United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF THE ARMY, WOMACK
ARMY MEDICAL CENTER, Fort Bragg, NC,
Employer
__________________________________________

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

Docket No. 10-1730
Issued: April 12, 2011

Case Submitted on the Record

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

JURISDICTION
On June 17, 2010 appellant filed a timely appeal from a February 8, 2010 merit decision
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 this
case.
ISSUE
The issue is whether appellant sustained a right shoulder injury as a result of employment
activities.
FACTUAL HISTORY
On July 1, 2009 appellant, then a 48-year-old laundry worker, filed an occupational
disease claim alleging that she developed bilateral shoulder pain with right shoulder
impingement syndrome and tendinitis as a result of employment activities. The duties she
alleged were responsible for her injury included pushing and pulling linen carts weighing

approximately 600 pounds and consolidating partially full carts by transferring heavy linen bags
from cart to cart.
By letter dated July 20, 2009, the Office informed appellant that the evidence submitted
was insufficient to establish that she had sustained an injury as a result of employment activities.
Appellant was advised to submit additional information and evidence, including a physician’s
report, which contained a diagnosis and explanation as to how her diagnosed condition resulted
from the claimed employment activities.
In a May 8, 2009 report, Dr. Stephen Kouba, a Board-certified orthopedic surgeon, noted
appellant’s complaints of right shoulder and neck pain, which she believed to be a result of her
repetitive work activities. Appellant noted that, after she had been out of work for three days,
her pain decreased. When she returned to work pushing and pulling heavy carts, the pain
increased. Dr. Kouba assessed right shoulder supra involvement with pain, weakness and
postural compensation.
Appellant submitted reports from Michelle Roman, a physician’s assistant. In an
April 29, 2009 report, Ms. Roman stated that appellant began experiencing right shoulder pain
two months earlier. She noted that appellant worked in a laundry and performed overhead
lifting, which seemed to aggravate her symptoms. Examination of the right shoulder revealed
tenderness in the right acromioclavicular (AC) joint extending to the deltoid region, as well as
tenderness along the trapezius muscle and throughout the cervical spine. The left shoulder
examination revealed tenderness to palpation and full active and passive range of motion.
Ms. Roman diagnosed right shoulder pain, AC joint arthritis and rotator cuff tear. In a disability
slip bearing an illegible date, she stated that appellant could not return to work until
May 4, 2009.
Appellant submitted reports from Tyson Shelton, a physician’s assistant, for the period
March 20 through August 10, 2009. Mr. Shelton diagnosed right shoulder pain and noted that
she had experienced no specific trauma. On July 27, 2009 he diagnosed bilateral knee and lower
back pain. On August 3, 2009 Mr. Shelton reported that magnetic resonance imaging (MRI)
scans of the knees revealed arthritis and an MRI scan of the back revealed a small disc bulge at
L5-S1. On August 10, 2009 he stated that appellant had been a patient at Cape Fear Medical
Care for over two years and was originally seen for arm and shoulder pain on March 9, 2009.
Appellant’s MRI scan revealed significant cuff tendinitis and partial tearing and moderate
arthrosis in the AC joints. Mr. Shelton stated that her “shoulder pain could be caused from her
repetitive motion.”
In a June 10, 2009 report, Monica Mohler, a physician’s assistant, diagnosed bilateral
shoulder pain with right shoulder impingement syndrome and tendinitis. Examination revealed
full range of motion with pain with forward flexion and abduction of the arms bilaterally. There
was positive impingement testing of the right arm. On July 8, 2009 Ms. Mohler reported
positive impingement tests. Active range of motion testing for the right shoulder revealed
forward flexion and abduction of 90 degrees. Testing for the left shoulder revealed flexion and
abduction of 110 and 100 degrees, respectively. An MRI scan of the right shoulder reflected
significant cuff tendinitis and partial tearing, moderate AC joint arthritis and degenerative tearing
of the superior labrum. Ms. Mohler diagnosed bilateral shoulder impingement syndrome with

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right shoulder partial tearing and degenerative tear of the superior labrum and stated that
appellant was out of work until further notice. She stated that appellant performed repetitive
overhead work, which exacerbates the pain.
The record contains physical therapy notes from May 8 through 18, 2009. The record
also contains March 12, 2009 reports of an electrocardiogram and an x-ray of the cervical spine,
an April 1, 2009 report of an MRI scan of the right shoulder, a June 15, 2009 report of an MRI
scan of the left shoulder, July 13, 2009 reports of x-rays of the bilateral knees and a July 30,
2009 report of an MRI scan of the lumbar spine.
Appellant submitted a position description for a laundry worker, which reflected that her
job required active physical effort in loading, unloading and arranging linens weighing up to
70 pounds, as well as pushing wheeled carts weighing up to 400 pounds. In an August 17, 2008
statement, she noted that she performed a significant amount of overhead lifting, in addition to
pushing and pulling heavy carts and consolidating laundry. Appellant had performed these
duties seven hours a day, five days a week since July 2007. On August 28, 2009 the employing
establishment stated that she was required to transfer four soiled linen carts per shift from the
clinic to the soiled linen room. The carts were wheeled and weighed approximately 450 pounds.
Appellant was also required to lift a maximum of seven to eight soiled linen bags per shift
overhead, each of which weigh approximately 25 to 30 pounds.
By decision dated September 18, 2009, the Office denied appellant’s claim. It found that
the evidence supported that the claimed work activities occurred, but that there was no medical
evidence providing a diagnosis that could be connected to the accepted duties.
On September 24, 2009 appellant, through her representative, requested reconsideration.
On November 19, 2009 appellant’s representative advised that she had been unaware that a
physician’s assistant was not considered a physician under the Federal Employees’
Compensation Act. He informed the Office that he was submitting copies of previously
submitted medical reports, which had been countersigned by appellant’s surgeon, Dr. Stanley
Gilbert, a Board-certified orthopedic surgeon.
On August 27, 2009 Dr. Gilbert performed a right shoulder arthroscopy. He noted that he
performed rotator cuff repair, subacromial decompression and distal clavicle excision.
Dr. Gilbert diagnosed right shoulder pain and impingement syndrome.
Appellant resubmitted copies reports from Ms. Mohler and Ms. Roman. These
previously-submitted reports were countersigned by Dr. Gilbert. In a December 2, 2009
disability slip, Dr. Gilbert stated that appellant was unable to work in any capacity.
Appellant submitted a December 9, 2009 duty status report from Dr. Gilbert reflecting a
February 1, 2009 date of injury. Dr. Gilbert stated that the injury occurred while she was
pushing and pulling laundry carts and lifting linen bags weighing approximately 46 pounds. He
diagnosed rotator cuff tear impingement syndrome and AC joint arthritis.
By decision dated February 8, 2010, the Office modified its September 18, 2009 decision
to reflect that appellant had submitted evidence of a diagnosed condition in connection with her

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claim. It denied the claim, however, on the grounds that the medical evidence failed to establish
a causal relationship between the diagnosed condition and the established events.
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 timely filed within the applicable time
limitation period of the Act, that an injury was sustained in the performance of duty as alleged
and that any 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 upon 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) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.4 However, it is well established that
proceedings under the Act are not adversarial in nature and while the claimant has the burden of
establishing entitlement to compensation, the Office shares responsibility in the development of
the evidence to see that justice is done.5

1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

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

4

Id.

5

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, 53 ECAB 430 (2002); Dorothy L. Sidwell,
36 ECAB 699 (1985); William J. Cantrell, 34 ECAB 1233 (1993).

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ANALYSIS
The Board finds that the case is not in posture for decision regarding whether appellant
sustained a right shoulder injury as a result of her employment activities. It is not disputed that
she was engaged in repetitive employment activities as a laundry worker, including pushing and
pulling heavy linen carts and consolidating partially full carts by transferring heavy linen bags
from cart to cart. The Office denied appellant’s claim findings that the medical evidence failed
to establish a causal relationship between these activities and her diagnosed shoulder conditions.
The Board finds that the medical evidence of record is generally supportive that her work
activities caused her shoulder conditions.
On August 27, 2009 Dr. Gilbert performed right shoulder rotator cuff repair, subacromial
decompression and distal clavicle excision. In a December 9, 2009 duty status report, he stated
that appellant sustained a rotator cuff tear impingement syndrome and AC joint arthritis as a
result of pushing and pulling laundry carts and lifting linen bags weighing approximately 46
pounds. Dr. Gilbert countersigned June 10 and July 8, 2009 reports from Ms. Mohler, which
contained examination findings, a diagnosis of bilateral shoulder pain with right shoulder
impingement syndrome and tendinitis and an opinion that appellant’s repetitive overhead work
exacerbated her pain. He also countersigned an April 29, 2009 report from Ms. Roman, which
provided a history of injury, examination findings and a diagnosis of right shoulder pain, AC
joint arthritis and rotator cuff tear and that appellant’s repetitive overhead lifting seemed to
aggravate her symptoms.6 Although Dr. Gilbert did not explain how appellant’s repetitive
activities were competent to have caused or aggravated her diagnosed conditions, his reports
generally supports a causal relationship between the identified activities and the diagnosed
shoulder conditions.
Dr. Kouba related appellant’s complaints of right shoulder and neck pain, which she
believed to be a result of her repetitive work activities. He assessed right shoulder supra
involvement with pain, weakness and postural compensation. Dr. Kouba report does not contain
a definitive diagnosis or an opinion as to the cause of appellant’s condition. It is, however,
consistent with appellant’s allegations.
While none of the reports of appellant’s attending physicians is completely rationalized,
they are consistent in noting that appellant sustained a right shoulder condition. The reports
noted an accurate history of her work duties as a laundry worker, addressed diagnostic testing
that supported right rotator cuff tendinitis with partial tearing and made findings examination.
The evidence is not contradicted by any substantial medical or factual evidence of record. While
6

In its September 18, 2009 decision, the Office correctly found that the reports signed by Ms. Mohler and
Ms. Roman alone did not constitute probative medical evidence, as physician’s assistants do not qualify as
“physicians” under the Act. A medical report may not be considered as probative medical evidence if there is no
indication that the person completing the report qualifies as “physician” as defined in 5 U.S.C. § 8101(2). Section
8101(2) of the Act provides as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law.” See Merton J. Sills, 39 ECAB 572, 575 (1988). In support of her request for reconsideration,
appellant submitted copies of the reports, which were countersigned by Dr. Gilbert. The Board has held that a report
of a physicians’ assistant which has been countersigned by a medical physician constitutes medical evidence. See
Lyle E. Dayberry, 48 ECAB 369 (1998).

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the reports are not sufficient to meet appellant’s burden of proof to establish her claim, they raise
an uncontroverted inference between her diagnosed conditions and the accepted work factors and
are sufficient to require the Office to further develop the medical evidence.7 The case will be
remanded to the Office to obtain a rationalized opinion from a qualified physician as to whether
her shoulder conditions are causally related to the identified work activities. After such
development as it deems necessary, the Office should issue an appropriate decision in order to
protect appellant’s rights on appeal.8
CONCLUSION
The Board finds that this case is not in posture for decision on whether appellant
sustained a bilateral shoulder injury as a result of established employment activities.

7

See Virginia Richard, supra note 5; see also Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone,
41 ECAB 354 (1989).
8

On appeal, counsel objected to the Office’s long delay in ruling on his client’s reconsideration request of
January 29, 2009, contending that the Office’s actions prevented her from submitting additional medical evidence,
due to a one-year limitation on filing a request for reconsideration. In implementing the one-year time limitation,
the Office’s procedures provide that the one-year time limitation period for requesting reconsideration begins on the
date of the original Office decision. However, a right to reconsideration within one year accompanies any
subsequent merit decision on the issues. Larry L. Litton, 44 ECAB 243 (1992). See Federal (FECA) Procedure
Manual, Part 2 -- Claims, Preliminary Processing, Chapter 2.1602.3(b)(1) (October 2005).

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ORDER
IT IS HEREBY ORDERED THAT the February 8, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for action consistent
with the terms of this decision.
Issued: April 12, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Edinburg, TX, Employer
__________________________________________

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

Docket No. 17-1710
Issued: January 4, 2018

Case Submitted on the Record

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

JURISDICTION
On August 4, 2017 appellant filed a timely appeal from a June 19, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision, dated June 29, 2016, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 9, 2014 appellant, then a 56-year-old supervisory border patrol agent, filed an
occupational disease claim (Form CA-2) alleging that he developed hearing loss as a result of
1

5 U.S.C. § 8101 et seq.

employment-related noise exposure from checkpoint duties, firearms training courses, quarterly
qualifications, and all-terrain vehicle training courses.2
In support of his claim, appellant submitted audiograms dated August 14 and
September 17, 2014.
OWCP referred appellant to Dr. Gregory S. Rowin, a Board-certified otolaryngologist,
for a second opinion evaluation on February 3, 2015. An audiogram was completed on
February 12, 2015 which revealed the following decibel (dB) losses at 500, 1,000, 2,000, and
3,000 hertz (Hz): 10, 10, 30, and 45 for the right ear and 10, 20, 25, and 40 for the left ear.
Dr. Rowin noted that the audiogram showed bilateral severe high frequency sensorineural
hearing loss. He opined that appellant’s bilateral high frequency sensorineural hearing loss was
due to his workplace noise exposure and in excess of what would be predicated for presbycusis
as the exposure was of sufficient intensity and duration to have caused the hearing loss in
question. Dr. Rowin recommended the use of binaural hearing aids. In accordance with the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides),3 he explained that his calculation of monaural and binaural
impairment revealed no ratable hearing loss despite appellant’s bilateral high frequency hearing
loss. Dr. Rowin determined that, because tinnitus impacted his activities of daily living, he
sustained five percent binaural hearing impairment.
On April 6, 2015 Dr. H Mobley, an OWCP District Medical Adviser (DMA), reviewed
Dr. Rowin’s otologic examination and agreed that appellant developed binaural work-related
hearing loss. In accordance with the A.M.A., Guides, the DMA applied the February 12, 2015
audiometric data to OWCP’s standard for evaluating hearing loss and determined that appellant
had zero percent monaural hearing loss in the left ear, zero percent monaural hearing loss in the
right ear, and zero percent binaural hearing loss.4 He noted that Dr. Rowin improperly granted
five percent impairment for tinnitus which could only be added if appellant had a measureable
hearing impairment. The DMA concluded that appellant had no ratable hearing loss and the date
of maximum medical improvement (MMI) was noted as February 12, 2015. He further noted
that hearing aids should be authorized.
By decision dated April 8, 2015, OWCP accepted appellant’s claim for bilateral hearing
loss. It also found that, based on the medical evidence of record, hearing aids should be
authorized.
On May 15, 2015 appellant filed a claim for a schedule award (Form CA-7).
By decision dated June 12, 2015, OWCP denied appellant’s schedule award claim,
finding that his hearing loss was not sufficiently severe to be considered ratable.

2

The record reflects that appellant began working for the Border Patrol in April 1988 and was exposed to noise
from handguns, semi-automatic rifles, and shotguns during trainings and qualifications, and noise from bus, tractor,
and train engines and horns up to eight hours per day, five days a week.
3

A.M.A., Guides (6th ed. 2009).

4

Id. at 252, Table 11-2.

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On May 18, 2016 appellant requested reconsideration of OWCP’s June 12, 2015 schedule
award determination. In an accompanying May 9, 2016 letter, he noted submission of medical
documentation from Dr. Andreas Kaden, a Board-certified otolaryngologist, in support of his
schedule award claim.
In a May 5, 2016 medical report, Dr. Kaden provided a hearing loss evaluation and
diagnosed work-related bilateral sensorineural hearing loss associated with occupational noise
exposure. An audiogram was completed that same date which revealed dB losses at 500, 1,000,
2,000, and 3,000, Hz: 20, 15, 30, and 50 for the right ear and 15, 30, 25, and 45.
By decision dated June 29, 2016, OWCP denied modification of the June 12, 2015
decision, finding that appellant’s hearing loss was not sufficiently severe to be considered
ratable. It noted that the weight of the medical evidence rested with the DMA as Dr. Kaden
failed to provide an opinion regarding the level of impairment in accordance with the sixth
edition of the A.M.A., Guides.
On June 9, 2017 appellant requested reconsideration of OWCP’s decision. In support of
his claim, he resubmitted Dr. Kaden’s May 5, 2016 audiogram and otologic report.
By decision dated June 19, 2017, OWCP denied appellant’s request for reconsideration,
finding that he neither raised substantive legal questions, nor included relevant new evidence
sufficient to warrant merit review.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.5
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.6 If OWCP chooses to grant reconsideration, it reopens and reviews the
case on its merits.7 If the request is timely, but fails to meet at least one of the requirements for
reconsideration, OWCP will deny the request for reconsideration without reopening the case for
review on the merits.8

5

5 U.S.C. § 8128(a).

6
20 C.F.R. § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
7

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

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Even if the term reconsideration is used, when a claimant is not attempting to show error
in the prior schedule award decision and submits medical evidence regarding an increased
permanent impairment at a date subsequent to the prior schedule award decision, it should be
considered a claim for an increased schedule award.9
ANALYSIS
The Board finds that this case is not in posture for decision and must be remanded to
OWCP for application of the appropriate standard of review.10
By letter dated May 9, 2016, received on May 18, 2016, appellant provided new evidence
relating to his medical diagnosis and schedule award claim. In particular, he submitted a May 5,
2016 audiogram and otologic evaluation from Dr. Kaden, his attending physician. OWCP’s
June 29, 2016 decision noted that Dr. Kaden’s May 5, 2016 report was insufficient to modify the
prior schedule award determination, yet OWCP failed to consider submission of the May 5, 2016
audiogram. The June 19, 2017 decision also failed to consider this new and relevant evidence
and declined to reopen appellant’s claim for consideration of the merits pursuant to 5 U.S.C.
§ 8128(a). The Board finds, however, that he was not seeking reconsideration of the previous
schedule award determination. Rather, appellant submitted new evidence and argument showing
increased hearing loss impairment for schedule award purposes.11
The Board has held that a claimant may request a schedule award or increased schedule
award based on evidence of new exposure or medical evidence showing the progression of an
employment-related condition resulting in permanent impairment or increased impairment.12
OWCP relied on the February 12, 2015 audiogram when determining that the weight of the
medical evidence rested with the DMA’s April 6, 2015 report. Appellant, however, submitted a
more recent May 5, 2016 audiogram, over one year later, showing an increase in both right and
left ear hearing loss levels.13 It is evident from the record that appellant was not seeking
reconsideration of OWCP’s decision, but was seeking a schedule award based on new medical
evidence.14
As in Paul R. Reedy, the June 19, 2017 decision treated appellant’s claim as a request for
reconsideration. The Board has held, however, that even if the term reconsideration is used,
when a claimant is not attempting to show error in the prior schedule award decision and submits
additional medical evidence regarding permanent impairment based on increased impairment or

9

See B.K., 59 ECAB 228 (2007).

10

See K.K., Docket No. 16-1187 (issued February 7, 2017); E.B., Docket No. 16-0746 (issued June 1, 2016).

11

G.E., Docket No. 17-0594 (issued September 14, 2017).

12

C.W., Docket No. 16-0749 (issued August 26, 2016).

13

W.H., Docket No. 15-1167 (issued November 10, 2015).

14

K.D., Docket No. 15-0524 (issued August 3, 2015).

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new exposure, it should be considered a claim for an increased schedule award, not a request for
reconsideration.15
Thus, the Board finds that OWCP failed to issue an appropriate decision regarding
appellant’s claim for an increased schedule award and improperly denied his request for
reconsideration.16 On remand, OWCP should review and develop the medical evidence as is
necessary and thereafter issue a de novo decision regarding his claim for a schedule award.17
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration by
adjudicating his schedule award claim under the standard for timely reconsideration requests.18

15
See J.K., Docket No. 14-1082 (issued November 24, 2014). OWCP’s procedures provide that if a claimant is
seeking an increased schedule award due to increased impairment and/or additional exposure, but not contesting the
decision or prior award, this should not be treated as a reconsideration request and OWCP should develop the issue
of entitlement to an additional award. The Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations,
Chapter 2.1602.3(b) (February 2016).
16

E.T., Docket No. 13-1691 (issued September 25, 2013).

17

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

18

Supra note 9.

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ORDER
IT IS HEREBY ORDERED THAT the June 19, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision of the Board.
Issued: January 4, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boston, MA, Employer
__________________________________________

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

Docket No. 21-1194
Issued: March 18, 2022

Case Submitted on the Record

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

JURISDICTION
On August 2, 2021 appellant filed a timely appeal from a March 17, 2021 merit decision
and a July 7, 2021 nonmerit of the Office of Workers’ Compensation Programs (OWCP). Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 17, 2021 merit decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish disability
from work for the period December 27, 2020 3 through January 29, 2021 causally related to the
accepted November 10, 2020 employment injury; and (2) whether OWCP properly determined
that appellant abandoned her request for an oral hearing.
FACTUAL HISTORY
On November 18, 2020 appellant, then a 29-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 10, 2020 she sustained an injury when she
accidently closed her right hand in the door jam of the driver door while in the performance of
duty. She stopped work on November 11, 2020. By decision dated December 14, 2020, OWCP
accepted appellant’s claim for crushing injury of the right hand.
OWCP received a December 9, 2020 report by Dr. George S.M. Dyer, a Board-certified
orthopedic hand surgeon, who opined that appellant should be off due to a work-related injury.
Dr. Dyer described that on November 10, 2020 she closed her right hand in a mail truck and she
experienced pain and swelling. He recounted that appellant tried to return to work on
November 28, 2020, but she experienced significant pain. On physical examination of her right
upper extremity, Dr. Dyer observed some tenderness to palpation along the long finger and ring
finger dorsal metacarpals, thumb base and radial wrist and some pain with Tinel’s and Durkin’s
tests. Dr. Dyer diagnosed right hand arthralgia and right-hand crush injury.
On January 1, 2021 appellant filed a claim for compensation (Form CA-7) for disability
from work for the period December 26, 2020 through January 1, 2021. On the reverse side of the
claim form the employing establishment indicated that she received continuation of pay (COP)
from November 11 through December 26, 2020 and noted that her disability should begin on
December 27, 2020. Appellant thereafter filed additional CA-7 forms requesting wage-loss
compensation for continued disability through January 29, 2021.
In an attending physician’s report (Form CA-20) and a letter, both dated January 6, 2021,
Dr. Dyer noted that on November 10, 2020 appellant crushed her hand in a mail truck door at
work. He reported that she was totally disabled from work from November 10, 2020 through
January 10, 2021. Dr. Dyer indicated that appellant could return to part-time, modified-duty work.
On January 19, 2021 appellant accepted a part-time, limited-duty position as a modified
city carrier.
In a January 25, 2021 letter, Dr. Dyer recommended that appellant remain off work until
February 3, 2021. He explained that she attempted to return to work on January 21, 2021, but had
a severe exacerbation of pain.

3

The Board notes that the March 17, 2021 OWCP decision notes the beginning date of the claimed period as
December 27, 2021. However, this appears to be a typographical error as appellant’s claim form notes the beginning
date as December 27, 2020.

2

In a February 4, 2021 letter by Mallory K. Pingeton, a physician assistant, who explained
that appellant was seen by Dr. Dyer on February 3, 2021 and was found to have right intersection
syndrome. She opined that this was likely a complication from appellant’s November 2020 hand
crush injury. Ms. Pingeton recommended that appellant remain off work until March 17, 2021.
In a February 11, 2021 development letter, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of additional evidence required and afforded her 30 days
to submit the requested evidence.
Appellant subsequently resubmitted the February 4, 2021 letter by Ms. Pingeton.
By decision dated March 17, 2021, OWCP denied appellant’s wage-loss compensation
claims, finding that she had not established disability from work causally related to the accepted
November 10, 2020 employment injury.
On April 6, 2021 appellant timely requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review and submitted additional medical evidence.
In a letter dated May 21, 2021, OWCP’s hearing representative advised appellant that a
telephonic hearing would be held on June 24, 2021 at 2:30 p.m. Eastern Standard Time (EST). 4
The hearing representative also provided appellant with the toll-free telephone number and
passcode to access the hearing. Appellant did not appear for the hearing by telephone at the
appointed time.
By decision dated July 7, 2021, OWCP found that appellant failed to appear at the oral
hearing and abandoned her request. It noted that an oral hearing was scheduled to be conducted
by telephone on June 24, 2021 and that appellant received written notification of the hearing 30
days in advance of the hearing. Next, OWCP indicated that appellant failed to appear for the
hearing and there was no indication in the file that she contacted it either prior to or subsequent to
the scheduled hearing to request a postponement or explain her failure to appear.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury. 6 The term disability is
defined as the incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of the injury. 7 For each period of disability claimed, the employee has the
4

The hearing notice was addressed to appellant at her last known address,

5

Supra note 1.

6

D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
7

20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB
397 (1999).

3

burden of proof to establish that he or she was disabled from work as a result of the accepted
employment injury.8
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence. 9 The opinion of the physician must be
based on a complete factual and medical background, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
claimed disability and the accepted employment injury.10
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self -certify his or her disability and
entitlement to compensation. 11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish disability for
the period December 27, 2020 through January 29, 2021 causally related to the accepted
November 10, 2020 employment injury.
In support of her claim for compensation, appellant submitted medical reports from
Dr. Dyer. In a December 9, 2020 report, Dr. Dyer described the November 10, 2020 employment
injury and conducted an examination. He noted that appellant tried to return to work on
November 28, 2020, but experienced significant pain. Dr. Dyer opined that she should remain off
work. In a January 6, 2021 CA-20 form, he further indicated that appellant was totally disabled
from work from November 10, 2020 through January 10, 2021. Furthermore, in a January 25,
2021 letter, Dr. Dyer recommended that she remain off work until February 3, 2021. He explained
that appellant attempted to return to work on January 21, 2021, but had a severe exacerbation of
pain. Although he opined that she was unable to work during the claimed period of disability, Dr.
Dyer did not provide any medical reasoning to support his opinion on disability. 12 He merely
referenced that appellant experienced a severe exacerbation of pain when she attempted to return
to work. The Board has found that, when a physician’s statements regarding an employee’s ability
to work consist only of repetition of the employee’s complaints that he or she hurt too much to
work, without objective findings of disability being shown, the physician has not provided a

8

B.O., Docket No. 19-0392 (issued July 12, 2019); D.G., Docket No. 18-0597 (issued October 3, 2018); Amelia S.
Jefferson, 57 ECAB 183 (2005).
9

L.O., Docket No. 20-0170 (issued August 13, 2021); S.J., Docket No. 17-0828 (issued December 20, 2017);
Kathryn E. DeMarsh, 56 ECAB 677 (2005).
10

V.A., Docket No. 19-1123 (issued October 29, 2019); C.B., Docket No. 18-0633 (issued November 16, 2018).

11

See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, 55 ECAB 674 (2004); Fereidoon
Kharabi, 52 ECAB 291 (2001).
12

R.C., Docket No. 17-0748 (issued July 10, 2018); Dean E. Pierce, 40 ECAB 1249 (1989).

4

rationalized medical opinion on the issue of disability. 13 For these reasons, the Board finds that
Dr. Dyer’s reports lack sufficient medical reasoning to establish that appellant was unable to work
during the claimed period.
The report from the physician assistant is also of no probative value to establish appellant’s
wage-loss compensation claim because physician assistants are not considered physicians as
defined under FECA. 14
As the medical evidence of record lacks rationalized medical evidence establishing that
appellant was disabled from work for the period December 27, 2020 through January 29, 2021 due
to the accepted November 10, 2020 employment injury, the Board finds that she has not met her
burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Under FECA and its implementing regulations, a claimant who has received a final adverse
decision by OWCP is entitled to receive a hearing by writing to the address specified in the
decision within 30 days of the date of the decision for which a hearing is sought. 15 Unless
otherwise directed in writing by the claimant, OWCP’s hearing representative will mail a notice
of the time and place of the hearing to the claimant and any representative at least 30 days before
the scheduled date.16 OWCP has the burden of proving that it properly mailed to a claimant and
any representative of record. 17
A claimant who fails to appear at a scheduled hearing may request in writing, within 10
days after the date set for the hearing, that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference. 18
13

B.F., Docket No. 19-0123 (issued May 13, 2019); P.D., Docket No. 14-744 (issued August 6, 2014); G.T., 59
ECAB 447 (2008).
14

Section 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical o pinion
under FECA). See also S.A., Docket No. 21-0813 (issued December 27, 2021); George H. Clark, 56 ECAB 162
(2004) (physician assistants are not considered physicians under FECA).
15

20 C.F.R. § 10.616(a).

16

Id. at § 10.617(b).

17

V.C., Docket No. 20-0798 (issued November 16, 2020); M.R., Docket No. 18-1643 (issued March 1, 2019); T.P.,
Docket No. 15-0806 (issued September 11, 2015); Michelle R. Littlejohn, 42 ECAB 463 (1991).
18

20 C.F.R. § 10.622(f).

5

The failure of the claimant to request another hearing within 10 days, or the failure of the claimant
to appear at the second scheduled hearing without good cause shown, shall constitute abandonment
of the request for a hearing. 19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant abandoned her request for
an oral hearing.
Following OWCP’s March 17, 2021 decision denying appellant’s wage-loss compensation
claim, she filed a timely request for an oral hearing before a representative of OWCP’s Branch of
Hearings and Review. In a May 21, 2021 letter, OWCP’s Branch of Hearings and Review notified
her that it had scheduled a telephonic hearing for June 24, 2021 at 2:30 p.m. EST. OWCP mailed
the notice to appellant’s last known address of record. The Board has held that absent evidence to
the contrary, a letter properly addressed and mailed in the ordinary course of business is presumed
to have been received. This is called the mailbox rule. 20 Appellant failed to call in for the
scheduled hearing using the provided telephone number. She did not request a postponement or
provide an explanation to OWCP for failure to appear for the hearing within 10 days of the
scheduled hearing. As appellant failed to call in to the scheduled hearing or provide notification
to OWCP’s Branch of Hearings and Review within 10 days of the scheduled hearing explaining
failure to appear, the Board finds that OWCP properly determined that she abandoned her request
for an oral hearing. 21
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period December 27, 2020 through January 29, 2021 causally related to the accepted
November 10, 2020 employment injury. The Board further finds that OWCP properly determined
that appellant abandoned her request for an oral hearing.

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (September 2020); see also K.H., Docket No. 20-1198 (issued February 8, 2021); A.J., Docket No. 180830 (issued January 10, 2019).
20

See V.C., supra note 17; C.Y., Docket No. 18-0263 (issued September 14, 2018).

21

See L.T., Docket No. 20-1539 (issued August 2, 2021).

6

ORDER
IT IS HEREBY ORDERED THAT the March 17 and July 7, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 18, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF JUSTICE,
METROPOLITAN DETENTION CENTER,
Brooklyn, NY, Employer
__________________________________________

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

Docket No. 15-0508
Issued: July 10, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 7, 2015 appellant filed a timely appeal from a November 7, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

Following OWCP’s November 7, 2014 decision, appellant requested an oral hearing. On February 20, 2015
OWCP denied his request for a hearing. As noted, appellant filed his appeal with the Board on January 7, 2015.
The Board finds that the February 20, 2015 OWCP decision is null and void as the Board and OWCP may not
simultaneously have jurisdiction over the same issue in a case. OWCP may not issue a decision granting or denying
a request for a hearing regarding the same issue on appeal before the Board. See Arlonia B. Taylor, 44 ECAB
591 (1993).

ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On June 23, 2014 appellant, then a 35-year-old corrections officer, filed an occupational
disease claim alleging that he sustained a right foot injury in the performance of duty. He
alleged that he slipped while walking up the wet staircase of an elevator shaft. Appellant noted
that he had swelling and throbbing right foot pain. He stated that he became aware of his
condition on June 20, 2014 and became aware of its relationship to his employment on
June 21, 2014.
By letter dated August 18, 2014, OWCP notified appellant that the evidence was
insufficient to establish his claim. It advised him to complete a questionnaire establishing the
factual element of his claim and advised him of the type of medical evidence needed to establish
the claim. OWCP also requested that appellant clarify if he was claiming a traumatic injury or
an occupational disease.
By decision dated November 7, 2014, OWCP denied appellant’s claim because the
evidence was insufficient to establish that the events occurred as alleged. It noted that he had not
described the employment activities that he alleged caused or contributed to his conditions and
did not clarify what type of injury he was claiming. OWCP also noted that no medical evidence
was submitted.
LEGAL PRECEDENT ISSUE 1
An employee seeking benefits under FECA has the burden to establish the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation, that an injury was sustained in the performance of duty as alleged, and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established. To establish an occupational disease
claim, an employee must submit: (1) a factual statement identifying employment factors alleged
to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

2

compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.5
An employee has the burden of establishing the occurrence of an injury at the time, place,
and in the manner alleged, by a preponderance of the reliable, probative, and substantial
evidence.6 An employee’s statement that an injury occurred at a given time and in a given
manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.7 Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s
statement, however, must be consistent with the surrounding facts and circumstances and his
subsequent course of action. An employee has not met his burden in establishing the occurrence
of an injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim. Circumstances such as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury, and failure to
obtain medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement
in determining whether a case has been established.8
ANALYSIS
Appellant alleged that he slipped on a wet staircase causing a right foot injury. In an
August 18, 2014 letter, OWCP advised him to submit additional factual and medical evidence to
establish his claim. It requested that appellant describe the employment-related activities which
he believed contributed to his condition, how often he performed such activities, and for how
long they were performed. Appellant provided no response within the time allotted. The Board
finds that he provided insufficient evidence to identify employment factors alleged to have
caused or contributed to the presence or occurrence of the claimed occupational disease.
A statement describing the particular employment activities that caused or contributed to
the claimed condition is crucial to appellant’s claim. As noted, appellant’s burden of proof
includes the submission of a factual statement including the time, place, and manner of his
injury. His occupational disease claim asserts that his right foot condition began when he slipped
on a wet staircase. The Board notes that this appears to implicate a specific incident, or
traumatic event, as the cause of appellant’s condition rather than work factors that occurred over
more than one work shift. It is unclear if appellant is actually claiming a traumatic injury instead
of an occupational disease.9 This is insufficient to identify a work factor as the cause of his
claimed condition. Appellant also did not clearly identify the date of the claimed slip in the
stairwell or exactly where the stairwell in question is located. As he did not provide a factual
5

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

6

William Sircovitch, 38 ECAB 756, 761 (1987).

7

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

8

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

9

Under FECA, a traumatic injury is defined 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. 20 C.F.R. § 10.5(ee). An occupational disease is
defined as a condition produced by the work environment over a period longer than a single workday or shift. 20
C.F.R. § 10.5(q).

3

statement describing in detail the events and date of the events that caused the claimed injury, the
Board finds that he has not met his burden of proof. Thus, the Board finds that appellant has not
met his burden of proof.
On appeal, appellant asserts that he did not respond to OWCP’s request because he was
not receiving his mail and because he was very busy and bedridden around the time of his
claimed injury. As noted, part of his burden of proof includes the submission of a factual
statement describing the claimed injury. Here, OWCP asked appellant to fully describe the
circumstances of his claimed condition, but he did not respond within the time allotted.
Although appellant asserts that he was not receiving his mail, the record indicates that OWCP’s
August 18, 2014 letter requesting additional information was sent to his address of record.
Absent evidence to the contrary, a letter mailed in the ordinary course of business is presumed to
have been received by the intended recipient. This presumption is commonly referred to as the
mailbox rule. It arises when the record reflects that the notice was properly addressed and duly
mailed.10 The record contains no evidence to rebut the presumption that appellant received
OWCP’s August 18, 2014 letter in due course. The Board also notes that he submitted new
evidence to the Board with his appeal. However, the Board does not have jurisdiction to review
new evidence for the first time on appeal.11
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds appellant has not met his burden of proof to establish that he sustained
an occupational disease in the performance of duty.

10

See Kenneth E. Harris, 54 ECAB 502, 505 (2003).

11

See 20 C.F.R. § 501.2(c).

4

ORDER
IT IS HEREBY ORDERED THAT the November 7, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 10, 2015
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
DEPARTMENT OF ENERGY, WESTERN
AREA POWER ADMINISTRATION,
Fort Peck, MT, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-690
Issued: June 13, 2007

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 January 16, 2007 appellant, through his attorney, filed a timely appeal of the Office of
Workers’ Compensation Programs’ December 13, 2006 decision granting a schedule award for
20 percent impairment of the right lower extremity. 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 has more than 20 percent impairment of his right lower
extremity, for which he received a schedule award.
FACTUAL HISTORY
On April 22, 2002 appellant, then a 57-year-old lineman, filed a traumatic injury claim
alleging that on April 16, 2002 he dropped a conductor while working in a wooden structure and
it fell on his right leg, causing a torn muscle on the right upper leg. On June 26, 2002 the Office
accepted appellant’s claim for ruptured right quadriceps tendon. On May 2, 2005 appellant filed

a claim for recurrence of his injury on April 18, 2005. This claim was accepted for right knee
sprain/strain, right knee posterior dislocation of tibia and right knee tear of medial cartilage. On
July 25, 2005 appellant had a total right knee arthroplasty.
In a medical report dated September 21, 2006, Dr. Daniel C. Brooke, a Board-certified
orthopedic surgeon, stated that appellant had reached maximum medical improvement. He
indicated that appellant could return to his former occupation with “fairly significant
limitations.” In a report dated September 22, 2006, Dr. Brooke indicated that appellant had
permanent partial disability. He noted that appellant had a total knee arthroplasty which
corrected his knee problem; however, he still had some limitation.
On November 16, 2006 appellant filed a claim for a schedule award. In a November 2,
2006 report, Dr. Brooke opined that, using the points system from the American Medical
Association, Guides to the Evaluation of Permanent Impairment, appellant had “approximately
80 points for impairment of the lower extremity impairment of 50 percent or whole person
impairment of 20 percent.”
On December 1, 2006 the Office referred appellant’s case to an Office medical adviser
for a determination of the amount of impairment to the right lower extremity. In a medical report
dated December 1, 2006, the Office medical adviser found that appellant sustained a 20 percent
impairment of his right lower extremity. He listed the diagnoses as: “Severe tricompartment
degenerative joint disease, right knee status post right knee total knee arthroplasty, GPS
(gravitational platelet separation) for early wound healing, right knee and Femoral nerve block
preoperatively and placement of catheter for postoperative pain control.” The Office medical
adviser then applied Table 17-35 at page 549 of the A.M.A., Guides and determined that
appellant had a total of 56 points which equaled a 20 percent right lower extremity impairment.
By decision dated December 13, 2006, the Office issued a schedule award for a 20
percent impairment of the right lower extremity.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 sets for the number of weeks
of compensation to be paid for the permanent loss of use of specified members, functions and
organs of the body.2 The Act, however, does not specify the manner by which the percentage
loss of a member, function or organ shall be determined. To ensure consistent results and equal
justice for all claimants under the law, good administrative practice requires the use of uniform
standards applicable to all claimants.3 The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.4

1

5 U.S.C. §§ 8101-8193.

2

5 U.S.C. § 8107.

3

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

4

20 C.F.R. § 10.404.

2

ANALYSIS
In rating knee replacement results, both Dr. Brooke and the Office medical adviser
referred to Table 17-35 of the A.M.A., Guides. Table 17-35 provides instructions for rating knee
replacement results based on a point system. The point total for estimating knee replacement
results in the sum of the points in categories a, b and c (pain, range of motion and stability,
respectively) minus the sum of the points in categories d, e and f (flexion contracture, extension
lag and alignment, respectively).5 Dr. Brooke indicated that pursuant to the points system of the
A.M.A., Guides appellant had approximately 80 points which equaled a lower extremity
impairment of 50 percent or a whole person impairment of 20 percent. Although he refers to the
criteria in Table 17-35 on page 549 of the A.M.A., Guides, and sets forth the proper categories of
pain, range of motion and stability for adding points and deductions for flexion contracture,
extension lag and alignment, he never provided a specific accounting indicating how he arrived
at his calculation of 80 points.
The Office medical adviser utilized Table 17-35 on page 549 of the A.M.A., Guides to
find that appellant was entitled to 30 points under category a for mild or occasional pain while
walking up and down stairs. With regard to category b, range of motion, he granted appellant 46
points (25 basic points plus 21 extra points allotted based on 1 point per 5 degree range of
motion) and 10 points pursuant to category c, stability, for less than 5 millimeters in any
position. This gave a subtotal of 86 points. From this, the Office medical adviser subtracted 20
points for category d, flexion contracture, noting that, as normal knee flexion is 150, appellant
had greater than 20 degrees flexion contracture. He then deducted 10 points for extension lag
pursuant to category e. The Office medical adviser made no deductions under category f,
alignment. He then took the total of 30 points and deducted them from 86 to find a total of 56
points. Based on a total of 56 points, the Office medical adviser found that appellant had a 20
percent impairment of the lower extremity. He properly applied the criteria in Table 17-35 of the
A.M.A., Guides to rate appellant’s impairment on a finding of 56 points. However, the Office
medical adviser did not properly apply Table 17-33 to the point total.
The Board notes that Table 17-33 on pages 546-47 of the A.M.A., Guides indicates that
when an individual has had a total knee replacement and it yields a fair result, which the A.M.A.,
Guides define as between 50 and 84 points, he or she is entitled to a whole person impairment of
20 percent and an impairment of his lower extremity of 50 percent.6 Dr. Brooke’s conclusion
that appellant had “approximately 80 points” and the Office medical adviser’s conclusion that
appellant had 56 points both establish that he had a “fair result” under the A.M.A., Guides.
Although Dr. Brooke did not clearly indicate how he arrived at his conclusion that appellant had
“approximately 80 points,” he did properly note that this would yield a “fair result” under Table
17-33 which would equal a lower extremity impairment of 50 percent. The Office medical
adviser erroneously found that a “fair result” of 56 points equaled a 20 percent impairment of the
right lower extremity. Pursuant to Table 17-33, a “fair result” of 56 points yields an impairment
rating of 20 percent of the whole person and 50 percent impairment of the lower extremity. The
Office medical adviser misread the chart and should have found a 50 percent impairment of
5

A.M.A., Guides 549, Table 17-35.

6

Id. at 547, Table 17-33.

3

appellant’s right lower extremity based on a “fair result” from his total knee replacement.7
Accordingly, appellant is entitled to a 50 percent impairment of his right lower extremity.
CONCLUSION
Appellant is entitled to an impairment rating based upon a 50 percent impairment of his
right lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated December 13, 2006 is modified to reflect that appellant has 50 percent
impairment to his right lower extremity. The decision is affirmed as modified.
Issued: June 13, 2007
Washington, DC

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

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

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

7

While the A.M.A., Guides provides for impairment to the individual member and to the whole person, the Act
does not provide for permanent impairment for the whole person. Phyllis F. Cundiff, 52 ECAB 439 (2001); John
Year, 48 ECAB 243 (1996).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Novato, CA, Employer
__________________________________________

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

Docket No. 08-99
Issued: May 13, 2008

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 10, 2007 appellant filed a timely appeal from two September 6, 2007
decisions of the Office of Workers’ Compensation Programs, one determining her wage-earning
capacity and the other regarding a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether the Office properly reduced appellant’s monetary
compensation benefits to zero on the grounds that her actual earnings as a modified letter
technician properly represented her wage-earning capacity; and (2) whether she has established
that she sustained greater than a 24 percent permanent impairment of the right lower extremity.
FACTUAL HISTORY
The Office accepted that on August 13, 2005 appellant, then a 47-year-old letter carrier,
sustained a right knee sprain, fractured right patella and derangement of the right knee when

exiting her official vehicle. She stopped work on the date of injury and returned to a temporary,
sedentary-duty position on September 13, 2005.
Appellant submitted reports from August 13 to October 31, 2005 from Dr. Jeffrey Lee
Gao, an attending Board-certified physician in occupational medicine. Dr. Gao diagnosed a right
fibular fracture with continued pain and swelling.1 On November 3, 2005 appellant underwent
right knee arthroscopy, authorized by the Office. She returned to modified duty on
December 15, 2006.
Appellant submitted progress notes through May 3, 2006 from Dr. Gao and Dr. Michael
Meehan, an attending Board-certified orthopedic surgeon. Both physicians noted continued right
knee pain and swelling, an antalgic gait and restricted motion.2
In a May 24, 2006 report, Dr. Gao noted a history of patellofemoral syndrome with
arthritic changes in the right knee, first diagnosed by x-ray in July 2005 approximately one
month before the August 13, 2005 injury. He opined that appellant had reached maximum
medical improvement. Appellant had intermittent right knee pain rated at 5 to 6 out of 10,
minimal swelling, occasional tingling, numbness, popping and clicking. Range of motion was
full. Referring to the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter, A.M.A., Guides), Dr. Gao found that
according to Table 17-5, page 529,3 appellant had a seven percent whole person impairment due
to an antalgic limp. Knee flexion limited to 70 degrees equaled an 8 percent whole person
impairment according to Table 17-10, page 537.4 Appellant had right knee strength at four out
of five but was “not a good candidate for manual muscle testing and rating” due to pain. Dr. Gao
also opined that appellant had a four percent whole person impairment according to Table 17-33,
page 5465 due to medial and lateral partial meniscectomy. He added a two percent impairment
due to moderate pain. Dr. Gao noted permanent restrictions against lifting more than 15 pounds
and “carrying of the third bundle.” Dr. Gao prescribed a 10-minute rest break each hour while
delivering mail and after standing for 1 hour.
On June 6, 2006 appellant claimed a schedule award. The Office referred the medical
record to an Office medical adviser for review. In a June 24, 2006 report, an Office medical
adviser stated that he could not accurately calculate a schedule award without the July 2005
x-ray report and November 3, 2005 operative report mentioned by Dr. Gao.

1

A magnetic resonance imaging (MRI) scan of the right knee performed on September 6, 2005 showed a
probable medial meniscal tear, ligamentous tears, abnormalities of the proximal fibula, effusion, chondromalacia or
patellar degeneration.
2

Dr. Meehan made similar findings in an August 29, 2006 report.

3

Table 17-5, page 529 of the fifth edition of the A.M.A., Guides is entitled “Lower Limb Impairment Due to Gait
Derangement.”
4

Table 17-10, page 537 of the fifth edition of the A.M.A., Guides is entitled “Knee Impairment.”

5

Table 17-33, page 546 of the fifth edition of the A.M.A., Guides is entitled “Impairment Estimates for Certain
Lower Extremity Impairments.”

2

On November 2, 2006 the Office referred appellant, the medical record and a statement
of accepted facts to Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon, for a second
opinion examination. In a December 4, 2006 report, Dr. Swartz reviewed the record and
statement of accepted facts and opined that appellant had reached maximum medical
improvement. He related appellant’s complaints of right knee pain. On examination, Dr. Swartz
noted that appellant walked with a limp, had difficulty squatting, had three centimeters (cm) of
swelling in the right knee, one cm atrophy of the right calf, flexion limited by 5 degrees,
extension limited to 90 degrees and quadriceps weakness. He noted permanent restrictions
against pulling, pushing and lifting more than 15 pounds, no squatting or kneeling, no more than
one hour of climbing and no more than six hours of walking, standing, bending or stooping.
On February 2, 2007 the employing establishment offered appellant a modified letter
carrier technician, earning $46,135.00 a year or $887.21 a week. The job required walking
delivering mail six hours a day, carrying a satchel weighing no more than 15 pounds. Pushing,
pulling and lifting were limited to 15 pounds, with no squatting or kneeling. Appellant accepted
the offer on May 18, 2007. The record does not indicate when appellant began work.
On August 8, 2007 the Office asked the medical adviser who previously reviewed the
record to review Dr. Swartz’s report and calculate a schedule award. In an August 19, 2007
report, the Office medical adviser noted that the Office did not obtain the July 2005 x-ray report
or November 3, 2005 operative report. Referring to the A.M.A., Guides, the medical adviser
found a Grade 2 pain impairment according to Table 16-10, page 482.6 He then multiplied the
maximum 7 percent femoral nerve impairment by the 70 percent grade for pain, resulting in a 4.9
percent impairment due to pain, rounded up to 5 percent. Flexion limited to 90 degrees equaled
a 10 percent impairment with an additional 10 percent impairment for flexion contracture. Using
the Combined Values Chart, the Office medical adviser combined the 20 percent impairment for
restricted motion with the 5 percent impairment due to pain to equal a 24 percent impairment of
the right leg. He concurred with Dr. Swartz that appellant had reached maximum medical
improvement. The medical adviser advised that the rating “was calculated without the benefits
of reviewing actual x-ray reports or reviewing the operative report.”
In an August 22, 2007 letter, the employing establishment letter noted that appellant had
a light-duty assignment.
In August 29 and 31, 2007 reports, Dr. Gao renewed previous work restrictions, adding
that she should work no more than five days a week.
In a September 6, 2007 e-mail, the employing establishment confirmed the pay rate for
the position appellant accepted on May 18, 2007.
By decision dated September 6, 2007, the Office found that the position of modified letter
technician properly represented her wage-earning capacity. The Office found that appellant had
performed the position successfully since May 18, 2007, with actual earnings of $887.21 a week,

6

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

3

exceeding the current pay rate of $835.14 for her job and step when injured. The Office
therefore terminated appellant’s monetary compensation benefits.7
By decision dated September 6, 2007, the Office granted appellant a schedule award for a
24 percent permanent impairment of the right lower extremity. The period of the award ran from
December 5, 2005 to April 2, 2007.8
LEGAL PRECEDENT -- ISSUE 1
Section 8115(a) of the Federal Employees’ Compensation Act9 provides that, in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by her actual earnings if her actual earnings fairly and reasonably represent her
wage-earning capacity.10 Generally, wages actually earned are the best measure of a wageearning capacity and in the absence of showing that they do not fairly and reasonably represent
the injured employee’s wage-earning capacity, must be accepted as such a measure.11 The
formula for determining loss of wage-earning capacity based on actual earnings, developed in the
Albert C. Shadrick decision,12 has been codified at 20 C.F.R. § 10.403. The Office calculates an
employee’s wage-earning capacity in terms of percentage by dividing the employee’s earnings
by the current pay rate for the date-of-injury job.13 Office procedures provide that a
determination regarding whether actual earnings fairly and reasonably represent wage-earning
capacity should be made after an employee has been working in a given position for more than
60 days.14
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a right knee fracture with sprain and internal
derangement due to an August 13, 2005 work incident. Appellant stopped work on August 13,
2005 and underwent arthroscopic surgery on her right knee on November 3, 2005 to repair
meniscal tears. Dr. Gao, an attending physician Board-certified in occupational medicine,
released appellant to restricted duty in November 2005. Appellant returned to modified duty on
7

The Office noted that appellant remained entitled to appropriate medical benefits to treat residuals of the
accepted injury.
8

The Office noted that appellant reached maximum medical improvement as of May 3, 2005 but continued to
receive compensation through December 4, 2005. The Office delayed the beginning of the schedule award until
December 5, 2005.
9

5 U.S.C. §§ 8101-8193.

10

5 U.S.C. § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

11

Lottie M. Williams, 56 ECAB 302 (2005).

12

Albert C. Shadrick, 5 ECAB 376 (1953).

13

20 C.F.R. § 10.403(c).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (December 1993).

4

December 5, 2006. On February 2, 2007 the employing establishment offered her a job as a
modified letter carrier technician. Appellant accepted the position on May 18, 2007.
In its September 6, 2007 decision, the Office found that appellant successfully performed
the modified letter carrier technician position for 60 days beginning May 18, 2007. However,
the record does not indicate when appellant began work. An August 22, 2007 letter from the
employing establishment states that appellant had a light-duty assignment. However, the letter
does not indicate when appellant began that job or that it was the same position she accepted on
May 18, 2007. A September 6, 2007 e-mail message confirms the pay rate for the offered
position as of May 18, 2007. But the message does not state when appellant began work or that
she had worked for 60 days. The Board notes that there is no report of termination of disability
(Form CA-3), pay stubs, timekeeping records or other evidence establishing that appellant began
work on May 18, 2007 or had performed the job for 60 days prior to September 6, 2007. The
Board therefore finds that the Office failed to follow its accepted procedures as it did not
establish that appellant had performed the modified letter carrier technician position for 60
days.15 As the Office failed to meet its burden in this case, the wage-earning capacity
determination must be reversed.
LEGAL PRECEDENT -- ISSUE 2
The schedule award provision of the Act16 provides for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. The Act,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such determination is a mater which rests in the sound
discretion of the Office. For consistent results and to ensure equal justice, the Board has
authorized the use of a single set of tables so that there may be uniform standards applicable to all
claimants. The A.M.A., Guides has been adopted by the Office as a standard for evaluation of
schedule losses and the Board has concurred in such adoption.17 As of February 1, 2001, schedule
awards are calculated according to the fifth edition of the A.M.A., Guides, published in 2000.18
The standards for evaluation of the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.19 Chapter 17
15

Amalia Stys (Docket No. 96-521, issued June 9, 1998) (where the Board found that as the claimant was
terminated after 56 days of employment, she did not have 60 days of actual wages from which the Office could
derive a fair and reasonable representation of her wage-earning capacity).
16

5 U.S.C. §§ 8101-8193.

17

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

18

See FECA Bulletin No. 01-05 (issued January 29, 2001) (schedule awards calculated as of February 21, 2001
should be evaluated according to the fifth edition of the A.M.A., Guides. Any recalculations of previous awards
which result from hearings, reconsideration or appeals should, however, be based on the fifth edition of the A.M.A.,
Guides effective February 1, 2001).
19

See Paul A. Toms, 28 ECAB 403 (1987).

5

of the A.M.A., Guides sets forth the grading schemes and procedures for evaluating impairments
of the lower extremities.20
For lower extremity impairments due to meniscectomies, Table 17-1, page 525 of the
A.M.A., Guides21 directs the clinician to utilize section 17.2j, beginning at page 545,22 as the
appropriate method of impairment assessment. Section 17.2j, entitled “Diagnosis-Based
Estimates,” instructs the clinician to assess the impairment using the criteria in Table 17-33 at
page 546, entitled “Impairment Estimates for Certain Lower Extremity Impairments.”23
According to Table 17-33, a partial medial meniscectomy is equivalent to a two percent
impairment of the lower extremity.24 Additional percentages of impairment are awarded for
laxity of the cruciate or collateral ligaments.25
ANALYSIS -- ISSUE 2
Appellant claimed a schedule award pursuant to an accepted fracture, sprain and internal
derangement of the right knee. She submitted a May 24, 2006 report from Dr. Gao, an attending
physician Board-certified in occupational medicine. Dr. Gao noted appellant’s history of
patellofemoral changes with an arthritic syndrome in July 2005, prior to the accepted August 13,
2005 injury. He also mentioned appellant’s November 3, 2005 meniscectomy. Dr. Gao referred
to the fifth edition of the A.M.A., Guides but did not offer a final percentage of impairment for
the right leg. On review of Dr. Gao’s findings, an Office medical adviser opined that he could
not accurately calculate a schedule award without obtaining the July 2005 x-ray report and
November 2005 operative report. Following a second opinion examination, the Office returned
the updated record to the same Office medical adviser. In an August 19, 2007 report, the
medical adviser calculated a 24 percent impairment of the right lower extremity. However, he
noted that this rating was calculated without the x-ray and operative reports he previously
requested. The Office based the September 6, 2007 schedule award on the Office medical
adviser’s assessment of a 24 percent impairment.
The Board finds that the Office improperly relied on the Office medical adviser’s
opinion. The medical adviser explained that he could not accurately calculate a schedule award
without the July 2005 x-ray report and November 2005 surgical report. Although the adviser
later offered an impairment rating, he noted that it was made without benefit of the requested
records. Thus, the Office accorded the weight of the medical evidence to an opinion based on an
incomplete medical record. It is well established that medical opinion based on an incomplete or
inaccurate medical history is of diminished probative value.26 The case will be remanded to the
20

A.M.A., Guides, Chapter 17, “The Lower Extremities,” pp. 523-561 (5th ed. 2001).

21

Id. at 525, Table 17-1 (5th ed., 2001).

22

Id. at 545.

23

Id. at 546, Table 17-33.

24

Id.

25

Id.

26

James R. Taylor, 56 ECAB 537 (2005).

6

Office for further development on the schedule award issue. The Office will conduct appropriate
development to determine the percentage of permanent impairment to appellant’s right lower
extremity. Following such development as the Office deems necessary, the Office will issue an
appropriate decision in the case.
CONCLUSION
The Board finds that the Office did not properly find that the position of modified letter
technician properly represented her wage-earning capacity. The Board further finds that the
schedule award issue is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 6, 2007 regarding appellant’s wage-earning capacity is
reversed. The decision of the Office dated September 6, 2007 regarding the schedule award is
set aside and the case remanded for further development consistent with this opinion.
Issued: May 13, 2008
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Jacksonville, AR, Employer
__________________________________________

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

Docket No. 12-793
Issued: October 3, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 27, 2012 appellant filed a timely appeal from a September 22, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her occupational
disease claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she developed a
right shoulder injury causally related to factors of her federal employment.
FACTUAL HISTORY
On March 29, 2011 appellant, then a 55-year-old nurse, filed an occupational disease
claim (Form CA-2) alleging that she developed a right shoulder injury as a result of patient care,
1

5 U.S.C. § 8101 et seq.

repositioning patients and administering medication by pushing a cart. She first became aware
of her condition and of its relationship to her employment on March 15, 2011. Appellant
notified her supervisor on March 16, 2011.
By letter dated April 6, 2011, OWCP requested additional factual and medical evidence
from both appellant and the employing establishment.
In an April 23, 2011 narrative statement, appellant reported that she was employed as a
nurse for 10 years and her duties included passing medication to patients by pushing and
maneuvering a cart weighing over 200 pounds, pushing and maneuvering patients in their beds
and lifting, reaching, repositioning and transferring patients from their beds to wheelchairs. She
noted that she had repositioned a very large patient on March 15, 2011 when she noticed right
shoulder pain after she completed her shift. Appellant further noted that she had never had any
prior injuries to her right shoulder. In support of her claim, she submitted an official position
description for a registered nurse, as well as narrative statements from her supervisors which
noted her right shoulder complaints and the duties involved with her position.
In a March 16, 2011 medical report, Dr. John C. Holder, Board-certified in nuclear
medicine, reported that appellant complained of acute right shoulder pain. Appellant did not
recall injuring herself but reported that she worked as a registered nurse and often had to lift
patients. She first noticed pain in her right shoulder during her shift which eventually became
unbearable. Dr. Holder diagnosed right shoulder impingement and noted that she injured her
right shoulder while lifting patients.
In a March 17, 2011 diagnostic report, Dr. Paul C. Hessler, a Board-certified radiologist,
reported that an x-ray of appellant’s right shoulder revealed minimal rotator cuff syndrome with
no degenerative changes or fractures.
In medical reports dated March 17 and 22, 2011, Dr. Matthew Graham, Board-certified in
family medicine, reported that appellant complained of right shoulder pain, which she noticed
came on gradually. Upon review of appellant’s x-ray, the physician diagnosed right shoulder
sprain and released her to work with restrictions.
In Duty Status Reports (Form CA-17) dated March 16 to May 12, 2011, appellant was
released to work with limitations. Dr. Graham noted her condition as a right shoulder
strain/impingement and stated that her condition was caused by cumulative trauma to the right
shoulder and forearm.
Appellant also submitted nursing and therapy notes dated March 16 to April 22, 2011.
On April 4, 2011 she accepted a limited-duty job offer.
By decision dated May 27, 2011, OWCP denied appellant’s claim finding that the
medical evidence did not demonstrate that the right shoulder injury was causally related to the
established work-related events.
By letter dated June 18, 2011, appellant requested review of the written record before the
Branch of Hearings and Review. She stated that she was still receiving treatment for her right
shoulder and was enclosing additional medical evidence.
2

In a June 3, 2011 report, Thomas Bartole, a physical therapist, reported that appellant had
been seeking physical therapy treatment since April 15, 2011 as a result of a muscle strain that
occurred to the right cervical and shoulder regions. He noted that the nature of the muscle strain
was likely secondary to overuse and repetitive stress or related to excessive pushing and pulling.
In a June 14, 2011 medical report, Dr. Graham stated that appellant first noticed her right
shoulder pain on March 15, 2011 when she was performing her duties as a nurse which included
pushing a medicine cart weighing over 200 pounds and assisting patient transfers. He opined
that, given the nature of her injury and her job duties, appellant’s right shoulder pain was a direct
result of the performance of her job duties. Dr. Graham released appellant to work with
restrictions.
By decision dated September 22, 2011, the Branch of Hearings and Review affirmed
OWCP’s May 27, 2011 decision finding that medical evidence did not demonstrate that her right
shoulder impingement and sprain was causally related to the established work-related events.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.2 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.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 which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.5
2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

3

To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.6 The opinion of the physician 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. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested and
the medical rationale expressed in support of the physician’s opinion.7
ANALYSIS
OWCP accepted that appellant engaged in repetitive lifting, pushing and pulling in her
employment activities as a registered nurse. It denied her claim, however, on the grounds that
the evidence failed to establish a causal relationship between those activities and her right
shoulder impingement and strain. The Board finds that the medical evidence of record is
insufficient to establish that appellant sustained a right shoulder injury causally related to factors
of her employment as a registered nurse.
In a March 16, 2011 medical report, Dr. Holder reported that appellant complained of
acute right shoulder pain. Appellant did not recall injuring herself but reported that she worked
as a registered nurse and often had to lift patients. During her work shift, she noticed pain in her
right shoulder. Dr. Holder diagnosed right shoulder impingement and noted that appellant
injured herself while lifting patients. Though he diagnosed her injury, he failed to provide an
opinion on causal relationship. Dr. Holder merely recounted the incident as described by
appellant, did not explain that her condition was work related and did not offer a rationalized
opinion on the issue of causal relationship.8 Medical evidence that does not offer a medical
opinion explaining how the accepted employment duties would have pathologically caused an
employee’s condition is of limited probative value on the issue of causal relationship.9 Thus,
Dr. Holder’s report is not sufficient to meet appellant’s burden of proof.10
In medical reports dated March 17 to June 14, 2011, Dr. Graham reported that appellant
complained of right shoulder pain which came on gradually. Appellant first noticed the onset of
pain on March 15, 2011 when she was performing her duties as a nurse which included pushing a
medicine cart weighing over 200 pounds and assisting patient transfers. Dr. Graham diagnosed
right shoulder impingement and strain. In a May 12, 2011 Form CA-17, he stated that right
6

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

7

James Mack, 43 ECAB 321 (1991).

8

Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
9

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

10

C.B., Docket No. 08-1583 (issued December 9, 2008).

4

shoulder impingement was caused by cumulative trauma to the right shoulder forearm. In his
June 14, 2011 medical report, Dr. Graham opined that given the nature of appellant’s injury and
job duties, that her right shoulder pain was a direct result of the performance of her job duties.
The Board finds that the opinions stated by Dr. Graham are also not well rationalized.
Dr. Graham diagnosed right shoulder impingement and strain and attributed appellant’s injury to
her job duties of pushing a medicine cart and assisting patient transfers. While he stated an
opinion on causal relationship, he failed to provide an explanation of how these employment
duties would cause appellant’s injury. Dr. Graham failed to adequately describe appellant’s
work duties, did not specify how long she worked as a registered nurse, how many hours she
assisted with patient transfers and pushed the medicine cart and the frequency of other physical
movements and tasks. He also failed to explain the pathological process by which these duties
would have caused appellant’s condition. The opinion of a physician supporting causal
relationship must rest on a complete factual and medical background supported by affirmative
evidence, address the specific factual and medical evidence of record and provide medical
rationale explaining the relationship between the diagnosed condition and the established
incident or factor of employment.11 Dr. Graham’s reports do not meet that standard and are
insufficient to meet appellant’s burden of proof.
The remaining medical evidence of record is also insufficient to establish causal
relationship between appellant’s injury and her work-related duties as a registered nurse.
Dr. Hessler’s March 17, 2011 diagnostic report provides a diagnosis of minimal rotator cuff
syndrome but does not provide any opinion on causal relationship.12 The physical therapy and
nurses notes do not constitute competent medical evidence in support of a claim as physical
therapists and nurses are not physicians under FECA.13 Thus, these reports are of no probative
value.
In the instant case, the record lacks rationalized medical evidence establishing a causal
relationship between appellant’s right shoulder impingement/strain and her factors of federal
employment as a registered nurse. As such, appellant has failed to meet her burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.

11

See Lee R. Haywood, 48 ECAB 145 (1996).

12

S.E., Docket No. 08-2214 (issued May 6, 2009); C.B., Docket No. 09-2027 supra note 9.

13

5 U.S.C. § 8102(2) of FECA provides as follows: (2) ‘physician includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by State law; see also Jennifer L. Sharp, 48 ECAB 209 (1996); Thomas R. Horsfall, 48 ECAB 180 (1996);
Barbara J. Williams, 40 ECAB 649 (1988).

5

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her right
shoulder impingement/strain is causally related to factors of her employment as a registered
nurse.
ORDER
IT IS HEREBY ORDERED THAT the September 22, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 3, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6