United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
LACKLAND AIR FORCE BASE, TX, Employer
__________________________________________

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Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0021
Issued: May 6, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 3, 2018 appellant, through counsel, filed a timely appeal from an April 6, 2018
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days has elapsed from OWCP’s last merit decision, dated March 28, 2017, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On February 14, 2017 appellant, then a 40-year-old air conditioning equipment mechanic,
filed a traumatic injury claim (Form CA-1) alleging that on November 16, 2016 he sustained a
ruptured lumbar disc when he climbed a ladder to access the blower compartment of an air
handling unit while in the performance of duty. On the reverse side of the claim form, the
employing establishment indicated that he stopped work on November 16, 2016.
Appellant was initially treated on November 17, 2016 by Raul Canales Jr., a physician
assistant. Mr. Canales noted that appellant had pain radiating from his upper back to his chest for
one week, with left arm numbness. He also noted “no trauma/injury.”
By development letter dated February 21, 2017, OWCP informed appellant that the
evidence submitted was insufficient to establish his claim. It advised him of the additional factual
and medical evidence needed to support his claim. OWCP afforded appellant 30 days to submit
the necessary evidence.
In a January 16, 2017 report, Dr. Ralph De La Rosa, Board-certified in family medicine,
noted that appellant was disabled from work from January 16 through February 2, 2017.
In an attending physician’s report (Form CA-20) dated March 21, 2017, Dr. De La Rosa,
diagnosed extruded disc on the right L2 extending superior from L2-3. He checked a box marked
“yes” indicating that he believed that appellant’s condition was caused or aggravated by the
November 16, 2016 employment incident. Dr. De La Rosa also noted that appellant’s acute lower
back injury was related to the injury that occurred at work on November 16, 2016. He related that
appellant’s period of partial disability was for the period November 17, 2016 to January 11, 2017,
and that from January 11, 2017 and onward appellant was totally disabled and could not return to
work. Dr. De La Rosa checked a box marked “yes” when asked whether appellant had a history
or if there was evidence of concurrent or preexisting injury, and noted that his paroxysmal atrial
fibrillation was aggravated by the extruded disc at L2-3.
In a separate report dated March 21, 2017, Dr. De La Rosa diagnosed lumbar disc
herniation with radiculopathy and chronic paroxysmal atrial fibrillation.
By decision dated March 28, 2017, OWCP denied appellant’s claim, finding that he had
not submitted evidence containing a medical diagnosis causally related to the accepted
November 16, 2017 employment incident. It noted that appellant’s treating physician neither
provided a complete history of appellant’s injury, nor a well-reasoned medical opinion supported
by objective findings explaining how the diagnosed conditions had been caused or aggravated by
the November 16, 2016 employment incident.

2

On March 30, 2018 appellant, through counsel, requested reconsideration of OWCP’s
March 28, 2017 decision and submitted additional medical evidence and argument along with his
request.
In an April 25, 2017 report Dr. Sarah E. Trampota, Board-certified in anesthesiology and
pain management, related that appellant’s pain began suddenly in January 2017 when he was at
home. She diagnosed chronic pain syndrome, intervertebral disc degeneration lumbosacral region,
spondylosis lumbosacral region, myalgia, and neuralgia.
In reports dated May 15 and 22, 2017, Dr. Trampota, related that she had performed rightsided L2, L3, and L4 transforaminal epidural steroid injections. She again indicated diagnoses of
chronic pain syndrome, pain in limb, lumbosacral intervertebral disc degeneration, and
lumbosacral spondylosis. On June 6, 2017 Dr. Trampota related that appellant’s symptoms had
improved by 40 percent since his epidural injections.
By decision dated April 6, 2018, OWCP denied appellant’s reconsideration request,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.3 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.4 The one-year period begins on the next day after the date of
the originally contested decision.5 In addition, when determining the one-year period for
requesting reconsideration, the last day of the period should be included unless it is a Saturday, a
Sunday, or a legal holiday.6 Timeliness is determined by the document receipt date of the request
for reconsideration as indicated by the received date in the integrated Federal Employees’
Compensation System (iFECS).7 Imposition of this one-year filing limitation does not constitute
an abuse of discretion.8
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s application for review is untimely filed, it must nevertheless undertake a limited

3

5 U.S.C. § 8128(a); J.W., Docket No. 18-0703 (issued November 14, 2018); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
4

20 C.F.R. § 10.607(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).

6

Id. See M.A., Docket No. 13-1783 (issued January 2, 2014).

7

Supra note 5 at Chapter 2.1602.4(b) (February 2016).

8

J.W., supra note 3; E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

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review to determine whether it demonstrates clear evidence of error.9 If an application
demonstrates clear evidence of error, it will reopen the case for merit review.10
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.11 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.12 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error.13 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.14 This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP.15 To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.16
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard.17 The claimant must present evidence which on its face shows that OWCP made
an error. Evidence such as a detailed, well-rationalized medical report which, if submitted before
the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error.18 The Board makes an independent determination of
whether a claimant has demonstrated clear evidence of error on the part of OWCP.19
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

9

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

10

G.G., Docket No. 18-1074 (issued January 7, 2019); see also id. at § 10.607(b); supra note 5 at Chapter 2.1602.5
(February 2016).
11

J.D., Docket No. 16-1767 (issued January 12, 2017); see Dean D. Beets, 43 ECAB 1153 (1992).

12

Id.; see also Leona N. Travis, 43 ECAB 227 (1991).

13

J.D., supra note 11; Jimmy L. Day, 48 ECAB 652 (1997).

14

Id.

15

Id.

16

J.W., supra note 3; Robert G. Burns, 57 ECAB 657 (2006).

17

Supra note 12.

18

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 5 at Chapter 2.1602.5(a) (February 2016).

19

D.S., Docket No. 17-0407 (issued May 24, 2017).

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Appellant had one year from OWCP’s March 28, 2017 decision to timely request
reconsideration. He, therefore, had until Wednesday, March 28, 2018 to timely request
reconsideration. As OWCP did not receive appellant’s reconsideration request until March 30,
2018, more than one year after the March 28, 2017 merit decision, it was untimely filed.
Consequently, appellant must demonstrate clear evidence of error by OWCP in the denial of his
claim.20
Appellant submitted reports from Dr. Trampota dated April 25, May 15 and 22, and June 6,
2017 as well as counsel’s argument dated March 30, 2018. The underlying issues in this case are
medical in nature, namely whether appellant had established a medical diagnosis causally related
to the accepted November 16, 2016 employment incident. Dr. Trampota related and reiterated her
diagnoses, but failed to provide a medical opinion explaining how the diagnosed conditions were
caused or aggravated by the accepted November 16, 2016 employment incident. Rather, in her
April 25, 2017 report, she related that appellant’s pain began in January 2017 at home. Thus this
report is insufficient to establish clear evidence of error by OWCP in its March 28, 2017 decision.
Counsel’s argument in his March 30, 2018 letter regarding the probative value of the
medical evidence is also insufficient to shift the weight of the evidence in appellant’s favor and
raise a substantial question as to the correctness of OWCP’s decision as it constitutes a lay opinion
which lacks evidentiary value.21
Clear evidence of error is intended to represent a difficult standard. The submission of a
detailed, well-rationalized medical report which, if submitted before the merit decision was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.22 The Board makes an independent determination of whether a claimant has
demonstrated clear evidence of error on the part of OWCP.23
For these reasons, the Board finds that appellant has not demonstrated clear evidence of
error by OWCP in its March 28, 2017 decision. Consequently, OWCP properly performed a
limited review of his argument to ascertain whether it demonstrated clear evidence of error,
correctly determined that it did not, and denied his untimely request for a merit reconsideration.24
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

20

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

21

B.H., Docket No. 15-0978 (issued October 22, 2015).

22

Supra note 17.

23

Supra note 19.

24

See W.A., Docket No. 18-0297 (issued July 18, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the April 6, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 6, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
ENVIRONMENTAL PROTECTION AGENCY,
REGION II, Edison, NJ, Employer
__________________________________________

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Appearances:
James M. Clancy, Esq., for the appellant
No appearance, for the Director

Docket No. 07-1691
Issued: June 20, 2008

Oral Argument May 6, 2008

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

JURISDICTION
On June 6, 2007 appellant filed a timely appeal from the February 22, 2007 merit
decision of the Office of Workers’ Compensation Programs, which denied a reduction of her
third-party surplus. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of the case.
ISSUE
The issue is whether compensation is payable for the medical expenses that were covered
by appellant’s private health insurance or by Medicare, thereby warranting a reduction in her
third-party surplus.
FACTUAL HISTORY
Appellant, then a 33-year-old on-scene coordinator, filed a claim alleging that her
exposure to fumes at the White Chemical Superfund site from August 30, 1990 to March 29,
1991 caused an injury in the performance of duty. The Office accepted her claim for aggravation

of asthma. The Office later accepted pseudotumor cerebri as consequential to her corticosteroid
treatment for asthma. Appellant received compensation benefits.1
In 1992, appellant filed a third-party negligence claim arising out of her chemical
exposure. In 1998, she received a settlement of $895,050.00. The Office notified her that she
was required to reimburse the United States for the amount of compensation previously paid and
that any additional compensation payable for the same injury would be credited against her thirdparty surplus.
In 2001, appellant’s attorney submitted 560 pages representing “$199,000.00 worth of
medicals related to the pseudotumor cerebri claim that have been submitted to the claimant’s
private health care insurer for payment as they would not have been compensable nor appropriate
for payment by the Office due to the continuing third-party credits.”2 On May 21, 2002 the
Office informed appellant: “Unfortunately, we are unable to process your request to reimburse
Medicare for bills incurred by [you] for the reason that in order to secure reimbursement
Medicare must submit all bills on the AMA standard billing form OWCP/HCFA 1500.”
Appellant’s attorney continued to seek reduction of the third-party surplus to the extent that
appellant submitted her medical bills through private insurance. On August 24, 2004 he stated
that appellant was seeking a reduction of the surplus based upon after-incurred medical bills now
totaling in excess of $500,000.00:
“What makes no sense in this matter is that if [appellant] had submitted her afterincurred medical bills to OWCP for payment, they would have been denied and
used to reduce the surplus. Thereafter she would have been free to submit them to
either Medicare, Medicaid and/or private health insurance, Blue Cross/Blue
Shield, for which she pays.
“The same result can be obtained by having the after-incurred medical bills
submitted to private health insurance and then submitting those bills to OWCP for
purposes of reimbursing the health insurance carrier. Of course, the OWCP
would deny reimbursement to the carrier based upon the fact that there is still a
third-party surplus. In either scenario, the result remains the same, just the route
taken varies slightly.”
On August 8, 2005 appellant wrote to the Office: “DOL [Department of Labor] claim
examiners now say, the Regulations state that I must make the medical payments myself where
the law says only that medical payments must be paid by the claimant. I got private insurance
1

In another case, the Office accepted that appellant sustained a low back strain in the performance of duty.
OWCP File No. 02-0626871.
2

The submissions were largely Medicare Summary Notices explaining how much of the itemized expenses
Medicare covered. The notices are marked “THIS IS NOT A BILL.” Appellant’s attorney argued that because the
additional $199,000.00 in medical expenses was less than the third-party surplus, the Office would have had no
statutory obligation to pay these expenses and never would have performed an audit of the medical bills to
determine what would be payable as reasonable and necessary. “As such,” the attorney argued, “OWCP would have
simply denied these bills on a dollar-for-dollar basis. Therefore, at the present time, it is entirely appropriate to
examine these bills on a dollar-for-dollar basis as a reduction in the total third-party credits.”

2

and made those payments of medical bills from my private insurer.” Appellant added: “We will
not turn in any medical bills into DOL as we have private insurance to pay for them.”
In a decision dated February 22, 2007, the Office denied a reduction of appellant’s thirdparty surplus for medical bills not paid by her but by her private health insurance or Medicare.
The Office informed appellant that it would reduce the surplus for medical expenses paid by her:
“If you submit medical bills showing that they were paid by you, we will apply the amounts paid
by you to the further reduction of the third-party surplus.”
LEGAL PRECEDENT
Under section 8103 of the Federal Employees’ Compensation Act (Act) or FECA, 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 of the period of any
disability or aid in lessening the amount of any monthly compensation.3 An employee claiming
reimbursement of medical expenses should submit an itemized bill.4 If an employee has paid
bills for medical, surgical or dental services, supplies or appliances due to an injury sustained in the
performance of duty, she may submit an itemized bill on the Health Insurance Claim Form, HCFA
1500 or OWCP 1500, together with a medical report to the Office for consideration.5 The bill must
be accompanied by evidence that the provider received payment for the service from the employee
and a statement of the amount paid. Acceptable evidence that payment was received includes, but
is not limited to, a signed statement by the provider, a mechanical stamp or other device showing
receipt of payment, a copy of the employee’s canceled check (both front and back) or a copy of the
employee’s credit card receipt.6 The Office will not accept copies of bills for reimbursement
unless they bear the original signature of the provider, with evidence of payment.7
If an injury or death for which compensation is payable is caused under circumstances
creating a legal liability in a person other than the United States to pay damages and a
beneficiary entitled to compensation from the United States for that injury or death receives
money or other property in satisfaction of that liability as a result of suit or settlement by her or
in her behalf, the beneficiary, after deducting therefrom the costs of suit and a reasonable
attorney’s fee, shall refund to the United States the amount of compensation paid by the United
States and credit any surplus on future payments of compensation payable to her for the same

3

5 U.S.C. § 8103(a).

4

20 C.F.R. § 10.335.

5

Id. at § 10.802(a).

6

Id. at § 10.802(a)(2).

7

Id. at § 10.802(d).

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injury. If compensation has not been paid to the beneficiary, she shall credit the money or
property on compensation payable to her by the United States for the same injury.8
After the refund owed to the United States is calculated, FECA beneficiary retains any
surplus remaining and this amount is credited, dollar for dollar, against future compensation for
the same injury. The Office will resume the payment of compensation only after FECA
beneficiary has been awarded compensation which exceeds the amount of the surplus.9
Where a beneficiary has received a third-party recovery resulting in a surplus,
compensation payments are calculated and continue to be charged against the surplus, as are
medical expenses that have been paid by the claimant and submitted for reimbursement.
Claimants should be encouraged to submit reimbursement requests for medical expenses as they
are incurred, even though the amounts paid for such expenses will result in reduction of the
surplus, rather than actual payment of additional benefits.10
There are no provisions in the Act or the regulations for payment to an injured employee
of medical and other expenses incurred but not actually paid by the employee.11 Where private
insurance pays for all medical expenses incurred with respect to the work injury, payment of
additional benefits under section 8103 would result in a windfall for the employee and such is
not the intent of the Act.12
ANALYSIS
Appellant’s position that the Office should reduce her third-party surplus is, for all
practical purposes, a claim for additional compensation under the Act.13 The Office’s
February 22, 2007 decision denying the requested reduction is a final decision that the Board has
jurisdiction to review.14 The Board has no jurisdiction to determine whether the Office must
reimburse appellant’s private health insurance or Medicare for the insurance benefits she
received. That is a matter between BlueCross BlueShield and Medicare on the one hand and the

8

5 U.S.C. § 8132; see David R. Gilmer, 34 ECAB 1342, 1346 (1983) (the principle underlying the obligation of
an employee to reimburse the employer for its compensation outlay once a recovery is made against the responsible
tortfeasor is to prevent a double recovery by the employee).
9

20 C.F.R. § 711.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, FECA Third-Party Subrogation Guidelines, Chapter
2.1100.10.b(3) (March 2006).
11

Anna Palestro (Vincent Palestro), 15 ECAB 595 (1964).

12

Jerrold L. Hudson, 33 ECAB 1095 (1982). See generally 6 Arthur Larson & Lex K. Larson Larson’s Workers’
Compensation Law Chapter 110 (May 2000) (the theory of third-party actions and the policy of avoiding double
recovery).
13

Harry E. Schnackenberg, 30 ECAB 887, 890 (1979).

14

20 C.F.R. § 501.2(c) (the Board has jurisdiction to consider and decide appeals from the final decision of the
Office in any case arising under the Act).

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Office on the other. It does not involve a determination with respect to “claims of employees.”15
The Board’s jurisdiction extends only to appellant’s claim that compensation is payable to her
for certain medical expenses, thereby warranting a reduction in her third-party surplus.
Section 8132 of the Act requires appellant “to credit any surplus on future payments of
compensation that are payable” to her for the same injury. The question, therefore, is whether
compensation is payable under section 8103 of the Act for the medical expenses that were paid
by appellant’s private health insurance or by Medicare.
The law on this point is settled. There are no provisions in the Act or the regulations for
payment to an injured employee of medical and other expenses incurred but not actually paid by
the employee. In the case of Anna Palestro (Vincent Palestro)16 the Board interpreted the
regulatory language “paid by an injured employee” to mean actually paid by the employee, not
by private insurance. Where BlueCross BlueShield, the deceased husband’s insurance carrier,
paid a $411.68 hospital charge, the Board found that appellant was not entitled to reimbursement
of this amount by the Office, as neither she nor the deceased employee paid the charge. In the
case of Jerrold L. Hudson,17 where private insurance reimbursed the claimant for $5,287.78 of
his medical expenses, which totaled $6,280.72, the Board found that the Office properly
reimbursed the claimant only for the balance of $992.94, which the employee paid.
Under the federal regulations implementing the Act, when it comes to determining
whether “an employee has paid bills” for medical, surgical or dental services, supplies or
appliances due to an injury sustained in the performance of duty18 or whether the provider received
payment for the service “from the employee,”19 the Office will not reimburse an employee for
medical expenses paid by the employee’s private health insurance or by Medicare. Office
procedures indicating that medical expenses will be charged against the surplus if they have been
paid by the claimant are consistent with the Board’s interpretation of the implementing
regulations.
Appellant makes no distinction between herself and her private health insurance, but the
distinction must be made to prevent a windfall to her from the Employees’ Compensation Fund.
To the extent that insurance discharges her liability for medical expenses incurred, she is made
whole. If the Office were then to send her a check for the same sum that BlueCross BlueShield
and Medicare paid to her health care providers, she would be enriched, which is not the intent of
the Act. Indeed, appellant would find herself equally enriched by a reduction of her third-party
surplus, not because she received an actual payment of additional benefits, but because her
liability to the United States under section 8132 of the Act would be reduced by the amount of
compensation payable. It is only when the claimant makes the payment herself that she is
15

5 U.S.C. § 8149; Glenn E. Erickson, 25 ECAB 9, 16 (1973).

16

Supra note 11.

17

Supra note 12.

18

See supra text accompanying note 5.

19

See supra text accompanying note 6.

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eligible for reimbursement of those medical expenses or for a reduction of her third-party
surplus.
Appellant’s attorney argued that if appellant had submitted her after-incurred medical
bills to the Office for payment, they would have been denied and used to reduce her surplus.
Whether the Office would have denied those bills is a matter of speculation. The Office has
broad discretion under section 8103 in approving services provided under the Act.20 Further, the
Office will not reduce a third-party surplus for medical bills that are denied. Again, section 8132
of the Act requires appellant to credit any surplus on future payments of compensation that are
“payable” to her for the same injury. (Emphasis in the original.) So the Office will reduce her
surplus for medical expenses only when it determines, in its discretion, that compensation is
payable under section 8103.
The Board will affirm the Office’s February 22, 2007 decision denying a reduction in
appellant’s third-party surplus for medical expenses paid by her private health insurance or by
Medicare. Because appellant did not make these payments herself, she is not eligible for
reimbursement. And because compensation is not payable to her for these expenses, her thirdparty surplus is not credited under section 8132 of the Act.
CONCLUSION
The Board finds that compensation is not payable for the medical expenses that were paid
by appellant’s private health insurance or by Medicare. The Office properly denied the
requested reduction of her third-party surplus.

20

Daniel Wietchy, 34 ECAB 670, 672 (1983).

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ORDER
IT IS HEREBY ORDERED THAT the February 22, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 20, 2008
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEFENSE AGENCIES, DECA -- SOUTHWEST
REGION, Great Lakes, IL, Employer
__________________________________________

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

Docket No. 16-0088
Issued: June 10, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On October 19, 2015 appellant filed a timely appeal from an August 19, 2015 merit
decision and a September 18, 2015 nonmerit 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 the case.
ISSUES
The issues are: (1) whether appellant has established eligibility for continuation of pay;
and; (2) whether OWCP properly denied merit review of the claim pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On April 16, 2015 appellant, then a 56-year-old store worker, filed a traumatic injury
claim (Form CA-1) alleging that he felt a sharp pain in his back while unloading a produce

1

5 U.S.C. § 8101 et seq.

delivery truck on December 12, 2013, which involved continuous lifting of numerous boxes
weighing from 40 to 75 pounds.2
In support of his claim, appellant submitted a February 6, 2015 medical report wherein
Dr. Z. Mark Hongs, a physiatrist, noted that appellant sustained an employment-related low back
injury on November 11, 1993,3 and that he had recurrent low back, right mid back, and right hip
pain after he unloaded a truck for three days lifting 40 to 70 multiple pound boxes on
December 12, 2013. Dr. Hongs diagnosed lumbar back sprain and noted that he also suspected
lumbar spondylosis secondary to multiple recurrent lumbar strain.
On August 19, 2015 OWCP accepted appellant’s traumatic injury claim for a sprain of
the lumbar region of the back.
In a separate decision dated August 19, 2015, OWCP determined that appellant was not
entitled to continuation of pay for any absence from work for the period December 13, 2013 to
January 26, 2014. It determined that, based on Dr. Hongs’ report, appellant’s injury occurred
over a period of three days and not during one work shift, and therefore his claim was for an
occupational disease or illness, not for a traumatic injury.
On August 19, 2015 appellant requested reconsideration. He argued that he was injured
during one work shift on the day of December 12, 2013.
By decision dated September 18, 2015, OWCP denied reconsideration without
considering the merits of the claim.
LEGAL PRECEDENT -- ISSUE 1
Section 8118(a) of FECA authorizes continuation of pay, not to exceed 45 days, to an
employee who has filed a claim for a period of wage loss due to a traumatic injury with his or her
immediate superior on a form approved by the Secretary of Labor within the time specified in
section 8122(a)(2) of this title.4 This latter section provides that written notice of injury shall be
given within 30 days.5 The context of section 8122 makes clear that this means within 30 days
of the injury.6
OWCP regulations provide, in pertinent part, that to be eligible for continuation of pay,
an employee must: (1) have a traumatic injury which is job related and the cause of the disability
2

On August 8, 2014 appellant had filed a recurrence of his accepted November 11, 1997 injury, as of
December 12, 2013. In an internal e-mail dated August 11, 2014, a representative from the Injury Compensation
Department at the employing establishment noted that appellant’s claim should be filed as a traumatic injury claim
as he was describing a new injury.
3

The record indicates that appellant’s previous employment injury occurred in November 1997, not 1993.

4

Id. at § 8118(a).

5

Id. at § 8122(a)(2).

6

Robert M. Kimzey, 40 ECAB 762, 763-64 (1989); Myra Lenburg, 36 ECAB 487, 489 (1985).

2

and/or the cause of lost time is due to the need for medical examination and treatment; (2) file a
Form CA-1 within 30 days of the date of the injury (but if that form is not available, using
another form would not alone preclude receipt); and (3) begin losing time from work due to the
traumatic injury within 45 days of the injury.7
The employee must provide a written report on a Form CA-1 to the employing
establishment within 30 days of the injury.8 OWCP’s procedures provide that another OWCPapproved form, such as a CA-2, CA-2a, or CA-7, which contain words of claim, can be used to
satisfy timely filing requirements.9
The Board has held that section 8122(d)(3) of FECA,10 which allows OWCP to excuse
failure to comply with the time limitation provision for filing a claim for compensation because
of exceptional circumstances, is not applicable to section 8118(a), which sets forth the filing
requirements for continuation of pay. Thus, there is no provision in the law for excusing an
employee’s failure to file a claim within 30 days of the employment injury.11
ANALYSIS -- ISSUE 1
OWCP denied appellant’s claim for continuation of pay as it found that appellant’s claim
was actually for an occupational disease claim and not for a traumatic injury. A traumatic injury
refers to injury caused by a specific event or incident or series of incidents occurring within a
single workday or work shift, whereas an occupational disease refers to an injury produced by
employment over a period longer than a single workday or shift.12
OWCP based its conclusion that appellant’s claim was an occupational disease claim on a
single statement in Dr. Hongs’ report of February 6, 2015 wherein Dr. Hongs noted that on
December 12, 2013 appellant came into his office with recurrent pain after he unloaded a truck
for three days, lifting multiple boxes weighing 40 to 70 pounds. However, appellant has
repeatedly stated that the injury occurred on one day, i.e., December 12, 2013. On August 8,
2014 appellant filed a claim for a recurrence wherein he alleged that on December 12, 2013, after
returning to work from another injury, he was loading boxes when he felt a sharp pain in his
back. In an internal memorandum of August 11, 2014, a representative of the employing
establishment noted that appellant was actually describing a new injury, and asked that
appellant’s supervisor be advised that appellant should file a Form CA-1 for a traumatic injury.
On April 16, 2015 appellant filed a traumatic injury claim and again alleged that he felt a sharp
7

20 C.F.R. § 10.205(a)(1-3). See also J.M., Docket No. 09-1563 (issued February 26, 2010).

8

Id. at § 10.210(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Continuation of Pay and Initial Payments, Chapter
2.807.5(b) (June 2012).
10

5 U.S.C. § 8122(d)(3).

11

Dodge Osborne, 44 ECAB 849, 855 (1993).

12

20 C.F.R. §§ 10.5(q), ee; Brady L. Fowler, 44 ECAB 343 351 (1992).

3

pain in his back on December 12, 2013 while continuously lifting numerous boxes weighing
from 40 to 75 pounds. On August 19, 2015 OWCP accepted appellant’s claim for a traumatic
injury that occurred on December 12, 2013.
An employee’s statement 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
Appellant has consistently alleged that he was injured during one work shift on
December 12, 2013. Appellant’s statement that he sustained a traumatic injury is consistent with
the employing establishment’s statement in its August 11, 2014 internal memorandum that
appellant experienced a traumatic injury. It is also consistent with OWCP’s August 19, 2015
decision accepting appellant’s claim for a traumatic injury. Appellant’s statements are not
refuted by the brief and vague account in Dr. Hongs’ report. Dr. Hongs was not at the site of the
employment incident; he was reporting as to what he recalled appellant told him occurred over
one year prior to his report. Appellant has routinely described an employment incident that
occurred over the course of one day. Accordingly, OWCP improperly determined that
appellant’s claim was a claim for an occupational disease.
However, the Board finds that appellant’s claim for continuation of pay must be denied.
Appellant filed his traumatic injury claim on April 16, 2015, more than 30 days after his stated
injury date of December 12, 2013. Accordingly, the claim was not filed within 30 days of the
injury. Although appellant previously filed a claim for recurrence on August 8, 2014, this claim
was also not filed within 30 days of the December 12, 2013 injury. Accordingly, the Board finds
that no claim with regard to the December 12, 2013 alleged injury was filed within 30 days of
the injury, as required in sections 8118(a) and 8122(a)(2) of FECA. There is no provision in
FECA for excusing a late filing for continuation of pay.14 Accordingly, the Board finds that
appellant is not entitled to continuation of pay because he failed to timely file his claim within 30
days, as required by FECA.15 The Board hereby modifies OWCP’s decision to reflect that
continuation of pay is properly denied under the timeliness standard.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,16
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.17 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
13

M.L., Docket No. 1600187 (issued March 3, 2016); see also Gregory J. Reser, 57 ECAB 277 (2005).

14

E.S., Docket No. 15-1800 (issued December 10, 2015).

15

L.E., Docket No. 15-1761 (issued December 2, 2015).

16

Supra note 1. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
17

20 C.F.R. § 10.606(b)(2).

4

application for review within one year of the date of that decision.18 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.19
ANALYSIS -- ISSUE 2
Appellant’s request for continuation of pay was denied on statutory grounds. The only
evidence submitted on reconsideration was a statement by appellant that he was injured as a
result of his work activities on December 12, 2013, not over three days.
Appellant did not submit relevant and pertinent new evidence with his request for
reconsideration. Furthermore, he did not show that OWCP erroneously applied or interpreted a
specific point of law, nor did he advance a relevant legal argument not previously considered by
OWCP. As previously noted, appellant’s request for continuation of pay was untimely filed and
did not meet the statutory requirement for continuation of pay. His own belief that he was
entitled to continuation of pay did not require reopening of the claim.
Because appellant failed to meet one of the standards enumerated under section 8128(a)
of FECA, he was not entitled to further merit review of the claim.
Appellant may submit new evidence or argument as part of a formal 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 established eligibility for continuation of pay. The
Board further finds that OWCP properly refused to reopen appellant’s case for further review of
the merits under 5 U.S.C. § 8128(a).

18

Id. at § 10.607(a).

19

Id. at § 10.608(b).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 18, 2015 is affirmed. The decision of OWCP dated
August 19, 2015 is affirmed, as modified.
Issued: June 10, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________

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

Docket No. 13-224
Issued: June 12, 2013

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 November 7, 2012 appellant, through her attorney, filed a timely appeal from a
June 18, 2012 merit decision and an October 10, 2012 nonmerit 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.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an injury in the performance of duty on or about October 10, 2011, as alleged; and
(2) whether OWCP properly refused to reopen appellant’s case for further reconsideration of the
merits pursuant to 5 U.S.C. § 8128(a).
On appeal, counsel contends that OWCP’s decisions were contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 4, 2012 appellant, then a 54-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that she injured the tendons in her left foot as a result of slipping and
falling down steps while delivering mail in the performance of duty on or about
October 10, 2011. The employing establishment controverted her claim in letters dated May 9
and 10, 2012.
By letter dated May 14, 2012, OWCP notified appellant of the deficiencies of her claim.
It allotted 30 days for the submission of additional factual and medical evidence.
Appellant submitted an August 12, 2011 symptom questionnaire noting that she had a
sore left foot due to falling down stairs two months prior. She also submitted a statement dated
June 2, 2012 from a coworker who recalled having a discussion with her a year prior, after
seeing her limp on the workroom floor. The coworker stated that appellant told him she had
slipped on stairs while delivering mail.
In a September 13, 2011 report, Dr. Rodney J. Stanley, a Board-certified orthopedic
surgeon, diagnosed foot pain and plantar fasciitis of the left foot. He noted that appellant had a
history of left foot and heel pain after a fall in April 2011.
By decision dated June 18, 2012, OWCP denied the claim on the basis that the evidence
submitted failed to establish that the injury occurred at the time, place and in the manner alleged.
On June 21, 2012 appellant, through her attorney, requested reconsideration. An
April 10, 2012 symptom questionnaire indicated that she “fell out back steps (missed last step)”
on March 21, 2012. Appellant also submitted reports dated October 24, 2011 through July 26,
2012 from Dr. Kurt Massey, a podiatrist, who obtained a history that she slipped and fell down
three stairs and diagnosed left plantar fasciitis and left peroneal tendinitis. In a September 12,
2012 report, Dr. Massey stated that on October 24, 2011 she reported that she had recently fallen
down three stairs and injured her heel. On June 25, 2012 appellant reported that her ankle was
becoming painful and a magnetic resonance imaging (MRI) scan was obtained. It showed a
cystic area in the ankle bone called the talus. Dr. Massey explained that this abnormal area of
bone was typically caused by an ankle sprain. He stated that the most recent sprain had occurred
in October 2011. Therefore, Dr. Massey attributed appellant’s talus cyst to the fall down the
stairs, “which occurred at home.”
By decision dated October 10, 2012, OWCP denied appellant’s request for
reconsideration of the merits finding that she did not submit pertinent new and relevant evidence
and did not show that OWCP erroneously applied or interpreted a point of law not previously
considered by OWCP.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
2

5 U.S.C. §§ 8101-8193.

2

States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury3 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.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
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.6 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. The
employee has the burden of establishing the occurrence of an alleged injury at the time, place
and in the manner alleged by a preponderance of the evidence.7 An employee has not met this
burden when there are such inconsistencies in the evidence that cast serious doubt upon the
validity of the claim. However, an employee’s statement alleging that an injury occurred at a
given time and in a given manner is of great probative value and will stand unless refuted by
strong and persuasive evidence.8
ANALYSIS -- ISSUE 1
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a left foot injury as a result of slipping and falling down steps while delivering mail in
the performance of duty. As noted above, the first element of fact of injury requires that
3

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
4

See T.H., 59 ECAB 388 (2008). See Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).
5

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

6

See Mary Jo Coppolino, 43 ECAB 988 (1992).

7

See R.T. Docket No. 08-408 (issued December 16, 2008).

8

See Allen C. Hundley, 53 ECAB 551 (2002); Earl David Seal, 49 ECAB 152 (1997).

3

appellant submit evidence establishing that an incident occurred at the time, place and in the
manner alleged.
The evidence is insufficient to establish that appellant fell while in the performance of
duty on or about October 10, 2011. Appellant did not report any witnesses to the event. She
submitted a June 2, 2012 statement from a coworker recounting a conversation regarding the
incident. However, he merely reiterated appellant’s statement. As appellant was alone at the
time the incident occurred and there were no eyewitnesses, her statement alleging that an injury
occurred at a given time and in a given manner is of great probative value;9 but there are such
inconsistencies in the evidence to cast doubt upon the validity of her claim.
There are unresolved discrepancies regarding the date on which the alleged employment
incident occurred. On the claim form, appellant indicated that she slipped and fell on or about
October 10, 2011. She submitted an August 12, 2011 symptom questionnaire indicating that she
had a sore left foot due to falling down stairs two months prior, which would have been in
June 2011. On September 13, 2011 Dr. Stanley listed a history of left foot and heel pain after a
fall in April 2011. These accounts are contradictory in nature. Appellant did not provide any
explanation as to why she contradicted her own statement or why Dr. Stanley’s report was
erroneous. The Board finds that the evidence of record is insufficient to establish a traumatic
incident, as alleged.
On appeal, counsel contends that OWCP’s decisions were contrary to fact and law.
Appellant’s statements and Dr. Stanley’s report are inconsistent with the surrounding
facts and circumstances.10 She has not reconciled these contradictions. The evidence submitted
contains such inconsistencies as to cast doubt on the validity of appellant’s claim. Accordingly,
the Board finds that appellant has not met her burden of proof to establish that she experienced
an employment-related incident at the time, place and in the manner alleged.11
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review

9

Id.

10

Cf. S.A., Docket No. 10-1786 (issued May 4, 2011) (where the Board found that appellant established that the
incident occurred as alleged, as there were no inconsistent statements from appellant or other evidence refuting the
occurrence of the alleged incident).
11

Given that appellant did not establish an employment incident, further consideration of the medical evidence is
unnecessary. See Bonnie A. Contreras, 57 ECAB 364, 368 n.10 (2006).

4

an award for or against compensation.12 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).13
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.14 To be entitled to a merit review
of an OWCP 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.15 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.16
ANALYSIS -- ISSUE 2
In support of her June 21, 2012 reconsideration request, appellant submitted reports from
Dr. Massey dated October 24, 2011 through September 12, 2012. Although Dr. Massey reported
that she fell down stairs and injured her heel on October 24, 2011, he indicated that the fall
occurred at home. The Board finds that submission of these documents did not require
reopening appellant’s case for merit review as they failed to support that the October 10, 2011
incident occurred at the time, place and in the manner alleged, which was the issue before
OWCP. Therefore, they do not constitute relevant and pertinent new evidence and are not
sufficient to require OWCP to reopen the claim for consideration of the merits.
Appellant also submitted an April 10, 2012 symptom questionnaire indicating that she
“fell out back steps (missed last step)” on March 21, 2012. The Board finds that submission of
this document did not require reopening her case for merit review. OWCP denied appellant’s
claim based on the lack of supportive factual evidence establishing that the incident occurred at
the time, place and in the manner alleged. This document does not support that she sustained an
injury in the performance of duty on or around October 10, 2011. Therefore, the submission of
this document is insufficient to require OWCP to reopen the claim for consideration of the
merits.
On appeal, counsel contends that OWCP’s decisions were contrary to fact and law. For
the reasons stated above, the Board finds the attorney’s argument is not substantiated.

12

Supra note 1. Under section 8128 of FECA, the 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

See Annette Louise, 54 ECAB 783, 789-90 (2003).

14

20 C.F.R. § 10.606(b)(2). See A.L., Docket No. 08-1730 (issued March 16, 2009).

15

20 C.F.R. § 10.607(a).

16

Id. at § 10.608(b).

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty on or around October 10, 2011, as alleged. The
Board further finds that OWCP properly refused to reopen her case for further reconsideration of
the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 10 and June 18, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 12, 2013
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Las Vegas, NV, Employer
__________________________________________

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

Docket No. 15-1692
Issued: January 4, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 4, 2015 appellant, through counsel, filed a timely appeal from a June 15, 2015
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 established any ratable left lower extremity impairment
related to his accepted injuries entitling him to a schedule award.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that appellant, a 57-year-old tractor trailer operator, sustained a left knee
strain and left knee contusion on May 24, 2008 due to slipping off a step while exiting a truck in
the performance of duty. Appellant received appropriate disability compensation and medical
benefits. He returned to light duty effective September 25, 2009.
In December 2009 appellant’s treating physician, Dr. Randall Yee, a Board-certified
orthopedic surgeon, requested authorization to perform a left total knee arthroplasty as appellant
still had pain from his employment injury which required surgical intervention.
On January 20, 2010 OWCP referred appellant to Dr. Aubrey Swartz, a Board-certified
orthopedic surgeon, for a second opinion evaluation to determine whether the surgery was
causally related to his accepted conditions. In a February 22, 2010 report, Dr. Swartz found that
appellant’s complex medial meniscus tear was primarily a result of the May 24, 2008
employment injury. He asserted that there had also been further acceleration and permanent
aggravation of the arthritic process in the left knee. Dr. Swartz concluded that appellant’s
employment-related conditions were still present and had not resolved. He determined, however,
that appellant’s need for a left total knee arthroplasty was not causally related to the May 24,
2008 employment injury as it was instead related to the natural progression of his osteoarthritis.
On September 27, 2010 OWCP found a conflict in the medical opinion evidence
regarding appellant’s request for surgery and referred appellant to Dr. Anthony Serfustini, a
Board-certified orthopedic surgeon, to resolve the conflict. In a November 1, 2010 report,
Dr. Serfustini conducted an impartial medical examination and found no objective evidence of
permanent aggravation to his preexisting knee condition as there were no alternations of
anatomical structures that would denote a permanent aggravation, no evidence of any fracture,
subluxation, or dislocation to the knee, and x-ray findings of advanced osteoarthritis especially
noteworthy for the medial femoral compartment, and less so to the lateral compartment. He
concluded that appellant had no residuals from his employment injury and what he did suffer
from was ongoing osteoarthritis which had been slowly progressing over the past 10 years.
Dr. Serfustini opined that appellant would benefit from joint replacement for both knees, but
explained that this would treat his underlying and preexisting osteoarthritis condition which had
no causal relationship to the May 24, 2008 employment injury.
Appellant nonetheless underwent total left knee arthroplasty on February 28, 2011.
On August 29, 2012 appellant, through counsel, filed a claim for a schedule award (Form
CA-7).
In a September 13, 2012 letter, OWCP notified appellant of the deficiencies of his claim
and requested a medical report from his physician assessing his permanent impairment based on
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter, A.M.A., Guides) and establishing that he had reached maximum
medical improvement. Appellant did not respond.

2

By decision dated February 21, 2013, OWCP denied appellant’s schedule award claim as
the medical evidence of record did not establish a ratable impairment of a scheduled member.
On February 25, 2013 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative.
Appellant submitted a March 28, 2013 report from Dr. Demitri Adarmes, a Boardcertified physiatrist and internist, in support of his schedule award claim. Dr. Adarmes found
that a March 27, 2013 electromyography and nerve conduction studies had normal results with
no evidence of “an acute lumbosacral plexopathy, entrapment, or peripheral neuropathy in the
lower limbs.” He determined that appellant had reached maximum medical improvement for his
left knee as of February 28, 2012, one year from the date of his surgery. Appellant reported “no
trouble with the left knee” and stated that it gave out from time to time especially with pivoting,
but he did not use a cane or orthotics.
Upon examination, Dr. Adarmes found normal alignment and no varus or valgus
deviation of the left leg. Crepitation was present with passive range of motion and there was a
mild effusion of the knee. Appellant had a negative Lachman’s test and a negative
anterior/posterior drawer test and no laxity with varus and valgus stress.
Dr. Adarmes opined that appellant had two percent permanent impairment of the left leg
for knee sprain based on Table 16-3,2 page 509, of the A.M.A., Guides. He assigned a grade
modifier of 1 for Functional History (GMFH) based on mild problems with gait derangement and
appellant’s answers to the American Academy of Orthopedic Surgeons (AAOS) lower limb
questionnaire. Dr. Adarmes assigned a grade modifier of 1 for Physical Examination (GMPE)
based on palpatory (crepitation) findings, and found that a grade modifier for Clinical Studies
(GMCS) was not applicable in this case. Using the net adjustment formula of (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX), he found that (1-1) + (1-1) + (n/a) resulted in a net grade
modifier of 0, resulting in an impairment class 1, default grade C, equaling two percent
permanent impairment of the left leg. Dr. Adarmes further opined that appellant had 59 percent
permanent impairment of the left lower extremity for his left total knee replacement. He applied
Table 16-3, p. 511, noting that the default impairment was 67 percent for class 4. Dr. Adarmes
then assigned a grade modifier of 1 for functional history, a grade modifier of 2 for physical
examination, and noted clinical studies as “confirmatory.” When applying the net adjustment
formula, he concluded that there was a net adjustment of -2, which was the maximum allowed,
yielding 59 percent permanent impairment for the left total knee replacement.
On June 12, 2013 a telephonic hearing was held before an OWCP hearing representative.
By decision dated September 5, 2013, OWCP’s hearing representative set aside the prior
decision and remanded the case for further development regarding the extent and degree of any
impairment warranting a schedule award.

2

Table 16-3, pages 509-11 of the sixth edition of the A.M.A., Guides is entitled Knee Regional Grid -- Lower
Extremity Impairments.

3

On September 25, 2013 Dr. Leonard Simpson, an OWCP medical adviser, reviewed the
medical evidence and found that Dr. Adarmes’ March 28, 2013 report was not sufficient to
establish two percent permanent impairment of the left leg based on appellant’s accepted left
knee conditions. Dr. Simpson opined that according to Table 16-3 of the A.M.A., Guides “there
would be a [c]lass 0 [to] 0 percent impairment of the left lower extremity due to any ‘sequelae’
following the sprain/contusion.” He explained that no significant objective abnormal findings on
examination or radiographic studies at maximum medical improvement would result in a class 0,
equaling a zero percent impairment for the accepted left knee sprain and contusion. Dr. Simpson
further indicated that Dr. Adarmes’ impairment rating for the left total knee replacement was not
applicable as the preexisting osteoarthritis condition was not accepted by OWCP and the related
surgery was not authorized by OWCP. He found that appellant had no significant objective
abnormal findings of muscle or tendon injury and determined that he had no ratable impairment
according to the sixth edition of the A.M.A., Guides.
By decision dated August 13, 2014, OWCP denied appellant’s schedule award claim on
the basis that the medical evidence of record did not establish a ratable impairment of a
scheduled member.
On August 20, 2014 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative. A telephonic hearing was held before an OWCP hearing
representative on March 23, 2015.
On March 23, 2015 appellant’s counsel argued that OWCP should expand the claim to
accept the following conditions based on the second opinion report of Dr. Swartz: complex
medial meniscus tear of the left knee and left knee osteoarthritis.
By decision dated June 15, 2015, OWCP’s hearing representative affirmed the
August 13, 2014 denial of a schedule award. He found that Dr. Swartz’ February 22, 2010 report
did not support additional employment-related conditions and noted that since the left knee was
replaced, the conditions no longer existed, and could not be rated for permanent impairment.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim, including that he or she sustained an injury in the
performance of duty as alleged and that an employment injury contributed to the permanent
impairment for which schedule award compensation is alleged.3
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
3

See A.M., Docket No. 13-0964 (issued November 25, 2013) (where the employee claimed entitlement to a
schedule award for permanent impairment to the left lower extremity due to his employment-related lumbar
condition, the Board found that the medical evidence did not establish a ratable impairment to the lower extremity
resulting from his spinal condition and, therefore, denied his schedule award claim).
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

4

loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.7 It is well established that in determining the amount of a
schedule award for a member of the body that sustained an employment-related permanent
impairment, preexisting impairments of the body are to be included.8 A schedule award is not
payable under section 8107 of FECA for an impairment of the whole person.9
A schedule award is not payable for a member, function, or organ of the body not
specified in FECA or in the implementing regulations.10 As neither FECA nor the regulations
provide for the payment of a schedule award for the permanent loss of use of the back or spine,
no claimant is entitled to such an award.11 However, as FECA makes provision for the
extremities, a claimant may be entitled to a schedule award for permanent impairment to an
extremity even though the cause of the impairment originates in the spine, if the medical
evidence establishes impairment as a result of the employment injury.12
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, 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 claimant.13

6

Id.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013) and Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
8

See Raymond E. Gwynn, 35 ECAB 247, 253 (1983); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700.3(a)(3) (January 2010). This portion of OWCP’s procedures provide that the
impairment rating of a given scheduled member should include any preexisting permanent impairment of the same
member or function.
9

See Gordon G. McNeill, 42 ECAB 140, 145 (1990).

10

See Tania R. Keka, 55 ECAB 354 (2004).

11

See id. FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

12

See George E. Williams, 44 ECAB 530 (1993). In 1966, amendments to FECA modified the schedule award
provision to provide for an award for permanent impairment to a member of the body covered by the schedule
regardless of whether the cause of the impairment originated in a scheduled or nonscheduled member.
13

See Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

5

ANALYSIS
The Board finds that appellant has not established any ratable left lower extremity
impairment related to his accepted injuries entitling him to a schedule award. The medical
evidence fails to establish that appellant sustained any permanent impairment to a scheduled
member of the body causally related to the May 24, 2008 employment injury. OWCP accepted
appellant’s claim for a left knee strain and left knee contusion. However, the medical evidence
of record does not establish, nor has OWCP accepted that he sustained permanent impairment to
his left lower extremity due to the accepted left knee injuries.
OWCP properly relied on a September 25, 2013 report from Dr. Simpson, an OWCP
medical adviser, who concluded that appellant had no permanent impairment of a scheduled
member under the sixth edition of the A.M.A., Guides. He reviewed the March 28, 2013
assessment of Dr. Adarmes, appellant’s attending physician, who found no evidence of any
consistent combination of subjective and objective findings revealing any residuals of the left
knee strain or contusion as to diagnosis or range of motion. Dr. Adarmes did not properly apply
the A.M.A., Guides when computing two percent permanent impairment of the left leg as his
report was not sufficient to establish significant objective abnormal findings of muscle or tendon
injury. He had found that a March 27, 2013 electromyography and nerve conduction studies had
normal results with no evidence of “an acute lumbosacral plexopathy, entrapment, or peripheral
neuropathy in the lower limbs.” Dr. Adarmes determined that appellant had reached maximum
medical improvement for his left knee as of February 28, 2012, one year from the date of his
surgery. Appellant reported “no trouble with the left knee.” Upon examination, Dr. Adarmes
found normal alignment, no varus or valgus deviation of the left leg, and no laxity with varus and
valgus stress. Appellant had a negative Lachman’s test and a negative anterior/posterior drawer
test.
Dr. Simpson properly reviewed the medical record and found no basis for an impairment
to a scheduled member of the body.14 He determined that Dr. Adarmes’ March 28, 2013 report
was not sufficient to establish two percent permanent impairment of the left lower extremity
based on appellant’s accepted left knee conditions of contusion and strain. Dr. Simpson
explained that the findings of no significant objective abnormal findings on examination or
radiographic studies at maximum medical improvement would result in zero percent impairment
for the accepted left knee sprain and contusion.15 Dr. Simpson further indicated that
Dr. Adarmes’ impairment rating for the left total knee replacement was not applicable as the
preexisting osteoarthritis condition had not been accepted by OWCP and the related surgery had
not been authorized by OWCP. The Board finds that OWCP’s medical adviser properly
concluded that there was no medical evidence of impairment to the left leg resulting from the
accepted conditions and that, therefore, there was no ratable impairment of a scheduled member
under the sixth edition of the A.M.A., Guides.

14

The Board notes that it is appropriate for an OWCP medical adviser to review the clinical findings of the
treating physician to determine the permanent impairment. See J.H., Docket No. 13-0693 (issued September 16,
2013); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3 (January 2010).
15

A.M.A., Guides, Table 16-3.

6

Appellant failed to submit sufficient medical evidence to establish permanent impairment
to a specified member, organ, or function of the body listed in FECA or its implementing
regulations as a result of his employment-related accepted left knee strain and contusion.
Appellant may request a schedule award or an increased schedule award based on
evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established permanent impairment related to his
accepted injuries warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the June 15, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 4, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jefferson, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0928
Issued: September 13, 2019

Case Submitted on the Record

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

JURISDICTION
On March 27, 2019 appellant, through counsel, filed a timely appeal from a January 24,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a right shoulder
injury causally related to the accepted October 26, 2017 employment incident.
FACTUAL HISTORY
On October 26, 2017 appellant, then a 52-year-old rural mail carrier, filed a traumatic
injury claim (Form CA-1) alleging that she felt a sharp pulling sensation and pain in her right
shoulder and armpit while turning a heavy package on its end in order to scan it while in the
performance of duty. Appellant stopped work on October 26, 2017.3
Appellant submitted an authorization for examination and/or treatment form (Form CA16) completed on October 26, 2017 by Stephen Burton, a physician assistant, who listed the history
of injury on that date as a “reinjury” following a February 2017 right shoulder surgery. Mr. Burton
checked a box marked “Yes” to indicate that appellant’s right shoulder condition was caused or
aggravated by the “employment activity described.”4 He indicated that appellant was unable to
work. In an October 26, 2017 disability note, Mr. Burton advised that appellant was unable to
work for two weeks. Appellant also submitted medical evidence from a time prior to the
October 26, 2017 employment incident. In an August 17, 2017 work status note, Dr. Bradley C.
Register, a Board-certified orthopedic surgeon, indicated that appellant could return to her regular
full-time work on September 5, 2017.
In a November 6, 2017 development letter, OWCP requested that appellant submit
additional factual and medical evidence in support of her claim, including a physician’s opinion
supported by a medical explanation as to how the alleged October 26, 2017 employment incident
had caused or aggravated a medical condition. It afforded appellant 30 days to respond.
In response, appellant submitted a November 15, 2017 statement in which she provided
further details of the alleged October 26, 2017 employment incident. She advised that in
February 2017 she underwent right shoulder surgery and that she subsequently returned to her
regular work. Appellant also submitted a November 9, 2017 work status note in which
Dr. Register advised that appellant could return to work on that date with restrictions including no
lifting more than five pounds.
By decision dated December 11, 2017, OWCP denied appellant’s claim finding that she
had not submitted evidence sufficient to establish the medical component of fact of injury. It also
found that the medical evidence of record did not contain a diagnosis of appellant’s condition.
3

On the reverse of the Form CA-1 appellant’s immediate supervisor challenged the claim asserting that the case
record did not contain a medical opinion explaining how the claimed injury was caused or aggravated by employment
factors. In an October 27, 2017 letter, a health and resource management official also advised that the employing
establishment was challenging the claim.
4

Mr. Burton provided a diagnosis code, which he identified as being derived from the tenth revision of the
International Classification of Diseases (ICD-10), but the diagnosis code does not correspond to any established ICD10 code. The Form CA-16 makes reference to Dr. Charles L. Ogburn, III, a Board-certified orthopedic surgeon, but
it is not counter-signed by him.

2

OWCP concluded, therefore, that the requirements had not been met to establish an injury as
defined by FECA.
On May 14, 2018 appellant requested reconsideration of the December 11, 2017 decision.
In an accompanying letter, she asserted that the package she turned on its end on October 26, 2017
weighed between 50 and 70 pounds.5
Appellant submitted a February 23, 2017 report in which Dr. Register described the right
shoulder surgery he performed on that date, including right shoulder arthroscopic rotator cuff
repair with bovine and Achilles tendon augmentations, arthroscopic biceps tenodesis, subacromial
compression, and distal clavicle excision.6
In a January 29, 2018 report, Dr. Register noted that appellant reported feeling a strain in
her right shoulder while lifting a package (weighing 50 to 70 pounds) at work on October 26, 2017.
He advised that appellant reported that she was recovering well from her February 23, 2017
surgery until her most recent injury on October 26, 2017. Dr. Register discussed his physical
examinations of appellant between November 9, 2017 and January 12, 2018, noting that she had
excellent range of motion in her right shoulder (with 4/5 strength upon external rotation), but also
exhibited moderate tenderness in the right posterior shoulder/right paraspinal musculature. He
noted that October 26, 2017 right shoulder x-rays showed evidence of prior surgery without
evidence of complication or new bony injury. Dr. Register indicated, “It is my opinion that her
work injury on [October 26, 2017] did cause a recurrence of these symptoms.” He maintained that
appellant was doing very well following her February 23, 2017 surgery until she felt a right
shoulder strain on October 26, 2017. Dr. Register indicated that she had been “having problems”
ever since that time.7
In an April 27, 2018 report, Dr. Register indicated that appellant had been performing fullduty work for approximately a month prior to her October 26, 2017 injury and was not
experiencing any problems during this period. He indicated, “Therefore, I do believe that this new
injury on October 26, 2017 lead [sic] to her new symptoms.”
By decision dated July 25, 2018, OWCP denied modification of its December 11, 2017
decision, noting that appellant had not submitted evidence sufficient to establish the medical
component of fact of injury.
On October 31, 2018 appellant, through counsel, requested reconsideration of the July 25,
2018 decision.
Appellant submitted a September 21, 2018 report from Dr. Register who noted that a
February 12, 2018 magnetic resonance imaging scan of the right shoulder showed a large articular
5

The record contains a report of termination of disability and/or payment (Form CA-3) showing that appellant
returned to work for the employing establishment on December 11, 2017.
6

There is no indication in the case record that this surgery was authorized by OWCP.

7

In a February 2, 2018 report, Dr. Register indicated that the injury appellant sustained on October 26, 2017 caused
her “new right posterior shoulder symptoms.”

3

surface partial tear of the posterior supraspinatus/infraspinatus which was located more posterior
to the repair location of the February 23, 2017 surgery. Dr. Register diagnosed unspecific rotator
cuff tear or rupture of the right shoulder and noted that this condition “looks to be a new injury.”
He advised that on July 12, 2018 he performed arthroscopic revision rotator cuff repair of the right
shoulder with arthroscopic lysis of adhesions of the glenohumeral joint.8 Dr. Register indicated,
“It is my opinion that this most recent surgery was necessitated by a tear to the posterior
supraspinatus and the anterior infraspinatus, which she most likely sustained on [October 26, 2017]
with a work injury.”
By decision dated January 24, 2019, OWCP affirmed its July 25, 2018 decision as modified
to reflect that appellant’s claim was now denied because she had not submitted medical evidence
sufficient to establish causal relationship between a diagnosed medical condition and the
October 26, 2017 employment incident.
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,9 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.10 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.11
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. 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.12 The second component is whether the employment incident caused a personal injury.13

8

The case record does not contain a report of the July 12, 2018 surgery and there is no indication that the surgery
was authorized by OWCP.
9

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
10
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
11

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).
12

B.P., Docket No. 16-1549 (issued January 18, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

13

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

4

Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, 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 incident.14
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.15
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right shoulder
injury causally related to the accepted October 26, 2017 employment incident.
Appellant submitted a January 29, 2018 report in which Dr. Register provided a brief
description of the October 26, 2017 employment incident and advised that appellant was
recovering well from her February 23, 2017 surgery until her most recent injury on
October 26, 2017. Dr. Register noted that, in late-2017 and early-2018, appellant exhibited
various right shoulder symptoms upon examination, including 4/5 strength upon external rotation
and moderate tenderness in the right posterior shoulder/right paraspinal musculature. He noted,
“It is my opinion that her work injury on [October 26, 2017] did cause a recurrence of these
symptoms.” In a February 2, 2018 report, Dr. Register indicated that the injury appellant sustained
on October 26, 2017 caused her “new right posterior shoulder symptoms.” On April 27, 2018 he
advised that she had been performing full-duty work for approximately a month prior to her
October 26, 2017 injury and was not experiencing any problems during this period. Dr. Register
posited that, therefore, appellant’s “new injury” on October 26, 2017 led to her “new symptoms.”
The Board finds that these reports have limited probative value with respect to appellant’s
claim that she sustained a right shoulder injury due to the October 26, 2017 employment incident.16
Dr. Register did not describe the October 26, 2017 employment incident in any notable detail or
explain the mechanism through which the incident could have caused or aggravated a diagnosed
medical condition. In these reports, he described various right shoulder symptoms that appellant
reported after October 26, 2017, but he did not diagnose a specific medical condition. The Board
has held that a report is of limited probative value regarding causal relationship if it does not
contain medical rationale explaining how an employment activity could have caused or aggravated
a medical condition.17 As noted, Dr. Register indicated that appellant was recovering well from her
February 23, 2017 surgery and only developed multiple right shoulder symptoms after the
October 26, 2017 incident. However, the Board has held that the fact that a condition manifests itself
or worsens during a period of employment or that work activities produce symptoms revelatory of
an underlying condition does not raise an inference of causal relationship between a claimed
14

S.S., Docket No. 18-1488 (issued March 11, 2019).

15

J.L., Docket No. 18-1804 (issued April 12, 2019).

16

The Board notes that OWCP accepted that on October 26, 2017 appellant felt pain in her right shoulder region
while turning a package (weighing 50 to 70 pounds) on its end.
17

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

5

condition and employment factors.18 For these reasons, Dr. Register’s January 29, February 2, and
April 27, 2018 reports are insufficient to establish appellant’s claim.
In a September 21, 2018 report, Dr. Register did, in fact, provide a diagnosis which he
related to the October 26, 2017 employment incident, i.e., unspecific rotator cuff tear or rupture of
the right shoulder as demonstrated by diagnostic testing.19 He advised that on July 12, 2018 he
performed a revision rotator cuff repair of the right shoulder and indicated that this surgery was
necessitated by the tear/rupture which appellant “most likely sustained” at work on
October 26, 2017. The Board has long held that medical opinions that are speculative or equivocal
in character have little probative value.20 Moreover, Dr. Register did not provide further
explanation of how the October 26, 2017 employment incident caused or contributed to such a
condition. His September 21, 2018 report contains a conclusory opinion without the necessary
rationale explaining how and why the employment incident was sufficient to result in the diagnosed
right shoulder tear/rupture. The Board has held that such an opinion is insufficient to meet a
claimant’s burden of proof to establish a claim.21
As the record does not contain a well-rationalized opinion establishing causal relationship
between appellant’s claimed medical condition and her accepted October 26, 2017 employment
incident, the Board finds that she has not met her burden of proof.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 her burden of proof to establish that she
sustained a right shoulder injury causally related to the accepted October 26, 2017 employment
incident.

18

J.S., Docket No. 18-0944 (issued November 20, 2018).

19
Dr. Register noted that this tear/rupture was located more posterior to the repair location of the February 23, 2017
surgery and indicated that the condition “looks to be a new injury.”
20

Z.B., Docket No. 17-1336 (issued January 10, 2019); T.M., Docket No. 08-0975 (issued February 6, 2009).

21

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

22
The case record contains an October 26, 2017 authorization for examination and/or treatment form (Form CA16) and an October 26, 2017 disability note completed by Mr. Burton, a physician assistant. However, under FECA,
the report of a nonphysician, including a physician assistant, does not constitute probative medical evidence. R.S.,
Docket No. 16-1303 (issued December 2, 2016). The Board further notes that, where an employing establishment
properly executes a Form CA-16 authorizing medical treatment related to a claim for a work injury, the form creates
a contractual obligation, which does not involve the employee directly, to pay for the cost of the examination/treatment
regardless of the action taken on the claim. See Tracy P. Spillane, 54 ECAB 608 (2003). The period for which
treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by
OWCP. See 20 C.F.R. § 10.300(c).

6

ORDER
IT IS HEREBY ORDERED THAT the January 24, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 13, 2019
Washington, DC

Christopher J. Godfrey, 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