United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
DEPARTMENT OF TRANSPORTATION,
MARITIME ADMINISTRATION,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 07-1441
Issued October 22, 2007

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 May 4, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ January 25, 2007 merit decision denying his request for purchase of a
motorized cart, mattress and home spa and an April 19, 2007 nonmerit decision denying his
request for further review of the merits of his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over these decisions.
ISSUES
The issues are: (1) whether the Office abused its discretion in denying appellant’s request
to authorize the purchase of a motorized cart, mattress and home spa; and (2) whether the Office
properly denied appellant’s request for further review of the merits of his claim pursuant to
5 U.S.C. § 8128(a).

FACTUAL HISTORY
On May 30, 1995 appellant, then a 44-year-old marine equipment repairer, filed a claim
alleging that he sustained a right knee injury due to the kneeling required by his job. The Office
accepted that appellant sustained a right medial meniscus tear of the posterior horn, right
prepatellar and pretibial bursitis and chondromalacia of his right knee.1 On April 14, 1999
Dr. John C. Kofoed, an attending Board-certified orthopedic surgeon, performed a right medial
meniscectomy with debridement which was authorized by the Office. Appellant worked in
limited-duty positions and received compensation for periods of disability.2
In late 2000 appellant began to participate in an Office-sponsored rehabilitation program.
In January 2001 the Office authorized appellant to take classes at Solano Community College with
the goal of receiving a certificate in human services. He completed the work for his certificate in
May 2002. Appellant began working for the Vacaville Social Services Department as a shelter aid
and his compensation was adjusted by the Office based on his actual earnings in this position.
On October 22, 2002 Dr. Jerrold M. Sherman, a Board-certified orthopedic surgeon who
served as an Office referral physician, stated that appellant had osteoarthritis involving the
patellofemoral and medial compartments of his right knee and would eventually require a total
knee prosthesis. He indicated that appellant exhibited symptom magnification as demonstrated by
volitional limitation of right knee motion, a new appearing right knee brace despite his claim of
wearing it on a daily basis and a complaint of pain with light skin palpation. In early 2003
appellant received schedule awards for a 56 permanent impairment of his right leg.
On April 26, 2006 Dr. Kofoed stated that examination of appellant’s knees revealed
moderate medial joint tenderness and a full range of motion in both knees. He indicated that
appellant had a mild antalgic gait favoring the right side and ambulated with the assistance of a
cane. Dr. Kofoed indicated that x-rays of the right knee showed complete loss of medial joint
space with some patellofemoral degeneration and diagnosed advanced right knee arthritis.3
In August 2006 appellant requested authorization to purchase a motorized cart, mattress
and home spa.4 He submitted price quotes for these items. On September 19, 2006 Dr. Kofoed
stated that appellant reported increased right knee symptoms and noted on examination that he had
diffuse tenderness in both knees and the lumbosacral area. He made note of appellant’s request for
a mobilized cart and new mattress. In the “impression” section of the report, Dr. Kofoed stated,
“Request for a motorized wheelchair to be used in school in Oregon to help with his chronic

1

The Office has also accepted, under separate claim files, that appellant sustained employment-related low back
and left knee conditions.
2

Appellant was terminated from the employing establishment effective September 22, 2000.

3

Dr. Kofoed deferred examination of appellant’s back but included the diagnosis of “low back pain.”

4

It appears that the Office previously authorized the purchase of a mattress and bed frame in August 2002.
Appellant requested authorization to purchase a home spa in mid 2002 but the Office did not issue a decision
regarding this request in connection with the present claim file.

2

bilateral knee pain and back pain.”5 In December 2006 the Office requested that appellant submit
medical evidence supporting his request for authorization to purchase a motorized cart, mattress
and home spa.
In a January 2, 2007 report, Dr. Kofoed stated that appellant reported obtaining new
unloaded braces which were helpful in reducing knee pain and allowed him to participate in
prolonged standing and walking and to attend school.6 He stated that appellant reported, however,
that he still needed a motorized cart in order to engage in prolonged walking and standing both on
campus and in the course of his other daily activities. Dr. Kofoed indicated that appellant also
requested a home spa and mattress to assist with his chronic knee, back and neck pain. He stated
that on examination appellant exhibited diffuse tenderness in both knees and mild-to-moderate
tenderness in the low back and indicated that his motor, sensory and reflex systems were intact.
Dr. Kofoed noted that appellant was ambulatory with the assistance of a cane and was wearing
unloaded braces on his knees which seemed to help him with ambulation. He diagnosed chronic
back pain due to degenerative disc disease and bilateral knee pain with advanced degenerative
changes particularly on the right. Dr. Kofoed recommended that appellant continue with his new
unloaded braces, that he have a “spa to assist with relief of his back and knee pain,” that he have
“an electric cart such as the PMV 600 Wrangler to assist with ambulation about school and for
community ambulation to assist with activities of daily living,” and that he have a “special bed to
assist with reduction of his back and knee pain.”
In a January 25, 2007 decision, the Office denied appellant’s request for authorization to
purchase a motorized cart, mattress and home spa. The Office found that Dr. Kofoed did not
provide sufficient explanation as to how appellant’s employment-related medical condition
“worsened based on objective findings” such that he required the requested motorized cart,
mattress and home spa. The Office stated that medical evidence of record did not show that the
requested items were likely to cure, give relief, reduce the degree or the period of disability or aid
in lessening the amount of the monthly compensation.
On March 15, 2007 appellant requested reconsideration of the Office’s January 25, 2007
decision. In a February 13, 2007 report, Dr. Kofoed indicated that appellant reported knee and
back pain and that he had difficulty ambulating with his knee braces and cane. On examination
appellant exhibited tenderness in the medial joint space of both knees, more on the right, and
moderate tenderness in the low back with some periodic referred pain. Dr. Kofoed provided
diagnoses which were similar to those contained in his prior reports. He stated:
“Based on ongoing complaints of pain, limitations with regard to activities of
daily living, we are recommending an orthopedic bed to help with his back pain
and to get in and out of bed with less problems and discomfort. We are also
recommending a mobility cart to assist with his community ambulation while
5

Appellant had moved to Oregon and was attending Oregon Junior College. It appears that his attendance at this
college was authorized by the Department of Veterans Affairs. Appellant asserted that he needed the motorized cart
to get around the college campus. He indicated that Solano Community College had provided such carts but that
Oregon Junior College did not.
6

In October 2006 the Office authorized appellant’s request for purchase of two knee orthoses.

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attending school which is quite difficult for him because of his bilateral knee pain
and low back pain. Finally, a spa is recommended for him to deal with his
chronic pain issues when he has flares of his back and knee pain. These problems
are chronic and degenerative and the spa would provide symptomatic relief for
flares without having to obtain authorization to attend a physical therapy program
for massage and/or spa treatment.”
Appellant also submitted a previously submitted x-ray report, a quote of scooter prices and
a January 30, 2007 letter in which an official from Umpqua Community College in Oregon stated
that the college had a limited supply of motorized carts available to students.7
In an April 19, 2007 decision, the Office denied appellant’s request for further review of
the merits of his claim.
LEGAL PRECEDENT -- ISSUE 1
Section 8103(a) of the Federal Employees’ Compensation Act states in pertinent part:
“The United States shall furnish to an employee who is injured while in the performance of duty,
the services, appliances and supplies prescribed or recommended by a qualified physician, which
the Secretary of Labor considers likely to cure, give relief, reduce the degree or the period of
disability, or aid in lessening the amount of the monthly compensation.”8 The Board has found
that the Office has great discretion in determining whether a particular type of treatment is likely
to cure or give relief.9 The only limitation on the Office’s authority is that of reasonableness.10
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a right medial meniscus tear of the posterior
horn, right prepatellar and pretibial bursitis and chondromalacia of his right knee.11 Appellant
requested authorization to purchase a motorized cart, mattress and home spa. The Office denied
the request, finding that he had not submitted sufficient medical evidence justifying the purchases.
The Board finds that the Office did not abuse its discretion in denying appellant’s request
to purchase a motorized cart, mattress or home spa. In its January 25, 2007 denial of appellant’s
request, the Office explained that the medical evidence of record, including the January 2, 2007
7

It is unclear when appellant started attending Umpqua Community College rather than Oregon Junior College.

8

5 U.S.C. § 8103.

9

In order to be entitled to reimbursement of medical expenses, it must be shown that the expenditures were
incurred for treatment of the effects of an employment-related injury or condition. Bertha L. Arnold, 38 ECAB 282,
284 (1986). Proof of causal relationship in a case such as this must include supporting rationalized medical
evidence. Vicky C. Randall, 51 ECAB 357 (2000); Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981); John E.
Benton, 15 ECAB 48, 49 (1963).
10

Lecil E. Stevens, 49 ECAB 673, 675 (1998)

11

The Office has also accepted, under separate claim files, that appellant sustained employment-related low back
and left knee conditions.

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report of Dr. Kofoed, did not show that the requested items were likely to cure, give relief, reduce
the degree or the period of disability, or aid in lessening the amount of the monthly compensation.
The Board notes that, in his January 2, 2007 report, Dr. Kofoed recommended that appellant
continue with his new unloaded braces, that he have a “spa to assist with relief of his back and
knee pain,” that he have “an electric cart such as the PMV 600 Wrangler to assist with ambulation
about school and for community ambulation to assist with activities of daily living,” and that he
have a “special bed to assist with reduction of his back and knee pain.” He did not provide any
further explanation for these recommendations.
Dr. Kofoed did not adequately explain how the motorized cart, mattress and home spa were
necessitated by appellant’s employment-related right knee condition or otherwise explain the
medical process through which they would provide additional relief. Such explanation is
particularly necessary because, as noted by the Office in its January 25, 2007 decision, Dr. Kofoed
did not show that appellant’s employment-related condition had worsened such that these
requested items were now needed. Over the course of the several years prior to appellant’s request,
Dr. Kofoed had reported similar findings on examination, namely that appellant had bilateral knee
pain with low back tenderness related to degenerative processes. With respect to the motorized
cart request, he did not explain why such a device would be needed given that he had stated that
appellant was ambulatory with the assistance of a cane and wore knee braces which appeared to
help him with ambulation.
For these reasons, the Office did not abuse its discretion in denying appellant’s request to
authorize the purchase of a motorized cart, mattress and home spa. The Office explained that
Dr. Kofoed provided a limited explanation for the necessity of these items and the Board finds that
it was not unreasonable for the Office to deny authorization for their purchase.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,12 the Office’s regulations provide that the evidence or argument submitted by 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) constitute
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 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

12

Under section 8128 of the Act, “[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.” 5 U.S.C. § 8128(a).
13

20 C.F.R. § 10.606(b)(2).

14

20 C.F.R. § 10.607(a).

15

20 C.F.R. § 10.608(b).

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for reopening a case.16 The Board 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
ANALYSIS -- ISSUE 2
In support of his March 15, 2007 reconsideration request, appellant submitted a
February 13, 2007 report of Dr. Kofoed. The Board notes that submission of this report did not
require reopening appellant’s case for merit review because it contains a discussion regarding
appellant’s need for medical devices which are essentially duplicative to that contained in his
January 25, 2007 report which was considered by the Office.18 In his February 13, 2007 report,
Dr. Kofoed merely asserted, as he had in his January 25, 2007 report, that appellant needed a
motorized cart, mattress and home spa in order to alleviate knee and back pain and to help with
mobility at school and perform the activities of daily living. Appellant also submitted a quote of
scooter prices and a statement from an official at Umpqua Community College indicating that the
college had a limited supply of motorized carts available to students. However, these documents
do not require the reopening of appellant’s claim as they are not relevant to the underlying issue of
the present case which is medical in nature, i.e., whether the Office abused its discretion when it
determined that appellant did not submit sufficient medical evidence to justify purchase of a
motorized cart, mattress and home spa.19
In the present case, appellant has not established that the Office improperly denied his
request for further review of the merits of its January 25, 2007 decision under section 8128(a) of
the Act, because the evidence and argument he submitted did not to 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 constitute relevant and pertinent new evidence not
previously considered by the Office.
CONCLUSION
The Board finds that the Office did not abuse its discretion in denying appellant’s request
to authorize purchase of a motorized cart, mattress and home spa. The Board further finds that the
Office properly denied appellant’s request for further review of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).

16

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

17

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

18

See supra note 16 and accompanying text. Appellant also submitted a copy of a previously submitted x-ray
report, but the Office had already considered this document.
19

See supra note 17 and accompanying text.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
April 19 and January 25, 2007 decisions are affirmed.
Issued: October 22, 2007
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Castle Point, NY, Employer
__________________________________________

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

Docket No. 14-113
Issued: April 25, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 18, 2013 appellant filed a timely appeal from a September 23, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained a traumatic injury in the
performance of duty on July 25, 2013, as alleged.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 25, 2013 appellant, then a 57-year-old licensed practical nurse, filed a traumatic
injury claim (Form CA-1) alleging that on that day while caring for a patient who was resistive,
she experienced neck pain radiating to her right shoulder.
In a July 27, 2013 note, Dr. Noemi G. Klayman, a Board-certified physiatrist, indicated
that appellant was seen in the office for back pain/strain. She noted that appellant was being
treated with anti-inflammatory medications, massage and heat. Dr. Klayman requested that
appellant be excused from work until August 3, 2013.
In a July 25, 2013 medical report, Dr. Thomas Booker, a Board-certified physiatrist,
reported that appellant presented for evaluation of a right neck injury she sustained after getting
pulled by a patient on July 25, 2013. Appellant reported pain at the base of her right neck which
radiates into her trapezius but with no pain into her right arm. Dr. Booker reported a decreased
range of motion of her neck with flexion, extension, and lateral rotation and marked tenderness
to palpation over muscles of right neck and shoulders. He opined that appellant has pain in her
right neck, likely a strain after her injury.
In a July 27, 2013 medical report, Dr. Klayman noted that appellant saw Dr. Booker two
days earlier for acute onset of pain. Appellant reported the history of injury as hurting herself at
work on July 25, 2013 at two o’clock in the morning, when turning and pulling up a patient, who
was combative. She stated that, while turning him, he was fighting and she turned around really
fast to get away and felt a pull in her neck and pain started shooting down her shoulder from the
neck scapular area approximately a half hour later. Appellant stated that the pain was now all the
way down the side of her back to the low back. Her past medical/surgical history was noted.
Examination revealed normal range of motion of shoulders, elbows and wrist with normal upper
extremity strength; moderate tenderness from scapular region on right side through thoracic
spine musculature on the right side; moderate muscle spasm throughout right side of her back;
and mild-to-moderate swelling upper back paraspinal and thoracic paraspinal musculature. An
assessment of back sprain/strain was provided. Dr. Klayman opined that appellant likely
sustained a back sprain/strain when assisting a combative patient at her job (works as nurse) and
was now experiencing severe muscle spasm of nearly her entire right back region. She advised
that appellant be off work for a week and then be reevaluated prior to returning to work.
In an August 2, 2013 report, Dr. Sandy W. Doti, a Board-certified internist, reported that
appellant felt stiffness turning head quick in response to a combative patient. She continued to
work and later in the day became very stiff and had pain radiating to right scapula. Examination
revealed reduced range of motion of neck flexion to the right and reduced right lateral motion
with increased tone of right trapezius and no muscle tenderness. An assessment of cervicalgia
was provided.
On August 20, 2013 OWCP noted that appellant’s claim first appeared to be a minor
injury that resulted in minimal or no lost time from work. It noted that the employing
establishment paid continuation of pay and a limited amount of medical expenses was
administratively approved. OWCP advised that appellant’s claim was being formally
adjudicated and noted that the medical evidence received was insufficient to support her claim as

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there was no firm diagnosis from a physician. Appellant was advised of the type of information
that must be submitted in a physician’s report, including an opinion supported by a medical
explanation as to how the reported work incident caused or aggravated the claimed injury. She
was accorded 30 days to submit additional evidence.
In a July 25, 2013 note, Dr. Suprtiyo Das2 reported that appellant, a B2 unit licensed
practical nurse, was caring for an agitated patient in the unit, when patient pushed her and she
had quick turn at her right back. He noted that she was having pain at right upper back radiating
from right neck to right shoulder and right upper back. Range of motion restrictions and muscle
tenderness was noted at right upper back and right neck. A diagnosis of muscle strain was
provided.
In an August 19, 2013 report, Dr. Doti reported that appellant’s neck pain has resolved
and she was able to move her neck a baseline again.
By decision dated September 23, 2013, OWCP denied the claim on the grounds that
appellant did not submit any medical evidence containing a firm medical diagnosis in connection
with the accepted event.
LEGAL PRECEDENT
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 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. A
fact of injury determination is based on two elements. 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. 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. An employee may establish that the employment incident occurred as alleged
but fail to show that his or her condition relates to the employment incident.5

2

Dr. Das’ credentials are not of record.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

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Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.6 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 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.8 Neither the mere fact that a disease or condition
manifests itself during a period of employment nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.9
ANALYSIS
OWCP accepted that on July 25, 2013 appellant was caring for a patient who was
resistant to care and turning. It denied her claim that an injury occurred in the performance of
duty on July 25, 2013 finding that she did not submit medical evidence containing a medical
diagnosis in connection with the accepted event. The Board finds that appellant did not meet her
burden of proof to establish that she sustained an injury in the performance of duty on
July 25, 2013. She did not submit medical evidence which described her patient care activities
and explained, with medical rationale, how these activities would have physiologically caused a
specific diagnosed condition.
In his July 25, 2013 medical report, Dr. Booker opined that appellant has pain in her right
neck, likely a strain after her injury. He, however, did not offer a firm diagnosis, noting that she
“likely [suffered] a strain after her injury.” Thus, Dr. Booker’s opinion is insufficient to
establish appellant’s claim.
Dr. Klayman noted that the history of injury and that appellant’s pain, which started in
her neck was now all the way down the side of her back to the low back. An assessment of back
sprain/strain was provided in her note of July 27, 2013. In a report of the same date,
Dr. Klayman opined that appellant likely sustained a back sprain/strain when assisting a
combative patient at her job (works as nurse) and was now experiencing severe muscle spasm of
nearly her entire right back region. She advised that appellant be off work for a week and then
be reevaluated prior to returning to work. Dr. Klayman did not provide a firm diagnosis, noting
that appellant “likely sustained a back sprain/strain.” Additionally, she offered no rationale as to
how or why appellant sustained a back condition when the pain started in her neck. Thus,
Dr. Klayman’s opinion is insufficient to establish appellant’s claim.

6

See J.Z., 58 ECAB 529, 531 (2007); Paul E. Thams, 56 ECAB 503, 511 (2005).

7

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

James Mack, 43 ECAB 321, 329 (1991).

9

Dennis M. Mascarenas, 49 ECAB 215 (1997).

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In an August 2, 2013 report, Dr. Doti reported that appellant felt stiffness turning her
head quickly in response to a combative patient and that later in the day she became very stiff
and had pain radiating to her right scapula. Examination revealed reduced range of motion of
neck flexion to the right and reduced right lateral motion with increased tone of right trapezius
and no muscle tenderness. An assessment of cervicalgia was provided. Dr. Doti did not provide
a clear statement explaining how the diagnosed condition occurred as a result of the accepted
July 25, 2013 work incident. While his identification of cervicalgia or neck pain was provided
with detailed objective findings to support a firm diagnosed condition, Dr. Doti did not provide a
rationalized medical opinion addressing how the July 25, 2013 work incident caused appellant to
suffer a medical condition. In an August 19, 2013 report, he reported that appellant’s neck pain
resolved. Thus, Dr. Doti’s opinion is insufficient to establish appellant’s claim.
In a July 25, 2013 note, Dr. Das noted the history of injury, provided objective findings
and diagnosed muscle strain. However, he provided only a vague diagnosis as he did not
identify what muscle or groups of muscles were strained. Additionally, Dr. Das did not provide
a rationalized medical opinion addressing how the July 25, 2013 work incident caused appellant
to suffer a medical condition. Thus, his opinion is insufficient to establish appellant’s claim.
The Board finds that appellant did not submit sufficient medical evidence which provided
either a firm diagnosis or a rationalized explanation as to how the accepted incident caused or
aggravated either a back or neck condition. Appellant therefore failed to establish that she has a
medical condition resulting from the July 25, 2013 employment incident.
On appeal, appellant argued that her claim should be accepted as she complied with all of
OWPC’s requests. However, the medical evidence provided either did not contain a firm
diagnosis or a rationalized explanation as to how the accepted incident caused or aggravated
either a back or neck condition. Appellant also provided new evidence on appeal. The Board’s
jurisdiction, however, is limited to evidence that was before OWCP at the time it issued its final
decision.10 Because this evidence was not before OWCP at the time it issued its September 23,
2013 decision, the Board may not consider this evidence for the first time on appeal.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a medical condition on July 25, 2013 in the performance of duty.

10

20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB 126 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the September 23, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: April 25, 2014
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.Q., Appellant
and
DEPARTMENT OF THE NAVY, AIR
SYSTEMS COMMAND HEADQUARTERS
OFFICE, Patuxent River, MD, Employer
__________________________________________

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

Docket No. 10-729
Issued: December 16, 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 January 25, 2010 appellant filed a timely appeal from the November 4, 2009 schedule
award denial of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant sustained permanent impairment of her left foot or lower
extremity.
FACTUAL HISTORY
On May 8, 2007 appellant, then a 60-year-old financial management analyst, injured her
left foot while walking with coworkers to dinner while on official travel. The Office accepted
her claim for plantar fascia tear of the left foot. Appellant stopped work on February 11, 2008
and returned on April 14, 2008.
Appellant was initially treated on May 29, 2007 by Dr. Jeffrey D. Sabloff, an orthopedic
surgeon, who noted an x-ray of the left foot revealed calcaneus and a small spur on the plantar

surface and diagnosed tear of the plantar fascia. Appellant sought treatment from Dr. Ahmed
Kafaji, a Board-certified neurologist, who performed an electromyogram (EMG) on
June 21, 2007. Dr. Kafaji diagnosed severe chronic distal axonal polyneuropathy, etiology
unclear. In reports dated July 19, 2007 to January 31, 2008, he treated appellant for peripheral
neuropathy, hypertension and diabetes mellitus .
From February 1 to July 2, 2008, appellant came under the treatment of Dr. Rakhi
Krishnan, Board-certified in infectious disease, for left foot neuropathy and osteomyelitis.
Dr. Krishnan noted that she underwent a computerized tomography (CT) scan of the left foot on
February 11, 2008 which revealed significant destructive changes of the joints of the left foot and
cuneiform bones suggestive of osteomyelitis. He had appellant hospitalized from February 13 to
18, 2008 and diagnosed left foot osteomyelitis and neuropathy. Dr. Krishnan diagnosed acute
and chronic osteomyelitis, worsening of abscesses. A February 14, 2008 x-ray of the left foot
revealed bony irregularity at the base of the third metatarsal with bony sequestrum dorsally
suspicious for osteomyelitis.
Appellant was treated by Dr. John Harvey, a Board-certified vascular surgeon, who on
February 15, 2008 performed an incision and drainage of the left foot, debridement of the skin,
subcutaneous tissue and bone biopsy and diagnosed osteomyelitis with abscess of the left foot.
On May 20, 2008 Dr. Harvey noted appellant’s history of neuropathy and biopsy of the bone and
incision drainage of the abscess on February 15, 2008.1 He noted that appellant was
subsequently treated with intravenous antibiotic for a protracted period with worsening of the
osteomyelitis. Dr. Harvey readmitted appellant on May 20, 2008 for reexploration with incision
and drainage of abscess and recommended a course of protracted antibiotics.
On September 16, 2008 appellant filed a claim for a schedule award. On October 31,
2008 the Office requested that she submit a detailed report from her treating physician which
provided an impairment evaluation pursuant to the American Medical Association, Guides to the
Evaluation of Permanent Impairment,2 (A.M.A., Guides).
Appellant submitted a November 20, 2008 report from Dr. Harvey who noted treating her
for an abscess of the left foot related to peripheral neuropathy, diminished sensation and injury.
Dr. Harvey noted that appellant had two surgeries and he last treated her on September 29, 2008
and opined that she had reached maximum medical improvement. He noted significant
restriction in movement in the left foot, Charcot joints, abnormal adduction, abduction and
rotation, decreased strength in the muscles of the foot, deformity of the foot with loss of the
plantar arch, minimal sensation in the foot. Dr. Harvey did not have a copy of the A.M.A.,
Guides but estimated that appellant had 20 percent impairment.
After the Office requested additional evidence regarding the cause of nonaccepted
conditions, appellant submitted a March 19, 2009 report from Dr. Harvey who noted first
treating appellant on February 14, 2008. Dr. Harvey indicated that he did not examine appellant
prior to May 8, 2007 or the period after this date and was unable to comment regarding the state
of her left foot at the time of the incident.
1

This procedure was not authorized by the Office.

2

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

2

The Office referred Dr. Harvey’s report and the case record to an Office medical adviser.
In an April 11, 2009 report, the Office medical adviser stated that appellant had no impairment of
the left leg due to the accepted plantar fascia tear. He found no evidence of permanent
impairment and opined that the 20 percent impairment, rating provided by Dr. Harvey was
merely an estimate and not based on the A.M.A., Guides. The Office medical adviser noted that
the changes that Dr. Harvey described as the reason for the impairment were secondary to the
osteomyelitis, which was not an accepted condition. He stated that to a reasonable degree of
medical certainty there was no evidence of impairment based on the accepted condition of
plantar fascia tear and the restricted motion in the foot was secondarily due to the Charcot joints
and the sequelae of osteomyelitis.
By decision dated May 4, 2009, the Office denied appellant’s claim for a schedule award.
On May 9, 2009 appellant requested an oral hearing which was held on
September 3, 2009. She submitted an x-ray of the left foot and reports from Dr. Sabloff,
Dr. Krishnan and Dr. Harvey all previously of record. A January 10, 2008 magnetic resonance
imaging (MRI) scan of the left foot revealed moderate diffuse cellulitis reactive marrow
transformation involving the cuneiform bone with mild chronic plantar fasciitis. A May 7, 2009
MRI scan of the left foot revealed stable appearance of marrow edema, bony erosions along the
metatarsals, chronic osteomyelitis with moderate arthritic changes. A February 11, 2008 CT
scan of the left foot revealed septic arthritis in the second, third and fourth tarsometatarsal joints
with osteomyelitis in the cuneiform tarsal bones. A May 9, 2008 MRI scan of the left foot
revealed chronic osteomyelitis, worsening destruction of the metatarsophalangeal joints with
septic arthritis.
In a decision dated November 4, 2009, the hearing representative affirmed the
May 4, 2009 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.5
ANALYSIS
On appeal, appellant contends that she is entitled to a schedule award for the left lower
extremity. To be entitled to a schedule award she must establish that she sustained permanent
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

3

impairment of a scheduled member of the body due to an employment injury.6 Appellant’s
condition was accepted for plantar fascia tear of the left foot. In a letter dated October 31, 2008,
the Office requested that she submit medical opinion from a treating physician addressing the
degree of permanent impairment under the A.M.A., Guides, the date of maximum medical
improvement and whether the preexisting peripheral neuropathy was aggravated by her work
injury. However, appellant failed to submit sufficient medical evidence to establish that the
accepted plantar fascia tear of the left foot caused permanent impairment.
The Board has carefully reviewed Dr. Harvey’s November 20, 2008 report which
estimated appellant’s left lower extremity impairment at 20 percent. This rating is of diminished
probative value as it is not clear how he came to this rating in accordance with the relevant
standards of the A.M.A., Guides.7 Rather, Dr. Harvey noted that he did not have a copy of the
A.M.A., Guides for reference.
Dr. Harvey noted that appellant was status post two surgeries for an abscess of the left
foot related to peripheral neuropathy. Appellant’s condition was accepted for plantar fascia tear
of the left foot and was not accepted for peripheral neuropathy.8 Dr. Harvey noted findings for
the left foot of diminished sensation, significant restriction in movement in the left foot, Charcot
joints, abnormal adduction, abduction and rotation, decreased strength in the muscles of the foot
and deformity of the foot with loss of the plantar arch. He did not address whether any of these
findings were due to the accepted plantar fascia tear or how his impairment rating was derived.
Dr. Harvey also did not clearly address if the impairment rating was for the foot or the leg.
The Office medical adviser reviewed Dr. Harvey’s November 20, 2008 report and
determined that appellant had no permanent impairment attributable to the accepted condition.
He noted that the 20 percent impairment provided by Dr. Harvey was not based on the A.M.A.,
Guides. The medical adviser noted Dr. Harvey’s findings, upon which his impairment rating
was based, was secondary to the osteomyelitis and Charcot joints which were not accepted
conditions. He opined that to a reasonable degree of medical certainty there was no evidence of
impairment based on the accepted condition of plantar fascia tear.
There is no other medical evidence of record addressing permanent impairment, pursuant
to the A.M.A., Guides, of the left foot or leg that is attributable to the accepted plantar fascia
tear.
Without the necessary reasoned medical opinion evidence supporting that the accepted
condition caused permanent impairment and explaining how such impairment was calculated
6

Veronica Williams, 56 ECAB 367 (2005) (a schedule award can be paid only for a condition related to an
employment injury; the claimant has the burden of proving that the condition for which a schedule award is sought
is causally related to his or her employment).
7

Lela M. Shaw, 51 ECAB 372 (2000) (where the Board found that a physician’s opinion which does not
explicitly define impairment in terms of the A.M.A., Guides, i.e., whether it be based on findings of pain, loss of
range of motion or loss of strength, is insufficient to establish that appellant sustained any permanent impairment
due to her accepted employment injury).
8

See Veronica Williams, supra note 6. See Alice J. Tysinger, 51 ECAB 638 (2000) (for conditions not accepted
by the Office as being employment related, it is the employee’s burden to provide rationalized medical evidence
sufficient to establish causal relation, not the Office’s burden to disprove such relationship).

4

under the A.M.A., Guides, appellant has failed to establish that she sustained a permanent
impairment of the left foot or leg as a result of her accepted condition.
On appeal appellant asserts that Dr. Harvey’s November 20, 2008 report was taken out of
context and that there were typographical errors which have subsequently been corrected. She
submitted a revised November 20, 2008 report from Dr. Harvey. However, the Board notes that
its jurisdiction is limited to the evidence that was before the Office at the time it issued its final
decision; therefore, the Board is unable to review new evidence submitted by appellant on
appeal.9
CONCLUSION
The Board finds that appellant failed to establish that she is entitled to a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the November 4, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed
Issued: December 16, 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

9

5 U.S.C. § 501.2(c)

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Chillicothe, OH, Employer
__________________________________________

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

Docket No. 11-754
Issued: October 18, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 3, 2011 appellant filed a timely appeal from a January 6, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 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 established an injury causally related to his federal
employment.
FACTUAL HISTORY
In an occupational disease claim (Form CA-2) dated May 27, 2010, appellant alleged that
he sustained a right hand injury causally related to his federal employment. He reported that he
1

5 U.S.C. § 8101 et seq.

was a 52-year-old medical clerk and worked around patients with various illnesses, including
methicillin-resistant staphylococcus aureus (MRSA) infections. The date of the injury was
reported as April 2, 2008. The reverse of the claim form noted that appellant was off work from
February 18 to May 20, 2010.
By letter dated June 3, 2010, OWCP requested additional evidence to support the claim
for compensation.
In a decision dated July 19, 2010, OWCP denied appellant’s claim for compensation on
the grounds that he failed to submit sufficient evidence to establish the claim.
Appellant requested a hearing before an OWCP hearing representative, which was held
on November 1, 2010. At the hearing he stated that from March to September 2009 he worked
as a medical clerk in the dental department.2 Appellant greeted families at the front desk, shook
hands with patients and was responsible for paperwork and equipment. He stated that his hands
broke out with sores, and he experienced symptoms of fatigue, incontinence and depression.
Sometime in 2009, appellant came into contact with a patient who had MRSA and shook his
hand. He stated that nurses told him there was an outbreak of MRSA at the hospital.
In an October 28, 2008 report, Dr. Jeffrey Lobel, a neurosurgeon, noted that appellant
had multiple skin lesions on the dorsal aspect of both hands, right worse than left. In a report
dated February 21, 2010, Dr. Alan Smulian, an internist specializing in infectious diseases, stated
that appellant was being treated for sepsis syndrome, potential infectious endocarditis and skin
lesions. He noted that laboratory results had revealed multiple abnormalities and examination
indicated a previously undocumented heart murmur. Dr. Smulian diagnosed MRSA bacteremia,
stating the “source is probably from the skin lesions on the forearm…”
The employing establishment submitted a November 23, 2010 letter stating that appellant
had begun work in the dental service as of March 2, 2008. With reference to MRSA, the
employing establishment stated that it was not aware of any health care acquired MRSA
infections at the medical center. According to the employing establishment, appellant worked
behind a desk and was not required to shake patient’s hands.
By decision dated January 6, 2011, the hearing representative affirmed the July 19, 2010
decision. The hearing representative found the factual and medical evidence was insufficient to
establish the claim.
LEGAL PRECEDENT
A claimant seeking benefits under FECA3 has the burden of establishing the essential
elements of his claim by the weight of the reliable, probative and substantial evidence, including

2

According to appellant, he currently worked as a recreational therapy assistant.

3

5 U.S.C. §§ 8101-8193.

2

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 establish that an injury was sustained in the performance of duty, a claimant 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 employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.5
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.6 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.7
Additionally, in order to be considered rationalized, the opinion must 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.8
ANALYSIS
Appellant filed an occupational disease claim for a right hand injury causally related to
his federal employment. As noted, he must submit a factual statement as to the employment
factors alleged to have contributed to his condition. Appellant stated that he worked in the dental
department as a clerk, greeting patients and being responsible for completing necessary
paperwork. There does not appear to be any dispute that appellant worked as a medical clerk,
although there is some confusion as to the specific dates worked. At the hearing appellant
indicated he worked from March 2009, but the employing establishment reported he worked
from March 2008.
Appellant alleged he was exposed to the MRSA bacteria while in the performance of his
job duties. On this issue appellant did not submit a detailed statement as to the alleged exposure.
He indicated that sometime in 2009 he shook hands with a patient who had MRSA. While it is
not necessary that appellant provide the patient’s name or other protected information, he does
need to provide more information regarding when this incident occurred and other relevant
circumstances. The employing establishment could not confirm any MRSA exposure given the
limited information provided. If appellant is alleging that shaking hands with a patient exposed
him to the MRSA bacteria, then the timing of the exposure is important as the medical evidence
4

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Ruby I. Fish, 46 ECAB 276, 279 (1994).

6

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

7

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

8

Id.

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showed appellant had skin lesions as of October 2008, and on the claim form he reported the date
of injury as April 2, 2008. If he is alleging other incidents or circumstances that exposed him to
the MRSA bacteria, he must provide a detailed factual statement describing the alleged exposure.
The medical evidence of record does not contain a rationalized medical opinion based on
a complete background as to causal relationship between any diagnosed condition and
appellant’s federal employment. Dr. Smulian diagnosed an MRSA bacteremia, as well as noting
a sepsis syndrome, without providing a complete background or discussing causal relationship
with employment. The Board notes that a physician’s report on causal relationship must be
based on an accurate factual background.9
The Board finds that appellant did not meet his burden of proof in this case. There is
insufficient factual and medical evidence to establish a diagnosed condition causally related to
factors of federal employment. Appellant may submit new evidence or argument with a written
request for reconsideration to the Office within one year of this merit decision, pursuant to 5
U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish an injury causally related to his federal
employment.

9

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 6, 2011 is affirmed.
Issued: October 18, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SAN DIEGO VA MEDICAL CENTER,
San Diego, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1065
Issued: March 30, 2022

Case Submitted on the Record

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

On July 9, 2021 appellant filed a timely appeal from a May 3, 2021 merit decision and a
July 1, 2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The
Clerk of the Appellate Boards docketed the appeal as Docket No. 21-1065.
On August 6, 2008 appellant, then a 31-year-old vocational nurse, filed an occupational
disease claim (Form CA-2) alleging that she sustained right upper extremity injuries as a result of
factors of her federal employment including repetitive use of a computer, keyboarding, and
extensive dressing changes for patients. She indicated that she first became aware of her condition
and its relationship to her federal employment on March 3, 2008. OWCP accepted the claim for
right-sided thoracic outlet syndrome, also known as brachial plexus lesions.
On November 18, 2009 appellant underwent a right first rib resection with right anterior
scalenectomy to treat her diagnosed right thoracic outlet syndrome.
In a report dated May 8, 2010, Dr. Christopher Chisholm, a pain medicine specialist,
diagnosed reflex sympathetic dystrophy (RSD), also known as complex regional pain syndrome
(CRPS), of the upper right limb, and myofascial myalgia and myositis.

In a report dated October 11, 2010, Dr. Marilyn Carlin, an internist, diagnosed RSD
secondary to thoracic outlet syndrome despite surgical intervention.
Dr. Carlin, in a report dated April 4, 2011, diagnosed thoracic outlet syndrome with failed
response to surgery, right upper extremity chronic pain syndrome, possibly RSD, and right
hemidiaphragm paralysis as a complication of thoracic outlet syndrome, causing dyspnea on
exertion.
In a report dated October 10, 2011, Dr. Carlin diagnosed thoracic outlet syndrome,
myofascial pain syndrome versus RSD secondary to thoracic outlet syndrome and right
diaphragmatic paralysis secondary to thoracic outlet surgery.
In a report dated June 10, 2013, Dr. Carlin diagnosed thoracic outlet syndrome with
increasing pain following surgical intervention, RSD, myofascial pain syndrome, diaphragmatic
paralysis causing dyspnea on exertion, and recurrent major depression exacerbated by chronic
pain. She opined that factors of appellant’s federal employment caused appellant’s increased pain.
Dr. Carlin recommended work restrictions.
In a report dated June 25, 2014, Dr. Carlin diagnosed cervicalgia, diaphragmatic paralysis,
myofascial pain syndrome, recurrent major depression in full remission, RSD of the right upper
extremity, and thoracic outlet syndrome. In a report dated September 22, 2014, she diagnosed
thoracic outlet syndrome with poor results after surgical intervention , flare-up of chronic
cervicalgia and myofascial pain syndrome, RSD of the right upper extremity, also in flare-up, and
recurrent major depression in remission. Dr. Carlin again diagnosed these conditions in progress
notes dated August 22, 2014.
In a letter dated February 2, 2015, Dr. Carlin requested that the acceptance of appellant’s
claim be expanded to include fibromyalgia. She explained that it had developed as a result of
appellant’s chronic neck, chest wall, and right arm pain, secondary to failed surgery for thoracic
outlet syndrome and secondary RSD.
In a report dated June 25, 2015, Dr. Carlin explained that appellant continued to suffer from
thoracic outlet syndrome with increased pain following failed surgical intervention, along with
RSD and a postsurgical right partially paralyzed diaphragm. She noted that appellant had been
diagnosed with fibromyalgia as a result of her chronic myofascial pain. Dr. Carlin stated that
appellant’s conditions continued to be medically present and disabling and that appellant was
permanently disabled from all work. She reiterated appellant’s diagnoses and disability status in
narrative medical reports dated June 27, 2016 and July 17, 2017.
In progress notes dated August 24, 2016, Dr. Carlin noted, as part of appellant’s history of
present illness, that appellant had been diagnosed with fibromyalgia, failed surgery for thoracic
outlet syndrome, and development of RSD of the right upper extremity.
In a report dated July 13, 2018, Dr. Carlin again diagnosed thoracic outlet syndrome with
increased pain following surgical intervention, RSD of the right upper extremity, which began
after the failed surgery, fibromyalgia, secondary to chronic pain, diaphragmatic paralysis causing
some dyspnea on exertion, also a result of the failed surgery , and recurrent major depression
exacerbated by her chronic pain syndromes. She stated that appellant’s conditions continued to be
2

medically present and disabling, noting that appellant’s physical restrictions were extensive and
unlikely to allow her to work effectively in any job. Dr. Carlin reiterated these diagnoses and
opinions in a letter dated August 20, 2019.
In progress notes dated February 10, 2021, Dr. Peter Weis, a Board-certified
rheumatologist, examined appellant to evaluate her for fibromyalgia. He diagnosed left hip
trochanteric bursitis, pain syndrome related to complications of thoracic outlet s urgery with
chronic neck pain, and CRPS of the right upper extremity, refractory to surgery.
In a development letter dated March 24, 2021, OWCP advised appellant that it had received
notification of a possible consequential condition of CRPS of the right upper extremity. It noted
receipt of Dr. Weis’ February 10, 2021 report, but indicated that it required a detailed description
of the newly diagnosed condition. OWCP afforded appellant 30 days to submit additional medical
evidence. No additional evidence was received by OWCP.
By decision dated May 3, 2021, OWCP denied appellant’s request to expand the
acceptance of her claim to include CRPS of the right upper extremity. It again referenced
Dr. Weis’ February 10, 2021 report. By appeal request form dated June 2, 2021, postmarked on
June 3, 2021 and received by OWCP on June 9, 2021, appellant requested an oral hearing before
a representative of OWCP’s Branch of Hearings and Review. By decision dated July 1, 2021,
OWCP denied her request for an oral hearing, as the request was untimely filed. It noted that
appellant’s case had been considered in relation to the issues involved and that the issues could be
equally well addressed by requesting reconsideration and submitting evidence not previously
considered establishing that she sustained a consequential injury due to her accepted injury of
March 3, 2008.
The Board has duly considered the matter and finds that th is case is not in posture for
decision.
In the case of William A. Couch,1 the Board held that when adjudicating a claim OWCP is
obligated to consider all evidence properly submitted by a claimant and received by OWCP before
the final decision is issued. As detailed above, OWCP received a report from Dr. Chisholm dated
May 8, 2010, containing a diagnosis of RSD, also known as CRPS. It also received numerous
reports, letters, and progress notes from Dr. Carlin beginning October 11, 2010 containing
diagnoses of RSD. OWCP, however, did not review this evidence in its May 3, 2021 merit
decision. It, thus, failed to follow its procedures by not considering all of the relevant evidence of
record.2

1

41 ECAB 548 (1990); see also K.B., Docket No. 20-1320 (issued February 8, 2021); R.D., Docket No. 17-1818
(issued April 3, 2018).
2

OWCP’s procedures provide that all evidence submitted should be reviewed and discussed in the decision.
Evidence received following development that lacks probative value also should be acknowledged. Whenever
possible, the evidence should be referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Initial Denials, Chapter 2.1401.5(b)(2) (November 2012).

3

As Board decisions are final with regard to the subject matter appealed, it is crucial that
OWCP address all relevant evidence received prior to the issuance of its final decision. 3 On
remand shall review and consider all evidence properly submitted by appellant prior to the issuance
of the May 3, 2021 OWCP decision. Following other such further development as deemed
necessary, OWCP shall issue an appropriate decision.
IT IS HEREBY ORDERED THAT the May 3, 2021 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. 4
Issued: March 30, 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

3

E.D., Docket No. 20-0620 (issued November 18, 2020); see also L.B., Docket No. 21-0140 (issued August 25,
2021); C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); William A.
Couch, supra note 1.
4

As this case is remanded for further proceedings, the July 1, 2021 denial of appellant’s request for an oral hearing
before an OWCP hearing representative is rendered moot.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

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

Docket No. 20-1567
Issued: April 30, 2021

Case Submitted on the Record

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

JURISDICTION
On August 24, 2020 appellant filed a timely appeal from a June 23, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish that a traumatic
incident occurred while in the performance of duty on March 30, 2020, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 23, 2020 decision, appellant submitted additional evidence to OWCP.
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.

FACTUAL HISTORY
On April 8, 2020 appellant, then a 54-year-old carrier technician, filed a traumatic injury
claim (Form CA-1) alleging that on March 30, 2020 she injured her low back when she slipped
backward down a customer’s accessibility ramp while in the performance of duty. She did not
immediately stop work. On the reverse side of the claim form appellant’s supervisor, M.H.,
acknowledged that appellant was injured in the performance of duty. However, he indicated that
his knowledge of the facts did not agree with her statements. M.H. noted that appellant could have
easily accessed the mailbox using the steps provided at the house. He noted that appellant had
previous safety issues and was being observed to prevent further injuries. M.H. further indicated
that this injury coincided with her plans to retire.
Appellant was treated by Dr. Ravindra Goel, a Board-certified family practitioner, on
April 7, 2020, for low back pain and spasm. She reported working for the employing establishment
and had an accident on March 30, 2020. Appellant’s history was significant for a previous back
injury for which she sought treatment. Dr. Goel diagnosed contusion of the lower back and pelvis,
subsequent encounter and returned appellant to restricted duty.
The employing establishment submitted an undated statement from appellant’s supervisor,
M.H., who reiterated his statements made on the notice of traumatic injury claim form.
In a development letter dated April 13, 2020, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence needed and provided a
questionnaire for her completion. OWCP afforded appellant 30 days to submit the necessary
evidence.
Dr. Raymond E. Dennie, a specialist in orthopedics, treated appellant on March 31, 2020
for low back pain. He related that appellant reported having a slip and fall accident the prior day
and that she landed flat on her back. She noted constant pressure and pain when standing or
walking. Dr. Dennie noted limited range of motion of the lumbar spine. He diagnosed
contusion/strain of the lumbar spine. Dr. Dennie returned appellant to light-duty work, with
standing and walking restrictions on April 1, 2020.
Appellant underwent an x-ray of the lumbar spine on April 7, 2020, which revealed no
abnormalities.
In a prescription note dated April 7, 2020, Dr. Goel diagnosed lumbar contusion and
referred appellant for occupational therapy. In visit summaries dated April 7 and 29, 2020, he
provided a work injury follow-up and diagnosed contusion of the low back and pelvis, subsequent
encounter. Dr. Goel released appellant to restricted duty on April 7, 2020.
In an authorization request dated April 9, 2020, Dr. Goel diagnosed contusion of lower
back and pelvis, subsequent encounter and requested authorization for occupational therapy.3

3
Appellant filed several claims for compensation (Form CA-7) for intermittent wage loss from May 14 through
June 19, 2020.

2

In response to the development letter, appellant indicated that she used the occupant’s
accessibility ramp instead of steps because the customer did not have steps. She responded “N/A”
to the question of whether she had similar disability or symptoms prior to the injury.
In return to work reports dated April 17 and 29, 2020, Dr. Goel diagnosed contusion of
lower back and pelvis, subsequent encounter and returned appellant to sedentary duty on
April 7, 2020. In a duty status report (Form CA-17) dated April 27, 2020, he diagnosed lumbar
contusion. Dr. Goel checked a box marked “Yes” noting that the history of injury provided by
appellant corresponded with his explanation of injury, noting that the carrier slipped down a
customer’s wheelchair ramp. He further responded “Yes” that the diagnosis was due to the injury
and indicated that she could resume work with restrictions. In an April 29, 2020 report, Dr. Goel
related treating appellant in follow-up for low back pain and spasm. Appellant reported working
for the employing establishment and had an accident on March 30, 2020. Dr. Goel diagnosed
contusion of the lower back and pelvis, subsequent encounter and continued restricted duty.
OWCP continued to receive medical evidence. Dr. John Mays, a Board-certified
orthopedist, treated appellant on May 22, 2020 for low back and knee pain and muscle spasms.
Appellant reported that on March 29, 2020 she was walking down an accessibility ramp while
working, when she slipped and fell, landing on her back. She was subsequently treated at a medical
facility and underwent x-rays. In a June 19, 2020 authorization request, Dr. Mays requested a
magnetic resonance imaging (MRI) scan of the lumbar spine. He noted a March 30, 2020 date of
injury and diagnosed lumbar spine herniated disc.
By decision dated June 23, 2020, OWCP denied appellant’s traumatic injury claim, finding
that the evidence of record was insufficient to establish that the injury and/or events occurred as
described.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 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.7

4

Supra note 1.

5

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7,
2014); Delores C. Ellyett, 41 ECAB 992 (1990).

3

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.8 Fact
of injury consists of two components that must be considered in conjunction with one another.
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.9 Second, the employee
must submit sufficient medical evidence to establish that the employment incident caused a
personal injury.10
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.11 The employee has not met his or her burden of proof to establish the occurrence of an
injury when there are inconsistencies in the evidence that cast serious doubt upon the validity of
the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established.12 An employee’s
statements alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.13
ANALYSIS
The Board finds that appellant has met her burden of proof to establish that the claimed
March 30, 2020 employment incident occurred in the performance of duty, as alleged.
The record establishes that on March 30, 2020 appellant was delivering mail at a
customer’s residence when she slipped and fell on an accessibility ramp. Appellant’s supervisor,
M.H., noted on the reverse side of the Form CA-1 that her injury occurred in the performance of
duty. Although he noted that appellant did not access the mailbox using the steps provided he did
not refute that she slipped as alleged on March 30, 2020. Additionally, appellant sought prompt
medical care the next day with Dr. Dennie on March 31, 2020 and reported having a slip and fall
accident the prior day, landing on her back. Dr. Dennie diagnosed contusion/strain of the lumbar

8

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

10

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

11

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

12

Betty J. Smith, 54 ECAB 174 (2002); L.D., Docket No. 16-0199 (issued March 8, 2016).

13

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

4

spine. Similarly, Dr. Mays noted in a report dated May 22, 2020, that while at work appellant was
walking down a handicap ramp and slipped and fell on her back.14
The injuries appellant claimed are consistent with the facts and circumstances she set forth,
the statement from her supervisor, her course of action, and the medical evidence she submitted.
As noted above, the injury does not have to be confirmed by eyewitnesses in order to establish the
fact that an employee sustained an injury in the performance of duty, but the employee’s statements
must be consistent with the surrounding facts and circumstances and his or her subsequent course
of action.15 An employee’s statements alleging that an injury occurred at a given time and in a
given manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.16 The Board thus finds that appellant has met her burden of proof to establish that the
March 30, 2020 employment incident occurred in the performance of duty, as alleged.
As appellant has established that the March 30, 2020 employment incident factually
occurred as alleged, the question becomes whether the incident caused an injury.17 While OWCP
found that appellant had not established fact of injury, it did not evaluate the medical evidence.
The Board, therefore, will set aside OWCP’s June 23, 2020 decision and remand the case for
consideration of the medical evidence of record.18 After such further development as deemed
necessary, OWCP shall issue a de novo decision addressing whether appellant has met her burden
of proof to establish a medical condition causally related to the accepted March 30, 2020
employment incident.
CONCLUSION
The Board finds that appellant has met her burden of proof to establish that the March 30,
2020 employment incident occurred in the performance of duty, as alleged. The Board further
finds that the case is not in posture for decision regarding whether she has established an injury
causally related to the accepted March 30, 2020 employment incident.

14

Although Dr. Mays originally noted a date of injury of March 29, 2020, in a subsequent authorization request he
noted a date of injury of March 30, 2020.
15

Supra note 11.

16

See supra note 13.

17

See M.A., Docket No. 19-0616 (issued April 10, 2020); C.M., Docket No. 19-0009 (issued May 24, 2019).

18

S.M., Docket No. 16-0875 (issued December 12, 2017).

5

ORDER
IT IS HEREBY ORDERED THAT the June 23, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: April 30, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.I., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Cleveland, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-1069
Issued: January 28, 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 July 8, 2021 appellant filed a timely appeal from March 22 and June 4, 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he was disabled
from work for the period February 9 through 10, 2021 causally related to his accepted August 6,
2010 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board on different issues. 2 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 August 25, 2010 appellant, then a 56-year-old administrative support assistant, filed a
traumatic injury claim (Form CA-1) alleging that on August 6, 2010 he sustained a psychological
injury as a result of being robbed at gunpoint walking to a satellite parking facility while in the
performance of duty. OWCP assigned the claim OWCP File No. xxxxxx829. Appellant stopped
work on August 10, 2010 and returned to modified employment on August 13, 2010.3 He began
working part-time modified employment on July 13, 2011.
By decisions dated October 18, 2010, OWCP denied appellant’s claim, finding that he had
removed himself from coverage under FECA when he left work two hours early. By decision
dated January 3, 2012, it denied modification of the October 18, 2010 decision.
Appellant appealed to the Board. By decision dated January 11, 2013, the Board affirmed
OWCP’s January 3, 2012 decision.4 The Board determined that appellant was on the premises of
the employing establishment at the time of the robbery on August 6, 2010, but had not shown that
he was engaged in a duty reasonably incidental to his employment.
On March 7, 2013 appellant requested reconsideration and submitted evidence
demonstrating that he was on approved sick leave at the time of the August 6, 2010 robbery. By
decision dated March 18, 2013, OWCP vacated its prior decision and accepted the claim for an
aggravation of moderate, recurrent major depression and an aggravation of an unspecified anxiety
disorder. It subsequently expanded acceptance of the claim to include post-traumatic stress
disorder (PTSD).
OWCP further accepted that appellant sustained lumbar sprain and an aggravation of
degenerative disc disease at L4-5 and L5-S1 due to a July 16, 2012 employment injury, assigned
OWCP File No. xxxxxx517, and that he sustained lumbar sprain on October 31, 2018, assigned
OWCP File No. xxxxxx954.
On April 25, 2017 appellant filed a notice of recurrence of a medical condition (Form CA2a), alleging that on an unspecified date he sustained a recurrence of the nee d for medical treatment

2

Docket No. 18-0253 (issued August 2, 2018); Docket No. 12-1069 (issued January 11, 2013).

3
In a decision dated January 29, 2015, OWCP denied appellant’s request for wage-loss compensation from
December 10 to 19, 2014 as the medical evidence failed to establish disability during this period. By decision dated
April 17, 2015, it denied his claim for wage-loss compensation on February 23, 2015. In a decision dated June 20,
2016, OWCP denied appellant’s claim for wage-loss compensation from April 25 to June 10, 2016. It noted that he
had an accepted back condition that required him to work reduced work hours.
4

Supra note 2.

2

causally related to his August 10, 2010 employment injury. He advised that he experienced
anxiety and depression “having to drive every day past the area where the robbery occurred….”
By decision dated May 31, 2017, OWCP found that appellant had not established a
recurrence of disability causally related to his accepted employment injury . On July 17, 2017
appellant requested reconsideration.
By decision dated September 21, 2017, OWCP denied modification of its May 31, 2017
decision. It advised that a claim for a recurrence of disability due to an emotional condition had
to be filed as a new claim.
Appellant appealed to the Board. By decision dated August 2, 2018, the Board set aside
the September 21, 2017 decision. 5 The Board found that appellant had not described additional
occupational exposure as the cause of his current condition and thus did not have to file a new
claim.6
In a report dated December 2, 2018, Dr. Richard Lightbody, a Board-certified psychiatrist
and OWCP referral physician, diagnosed recurrent, moderate-major depressive disorder and
chronic PTSD. He found that appellant was disabled from his usual duties, but could work four
hours per day with restrictions.
On December 19, 2019 appellant filed a claim for compensation (Form CA-7) for 32 hours
of disability from work for the period November 15 through 21, 2019. The employing
establishment indicated that he had been working part time with restrictions since July 13, 2011.
By decision dated January 24, 2020, OWCP denied appellant’s claim for disability from
November 15 through 21, 2019.
On January 29, 2020 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
A telephonic hearing was held on May 28, 2020. Appellant advised that he worked six
hours per day in modified employment due to his back injuries and received wage-loss
compensation for two hours per day under a separate file number.
By decision dated August 12, 2020, OWCP’s hearing representative vacated the
January 24, 2020 decision. He found that appellant had met his burden of proof to establish
entitlement to wage-loss compensation from November 15 through 21, 2019. The hearing
representative indicated that appellant had accepted claims for two back injuries, and instructed
OWCP to administratively combine those claims with the current claim pursuant to its procedures.
He further noted that appellant’s current limited-duty employment exceeded appellant’s
restrictions of four hours per day found by Dr. Lightbody due to appellant’s emotional condition
under the current file number. The hearing representative found that reports from appellant’s
5

Supra note 2.

6

By decision dated November 30, 2018, OWCP found that appellant had not established a recurrence of disability
causally related to his accepted employment injury as he had not factually established the alleged exposure.

3

attending physician, Dr. David Hahn, a Board-certified psychiatrist, were sufficient to establish
that appellant was disabled from November 15 to 21, 2019 due to his accepted depression and
PTSD.7
On February 12, 2021 Dr. Hahn opined that appellant was unable to work on February 9
and 10, 2021 “due to an exacerbation of [his] PTSD and depression.”
On February 12, 2021 appellant filed a Form CA-7 for disability from work on February 9
and 10, 2021. On the form, the employing establishment indicated that he was requesting
compensation for 16 hours of leave without pay.
In a February 17, 2021 development letter, OWCP informed appellant of the definition of
a recurrence of disability and requested that he submit additional factual and medical evidence,
including a report from his physician explaining how his accepted condition worsened such that
he was unable to work six hours per day of modified employment. It afforded him 30 days to
submit the requested information.
Thereafter, OWCP received a February 10, 2021 telehealth report from Dr. Hahn.
Dr. Hahn diagnosed moderate-major depressive disorder and PTSD and noted that appellant had
restrictions of no contact with patients by person or telephone. He advised that appellant’s work
caused stress that aggravated his PTSD and depression. Dr. Hahn noted that appellant’s stress had
improved after his reassignment to a position with no patient contact. He indicated that appellant
had missed the last two days of work due to depression. Dr. Hahn discussed appellant’s continued
complaints of difficulty with appetite, concentration, and noted that appellant had anhedonia and
crying spells. He found that appellant had restrictions of working six hours per day with no patient
contact.
In a March 3, 2021 duty status report (Form CA-17), Dr. Hahn found that appellant could
work six hours per day with restrictions.
On March 9, 2021 appellant asserted that he had missed work on February 9 and 10, 2021
because he was unable to get up after “having a bad night.” He noted that he had difficulty sleeping
and waking up.
A March 11, 2021 rating decision from the Department of Veterans Affairs (DVA) found
that appellant had 70 percent disability due to major depression with generalized anxiety disorder
claimed as PTSD effective September 10, 2015 and also disability due to a spinal condition.8 The
DVA indicated that he had been in military service from September 1971 to July 1974.

7

Upon return of the case record to the district office, OWCP a dministratively combined OWCP File Nos.
xxxxxx517 and xxxxxx954 with the current claim, OWCP File No. xxxxxx829. OWCP File No. xxxxxx517 serves
as the master file.
8

On March 30, 2021 appellant requested that his claim under OWCP File No. xxxxxx829 be clo sed as he was
receiving disability from the DVA.

4

By decision dated March 22, 2021, OWCP denied appellant’s claim for disability from
work for the period February 9 through 10, 2021.
On April 1, 2021 appellant requested reconsideration. He submitted an August 16, 2016
report from Dr. Anthony M. Mancini, a clinical psychologist, relevant to his DVA claim.
By decision dated June 4, 2021, OWCP denied modification of its March 22, 2021
decision.
LEGAL PRECEDENT
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 any disability or specific condition for
which compensation is claimed is causally related to the employment injury.9
Under FECA, the term disability means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury. 10 Disability is, thus, not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages.11 An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA. 12 When, however, the medical evidence
establishes that the residuals or sequelae of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in h is or her employment, he or she is
entitled to compensation for loss of wages. 13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he was
disabled from work for the period February 9 through 10, 2021 causally related to his accepted
August 6, 2010 employment injury.
In a February 10, 2021 telehealth report, Dr. Hahn indicated that appellant had missed the
preceding two days of work as a result of his depression. He noted that appellant had difficulty
with concentration, appetite, and emotional control. Dr. Hahn diagnosed recurrent moderatemajor depressive disorder and PTSD and determined that appellant had restrictions of working six
hours per day with no patient contact. He did not, however, provide objective findings supporting
disability or explain why appellant’s accepted condition worsened such that he could no longer
9

A.R., Docket No. 20-0583 (issued May 21, 2021); S.W., Docket No. 18-1529 (issued April 19, 2019); Kathryn
Haggerty, 45 ECAB 383 (1994).
10

20 C.F.R. § 10.5(f); see J.M., Docket No. 18-0763 (issued April 29, 2020); Bobbie F. Cowart, 55 ECAB
746 (2004).
11

D.W., Docket No. 20-1363 (issued September 14, 2021); L.W., Docket No. 17-1685 (issued October 9, 2018).

12

See M.W., Docket No. 20-0722 (issued April 26, 2021); D.G., Docket No. 18-0597 (issued October 3, 2018).

13

See A.R., supra note 9; D.R., Docket No. 18-0323 (issued October 2, 2018).

5

perform the duties of his modified position. 14 The Board has held that a report is of limited
probative value regarding causal relationship if it does not contain medical rationale explaining
how a given medical condition/disability was related to employment factors. 15 Consequently,
Dr. Hahn’s report is insufficient to meet appellant’s burden of proof to establish his claim.
On February 12, 2021 Dr. Hahn opined that appellant was unable to work on February 9
and 10, 2021 as a result of an exacerbation of depression and PTSD. He did not, however, directly
attribute the disability to the accepted employment injury or provide any rationale for his findings.
Dr. Hahn further did not address appellant’s history of preexisting depression and PTSD due to
appellant’s military service. The Board has held that a medical report is of limited probative value
on a given medical issue if it contains an opinion which is unsupported by medical rationale. 16
Further, the Board has consistently held that complete medical rationalization is particularly
necessary when there is a preexisting condition, 17 and has required medical rationale
differentiating between the effects of the work-related injury and the preexisting condition in such
cases.18 Therefore, Dr. Hahn’s February 12, 2020 report is also insufficient to establish appellant’s
claim.
As appellant has not submitted any rationalized medical evidence establishing disability
from work for the period February 9 through 10, 2021 causally related to his accepted August 6,
2010 employment injury, he has not met his burden of proof.
Appellant may submit new evidence or argument, with a written request for
reconsideration, to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he was
disabled from work for the period February 9 through 10, 2021 causally related to his accepted
August 6, 2010 employment injury.

14

See D.K., Docket No. 21-0082 (issued October 26, 2021).

15

See Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale describing the relation between work factors and
a diagnosed condition/disability). See also J.M., Docket No. 16-0306 (issued May 5, 2016).
16

B.H., Docket No. 19-1341 (issued August 12, 2020).

17

See V.S., Docket No. 20-1034 (issued November 25, 2020); P.W., Docket No. 20-0407 (issued July 17, 2020).

18

Id.; see also A.J., Docket No. 18-1116 (issued January 23, 2019); M.F., Docket No. 17-1973 (issued
December 31, 2018); J.B., Docket No. 17-1870 (issued April 11, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the June 4 and March 22, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 28, 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

7