United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Amherst, NY, Employer
__________________________________________

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

Docket No. 18-1551
Issued: March 1, 2019

Case Submitted on the Record

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

JURISDICTION
On August 6, 2018 appellant filed a timely appeal from a July 11, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a left foot condition
causally related to the accepted October 22, 2016 employment incident.
FACTUAL HISTORY
On October 24, 2016 appellant, then a 56-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 22, 2016 while walking at work he “felt a slap to my
left calf, like a pop” and his left foot became swollen. He stopped work on October 24, 2016.
1

5 U.S.C. § 8101 et seq.

Appellant’s supervisor, C.R., asserted that appellant had provided conflicting statements of the
alleged work incident.
Appellant was treated in immediate care by Dr. Jerry Ulatowski, a Board-certified
pediatrician, on October 24, 2016 for left ankle pain. He reported that on October 22, 2016 he was
“walking on his mail route when he felt something hit him in the back of the left ankle” and
indicated that “it felt like someone came up and slapped me really hard in the back of the leg.”
Appellant finished his mail route, but he had not returned to work since October 22, 2016. He
reported having previously sustained an Achilles tendon rupture in December 2015. At that time
he had sought treatment from Dr. Jude A. Violante, a podiatrist, who placed him in a boot and
cleared him to return to regular duties in August 2016. Dr. Ulatowski noted findings on
examination of limited range of motion of the foot, ankle, and knee as well as tenderness over the
distal Achilles insertion point.
An October 24, 2016 x-ray of the left ankle revealed diffuse swelling around the distal
aspect of the Achilles, possibly tendinosis. Dr. Violante diagnosed left ankle pain, Achilles
involvement, rupture or tear. In a prescription note dated October 24, 2016, Dr. Violante noted
that appellant would be off work until further notice. In duty status reports (CA-17 forms) dated
November 7 and 14, 2016, he diagnosed ruptured left Achilles and noted appellant was totally
disabled.
An attending physician’s report (Form CA-20) from a physician assistant, dated
October 24, 2016, noted a diagnosis of left ankle pain and it was noted by checking a box marked
“yes” that appellant’s condition was caused or aggravated by an employment activity. The
physician assistant also noted appellant’s history was significant for a healed Achilles rupture of
the left ankle.
In an authorization for examination and/or treatment (Form CA-16) dated October 25,
2016, D.J., an employing establishment official, authorized office and/or hospital treatment as
medically necessary for the effects of appellant’s injury.
In an undated statement, received on November 7, 2016, appellant reported initially
thinking he was hit in the back of his left calf as he felt a “pop” in his calf. He noted looking down
and saw loose concrete and thought it flipped up and hit him.
In a development letter dated November 14, 2016, OWCP noted that the evidence
submitted was insufficient to establish that appellant actually experienced the employment incident
alleged to have caused the injury and that no diagnoses of a condition resulting from his injury had
been provided. It further requested that appellant submit additional factual and medical
information, including a comprehensive medical report from his treating physician, regarding how
specific work factors contributed to his claimed left ankle condition. OWCP requested that
appellant respond to a questionnaire to substantiate the factual elements of his claim. It afforded
him 30 days to submit the necessary evidence. OWCP also requested that the employing
establishment explain the employing establishment’s policies and procedures for proper footwear.

2

A magnetic resonance imaging (MRI) scan of appellant’s left foot dated November 2, 2016
revealed a rupture of the Achilles tendon from the calcaneal attachment with fibers retracted nine
millimeters and mild mid-foot osteoarthritis.
On November 28, 2016 appellant provided a narrative statement in which he indicated that
his injury occurred while delivering mail on his assigned route at approximately 2:00 p.m. He
reported walking across the driveway and “felt a slap to the back of my left calf” and looked down
to see loose concrete. Appellant thought he was hit by concrete. As soon as the incident occurred,
he called his station manager to notify him of the injury. After the incident, appellant felt a
throbbing sensation in his left calf and returned to his truck and finished his route.
On November 7, 2016 Dr. Violante noted that the November 2, 2016 MRI scan was
positive for a complete rupture of the Achilles tendon. He recommended surgical intervention and
noted that appellant was totally disabled. In a report dated December 12, 2016, Dr. Violante
provided treatment and noted a ruptured Achilles tendon. In duty status reports (CA-17 forms)
dated December 14, 2016 and January 12, 2017, he diagnosed ruptured Achilles on the left and
recommended surgical intervention and advised that appellant was totally disabled.
By decision dated January 26, 2017, OWCP denied appellant’s claim, finding that he had
not met his burden of proof to establish that his claimed medical condition was causally related to
the accepted October 22, 2016 employment incident.
On February 10, 2017 appellant requested reconsideration and submitted additional
medical evidence.
In a report dated February 9, 2017, Dr. Violante noted first treating appellant for his injury
on October 24, 2016. He opined that, as a daily mail carrier, constant pounding on concrete, stairs,
and uneven surfaces had led to the weakening of the Achilles tendon resulting in the injury.
Dr. Violante reported treating appellant in the past for a partial tear of the Achilles tendon, but
opined that the incident on October 22, 2016 in which he stepped “on uneven broken concrete
caused the complete tear of his Achilles tendon.”
By decision dated May 16, 2017, OWCP denied modification of its prior decision. It found
that the report from Dr. Violante dated February 9, 2017 failed to provide a well-reasoned
explanation of how appellant’s work incident directly caused or aggravated his medical condition.
OWCP further noted that Dr. Violante had not differentiated the claimed injury from the symptoms
of his preexisting injuries.
On June 29, 2017 appellant requested reconsideration and submitted additional medical
evidence.
In a report dated June 8, 2017, Dr. Violante noted treating appellant for insertional Achilles
tendinitis of the left foot for a year. He noted that on October 22, 2016 appellant sustained a
traumatic event to his left foot when he stepped onto broken/uneven concrete while delivering his
mail route and felt a strange sensation in the back of his left leg. Dr. Violante diagnosed a complete
rupture of appellant’s Achilles tendon of the left foot as confirmed by the MRI scan.

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By decision dated September 26, 2017, OWCP denied appellant’s request for
reconsideration as the evidence submitted was insufficient to warrant a merit review.
On December 8, 2017 appellant requested reconsideration.
Dr. Violante noted in a December 5, 2017 report that on October 22, 2016 appellant was
delivering his mail route when he stepped on broken concrete causing additional stress to his left
tendon. He noted previously treating appellant for a partial tear of the left tendon. Dr. Violante
opined, however, that the October 22, 2016 employment incident caused a complete tendon tear.
By decision dated March 6, 2018, OWCP denied modification of its May 16, 2017
decision.
In a subsequent statement dated March 22, 2018, appellant again indicated the factual
aspects of the accepted employment incident.
On April 13, 2018 appellant requested reconsideration.
In an undated statement, Dr. Violante reviewed appellant’s statement and the pictures of
the area where the employment injury occurred. He opined that when appellant traversed the
broken stretch of driveway he stepped in such a way that placed additional stress on his left tendon
causing a complete tear. Dr. Violante noted that appellant was previously treated for a partial tear,
but he opined that the traumatic incident of October 22, 2016 caused a complete tendon tear.
By decision dated July 11, 2018, OWCP denied modification of its March 6, 2018
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 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,2 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.3 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4

2

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
3

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
4
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

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To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.5 Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.6 The second component is whether the employment incident caused a personal
injury.7 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.8
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.9 A physician’s opinion on whether there is causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.10 Additionally, the physician’s 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 factor(s).11
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left foot
condition causally related to the accepted October 22, 2016 employment incident.
Appellant was initially treated by Dr. Ulatowski on October 24, 2016 who diagnosed left
ankle pain, Achilles involvement, and rupture or tear. He repeated the history of injury as reported
by appellant, but he did not provide his own opinion regarding whether appellant’s condition was
work related. The mere recitation of a patient’s history does not suffice for purposes of
establishing causal relationship between a diagnosed condition and the employment incident.13
5

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

6

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

7

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

8

D.D., Docket No. 18-0648 (issued October 15, 2018); Shirley A. Temple, 48 ECAB 404, 407 (1997).

9

T.H., supra note 5 at 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

10

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

Id.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

13

See J.G., Docket No. 17-1382 (issued October 18, 2017).

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Without explaining physiologically how the accepted employment incident caused or contributed
to the diagnosed conditions, the physician’s report is of limited probative value.14 Therefore, this
report of Dr. Ulatowski is insufficient to meet his burden of proof.
In a notes dated October 24, November 7 and 14, 2016, Dr. Violante diagnosed ruptured
left Achilles and noted that appellant was totally disabled. However, in these notes, Dr. Violante
did not provide an opinion as to the pathophysiological cause of the total rupture of the left
Achilles. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship.15
These reports, therefore, are insufficient to establish appellant’s claim.
In reports dated November 7, December 12 and 14, 2016, January 12, February 9, June 8,
and December 5, 2017, Dr. Violante consistently diagnosed a rupture of the Achilles tendon. In
these reports, he provided physical examination findings and recommended surgical intervention
and noted that appellant was totally disabled. Dr. Violante noted that the diagnosed condition was
related to appellant’s employment incident, but he did not provide a rationalized opinion regarding
the causal relationship between appellant’s ruptured Achilles and the October 22, 2016 work
incident.16 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 or
disability was related to employment.17 Therefore these reports are insufficient to establish
appellant’s claim.
In an undated statement, Dr. Violante noted his review of pictures of the area where the
employment incident occurred and noted appellant’s history of injury. He noted that due to a
broken stretch of driveway that appellant stepped in such a way that it placed additional stress on
his left tendon causing a complete tear. However, Dr. Violante did not specifically explain how
appellant had stepped differently than a normal step and how that act was sufficient to result in the
diagnosed condition. A mere conclusory opinion provided by a physician without the necessary
rationale explaining how and why the incident or work factors were sufficient to result in the
diagnosed medical condition is insufficient to meet a claimant’s burden of proof to establish a
claim.18 Therefore this report is insufficient to establish appellant’s claim.
An attending physician’s report (Form CA-20) from a physician assistant dated October 24,
2016 diagnosed left ankle pain. The Board has held that treatment notes signed by a physician
assistant19 are not considered medical evidence as these providers are not considered physicians

14

See A.B., Docket No. 16-1163 (issued September 8, 2017).

15

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

16

See id.

17

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

18

J.D., Docket No. 14-2061 (issued February 27, 2015).

19
See S.E., Docket No. 08-2214 (issued May 6, 2009) (reports of a physician assistant have no probative value as
medical evidence).

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under FECA20 and are not competent to render a medical opinion. Thus, this evidence is not
sufficient to meet appellant’s burden of proof.
An x-ray of the left foot dated October 24, 2016 and the November 2, 2016 MRI scan of
the left foot are of limited probative value. Diagnostic studies lack probative value as they do
not address whether the employment incident caused any of the diagnosed conditions.21 Thus,
this evidence is insufficient to meet his burden of proof.
On appeal appellant asserts that he submitted sufficient medical information to establish
causal relationship. As noted, appellant has not submitted sufficiently rationalized medical
evidence to meet his burden of proof to establish his claim.22
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left foot
condition causally related to the accepted October 22, 2016 employment incident.

20
See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law).
21

See J.S., Docket No. 17-1039 (issued October 6, 2017).

22

The Board notes that the employing establishment executed a Form CA-16 on October 25, 2016 authorizing
medical treatment. The Board has held that where an employing establishment properly executes a Form CA-16,
which authorizes medical treatment as a result of an employee’s claim for an employment-related injury, it creates a
contractual obligation, which does not involve the employee directly, to pay the cost of the examination or treatment
regardless of the action taken on the claim. L.D., Docket No. 16-1289 (issued December 8, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the July 11, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 1, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Hampton, VA, Employer
__________________________________________

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

Docket No. 07-927
Issued: November 2, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 21, 2007 appellant filed a timely appeal from a February 23, 2006 decision
of an Office of Workers’ Compensation Programs’ hearing representative who denied her
recurrence claim. 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 established any disability on and after March 12, 2004
causally related to the January 7, 2004 employment injury.
FACTUAL HISTORY
On January 7, 2004 appellant, then a 47-year-old medical clerk, sustained injury to her
right wrist, arm and knee and left shoulder when she tripped over a chair leg. The Office
accepted the claim for left shoulder sprain and right wrist sprain. Appellant returned to part-time

work on February 2, 2004 and to full-time work three weeks later. She stopped work on
July 7, 2004.
On September 20, 2004 appellant filed a claim (Form CA-7), requesting compensation
for the period March 12, 2004 to February 15, 2005. She requested wage-loss compensation for
the period July 28, 2004 to February 15, 2005 and intermittent leave buyback for the period
March 12, 2004 to February 15, 2005. Section 15 of the form was not completed by the
employing establishment.
In a letter dated January 19, 2005, the Office noted receipt of appellant’s claim for
compensation and informed her that the employing establishment needed to complete section 15.
Appellant submitted treatment notes dated March 12 to August 30, 2004 from
Dr. Mark W. Newman, a treating osteopath, who diagnosed cervical spine degenerative joint
disease, sacroileitis, suprascapular neuralgia and trapezius myositis with trigger points. On
March 12, 2004 she was treated with a sacroiliac injection and C3-7 cervical medial branch
block. Dr. Newman treated appellant with C3-7 cervical medial branch block on April 1, 2004.
He also noted that she complained of left shoulder pain radiating into her upper arm, which was
“exacerbated with activity.” On April 26, 2004 Dr. Newman noted that appellant “received a
suprascapular nerve block as well as trigger point injections. In a May 24, 2004 report, he noted
that she had complaints of left trapezius spasms and pain and intermittent numbness and
continual weakness of the left upper arm. Appellant also had complaints of right arm pain. On
July 5, 2004 Dr. Newman reported that she had been doing well until about two weeks prior
when she reported an increase in pain. Appellant related the increased pain to work she was
doing prior to her daughter’s graduation. In August 9, 2004 treatment notes, she reported “a
significant increase with her low back pain.
In an October 6, 2004 report, Dr. Jeffrey D. Moore, a treating Board-certified orthopedic
surgeon, noted that appellant had problems with persistent activity-related low back pain and
bilateral lower extremity symptoms since a January 2004 employment-related fall. A review of
her history “is significant for having some low back pain related to a couple of motor vehicle
accidents” in 1998. Appellant related that “the back symptoms resolved” and she had no
symptoms or problems until her January 2004 fall at work. Dr. Moore diagnosed L5-S1
progressive degenerative disc disease with mild central disc herniation. He opined that it was
“possible [appellant] sustained an annular tear and progressive herniation of the disc from her”
work-related injury. On October 15, 2004 Dr. Moore performed L4-5, L5-S1 lumbar
discography.
In a time analysis form, appellant noted the intermittent use of sick leave, leave without
pay and annual leave for the period March 12 to November 30, 2004 due to exacerbation of
shoulder and back pain. She noted that the leave used for the period December 1, 2004 to
February 4, 2005 was for back injury surgery and recovery. Appellant used 8 hours of sick
leave, 8 hours of annual leave and 368 hours of leave without pay during the period December 1,
2004 to February 5, 2005 due to back surgery and recovery. For the period March 12 to
November 30, 2004 appellant used 48 hours of sick leave, 80.5 hours of annual leave and 739
hours of leave without pay.

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On February 18, 2005 appellant refiled her claim (Form CA-7), requesting compensation
for the period March 12, 2004 to February 15, 2005. She requested wage-loss compensation for
the period July 28, 2004 to February 15, 2005 and intermittent leave buyback for the period
March 12, 2004 to February 15, 2005. The employing establishment controverted the claim
contending that appellant remained off work due to a nonemployment-related back condition.
On April 24, 2005 the Office received a December 1, 2004 anterior lumbar interbody
fusion operative report from Dr. Russell W. Campbell and Dr. Moore and treatment notes for the
period October 27, 2004 to February 9, 2005 by Dr. Moore. The December 1, 2004 operative
report listed a diagnosis of severe L5-S1 degenerative joint disease. In an October 27, 2004
treatment note, Dr. Newman diagnosed a L5-S1 complete annular tear based upon an
October 15, 2004 discography. On November 22, 2004 he reported that appellant had been
assaulted by her daughter the prior week and as a result of this “had some increased back pain.”
Dr. Newman opined that appellant’s “recent injury obviously represents a minor strain type of
injury to her back.” On December 15, 2004 he noted no complications from the surgery and that
was “somewhat concerned about her continued back pain, which is probably just muscular
related.” On January 19, 2005 Dr. Moore reported that appellant had complaints of low back
pain with intermittent right thigh numbness. Appellant also had complaints of pain in her neck
and some right upper extremity numbness. On February 9, 2005 Dr. Moore diagnosed
degenerative cervical spondylosis involving primarily C6-7. He recommended reevaluation for
assistance with pain control by Dr. Newman as appellant continued “to be moderately
symptomatic.” On February 22, 2005 Dr. Moore diagnosed severe degenerative disc disease and
anterior lumbar interbody fusion. He stated that appellant had surgery on December 1, 2004 and
he anticipated three to six months of postoperative disability.
By decision dated May 11, 2005, the Office denied appellant’s request for leave buyback
for the period March 12, 2004 to February 15, 2005 and for wage-loss compensation for the
period July 27 through September 17, 2004. The Office found that the medical evidence
attributed appellant’s disability to a degenerative disc disease in her back which was not an
accepted condition.
On May 23, 2005 appellant requested an oral hearing before an Office hearing
representative which was held on December 8, 2005. Subsequent to the hearing she submitted
additional evidence, including a November 30, 2005 functional capacity evaluation and progress
notes dated January 18, 2006 from Dr. Newman
By decision dated February 23, 2006, an Office hearing representative affirmed the denial
of her claim for disability as modified.1 The hearing representative determined that appellant’s
claim was for a recurrence of disability and found the evidence insufficient to support her
recurrence claim.

1

The Board notes that, following the February 23, 2006 hearing representative’s decision, the Office received
additional evidence. However, the Board may not consider new evidence on appeal. See 20 C.F.R. §§ 501.2(c);
Donald R. Gervasi, 57 ECAB ___ (Docket No. 05-1622, issued December 21, 2005); Rosemary A. Kayes, 54 ECAB
373 (2003).

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LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act, the term disability is defined as the
incapacity because of an employment injury to earn the wages the employee was receiving at the
time of injury.2 Whether a particular injury causes an employee to be disabled for work and the
duration of that disability are medical issues which must be proved by the weight of substantial
and reliable medical evidence.3 The claimant has the burden of proving that she is disabled for
the period claimed as a result of the employment injury. The medical evidence of record must
directly address the particular period of disability for which compensation is sought; to do
otherwise would essentially allow employee’s to self-certify their disability and entitlement to
compensation.4
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between her claimed disability for the period March 12,
2004 to February 15, 2005.5 The Board has held that the mere belief that a condition was caused
or aggravated by employment factors or incidents is insufficient to establish a causal relationship
between the two.6 The Board will not require the Office to pay compensation for disability in the
absence of medical evidence directly addressing the particular period of disability for which
compensation is claimed. To do so would essentially allow employees to self-certify their
disability and entitlement to compensation.7
ANALYSIS
The Office accepted appellant’s claim for left shoulder sprain and right wrist sprain.
Appellant filed a claim for wage-loss compensation for the period July 28, 2004 to February 15,
2005 and intermittent leave buyback commencing March 12, 2004. It is her burden of proof to
establish that her disability for the period on and after March 12, 2004 was due to her accepted
January 7, 2004 employment injury. The Board finds that appellant did not submit sufficient
medical evidence to establish employment-related disability for the period claimed, due to her
accepted injury.
Dr. Newman provided work excuse notes for March 12 to 15, April 1 to 2 and July 7
to 14, 2004 in which he indicated that she was unable to work. In reports dated March 12
2

See Robert A. Flint, 57 ECAB ___ (Docket No. 05-1106, issued February 7, 2006); Prince E. Wallace, 52
ECAB 357 (2001).
3

See Carol A. Lyles, 57 ECAB ___ (Docket No. 05-1492, issued December 13, 2005); Fereidoon Kharabi, 52
ECAB 291 (2001).
4

Amelia S. Jefferson, 57 ECAB ___ (Docket No. 04-568, issued October 26, 2005); see also William A. Archer,
55 ECAB 674 (2004).
5

Sandra D. Pruitt, 57 ECAB _____ (Docket No. 05-739, issued October 12, 2005); Alfredo Rodriguez, 47 ECAB
437 (1996).
6

Alfredo Rodriguez, supra note 5.

7

Fereidoon Kharabi supra note 3.

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to August 30, 2004, he diagnosed cervical spine degenerative joint disease, sacroileitis,
suprascapular neuralgia and trapezius myositis with trigger points. Dr. Newman also indicated
giving appellant cervical nerve blocks on March 12 and April 1, 2004. On April 26, 2004 he
gave her “a suprascapular nerve block as well as trigger point injections.” On May 24, 2004
Dr. Newman noted that appellant had complaints of left trapezius spasms and pain and
intermittent numbness and continual weakness of the left upper arm. Appellant also had
complaints of right arm pain. In a July 5, 2004 treatment note, Dr. Newman reported that she
had been doing well until about two weeks prior when appellant reported an increase in pain.
Appellant related that the increased pain “may have been related to work she was doing prior to
her daughter’s graduation.” In August 9, 2004 treatment notes, she reported “a significant
increase with her low back pain.” The notes of Dr. Newman are insufficient to support
appellant’s claim that she was totally disabled. He did not address the issue of whether appellant
was rendered totally disabled from working on the dates he saw her. Dr. Newman failed to
discuss the cause of appellant’s left trapezius and low back pain and, thus, his reports are of
diminished probative values.8 The Board has held that a diagnosis of “pain,” without more by
way of rationale, does not constitute the basis for the payment of compensation.9 Moreover, the
July 5, 2004 treatment suggests that appellant sustained a new injury as she attributed an increase
in pain to work she had been performing related to her daughter’s graduation. Dr. Newman did
not provide explanation as to why appellant’s accepted employment injuries prevented her from
performing the duties of her position for the period March 12, 2004 through February 15, 2005.10
The Board has held that a medical report is of limited probative value on a given medical
question if it is unsupported by medical rationale.11 Dr. Newman’s reports are insufficient to
establish disability for the period March 12, 2004 to February 15, 2005.12
In an October 6, 2004 report, Dr. Moore noted that appellant “has had problems with
persistent activity-related low back pain and bilateral lower extremity symptoms since” a
January 2004 employment-related fall. A review of her history was also significant for some low
back pain related to several motor vehicle accidents in 1998. Appellant related that her back
symptoms had resolved and she had no symptoms or problems until her January 2004 fall at
work. Dr. Moore diagnosed L5-S1 progressive degenerative disc disease with mild central disc
herniation. He opined that it was “possible she sustained an annular tear and progressive
herniation of the disc from her January 2004 employment fall.” On October 15, 2004 Dr. Moore
performed L4-5, L5-S1 lumbar discography. He offered no opinion as to the cause of appellant’s
back condition other than noting her statement that her back problems arising from her
8

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006); Linda I. Sprague, 48 ECAB 386 (1997).

9

Robert Broome, 55 ECAB 339 (2004).

10

See Sandra D. Pruitt, 57 ECAB ___ (Docket No. 05-739, issued October 12, 2005); Michael E. Smith, 50
ECAB 313 (1999) (the issue of whether a claimant’s disability is related to an accepted condition is a medical
question which must be established by a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disability is causally related to employment factors and supports that conclusion with
sound medical reasoning.
11

T.F., 58 ECAB ___ (Docket No. 06-1186, issued October 19, 2006).

12

Appellant would be entitled to wage-loss compensation for medical appointments if the medical appointment or
treatment was for her accepted left shoulder sprain and right wrist sprain.

5

automobile accidents had resolved and that she had no symptoms until the January 2004
employment injury. Dr. Moore’s opinion is insufficient to establish that appellant was disabled
from October 6, 2004 to February 15, 2005 due to residuals of her accepted injury. The Office
has not accepted degenerative disc disease and Dr. Moore did not address the causal relationship
of her diagnosed degenerative condition to the January 2004 injury.
The operative report of Drs. Campbell and Moore detailed the surgery performed for
anterior lumbar interbody fusion. The Board notes that neither physician addressed the issue of
causal relationship between appellant’s back surgery and her accepted employment injury. In
addition, there is no evidence that the Office authorized the surgery. For these reasons, this
report is insufficient to support appellant’s claim for compensation.
The record also contains a November 30, 2005 functional capacity evaluation and a
progress note dated January 18, 2006 from Dr. Newman. This evidence does not address the
issue of whether appellant was disabled for the period March 12, 2004 to February 15, 2005 due
to her accepted employment injuries. These reports are insufficient to establish her claim for
compensation for the period in question.
Appellant had the burden of proving by the preponderance of the reliable, probative and
substantial evidence that she was disabled for work as a result of her employment injury. The
Board finds that appellant has failed to establish her entitlement to compensation due to her
accepted left shoulder sprain and right wrist sprain for the period March 12, 2004 through
February 15, 2005.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she was
disabled on and after March 12, 2004 resulting from the January 7, 2004 employment injury.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs’ hearing representative dated February 23, 2006 is affirmed.
Issued: November 2, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., .Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Jose, CA, Employer
__________________________________________

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

Docket No. 20-1084
Issued: December 21, 2020

Case Submitted on the Record

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

JURISDICTION
On April 28, 2020 appellant filed a timely appeal from a November 12, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a back condition
causally related to the accepted March 16, 2019 employment incident.
FACTUAL HISTORY
On April 22, 2019 appellant, then a 31-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on March 16, 2019 he sustained a left-sided back sprain after putting

1

5 U.S.C. § 8101 et seq.

on his satchel while in the performance of duty. He stopped work on that day and returned to work
on March 20, 2019.
An unsigned March 16, 2019 work excuse note indicated that appellant could return to
work on March 20, 2019.
In an April 23, 2019 statement, appellant indicated that on March 16, 2019 he felt severe
back pain after putting on his satchel. He noted that the pain was on the same side that he always
carried his satchel.
In two separate letters dated April 24, 2019, the employing establishment controverted
appellant’s claim.
In a development letter dated April 29, 2019, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence needed and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to respond.
In an emergency department report dated March 16, 2019, Dr. Brian J. Kaminski, Boardcertified in emergency medicine, noted that appellant presented with a complaint of flank pain for
three days. Appellant reported that he felt like he may have pulled an abdominal/back/flank muscle
while lifting his heavy bag. Dr. Kaminski conducted a physical examination. He reviewed
appellant’s computerized tomography (CT) scan of the abdomen and concluded that it was
unremarkable.2 Dr. Kaminski diagnosed acute left flank pain and muscle strain. In an after-visit
summary of even date, he repeated the same diagnoses.
OWCP received hospital records, which noted again that appellant was seen by
Dr. Kaminski on March 16, 2019.
Appellant also submitted a copy of a text message conversation from March 17, 2019, in
which he informed his manager that his back gave out, and that he was in severe pain and unable
to walk normally or carry the mail any longer.
In a May 19, 2019 response to OWCP’s questionnaire, appellant asserted that he was
injured while in the performance of duty. He alleged that his duties often caused minor aches and
pain that went away after a night or two of sleep and that he had been experiencing back pain prior
to the alleged March 16, 2019 employment incident. Appellant noted that he had been working
over 60 hours every week for over a month before the March 16, 2019 employment incident. On
March 16, 2019 he indicated that he first felt minor pain in his back during his lunch break, which
worsened over a period of 30 minutes. Appellant continued to work for the rest of the day until
he tried to put on his satchel to deliver parcels and experienced severe pain that shot through the
left side of his lower back while lifting the satchel from the driver seat of his vehicle. He contended
that he could not lift weight anymore, indicating that his bag typically weighed 7 pounds empty
and 13 pounds with parcels. Appellant delivered two small parcels without the satchel, but could
2

A March 16, 2019 CT scan of the abdomen and pelvis revealed no hydronephrosis or nephrolithiasis, but
demonstrated diverticulosis without diverticulitis and abundant stool in the right-sided colon, which might reflect
constipation.

2

not continue to walk and deliver mail for the rest of the day wearing his satchel. He asserted that
when he notified the employing establishment, he was not given any instruction.
By decision dated June 7, 2019, OWCP denied appellant’s claim. It accepted that the
March 16, 2019 employment incident occurred, as alleged, and that a medical condition had been
diagnosed. However, OWCP found that the medical evidence of record was insufficient to
establish that the accepted March 16, 2019 employment incident caused or aggravated the
diagnosed condition.
OWCP received duplicate copies of the March 16, 2019 hospital records.
On July 7, 2019 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. An oral hearing was scheduled for October 14, 2019.
In a June 21, 2019 medical note, Dr. Jerry Yen, Board-certified in internal medicine,
indicated that appellant was off work due to lower back pain, which “may have been caused” by
lifting his satchel. In a June 28, 2019 medical note, he indicated that appellant could return to
work on June 29, 2019, but advised that appellant’s work hours should not exceed 60 hours per
week until August 1, 2019.
In a July 7, 2019 statement, appellant again asserted that he was never provided the correct
paperwork after he notified his manager and supervisors of his injury. He also noted that
Dr. Kaminski refused to provide a narrative report.
Appellant resubmitted copies of Dr. Kaminski’s March 16, 2019 report.
An October 1, 2019 memorandum of telephone call (Form CA-110) noted that appellant
informed OWCP that he would be unable to attend his oral hearing and requested a telephone
hearing instead. A telephone hearing, therefore, was scheduled for October 15, 2019. Appellant,
however, did not appear at the scheduled hearing. An October 18, 2019 Form CA-110 indicated
that appellant called to notify OWCP that he missed his hearing and requested that it be
rescheduled. In an October 18, 2019 letter, OWCP notified him that, although he missed the
hearing, because he showed continued interest to pursue his appeal, and as rescheduling was not
possible, it would conduct a review of the written record. It afforded appellant 15 days to submit
any additional evidence.
In a November 1, 2019 statement, appellant reiterated that working over 60 hours every
week for over a month caused complete musculoskeletal and mental fatigue that eventually led to
his March 16, 2019 injury. He repeated that the employing establishment failed to provide him
with the appropriate forms. Appellant also asserted that he was retaliated against by the employing
establishment through investigative interviews and discipline.
By decision dated November 12, 2019, an OWCP hearing representative affirmed the
June 7, 2019 decision.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty, as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. 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. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.8 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 specific employment factors
identified by the employee.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a back condition
causally related to the accepted March 16, 2019 employment incident.

3

Supra note 1.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5
L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

In a March 16, 2019 report, Dr. Kaminski noted that appellant reported that he felt like he
may have pulled his abdominal/back/flank muscle while lifting his heavy bag. He diagnosed acute
left flank pain and muscle strain. However, Dr. Kaminski did not provide an opinion on the cause
of appellant’s diagnosed muscle strain. Medical evidence which does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.10 As he did not address causal relationship, Dr. Kaminski’s report is insufficient to
meet appellant’s burden of proof.11
In medical notes dated June 21 and 28, 2019, Dr. Yen indicated that appellant was off work
due to lower back pain which may have been caused by lifting his satchel and advised that
appellant could return to work on June 29, 2019. The Board has held that pain is a symptom and
not a compensable medical diagnosis.12 Furthermore, a medical report lacking a firm diagnosis
and a rationalized medical opinion regarding causal relationship is of no probative value.13 As
such, these notes are insufficient to meet appellant’s burden of proof.
Appellant also submitted an unsigned work excuse note dated March 16, 2019. The Board
has held that reports that are unsigned or bear an illegible signature lack proper identification and
cannot be considered probative medical evidence as the author cannot be identified as a
physician.14 Therefore, this note has no probative value and is also insufficient to establish the
claim.
As there is no rationalized medical evidence of record explaining how appellant’s accepted
March 16, 2019 employment incident caused or aggravated his diagnosed condition, the Board
finds that 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 a back condition
causally related to the accepted March 16, 2019 employment incident.

10

A.P., Docket No. 18-1690 (issued December 12, 2019); J.H., Docket No. 19-0383 (issued October 1, 2019).

11
T.R., Docket No. 18-1272 (issued February 15, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
12

See S.L., Docket No. 19-1536 (issued June 26, 2020); D.Y., Docket No. 20-0112 (issued June 25, 2020).

13

J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

14
R.L., id.; M.A., Docket No. 19-1551 (issued April 30, 2020); T.O., Docket No. 19-1291 (issued
December 11, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the November 12, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 21, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


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

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

Docket No. 14-503
Issued: June 20, 2014

Case Submitted on the Record

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

JURISDICTION
On January 7, 2014 appellant filed a timely appeal from a December 19, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 22 percent permanent impairment of the
left lower extremity.
FACTUAL HISTORY
On February 14, 1986 appellant, then a 38-year-old letter carrier, injured his left knee in
the performance of duty.
OWCP accepted the claim for internal derangement and
chondromalacia patella of the left knee. It further accepted that appellant sustained a
1

5 U.S.C. § 8101 et seq.

consequential injury to the right knee.2 On April 8, 1986 appellant underwent a partial medial
meniscectomy of the left knee. On February 23, 2010 he underwent a total right knee
replacement.3
By decision dated May 5, 1988, OWCP granted appellant a schedule award for a 10
percent permanent impairment of the left leg.4 The period of the award ran for 28.80 weeks from
December 16, 1986 to July 5, 1987.
In a decision dated June 25, 1991, OWCP granted appellant an additional schedule award
for a 12 percent permanent impairment of the left leg.5 The period of the award ran for 34.56
weeks from June 14, 1991 to February 10, 1992. By decision dated June 5, 1995, OWCP denied
appellant’s claim for an increased schedule award for the left lower extremity.
On April 9, 2013 appellant underwent an authorized left total knee replacement
arthroplasty.
In an impairment evaluation dated September 12, 2013, Dr. Gregory D. Powell, a Boardcertified physiatrist, diagnosed knee arthritis with a total knee replacement. He discussed
appellant’s complaints of continuous mild-to-moderate left knee pain without crepitus, loss of
motion, joint instability, locking or weakness. On examination Dr. Powell found mild valgus
and a trace of varus laxity of the left knee. Using the American Medical Association, Guides to
the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides), he identified a class 2
impairment due to a total knee replacement arthroplasty using the knee regional grid set forth in
Table 16-3, which yielded a default value of 25 percent. Dr. Powell applied a grade modifier of
one for functional history due to appellant’s antalgic gate, a grade modifier of one for physical
examination findings of mild laxity and found that a grade modifier for clinical studies was not
applicable. He used the net adjustment formula, (GMFH-CDX) + (GMPE-CDX) + (GMCSCDX), or (1-2) + (1-2) + (0-2) = -4, which he found yielded a 21 percent permanent impairment
of the left lower extremity.
2

By decision dated December 1, 1988, OWCP found that appellant had not established that he sustained a
consequential injury to the right knee due to his February 14, 1986 employment injury. On March 28, 1989 it
determined that he had not established that he sustained a recurrence of disability beginning January 31, 1989. On
May 9, 1989 OWCP vacated its March 28, 1989 decision and accepted that he sustained a recurrence of disability.
On June 12, 1989 it vacated its December 1, 1988 decision and accepted that appellant sustained a consequential
injury to his right knee.
3

In a decision dated August 10, 1989, OWCP denied appellant’s claim for a schedule award for the right lower
extremity. On January 2, 1990, it vacated the August 10, 1989 decision. In decisions dated January 23 and
November 5, 1990, OWCP granted appellant a schedule award for an 18 percent permanent impairment of the right
lower extremity. By decision dated June 15, 1993, it granted him a schedule award for an additional eight percent
permanent impairment of the right lower extremity. In a decision dated January 6, 2011, OWCP granted appellant a
schedule award for an additional five percent permanent impairment of the right lower extremity.
4

In a decision dated November 18, 1986, OWCP denied appellant’s claim for a schedule award after finding that
the medical evidence was insufficient to show that he had a permanent impairment of the left lower extremity.
5

By decision dated August 26, 1994, OWCP reduced appellant’s compensation to zero after finding that his
actual earnings as a modified carrier effective May 31, 1994 fairly and reasonably represented his wage-earning
capacity.

2

On October 17, 2013 appellant filed a claim for an increased schedule award. On
October 30, 2013 an OWCP medical adviser reviewed Dr. Powell’s September 12, 2013 report
and agreed with his findings. He noted that appellant had already received schedule awards
totaling 22 percent impairment and thus that he was not entitled to an additional schedule award.
By decision dated December 19, 2013, OWCP denied appellant’s claim for an additional
schedule award.
On appeal appellant notes that OWCP granted him a schedule award for 22 percent
permanent impairment after arthroscopic surgery on his left knee. He underwent a total knee
replacement in 2013 and now had a limp and used a cane. Appellant argues that his left knee
condition had worsened.
LEGAL PRECEDENT
The schedule award provision of FECA,6 and its implementing federal regulations,7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.9
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).10 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
Where a claimant has previously received a schedule award and subsequently claims an
additional schedule award due to a worsening of his or her condition, the claimant bears the
burden of proof to establish a greater impairment causally related to the employment injury.11

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
10

A.M.A., Guides 494-531.

11

See Edward W. Spohr, 54 ECAB 806 (2003).

3

ANALYSIS
OWCP accepted that appellant sustained internal derangement and chondromalacia
patella of the left knee due to a February 14, 1986 employment injury. It further accepted that he
sustained a consequential right knee injury. In decisions dated May 5, 1988 and June 25, 1991,
OWCP granted appellant schedule awards totaling a 22 percent permanent impairment of the left
lower extremity.
On April 9, 2013 appellant underwent a total left knee replacement arthroplasty. He filed
a claim for an increased schedule award. In an impairment evaluation dated September 12, 2013,
Dr. Powell found mild left knee laxity without crepitus, weakness or loss of motion. He noted
that appellant experienced mild-to-moderate pain in his left knee. Dr. Powell diagnosed knee
arthritis and a total knee replacement. Citing Table 16-3 of the A.M.A., Guides, he determined
that appellant had a class 2 impairment due to a total knee replacement arthroplasty, which
yielded a default value of 25 percent. Dr. Powell rated a grade modifier of one for functional
history based on his antalgic gate, a grade modifier of one for physical examination findings of
mild laxity and no grade modifier for clinical studies as there were “no pertinent studies.” He
used the net adjustment formula, (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), or (1-2) +
(1-2) + (0-2) which he found yielded a result of -4. An OWCP medical adviser concurred with
Dr. Powell’s findings. However, as Dr. Powell found that clinical studies were not applicable, he
should not have included it in the net adjustment formula.12 Consequently, the formula should
be (GMFH-CDX) + (GMPE-CDX), or (1-2) + (1-2) = -2. A movement from the default value of
25 two places to the left yields an impairment of 21 percent according to the Knee Regional Grid
set forth in Table 16-3. Consequently, Dr. Powell’s inclusion of clinical studies in the net
adjustment formula does not affect the final impairment rating. There is no evidence of record to
establish that appellant has more than a 22 percent permanent impairment of the left lower
extremity. Therefore, he is not entitled to an additional schedule award.
On appeal appellant contends that his condition worsened following his 2013 left knee
replacement. He has the burden, however, to submit medical evidence supporting the degree of
permanent impairment.13 Appellant’s lay opinion on the extent of his impairment is insufficient
to discharge his burden of proof as the Board has held that lay individuals are not competent to
render a medical opinion.14
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.

12

See generally A.M.A., Guides 521, which provides, “If a particular criterion such as range of motion was used
to determine impairment class, it may not be used again to determine the grade and is disregarded in the impairment
calculation.”
13

See D.H., 58 ECAB 358 (2007); Annette M. Dent, 44 ECAB 403 (1993).

14

Gloria J. McPherson, 51 ECAB 441 (2000).

4

CONCLUSION
The Board finds that appellant has not established that he has more than a 22 percent
permanent impairment of the left lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the December 19, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 20, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 10-511
Issued: November 19, 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 December 14, 2009 appellant filed a timely appeal of an October 30, 2009 decision of
the Office of Workers’ Compensation Programs denying modification of a decision denying her
claim for compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury on September 16, 2008 in the performance of duty.
FACTUAL HISTORY
On February 24, 2009 appellant, then a 52-year-old mail processor, filed a traumatic
injury claim alleging that on September 16, 2008 she pulled a muscle in her arm and sustained
pain in her arm, neck, shoulder and fingers while sweeping a stacker and changing full trays of
mail at work. She stopped work on January 12, 2009 and returned on February 20, 2009.

In an undated attending physician’s report, Dr. Percy Conrad May, an internist, noted that
appellant injured her right shoulder while lifting on the job on September 16, 2008. He stated
that he first examined her on January 12, 2009 and that she had no concurrent or preexisting
injuries. Dr. May diagnosed right shoulder tendinitis and checked a box “yes” indicating that
appellant’s condition was caused or aggravated by her employment activities.
A nurse’s September 16, 2008 note indicated that appellant was treated on September 15,
2008 and diagnosed with right arm pain. It listed September 14, 2008 as the date of injury and
advised that appellant could return to work on September 15, 2008 with restrictions.
On March 18, 2009 the Office advised appellant of the factual and medical evidence
necessary to establish her claim and allowed her 30 days to submit such evidence.
In an April 21, 2009 decision, the Office denied appellant’s claim finding that, although
the claimed incident occurred, there was no medical evidence with a diagnosis that could be
connected to the event.
Appellant requested reconsideration on June 8 and October 1, 2009. She asserted that the
Office offered to extend the deadline for her to submit evidence, but that her claim was denied
before she submitted anything. In a September 15, 2008 hospital report, Dr. Harlan Krinsky, a
Board-certified internist, who noted appellant’s complaint of neck and right arm pain beginning
the morning of September 14, 2009. He diagnosed right arm pain. A September 15, 2008
treatment note from a medical assistant noted appellant’s complaint of neck and right arm pain
that began on Sunday.1 The medical assistant indicated no obvious injury, but that the pain
became progressively worse when appellant fed mail into a machine. The medical assistant
checked a box “yes” indicating that this was a work-related injury.
In an April 10, 2009 report, Dr. May noted appellant’s report of a job injury that occurred
while working on September 16, 2008. Since that time appellant complained of severe neck and
shoulder pain. Dr. May diagnosed cervical radiculopathy. He opined that appellant’s
symptomatology and physical findings coincided with the September 16, 2008 work incident.
Work status forms from Dr. May dated February 16 and March 23, 2009 indicated that appellant
could work light duty.
In a June 10, 2008 hospital report, Dr. Suheal Habiba, Board-certified in family medicine,
noted that appellant twisted her right wrist that morning at work. He diagnosed right wrist
sprain. A hospital report of the same date with an illegible signature noted appellant’s report of
twisting her right arm while using trays at work on June 10, 2008. In a June 26, 2008 report,
Dr. Saritha Vankana, a Board-certified internist, noted that appellant had right arm pain and
advised that she return to work with restrictions. His work status notes of June 17 and
September 17, 2008 indicated that appellant was unable to work due to pain of the right arm,
neck and back. The September 17, 2008 note stated that appellant was unable to work since
September 16, 2008.

1

September 15, 2008 fell on a Monday. The Sunday referred to would be September 14, 2008.

2

Appellant also submitted treatment records from an unidentified healthcare provider
dated May 20 to September 17, 2008. A June 17, 2008 record indicated that appellant’s right
arm was still hurting and that she also had neck and right shoulder pain. A September 17, 2008
report noted right shoulder and right arm pain since September 14, 2008 and that appellant had
been hurt at work. It noted that appellant worked on September 15, 2008 but left early and was
unable to return to work. It also diagnosed shoulder and upper back pain. A partial report dated
June 12, 2008 noted that appellant sprained her right arm at work lifting a heavy crate two days
prior. Appellant also submitted November 26 and December 21, 2002 reports from Dr. Agapito
Pangan, a family physician, who stated that she had a brief period of disability due to neck and
right shoulder pain. Dr. Pangan noted that appellant’s history of injury consisted of right
shoulder swelling and discomfort from an August 19, 2002 work injury.
In an October 30, 2009 decision, the Office denied modification of its April 21, 2009
decision finding the medical evidence was insufficient to establish that appellant’s claimed
conditions were causally related to the September 16, 2008 work incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of her claim, including the fact that the individual is
an “employee of the United States” within the meaning of the Act; that the claim was filed
within the applicable time limitation; that an injury was sustained while in the performance of
duty as alleged and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury. 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.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged. 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.4
An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury while in the performance of duty. However, the
employee’s statements must be consistent with the surrounding facts and circumstances and his
or her subsequent course of action. Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury and failure to obtain medical treatment may cast doubt on an employee’s statements in
determining whether he or she has established a prima facie claim for compensation. However,
2

5 U.S.C. §§ 8101-8193.

3

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

4

Barbara R. Middleton, 56 ECAB 634 (2005).

3

an employee’s statement alleging that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong and persuasive evidence.5
ANALYSIS
The record reflects that appellant is a mail processor who claimed injury to her arm, neck,
shoulder and fingers after sweeping a stacker and changing trays of mail on September 16, 2008.
The Office found that the claimed incident occurred. The Board finds, however, that appellant
did not meet her burden of proof to establish that the traumatic incident on September 16, 2008
occurred as alleged.
Appellant stated that on September 16, 2008 she injured her arm, neck and shoulder after
sweeping a stacker and changing trays of mail. However, she did not file her claim until
February 24, 2009, approximately five months after the date of the incident, without any
explanation for her delay in filing. Appellant failed to describe how the actions or incidents on
September 16, 2008 contributed to her claimed condition as she provided only a general
description of her activities on that date. She provided no confirmation of the alleged incident by
statements of witnesses, coworkers or supervisors. Appellant also did not stop work on
September 16, 2008, but continued working until January 12, 2009. As noted, circumstances
such as late notification of injury, lack of confirmation of injury, continuing to work without
apparent difficulty following the alleged injury and failure to obtain medical treatment may cast
doubt on appellant’s claim.
The evidence of record also contains inconsistencies that cast doubt as to the date of the
alleged work incident. Reports dated September 15, 2008 from Dr. Krinksy and a medical
assistant indicated that appellant experienced neck and right arm pain beginning
September 14, 2008. A September 16, 2008 nurse’s report and a September 17, 2008 treatment
note indicated that appellant developed right arm pain due to a work incident on
September 14, 2008. However, the date of incident listed in these reports conflict with
appellant’s claim of September 16, 2008 the reports of Dr. May, who indicated that she injured
her right shoulder and neck in a September 16, 2008 work incident. As noted, an employee’s
statement must be consistent with the surrounding facts and circumstances in order to establish a
prima facie claim for compensation.6
The medical evidence provides different accounts of appellant’s history of right arm and
neck conditions. In an undated attending physician’s report, Dr. May indicated that appellant
had no preexisting right arm condition. However, Dr. Habiba’s June 10, 2008 report noted that
she twisted her right wrist at work that morning. This prior right arm injury was further
corroborated by treatment notes dated June 12 and 17, 2008 indicating right arm and neck pain
due to lifting a heavy crate at work on June 10, 2008. Furthermore, Dr. Pangan’s reports dated
November 26 and December 21, 2002 indicate that appellant had a right shoulder and neck
condition due to an August 12, 2002 work incident.

5

M.H., 59 ECAB 461 (2008); Louise F. Garnett, 47 ECAB 639 (1996).

6

See Thomas L. Agee, 56 ECAB 465 (2005).

4

The Board finds that the evidence does not provide a consistent history of when the
claimed incident occurred. There is conflicting evidence regarding whether it happened on
September 16, 2008 or September 14, 2008. In view of this and appellant’s delay in filing her
claim, the Board finds that there are such inconsistencies that cast serious doubt on the validity
of the claim.7 Therefore, appellant has not met her burden of proof in establishing that the
September 16, 2008 incident occurred as alleged.8
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a traumatic injury on September 16, 2008 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the October 30, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: November 19, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7

S.P., supra note 3 (an employee has not met his or her burden of proof of establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim).
8

As appellant did not establish that the employment incident occurred at the time, place and manner alleged, the
Board need not further consider the medical evidence.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Moorestown, NJ, Employer
__________________________________________

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)
)
)
)
)
)
)

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

Docket No. 08-1672
Issued: January 29, 2009

Case Submitted on the Record

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

JURISDICTION
On May 27, 2008 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated July 20, 2007 and February 12, 2008 denying his
schedule award claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has an
impairment caused by his accepted employment injuries that would entitle him to a schedule
award.
FACTUAL HISTORY
On June 11, 2003 appellant, then a 49-year-old letter carrier, filed a Form CA-1,
traumatic injury claim, alleging that on that day he hurt his back lifting tubs of mail. He did not
stop work but began working limited duty for eight hours a day, five days a week. By letter

dated July 23, 2003, the Office accepted that he sustained an employment-related lumbar sprain
and lumbar radiculopathy.1
On January 28, 2005 appellant submitted a schedule award claim and an October 19,
report in which Dr. David Weiss, an osteopath, provided a history of injury and reported
appellant’s complaint of daily low back pain and stiffness that caused him to modify his
activities of daily living. He stated that he had reviewed the medical record and that sensory
examination revealed a “perceived sensory deficit” over the L4-L5-S1 dermatome involving the
left lower extremity. Gastrocnemius circumference measurements were 42.5 centimeters on the
right and 45 cm. on the left. Dr. Weiss diagnosed chronic post-traumatic lumbosacral strain and
sprain; herniated nucleus pulposus L4-5; magnetic resonance imaging (MRI) scan positive; left
S1 radiculopathy and right L4 through S2 radiculopathy, electromyography (EMG) positive. He
advised that appellant had reached maximum medical improvement and, in accordance with the
fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides),2 appellant had left lower extremity sensory deficits of
4 percent for the L4, L5 and S1 nerve roots respectively plus a pain impairment of 3 percent for a
total left lower extremity impairment of 12 percent. Dr. Weiss found a 13 percent right lower
extremity atrophy due to calf atrophy and 3 percent impairment for pain, for a total 16 percent
right lower extremity impairment.3 By report dated October 17, 2005, an Office medical adviser
reviewed the medical evidence and agreed that, in accordance with the A.M.A., Guides,
appellant had a 13 percent right lower extremity impairment due to atrophy and a 12 percent left
lower extremity impairment due to sensory loss. He found no impairment due to pain.
The Office determined that a conflict in medical evidence existed between the opinions
of Dr. Weiss and the Office medical adviser regarding the degree of impairment and on
January 10, 2007 referred appellant to Dr. Robert R. Bachman, a Board-certified orthopedic
surgeon, for an impartial evaluation.4 In a January 24, 2007 report, Dr. Bachman noted his
review of the medical record including MRI scan studies of 2000, 2003 and 2005, the history of
injury, appellant’s complaints of low back and leg pain and examination findings. Calf
measurements were 17-1/4 inches on the left and 16-1/2 on the right. Neurological examination
demonstrated no muscle weakness, intact pinwheel sensation and negative Babinski test. He
diagnosed lumbar strain, previous MRI scan report of disc herniation at L4-5, left and
degenerative disc disease of the lumbar spine. Dr. Bachman advised that his examination did not
1

The record reflects that appellant refers to a previous accepted work-related injury in 2000 or 2002, but there is
no evidence in the record of the accepted injury by the Office.
2

A.M.A., Guides, (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

3

A January 23, 2000 MRI scan of the lumbosacral spine demonstrated a left foraminal and far lateral herniated
disc at L4-5 which could be affecting both the exiting left L5 root and the L4 root and far lateral compartment. A
June 12, 2003 lumbar spine MRI scan demonstrated mild disc degenerative changes at L1-2 and L4-5 and a left
lateral disc protrusion with annular tear at L4-5. A May 26, 2004 lumbar spine MRI scan showed no interval
change. A May 25, 2004 EMG nerve conduction study (NCS) demonstrated left S1 radiculopathy and right L4
through S1 radiculopathies with peripheral neuropathy in the lower extremities which could be related to nerve
compression problems at the spinal level.
4

The Board notes that the January 10, 2007 referral letter contains a typographical error, referring to
Dr. Bachman as Dr. Kelly.

2

reveal any objective findings, stating “in particular there are no objective findings to provide any
clinical correlation for the reportedly abnormal EMG/NCS study” which reported left S1
radiculopathy which would be unrelated to the L4-5 level and the other radiculopathies were
reported on the right side and appellant’s complaints were primarily on the left. He advised that
appellant sustained nothing more than a lumbar strain on June 6, 2003, noting that there was no
change on MRI scan studies in the interval from 2000 to 2003 and no clinical correlation for
radiculopathy. Dr. Bachman concluded that appellant had a zero percent impairment due to the
June 6, 2003 employment injury, noting “there are no objective findings to substantiate a
radiculopathy or a disc herniation referable to June 6, 2003.” In an April 2, 2007 report, an
Office medical adviser agreed with Dr. Bachman that there was no impairment in this case,
finding the date of maximum medical improvement to be January 14, 2007.
By decision dated July 20, 2007, the Office found that, based on the opinion of
Dr. Bachman, appellant was not entitled to a schedule award. On July 26, 2007 appellant,
through his attorney, requested a hearing that was held on November 29, 2007. At the hearing
appellant described his job duties. He testified that he had previous accepted work-related
injuries in 2000 or 2002, after which he had a permanent restriction of not carrying a mailbag.
Appellant’s attorney argued that Dr. Bachman’s opinion should not be credited because he was
not aware of the 2000 work-related back injury and his report made no reference to the A.M.A.,
Guides. In a February 12, 2008 decision, an Office hearing representative affirmed the
July 20, 2007 decision.
LEGAL PRECEDENT
Pursuant to section 8107 of the Federal Employees’ Compensation Act5 and section
10.404 of the implementing federal regulations,6 schedule awards are payable for permanent
impairment of specified body members, functions or organs. The Act, however, does not specify
the manner in which the percentage of impairment shall be determined. For consistent results
and to ensure equal justice under the law for 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., Guides7 has been adopted by the Office and the Board has concurred
in such adoption, as an appropriate standard for evaluating schedule losses.8
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under the Act for injury to the spine.9 In
1960, amendments to the Act modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

A.M.A., Guides, supra note 2.

8

See Joseph Lawrence, Jr., supra note 2; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287
(1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
9

Pamela J. Darling, 49 ECAB 286 (1998).

3

the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of the Act include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.10
ANALYSIS
The Board finds this case is not in posture for decision. The record supports that
appellant sustained a previous work-related back injury. Furthermore, while the record includes
a cover letter indicating that a statement of accepted facts was forwarded to Dr. Bachman, his
January 24, 2007 report makes no mention of a statement of accepted facts. The record contains
a statement of accepted facts dated July 23, 2007 and an addendum dated October 13, 2005.
Neither, however, mentions any previous employment injuries. Additionally, Dr. Bachman’s
report supports that appellant had right calf atrophy and section 17.2d and Table 17-6 of the
A.M.A., Guides provides that an impairment rating can be granted for calf atrophy.11
When the Office obtains an opinion from an impartial medical specialist for the purpose
of resolving a conflict in the medical evidence and the specialist’s opinion requires clarification
or elaboration, it must secure a supplemental report from the specialist to correct the defect in his
original report.12 The Board therefore finds the case must be remanded to the Office. On
remand, it should prepare an updated statement of accepted facts to include all accepted injuries
and double any records that include a low back injury. The case shall then be forwarded to
Dr. Bachman for a supplemental report in which he addresses whether appellant has any
impairment in accordance with the A.M.A., Guides. Following this and such further
development deemed necessary, the Office shall issue a decision on appellant’s schedule award
claim.
CONCLUSION
The Board finds this case is not in posture for decision.

10

Thomas J. Engelhart, 50 ECAB 319 (1999).

11

A.M.A., Guides, supra note 2 at 530.

12

L.R. (E.R.), 58 ECAB ____ (Docket No. 06-1942, issued February 20, 2007).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 12, 2008 be set aside and the case remanded to the
Office for proceedings consistent with this opinion of the Board.
Issued: January 29, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5