United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, NATIONAL INSTITUTES OF
HEALTH, Bethesda, MD, Employer
__________________________________________
Appearances:
Appellant, pro se
Paul J. Klingenberg, Esq., for the Director

)
)
)
)
)
)
)
)
)

Docket No. 06-1627
Issued: February 8, 2007

Oral Argument November 15, 2006

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

JURISDICTION
On July 11, 2006 appellant filed a timely appeal from the August 30, 2005 merit decision
of the Office of Workers’ Compensation Programs, which denied his claim for compensation and
his request for subpoenas. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of appellant’s claim and the denial of subpoenas. The Board
also has jurisdiction to review the Office’s May 18, 2006 decision denying a second hearing.
ISSUES
The issues are: (1) whether appellant sustained an injury in the performance of duty;
(2) whether the Office abused its discretion in denying appellant’s request for subpoenas; and
(3) whether the Office properly denied appellant’s request for a second hearing.
FACTUAL HISTORY
On December 19, 2002 appellant, then a 45-year-old secretary (office automation), filed a
claim alleging that he had stress-induced disability, chronic depression, acid reflux disease, liver

problems and severe shifting eye astigmatism as a result of his federal employment: “Had to
perform all the duties of a coworker released in July 2001 whose position was not refilled until
January 2002.” He submitted a narrative statement detailing the factors to which he attributed
his emotional and physical difficulties.
The Office received a two-page patient record from Dr. Oliver M. Bennett, a Boardcertified family practitioner. The record showed an illness date of January 25, 2002 and a “last
diagnosis” of abdominal pain left upper quadrant, abnormal liver enzyme and hyperlipidemia.
On March 19, 2003 the Office asked appellant to submit additional evidence to support his
claim, including the following:
“Provide a comprehensive medical report from your treating physician which
describes your symptoms; results of examinations and tests; diagnosis; the
treatment provided; the effect of treatment; and the doctor’s opinion, with medical
reasons, on the cause of your condition. Specifically, if your doctor feels that
exposure or incidents in your [f]ederal employment contributed to your condition,
an explanation of how such exposure contributed should be provided.”
In response to the Office’s request for additional information, appellant submitted a fuller
description of the circumstances that led him to file a grievance. The employing establishment
responded with a statement on April 15, 2003.
After receiving additional evidence, the Office issued a decision on October 17, 2003
denying appellant’s claim for compensation. The Office found that the factual evidence was
insufficient to establish that incidents implicated by appellant occurred at the time, place and in
the manner alleged. Further, the Office found that there was no medical evidence providing a
diagnosed condition that could be connected to the claimed events.
Appellant requested an oral hearing before an Office hearing representative.
December 5, 2003 facsimile transmission, he stated:
“I believed I provided the email address of Angenita McCoy, who in addition to
being a career NIH employee, had seniority in the Investigational Drug Branch
for about 7 years, and is thus the ideal witness to make statements about certain
‘managerial practices’ -- including adverse personnel actions processed under the
direction of the manager, Louise B. Grochow, when she was rotated into the
Branch.”
On December 10, 2003 appellant added:
“Please issue a subpoena to Mr. Richle Taffet, the present Human Resources
Chief in the NIH Office of the Director who replaced Nancy Bagley and who is
handling NCI cases. Given the implementation/non-implementation of the
December 2002 settlement scenario that the EEOC Office in Baltimore is aware
of, his presence could be needed as I present my concerns and spell-out what it is

2

In a

that I am requesting from Workman’s Compensation.
[number].”1

His phone number is

On March 5, 2004 appellant again addressed his request for a subpoena:
“In addition to the subpoena I wish to have delivered to Ms. Angenita McCoy, a
senior coworker who experienced similar adverse actions in the Investigational
Drug Branch of the National Cancer Institute, you should feel free to contact the
Administrative Judge who issued Summary Judgment in the case and settle in my
favor by clearing my federal record and authorizing my full reinstatement
eligibility. He can be reached at [number]. He specifically requested that he be
contacted when the hearing date approaches.
“As I indicated in my first letter, please make an initial inquiry with Ms. McCoy
via email at [address]. Given her status as a career NIH employee, I believe that
she should be accommodated as much as possible to make providing testimony
comfortable for her, for such reasons as her age, the type of issues that could
come up, etc. She is the most senior support staff member in the Branch; thus,
her judgments and viewpoints are directly relevant to all aspects of the case,
especially for such issues as organization of the support positions, managerial
practices, etc., since she has served under several Branch Chiefs.”
An oral hearing was held before an Office hearing representative on August 26, 2004.
Appellant appeared and testified. He submitted additional evidence, including a September 4,
2004 note from Dr. Martin D. Gensler, who performed a vision examination on July 19, 2003.
Dr. Gensler diagnosed myopia, astigmatism, anisometeropia and presbyopia, all of which, he
reported, could be corrected with spectacles. Appellant submitted a copy of prescription labels
and an information sheet indicating that he was diagnosed with obsessive-compulsive disorder.
He submitted a patient service record dated April 24, 2004 showing a diagnosis of
hyperlipidemia. A January 25, 2002 treatment note showed that appellant complained of “stress
at work” and wanted a letter to enable him to take time off. A March 7, 2002 treatment note
stated that he complained of going through considerable stress in his workplace and of having
problems with his supervisor. Appellant was diagnosed with depression, anxiety and
hypertension. Dr. Bennett provided some basic medical information on January 14, 2003,
including when appellant was first and last seen, height, weight and diagnoses of depression and
anxiety, hepatitis C and hypertension. A January 5, 2002 treatment note related appellant’s
physical complaints, findings on physical examination and medications.
Following the hearing, the employing establishment submitted an October 1, 2004
statement taking issue with some of appellant’s testimony.
1

Appellant has repeatedly confused the EEOC process -- including hearings thereunder, subpoenas and
implementation of his EEOC settlement agreement -- with the process of claiming workers’ compensation benefits
through the Office of Workers’ Compensation Programs. Neither the Office, the Office hearing representative nor
the Board has any jurisdiction over the EEO matter. And the EEO matter has essentially no bearing on his claim for
workers’ compensation benefits.

3

In a decision dated November 10, 2004, the Office hearing representative affirmed the
denial of appellant’s claim for workers’ compensation benefits. After a thorough review of the
evidence and testimony, the Office hearing representative affirmed the denial of compensation,
modified to find that the following incidents occurred in the performance of duty: that
appellant’s work area was divided into two workstations and that the telephone line was not
transferred to the claimant’s workstation, thus requiring going back and forth between the two
workstations to get faxes. The Office hearing representative reviewed the medical record,
however, and found no medical evidence in which a physician displayed knowledge of this
accepted employment factor, provided a definitive diagnosis and an unequivocal opinion
regarding causal relationship between this accepted employment factor and the diagnosis
provided and supported that opinion with medical rationale.
On April 2, 2005 appellant requested reconsideration. Among other things, he stated that
he believed he was not accorded due process at the August 2004 oral hearing, “where I requested
subpoenas be issued to other NCI/CTEP employees who were similarly situated and who
experienced similar difficulties with the department in which my position was organized.”
Appellant submitted a prescription for corrective lenses and two disability certificates from
Dr. Bennett, who wrote that appellant was unable to work from January 25 to February 7, 2002
and from March 7 to 20, 2002.
In a decision dated August 30, 2005, the Office hearing representative adopted the
November 10, 2004 decision and amended such to include a denial of the requested subpoenas:
“The claimant’s request for Mr. Taffet to be subpoenaed fails to describe the
address and location of the witness, fails to explain why the testimony or evidence
is directly relevant to the issues at hand and does not indicate that utilization of
the Office’s subpoena power is the best and only method or opportunity to obtain
such evidence. The claimant merely indicated that Mr. Taffet’s ‘presence could
be needed.’ Accordingly, it is the opinion of this reviewer that the subpoena
request for Mr. Taffet be denied.
“With regard to the claimant’s subpoena request for Angenita McCoy, it is further
the opinion of this reviewer that such request must be denied as it entirely failed
to describe the address and location of the witness, failed to explain why the
selected party’s testimony would be directly relevant to the issues at hand and
failed to demonstrate that the Office’s subpoena power was the best method to
obtain such evidence. The claimant merely indicated that such party experienced
‘similar adverse actions.’”
On January 12, 2006 appellant wrote that he understood that he had the right to another
hearing by a different examiner. On March 3, 2006 he requested an oral hearing before an
Office hearing representative and stated, “I am specifically requesting another [r]eviewer.”
In a decision dated May 18, 2006, the Office found that appellant was not entitled to a
hearing as a matter of right because he had already received an oral hearing on whether he
developed a stress condition causally related to factors of his federal employment. Exercising its
discretion, the Office denied a hearing on the grounds that the issue in appellant’s case could

4

equally well be addressed by requesting reconsideration before the district Office and submitting
evidence not previously considered establishing that the claimed medical condition was causally
related to the work-related event.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of his claim. When an employee claims that
he sustained an injury in the performance of duty, he must submit sufficient evidence to establish
that he experienced a specific event, incident or exposure occurring at the time, place and in the
manner alleged. He must also establish that such event, incident or exposure caused an injury.3
Causal relationship is a medical issue,4 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,5 must be one of reasonable medical certainty,6
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.7
ANALYSIS -- ISSUE 1
The Office received statements from appellant describing the various circumstances at
work that he believed were responsible for his emotional and physical difficulties. The Office
also received statements from the employing establishment clarifying or disputing appellant’s
allegations. After reviewing the factual evidence developed in this case, the Office determined
that some of appellant’s allegations, even if true, would not bring his claim for benefits under the
coverage of the Act,8 and that other allegations which would bring his claim within the coverage
of the Act were not established to have occurred as a matter of fact. In his November 10, 2004
decision, the Office hearing representative made a finding that one of appellant’s allegations was
2

5 U.S.C. §§ 8101-8193.

3

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
4

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

5

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

6

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

7

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

8

Workers’ compensation law does not cover each and every injury or illness that is somehow related to
employment. Lillian Cutler, 28 ECAB 125 (1976).

5

not only a compensable factor of employment but was also established by the weight of the
evidence: that appellant’s work area was divided into two workstations and that the telephone
line was not transferred to the claimant’s workstation, thus requiring going back and forth
between the two workstations to get faxes. The Office accepts that appellant established that he
experienced a specific event, incident or exposure occurring at the time, place and in the manner
alleged. The question that remains is whether this specific factor of employment caused an
injury.
The Office asked appellant on March 19, 2003 to submit additional medical evidence to
support his claim, and described the kind of medical evidence required: “Please provide a
comprehensive medical report from your treating physician which describes your … diagnosis
… and the doctor’s opinion, with medical reasons, on the cause of your condition.” The Office
added that if appellant’s physician felt that exposure or incidents in federal employment
contributed to the condition, “an explanation of how such exposure contributed should be
provided.”
Appellant submitted no such medical opinion or explanation. The submitted medical
records show a number of diagnosed conditions. Treatment notes reflect appellant’s complaint
of unspecified “stress at work” and having unspecified problems with his supervisor.9 No
physician, however, has attributed even one of appellant’s diagnoses to the division of his work
area. No physician has rationally explained how going back and forth between the two
workstations to get faxes caused or aggravated a diagnosed medical condition. Disability
certificates from Dr. Bennett do not support that appellant sustained an employment injury or
that his disability for work for particular dates was a result of an employment injury.
As noted, a physician must relate a complete factual and medical background of
appellant, must express his opinion as one of reasonable medical certainty, and must support his
opinion with medical rationale explaining the nature of the relationship between the diagnosed
condition and the division of appellant’s work area. This evidence is critical to appellant’s
claim. Without it, he cannot establish that he sustained an injury in the performance of duty.
The Board will affirm the Office’s August 30, 2005 decision denying his claim for compensation
benefits.

9

In Kathrine W. Brown, 10 ECAB 618 (1959), a physician attributed the claimant’s ulcer to unspecified feelings
of job insecurity. The Board found that the physician’s opinion was insufficient to establish a causal relation
because, in part, he did not recite the actual circumstances upon which he predicated his conclusion.

6

LEGAL PRECEDENT -- ISSUE 2
Section 8126 of the Act provides that the Secretary of Labor, on any matter within her
jurisdiction under this subchapter, may issue subpoenas for and compel the attendance of
witnesses within a radius of 100 miles.10 Office regulations provide:
“A claimant may request a subpoena, but the decision to grant or deny such a
request is within the discretion of the hearing representative. The hearing
representative may issue subpoenas for the attendance and testimony of witnesses,
and for the production of books, records, correspondence, papers or other relevant
documents. Subpoenas are issued for documents only if they are relevant and
cannot be obtained by other means, and for witnesses only where oral testimony is
the best way to ascertain the facts.…
“To request a subpoena, the requestor must: … Explain why the testimony or
evidence is directly relevant to the issues at hand, and a subpoena is the best
method or opportunity to obtain such evidence because there are no other means
by which the documents or testimony could have been obtained.”11
ANALYSIS -- ISSUE 2
In his August 30, 2005 decision, the Office hearing representative denied appellant’s
request for subpoenas. Appellant did not explain to the hearing representative why oral
testimony was the best way to ascertain the facts. Although he stated that Ms. McCoy was the
ideal witness to make statements about certain “managerial practices” and that her judgments
and viewpoints were directly relevant to all aspects of the case, he did not make clear whether
she had first-hand knowledge of the specific incidents he was alleging in his claim for
compensation. Appellant noted instead that she had experienced “similar adverse actions.” This
raises a question of how her experiences would be relevant to appellant’s claim. Moreover,
appellant made no representation to the Office hearing representative that there were no other
means by which Ms. McCoy’s testimony could be obtained.12
Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts and similar criteria. It is not enough to merely show
that the evidence could be construed so as to produce a contrary factual conclusion.13

10

5 U.S.C. § 8126(1).

11

20 C.F.R. § 10.619 (1999).

12

At the oral argument before the Board, appellant indicated that Ms. McCoy, a career employee, would not
provide a statement in his case unless subpoenaed.
13

Dorothy Bernard, 37 ECAB 124 (1985).

7

The Board finds no abuse of discretion in the Office hearing representative’s denial of
appellant’s request for subpoenas.14 The Board will affirm the hearing representative’s
August 30, 2005 decision on this issue.
LEGAL PRECEDENT -- ISSUE 3
Section 8124(b)(1) of the Act provides:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary under subsection (a) of this section is
entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.”15
A claimant is not entitled to an oral hearing, however, if he has already received a hearing
on the same issue or set of issues.16 Nonetheless, the Board has held that the Office, in its broad
discretionary authority in the administration of the Act, has the power to hold hearings in certain
circumstances where no legal provision was made for such hearings, and has held that the Office
must exercise its discretion in such cases.17 The Office shall determine whether a discretionary
hearing should be granted and, if not, shall so advise the claimant with reasons.18 The Office’s
procedures, which require the Office to exercise its discretion to grant or deny a hearing when no
legal provision is made for such hearings, are a proper interpretation of the Act and of Board
precedent.19
ANALYSIS -- ISSUE 3
Having already received an oral hearing before an Office hearing representative on
August 26, 2004 on the issue of whether he sustained an injury in the performance of duty,
appellant was not entitled to another hearing on the same issue as a matter of right. The Office
correctly made this finding in its May 18, 2006 decision. The Office considered whether to grant
a discretionary hearing but denied such a hearing on the grounds that appellant could equally
well address the issue in his case -- whether the accepted factor of employment caused a
14

Appellant explained to the Board that he really did not need a statement from Mr. Taffet and that Mr. Taffet
could therefore be left out of the matter.
15

5 U.S.C. § 8124(b)(1).

16

See Charles D. Watson, 35 ECAB 1068 (1984) (if a claimant has received a hearing on an issue or set of issues
and the hearing representative affirms the Office’s decision, the claimant is not entitled to another hearing on that issue
or set of issues even if he proffers new evidence; he may receive a second hearing only if the Office, in its discretion,
grants him a second hearing).
17

Johnny S. Henderson, 34 ECAB 216 (1982) (request for a second hearing).

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.4.b(3) (June 1997).
19

See Jeff Micono, 39 ECAB 617 (1988); Henry Moreno, 39 ECAB 475 (1988).

8

diagnosed medical condition -- through the reconsideration process. As appellant may indeed
pursue this issue through an alternative procedure, by submitting to the Office a request for
reconsideration and by supporting that request with a doctor’s well-reasoned medical opinion on
whether the accepted factor of employment caused a diagnosed emotional or physical condition,20
the Board finds that the Office did not abuse its discretion in denying appellant’s request for a
second hearing on the same issue.21
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury in the performance of duty. Although the Office accepts that he has
established a compensable factor of employment, there is no medical opinion in the record
soundly explaining how this particular factor of employment caused an emotional or physical
injury. The Board also finds that the Office hearing representative did not abuse his discretion in
denying appellant’s request for subpoenas. Further, the Board finds that the Office properly
denied appellant’s request for a second hearing on the same issue.
ORDER
IT IS HEREBY ORDERED THAT the May 18, 2006 and August 30, 2005 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 8, 2007
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
20

Appellant has one year from the date of the Board’s opinion to submit such a request to the Office.

21

The Board has held that the denial of a hearing on these grounds is a proper exercise of the Office’s discretion.
E.g., Jeff Micono, 39 ECAB 617 (1988).

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Burlington, VT, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1098
Issued: September 3, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 3, 2013 appellant filed a timely appeal from a November 1, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
right foot injury on August 26, 2012 while in the performance of duty.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. The Board may only review evidence
that was in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57
ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

On appeal, appellant contends that she sustained an injury while in the performance of
duty on August 26, 2012. She immediately reported her injury to Craig Lassiter, a supervisor.
Appellant received medical treatment from a nurse practitioner, who has been her sole medical
provider since 1990.
FACTUAL HISTORY
On September 7, 2012 appellant, then a 53-year-old clerk, filed a traumatic injury claim
alleging that on August 26, 2012 a nail punctured her right foot while she was moving cages of
parcels at work. She stopped work on September 6, 2012 and returned to work the next day.
In a September 4, 2012 medical report, Joanna Hunt, a nurse practitioner, recommended a
limited work schedule, 4:00 a.m. to 10:00 a.m. from September 6 through 17, 2012, due to
appellant’s recent right foot injury. Thereafter, appellant could resume her usual work schedule.
On September 18, 2012 Ms. Hunt reported that appellant had the flu. She recommended the
previous limited work schedule through October 1, 2012 due to appellant’s recent right foot
injury. Thereafter, appellant could return to her usual work schedule.
By letter dated September 19, 2012, the employing establishment controverted the claim.
It contended that appellant could have been exposed to sheet rock nails or other construction
debris at her husband’s plaster business. There were no witnesses as she was working alone at
the time of injury. Appellant waited nine days before seeking medical attention. The medical
evidence did not provide a diagnosis or date and mechanism of injury to establish that she
sustained a work-related condition on August 26, 2012. By letter dated September 20, 2012, the
employing establishment contended that accompanying unsigned discharge instructions dated
September 1, 2012 from Fletcher Allen Emergency Services addressed a nonemployment-related
eye injury and did not mention her August 26, 2012 right foot injury. The discharge instructions
indicated that appellant was seen by Jared Leavitt, a physician’s assistant, and addressed her
treatment plan and follow-up care for an insect bite and conjunctivitis.
By letter dated September 27, 2012, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It requested that she submit additional factual and
medical evidence. Appellant was asked to provide dates of examination and treatment, a history
of injury given by her to a physician, a detailed description of any findings, the results of any
x-rays or laboratory tests, a diagnosis and course of treatment followed and a physician’s opinion
supported by a medical explanation as to how the reported work incident caused the claimed
injury.
In an undated good faith recordkeeping decision sheet, the employing establishment
contended that appellant did not timely report her claim or seek medical treatment and no
rationale was provided for the reduction of her work hours. A supervisor who inspected the
shoes worn by appellant on the date of injury found no puncture mark in the heel. On
September 21, 2012 the employing establishment was advised by appellant’s medical provider
that there was no visual indication of a work-related injury. The health provider acknowledged
that there was no medical basis for the recommended work schedule. The employing
establishment noted that appellant was named as executive director of her husband’s plaster
business.

2

In a September 21, 2012 e-mail, Kathy Dyer, an employing establishment registered
nurse, stated that appellant reported her right foot injury to a provider office. At the time of the
first provider visit, there was no obvious injury to the painful site under the right second toe. The
reported injury site had healed completely other than pain. Appellant’s restricted work schedule
was based on her desired work hours.
On October 5, 2012 appellant described the August 26, 2012 incident. She was pulling
full cages of mail off a loading deck to the workroom floor. Appellant reported her injury in a
Report of Hazard, Unsafe Condition or Practice (Form 1767) on August 26, 2012. She was the
only employee at work on Sundays. On the date of injury, appellant experienced pain on the
bottom of her foot. She sat down in a chair and removed a nail from her shoe. Appellant then
removed her shoe and sock and inspected her foot. On August 27, 2012 her supervisor inquired
about her foot injury. Appellant informed him that her foot was sore and that she would seek
medical treatment if it did not resolve or if it worsened. She sought medical treatment when her
condition did not resolve. Appellant was treated in an emergency room on September 1, 2012
for an eye condition that was not related to her foot injury. The accompanying August 26, 2012
Form 1767 completed by her stated that a nail went through the bottom of her shoe and stuck
into her right foot.
In a November 1, 2012 decision, OWCP accepted that the August 26, 2012 incident
occurred as alleged. It denied appellant’s claim, however, finding insufficient medical evidence
to establish that she sustained a right foot injury causally related to the accepted employment
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5
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.6
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7

3

5 U.S.C. §§ 8101-8193.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

7

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

3

The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.8 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.9 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.10
ANALYSIS
OWCP accepted that on August 26, 2012 appellant pulled full cages of mail off a loading
deck to the workroom floor while in the performance of duty. It found that the medical evidence
failed to establish that she sustained a right foot injury as a result of the accepted incident. The
Board finds that appellant failed to provide sufficient medical evidence to establish a right foot
condition causally related to the August 26, 2012 employment incident.
The September 4 and 18, 2012 reports from Ms. Hunt have no probative value in
establishing appellant’s claim of injury. A nurse practitioner is not a “physician” as defined
under FECA.11 The Board finds, therefore, that Ms. Hunt’s reports do not constitute medical
evidence to support appellant’s claim.
The September 1, 2012 unsigned discharge instructions from Fletcher Allen Emergency
Services are also insufficient to establish appellant’s claim. Reports that are unsigned or bear
illegible signatures, lack proper identification and cannot be considered probative medical
evidence if the author is not identified as a physician.12 Further, the Board notes that, although
the discharge instructions indicated that appellant was seen by Mr. Leavitt, a physician’s
assistant, a physician’s assistant is not a physician as defined under FECA.13 Mr. Leavitt’s
opinion regarding appellant’s diagnoses is of no probative medical value.
The Board finds that there is no rationalized medical opinion of record to establish that
appellant sustained a right foot injury causally related to the accepted August 26, 2012
employment incident. Appellant did not meet her burden of proof.
On appeal, appellant contended that she sustained an injury while in the performance of
duty on August 26, 2012. She immediately reported her injury to her supervisor and had
received medical treatment from her only medical provider, Ms. Hunt. As noted, OWCP

8

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
9

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

10

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

11

See 5 U.S.C. § 8101(2); A.C., Docket No. 08-1453 (issued November 18, 2008).

12

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

13

See 5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238, 242 (2005).

4

accepted that the August 26, 2012 incident occurred as alleged. For the reasons stated, the Board
finds that Ms. Hunt’s reports have no probative value to establish appellant’s claim 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 appellant has not met her burden of proof to establish that she
sustained a right foot injury on August 26, 2011 while in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the November 1, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 3, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF THE ARMY, ANNISTON
ARMY DEPOT, Anniston, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-155
Issued: August 5, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 20, 2008 appellant filed a timely appeal from the August 12, 2008 merit
decision of the Office of Workers’ Compensation Programs denying his traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant established that he sustained an injury in the performance
of duty on May 28, 2008. He believes that he should be covered by compensation for time off
from work and medical costs because this shoulder injury is just a reinjury of a prior accepted
injury under another case file number.
FACTUAL HISTORY
On June 4, 2008 appellant, a 43-year-old heavy mobile equipment mechanic leader, filed
a traumatic injury claim (Form CA-1) for injury to his left shoulder and neck. He attributed his
injury to a May 28, 2008 incident when he slipped while getting out of an M9ACE armored
combat earthmover. Appellant alleged that, after slipping, he caught himself, thereby preventing

a fall. He also has an accepted condition for left shoulder rotator cuff sprain1 for which he
received medical treatment. This condition arose from an injury occurring on May 21, 2002.
Appellant submitted a May 30, 2008 clinic pass signed by a person whose signature is
illegible. This individual recommended appellant see a private physician, be referred to the
compensation office and provided a list of work restrictions. Appellant also submitted a May 30,
2008 medical report signed by Dr. Ting J. Tai, Board-certified in occupational medicine. Dr. Tai
reported that appellant complained of constant shoulder and neck pain that arose when he slipped
while getting out of a tank.
In a June 4, 2008 medical report, Dr. P. Lauren Savage, a Board-certified orthopedic
surgeon, reported that a magnetic resonance imaging (MRI) scan revealed a partial rotator cuff
tendon tear and acromioclavicular joint impingement of the rotator cuff. He diagnosed appellant
with complete tear of the rotator cuff tendon, rotator cuff tendinitis and subacromial bursitis.
Dr. Savage stated that appellant was not fit for work and recommended, as treatment, an open
acromioplasty mumford and partial distal clavicle resection. In a separate June 4, 2008 medical
note, he asserted that appellant could not return to work.
By request dated June 6, 2008, Dr. Savage requested authorization for the following
surgical procedure: open acromioplasty mumford and partial distal clavicle resection. In a
medical note also dated June 6, 2008, he excused appellant from work, due to a complete left
shoulder rotator cuff tear and noted that surgery was pending approval.
Appellant submitted a June 9, 2008 medical authorization form (CA-16).2
By letter dated June 12, 2008, the Office notified appellant that his claim had originally
been received as a simple, uncontroverted case which resulted in minimal or no time loss. It also
noted that the merits of appellant’s claim had not been formerly considered. The Office reported
that it had received a request on June 10, 2008 from appellant’s physician for authorization to
perform a surgical procedure to partially remove appellant’s collar and shoulder bones. It
notified appellant that this request could not be authorized as the evidence of record was not
sufficient such that it could accept his claim.
In a subsequent medical note dated June 23, 2008, Dr. Savage reported that appellant
could return to work, provided he was assigned to sedentary, light duty with the following
restrictions: no lifting, no using of ladders and no overhead work. In a separate medical report
dated June 23, 2008, he observed, upon examination, tenderness to palpation of appellant’s
cervical spine and radicular pain that radiated into both arms. Dr. Savage also observed
generalized tenderness in appellant’s shoulder upon palpation. He reported that an MRI scan
conducted May 29, 2008 showed an acromioclavicular degenerative joint disease, mild tendinitis
and impingement syndrome. Dr. Savage diagnosed appellant with rotator cuff tendinitis,
1

OWCP File No. xxxxxx998.

2

The Board notes that the Office issued a Form CA-16. A properly executed Form CA-16 creates a contractual
obligation, which does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim. See Elaine M. Kreymborg, 41 ECAB 256, 259 (1989). The Form CA-16 issued to
appellant did not authorize examination or treatment and was missing its second page and, therefore, was not
properly executed.

2

subacromial bursitis, cervical disc degeneration and cervicalgia. He recommended physical
therapy. The record reflects that the Office authorized 32 units of physical therapy.
In a medical report dated June 23, 2008, a physician, whose name is illegible, reported
findings following an MRI scan of appellant’s cervical spine. The physician reported finding
severe bilateral, C6-7, severe right and moderate left C4-5 and moderate right C3-4 foraminal
stenosis. The physician also reported finding mild spinal stenosis at C3 through C7.
Appellant submitted medical records from Cunningham Pathology concerning a July 24,
2008 appointment for an undefined and unidentified procedure related to cervical degenerative
joint disorder. In a separate medical note dated July 24, 2008, C. Gilbert, a registered nurse,
asserted that appellant could not drive or operate machinery for 24 hours after the procedure.
Appellant filed a compensation claim (Form CA-7) for the period July 24 through 25, 2008. The
record reflects that he claimed 17 hours leave without pay for this period.
By decision dated August 12, 2008, the Office denied appellant’s compensation claim
because the medical evidence of record did not demonstrate that the claimed medical condition
was related to the established work-related event.3
LEGAL PRECEDENT -- ISSUE 1
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.4 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.5
A person who claims benefits for a work-related condition has the burden of establishing
by the weight of the medical evidence a firm diagnosis of the condition claimed and a causal
relationship between that condition and factors of federal employment.6 Causal relationship is a
medical issue and the medical evidence generally required to establish causal relationship is
rationalized medical opinion evidence. Rationalized medical opinion evidence is medical
evidence which includes a physician’s rationalized opinion on whether there is a causal
relationship between the employee’s diagnosed condition and the compensable employment
3

The Board notes that appellant submitted additional evidence, consisting of medical notes and reports. The
Board may not consider evidence for the first time on appeal which was not before the Office at the time it issued
the final decision in the case. 20 C.F.R. § 501.2(c). See J.T., 59 ECAB ___ (Docket No. 07-1898, issued
January 7, 2008) (holding the Board’s jurisdiction is limited to reviewing the evidence that was before the Office at
the time of its final decision.) As these medical reports and notes were not part of the record considered by the
Office, the Board may not consider them for the first time on appeal.
4

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

5

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
6

See Roy L. Humphrey, 57 ECAB 238 (2005); see Naomi A. Lilly, 10 ECAB 560, 574 (1959).

3

factors. 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.7
ANALYSIS -- ISSUE 1
Appellant has a prior accepted claim for rotator cuff sprain. He filed a traumatic injury
claim for an alleged May 28, 2008 injury to his left shoulder and neck. The Office has accepted
that on May 28, 2008 appellant slipped and caught himself from falling while exiting an earth
mover but found appellant had not met his burden to prove that the accepted incident was
causally related to his current medical concerns. It is appellant’s burden to produce substantive,
probative and relevant evidence establishing that he sustained an injury and that the injury was
causally related to his accepted employment-related incident. The Board finds that the evidence
of record is insufficient to satisfy appellant’s burden of proof and, therefore, the Office properly
denied his traumatic injury claim.
The medical evidence of record consisted of medical reports and notes from Drs. Savage
and Tai.8 Dr. Tai’s medical report is of no probative value because it did not present findings
upon examination, a thorough review of appellant’s medical history or an opinion concerning a
causal relationship between a diagnosed condition and appellant’s accepted employment-related
incident. At best, he merely reiterated appellant’s allegations concerning how he was allegedly
injured combined with a diagnosis of pain. However, pain is merely a symptom, not a
recognized medical diagnosis, and is therefore not compensable.9 Moreover, appellant’s selfdiagnosed symptoms are not sufficiently substantive evidence for purposes of the Act.10
Therefore, Dr. Tai’s medical report is of no probative value and is insufficient to satisfy
appellant’s burden.
The medical reports from Dr. Savage are of limited probative value. None of
Dr. Savage’s medical reports presented a review of appellant’s medical history or, for that
matter, ever mentioned the previously accepted rotator cuff sprain condition. Moreover, they
lack a medical opinion concerning the causal relationship between a diagnosed condition and the

7

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
8

The medical evidence of record also contained a June 23, 2008 medical report from a physician whose name
was illegible. The illegibility of the physician’s name aside, this report is of limited probative value as it too did not
present findings upon examination, a thorough review of appellant’s medical history, any semblance of diagnosis or
an opinion concerning a causal relationship between a diagnosed condition and appellant’s accepted condition,
factors of his federal employment or an employment-related incident. See Mary E. Marshall, 56 ECAB 420 (2005)
(medical reports that do not contain rationale on causal relationship have little probative value). See also
Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001).
9

See C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008).

10

See Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s self-serving declarations do not, in the
opinion of the Board, constitute evidence of a sufficiently substantial nature).

4

employment-related incident.11 At no time did Dr. Savage opine that a causal relationship
existed between appellant’s diagnosed condition and his employment-related incident. Thus
none of Dr. Savage’s medical reports are sufficiently rationalized to be of any probative value
and, therefore, are insufficient to satisfy appellant’s burden of proof.
Appellant has the burden of establishing, by the weight of the reliable, probative and
substantial evidence, that his condition was causally related to factors of his employment. The
Office advised appellant of the importance of submitting such competent evidence. As there is
no probative evidence of record establishing that appellant’s condition is causally related to his
federal employment, appellant has established that he sustained an injury in the performance of
duty and the Office properly denied his traumatic injury claim.
Appellant’s reference to the prior injury is not enough to prove causal relationship. This
incident was an intervening event and, to warrant compensation as a work-related incident, must
be established on its own with its own medical evidence establishing a causal relationship
between the May 2008 incident and the current medical conditions.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty on May 28, 2008.
ORDER
IT IS HEREBY ORDERED THAT the August 12, 2008 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: August 5, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board
11

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value). See also, Jimmie H. Duckett, supra note 8; Franklin D. Haislah, supra
note 8.

5


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

)
)
)
)
)
)
)
)

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

Docket No. 07-1523
Issued: February 13, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 14, 2007 appellant, through her attorney, filed a timely appeal from the merit
decisions of the Office of Workers’ Compensation Programs dated June 2 and December 5, 2006
denying her claim for greater than six percent impairment of the left lower extremity. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction to review the merits of this
case.
ISSUE
The issue is whether appellant is entitled to a schedule award greater than six percent for
her left lower extremity.
On February 22, 2000 appellant, then a 25-year-old rural carrier, filed a traumatic injury
claim alleging that, on February 8, 2000, she was picking up a “tub of flats” when she felt a pain
in her back, which gradually increased. Although her claim was initially denied, it was
subsequently approved by decision dated February 22, 2002 for herniated disc L5-S1 and lumbar
surgery. On August 20, 2002 appellant began employment for the State of Delaware Sussex
County Correctional Institute as a full-time drug and alcohol counselor.

On April 24, 2003 appellant filed a claim for a schedule award. In support thereof, she
submitted a medical report by Dr. Nicholas P. Diamond, an osteopath, wherein he opined that
she had reached maximum medical improvement on January 2, 2003. Dr. Diamond diagnosed
appellant with L5-S1 herniated nucleus pulposus with free fragment; status post
hemilaminectomy and discectomy L5-S1 and chronic residual left S1 radiculopathy. He
evaluated her pursuant to the American Medical Association, Guides to Evaluation of Permanent
Impairment (fifth edition) by noting that, pursuant to Table 17-8, page 532, appellant was
entitled to a rating of two percent for 4/5 motor strength deficit left extensor hallucis longus. For
the sensory deficit to her left S1 nerve root, she was entitled to four percent impairment pursuant
to Table 15-15 and 15-18 of the A.M.A., Guides. Dr. Diamond then combined these figures and
found that appellant was entitled to six percent impairment for combined left lower extremity.
He then added four percent for pain-related impairment pursuant to Figure 18-1 on page 574 of
the A.M.A., Guides. Combining these figures, Dr. Diamond determined that appellant was
entitled to nine percent impairment of her left lower extremity.
On September 3, 2003 the Office forwarded the report of Dr. Diamond to the Office
medical adviser and asked if he agreed with the rating. He responded by indicating that he did
not completely agree with Dr. Diamond’s assessment. The medical adviser noted that the
A.M.A., Guides at Table 15-18 on page 424 includes pain and loss in the sensation rating, and
that therefore, Dr. Diamond duplicated the pain rating by listing it separately. Therefore, using
Dr. Diamond’s figures for sensory and motor impairment, he found that appellant was entitled to
a schedule award based on a six percent impairment of the left lower extremity. The medical
adviser also listed the date of maximum medical improvement as January 2, 2003 as per the
report of Dr. Diamond.
By decision dated October 6, 2003, the Office issued a schedule award for six percent
loss of use of the left leg. It found that appellant reached maximum medical improvement on
January 2, 2003.
By letter dated October 7, 2003, appellant requested a hearing.
In a medical report dated June 24, 2004, Dr. David Weiss, an osteopath, argued that
although the four percent impairment due to sensory deficit in the left S1 nerve roots does
encompass pain, pursuant to the A.M.A., Guides, page 574, Figure 18-1, if pain-related
impairment appears to increase the burning of the individuals condition slightly, the examiner
can increase the percentage found by up to three percent. He noted after reviewing appellant’s
chart that she was unable to perform gainful employment as a postal employee and noted other
difficulties including difficulties with household chores, sleep difficulties and prolonged sitting,
standing and walking. Dr. Weiss noted that she has difficulties with repetitive bending, lifting
and twisting and difficulty with prior hobbies. He opined that appellant should be entitled to an
additional three percent impairment for pain.
In a decision dated August 20, 2004, the hearing representative found that a conflict
existed between appellant’s physician and the Office medical adviser over the level of
appellant’s impairment and remanded the case for the Office to refer appellant to an impartial
medical examiner.

2

By letter dated April 18, 2005, the Office referred appellant to Dr. Charles A. Mauriello
for an impartial medical examination. In a medical report dated June 23, 2005, he indicated that
appellant was not at maximum medical improvement. Dr. Mauriello noted that, if one were to
adhere strictly to the A.M.A., Guides, a permanency rating should not be issued at this time. He
recommended further diagnostic studies. However, Dr. Mauriello noted:
“If one were to require an impairment rating at this time, and at times that would
be required by jurisdiction, there would be a nine percent permanent partial
impairment to the left lower extremity secondary to her work activities. I
understand that the impairment rating to the spine would not be rendered but
rather to the left lower extremity. It should be noted, through, she does have
objective findings on physical examination to support the subjective complaints.
Consider:
(a) Five percent permanent partial impairment to the left lower extremity
secondary to the mild, left thigh atrophy (Table 17-6, [p]age 530). The range
would be three to eight percent impairment to the lower extremity. Given
this clinical picture, I would pick just shy of the mid line at the lower edge
which would equate to the five percent impairment.
(b) Four percent permanent partial impairment to the left lower extremity
secondary to sensory loss (Table 15-15, [p]age 424). Consider:
•

She would fall within the Grade 2 because of her decreased sensation
and abnormal sensations with hypersensitivity that may interfere with
some activities. This would be in the range of 61 [to] 80 percent
deficit. Given her clinical picture, I would place her at the higher
level.

•

The S1 root would be the culprit causing this problem secondary to
the herniated lumbosacral disc to the left. The maximum loss for the
S1 root because of a sensory deficit pain would be five percent (Table
15-18, [p]age 424).

•

Eighty percent of the maximum five percent equates to four percent
impairment because of the sensory aberration.

•

The five percent secondary to the mild atrophy would be combined
with the four percent due to sensory loss and that equates to nine
percent impairment.

By memoranda dated July 15, 2005, the Office asked its medical adviser if he concurred
with Dr. Mauriello’s impairment rating of June 23, 2005. The Office medical adviser responded:
“Dr. Mauriello noted atrophy of the left lower extremity and on the basis of that,
he recommended a scheduled award for left lower extremity atrophy. He then

3

went on to make recommendations for left lower extremity sensory loss based on
peripheral nerve injury.
“Accordingly to the [A.M.A., Guides] page 526, [T]able 17-2, it is not permitted
to make a scheduled award for atrophy in the presence of an award for peripheral
nerve injury. Therefore, the scheduled award for atrophy is negated.
“In regards to the scheduled award for sensory loss of the left lower extremity,
page 424, [T]able 15-15 for S1 reduction in sensation, Dr. Mauriello concluded
that this should fall within a [G]rade 2 award. This could be debated in regards to
the [G]rade 2 determination, and it could be argued there is at least some evidence
that it would be deserving of a [G]rade 3 or 4, i.e., reduced award.
“However, we will suggest agreeing with his judgment with regards to [G]rade 2
award and an 80 percent deficit. Based upon the S1 deficit, [T]able 15-18, page
424, the maximum sensory loss for S1 is five percent. Therefore, 80 percent of 5
percent equals 4 percent.
“It would, therefore, be my recommendation that [appellant] receive a scheduled
award of four percent impairment of the left lower extremity.”
By letter dated May 11, 2006, the Office asked Dr. Mauriello for a clarification of his
report. Specifically, the Office noted that the A.M.A., Guides, indicate that it is not appropriate
to make a schedule award for atrophy in the presence of an award for peripheral nerve injury,
and that therefore, it appeared that appellant would only be entitled to a four percent award due
to sensory aberration.
By letter dated May 15, 2006, Dr. Mauriello noted that he gave no impairment rating for
a sensory deficit because of a peripheral nerve injury. He noted that appellant had symptoms in
the left lower extremity secondary to a nerve root symptom and that this was not a peripheral
nerve injury. Dr. Mauriello noted that the impairment rating he rendered was for the S1 nerve
root and was according to the spine protocol in Chapter 15. He then stated:
“The atrophy which I noted in the extremity was not secondary to a peripheral
nerve injury but rather to a root injury. The nerve root injury has affected her left
lower extremity and my impairment rating as outlined in my [June 23, 2005]
report would stand at a nine percent impairment rating to the left lower extremity.
There would be no overlap of ratings because of the findings in the left lower
extremity. Clinically, there are findings in the left lower extremity to account for
this symptomatology to include the objective finding of atrophy and the objective
finding of an absent Achilles reflex.”
By letter dated May 23, 2006, the Office referred appellant’s file to the Office medical
adviser. In a report dated May 23, 2006, the Office medical adviser indicated that it was very

4

clear that muscle atrophy cannot be combined with peripheral nerve injury and therefore
Dr. Mauriello was incorrect. He noted:
“Upon reviewing Dr. Mauriello’s [May 15, 2006] letter, my comments are as
follows:
On page 1, item 1, he states that this individual did not have a peripheral
nerve injury, however, the nerve roots are treated as peripheral nerves as
determined by the rules of the [A.M.A., Guides]. Therefore, nerve roots
and peripheral nerves are one and the same as it relates to calculation of
this schedule award.
Item number 2 of the [May 15, 2006] letter, it is true that this nerve root
injury is not a peripheral nerve injury, however, this individual does have
an impairment of the S1 nerve root. By definition [the Office] requires
that the nerve roots be calculated in the same context as peripheral nerves
utilizing the [A.M.A., Guides]. This indicates that there is compression of
the nerve root. This is further documented by the absence of the left
Achilles reflex.
Therefore, we are in agreement that there is damage to the S1 nerve root
on the left, and I am therefore, in basic agreement with item 2, page 1 of
Dr. Mauriello’s report.
Item number 3 of Dr. Mauriello’s report, we are in agreement with the
four percent impairment of the S1 nerve root in Dr. Mauriello’s original
report of [June 23, 2005]. However, I stated in my previous letter of
[July 15, 2005] that the decision to use [G]rade 2 is debatable and
represents what could be interpreted to be a generous schedule award for
this claimant.
Item number 4 on page 2 of Dr. Mauriello’s report, [May 15, 2006], again
tries to differentiate peripheral nerve root injury from a nerve root injury.
These are treated the same and are required to follow the same rules
whether there be peripheral nerve or nerve root. Therefore, Dr. Mauriello
was incorrect in utilizing the atrophy to total 9 percent. Instead, the award
should be a total of 4 percent left lower extremity impairment.”
In a decision dated June 2, 2006, the Office found that appellant was only entitled
to a schedule award of 4 percent of the lower extremity.
By letter dated June 6, 2006, the Office requested a hearing. At the hearing held on
October 25, 2006, appellant’s attorney argued that the weight should go to the opinion of the
impartial medical examiner, not the Office medical adviser.
In a decision dated December 5, 2006, the hearing representative affirmed the Office’s
decision, finding that the weight of the evidence rested with the Office medical adviser as he
properly applied the A.M.A., Guides.
5

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 sets 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.3
The A.M.A., Guides provides for three separate methods for calculating the lower
extremity permanent impairment of an individual: anatomic, functional and diagnosis based.4
The anatomic method involves noting changes, including muscle atrophy, nerve impairment and
vascular derangement, as found during physical examination.5 The diagnosis-based method may
be used to evaluate impairments caused by specific fractures and deformities, as well as
ligamentous instability, bursitis and various surgical procedures, including joint replacements
and meniscectomies.6 The functional method is used for conditions when anatomic changes are
difficult to categorize or when functional implications have been documented and includes range
of motion, gait derangement and muscle strength.7 The evaluating physician must determine
which method best describes the impairment of a specific individual based on patient history and
physical examination.8 When uncertain about which method to use, the evaluator should
calculate the impairment using different alternatives and choose the method or combination of
methods that gives the most clinically accurate impairment rating.9 If more than one method can
be used, the method that provides the higher impairment rating should be adopted.10
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary of

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

Id.

4

A.M.A., Guides 525.

5

Id.

6

Id.

7

Id. at 525, Table 17-1.

8

Id. at 548, 555.

9

Id. at 526.

10

Id. at 527, 555.

6

Labor shall appoint a third physician who shall make an examination.11 Where a case is referred
to an impartial medical specialist for the purpose of resolving a conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual and medical background,
must be given special weight.12
When the Office obtains an opinion from an impartial medical specialist for the purpose
of resolving a conflict in the medical evidence and the specialist’s opinion requires clarification
or elaboration, the Office must secure a supplemental report from the specialist to correct the
defect in his original report.13 However, when the impartial specialist is unable to clarify or
elaborate on his original report or if his supplemental report is also vague, speculative or lacking
in rationale, the Office must submit the case record and a detailed statement of accepted facts to
a second impartial specialist for the purpose of obtaining his rationalized medical opinion on the
issue.14 Unless this procedure is carried out by the Office, the intent of section 8123(a) of the
Act will be circumvented when the impartial specialist’s medical report is insufficient to resolve
the conflict of medical evidence.15
ANALYSIS
The Board finds that this case is not in posture for decision.
In the instant case, a conflict arose between the opinion of appellant’s physician
Dr. Diamond and the Office medical adviser with regard to the amount of the schedule award. In
order to resolve the conflict, the Office referred appellant to Dr. Mauriello for an impartial
medical examination. Dr. Mauriello recommended nine percent impairment to appellant’s left
lower extremity. He calculated four percent for sensory loss and five percent for mild trophy.
When the Office referred the case to the Office medical adviser, he noted that, according to the
A.M.A., Guides, it is not permitted to make a schedule award for atrophy in the presence of a
peripheral nerve injury, and that therefore the schedule award for atrophy was negated. Due to
the Office medical adviser’s comments, the Office asked Dr. Mauriello for clarification.
Dr. Mauriello indicated that he gave no impairment rating for a sensory deficit because of a
peripheral nerve injury but that his award was based on the S1 nerve root, and that therefore
there would be no overlap of ratings. The Office medical adviser disagreed. He noted that nerve
roots and peripheral nerves are one and the same in calculating schedule awards. Therefore, the
Office medical adviser noted that Dr. Mauriello was incorrect in utilizing atrophy to yield a total
schedule award of nine percent. The Office medical adviser correctly noted that, pursuant to the
A.M.A., Guides, one may not allow a percentage for atrophy in the presence of an award for

11

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusingnan (Henry Lusingnan),
45 ECAB 207 (1993).
12

See Roger Dingess, 47 ECAB 123 (1995); Glenn C. Chasteen, 42 ECAB 493 (1991).

13

Nancy Lackner (Jack D. Lackner, 40 ECAB 232 (1988); Ramon K. Ferrin, Jr., 39 ECAB 736 (1988).

14

Roger W. Griffith, 51 ECAB 491 (2000); Talmadge Miller, 47 ECAB 673 (1996).

15

Roger W. Griffith, supra note 14; Harold Travis, 30 ECAB 1071 (1979).

7

peripheral nerve injury.16 He also persuasively explained that the A.M.A., Guides prevent
distinguishing nerve roots from peripheral roots and that they are to be considered one and the
same when evaluating entitlement to a schedule award. Therefore, Dr. Mauriello’s opinion is
deficient and the conflict in the medical evidence has not been resolved.
CONCLUSION
The Board finds that this case is not in posture for decision. On remand, the Office
should refer appellant, together with the case record and statement of accepted facts, to another
Board-certified specialist for an impartial medical evaluation of appellant’s permanent
impairment. After such further development as the Office deems necessary, it should issue an
appropriate decision on the merits of the schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 5 and June 2, 2006 are set aside and the case remanded
for further action consistent with this decision.
Issued: February 13, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

16

A.M.A., Guides 526, Table 17-2.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.L., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DELIVERY CENTER, Jacksonville, FL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1623
Issued: December 27, 2012

Case Submitted on the Record

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

JURISDICTION
On July 25, 2012 appellant filed a timely appeal of the February 3, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying his claim for compensation.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained an injury in the performance
of duty on May 21, 2011, as alleged.
On appeal, appellant described the employment incident and alleged that errors were
made in the reporting and follow-up of workplace incidents.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 25, 2011 appellant, then a 54-year-old electronic technician, filed a traumatic
injury claim alleging that, on May 21, 2011, during the course of his federal employment, his left
knee became swollen and painful. On that date, he noted that a roller on the reader motor had
shifted. Another employee put his finger on the machine and appellant told the employee that
they were starting the machine and pulled the other employee’s finger away on multiple
occasions. When he walked in front of the machine his left knee developed a stabbing-like pain
that increased with each step. The employing establishment controverted the claim.
In a May 25, 2011 note, Dr. Paul Moir, a Board-certified family practitioner, saw
appellant in the emergency department. He stated that appellant was unable to work for a period
of five days and could resume normal work as of May 30, 2011. Dr. Moir prescribed medication
to be taken every four hours as needed.
By letter dated June 8, 2011, OWCP informed appellant that further documentation was
needed in support of his claim.
In a May 24, 2011 report, Dr. Samy F. Bishai, an orthopedic surgeon,2 reviewed
appellant’s medical records. He noted that appellant had pain in his neck, right and left knees
and low back with radiculopathy as well as numbness in the ring and little fingers of the left
hand. Dr. Bishai diagnosed a chronic cervical strain, chronic thoracic strain, chronic lumbar
strain, cervical disc syndrome, thoracic disc syndrome, lumbosacral disc syndrome, degenerative
arthritis of the right and left knee joints, torn meniscus of the right knee joint, chondromalacia
right knee, myxoid degeneration of the posterior horn of the medial meniscus of the left knee,
posterolisthesis of L5 on S1 and disc bulge and spondylosis at C6-7. He noted that appellant had
suffered multiple injuries to his neck, back, both knees and other joints in his body over the
course of his employment. Dr. Bishai stated that the type of work appellant performed was the
type that caused and aggravated injuries due to the physical demands of the job. He opined that
all of the activities appellant had performed in the course of his employment predisposed him to
injury. There was no doubt that appellant’s injuries, including both right and left knees as well
as injuries to his neck and back, were permanently aggravated as a direct result of his work for
the employing establishment.
Appellant submitted his medical records from a visit to St. Vincent’s Medical Center on
May 25, 2011. He complained of sharp pain in his left knee which commenced the prior
Saturday. In an x-ray report dated May 25, 2011, Dr. Michael T. Donohue, a Board-certified
radiologist, stated that the left knee demonstrated no fracture, subluxation or joint effusion. A
venous sonography of the left lower extremity, also completed on May 25, 2011, was interpreted
by Dr. Donohue as evincing no evidence of deep venous thrombosis.
In a note dated June 11, 2011, a physician’s assistant noted that appellant told him that
when he was at work around May 24, 2011, he made a sudden move to prevent someone from
falling and felt pain in his left knee. Appellant described a history of chronic bilateral knee pain,
2

The Board cannot determine that Dr. Bishai is Board-certified.

2

but stated that the pain was very sharp on that date. The physician’s assistant diagnosed bilateral
knee osteoarthritis, right worse than left and left knee pain exacerbation.
By decision dated July 12, 2011, OWCP denied appellant’s claim for compensation. It
found that the evidence did not establish that the employment incident occurred as alleged.
On August 6, 2011 appellant requested an oral hearing before an OWCP hearing
representative. At the November 14, 2011 hearing, he noted a history of knee problems. On the
date of the incident, appellant prevented his supervisor’s finger from going into a machine that
was starting. He noted that, after he walked around the machine, his pain increased with each
step. Appellant described treatment of his knees.
In a September 13, 2011 report, Dr. Bishai reviewed appellant’s medical records and
conducted a physical examination. He noted that appellant continued to complain of pain in his
neck, right and left knee joints, back and left arm. Dr. Bishai opined generally that appellant was
being treated unfairly because the current symptoms in his back, neck and knee joints were
directly related to his work. He noted that appellant’s symptoms resulted from his work
activities. Dr. Bishai stated that work-related activities were essentially the cause of appellant’s
symptoms, whether they originated completely from the repetitive movements and repetitive
activities at work or were aggravated by those repetitive movements and work-related activities.
He based his opinion on the orthopedic evaluation of appellant which included sophisticated
tests, a physical examination and a comprehensive history. In an October 13, 2011 report,
Dr. Bishai reiterated his opinion that appellant’s symptoms were directly related to his work and
work-related activities.
By decision dated February 3, 2012, OWCP’s hearing representative determined that the
evidence was sufficient to establish the May 21, 2011 incident. She denied appellant’s claim
finding that the medical record did not establish that appellant sustained a diagnosed medical
condition arising from this incident.
LEGAL PRECEDENT
OWCP’s regulations define a traumatic injury as a condition of the body caused by a
specific event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain, which is identifiable as to
time and place of occurrence and member or function of the body affected.3 An employee
seeking benefits under FECA has the burden of establishing the essential elements of his or her
claim, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged and that any disability
and/or specific condition for which compensation is claimed are causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
3

20 C.F.R. § 10.5(e).

4

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

3

In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.5
In order to meet his or her burden of proof to establish the fact that he or she sustained an injury
in the performance of duty, an employee must submit sufficient evidence to establish that he or
she actually experienced the employment injury or exposure at the time, place and in the manner
alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.8
ANALYSIS
In the February 3, 2012 decision, the hearing representative determined that the evidence
was sufficient to establish that an employment incident occurred on May 21, 2011. The issue is
whether the medical evidence is sufficient to establish a left knee condition causally related to
the accepted incident. To establish causal relationship, the medical evidence must be based on a
complete factual and medical background and must explain the nature of the relationship
between the diagnosed condition and the employment factors.
The Board finds that the medical evidence of record is insufficient to establish that
appellant sustained a left knee condition caused or aggravated by an employment incident of
May 21, 2011. The Board notes that the hospital records from appellant’s May 25, 2011 visit to
the emergency department do not establish his claim. Dr. Donahue did not obtain a history of an
employment injury in interpreting appellant’s x-ray and venous sonography. Furthermore,
Dr. Donahue did not make any positive findings of a diagnosed medical condition. He noted that
appellant’s left knee demonstrated no fracture, subluxation or joint effusion by x-ray and that the
venous sonography showed no evidence of deep venous thrombosis. Dr. Moir did not discuss
the employment incident or provide a diagnosis; rather he briefly noted that appellant was unable
to work. The Board notes that the opinion of the physician’s assistant is of no probative value
5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

6

Linda S. Jackson, 49 ECAB 486 (1998).

7

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

8

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

4

since a physician’s assistant is not considered a physician under FECA.9 With regard to the
reports of Dr. Bishai, he did not address the May 21, 2011 incident, even though he examined
appellant on May 24, 2011. Dr. Bishai opined in general that appellant’s multiple physical
conditions were employment related, due to the repetitive value of his work. He did not address
the May 21, 2011 incident that was the basis for appellant’s claim. Accordingly, Dr. Bishai’s
medical opinion is not sufficient to establish that appellant sustained a left knee injury causally
related to the May 21, 2011 employment incident.
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence a causal relationship between his claimed knee injury and the May 21, 2011
accepted employment incident.10 An award of compensation may not be based on surmise,
conjecture or speculation. Neither the fact that appellant’s condition became apparent during a
period of employment nor the belief that his conditions were caused, precipitated or aggravated
by his employment is sufficient to establish causal relationship.11 Causal relationship must be
established by rationalized medical opinion evidence and appellant failed to submit such
evidence.
OWCP advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. Consequently, appellant has not met his burden of proof in
establishing that he sustained an injury to his knee causally related to his employment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty on May 21, 2011, as alleged.

9

George H. Clark, 56 ECAB 162 (2004); see also P.B., Docket No. 12-960 (issued September 25, 2012).

10

M.C., Docket No. 12-1304 (issued November 13, 2012).

11

William C. Thomas, 45 ECAB 591 (1994).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 3, 2012 is affirmed.
Issued: December 27, 2012
Washington, DC

Patricia Howard Fitzgerald, 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
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phoenix, AZ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-2381
Issued: April 9, 2009

Case Submitted on the Record

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

JURISDICTION
On September 2, 2008 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated July 14, 2008. 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 right to compensation
benefits on the grounds that she refused to submit to a medical examination.
FACTUAL HISTORY
On September 9, 2000 appellant, then a 48-year-old mark-up clerk, filed a Form CA-2,
occupational disease claim alleging that work factors caused bilateral wrist and arm pain. After
initially denying the claim, on March 15, 2001, the Office accepted that appellant sustained
employment-related bilateral tenosynovitis of the hands and wrists and bilateral\lateral
epicondylitis. Appellant performed modified duty from April 30 to August 10, 2001 when she
stopped work and was placed on the periodic rolls.

By letter dated May 20, 2008, the Office informed appellant that a second-opinion
evaluation was needed. On May 3, 2008 it notified appellant of a June 20, 2008 appointment
with Dr. Jon T. Abbott, Board-certified in orthopedic surgery. In a June 23, 2008 letter, the
Office was informed that appellant did not keep the scheduled June 20, 2008 appointment.
On June 24, 2008 the Office proposed to suspend appellant’s compensation benefits on
the grounds that she failed to appear for the examination scheduled for June 20, 2008 with
Dr. Abbott. It allowed appellant 14 days to provide in writing good cause for her failure to
appear and informed her of the penalty provision of section 8123(d) of the Federal Employees’
Compensation Act.1 Appellant did not respond.
By decision dated July 14, 2008, the Office finalized the proposed suspension, effective
August 3, 2008.
LEGAL PRECEDENT
Section 8123 of the Act authorizes the Office to require an employee, who claims
disability as a result of federal employment, to undergo a physical examination as it deems
necessary.2 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.3 The Office regulations at section 10.320 provides that a claimant must
submit to examination by a qualified physician as often and at such time and places as it
considers reasonably necessary.4 Section 8123(d) of the Act and section 10.323 of its regulations
provide that, if an employee refuses to submit to or obstructs a directed medical examination, his
or her right to compensation is suspended until the refusal or obstruction ceases.5 Office
procedures provide that, before the Office may invoke these provisions, the employee is to be
provided a period of 14 days within which to present in writing his or her reasons for the refusal
or obstruction.6 If good cause for the refusal or obstruction is not established, entitlement to
compensation is suspended in accordance with section 8123(d) of the Act.
ANALYSIS
The Office scheduled a second-opinion examination on June 20, 2008 with Dr. Abbott.
Appellant did not appear for the scheduled examination. The Office suspended her
compensation benefits based on her failure to appear. The determination of the need for an
examination, the type of examination, the choice of locale and the choice of medical examiners
1

5 U.S.C. §§ 8101-8193.

2

Id. at § 8123.

3

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

4

20 C.F.R. § 10.320.

5

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298 (2006).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14(d) (July 2000); J.T., supra note 3.

2

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.7 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.8
The most recent medical report of record was a March 23, 2005 report from Dr. Dean
Earp, Board-certified in family medicine, discussing appellant’s thyroid condition. The most
recent report discussing her employment-related conditions is that of Dr. Jeffrey Steier, a Boardcertified neurologist, dated March 28, 2003.9 By letter dated December 21, 2007, the Office
requested that appellant submit an undated medical report addressing her employment-related
conditions. Appellant did not respond.10 The Office did not abuse its discretion in scheduling a
second-opinion evaluation on June 20, 2008.11
The Office referred appellant for a second-opinion evaluation with Dr. Abbott and
advised her of the need for the examination, her obligation to attend, and the time and place for
the scheduled appointment. Appellant did not attend. The Office subsequently allowed her 14
days to provide reasons for failing to appear. Again appellant did not respond. As she did not
respond to the proposed suspension, appellant has not established good cause for refusing to
undergo the June 20, 2008 examination. The Office properly suspended appellant’s right to
compensation benefits pursuant to section 8123 of the Act.12

7

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

8

Supra note 6.

9

The record also includes an April 16, 2003 upper extremity electromyographic study, an April 17, 2003 upper
extremity ultrasound study, an April 17, 2003 magnetic resonance imaging (MRI) scan of the cervical spine, an
April 29, 2003 somatosensory examination, a June 11, 2003 MRI scan of the left shoulder, and an August 5, 2003
MRI scan of the left elbow.
10

A telephone conference was held on May 15, 2008 in which appellant expressed her desire to change
physicians.
11

Lynn C. Huber, supra note 7.

12

5 U.S.C. § 8123; S.B., 58 ECAB ___ (Docket No. 06-1838, issued January 11, 2007).

3

CONCLUSION
The Board finds that the Office properly suspended appellant’s right to compensation
benefits effective August 3, 2008 because she refused to attend a scheduled medical evaluation.13
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 14, 2008 be affirmed
Issued: April 9, 2009
Washington, DC

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

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

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

13

The Board notes that appellant filed her appeal with the Board on September 2, 2008 and simultaneously
requested reconsideration and a hearing with the Branch of Hearings & Review. When appellate procedure is
invoked by an appeal, the decision appealed from should not be changed before appellate body has had a chance to
render its decision. This is an elementary proposition long recognized. Any other course would nullify the purpose
of an appellate function and create constant confusion in the cases. Any action which disturbs the status of the case
as appealed from must necessarily be regarded as a nullity; otherwise, orderly appeal process would break down.
D.S., 58 ECAB ___ (Docket Nos. 06-1408 & 06-2061, issued March 1, 2007). From September 2, 2008 the Board
had jurisdiction over the issue of appellant’s suspension of compensation. As the Office may not exercise
concurrent jurisdiction over the same issue on appeal, the Office had no jurisdiction to issue decisions that could
affect the issue before the Board. Its decisions dated September 19 and October 15, 2008 are therefore null and
void. Id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Denver, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1016
Issued: August 15, 2007

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 March 5, 2007 appellant filed an appeal of April 13 and June 29, 2006 and
January 24, 2007 decisions of the Office of Workers’ Compensation Programs denying her
occupational disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established that she sustained a neck, shoulder or
upper back condition in the performance of duty.
FACTUAL HISTORY
On December 7, 2005 appellant, then a 45-year-old mail processing clerk, filed a notice
of occupational disease claim (Form CA-2), alleging that she sustained “sore/bruise right side
neck/shoulder” and across her upper back in the performance of duty on or before
November 29, 2005. She attributed her condition to loading and unloading mail from a machine,

loading a mail cage and performing repetitive movements with her upper body and arms.
Appellant did not stop work.
In a December 12, 2005 letter, the Office advised appellant of the additional medical and
factual evidence needed to establish her claim. It requested that she submit a detailed description
of the work activities alleged to have caused or contributed to her condition. The Office
emphasized the importance of submitting a rationalized statement from her attending physician
explaining how and why the identified work factors would cause the claimed condition.
In a December 6, 2005 letter, Dr. Jackie L. McCollum, an attending Board-certified
family practitioner, released appellant to restricted duty.
In January 25, 2006 reports, Dr. Marco Antonio Gomez, an attending Board-certified
family practitioner, observed a limited range of neck motion due to pain. He diagnosed a neck
strain and noted light-duty restrictions.
By decision dated April 13, 2006, the Office denied appellant’s claim on the grounds that
causal relationship was not established. It accepted that the identified work factors occurred at
the time, place and in the manner alleged. The Office found that appellant did not submit
sufficient medical evidence explaining how the accepted work exposures caused the claimed
condition.
In a May 23, 2006 letter, appellant requested reconsideration. She submitted additional
evidence. In November 30, 2005 reports, Dr. Gomez noted appellant’s employment as a mail
clerk. He commented that she worked considerable overtime. Dr. Gomez diagnosed a “[n]eck
strain due to overuse.” In March 6, 2006 reports, he diagnosed cervicalgia due to repetitive
reaching and overhead lifting at work. In a May 12, 2006 report, Dr. Gomez checked a box
“yes” indicating his support for causal relationship between the diagnosed cervicalgia and
appellant’s employment. He stated that appellant had “trouble lifting overhead.” Dr. Gomez
released appellant to full duty as of May 17, 2006.
By decision dated June 29, 2006, the Office denied modification of the April 13, 2006
decision on the grounds that appellant submitted insufficient rationalized medical evidence to
establish causal relationship. The Office noted that pain was considered a symptom and not a
compensable diagnosis under the Federal Employees’ Compensation Act.
In a September 16, 2006 letter, appellant requested reconsideration. She asserted that her
neck strain was caused by repetitive motion while operating a data bar code scanner (DBCS)
machine at work, lifting trays of mail weighing up to 40 pounds, throwing and pushing mail,
bending, stooping and overhead reaching. Appellant submitted diagrams of the DBCS machine.
By decision dated January 24, 2007, the Office denied modification on the grounds that
the evidence submitted was insufficient to establish causal relationship. The Office reiterated
that cervicalgia was a symptom and not a compensable diagnosis.

2

LEGAL PRECEDENT
An employee seeking benefits under the Act1 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 the Act; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3
To 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) 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 medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4
ANALYSIS
The Office accepted that appellant’s duties as a mail clerk entailed repetitive motion of
her arms and upper body. To meet her burden of proof, appellant must establish a causal
relationship between the accepted work factors and the claimed neck, back and upper extremity
condition.
Appellant submitted reports from Dr. Gomez and Dr. McCollum, attending Boardcertified family practitioners. Dr. McCollum did not provide a diagnosis or address causal
relationship. Dr. Gomez submitted reports from November 30, 2005 to May 12, 2006
diagnosing cervicalgia, joint pain and a neck strain. He attributed the cervicalgia to repetitive
lifting and overhead reaching at work but did not explain the interrelationship between the neck
strain and work factors. The Board notes that pain is considered a symptom, not a diagnosis and
1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989).

3

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

4

Solomon Polen, 51 ECAB 341 (2000).

3

does not constitute a basis for payment of compensation.5 Dr. Gomez also diagnosed a neck
strain, but he did not provide medical rationale explaining how or why the accepted work factors
caused or contributed to the diagnosed neck strain. His opinion is thus insufficient to establish
causal relationship.6 Therefore, appellant has failed to meet her burden of proof.
CONCLUSION
The Board finds that appellant has not established that she sustained a neck, shoulder or
upper back condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 24, 2007, June 29 and April 13, 2006 are affirmed.
Issued: August 15, 2007
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

5

See Robert Broome, 55 ECAB 339 (2004).

6

Steven S. Saleh, 55 ECAB 169 (2003).

4