United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Cleveland, OH,
Employer
__________________________________________

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

Docket No. 21-0778
Issued: February 4, 2022

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 April 28, 2021 appellant filed a timely appeal from February 11, 2021 merit decisions
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the February 11, 2021 decisions, OWCP received additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish disability from work
during the period January 4 through November 3, 2020, causally related to her accepted
September 4, 2014 employment injury.
FACTUAL HISTORY
This case has previously been before the Board on a different issue. 3 The facts and
circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The
relevant facts are as follows.
On September 4, 2014 appellant, then a 45-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on that date she injured both knees and arms when she ran to help
a coworker who was allegedly having a seizure and tripped and fell from an uneven sidewalk while
in the performance of duty. On December 3, 2014 OWCP accepted bilateral knee contusion,
bilateral knee sprain, bilateral forearm contusion, and right hip sprain.
On December 28 and 31, 2020 appellant filed claims for compensation (Form CA-7) for
intermittent dates of disability during the period January 4 through December 18, 2020.4
In development letters dated January 5 and 6, 2021, OWCP informed appellant that the
evidence of record was insufficient to establish her claims for compensation for total disability
from work during the period January 4 through October 2, 2020 and October 7 through
December 18, 2020, respectively. It advised her of the type of medical evidence needed to
establish her claims and afforded her 30 days to submit the necessary evidence.
OWCP subsequently received a July 7, 2020 recertification of medical necessity form for
a TENS unit by Dr. Louis Keppler, an attending Board-certified orthopedic surgeon, who
diagnosed contusion of the left forearm and described equipment prescribed for appellant’s electro
medical treatment.
By decision dated February 11, 2021, OWCP denied appellant’s claim for wage-loss
compensation for the period January 4 through October 2, 2020, finding that the medical evidence
of record was insufficient to establish intermittent disability from work during the claimed period
due to the accepted conditions.5

3

Docket No. 17-1954 (issued April 18, 2018).

4
In attached time analysis forms (Form CA-7a) of even dates, she claimed: eight hours of disability on March 12,
26, and 31, April 2, 14, 21, 22, and 30, May 7, 26, and 28, June 2, 4, 10, 20, and 23, July 17 and October 7, 2020; 3.38
hours on February 11, 2020; 3.09 hours on April 9, 2020; 1.6 hours for April 15 through 22, 2020; and 1.73 hours on
November 3, 2020.
5

OWCP, however, found that the evidence of record supported payment of four hours of wage-loss compensation
for medical treatment of the accepted conditions on April 14, 2020.

2

By separate decision of even date, OWCP denied appellant’s claim for wage-loss
compensation for November 3, 2020, finding that the medical evidence of record was insufficient
to establish intermittent disability from work during the claimed period due to the accepted
conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA 6 has the burden of proof to establish the
essential elements of his or her claim. 7 Under FECA, the term disability means incapacity, because
of an employment injury, to earn the wages that the employee was receiving at the time of injury. 8
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. 9 Whether a particular
injury causes an employee to become disabled from work, and the duration of that disability, are
medical issues that must be proven by a preponderance of probative and reliable medical opinion
evidence.10
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self -certify his or her disability and
entitlement to compensation. 11
For a routine medical appointment, a maximum of four hours of compensation for time lost
to obtain medical treatment is usually allowed.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish intermittent
disability from work during the period January 4 through November 3, 2020, causally related to
her accepted September 4, 2014 employment injury.
Appellant submitted a recertification of medical necessity form for a TENS unit dated
July 7, 2020 from Dr. Keppler who diagnosed contusion of the left forearm, but failed to offer an
opinion as to whether appellant was disabled from work due to the accepted employment injury.

6

Supra note 1.

7

See L.S., Docket No. 18-0264 (issued January 28, 2020); B.O., Docket No. 19-0392 (issued July 12, 2019).

8

20 C.F.R. § 10.5(f); J.S., Docket No. 19-1035 (issued January 24, 2020).

9

T.W., Docket No. 19-1286 (issued January 13, 2020).

10

S.G., Docket No. 18-1076 (issued April 11, 2019); Fereidoon Kharabi, 52 ECAB 291 (2001).

11

See M.J., Docket No. 19-1287 (issued January 13, 2020); William A. Archer, 55 ECAB 674 (2004).

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 2.901.19(c)
(February 2013); see also K.A., Docket No. 19-0679 (issued April 6, 2020); William A. Archer, id.

3

Therefore, this evidence is of no probative value and insufficient to establish appellant’s claim for
compensation. 13
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work during the claimed period as a result of the accepted
employment injury. 14 Because appellant has not submitted rationalized medical opinion evidence
to establish employment-related total disability during the claimed periods due to her accepted
conditions, the Board finds that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish intermittent
disability from work during the period January 4 through November 3, 2020 causally related to
her accepted September 4, 2014 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the February 11, 2021 decisions of the Office of
Workers’ Compensation Programs are affirmed.
Issued: February 4, 2022
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

13

L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

14

Supra note 11.

4


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

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

Docket No. 16-0994
Issued: September 9, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 11, 2016 appellant filed a timely appeal from a December 1, 2015 merit
decision and a March 3, 2016 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP).1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained an injury causally related to an
October 19, 2015 employment incident; and (2) whether OWCP properly denied his request for a
review of the written record under 5 U.S.C. § 8124 as untimely.

1

Appellant submitted new evidence with his appeal and subsequent to the December 1, 2015 merit decision. The
Board has no jurisdiction to review evidence which was not before OWCP at the time it issued its final decision; see
20 C.F.R. § 501.2(c)(1). Thus, the Board may not review it for the first time on appeal.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 22, 2015 appellant, then a 61-year-old truck driver, filed a traumatic injury
claim (Form CA-1) alleging that on October 19, 2015 he injured his knee pushing mail out of a
truck. He stopped work on October 19, 2015.
Appellant received treatment for right knee pain on October 20, 2015 from a physician
assistant.
In a report dated October 21, 2015, Dr. Vera N. Guertler, Board-certified in family
medicine, noted a history of appellant experiencing pain in the back of his right knee after
unloading mail from a truck and rolling carts. She diagnosed acute right knee pain and
unspecified osteoarthritis. Dr. Guertler advised appellant to file an incident report at work. In an
October 21, 2015 work status summary form, she diagnosed right knee pain and unspecified
osteoarthritis and found that he should remain off work.
By letter dated October 27, 2015, OWCP requested additional factual and medical
information from appellant, including a detailed report from his attending physician addressing
the causal relationship between any diagnosed condition and work factors.
In a duty status report (Form CA-17) dated November 5, 2015, Dr. Guertler diagnosed
right knee pain and checked the box marked “yes” that the history of injury given by appellant
corresponded to experiencing knee pain after pushing an overloaded container. She found work
restrictions. In a work status summary dated November 5, 2015, Dr. Guertler advised that
appellant could resume work with restrictions on that date. The form provided a diagnosis of
right knee pain, unspecified osteoarthritis, and an unspecified meniscus tear of the right knee.
Dr. Guertler also completed a work restriction evaluation (Form OWCP-5c) providing
limitations.
A physician assistant, on November 13, 2015, diagnosed right knee osteoarthritis and
medial meniscus tear. On November 23, 2015 a nurse evaluated appellant for right knee pain.
By decision dated December 1, 2015, OWCP denied appellant’s claim as the medical
evidence was insufficient to establish a diagnosed medical condition as a result of the accepted
work incident.
On February 23, 2016 appellant requested a review of the written record by a hearing
representative of OWCP’s Branch of Hearings and Review. In a decision dated March 3, 2016,
OWCP’s Branch of Hearings and Review denied his request as it was not made within 30 days
of the December 1, 2015 decision. It exercised its discretion by performing a limited review and
found that the matter could be equally well resolved by submitting a request for reconsideration
to OWCP with supporting evidence.
On appeal appellant describes the work duties to which he attributed his condition. He
notes that the containers that he pushed were overloaded and violated standards of the
Occupational Safety & Health Administration (OSHA). Appellant maintains that he did not
receive proper treatment from the physician assistant. He notes that he ultimately underwent an

2

ultrasound and was diagnosed in the hospital with deep vein thrombosis and a pulmonary
embolism.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was filed within the applicable
time limitation, that an injury was sustained while in the performance of duty as alleged, and that
any disability 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 on a traumatic injury or an occupational disease.4
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place, and in the manner
alleged, by a preponderance of the reliable, probative, and substantial evidence.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.6 An employee may establish that the employment
incident occurred as alleged, but fail to show that his disability and/or condition relates to the
employment incident.7
ANALYSIS -- ISSUE 1
Appellant alleged that he sustained an injury to his right knee on October 19, 2015 after
he pushed containers filled with mail off of his truck. OWCP accepted that the incident occurred
at the time, place, and in the manner alleged. The issue, consequently, is whether the medical
evidence establishes that he sustained an injury as a result of this employment incident.
The Board finds that appellant has not established that the October 19, 2015 employment
incident resulted in an injury. The determination of whether an employment incident caused an
injury is generally established by medical evidence.8
On October 21, 2015 Dr. Guertler discussed appellant’s history of pain in his right knee
after unloading mail from a truck and rolling carts. She diagnosed acute right knee pain and
unspecified osteoarthritis and noted that he should fill out an incident report at work. In an
3

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

4

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

5

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

6

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

7

Id.

8

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

3

October 21, 2015 work status summary form, Dr. Guertler diagnosed right knee pain and
unspecified osteoarthritis and found that appellant should remain off work. In her October 21,
2015 reports, however, she did not specifically attribute the diagnosed conditions to the
October 19, 2015 work incident or provide any rationale for her opinion. A physician must
provide a narrative description of the employment incident and a reasoned opinion on whether
the employment incident described caused or contributed to appellant’s diagnosed medical
condition.9
In a November 5, 2015 form report, Dr. Guertler diagnosed right knee pain and checked a
box marked “yes” that the history of injury given by appellant corresponded to his knee pain
after pushing an overloaded container. She found work restrictions. The Board has held,
however, that an opinion on causal relationship which consists only of a physician checking
“yes” to a medical form question on whether the claimant’s condition was related to the history
given is of little probative value. Without any explanation or rationale for the conclusion
reached, such report is insufficient to establish causal relationship.10
In a work status summary dated November 5, 2015, Dr. Guertler advised that appellant
could resume work with restrictions on that date. The form provided a diagnosis of right knee
pain, unspecified osteoarthritis, and an unspecified meniscus tear of the right knee. Dr. Guertler
also completed a work restriction evaluation. She did not, however, address the cause of the
diagnosed conditions. Medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of diminished probative value on the issue of causal relationship.11
Appellant received treatment from a physician assistant on October 20 and November 13,
2015 and from a nurse on November 23, 2015. Evidence from a physician assistant or nurse
does not constitute competent medical evidence under FECA as neither is defined as a
“physician” by section 8101(2) of FECA.12
On appeal appellant alleges that he pushed containers that were overloaded in violation of
OSHA standards. The Board’s jurisdiction, however, is limited to reviewing final adverse
decisions of OWCP in matters arising under FECA.13
Appellant further contends that the physician assistant did not provide appropriate
treatment and notes that he was later diagnosed with deep vein thrombosis and a pulmonary
embolism. He has the burden, however, to submit evidence showing that he sustained a

9

John W. Montoya, 54 ECAB 306 (2003).

10

Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box “yes” in a form report, without additional
explanation or rationale, is insufficient to establish causal relationship).
11

S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

12

5 U.S.C. § 8101(2) provides that a physician includes, surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
V.C., Docket No. 16-0642 (issued April 19, 2016); Allen C. Hundley, 53 ECAB 551 (2002).
13

20 C.F.R. §§ 501.2(c); 501.3(a).

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diagnosed condition as a result of the October 19, 2015 work incident.14 This appellant has not
done.
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 and
20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b) of FECA provides that a claimant for compensation not satisfied with a
decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his claim before a representative of the Secretary.15 Section
10.615 of the federal regulations implementing this section of FECA provides that a claimant
shall be afforded a choice of an oral hearing or a review of the written record.16 The request
must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the
date of the decision for which a hearing is sought.17 A claimant is entitled to a hearing or review
of the written record as a matter of right if the request is filed within 30 days.18
While a claimant may not be entitled to a hearing or review of the written record as a
matter of right if the request is untimely, OWCP has the discretionary authority to grant the
request and must properly exercise such discretion.19
ANALYSIS -- ISSUE 2
In its December 1, 2015 decision, OWCP found that appellant had not submitted
sufficient medical evidence to establish an injury on October 19, 2015. On February 23, 2016
appellant requested a review of the written record. His request was made more than 30 days
after the December 1, 2015 decision. Consequently, appellant’s request was untimely and he
was not entitled to a review of the written record as a matter of right.20
OWCP has the discretionary authority to grant an oral hearing or review of the written
record even though a claimant is not entitled to such as a matter of right. In its March 3, 2016
decision, it properly exercised its discretion by considering the matter in relation to the issue
involved and determining that the issue could be equally well addressed by appellant requesting
14

See Jaja J. Asaramo, 55 ECAB 104 (2004).

15

5 U.S.C. § 8124(b)(1).

16

20 C.F.R. § 10.615.

17

Id. at § 10.616(a).

18

See Leona B. Jacobs, 55 ECAB 753 (2004).

19

20 C.F.R. § 10.616(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the
Written Record, Chapter 2.1601.4(a) (October 2011).
20

Id. at § 10.616(a).

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reconsideration and submitting medical evidence supporting that he sustained an injury on
October 19, 2015. The Board has held that the only limitation on OWCP’s authority is
reasonableness. Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
deduction from established facts.21 OWCP did not abuse its discretion in this case by denying a
discretionary hearing.
CONCLUSION
The Board finds that appellant has not established an injury causally related to an
October 19, 2015 employment injury. The Board further finds that OWCP properly denied his
request for a review of the written record under 5 U.S.C. § 8124 as untimely.
ORDER
IT IS HEREBY ORDERED THAT the March 3, 2016 and December 1, 2015 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 9, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

21

See Teresa M. Valle, 57 ECAB 542 (2006); Daniel J. Perea, 42 ECAB 214 (1990).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

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

Docket No. 10-72
Issued: April 25, 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 October 9, 2009 appellant filed a timely appeal from an April 13, 2009 merit decision
of the Office of Workers’ Compensation Programs, which affirmed the denial of her emotional
condition claim. Pursuant to the Federal Employees’ Compensation Act1 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 sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
Appellant, a 49-year-old mail handler, filed an occupational disease claim alleging that
she developed an aggravation of acute stress syndrome as a result of her federal employment.

1

5 U.S.C. § 8101 et seq.

When the Office received no response to its development letter, it denied appellant’s claim on
September 11, 2007.
On that same day the Office received evidence. Medical evidence showed that appellant
was diagnosed with job-related anxiety, including acute stress secondary to employee
harassment. She was also diagnosed with major depressive disorder.
As for the employment factors to which she attributed her condition, appellant explained
that she had become totally stressed out about her supporting statement, so she simply sent the
Office all of her handwritten notes, which she admitted the Office might not be able to decipher.
She essentially implicated “all the discriminatory acts against me from management and the Post
Office.” Her notes contained a partial list of the stressful incidents that happened at her duty
station, involving the same people since 2004. These included a stressful situation with her
supervisor, who purposefully provoked her on the loudspeaker, who had picked on her and
harassed her from “Day One.” Appellant felt he was trying to get her terminated for going off
the workroom floor, “so he did things.” She referred to a notice of termination on October 10,
2004 for being absent without leave.
Appellant filed at least one grievance and seven Equal Employment Opportunity (EEO)
complaints relating to numerous incidents from 2004 to 2007. Among her EEO documents was
a manager’s memorandum on the February 12, 2004 investigation he conducted into allegations
that a coworker, Sharon Williams, was harassing appellant. The manager reviewed the
statements of two clerks and two letter carriers. Based on his interviews of the employees, he
judged their statements to be highly credible. The employees had noticed that Ms. Williams
frequently asked about appellant’s whereabouts, made negative comments about her and -- it
appeared to the employees -- had followed appellant both inside and outside the station. Three
of the employees indicated that the harassment had been ongoing for six months, while one
stated that he was aware of it for about three weeks. One employee related receiving a cell
phone call from appellant stating that Ms. Williams had followed her to the parking lot. He then
saw Ms. Williams drive her car from the opposite side of the parking lot and park it behind
appellant’s, leaving her headlights on.
The manager advised Ms. Williams that his investigation supported appellant’s
allegations of harassment. He placed Ms. Williams on notice that these behaviors were
unacceptable and would not be condoned and that any continued behavior would lead to
corrective action. The manager provided Ms. Williams with the district’s Zero Tolerance Policy.
After meeting with Ms. Williams, the manager learned that appellant and Ms. Williams were
close friends but parted on unfriendly terms. After the parting, “the problems noted herein then
surfaced.”
Appellant submitted witness statements to support that Ms. Williams was harassing her.
On January 30, 2004 one employee stated that on a daily basis Ms. Williams asked where
appellant was and what she was doing. The manager stated that she was always peeking around
corners looking for appellant. On January 29, 2004 another employee stated that appellant had
many times witnessed Ms. Williams watching and following appellant. She stated that
Ms. Williams peered around corners, followed appellant to the parking lot on breaks and went to
the dock to see what she was doing. On January 28, 2004 another employee stated that

2

Ms. Williams seemed to have an obsession with appellant. He witnessed Ms. Williams peering
through postal equipment to watch appellant walk across the workroom floor. The manager
stated that she made comments on appellant’s whereabouts. He heard Ms. Williams make
negative comments about appellant every day without fail. The manager explained that appellant
had a routine of going to her car for break and he saw Ms. Williams follow appellant and go to
her own car for break. In an undated statement, another employee stated that he observed a
confrontation between appellant and Ms. Williams over an all purpose container (APC).
Appellant was about to grab an APC when Ms. Williams rushed passed her and grabbed the
same APC. On August 24, 2004 another employee stated that he witnessed Ms. Williams harass
appellant and try to provoke a confrontation.
On April 13, 2009 an Office hearing representative affirmed the denial of appellant’s
claim for compensation benefits. The hearing representative found no proof that the employing
establishment erred or acted abusively in its administrative capacity. The Office hearing
representative also found that appellant had submitted no documentation to show that the alleged
harassment was work related. The only difficult relationship that was at all substantiated, she
noted, was that with Ms. Williams, but their difficulties were the result of a personal relationship
gone sour.
On appeal, appellant contends that she had a clean administrative record for 18 years but
then started being harassed by a handful of supervisors once she was transferred. She lists names
of supervisors with whom she did not have issues. Appellant reiterates her allegations with
regard to several incidents at the employing establishment that she alleges led to her emotional
condition.
LEGAL PRECEDENT
The Act provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of her duty.2 When an employee experiences
emotional stress in carrying out her employment duties or has fear and anxiety regarding her
ability to carry out her duties and the medical evidence establishes that the disability resulted
from her 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 resulted from her emotional reaction to a special assignment or requirement imposed
by the employing establishment or by the nature of her work. By contrast, there are disabilities
having some kind of causal connection with the employment that are not covered under workers’
compensation because they are not found to have arisen out of employment, such as when
disability results from an employee’s fear of a reduction-in-force or frustration from not being
permitted to work in a particular environment or to hold a particular position.3
Workers’ compensation does not cover an emotional reaction to an administrative or
personnel action unless the evidence shows error or abuse on the part of the employing

2

5 U.S.C. § 8102(a).

3

Lillian Cutler, 28 ECAB 125 (1976).

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establishment.4 The Board has held that actions of an employer which the employee
characterizes as harassment or discrimination may constitute a factor of employment giving rise
to coverage under the Act, but there must be some evidence that harassment or discrimination
did, in fact, occur. As a rule, allegations alone by a claimant are insufficient to establish a factual
basis for an emotional condition claim.5 Mere perceptions and feelings of harassment or
discrimination will not support an award of compensation. The claimant must substantiate such
allegations with probative and reliable evidence.6 The primary reason for requiring factual
evidence from the claimant in support of her allegation of stress in the workplace is to establish a
basis in fact for the contentions made, as opposed to mere perceptions of the claimant, which in
turn may be fully examined and evaluated by the Office and the Board.7
When working conditions are alleged as factors in causing a medical condition or
disability, the Office, as part of its adjudicatory function, must make findings of fact regarding
which working conditions are deemed compensable factors of employment. The Office should
then determine whether the evidence of record substantiates that factor. When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, the Office must base its decision on an analysis of the medical opinion
evidence.8
ANALYSIS
Appellant attributes her emotional condition, in large part, to harassment and
discrimination from her supervisors. But that kind of claim is generally not covered by workers’
compensation. Although there is an obvious connection to her work, the actions of a supervisor
and of management in general usually fall outside the scope of the Act. Those actions are not
considered a part of the employee’s performance of duty, so any emotional injury that might
arise from such disputes is not deemed to be, within the meaning of the Act, an injury sustained
while in the performance of her duty.
The Board recognizes an exception, however, when the supervisor has committed a
specific error or abuse against the employee. But there must be proof. An employee’s
perception and mere allegation of harassment will not support a claim for compensation benefits.
This is where appellant’s claim fails. Although she has made many allegations against her
supervisors, she has submitted to the Office no proof of an administrative error or abuse. Indeed,
4

Thomas D. McEuen, 42 ECAB 566, 572-73 (1991).

5

See Arthur F. Hougens, 42 ECAB 455 (1991); Ruthie M. Evans, 41 ECAB 416 (1990) (in each case the Board
looked beyond the claimant’s allegations of unfair treatment to determine if the evidence corroborated such
allegations).
6

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did, in fact,
occur); Pamela R. Rice, 38 ECAB 838 (1987) (claimant failed to establish that the incidents or actions which she
characterized as harassment actually occurred).
7

Paul Trotman-Hall, 45 ECAB 229 (1993) (Groom, M., concurring).

8

Dennis J. Balogh, 52 ECAB 232 (2001).

4

she has pursued her allegations through at least one grievance and seven EEO complaints, but it
appears she has not been successful in making her case because the record shows no final
decision or finding of any administrative wrongdoing. The absence of any independent,
probative evidence to establish a basis in fact for the contentions made against her supervisors
leaves appellant’s case without a foundation. The Board therefore finds that she has not met her
burden of proof. She has not shown that her claim of harassment and discrimination by
supervisors fall within the recognized exception to the general rule that the actions of a
supervisor are not covered by workers’ compensation.
There is another aspect to appellant’s claim. Appellant attributes her emotional
condition, in part, to harassment by a coworker, Ms. Williams. She submitted statements from a
number of other coworkers substantiating the harassment. A manager confirmed that his
investigation of the matter supported appellant’s allegations against Ms. Williams. He
interviewed coworkers and found their statements to be highly credible. As a result of his
investigation, he put Ms. Williams on notice that her behavior was unacceptable and would lead
to corrective action if continued.
This is something more than a mere perception or allegation of harassment. This is
probative and reliable evidence that harassment did, in fact, occur. Because the record contains
sufficient documentation to support appellant’s allegation of harassment by a coworker,
Ms. Williams, the Board finds that appellant has established a compensable factor of
employment. She had established a basis in fact for the contentions made against Ms. Williams.
The Office therefore must further develop and adjudicate this aspect of appellant’s claim on the
medical issue of causal relationship.
The Board will set aside the Office’s April 13, 2009 decision and remand the case for
further action. The Office shall prepare a statement of accepted facts, one that details the
manager’s memorandum and coworker statements regarding Ms. Williams’ interaction with
appellant and shall request a well-reasoned medical opinion on whether the documented
harassment by Ms. Williams caused or aggravated a diagnosed psychological condition. After
such further development of the evidence as may become necessary, the Office shall issue a de
novo decision on appellant’s claim for compensation benefits.
Appellant reiterates on appeal that she was harassed by a handful of supervisors once she
transferred. While there is no question that she feels very strongly about how they treated her,
she has given the Office no real proof of administrative error or abuse. The burden is hers and
the Board finds that she has not met that burden when it comes to the allegations made against
her supervisors. But her case will proceed on the limited issue of harassment by Ms. Williams,
independent and reliable evidence of which appears in the record.
CONCLUSION
The Board finds that this case is not in posture for decision. Further action is warranted.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 13, 2009 is set aside and the case remanded for further
action.
Issued: April 25, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
DEPARTMENT OF THE INTERIOR, U.S.
GEOLOGICAL SURVEY, Albuquerque, NM,
Employer
__________________________________________

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

Docket No. 17-1093
Issued: June 5, 2018

Case Submitted on the Record

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

JURISDICTION
On April 20, 2017 appellant filed a timely appeal from an April 17, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish an injury causally related
to the accepted November 29, 2016 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its April 14, 2017 decision. The
Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the
Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On December 6, 2016 appellant, a 29-year-old hydrologist, filed a traumatic injury claim
(Form CA-1) alleging that he sustained an unidentified injury which he attributed to a
November 29, 2016 employment-related motor vehicle accident. He explained that he was driving
when he saw a large cow standing in the road and then panicked, slammed the brakes, swerved,
and rolled. Appellant visited the hospital as a precaution, but no injuries were found. He did not
stop work.
On November 29, 2016 the employing establishment issued an authorization for
examination and/or treatment (Form CA-16).
In a November 29, 2016 report from Dr. Terrence Callahan, an emergency medicine
specialist from Eastern New Mexico Medical Center, he noted that appellant was involved in a
motor vehicle collision. Dr. Callahan diagnosed “[d]river injured in collision with other and
unspecified motor vehicles in traffic accident” and prescribed pain medication and a muscle
relaxant.
In a December 16, 2016 development letter, OWCP advised appellant of the deficiencies
in his claim and afforded him 30 days to submit additional evidence and respond to its inquiries.
Appellant subsequently submitted a document dated December 7, 2016 which indicated
that he was traveling for work on November 28 through 30, 2016 “to surface water gages for
maintenance.” He indicated that at the time of the accident he was driving a government-owned
vehicle, returning to the hotel in which he was staying.
The employing establishment submitted a statement dated December 22, 2016, confirming
that appellant was driving a government-owned vehicle in the performance of duty at the time of
his November 29, 2016 incident. It also attached a map of the location where the car accident
occurred. Appellant was returning to the hotel where he was staying when the accident occurred.
By decision dated January 23, 2017, OWCP accepted that the November 29, 2016 incident
occurred as alleged, but denied appellant’s claim because he failed to submit evidence containing
a medical diagnosis in connection with the injury or events. Thus, it concluded that he had not
established the medical component of fact of injury.
Subsequently, appellant submitted a November 29, 2016 chest x-ray which showed no
active cardiopulmonary disease and a November 29, 2016 hematology report. An x-ray of the
cervical spine also dated November 29, 2016 revealed straightening of normal cervical lordotic
curve, which may be spasm or positioning. Vertebral body heights and disc spaces were
maintained, the odontoid was normal, and prevertebral soft tissues were normal.
In a November 29, 2016 report, Dr. Callahan reiterated his diagnosis of “[d]river injured
in collision with other and unspecified motor vehicles in traffic accident” and noted that appellant
stated that he was in a work truck on a dirt road when he came across a cow in the middle of a
sharp turn, trying to avoid it, and rolled the truck. He reported that appellant denied pain and had
no obvious injury or disability.

2

On April 11, 2017 appellant requested reconsideration.
Appellant submitted a narrative statement reiterating the factual history of his claim and a
photograph of the motor vehicle accident. He also submitted additional emergency room treatment
records from November 29, 2016.
In a November 29, 2016 report, Dr. Callahan noted that appellant “sustained an anterior
aspect of left shoulder and posterior aspect of left shoulder, painful injury.” Appellant stated that
he was involved in a car accident and rolled his truck onto its side. He also stated that he was
restrained and that he did not have any loss of consciousness. Appellant confirmed that he was
able to get out of the vehicle and was able to walk around. He indicated that he had some pain to
his left shoulder, but denied any other injuries.
By decision dated April 17, 2017, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including that an injury was sustained in the performance of duty as alleged, and that
any specific condition or disability claimed is causally related to the employment injury.4
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.5 The second component is whether the employment incident caused a personal
injury.6 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.7
Causal relationship is a medical question which generally requires rationalized medical
opinion evidence to resolve the issue.8 A physician’s opinion on whether there is causal
relationship between the diagnosed condition and the implicated employment factors must be
based on a complete factual and medical background.9 Additionally, the physician’s opinion must
3

See supra note 1.

4

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

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

7

Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

Robert G. Morris, 48 ECAB 238 (1996).

9

Victor J. Woodhams, 41 ECAB 345, 352 (1989

3

be expressed in terms of a reasonable degree of medical certainty, and must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factors.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury related
to the accepted November 29, 2016 employment incident.
Dr. Callahan, who treated appellant in the emergency room on November 29, 2016, noted
that he was involved in a motor vehicle collision. He also asserted that appellant sustained a
“painful injury” to the anterior and posterior aspects of the left shoulder. However, left shoulder
pain is a symptom, not a medical diagnosis.11 Accordingly, Dr. Callahan’s finding of a left
shoulder “painful injury” is insufficient to satisfy appellant’s burden of proof with respect to the
medical component of fact of injury.12 There is no evidence of record that establishes a medical
diagnosis in connection with the accepted employment incident. Consequently, appellant failed to
establish an injury in the performance of duty on November 29, 2016.
On appeal appellant notes that he is only seeking reimbursement for the bills that resulted
from the one hospital visit. On November 29, 2016 the employing establishment issued appellant
a Form CA-16 authorizing medical treatment. OWCP did not address whether appellant is entitled
to reimbursement of medical expenses pursuant to the Form CA-16.13
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 an injury
causally related to the accepted November 29, 2016 employment incident. On return of the record,
OWCP should consider the Form CA-16 issued in this case.

10

Id.

11

Findings of pain or discomfort alone do not satisfy the medical aspect of the fact of injury medical determination.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.4a(6) (August 2012).
12

Id.; see Deborah L. Beatty, 54 ECAB 340, 341 (2003); P.S., Docket No. 12-1601 (issued January 2, 2013); C.F.,
Docket No. 08-1102 (issued October 10, 2008)..
13

The Board notes that a Form CA-16 authorization for examination and/or treatment was issued by the employing
establishment on May 8, 2015. When the employing establishment properly executes a Form CA-16 which authorizes
medical treatment as a result of an employee s claim for an employment-related injury, the Form CA-16 creates a
contractual obligation, which does not involve the employee directly, to pay for the cost of the examination or
treatment regardless of the action taken on the claim. The period for which treatment is authorized by a Form CA-16
is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c);
Tracy P. Spillane, 54 ECAB 608, 610 (2003).

4

ORDER
IT IS HEREBY ORDERED THAT the April 17, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 5, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lindenhurst, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2350
Issued: March 14, 2008

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 September 17, 2007 appellant filed a timely appeal from a July 9, 2007 merit decision
of the Office of Workers’ Compensation Programs that denied his occupational disease claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he developed
an occupational disease in the performance of duty.
FACTUAL HISTORY
This case has previously been before the Board. On November 22, 2005 appellant, then a
53-year-old mail carrier, filed an occupational disease claim alleging that he developed “workrelated aches and pains” in the performance of duty. By decision dated March 1, 2006, the
Office denied appellant’s claim, finding that he submitted no medical evidence establishing that
he sustained medical condition causally related to his employment. Appellant requested

reconsideration and submitted a February 17, 2006 report from Dr. Lawrence A. Opisso, a
chiropractor, who diagnosed vertebral subluxation complex at C5-6, cervical disc displacement,
shoulder joint stiffness and lumbago based on an August 27, 2005 magnetic resonance imaging
(MRI) scan. By decision dated July 5, 2006, the Office denied modification of its March 1, 2006
decision. On December 22, 2006 the Board affirmed the Office’s decisions, finding that
Dr. Opisso’s February 17, 2006 report was not competent medical evidence as the chiropractor
based his cervical subluxation diagnosis on an MRI scan rather than x-ray testing as required by
the Act.1 The facts and history of the claim, as set forth in the Board’s prior decision, are
incorporated by reference.
On February 1, 2007 Dr. Opisso provided an addendum to his February 17, 2006 report.
He noted that appellant’s “primary diagnosis of vertebral subluxation complex at C5-6 was
confirmed by cervical spine x-rays taken on September 6, 2006.” Dr. Opisso explained that the
x-ray results as well as his physical examination of appellant confirmed the diagnosis of cervical
subluxation. He conducted a physical examination on January 30, 2007 and found that appellant
exhibited continuing symptoms of palpatory tenderness and fixation at C5-6 as well as altered
posture with increased dorsal kyphosis and cervical lordosis. Dr. Opisso found that appellant
was totally disabled and opined that his condition was causally related to his employment as a
mail carrier.
On May 21, 2007 appellant requested reconsideration of the Office’s July 5, 2006
decision.
In a July 9, 2007 decision, the Office denied modification of its July 5, 2006 decision.
The Office found that Dr. Opisso’s February 1, 2007 report was not considered medical evidence
from a physician because Dr. Opisso did not submit the x-ray film or x-ray report establishing a
spinal subluxation.
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 Act, that an injury was
sustained in the performance of duty as alleged, and that any disabilities and/or specific
conditions 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

1

Docket No. 06-2057 (issued December 22, 2006).

2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

2

An occupational disease or injury is one caused by specified employment factors
occurring over a longer period than a single shift or workday.5 The test for determining whether
appellant sustained a compensable occupational disease or injury is three-pronged. To establish
the factual elements of the claim, appellant must submit: “(1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the 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 factors identified by the claimant.”6
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.7 The
physician’s opinion must be based on a complete factual and medical background8 and must be
one of reasonable medical certainty9 explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.10
Section 8101(2) of the Act provides that the term “physician,” as used therein, “includes
chiropractors only to the extent that their reimbursable services are limited to treatment
consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray
to exist, and subject to regulation by the Secretary.”11 Office regulations provide that a
chiropractor may interpret his or her x-rays to the same extent as any other physician. To be
given any weight, the medical report must state that x-rays support the finding of spinal
subluxation. The Office will not necessarily require submittal of the x-ray, or a report of the
x-ray, but the report must be available for submittal on request.12
ANALYSIS
The Board previously found that appellant engaged in the employment activities alleged.
However, he has not presented sufficient medical evidence to establish that his diagnosed
condition was causally related to his employment factors.
5

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006).

6

Michael R. Shaffer, 55 ECAB 386, 389 (2004), citing Lourdes Harris, 45 ECAB 545 (1994); Victor J.
Woodhams, supra note 4.
7

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

8

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

9

John W. Montoya, 54 ECAB 306 (2003).

10

Judy C. Rogers, 54 ECAB 693 (2003).

11

5 U.S.C. § 8101(2).

12

20 C.F.R. § 10.311(c).

3

On reconsideration appellant submitted a February 1, 2007 report from Dr. Opisso who
noted conducting x-ray testing on September 6, 2006, which he advised confirmed a diagnosis of
cervical subluxation. The February 1, 2007 report constitutes competent medical evidence
pursuant to the Act.13 Although the Office found that the February 1, 2007 report was not from a
physician because Dr. Opisso did not submit the x-ray film or an x-ray report, this was error.
The Office’s regulations provide that a chiropractor may interpret his own x-rays to the same
extent as any other physician and do not require that an x-ray film or x-ray report be submitted.
Instead, the regulations provide that the x-ray or a report of the x-ray be made available for
submittal upon request.14 The record before the Board does not indicate that the Office ever
requested an x-ray or x-ray report from Dr. Opisso.
Although Dr. Opisso’s February 1, 2007 report is competent medical evidence, it is not
sufficiently rationalized to establish a causal relationship between appellant’s diagnosed cervical
subluxation and his employment duties. The chiropractor did not identify any employment
factors or explain how they caused or contributed to appellant’s diagnosed subluxation.
Moreover, as Dr. Opisso did not take x-rays for more than nine months after appellant filed his
claim, this delay in testing also diminishes the probative value of the opinion offered.15 As
Dr. Opisso has not fully explained the processes by which appellant’s work as a letter carrier
would have caused or aggravated the diagnosed condition. His February 1, 2007 report is
insufficient to establish appellant’s claim. The Board finds that appellant has not established that
his cervical subluxation was causally related to his employment.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
developed an occupational disease in the performance of duty.

13

See Linda L. Mendenhall, 41 ECAB 532 (1990).

14

20 C.F.R. § 10.311(c).

15

See Mendenhall, supra note 13.

4

ORDER
IT IS HEREBY ORDERED THAT the July 9, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 14, 2008
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

5


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

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Docket No. 11-1978
Issued: June 25, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On September 8, 2011 appellant filed an application for review of an August 25, 2011
merit decision of the Office of Workers’ Compensation Programs (OWCP) denying his request
for an increased schedule award.1 The appeal was docketed as No. 11-1978. Having reviewed
the case record submitted by OWCP, the Board finds that this case is not in posture for a
decision.
This case has previously been before the Board. In an order dated May 20, 2010, the
Board set aside OWCP’s April 3 and July 6, 2009 decisions denying appellant’s request for an
increased schedule award. The Board found the case was not in posture for a decision due to the
failure of the district medical adviser (DMA) and OWCP’s hearing representative to calculate
appellant’s schedule award entitlement pursuant to the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). The case
was remanded for a proper assessment of the medical evidence.2 In an order dated August 12,
2011, the Board set aside OWCP’s June 9, 2010 decision denying a request for an increased
1

OWCP accepted appellant’s December 8, 2004 traumatic injury claim for right shoulder strain, cervical
displacement, cervical spondylosis and depressive and anxiety disorders. On March 7, 2006 it granted a schedule
award for a 14 percent permanent impairment of the right upper extremity.
2

Docket No. 09-1898 (issued May 20, 2010).

schedule award. The Board again found the case was not in posture for a decision due to the
failure of the district medical adviser (DMA) and OWCP’s hearing representative to fully
address the medical evidence of record reflecting the current status of all accepted conditions
according to the sixth edition of the A.M.A., Guides. The case was remanded for a complete
assessment of appellant’s upper extremity impairment.3 The facts contained in the Board’s
previous orders are incorporated herein by reference.
On remand, OWCP referred appellant to Dr. William Dinenberg, a Board-certified
orthopedic surgeon, for a second opinion examination and an opinion as to whether he had
additional permanent impairment of his right upper extremity.4 In a July 11, 2011 report,
Dr. Dinenberg provided detailed examination findings, including positive impingement sign in
the right shoulder. He diagnosed cervical herniated nucleus pulposus, with complaints of right
upper extremity (RUE) radiculopathy and decreased sensation of the right small and ring finger.
Dr. Dinenberg opined that appellant had a two percent permanent impairment of the RUE
according to Table 15-21 at page 444 of the sixth edition of the A.M.A., Guides.5
OWCP forwarded the case to the DMA for a review. In a report dated August 24, 2011,
the DMA opined that appellant was not entitled to an increased schedule award. Referring to a
July/August 2009, The Guides Newsletter (Rating Spinal Nerve Extremity Impairment), the
DMA indicated that a schedule award is appropriate only when a claimant has extremity
impairment due to spinal nerve root deficit.6 He opined that Dr. Dinenberg had incorrectly
concluded that appellant had a two percent impairment based on the ulnar palmar digital nerve,
which is a peripheral nerve, but had not identified a spinal root nerve. The DMA concluded that
there was no objective evidence of radiculopathy and, therefore, no basis for an increased
schedule award. In a decision dated August 25, 2011, OWCP denied appellant’s request for an
increased schedule award based on the DMA’s recommendation.
The Board finds that the medical evidence of record does not comport with the A.M.A.,
Guides or provide a complete analysis of appellant’s upper extremity impairment. As the Board
stated in its prior order, OWCP was required to calculate appellant’s entitlement to an increased
schedule award pursuant to the sixth edition of the A.M.A., Guides.7 However, neither the
claims examiner nor the DMA, upon whose report he relied, addressed the medical evidence of
3

Docket No. 11-190 (issued August 12, 2011).

4

The record also contains a February 6, 2009 second opinion report from Dr. Dinenberg.

5

Dr. Dinenberg stated that appellant had a class 1 impairment, moderate sensory deficit, pursuant to the ulnar
palmer digital nerve. He gave a grade modifier 3 for functional history and grade modifier 1 for clinical studies,
resulting in a 2 percent permanent impairment of the RUE.
6

OWCP procedures provide a specific methodology for rating spinal nerve extremity impairment. See Federal
(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010). It was
designed to be used when a particular jurisdiction mandated ratings for extremities and precluded ratings for the
spine. Id.
7

Effective May 1, 2009, OWCP was required to begin applying the sixth edition of the A.M.A., Guides in
calculating schedule awards.7 See FECA Bulletin No. 09-03 (issued March 15, 2008). A claimant who has received
a schedule award calculated under a previous edition and who claims an increased award, will receive a calculation
according to the sixth edition for any decision issued on or after May 1, 2009. Id.

2

record reflecting the current status of all accepted conditions in light of provisions of the sixth
edition of the A.M.A., Guides.8
The DMA provided a cursory review of Dr. Dinenberg’s July 11, 2011 report. Referring
to the July/August 2009 Guides Newsletter, he concluded that there was no objective evidence of
radiculopathy and, therefore, no basis for an additional impairment rating. He did not, however,
address appellant’s accepted shoulder condition or the evidence of record relating to appellant’s
diagnosed radiculopathy, including a previous second opinion report from Dr. Dinenberg dated
February 6, 2009 and reports from appellant’s treating physician. He relied on Dr. Dinenberg’s
failure to identify a spinal nerve root as the sole basis for his opinion.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.9 Once
OWCP undertakes development of the record, it must do a complete job in procuring medical
evidence that will resolve the relevant issues in the case.10 In this case, OWCP began to develop
the evidence by seeking a second opinion from Dr. Dinenberg as to whether appellant had
additional permanent impairment. It then routed the case to the DMA for review. It failed,
however, to seek clarification as to whether appellant’s diagnosed radiculopathy could be traced
to a spinal nerve root. Without such information, an informed decision cannot be reached on the
relevant schedule award issue.11
The Board finds that this case is not in posture for a decision. The medical evidence of
record does not comport with the A.M.A., Guides or provide a complete analysis of appellant’s
upper extremity impairment. The case will be remanded for further development of the medical
evidence, including a request for a supplemental report from Dr. Dinenberg seeking clarification
on the issues addressed herein, and an opinion from the DMA as to whether appellant is entitled
to an increased schedule award pursuant to the A.M.A., Guides. Following this and such other
development as deemed necessary, OWCP shall issue an appropriate decision.

8

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF). A.M.A., Guides (6th
ed. 2008), section 1.3, p. 3. Under the sixth edition of the A.M.A., Guides, for upper extremity impairments the
evaluator identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by grade
modifiers based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS). Id.
at 385-419. The net adjustment formula is (GMFH-CDX) + (GMPE - CDX) + (GMCS - CDX). Id. at 411
9

William J. Cantrell, 34 ECAB 1223 (1983).

10

Richard F. Williams, 55 ECAB 343, 346 (2004).

11

Appellant’s prior receipt of a schedule award for a 14 percent impairment of his shoulder does not preclude his
right to seek and additional award based on mew medical evidence. A claimant retains the right to file a claim for
an increased schedule award based on new exposure or on medical evidence indicating that the progression of an
employment-related condition, without new exposure to employment factors, has resulted in a greater permanent
impairment than previously calculated. Tommy R. Martin, 56 ECAB 273 (2005).

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IT IS HEREBY ORDERED THAT the Office Workers’ Compensation Programs’
August 25, 2011 decision be set aside, and the case is remanded for further development
consistent with this order.
Issued: June 25, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
VETERANS ADMINISTRATION, VA
MEDICAL & REGIONAL OFFICE CENTER,
Fargo, ND, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-1351
Issued: February 15, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On June 29, 2020 appellant filed a timely appeal from a February 14, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards docketed the appeal as No. 20-1351.1
On November 13, 1998 appellant, then a 36-year-old housekeeper, filed a traumatic injury
claim (Form CA-1) alleging that on October 6, 1998 she sustained a stress fracture when she pulled
her gluteus maximus and aggravated her right foot along the sciatic nerve while in the performance
of duty. She stopped work on November 14, 1998 and returned on November 16, 1998. OWCP
accepted the claim for a stress fracture of the third metatarsal of the right foot. On May 7, 2001 it
found that appellant was reemployed as a program tester with wages of $320.00 per week, effective

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

November 15, 2000. OWCP found that the position fairly and reasonably represented her wageearning capacity.
Appellant filed a notice of recurrence (Form CA-2a) on January 20, 2019 claiming
disability and medical treatment for December 31, 1999 causally related to her October 6, 1998
employment injury. She explained that she was unable to stand on her right foot.
By decision June 3, 2019, OWCP denied appellant’s recurrence claim.
On September 16, 2019 appellant requested reconsideration.
By decision dated December 10, 2019, OWCP denied modification of its June 3, 2019
decision. It noted that appellant was in an automobile accident in 2011 and had reportedly
sustained multiple back, cervical spine, and right arm injuries, as well as migraine headaches, and
arthritis. OWCP noted that it had received a number of medical reports, however, the medical
evidence of record did not establish a causal relationship between her medical conditions and her
accepted employment injury.
OWCP thereafter received numerous medical reports from various medical providers
dating from February 28, 2006 to July 3, 2019.
On February 11, 2020 appellant requested reconsideration. She discussed her history of
injury and indicated that she had 60 percent permanent impairment of her right foot. Appellant
argued that she was wrongfully terminated, that the employing establishment did not accommodate
her work injury, engaged in unfair practices, slander, defamation of character, and retaliation. She
also argued that her injuries from the motor vehicle accident had resolved in three months.
By decision dated February 14, 2020, OWCP denied appellant’s request for reconsideration
of the merits of her claim. It summarily found that her reconsideration request did not raise a
substantive legal question nor include new and relevant evidence, and was therefore ins ufficient
to warrant a review of the prior decision.
The Board finds that the case is not in posture for decision.
5 U.S.C. § 8124(a) of FECA provides that OWCP shall determine and make findings of
fact and make an award for or against payment of compensation. Its regulations at 20 C.F.R.
§ 10.126 provide that the decision of the Director of OWCP shall contain findings of fact and a
statement of reasons. As well, OWCP’s procedures provide that the reasoning behind OWCP’s
decision should be clear enough f or the reader to understand the precise defect of the claim and
the kind of evidence which would overcome it. 2
In the February 14, 2020 decision, OWCP did not reference or discuss appellant’s
arguments or evidence submitted after the most recent merit decision dated December 10, 2019.3
2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

3

C.H., Docket No. 20-0325 (issued July 17, 2020); see R.T., Docket No. 19-0604 (issued September 13, 2019);
T.M., Docket No. 17-1609 (issued December 4, 2017).

2

It did not discharge its responsibility to set forth findings of fact and a clear statement of reasons
explaining the disposition so that appellant could understand the basis for the decision, i.e., why
the argument and evidence had not met any of the requirements of 20 C.F.R. § 10.606(b)(3),
requiring OWCP to reopen the case for review of the merits of the claim. 4 This case must therefore
be remanded to OWCP for an appropriate decision on appellant’s reconsideration request that
describes the evidence submitted on reconsideration and provides detailed reasons for accepting
or rejecting the reconsideration request.
Accordingly, the Board will set aside OWCP’s February 14, 2020 decision and remand the
case for OWCP to review the evidence and argument in support of appellant’s reconsideration
request, make findings of fact, and provide a statement of reasons for its decision, pursuant to the
standards set forth in section 5 U.S.C. § 8124(a) and 20 C.F.R. § 10.126. After such further
development as OWCP deems necessary, it shall issue an appropriate decision.
IT IS HEREBY ORDERED THAT the February 14, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: February 15, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

4

See J.M., Docket No. 18-0729 (issued October 17, 2019); J.J., Docket No. 11-1958 (issued June 27, 2012).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.T., Appellant
and
U.S. POSTAL SERVICE, RICHMOND
PROCESSING & DISTRIBUTION CENTER
ANNEX, Sandston, VA, Employer
__________________________________________

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

Docket No. 11-339
Issued: September 14, 2011

Case Submitted on the Record

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

JURISDICTION
On November 23, 2010 appellant timely appealed the November 2, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP), which granted a schedule award.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than 21 percent impairment of the left upper
extremity.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
Appellant, then a 63-year-old mail processing clerk, injured his left upper extremity in
the performance of duty on August 5, 2008.2 OWCP accepted the claim for left shoulder rotator
cuff sprain. It also authorized two arthroscopic procedures, the latest of which involved an
April 2, 2009 revision rotator cuff repair.3
Appellant received appropriate wage-loss
compensation. In July 2009, he returned to work in a limited-duty capacity. Appellant
subsequently filed a claim for a schedule award (Form CA-7). Dr. Thomas G. Franck provided
an April 1, 2010 impairment rating under the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment.
Dr. Franck based his upper extremity impairment rating on a March 4, 2010 physical
examination, which noted left shoulder range of motion measurements. He reported left
shoulder active range of motion (ROM) results as follows: 90 degrees flexion; 40 degrees
extension; 90 degrees abduction; 20 degrees adduction; 50 degrees internal rotation and 40
degrees external rotation.
Dr. Franck diagnosed left rotator cuff tear and left proximal biceps tendon tear, status
post surgical repair. He noted that he had calculated both a diagnosis-based impairment (DBI)
and a ROM impairment in accordance with Chapter 15 (The Upper Extremities), A.M.A., Guides
(6th ed. 2008). However, Dr. Franck considered the DBI rating inappropriate because it did not
include classification for proximal biceps tear and because there were significant deficits of
active and passive left shoulder ROM. Applying Table 15-34, A.M.A., Guides 475, he found 12
percent left upper extremity impairment due to loss of shoulder ROM.
On June 8, 2010 the district medical adviser (DMA) reviewed the record, including
Dr. Franck’s impairment rating, and found 21 percent impairment of the left upper extremity. He
applied the sixth edition of the A.M.A., Guides and concurred with Dr. Franck’s 12 percent
rating for loss of left shoulder ROM. However, the DMA found an additional 10 percent DBI
due to appellant’s November 2008 distal clavicle excision. With respect to this latter DBI rating,
he cited Table 15-5 (Shoulder Regional Grid), A.M.A., Guides 403. The DMA found that
appellant had reached maximum medical improvement on April 9, 2010.
By decision dated November 2, 2010, OWCP granted a schedule award for 21 percent
impairment of the left upper extremity. The award covered a period of 65.52 weeks beginning
April 9, 2010.

2

Appellant reported injuring himself while lifting a sack. He had a preexisting right shoulder injury for which he
had undergone surgery in July 2007.
3

Dr. William E. Nordt, III, a Board-certified orthopedic surgeon, performed both procedures. On November 11,
2008 he performed a left rotator cuff repair with acromioplasty and distal clavicle excision. Dr. Nordt’s
postoperative diagnosis was torn left rotator cuff. Following the second surgery, his postoperative diagnoses
included recurrent rotator cuff tear and left biceps tendon rupture.

2

LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.4 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.5 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides.6
ANALYSIS
Appellant’s physician, Dr. Franck, found that appellant had 12 percent left upper
extremity permanent impairment due to loss of motion in the shoulder. The DMA agreed with
the 12 percent ROM impairment and found an additional 10 percent impairment DBI based upon
appellant’s November 11, 2008 left shoulder distal clavicle excision, for a combined left upper
extremity impairment rating of 21 percent. Appellant argued that the DMA meant to award 22
percent impairment rather than 21 percent as specifically noted in his June 8, 2010 report.
The Board finds that the evidence of record does not establish that appellant has more
than a 21 percent permanent impairment of the left upper extremity.
Dr. Franck found a 12 percent impairment of the left upper extremity based on loss of
shoulder motion. He stated that the alternative rating method DBI was inappropriate because it
did not adequately reflect appellant’s proximal biceps tear and because there were significant
motion deficits in the left shoulder. The A.M.A., Guides instruct that ROM may under specific
circumstances be selected as an alternative approach to rating impairment, however an
impairment rating that is calculated using ROM may not be combined with the DBI, which
stands alone as the rating.7 It was error on the part of OWCP’s medical adviser to combine the
range of motion rating with the diagnosis-based rating to total 21 percent.
The Board finds that, pursuant to Table 15-34, appellant’s 90 degrees shoulder flexion
equals three percent impairment, 40 degrees extension equals one percent impairment, 90
degrees abduction equals three percent impairment, 20 degrees adduction equals one percent
impairment, 50 degrees internal rotation equals two percent impairment and 40 degrees of

4

For a total loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

5

20 C.F.R. § 10.404 (2010).

6

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); see also Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6a
(January 2010).
7

A.M.A., Guides 390.

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external rotation equals two percent impairment. When added the range of motion permanent
impairment of the left shoulder totals 12 percent.8
Despite appellant’s contended that he is entitled to an award for a 22 percent permanent
impairment of the left upper extremity, the A.M.A., Guides clearly state that he is entitled to an
award calculated by either the range of motion methodology, or the DBI methodology, but not
both. The Board concludes that he has not submitted any probative medical evidence to establish
greater than 21 percent impairment of the left upper extremity.
CONCLUSION
The Board finds that appellant does not have more than 21 percent impairment of the left
upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the November 2, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 14, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8

Id. at 475.

4