United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Maspeth, NY, Employer
__________________________________________

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

Docket No. 20-1683
Issued: May 3, 2021

Case Submitted on the Record

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

JURISDICTION
On September 30, 2020 appellant, through counsel, filed a timely appeal from a June 16,
2020 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 left hand condition
causally related to the accepted April 14, 2018 employment incident.
FACTUAL HISTORY
On April 21, 2018 appellant, then a 36-year-old sales and service distribution clerk, filed a
traumatic injury claim (Form CA-1) alleging that on April 14, 2018 she injured her left hand under
the bone of her middle finger while in the performance of duty. She explained that she was
constantly picking up and throwing mail. The pain had been going on for a while, but appellant
continued to work. She stopped work on April 21, 2018.
In a personal statement of even date, appellant explained that she had been feeling pain
inside of her left hand middle finger bone since April 14, 2018. She started to feel the pain when
she picked up a box with her left hand, noting that she did not use her right hand because of a
previous injury.3 The pain went away for a week, but on April 21, 2018 appellant provided that
the pain returned when she went to pick up another box and tried to close a parcel.
In an April 22, 2018 medical note, Yara Hourteh, a physician assistant, recommended that
appellant remain out of work for two days.
In an April 27, 2018 letter, the employing establishment explained that appellant had a
previously accepted claim for a contusion of the right thumb and, based on her statement, she
began to favor her left hand to perform her employment duties. It requested that her claim be
treated as a consequential injury as opposed to a separate traumatic injury claim.
In a development letter dated May 2, 2018, OWCP advised appellant that it required
additional factual and medical evidence to establish her claim. It attached a questionnaire,
requesting that she provide a detailed description of the employment incident believed to have
contributed to her alleged injury, including a description of the exact medical condition she was
claiming. OWCP also requested that appellant submit a narrative medical report from her
physician, which contained a detailed description of findings and diagnoses, explaining how the
reported incident caused or aggravated her medical condition. It afforded her 30 days to respond.
In an April 22, 2018 medical report, Dr. Jamar Williams, Board-certified in family
medicine, evaluated appellant for left hand pain under her middle finger which she experienced at
work. He noted her employment duties involved constantly carrying boxes. In a diagnostic report
of even date, Dr. Sai-Chang Park, a Board-certified radiologist, performed an x-ray scan of
appellant’s left hand, finding no fracture or dislocation. On review of the x-ray scan, Dr. Williams
diagnosed finger pain.

3

Appellant previously filed a Form CA-1 on February 6, 2018 for a right thumb injury under OWCP File No.
xxxxxx265. On April 13, 2018 OWCP accepted her claim for a crushing injury of the right thumb and a contusion of
the right thumb.

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In a May 31, 2018 physical therapy evaluation, Shari Bensadoun, an occupational therapist,
observed appellant’s diagnoses of an unspecified sprain of the left middle finger, an unspecified
sprain of the left index finger, an unspecified sprain of the left ring finger and pain in the left hand
and developed a treatment plan for her conditions.
By decision dated June 8, 2018, OWCP denied appellant’s traumatic injury claim, finding
that she had not submitted medical evidence containing a medical diagnosis in connection with the
April 14, 2018 employment incident.
OWCP continued to receive evidence.
In a May 25, 2018 medical report, Dr. Ignatius Roger, a Board-certified orthopedic
surgeon, evaluated appellant for a left hand injury she sustained on April 14, 2018 while lifting
boxes and scanning packages at work. He reviewed her subsequent medical treatment and
diagnosed a sprain of the left hand with tendinitis. Dr. Roger prescribed a medication for appellant
to treat her symptoms. In an attending physician’s report (Form CA-20) of even date, he checked
a box marked “Yes” to indicate his opinion that her condition was caused or aggravated by her
federal employment.
On June 4, 2018 the employing establishment offered appellant a limited-duty modified
work position in which she would perform no continuous grasping or no continuous lifting of over
five pounds.
Appellant submitted therapy notes dated from June 4 to 11, 2018 in which Ms. Bensadoun
provided an update for her treatment for appellant’s condition.
In duty status reports (Form CA-17) dated March 18 and 29, 2019, Dr. Roger diagnosed
tendinitis and provided that she would be able to work full duty on April 2, 2019.
On June 7, 2019 appellant, through counsel, requested reconsideration of OWCP’s June 8,
2018 decision.
In a May 29, 2018 Form CA-17, Dr. Roger diagnosed tendinitis and checked a box to
indicate his opinion that appellant was able to return to work.
In medical reports dated August 6, 2018 to May 13, 2019, Dr. Roger diagnosed
tenosynovitis of the left middle finger, a sprain of an unspecified part of the left wrist and hand as
well as other synovitis and tenosynovitis of the left hand. He suggested treatment for her to follow
and advised that she could continue working full duty. In an April 22, 2019 certificate of
employee’s serious health condition, Dr. Roger diagnosed tenosynovitis of the middle finger and
noted that appellant’s condition commenced on April 14, 2018. He reviewed his history of
treatment for her condition and estimated that it would continue for three additional months. In
Form CA-17s of even dates, Dr. Roger diagnosed tenosynovitis of the left middle finger and
checked a box to indicate that appellant was able to return to work.
By decision dated August 30, 2019, OWCP modified the June 8, 2018 decision to find that
the evidence submitted was sufficient to establish the medical component of fact of injury. The
claim remained denied, however, because appellant had not submitted a rationalized opinion from
3

her treating physician explaining how her diagnosed conditions were causally related to the
accepted April 14, 2018 employment incident.
In a February 2, 2020 letter, Dr. Roger detailed his history of treatment for sharp pains she
developed in her left hand while lifting boxes and scanning packages at work on April 14, 2018.
He explained that her employment duties required her to perform repetitive mechanical activity
with the digits of her hands to manipulate and lift mail packages. The repetitive flexion and
extension of the digits against the resistance of the mail items caused inflammation of the tendons
in appellant’s left hand, resulting in a sprain of her left hand and tendinitis of the left index, middle,
and ring digits.
On March 24, 2020 appellant, through counsel, requested reconsideration of OWCP’s
August 30, 2019 decision.
By decision dated June 16, 2020, OWCP denied modification of its August 30, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine 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.7 The second component is whether the employment incident caused a personal injury.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 A physician’s opinion on whether there is causal relationship
4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

L.S., Docket No. 19-1769 (issued July 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

6
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).
7

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

8

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

9

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

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between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.10 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).11
ANALYSIS
The Board finds that the case is not in posture for decision.
In support of her claim, appellant submitted a February 2, 2020 letter in which Dr. Roger
detailed his history of treatment of appellant in relation to her diagnoses of a sprain of the left hand
and tendinitis of the left index, middle, and ring fingers. Dr. Roger noted that her employment
duties on April 14, 2018 required her to perform repetitive mechanical activity with the digits of
her hands to manipulate and lift mail packages. He further explained that the repetitive flexion
and extension of the digits against the resistance of the mail items caused inflammation of the
tendons in appellant’s left hand resulted in the development of her conditions.
Accordingly, the Board finds that Dr. Roger’s February 2, 2020 letter provided an
affirmative and rationalized opinion on causal relationship. Dr. Roger identified employment
factors, which appellant consistently claimed had precipitated her conditions, identified physical
findings upon examination and treatment, and provided a rationalized opinion citing to the facts
of the case. Thus, the Board finds Dr. Roger’s opinion sufficient to require further development
of the record.12
It is well established that, proceedings under FECA are not adversarial in nature, and that
while appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.13 OWCP has an obligation to see that justice is
done.14
On remand OWCP shall refer appellant, a statement of accepted facts, and the medical
evidence of record to a physician in the appropriate field of medicine. The chosen physician shall
provide a rationalized opinion addressing whether the diagnosed conditions are causally related to
the accepted April 14, 2018 employment incident. If the physician opines that the diagnosed
conditions are not causally related, he or she must provide rationale explaining how or why the

10

M.V., Docket No. 18-0884 (issued December 28, 2018).

11

B.C., Docket No. 20-0221 (issued July 10, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

12

D.H., Docket No. 19-0633 (issued January 8, 2020); J.J., Docket No. 19-0789 (issued November 22, 2019);
J.G., Docket No. 17-1062 (issued February 13, 2018); A.F., Docket No. 15-1687 (issued June 9, 2016). See also
John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).
13

A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).
14

R.B., Docket No. 18-0162 (issued July 24, 2019); K.P., Docket No. 18-0041 (issued May 24, 2019).

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opinion differs from that of Dr. Roger. Following this and any other further development as may
be deemed necessary, OWCP shall issue a de novo decision on appellant’s claim.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 16, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: May 3, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Huntsville, AL,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket Nos. 17-1863;
17-1867; and 17-1868
Issued: April 18, 2018

Case Submitted on the Record

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

On September 1, 2017 appellant filed timely applications for review from an April 10,
2017 merit decision and two March 6, 2017 nonmerit decisions of the Office of Workers’
Compensation Programs (OWCP). The appeals were assigned Docket Nos. 17-1863, 17-1867,
and 17-1868.
On July 11, 2014 appellant, then a 60-year-old laborer/custodian, filed three individual
occupational disease claims (Form CA-2) alleging that he developed bilateral hip and knee
osteoarthritis, bilateral carpal tunnel syndrome, and bilateral rotator cuff tears due to his work
duties. He noted that he first became aware of his bilateral hip and knee condition on March 3,
2005; he first became aware of his bilateral carpal tunnel syndrome on March 26, 1996; and he
first became aware of his bilateral rotator cuff tears on December 22, 2005. Appellant attributed
his claimed conditions to his employment duties which required his constantly lifting mop
buckets and wringers while sweeping and mopping, pushing 700-pound metal equipment, as well
as edging and using a weed trimmer. He indicated that his conditions worsened or were
aggravated over time. The date of last exposure noted on all three claim forms was
July 11, 2014.
OWCP developed appellant’s three occupational disease claims separately. It assigned
File No. xxxxxx370 to his claim for bilateral hip osteoarthritis and bilateral knee arthritis; File

No. xxxxxx376 to his claim for bilateral rotator cuff tears; and File No. xxxxxx369 to his claim
for bilateral carpal tunnel syndrome.
In letters dated January 11, 2016, OWCP requested additional factual and medical
evidence in support of each of appellant’s claims. The letters noted that appellant had not
provided any documentation beyond his claim forms and afforded him 30 days to submit
evidence supporting his occupational disease claims. On the same date, OWCP requested that
the employing establishment provide comments from a knowledgeable supervisor on the
accuracy of appellant’s statements and to provide a description of appellant’s tasks. Neither
appellant, nor the employing establishment responded.
By decision dated March 1, 2016, OWCP denied appellant’s claim for bilateral hip and
knee osteoarthritis in File No. xxxxxx370, noting that appellant failed to submit any evidence in
support of his claim other than his claim form. In separate decisions of the same date OWCP
also denied appellant’s occupational disease claims for bilateral carpal tunnel syndrome under
File No. xxxxxx369 and bilateral rotator cuff tears under File No. xxxxxx376.
On March 1, 2017, appellant requested reconsideration of each of the three March 1,
2016 decisions. In support of his requests for reconsideration he provided a report dated
February 20, 2017 from Dr. William C. Gannaway, a Board-certified internist. Dr. Gannaway
diagnosed cervical spondylosis with radiculopathy, lumbar spondylosis with radiculopathy, facet
hypertrophy of the cervical and lumbar spines, osteoarthritis of the bilateral hips, knees, and
shoulders, bilateral shoulder supraspinatus rotator cuff tear, and left knee medial meniscal tear.
On physical examination he reported that appellant had moderate-to-severe pain, weakness, and
loss of motion in both shoulders. Dr. Gannaway reported that appellant was restricted when
raising his arms above his head or behind his back and found restricted range of motion. He
noted that appellant had anterior flexion weakness in both shoulders as well as positive Neer
tests bilaterally with pain on compression and palpation of both acromioclavicular joints.
Dr. Gannaway reported that appellant had weakness on the empty can test to test for rotator cuff
weakness. He also noted that appellant had pain and stiffness in both hips and knees due to
degenerative arthritis. Appellant’s left knee would occasionally lock-up or buckle, he had
motion crepitance at both knee medical joint lines and kneecaps, and he had restriction
mechanically and with pain to deep knee bends and kneeling. He reported pain in his hips and
knees from standing or walking greater than 30 minutes and he had tenderness to the lateral hips
and pain at night when he’d roll on the affected side.
Due to these medical problems, Dr. Gannaway determined that appellant could not
perform his essential job duties of routine building maintenance and cleaning, as his job requires
manual labor that requires him to be moderately fit and active. He noted that appellant’s job
required him to stand and walk for extended periods, which caused escalating pain, stiffness, and
weakness in his lower back, hips, and knees. As a result, Dr. Gannaway found that appellant was
unable to continue work without rest periods every 30 minutes. He further found that appellant
was unable to operate most of the power-driven cleaning equipment due to strain on his neck and
shoulders. Dr. Gannaway opined that the vibration of waxers, floor scrubbers, and washers had
exacerbated his arthritis in his neck and shoulders and caused tingling and numbness in his hands
and arms. He provided work restrictions and recommended that appellant retire.

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By decisions dated March 6, 2017, OWCP denied appellant’s requests for reconsideration
of the merits of his claim, with regard to appellant’s claims for bilateral rotator cuff tears and
bilateral carpal tunnel syndrome in File Nos. xxxxxx376 and xxxxxx369, finding that
Dr. Gannaway’s report was irrelevant.
By decision dated April 10, 2017, OWCP reviewed the merits of appellant’s claim for
bilateral hip and knee osteoarthritis in File No. xxxxxx370, but denied modification of its prior
decision. It found that Dr. Gannaway did not offer an opinion on causal relationship between
appellant’s alleged conditions of bilateral hip osteoarthritis and bilateral knee arthritis and
employment duties. OWCP further noted that appellant had not provided a detailed history of
his employment duties to which he attributed his lower extremity conditions.
The Board has duly considered the matter and finds that the case is not in posture for
decision. OWCP’s procedures provide that cases should be combined where correct adjudication
depends on cross-referencing between files and where two or more injuries (not recurrences)
have occurred on the same date.1
Appellant filed three occupational disease claims on July 11, 2014 alleging that his
federal employment duties resulted in injuries to different parts of his body. As the claims
developed individually with OWCP, inconsistent results occurred in the claim development and
adjudication process. For a full and fair adjudication, the claims in File No. xxxxxx369 and
xxxxxx376 should be combined with File No. xxxxxx370, pursuant to OWCP procedures.2 This
will allow OWCP to consider all relevant claim files in developing this claim. Moreover, to
consider appellant’s appeal in piecemeal fashion, as presented to the Board, could result in
further inconsistent results. It is the Board’s policy to avoid such an outcome.3
The case will be remanded to OWCP to combine the case records for File Nos.
xxxxxx369, xxxxxx370, and case xxxxxx376. Following this and such other development as
deemed necessary, OWCP shall issue a de novo merit decision on appellant’s claim.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
2

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)(2)
(February 2000).
3

See William T. McCracken, 33 ECAB 1197 (1982).

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IT IS HEREBY ORDERED THAT the August 10, 2017 decision of the Office of
Workers’ Compensation Programs under File No. xxxxxx370, and the March 6, 2017 decisions
of the Office of Workers’ Compensation Programs under File Nos. xxxxxx376 and xxxxxx369
are set aside, and the cases are remanded to OWCP for further proceedings consistent with this
order.
Issued: April 18, 2018
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
__________________________________________
C.H., Appellant
and
DEPARTMENT OF AGRICULTURE,
U.S. FOREST SERVICE, Hayward, WI,
Employer
__________________________________________

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

Docket No. 17-0266
Issued: May 17, 2018

Case Submitted on the Record

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

JURISDICTION
On November 8, 2016 appellant filed a timely appeal from a May 12, 2016 merit decision
and an August 30, 2016 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.3

1
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from May 12, 2016, the date of OWCP’s last merit decision, was
November 8, 2016. Since using November 15, 2016, the date the appeal was received by the Clerk of the Appellate
Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is November 8, 2016, rendering the appeal timely filed with respect to OWCP’s
May 12, 2016 merit decision. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

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Appellant provided the Board additional evidence that was not part of the record when OWCP issued its
August 30, 2016 decision. The Board’s jurisdiction is limited to the evidence that was in the case record at the time
of OWCP’s final decision. Therefore, the Board is precluded from reviewing this additional evidence for the first
time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that his left knee
condition is causally related to the November 7, 2015 employment incident; and (2) whether
OWCP properly denied appellant’s request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 9, 2015 appellant, then a 44-year-old law enforcement officer, filed a
traumatic injury claim (Form CA-1) for a knee injury that allegedly occurred in the performance
of duty on November 7, 2015. He explained that he was kneeling on the ground to provide
detailed, step-by-step instructions to a group of officers. Appellant stated that when his “right”
knee made contact with the ground, it made a popping noise. He then “rolled to [his] back and
slightly straightened it, making it pop again.” Appellant indicated that he finished the training day,
and experienced pain for the remainder of the session. He reported that his knee was swollen and
was painful to walk on.
On November 9, 2015 Dr. Benjamin F. Turner, a Board-certified family practitioner,
evaluated appellant for complaints of a left knee injury. Appellant reported having been involved
in a defensive tactical training course two days prior. Dr. Turner noted that appellant “jumped
down from a height, landing on his left knee” and felt a popping sensation. Since then, appellant’s
knee was reportedly unstable and he had difficulty fully straightening it. He noted some swelling
the following morning, but presently there was no appreciable bruising, and the swelling had
subsided with icing, but he continued to have difficulty bearing weight and with instability. On
physical examination, Dr. Turner noted considerable discomfort with weight bearing and evidence
of a mild joint effusion, but no bruising and no joint line tenderness. He further noted a small
amount of laxity in all the major ligaments when compared to the right side, and somewhat more
laxity with testing of the medial collateral ligament (MCL) and perhaps the posterior cruciate
ligament (PCL). Dr. Turner also noted that McMurray’s test was negative. Left knee x-rays
obtained that day demonstrated normal joint spaces and no appreciable fractures. However,
Dr. Turner noted the presence of some loose bodies posteriorly, which appeared to be chronic.4
He expressed some concern for possible MCL versus PCL injury, and therefore, recommended a
magnetic resonance imaging (MRI) scan. In the interim, Dr. Turner advised appellant to continue
icing, elevation, and rest. He also provided appellant with a hinged knee brace for additional
stability.
A November 24, 2015 left knee MRI scan revealed a medial meniscus tear, grade two MCL
sprain, a very small knee joint effusion, and a small popliteal cyst.
On November 30, 2015 Dr. Turner spoke with appellant via telephone regarding the results
of his recent left knee MRI scan. He noted that appellant continued to be symptomatic with some
locking and catching. Dr. Turner referred appellant to an orthopedist.
4
Dr. Turner noted that a final radiology read was pending. The films were subsequently reviewed by Dr. Robert G.
Lind, a Board-certified diagnostic radiologist, who reported minimal degenerative arthritic changes in the knee joint,
slight narrowing of the medial joint space, a small calcific density near the proximal tip of the fibula, which was of
questionable significance, and evidence suggestive of an effusion.

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In a December 1, 2015 work capacity evaluation (OWCP-5c), Dr. Turner indicated that
appellant was disabled from work. He noted that appellant had an acute left medial meniscus and
MCL injury that limited his ability to ambulate or stand for any period of time, and that he was
awaiting an orthopedic consultation for definitive treatment.
On December 8, 2015 Dr. Justin S. Cummins, a Board-certified orthopedic surgeon,
examined appellant for complaints of left knee pain. He noted a history of injury at work on
November 7, 2015 when appellant was teaching self-defense maneuvers. As appellant was
demonstrating a maneuver, one of the trainees grabbed a hold of his leg. Appellant twisted, and
they both fell to the ground. Dr. Cummins reported that appellant felt a pop and had significant
pain afterwards. He tried resting it and experienced some swelling. Appellant initially felt like
his condition was slowly improving, but then as he attempted to increase activity on uneven
ground, his symptoms recurred. Dr. Cummins reported that appellant continued to feel pain and
catching, mostly on the medial side. Appellant denied any prior issues with his knee.
Dr. Cummins examined appellant’s left knee, and he independently reviewed the recent x-rays and
MRI scan. He diagnosed left knee symptomatic medial meniscus tear, and recommended left knee
arthroscopy with likely partial medial meniscectomy. Lastly, Dr. Cummins advised that appellant
was capable of sedentary duty until surgery. Appellant’s work limitations included no bending,
kneeling, or climbing.
In a December 17, 2015 development letter, OWCP advised appellant that the medical
evidence submitted was insufficient to establish that the diagnosed condition was caused or
aggravated by the work injury. It afforded him 30 days to submit additional medical evidence.
OWCP’s December 17, 2017 correspondence was subsequently returned as undeliverable.
By decision dated January 21, 2016, OWCP denied the claim, finding that the medical
evidence of record was insufficient to establish causal relationship between the claimed injury and
the accepted employment incident of November 7, 2015.
On February 12, 2016 appellant requested reconsideration.
In a February 5, 2016 report, Dr. Turner noted that he initially evaluated appellant on
November 9, 2015 for a knee injury sustained on November 7, 2015 “while teaching a tactical
course.” He reiterated that appellant “jumped down from a height landing on his left knee,” and
felt a popping sensation, with subsequent difficulty with instability and an inability to fully
straighten his knee. Dr. Turner also noted that he had referred appellant for an MRI scan, which
revealed a medial meniscus tear and a grade two MCL sprain. He then referred appellant to
Dr. Cummins, who examined him on December 8, 2015, and agreed with the diagnosis of left knee
symptomatic medial meniscus tear, and recommended arthroscopic surgery. Dr. Turner noted that
in his initial evaluation on November 9, 2015, he clearly explained how the accident occurred, and
that this was “clearly … a work-related incident.”
In a March 21, 2016 initial examination report, Dr. Thomas R. Rollie, a family practitioner,
noted that appellant injured his “right” knee at work in November 2015 “by jumping.” Appellant
also felt a popping sensation. Dr. Rollie further noted that Dr. Turner previously treated appellant.
He recited the findings and diagnoses provided by Dr. Turner and Dr. Cummins, as well as noting
the previously recommended arthroscopic repair. Dr. Rollie also noted that appellant claimed this

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was a workers’ compensation injury, which he noted he agreed with.5 Appellant reported that he
still had clicking in the knee, but denied any significant pain. Dr. Rollie also reported that appellant
believed he was able to resume unrestricted work. He diagnosed left knee medial meniscus tear
with resolved MCL sprain. Dr. Rollie also indicated that appellant could return to regular work
requirements.
By decision dated May 12, 2016, OWCP denied modification of its prior decision, finding
that appellant had not established that his diagnosed left knee condition was causally related to the
accepted November 7, 2015 employment incident. It noted that the reports of Dr. Turner and
Dr. Rollie were based on an inaccurate factual history.
On June 23, 2016 appellant again requested reconsideration.
In a separate statement dated June 6, 2016, appellant described the November 7, 2015
training incident as follows:
“[D]uring the training day … I was moving and speaking at a high rate of speed,
and was required to show many training techniques over and over again. The
movements would require me to drop to the ground in a very forceful manner while
at the same time wearing the weight of a full duty belt with all components attached.
And while dropping to the ground (from an elevated position and in a forceful
manner) to show a technique, I heard and felt an audible popping noise in my left
knee. I finished showing the technique and while trying to get back up and putting
weight on my left knee I felt immediate pain.”
Appellant attributed his “short or incomplete narrative” on the Form CA-1 to the pain and
discomfort he experienced at the time. He also explained that the limited amount of space available
on the claim form hindered his ability to describe the events in their entirety.
OWCP subsequently received another copy of Dr. Turner’s December 1, 2015 OWCP-5c,
as well as a duplicate of appellant’s November 24, 2015 left knee MRI scan.
By decision dated August 30, 2016, OWCP denied appellant’s request for reconsideration
of the merits of the claim. It explained that the evidence received was repetitious, and consisted
of copies of documentation previously considered. OWCP specifically noted that both the
November 24 and December 1, 2015 medical reports were on file prior to issuing its May 12, 2016
decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial

5

Dr. Rollie reported that appellant worked in law enforcement for the Forest Service.

6

See supra note 2.

4

evidence, including that an injury was sustained in the performance of duty as alleged, and that
any specific condition or disability claimed is causally related to the employment injury.7
To determine whether an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.8 The second component is whether the employment incident caused a personal
injury.9 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.10
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.11 A physician’s opinion on whether there is causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.12 Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty, and must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).13
ANALYSIS -- ISSUE 1
OWCP found that appellant established both components of fact of injury. However, it
denied his traumatic injury claim because the medical evidence of record was insufficient to
establish that the diagnosed left knee conditions were causally related to the accepted November 7,
2015 employment incident. The Board finds that appellant has not met his burden of proof to
establish causal relationship.
The November 9, 2015 left knee x-rays, as well as the November 24, 2015 left knee MRI
scan are insufficient to establish causal relationship because these diagnostic studies did not
specifically address the cause of the diagnosed condition(s). As such, this evidence is of limited
probative value with respect to establishing causal relationship.14

7

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

8

Elaine Pendleton, 40 ECAB 1143 (1989).

9

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

10

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

11

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

12

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

13

Id.

14

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997) (medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative value
on the issue of causal relationship).

5

When Dr. Turner initially examined appellant on November 9, 2015, he reported a history
of injury two days prior (November 7, 2015) when appellant participated in a defensive tactical
training course and “jumped down from a height, landing on his left knee.” He further reported
that appellant felt a popping sensation, and since then had difficulty with instability and fully
straightening his knee. At the time, Dr. Turner noted that appellant presented with an acute left
knee injury. He expressed concern about a possible MCL versus PCL injury, but did not otherwise
provide a definitive diagnosis. Dr. Turner also did not specifically address causal relationship.
After reviewing appellant’s recent left knee MRI scan, Dr. Turner provided a December 1,
2015 work capacity evaluation (OWCP-5c), wherein he noted that appellant had acute left medial
meniscus and MCL injuries. However, he did not specifically address causal relationship. As
noted, medical evidence that does not address the cause of the diagnosed condition(s) is of limited
probative value in establishing causal relationship.15
In his February 5, 2016 report, Dr. Turner stated that when he initially examined appellant
on November 9, 2015, he “clearly explained how the accident occurred and that this was “clearly
… a work-related incident.” To the contrary, Dr. Turner’s initial report did not include an opinion
on causal relationship. He merely reported the history provided by appellant. While the
February 5, 2016 report noted his belief that this “clearly was a work-related incident,” Dr. Turner
neglected to explain how appellant’s participation in the November 7, 2015 “tactical course” either
caused or contributed to the diagnosed left knee medial meniscus tear and/or MCL sprain. A
physician’s opinion must be supported by medical rationale, explaining the nature of the
relationship between the diagnosed condition and appellant’s specific employment factor(s).16
Dr. Turner referred appellant to Dr. Cummins, who examined him on December 8, 2015
and diagnosed left knee symptomatic medial meniscus tear. Dr. Cummins noted a November 7,
2015 history of injury when appellant was teaching self-defense maneuvers, and while
demonstrating a maneuver, one of the trainees grabbed a hold of appellant’s leg and then appellant
twisted, and they both fell to the ground. The Board notes that neither the November 9, 2015 Form
CA-1 nor appellant’s subsequent statement referenced a trainee having grabbed a hold of his leg.
A physician’s opinion on whether there is a causal relationship between the diagnosed condition
and the implicated employment factor(s) must be based on a complete factual and medical
background.17 Apart from what appears to be an inaccurate history of injury, Dr. Cummins
similarly failed to definitively attribute appellant’s diagnosed left knee condition to the
November 7, 2015 employment incident.18
In his March 21, 2016 report, Dr. Rollie diagnosed left knee medial meniscus tear with
resolved MCL sprain. He reported that appellant injured his “right” knee at work in
November 2015 “jumping” and afterwards he “felt a popping sensation.” Although Dr. Rollie
noted his agreement with appellant that this was a workers’ compensation injury, he did not
otherwise explain how “jumping” at work in November 2015 either caused or contributed to
15

See supra note 14.

16

Victor J. Woodhams, supra note 12.

17

Id.

18

Id.

6

appellant’s diagnosed left knee condition(s). Absent an explanation regarding the nature of the
relationship between the diagnosed condition(s) and appellant’s specific employment factor(s),
Dr. Rollie’s opinion is insufficient to establish causal relationship.19
In light of the foregoing analysis, appellant failed to meet his burden of proof to establish
causal relationship. He 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 review of an OWCP decision as a
matter of right.20 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.21 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.22
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.23 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.24
ANALYSIS -- ISSUE 2
Appellant’s June 23, 2016 request for reconsideration neither alleged nor demonstrated that
OWCP erroneously applied or interpreted a specific point of law. Additionally, he did not advance
a relevant legal argument not previously considered by OWCP. Consequently, appellant is not
entitled to further review of the merits of his claim based on the first and second above-noted
requirements under section 10.606(b)(3).
Appellant also failed to submit relevant and pertinent new evidence not previously
considered by OWCP. He resubmitted a November 24, 2015 MRI scan and Dr. Turner’s
December 1, 2015 work capacity evaluation (OWCP-5c). The Board finds that the submission of
19

Id.

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a).
20

21

20 C.F.R. § 10.607.

22

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of the OWCP decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). 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). Chapter 2.1602.4b.
23

20 C.F.R. § 10.606(b)(3).

24

Id. at § 10.608(a), (b).

7

this evidence did not require reopening appellant’s case for merit review because the same
evidence was part of the record when OWCP issued its January 21 and May 12, 2016 decisions.
As the reports repeat evidence already in the case record, they are duplicative and do not constitute
relevant and pertinent new evidence.25
The Board finds that appellant was not entitled to further review of the merits of his claim
pursuant to any of the three requirements under section 10.606(b)(3), and therefore, OWCP
properly denied his request for reconsideration.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his
diagnosed left knee condition is causally related to the November 7, 2015 employment incident.
The Board further finds that OWCP properly denied appellant’s request for reconsideration of the
merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 30 and May 12, 2016 and decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: May 17, 2018
Washington, DC

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

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

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

25

See D.K., 59 ECAB 141 (2007).

8


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

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

Docket No. 21-0656
Issued: February 16, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 12, 2021 appellant filed a timely appeal from a March 2, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUE
The issue is whether appellant has met his burden of proof to establish a back condition
causally related to the accepted October 2, 2020 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 2, 2021 decision, appellant submitted additional evidence on appeal.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On October 14, 2020 appellant, then a 56-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 2, 2020 he sustained an upper back sprain when his
vehicle was struck by another vehicle while in the performance of duty. He stopped work on
October 3, 2020.
In an October 2, 2020 medical note, Dr. Vijak Dorga, an internist, noted that appellant was
seen in the emergency department and could return to work on October 5, 2020.
In an October 6, 2020 medical note, Marcella Cudjoe, a nurse practitioner, noted that
appellant could return to work on October 9, 2020. In an October 9, 2020 medical note, she held
him off work until October 14, 2020. In an October 12, 2020 medical note, Ms. Cudjoe provided
work restrictions.
In an October 15, 2020 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence needed and provided a questionnaire for his completion. In a separate development letter
of even date, OWCP requested that the employing establishment provide additional information
regarding appellant’s claim. It afforded both parties 30 days to respond.
Appellant submitted a copy of a New Jersey Police Crash Investigation Report noting an
October 2, 2020 date of crash and that he was stopped in traffic when he was struck in the rear by
another vehicle. He complained of lower back pain.
In an undated response to OWCP’s development questionnaire, the employing
establishment indicated that appellant was in the performance of duty on October 2, 2020 when he
was using his postal vehicle to deliver mail.
An October 2, 2020 x-ray of the lumbar spine revealed mild levoscoliosis, disc space
narrowing at L5-S1 level, and mild spondylosis deformans. A cervical spine x -ray of even date
revealed mild degenerative disease involving the lower cervical spine, but revealed no evidence of
a fracture.
In an October 29, 2020 medical report, Dr. Manisha K. Chahal, a pain medicine specialist,
noted that appellant was involved in a motor vehicle accident (MVA) on October 2, 2020 when he
was rear-ended by another vehicle. She reviewed the x-rays of the lumbar and cervical spine and
conducted a physical examination, which revealed no erythema, abrasions, scars, or rashes on the
lumbar spine and no signs of an external injury on the cervical spine. Dr. Chahal diagnosed other
site myalgia, lumbar spondylosis without myelopathy or radiculopathy, myalgia of auxiliary
muscles in the head and neck, and cervical spondylosis without myelopathy or radiculopathy. She
noted that appellant had neck pain attributed to cervical myofascial pain syndrome and distinct
myofascial trigger points. Dr. Chahal opined that his pain was causally related to his MVA on
October 2, 2020.
In a November 3, 2020 response to OWCP’s development questionnaire, appellant stated
that he was delivering mail on his regular route on October 2, 2020 when his vehicle was rearended by another vehicle. He explained that his upper body was quickly pushed forward from the
2

impact and his vehicle rolled a foot or two as he steered it to the curb on his right side. Appellant
noted that he immediately experienced pain in his lower to middle back and was taken to a hospital
shortly after notifying his supervisor.
A November 5, 2020 attending physician’s report (Form CA-20) containing an illegible
signature noted that appellant was involved in an MVA while working on October 2, 2020 and
diagnosed myalgia, lumbar spondylosis, and cervical spondylosis.
Appellant underwent physical therapy treatment from November 9 through 16, 2020.
In a November 13, 2020 work status note, Dr. Chahal indicated that appellant was unable
to work until December 11, 2020.
By decision dated November 25, 2020, OWCP accepted that the October 2, 2020 incident
occurred as alleged, but denied appellant’s claim finding that the medical evidence of record was
insufficient to establish causal relationship between a diagnosed medical condition and the
accepted employment incident.
Following the decision, OWCP received an October 2, 2020 emergency medical service
(EMS) report, which noted that appellant was found sitting in his vehicle after another vehicle
rear-ended him. Appellant complained of back pain.
Appellant underwent physical therapy treatment from Novemb er 18 through
December 9, 2020.
In a December 10, 2020 medical report, Dr. Chahal noted that appellant’s low back pain
persisted despite undergoing physical therapy treatment. She reiterated his history of injury and
diagnoses. Dr. Chahal noted that appellant received trigger point injections.
On February 19, 2021 appellant requested reconsideration.
In a January 25, 2021 narrative report, Dr. Chahal related that appellant’s pain began after
his MVA on October 2, 2020. She noted that he attributed his symptoms to the accepted
October 2, 2020 employment incident. Appellant explained to Dr. Chahal that, at the time of his
injury, he was the restrained driver and was waiting on a red light when another vehicle rear-ended
his vehicle. Dr. Chahal reviewed appellant’s October 2, 2020 x-rays of the lumbar and cervical
areas of the spine; a December 21, 2020 x-ray of the lumbar spine, which demonstrated worsened
lumbar spondylosis; and a December 21, 2020 magnetic resonance imaging (MRI) scan of the
lumbar spine, which revealed L5-S1 herniated nucleus pulposus abutting descending left S1 nerve
root and bilateral neuroforaminal stenosis. She reported that he continued to experience severe
left-sided low back pain as well as left lower extremity pain. Dr. Chahal noted that appellant had
received a transforaminal epidural steroid injection. She opined, based on the history of injury,
radiological findings, and physical examination findings, that appellant sustained his injuries from
the accepted October 2, 2020 employment incident. Dr. Chahal further opined that appellant’s
low back pain was “caused by the impact of the rear-end collision” from the accepted October 2,
2020 employment incident. She concluded, “I believe this to be an accurate assessment with a
reasonable degree of medical certainty, a rear-end collision is a severe stress on the spine where

3

the impact is transferred to the discs in the lumbar spine. Such severe stress on the spine can result
in disc herniations. This is precisely what happened in this patient.”
By decision dated March 2, 2021, OWCP denied modification of its November 25, 2020
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 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, 4 and that an injury was sustained in the performance of duty as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury. 5 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.6
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. 7 There are two
components that must be considered in conjunction with one another. The first component is
whether the employee actually experienced the employment incident as alleged. 8 The second
component is whether the employment incident caused a personal injury. 9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 10 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a
complete factual and medical background. 11 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical

3

Supra note 1.

4

S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
5

T.H., Docket No. 18-1736 (issued March 13, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C.,
59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
6

T.E., Docket No. 18-1595 (issued March 13, 2019); 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).
7

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

E.M., id.; John J. Carlone, 41 ECAB 354 (1989).

10

S.S., supra note 7; Robert G. Morris, 48 ECAB 238 (1996).

11

C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

4

rationale, explaining the nature of the relationship between the diagnosed condition, and
appellant’s specific employment incident. 12
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of his claim, appellant submitted multiple medical reports in which his treating
physician, Dr. Chahal, consistently noted that he continued to experience severe left-sided low
back pain as well as left lower extremity pain following the accepted October 2, 2020 employment
incident. In her January 25, 2021 narrative medical report, Dr. Chahal reiterated appellant’s
history of injury, reviewed his x-rays of the lumbar and cervical areas of the spine and the MRI
scan of the lumbar spine, and provided multiple diagnoses. She indicated that the December 21,
2020 x-ray scan of the lumbar spine revealed worsened lumbar spondylosis. Dr. Chahal opined,
based on the history of injury, radiological findings, and physical examination findings, that
appellant sustained his injuries from the accepted October 2, 2020 employment incident. She
further opined that appellant’s low back pain was “caused by the impact of the rear-end collision”
from the accepted October 2, 2020 employment incident. Dr. Chahal concluded, “I believe this to
be an accurate assessment with a reasonable degree of medical certainty, a rear-end collision is a
severe stress on the spine where the impact is transferred to the discs in the lumbar spine. Such
severe stress on the spine can result in disc herniations. This is precisely what happened to this
patient.” The Board finds that Dr. Chahal’s opinion, while not sufficiently rationalized to meet
appellant’s burden of proof, is sufficient, given the absence of opposing medical evidence, to
require further development of the record.13
It is well established that proceedings under FECA are not adversarial in nature, and that
while appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.14 OWCP has an obligation to see that justice is
done.15
On remand OWCP shall refer appellant, a statement of accepted facts, and the medical
record to a specialist in the appropriate field of medicine for an evaluation and a well-rationalized
opinion as to whether the diagnosed conditions are causally related to the accepted October 2, 2020
employment incident. If the physician opines that the diagnosed conditions are not causally related
to the accepted employment incident, he or she must explain, with rationale, how or why the

12

Id.

13

See A.D., Docket No. 21-0143 (issued November 15, 2021); R.B., Docket No. 18-0162 (issued July 24, 2019);
J.G., Docket No. 17-1062 (issued February 13, 2018). See also John J. Carlone, 41 ECAB 354 (1989); Horace
Langhorne, 29 ECAB 820 (1978).
14

A.D., id.; A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999);
William J. Cantrell, 34 ECAB 1233, 1237 (1983).
15

See J.N., Docket No. 20-1287 (issued October 26, 2021); B.C., Docket No. 15-1853 (issued January 19, 2016);
E.J., Docket No. 09-1481 (issued February 19, 2010).

5

opinion differs from that of Dr. Chahal. Following this and such other further development as
deemed necessary, OWCP shall issue a de novo decision regarding appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 2, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: February 16, 2022
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.I., Appellant
and
U.S. POSTAL SERVICE, NATIONAL SERVICE
CENTER, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 13-1983
Issued: February 11, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 28, 2013 appellant, through his attorney, filed a timely appeal from a May 30,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury on February 1, 2012 in the
performance of duty, as alleged.
FACTUAL HISTORY
On April 15, 2012 appellant, then a 59-year-old mailhandler, filed a traumatic injury
claim alleging that on February 1, 2012 he sprained his right knee when he stepped on a piece of
1

5 U.S.C. § 8101 et seq.

mail on the floor and twisted his knee. He stopped work on February 1, 2012. The employing
establishment related that appellant was on permanent limited duty at the time of the injury.
In a February 1, 2012 authorization for examination and/or treatment, (Form CA-16) a
physician’s assistant provided a history of appellant twisting his right knee after stepping on a
piece of mail and diagnosed right knee sprain.
In a form report dated February 2, 2012, Dr. Anton Volpicelli, an osteopath, indicated the
date of injury as February 1, 2012. He diagnosed a right knee and leg sprain and a right medial
meniscal tear.
The record contains a June 21, 2010 magnetic resonance imaging (MRI) scan study of the
right knee, which revealed “a large horizontal tear in the posterior horn of the medial meniscus
with meniscal cyst formation” and chondromalacia of the patella and lateral tibial plateau.
In a report dated February 10, 2012, Dr. Andrzej Bulczynski, a Board-certified
orthopedic surgeon, provided a history of appellant twisting his right knee on February 1, 2012
after slipping on metal. He noted that he denied “a history of injury or disability to the right knee
on an industrial or nonindustrial basis.” Dr. Bulczynski diagnosed a right medial meniscus tear
and recommended surgery. He related that, based on appellant’s history and the examination, “it
appears that [he] did sustain an injury to the right knee arising out of and caused by the industrial
exposure of February 1, 2012.” In a form report dated March 9, 2012, Dr. Bulczynski found that
appellant could resume work on that date with restrictions.
In a progress report dated June 1, 2012, Dr. Bulczynski diagnosed a right medial
meniscus tear and chondromalacia. He listed work restrictions. In a form report dated June 1,
2012, Dr. Bulczynski noted the date of injury as February 1, 2012 and diagnosed a right medial
meniscal tear. He provided similar progress reports and form reports on July 13 and
August 3, 2012.
On September 20, 2012 OWCP advised appellant that it had initially paid some medical
expenses on his claim as it appeared to be minor but was now formally adjudicating his claim. It
requested additional factual and medical information, including a detailed report from his
attending physician addressing the causal relationship between any diagnosed condition and the
identified work incident.
In a report dated October 19, 2012, Dr. Bulczynski noted that appellant described pain
after he stood all day for two days at work operating a forklift. On examination he found mild
effusion and moderate medial joint tenderness. Dr. Bulczynski diagnosed a right medial
meniscus tear and chondromalacia patella and lateral tibial plateau. He stated, “It appears in the
past, [appellant] had an MRI [scan study] of the right knee on June 21, 2010, which showed a
tear of the posterior horn of the medial meniscus. [He] was able to function relatively well.”
Dr. Bulczynski noted that appellant became “significantly more symptomatic” after he again
injured his knee on February 1, 2010 “when he was walking, slipped on metal causing him to
twist his right knee and fall, landing on the right side. Since this incident, [he] had occasional
sensation of giving way, medial-sided joint pain and swelling.” He listed work restrictions.

2

By decision dated November 8, 2012, OWCP denied appellant’s claim after finding that
he had not established a condition causally related to the accepted February 1, 2012 employment
incident.
On November 8, 2012 appellant, through his attorney, requested a telephone hearing
before an OWCP hearing representative.
In a report dated September 6, 2012, received by OWCP on January 25, 2013,
Dr. Bjorn A. Nordstrom, an osteopath, discussed appellant’s history of right knee pain for the
past two years that had increased over the past two weeks. He reviewed appellant’s history of a
“[right] meniscal tear that was unrepaired.” Dr. Nordstrom diagnosed right knee pain “related to
a work issue.” On September 21, 2012 he noted that appellant continued to experience right
knee pain. Dr. Nordstrom diagnosed right knee pain and found that appellant should continue
working limited duty.
In a report dated November 16, 2012, Dr. Erik Lundquist, Board-certified in family
practice, evaluated appellant for bilateral knee pain. He diagnosed left knee arthritis and
degenerative right knee arthritis.
In a report dated November 28, 2012, Dr. Bulczynski discussed appellant’s continued
symptoms of pain when walking. He indicated that appellant did not want to proceed with
surgery. Dr. Bulczynski listed findings on examination of mild medial joint line tenderness. He
diagnosed a right medial meniscus tear and chondromalacia patella and lateral tibial plateau.
Dr. Bulczynski listed work restrictions.
At the telephone hearing, held on March 14, 2013, appellant related that he tore the
meniscus in his right knee in 2010 but did not have surgery. On February 1, 2012 he tripped on
mail on the ground and twisted his right knee. Appellant experienced a different kind of pain in
his right knee following the incident and his right knee condition worsened.
By decision dated May 30, 2013, the hearing representative affirmed the November 8,
2012 decision. She found that appellant had not submitted rationalized medical evidence
supporting that he sustained a right knee condition due to the accepted February 1, 2012 work
incident.
LEGAL PRECEDENT
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
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the

2

Id.

3

employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.5 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish a
causal relationship between the employment incident and the alleged disability and/or condition
for which compensation is claimed.6 An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her disability and/or condition relates to the
employment incident.7
ANALYSIS
Appellant alleged that he sustained an injury to his right knee on February 1, 2012 when
he twisted his knee after stepping on a piece of mail on the floor. He has established that the
incident occurred at the time, place and in the manner alleged. The issue, consequently, is
whether the medical evidence establishes that he sustained an injury as a result of this incident.
The Board finds that appellant has not established that the February 1, 2012 employment
incident resulted in an injury. The determination of whether an employment incident caused an
injury is generally established by medical evidence.8
In a February 1, 2012 Form CA-16, a physician’s assistant diagnosed a right knee sprain.9
A physician’s assistant, however, is not considered a physician under FECA and thus the report
is of no probative value.10
In a February 2, 2012 form report, Dr. Volpicelli provided the date of injury as
February 1, 2012 and diagnosed a right knee and leg sprain and a tear of the right medial
meniscus. He did not, however, describe the history of injury or specifically attribute the
diagnosed conditions to the February 1, 2012 work incident. Medical evidence that does not
3

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

4

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

5

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

6

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

7

Id.

8

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

9

A properly executed Form CA-16 creates a contractual obligation, which does not involve the employee
directly, to pay the cost of the examination or treatment regardless of the action taken on the claim. See Elaine M.
Kreymborg, 41 ECAB 256, 259 (1989). OWCP did not address this issue in its decisions.
10

See 5 U.S.C. § 8101(2); Allen C. Hundley, 53 ECAB 551 (2002).

4

offer any opinion regarding the cause of an employee’s condition is of diminished probative
value on the issue of causal relationship.11 Consequently, Dr. Volpicelli’s report is of diminished
probative value.
On February 10, 2012 Dr. Bulczynski discussed appellant’s history of twisting his right
knee on February 1, 2012 and noted that he had denied any prior injury to the right knee, i.e.,
work related or nonwork related. He diagnosed a right medial meniscus tear. Dr. Bulczynski
asserted that based on his examination and the history obtained it appeared that appellant’s knee
injury arose from the February 1, 2012 work incident. A June 21, 2010 MRI scan study of the
right knee, however, revealed that appellant had a preexisting tear in the posterior horn of the
medial meniscus and chondromalacia of the patella and lateral tibial plateau. Dr. Bulczynski
therefore relied on an inaccurate history when he found that appellant had no prior right knee
condition.
Consequently, his report is of diminished probative value.12
Further,
Dr. Bulczynski’s finding that it “appeared” that appellant’s injury resulted from the February 1,
2012 employment incident is couched in speculative terms and thus insufficient to meet his
burden of proof.13
In progress and form reports dated June through August 2012, Dr. Bulczynski provided
findings on examination and diagnosed a right medial meniscus tear and chondromalacia. He
listed work restrictions. Dr. Bulczynski did not, however, address causation and thus his reports
are of little probative value.14
On October 19, 2012 Dr. Bulczynski indicated that appellant experienced pain after
standing for two days operating a forklift. He diagnosed a medial meniscal tear and
chondromalacia of the right knee. Dr. Bulczynski noted that a 2010 MRI scan of the right knee
showed a right medial meniscus tear but that appellant sustained a considerable increase in
symptoms after he slipped and twisted his knee on February 1, 2010, including a sensation of the
knee giving way, pain and swelling. He provided work restrictions. Dr. Bulczynski, however,
did not explain how a February 1, 2010 incident aggravated the preexisting meniscal tear and
chondromalacia sufficient to cause an injury in 2012. A physician must provide a reasoned
opinion on whether an employment incident caused or contributed to appellant’s diagnosed
medical condition.15
On November 28, 2012 Dr. Bulczynski diagnosed a right medial meniscus tear and
chondromalacia patella and lateral tibial plateau. He provided work restrictions. Dr. Bulczynski

11

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

12

Joseph M. Popp, 48 ECAB 624 (1997) (to establish causal relationship, a physician’s opinion must be based on
a complete and accurate factual and medical background and must be supported by medical rationale).
13

Rickey S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need
not be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).
14

See supra note 11.

15

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

5

did not, however, address causation and thus his report is of little probative value on the issue of
causal relationship.16
On September 6, 2012 Dr. Nordstrom evaluated appellant for knee pain of two years
duration that had increased over the past two weeks. He diagnosed right knee pain due to a work
issue. On September 21, 2012 Dr. Nordstrom again diagnosed right knee pain. He did not,
however, discuss the February 1, 2012 work injury or attribute any condition to the identified
incident; consequently, his opinion is of diminished probative value.
On November 16, 2012 Dr. Lundquist diagnosed left knee arthritis and right knee
degenerative arthritis. As he did not address causation, his report is of little probative value.
An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is a causal relationship between his claimed condition and his
employment.17 Appellant must submit a physician’s report in which the physician reviews those
factors of employment identified by him as causing his condition and, taking these factors into
consideration as well as findings upon examination and the medical history, explain how
employment factors caused or aggravated any diagnosed condition and present medical rationale
in support of his or her opinion.18 He failed to submit such evidence and therefore failed to
discharge his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury on
February 1, 2012 in the performance of duty, as alleged.

16

See Conrad Hightower, supra note 11.

17

D.E., 58 ECAB 448 (2007); George H. Clark, 56 ECAB 162 (2004); Patricia J. Glenn, 53 ECAB 159 (2001).

18

D.D., 57 ECAB 734 (2006); Robert Broome, 55 ECAB 339 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the May 30, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 11, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
U.S. POSTAL SERVICE, MOUNT HOOD
DELIVERY DISTRIBUTION CENTER,
Portland, OR, Employer
__________________________________________

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Appearances:
Judith L. Sala, for the appellant
Office of Solicitor, for the Director

Docket No. 08-1612
Issued: January 7, 2009

Case Submitted on the Record

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

JURISDICTION
On May 19, 2008 appellant filed a timely appeal from the August 6, 2007 decision of the
Office of Workers’ Compensation Programs and the April 3, 2008 decision of an Office hearing
representative denying his claim for a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant is entitled to a schedule award for a loss of equilibrium
caused by his November 9, 2006 employment-related injury.
FACTUAL HISTORY
On November 24, 2006 appellant, then a 58-year-old building equipment mechanic, filed
a traumatic injury claim (Form CA-1) alleging that while at work on November 9, 2006 he was
hit by a black pipe air line causing him to fall off a six-foot-high platform onto a concrete floor.
The accident was witnessed by several of appellant’s coworkers, who stated that he experienced

a brief period of unconsciousness. Appellant was taken by ambulance to the hospital where he
was admitted overnight. On November 10, 2006 he was diagnosed with a closed head injury and
facial contusions. Appellant’s medical records also noted a history of hypertension, posttraumatic stress disorder and a left frontal cavernoma. He was returned to light duty on
December 4, 2006. Appellant was advised to avoid strenuous activity, heavy lifting and
climbing for at least two months.
In a February 15, 2007 decision, the Office accepted appellant’s claim for a head
contusion with brief loss of consciousness.
Appellant was subsequently treated for complaints of dizziness and vertigo. After several
magnetic resonance imaging (MRI) scans ruling out a change in appellant’s preexisting
cavernoma, he was referred to an ears, nose and throat physician. An April 25, 2007 audiogram
revealed high frequency sensorineural hearing loss but with good bilateral speech discrimination.
On June 8, 2007 appellant underwent an electronystagmography (ENG). Findings indicated
canalithiasis in the posterior semicircular canal of appellant’s left inner ear vestibular system,
resulting in a diagnosis of left benign paroxysmal positional vertigo. On August 15, 2007
Dr. James D. Smith, a Board-certified otolaryngologist, diagnosed positional vertigo secondary
to a traumatic injury based on the onset of vertigo shortly after appellant’s loss of consciousness.
He distinguished positional vertigo from the classical benign paroxysmal position vertigo, stating
that the former was hard to treat and slow to recover. Dr. Smith further stated that positional
vertigo secondary to a traumatic injury may never completely clear.
On July 23, 2007 appellant filed a claim for a schedule award. In a July 25, 2007 letter,
the Office informed appellant that he was not entitled to a schedule award under the Federal
Employees’ Compensation Act for a head injury.1 On July 28, 2007 appellant advised that he
was claiming a schedule award for the loss of equilibrium due to inner ear damage.
In a decision dated August 6, 2007, the Office denied appellant a schedule award for his
head injury. Appellant requested an oral hearing on August 16, 2007.
At the January 23, 2008 oral hearing, appellant testified that his hearing was “fairly
good.” He advised that his vertigo has negatively impacted his daily activities, including
showering and working on his barn, and reduced his ability to perform normal work duties.
In an April 3, 2008 decision, the hearing representative affirmed the August 6, 2007
denial of appellant’s claim for a schedule award finding that loss of equilibrium was not a
compensable impairment under the scheduled provisions of the Act.

1

5 U.S.C. § 8107.

2

LEGAL PRECEDENT
The schedule award provision of the Act2 and its implementing regulation3 sets the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. A schedule award is not
payable for the loss or loss of use, of a member or function of the body not specifically listed in
the Act and regulation.4 The Act’s list of scheduled members includes the eye, arm, hand,
fingers, leg, foot and toes.5 The Act also specifically provides for compensation for loss of
hearing and loss of vision.6 Section 8107(c)(22) of the Act vests the Secretary of Labor with the
authority to expand the list of scheduled members to include “any other important external or
internal organ of the body.…”7 In accordance with the authority granted under section
8107(c)(22), the Secretary added the breast, kidney, larynx, lung, penis, testicle, ovary, uterus
and tongue to the list of scheduled members.8 The members and functions listed in the schedule
award provision and the regulation do not include impairments of the back, brain, or the body as
a whole.9
ANALYSIS
The issue is whether appellant is entitled to a schedule award for his loss of equilibrium
resulting from his accepted injury. The Board finds that appellant has not sustained permanent
impairment to a scheduled member and is not entitled to a schedule award.
In order to be eligible for a schedule award, appellant must show that his work injury
caused an impairment of a schedule award member enumerated in the Act. In an April 15, 2007
medical report, Dr. Smith diagnosed appellant with positional vertigo secondary to a traumatic
injury. Appellant testified at the oral hearing that his loss of equilibrium impacted his ability to
perform his normal work and daily life activities. However, a loss of equilibrium is not specified
in the Act or the implementing regulation as a compensable scheduled member. The Board has
consistently denied schedule awards for a loss of equilibrium because it is not listed in the
scheduled provision of the Act or regulations.10 The terms of the Act are specific as to the
method and amounts payable under a schedule award. Neither the Office nor the Board has the
2

Id.

3

20 C.F.R. § 10.404.

4

James E. Jenkins, 39 ECAB 860 (1988).

5

5 U.S.C. § 8107(c).

6

Id.

7

5 U.S.C. § 8107(c)(22).

8

20 C.F.R. § 10.404(a).

9

See 5 U.S.C. § 8101(19); John Litwinka, 41 ECAB 956 (1990).

10

See Richard F. Miebach, 31 ECAB 1474 (1980); Lawrence H. Degroat, 30 ECAB 795 (1980); Thomas E.
Montgomery, 28 ECAB 294 (1977); Leo F. Julien, 22 ECAB 215 (1971).

3

authority to make an award of benefits under any terms other than those specified in the statute
and implementing federal regulations.11
CONCLUSION
Appellant is not entitled to a schedule award because loss of equilibrium is not
enumerated under the schedule award provisions of the Act.
ORDER
IT IS HEREBY ORDERED THAT the April 3, 2008 and August 6, 2007 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: January 7, 2009
Washington, DC

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

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

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

11

See Denise L. Crouch, 57 ECAB 161 (2005); Harry D. Butler, 43 ECAB 859 (1992).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
DEPARTMENT OF THE INTERIOR,
BADLANDS NATIONAL PARK, Interior, SD,
Employer
__________________________________________

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

Docket No. 10-1012
Issued: January 6, 2011

Case Submitted on the Record

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

JURISDICTION
On March 1, 2010 appellant filed a timely appeal from an August 27, 2009 merit decision
of the Office of Workers’ Compensation Programs reducing his compensation benefits.1
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation based on its
determination that his actual earnings as a seasonal visitor use assistant fairly and reasonably
represented his wage-earning capacity.
1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of the Office’s decision. See 20 C.F.R. § 501.3(f)(2). As the Office’s
decision was issued August 27, 2009, the 180-day computation begins on August 28, 2009. Since using March 1,
2010, the date the appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date
of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark is February 23, 2010,
which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

FACTUAL HISTORY
On August 28, 2007 appellant, then a 47-year-old temporary seasonal maintenance
mechanic, filed a claim for an injury to his lower back occurring on August 24, 2007 in the
performance of duty. The Office accepted a lumbar sprain. Appellant received continuation of
pay until October 13, 2007, when his temporary, seasonal position ended. The Office paid him
compensation for total disability beginning October 14, 2007.
On May 12, 2008 Dr. Steve J. Wisniewski, an attending Board-certified internist, found
that appellant could work four hours a day with no lifting over 40 pounds and no repetitive
bending, twisting or stooping. On June 17, 2008 Dr. William V. Watson, a Board-certified
orthopedic surgeon and Office referral physician, listed work restrictions including no lifting
over 15 pounds and walking and standing up to one hour.
The Office determined that a conflict in medical opinion arose regarding the extent of
appellant’s work restrictions and referred him to Dr. Allan R. Wilson, a Board-certified
orthopedic surgeon, for an impartial medical examination. Dr. Wilson diagnosed progressive
multilevel degenerative disc disease aggravated by the August 24, 2007 employment injury. In a
work-restriction evaluation, he provided limitations of lifting up to 20 pounds for four hours a
day and pushing or pulling up to 50 pounds for one hour a day.
On November 7, 2008 the Office accepted permanent aggravation of lumbar degenerative
disc disease. It referred appellant for vocational rehabilitation. The rehabilitation counselor
searched for a position for him with the employing establishment.
On June 3, 2009 the employing establishment offered appellant the position of temporary,
seasonal visitor use assistant with the employing establishment. The position required lifting
under 20 pounds for four hours and pushing and pulling less than 50 pounds for one hour a day.
Appellant accepted the job offer and returned to work on June 22, 2009.
By decision dated August 27, 2009, the Office reduced appellant’s compensation based
on its finding that his actual earning as a temporary, seasonal visitor use assistant effective
June 22, 2009 fairly and reasonably represented his wage-earning capacity. It determined his
loss of wage-earning capacity by applying the formula developed in the Albert C. Shadrick
decision.2
On appeal, appellant noted that Dr. Wilson did not address his ability to stand and bend.
He tried to contact Dr. Wilson about the lack of restrictions in his report and found out that he
had died. The Office informed appellant that it would terminate his compensation if he refused
the position. Appellant asserted that he would not have enough money to support himself and
his family after the reduction. He had to take Neurontin while working which caused side
effects, including suicidal thoughts. Appellant was depressed due to his condition. Prior to his
employment injury, appellant worked as a carpenter off season to add to his income.

2

Albert C. Shadrick, 5 ECAB 376 (1953) codified at 20 C.F.R. § 10.403.

2

LEGAL PRECEDENT
Section 8115(a) of the Federal Employees’ Compensation Act3 provides that, in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by his actual earnings if his actual earnings fairly and reasonably represent her wageearning capacity.4 Generally, wages actually earned are the best measure of a wage-earning
capacity and in the absence of showing that they do not fairly and reasonably represent the
injured employee’s wage-earning capacity, must be accepted as such a measure.5 The formula
for determining loss of wage-earning capacity based on actual earnings, developed in the
Albert C. Shadrick decision,6 has been codified at 20 C.F.R. § 10.403. The Office calculates an
employee’s wage-earning capacity in terms of percentage by dividing the employee’s earnings
by the current pay rate for the date-of-injury job.7
The Office’s procedure manual provides guidelines for determining wage-earning
capacity based on actual earnings:
“a. Factors considered. To determine whether the claimant’s work fairly and
reasonably represented his or her WEC [wage-earning capacity] the CE [claims
examiner] should consider whether the kind of appointment and tour of duty (see
FECA PM 2.900.3) are at least equivalent to those of the job held on the date of
injury. Unless they are, the CE may not consider the work suitable.
“For instance, reemployment of a temporary or casual worker in another
temporary or casual (USPS) position is proper, as long as it will last at least 90
days and reemployment of a term or transitional (USPS) worker in another term
or transitional (USPS) worker is likewise acceptable.
However, the
reemployment may not be considered suitable when:
(1) The job is part-time (unless the claimant was a part-time
worker at the time of injury or sporadic in nature;
(2) The job is seasonal in an area where year-round employment is
available;
(3) The job is temporary where the claimant’s previous job was
permanent.”8
3

5 U.S.C. §§ 8101-8193.

4

Id. at § 8115(a); J.S., 58 ECAB 280 (2007); Loni J. Cleveland, 52 ECAB 171 (2000).

5

Lottie M. Williams, 56 ECAB 198 (2005).

6

Albert C. Shadrick, supra note 2.

7

20 C.F.R. § 10.403(c).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(a) (July 1997).

3

ANALYSIS
The Office accepted that appellant sustained lumbar sprain and a permanent aggravation
of degenerative disc disease due to an August 24, 2007 employment injury. It determined that a
conflict arose between Dr. Wisniewsky, his attending physician and Dr. Watson, who provided a
second opinion examination, on the extent of his work restrictions. The Office referred appellant
to Dr. Wilson for resolution of the conflict. On October 14, 2008 Dr. Wilson diagnosed
progressive multilevel degenerative disc disease aggravated by the August 24, 2007 employment
injury. He found that appellant could lift up to 20 pounds for four hours a day and pushing or
pulling up to 50 pounds for one hour a day.
The employing establishment offered appellant the position of temporary, seasonal visitor
use assistant within the restrictions found by Dr. Wilson. He accepted the position and returned
to work on June 22, 2009. As appellant was in a temporary position at the time of his injury, the
Office may use actual wages in a temporary position to determine his wage-earning capacity.9
However, the position must be available for at least 90 days in order to be appropriate.10 There is
no evidence of record to establish the duration of appellant’s temporary, seasonal position.
Consequently, the Office erred in finding that his wages in his position of temporary, seasonal
visitor use assistant fairly and reasonably represent his wage-earning capacity.11
CONCLUSION
The Board finds that the Office improperly reduced appellant’s compensation based on
its determination that his actual earnings as a visitor use assistant fairly and reasonably
represented his wage-earning capacity.

9

Id.; see also A.P., 58 ECAB 198 (2006).

10

Id.

11

In view of the Board’s disposition of the merits, it will not address appellant’s arguments on appeal.

4

ORDER
IT IS HEREBY ORDERED THAT the August 27, 2009 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: January 6, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5