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

)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-213
Issued: August 25, 2009

Case Submitted on the Record

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

JURISDICTION
On October 28, 2008 appellant filed a timely appeal from an October 14, 2008 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the schedule award claim.
ISSUE
The issue is whether appellant has established more than 13 percent right upper extremity
impairment, for which he received a schedule award.
FACTUAL HISTORY
On April 17, 2001 appellant, then a 36-year-old distribution clerk, filed an occupational
disease claim attributing his right arm condition to his employment. He stopped work on
April 2, 2001 and returned on June 12, 2001. The Office accepted his claim for sprain/strain of
the right shoulder with rotator cuff impingement. Appellant underwent right shoulder

arthroscopic surgery on January 31 and September 7, 2005.1
compensation and appellant returned to work after each surgery.

The Office paid appropriate

On January 31, 2008 appellant filed a schedule award claim. In a December 18, 2007
report, Dr. Steven M. Allon, an orthopedic surgeon, opined that appellant reached maximum
medical improvement on December 18, 2007. He reviewed the medical records, including the
surgical reports and set forth findings on examination. Utilizing the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),2 Dr. Allon
opined that appellant had 20 percent right arm impairment. He found eight percent range of
motion deficit consisting of four percent right shoulder flexion and four percent right shoulder
abduction. Dr. Allon’s range of motion findings were comprised of: forward elevation of
115 degrees, which equaled four percent impairment under Figure 16-40, page 476; abduction of
90 degrees and adduction of 50 degrees, which equaled four percent and zero percent impairment
respectively under Figure 16-43 page 477; external rotation of 70 degrees and internal rotation of
75 degrees, which equaled zero percent impairment under Figure 16-46 page 479. He also found
that appellant had 10 percent impairment due to right shoulder resection arthroplasty under Table
16-27, page 506. Dr. Allon combined the range of motion impairment of 8 percent with the
10 percent impairment due to right shoulder resection arthroplasty to total 17 percent impairment
of the right upper extremity. He also found that appellant had a pain-related impairment of three
percent under Figure 18-1, page 574.
In a May 2, 2008 report, an Office medical adviser reviewed the medical record and
agreed that appellant reached maximum medical improvement on December 18, 2007. He stated
that Dr. Allon’s 10 percent impairment rating for a resection of the distal clavicle could not be
accepted as the records did not establish that appellant underwent such a procedure. The Office
medical adviser stated that he underwent an acromioplasty, a shaving of the under-side of the
acromion, which did not represent a resection of the distal end of the clavicle. He noted that the
x-ray and magnetic resonance imaging (MRI) scan studies showed that the acromion joint was
within normal limits with no subacromial spur, which indicated that no distal clavicle resection
was needed or performed. The Office medical adviser utilized Dr. Allon’s findings to rate
impairment as 13 percent to the right upper extremity. He rounded off the forward flexion of
115 degrees to 110 degrees to find five percent impairment under Figure 16-40 page 476. Under
Figure 16-43 page 477, the Office medical adviser found 90 degrees abduction equaled four
percent impairment and 50 degrees adduction equaled zero percent impairment. Under Figure
16-46 page 479, he found external rotation of 70 degrees equaled zero percent impairment and
internal rotation of 75 degrees rounded to 70 degrees equaled one percent impairment. The
medical adviser totaled appellant’s shoulder range of motion impairments at 10 percent. He
further found that appellant met the criteria for a three percent pain impairment rating under
Figure 18-1 page 574.

1

Appellant’s January 41, 2005 arthroscopic surgery consisted of debridement and resection of labral tear, partial
bursectomy and acromioplasty. Appellant’s September 7, 2005 arthroscopic surgery consisted of arthroscopy,
arthroscopic chondroplasty, debridement of partial thickness rotator cuff tear and microfracture arthroplasty of the
glenoid.
2

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

2

By decision dated October 3, 2008, the Office granted appellant a schedule award for
13 percent permanent impairment to his right upper extremity. The award covered the period
December 18, 2007 to September 25, 2008 for a total 40.56 weeks of compensation. The Office
used a weekly pay rate of $261.64.
On October 5, 2008 appellant requested reconsideration of the October 3, 2008 decision
contesting the weekly pay rate of $261.64. In an October 14, 2008 letter, the Office advised that
it used an incorrect pay rate and vacated the October 3, 2008 schedule award decision.
By decision dated October 14, 2008, the Office issued an amended schedule award for
13 percent right upper extremity impairment for the period December 18, 2007 to
September 25, 2008. The corrected weekly pay rate was $729.86.3 It issued a lump-sum
payment of $15,038.65 representing the difference between an entitlement to $23,453.61 and the
$8,414.06 which appellant initially received.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 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. The Act, however, 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.6
The standards for evaluation of the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.7 Chapter 16 of
the fifth edition of the A.M.A., Guides provides a detailed grading scheme and procedures for
determining impairments of the upper extremities due to pain, discomfort, loss of sensation or
loss of strength.8
Section 18.3d(c) of the A.M.A., Guides provides that an additional three percent
impairment may be granted for pain that slightly increases the burden of a condition.9 The
3

Appellant does not dispute the pay rate on appeal.

4

5 U.S.C. §§ 8101-8193.

5

20 C.F.R. § 10.404.

6

Ronald R. Kraynak, 53 ECAB 130 (2001).

7

Tammy L. Meehan, 53 ECAB 229 (2001).

8

A.M.A. Guides 433-521 (5th ed. 2001), Chapter 16, The Upper Extremities.

9

Id. at 573.

3

A.M.A., Guides warns that examiners should not use Chapter 18 to rate pain-related impairment
for any condition that can be adequately rated on the basis of the body and organ impairment
rating systems given in the other chapters.10
ANALYSIS
The Office accepted that appellant sustained a sprain/strain of the right shoulder and right
shoulder rotator cuff impingement and authorized two arthroscopic surgeries. It granted him a
schedule award for 13 percent impairment to the right upper extremity due to restricted motion
and pain. This was based on a review by an Office medical adviser of a December 18, 2007
report from Dr. Allon, an orthopedic surgeon.
Dr. Allon opined that appellant had a 20 percent right upper extremity impairment based
on restricted motion, a right shoulder resection arthroplasty and pain. The Office medical
adviser found that he had 13 percent right upper extremity impairment based on restricted motion
and pain. Although Dr. Allon opined that appellant had a 10 percent impairment based on right
shoulder resection arthroplasty, the Office medical adviser explained that the medical evidence
of record did not establish that a resection of the distal clavicle was performed. The record
supports that acromioplasty surgery was performed.11 The Office medical adviser further
explained that diagnostic tests confirmed that a distal clavicle resection was not performed. The
Office medical adviser also stated that testing demonstrated that the acromial joint was within
normal limits and there were no subacromial spurs. The Board finds that there is no basis to
support an impairment rating based on a shoulder resection arthroplasty under the diagnosis
based estimates.
Dr. Allon also found that appellant had a range of motion deficit of eight percent based
on four percent flexion impairment and four percent shoulder abduction impairment. The Office
medical adviser opined the range of motion deficit was 10 percent, based on 5 percent flexion
impairment, 4 percent abduction impairment and a 1 percent loss of internal rotation impairment.
Under Figure 16-40, page 476, shoulder flexion of 115 degrees results in 4.5 percent impairment,
which under Office procedures should be rounded to 5 percent.12 Under Figure 16-43 page 477,
shoulder abduction of 90 degrees results in four percent impairment while an adduction of
50 degrees results in zero percent impairment. Under Figure 16-46 page 479, external rotation of
70 degrees results in 0 percent impairment while an internal rotation of 75 degrees results in
0.5 percent impairment, which is rounded to 1 percent. The record supports that appellant had a
10 percent range of motion deficit based on 5 percent flexion impairment, 4 percent abduction
impairment and 1 percent internal rotation impairment.

10

Id. at 571. See also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700
Exhibit 4 (November 2002). See A.G., 58 ECAB ___ (Docket No. 07-677, issued June 21, 2007).
11

See supra note 1.

12

The policy of the Office is to round the calculated percentage of impairment to the nearest whole number. See
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3b (June 2003). Fractions
are rounded up from .50. See Carl J. Cleary, 57 ECAB 563 (2006).

4

While both Dr. Allon and the Office medical adviser accorded three percent impairment
for pain deficit under Figure 18-1 page 574 of the A.M.A., Guides, the Board finds this is an
improper application of the A.M.A., Guides. The Board has held that physicians should not use
Chapter 18 to rate pain-related impairments for any condition that can be adequately rated on the
basis of the body and organ impairment systems given in other chapters of the A.M.A., Guides.13
Neither Dr. Allon nor the Office medical adviser provided any rationale for why the fact of this
case warranted a separate pain impairment rating under Chapter 18. The medical evidence
establishes that appellant has 10 percent impairment of the right arm based on loss of range of
motion.
CONCLUSION
The Board finds appellant has no more than 13 percent right upper extremity impairment,
for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the October 14, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: August 25, 2009
Washington, DC

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

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

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

13

See Linda Beale, 57 ECAB 429 (2006); Frantz Ghassan, 57 ECAB 349 (2006). See supra note 10.

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Aspen Hill, MD, Employer
)
___________________________________________ )
M.R., Appellant

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

Docket No. 09-1593
Issued: April 6, 2010

Case Submitted on the Record

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

JURISDICTION
On June 8, 2009 appellant filed a timely appeal from the January 22, 2009 decision of the
Office of Workers’ Compensation Programs, which found that he did not sustain an injury in the
performance of duty. 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 sustained a
traumatic injury on July 11, 2007.
FACTUAL HISTORY
On December 3, 2008 appellant, then a 38-year-old letter carrier, filed a traumatic injury
claim alleging that on July 11, 2007 he was in a motor vehicle accident and sustained injury to
his back and neck. He did not stop work.
In a letter dated December 23, 2008, the Office requested additional factual and medical
evidence from appellant. It explained that a physician’s opinion was crucial to his claim and
requested he submit evidence within 30 days. No additional evidence was received.

By decision dated January 22, 2009, the Office denied appellant’s claim on the grounds
that he did not establish an injury as alleged. It found that the evidence was sufficient to show
that the claimed motor vehicle incident occurred as alleged; however, the Office found that there
was no medical evidence to establish an injury related to the incident.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act3 and that an injury was
sustained in the performance of duty.4 These are the essential elements of each compensation
claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational
disease.5
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.6 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.7
ANALYSIS
Appellant alleged that he injured his back when he was involved in a motor vehicle
accident while at work. There is no dispute that appellant was in the performance of duty when
he was involved in the July 11, 2007 motor vehicle accident.
However, there is no medical evidence of record to establish that the employment
incident caused an injury. The record does not contain any medical evidence providing a firm
diagnosis, rationale or an explanation of the mechanism of injury regarding the employment

1

Following the filing of this appeal on June 8, 2009, the Office issued a June 10, 2009 decision regarding the
same issue that is before the Board. Consequently, the Office’s June 10, 2009 decision is null and void as it pertains
to the same issue over which the Board has jurisdiction. See Russell E. Lerman, 43 ECAB 770 (1992); Douglas E.
Billings, 41 ECAB 880 (1990).
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

James E. Chadden, Sr., 40 ECAB 312 (1988).

5

Delores C. Ellyett, 41 ECAB 992 (1990).

6

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

7

Id.

2

incident of July 11, 2007.8 Appellant was advised by the Office to submit medical evidence in
support of his claim but he failed to respond.
Appellant did not submit any medical evidence, which addressed how the July 11, 2007
incident caused or aggravated his claimed back injury. He has not submitted sufficient evidence
to establish that the July 11, 2007 employment incident caused injury.9
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the January 22, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 6, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
9

The Board notes that subsequent to the Office’s January 22, 2009 decision, appellant submitted additional
evidence. The Board cannot consider new evidence on appeal. Appellant may submit the new evidence to the
Office and request reconsideration pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2); see 20 C.F.R.
§ 501.2(c).

3


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

)
)
)
)
)
)
)
)

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

Docket No. 14-1112
Issued: October 7, 2014

Case Submitted on the Record

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

JURISDICTION
On April 14, 2014 appellant filed a timely appeal from a February 19, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying reconsideration.
The most recent merit decision of record is dated December 3, 2012. There is no merit decision
within 180 days of April 14, 2014, the date appellant filed her appeal with the Board. Therefore,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board does not have jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied reconsideration under 5 U.S.C. § 8128(a).
On appeal appellant asserts that OWCP denied her rights by not considering the medical
evidence. She provided a copy of a March 26, 2011 medical report previously of record.
Appellant also contends that the employing establishment forced her to work with her harasser,
triggering memories of past traumas.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 16, 2010 appellant, then a 40-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained an emotional condition in the performance
of duty caused by a pattern of harassment by Coworker J.P in late October and early
November 2010.
In a November 16, 2010 statement, the employing establishment’s postmaster noted that
appellant and the coworker had “never gotten along since 1995 for whatever reason(s).” She
noted that J.P. had the authority to assign work tasks and monitor appellant’s performance. The
postmaster noted that appellant had worked “in an unsafe manner,” requiring J.P. to speak with
her about these deficiencies. She denied that the conversations constituted harassment.
In a November 17, 2010 statement, J.P. described speaking with appellant several times
from October 29 to November 1, 2010 regarding her refusal to follow safety instructions or
comply with established procedures. She refuted appellant’s allegations of harassment. J.P.
expressed willingness to attend mediation with appellant and enroll in an on-line interpersonal
communications class.
Appellant also submitted a November 12, 2010 note from Dr. Michael W. Lucarelli, an
attending osteopathic physician, who took her off work through December 8, 2010.2
In a December 16, 2010 letter, OWCP advised appellant that additional evidence was
needed to establish her claim. It requested factual information corroborating the claimed
incidents of harassment and a medical report addressing how those incidents that caused the
claimed emotional condition.
In response, appellant submitted a November 21, 2010 statement alleging a pattern of
harassment, hostility and disparate treatment by J.P. commencing in 2005. She also submitted
grievance documents and additional reports from Dr. Lucarelli finding her disabled due to work
stress.
By decision dated April 14, 2011, OWCP denied appellant’s claim. It found that fact of
injury was not established. OWCP found that appellant did not establish any compensable
factors of employment as the alleged incidents of harassment were not established as factual.
In an April 3, 2012 letter, appellant requested reconsideration. She submitted a June 16,
2011 affidavit reiterating her allegations of harassment. Appellant also submitted statements
from three coworkers alleging that J.P. treated appellant with disrespect or hostility on
unspecified dates. She also provided a September 26, 2011 report from Dr. James A. Gallo, an
attending Board-certified psychiatrist, reiterated her allegations of harassment and diagnosed
post-traumatic stress disorder.

2

Appellant submitted October 8, 2010 emergency room records regarding a fainting incident at work. However,
she explained on December 28, 2010 that the fainting incident was “totally separate” from her compensation claim.

2

By decision dated May 24, 2012, OWCP denied modification of the April 14, 2011
denial finding that the evidence submitted on reconsideration did not establish a compensable
factor of employment. It found that the coworkers’ statements were too vague to substantiate
appellant’s allegations.
In an August 24, 2012 letter, appellant’s attorney requested reconsideration. He
contended that the three coworkers’ statements were sufficient to corroborate appellant’s
allegations as factual. The attorney asserted that there was no evidence rebutting their general
agreement with appellant’s claims of harassment and hostility. Appellant submitted an
August 11, 2012 statement reiterating her allegations and a November 26, 2010 grievance form.
By decision dated December 3, 2012, OWCP denied modification of the May 24, 2012
decision on the grounds that fact of injury was not established. It found that the additional
evidence did not establish any of appellant’s allegations as factual. OWCP noted that the
coworkers’ statements were too vague to substantiate her allegations.
In a July 17, 2013 letter, counsel requested reconsideration. He submitted appellant’s
June 24, 2013 statement reiterating her allegations, an April 24, 2013 note from Dr. Lucarelli
diagnosing “work stress” due to a ‘hostile’ work environment” and an April 25, 2013 note from a
counselor.
By decision dated February 19, 2014, OWCP denied reconsideration without further
merit review. It found that appellant’s June 24, 2013 statement and counsel’s July 17, 2013
letter did not constitute new, relevant evidence or argument. OWCP further found that
Dr. Lucarelli’s April 24, 2013 note was cumulative and repetitive of his correspondence
previously of record. Further, the counselor’s note was immaterial to the claim.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provide that a claimant must:
(1) show OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4 Section 10.608(b) provides that
when an application for review of the merits of a claim does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.5
In support of a request for reconsideration, a claimant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.6 A claimant need only
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008).

6

Helen E. Tschantz, 39 ECAB 1382 (1988).

3

submit relevant, pertinent evidence not previously considered by OWCP.7 When reviewing an
OWCP decision denying a merit review, the function of the Board is to determine whether
OWCP properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.8
ANALYSIS
Appellant claimed that she sustained an emotional condition due to harassment by a
coworker. In support of her claim, she submitted her November 21, 2010, June 16, 2011 and
August 11, 2012 statements describing an alleged pattern of harassment by J.P., a coworker.
Appellant also provided statements from other coworkers alleging that J.P. was hostile or
disrespectful to her on unspecified dates. She further submitted notes from Dr. Lucarelli, an
attending osteopathic physician. OWCP denied the claim by decisions dated April 14, 2011,
May 24 and December 3, 2012. It found that appellant did not submit sufficient factual evidence
to substantiate a compensable factor of employment. OWCP noted that statements by the
employing establishment’s postmaster and J.P. refuted appellant’s allegations. Further, the
statement of her coworkers were not specific as to instances of harassment.
Appellant requested reconsideration by July 17, 2013 letter. She provided a June 24,
2013 statement repeating her allegations of harassment, a psychiatric report and a note from a
counselor. Appellant’s statement is repetitive of those previously of record. Evidence which is
duplicative or cumulative or repetitive in nature is insufficient to warrant reopening a claim for
merit review.9 The psychiatric report is not relevant whether appellant established a
compensable work factors and therefore does not comprise a basis for reopening the case.10 The
counselor’s note is immaterial to the claim as it is not relevant to whether appellant established a
compensable employment factor.11
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review. Its February 19, 2014 decision denying
reconsideration was proper under the law and facts of the case.

7

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

8

Annette Louise, 54 ECAB 783 (2003).

9

Denis M. Dupor, 51 ECAB 482 (2000).

10

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

11

The Board notes that, if appellant were to establish a compensable factor of employment, the counselor’s note
would be of no probative value as counselors are not considered physicians under FECA. D.N., Docket No. 13-1534
(issued March 12, 2014); see also David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician
assistants, nurses and physical therapists are not competent to render a medical opinion under FECA). See also
5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined by State law).

4

On appeal appellant asserts that OWCP denied her rights by not considering the medical
evidence. She provided a copy of a March 26, 2011 medical report previously of record and
considered by OWCP. The Board notes that such medical evidence is not relevant unless a
claimant establishes a compensable factor of employment.12 As appellant did not establish a
compensable factor of employment in this case, OWCP did not need to consider the medical
evidence.13 Appellant also contends that the employing establishment forced her to work with
her harasser, triggering memories of past traumas. These arguments pertain to the merits of the
claim. As noted, the Board does not have jurisdiction over the merits of the case.
CONCLUSION
The Board finds that OWCP properly denied reconsideration under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 19, 2014 is affirmed.
Issued: October 7, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

12

Marlon Vera, 54 ECAB 834 (2003).

13

Margaret S. Krzycki, 43 ECAB 496, 502 (1992).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, LAKE FOREST POST
OFFICE, Jacksonville, FL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 22-0563
Issued: March 22, 2022

Case Submitted on the Record

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

On March 8, 2022 appellant filed an appeal from a July 15, 2020 nonmerit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 22-0563.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation
Act.1 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s
review authority is limited to appeals which are filed within 180 days from the date of issuance
of OWCP’s decision.2
The 180 th day following the July 15, 2020 decision was January 11, 2021. As appellant
did not file an appeal with the Board until March 8, 2022, more than 180 days after the July 1 5 ,
2020 OWCP decision, the Board finds that the appeal docketed as No. 22-0563 is untimely filed.
The Board is without jurisdiction to review the appeal. Appellant has not explain ed her failure to
timely file an appeal with supporting documentation sufficient to establish compelling
circumstances. Because there is no final adverse decision issued by OWCP within 180 days of
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

the filing of the instant appeal, the Board concludes that the appeal docketed as No. 22 -0563,
must be dismissed. 3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0563 is dismissed.
Issued: March 22, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

The Board’s decisions and orders are “final upon the expiration of 30 days from the d ate o f t h eir issu an ce. ”
20 C.F.R. § 501.6(d).
3

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
TENNESSEE VALLEY AUTHORITY,
Chattanooga, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-2058
Issued: May 17, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 10, 2009 appellant filed a timely appeal from the July 29, 2009 decision of the
Office of Workers’ Compensation Programs, which found that his hearing loss was not ratable.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the issues.
ISSUE
The issue is whether appellant sustained a ratable hearing loss.
FACTUAL HISTORY
On April 24, 2009 appellant, then a 61-year-old senior safety manager, filed an
occupational disease claim alleging that he sustained a hearing loss due to exposure to hazardous
noise at work. He realized the loss was due to his federal employment on April 1, 2009.
Appellant did not stop work. He retired on May 8, 2009. The employing establishment
submitted a job description and employment history together with copies of audiometric testing
from 1989.

In a May 13, 2009 statement, Whitney R. Mauldin, a Board-certified audiologist at the
employing establishment, controverted the claim. She contended that appellant’s exposure to
noise would have been limited to visits and not long term.
On June 8, 2009 the Office referred appellant to Dr. J. Nicholas Van Demoer, a Boardcertified otolaryngologist, for otologic examination and audiological evaluation.
On June 30, 3009 Dr. Van Demoer reviewed appellant’s history of injury and treatment,
and performed an otologic evaluation. Audiometric testing obtained that day at the frequency
levels of 500, 1,000, 2,000 and 3,000 cycles per second (cps) revealed the following: right ear
10, 20, 5 and 10 decibels; left ear 10, 20, 5 and 10 decibels. Dr. Van Demoer determined that
appellant sustained bilateral sensorineural hearing loss and probable noise-induced bilateral
hearing loss. He found that the sensorineural hearing loss was due to noise exposure in the
federal employment. Dr. Van Demoer attached a copy of a June 30, 2009 audiogram and a
certificate of acoustic impedance/admittance meter calibration.
On July 17, 2009 an Office medical adviser reviewed the medical evidence and
audiometric test to determine if appellant’s bilateral sensorineural hearing loss was ratable for
schedule award purposes. The Office medical adviser concluded that, under the American
Medical Association, Guides to the Evaluation of Permanent Impairment, (6th ed. 2008)
(A.M.A., Guides), appellant had no ratable impairment due to his accepted hearing loss. The
medical adviser concurred with Dr. Van Demoer that appellant’s hearing loss was not severe
enough to be ratable for schedule award purposes after applying the Office’s standards for
evaluating hearing loss to the June 30, 2009 audiogram.
In a July 17, 2009 decision, the Office accepted appellant’s claim for bilateral noiseinduced hearing loss.
In a July 29, 2009 decision, the Office denied appellant’s claim for a schedule award
finding that his hearing loss was not ratable.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act and its
implementing federal regulations1 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 for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.2 As of May 1, 2009, the sixth edition will be used.3

1

20 C.F.R. § 10.404.

2

Id. at § 10.404(a).

3

FECA Bulletin No. 09-03 (issued March 15, 2008).

2

The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.4 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.5 Then, the fence of 25 decibels is deducted because,
as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability
to hear everyday speech under everyday conditions.6 The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss.7 The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the
amount of the binaural hearing loss.8 The Board has concurred in the Office’s adoption of this
standard for evaluating hearing loss.9
ANALYSIS
The Board finds that appellant’s hearing loss is not ratable for schedule award purposes.
The Board notes that Dr. Van Demoer’s June 30, 2009 otologic evaluation and audiologic
testing revealed decibel losses of 10, 20 5 and 10 for the right ear at the frequency levels of 500,
1,000, 2,000 and 3,000 cps.10 The Board notes that the losses were the same for the left ear. The
Office medical adviser calculated that the losses totaled 45 decibels for each ear, which, when
divided by 4, represented an average hearing loss of 11.25 decibels. This average loss was
reduced by 25 decibels (25 decibels being discounted) to equal 0. The Board notes that when
multiplied by 1.5 a zero percent monaural loss is obtained for both ears. As there was a zero
percent loss to both ears, there is not ratable binaural hearing loss. The medical evidence does
not establish a ratable hearing loss for schedule award purposes.
On appeal, appellant disagreed with the denial of his schedule award claim and contended
that the Office did not indicate the category under the A.M.A., Guides by which his hearing loss
was rated. As noted, the Office applied its standard formula for rating hearing loss to the
audiometric findings that were obtained for Dr. Van Demoer. Using this standardized formula,
the extent of loss to appellant’s hearing is not ratable for schedule award purposes.
CONCLUSION
The Board finds that appellant has not established that he sustained a ratable hearing loss.
4

A.M.A., Guides at 248-54.

5

Id.

6

Id

7

Id.

8

Id.

9

Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No. 011570 (issued August 13, 2002).
10

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 29, 2009 is affirmed.
Issued: May 17, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Surfside Beach, SC, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
John P. Bacot, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-2001
Issued: August 11, 2010

Case Submitted on the Record

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

JURISDICTION
On August 3, 2009 appellant, through his attorney, filed a timely appeal from a July 29,
2008 merit decision of the Office of Workers’ Compensation Programs denying his occupational
disease claim and a June 24, 2009 nonmerit decision denying his request for reconsideration.1
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant established that he sustained an occupational
disease causally related to factors of his federal employment; and (2) whether the Office properly
denied his request for further review of the merits of the claim under 5 U.S.C. § 8128(a).

1

The appeal was postmarked July 27, 2009.

FACTUAL HISTORY
This case was previously before the Board. On June 13, 2005 appellant, then a 50-yearold letter carrier, filed an occupational disease claim asserting changes in mental status,
confusion, back pain, shortness of breath and a repetitive motion injury to his right shoulder in
August 2004. Appellant attributed his condition to a fall from the top of a stairway on
May 18, 2005. The Office assigned the case file number xxxxxx304.
Appellant also filed a claim for a traumatic injury occurring on May 18, 2005 when he
fell down stairs. The Office accepted the claim, assigned file number xxxxxx971, for a
sprain/strain of the left shoulder, enthesopathy and tendinitis of the right shoulder.
In response to the Office’s request for additional information in file number xxxxxx304,
by letter dated July 12, 2005, appellant related that he and his physician believed that his fall on
May 18, 2005 resulted in mental status changes, confusion and shortness of breath. He also
maintained that repetitive motion at work caused a right shoulder injury beginning August 2004.
By decision dated August 3, 2005, the Office denied appellant’s occupational disease
claim after finding that he did not sustain an injury causally related to factors of his federal
employment. It noted that he attributed the claimed conditions to his May 18, 2005 fall and did
not describe other work factors that he believed caused or contributed to an occupational disease.
On July 12, 2006 appellant requested reconsideration of his claim and indicated that he
was submitting a psychological evaluation in support of his request. By decision dated July 21,
2006, the Office denied merit review of its August 3, 2005 decision, noting that he had not
submitted a psychological evaluation.
Appellant appealed to the Board. By decision dated March 26, 2007, the Board affirmed
a July 21, 2006 nonmerit decision denying his request for reconsideration under section 8128.2
The Board noted that appellant’s attorney argued that he had submitted a December 6, 2006
neuropsychological evaluation from Dr. Gordon Teichner, a clinical psychologist, in support of
his request for reconsideration but that it was not of record at the time of the Office’s decision.
On April 7, 2008 appellant, through his attorney, requested reconsideration. Counsel
reiterated that he had submitted a December 6, 2006 neuropsychological evaluation to the Office
on March 7, 2007. In a decision dated April 18, 2008, the Office denied his request for
reconsideration as it was untimely and did not establish clear evidence of error. It noted that it
had not received a neuropsychological evaluation.
On July 9, 2008 the Office received a December 6, 2006 neuropsychological evaluation
from Dr. Teichner, who noted that appellant experienced a “mild closed head injury in
May 2005.” Dr. Teichner diagnosed a cognitive disorder not otherwise specified, dysfunction, a
mood disorder and a major depressive-like episode and anxiety disorder due to a mild traumatic
brain injury and a pain disorder due to psychological factors and a general medical condition.

2

Docket No. 06-1926 (issued March 26, 2007).

2

He opined that appellant’s brain injury probably contributed to his depression and anxiety which
in turn exacerbated his pain symptoms.
By decision dated July 29, 2008, the Office reviewed the case on its merits and denied
modification of it prior merit decision. It noted that Dr. Teichner’s December 6, 2006 evaluation
was in the case record under file number xxxxxx971. The Office found that appellant was
claiming a mental condition due to his May 18, 2005 traumatic injury, accepted for a left
shoulder strain and right shoulder adhesive capsulitis. It directed him to request an expansion of
his claim under that file number if he believed that he sustained a head injury or mental changes
as a result of his May 18, 2005 fall. The Office found no evidence that factors of employment
caused back pain, shortness of breath, numbness or confusion.
By letter dated July 30, 2008, received by the Office on August 8, 2008, counsel
contended that appellant sustained a serious injury due to his employment as evidenced by the
December 6, 2006 report from Dr. Teichner.
On November 1, 2008 appellant appealed to the Board.
On March 12, 2009 the Office expanded its acceptance under file number xxxxxx971 to
include a mood disorder with a major depressive-like episode and an anxiety disorder with
generalized anxiety due to a mild traumatic brain injury. It based its acceptance on
Dr. Teichner’s evaluation.
By letter dated March 25, 2009, appellant’s attorney informed the Clerk of the Board that
file number xxxxxx971 included the shoulder and the traumatic brain injury but that the
traumatic brain injury was also under file number xxxxxx304. He specified that the claim under
file number xxxxxx304 was “for a change of mental status as a result of [appellant’s] fall at work
on or about May 18, 2005.”
On May 11, 2009 the Board dismissed appellant’s appeal at his request.3 On May 19,
2009 his attorney requested reconsideration and enclosed a March 3, 2009 neuropsychological
evaluation from Dr. Teichner, who diagnosed postconcussive syndrome and a cognitive disorder,
resolving and a mood disorder with depression and an anxiety due to a mild traumatic brain
injury.
By decision dated June 24, 2009, the Office denied his request for reconsideration on the
grounds that the evidence submitted was irrelevant and thus insufficient to warrant reopening his
case for further merit review. It noted that the March 25, 2009 letter from appellant’s attorney
attributed his traumatic brain injury to a fall on or around May 18, 2005, which the Office had
accepted under file number xxxxxx971. The Office found that appellant did not describe any
repetitive work activities but instead referred to the May 18, 2005 incident relevant to the other
file number.

3

Order Dismissing Appeal, Docket No. 09-2777 (issued May 11, 2009).

3

On appeal, counsel noted that evidence regarding appellant’s mental status claim was
placed in his “file for trauma to his shoulder.”
He requested that appellant’s
“neuropsychological evaluation information be considered in [file number] xxxxxx304.”
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was filed within the applicable time limitation, that an injury was sustained while 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.5 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;7 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;8 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.9
ANALYSIS -- ISSUE 1
On June 13, 2005 appellant filed an occupational disease claim alleging that he sustained
injuries resulting from a fall down a stairway on May 18, 2005. He further indicated that he
sustained a repetitive motion injury to his right shoulder in August 2004. The Office assigned
the case file number xxxxxx304. Appellant also filed a claim alleging that he sustained a
traumatic injury on May 18, 2005 when he fell down stairs. The Office assigned his traumatic
injury claim file number xxxxxx971. In file number xxxxxx971, it accepted that appellant
sustained a left shoulder sprain, right shoulder tendinitis and adhesive capsulitis, a mood disorder
with a major depressive-like episode due to a mild traumatic brain injury and an anxiety disorder
with generalized anxiety due to a mild traumatic brain injury.

4

5 U.S.C. §§ 8101-8193.

5

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

6

See Ellen L. Noble, 55 ECAB 530 (2004).

7

Michael R. Shaffer, 55 ECAB 386 (2004).

8

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

9

Beverly A. Spencer, 55 ECAB 501 (2004).

4

The Board finds that appellant has not established that he sustained an occupational
disease in file number xxxxxx304. In response to the Office’s request for information, appellant
related that a fall on May 18, 2005 caused his mental status changes, confusion and shortness of
breath. He also asserted that repetitive work duties resulted in a right shoulder injury which
began in August 2004. By letter dated March 25, 2009, his attorney clarified that he was
claiming only that he sustained a change in his mental status due to a fall at work on or around
May 18, 2005 under number file xxxxxx304.10 Therefore, he is claiming that he sustained a
traumatic injury to his brain on May 18, 2005 rather than an occupational disease due to factors
of his federal employment.11 The Office adjudicated his claim for an injury to the brain as the
result of a traumatic injury on May 18, 2005 under file number xxxxxx971 and accepted a mood
disorder with a major depressive-like episode and an anxiety disorder with generalized anxiety
due to a mild traumatic brain injury. Appellant has not alleged that he sustained mental status
changes due to any factor of his employment other than the May 18, 2005 work injury, accepted
in file number xxxxxx971. Consequently, the Office properly denied his occupational disease
claim.
On appeal, appellant’s attorney contends that the Office should consider Dr. Teichner’s
neuropsychiatric evaluation in the present file number. Dr. Teichner’s neuropsychiatric
evaluations, however, are relevant to the traumatic brain injury rather than to a mental or
emotional condition arising out of factors of employment occurring over the course of more than
one work shift. Based on Dr. Teichner’s report, the Office has expanded the accepted conditions
in file number xxxxxx971. There is no basis for accepting the traumatic injury again under this
claim for occupational disease.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, the Office’s regulations provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) submit relevant and pertinent new evidence not
previously considered by the Office.13 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.14 When a claimant fails to meet one of the above
12

10

Counsel further indicated that appellant’s shoulder claim was under file number xxxxxx971 rather than
xxxxxx304.
11

A traumatic injury is defined as a “condition of the body caused by a specific event or incident, or series of
events or incidents, within a single workday or shift.” 20 C.F.R. § 10.5(ee). An occupational disease is defined as a
condition produced by the work environment over a period longer than a single workday or shift.” 20 C.F.R.
§ 10.5(q).
12

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an
award for or against payment of compensation at any time on her own motion or on application.”
13

20 C.F.R. § 10.606(b)(2).

14

Id. at § 10.607(a).

5

standards, the Office will deny the application for reconsideration without reopening the case for
review on the merits.15
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.16 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.17 While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.18
ANALYSIS -- ISSUE 2
In support of his request for reconsideration, appellant submitted the March 3, 2009
neuropsychological evaluation from Dr. Teichner, who diagnosed a resolving cognitive disorder,
postconcussive syndrome and a mood disorder with depression and anxiety resulting from a mild
traumatic brain injury. Dr. Teichner did not identify any cause of appellant’s condition other
than the May 18, 2005 traumatic injury. Consequently, his opinion is not relevant to the issue of
whether appellant sustained an occupational disease. Evidence that does not address the
particular issue involved does not warrant reopening a case for merit review.19
As noted, appellant’s attorney argues that appellant experienced a serious work injury
from his employment. He did not, however, describe any work factors to which appellant
attributed the injury or condition. Appellant did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office or submit relevant and pertinent new evidence not previously considered. As he
did not meet any of the necessary regulatory requirements, he is not entitled to further merit
review.
CONCLUSION
The Board finds that appellant has not established that he sustained an occupational
disease causally related to factors of his federal employment. The Board further finds that the
Office properly denied his request for further review of the merits of the claim under section
8128.

15

Id. at § 10.608(b).

16

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

17

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

18

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

19

Freddie Mosley, 54 ECAB 255 (2002).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 24, 2009 and July 29, 2008 are affirmed.
Issued: August 11, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 20-1282
Issued: January 18, 2022

Case Submitted on the Record

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

JURISDICTION
On June 19, 2020 appellant, through counsel, filed a timely appeal from an April 9, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the

1

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

Appellant submitted a timely oral argument request before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, he asserted that oral argument should be granted regarding why a
physical examination by the impartial medical examiner (IME) was unnecessary as the only conflict pertained to the
application of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) (6 th ed. 2009). The Board, in exercising its discretion, denies his request for oral argument because the
arguments on appeal can adequately be addressed in a decision based on a review of the case record. Oral argument
in this appeal would further delay issuance of a Board decision and not serve a useful purpose. As such, the oral
argument request is denied and this decision is based on the case record as submitted to the Board.

Federal Employees’ Compensation Act3 (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 established greater than 26 percent permanent
impairment of the left lower extremity, for which he has received a schedule award.
FACTUAL HISTORY
On May 16, 2011 appellant, then a 60-year-old letter carrier, filed a traumatic injury (Form
CA-1) alleging that on May 13, 2011 he felt severe left knee pain when he was ascending steps
while in the performance of duty. He stopped work on May 14, 2011. OWCP accepted the claim
for left knee sprain, partial left medial meniscus tear, and partial left lateral meniscus tear. 4
On March 4, 2019 appellant filed a claim for compensation (Form CA7) for a schedule
award.
In support of his claim, appellant submitted a February 20, 2019 report from Dr. Byron V.
Hartunian, a Board-certified orthopedic surgeon. Dr. Hartunian reviewed appellant’s medical
records and diagnosed primary left knee joint arthritis with one millimeter of cartilage interval at
the medial femoral-tibial joint. On examination he found a four-degree varus left knee alignment,
limited squatting, palpable effusion, severe tenderness along the medial joint, and no ligament
laxity. Dr. Hartunian measured range of motion (ROM) of appellant’s left knee and related 116
degrees flexion and 0 degrees extension. He reviewed the American Academy of Orthopedic
Surgeons (AAOS) Lower Limb Questionnaire completed by appellant indicating that he had a
severe deficit. Referencing Table 16-3 on page “515” of the A.M.A., Guides,5 Dr. Hartunian
identified the diagnostic criteria as a class 3 for a class of diagnosis (CDX) of primary knee joint
arthritis as x-rays showed one millimeter of cartilage interval at the medial femoral-tibial joint. He
found that a grade modifier for clinical studies (GMCS) was inapplicable as x -rays were used to
identify the CDX. Next, Dr. Hartunian found a grade modifier for physical examination (GMPE)
of three based on severe palapatory findings. He found a grade modifier for functional history
(GMFH) of three based on the AAOS Lower Limb Questionnaire. Application of the net
adjustment formula resulted in a net adjustment of zero, yielding a Class 3, Grade C, 30 percent
permanent impairment of the left lower extremity. Dr. Hartunian determined that MMI was
reached on June 26, 2017.
On March 14, 2019 OWCP routed Dr. Hartunian’s report, a statement of accepted facts
(SOAF), and the case record to Dr. Jovito Estaris, Board-certified in occupational medicine
serving as a district medical adviser (DMA), for review and evaluation of appellant’s permanent
impairment pursuant to the sixth edition of the A.M.A., Guides. The DMA was also asked to
provide a date of MMI.

3

5 U.S.C. § 8101 et seq.

4

Appellant retired from the employing establishment effective May 29, 2016.

5

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

2

In a March 19, 2019 report, Dr. Estaris noted that he had reviewed the case file and
determined that appellant reached MMI on June 26, 2017. He disagreed with Dr. Hartunian’s left
knee permanent impairment rating. Dr. Estaris related that appellant’s diagnoses of left knee
partial medial and lateral menisci tears with osteoarthritis was a Class 3 impairment with a default
value of 30 percent in accordance with Table 16-3, page 511 of the sixth edition of the A.M.A.,
Guides. Utilizing Table 16-6, page 516, the DMA assigned a GMFH of 2, a GMPE of 2 under
Table 16-7, page 517, and found a GMCS was not applicable for the x-ray which showed one
millimeter cartilage was “used in proper placement in DBI grid.” Utilizing the net adjustment
formula, he found a net adjustment of -2, which warranted movement two places to the left from
the default value of Grade C to A, totaling 26 percent left lower extremity permanent impairment.
The DMA also used the ROM methodology and calculated, under Table 16 -23, page 549 that 116
degrees of flexion and 0 degrees of extension each resulted in 0 percent permanent impairment of
the left lower extremity. He found that the DBI method provided the higher impairment rating at
26 percent permanent impairment and should be used as the method of evaluation.
OWCP, in an April 16, 2019 letter, requested that Dr. Hartunian review the DMA’s
March 19, 2019 report and address the disagreement in the grade modifiers.
In a report dated April 22, 2019, Dr. Hartunian reviewed the DMA’s recommendation and
disagreed with the 26 percent impairment rating of the left knee. He asserted that the GMCS grade
modifier was correct based on examination findings and explained the GMFH must be excluded
as it was two or more than the GMCS.
On May 2, 2019 OWCP requested that the DMA review Dr. Hartunian’s April 26, 2019
addendum report and provide an opinion on whether he properly applied the A.M.A., Guides to
his findings.
In a report dated May 14, 2019, the DMA reviewed Dr. Hartunian’s April 26, 2019 report
and concluded that appellant had 28 percent left lower extremity permanent impairment. He again
noted a CDX of 3, and utilizing Table 16-6, page 516, the DMA assigned, a GMPE of 2 under
Table 16-7, page 517, and agreed that GMFH should not be included in the adjustment as it was 2
grades higher then GMCS. GMCS was not applicable as it was “used in proper placement in DBI
grid.” Utilizing the net adjustment formula, the DMA found a net adjustment of -1, which
warranted movement one place to the left from the default value of grade C to B, totaling 28
percent left lower extremity permanent impairment.
On June 4, 2019 OWCP declared a conflict in medical opinion between Dr. Hartunian and
the DMA regarding the GMPE findings. It referred appellant to Dr. Robert R. Pennell, a Boardcertified orthopedic surgeon, for an impartial medical examination on August 26, 2019 to resolve
the conflict in the case.
In a report dated August 26, 2019, Dr. Pennell reviewed appellant’s history of injury. He
related ROM findings of full extension and 120 degrees flexion. Dr. Pennell also noted no
effusion, swelling edema, heat or redness, no cruciate or collateral ligaments laxity, and no
crepitation on flexion or extension. He explained that the basis of the conflict between
Dr. Hartunian and Dr. Estaris was application of the GMPE. Dr. Pennell reported that based on
the diagnosis of primary joint arthritis with one millimeter cartilage interval by x -ray, resulted in
a Class 3 impairment. He assigned a GMPE of 1 due to no joint effusion, crepitation, or tenderness,
no ligament joint laxity, normal alignment, and mild loss of motion. Next, Dr. Pennell assigned a
3

grade modifier of 0 for GMFH based on no limitations on his daily living activities, stiffness with
rest, and occasional need to take over-the-counter pain medication. He found GMCS grade
modifier was not applicable as the x-ray interpretation was used in the diagnostic impairment
rating. Using the net adjustment formula resulted in a Grade A or 26 percent left lower extremity
permanent impairment.
In a February 19, 2020 addendum, Dr. Pennell explained that using Dr. Hartunian’s
examination findings would result in a GMPE 2. However, his physical examination of appellant
resulted in physical findings different from those found by Dr. Hartunian, resulting in a GMPE of
1. Dr. Pennell opined that the GMPE of 1 was the correct grade modifier.
Dr. Pennell, in another supplemental report dated March 29, 2020 found the date of MMI
to be August 26, 2019, the date of appellant’s examination.
By decision dated April 9, 2020, OWCP granted appellant a schedule award for 26 percent
permanent impairment of the left lower extremity. It indicated that the special weight of medical
evidence rested with Dr. Pennell, serving as the IME, who indicated that appellant had no more
than 26 percent permanent impairment of the left lower extremity.
LEGAL PRECEDENT
The schedule award provisions of FECA, 6 and its implementing federal regulation, 7 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. FECA,
however, does not specify the manner in which the percentage of loss of a m ember shall be
determined. For consistent results and to ensure equal justice under the law for all claimants,
OWCP has adopted the A.M.A., Guides as the uniform standard applicable to all claimants and
the Board has concurred in such adoption.8 As of May 1, 2009, the sixth edition of the A.M.A.,
Guides, published in 2009, is used to calculate schedule awards. 9
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the knee, the relevant portion of the leg for the present case, reference
is made to Table 16-3 (Knee Regional Grid) beginning on page 509. 10 After the CDX is
determined from the Knee Regional Grid (including identification of a default grade value), the
net adjustment formula is applied using GMFH, GMPE, and GMCS. The net adjustment formula
is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11 Under Chapter 2.3, evaluators are
6

Supra note 3.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a); see also T.C., Docket No. 20-1170 (issued January 29, 2021); T.T., Docket No. 18-1622 (issued
May 14, 2019); Jacqueline S. Harris, 54 ECAB 139 (2002).
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
10

See A.M.A., Guides (6 th ed. 2009) 509-11.

11

Id. at 515-22.

4

directed to provide reasons for their impairment rating choices, including choices of diagnoses
from regional grids and calculations of modifier scores. 12
FECA provides that, if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination. 13
For a conflict to arise, the opposing physicians’ viewpoints must be of virtually equal weight and
rationale.14 Where OWCP has referred the case to an IME to resolve a conflict in the medical
evidence, the opinion of such a specialist, if sufficiently well-reasoned and based upon a proper
factual background, must be given special weight.15
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than 26
percent permanent impairment of the left lower extremity, for which he previously received a
schedule award.
OWCP properly found a conflict in the medical opinion evidence between appellant’s
attending physician, Dr. Hartunian, and the DMA, regarding the degree of appellant’s GMPE. It
referred the case record to Dr. Pennell pursuant to 5 U.S.C. § 8123(a) for an impartial medical
examination in order to resolve the conflict in medical opinion. In his August 26, 2019 report, the
IME, Dr. Pennell, reviewed appellant’s history of injury, the relevant medical evidence, and
provided physical examination findings. He noted appellant’s left knee joint osteoarthritis and
May 13, 2011 employment injury. Dr. Pennell assigned a diagnostic criteria of Class 3 for CDX
of primary joint arthritis with one millimeter cartilage interval by x-ray, he assigned a GMFH of 0
and a GMPE of 1, and found that a GMCS was not applicable. He utilized the net adjustment
formula, which resulted in a Grade A or 26 percent permanent impairment of the left lower
extremity. In a February 19, 2020 addendum, Dr. Pennell explained that he based his GMPE on
his examination findings rather than the physical examination findings of Dr. Hartunian and in a
March 29, 2020 addendum he found the date of MMI to be August 26, 2019.
Where OWCP has referred the case to an IME to resolve a conflict in the medical evidence,
the opinion of such a specialist, if sufficiently well-reasoned and based upon a proper factual
background, must be given special weight. 16 In this case, the Board finds that Dr. Pennell
accurately summarized the relevant medical evidence, provided detailed findings on examination,
and reached conclusions about appellant’s condition, which comported with his findings.17
Dr. Pennell noted that physical examination findings showed no effusion, swelling edema, heat or
12

Id. at 23-28.

13

5 U.S.C. § 8123(a); M.C., Docket No. 20-1656 (issued June 2, 2021); A.R., Docket No. 18-0632 (issued
October 19, 2018).
14

M.C., id.; C.H., Docket No. 18-1065 (issued November 29, 2018).

15

M.C., id.; W.M., Docket No. 18-0957 (issued October 15, 2018).

16

R.M., Docket No. 20-1268 (issued February 24, 2021); E.M., Docket No. 19-1535 (issued August 27, 2020); see
also W.C., Docket No. 19-1740 (issued June 4, 2020).
17

See R.M., id.; J.B., Docket No. 18-0116 (issued October 2, 2020); see also P.D., Docket No. 18-1289 (issued
January 2, 2019).

5

redness, no cruciate or collateral ligaments laxity, and no crepitation on flexion or extension, which
resulted in a grade modifier of 1 for GMPE according to the sixth edition of the A.M.A., Guides.
As his report is detailed, well rationalized, and based on a proper factual background, his opinion
is entitled to the special weight accorded to an IME.18 Thus, the Board finds that the medical
evidence of record fails to establish that appellant has more than 26 percent left lower extremity
permanent impairment, for which he previously received a schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish greater than 26
percent permanent impairment of the left lower extremity, for which he previously received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the April 9, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 18, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

18

R.M., id.; W.H., Docket No. 19-0102 (issued June 21, 2019); J.M., Docket No. 18-1387 (issued
February 1, 2019).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-254
Issued: April 1, 2015

Case Submitted on the Record

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

JURISDICTION
On November 13, 2014 appellant, through counsel, filed a timely appeal from a
September 22, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish a lumbar condition
causally related to factors of his federal employment.
On appeal, counsel contends that OWCP’s decision was contrary to fact and law.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the September 22, 2014 OWCP decision, appellant submitted
new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued
its final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On August 21, 2013 appellant, then a 68-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained a back injury due to factors of his federal
employment, including walking, climbing, lifting packages, and driving a vehicle. He indicated
that he became aware of the condition on July 15, 2013 and related it to factors of his federal
employment on August 9, 2013.
In a narrative statement dated September 10, 2013, appellant indicated that his back
condition started in 2006 and his family doctor recommended a magnetic resonance imaging
(MRI) scan on December 7, 2006. He had been taking pain medication for his lower back pain,
which also affected his entire left leg. Appellant explained that while he was working on
July 15, 2013 the pain was so strong that he could not move, so he took medication and finished
delivering the mail. The next two weeks he was scheduled for annual leave and he returned to
work on August 5, 2013.
In an August 14, 2013 report, Dr. Daniel Koch, a Board-certified family practitioner,
indicated that appellant had been under his care since that day and would be able to return to
work on August 15, 2013 with restrictions of no lifting, walking, or standing for 10 days.
Appellant submitted a light-duty request with a medical certification from Dr. Koch. The
employing establishment denied the request on August 19, 2013 as there was no work within his
restrictions.
An August 19, 2013 MRI scan revealed diffuse disc desiccation in the lumbar spine with
mild diffuse disc space narrowing, most prominent level of L4-5, and multiple cysts off the right
kidney. It was noted that the MRI scan was compared to a scan dated December 7, 2006.
On August 21, 2013 Dr. Koch reviewed the August 19, 2013 MRI scan and diagnosed
herniated lumbar disc. He reported that this was causing appellant significant pain and weakness
in the leg.
In a September 25, 2013 letter, OWCP notified appellant of the deficiencies of his claim
and afforded him 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted hospital records dated August 16, 2013 from Carolinas HealthCare
System in Lincolnton, North Carolina. Dr. Timothy Hall, a Board-certified emergency medicine
specialist, diagnosed sciatica and hypertension.
In reports dated August 9 and 14, 2013, Dr. Koch diagnosed sciatica and lumbago, noting
a history of degenerative joint disease of the lumbar spine since 2006.
On August 27, 2013 Dr. Mark Kiefer, a Board-certified family practitioner, diagnosed
sciatica and reported that a recent MRI scan showed herniated nucleus pulposus with
encroachment of the L4 nerve root on the left. He stated that appellant worked “as a postman
and ha[d] been unable to work.”

2

By decision dated December 9, 2013, OWCP denied appellant’s claim as the medical
evidence failed to establish a causal relationship between his lumbar condition and factors of his
federal employment.
On July 30, 2014 appellant, through counsel, requested reconsideration and submitted a
light-duty request form dated June 23, 2014. He also submitted a June 2, 2014 report from
Dr. Anthony Asher, a Board-certified neurosurgeon, who indicated that appellant’s “past medical
history with his lumbar issues and surgery is a direct correlation of his work as a city carrier.”
Dr. Asher opined that appellant was unable to perform his duties as a city carrier and advised that
he was able to work with restrictions of no bending, lifting, extended walking, or driving.
In an August 11, 2014 letter, appellant requested either a full-time job or disability
retirement and submitted a “Medical Restrictions Assessment Form” from Dr. Asher who
diagnosed lumbar degenerative disc disease and restricted appellant from lifting more than 25
pounds.
On August 11, 2014 Dr. Asher reported that appellant presented “with a several-month
history of leg pain in roughly an L5 distribution” in November 2013. Appellant was
experiencing worsening symptoms despite conservative therapies and his imaging studies
showed evidence of multilevel lumbar spondylytic changes that appeared to be most marked at
L4-5 where there was evidence of lateral recess stenosis causing compression of the exiting L5
nerve root. Dr. Asher stated that appellant’s “symptoms were greatly exacerbated by his
employment as a mail carrier” and appellant “specifically mentioned how walking for prolonged
distances and carrying heavy objects exacerbated his pain.” He reported that appellant
underwent a lumbar decompression and was subsequently placed in physical therapy. Dr. Asher
noted that appellant “was doing well until late January [2014] when, during a course of physical
therapy, he experienced recurrence of his symptoms, and imaging studies showed evidence of a
large recurrent disc herniation at L4-5.”
Appellant underwent a repeat lumbar laminectomy and discectomy and his symptoms
improved. Dr. Asher stated that appellant was left with residual discomfort, which was not
unexpected given his age, the degree of spondylytic changes that he had in his lumbar spine, and
the fact that he had required two surgeries. He found that appellant had “lumbar pain for many
years and he believe[d] his occupation as a postal worker has aggravated the situation.”
Dr. Asher stated that “given the job responsibilities associated with being a mail carrier, it is easy
to understand that [appellant’s] occupation may have exacerbated his underlying lumbar
condition.” He concluded that it would be very difficult for appellant to return to work as a mail
carrier.
By decision dated September 22, 2014, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
3

5 U.S.C. § 8101 et seq.

3

limitation period of FECA, and that an injury4 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. The opinion of the physician must
be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish a lumbar
condition due to factors of his employment. Appellant submitted a statement in which he
identified the factors of employment that he believed caused the condition, including walking,
climbing, lifting packages, and driving a vehicle, which OWCP accepted as factual. However, in
order to establish a claim that he sustained an employment-related injury, he must also submit
rationalized medical evidence which explains how his medical condition was caused or
aggravated by the implicated employment factors.8
In his reports, Dr. Asher diagnosed lumbar degenerative disc disease. On June 2, 2014 he
noted that appellant’s “past medical history with his lumbar issues and surgery is a direct
correlation of his work as a city carrier.” On August 11, 2014 Dr. Asher reported that appellant
presented “with a several-month history of leg pain in roughly an L5 distribution” in
November 2013 and underwent a lumbar decompression. He indicated that appellant’s
“symptoms were greatly exacerbated by his employment as a mail carrier” and that appellant had
“specifically mentioned how walking for prolonged distances and carrying heavy objects
exacerbated his pain.” Dr. Asher indicated that appellant “was doing well until late January
4

OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
5

See O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004).

6

See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

See O.W., supra note 5.

8

See A.C., Docket No. 08-1453 (issued November 18, 2008); Donald W. Wenzel, 56 ECAB 390 (2005); Leslie C.
Moore, 52 ECAB 132 (2000).

4

[2014] when, during a course of physical therapy, he experienced recurrence of his symptoms,
and imaging studies showed evidence of a large recurrent disc herniation at L4-5.” Appellant
underwent a repeat lumbar laminectomy and discectomy and his symptoms improved. Dr. Asher
stated that appellant was left with residual discomfort, which was not unexpected given his age,
the degree of spondylytic changes that he had in his lumbar spine, and the fact that he had
required two surgeries. He found that “given the job responsibilities associated with being a mail
carrier, it is easy to understand that [appellant’s] occupation may have exacerbated his
underlying lumbar condition.” Although these reports support appellant’s claim, Dr. Asher
failed to provide a rationalized opinion explaining how the factors of appellant’s federal
employment, such as walking, climbing, lifting packages, and driving a vehicle, caused or
aggravated his lumbar condition. He noted that appellant’s condition occurred while he was at
work, but such generalized statements merely repeat appellant’s allegations and are unsupported
by adequate medical rationale explaining how his physical activity at work actually caused or
aggravated the diagnosed condition.9 Lacking thorough medical rationale on the issue of causal
relationship, the Board finds that Dr. Asher’s reports are insufficient to establish that appellant
sustained an employment-related injury.
On August 27, 2013 Dr. Kiefer diagnosed sciatica and indicated that appellant worked
“as a postman and ha[d] been unable to work.” The Board has held that the mere fact that
appellant’s symptoms arise during a period of employment or produce symptoms revelatory of
an underlying condition does not establish a causal relationship between appellant’s condition
and his employment factors.10 Dr. Kiefer failed to provide a rationalized opinion explaining how
factors of appellant’s federal employment, such as walking, climbing, lifting packages, and
driving a vehicle, caused or aggravated his lumbar condition. Thus, the Board finds that
Dr. Kiefer’s report is insufficiently rationalized to establish that appellant’s condition was caused
or aggravated by factors of his federal employment.
In his reports, Dr. Koch diagnosed herniated lumbar disc, sciatica, and lumbago and
reported a history of degenerative joint disease of the lumbar spine since 2006. In an August 16,
2013 report, Dr. Hall diagnosed sciatica and hypertension. The Board has held that medical
evidence failing to offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship.11
In support of his claim, appellant also submitted an August 19, 2013 MRI scan. This
document does not constitute competent medical evidence as it does not contain rationale by a
physician relating appellant’s disability to his employment.12

9

See K.W., Docket No. 10-98 (issued September 10, 2010).

10

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

11

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

12

See 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N.
Fassi, 42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).

5

As appellant has not submitted any rationalized medical evidence to support his
allegation that he sustained an injury causally related to the accepted employment factors, he
failed to meet his burden of proof to establish a claim.
On appeal, counsel contends that OWCP’s decision was contrary to fact and law. Based
on the findings and reasons stated above, the Board finds his arguments are not substantiated.
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 a lumbar
condition in the performance of duty causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the September 22, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 1, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6