United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Martinsburg, WV, Employer
__________________________________________

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

Docket No. 13-1749
Issued: April 16, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On July 18, 2013 appellant filed a timely appeal of a June 10, 2013 decision of the Office
of Workers’ Compensation Programs (OWCP) concerning the denial of his traumatic injury
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that his lumbar condition had been caused
or aggravated by the June 24, 2011 employment incident.
Appellant contends on appeal that the claims examiner who prepared OWCP’s June 10,
2013 decision should not have handled its July 12, 2012 decision due to his previous
involvement with the claim.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 16, 2012 appellant, then a 45-year-old distribution clerk, filed a traumatic injury
claim alleging that on June 24, 2011 he sustained a lower back injury and bulging discs due to
pulling mail off the racks and placing trays into the machine.
Accompanying his claim, appellant submitted a May 14, 2012 prescription note listing
work restrictions for 30 days.2
In a March 9, 2012 statement, Amy M. Zobro, a coworker, stated that on June 24, 2011
she started work as a clerk and then at 6:00 a.m. switched over to cover as a supervisor. She
stated that she was working with appellant when he disappeared. Ms. Zobro was told that
appellant had called someone to pick him up because his back was hurting. At the time appellant
never mentioned to her that he had injured himself at work which is why she did not file an
accident report.
Appellant submitted statements from three coworkers who noted that he appeared to be in
pain and that he was picked up by his brother on the day in question.
By letter dated June 8, 2012, OWCP informed appellant that the evidence of record was
insufficient to support his claim. Appellant was advised as to the medical and factual evidence
required to establish his claim and given 30 days to provide this information.
In response to OWCP’s request for additional evidence appellant submitted the following
evidence.
In a June 24, 2011 West Virginia University Hospital report, appellant was diagnosed
with lumbosacral strain and provided aftercare instructions for this condition.
On June 26, 2011 at Winchester Medical Center -- Emergency Department, appellant was
diagnosed with possible lumbar disc disease. An undated discharge note from Dr. Michael
McAuliff, an examining physician, related that appellant had been discharged from Winchester
Medical Center -- Emergency Department on June 26, 2011 and released to work on June 30,
2011 with no work restrictions.
The record also contains Family and Medical Leave Act (FMLA) certifications by
Dr. Michael Poss, a treating physician, dated May 21 and June 20, 2012, which noted that his
medical condition occurred in approximately June 2011. Diagnoses included chronic low back
syndrome, fibromyositis and spondylosis.
A February 14, 2012 work restriction note indicated that appellant was capable of
working four hours per day with restrictions due to a back condition.

2

The signature on the note was illegible.

2

By decision dated July 12, 2012, OWCP denied appellant’s claim on the grounds that he
failed to establish that the diagnosed condition was causally related to the June 24, 2011
employment incident.
In an August 8, 2012 Workers’ Compensation Commission (WCC) Employees’ and
Physicians’ Report of Injury, appellant noted that he injured his back on June 24, 2011 at work
while pulling trays off a rack. At the bottom of the form a certified physician’s assistant3
diagnosed low back strain and recurrent right groin pain. A checkmark denoted the condition
was due to an occupational injury and that appellant was first seen on June 24, 2011 for this
condition.
On January 8, 2013 OWCP received appellant’s request for reconsideration.
By decision dated January 15, 2013, OWCP denied reconsideration.
In a letter dated April 16, 2013, appellant requested reconsideration and submitted
medical and factual evidence in support of his request.
In March 1, 2012 e-mail correspondence, Kathryn Davis, president of the union, noted
that appellant’s back condition began last June when appellant was on the clock and in the
performance of duty. She noted that no incident or accident report had been filed at the time.
In a June 24, 2011 emergency room report, Dr. Brandt H. Williams, an examining Boardcertified emergency room physician, and Kevin R. Garneau, a physician’s assistant, reported that
appellant was seen that day in the emergency room for back and abdominal pain. Appellant
reported back pain mainly in the left lower back over the past several days, which worsened with
range of motion. He stated that his work requires a lot of pulling, pushing and lifting. Appellant
also complained of right lower quandrant abdominal discomfort radiating into the right groin for
the past two to three months. A physcial examination revealed left lower back diffuse tenderness
on palpation. Dr. Williamson diagnosed acute low back strain/pain and recurrent right groin pain
and released appellant to work on June 27, 2011.
In July 19, 2012 progress notes, Dr. Andrew E. Schwentker, a treating Board-certified
internist, noted that appellant was stressed as there was an issue as to whether appellant’s back
pain was due to an employment injury or preexisting condition. He diagnosed back pain and
generalized anxiety disorder/stress reaction. Dr. Schwentker noted that appellant was first seen
for back pain in July 2011. Lastly, he noted that he had not treated appellant for a preexisting
back condition.
The record contains a resubmitted August 8, 2012 WCC Employees’ and Physician’s
Report of Injury with Dr. Williamson’s signature added.
By decision dated June 10, 2013, OWCP denied modification.

3

The signature of the certified physician’s assistant is illegible.

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LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of her claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged; and that any disability
and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 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.6
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.9 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.10
ANALYSIS
The record reflects that appellant is a distribution clerk who alleged that on June 24, 2011
he sustained a lower back injury and bulging discs due to pulling mail off the racks and placing
trays into the machine. OWCP found that the claimed incident occurred. The Board finds,
however, that appellant did not meet his burden of proof to establish that the June 24, 2011
traumatic incident on June 24, 2011 occurred as alleged.
4

5 U.S.C. § 8101 et seq.

5

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

6

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

7

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238
(2005); Donald W. Wenzel, 56 ECAB 390 (2005).
8

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
9

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

10

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

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Appellant stated that on June 24, 2011 he injured his lower back after pulling mail off the
racks and placing trays into the machine. However, he did not file his claim until May 16, 2012,
almost 11 months after the date of the incident, without any explanation for his delay in filing.
Appellant failed to describe how the actions or incidents on June 24, 2011 contributed to his
claimed condition as he provided only a general description of his activities on that date. He
provided no confirmation of the alleged incident by statements of witnesses, coworkers or
supervisors. The statements in the record all note that appellant left work in pain and was picked
up by his brother. Appellant stopped work that day and was released to work with no restrictions
on June 30, 2011. As noted, circumstances such as late notification of injury and lack of
confirmation of injury may cast doubt on appellant’s claim.
The medical evidence at the time of the alleged incident provides a different account of
how the injury occurred. In the June 24, 2011 emergency room report, Dr. Williams reported
that appellant was seen that day in the emergency room for back and abdominal pain. Appellant
reported back pain mainly in the left lower back over the past several days, which worsened with
range of motion. He also complained of right lower quandrant abdominal discomfort radiating
into the right groin for the past two to three months. Appellant related that his work requires a
lot of pulling, pushing and lifting. From the description provided in this report his appears to be
alleging an occupational rather than a traumatic injury as he noted back pain occurring over
several days and noted employment duties.
The Board finds that the evidence does not provide a consistent history of when the
claimed incident occurred. The medical evidence obtained on the day of the June 24, 2011
alleged incident appears to support a claim for an occupational condition rather than a traumatic
one. The statements provided in the record note that appellant was picked up by his brother
because he was in pain, but no accident or incident report was filed. An FMLA certification
notes the condition occurred in approximately June 2011. An August 8, 2012 form report noted
that the injury occurred on June 24, 2011 while pulling racks off a tray. In view of this and
appellant’s delay in filing his claim, the Board finds that there are such inconsistencies that cast
serious doubt on the validity of the claim.11 Therefore, appellant has not met his burden of proof
in establishing that the June 24, 2011 incident occurred as alleged.12
On appeal appellant contends that the claims examiner who prepared OWCP’s June 10,
2013 decision should not have been allowed to handle the reconsideration for the reason that this
claims examiner had been involved in the original denial of his claim on July 12, 2012. By
decision dated January 15, 2013, OWCP denied his request for modification of the July 12, 2012
decision. On June 10, 2013 it denied appellant’s request for reconsideration of the January 15,
2013 merit decision. OWCP’s procedure manual states that each request for reconsideration
must be handled by a senior claims examiner who was not involved in the making of the

11

S.P., 59 ECAB 184 (2007) (an employee has not met his or her burden of proof of establishing the occurrence
of an injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity of the
claim).
12

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

5

contested decision.13 The record on appeal establishes that the contested decision of January 15,
2013 was authored by a different senior claims examiner. Therefore, the Board finds that OWCP
appropriately followed its procedures.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a traumatic injury on June 24, 2011 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 10, 2013 is affirmed as modified.
Issued: April 16, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.2(b) (October 2011).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Philadelphia, PA,
Employer
__________________________________________

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

Docket No. 07-1338
Issued: March 18, 2008

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 April 20, 2007 appellant filed a timely appeal from the May 19, 2006 merit decision
of the Office of Workers’ Compensation Programs, which denied her claim for compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
the case.
ISSUE
The issue is whether appellant injured her left knee in the performance of duty on
August 22, 2003, as alleged.
FACTUAL HISTORY
On August 22, 2003 appellant, then a 47-year-old nurse, sustained an injury in the
performance of duty: “While performing pill line and responding to emergencies, injury
occurred while manipulating pill cart around food service carts and entrances to units. At one

point pill cart rolled back on left foot. I pulled myself out from cart.” She described the nature
of her injury as “lower back and left foot.”
Appellant first obtained medical care on August 25, 2003. A medical note described her
complaint as “lower back pain that runs down left leg” and stated that she injured her lower back
at work. Imaging reports noted appellant’s clinical history as “back pain.” On September 3,
2003 she received a diagnosis of left lower extremity radiculopathy and limitations of no lifting
or bending. The Office accepted appellant’s claim for left-sided sciatica.
On September 11, 2003 appellant informed the Office that she was still experiencing
radiculopathy of the left lower extremity. On September 23, 2003 she wrote to a doctor about
alternative duty. “It is very important that you note,” she stated, “as I explained today that I did
not have any back pain during training and that the acute episode of back pain and numbness to
my left foot and leg did not occur until after my injury on August 22, 2003.” On September 26,
2003 Dr. Vincent A. Renzi, a specialist in internal medicine, indicated that appellant was unable
to perform her usual job because she had chronic lower back pain with radicular symptoms down
the left leg. He described the history of her injury: “While at work on August 22, 2003, giving
out medications and pushing a cart, [appellant] got her foot lodged under the cart and she
managed to pull her foot from the cart, but developed lower back pain with radicular symptoms,
into her left lower extremities, [sic] down into her foot and toes. This was persistent, so she
came to my office on August 25, 2003, for an evaluation. [Appellant] was diagnosed at that
time, as having sciatic radiculopathy.” On September 29, 2003 Dr. Renzi noted degenerative
joint disease of the lumbosacral spine and diagnosed radiculopathy. Appellant underwent an
initial physical therapy evaluation on October 6, 2003. She noted pain in the area of her coccyx
that was referred to the lateral lower extremity and to the lateral toes. On October 7, 2003 the
therapist noted that appellant was a little sore after the last visit and complained of continued low
back pain and aching into the back of the left knee.
On October 13, 2003 Dr. David C. Lee, a consulting neurologist, related appellant’s
history of injury:
“As you know, [appellant] is a pleasant, 47-year-old woman who has been having
problems with radiculopathy and pain in her left buttock radiating down into her
foot. Her pain started when she was pushing a medication cart in the prison
where she works as a nurse and she had to push it through a doorway. The cart
rolled backwards toward [appellant] and onto her left foot and the door behind her
electronically closed. She had to twist her back to pull the cart and she developed
some back pain. [Appellant] also had to pull up on a window several times
leaning over a counter and she thinks that may have aggravated her symptoms.
This was on a Friday night and by Saturday she was starting to have persistent left
buttock pain radiating down her leg with numbness and tingling. By Sunday,
[appellant’s] symptoms were worse and the left foot was numb.”
Dr. Lee noted that appellant had a history of trauma many years ago from a motor vehicle
accident1 but had more cervical pain than lower back pain. He described his findings on physical
1

She had motor vehicle accidents in 1993 and 1996.

2

examination. Dr. Lee reported persistent left buttock pain with findings of neurological
involvement into the left leg.
On October 29, 2003 appellant told her physical therapist that she had weakness in her
left knee in the medial and lateral joint lines. She continued to feel numbness in the lateral foot
and pain in the left distal lower extremity. Dr. Renzi continued to report the diagnosis as
degenerative joint disease of the lumbosacral spine with radiculopathy left.
A November 13, 2003 functional capacity evaluation related the following subjective
history:
“[Appellant] is a 47-year-old female with the current diagnosis of [p]ain and
sciatica, radiculopathy, onset August 22, 2003. [She] reports she was injured
while working as a nurse at a state prison. A medicine cart was pushed onto
[appellant’s] foot causing her to forcefully pull her foot out from under it, thereby
injuring her low back. Her chief complaint now is numbness of her left leg and
lateral three toes, and pain with bending over and reaching to the right side.
[Appellant] reports the pain is in the right side of her low back.”
On December 1, 2003 appellant wrote to the Office of Personnel Management Inspector
General, stating in part: “At this time my left leg is still weak, my left foot still numb and I am
under treatment for hypertension due to the stress of this ongoing charade.” On December 4,
2003 she complained to her physical therapist that, among other things, she had pain in the back
of her left knee when pushing off to go up steps. On December 10, 2003 appellant stated that
during her functional capacity evaluation she had pain to the back of the left knee and in the
lower right back when asked to squat as one of the exercises. On December 19, 2003 she
complained of, among other things, sharp pain at the posterior left knee with stretches.
On January 17, 2004 Dr. Lee reported that appellant was still having pain in her left
buttock radiating down her leg. However, appellant was now complaining of pain more in her
left knee and hip. Dr. Lee noted: “[Appellant] was involved in a motor vehicle accident in
which she was rear ended by another car. She was at a stoplight and the car hit her from behind.
Fortunately, [appellant] did not re-aggravate her lower back pain but has been complaining of
more pain in her knee and hip.”2 Dr. Lee reported that on examination appellant seemed to have
pain in the left medial aspect of her knee.
On February 9, 2004 Dr. Kam Momi, an orthopedic surgeon, related the following
history of injury:
“[Appellant] states that all of a sudden on August 23, [sic] 2003 when she was at
work in the prison in Philadelphia, she stated [that] she was struck by a metal
door, and her medication cart that she pushes as a registered nurse rolled over her
left foot. She subsequently began to have low back pain, and the next day when
she came to work again, any repetitive extension type of activity exacerbated her
back pain and then she began to have pain and numbness down the left leg.”
2

Appellant reported that the motor vehicle accident occurred on December 30, 2003.

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A February 24, 2004 magnetic resonance imaging (MRI) scan showed no evidence of
internal derangement in the left knee but did show a small osteochondral lesion on the medial
femoral condyle, mild chondromalacia patella and subcutaneous edema extending along the
lateral joint line suggesting bursitis. On March 25, 2004 Dr. John M. Gray reported that
appellant was seen for problem with her left knee:
“[Appellant] actually has not had any previous problem with this knee until she
had an injury. She was at work, where she was moving a heavy cart through
some heavy doors. [Appellant’s] foot got trapped and twisted and these doors
seem to push backwards and the cart caught her leg and she caught between them,
this happened to her in a night. She started developing a significant amount of
back pain, pain down her left leg.”
Dr. Renzi noted that the osteochondritic lesion found on the medial femoral condyle
appeared to be old in nature, “but I do think that this is what has been flared up.” He repeated:
“I do think that this is probably an old lesion, however, it has flared up from either the injury or
from the back causing her to limp.”
On June 17, 2004 an Office medical adviser found no evidence at all that appellant’s left
knee lesion was related to her employment injury on August 22, 2003. The Office informed
appellant that her case was not accepted for left knee lesions.
On March 10, 2005 Dr. Mark J. Reiner, an orthopedic surgeon, reported the following
history of injury: “[Appellant] states that, while working handing out medication, she was
caught behind an electronic door. This injured her left knee banging and twisting it. [Appellant]
also injured her lumbosacral spine attempting to disengage herself.” He recommended an MRI
scan of the left knee.
In a decision dated March 30, 2005, the Office denied expanding its acceptance of
appellant’s claim to include her left knee lesion. The Office found that she failed to establish
that her left knee condition was caused by factors of employment.
On April 4, 2005 Dr. Momi reported that appellant was struck by a heavy metal door
while pushing her medication cart during her job as a registered nurse. The cart rolled over her
foot, Dr. Momi, stated, and she had low back pain as well as left knee pain as a direct result of
that injury. He concluded: “It is my opinion that within a reasonable degree of medical
probability, [appellant’s] work injury of August 23, [sic] 2003 caused both her back injury, and
her left knee injury.”
On May 11, 2005 appellant underwent left knee arthroscopy with arthroscopic lateral
meniscectomy, chondroplasty of the medial femoral condyle, synovectomy and resection of
synovial plica.
At a March 1, 2006 oral hearing before an Office hearing representative, appellant
described what happened on August 22, 2003. She stated that meal carts hit her medication cart.
The doors were slamming behind her and she was pinned. The cart rolled over her left foot.
“The cart hit my left knee on the outer part and with the cart sitting on top of me, I couldn’t go
anywhere and I had to try to manipulate to get the cart around the other four carts.”
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In a decision dated May 19, 2006, the Office hearing representative affirmed the denial of
appellant’s claim that she sustained a left knee condition causally related to her August 22, 2003
employment injury.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.3 When
an employee claims that she sustained an injury in the performance of duty, she must submit
sufficient evidence to establish that she experienced a specific event, incident or exposure
occurring at the time, place and in the manner alleged. She must also establish that such event,
incident or exposure caused an injury.4
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and her subsequent course of action. In determining whether a prima facie case
has been established, such circumstances as late notification of injury, lack of confirmation of
injury and failure to obtain medical treatment may, if otherwise unexplained, cast sufficient
doubt on a claimant’s statements. The employee has not met this burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.5
Causal relationship is a medical issue,6 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,7 must be one of reasonable medical certainty,8
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.9
ANALYSIS
Appellant has not established a factual basis for her claim that she injured her left knee on
August 22, 2003. She told Dr. Reiner in March 2005 that she was caught behind an electronic
3

5 U.S.C. § 8102(a).

4

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

5

Carmen Dickerson, 36 ECAB 409 (1985); Joseph A. Fournier, 35 ECAB 1175 (1984). See also George W.
Glavis, 5 ECAB 363 (1953).
6

Mary J. Briggs, 37 ECAB 578 (1986).

7

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

8

See Morris Scanlon, 11 ECAB 384, 385 (1960).

9

See William E. Enright, 31 ECAB 426, 430 (1980).

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door and this “injured her left knee banging and twisting it.” However, this depiction of the
August 22, 2003 injury does not conform with appellant’s early descriptions of what happened or
in the history of injury she reported to her initial medical providers. She originally alleged injury
to her left foot when a pill cart rolled back on it. The first time appellant mentioned her left knee
was to a physical therapist on October 7, 2003. She was a little sore after her initial physical
therapy visit and complained of continued low back pain and aching into the back of the left
knee. Appellant did not mention her knee again until December of that year, when she stated
that she had pain in the back of her left knee when pushing off to go up steps. She also
experienced pain to the back of the left knee and lower right back when asked to squat as one of
the exercises during her functional capacity evaluation and sharp pain at the posterior left knee
with stretches. This was four months after the employment injury. Appellant still provided no
history of the cart striking her knee. Dr. Momi reported on February 9, 2004 that the cart rolled
over appellant’s left foot and that appellant experienced low back pain and radicular pain and
numbness.
After a February 24, 2004 MRI scan showed a small osteochondral lesion on the medial
femoral condyle, appellant appears to have modified the description of the August 22, 2003
incident. On March 24, 2004 Dr. Gray reported that appellant’s foot got “trapped” and
“twisted,” that the cart “caught” her leg. In 2005 appellant added more detail. As noted, she told
Dr. Reiner that she injured her left knee banging and twisting it. In her March 1, 2006 testimony
before the Office hearing representative, appellant stated: “The cart hit my left knee on the outer
part.” This was the first mention by appellant of her left knee being struck in the August 22, 2003
incident, more than two years after the fact.
There is a clear inconsistency between appellant’s late account of a direct knee impact on
August 22, 2003 and the history that is in the contemporaneous factual and medical evidence. She
was late in reporting a left knee injury, and her late account is inconsistent with the facts and
circumstances. The contemporaneous evidence does not confirm a left knee injury, and there is
no convincing explanation for the lack of confirmation. This raises serious doubt on the validity of
appellant’s claim that she injured her left knee on August 22, 2003, as alleged.
There is some medical opinion evidence to support appellant’s claim. Dr. Renzi reported
that the lesion was probably old but had flared up either from the August 22, 2003 employment
injury or from the back causing appellant to limp. But this opinion is clearly speculative and
unsupported by any medical rationale. It has little probative value.10 On April 4, 2005 Dr. Momi
reported to a reasonable degree of medical probability that the August 2003 employment injury
caused both a back injury and a left knee injury. He offered no basis for this opinion. Moreover,
he failed to reconcile his opinion with his February 9, 2004 report, which made no mention of a left
knee injury. His opinion also has little probative value.
Appellant has not established that the cart struck her left knee on August 22, 2003, as
alleged. She has not established through an accurate and well-rationalized medical opinion that
10

See Connie Johns, 44 ECAB 560 (1993) (holding that a physician’s opinion on causal relationship must be one of
reasonable medical certainty, supported with affirmative evidence, explained by medical rationale and based on a
complete and accurate medical and factual background). See generally Melvina Jackson, 38 ECAB 443, 450 (1987)
(discussing the factors that bear on the probative value of medical opinions).

6

such an incident, if it did occur, caused or aggravated the osteochondral lesion on her medial
femoral condyle or any other diagnosed left knee condition.
CONCLUSION
The Board finds that the evidence fails to establish that appellant injured her left knee in
the performance of duty on August 22, 2003, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the May 19, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 18, 2008
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
BROADVIEW HEIGHTS VETERANS
MEDICAL CENTER, Brecksville, OH, Employer
__________________________________________

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

Docket No. 10-1709
Issued: March 17, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 15, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated March 26, 2010 denying her claim for
compensation. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden to establish that she sustained an
occupational disease in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 4, 2009 appellant, then a 47-year-old registered nurse, filed an occupational
disease claim alleging that the working conditions caused an exacerbation of her Tourette’s
syndrome and post-traumatic stress disorder. She stated that the nurse-to-patient ratio and the
needs of the spinal cord injury population created emotional, physical and psychological
demands which became overwhelming. Appellant was first aware of her condition on May 13,
1995 and that it was caused or aggravated by her employment on August 17, 2009. She stopped
work on May 20, 2009.
In an August 14, 2009 letter, the Office informed appellant that the evidence of record
was insufficient to support her occupational disease claim. It advised her as to the additional
factual and medical evidence necessary and allowed 30 days for submission of the requested
information. No evidence was received.
By decision dated September 17, 2009, the Office denied appellant’s claim on the
grounds that she failed to establish fact of injury.
The Office received a September 18, 2009 statement from appellant which discussed her
employment duties. Appellant noted that she was not claiming post-traumatic stress disorder but
that her Tourette’s syndrome became worse. She stated that her physician was in the process of
completing the required medical documentation.
In a September 14, 2009 letter, the employing establishment advised that appellant had
been employed at the medical center since July 23, 1995 and voluntarily joined the spinal cord
unit in January or February 2009. It noted that her absence from work might be connected to
administrative matters as she had received a report of contact from her supervisor on April 21,
2009 related to her failure to document the “Activity of Daily Living and Treatment” notes for
several patients.
In a September 28, 2009 letter, appellant’s attorney requested a telephonic hearing, which
was held January 6, 2010. At the hearing, appellant testified as to the work duties she believed
led to an exacerbation of her Tourette’s syndrome and contended that the day to day stress from
her duties caused her condition to worsen. Appellant and her attorney were advised of the
medical evidence necessary to establish her claim and the record was held open for 30 days to
allow for the submission of additional evidence.
In a January 5, 2010 letter, appellant stated that the date of injury was May 13, 2009. On
February 1, 2010 the Office received a copy of a January 19, 2010 letter in which appellant
requested copies of her psychotherapy notes for the period March 1 to December 15, 2009.
However, no medical evidence was submitted to the record.
In a January 29, 2010 letter, the employer advised that appellant worked on the spinal
cord unit from February 1, 2009 through May 21, 2009 and was off work in a non pay status
from May 22, 2009 until October 30, 2009 when she returned to duty at reduced hours. It
asserted that appellant’s absence from work beginning in May 2009 was due to self-generated
stress she felt in connection with her concerns over being written up for performance and

2

conduct problems. The employer provided documents that noted appellant’s concern over the
number of people who were getting written up or counseled for error in the unit. While the
record indicates appellant received a report of contact on April 20, 2009, there is no indication
that appellant received any discipline.
By decision dated March 26, 2010, an Office hearing representative affirmed the denial
of appellant’s claim. The hearing representative found that her job included the constant
monitoring of paralyzed patients; but appellant failed to submit medical evidence to establish
that her Tourette’s syndrome was related to her employment.
LEGAL PRECEDENT
An employee seeking benefits under the Act2 has the burden of establishing the essential
elements of his claim, including the fact that the individual is an employee of the United States
within the meaning of the Act, that the claim was timely filed within the applicable time
limitation period of the Act, that an injury was sustained in the performance of duty as alleged
and that any disabilities and/or specific conditions for which compensation is claimed are
causally related to the employment injury.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.5 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a

2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

Joseph W. Kripp, 55 ECAB 121 (2003); see also Leon Thomas, 52 ECAB 202, 203 (2001). When an employee
claims that he sustained injury in the performance of duty he must submit sufficient evidence to establish that he
experienced a specific event, incident or exposure occurring at the time, place and in the manner alleged. He must
also establish that such event, incident or exposure caused an injury. See also 5 U.S.C. § 8101(5) (injury defined);
20 C.F.R. § 10.5(q) and (ee) (2002) (Occupational disease or Illness and Traumatic injury defined).
5

See S.P., 59 ECAB 184, 188 (2007).

6

See R.R., 60 ECAB ___ (Docket No. 08-2010, issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238,
241 (2005).

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causal relationship between the claimant’s diagnosed condition and the implicated employment
factors.7
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.8 An award of
compensation may not be based on appellant’s belief of causal relationship.9 Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.10
ANALYSIS
The Office accepted that appellant’s job included monitoring paralyzed patients. The
Board finds there is no medical evidence of record to establish that appellant’s work as a nurse
caused or aggravated her Tourette’s syndrome.
Appellant contended that her Tourette’s syndrome was exacerbated by the working
conditions of the spinal cord unit. The Board has held that the mere fact that a condition
manifests itself during a period of employment does not raise an inference that there is a causal
relationship between the two.11 Neither the fact that the condition became apparent during a
period of employment, nor the belief that the condition was caused or aggravated by employment
factors or incidents, is sufficient to establish causal relationship.12 Causal relationship must be
substantiated by reasoned medical opinion evidence which is appellant’s responsibility to submit.
Therefore, appellant’s belief that her condition was caused by the work-related incident is not
determinative.
The Office advised appellant that it was her responsibility to provide a comprehensive
medical report, which described her symptoms, diagnostic test results, provided a firm diagnosis,
treatment and a physician’s opinion, with medical reasons, on the cause of her condition.
Appellant failed to submit medical evidence in response to the Office’s request. She did not
submit any medical evidence addressing how particular duties or aspects of her job aggravated
her Tourette’s syndrome. There is no probative, rationalized medical opinion on whether her
claimed condition was caused or aggravated by her employment. Appellant has not met her
burden of proof to establish her claim.

7

I.J., 59 ECAB 408, 415 (2008).

8

Katherine J. Friday, 47 ECAB 591, 594 (1996).

9

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

10

Id.

11

See Joe T. Williams, 44 ECAB 518, 521 (1993).

12

Id.

4

CONCLUSION
The Board finds that appellant has failed to establish that she sustained an occupational
disease in the performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the March 26, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 17, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 14-597
Issued: June 20, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 16, 2014 appellant, through her attorney, filed a timely appeal from the
December 9, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
which denied her traumatic injury claim. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury on March 8, 2012.
FACTUAL HISTORY
On April 9, 2012 appellant, then a 44-year-old letter carrier, filed a traumatic injury claim
alleging that on March 8, 2012 she sustained a head injury when she bent down to pick up a
1

5 U.S.C. §§ 8101-8193.

package from the floor of her truck and bumped her head on a shelf when she stood up. She
stopped work on March 13, 2012. In an undated note, appellant advised her supervisor, Acting
Manager Carl Davis, that she was unable to come to the station because of medical reasons.
The employing establishment controverted the claim. In the supervisor’s report on
appellant’s claim form, Mr. Davis noted that it was unknown if appellant was in the performance
of duty at the time of the injury as she did not report the accident until April 13, 2012 and no
investigation was done. In an April 13, 2012 statement, Mr. Davis stated that on April 13, 2012
appellant had filed a claim for a March 8, 2012 injury but had never reported the accident to
management. He noted that she had called in sick on March 13, 2012 and then had surgery on
her head. When appellant was discharged from the hospital she submitted documentation that
stated only that she was under medical care. It was only after she went back into the hospital on
March 27, 2012 that she wanted to file a Form CA-1. On March 30, 2012 the union had
submitted a grievance investigation requesting various forms and that this was the first time that
management was aware that appellant was claiming an on-the-job injury.
Appellant submitted an undated statement reiterating the history of injury as occurring
“approximately on March 8, 2012.” In a March 22, 2012 note from the Department of
Neurosurgery of Kings County Hospital Center, a Dr. Tsai stated that appellant could not return
to work for at least one month. In an April 5, 2012 note, a physician with an illegible signature
stated that a few weeks prior to surgery appellant was at work handling send boxes and bent
down to pick up a package and on her way up she hit her head on a metal shelf. The physician
opined that her subdural hematoma could have been as a result of trauma to the head.
On June 25, 2012 appellant filed a claim for wage loss from May 5, 2012 and continuing.
By letter dated July 2, 2012, OWCP advised appellant that when her claim was initially
received a payment of a limited amount of medical expenses was administratively approved as
the injury appeared to be minor and resulted in minimal or no lost time from work. Further, the
employing establishment did not challenge the merits of the case or controvert continuation of
pay. It advised appellant that her claim had been reopened as she filed a wage-loss claim and the
employing establishment controverted the claim. OWCP advised her that the documentation
received was insufficient to support her claim and to submit additional factual and medical
evidence. It requested that appellant respond to the questions regarding the alleged incident and
to provide witness statements or any other documentation to support her claim as well as an
explanation as to why she delayed reporting the claimed employment incident and whether she
had any similar disability or symptoms prior to March 8, 2012. OWCP also requested that she
submit a physician’s reasoned opinion addressing the causal relationship of her subdural
hematoma. Appellant was provided 30 days to submit the requested information. No additional
evidence was received.
By decision dated August 10, 2012, OWCP denied appellant’s claim. It found that the
alleged incident of March 8, 2012 occurred as alleged but the medical evidence did not establish
that her subdural hematoma was caused by the accepted work incident.
On October 1, 2012 OWCP received an undated request for reconsideration. In a
September 18, 2012 report, Dr. Renan Macias, a Board-certified anesthesiologist, stated that he

2

performed a comprehensive neurologic examination of appellant on July 26, 2012 for persistent
frontal-occipital headaches, greater on the right side; dizziness; nausea; swelling; and tenderness
of the right frontal area. Appellant was asymptomatic for the aforementioned symptoms until
March 8, 2012 when she was injured at work about 12:30 p.m. at a specific address in
Brooklyn, NY. Dr. Macias stated that appellant was working inside a postal truck, bent down to
pick up a package from the floor of the truck and bumped her head against a metal shelf when
she stood up. Appellant became dazed, developed severe pounding headaches, dizziness and
nausea. Because of persistent headaches, she went to Kings County Hospital Center in Brooklyn
two days later, where she was diagnosed with a right side subdural hematoma and admitted for
surgical treatment. Dr. Macias stated that days later, while in the hospital, appellant developed
another subdural hematoma on the left side of the brain, which required surgery to remove the
blood collection. He diagnosed post-traumatic headaches (cephalgia), dizziness, nausea, late
effect of injury of the head and abnormal electroencephalogram (EEG). Dr. Macias opined that
the subjective and objective findings described resulted in serious limitations to appellant’s
intellectual, effectual and general physical functioning and that the stated diagnoses were
causally related to the March 8, 2012 accident.
By decision dated December 14, 2012, OWCP modified the August 10, 2012 decision to
find that the March 8, 2012 incident was not established. It found that the evidence of record
cast doubt upon appellant’s claim due to a lack of notification of her injury. OWCP noted that
appellant was provided the opportunity to clarify the factual deficiencies in her claim, but did not
respond.
On September 11, 2013 OWCP received a September 5, 2013 request for reconsideration
from appellant’s attorney. Counsel contended that appellant’s narrative statement of the claimed
incident clearly identified the employment factor that caused the claimed injury and that her
explanation of the relationship between her injury and the claimed incident was reasonable and
credible.
In a June 17, 2013 report, Dr. Macias listed the history of an accident at work on
March 8, 2012 when appellant bent down to pick up a parcel from the floor of the truck and
bumped her head against a metal shelf. Appellant became dazed, felt dizzy but continued
working. She subsequently developed severe, throbbing headaches with dizziness, blurred
vision, nausea and insomnia. Because of persistent headaches, appellant went to the emergency
room where it was determined that she had a subdural hematoma on the right side and she had
surgery. While in the hospital, she developed severe headaches again and had surgery to remove
a left side subdural hematoma. Dr. Macias indicated that appellant was employed but unable to
work since the accident due to severe, frequent headaches, insomnia and forgetfulness. He noted
examination findings and diagnosed right subdural hematoma removal; left subdural hematoma
removal; contusion of the face and right eye orbit; late effect of injury of the head; post-traumatic
headaches, dizziness, forgetfulness; post-traumatic memory impairment; post-traumatic sleep
disorder; partial epilepsy with memory and ideational disturbances; abnormal EEG. Dr. Macias
noted that severe closed-head injuries can cause subdural hematoma-type that appellant
developed three to four days after she bumped her head. He provided a definition of subdural
hematoma and explained that, with lateral forces, contusion may occur at the site of the blow to
the head or at the opposite side as the brain impacts on the inner table of the skull and explains
why she developed another subdural hematoma on the opposite side. Dr. Macias opined that the

3

subjective and objective findings resulted in serious limitations of appellant’s intellectual,
effectual and general physical functioning and are causally related to the March 8, 2012 accident.
He further opined that she was totally disabled and has severe pounding headaches, sleep
disorder, poor mental concentration, fainting like episodes, abnormal EEG compatible with
seizure activity that requires medical treatment. A copy of the July 31, 2012 EEG was provided.
By decision dated December 9, 2013, OWCP denied modification of its prior decision
finding inconsistencies in the factual and medical evidence which cast doubt upon the validity of
her claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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
of FECA, that an injury was sustained in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed is causally related to the
employment injury. 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.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged. Second, the employee must submit
medical evidence to establish that the employment incident caused a personal injury.3
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.4
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action. An employee has not met his or her burden in establishing the
occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim. Circumstances such as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury and failure to obtain medical treatment may, if otherwise unexplained, cast doubt on an
employee’s statement in determining whether a prima facie case has been established.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
2

Gary J. Watling, 52 ECAB 357 (2001).

3

T.H., 59 ECAB 388 (2008).

4

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

5

Betty J. Smith, 54 ECAB 174 (2002).

4

background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS
OWCP denied appellant’s claim on the grounds that she failed to establish that the
March 8, 2012 incident occurred as alleged. Appellant alleged that on March 8, 2012 she
bumped her head against the metal shelf when she stood up after bending down to pick up a
package from the floor of the delivery truck. The record indicates, without verification as to the
dates or hospital records, that appellant was admitted to a hospital two days later for a right-sided
subdural hematoma. She underwent surgery for a left-sided subdural hematoma. The Board
finds that the evidence of record contains numerous inconsistencies that cast serious doubt upon
the validity of the claim.
On April 9, 2012 appellant filed a claim for an employment incident which occurred on
March 8, 2012. However, the employing establishment was not made aware of such incident
until March 30, 2012. On April 13, 2012 Mr. Davis noted that appellant did not report the
March 8, 2012 incident to management until March 30, 2012. He noted that appellant had called
in sick on March 13, 2012 and then had surgery on her head. Mr. Davis stated that appellant
went back to the hospital on March 27, 2012 and filed a Form CA-1. Due to her delay in
reporting the incident and the employing establishment’s controversion of the claim OWCP
requested that appellant provide additional factual information. However, she did not respond.
Because of the nature of the injury in this case, subdural hematoma, it is necessary for her to
provide an explanation as to why she delayed reporting the claimed employment incident of
March 8, 2012 to the employing establishment, whether she sustained any other injuries between
the date of the claimed injury and the date it was first reported to your supervisor and to a
physician, and whether she had any similar disability or symptoms prior to March 8, 2012.
These factual deficiencies must be clarified before it can be accepted that the claimed
employment incident of March 8, 2012 occurred and caused or contributed to appellant’s
subdural hematomas.
Furthermore, the medical evidence contains several inconsistencies that require
clarification by appellant and her physician. As noted, the hospital records have not been
provided in this case to ascertain when appellant underwent subdural hematoma surgery and the
history of injury related in the emergency room. The March 22, 2012 medical report failed to
diagnose any medical condition or refer to the claimed employment incident of March 8, 2012.
In the April 5, 2012 report, the physician listed a history of injury as a few weeks prior to
surgery, appellant had bent down to pick up a package and on her way up had hit her head on a
metal shelve. However, the physician did not provide the date of the claimed employment
incident. Further, he gave an equivocal opinion that subdural hematoma “could have been due”

6

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

5

to the trauma to the head without providing sufficient medical rationale.7 These reports are
insufficient to establish appellant’s claim.
The medical evidence from Dr. Macias dated September 18, 2012 and June 17, 2013
contains several discrepancies that cast serious doubt on the validity of the claim. Dr. Macias
first started treating appellant on July 26, 2012, more than four months after the alleged
employment incident of March 8, 2012. In his September 18, 2012 report, he indicated that
appellant was injured at work on March 8, 2012 about 12:30 p.m. at a specific address in
Brooklyn, NY. Dr. Macias noted the history of injury as appellant bent down to pick up a
package from the floor of the postal truck and bumped her head against the metal shelf when she
stood up. He indicated that she became dazed, developed severe pounding headaches, dizziness,
nausea feelings and, because of persistent headaches she went to Kings County Hospital Center
in Brooklyn two days later, where she was diagnosed with a right side subdural hematoma and
immediately admitted for surgical removal of the subdural hematoma. Dr. Macias stated that
days later, while in the hospital, appellant developed another subdural hematoma on the left side
of the brain, which required another surgery to remove the blood collection.
While Dr. Macias indicated that appellant was admitted to the hospital two days after the
injury for a right side subdural hematoma, Mr. Davis, appellant’s supervisor, had noted that
appellant had called in sick on March 13, 2012 and then had surgery on her head. This is longer
than two days. While Dr. Macias diagnosed several conditions which he opined were causally
related to the March 8, 2012 accident, he provided no medical rationale. In his June 17, 2013
report, he again reported the history of injury as being at work on March 8, 2012 when appellant
bent down to pick up a parcel from the floor of the truck and bumped her head against a metal
shelf and became dazed, felt dizzy, but continued working. Dr. Macias indicated that later on
appellant developed severe, throbbing headaches with dizziness, blurred vision, nausea, insomnia
and, because of persistent headaches, she went to the emergency room where it was determined
she had a subdural hematoma on the right side and she had surgery to evacuate a right subdural
hematoma. While in the hospital, appellant developed severe headaches again and had surgery
to remove a left side subdural hematoma. Dr. Macias indicated that severe closed-head injuries
can cause subdural hematoma-type that appellant developed three to four days after she bumped
her head. This contradicts his earlier report in which he indicated that appellant was hospitalized
two days after the alleged employment incident. Additionally, Dr. Macias indicated that
appellant developed the left-sided subdural hematoma due to lateral forces. However, appellant
indicated that she bumped her head against a metal shelf as she was standing up. Therefore, it is
unclear how her head was struck with “lateral forces.” Furthermore, according to Dr. Macias,
appellant developed severe symptoms immediately after the claimed injury and went to the
hospital two days later. It is unclear why she delayed reporting the claimed injury to the
employing establishment when she developed severe symptoms after the claimed injury.
Furthermore, although Dr. Macias opined that serious limitations of appellant’s intellectual,
effectual and general physical functioning are causally related to the March 8, 2012 accident and
she was totally disabled, he did not provide a well-reasoned medical explanation as to how
bumping her head against the metal shelf when standing up caused the right-sided subdural
7

Medical opinions that are speculative or equivocal in character are of diminished probative value. D.D., 57
ECAB 734 (2006).

6

hematoma. He offered an explanation that the left side subdural hematoma occurred due to
lateral forces. However, there is no indication that lateral forces were involved. The July 31,
2012 EEG has no relevance to establishing the factual portion of appellant’s claim.
Counsel argues that the evidence established fact of injury and causal relationship. As
noted, the inconsistencies and late notification of injury in this case cast serious doubt upon the
validity of the claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a traumatic injury to her head.
ORDER
IT IS HEREBY ORDERED THAT the December 9, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 20, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF THE NAVY, FIRE &
EMERGENCY SERVICES, San Diego, CA,
Employer
__________________________________________

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

Docket No. 21-0373
Issued: September 9, 2021

Case Submitted on the Record

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

JURISDICTION
On January 14, 2021 appellant filed a timely appeal from a December 29, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted September 24, 2020 employment incident.
FACTUAL HISTORY
On September 29, 2020 appellant, then a 40-year-old fire protection and prevention
specialist, filed a traumatic injury claim (Form CA-1) alleging that on September 24, 2020 he
1

5 U.S.C. § 8101 et seq.

sustained an injury to his right hand, “specifically wrist,” when he stepped off the rear of an engine
and his heel caught the edge of a fan on the ground causing him to fall backwards and landing on
his right hand while in the performance of duty. He stopped work on October 13, 2020.
Appellant submitted a September 29, 2020 witness statement from his captain, B.T., who
indicated that on September 24, 2020, while checking equipment on the fire apparatus, appellant
stepped off the rear of the truck and hit his heel on a fan, falling backwards onto the concrete using
his right hand to break his fall.
On October 15, 2020 Dr. Patricia Brady, a Board-certified family practitioner, noted that
appellant was unable to attend work/school for two weeks due to medical reasons.
In a certification of injury and/or return to work/school dated October 20, 2020, Amy L.
Trautman, a physician assistant, noted treating appellant on October 20, 2020 for a right wrist
injury. She returned appellant to work light duty with a wrist brace and full duty on
November 18, 2020.
An x-ray of appellant’s right wrist taken on October 20, 2020 demonstrated a slightly
sclerotic appearance of the hook of the hamate, possibly a healing fracture.
On November 13, 2020 Dr. Mathew J. Meunier, a Board-certified orthopedist, treated
appellant and indicated that he was recovering from a right wrist injury and would require an
additional week off work.
In a development letter dated November 19, 2020, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of factual and medical evidence required and
provided a questionnaire for his completion. OWCP afforded appellant 30 days to submit the
necessary evidence.
OWCP received additional evidence. A computerized tomography (CT) scan of the right
upper extremity, dated November 13, 2020, revealed os styloideum at the base of the third
metacarpal with arthritis between the os and third metacarpal.
Appellant was treated by Kathryn Chrzanowski a physician assistant, on November 19,
2020, for a right wrist injury occurring at work on September 24, 2020. Ms. Chrzanowski
indicated that appellant could return to work without restrictions on November 23, 2020.
Dr. Meunier treated appellant on November 20, 2020 for a right wrist injury occurring at
work on September 24, 2020. He returned appellant to regular-duty work on November 23, 2020.
Appellant was seen again by Dr. Meunier on November 25, 2020 for a right wrist injury and he
related that appellant could resume light-duty work on November 23, 2020.
In a medical referral form dated November 30, 2020, Leslie-Jean Sanchez, a physician
assistant, cleared appellant to return to regular-duty work on November 30, 2020.
By decision dated December 29, 2020, OWCP denied appellant’s traumatic injury claim,
finding that he had not submitted medical evidence containing a medical diagnosis in connection

2

with his accepted employment incident. It concluded, therefore, that the requirements had not
been met to establish an injury as defined under FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 2 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 of FECA,3 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.4 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. 5
In order to determine whether an employee actually sustained an 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 which must be considered in conjunction with one another. The
first component to be established is that the employee actually experienced the employment
incident which is alleged to have occurred. 6 The second component is whether the employment
incident caused a personal injury and generally can be established only by medical evidence. 7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 8 The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment incident identified by the claimant. 9

2

Id.

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr. 40
ECAB 312 (1988).
5

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).
6

Id.; Elaine Pendleton, 40 ECAB 1143 (1989).

7

K.L., Docket No. 18-1029 (issued January 9, 2019). See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J.
Carlone 41 ECAB 354, 356-57 (1989).
8

M.S., Docket No. 19-1096 (issued November 12, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

R.S., Docket No. 19-1484 (issued January 13, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

3

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted September 24, 2020 employment incident.
On October 15, 2020 Dr. Brady noted that appellant was unable to attend work/school for
two weeks due to medical reasons. On November 13, 2020 Dr. Meunier indicated that appellant
was recovering from a right wrist injury and would require an additional week off work. On
November 20 and 25, 2020 he treated appellant in follow up for a right wrist injury occurring at
work on September 24, 2020 and returned appellant to work without restrictions on
November 23, 2020. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.10 Therefore, these reports are insufficient to establish appellant’s claim.
Appellant submitted reports from Ms. Trautman dated October 20, 2020, Ms. Sanchez
dated November 30, 2020, and Ms. Chrzanowski dated November 19, 2020, all physician
assistants. The Board has held that medical reports signed solely by a physician assistant are of
no probative value as such healthcare providers are not considered physicians as defined under
FECA and are, therefore, not competent to provide medical opinions. 11 Consequently, their
medical findings and/or opinions will not suffice for purposes of establishing entitlement to FECA
benefits.12
Appellant submitted an x-ray of appellant’s right wrist taken on October 20, 2020 and a
CT scan of the right upper extremity dated November 13, 2020. The Board has held, however,
that diagnostic testing reports, standing alone, lack probative value on the issue of causal
relationship as they do not address the relationship between accepted employment factors and a
diagnosed condition.13 For this reason, these diagnostic reports are insufficient to meet appellant ’s
burden of proof.
As appellant has not submitted rationalized, probative medical evidence sufficient to
establish a diagnosed medical condition in connection with his September 24, 2020 employment
incident, the Board finds that he has not met his burden of proof.

10

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

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); R.H., Docket No. 20-1684 (issued August 27, 2021); David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists
are not competent to render a medical opinion under FECA).
11

12

R.H., id.

13

W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

4

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted September 24, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the December 29, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 9, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kearney, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1140
Issued: October 7, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 10, 2008 appellant filed a timely appeal from an October 2, 2007 decision of
the Office of Workers’ Compensation Programs regarding a schedule award. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established that she sustained more than an eight
percent impairment of the right upper extremity. On appeal, appellant contends that there is a
conflict of medical opinion between Dr. David Weiss, an attending osteopath, and an Office
medical adviser.
FACTUAL HISTORY
The Office accepted that on November 26, 1999 appellant, then a 46-year-old mail
handler, sustained right carpal tunnel syndrome due to pushing heavy postal containers.1
1

The Office initially denied the claim by decision dated January 11, 2000. Following a hearing and submission
of additional evidence, it accepted the claim on September 26, 2000.

Dr. Thomas E. Helbig, an attending Board-certified orthopedic surgeon, first diagnosed right
carpal tunnel syndrome on December 13, 1999, with a weak right hand grip and markedly
positive Tinel’s sign. February 2, 2000 electrodiagnostic studies confirmed a right median nerve
latency.
On June 8, 2003 appellant claimed a schedule award. She submitted a March 25, 2003
report from Dr. Weiss, who reviewed the medical records and provided a history of injury and
treatment. Dr. Weiss related appellant’s description of difficulty sleeping and performing
activities of daily living due to right wrist pain. Appellant described her pain as a “pins and
needles” sensation rated at 6 out of 10 in severity. On examination, Dr. Weiss found a full range
of motion of the wrist, no thenar or hypothenar atrophy, a negative Phalen’s sign, positive
Tinel’s sign, positive carpal compression test, diminished grip strength and a 4/5 weakness of
resistive wrist extension. He diagnosed right carpal tunnel syndrome and a repetitive trauma
disorder. Referring to the fifth edition of the American Medical Association, “Guides to the
Evaluation of Permanent Impairment” (hereinafter, “A.M.A., Guides”), Dr. Weiss stated that
appellant had a 20 percent impairment of the right upper extremity due to grip strength deficit
according to Table 16-342 and a 9 percent impairment due to motor strength deficit in the wrist
extensors according to Tables 16-113 and 16-15.4 He combined these two percentages to equal a
27 percent impairment of the right upper extremity. Dr. Weiss then assessed a three percent
impairment due to pain according to Figure 18-1.5 He totaled these percentages to equal a 30
percent impairment of the right upper extremity. Dr. Weiss opined that appellant had reached
maximum medical improvement as of the March 25, 2003 examination.
On October 10, 2003 and January 19, 2007 the Office referred the medical record and a
statement of accepted facts to an Office medical adviser to calculate a schedule award.6
In a January 31, 2007 report, an Office medical adviser found that, according to Table 16107 of the A.M.A., Guides, appellant had a Grade 4 or 13 percent sensory deficit due to median
nerve symptoms without reduced sensation. According to Table 16-15, the maximum sensory
deficit for the median nerve below the forearm was 39 percent. Multiplying the 13 percent
Grade 4 impairment by the maximum 39 percent upper extremity impairment resulted in a 5
2

A.M.A., Guides 509 (fifth edition), Table 16-34 is entitled “Upper Extremity Joint Impairment Due to Loss of
Grip or Pinch Strength.”
3

Id. at 484, Table 16-11 is entitled “Determining Impairment of the Upper Extremity Due to Motor and Loss-ofPower Deficits Resulting From Peripheral Nerve Disorders Based on Individual Muscle Rating.”
4

Id. at 492, Table 16-15 is entitled “Maximum Upper Extremity Impairment Due to Unilateral Sensory or Motor
Deficits or to Combined 100 percent Deficits of the Major Peripheral Nerves.”
5

Id. at 574, Figure 18-1 is entitled “Algorithm for Rating Pain-Related Impairment in Conditions Associated
With Conventionally Ratable Impairment.”
6

The record indicates that the Office did not obtain an office medical adviser’s report or otherwise develop the
schedule award claim between October 10, 2003 and January 9, 2007. Appellant submitted letters of inquiry from
2004 through 2006 regarding the status of her schedule award claim.
7

A.M.A., Guides 482, (fifth edition), Table 16-10 is entitled “Determining Impairment of the Upper Extremity
Due to Sensory Deficits of Pain Resulting From Peripheral Nerve Disorders.”

2

percent impairment of the right upper extremity. Regarding motor nerve deficit, the medical
adviser opined that appellant had a Grade 4 or 25 percent deficit according to Table 16-11.
Multiplying the 25 percent by the 10 percent maximum impairment for the median nerve
according to Table 16-15, equaled 2.5 percent and rounded up to 3 percent. The medical adviser
then used the Combined Values Chart on page 604 to arrive at an eight percent impairment of the
right upper extremity. The medical adviser explained that, according to pages 493 to 495 of the
fifth edition of the A.M.A., Guides, the correct method of assessing impairment due to
entrapment neuropathy excluded impairment values for decreased grip strength. Also, Dr. Weiss
inappropriately added a pain rating under Figure 18-1 as appellant received a pain impairment
rating under Table 16-10.
By decision dated March 8, 2007, the Office granted appellant a schedule award for an
eight percent permanent impairment of the right upper extremity. The period of the award ran
from March 25 to September 15, 2003. In a March 16, 2007 letter, appellant requested a hearing,
held July 26, 2007. At the hearing, appellant, through her attorney, asserted that the Office
medical adviser’s report was insufficiently rationalized to carry the weight of medical opinion.
Alternatively, appellant’s attorney alleged a conflict of medical evidence between Dr. Weiss and
the Office medical adviser. Following the hearing, she submitted an August 27, 2007 letter
asserting that pain and paresthesias in her right hand interfered with activities of daily living.
By decision dated and finalized October 2, 2007, an Office hearing representative
affirmed the March 8, 2007 schedule award. The hearing representative found that the Office
medical adviser’s opinion remained controlling as he correctly applied the A.M.A., Guides to
Dr. Weiss’ findings and offered detailed rationale for his rating. The hearing representative
found that Dr. Weiss erred by including a pain impairment under Figure 18-1 and a grip strength
deficit.
LEGAL PRECEDENT
The schedule award provisions of the Federal Employees’ Compensation Act8 provide for
compensation to employees sustaining impairment from loss or loss of use of specified members of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the Office as a standard for
evaluation of schedule losses and the Board has concurred in such adoption.9 As of February 1,
2001, schedule awards are calculated according to the fifth edition of the A.M.A., Guides,
published in 2000.10

8

5 U.S.C. §§ 8101-8193.

9

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

3

The standards for evaluating the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.11 Chapter 16
of the fifth edition of the A.M.A., Guides provides a detailed grading scheme and procedures for
determining impairments of the upper extremities due to pain, discomfort, loss of sensation, or
loss of strength.12
ANALYSIS
The Office accepted that appellant sustained right carpal tunnel syndrome. It granted
appellant a schedule award for an eight percent permanent impairment of the right upper
extremity due to accepted carpal tunnel syndrome, based on a review by an Office medical
adviser of a March 25, 2003 assessment performed by Dr. Weiss, an attending osteopath. The
Board finds that Dr. Weiss did not properly utilize the A.M.A., Guides in assessing appellant’s
percentage of permanent impairment.
In his January 31, 2007 report, Dr. Weiss observed positive Tinel’s and carpal tunnel
compression signs, a 4/5 weakness of wrist extension against resistance and diminished grip
strength on the right. Based on these findings, he opined that appellant had a 30 percent
impairment of the right upper extremity according to the fifth edition of the A.M.A., Guides.
Dr. Weiss assessed a combined 27 percent impairment of the left upper extremity, 20 percent due
to loss of grip strength and 9 percent due to the motor strength deficit. He then added a three
percent deficit due to pain. However, the fifth edition of the A.M.A., Guides at section 16.5d,
page 494, provides that impairment for carpal tunnel syndrome be rated on motor and sensory
impairments only. Additional impairment values are not given for decreased grip strength.13
Thus, the Board finds that Dr. Weiss improperly included grip strength as an element of
impairment. This error diminishes the probative weight of his opinion.
Also, Dr. Weiss used Figure 18-1 in determining that appellant had a three percent
impairment of the right upper extremity due to pain. However, there is nothing in his report to
indicate that he performed a formal pain-related analysis under section 18.3d of the A.M.A.,
Guides. Further, this section of the A.M.A., Guides specifically notes that examiners should not
use Chapter 18 to rate pain-related impairment for any condition that can be adequately rated on
the basis of the rating systems found in other chapters, including Chapter 16. Dr. Weiss did not
address why appellant’s pain could not be adequately addressed under the protocols of Chapter
16. The Office medical adviser noted Dr. Weiss’ error in a January 31, 2007 report, explaining
that the A.M.A., Guides did not permit using Figure 18-1 in evaluating entrapment neuropathy.
Therefore, the Board finds that Dr. Weiss’ use of Figure 18-1 was improper and further

11

Tammy L. Meehan, 53 ECAB 229 (2001).

12

A.M.A., Guides 433-521 (5th ed.), Chapter 16 “The Upper Extremities.”

13

See also Robert V. DiSalvatore, 54 ECAB 351 (2003) (where the Board found that the fifth edition of the
A.M.A., Guides provides that impairment for carpal tunnel syndrome be rated on motor and sensory impairments
only, without additional impairment values for decreased grip strength).

4

diminishes the probative value of his opinion. Thus, there is no conflict of opinion between
Dr. Weiss and the Office medical adviser, as Dr. Weiss’ opinion is significantly flawed.
The Office based its determination of an eight percent impairment of the right upper
extremity on the January 3, 2007 report of an Office medical adviser. The medical adviser used
Table 16-10 to assess a Grade 4 sensory impairment of 13 percent, multiplied by the maximum
39 percent value for the median nerve in Table 16-15 to equal 5 percent. For motor impairments,
the medical adviser used Table 16-11 to assess a Grade 4 impairment, multiplied by the 25
percent value given for the median nerve in Table 16-15, resulting in a 3 percent impairment.
The medical adviser then used the Combined Values Chart to arrive at an eight percent
impairment of the right upper extremity due to the accepted carpal tunnel syndrome.
The Board finds that the Office medical adviser properly applied the grading schemes of
the A.M.A., Guides in assessing the percentage of permanent impairment of the right extremity.
Therefore, the Board further finds that the Office properly accorded the weight of the medical
evidence to the opinion of the Office medical adviser.
On appeal, appellant contends that there is a conflict of medical opinion between the
Office medical adviser, for the government, and Dr. Weiss, for appellant. The Board finds that
there is no conflict of opinion as the Office medical adviser’s report clearly outweighs that of
Dr. Weiss. The Office medical adviser provided a well-rationalized impairment rating according
to the appropriate portions of the A.M.A., Guides, whereas Dr. Weiss misapplied the A.M.A.,
Guides.
CONCLUSION
The Board finds that appellant has not established that she sustained more than an eight
percent impairment of the right upper extremity, for which she received a schedule award.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 2, 2007 is affirmed.

Issued: October 7, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6