21, 2015 appellant submitted a July 8, 2015 report by Dr. Mesfin Seyoum, a
family practitioner. Dr. Seyoum reviewed appellant’s medical history and conducted a physical
examination which included measurements for range of motion (ROM). He listed appellant’s
diagnoses as: (1) status post left shoulder rotator cuff repair and subacromial decompression;
(2) left shoulder other affections of the shoulder region; (3) right shoulder sprain/strain; and
(4) right shoulder tendinitis. Dr. Seyoum agreed with Dr. Tauber that appellant was entitled to a
schedule award for 14 percent permanent impairment of the left shoulder. He further concluded
that appellant had five percent permanent impairment of the upper right extremity. Dr. Seyoum
based his conclusion on Table 15-5 of the A.M.A., Guides4, with a finding of class 1 grade 3
with three percent upper extremity impairment due to right shoulder tendinitis with residual
functional loss. He modified this with a functional history grade modifier of 3 and a physical
examination grade modifier of 1, and determined that the net adjustment was +2. Therefore,
Dr. Seyoum determined that appellant’s right shoulder impairment would be two grades higher,
or five percent right upper extremity permanent impairment.
On November 9, 2015 appellant filed a new claim for a schedule award (Form CA-7).
In a November 13, 2015 decision, the hearing representative set aside, in part, the
March 10, 2015 decision. She affirmed the finding that appellant was not entitled to a schedule
award for right upper extremity impairment as this was not an accepted condition. However, the
hearing representative determined that Dr. Tauber’s report of December 11, 2014 should be
referred to an OWCP medical adviser and that, after such further development as necessary, a
new decision should be issued.
On April 12, 2016 OWCP asked its medical adviser to review Dr. Tauber’s December 11,
2014 report and comment on his findings.
In an April 13, 2016 report, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon
serving as OWCP’s medical adviser, reviewed the medical evidence, including Dr. Tauber’s
December 11, 2014 report. He noted that it had been established that appellant had seven
percent impairment of the left upper extremity. Although Dr. Tauber believed that appellant was
entitled to an additional eight percent impairment for acromioclavicular joint pathology,
Dr. Harris opined that pursuant to the A.M.A., Guides, an evaluator is expected to choose the
most significant diagnosis and to rate only that diagnosis under the diagnosis-based impairment
(DBI) method. He noted that, if clinical studies documented additional symptomatic diagnoses,
the grade could be modified according to the clinical studies adjustment table. Dr. Harris
contended that Dr. Tauber’s methodology was inconsistent with the A.M.A., Guides as he
provided an impairment rating for both his right rotator cuff tear as well as right
acromioclavicular joint pathology.
He also noted that appellant did not have any
acromioclavicular joint pathology other than magnetic resonance imaging (MRI) scan evidence
of degenerative changes in the acromioclavicular joint. Dr. Harris noted that appellant had not
4

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

3

required any surgical treatment for the degenerative changes in his acromioclavicular joint and
Dr. Tauber did not demonstrate any tenderness, instability, or irritability at the acromioclavicular
joint.
In a May 2, 2016 decision, OWCP denied appellant’s claim for a greater schedule award.
On October 4, 2016 appellant requested reconsideration. In support thereof, he submitted
a September 8, 2016 report wherein Dr. Tauber contended that it was grossly unfair to appellant
to not include diagnoses that contribute to his complaints of pain which have been objectively
confirmed. He noted that in this case appellant had undergone a rotator cuff surgery and a
subacromial decompression. Dr. Tauber noted that appellant was now confirmed to have
acromioclavicular arthritis, a superior labral anterior posterior (SLAP) lesion, and a frozen
shoulder. He noted that appellant had residual symptoms of a SLAP lesion, which would merit
four percent upper extremity impairment pursuant to Table 15-5. Dr. Tauber also noted that
appellant had acromioclavicular arthritis, which would merit an additional four percent
impairment pursuant to Table 15-5. Accordingly, he opined that the rotator cuff surgery and
adhesive capsulitis would merit a combined, additional 8 percent impairment a total of 15
percent permanent impairment of the left upper extremity.
Appellant stopped work again on October 7, 2016, due to right shoulder surgery. He has
not returned to work.
On November 8, 2016 OWCP again referred the case to an OWCP DMA. In a
November 9, 2016 response, the DMA found that appellant had five percent permanent
impairment of the right upper extremity and seven percent permanent impairment of the left
upper extremity resulting from the August 16, 2013 injury. He noted that the A.M.A., Guides
provide that the evaluator is expected to choose the most significant diagnosis and rate only that
diagnosis using the DBI method. The DMA noted that he calculated appellant’s left upper
extremity by using a diagnosis based on residuals from the rotator cuff repair, and used a grade
modifier to take into account appellant’s problem with acromioclavicular joint osteoarthritis. He
also noted that the most recent MRI scan failed to document any SLAP or labral pathology. The
DMA recommended no increase in appellant’s left upper extremity impairment.
By decision dated November 18, 2016, OWCP denied modification of the May 2, 2016
decision, finding that its prior finding of seven percent permanent impairment of his left upper
extremity was correct. It noted that, although Dr. Harris found five percent permanent
impairment of the right upper extremity, a schedule award for the right upper extremity was not
payable at present as appellant had not yet reached maximum medical improvement, noting that
appellant had recently undergone right shoulder surgery on October 7, 2016.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.5 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
5

See 20 C.F.R. §§ 1.1-1.4.

4

use of specified members, functions, and organs of the body.6 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.7
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).8 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.9
ANALYSIS
The issue is whether appellant has more than seven percent permanent impairment of his
left upper extremity, for which he previously received a schedule award. A secondary issue is
whether appellant is entitled to a schedule award for impairment to his right upper extremity.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the edition of
the A.M.A., Guides when granting schedule awards for upper extremity claims. No consistent
interpretation had been followed regarding the proper use of the DBI or the ROM methodology
when assessing the extent of permanent impairment for schedule award purposes.10 The purpose
of the use of uniform standards is to ensure consistent results and to ensure equal justice under
the law to all claimants.11 In T.H., the Board concluded that OWCP physicians were at odds
over the proper methodology for rating upper extremity impairment, having observed attending
physicians, evaluating physicians, second opinion physicians, impartial medical examiners, and
6

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
7

5 U.S.C.

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
9

Isidoro Rivera, 12 ECAB 348 (1961).

10

T.H., Docket No. 14-0943 (issued November 25, 2016).

11

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

5

DMAs use both DBI and ROM methodologies interchangeably without any consistent basis.
Furthermore, the Board observed that physicians interchangeably cite to language in the first
printing or the second printing when justifying use of either ROM or DBI methodology.
Because OWCP’s own physicians have been inconsistent in the application of the A.M.A.,
Guides, the Board finds that OWCP can no longer ensure consistent results and equal justice
under the law for all claimants.12
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the November 18, 2016 decision.
Following OWCP’s development of a consistent method for calculating permanent impairment
for upper extremities to be applied uniformly, and such other development as may be deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper extremity
schedule award.
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 18, 2016 is set aside, and the case is remanded for
further action consistent with this decision.
Issued: August 2, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

12

Supra note 10.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edison, NJ, Employer
__________________________________________

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

Docket No. 13-1739
Issued: February 3, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 15, 2013 appellant, through her attorney, filed a timely appeal of a May 14, 2013
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether OWCP abused its discretion in denying appellant’s request for back
surgery including lumbar disc annuloplasty or lumbar discography.
On appeal, counsel argued that Dr. Paul Foddai, a Board-certified orthopedic surgeon,
selected to serve as the impartial medical examiner, failed to provide the necessary medical
opinion evidence as his report was vague, speculative and not based on a proper medical history
because he did not mention the February 27, 2002 accepted work injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 5, 2009 appellant, then a 43-year-old mail carrier, filed an occupational
disease alleging that she developed bilateral carpal tunnel syndrome as well as back and neck
conditions due to her work duties of sorting mail. She underwent a magnetic resonance imaging
(MRI) scan of the lumbar spine on December 24, 2008 which demonstrated mild degenerative
and posterior bulging disc disease at L5-S1. Appellant underwent a cervical MRI scan on the
same date which demonstrated slight degenerative disc disease C3-6 with no focal disc
herniation. She underwent nerve conduction studies (NCS) on December 30, 2008 which
demonstrated mild bilateral C5-6 radicular dysfunction, cervical radiculopathy and mild bilateral
median nerve entrapment across the wrists. Dr. Mark A. P. Filippone, a physician Boardcertified in physical medicine and rehabilitation, examined appellant on January 27, 2010 and
noted that she had been reporting low back pain intermittently since 2002 when she sustained a
work-related injury. He also noted that appellant had a low back injury in the mid-1990’s when
she was chased by a dog in the performance of duty. Appellant was involved in a motor vehicle
accident accepted in the early 1990’s which resulted in back injury. Dr. Filippone diagnosed
lumbosacral radiculitis and possible lumbar radiculopathy. On March 25, 2010 he opined that
appellant’s work duties resulted in bilateral carpal tunnel syndrome, cervical radiculopathy,
bulging disc at C4-5 and bulging disc at L5-S1.
By decision dated July 2, 2010, OWCP accepted appellant’s claim for bilateral carpal
tunnel syndrome and cervical radiculopathy.
Dr. Filippone examined appellant on July 28, 2010 and performed electromyogram
(EMG) and NCS. He found electrodiagnostic evidence of bilateral carpal tunnel syndrome, right
C5-7 radiculopathy and bilateral L5-S1 lumbosacral radiculopathy. Dr. Filippone opined that
appellant’s diagnosed conditions were due to her employment.
Appellant filed a notice of recurrence of disability on August 2, 2010 alleging a
recurrence of her December 30, 2008 employment injury. By decision dated November 4, 2010,
OWCP accepted her claimed recurrence of disability. Appellant underwent a right carpal tunnel
surgical release on November 10, 2010. She underwent a left carpal tunnel release on
February 9, 2011.
In reports dated March 2 and April 20, 2011, Dr. Alfred Mauro, a Board-certified
anesthesiologist, noted that appellant reported persistent lower back pain with radiation into both
legs as well as neck pain with radiation into the shoulder and arm region. On examination, he
found no sensory deficit or loss of motor strength in the lower extremities. Dr. Mauro diagnosed
lumbar and cervical strain, spondylosis, radiculopathy and myofascial pain. He performed
lumbar epidural steroid injection due to chronic lumbar radiculopathy on May 17 and June 4
and 28, 2011. In a report dated May 23, 2011, Dr. Mauro opined that appellant had pathology in
the lumbar disc as well as right-sided spondylosis of the facet joints and that noted that her leg
pain had not been ameliorated.
Dr. Mauro examined appellant on July 17 and 25, 2011 and stated that she had 50 percent
improvement in her lumbar spine. On August 24, 2011 appellant reported persistent back pain
with radiation down her legs bilaterally. Dr. Mauro examined her on November 2, 2011 due to

2

disc herniations in the lumbar region due to disc disease. He noted that following lumbar
epidural steroid injections appellant had improved palpatory pain with less evidence of
radiculopathy and improved range of motion in the lumbar spine.
In a note dated December 19, 2011, Dr. Mauro stated that appellant had axial pain in the
lumbar region, which was aggravated by prolonged sitting, standing and lifting. He diagnosed
L5-S1 bilateral lumbar radiculopathy. Dr. Mauro recommended a provocative discography.
Dr. Mauro performed a lumbar discogram on January 26, 2012. He found a herniated
disc, lumbar disc disease, low back syndrome and lumbalgia. Dr. Mauro found a L5-S1 annular
bulge, that appellant was symptomatic with pain and that there was evidence of posterior tears
and leakage of dye into the epidural space. Appellant underwent a computerized tomography
(CT) scan on January 26, 2012 which revealed an annual bulge at L5-S1 with contrast coating
the posterior annulus.
In a note dated February 6, 2012, Dr. Mauro stated that appellant had a provocative
lumbar discography on January 26, 2012 followed by a CT scan, which demonstrated tears at
L3-4, L4-5 and L5-S1. He recommended a two-level endoscopic lumbar disc decompression.
Appellant underwent a surgical release of a right pulley thumb on February 22, 2012.
On March 5, 2012 OWCP referred appellant’s claim to the medical adviser. OWCP’s
medical adviser reviewed her request for surgery on March 6, 2012 and noted her history of
injury including the February 27, 2002 lumbar strain and the February 5, 2009 occupational
disease claim accepted for carpal tunnel syndrome and a neck injury. He stated that there was no
causal connection between appellant’s 2009 claim and lumbar radiculopathy. OWCP’s medical
adviser further noted that the 2002 lumbar strain had resolved by March 21, 2004 when she
returned to full-time work.
In a decision dated March 23, 2012, OWCP denied appellant’s claim for lumbar
discography and endoscopic decompression of lumbar disc annuloplasty. Counsel requested an
oral hearing on March 27, 2012 before an OWCP hearing representative.
Dr. Mauro completed a report on April 2, 2012 and stated that appellant’s repetitive work
resulted in both lumbar and cervical conditions. He stated, “I feel that there is a direct
connection between [appellant’s] symptoms, treatment and the request for further decompression
surgical procedures…. There is direct correlation if one reads the history of this patient’s pain,
the history of interventional procedures and her findings. There is no question that a direct
connection exists.”
In a letter dated July 13, 2012, counsel requested that the oral hearing be converted to a
review of the written record.
OWCP referred appellant for a second opinion with Dr. Jeffrey Lakin, a Board-certified
orthopedic surgeon. In his August 7, 2012 report, Dr. Lakin noted her claim that she developed
pain in her hands, neck and lower back due to her repetitive work motions. He reviewed
appellant’s history of injury and medical history, including her 2002 employment injury. On
physical examination Dr. Lakin found that her lumbosacral spine demonstrated minimal
3

tenderness midline with no spasms and negative straight leg raising. He found that sensation was
intact in both lower extremities and that appellant’s gait was normal with normal motor strength.
Dr. Lakin reviewed electrodiagnostic studies and found that her July 26, 2010 lumbar MRI scan
showed a left lateral posterior disc herniation at L5-S1 with left neuroforaminal narrowing and
right-sided facet changes. He diagnosed cervical radiculopathy, bilateral carpal tunnel syndrome
and lumbosacral sprain as work related. Dr. Lakin found that appellant had no disability for
work and that her subjective complaints were not consistent with her objective findings. He
stated that she could return to her regular job and that she did not require any corrective surgery.
Dr. Lakin concluded that appellant’s current lumbar condition was related to her repetitive
motion claim noting her 2002 back injury and her “reonset” of lower back pain, which she stated
was related to repetitive motion and activities at work.
On August 23, 2012 OWCP found a conflict between Dr. Lakin and Dr. Mauro regarding
causal relationship and continuing disability. It included a statement of accepted facts and a list
of specific questions. The statement of accepted facts included appellant’s February 27, 2002
traumatic injury accepted for lumbar sprain. Appellant returned to work following this injury on
March 21, 2004.
Dr. Mauro completed a report on September 5, 2012 and noted that when he first
examined appellant on March 2, 2011 she reported lower back pain with radiation down the left
leg into the foot as well as bilateral thigh numbness. He stated that she had increasing severity of
pain likely from a L5-S1 posterior lateral herniation with left neural foraminal stenosis.
Appellant reported transient relief from two lumbar epidural steroid injections and a lumbar
discogram on January 26, 2012 revealed a positive L5-S1 disc. She wanted to pursue definitive
treatment mainly a lumbar endoscopic discectomy. Dr. Mauro stated that the best course for
appellant was surgical intervention to alleviate the impingement of the nerve root on the left.
Dr. Filippone examined appellant on September 10 and 12, October 9 and November 9,
2012 and found that she had neck, mid-back and lower back pain of 8 out of 10. He noted that
she remained symptomatic without working and with medication. Dr. Filippone found that
appellant was totally disabled.
By decision dated September 25, 2012, OWCP found that appellant was not entitled to
augmented compensation for the period August 31, 2011 through September 22, 2012.
In a letter dated September 26, 2012, OWCP stated that there was a conflict of medical
opinion evidence between Drs. Lakin and Mauro requiring referral to Dr. Foddai for an impartial
medical examination.
By decision dated September 28, 2012, the hearing representative vacated OWCP’s
March 23, 2012 decision, noting that OWCP had initiated the referral process for a second
opinion physician following the March 23, 2012 decision and on August 23, 2012 determined
that there was a conflict between Dr. Mauro and Dr. Lakin. The hearing representative
remanded for completion of the case development including Dr. Foddai’s report and a de novo
decision.

4

OWCP noted that Dr. Foddai referred appellant to a neurologist on October 18, 2012. It
referred her for this medical examination on October 18, 2012. On October 23, 2012
Dr. James A. Charles, a Board-certified neurologist of professorial rank, examined appellant
noting her history of hand, neck and back pain in December 2008 as well as her 2002 back
injury. He diagnosed degenerative cervical spondylosis without radiculopathy, bilateral carpal
tunnel syndrome resolved following surgery and spinal stenosis exacerbated by obesity with
functional embellishment. Dr. Charles stated that appellant’s neck and back pain were
degenerative disorders not related to her work, which were being perpetuated and exacerbated by
her obesity.
Dr. Foddai completed a report on November 14, 2012. He provided appellant’s reported
history and her current complaints. Dr. Foddai’s physical examination found that she had
voluntarily limited range of motion of the lumbar spine, normal muscle tone and power and in
the lower extremities and patchy decreased sensation in both lower extremities, but not in a
clear-cut dermatomal distribution. He reviewed the medical records and found that appellant had
evidence of chronic lumbar sprain and strain. Dr. Foddai stated, “As indicated by [appellant’s]
job description, I do not see how her job description caused any lumbar derangement.” He found
no evidence of lumbar radiculopathy with chronic lumbosacral sprain and strain made worse by
obesity and degenerative disease. Dr. Foddai opined that appellant could return to work without
restrictions. He stated, “I do not think that [appellant] requires any additional corrective
surgery…. It is my opinion that her back pain is probably chronic and degenerative in nature. I
did not find any cause and effect relationship between [appellant’s] lumbar complaints and her
job description.”
By decision dated November 30, 2012, OWCP denied appellant’s request for surgery
based on the reports from Drs. Foddai and Charles.
Dr. Filippone submitted a cervical MRI scan dated December 3, 2012, which
demonstrated a central herniated disc at C4-5. A lumbar MRI scan of the same date
demonstrated left foraminal annulus tear at L5-S1 and a bulging disc at L4-5. Dr. Filippone
examined appellant on December 11, 2012
Counsel requested an oral hearing on December 6, 2012.
Dr. Mauro examined appellant on December 19, 2012 and stated that her lumbar range of
motion was mildly restricted due to pain and that straight leg raising was positive on the right.
He diagnosed lumbar radiculopathy and lumbar spondylosis.
On January 15, 2013 Dr. Filippone noted that appellant continued to report neck and back
pain as well as numbness and tingling in both hands and wrists. He found that EMG and NCS
continued to show bilateral carpal tunnel syndrome, right C5-6 cervical radiculopathy.
Dr. Filippone also stated that appellant gave evidence of lumbosacral radiculitis with a
possibility of lumbar radiculopathy. He opined that all of her conditions were due to her work at
the employing establishment. Dr. Filippone examined appellant on February 15, 2013 and noted
that she did not believe that epidural steroid injections impacted her lumbar pain. He opined that
her condition had proceeded beyond the previously accepted condition of lumbar sprain.

5

Counsel requested that the oral hearing be changed to a review of the written record on
March 21, 2013. He argued that Dr. Foddai’s report was not sufficient to carry the weight of the
medical evidence as he did not comment on appellant’s request for surgery.
In a report dated April 11, 2013, Dr. Filippone opined that appellant’s conditions were
worsening with pain, guarding and spasm in the cervical and lumbar paraspinals. He found that
she was totally disabled. Dr. Filippone examined appellant on April 22, 2013 and repeated his
findings.
By decision dated May 14, 2013, the hearing representative found that Dr. Foddai’s
November 14, 2012 report was entitled to the weight of the medical evidence and did not support
the medical need for any further treatment. He found that this report, while it did not specifically
address the need for surgery, was sufficiently detailed to establish that appellant did not require
lumbar surgery.
LEGAL PRECEDENT
Section 8103(a) of FECA provides for the furnishing of services, appliances and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability or
aid in lessening in the amount of monthly compensation.2 In interpreting the section 8103(a), the
Board has recognized that OWCP has broad discretion in approving services provided under
FECA to ensure that an employee recovers from his or her injury to the fullest extent possible in
the shortest amount of time.3 OWCP has administrative discretion in choosing the means to
achieve this goal and the only limitation on OWCP’s authority is that of reasonableness.4 Abuse
of discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.5
While OWCP is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.6 Proof of causal relationship in a case such
as this must include supporting rationalized medical evidence.7 Therefore, in order to prove that
the surgical procedure is warranted, appellant must submit evidence to show that the procedure

2

5 U.S.C. § 8103; J.W., Docket No. 13-606 (issued November 15, 2013); see Thomas W. Stevens, 50 ECAB
288 (1999).
3

W.T., Docket No. 08-812 (issued April 3, 2009); A.O., Docket No. 08-580 (issued January 28, 2009).

4

D.C., 58 ECAB 629 (2007); Mira R. Adams, 48 ECAB 504 (1997).

5

L.W., 59 ECAB 471 (2008); P.P., 58 ECAB 673 (2007); Daniel J. Perea, 42 ECAB 214 (1990).

6

See Debra S. King, 44 ECAB 203, 209 (1992).

7

Id.; see also Bertha l. Arnold, 38 ECAB 282 (1986).

6

was for a condition causally related to the employment injury and that the surgery was medically
warranted. Both of these criteria must be met in order for OWCP to authorize payment.8
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination and resolve the conflict of medical evidence.9 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.10 In situations where there are opposing medical
reports of virtually equal weight and rationale and the case is referred to an impartial medical
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based on a proper factual background, must be given special weight.11
ANALYSIS
OWCP accepted that appellant sustained a lumbar sprain in 2002 and she returned to fullduty work as a mail carrier in 2004 following this injury. It further accepted her occupational
disease claim in 2009 for bilateral carpal tunnel syndrome and cervical radiculopathy. Appellant
had also alleged a back condition on her claim form. OWCP has not accepted any additional low
back injuries. Appellant stopped work following her accepted recurrence of disability on
August 2, 2010.
On February 6, 2012 Dr. Mauro recommended back surgery as a result of appellant’s
employment injuries. His April 2, 2012 report included the statement that her repetitive work
resulted in both lumbar and cervical conditions. Dr. Mauro opined that there was a direct
connection between appellant’s symptoms and the request for further decompression surgical
procedures.
OWCP referred appellant for a second opinion examination with Dr. Lakin. In his
August 7, 2012 report, Dr. Lakin found that she had no disability for work and that her subjective
complaints were not consistent with her objective findings. He concluded that appellant did not
require any corrective surgery. The Board finds that OWCP properly determined that there was
a conflict of medical opinion evidence between Drs. Mauro and Lakin regarding her need for low
back surgery, pursuant to 5 U.S.C. § 8123(a).
Due to this conflict of medical opinion, OWCP referred appellant to Dr. Foddai for an
impartial medical examination. Dr. Foddai requested a neurological evaluation from Dr. Charles
who completed a report on October 23, 2012. Dr. Charles provided an accurate and complete
history of injury and diagnosed degenerative cervical spondylosis without radiculopathy,
8

See Cathy B. Millin, 51 ECAB 331, 333 (2000).

9

5 U.S.C. §§ 8101-8193, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

10

R.C., 58 ECAB 238 (2006).

11

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

7

bilateral carpal tunnel syndrome resolved following surgery and spinal stenosis exacerbated by
obesity with functional embellishment. On November 14, 2012 Dr. Foddai found that appellant
had voluntarily limited range of motion of the lumbar spine, normal muscle tone and power and
in the lower extremities and patchy decreased sensation in both lower extremities, but not in a
clear-cut dermatomal distribution. He found no evidence of lumbar radiculopathy. Dr. Foddai
opined that appellant could return to work without restrictions and opined that she did not require
any additional surgery. He concluded that there was no relationship between her lumbar
complaints and her job description.
The Board finds that Dr. Foddai’s report is sufficiently detailed and well reasoned to
constitute the special weight of the medical opinion accorded an impartial medical examiner
regarding whether low back surgery was medically necessary. Dr. Foddai reviewed appellant’s
history and job duties as well as Dr. Charles’ report. He conducted an orthopedic examination
and reviewed a neurological examination and found that there was no relationship between her
current lumbar complaints and her employment. Thus, the Board finds that Dr. Foddai’s opinion
as set forth in his November 14, 2012 report is probative and reliable evidence. Accordingly,
Dr. Foddai’s opinion constitutes the special weight of the evidence and is sufficient to justify
OWCP’s denial of authorization for back surgery.
The Board further finds that the medical evidence submitted by appellant after
Dr. Foddai’s impartial medical examination is insufficient to overcome the weight of this report
or to create another conflict in medical evidence. Appellant submitted various reports by
Dr. Filippone noting that she had evidence of lumbar radiculitis, that all her conditions were due
to her employment and that her condition had developed beyond the previously accepted
condition of lumbar sprain. The Board finds, however, that these reports are of limited probative
value as he offers conclusions unsupported by medical rationale. The Board finds that his
opinion constitutes the special weight of the medical evidence and supports OWCP’s decision
that the need for low back surgery was not established.
On appeal, counsel argues that Dr. Foddai’s report is insufficient. The Board finds that
the report of Dr. Foddai and his review of Dr. Charles’ report are sufficient to establish an
accurate history of injury and to provide sufficient medical opinion evidence.
CONCLUSION
The Board finds that OWCP did not abuse its discretion in denying appellant’s request
for surgical authorization.

8

ORDER
IT IS HEREBY ORDERED THAT the May 14, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 3, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

9


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

)
)
)
)
)
)
)
)

Appearances:
John L. DeGeneres, Jr., Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0145
Issued: September 8, 2020

Case Submitted on the Record

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

JURISDICTION
On October 24, 2019 appellant, through counsel, filed a timely appeal from a May 7, 2019
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more than
180 days has elapsed from the last merit decision, dated April 20, 2018 to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks 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

Appellant timely requested oral argument before the Board. By order dated September 1, 2020, 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 Request for Oral Argument, Docket No. 20-0145 (issued September 1, 2020).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 9, 2017 appellant, then a 59-year-old mail carrier, filed an occupational disease
claim (Form CA-2) alleging that he sustained a left knee condition causally related to factors of
his federal employment. He attributed his condition to walking during his light-duty employment,
noting that in April 2017 he had undergone a total knee replacement. Appellant advised that he
became aware of his condition on December 1, 2010 and realized that it was caused or aggravated
by his employment on April 5, 2011. He was last exposed to the conditions alleged to have caused
his condition on April 1, 2017, the date he stopped work.
In a report dated June 13, 2017, Dr. David A. Alessandro, a Board-certified orthopedic
surgeon, indicated that appellant had undergone a left total knee replacement on April 4, 2017 due
to osteoarthritis. He noted that he worked as a letter carrier and indicated that the progressive
arthritis had developed over the course of years and was “probably related to his occupation. This
was supposedly addressed in a claim during the 2000s.”
By decision dated July 26, 2017, OWCP denied appellant’s occupational disease claim. It
found that he had not factually established his claim as he failed to provide a statement describing
the work factors to which he attributed his condition.
On August 18, 2017 appellant requested an oral hearing before an OWCP hearing
representative. On January 22, 2018 appellant, through counsel, requested a review of the written
record by an OWCP hearing representative in lieu of an oral hearing. Enclosed was an August 15,
2017 statement from appellant describing in detail his employment duties.
Subsequently, appellant submitted a progress report dated 2011 and progress reports dated
2015 through 2017 from Dr. Allesandro, who treated him for left knee arthritis. On January 25,
2016 Dr. Allesandro noted that he had a history of a right knee replacement on May 31, 2007. He
diagnosed primary osteoarthritis of the left knee. On April 17, 2017 Dr. Allesandro performed a
left total knee arthroplasty.
In a report dated January 16, 2018, Dr. Allesandro advised that he had reviewed appellant’s
description of his employment duties. He opined that his 31 years “of impacting loading activities
that he experienced in his duties as a letter carrier are a probable cause of his left knee osteoarthritis.
This can/occur from accumulative stresses that were placed upon his left knee as a result of the
performance of his work responsibilities.”
By decision dated April 20, 2018, OWCP’s hearing representative affirmed the July 26,
2017, as modified to show that appellant had factually established the work duties identified as
causing his condition. He determined, however, that the medical evidence of record was
insufficient to show causal relationship between a diagnosed condition and the identified
employment factors. The hearing representative found that Dr. Allesandro had not explained how

2

appellant’s work duties caused or aggravated his left knee arthritis or discussed the effect of his
employment activities on his left knee condition.
In a letter dated March 29, 2019, Dr. Allesandro described appellant’s employment duties.
He related that the medical rationale for his opinion was research that has established that regularly
performing impact loading activities contributed to hip and knee arthritis. Dr. Allesandro related,
“[Appellant’s] history confirms the progression of his arthritis while performing the duties of a
letter carrier and the correlation between these activities and the progression of arthritis is firmly
established and fully accepted by medical science. Repetitive impact activity including stairs can
likely advance arthritis.” He advised that appellant’s arthritis would “very likely” not have
progressed as quickly if he had performed sedentary work.
On April 18, 2019 appellant, through counsel, requested reconsideration. He alleged that
the March 29, 2019 report from Dr. Allesandro was in fact sufficient to establish causal
relationship as he provided rationale for his finding that appellant’s employment duties caused his
left knee arthritis and discussed his specific work duties. Counsel asserted that as there was no
opposing evidence, OWCP must further develop the evidence.
By decision dated May 7, 2019, OWCP denied appellant’s request for reconsideration of
the merits of his claim under 5 U.S.C. § 8128(a). It found that the evidence submitted was
cumulative in nature and thus insufficient to warrant reopening his case for further merit review.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.3
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.4
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.5 If it chooses to grant reconsideration, it reopens
3
5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
4

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
5

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Chapter 2.1602.4b.

3

and reviews the case on its merits.6 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
The Board finds that appellant has not alleged or demonstrated that OWCP erroneously
applied or interpreted a specific point of law. Moreover, appellant has not advanced a relevant
legal argument not previously considered. Counsel asserted that appellant had submitted
uncontroverted medical evidence sufficient to warrant further development. He further asserted
that the newly submitted report from Dr. Allesandro was sufficient to establish causal relationship.
Causal relationship, however, is a medical issue that must be addressed by relevant medical
evidence.8 Counsel’s lay opinion is not relevant to the underlying issue in this case, which is
whether the medical evidence establishes that appellant sustained an employment-related left knee
condition. Consequently, appellant is not entitled to a review of the merits of his claim based on
the first and second above-noted requirements under section 10.606(b)(3).9
The Board further finds that appellant has not provided any relevant and pertinent new
evidence not previously considered. Appellant submitted a March 29, 2019 letter from
Dr. Allesandro, who diagnosed progressive arthritis. Dr. Allesandro noted that he based his
medical rationale on medical research that established that impact load activities contributed to
progressive arthritis. He opined that appellant’s repetitive activities “can likely advance” his
arthritis and that his arthritis would “very likely” not have progressed as quickly if he had worked
in a sedentary position. While this report is new, it is not relevant as it is substantially similar to
Dr. Allesandro’s July 13, 2017 report finding that appellant’s left knee arthritis was “probably
related” to his work as a letter carrier and his January 16, 2018 report finding his letter carrier
duties were a “probable cause” of his osteoarthritis of the left knee. Dr. Allesandro’s March 29,
2019 report was still couched in speculative terms and was therefore substantially similar to his
prior reports. Providing additional evidence that either duplicates or is substantially similar to
evidence already in the case record does not constitute a basis for reopening a case.10 As appellant
did not provide relevant and pertinent new evidence, he is not entitled to a merit review based on
the third requirement under section 10.606(b)(3).11

6

Id. at § 10.608(a); see also A.F., Docket No. 19-1832 (issued July 21, 2020); M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); Y.K., Docket No. 18-1167 (issued April 2, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).
8

A.G., Docket No. 20-0290 (issued June 24, 2020).

9

A.G., id.; C.B., Docket No. 18-1108 (issued January 22, 2019).

10

See G.J., Docket No. 20-0071 (issued July 1, 2020); V.Q., Docket No. 19-1309 (issued January 3, 2020).

11

20 C.F.R. § 10.606(b)(3)(iii); T.W., Docket No. 18-0821 (issued January 13, 2020).

4

The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.12
On appeal counsel contends that appellant had submitted new evidence sufficient to require
reopening of his case for further merit review. He further contends that he had advanced a new
legal argument and shown that OWCP erred in interpreting law. As discussed, however, OWCP
properly determined that appellant had not met any of the requirements for reopening his case for
further merit review under section 10.606(b)(3).13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 7, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 8, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

12

D.G., Docket No. 19-1348 (issued December 2, 2019).

13

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ALVIN C. YORK VETERANS
ADMINISTRATION MEDICAL CENTER,
Murfreesboro, TN, Employer
__________________________________________

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

Docket No. 18-0924
Issued: August 13, 2019

Case Submitted on the Record

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

JURISDICTION
On April 2, 2018 appellant filed a timely appeal from an October 12, 2017 merit decision
and a January 26, 2018 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 26, 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
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish an injury in
the performance of duty on April 26, 2017, as alleged; and (2) whether OWCP properly denied
appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 9, 2017 appellant, then a 39-year-old supervisory police officer, filed a
traumatic injury claim (Form CA-1) alleging that she injured her right shoulder on April 26, 2017
during a physical training course at the Federal Bureau of Investigation (FBI) National Academy
while in the performance of duty. Appellant described her injury as a tear/strain of the right labrum
– slap tendon. On the reverse side of the claim form, the employing establishment indicated that
it first received notice of the injury on August 28, 2017. It also noted that appellant was away on
travel at the time of the alleged injury and that she first received medical care on July 3, 2017.
According to the employing establishment, appellant did not know when she was injured.
In a development letter dated September 7, 2017, OWCP acknowledged receipt of
appellant’s claim and informed her that additional evidence was needed to establish her claim. It
specifically noted that the evidence was insufficient to establish that she actually experienced the
employment incident as alleged and requested that she respond to an attached questionnaire in
order to determine whether the alleged injury occurred in the performance of duty. OWCP also
requested medical evidence in support of her claim. It afforded appellant 30 days to submit the
requested information.
OWCP subsequently received an August 16, 2017 employing establishment incident
report. Appellant described that she injured her right shoulder during attendance at the FBI
National Academy in Quantico, VA as a result of “intense physical conditioning which was part
of the course.” She noted an initial onset of symptoms on approximately April 18, 2017, but
related that extended pain did not start until April 25, 2017. Appellant explained that when the
pain continued, she informed her physical training instructor and sought medical treatment at the
onsite clinic at the FBI Academy. She was given pain medication which eased the pain enough
that she was able to graduate from the training course on July 7, 2017. Appellant noted that she
returned to the employing establishment in mid-June 2017 and informed the employee health unit
that her right shoulder was still an issue.
In an undated statement, K.T, a health and fitness instructor at the FBI Academy, noted
that on April 25, 2017 he received an e-mail from appellant stating that she had been experiencing
a great deal of pain and had limited mobility in her right shoulder. Appellant asked K.T. if he
knew of any techniques that would help her shoulder issues. She also informed him that she was
limited in what she could perform physically. K.T. indicated he advised appellant to apply ice and
limit activities that made her shoulder feel worse. He recalled that appellant limited herself
physically throughout the remainder of the course.
In a September 22, 2017 statement, appellant responded to OWCP’s questionnaire and
explained that she had injured her right shoulder because of “intense physical conditioning” during
a training course at the FBI National Academy in Quantico, VA. She described the exercise
conditions as weighted sand bag pushes on a mat and while using dumbbell weights and punching
2

up and out in a standing position. Appellant noted that initial onset was about April 18, 2017, but
she did not feel extended pain until April 25, 2017. She indicated that she informed the PT
instructor of her concerns and was advised to rest. Appellant reported that on May 5, 2017 her
condition had not improved so she went to see an occupational massage therapist. On May 9, 2017
she reported to the onsite clinic at the FBI National Academy and was prescribed pain medication.
Appellant explained that when she returned to the employing establishment in mid-June 2017, she
mentioned to a nurse at the occupational health unit that her shoulder was still an issue. She related
that she did not seek immediate medical attention because of upcoming military duties, but upon
returning she underwent a magnetic resonance imaging (MRI) scan on August 4, 2017. Appellant
explained that she did not realize the severity of her condition until the MRI scan results.
In a May 8, 2017 occupational health unit note, Amanda O’Donnell, a certified nurse
practitioner, related that appellant complained of intermittent pain to her right shoulder scapular
region for approximately two weeks. She noted “no specific event or incident associated with
onset,” but reported that appellant believed several physical training activities had exacerbated the
issue. Physical examination showed point tenderness to her right scapular region and intact range
of motion and strength. Appellant was diagnosed with muscle strain.
In a July 3, 2017 handwritten occupational health unit treatment and work status note, a
nurse practitioner with an illegible signature, related that appellant complained of right shoulder
pain that began during training on April 26, 2017. Physical examination of appellant’s right
shoulder demonstrated pain when lifting above her shoulders. Appellant was authorized to return
to limited duty. On August 4, 2017 the same nurse practitioner related that appellant had returned
from training and still complained of right shoulder pain. She provided examination findings and
indicated that a right shoulder MRI scan showed a labral tear. The nurse practitioner completed a
work status note authorizing appellant to work limited duty.
A July 3, 2017 right shoulder x-ray report showed no evidence of fracture or dislocation,
no lytic or sclerotic lesions, no bony destructive lesions, and no arthritic changes.
A July 17, 2017 right shoulder MRI scan revealed evidence of a labral tear, minimal
acromioclavicular osteoarthritis, mild supraspinatus tendinopathy, possible subtle old Hill-Sachs
deformity, and a possible loose body.
In an August 7, 2017 report, Dr. Charles Kaelin, a Board-certified orthopedic surgeon,
noted that appellant worked in law enforcement, serving as military police and security, and had
participated in training academies with the FBI. He explained that on April 26, 2017 she began to
experience pain in her right shoulder. Upon physical examination of appellant’s right shoulder,
Dr. Kaelin observed weakness in abduction and external rotation. Labral provocation testing was
positive. He diagnosed superior glenoid labrum lesion of the right shoulder and fracture of the
upper end of the humerus. He completed a work status note indicating that appellant could work
limited duty.
Appellant began to undergo physical therapy on August 10, 2017 and submitted several
treatment notes and progress reports.
In an August 28, 2017 report, Dr. Kaelin indicated that a right shoulder MRI scan had
confirmed that appellant had a labral tear as suspected. He related that she was still very

3

symptomatic and was unable to perform any kind of strenuous activity. Dr. Kaelin provided
physical examination findings and diagnosed superior glenoid labrum lesion of the right shoulder.
He completed a work status note authorizing appellant to work limited duty.
On August 28, 2017 the employing establishment offered appellant a limited-duty
assignment as a supervisory police officer, effective August 28, 2017. Appellant accepted the job
offer.
In an October 2, 2017 report, Dr. Kaelin indicated that he treated appellant for right
shoulder pain and right labral tear. He reviewed appellant’s history and conducted an examination.
Dr. Kaelin noted positive labral symptoms, worse posteriorly, and marked pain on internal rotation
and palpation of the posterior shoulder. He diagnosed superior glenoid labrum lesion of the right
shoulder. Dr. Kaelin provided a work status note indicating that appellant work limited duty.
In an October 12, 2017 letter, J.V., the employing establishment’s workers’ compensation
representative, indicated that on August 9, 2017 appellant filed a Form CA-1 for an alleged injury
that occurred on “April 25, 2017” while she attended physical training at the FBI National
Academy. She alleged that although appellant’s initial claim noted a specific date and time of
occurrence, her response to OWCP’s questionnaire appeared to indicate that the condition
developed over a period of time. J.V. pointed out that both appellant and the employing
establishment’s incident report noted that appellant’s right shoulder pain began on April 18, 2017,
but she did not experience “extended” pain until April 25, 2017. She reported that the employing
establishment was challenging appellant’s claim based on fact of injury as to how or when the
injury occurred or condition developed.
By decision dated October 12, 2017, OWCP denied appellant’s claim because she had not
established that the April 26, 2017 incident occurred as alleged. It also determined that the
evidence of record contained inconsistent details and discrepancies as to when the injury occurred.
OWCP also noted that appellant had not submitted sufficient medical evidence to establish her
claim. It concluded, therefore, that the requirements had not been met to establish an injury as
defined by FECA.
Additional medical evidence submitted after OWCP’s decision included reports by
Dr. Kaelin. In reports and work status notes dated October 30 to November 27, 2017, Dr. Kaelin
related that appellant still had pain on basic activities of daily living, particularly overhead. He
reviewed appellant’s history and provided examination findings of limited range of motion and
positive labral tearing of appellant’s right shoulder. In a November 27, 2017 report, Dr. Kaelin
indicated that he had confirmed with appellant a date of injury of April 26, 2017. He diagnosed
superior glenoid labrum lesion of the right shoulder and advised that appellant continue working
light duty.
In a letter dated November 27, 2017, Dr. Kaelin noted a date of injury of April 26, 2017.
He reasoned that a date of injury in April 2017 was consistent with all clinical findings and medical
information provided on the case. Dr. Kaelin reported: “I do not have one specific incident of the
April 26, 2017, onset of pain. That does not make this inconsistent with her clinical findings.” He
reported that objective findings were consistent with a labrum tear. Dr. Kaelin opined that the
training requirements and physical maneuvers described in the intense training were highly known

4

to cause injury such as labrum tears. He noted that Army medical journals supported the very high
incidence of musculoskeletal injuries occurring during training in preparation for deployment.
In a December 18, 2017 report, Dr. Kaelin noted that appellant continued to have limitation
with active and passive range of motion of her right shoulder and weakness with overhead
abduction and external rotation. He reviewed appellant’s history and provided examination
findings. Dr. Kaelin diagnosed superior glenoid labrum lesion of the right shoulder and noted that
appellant was awaiting approval for surgery. In a work status note, he indicated that appellant
could work limited duty.
On January 9, 2018 appellant requested reconsideration.
In a January 8, 2018 report, Dr. Kaelin related that appellant still had marked
symptomatology from her right shoulder labrum tear and that she was unresponsive to conservative
treatment. He reviewed appellant’s history and noted examination findings similar to his previous
reports. Dr. Kaelin diagnosed superior glenoid labrum lesion of the right shoulder. In a work
status note, he authorized appellant to work limited duty.
In a letter dated January 9, 2018, T.D., another workers’ compensation representative for
the employing establishment, reiterated that the employing establishment was challenging
appellant’s claim based on fact of injury as to how or when the injury occurred. She asserted that
the lack of identification of specific employment factors causing or contributing to the injury raised
questions as to whether it was an employment-related condition. T.D. contended that appellant’s
statement demonstrated that her condition developed over a period of time, and not as a result of
a specific incident on “April 25, 2017.” She further asserted that Dr. Kaelin failed to identify a
specific incident which caused or contributed to appellant’s shoulder condition.
By decision dated January 26, 2018, OWCP denied appellant’s reconsideration request. It
found that her reconsideration request neither raised substantive legal questions nor included new
and relevant evidence sufficient to warrant further merit review of appellant’s claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the

3

Id.

4
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).

5

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, generally only in the form of medical evidence, to establish that
the employment incident caused a personal injury.9
An employee’s statement alleging that an injury occurred at a given time and in a given
manner is of great probative value and will stand unless refuted by strong or persuasive evidence.10
Moreover, an injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury in the performance of duty, as alleged, but the employee’s
statements must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action.11 An employee has not met his or her burden of proof to establish
the occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim. Circumstances such as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged injury,
and failure to obtain medical treatment may, if otherwise unexplained, cast sufficient doubt on an
employee’s statement in determining whether a case has been established.12
ANALYSIS -- ISSUE 1
The Board finds that appellant has met her burden of proof to establish that the April 26,
2017 employment incident occurred, as alleged.
Appellant indicated on her claim form that she injured her right shoulder on April 26, 2017
during a physical training course at the FBI National Academy, noting the incident occurred at
approximately 1:00 p.m. On the reverse side of the claim form the employing establishment noted
it received notice of the injury on August 28, 2017, but acknowledged that she was “away on
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

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7
R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2009)
Bonnie A. Contreras, 57 ECAB 364 (2006).
8

S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

9

A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008);
D.G., 59 ECAB 734 (2008), Bonnie A. Contreras, supra note 7.
10

D.B., 58 ECAB 529 (2007); Gregory J. Reser, 57 ECAB 277 (2005).

11

Joseph H. Surgener, 42 ECAB 541, 547 (1991).

12

Betty J. Smith, 54 ECAB 174 (2002).

6

travel” at the time of the alleged incident. In a statement to the employing establishment and in a
statement in response to a development letter from OWCP appellant explained that her shoulder
injury was the result of intense physical conditioning which was a part of the training. The training
was noted to include exercises such as pushing weighted sand bags on a mat and using dumbbell
weights and punching up and out in a standing position. Appellant indicated that she first had an
onset of pain on April 18, 2017, but she did not feel “extended pain” until April 25, 2017. She
informed her physical training instructor of her pain and was advised to rest. Appellant submitted
a noted from K.T., a health and fitness instructor at the FBI Academy, who confirmed that he
received an e-mail from her on April 25, 2017 noting she had been experiencing a great deal of
pain and had limited mobility in her right shoulder. K.T. advised that she stated she was limited
in what she could perform in training due to her shoulder condition. While at the FBI National
Academy appellant obtained treatment for her right shoulder -- seeing a massage therapist on
May 5, 2017 and reported to the clinic and obtained pain medications on May 9, 2017. It was not
until she returned to her duty station after graduation from the training program that she had an
MRI scan on August 4, 2017 and thereafter understood the severity of her condition.
The Board finds that appellant’s description of the incident on the Form CA-1 and the
statement from K.T., who noted receiving an e-mail about an injury on April 25, 2017, are
sufficient to establish that the April 25, 2017 employment incident occurred at the time, place, and
in the manner alleged. Appellant provided a consistent account of the mechanism of injury that
has not been refuted by evidence contained in the record.13 The medical evidence of record also
substantiated her description of the right shoulder injury while in intensive physical training at the
FBI National Academy. In her treatment with a nurse practitioner at the employing
establishment’s occupational health unit, as well as with Dr. Kaelin, appellant consistently
explained the onset of her pain while on travel status for training. While J.V., the employing
establishment’s workers’ compensation representative, asserted that the shoulder condition
occurred over a period of time and not due to one incident, it was not disputed that she sustained
a shoulder injury while on travel status for intensive physical training.
As noted above, a claimant’s statement that an injury occurred at a given time and place,
and in a given manner is of great probative value and will stand unless refuted by strong or
persuasive evidence.14 The Board finds, therefore, that appellant has established that the April 25,
2017 employment incident occurred in the performance of duty, as alleged.
As appellant has established that the April 25, 2017 employment incident factually
occurred, the question becomes whether this incident caused an injury.15 The Board will,
therefore, set aside OWCP’s October 12, 2017 decision and remand the case for consideration of
the medical evidence. Following this and other such further development as is deemed necessary,
OWCP shall issue a de novo decision addressing whether appellant has met her burden of proof to

13

See S.W., Docket No. 17-0261 (issued May 24, 2017) (the Board found that OWCP improperly determined that
the alleged employment incident did not occur when appellant provided consistent accounts of the claimed incident
and there was no evidence to refute her detailed description); see also J.L., Docket No. 17-1712 (issued
February 12, 2018).
14
15

A.C., Docket No. 18-1567 (issued April 9, 2019); Gregory J. Reser, 57 ECAB 277 (2005).
See C.M., Docket No. 19-0009 (issued May 24, 2019).

7

establish an injury or condition causally related to the accepted employment incident and any
attendant disability.16
CONCLUSION
The Board finds that appellant has met her burden of proof to establish fact of injury.17
ORDER
IT IS HEREBY ORDERED THAT the October 12, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: August 13, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

16

Supra note 14; see also Betty J. Smith 54 ECAB 174 (2002).

17

Due to the disposition of issue 1, issue 2 is rendered moot.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL,
Casa Grande, AZ, Employer
__________________________________________

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

Docket No. 09-2197
Issued: May 3, 2010

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 August 31, 2009 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated August 10, 2009. Under 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 sustained a lung condition in the performance of duty.
FACTUAL HISTORY
Appellant, a 35-year-old border patrol agent, filed a Form CA-2 claim for benefits on
April 16, 2009, alleging that he developed a lung condition causally related to employment
factors in approximately March 2009. He stated on the form that he developed chills, fever,
night sweats, headaches, cough and chest pain, in addition to shortness of breath. Appellant
indicated that his physicians believed that he had a fungus in his lungs.

Appellant submitted an April 7, 2009 treatment note from Dr. Rajeesh Punnakkattu, a
family practitioner, who indicated that appellant was not able to return to work as of
April 21, 2009. He also submitted an April 7, 2009 treatment note from a physician’s assistant
who stated that he would be off work until he was released by a specialist due to possible valley
fever.
On May 21, 2009 the Office advised appellant that it required factual and medical
evidence to determine whether he was eligible for compensation benefits. It asked appellant to
provide additional information concerning his claim, including a detailed description of the
employment-related exposure which he believed contributed to his illness; the location(s) where he
was exposed; the potentially harmful substances to which he was exposed and the manner in which
the exposure occurred. The Office asked appellant to submit a comprehensive report from his
treating physician describing his symptoms and the medical reasons for his condition, an opinion
as to whether his claimed condition was causally related to his federal employment.
In an April 21, 2009 treatment note, Dr. Punnakkattu released appellant to return to full
duty as of April 22, 2009.
By decision dated August 10, 2009, the Office denied appellant’s claim, finding that he
failed to submit medical evidence sufficient to establish that he sustained a lung condition in the
performance of duty.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged, and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.2 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.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

2

The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between his claimed right shoulder condition and his
federal employment. This burden includes providing medical evidence from a physician who
concludes that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.5
ANALYSIS
In the instant case, appellant has failed to submit any medical opinion containing a
rationalized, probative report which relates his claimed lung condition to factors of his
employment. For this reason, he has not discharged his burden of proof to establish his claim
that this condition was sustained in the performance of duty.
Appellant submitted two treatment notes from Dr. Punnakkattu which indicated that
appellant was placed on disability during April 2009 but did not relate this disability to a workrelated condition. The April 7, 2009 treatment from a physician’s assistant does not constitute
medical evidence pursuant to section 8101(2). Appellant did not provide a probative,
rationalized medical opinion that the claimed condition or disability was causally related to
employment factors.6 The weight of medical opinion is determined by the opportunity for and
thoroughness of examination, the accuracy and completeness of physician’s knowledge of the
facts of the case, the medical history provided the care of analysis manifested and the medical
rationale expressed in support of stated conclusions.7 Appellant did not submit a medical
opinion which described his job duties or explained the medical process through which such
duties would have been competent to cause the claimed condition.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor,
the belief that her condition was caused, precipitated or aggravated by his employment is

4

Id.

5

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

6

William C. Thomas, 45 ECAB 591 (1994).

7

See Anna C. Leanza, 48 ECAB 115 (1996).

3

sufficient to establish causal relationship.8 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
The Office advised appellant of the evidence required to establish his claim; however,
appellant failed to submit such evidence. Consequently, appellant has not met his burden of
proof in establishing that his claimed lung condition was causally related to his employment.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish that his
claimed lung condition was sustained in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the August 10, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: May 3, 2010
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

8

Id.

4