United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
U.S. POSTAL SERVICE, CAMUY POST
OFFICE, Camuy, PR, Employer
__________________________________________

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

Docket No. 13-1405
Issued: October 21, 2013

Case Submitted on the Record

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

JURISDICTION
On May 28, 2013 appellant filed a timely appeal of a February 11, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying his occupational disease claim
and from a May 7, 2013 nonmerit decision. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the
merits of the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
developed an occupational disease due to his federal employment; and (2) whether the Branch of
Hearings and Review properly denied appellant’s request for a review of the written record as
untimely.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 14, 2012 appellant, then a 44-year-old sales and service associate, filed an
occupational disease claim alleging that his bronchial asthma was exacerbated by fungal spores
in the air conditioning as well as dust and termites in the employing establishment building. He
stated that his asthmatic episode caused a severe supraventricular tachycardia. Appellant stated
that he first became aware of his condition on June 10, 1996 and first realized that it was related
to his employment on July 19, 2012.
Appellant submitted a series of medical notes in a mixture of Spanish and English dated
July 20 through August 6, 2012.
In a letter dated August 27, 2012, OWCP requested additional factual and medical
evidence in support of appellant’s claim noting that the medical evidence submitted included
illegible reports. Appellant submitted photographs of air vents. In a statement dated August 29,
2012, he stated that in 1997 he received 10 percent for his asthma condition. Appellant stated on
July 19, 2012 while at work he had a bad asthma attack and was rushed to the hospital with chest
pain, difficulty breathing and shortness of breath. He received treatment and was discharged
from the hospital. At home, appellant had another asthma attack and was again hospitalized
from July 19 through 23, 2012. He stated that his asthma attacks had caused hypertension, chest
pain, supraventricular tachycardia, weakness and dizziness. Appellant stated that he had not
returned to work.
In a form report dated July 30, 2012, Dr. Javier Santiago Rivera, a family practitioner,
diagnosed brachial asthma with recurrent exacerbation who would need the use of long acting
bronchidilators and inhaled steroids.
On October 1, 1997 appellant received an award for disability from the Department of
Veterans Affairs for muscle inflammation and asthma.
On January 24, 2013 appellant reported a termite infestation to the employing
establishment and stated that it was bothering his pulmonary condition. The employing
establishment stated that facilities would be called to respond to this. It received a bid for
treatment of termites.
In a report dated January 28, 2013, a physician whose signature is illegible stated that due
to unclean conditions at the employing establishment including dirty air conditioner vents, dusty
boxes and letters and termite infestation of the office facility, appellant’s bronchospasms would
be triggered. The physician diagnosed bronchial asthma and stated that due to appellant’s
current condition any dusty, dirty environment would exacerbated his disease.
On January 29, 2013 appellant reported that the air filters were dirty and the air
conditioning was not work. He stated that the building did not have any ventilation and that this
was causing him pulmonary difficulties. The Postmaster stated on January 25, 2013 that he
contacted the facilities to have the air ducts cleaned and that another facility was contacted on
January 29, 2013 to resolve the air conditioning issue.

2

By decision dated February 11, 2013, OWCP denied appellant’s claim finding that he had
not submitted the necessary medical evidence to establish that a diagnosed condition resulted
from his employment exposures.
Appellant requested a review of the written record on March 26, 2013. By decision dated
May 7, 2013, the Branch of Hearings and Review denied appellant’s request for review of the
written record as untimely and determined that the issue could equally well be addressed by
requesting reconsideration.2
LEGAL PRECEDENT -- ISSUE 1
The OWCP’s regulations define an occupational disease as “a condition produced by the
work environment over a period longer than a single workday or shift.”3 To establish that an
injury was sustained in the performance of duty in an occupational disease claim, a claimant
must submit the following: (1) medical evidence establishing the presence or existence of the
disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the employment factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed or, stated differently, medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant. The evidence required to
establish causal relationship is rationalized medical opinion evidence, based upon a complete
factual and medical background, showing a causal relationship between the claimed condition
and identified factors. The belief of a claimant that a condition was caused or aggravated by the
employment is not sufficient to establish causal relation.4
ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision.
OWCP accepted that appellant was exposed to dirt, dust and termites in the performance
of his federal employment, but denied his claim on the basis that the medical evidence did not
sufficiently establish that this employment exposure was related to his diagnosed asthma. The
case record, however, does not contain a translation of the Spanish portions of medical reports in
the record. The Board has held that it is unreasonable for OWCP to deny a claim before it

2

Following appellant’s appeal to the Board on May 28, 2013, OWCP issued a decision on August 26, 2013
reviewing the merits of his occupational disease claim and modifying the February 11, 2013 decision. The Board
and OWCP may not simultaneously have jurisdiction over the same case. Because OWCP must review its prior
decision in order to determine whether appellant submitted additional new and relevant evidence, it may not issue a
decision regarding the same issue on appeal before the Board. OWCP therefore did not have the authority to issue
its August 26, 2013 decision. Arlonia B. Taylor, 44 ECAB 591, 597 (1993).
3

20 C.F.R. § 10.5(q).

4

Lourdes Harris, 45 ECAB 545, 547 (1994).

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attempts to secure an accurate translation of the relevant evidence.5 For OWCP and the Board to
properly consider all evidence of record an accurate translation of the medical evidence in
Spanish must be obtained. Therefore, the case will be remanded for this purpose and, after
conducting such further development as it may find necessary, OWCP shall issue an appropriate
merit decision.6
CONCLUSION
The Board finds that the case is not in posture for decision and must be remanded for
further development of the record.
ORDER
IT IS HEREBY ORDERED THAT May 7 and February 11, 2013 decisions of the
Office of Workers’ Compensation Programs are set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: October 21, 2013
Washington, DC

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

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

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

5

H.S., Docket No. 11-1170 (issued December 14, 2011); see also Armando Colon, 41 ECAB 563 (1990) (OWCP
abused its discretion in denying an employee’s request for reconsideration on the grounds that the evidence
submitted lacked probative value because it was in a foreign language); Patrick T. Wall, Docket No. 01-1802 (issued
March 26, 2002).
6

Due to the Board’s decision on the first issue, the second issue is rendered moot.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF THE ARMY, ROCK
ISLAND ARSENAL, Rock Island, IL, Employer
__________________________________________

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

Docket No. 14-720
Issued: July 9, 2014

Case Submitted on the Record

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

JURISDICTION
On February 11, 2014 appellant filed a timely appeal of the September 25, 2013 merit
and November 19, 2013 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s traumatic injury claim as
it was not timely filed under 5 U.S.C. § 8122; and (2) whether it properly denied his request for
reconsideration.
FACTUAL HISTORY
On June 5, 2013 appellant, then a 40-year-old machinist, filed a traumatic injury claim
alleging that on October 24, 2009 he strained his left buttocks when he grabbed a “trail” and
1

5 U.S.C. §§ 8101-8193.

pulled it toward a machine. He noted informing Terry Brewer, branch chief, of the injury who
offered him leave pursuant to the Family Medical Leave Act (FMLA). Mr. Brewer noted on the
Form CA-1 that he was not advised of appellant’s October 24, 2009 injury until June 13, 2013.
He noted that appellant’s injury did not occur in the performance of duty or at work rather, it was
an old nonwork-related strain that had flared-up. Mr. Brewer noted that appellant worked
another 17 days after this alleged injury without taking leave. Appellant was removed from
employment for cause on June 5, 2013.
Appellant submitted employing establishment medical records from a registered nurse
who treated him from December 1 to 21, 2009 for a nonwork-related backache. He sought
treatment from a chiropractor on November 24, 2009. Appellant indicated that he did not know
how he hurt his back. In an October 28, 2010 note, the nurse treated him for a backache and
released him to work with restrictions. On September 14, 2011 the nurse saw appellant for a
fitness-for-duty examination and he reported undergoing chiropractic treatments for a football
injury. The nurse released him to work with restrictions. In a June 6, 2013 note, the nurse
indicated that on December 1, 2009 appellant returned to work after a back injury. Appellant
stated that he did not know how he injured his back. He submitted a December 11, 2009
certificate of health care provider from Dr. Jeramy Blackwood, a chiropractor, who noted
appellant’s back condition commenced on October 24, 2009 when he had an acute exacerbation
of his low back symptoms and was currently being treated for lumbosacral radicular pain,
lumbalgia, lumbar sacroiliac and pelvic segmental dysfunction and muscle spasm.
Dr. Blackwood noted that appellant could return to work with restrictions. In a June 28, 2010
certificate of health care provider, he noted appellant’s back condition began on
October 24, 2010. Dr. Blackwood diagnosed lumbar segmental dysfunction and radicular
symptoms into his lower extremities. He noted that appellant could return to work regular duty.
On December 13, 2010 Dr. Blackwood noted appellant’s back condition commenced on
October 24, 2009. He noted that appellant was currently under maintenance care and diagnosed
lumbar segmental dysfunction and radicular symptoms into his lower extremities.
Dr. Blackwood noted that appellant could return to work regular duty.
In an undated statement, Mr. Gordon noted that he was not appellant’s supervisor or
division chief on October 24, 2009 but he conferred with Mr. Brewer who was appellant’s
supervisor at this time. Mr. Brewer reported that appellant came to him and mentioned that he
aggravated an old injury. He reported that appellant was clear that this injury did not occur at
work and he did not want paperwork submitted but Mr. Brewer offered appellant FMLA
paperwork at this time. Appellant reported that his supervisor did not notify him of the policy
for submitting a workers’ compensation claim and he felt like his supervisor was not treating him
fairly or providing him with all the information that he needed.
The employing establishment controverted the claim noting that appellant was terminated
from employment for cause on June 5, 2013 and subsequently filed three workers’ compensation
claims. It indicated that he had a long history of nonoccupational incidents which caused back
and buttocks injuries.
Appellant submitted additional medical evidence. A November 24, 2009 x-ray of the
lumbopelvic spine revealed mild subchondral sclerosis that could indicate early degenerative

2

joint disease. Appellant submitted reports from Dr. Blackwood and Dr. Eric E. Lundgren,
another chiropractor who noted treating appellant for back and symptoms.
By letter dated July 19, 2013, OWCP requested appellant to submit additional
information to establish his claim.
In a September 25, 2013 decision, OWCP denied appellant’s claim on the grounds that
the evidence failed to demonstrate that his claim was timely filed in accordance with 5 U.S.C.
§ 8122. It noted that the claimed injury occurred on October 24, 2009 but that the claim was
filed on June 5, 2013 and received by the employing establishment on June 19, 2013 which was
after the three-year time limitation provided for under the statute. OWCP found that there was
no evidence that appellant’s supervisor had knowledge of the injury within 30 days of the injury.
In an October 7, 2013 appeal form, appellant requested reconsideration. He did not
submit additional evidence.
In a November 19, 2013 decision, OWCP denied appellant’s request for reconsideration
on the grounds that the evidence submitted was insufficient to warrant a merit review.
LEGAL PRECEDENT -- ISSUE 1
Section 8122(a) of FECA2 states that “[a]n original claim for compensation for disability
or death must be filed within three years after the injury or death.”3 Section 8122(b) provides
that in latent disability cases, the time limitation does not begin to run until the claimant is aware
or by the exercise of reasonable diligence should have been aware, of the causal relationship
between the employment and the compensable disability.4 The Board has held that, if an
employee continues to be exposed to injurious working conditions after such awareness, the time
limitation begins to run on the last date of this exposure.5
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of FECA if
his immediate supervisor had actual knowledge of his alleged employment-related injury within
30 days. The knowledge must be such as to put the immediate superior reasonably on notice of
appellant’s injury.6 An employee must show not only that his immediate superior knew that he
was injured, but also knew or reasonably should have known that it was an on-the-job injury.7
2

5 U.S.C. § 8122(a).

3

Id.

4

Id. at § 8122(b).

5

See Mitchell Murray, 53 ECAB 601 (2002); Larry E. Young, 52 ECAB 264 (2001); Alicia Kelly, 53 ECAB 244
(2001); Garyleane A. Williams, 44 ECAB 441 (1993).
6

5 U.S.C. § 8122(a)(1); see also Jose Salaz, 41 ECAB 743 (1990); Kathryn A. Bernal, 38 ECAB 470 (1987); see
also Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2. 801.3(a)(3) (March 1993).
7

Charlene B. Fenton, 36 ECAB 151 (1984).

3

ANALYSIS -- ISSUE 1
In the instant case, appellant’s alleged injury involved a traumatic incident of which he
was immediately aware, grabbing a “trail” and pulling it back to the machine and experiencing a
strain of the left buttocks, back and hip injury.8 Therefore, this is not a case of latent disability
and the three-year statute of time limitations began to run on October 24, 2009, the date on
which he suffered his traumatic left buttock, back and hip injury while in the performance of
duty.9 The record reflects that appellant’s claim was signed by him on June 5, 2013 and received
by the employing establishment on June 13, 2013 and processed by OWCP on June 19, 2013.
The claim was not timely filed. OWCP properly noted October 24, 2009 the day appellant
sustained his alleged traumatic injury to the left buttocks, low back and hip, as the starting point
for the three-year time limitation under section 8122. As appellant did not file his claim until
June 5, 2013 his claim is untimely under section 8122 of FECA.
Appellant’s claim would be regarded as timely under section 8122(a)(1) if his immediate
superior had actual knowledge of a work-related injury within 30 days of the injury. The
knowledge must be such as to put the immediate superior reasonably on notice of his injury.10
However, there is no evidence in the record which indicates that appellant’s immediate
supervisor had actual knowledge of a work-related injury to his left buttocks, back and hip injury
within 30 days of the date of injury. Mr. Brewer noted on the Form CA-1 that appellant’s injury
did not occur at work; rather it was an old nonwork-related strain that flared up. He further
noted that, after the alleged injury appellant worked 17 days without taking leave. Similarly,
Mr. Gordon, division chief, noted that, although he was not appellant’s supervisor on
October 24, 2009, he conferred with Mr. Brewer who reported that appellant came to him and
mentioned that he aggravated an old injury. Mr. Brewer reported that appellant was clear that
this injury did not occur at work and he did not want paperwork submitted but Mr. Brewer
offered appellant FMLA paperwork at this time. Appellant’s statement on the Form CA-1 noted
that he reported his injury to Mr. Brewer and he provided FMLA forms. However, the evidence
does not support that his supervisor was aware of a work-related injury. Mr. Brewer noted on
the Form CA-1 that appellant’s injury did not occur at work; rather it was an old nonwork-related
strain that flared up. This does not substantiate an immediate supervisor’s knowledge of
appellant’s work-related left buttocks, back and hip injury right leg injury within 30 days of the
injury.11 Knowledge merely of an employee’s illness is not sufficient to establish actual
knowledge and timeliness, it must be shown that the circumstances were such as to put the

8

See Paul S. Devlin, 39 ECAB 715, 725-26 (1988).

9

Id.

10

5 U.S.C. § 8122(a)(1). See also Jose Salaz, 41 ECAB 743 (1990); Kathryn A. Bernal, 38 ECAB 470 (1987).

11

See Linda J. Reeves, 48 ECAB 373 (1997) (where the Board held that, while appellant submitted a statement
from a former supervisor that established that he had some knowledge of appellant’s complaints, this statement is
not sufficient to establish that her immediate superior had actual knowledge of a work-related injury as the statement
only makes a vague reference to appellant’s health and does not indicate that she sustained any specific
employment-related injury, rather the knowledge must be such as to put the immediate superior reasonably on notice
of an on-the-job injury or death).

4

supervisor on notice that the alleged injury was actually related to the employment or that the
employee attributed it thereto.12
Therefore, the Board finds that appellant has not established actual knowledge by his
supervisors of his work-related condition within 30 days and, therefore, has not established a
timely claim. The record is void of any indication that his immediate supervisors had written
notice of his work-related injury within 30 days. The exceptions to the statute have not been
met, and thus, appellant has failed to establish that he filed a timely claim. Consequently,
appellant has not met his burden of proof, as he has not established that he filed a timely notice
of traumatic injury and claim for compensation under the applicable time limitation provisions of
FECA.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,13 OWCP has the discretion to reopen a case for review
on the merits. OWCP must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provides that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence which:
“(1) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(2) Advances a relevant legal argument not previously considered by OWCP; or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”14
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.15

12

See id.; Roseanne S. Allexenberg, 47 ECAB 498 (1996) (where the Board held that knowledge of an
employee’s illness is not sufficient to establish actual knowledge and timeliness of a claim, it must be shown that the
circumstances were such as to put the supervisor on notice that the alleged injury was actually related to the
employment or that the employee attributed it thereto).
13

Supra note 2.

14

20 C.F.R. § 10.606(b)(2).

15

Id. at § 10.608(b).

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ANALYSIS -- ISSUE 2
OWCP denied appellant’s claim on the grounds that it was not timely filed under
5 U.S.C. § 8122. Thereafter, it denied his reconsideration request, without a merit review. The
only relevant issue on reconsideration was whether appellant’s application for benefits was filed
within the applicable time limit.
In his October 7, 2013 appeal request form, appellant requested that OWCP reconsider
the September 25, 2013 decision. No additional evidence or argument was submitted prior to
OWCP’s decision. Thus, appellant has not shown legal error by OWCP or advanced a new and
relevant legal argument. He did not submit any new and relevant evidence in support of his
claim.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
submit relevant and pertinent evidence not previously considered.
Pursuant to
20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s compensation claim on the
grounds that he did not establish that his claim was filed within the applicable time limitation
provisions of FECA. The Board finds that it properly denied appellant’s request for
reconsideration.

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ORDER
IT IS HEREBY ORDERED THAT the November 19 and September 25, 2013
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: July 9, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 13-1035
Issued: August 21, 2013

Case Submitted on the Record

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

JURISDICTION
On March 26, 2013 appellant filed a timely appeal from the November 20, 2012 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 met his burden of proof to establish more than 10 percent
permanent impairment of his right thumb, for which he received a schedule award.
FACTUAL HISTORY
In a July 5, 2011 decision, OWCP accepted that appellant, then a 49-year-old clerk
sustained an unspecified closed fracture of the metacarpal bone of his right thumb when he hit
his hand on a postal machine on March 17, 2010. On May 2, 2012 Dr. Tucker Mattox, Jr., an
attending Board-certified orthopedic surgeon, performed OWCP-authorized surgery in the form
of arthrodesis of the metacarpal-phalangeal (MCP) joint of appellant’s right thumb.
1

5 U.S.C. §§ 8101-8193.

In an October 4, 2012 report, Dr. Mattox made note of appellant’s May 2, 2012 surgery
and indicated that, after a period of recovery, appellant was released from his care with a date of
maximum medical improvement of July 27, 2012. He stated, “Because of the position and
nature of the surgery, [appellant] has two percent upper extremity, one percent whole person
impairment rating. Diagnosis was instability of his thumb [MCP] joint secondary to the injury.
[Appellant] had significant dysfunction prior to his surgery.”
OWCP requested that Dr. Howard Hogshead, a Board-certified orthopedic surgeon, serve
as an OWCP medical adviser and evaluate the evidence of record (including Dr. Mattox’ reports)
to determine the extent of appellant’s permanent impairment under the standards of the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (6th ed. 2009).
On October 10, 2012 Dr. Hogshead indicated that the May 2, 2012 surgery was necessary
due to the chronic instability. He stated that the hand regional grid does not include a regional
grid for arthrodesis of the MCP joint of the thumb. Dr. Hogshead further noted, “[A.M.A.,
Guides] page 465 states that the [MCP] joint is 10 percent of the thumb. Table 15-11, page 420,
states that 10 percent of thumb [equals] four percent of hand [which equals] four percent of
upper extremity.” He indicated that the October 4, 2012 report of Dr. Mattox provided a two
percent impairment of appellant’s right arm but opined that this rating was “not documented or
referenced.” Dr. Mattox listed July 27, 2012 as the date of maximum medical improvement.
OWCP asked Dr. Hogshead to clarify whether appellant’s schedule award should be for
his right thumb (10 percent) or for his right hand (four percent). On October 17, 2012
Dr. Hogshead noted that OWCP policy was to state impairment of the digit if only one digit is
involved. If there are two or more digits, the impairment is given in terms of the hand.
In a November 20, 2012 decision, OWCP granted appellant a schedule award for 10
percent permanent impairment of his right thumb. The award ran for 7.5 weeks from July 28 to
September 18, 2012. The award was based on the impairment rating of Dr. Hogshead, the
medical adviser.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

2

appropriate standard for evaluating schedule losses.4 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.5
Section 15.7c on page 465 of the sixth edition of the A.M.A., Guides provides that MCP
joint flexion and extension have been assigned a 10 percent contribution to the entire right thumb
on a 100 percent scale. Interphalangeal joint flexion and extension contribute 15 percent to the 100
percent scale and carpometacarpal joint motions (radial abduction, adduction and opposition)
contribute the remaining 75 percent to the 100 percent scale.6
It is well established that proceedings under FECA are not adversarial in nature, and
while the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.7
ANALYSIS
OWCP accepted that appellant sustained an unspecified closed fracture of the metacarpal
bone of his right thumb when he hit his hand on a postal machine on March 17, 2010. On
May 2, 2012 Dr. Mattox an attending Board-certified orthopedic surgeon, performed OWCPauthorized surgery in the form of arthrodesis of the MCP joint of appellant’s right thumb.
In a November 20, 2012 decision, OWCP granted appellant a schedule award for a 10
percent permanent impairment of his right thumb. The award ran for 7.5 weeks from July 28 to
September 18, 2012. The award was based on the impairment rating of Dr. Hogshead, a Boardcertified orthopedic surgeon who served as an OWCP medical adviser. Dr. Hogshead was asked
by OWCP to evaluate the evidence of record, including Dr. Mattox’ reports, to determine the
extent of appellant’s permanent impairment under the standards of the sixth edition of the
A.M.A., Guides.
In his October 10, 2012 report, Dr. Hogshead noted, “[A.M.A., Guides] page 465 states
that the [MCP] joint is 10 percent of the thumb. Table 15-11, page 420, states that 10 percent of
thumb [equals] four percent of hand [which equals] four percent of upper extremity.” On
October 17, 2012 he suggested that appellant’s schedule award should be based on his right
thumb impairment (10 percent) rather than on his right hand impairment (four percent).
OWCP based its granting of a schedule award for a 10 percent permanent impairment of
the right thumb on this aspect of Dr. Hogshead’s opinion. However, Dr. Hogshead’s ostensible
impairment rating is not properly based on the standards of the sixth edition of the A.M.A.,
Guides. He referenced Section 15.7c on page 465 of the sixth edition, but this section merely
provides that MCP joint flexion and extension have been assigned a 10 percent contribution to the
entire right thumb on a 100 percent scale.8 This section does not provide any independent method
4

Id.

5

FECA Bulletin No. 09-03 (issued March 15, 2009).

6

A.M.A., Guides 465, Section 15.7c.

7

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

8

Interphalangeal joint flexion and extension contribute 15 percent to the 100 percent scale and carpometcarpal joint
motions (radial abduction, adduction and opposition) contribute the remaining 75 percent to the 100 percent scale. See
supra note 6.

3

to rate thumb impairment without reference to other portions of the A.M.A., Guides, such as Table
15-30 (Thumb Range of Motion) on page 468. Dr. Hogshead did not reference such additional
portions of the A.M.A., Guides to explain his rating. The record contains an October 4, 2012
report in which Dr. Mattox indicated that appellant had two percent impairment of his right arm,
but Dr. Mattox’ rating also is of little probative value because he did not explain how it was
derived in accordance with the standards of the A.M.A., Guides.
The record is currently lacking a rationalized medical report explaining the extent of
appellant’s impairment due to his accepted right thumb injury under the relevant standards of the
sixth edition of the A.M.A., Guides. For these reasons, additional development is needed to
determine the extent of appellant’s permanent impairment and whether he is entitled to schedule
award compensation in addition to that which he received for 10 percent permanent impairment
of his right thumb. The case shall be remanded to OWCP for this purpose and, after such
development as it deems necessary, OWCP shall issue an appropriate decision regarding
appellant’s permanent impairment.
CONCLUSION
The Board finds that the case is not posture for decision regarding whether appellant has
more than a 10 percent permanent impairment of his right thumb, for which he received a
schedule award. The case is remanded to OWCP for further development.
ORDER
IT IS HEREBY ORDERED THAT the November 20, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: August 21, 2013
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Houston, TX, Employer
)
___________________________________________ )
N.C., Appellant

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

Docket No. 08-161
Issued: January 22, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 23, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated May 21, 2007, which granted him an additional
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant has more than a 41 percent permanent impairment of the
right upper extremity, for which he has received schedule awards.
FACTUAL HISTORY
On August 9, 2001 appellant, then a 35-year-old letter carrier, filed an occupational
disease claim alleging that he developed right carpal tunnel syndrome while performing his work
duties. The Office accepted appellant’s claim for right tenosynovitis and right carpal tunnel
syndrome and authorized right tenosynovitis and right carpal tunnel releases, which were
performed on July 31, 2001. It also accepted acute osteomyelitis of the fingers on the right hand,

partial amputation of fingers on the right hand, staphylococcal infection, abscess and open
wound of the right finger. Appellant stopped work on July 9, 2001 and returned to a
limited-duty position in October 2002.
In a July 31, 2001 operative report, Dr. Gerard T. Gabel, a Board-certified orthopedic
surgeon, performed a flexor tenosynovectomy of the little and long fingers, flexor digitorum
sublimes, flexor, tenosynovectomy flexor digitorum sublimes, flexor digitorum profundus of
index, long, ring and little, palm and carpal tunnel, flexor tenosynovectomy digital flexors of
distal forearm, open carpal tunnel release and median nerve decompression of the forearm. He
diagnosed probable fungal mycrobacterial tenosynovitis of the right hand and forearm, severe
carpal tunnel syndrome and infracted median nerve, flexor digitorum sublimes rupture at the
carpal tunnel level and flexor digitorum profundus ring and little rupture at the carpal tunnel
level. Dr. Gabel later noted that appellant developed a staph infection that was treated with
antibiotics. On May 28, 2002 he performed an incision and drainage of the right long finger,
partial excision of distal phalanx for osteomyelitis and open treatment for fracture and diagnosed
right long tip necrosis with exposed bone, distal phalangeal fracture fragment and osteomyelitis
of the distal phalanx. On August 28, 2002 Dr. Gabel performed a flexor digitorum superficialis
tendon excision of the index and long fingers, flexor digitorum superficialis tenolysis index and
long and flexor digitorum profundus tenolysis of the palm, index and long. He diagnosed status
post infection of the right forearm with severe median neuritis, destruction of the flexor
digitorum superficialis tendons, destruction of the flexor digitorum profundus and flexor
digitorum superficialis to little and ring with deficient active and passive range of motion, little
and ring finger and scarring of the flexor tendon sheath, little and ring fingers.
On April 17, 2003 Dr. Gabel noted that appellant reached maximum medical
improvement and opined that he had 39 percent right arm impairment. He referenced the fourth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).1 On April 29, 2003 appellant filed a claim for a schedule award.
In a letter dated May 29, 2003, the Office advised Dr. Gabel that his April 17, 2003
report was prepared in accordance with the fourth edition of the A.M.A., Guides; however, the
fifth edition of the A.M.A., Guides had been adopted by the Office effective February 1, 2001.2
It asked Dr. Gabel to submit another impairment rating. On August 13, 2003 an Office medical
adviser recommended a second opinion evaluation.
In a September 17, 2003 report, Dr. Bernard Z. Albina, a Board-certified orthopedic
surgeon and an Office referral physician, noted appellant’s history and reported findings on
examination. He found right wrist range of motion of 40 degrees extension, 45 degrees flexion
and 25 degrees ulnar deviation. For the right ring and little fingers, Dr. Albina noted total loss of
function of the flexor digitorum profundus and flexor digitorum superficialis of the ring and little
finger and ankylosis of the proximal interphalangeal joint of the little finger, for 50 percent
impairment for the ring and little finger, which converted to 5 percent impairment to the hand for
1

A.M.A., Guides (4th ed. 1993).

2

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

2

each finger and 9 percent impairment to the right arm. He calculated that appellant had 15
percent impairment to the right arm due to sensory deficit or pain of the median nerve below the
mid forearm3 and 5 percent impairment of the right arm due to motor deficit of the median nerve
below the mid forearm.4 Dr. Albina noted impairment due to amputation of the distal third of the
phalanx of the index finger and distal third of the phalanx of the middle finger of 10 percent
impairment each,5 which converted to 2 percent impairment of the hand for each finger for 4
percent impairment to the right hand which converted to 4 percent impairment of the arm.6
Using the Combined Values Chart of the A.M.A., Guides, he found that appellant had a total 29
percent impairment to the right upper extremity.
On December 3, 2003 an Office medical adviser used Dr. Albina’s findings and
determined that appellant had 37 percent impairment of the right arm. The medical adviser used
Dr. Albina’s range of motion findings to determine that appellant had 17 percent impairment due
to lost range of motion, 15 percent impairment for sensory deficit, 5 percent impairment for
motor deficit and 3 percent impairment for amputation of the tip of the index finger and
3 percent impairment for amputation of the long finger.
In a decision dated December 24, 2003, the Office granted appellant a schedule award for
37 percent permanent impairment of the right arm.
Appellant submitted additional reports from Dr. Gabel, who noted that he developed
onychomyocosis to the nail, which was related to the original injury. In a November 1, 2006
operative report, he performed an incision and drainage of the right index, open fracture of the
right index and osteomyelitis of the right index, distal phalanx of the right index and diagnosed
right index distal phalangeal osteomyelitis with associated tip abscess. On November 16, 2006
Dr. Albina performed an incision and drainage of the right index including amputation and
excision of nonviable remnant and diagnosed right index finger abscess.
The Office accepted osteomyelitis of the fingers of the right hand, partial amputation of
the fingers of the right hand, staphylococcus of the right hand, abscess of the finger of the right
hand and open wound of the right finger.
On March 26, 2007 appellant filed a schedule award claim and submitted a
March 15, 2007 report from Dr. Gabel, who advised that he reached maximum medical
improvement. Dr. Gabel noted that appellant previously had 20 percent impairment of the right
index finger for 4 percent impairment of the hand.7 He opined that due to the most recent
amputation on November 16, 2006 appellant had an additional four percent impairment of the
right arm pursuant to the A.M.A., Guides.
3

A.M.A., Guides 482, 492, Table 16-10, 16-15.

4

Id. at 484, 492, Table 16-11, 16-15.

5

Id. at 447, Figure 16-7.

6

Id. at 438, Table 16-1.

7

Id.

3

In an April 16, 2007 report, an Office medical adviser opined that appellant had
41 percent permanent impairment of the right arm. He recalculated appellant’s impairment,
noting that loss of more than one-half of the distal phalanx was 50 percent of the digit and
calculated that 50 percent loss of an index finger was 10 percent of the right hand or 9 percent of
the upper extremity.8 The medical adviser referenced FECA Bulletin Nos. 88 and 89, which
were incorporated into the procedure manual, which provide that loss of more than one-half of
the distal phalanx is 50 percent of the digit.9 He noted that appellant was previously granted a
three percent impairment of the right upper extremity for loss of the distal tip of the phalanx and
was an additional six percent impairment to the right upper extremity. The medical adviser
noted that using the Combined Values Chart, appellant had 41 percent total impairment of the
right arm. As appellant had previously received a schedule award for 37 percent impairment of
the right arm, he was entitled to an additional 4 percent impairment of the right upper extremity.
In a May 21, 2007 decision, the Office granted appellant a schedule award for 41 percent
permanent impairment of the right arm, less the award previously granted.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act10 and its
implementing regulation11 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.12
ANALYSIS
Appellant contends that he has more than 41 percent impairment of his right arm. The
Office accepted appellant’s claim for right tenosynovitis, right carpal tunnel syndrome, acute
osteomyelitis of the fingers on the right hand, partial amputation of fingers on the right hand,
staphylococcal infection, abscess of the right finger and open wound of the right finger. It
authorized several surgical procedures to treat the accepted conditions. On December 24, 2003
the Office granted appellant a schedule award for 37 percent permanent impairment of the right
arm. After appellant underwent additional surgery, he requested an additional schedule award.

8

Id. at 438, 439, Table 16-1, 16-2.

9

See Federal (FECA) Procedure Manual, Part 3 -- Schedule Awards, Special Determinations, Chapter
3.700(4)(a)(1) (March 2005).
10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404 (1999).

12

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

4

In support of his request for an additional schedule award, appellant submitted a
March 15, 2007 report from Dr. Gabel, who advised that appellant underwent additional surgery
and amputation of his right index finger on November 1 and 16, 2006 and that the length of the
digit was 60 percent. Dr. Gabel opined that due to the most recent amputation appellant had
12 percent impairment of the hand and that this resulted in an additional four percent impairment
of the arm or 41 percent total impairment of the right arm.
The medical adviser properly utilized the findings in Dr. Gabel’s March 15, 2007 report
and correlated them to specific provisions in the A.M.A., Guides to determine the impairment
rating. In a report dated April 16, 2007, the Office medical adviser noted the additional
amputation performed by Dr. Gabel and advised that Office procedure provides that loss of more
than half of a phalanx the award shall be for the entire loss of the first phalanx or 50 percent of
the digit.13 The medical adviser properly calculated that 50 percent loss of an index finger was
10 percent of the right hand or 9 percent of the upper extremity.14 As appellant was previously
granted three percent impairment of the right arm due to the loss of the distal tip of the phalanx
of the index finger, he would be entitled to an additional award of six percent impairment to the
right arm due to the additional amputation. The medical adviser noted that appellant was
previously granted a schedule award for 37 percent impairment of the right arm. The medical
adviser stated that, under the Combined Values Chart,15 an additional 6 percent impairment
combined with 37 percent impairment, previously found, yielded 41 percent impairment of the
right arm. He concluded that this resulted in appellant having an additional four percent
impairment of the right arm.
The medical adviser properly applied the A.M.A., Guides to the information provided in
Dr. Gabel’s report and reached an impairment rating of 41 percent for the right upper extremity.
This evaluation conforms to the A.M.A., Guides and establishes that appellant has no more than
a 41 percent impairment of the right upper extremity. The Board notes that Dr. Gabel also found
that appellant had total impairment of 41 percent of the right arm.
CONCLUSION
The Board finds that appellant has no more than 41 percent permanent impairment of the
right arm, for which he has received a schedule award.

13

A.M.A., Guides 438, 439, Table 16-1, 16-2; Office Procedures provide that for loss of more than half of a
phalanx the award shall be for the entire loss of the first phalanx or 50 percent of the digit; see Federal (FECA)
Procedure Manual, Part 3 -- Schedule Awards, Special Determinations, Chapter 3.700(4)(a)(1) (March 2005).
14

A.M.A., Guides 438, 439, Table 16-1, 16-2.

15

Id. at 604.

5

ORDER
IT IS HEREBY ORDERED THAT the May 21, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 22, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF THE NAVY, Norfolk, VA,
Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-1195
Issued: February 25, 2010

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 April 2, 2009 appellant filed a timely appeal from a May 21, 2008 merit decision of
the Office of Workers’ Compensation Programs suspending his compensation. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly suspended appellant’s compensation under
5 U.S.C. § 8123(d) for failing to attend a scheduled medical examination.
FACTUAL HISTORY
The Office accepted that on April 16, 1985 appellant, then a 46-year-old firefighter,
sustained a contusion of the right hip, a sprain of the S1 sacrum joint and a herniated disc at L4-5

when he slipped and fell on liquid. Appellant stopped work on April 20, 1985 and did not
return.1
On July 20, 2006 appellant informed the Office of an address change.
On February 22, 2007 the Office notified appellant that he was being referred for second
opinion examinations with a psychiatrist and an orthopedic surgeon.2 On March 6, 2007 it
referred him for an appointment with Dr. Sanford Pomerantz, a Board-certified psychiatrist, on
March 19, 2007 at 3:30 p.m. In a separate letter also dated March 6, 2007, the Office referred
appellant for an appointment on March 23, 2007 at 10:00 a.m. with Dr. Joseph Huston, a Boardcertified orthopedic surgeon. It sent the letters to his address of record.
On March 14, 2007 the Office received mail returned to sender because the forwarding
time had expired.
Appellant did not attend the appointments scheduled with Dr. Pomerantz and Dr. Huston.
On March 23, 2007 the Office advised him that it proposed to suspend his compensation for
failing to report to the March 19, 2007 appointment scheduled with Dr. Pomeranatz. On
March 30, 2007 it notified him of its proposed suspension of compensation for failing to attend
the appointment scheduled for March 23, 2007 for Dr. Huston. In both letters, the Office
requested that he provide any reasons that he had for not attending the examination in writing
within 14 days. It further informed appellant that if he did not show good cause for missing the
examination his compensation would be suspended under section 8123(d) until he attended and
cooperated with the examination.
By decision dated April 11, 2007, the Office suspended appellant’s compensation
effective that date under section 8123(d) for failing to attend the appointment with
Dr. Pomerantz scheduled for March 19, 2007.3
On May 11, 2007 appellant telephoned the Office because he did not receive his
compensation payment. He related that he had been visiting North Carolina for two or three
months and did not have the money to return to Kansas. In another telephone call, appellant
related that his son had received a letter meant for him and he indicated he would be back in
Kansas next week. The claims examiner noted that she would reschedule his appointments.
On May 16, 2001 the Office referred appellant for a second opinion examination with
Dr. Pomerantz on June 8, 2007 at 1:15 p.m. On May 17, 2001 it referred him for a second
opinion examination with Dr. Huston on June 1, 2007 at 1:15 p.m.

1

By decision dated August 28, 1995, the Office reduced appellant’s compensation based on its finding that he
had the capacity to work as a dispatcher. On April 19, 1996 an Office hearing representative reversed the
August 28, 1995 decision and instructed the Office to retroactively reinstate compensation.
2

It appears that the last medical evidence of record was from 1996.

3

On April 23, 2007 the Office received mail returned to sender.

2

Appellant did not attend the appointments scheduled with either Dr. Pomerantz or
Dr. Huston. In a letter received June 13, 2007, he questioned why the Office stopped his
compensation. Appellant asserted that he did not receive the referral letters even though he
received other mail from the Office in North Carolina. He noted that he put in a change of
address request at the post office.
By letter dated June 15, 2007, the Office informed appellant that his compensation
remained suspended. It noted that it had been several years since it had received medical
evidence.
On June 16, 2007 appellant changed his address to Virginia Beach, VA. On June 26,
2007 he requested reinstatement.
On August 3, 2007 appellant requested a review of the written record. In an undated
letter received September 27, 2007, he related that his address had changed to another location in
Junction City, KS.
By decision dated September 4, 2007, the Office denied appellant’s request for a hearing
under 5 U.S.C. § 8124 as it was untimely.
On October 5, 2007 the Office referred appellant for another second opinion examination.
It mailed the referral to his Virginia Beach address. On October 15, 2007 appellant telephoned
the Office and indicated that he could not attend the appointments because he had no money. He
noted that he now lived in Junction City, KS.
On October 17, 2007 appellant again notified the Office that he had moved to Junction
City, KS. On March 27, 2008 he requested reconsideration of his suspension of compensation.
On April 21, 2008 the Office referred appellant for a second opinion examination with
Dr. Williams S. Logan, a Board-certified psychiatrist, on May 13, 2008 at 1:30 p.m. in Kansas
City, KS. On April 23, 2008 it referred him to an appointment with Dr. Huston at 10:30 a.m. in
Topeka, KS. The Office mailed the letters to appellant’s address of record in Junction City, KS.
On April 30, 2008 appellant informed the Office that he did not want to attend the
scheduled examinations. He related that he was “happy” receiving benefits from the Office of
Personnel Management (OPM). On May 2, 2008 appellant informed the Office that he could not
attend the appointments because he could not drive.
On May 5, 2008 appellant related that he wanted to withdraw his request for a second
opinion examination and continue receiving benefits from OPM. In an undated letter received
May 9, 2008, he related that he could not attend the scheduled appointments because he was
unable to drive.
Appellant did not attend the scheduled appointments. By decision dated May 21, 2008,
the Office denied modification of its prior merit decision.
On appeal appellant argues that the Office sent the letter referring him for second opinion
examinations to the wrong address. He also contends that the Office should not have sent him

3

for a second opinion examination given his age and time receiving compensation benefits.
Appellant asserts that he was unable to drive to the appointment and that the medical evidence
shows that he is disabled from employment.
LEGAL PRECEDENT
Section 8123(a) of the Federal Employees’ Compensation Act provides:
“An employee shall submit to examination by a medical officer of the United
States or by a physician designated or approved by the Secretary of Labor, after
the injury and as frequently and at the times and places as may be reasonably
required. … If there is disagreement between the physician making the
examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”4
Section 8123(d) of the Act provides:
“If an employee refuses to submit to or obstructs an examination, [her] right to
compensation under this subchapter is suspended until the refusal or obstruction
stops. Compensation is not payable while a refusal or obstruction continues and
the period of the refusal or obstruction is deducted from the period for which
compensation is payable to the employee.”5
Section 10.323 of the Office’s implementing federal regulations provides:
“If an employee refuses to submit to or in any way obstructs an examination
required by [the Office], his or her right to compensation under the [Act] is
suspended until such refusal or obstruction stops. … The employee will forfeit
compensation otherwise paid or payable under the [Act] for the period of the
refusal or obstruction and any compensation already paid for that period will be
declared an overpayment and will be subject to recovery pursuant to 5 U.S.C.
§ 8129.6
The Office’s Federal (FECA) Procedure Manual provides:
“Failure to Appear. If the claimant does not report for a scheduled appointment,
he or she should be asked in writing to provide an explanation within 14 days. If
good cause is not established, entitlement to compensation should be suspended in
accordance with 5 U.S.C. § 8123(d) until the date on which the claimant agrees to
attend the examination.”7
4

5 U.S.C. § 8123(a).

5

Id. at § 8123(d).

6

20 C.F.R. § 10.323.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Suspension of Benefits, Chapter 2.810.14(d) (July 2000).

4

ANALYSIS
The Office suspended appellant’s compensation benefits effective April 11, 2007 under
section 8123(d) of the Act on the grounds that he failed to attend scheduled medical
examinations. The determination of the need for an examination, the type of examination, the
choice of locale and the choice of medical examiners are matters within the province and
discretion of the Office. The only limitation on the Office’s authority, with regard to instructing
a claimant to undergo a medical examination, is that of reasonableness.8 The Board has
interpreted the plain meaning of section 8123(d) to provide that compensation is not payable
while a refusal or obstruction of an examination continues.9
The Board finds that the Office properly suspended compensation benefits. In letters
dated March 19, 2007, the Office notified appellant of the second opinion examination scheduled
with Dr. Pomerantz on March 19, 2007 and with Dr. Huston on March 23, 2007 at 10:00 a.m.
The record contained no recent medical evidence. It sent the letters to his address of record. The
Office advised appellant of his rights and responsibilities with respect to the scheduled
examinations with Dr. Pomerantz and Dr. Huston. It warned him that his benefits may be
suspended under section 8123(d) of the Act if he failed to report for the examination without an
acceptable reason.
Appellant did not appear for the scheduled examinations with Dr. Pomerantz or
Dr. Huston. On March 23, 2007 the Office advised him that it proposed to suspend his benefits
for failing to attend the appointment scheduled with Dr. Pomerantz. On March 30, 2007 it
notified appellant that it proposed to suspend his benefits for failing to attend the appointment
scheduled with Dr. Huston. In both letters notifying him of the proposed suspension, the Office
requested that he submit his reasons for failing to attend the examination within 14 days.
Appellant did not provide a reason for refusing to cooperate with the evaluations scheduled with
Dr. Pomerantz and Dr. Huston within the allotted time. The Office thus properly determined that
he refused to submit to a scheduled medical examination and properly suspended his right to
compensation benefits.10
On appeal appellant argues that he did not receive the Office’s initial letters referring him
for the appointments because he was no longer at the Kansas address. He did not, however,
change his address with the Office. The Office sent the March 6, 2007 referral letters to
appellant’s address of record. The Board has found that it is a claimant’s duty to inform the
Office of a change of address.11
Appellant requested reinstatement. After several attempts at scheduling, on April 21,
2008 the Office referred him for an evaluation with Dr. Logan on May 13, 2008 at 1:30 p.m. in
8

Lynn C. Huber, 54 ECAB 281 (2002).

9

J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008).

10

5 U.S.C. § 8123; S.B., 58 ECAB 267 (2007).

11

Steven Rabern, Docket No. 02-1363 (issued October 4, 2002); Robin Melinda Taylor, Docket No. 95-1890
(issued July 11, 1997).

5

Kansas City, KS. On April 23, 2008 the Office referred appellant to Dr. Huston for an
examination at 10:30 a.m. in Topeka, KS. Appellant contacted the Office on April 30, 2008 and
related that he did not want to attend the examinations because he wanted to continue to receive
benefits from OPM. On May 5, 2008 he notified the Office that he wished to withdraw his
request for a second opinion examination. On May 9, 2008 appellant asserted that he could not
attend the appointments because he could not drive but submitted no medical evidence
supporting his assertion or evidence showing that he was unable to get to the appointments using
public transportation.
On appeal appellant argues that the Office should not have referred him for a second
opinion examination given his age, the length of time he has been on compensation and as the
medical evidence showed that he was disabled. The law, however, requires him to submit to an
Office-directed examination. Appellant may not decide whether the circumstances warrant a
second opinion examination. There is no discretion for him to exercise in this matter.12
Appellant also argues that he was unable to drive to the doctor’s appointment; however,
as discussed, it is his burden to submit evidence establishing his inability to drive or take public
transportation.13
CONCLUSION
The Board finds that the Office properly suspended appellant’s compensation under 5
U.S.C. § 8123(d) for failing to attend a scheduled medical examination.

12

See 5 U.S.C. § 8123(d); 20 C.F.R. § 10.323; S.B., supra note 10.

13

Appellant submitted new medical evidence with his appeal. The Board has no jurisdiction to review new
evidence on appeal; see 20 C.F.R. § 501.2(c).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 21, 2008 is affirmed.
Issued: February 25, 2010
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Savannah, GA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket Nos. 14-1350 &
14-1974
Issued: October 29, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 5, 2013 and May 28, 2014 appellant filed timely appeals from an
October 22, 2013 nonmerit decision and an April 3, 2014 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.
ISSUES
The issues in this case are: (1) whether OWCP properly determined that appellant
abandoned her request for a hearing; and (2) whether appellant met her burden of proof to
establish a traumatic injury in the performance of duty on November 7, 2012.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that she did not receive any correspondence concerning a
telephonic hearing and that eyewitness testimony was not taken into account on the initial
adjudication of her claim.
FACTUAL HISTORY
On March 2, 2013 appellant, then a 50-year-old postal support employee, filed a
traumatic injury claim alleging that on November 5, 2012 she sustained an injury to her right
elbow when she hit her elbow on an iron bin after pulling mail out of a slot. She provided a
witness statement in support of her claim, who recalled that “on the night in question” she
showed him a bruise on her right arm that she had received while sweeping mail from a barcode
sorter machine. The employing establishment controverted appellant’s claim, contending that
she was not on duty at the time of the incident and that she had not provided an objective, wellreasoned medical rationale demonstrating that her condition was causally related to factors of her
employment.
On February 17, 2013 Dr. Thom Decker, a Board-certified radiologist, examined x-rays
of appellant’s right elbow. He noted no fracture, dislocation or other significant osseous
abnormality and stated his assessment of a normal right elbow.
In a statement dated March 12, 2013, Lisa A. Syse, a supervisor at the employing
establishment, noted that appellant alleged that she notified a supervisor, Ardis Pickett, of the
incident immediately after it occurred. She stated that it was the policy of the employing
establishment that reported incidents be entered into “EHS” immediately and “Safety” notified
within 24 hours. Ms. Syse noted that Mr. Pickett had retired on December 31, 2012 and that
appellant had not notified any other supervisor about the incident. She stated that “clock rings”
confirmed that appellant was not on duty on the date of the alleged work-related incident.
In a letter dated March 14, 2013, OWCP advised appellant that she had not submitted
sufficient evidence to establish that she actually experienced the incident alleged to have caused
injury. Further, that appellant had been diagnosed by a physician with a condition related to the
alleged injury, that she was within the performance of duty or that a physician had provided an
opinion as to how her injury resulted in the condition diagnosed. OWCP requested additional
factual evidence. It afforded appellant 30 days to submit this additional evidence. No response
was received.
By decision dated April 23, 2013, OWCP denied appellant’s claim. It found insufficient
factual evidence to establish that the November 5, 2012 incident occurred as alleged, explaining
that the employing establishment had indicated that she was not at work on November 5, 2012.
By letter dated April 14, 2013, received by OWCP on April 25, 2013, appellant
responded to OWCP’s inquiries. She stated that, beginning the week of November 3, 2012, she
worked at the employing establishment’s processing and distribution center, sweeping the mail
in an automation area. As appellant swept the mail, she reached up to pull mail out of a slot,
brought her right arm down and hit her elbow on an iron bin. She stated that afterward her right
elbow hurt badly because she had hit a bone. Appellant noted that she immediately told
Vernon B. Williams that she had hit her arm and that it hurt. Mr. Williams told her to inform a

2

supervisor. Appellant stated that she told Mr. Pickett about the incident, who asked if she was all
right. She responded that it hurt, but that it was probably just bruised. Appellant stated that she
had no similar conditions prior to the date of injury and did not sustain any other injury between
this date and the date it was first reported to a supervisor. She attached another statement from
Mr. Williams, which noted that she had shown him a bruise on her arm that she had received
while working as a postal employee “on the night in question.”
In a diagnostic report dated April 17, 2013, Dr. Matthew Dixon, a Board-certified
radiologist, examined the results of a magnetic resonance imaging (MRI) scan of appellant’s
right elbow. He stated his impression of a small partial tear of the extensor carpi radialis brevis
tendon origin, with no other significant findings. Appellant also submitted unsigned discharge
notes dated February 17, 2013.
In a duty status report dated April 20, 2013, Dr. Michael Adams, a Board-certified
surgeon, recommended work restrictions for appellant of no more than 5 pounds of continuous or
10 pounds of intermittent lifting; no continuous sitting; no continuous standing; no continuous
walking; no more than one to two hours of kneeling per day; no more than four to six hours of
bending/stooping per day; no more than one to two hours of twisting per day; no more than two
to eight hours of pushing/pulling per day; no continuous simple grasping; no more than two to
six hours of fine manipulation per day; and no more than two to four hours of reaching above the
shoulder per day. He noted that she had a tear of the extensor carpi brevis tendon and under the
heading of “diagnosis due to injury,” he wrote “contusion” and “tear of extensor carpi brevis.”
Dr. Adams advised appellant to return to work on April 20, 2013. A supervisor noted that her
injury occurred when her right elbow slammed into a steel shelf and listed appellant’s date of
birth under the heading “date of injury.”
On April 30, 2013 appellant requested a telephonic hearing before an OWCP hearing
representative. In an attached statement dated April 26, 2013, she noted that, while she injured
her right elbow the week of November 3, 2013, she was not sure of the exact date. Appellant
stated that she did report it to her supervisor, Mr. Pickett and that she told him she thought it was
just bruised at that time. She explained that her “paperwork was receive[d] late due to” her
physicians waiting for an MRI scan to be delivered.
OWCP informed appellant that the hearing would be held on September 23, 2013 and
provided the, time, telephone number and passcode for the telephonic hearing. This notice was
sent to her last known address by letter dated August 7, 2013.
By decision dated October 22, 2013, OWCP determined that appellant had abandoned her
request for a hearing because she had failed to appear and had not explained her absence.
By letter dated October 30, 2013 and received by the Board on November 5, 2013,
appellant appealed OWCP’s decision of October 22, 2013, contending that she never received a
letter informing her of her hearing.2

2

This appeal was docketed under case number 14-1974 on September 12, 2014.

3

Appellant requested reconsideration of OWCP’s April 23, 2013 decision by form letter
dated November 5, 2013 and received by OWCP on December 2, 2013. She attached a narrative
statement dated November 15, 2013, in which she noted that she did not know the exact date of
her injury, but that it was during the week of November 3, 2012. Appellant’s description of the
incident and of informing her supervisor was consistent with her prior accounts. She stated that,
afterward, her elbow hurt every day and that it continued to hurt months later. In February 2013,
appellant went to the emergency room, where x-rays were taken and she was told to see her
regular physician. She noted that she saw Dr. Adams, who sent her for more x-rays and
scheduled another appointment. Appellant also attached another statement from Mr. Williams
dated November 14, 2013. Mr. Williams stated that the week of November 3, 2012 she showed
him a bruise on her arm that she received while working at the employing establishment. He told
her to notify her supervisor, which she did. Mr. Williams noted that, in the following days,
appellant told him that her arm was still in pain and that it was worse when she attempted to lift
objects.
By decision dated January 3, 2014, OWCP reviewed the merits of appellant’s case on
reconsideration, but did not modify its prior decision. It found that she had not provided an exact
date for her injury.
Appellant again requested reconsideration by form letter dated January 23, 2014 and
received on January 29, 2014. With her request, she attached a statement in which she noted that
she had made a mistake regarding her date of injury. Appellant stated that she had thought
November 5, 2012 was a Thursday, but that in fact November 7, 2012 was a Thursday and that
the latter date was the date she was injured at work. She explained that she was in so much pain,
she did not think about it again.
In another duty status report dated April 20, 2013, Dr. Adams reiterated his previous
work restrictions for appellant. He listed her diagnosis as sprains and strains of the elbow and
forearm. A supervisor noted that appellant’s date of injury was November 7, 2012 and that her
injury occurred when her right elbow slammed into a steel shelf while working.
In a statement dated December 28, 2013, Mr. Pickett stated that, on November 7, 2012,
appellant came to him after she hit her right elbow on a steel bin while sweeping mail. Appellant
mentioned that it hurt, but assumed that it could be a bruise. Afterward, she mentioned to
Mr. Pickett that it still gave her discomfort and attributed this discomfort to continuous lifting.
Mr. Pickett noted that there was no official report, but that it was brought to his attention at the
time it occurred. He stated that it was feasible that appellant’s injury could have been worse than
she expected.
By decision dated April 3, 2014, OWCP reviewed the merits of appellant’s claim and
modified its decision to accept that the incident of November 7, 2013 occurred as alleged, but
denied her claim on the basis that she had not established a causal relationship between her
diagnosis and the traumatic incident. It noted that the medical evidence from Dr. Adams
provided a diagnosis, but did not elaborate on how the incident of November 7, 2012 caused this
diagnosis.

4

LEGAL PRECEDENT -- ISSUE 1
A claimant who has received a final adverse decision by OWCP may obtain a hearing by
writing to the address specified in the decision within 30 days of the date of the decision for
which a hearing is sought.3 Unless otherwise directed in writing by the claimant, OWCP’s
hearing representative will mail a notice of the time and place of the hearing to the claimant and
any representative at least 30 days before the scheduled date.4 OWCP has the burden of proving
that it mailed to appellant and his representative a notice of a scheduled hearing.5
The authority governing abandonment of hearings rests with OWCP’s regulations, which
provide in pertinent part as follows:
“A claimant who fails to appear at a scheduled hearing may request in writing
within 10 days after the date set for the hearing that another hearing be scheduled.
Where good cause for failure to appear is shown, another hearing will be
scheduled and conducted by teleconference. The failure of the claimant to request
another hearing within 10 days or the failure of the claimant to appear at the
second scheduled hearing without good cause shown shall constitute
abandonment of the request for a hearing.”6
ANALYSIS -- ISSUE 1
By decision dated April 23, 2013, OWCP denied appellant’s claim for compensation for
a traumatic injury. Appellant made a timely request for an oral hearing and, by notice dated
August 7, 2013, OWCP advised her that a telephonic oral hearing was to be held on
September 23, 2013. OWCP provided a telephone number, a time and a passcode. The notice
was sent to appellant’s last known address.7
Appellant failed to call the designated number on September 23, 2013. Thus, she was
required to provide an explanation for her failure to appear within 10 days. There is no evidence
of record that appellant contacted OWCP within 10 days of September 23, 2013 to explain her
failure to call in for the scheduled hearing. The evidence establishes that she did not request a
postponement of the hearing. Therefore, the Board finds that appellant abandoned her request
for a hearing in this case.

3

20 C.F.R. § 10.616(a).

4

Id. at 10.617(b).

5

See also K.D., Docket No. 11-77 (issued August 18, 2011); see Michelle R. Littlejohn, 42 ECAB 463,
465 (1991).
6

20 C.F.R. § 10.622(f); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of
the Written Record, Chapter 2.1601.6(g) (October 2011).
7

Absent evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business is
presumed to have been received. See also K.R., Docket No. 13-1412 (issued December 11, 2013); see James A.
Gray, 54 ECAB 277 (2002).

5

On appeal, appellant contends that she never received notice of the hearing. The Board
notes that the August 7, 2013 notice of hearing was properly addressed and mailed to appellant at
her last known address. A notice properly addressed and duly mailed to an individual in the
ordinary course of business is presumed to have been received by that individual.8 Accordingly,
the Board finds that appellant was properly notified of the hearing.
LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA9 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
employment injury.10 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.11
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.12
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.13 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.14
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.15 An award of
compensation may not be based on appellant’s belief of causal relationship. 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.16
8

J.R., Docket No. 13-313 (issued August 15, 2013); see also Newton D. Lashmett, 45 ECAB 181 (1993)
(regarding the mailbox rule).
9

See supra note 1.

10

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364, 366 (2006).

11

S.P., 59 ECAB 184, 188 (2007); Joe D. Cameron, 41 ECAB 153, 157 (1989).

12

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 10 at n.5.

13

D.B., 58 ECAB 464, 466 (2007); David Apgar, 57 ECAB 137, 140 (2005).

14

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734, 737 (2008); Bonnie A. Contreras,
supra note 10 at n.5.
15

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

16

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

6

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.17 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
compensable employment factors.18 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.19
ANALYSIS -- ISSUE 2
Appellant alleged that on November 7, 2012, she sustained an injury to her right elbow
after pulling mail out of a slot and hitting her elbow on an iron bin. By decision dated April 3,
2014, OWCP accepted that the November 7, 2012 incident occurred as alleged, but denied her
claim, finding insufficient medical evidence to establish that her right elbow condition was
causally related to the accepted incident. The Board finds that appellant did not meet her burden
of proof to establish that her right elbow condition was a result of the November 7, 2012
employment incident.
Appellant submitted duty status reports signed by Dr. Adams, containing diagnoses of
contusion, tear of the extensor carpi brevis tendon and sprains and strains of the elbow and
forearm. Although Dr. Adams stated that the history of injury on the duty status reports
corresponded to that, given to him by her and listed diagnoses due to an injury, he did not
provide any opinion of reasonable medical certainty on the cause of her right elbow condition,
supported by detailed medical rationale, explaining the nature of the relationship between her
diagnosed conditions and the incident of November 7, 2012. 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.20 The diagnostic report of Dr. Dixon is also insufficient to
establish appellant’s claim, as it did not provide any opinion on the cause of her right elbow
condition.
The issue of causal relationship is a medical question that must be established by the
submission of a probative medical opinion from a physician.21 Because appellant has not
provided such medical evidence, the Board finds that she has not met her burden of proof to
establish her claim.

17

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).
18

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

19

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

20

Willie M. Miller, 53 ECAB 697, 701 (2002).

21

W.W., Docket No. 09-1619 (issued June 2, 2010).

7

On appeal, appellant contends that witness statements were not taken into consideration
on the initial adjudication of her claim. This argument is irrelevant to the issue on appeal of the
April 3, 2014 decision, as OWCP had accepted the incident but denied her claim on the basis that
she had not provided sufficient medical evidence to establish that the accepted November 7,
2014 employment incident caused or contributed to her diagnosed conditions. Such evidence
was likely relied upon in the conclusion appellant had sufficiently proven fact of injury.
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 OWCP properly determined that appellant abandoned her request
for a hearing. The Board further finds that she did not meet her burden of proof to establish a
right elbow injury causally related to a November 7, 2012 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the April 3, 2014 and October 22, 2013 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 29, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Danville, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-184
Issued: September 7, 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 October 29, 2010 appellant filed a timely appeal from an October 4, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury in the performance of duty on November 5, 2009.
FACTUAL HISTORY
On February 16, 2010 appellant, then a 44-year-old clerk, filed a traumatic injury claim
alleging that she was pushing a mail cart on November 5, 2009 when she sustained a right hip
joint spasm. She stopped work on November 18, 2009 and did not return. Appellant later
detailed in a March 3, 2010 statement that she was collecting mail on the morning of
1

5 U.S.C. § 8101 et seq.

November 5, 2009 when she experienced a spasm in her right hip. The following day, she
visited an orthopedic physician, who advised her to stay off her leg as much as possible.2 The
employing establishment controverted the claim on the basis that appellant previously stated that
she hurt her hip and leg while she was gardening at home.3
OWCP informed appellant in a March 17, 2010 letter that additional evidence was
needed to establish her claim. It gave her 30 days to submit a statement describing the
employment incident that contributed to her injury and a physician’s report offering a reasoned
opinion explaining how the incident caused or aggravated the injury.
Appellant reiterated in March 22 and 24, 2010 statements that she had a right hip spasm
on November 5, 2009 while collecting mail and was thereafter unable to walk or bear weight on
her right side. Concerning the prior gardening incident, she commented that she “did get stuck in
the mud” sometime in June 2009, but the incident “could not cause the damage that would be
found in a hip arthroscopy in January 2010.” Appellant also indicated that medical reports were
forthcoming. OWCP did not receive any further documentation.
By decision dated April 20, 2010, OWCP denied appellant’s claim, finding the evidence
insufficient to establish that appellant experienced the alleged November 5, 2009 work incident.
Appellant subsequently provided several medical records. In a December 21, 2009
report, Dr. Jeffrey B. Selby, a Board-certified orthopedic surgeon, related that appellant was
gardening when her right foot got caught in the mud and her hip turned, causing right anterior
hip pain. The condition worsened when she returned to work. On examination, Dr. Selby
observed a slightly antalgic gait on the right, discomfort on internal and external rotation, and
groin tenderness on palpation. A previous magnetic resonance arthrogram showed a labral tear
and possible avascular necrosis of the femoral head. Dr. Selby diagnosed right hip labral tear
with a possible right femoral hernia.4
A January 4, 2010 report from Dr. John E. Merryman, a Board-certified orthopedic
surgeon, noted that an examination of appellant’s right groin was unremarkable.
On January 19, 2010 appellant underwent a right hip diagnostic arthroscopy with labral
debridement and femoral acetabular chondroplasty. Dr. Selby, who performed the surgery,
diagnosed right hip femoral acetabular chondromalacia with a posterior labral degenerative tear.
Postoperative reports for the period January 29 to March 1, 2010 indicated mild improvement in
appellant’s symptoms.
In an April 11, 2010 attending physician’s report, Dr. Selby linked appellant’s diagnosed
right hip acetabular chondromalacia and labral tear to a June 8, 2009 incident involving
2

Appellant also alleged that employment-related injuries occurred on June 8, 2009 and November 17, 2010,
respectively. She filed two separate traumatic injury claims related to these incidents, which are not presently before
the Board. OWCP File Nos. xxxxxx311 and xxxxxx310.
3

The record contains several witness statements attesting to appellant’s statement.

4

A portion of the report is not legible. Dr. Selby also offered similar examination findings in a subsequent
January 11, 2010 report.

2

prolonged pivoting and twisting. He checked the “yes” box in response to a form question
asking whether appellant’s condition was caused or aggravated by employment activity.
Dr. Selby released her to sedentary duty effective March 1, 2010.5
Appellant requested a telephonic hearing, which was held on August 4, 2010. At the
hearing, she testified regarding how she collected mail on November 5, 2009 and experienced
pain and other symptoms. Appellant also noted undergoing a second surgery on May 13, 2010.
She asserted that Dr. Selby’s December 21, 2009 report incorrectly attributed her injury to
June 2009 gardening activity.6
On October 4, 2010 OWCP’s hearing representative affirmed the April 20, 2010 decision
with modification, finding the medical evidence insufficient to establish that the accepted
November 5, 2009 work incident caused or aggravated her hip condition.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of her claim by the weight of reliable, probative and substantial evidence,7
including that she is an “employee” within the meaning of FECA and that she filed her claim
within the applicable time limitation.8 The employee must also establish that she sustained an
injury in the performance of duty as alleged and that her disability for work, if any, was causally
related to the employment injury.9
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 she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.10
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
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical

5

Appellant also submitted work excuse notes and various records from a physician assistant and physical
therapist.
6

The employing establishment submitted oral hearing responses dated August 23 and 25, 2010.

7

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

8

R.C., 59 ECAB 427 (2008).

9

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

10

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

3

rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.11
ANALYSIS
The evidence supports that appellant was pushing a cart and collecting mail on
November 5, 2009. The Board finds the medical evidence insufficient to establish that the
accepted employment incident caused or aggravated a right hip condition.
In an April 11, 2010 attending physician’s report, Dr. Selby checked a “yes” box to
indicate that appellant’s diagnosed right hip acetabular chondromalacia and labral tear was
caused by her federal employment. He also specified that a pivoting and twisting incident took
place on June 8, 2009. Dr. Selby’s opinion, however, is of diminished probative value because
he failed to provide medical rationale explaining how pushing a cart or collecting mail on
November 5, 2009 pathophysiologically caused or contributed to the injury.12 A checkmark
response, without further explanation or rationale, is insufficient to meet this standard.13
Dr. Selby presented an inaccurate history of injury as he cited June 8, 2009 instead of
November 5, 2009 as the date of the work event.14 In a December 21, 2009 report, he related
that appellant was gardening when her right foot got caught in the mud and her hip turned,
causing right hip pain. Dr. Selby advised that the condition worsened when she returned to
work. She did not explain how particular work duties caused worsening of the right hip
condition. The need for medical reasoning explaining how particular work factors on
November 5, 2009 caused or contributed to appellant’s condition is particularly important where
the record indicates that appellant had a prior hip injury that she sustained while gardening.
Without medical reasoning explaining why the November 5, 2009 work incident caused or
aggravated a diagnosed medical condition, these reports from Dr. Selby are insufficient to
establish the claim.
Dr. Selby’s other medical records, as well as Dr. Merryman’s January 4, 2010 report, are
of limited probative value since none offered an opinion on whether appellant’s employment
duties as a postal clerk caused or aggravated her right hip condition.15

11

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

12

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994). The Board points out
that Dr. Selby identified pivoting and twisting -- instead of pushing a cart or collecting mail -- as the employment
factors that led to appellant’s condition. See John W. Montoya, 54 ECAB 306, 309 (2003) (a physician must discuss
whether the employment incident described by the claimant caused or contributed to the diagnosed medical
condition).
13

See Alberta S. Williamson, 47 ECAB 569 (1996).

14

See M.W., 57 ECAB 710 (2006); James A. Wyrick, 31 ECAB 1805 (1980) (medical opinions based on an
incomplete or inaccurate history are of diminished probative value).
15

See S.E., Docket No. 08-2214 (issued May 6, 2009). The Board also notes that records from a physician
assistant and physical therapist lack evidentiary weight as neither is a “physician” as defined under FECA. See 5
U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238, 242 (2005); Jennifer L. Sharp, 48 ECAB 209 (1996).

4

Appellant argues on appeal that the October 4, 2010 decision is contrary to fact and law.
As noted, the medical evidence did not sufficiently explain how pushing a cart and collecting
mail on November 5, 2009 led to appellant’s injury. In the absence of well-reasoned medical
opinion explaining this relationship, appellant failed to meet her burden.
The Board notes that appellant submitted new evidence after issuance of the October 4,
2010 decision. The Board lacks jurisdiction to review evidence for the first time on appeal.16
However, appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained a traumatic injury in
the performance of duty on November 5, 2009.
ORDER
IT IS HEREBY ORDERED THAT the October 4, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 7, 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

16

20 C.F.R. § 501.2(c).

5