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

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

Docket No. 13-553
Issued: July 25, 2013

Case Submitted on the Record

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

JURISDICTION
On January 9, 2013 appellant filed a timely appeal from the August 10, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his emotional
condition claim. He also appealed a December 27, 2012 decision finding that he abandoned his
request for a hearing. 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 the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an emotional condition in the performance of duty; and (2) whether OWCP properly
determined that he abandoned his request for a hearing.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 11, 2012 appellant, then a 56-year-old clerk, filed an occupational disease claim
alleging stress, bipolar disorder and sleep apnea as a result of his work environment. He became
aware of his condition and realized that it was causally related to his employment on
March 30, 2012. Appellant stopped work on March 30, 2012 and did not return.2
In an undated statement, appellant noted reporting to work late on March 30, 2012. His
postmaster, Sandra Neely, was present and she stated repeatedly that he was late and that he was
supposed to be at the customer service window by 9:00 a.m. Appellant informed her that he was
not late and that he had five minutes to get to his workstation. Ms. Neely continued to assert that
he was late and that she was going to have Anthony Jones, his supervisor, meet with him to
discuss his start time. Appellant requested that a union steward be present at the meeting. At
this time, his head started to hurt and he felt sick and weak. Appellant assisted two customers at
the window but felt very stressed and requested permission to leave work from Mr. Jones, who
alleged that Ms. Neely informed him that she was initiating an investigation interview with
appellant for possible insubordination for the manner in which he spoke to her on the work room
floor. He asserted that Ms. Neely spoke to him in an inappropriate manner and instructed him to
get off the clock and go home. Appellant told her that she could not continue to bully people and
indicated that his voice was elevated due to his stress level.
Appellant submitted an attending physician’s report from Dr. Nancy Rubio, a Boardcertified psychiatrist, who diagnosed bipolar disorder and possible sleep apnea. Dr. Rubio
checked a box “yes” that his condition was caused or aggravated by work activity and noted that
he had a confrontation with the postmaster which caused distress. Also submitted was a Family
Medical Leave Act health care provider certification which noted that appellant was being
treated for bipolar disorder and stress. A certificate of visit from Darrell D. Turner, Ph.D, a
clinical psychologist, dated March 30, 2012, noted appellant was treated for mental health
reasons and was disabled until April 3, 2012.
On April 24, 2012 OWCP asked appellant and the employing establishment to provide
additional evidence.
Appellant submitted medical records from the Veterans Administration Medical Center
dated March 30 to April 16, 2012. He was treated by Dr. Rubio for an onset of depression,
worsening with headaches, which may have been precipitated by a negative encounter with his
supervisor on March 30, 2012.
Dr. Rubio diagnosed anxiety disorder, osteoarthritis,
dyslipidemia, obesity, erectile dysfunction and radiculopathy.
The employing establishment submitted a May 7, 2012 letter controverting appellant’s
claim. It submitted statements from Ms. Neely dated May 7 and 22, 2012. On March 30, 2012
Ms. Neely was assisting a customer at a window at 9:00 a.m. and noticed that there was only one
clerk at the window when there should be three. She walked into the back and saw Nicole
Robinson, appellant’s coworker, and appellant and inquired as to their scheduled reporting time.
Ms. Neely noted that both employees were to clock in at 9:00 a.m. and report directly to the
2

The claim form listed appellant’s tour of duty as 9:00 a.m. to 6:00 p.m. Monday through Friday.

2

window. Appellant stated that he had until 9:05 a.m. to clock in. Ms. Neely advised him that he
was to clock in at 9:00 a.m. and had five minutes for congestion at the time clock. Appellant
became agitated and told her that he would not argue and that she should take it up with his
union steward. Ms. Neely spoke to Mr. Jones, appellant’s supervisor, and proposed a meeting
with appellant and his union steward, to clarify that his reporting time was 9:00 a.m., not 9:05
a.m., and that his attitude would not be tolerated. Prior to the meeting, appellant walked into her
office and stated that he was going home sick because he was stressed. Ms. Neely stated that, if
he needed to leave, he should do so and advised him to submit medical documentation.
Appellant became very agitated and was opening and closing his fists and stated that “you can’t
bully and intimidate me.” Ms. Neely repeatedly told him to go home. She noted that appellant
had various medical and personal issues in the past year and missed work. Ms. Neely stated that
her post office was not understaffed and there were many times when he would be standing
against the wall because there were no customers. Appellant did not have extra demands placed
on him and was generally able to perform his work duties in accordance with expectations.
Ms. Neely advised that his attendance was less than satisfactory due to his medical appointments.
In an undated statement, Ms. Robinson, appellant’s coworker, noted that on March 30,
2012 she arrived at work and clocked in. Appellant had clocked in at 9:07 a.m. Ms. Neely
approached them and began to “fuss at both of us that we were late.” Appellant stated that he
was not late and that he still had time to clock in and Ms. Neely continued to state that he was
late. Ms. Robinson retrieved her training materials from the training office when she heard a
commotion by the time clock. She turned to see Ms. Neely and appellant discussing whether he
reported to work late. A statement from Karen Brewer, a supervisor, noted that appellant was
animated and boisterous during his time at work and that he was not under duress from his job.
In a decision dated August 10, 2012, OWCP denied appellant’s claim finding that the
claimed emotional condition did not occur in the performance of duty. It found that he did not
establish any compensable work factors.
On August 16, 2012 appellant requested an oral hearing. He submitted an undated letter
from Dr. Turner. On October 24, 2012 OWCP advised appellant that a telephone hearing would
be held on December 5, 2012 at 9:30 a.m., eastern time. It instructed him to call the provided
toll-free number a few minutes before the hearing time and enter the pass code to gain access to
the conference call. OWCP mailed the October 24, 2012 letter to appellant’s address of record.
By decision dated December 27, 2012, OWCP found that appellant had abandoned his
request for a hearing. It found that he received a written notice of the hearing 30 days before the
scheduled hearing but did not appear or explain his absence either before or after the scheduled
hearing.
LEGAL PRECEDENT -- ISSUE 1
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused

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or contributed to the condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to the emotional condition.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,4 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.5 When an employee experiences emotional stress in carrying out his or
her employment duties, and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.6 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.7 Where the claimant
alleges compensable factors of employment, he or she must substantiate such allegations with
probative and reliable evidence.8 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.9 On the other hand the disability is not covered where
it results from such factors as an employee’s fear of a reduction-in-force or his frustration from
not being permitted to work in a particular environment or to hold a particular position.10
ANALYSIS -- ISSUE 1
Appellant alleged that on March 30, 2012 he reported to work at 9:05 a.m. and was
clocking in when Ms. Neely, spoke to him in an inappropriate tone and harassed him. Ms. Neely
stated repeatedly that he was late and that he was supposed to be at the customer service window
by 9:00 a.m. Appellant alleged that she bullied and tried to intimidate him and stated that she
was going to have his supervisor speak with him about his start time which caused stress. He
asserted that Ms. Neely improperly threatened to discipline him and start an investigation for
possible insubordination for the manner in which he spoke to her on March 30, 2012 after she
confronted him for being late. The Board must review whether the alleged incidents and
conditions of employment are established as compensable factors under the terms of FECA.

3

George H. Clark, 56 ECAB 162 (2004).

4

28 ECAB 125 (1976).

5

See Robert W. Johns, 51 ECAB 137 (1999).

6

Supra note 4.

7

J.F., 59 ECAB 331 (2008).

8

M.D., 59 ECAB 211 (2007).

9

Roger Williams, 52 ECAB 468 (2001).

10

Supra note 4.

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Appellant has not attributed his emotional condition to the regular or specially assigned duties of
his position as clerk. Therefore, he has not alleged a compensable factor under Cutler.11
Appellant made several allegations related to administrative and personnel actions. In
Thomas D. McEuen,12 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employing establishment is not covered under FECA as
such matters pertain to procedures and requirements of the employing establishment and do not
bear a direct relation to the work required of the employee. The Board noted, however, that
coverage under FECA would attach if the factual circumstances surrounding the administrative
or personnel action established error or abuse by management in dealing with the claimant.
Absent evidence of such error or abuse, the resulting emotional condition must be considered
self-generated and not employment generated. In determining whether the employing
establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.13
Appellant asserted that on March 30, 2012 Ms. Neely improperly threatened to discipline
him and initiate an investigation interview for possible insubordination concerning the manner in
which he spoke to her on March 30, 2012. His allegation that she improperly threatened to
discipline him and initiate an investigation interview for possible insubordination relates to an
administrative or personnel matters unrelated to his regular or specially assigned duties and does
not fall within the coverage of FECA.14 Although the handling of disciplinary actions and
evaluations are generally related to the employment, they are administrative functions of the
employing establishment and not duties of the employee.15 While Ms. Neely may have
mentioned possible discipline or an investigation, the record fails to establish that appellant was
disciplined or the subject of an investigative interview. To the extent that appellant is
complaining about the manner in which Ms. Neely performed her duties as a supervisor or the
manner in which she exercised her supervisory discretion, this is outside the scope of coverage
provided by FECA. This principle recognizes that a supervisor or manager in general must be
allowed to perform her duties that employees will at times dislike the actions taken, but that mere
disagreement or dislike of a supervisory or management action will not be actionable, absent
evidence of error or abuse.16 Absent evidence of error or abuse, appellant’s mere disagreement
or dislike of a managerial action is not compensable.17 The Board finds that he did not submit
sufficient evidence to establish error or abuse. The evidence does not establish that Ms. Neely

11

Supra note 4.

12

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991).

13

See Richard J. Dube, 42 ECAB 916, 920 (1991).

14

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988). Furthermore, time and attendance
matters are administrative in nature. See James P. Guinan, 51 ECAB 604 (2000).
15

Id.

16

See Marguerite J. Toland, 52 ECAB 294 (2001).

17

See supra note 13.

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acted unreasonably. Appellant has not established administrative error or abuse in the
performance of these actions and therefore they are not compensable under FECA.
Appellant alleged that on March 30, 2012 he was running late and reported to work at
9:05 a.m. when Ms. Neely harassed him by stating repeatedly that he was late and that he was
supposed to be at the customer service window by 9:00 a.m. He alleged that she bullied and
intimidated him and stated that she was going to have his supervisor meet with him. To the
extent that incidents alleged as constituting harassment or a hostile environment by a supervisor
are established as occurring and arising from appellant’s performance of his regular duties, these
could constitute employment factors.18 For harassment to give rise to a compensable disability
under FECA, there must be evidence that harassment did in fact occur. Mere perceptions of
harassment are not compensable under FECA.19 The factual evidence fails to support appellant’s
claim for harassment. The record does not support his allegation that he was harassed or
threatened or worked in a hostile environment. Ms. Neely stated that on March 30, 2012 she
questioned appellant and Ms. Robinson as to their scheduled reporting time as both employees
were late and were supposed to clock in at 9:00 a.m. and report directly to the window. She
advised appellant that he was scheduled to clock in at 9:00 a.m. and had five minutes for
congestion at the time clock. Appellant became agitated and was opening and closing his fists.
His statement confirms that he was running late on March 30, 2012. This was corroborated by
Ms. Robinson, appellant’s coworker, who noted that on March 30, 2012 she arrived at work and
noted that he clocked in at 9:07 a.m., when his reporting time was 9:00 a.m. Ms. Robinson also
noted that Ms. Neely approached them and began to “fuss at both of us that we were late.”
Appellant noted that, after his confrontation with Ms. Neely, his voice was elevated. Ms. Neely
denied any misconduct and the evidence supports that appellant’s work shift commenced at 9:00
a.m. and he clocked in after that time. There is no corroborating evidence to support that she
treated appellant improperly. Appellant has not established a compensable factor of employment
in this regard.
To the extent that appellant alleged that Ms. Neely made improper comments to him, the
Board has recognized the compensability of verbal abuse and threats in certain circumstances.
This does not imply, however, that every statement uttered in the workplace will give rise to
coverage under FECA.20 The Board finds that the evidence does not support any specific
incidents of verbal abuse. Although appellant asserted that Ms. Neely spoke to him
inappropriately, appellant provided no corroborating evidence to establish his allegations.21 He
also acknowledged that his voice was raised during this interaction. Ms. Robinson’s statement
indicated that Ms. Neely began to “fuss” at her and appellant because they were late and that she
later heard a “commotion” when appellant and Ms. Neely were addressing whether he was late,

18

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

19

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a
claimant must substantiate allegations of harassment or discrimination with probative and reliable evidence).
20

Charles D. Edwards, 55 ECAB 258 (2004).

21

See William P. George, 43 ECAB 1159, 1167 (1992) (claimed employment incidents not established where
appellant did not submit evidence substantiating that such incidents actually occurred).

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she provided no support that Ms. Neely’s comments rose to the level of verbal abuse.22 There is
insufficient corroborating evidence to support that any verbal interaction with appellant by
Ms. Neely or others rose to the level of a compensable employment factor.
Consequently, appellant has not established his claim for an emotional condition as he
has not attributed his claimed condition to any compensable employment factors.23
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.24 Unless
otherwise directed in writing by the claimant, the hearing representative will mail a notice of the
time and place of the hearing to the claimant and any representative at least 30 days before the
scheduled date.25
A claimant who fails to appear at a scheduled hearing may request in writing within 10
days after the date set for the hearing that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference.
The failure of the claimant to request another hearing within 10 days or the failure of the
claimant to appear at the second scheduled hearing without good cause shown, shall constitute
abandonment of the request for a hearing. Where good cause is shown for failure to appear at
the second scheduled hearing, review of the matter will proceed as a review of the written
record.26 Where it has been determined that a claimant has abandoned his or her request for a
hearing, OWCP’s Branch of Hearings and Review will issue a formal decision.27
ANALYSIS -- ISSUE 2
On August 10, 2012 OWCP denied appellant’s claim. Appellant timely requested an oral
hearing. In an October 24, 2012 letter sent to his address of record, OWCP notified him that a
22

See Judy L. Kahn, 53 ECAB 321 (2002) (the fact that a supervisor was angry and raised her voice does not, by
itself, support a finding of verbal abuse).
23

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).
24

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

25

20 C.F.R. § 10.617(b).

26

Id. at § 10.622(f).

27

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (October 2011).

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telephone hearing was scheduled for December 5, 2012 at 9:30 a.m., eastern time. It instructed
appellant to telephone a toll-free number and enter a pass code to connect with the hearing
representative. Appellant did not telephone at the appointed time. He did not request a
postponement of the hearing or explain his failure to appear at the hearing within 10 days of the
scheduled hearing date of December 5, 2012. The Board therefore finds that he abandoned his
request for a hearing.
On appeal, appellant asserted that he did not abandon his hearing or understand OWCP’s
letter sent in October 2012. After he received the December 27, 2012 decision he called OWCP
on December 27, 2012 and was informed that the hearing date was on the letter sent in October.
Appellant contended that he would not have missed the hearing and he had not returned to work.
The October 24, 2012 letter clearly set forth the time and date of the hearing as well as the
necessary information for joining the telephone hearing. The record reflects that it was properly
mailed to his address of record.28 Appellant did not request a postponement of the scheduled
hearing; failed to appear at a scheduled hearing; and failed to provide any notification for such
failure within 10 days of the scheduled date. The Board finds that he abandoned his request for
an oral hearing.
CONCLUSION
The Board finds that the evidence fails to establish that appellant sustained an emotional
condition in the performance of duty. The Board further finds that he abandoned his request for
an oral hearing.

28

Absent evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business is
presumed to have been received. See Nelson R. Hubbard, 54 ECAB 156 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the December 27 and August 10, 2012 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: July 25, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 20-1621
Issued: June 28, 2021

Case Submitted on the Record

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

JURISDICTION
On September 10, 2020 appellant filed a timely appeal from an August 25, 2020 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 total disability from
work, commencing May 11, 2019, causally related to his accepted October 30, 2012 employment
injury.
FACTUAL HISTORY
On October 30, 2012 appellant, then a 53-year-old city tractor trailer operator, filed a
traumatic injury claim (Form CA-1) alleging that on that date, when unloading a heavy mail
container, he injured his left knee while in the performance of duty. OWCP accepted the claim
1

5 U.S.C. § 8101 et seq.

for sprain of unspecified sites of left knee and leg, and tear of the lateral meniscus of the left knee.
It later expanded his claim to include left hip strain. Appellant did not immediately stop work.2
On September 11, 2014 the employing establishment offered appellant rehabilitation lightduty assignment as a customer care agent -- tier 1, effective October 18, 2014, with a salary of
$58,004.00. The physical requirements included sitting in a chair with a supportive back or
standing at a workstation, occasional simple grasping, occasional pushing/pulling using a
computer mouse, and occasional fine manipulation when using a keyboard. The job was in an
office setting and the workstation was ergonomically adjustable. The employing establishment
indicated that the assignment was in strict compliance with his medically-defined work limitations
of limited walking (as tolerated), no pushing/pulling or lifting over 20 pounds, no driving at work,
and avoid climbing ladders. Appellant accepted the job offer.
On January 6, 2017 the employing establishment initiated a “Blue Ribbon Intervention”
due to appellant’s poor attendance record. The stipulations noted that the employee was having
problems with his left knee after undergoing surgery.
Appellant submitted several notes dated January 9 through September 27, 2017 as well as
an investigative interview dated June 13, 2017, addressing his absences from work.
On April 3, 2017 the employing establishment issued a letter of warning due to
unsatisfactory attendance and unscheduled leave usage. It noted unscheduled absences from
December 13, 2016 through March 20, 2017.
On August 1, 2017 the employing establishment issued a seven calendar-day suspension
due to unsatisfactory attendance. It noted unscheduled absences beginning May 2 through
August 1, 2017.3
On July 29, 2019 appellant filed a claim for wage-loss compensation (Form CA-7) for
leave without pay (LWOP) for the period May 11 through July 19, 2019 as a result of his accepted
employment injury. On the reverse side of the Form CA-7 the employing establishment indicated
that “appellant took off on his own[.] Manager has stated that claimant was NOT sent home.”
In a July 29, 2019 statement, appellant related that he sustained a work-related left knee
injury and underwent a “botched operation” on December 8, 2014, which left him permanently
disabled. He noted that he was sent to work in a call center and then sent home for not being able
to work and placed in LWOP status for five pay periods. Appellant referenced an attached Form
CA-7.

2

On November 14, 2013 appellant filed a notice of recurrence (Form CA-2a) alleging that on September 14, 2013
he sustained a recurrence of disability causally related to his October 30, 2012 work injury. On December 4, 2013
OWCP accepted appellant’s claim for a recurrence of disability.
3

Appellant submitted work status reports from Dr. Christine M. Calderon, a Board-certified family practitioner,
dated February 1 through March 21, 2018. She diagnosed chronic low back pain and left knee joint pain. Dr. Calderon
noted that appellant was off work February 1, 2, 6, 7, 14, 15, 16, 21, 22, and 23, 2018, February 28 through March 2,
2018, March 5 through 9, and March 21 through 23, 2018. In a work status report dated March 21, 2018, she evaluated
appellant and deemed him able to return to work full capacity on March 24, 2018.

2

In an August 22, 2019 development letter, OWCP advised appellant that additional
evidence was needed to establish disability from work during the period claimed. It noted that the
evidence of record indicated that, following his original injury, he continued to work until May 11,
2019 when he stopped completely. OWCP indicated that appellant did not submit any supporting
documentation with his claim and the most recent medical evidence addressing his left knee injury
was from March 21, 2018. It provided a definition of a recurrence of disability and requested
appellant substantiate the factual elements of his claim by responding to a questionnaire. OWCP
provided 30 days to submit the requested information.
On September 4, 2019 appellant filed a claim for wage-loss compensation (Form CA-7)
for leave without pay (LWOP) for the period July 20 through August 16, 2019 and August 17
through 30, 2019. On the reverse side of the Form CA-7 the employing establishment again
indicated that there was no medical evidence on file indicating disability, rather the last medical
report dated March 21, 2018 returned appellant to full duty.
By decision dated October 1, 2019, OWCP denied appellant’s claim for wage-loss
compensation for disability from work commencing May 11, 2019. It indicated that he did not
submit any evidence in support of his claim. OWCP found that the medical evidence of record
was insufficient to establish that he was disabled from work due to his accepted work-related
medical condition.
Appellant was treated by Delia Mendoza-Zesati, a physician assistant, on January 2, 2019
for a left knee injury occurring at work on October 30, 2012. He reported working as a call center
operator, but had been off work since June 2018. Appellant indicated that he underwent a failed
arthroscopic surgery on December 8, 2014. Ms. Mendoza-Zesati diagnosed left knee meniscus
disorder.
On January 11, 2019 appellant was treated by Dr. Dana Haughton McKay, a Boardcertified family practitioner, for ongoing left knee pain and a cough. Findings on examination
revealed a left knee brace, pain when standing, and lumbar tenderness to palpation. Dr. McKay
diagnosed left knee joint pain, chronic low back pain, cough, and dermatitis.
Appellant continued to submit claims for wage-loss compensation (Form CA-7) for leave
without pay (LWOP) for the periods: August 31 through September 27, 2019; September 28
through October 25, 2019; October 26 through December 20, 2019; December 23, 2019 through
January 3, 2020; January 4 through 31, 2020; February 1 through 28, 2020; and February 29
through March 27, 2020.
On January 10, 2020 appellant was treated by Dr. Paul H. Woodworth, a Board-certified
orthopedist, who assessed left knee joint pain. He reported that his left knee continued to be
painful, that it buckled daily, and the he had to wear a brace at all times. Appellant noted no relief
in symptoms from a knee injection. Findings on examination revealed tenderness over the anterior
knee, medial knee, lateral knee, and limited range of motion. Dr. Woodworth referred appellant
to pain management.
In an undated statement received by OWCP on April 8, 2020, appellant requested the status
of his Form CA-7 claims for compensation. He reported receiving pay stubs reflecting no pay and
attached a copy of a paystub from 2020. Appellant submitted several notes dated July 11, 2019

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through April 27, 2020.
compensation.

He asserted that he would continue to submit CA-7 claims for

OWCP received additional evidence. A July 10, 2018 Letter of Instruction from the
employing establishment indicated that, effective July 11, 2018, appellant was placed on paid
administrative leave during the pendency of the disciplinary process and was required to not report
to work until further notice. OWCP received a May 6, 2019 letter from the employing
establishment informing appellant that the agency was placing him in a LWOP status, effective
May 11, 2019. It indicated that appellant was placed in administrative pay status in August 2018
with the understanding that he would cooperate with the agency’s interactive reasonable
accommodation process. However, after eight months, appellant failed to provide the requested
documents needed to evaluate the request and identify reasonable accommodation.
On May 5, 2020 appellant requested reconsideration.
OWCP received additional Form CA-7 claims for wage-loss compensation for disability
from work during the periods March 28 through April 24, 2020, and April 25 through
May 22, 2020.
In a June 12, 2020 development letter, OWCP requested additional information from the
employing establishment. It noted that appellant was requesting reconsideration of the decision
denying compensation beginning May 11, 2019. OWCP indicated that the Form CA-7 dated
July 29, 2019 noted that appellant took off on his own and that the manager did not send him home.
It requested documentation regarding the light-duty position appellant was working prior to his
claim for disability on May 11, 2019. OWCP further requested evidence to support the employing
establishment’s claim that appellant was not sent home as a result of the employer’s inability to
accommodate his work restrictions.
Appellant submitted a June 25, 2020 statement and indicated that, upon receipt of the
July 10, 2018 Letter of Instruction, he was escorted out of the building and off the property.
OWCP received an August 14, 2018 employing establishment memorandum regarding a
Notice of Removal dated July 6, 2018, which charged appellant with failure to maintain regular
attendance/failure to follow instructions. It provided a 30 days’ notice of his removal, which was
effective August 13, 2018.
In an August 7, 2020 follow-up letter, OWCP requested additional information from the
employing establishment. It requested the date appellant returned to work after his surgery on
December 8, 2014, whether he returned to his previous light-duty position at the customer care
center, whether he continued the light-duty job until he was placed on administrative leave on
July 11, 2018, and copies of written job offers.
In response to OWCP’s development letter, L.F., appellant’s supervisor, indicated that
appellant returned to work on April 6, 2015. It was unknown whether he returned to his previous
light-duty job or if he stayed in that position until placed on administrative leave. L.F. did not
remember appellant having any special accommodations. The employing establishment submitted
a March 28, 2019 revised rehabilitation assignment offer for a customer care agent -- tier 1,
effective March 30, 2019, with a salary of $63,283.00. The physical requirements of a customer
care agent included sitting in a chair with a supportive back or standing at a workstation, occasional
4

simple grasping, occasional pushing/pulling using a computer mouse, occasional fine
manipulation when using a keyboard. The job was in an office setting and the workstation was
ergonomically adjustable. The employing establishment indicated that the assignment was in strict
compliance with his medically-defined work limitation and was not changed from the previous
rehabilitation offer.
By decision dated August 25, 2020, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.5 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.6 Whether a particular injury causes an
employee to be disabled from employment and the duration of that disability are medical issues,
which must be proven by a preponderance of the reliable, probative, and substantial medical
evidence.7 Findings on examination are generally needed to support a physician’s opinion that an
employee is disabled from work.8
The term “disability” is defined as the incapacity, because of an employment injury, to earn
the wages the employee was receiving at the time of the injury.9 Disability is, thus, not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages.10 An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.11
The Board will not require OWCP to pay compensation for disability in the absence of any
medical evidence addressing the specific dates of disability for which compensation is claimed.

4

5 U.S.C. § 8101 et seq.

5

M.C., Docket No. 18-0919 (issued October 18, 2018); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine
Pendleton, 40 ECAB 1143 (1989).
6

Id.; William A. Archer, 55 ECAB 674 (2004).

7

V.H., Docket No. 18-1282 (issued April 2, 2019); Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer,

8

Dean E. Pierce, 40 ECAB 1249 (1989).

id.

9
20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB
397 (1999).
10

G.T., Docket No. 18-1369 (issued March 13, 2019); Robert L. Kaaumoana, 54 ECAB 150 (2002).

11

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

5

To do so would essentially allow an employee to self-certify his or her disability and entitlement
to compensation.12
Where employment is terminated, disability benefits would be payable if the evidence of
record established that the claimant was terminated due to injury-related physical inability to
perform assigned duties, or the medical evidence of record established that the claimant was unable
to work due to an injury-related disabling condition.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish total disability
from work, commencing May 11, 2019, causally related to his accepted October 30, 2012
employment injury.
OWCP accepted that on October 30, 2012 appellant sustained sprain of unspecified sites
of left knee and leg, tear of the lateral meniscus of the left knee, and left hip strain. Appellant
underwent OWCP-authorized left knee surgery on December 8, 2014 and he returned to limitedduty work on April 6, 2015. He was removed from federal employment, effective August 13,
2018, due to irregular attendance/failure to follow instructions. Appellant has alleged that his
irregular attendance was due to his work-related injury. The Board has held that, when a claimant
stops work for reasons unrelated to his or her accepted employment injury, he or she has no
disability within the meaning of FECA.14 Therefore, it is appellant’s burden to submit sufficient
medical evidence to establish that he was unable to work due to an injury-related disabling
condition.15
During his claimed period of disability, appellant received medical treatment from
Dr. Woodworth who assessed left knee joint pain. Appellant reported no relief in symptoms after
a knee injection and indicated that his left knee continues to be painful, it buckles daily, and he
must wear a brace at all times. Findings on examination revealed tenderness over the anterior
knee, medial knee, lateral knee, and limited range of motion. Dr. Woodworth, however, did not
specifically address the relevant issue of disability from employment and, thus, his report is of no
probative value.16
Dr. McKay’s January 11, 2019 report predates the claimed period of disability and does
not otherwise provide medical rationale explaining whether and why appellant was disabled from
work for the period beginning May 11, 2019 causally related to his October 30, 2012 employment
12

See B.K., Docket No. 18-0386 (issued September 14, 2018); Amelia S. Jefferson, supra note 7; see also
C.S., Docket No. 17-1686 (issued February 5, 2019).
13

S.S., Docket No. 18-1680 (issued March 4, 2019); S.J., Docket No. 17-0783 (issued April 9, 2018).

14

V.M., Docket No. 16-0062 (issued May 18, 2016); E.S., Docket No. 11-0657 (issued February 9, 2012); see
John W. Normand, 39 ECAB 1378 (1988).
15

S.S., supra note 13.

16
See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018); see
also William A. Archer, supra note 6 (the Board will not require OWCP to pay compensation for disability in the
absence of medical evidence directly addressing the specific dates of claimed disability).

6

injury.17 Without a medical explanation, supported by objective findings, explaining why
appellant was disabled on specific dates due to the accepted employment injury, appellant would
be self-certifying disability.18
Appellant also received medical treatment from Ms. Mendoza-Zesati, a physician assistant.
Her medical notes, dated January 2, 2019, predate the claimed period of disability and are of no
probative value to establish appellant’s disability claim because physician assistants are not
considered physicians as defined under FECA.19
As the medical evidence of record does not contain sufficient rationale to establish
disability during the claimed period, the Board finds that appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish total disability
from work for the period commencing May 11, 2019 due to his accepted October 30, 2012
employment injury.

17

Id.

18

See B.K., supra note 12; Amelia S. Jefferson, supra note 7; see also C.S., supra note 12.

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA).
19

7

ORDER
IT IS HEREBY ORDERED THAT the August 25, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 28, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Spokane, WA, Employer
__________________________________________

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Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-994
Issued: December 6, 2010

Case Submitted on the Record

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

JURISDICTION
On February 26, 2010 appellant filed a timely appeal from the February 1, 2010 merit
decision of the Office of Workers’ Compensation Programs concerning a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
a one percent permanent impairment of his right arm, for which he received a schedule award.
FACTUAL HISTORY
In early 2007, the Office accepted that appellant, then a 59-year-old letter carrier,
sustained right lateral epicondylitis due to the repetitive duties of his job. On May 20, 2008
appellant filed a claim for a schedule award due to his accepted employment injury.

In a May 3, 2008 report, Dr. Barry Maron, an attending Board-certified orthopedic
surgeon, determined that appellant had a 43 percent permanent impairment of his right arm.1 On
June 16, 2008 an Office medical adviser determined that Dr. Maron’s report contained multiple
inconsistencies and he recommended a second opinion evaluation. On October 15, 2008
Dr. Allan R. Wilson, a Board-certified orthopedic surgeon serving as a second opinion physician,
opined that the accepted condition of right lateral epicondylitis had resolved and found that
appellant had a zero percent permanent impairment of his right arm. On November 6, 2008 an
Office medical adviser also found that appellant had a zero percent permanent impairment of his
right arm. In a November 12, 2008 decision, the Office denied appellant’s claim for entitlement
to schedule award compensation.2
In a May 14, 2009 decision, an Office hearing representative set aside the Office’s
November 12, 2008 decision and remanded the case to the Office for further development. She
found that appellant’s counsel was not notified of the second opinion examination which took
place on October 15, 2008 and that this failure to notify effectively denied appellant the
opportunity to have a physician designated and paid by him present to participate in the
examination as provided for at section 8123(a) of the Federal Employees’ Compensation Act.
The Office hearing representative determined that the Office therefore was precluded from
relying on the opinion produced by the second opinion examination and directed the Office to
refer him for a new second opinion examination to evaluate his right arm impairment under the
standards of the sixth edition of the A.M.A., Guides (6th ed. 2009), the edition then in effect.
The Office referred appellant to Dr. Clarence Fossier, a Board-certified orthopedic
surgeon, for a second opinion examination and opinion on his right arm impairment under the
standards of the sixth edition of the A.M.A., Guides. In a June 22, 2009 letter, the medical
scheduling company advised him, but not counsel, of an appointment with Dr. Fossier on
July 15, 2009. In a June 29, letter, the Office advised appellant and counsel of the July 15, 2009
appointment.
On July 15, 2009 Dr. Fossier stated that on physical examination there is a full range of
motion of the right elbow with pain on maximum dorsiflexion. Pain was reproduced in the upper
forearm and lateral elbow region with maximum dorsiflexion and resisted dorsiflexion but also
with resisted extension of the middle finger. Appellant was somewhat tender just anterior and
distal to the lateral epicondyle. Dr. Fossier stated that there were no skin changes noted from
previous steroid injections and indicated that appellant was more tender over the course of the
radial nerve distal to the elbow in the mobile wad. He diagnosed right lateral epicondylitis and

1

Dr. Maron indicated that appellant had a 40 percent impairment due to decreased pinch strength and a 3 percent
impairment due to limited elbow motion.
2

The standards of the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (5th ed. 2001) were in effect at the time this decision was issued. See infra note 7.

2

indicated that appellant had reached maximum medical improvement by May 3, 2008.3
Dr. Fossier applied the sixth edition of the A.M.A., Guides and stated:
“[U]tilizing Table 15-4 on page 399, under muscle/tendon epicondylitis, lateral or
medial, the claimant would be Class 1 which would be [G]rade C with [one]
percent upper extremity impairment. According to the QuickDASH form
completed by the claimant, his response adds up to 34, which would make him a
Grade Modifier 1, which would be consistent with the diagnosis-based
impairment rating, equal to [one] percent right upper extremity impairment.”4
On July 30, 2009 Dr. Morley Slutsky, a Board-certified occupational medicine physician
serving as an Office referral physician, also provided an opinion that appellant had a one percent
permanent impairment of his right arm. He stated that, under Table 15-4 (Elbow Regional Grid)
of the sixth edition of the A.M.A., Guides, appellant’s primary diagnosis in the right elbow
region was right lateral epicondylitis, Class 1, with a default Grade C equal to a one percent
permanent impairment of the right arm. With respect to the function history grade modifier
under Table 15-7, Dr. Slutsky agreed with Dr. Fossier that appellant had a grade modifier 1 due
to his QuickDASH score of 34. For the physical examination grade modifier under Table 15-8,
he indicated that appellant had palpable pain over the lateral epicondyle and therefore fell under
grade modifier 1 (palpable and observed findings). With respect to the clinical studies grade
modifier under Table 15-9, Dr. Slutsky stated that clinical studies did not reflect the diagnosis
and therefore appellant fell under grade modifier 0. Applying the net adjustment formula found
on page 411, Dr. Slutsky stated that the net adjustment value was -1, which meant that under
Class 1 on Table 15-4 there would be a movement one space to the left from the default Grade C
value. The resultant Grade B finding also corresponded to a one percent impairment and
therefore this represented appellant’s total right arm impairment.
In an August 7, 2009 decision, the Office granted appellant a schedule award for a one
percent permanent impairment of his right arm. The award ran for 3.12 weeks from July 15
to August 5, 2009.5
Appellant requested a telephonic hearing with an Office hearing representative. During
the December 10, 2010 hearing, counsel argued that he was not advised in advance of the
July 15, 2009 second opinion examination with Dr. Fossier and therefore appellant was deprived
of his rights under section 8123 of the Act to have a physician designated and paid by him
present to participate in the examination.
3

Dr. Fossier indicated that April 4, 2008 magnetic resonance imaging scan testing confirmed the right lateral
epicondylitis.
4

The record contains a copy of the QuickDASH form. The DASH in QuickDASH stands for disabilities of the
arm, shoulder and hand. The QuickDASH form contains survey questions asking a given claimant to specify his or
her ability to carry out various activities and the symptoms that he or she experiences while performing them.
5

The Office stated that the schedule award was based on the opinions of Dr. Fossier and Dr. Slutsky who both
found the same level of impairment. It noted that these reports provided “the most contemporaneous and
comprehensive medical evidence in the file” and provided ratings under the sixth edition of the A.M.A., Guides, the
edition in effect since May 1, 2009.

3

In a February 1, 2010 decision, the Office hearing representative affirmed the Office’s
August 7, 2009 decision. She found that Dr. Fossier and Dr. Slutsky properly evaluated
appellant’s right arm impairment and indicated there was no medical evidence showing that she
had a greater impairment. The Office hearing representative stated that, although the medical
scheduling company did not send counsel a copy of the June 22, 2009 letter regarding appellant’s
July 15, 2009 second opinion examination appointment, the Office did send counsel a June 29,
2009 letter advising him of the appointment. Therefore, counsel was advised in advance of the
scheduled second opinion appointment as required.
LEGAL PRECEDENT
The schedule award provision of the Act6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.8 For Office decisions issued on or after
May 1, 2009, the sixth edition of the A.M.A., Guides (6th ed. 2009) is used for evaluating
permanent impairment.9 Under section 8123 of the Act, a claimant may have a physician
designated and paid by him present to participate at a second opinion examination.10
In determining impairment for the upper extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity
to be rated. With respect to the elbow, the relevant portion of the arm for the present case,
reference is made to Table 15-4 (Elbow Regional Grid) beginning on page 399. Then the
associated class is determined from the Elbow Regional Grid and the adjustment grid and grade
modifiers (including functional history, physical examination and clinical studies) are used to
determine what grade of associated impairment should be chosen within the class defined by the
regional grid. The evaluator then uses the regional grid to identify the appropriate impairment
rating value for the impairment class, modified by the adjustments as calculated.11

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404 (1999).

8

Id.

9

See FECA Bulletin No. 9-03 (issued March 15, 2009). For Office decisions issued before May 1, 2009, the fifth
edition of the A.M.A., Guides (5th ed. 2001) is used.
10

5 U.S.C. § 8123(a). According to Office regulations, any notice requirement under the Act is fully satisfied if
served on counsel and has the same force and effect as if sent to the claimant. 20 C.F.R. § 10.700(c).
11

See A.M.A., Guides (6th ed. 2009) 398-400.

4

ANALYSIS
The Office accepted that appellant sustained right lateral epicondylitis due to the
repetitive duties of his job. On May 20, 2008 appellant filed a claim for a schedule award due to
his accepted employment injury. After development of the medical evidence, an Office hearing
representative issued a May 14, 2009 decision setting aside the Office’s November 12, 2008
decision and remanded the case to the Office for referral to a new second opinion examination to
evaluate his right arm impairment under the standards of the sixth edition of the A.M.A., Guides
(6th ed. 2009), the edition then in effect.12 In granting appellant a schedule award for a one
percent permanent impairment, the Office relied on the July 30, 2009 opinion of Dr. Slutsky, a
Board-certified occupational medicine physician who served as an Office medical adviser, who
evaluated the July 15, 2009 assessment of Dr. Fossier, a Board-certified orthopedic surgeon
serving as an Office referral physician. Counsel had argued that he was not informed of the
appointment prior to its scheduled date, July 15, 2009 and therefore appellant could not exercise
his right to have a physician designated and paid by him present to participate at a second opinion
examination. However, the record reflects that proper notification was given by the Office in a
June 29, 2009 letter.13 Moreover, the referral to Dr. Fossier for the provision of an opinion under
the sixth edition of the A.M.A., Guides was necessary as this was the edition in effect at that
time.14
The Board finds that appellant did not submit medical evidence showing that he has more
than a one percent permanent impairment of his right arm, for which he received a schedule
award. The opinions of Dr. Fossier and Dr. Slutsky properly found that the medical evidence
reflects that appellant only has a one percent impairment of his right arm. Both physicians
correctly found that under Table 15-4 (Elbow Regional Grid) of the sixth edition of the A.M.A.,
Guides, appellant’s primary diagnosis in the right elbow region was right lateral epicondylitis,
Class 1, with a default Grade C equal to a one percent permanent impairment of the right arm.15
Both physicians properly found that evaluation of the grade modifier scheme did not change the
level of impairment. Dr. Slutsky provided detailed reasons for the scores for the function history
grade modifier under Table 15-7, the physical examination grade modifier under Table 15-8 and
the clinical studies grade modifier under Table 15-9 and properly applied the net adjustment
formula found on page 411 to find a one percent impairment.16

12

In the November 12, 2008 decision, the Office denied appellant’s claim for entitlement to schedule award
compensation. In the May 14, 2009 decision, the Office hearing representative found that appellant’s counsel was
not notified of the second opinion examination which took place on October 15, 2008 and determined that this
failure to notify effectively denied appellant the opportunity to have a physician designated and paid by him present
to participate in the examination as provided for at section 8123(a) of the Act.
13

See supra note 10; Jeffrey M. Sagrecy, 55 ECAB 724 (2004); James A. Gray, 54 ECAB 277 (2002).

14

See supra note 9.

15

See A.M.A., Guides 399, Table 15-4.

16

See id. at 405-11.

5

Appellant did not submit evidence showing that he has more than a one percent
permanent impairment of his right arm and the Office properly denied his claim for additional
schedule award compensation.17
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a one percent permanent impairment of his right arm, for which he received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 6, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

17

On appeal, counsel argued that the Office’s February 1, 2010 decision was “contrary to the facts and to the
law,” but he did not further explain this statement.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
U.S. POSTAL SERVICE, SOUTHEASTERN
PROCESSING & DISTRIBUTION CENTER,
Southeastern, PA, Employer
__________________________________________

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

Docket No. 11-1931
Issued: April 4, 2012

Case Submitted on the Record

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

JURISDICTION
On August 25, 2011 appellant, through her attorney, filed a timely appeal from a June 6,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) which denied
her recurrence claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of her medical condition commencing June 14, 2009 causally related to her
employment injuries.
On appeal, counsel contends that the medical opinion of an attending physician is
sufficient to establish that appellant’s need for right shoulder surgery is causally related to her
accepted injuries.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on June 7, 2008 appellant, then a 57-year-old mail handler,
sustained a sprain, impingement syndrome and rotator cuff tendinosis of the right shoulder as a
result of pulling equipment at work. She accepted a modified nixie position effective June 9,
2008 and continued to receive medical treatment.
On June 16, 2009 appellant filed a claim for a recurrence of a medical condition on
June 14, 2009.
In a report dated June 22, 2009, Dr. Brett R. Horwitz, an attending Board-certified
orthopedic surgeon, obtained a history that several days prior appellant was cutting bundles of
mail when she experienced increasing discomfort in her right shoulder. Appellant was evaluated
in a hospital emergency room. Dr. Horwitz advised that appellant had persistent and chronic
impingement syndrome of the right shoulder and was a candidate for arthroscopic subacromial
decompression.
Hospital emergency room records dated June 16, 2009 listed a history that appellant
sustained a right shoulder injury two days prior. Appellant experienced moderate pain. She was
found to have right shoulder impingement syndrome.
By letter dated July 21, 2009, OWCP advised appellant that the evidence submitted was
insufficient to establish her recurrence claim. It requested additional factual and medical
evidence.
A June 16, 2009 report from Dr. David H. Forsted, a Board-certified radiologist, stated
that an x-ray showed no acute abnormality in the right shoulder.
In reports dated April 10, 2008 through October 29, 2009 and an April 16, 2009 work
capacity evaluation form, Dr. Horwitz listed findings on physical examination. He diagnosed
conditions including impingement syndrome of the left shoulder; persistent and chronic
impingement syndrome of the right shoulder, secondary to overuse and repetitive stressful work
activities and resistant to conservative management; acute exacerbation of right shoulder
tendinitis; resolving right rotator cuff tendinitis; recurrent left rotator cuff tendinitis and
exacerbation of repetitive stress disorder of both shoulders with adhesive capsulitis of the right
shoulder.
Dr. Horwitz addressed appellant’s medical treatment plan which included
occupational and physical therapy. He advised that she could continue to perform modified
work with restrictions.
A June 23, 2008 report of Dr. Melvin L. Turner, a Board-certified radiologist, stated that
a magnetic resonance imaging (MRI) scan of the right shoulder demonstrated mild distal
infraspinatus tendinopathy and minimal supraspinatus tendinopathy at a described myotendinous
junction and mild to moderate acromioclavicular (AC) joint osteoarthritis. In a May 11, 2009
report, Dr. Turner advised that an MRI scan of the right shoulder demonstrated focal thickening
of the anterior aspect of the supraspinatus tendon which could represent calcific tendinitis of the
supraspinatus. There was moderate tendinopathy of the supraspinatus and infraspinatus without
a full thickness rotator cuff tear and moderate osteoarthritis of the right AC joint.

2

In a report dated July 11, 2003, Dr. Evan S. Kovalsky, a Board-certified orthopedic
surgeon, advised that appellant had left shoulder pain with early osteoarthritis in the left AC joint
and tendinitis and impingement.
Appellant submitted reports from physical therapists who addressed the treatment of her
right shoulder pain and impingement.
A September 16, 2003 report of Dr. Lisa Klein, a Board-certified radiologist, stated that
an MRI scan of the left shoulder demonstrated mild tendinopathy of the supraspinatus tendon,
but no evidence of a rotator cuff tear. There was moderately severe degenerative change of the
left AC joint with some edema surrounding the AC joint and mildly down-sloping acromion. An
MRI scan of the left knee revealed multiloculated high signal intensity posterior to the medial
aspect of the knee joint which probably represented a multiloculated complex Bakers’ cyst. An
MRI scan of the left shoulder demonstrated pain with mild tendinosis and AC joint osteoarthritis.
In a November 9, 2009 decision, OWCP denied appellant’s claim, finding that the
medical evidence was insufficient to establish that she sustained a recurrence of her medical
condition commencing June 14, 2009 causally related to the June 7, 2008 employment injuries.
It found that the medical evidence supported a new exposure to employment factors on
June 14, 2009. OWCP advised appellant to file a new traumatic injury claim.
By letter dated November 11, 2009, appellant, through her attorney, requested an oral
hearing. In a March 5, 2010 statement, appellant described the alleged June 14, 2009 recurrence
of her medical condition. She was cutting bundles of magazines and trying to fill up a machine
with two coworkers when her right shoulder began to hurt. Appellant later advised her
supervisor that she needed to go to a hospital for medical treatment. She stated that her limitedduty position required her to prep mail for five hours a day and sweep mail for one hour.
In a prescription with an illegible date, Dr. Horwitz ordered a transcutaneous electrical
nerve stimulation (TENS) unit. In reports dated September 16, 2009 through January 4, 2010, he
reiterated the diagnosis of persistent impingement syndrome of the right shoulder and found that
appellant could perform modified-duty work with restrictions. In reports dated March 3 and
April 14, 2010, Dr. Horwitz addressed the treatment of appellant’s right shoulder impingement
syndrome arthroscopic subacromial decompression.
In a May 10, 2010 decision, an OWCP hearing representative affirmed the November 9,
2009 decision, finding that the medical evidence submitted was insufficient to establish that
appellant sustained a recurrence of her medical condition. It noted that she sought medical
treatment for increased symptoms related to a new traumatic incident on June 14, 2009.
On October 7, 2010 appellant, through her attorney, requested reconsideration.
In reports dated March 3 through September 30, 2010, Dr. Horwitz reiterated that
appellant could perform modified-duty work with restrictions. He diagnosed chronic right
shoulder impingement syndrome and recommended physical therapy and surgery. In a May 29,
2010 prescription, he ordered a heating pad.

3

In a decision dated January 10, 2011, OWCP denied modification of the May 10, 2010
decision. The medical evidence submitted was found to be insufficient to establish that appellant
sustained a recurrence of her medical condition commencing June 14, 2009 causally related to
her accepted injuries.
By letter dated March 14 2011, appellant, through her attorney, requested
reconsideration.
In reports dated January 6 through April 20, 2011, Dr. Horwitz reiterated the diagnosis of
persistent impingement syndrome with subacromial bursitis and rotator cuff tendinitis of the
right shoulder secondary to a work-related injury that required surgery.
In a June 6, 2011 decision, OWCP denied modification of the January 10, 2011 decision.
LEGAL PRECEDENT
A recurrence of a medical condition is defined as a documented need for further medical
treatment after release from treatment for the accepted condition or injury.2 Continuous
treatment for the original condition or injury is not considered a recurrence of a medical
condition nor is an examination without treatment.3 As distinguished from a recurrence of
disability, a recurrence of a medical condition does not involve an accompanying work
stoppage.4 It is the employee’s burden to establish that the claimed recurrence is causally related
to the original injury.5 Causal relationship is a medical issue that can generally be resolved only
by rationalized medical opinion evidence.6
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a recurrence of a medical condition on June 14, 2009. OWCP accepted that on June 7,
2008 she sustained a sprain, impingement syndrome and rotator cuff tendinosis of the right
shoulder while in the performance of duty. Following these injuries, appellant worked in
modified nixie position. On June 16, 2009 she filed a recurrence claim, contending that her
accepted right shoulder conditions had worsened such that she required arthroscopic surgery
causally related to the accepted conditions. Appellant failed, however, to submit sufficient
rationalized medical opinion evidence to establish that she required further medical treatment
due to her accepted condition.

2

20 C.F.R. § 10.5(y).

3

Id.

4

Id. at § 10.5(x).

5

Id. at § 10.104. See also Mary A. Ceglia, 55 ECAB 626, 629 (2004).

6

See Jennifer Atkerson, 55 ECAB 317 (2004).

4

The reports of Dr. Horwitz, an attending physician, found that appellant had several right
shoulder conditions, including persistent impingement syndrome with subacromial bursitis and
rotator cuff tendinitis of the right shoulder were secondary to the work-related injury and to
overuse and repetitive stressful work activities and necessitated arthroscopic surgery. His initial
report of June 22, 2009 noted that appellant experienced discomfort in her right shoulder several
days prior while cutting bundles of mail, thereby requiring her to undergo treatment in an
emergency room. This history clearly identified new trauma as the basis for appellant’s seeking
medical care. To this extent she was advised by OWCP to file a new traumatic injury claim.
Dr. Horwitz did not adequately explain the nature of the relationship between appellant’s current
conditions and proposed surgery and the accepted right shoulder conditions resulting from the
June 7, 2008 employment injury. The Board has held that a medical opinion not fortified by
rationale is of diminished probative value.7 Dr. Horwitz prescribed a TENS unit and heating
pad. This evidence did not contain any opinion addressing the cause of appellant’s conditions.
Medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value.8
The June 16, 2009 hospital emergency room records also fail to provide any opinion as to
the cause of appellant’s chronic right shoulder conditions and proposed surgery. It was noted
that she injured her right shoulder at work and found that she had right shoulder impingement
syndrome, but did not provide an opinion addressing how the accepted 2008 injury had
deteriorated to the extent that additional care was necessary or the need for surgery in 2010. The
Board finds that the hospital records are insufficient to establish appellant’s claim.
Similarly, Dr. Forsted’s June 16, 2009 x-ray report did not provide an opinion addressing
whether appellant had a right shoulder condition that required surgery causally related to the
June 7, 2008 injuries. He stated that the x-ray showed no acute abnormality in the right shoulder.
The Board finds, therefore, that Dr. Forsted’s report does not support appellant’s claim.
The reports of Dr. Turner, Dr. Kovalsky and Dr. Klein are similarly insufficient to
establish appellant’s claim. The 2003 reports of Dr. Klein and Dr. Kovalsky predate the period
of recurrence by six years and are not relevant to that issue. The diagnostic reports of Dr. Turner
from 2008 and 2009 also predate the June 14, 2009 incident implicated by appellant in this
claim.
The reports from appellant’s physical therapists are of no probative medical value
because a physical therapist is not a physician as defined under FECA.9
On appeal, counsel contended that the medical opinion of Dr. Horowitz was sufficient to
establish that the proposed right shoulder surgery was due to the accepted injuries. For the
reasons stated, the Board finds that Dr. Horwitz’s reports are not sufficiently rationalized to
establish appellant’s claim.
7

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

8

Michael E. Smith, 50 ECAB 313 (1999).

9

See 5 U.S.C. § 8101(2); A.C., Docket No. 08-1453 (issued November 18, 2008).

5

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a recurrence of a medical condition commencing June 16, 2009 causally related to her
accepted injuries.
ORDER
IT IS HEREBY ORDERED THAT the June 6, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 4, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6


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

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

Docket No. 11-636
Issued: September 29, 2011

Case Submitted on the Record

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

JURISDICTION
On January 13, 2011 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) merit decision dated December 15, 2010. Pursuant to the
Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3(e), the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has sustained any permanent impairment to a scheduled
member of his body causally related to his accepted right knee condition, thereby entitling him to
a schedule award under 5 U.S.C. § 8107.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 54-year-old custodian, twisted his right knee on September 27, 2005. He
filed a claim for benefits, which OWCP accepted for right knee sprain.
In a December 1, 2008 report, Dr. Jaime M. Sabogal, Board-certified in orthopedic
surgery and appellant’s treating physician, stated that appellant complained of right knee pain
which he attributed to his September 2005 work injury. He stated that appellant underwent total
knee replacement surgery in 2002.
On September 3, 2009 appellant filed a Form CA-7 claim for a schedule award based on
a partial loss of use of his right lower extremity.
In a July 29, 2009 form report, received by OWCP on September 9, 2009, Dr. Sabogal
checked a box indicating that appellant’s current pain symptoms were attributable to his 2002
total right knee replacement surgery and that he had no residuals stemming from the procedure.
In order to determine whether appellant had any permanent impairment from his accepted
September 27, 2005 right knee sprain, OWCP referred appellant to Dr. Manhal A. Ganma,
Board-certified in orthopedic surgery, for a second opinion examination and impairment
evaluation. In an October 19, 2009 report, Dr. Ganma reviewed the medical history and the
statement of accepted facts, stated findings on examination and opined that appellant had no
permanent impairment stemming from his September 2005 accepted right knee sprain pursuant
to the American Medical Association, Guides to the Evaluation of Permanent Impairment (sixth
edition) (A.M.A., Guides). He stated that appellant underwent a high tibial osteotomy to correct
a deformity of his right knee in 1995 and had a subsequent 2003 right total knee surgery.2
Dr. Ganma stated that the September 2005 work-related right knee strain resolved and that there
were no current objective findings relating to a sprain or strain of the right knee. He further
asserted that there was insufficient objective evidence to establish that the September 2005 work
injury aggravated or affected the 2003 total knee replacement, which was showing signs of
loosening. Dr. Ganma stated that appellant brought x-rays to the examination which documented
that he had loosening of the femoral component in 2004, prior to the work injury and there was
evidence of osteolysis around the screws, in the upper tibia, particularly the medial one that
predated the September 2005 employment injury. He advised that there was a need for a
revision of his knee replacement because of the significant osteolysis present, in the tibia around
the previously inserted screws, but that this was not related to the 2005 work injury. Dr. Ganma
opined that appellant had reached maximum medical improvement with regard to the 2005 right
knee sprain.
In a May 7, 2010 impairment evaluation, an OWCP medical adviser adopted
Dr. Ganma’s findings and conclusions. He stated that appellant reached maximum medical
improvement as of November 27, 2005, as his diagnosed condition of right knee sprain/strain
was the result of a relatively minor trauma to the knee which would be expected to resolve
within approximately eight weeks. OWCP’s medical adviser noted that appellant had no
2

The record is ambiguous as to whether the right knee replacement occurred in 2002 or 2003. Dr. Sabogal, who
performed the surgery, stated that it occurred in 2002.

2

objective findings or diagnoses which would provide him with an impairment rating under Table
16-3, page 509, which rates lower extremity impairments for knee conditions.
By decision dated June 24, 2010, OWCP found that appellant had no ratable impairment
of the right lower extremity causally related to his accepted right knee condition and therefore
was not entitled to a schedule award.
By letter dated July 6, 2010, appellant requested an oral hearing, which was held on
October 5, 2010. He did not submit any additional medical evidence.
By decision dated December 15, 2010, an OWCP hearing representative affirmed the
June 24, 2010 decision.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.6
ANALYSIS
In the instant case, OWCP accepted a condition of right knee sprain. The record also
supports that appellant had a preexisting right knee condition stemming from a deformity of his
right knee which was corrected by a 1995 high tibial osteotomy and a subsequent 2002 right total
knee surgery. The Board notes that there is no specific provision for rating impairment based on
strains or sprains in the A.M.A., Guides. This does not warrant the conclusion that such an
award is precluded. The Board routinely reviews schedule award claims for which the accepted
condition is sprain or strain and has recognized that a sprain/strain may result in a permanent
impairment.7 However, appellant has to establish impairment to a scheduled member caused by
the accepted condition before an impairment due to a preexisting condition can be assessed.8
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

5

Id.

6

Veronica Williams, 56 ECAB 367, 370 (2005).

7

C.H., Docket No. 08-2246 (issued May 15, 2009).

8

See generally Thomas P. Lavin, 57 ECAB 353 (2006).

3

The instant record is not sufficient to establish that appellant has a permanent impairment caused
by his accepted right knee strain. Dr. Sabogal, his treating physician, stated that appellant
complained of right knee pain which he attributed to his September 2005 work injury. He
opined in his July 29, 2009 form report that appellant’s current pain symptoms were attributable
to his 2002 total right knee replacement surgery and that he had no residuals stemming from the
procedure. Dr. Ganma advised that there was insufficient objective evidence to establish that the
September 2005 work injury aggravated or affected the 2002 total knee replacement, which was
showing signs of loosening. He noted x-ray findings from 2004 which showed that appellant had
loosening of the femoral component at that time, with evidence of osteolysis around the screws
in the upper tibia, which predated the September 2005 employment injury. However, while
Dr. Ganma recommended revision of the knee replacement due to this deterioration and
loosening, he opined that this was not related to the 2005 work injury. He concluded that
appellant had no ratable impairment and had reached maximum medical improvement from his
September 2005 right knee sprain. An OWCP medical adviser reviewed Dr. Ganma’s report in a
May 10, 2010 impairment evaluation and properly found that appellant had no permanent
impairment stemming from his accepted right knee sprain.
There are no reports of record to show an impairment rating sufficient to entitle appellant to
a schedule award. Appellant has submitted no other medical evidence indicating that he has
impairment to his right lower extremity. The Board will affirm OWCP’s December 15, 2010
decision, which affirmed the June 24, 2010 decision denying a schedule award for the right lower
extremity.
CONCLUSION
The Board finds that appellant has not sustained any permanent impairment to his right
knee causally related to his accepted right knee sprain, thereby entitling him to a schedule award
under 5 U.S.C. § 8107.

4

ORDER
IT IS HEREBY ORDERED THAT the December 15, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: September 29, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
DEPARTMENT OF THE ARMY, DEFENSE
LOGISTICS AGENCY, New Cumberland, PA,
Employer
__________________________________________

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

Docket No. 07-1201
Issued: February 4, 2008

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 September 27, 2006 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated September 14, 2006. Under 20 C.F.R. §§ 501(c), 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained a left shoulder injury in
the performance of duty.
FACTUAL HISTORY
Appellant, a 56-year-old materials handler, filed a Form CA-1 claim for benefits on
July 11, 2006, alleging that he injured his left arm and left shoulder on June 27, 2006 while

tightening pallet nets. In a June 28, 2006 statement, received by the Office on July 20, 2007,
appellant asserted:
“On June 27, [2006] I was building pallets ... and pulling the nets tight ... [when]
my left shoulder started to hurt and today, June 28, [2006] I was building again,
the left arm and shoulder started to burn and I look[ed] at it. It was black and
blue, so I showed it to [my coworker] and my work leader.”
Appellant submitted several treatment notes which indicated that he underwent a
magnetic resonance imaging [MRI] scan and was examined on July 11, 2007. A July 11, 2006
report from the employing establishment clinic indicated that he was treated for severe muscle
pain in the left shoulder and left upper arm due to an injury he sustained on June 27, 2006. The
report stated:
“Visit for care of left upper arm and shoulder pain after sustaining an injury [on]
June 27, 2006 while working ... in EDC building cargo pallets. Was throwing
cargo nets and felt pain when [he] lifted left arm over head. [H]as pain and
burning and contusion present at division of deltoid and bicep muscles.”
Appellant was referred for an MRI scan and given restrictions of limited use of the left
arm, no lifting over 20 pounds, no pulling, pushing and reaching overhead.
A July 11, 2006 x-ray report noted no fracture or significant bony or joint abnormalities
in the left shoulder with no radiolucency at the base of the greater tuberosity of the humeral head
and no calcium deposits.
In a July 12, 2006 report, Dr. Paul S. Potok, an osteopath, commented on the results of
the MRI scan appellant underwent on that date. He stated:
“There is mild degenerative cystic change in the humeral head. There is a
massive rotator cuff tear with complete rupture of both supra and infraspinatus
tendons. Free cuff edge is retracted by about 3.5 centimeters. There is
tendinopathy, perhaps with partial tearing of the subscapular tendon as well. The
tendon for the long head of the biceps is intact. There is no gross labial
abnormality.”
The employing establishment submitted a July 17, 2006 notice of proposed suspension on
the grounds of failure to follow instructions, negligence and rude and discourteous conduct. The
memorandum stated:
“Failure to follow instructions:
“On July 11, 2006 at approximately 7:30 a.m., you went to the [employing
establishment] clinic. You returned to the work area with medical documentation
from the clinic which clearly stated that you were in a light[-]duty status.
Specifically, this documentation stated that you were not to lift anything weighing
more than 10 pounds and that you were not to do any pulling, reaching, pushing,
or overhead work until further notice. I gave you clear instructions to assist the ...

2

clerk, in order to make sure that you comply with your medical restrictions. I also
instructed everyone during the setup meeting that if you ran out of work then you
should contact a work leader for additional assignments. However, you failed to
follow my instructions and when you completed your current assignments with
the ... clerk you sought out additional work by yourself. Without seeking any
approval you tried to assist an Outloading employee load a truck. While loading
this truck you exceeded the physical restrictions that the clinic advised you to
follow. You used tie down strips which are heavy duty and hard to work with and
are certainly beyond what the clinic recommended for you to do.
“Negligence:
“You damaged a specially built box for HUMV truck cap in the above[-]described
incident on July 11, 2006. While trying to force this item into the truck, it got
caught on something, you then pulled the item back and then pushed it into the
truck again. In doing this you damaged the box holding the truck cap and it had
to be sent back to the wood working area to be reconstructed.”1
In a report dated July 18, 2006, Dr. Donald E. Potter, a general practitioner and specialist
in occupational medicine, stated that x-rays of appellant’s left shoulder indicated no significant
bony deformity and that an MRI scan reflected a massive rotator cuff tear with retraction.
In a report dated August 4, 2006, Dr. Ernest R. Rubbo, Board-certified in orthopedic
surgery, stated that he had treated appellant for chronic rotator cuff tendinitis. He related
appellant’s history of injury that he experienced burning, increased pain and discomfort in his
left shoulder while lifting a heavy air pallet net. Dr. Rubbo noted that an MRI scan indicated a
large rotator cuff tear of the left shoulder. On examination, appellant had full range of motion of
the left arm with crepitation; he showed weakness of abduction against resistance as well as
external rotation against resistance. Dr. Rubbo placed him on a job involving no use of his left
upper extremity if possible.
By letter dated August 14, 2006, the Office requested additional information. It
requested evidence indicating that appellant sustained his alleged injury on the date in question,
along with a physician’s opinion as to how his injury resulted in the diagnosed condition.
By decision dated September 14, 2006, the Office denied appellant’s claim finding that he
failed to establish fact of injury. It stated that the factual and medical evidence he submitted did
not establish that he sustained a left shoulder injury on June 27, 2006, as he alleged. The Office
noted that, after appellant instigated the July 11, 2006 incident, in which he apparently exceeded
Dr. Potter’s physical restrictions for light duty -- after appellant’s supervisor warned him not to -he left the work area and completed a Form CA-1 claiming he sustained a left shoulder injury on
June 27, 2006. The Office therefore denied compensation.

1

As indicated above, the employing establishment also cited appellant for rude and discourteous conduct.

3

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 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.3 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.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place and in the manner alleged.5 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.6
In order to determine whether an employee actually sustained an injury in the performance
of her duty, the Office begins with an analysis of whether fact of injury has been established.
Generally, fact of injury consists of two components, which must be considered, in conjunction
with one another.7
The first component to be established is that the employee actually experienced the
employment incident, which is alleged to have occurred. An alleged work incident does not have
to be confirmed by eyewitnesses in order to establish that an employee sustained an injury in the
performance of duty, but the employee’s statement must be consistent with the surrounding facts
and circumstances and his subsequent course of action. A consistent history of the injury as
reported on medical reports, to the claimant’s supervisor and on the notice of injury can also be
evidence of the occurrence of the incident. Such circumstances as late notification of injury, lack
of confirmation of injury, continuing to work without apparent difficulty following the alleged
injury and failure to obtain medical treatment may cast doubt on an employee’s statements in
determining whether she has established a prima facie case. The employee has the burden of
establishing the occurrence of the alleged injury at the time, place and in the manner alleged, by a
preponderance of the reliable, probative and substantive evidence.8 An employee has not met this
2

5 U.S.C. § 8101 et seq.

3

Joe D. Cameron, 42 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

5

John J. Carlone, 41 ECAB 354 (1989).

6

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(e)(e).

7

Caroline Thomas, 51 ECAB 451 (2000).

8

Carlone, supra note 5.

4

burden when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim.9 However, 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
ANALYSIS
In the present case, the Office found that the record contained conflicting and inconsistent
evidence regarding whether the claimed event occurred at the time, place and in the manner
alleged. The Office noted that, although appellant stated on his Form CA-1 that he injured himself
on June 27, 2006 while lifting pallets, he did not file this claim until after he ignored his
supervisor’s orders and exceeded Dr. Potter’s work restrictions on July 11, 2006. It concluded that
he did not establish that he sustained the injury in the performance of duty on June 27, 2006. The
Board, however, finds that appellant presented sufficient evidence to establish that the incident to
his left shoulder occurred at the time, place and in the manner alleged.11 He submitted a July 11,
2006 Form CA-1 on which he stated that he injured his left shoulder on June 27, 2006 while
loading pallets and pulling the nets tight. Although no one witnessed the accident, appellant
sought medical attention two weeks after the incident from the employing establishment clinic on
July 11, 2006. The clinic report indicated that he sustained an injury on June 27, 2006 while
working at the employing establishment building cargo pallets. It stated that appellant felt pain
when he lifted his left arm while throwing cargo nets. Dr. Rubbo stated in his August 4, 2006
report that appellant experienced burning, increased pain and discomfort in his left shoulder
while lifting a heavy air pallet at work.
The Board finds that the totality of this evidence which includes two reports indicating that
appellant was examined and treated for a June 27, 2006 left shoulder injury approximately one
month after the alleged employment incident, beginning with the employing establishment’s
July 11, 2006 report, is sufficient to establish that he sustained the incident as alleged in the
performance of duty on June 27, 2006. The Office noted that appellant did not file a Form CA-1
indicating that he sustained a left shoulder injury on June 27, 2006 until after the July 11, 2006
episode in which he allegedly exceeded his work restrictions and behaved in an insubordinate
manner. However, the record contains no contemporaneous factual evidence indicating that the
claimed June 27, 2006 work incident did not occur, as alleged.12 Under the circumstances of this
case, therefore, the Board finds that appellant’s allegations have not been refuted by sufficiently
strong or persuasive evidence. The Board finds that the evidence of record is sufficient to establish
that the incident in which appellant injured his left shoulder on June 27, 2006 occurred at the time,
place and in the manner alleged.
The Board finds, however, that appellant failed to submit rationalized medical opinion
evidence to sufficiently describe or explain the medical process by which the June 27, 2006 work
9

Louise F. Garrett, 47 ECAB 639, 643-644 (1996).

10

Constance G. Patterson, 41 ECAB 206 (1989); Thelma S. Buffington, 34 ECAB 104 (1982).

11

Id.

12

See Thelma Rogers, 42 ECAB 866 (1991).

5

incident would have been competent to cause the claimed injury. In this regard, the Board has
held that the mere fact that a condition manifests itself during a period of employment does not
raise an inference that there is a causal relationship between the two.13
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 his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.14 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence. He
submitted reports from Dr. Potok, Dr. Potter and Dr. Rubbo. Dr. Potok noted MRI scan results
which indicated a mild degenerative cystic change in the humeral head and a massive rotator cuff
tear, with complete rupture of both supra and infraspinatus tendons. He also stated that appellant
had tendinopathy, with partial tearing of the subscapular tendon. In his July 18, 2006 report,
Dr. Potter stated that x-rays of appellant’s left shoulder indicated no significant bony deformity
and that an MRI scan reflected a massive rotator cuff tear with retraction. Dr. Rubbo opined on
August 4, 2006 that appellant had chronic rotator cuff tendinitis and noted appellant’s assertion
that he experienced burning, increased pain and discomfort in his left shoulder while lifting a
heavy air pallet net. He stated that on examination appellant had full range of motion of the left
arm, with crepitation and that he showed weakness of abduction against resistance as well as
external rotation against resistance. Dr. Rubbo also noted that an MRI scan indicated a large
rotator cuff tear of the left shoulder and placed appellant on a job which did require using his left
upper extremity.
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.15 Although the physicians of record did present diagnoses of
appellant’s condition, torn rotator cuff and chronic tendinitis of the left shoulder, they did not
indicate whether these conditions were causally related to the June 27, 2006 employment injury.
There is no indication in the record, therefore, that the diagnosed conditions were work related.
Appellant failed to provide a rationalized, probative medical opinion relating his current
condition to any factors of his employment. Therefore, he failed to provide a medical report
from a physician that the work incident of June 27, 2006 caused or contributed to the claimed left
shoulder injury.
The Office advised appellant of the evidence required to establish his claim; however,
appellant failed to submit such evidence. Appellant, therefore, did not provide a medical opinion
to sufficiently describe or explain the medical process through which the June 27, 2006 work
accident would have caused the claimed injury. Accordingly, as appellant has failed to submit
any probative medical evidence establishing that he sustained a left shoulder injury in the
performance of duty, the Office properly denied appellant’s claim for compensation.
13

See Joe T. Williams, 44 ECAB 518, 521 (1993).

14

Id.

15

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

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CONCLUSION
The Board finds that the Office properly found that appellant failed to meet his burden of
proof to establish that he sustained a left shoulder injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the September 14, 2006 decision of the Office of
Workers’ Compensation Programs be affirmed, as modified.
Issued: February 4, 2008
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

7