United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Newton, IN, Employer
__________________________________________

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

Docket No. 09-1104
Issued: November 24, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 16, 2009 appellant timely appealed the February 25, 2009 merit decision of the
Office of Workers’ Compensation Programs, which granted an additional schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.1
ISSUE
The issue is whether appellant has more than 35 percent impairment of her left eye.

1

The Branch of Hearings and Review erroneously issued an August 11, 2009 decision after the Board assumed
jurisdiction over the February 25, 2009 decision. See 20 C.F.R. § 10.626 (2009). Appellant’s counsel initially
requested a hearing regarding the February 25, 2009 decision, but subsequently withdrew his request by letter dated
March 8, 2009. The Branch of Hearings and Review nonetheless issued a decision addressing appellant’s request
for review of the February 25, 2009 decision. An Office decision issued while the Board has jurisdiction over the
matter in dispute is null and void. Lawrence Sherman, 55 ECAB 359, 360 n.4 (2004).

FACTUAL HISTORY
This case was previously on appeal. Appellant, a 56-year-old postmaster, has an
accepted claim for left sub-retinal hemorrhage, which arose on January 25, 1994. On March 10,
2004 the Office granted a schedule award for 15 percent impairment of the left eye.2 The award
was subsequently set aside by the Branch of Hearings and Review and the case remanded to the
Office for further medical development. By decision dated June 12, 2006, the Office found that
appellant had not established a greater impairment than the 15 percent previously awarded. In a
May 4, 2007 decision, the Branch of Hearings and Review affirmed the Office’s denial of an
increased schedule award.
When the case was previously on appeal, the Board set aside the hearing representative’s
May 4, 2007 decision and remanded the case for further development.3 The Board noted that
under certain circumstances a schedule award could incorporate preexisting permanent
impairment. Additionally, the Board noted that the impairment rating for the eye should have
been based on measurements of appellant’s uncorrected vision, rather than her corrected vision.
On remand, the Office referred appellant’s case record to Dr. James G. Ravin, a Boardcertified ophthalmologist. In a report dated April 30, 2008, Dr. Ravin found 35 percent visual
acuity impairment. He based his rating on appellant’s most recent uncorrected visual acuity
results for October 3, 2006, which were 20/100 in both eyes. Dr. Ravin did not provide an
impairment rating with respect to appellant’s visual field because the most recent visual field
measurements were obtained prior to her September 2006 cataract surgeries.
In a decision dated July 21, 2008, the Office granted an additional schedule award for 20
percent impairment of the left eye.4 The award covered a period of 32 weeks from March 27
through November 5, 2007. The Branch of Hearings and Review affirmed the Office’s
additional 20 percent award by decision dated February 25, 2009.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.5 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 under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the American
2

The award covered a period of 24 weeks.

3

Docket No. 07-1607 (issued December 21, 2007). The Board’s December 21, 2007 decision is incorporated
herein by reference.
4

The Office reduced Dr. Ravin’s 35 percent impairment rating by the 15 percent award appellant received in
2004.
5

For a total loss of use of an eye, an employee shall receive 160 weeks’ compensation. 5 U.S.C.
§ 8107(c)(5) (2006). Compensation for loss of 80 percent or more of the vision of an eye is the same as for loss of
the eye. Id. at § 8107(c)(14). The degree of loss of vision under the schedule is determined without regard to
correction. Id. at § 8107(c)(19).

2

Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.6 Effective February 1, 2001, schedule awards are
determined in accordance with the A.M.A., Guides (5th ed. 2001).7
ANALYSIS
In determining the amount of a schedule award, preexisting permanent impairment of that
schedule member or function should also be included.8 Permanent visual impairment is defined
as a permanent loss of vision that remains after maximal medical improvement of the underlying
medical condition has been reached.9 The A.M.A., Guides indicate that the evaluation of visual
impairment is based on the functional vision score (FVS), which is based on an assessment of
visual acuity; the ability of the eye to perceive details, and visual field; the ability to detect
objects in the periphery of the visual environment.10 The FVS also allows for individual
adjustments for other functional deficits, such as contrast and glare sensitivity, color vision,
binocularity, stereopsis, suppression and diplopia, if these deficits cause a significant ability loss
that is not reflected in a visual acuity or visual field loss.11 However, the need for the adjustment
must be well documented and the adjustment should be limited to an increase in the impairment
rating of the visual system (reduction of the FVS) by, at most, 15 points.12
Dr. Ravin based his April 30, 2008 impairment rating on loss of visual acuity only. He
specifically noted that the most recent visual fields in the record predated appellant’s
September 2006 cataract surgeries. As to visual acuity results, Dr. Ravin indicated that the most
recent uncorrected results were obtained on October 3, 2006. Although the A.M.A., Guides
provide that impairment ratings should be based on the “best-corrected visual acuity,”13 The Act
mandates that the degree of loss of vision under the schedule award provisions must be
determined without regard to correction.14 As noted, Dr. Ravin’s April 30, 2008 visual acuity
impairment rating was based on appellant’s October 3, 2006 uncorrected visual acuity result,
which was 20/100 in both eyes. Applying the October 3, 2006 results to Table 12-2, Impairment
of Visual Acuity, reveals a visual acuity score of 65 and a visual acuity impairment rating of 35

6

20 C.F.R. § 10.404.

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

8

See, e.g., Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700.3.b (June 1993).
9

A.M.A., Guides 278 (5th ed. 2001).

10

Id. at 278, 280, 296.

11

Id. at 278, 297.

12

Id. at 297.

13

Section 12.2b.3, A.M.A., Guides 282.

14

Supra note 5.

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percent.15 As there were no postsurgical visual field results, Dr. Ravin did not calculate
impairment of the visual field.
The Board finds that Dr. Ravin’s 35 percent impairment rating conforms to the A.M.A.,
Guides (5th ed. 2001), and thus, constitutes the weight of the medical evidence.16 Appellant has
not submitted any credible medical evidence indicating she has greater than 35 percent
impairment of the left eye. Accordingly, the Office properly awarded appellant an additional 20
percent impairment of the left eye.17
CONCLUSION
Appellant has not established that she has greater than 35 percent impairment of the left
eye.
ORDER
IT IS HEREBY ORDERED THAT the February 25, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 24, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

A.M.A., Guides 284.

16

See Bobby L. Jackson, 40 ECAB 593, 601 (1989).

17

The Office correctly reduced the latest award by 15 percent to reflect appellant’s May 10, 2004 schedule award.
See 5 U.S.C. § 8108; 20 C.F.R. § 10.404(c).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 13-662
Issued: June 21, 2013

Case Submitted on the Record

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

JURISDICTION
On January 28, 2013 appellant filed a timely appeal from an August 6, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for a
schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than six percent impairment of the left arm.
FACTUAL HISTORY
On November 20, 1995 appellant, then a 50-year-old distribution clerk, sustained an
injury as a result of lifting a tray out of an all-purpose container. OWCP accepted the claim for
right shoulder strain, right rotator cuff with subacromial decompression, right shoulder
arthroscopy. It subsequently accepted left lateral epicondylitis in File No. xxxxxx835.
1

5 U.S.C. § 8101 et seq.

Appellant also had a claim accepted for left trigger finger in File No. xxxxxx214. OWCP
combined the claims into master File No. xxxxxx835.
On December 22, 1997, a district medical adviser (DMA) confirmed an impairment
rating of 15 percent of the right upper extremity due to rotator cuff tendinitis in claim File No.
xxxxxx835.
On August 8, 2000 a medical adviser confirmed an impairment rating of five percent of
the left upper extremity due to left elbow lateral epicondylitis with a date of maximum medical
improvement (MMI) of April 19, 2000. Appellant received a schedule award for a 15 percent
permanent impairment of the right upper extremity and 5 percent permanent impairment of the
left upper extremity, File No. xxxxxx835.
On June 7, 2004 appellant underwent left elbow arthroscopy with synovial debridement,
left lateral epicondylar release with ostectomy and a left shoulder cortisone injection.
On January 23, 2003 appellant submitted a request for an additional schedule award. On
June 23, 2003 the DMA indicated that no additional impairment was warranted.
By decision dated October 14, 2003, OWCP denied appellant’s claim for an increased
schedule award in File No. xxxxxx835.
On June 17, 2004 appellant filed a CA-7 claim for schedule award benefits. An
authorization for impairment rating was forwarded to Dr. Eric Gaenslen, a Board-certified
orthopedic surgeon. In an August 30, 3005 report, Dr. Gaenslen calculated a permanent
impairment of four percent of the left upper extremity at the elbow with a date of MMI as
August 30, 2005. In an August 31, 2005 report, he recommended zero percent impairment of the
left thumb, noting the MMI date as September 15, 2004. The medical evidence of record was
referred to a medical adviser for review.
In a February 28, 2006 report, the DMA calculated an additional one percent impairment
for the lateral epicondylitis according to the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). No additional impairment
was given for the left thumb due to lack of documented residual impairment.2
By decision dated May 31, 2006, appellant was granted a schedule award for an
additional one percent of the left upper extremity, or a total of six percent left arm impairment3
On September 19, 2009 appellant filed a claim for a schedule award for her accepted left
trigger finger.

2

FECA Bulletin No. 09-03 (issued March 15, 2009). FECA Bulletin No. 09-03 was incorporated in the Federal
(FECA) Procedure Manual, Part 2 -- Claims, Schedule Award & Permanent Disability Claims, Chapter 2.808.6(a)
(January 2010).
3

File No. xxxxxx835.

2

By letter dated October 8, 2009, OWCP requested that appellant submit an impairment
evaluation from her attending physician in accordance with the sixth edition of the A.M.A.,
Guides.4 It provided 30 days to submit the requested information.
Appellant submitted a January 8, 2010 x-ray of her left elbow and a January 31, 2010
medical report from Dr. Gaenslen who diagnosed symptoms of ulnar nerve compression at the
level of the elbow or possibly wrist and some lesser rotator cuff impingement syndrome.
By decision dated June 8, 2010, OWCP denied appellant’s claim for a schedule award. It
found that the medical evidence was not sufficient to establish impairment as a result of
appellant’s left trigger finger condition.
On May 5, 2011 appellant requested reconsideration of OWCP’s decision. She submitted
a July 8, 2010 magnetic resonance imaging (MRI) scan of the left shoulder, a July 19, 2010
diagnostic report documenting an MRI scan of the cervical spine and unsigned treatment notes
dated June 30 through August 11, 2010.
In an undated attending physician’s report, Dr. Devinder Verma, a treating physician,
diagnosed cervical radiculopathy and left ulnar neuropathy from lifting and bending at work over
time. In a July 12, 2010 report, Dr. Robert Taylor, Board-certified in physical medicine and
rehabilitation, documented appellant’s treatment and diagnosed left ulnar neuropathy at the
elbow.
By decision dated May 31, 2011, OWCP affirmed the June 8, 2010 decision, finding that
the medical evidence of record failed to establish that appellant had greater impairment to her
left arm.
Appellant requested reconsideration. In an April 11, 2012 note, Dr. Verma stated that
appellant’s condition had reached MMI since July 2010. He noted chronic left ulnar neuropathy,
tendinitis of left elbow and pain and weakness of the left hand and elbow. Dr. Verma opined that
appellant had moderate-to-severe disability based on 50 to 70 percent degrees of active and
passive motion of the left elbow and hand.
By decision dated August 6, 2012, OWCP affirmed the May 31, 2011 decision finding
that the evidence of record failed to establish that appellant had more than six percent
impairment of the left arm.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body.5 However, FECA does not
4

A.M.A., Guides (2009). On March 15, 2009 the Director exercised authority to advise that as of May 1, 2009
all schedule award decisions of OWCP should reflect use of the sixth edition of the A.M.A., Guides. The applicable
date of the sixth edition is as of the schedule award decision reached. It is not determined by either the date of MMI
or when the claim for such award was filed.
5

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

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specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides (6th ed.) has been adopted by the implementing regulations as
the appropriate standard for evaluating schedule losses.6
It is the claimant’s burden to establish that he or she has sustained a permanent
impairment of the scheduled member or function as a result of any employment injury7. OWCP
procedures provide that, to support a schedule award, the file must contain competent medical
evidence which shows that the impairment has reached a permanent and fixed state and indicates
the date on which this occurred (date of MMI), describes the impairment in sufficient detail so
that it can be visualized on review and computes the percentage of impairment in accordance
with the A.M.A., Guides.8
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).9 The net adjustment formula is
GMFH-CDX + GMPE-CDX + GMCS-CDX.
ANALYSIS
Appellant received schedule awards for left arm impairment of six percent for left lateral
epicondylitis.
OWCP also accepted appellant’s claim for left trigger finger due to an employmentrelated work injury. On September 19, 2009 appellant filed a claim for a schedule award. By
decisions dated June 8, 2010, May 31, 2011 and August 6, 2012, OWCP denied her claim,
finding that she had not submitted sufficient medical evidence to establish greater permanent
impairment resulting from this condition.
Appellant has not submitted sufficient evidence to establish that her left trigger finger
condition resulted in permanent impairment to her left arm. By letter dated October 8, 2009,
OWCP informed her of the evidence necessary to establish her schedule award claim and
requested that she submit an impairment evaluation from her attending physician in accordance
with the sixth edition of the A.M.A., Guides.
Appellant submitted various reports, including diagnostic studies, unsigned treatment
notes and medical reports documenting continued treatment for her cervical condition and left
6

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
7

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

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(b) (August 2002).
9

A.M.A., Guides 494-531.

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elbow. None of these reports addressed her left trigger finger or provided any impairment rating
based on this condition.
The April 11, 2012 medical note from Dr. Verma stated that appellant’s impairment had
reached MMI since July 2010. Dr. Verma noted chronic left ulnar neuropathy, tendinitis of left
elbow and pain and weakness of the left hand and elbow. He opined that appellant had
moderate-to-severe disability based on 50 to 70 percent degrees of active and passive motion of
the left elbow and hand. Dr. Verma did not provide a specific rating of the left trigger finger
condition.
The Board finds that Dr. Verma’s report is not sufficient to establish greater impairment.
The Board notes that OWCP procedures provide that maximum medical improvement must be
reached before a schedule award can be made.10 Dr. Verma noted appellant’s ulnar neuropathy
and tendinitis of the left elbow but failed to discuss appellant’s left trigger finger. The report is
insufficient to establish that appellant sustained any permanent impairment due to left trigger
finger.
It is appellant’s burden of proof to establish that she sustained a permanent impairment of
a scheduled member as a result of an employment injury.11 The medical evidence must include a
description of any physical impairment in sufficient detail so that the claims examiner and others
reviewing the file would be able to clearly visualize the impairment with its resulting restrictions
and limitations.12 Appellant did not submit such evidence and thus, OWCP properly denied her
schedule award claim.13
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that she is entitled to a schedule award.

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(a)(1) (October 1990).

11

See supra note 7.

12

See A.L., Docket No. 08-1730 (issued March 16, 2009).

13

V.W., Docket No. 09-2026 (issued February 16, 2010); L.F., Docket No. 10-343 (issued November 29, 2010).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated August 6, 2012 is affirmed.
Issued: June 21, 2013
Washington, DC

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

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

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

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

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

Docket No. 10-117
Issued: August 5, 2010

Case Submitted on the Record

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

JURISDICTION
On October 16, 2009 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated May 15, 2009 which denied appellant’s claim.
He also appealed a September 30, 2009 decision finding that he abandoned his request for a
hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of the claim.
ISSUES
The issues are: (1) whether appellant has met his burden of proof in establishing that he
sustained an emotional condition in the performance of duty; and (2) whether the Office properly
determined that he abandoned his request for a hearing.
FACTUAL HISTORY
On March 30, 2009 appellant, then a 56-year-old manager of customer service, filed a
traumatic injury claim alleging that on March 27, 2009 he experienced anxiety, insomnia and

depression as a result of his job. He noted that he became stressed out, overburdened, not stable
and “ready to go off.” Appellant stopped work on March 30, 2009.
In a letter dated April 2, 2009, the employing establishment controverted the claim
asserting that the claim was not established and that it was for an occupational disease instead of
a traumatic injury. On April 2, 2009 John Cordell, manager of operations, indicated that
appellant’s medical condition was not work related. He noted that medical documentation made
no mention that appellant’s stress was work related. Mr. Cordell further noted that appellant
volunteered to work at a higher level detail position with more responsibility and this detail
recently ended and he was returned to his original duty station which was a smaller station. He
noted that appellant recently married and this may be the reason for his stress, anxiety and
insomnia.
Appellant submitted a certificate of health care provider prepared by Dr. Kiumance
Kashi, a Board-certified internist, who treated him on December 16, 2008 and March 27, 2009.
Dr. Kashi noted that appellant’s condition commenced on March 15, 2009 and diagnosed
generalized anxiety disorder, sleep disorder, chronic insomnia and depression. He advised that
appellant would need time off for treatment from March 27 to September 27, 2009. Dr. Kashi
noted appellant’s condition caused flare-ups which would prevent him from performing his job
and opined that it was medically necessary for him to be absent from his job.
In a letter dated April 16, 2009, the Office advised appellant that the evidence was not
sufficient to establish that, he experienced an incident or employment factor alleged to cause
injury. It noted that appellant did not describe how the claimed injury occurred. The Office
requested that he submit additional information, including a detailed description of the
employment factors or incidents, which he believed had contributed to his claimed illness and a
comprehensive medical report from his treating physician, which included a reasoned
explanation as to how the specific work factors or incidents identified by appellant had
contributed to his claimed emotional condition.
Appellant submitted an undated duty status report from Dr. Kashi who noted that he had
no injury, but experienced traumatic stress. Dr. Kashi recommended appellant resume work, full
time, regular duty on September 20, 2009. He noted that appellant had difficulty with a previous
manager which was stress related.
In a decision dated May 15, 2009, the Office denied appellant’s claim on the grounds that
the record did not contain factual evidence describing work activities that appellant believed
caused or contributed to his emotional condition.
On May 29, 2009 appellant requested an oral hearing. On July 23, 2009 the Office
advised appellant that his telephonic hearing would be held September 8, 2009 at 11:30 a.m.,
Eastern Time. It instructed him to call the provided toll free number a few minutes before the
hearing time and enter the pass code to gain access to the conference call. The Office mailed the
July 23, 2009 letter to appellant’s address of record.
By decision dated September 30, 2009, the Office found that appellant had abandoned his
request for a hearing. It determined that he received a written notice of the hearing 30 days

2

before the scheduled hearing, but did not appear and did not explain his absence either before or
after the scheduled hearing.
LEGAL PRECEDENT -- ISSUE 1
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by factors of her federal employment.1 To establish appellant’s claim that she
sustained an emotional condition in the performance of duty, she must submit the following:
(1) medical evidence establishing that she has an emotional or psychiatric disorder; (2) factual
evidence identifying employment factors or incidents alleged to have caused or contributed to
her condition; and (3) rationalized medical opinion evidence establishing that the identified
compensable employment factors are causally related to her emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.4
There are situations where an injury or an illness has some connection with the employment, but
nevertheless does not come within the concept or coverage under the Act.5 When an employee
experiences emotional stress in carrying out her employment duties and the medical evidence
establishes that the disability resulted from her emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of an in the course of employment. This is
true when the employee’s disability results from her emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of her work.6
There are situations where an injury or an illness has some connection with the employment, but
nevertheless does not come within the concept or coverage under the Act. Where the disability
results from an employee’s emotional reaction to her regular or specially assigned duties or to a
requirement imposed by the employment, the disability comes within the coverage of the Act.
On the other hand the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.7

1

Pamela R. Rice, 38 ECAB 838 (1987).

2

Donna Faye Cardwell, 41 ECAB 730 (1990).

3

28 ECAB 125 (1976).

4

5 U.S.C. §§ 8101-8193.

5

See Anthony A. Zarcone, 44 ECAB 751, 754-55 (1993).

6

Lillian Cutler, supra note 3.

7

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, supra
note 3.

3

ANALYSIS -- ISSUE 1
Appellant’s claim form generally alleged that he was overburdened and forced to work
beyond his tolerance. He indicated that he experienced anxiety, insomnia and depression and
was stressed out, overburdened, not stable and ready to go off.
On April 16, 2009 the Office requested appellant submit factual evidence, including a
detailed description of the employment factors or incidents that he believed contributed to his
claimed illness. Appellant did not provide any additional factual information or discuss specific
incidents with respect to his claim. Consequently, the Board finds that appellant did not attribute
his claimed condition to any specific regular or specially assigned work duties under Cutler.
Regarding his assertion that he was forced to work beyond his tolerance, the Board notes
that assignment of duties beyond an employee’s work tolerance limitations can be a compensable
factor of employment.8 However, appellant has not provided any specific evidence establishing
that the employing establishment assigned him duties beyond his limitations. On April 2, 2009
appellant’s manager, Mr. Cordell indicated that appellant volunteered to work at a higher level
detail position with more responsibility and this detail recently ended. As noted, appellant
provided no further factual information supporting that he was required to work beyond any
work tolerance limitations and the record does not otherwise contain probative evidence
supporting appellant’s assertions that he was overworked or overburdened. Therefore, the Board
finds that appellant general allegation of being overburdened and forced to work beyond his
tolerance is not established is not a compensable factor of employment.9
Accordingly, the Board finds that appellant has not submitted sufficient factual evidence
identifying and establishing employment factors or incidents alleged to have caused or
contributed to his claimed emotional condition. Since appellant has not established a
compensable work factor, the Board will not address the medical evidence.10
LEGAL PRECEDENT -- ISSUE 2
The statutory right to a hearing under 5 U.S.C. § 8124(b)(1) follows the initial final merit
decision of the Office. Section 8124(b) provides as follows: Before review under section
8128(a) of this title, a claimant for compensation not satisfied with a decision of the Secretary [of
Labor] under subsection (a) of this section is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on her claim, before a representative of the
Secretary.

8

See Kim Nguyen, 53 ECAB 127 (2001).

9

See C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008) (perceptions and feelings alone are not
compensable; to establish entitlement to benefits, a claimant must establish a basis in fact for the claim by
supporting his allegations with probative and reliable evidence).
10

See Margaret S. Krzycki, 43 ECAB 496 (1992).

4

With respect to abandonment of hearing requests, Chapter 2.1601.6(e) of the Office’s
procedure manual provides in relevant part:
“(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement, the claimant has failed to appear at a
scheduled hearing and the claimant has failed to provide any notification for such
failure within 10 days of the scheduled date of the hearing. Under these
circumstances, [the Branch of Hearings and Review] will issue a formal decision
finding that the claimant has abandoned his or her request for a hearing and return
the case to the [district] Office.”11
ANALYSIS -- ISSUE 2
By decision dated May 15, 2009, the Office denied appellant’s emotional condition
claim. Appellant timely requested an oral hearing. In a July 23, 2009 letter, the Office notified
him that a telephonic hearing was scheduled for September 8, 2009 at 11:30 a.m. Eastern Time.
It instructed appellant to telephone a toll free number and enter a provided pass code to connect
with the hearing representative. Appellant did not telephone at the appointed time. He did not
request a postponement of the hearing or explain his failure to appear at the hearing within 10
days of the scheduled hearing date of September 8, 2009.12 The Board, therefore, finds that he
abandoned his request for a hearing.
On appeal appellant notes that he was still in the process of moving and he misplaced the
paperwork. That argument, however, submitted with his appeal on October 16, 2009 will begin
the 10-day period after the scheduled hearing, fails to justify his abandonment.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
developed an emotional condition in the performance of duty. The Board further finds that he
abandoned his request for an oral hearing.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999); see also G.J., 58 ECAB 651 (2007).
12

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the September 30 and May 15, 2009 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: August 5, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 11-607
Issued: December 7, 2011

Case Submitted on the Record

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

JURISDICTION
On January 13, 2011 appellant, through his representative, filed a timely appeal from the
October 4, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 13 percent impairment of his right lower
extremity, for which he received a schedule award.
FACTUAL HISTORY
Appellant, a 22-year-old baggage screener, experienced pain in his right knee on May 24,
2004, while picking up a bag from a table. He filed a claim for benefits, which was accepted for

1

5 U.S.C. § 8101 et seq.

torn anterior cruciate ligament (ACL) and sprained right knee. Appellant underwent
reconstructive surgeries to ameliorate his torn ACL on August 13, 2004 and March 17, 2006.
On June 10, 2008 appellant, through counsel, requested a schedule award based on a
partial loss of use of his right lower extremity.
In a March 12, 2008 report, received by OWCP on June 17, 2008, Dr. David O. Weiss, an
osteopath, found that appellant had a 19 percent permanent impairment of the right lower
extremity pursuant to the American Medical Association, Guides to the Evaluation of Permanent
Impairment (fifth edition) (A.M.A., Guides).
By letter dated May 28, 2009, OWCP advised Dr. Weiss that he should submit a new
report and impairment rating in conformance with the updated, sixth edition of the A.M.A.,
Guides, which became effective as of May 1, 2009.2
In an October 8, 2009 report, Dr. Weiss found that appellant had a 13 percent permanent
impairment of the right lower extremity pursuant to the A.M.A., Guides (sixth edition). He
found that appellant’s partial right knee meniscectomy rated a class 1 default impairment, 10
percent impairment at Table 16-9, page 520, which yielded a grade 3 impairment, for a severe
deficit, under the knee regional grid at Table 16-3, page 509 of the A.M.A., Guides.3 Applying
the net adjustment, grade modifier formula at pages 521-522 of the A.M.A., Guides,4 Dr. Weiss
found that the grade modifier at Table 16-6, page 516 for functional history was one, for a mild
problem; the grade modifier at Table 16-7, page 517 for physical examination was three, for
moderate atrophy and the grade modifier at Table 16-8, page 519 for clinical studies was a three,
based on the most recent magnetic resonance imaging scan results. He then subtracted the grade
modifier of one from each of these calculations, for a net adjusted grade modifier of zero for
functional history, grade modifier of two for physical examination and grade modifier of two for
clinical studies. Dr. Weiss added the totals of two and two for a net adjusted right extremity
impairment of four. He concluded that the overall, net adjusted impairment for the right lower
extremity was 13 percent.
In a January 31, 2010 report, OWCP’s medical adviser adopted Dr. Weiss’ findings and
conclusions and found that appellant had a 13 percent impairment of the right lower extremity.
By decision dated May 27, 2010, OWCP granted appellant a schedule award for 13
percent permanent impairment of the right lower extremity for a total of 37.44 weeks of
compensation during the period March 12 to November 29, 2008.
By letter dated June 14, 2010, counsel requested a review of the written record. He
contended that OWCP failed to make a timely schedule award determination under the fifth
edition of the A.M.A., Guides and thereby deprived appellant of his due process rights and
2

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).
As of May 1, 2009, the sixth edition will be used. FECA Bulletin No. 09-03 (issued March 15, 2008).
3

A.M.A., Guides 509.

4

Id. at 521-522.

2

benefits under FECA. Counsel argued that its delay in adjudicating this schedule award claim
reduced the amount of appellant’s schedule award; he noted that the adoption of the sixth edition
of the A.M.A., Guides substantially revised the evaluation methods used in previous editions of
the A.M.A., Guides and consequently resulted in a dramatic decrease in the percentage of
impairment calculated in schedule awards.
By decision dated October 4, 2010, OWCP’s hearing representative affirmed the May 27,
2010 decision.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.8
ANALYSIS
In its May 27, 2010 decision OWCP granted appellant a schedule award for a 13 percent
right lower extremity impairment. The section of the A.M.A., Guides which rates diagnosisbased impairments for the lower extremities is located at Chapter 16, which states at page 497,
section 16.2a that impairments are defined by class and grade. This section states:
“The Impairment Class (IC) is determined first, by using the corresponding
diagnosis-based regional grid. The grade is then determined using the adjustment
grids.
“Once the impairment class has been determined, based on the diagnosis, the
grade is initially assigned the default value, C. The final impairment grade,
within the class, is calculated using the grade modifiers or [nonkey] factors, as
described in [s]ection 16.3. Grade modifiers include functional history, physical
examination and clinical studies. The grade modifiers are used on the net
adjustment formula described in [s]ection 16.3d to calculate a net adjustment.

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

7

Id.

8

Veronica Williams, 56 ECAB 367, 370 (2005).

3

The final impairment grade is determined by adjusting the grade up or down the
default value C. by the calculated net adjustment.”9
Using the formula above and the net adjustment formula outlined at pages 516-18 and
521-22 of the A.M.A., Guides, Dr. Weiss properly found that appellant had a class 1 default
impairment and a grade 3 impairment for his partial meniscectomy; a grade 1 impairment for
functional history; a grade 3 impairment for physical examination; and a grade 3 impairment for
clinical studies. He then applied the net adjustment formula at pages 521-22 of the A.M.A.,
Guides. Using the net adjustment formula for functional history at Table 16-6 and physical
examination and clinical studies at Table 16-7, Dr. Weiss subtracted the grade modifier of one
from each of these categories, then added the results for an adjusted net impairment of four. He
combined these figures and found that appellant had an adjusted 13 percent right lower extremity
impairment.
The Board finds that appellant has a 13 percent permanent impairment of his right lower
extremity, because this rating was based on the applicable protocols and tables of the sixth
edition of the A.M.A., Guides. Appellant did not submit any medical evidence to support an
additional schedule award greater than 13 percent for the right lower extremity, the Board will
affirm OWCP’s October 4, 2010 decision.
On appeal, appellant’s attorney asserts, as he did below, that he has a property right in a
schedule award benefit under the fifth edition of the A.M.A., Guides and that a protected
property interest cannot be deprived without due process, citing Goldberg v. Kelly, 397 U.S. 254
(1970) and Mathews v. Eldridge, 424 U.S. 319 (1976). In Harry D. Butler,10 the Board noted
that Congress delegated authority to the Director regarding the specific methods by which
permanent impairment is to be rated. Pursuant to this authority, the Director adopted the
A.M.A., Guides as a uniform standard applicable to all claimants and the Board has concurred in
the adoption.11 On March 15, 2009 the Director exercised authority to advise that as of May 1,
2009 all schedule award decisions of OWCP should reflect use of the sixth edition of the
A.M.A., Guides.12 The applicable date of the sixth edition is as of the schedule award decision
reached. It is not determined by either the date of maximum medical improvement or when the
claim for such award was filed.
The Board finds that appellant has a 13 percent permanent impairment of his right lower
extremity, as this rating was based on the applicable protocols and tables of the sixth edition of
the A.M.A., Guides. As appellant did not submit any medical evidence to support an additional
schedule award greater than the 13 percent for the right lower extremity already awarded, the
Board will affirm OWCP’s October 4, 2010 decision.
9

A.M.A., Guides 497.

10

43 ECAB 859 (1992).

11

Id. at 866.

12

FECA Bulletin No. 09-03 (issued March 15, 2009). The FECA Bulletin was incorporated in the Federal
(FECA) Procedure Manual, Part 2 -- Claims, Schedule Award & Permanent Disability Claims, Chapter 2.808.6(a)
(January 2010).

4

CONCLUSION
The Board finds that appellant has no more than a 13 percent permanent impairment of
the right lower extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
October 4, 2010 decision is affirmed.
Issued: December 7, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Charleston, WV,
Employer
__________________________________________

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

Docket No. 19-1884
Issued: May 29, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 12, 2019 appellant filed a timely appeal from a July 24, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a lower back
condition causally related to the accepted February 28, 2019 employment incident.

1
2

5 U.S.C. § 8101 et seq.

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

FACTUAL HISTORY
On March 12, 2019 appellant, then a 41-year-old labor custodian, filed a traumatic injury
claim (Form CA-1) alleging that, on February 28, 2019, he sustained a lower back injury when
pulling on a dock plate at the trash dumper while in the performance of duty. He stopped work on
March 11, 2019.
In support of his claim, appellant submitted a position description and work excuse slips
dated March 11 and 25, 2019 from Dr. Jennifer Runyan, a chiropractor, restricting his return to
work until April 1, 2019.
In reports dated March 7, 8, 13, and 18, 2019, Dr. Runyan noted that appellant presented
to her office with complaints of low back and buttock pain that was first noticed one week prior
after lifting a heavy object at work. She diagnosed lumbar sprain and strain of lower back.
On March 11, 2019 Lindsay Pittman, a licensed massage therapist, provided palliative care
in the form of manipulation and myofascial release in accordance with appellant’s treatment plan.
In a March 29, 2019 development letter, OWCP advised appellant of the deficiencies in his
claim. It informed him of the type of evidence necessary to establish his claim and provided a
questionnaire for his completion regarding the facts and circumstances of the injury. OWCP
afforded appellant 30 days to respond.
Appellant submitted a narrative statement dated April 1, 2019 indicating that on
February 28, 2019 he was at the end of the dock with, a coworker, S.D., waiting for a trash
container to be replaced. The container was replaced, but the dock plate was left in an upright
position and needed to be lifted up and swiveled out in order to dump the hoppers. Appellant
proceeded to squat down, grip the dock plate, and attempt to lift and swivel it, but it was very
heavy and he felt a strain as if his lower back gave out. He noted that the dock plate was very old,
appeared bent, and was not easy to operate due to excessive weight and rough operation. Appellant
alleged that over the course of a week his pain became gradually worse and he experienced sharp
back pain, limited mobility, and was unable to lean forward. He denied similar disability or
symptoms before the injury.
In an x-ray report dated March 7, 2019 and a medical report of even date, Dr. Runyan
diagnosed subluxation of the left pelvis, L5, right L4, sacrum, and right pelvis, as well as lumbago,
sacroiliitis, and muscle spasm of back.
Appellant submitted additional reports from Dr. Runyan dated March 19 through April 19,
2019 in which she continued to note her findings on examination and the treatment provided.
In an April 5, 2019 work excuse slip, Dr. Runyan released appellant to work on April 6,
2019 with restrictions of no lifting over 15 pounds and no prolonged standing or sitting. An
April 18, 2019 magnetic resonance imaging (MRI) scan of the lumbar spine, signed by
Dr. James J. Baek, a Board-certified diagnostic radiologist, revealed a moderate-sized disc
protrusion at L4-5 asymmetric to the left with minimal canal and foraminal stenosis and minimal
left neural foraminal narrowing at L5-S1.

2

In a duty status report (Form CA-17) dated April 24, 2019, Dr. Runyan diagnosed
myospasm, subluxation, and antalgic lean and indicated that appellant could resume full-time work
with restrictions. She opined that appellant injured his back on “February 8, 2019” while lifting a
dock plate.
In an attending physician’s report (Form CA-20) dated April 24, 2019, Dr. Runyan noted
a history of lower back pain and right leg pain due to a lifting injury at the loading dock. She
diagnosed degenerative disc disease, disc herniation, subluxation, myospasm, and noted an altered
gait/posture. Dr. Runyan checked a box marked “Yes” indicating her opinion that appellant’s
conditions were caused or aggravated by an employment activity and noted that he had no prior
pain before lifting the dock plate at work.
On May 1, 2019 appellant accepted a modified limited-duty assignment as a maintenance
mechanic.
By decision dated May 6, 2019, OWCP denied the claim finding that the evidence of record
was insufficient to establish causal relationship between the accepted February 28, 2019
employment incident and appellant’s diagnosed conditions.
On May 29, 2019 appellant requested reconsideration and submitted a series of reports
dated March 7 through May 20, 2019 from Dr. Runyan who continued to diagnose lumbar sprain,
strain of lower back, lumbago with sciatica, right side, sacroiliitis, and muscle spasm of back. On
May 20, 2019 Dr. Runyan concluded that appellant had reached the goal of returning to preinjury
status.
In a May 23, 2019 narrative report, Dr. Runyan again noted that appellant first presented
to her office on May 7, 2019, following a February 28, 2019 work injury. At that time, he described
that his pain had started immediately after lifting/pulling on a dock plate and indicated that an
incident report had been filed with his employer. Dr. Runyan was treated for the injury and was
released to work on April 6, 2019. He opined that appellant’s injury was a direct result of him
lifting/pulling the loading dock plate on February 28, 2019.
By decision dated July 24, 2019, OWCP denied appellant’s claim, as modified, finding that
the evidence of record was insufficient to establish a valid medical diagnosis from a qualified
physician in connection with the accepted February 28, 2019 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
3

See supra note 1.

4
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).

3

the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment incident
at the time, place, and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.7
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.8 Neither the mere fact that a disease or condition
manifests itself during a period of employment, nor the belief that a disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.9
ANALYSIS
The Board finds that the case is not in posture for decision.
Section 8101(2) of FECA10 provides that the term physician, as used therein, includes
chiropractors only to the extent that their reimbursable services are limited to treatment consisting
of manual manipulation of the spine to correct subluxation, as demonstrated by x-ray to exist and
subject to regulations by the Secretary.11 As Dr. Runyan diagnosed subluxation based on her
review of an x-ray report dated March 7, 2019, she is a qualified physician under FECA and her
opinion constitutes competent medical evidence.12 In a series of medical reports she provided
diagnoses. In reports dated March 8, 13, and 18, 2019, Dr. Runyan diagnosed lumbar sprain and
strain of lower back. On March 7, 2019 she diagnosed subluxation at of the left pelvis, L5, right
5

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

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7
K.L., Docket No. 18-1029 (issued January 9, 2019); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee),
10.5(q) (traumatic injury and occupational disease defined, respectively).
8

H.B., Docket No. 18-0781 (issued September 5, 2018).

9

D.H., Docket No. 18-1410 (issued March 21, 2019).

10

5 U.S.C. § 8101(2).

11

See 20 C.F.R. § 10.311; R.H., Docket No. 18-1544 (issued March 4, 2019); M.B., Docket No. 17-1378 (issued
December 13, 2018).
12

Id.; see also R.A., Docket No. 19-0650 (issued January 15, 2020).

4

L4, sacrum, and right pelvis, as well as lumbago, sacroiliitis, and muscle spasm of back. On
April 24, 2019 Dr. Runyan diagnosed degenerative disc disease, disc herniation, subluxation,
myospasm, and noted an altered gait/posture. The Board thus finds that Dr. Runyan has provided
valid medical diagnoses in association with appellant’s claim.
Additionally, the record contains medical evidence from Dr. Baek who diagnosed disc
protrusion at L4-5 and left neural foraminal narrowing at L5-S1 based on an April 18, 2019 MRI
scan of the lumbar spine.
As the medical evidence of record establishes diagnosed conditions, the case must be
remanded for consideration of the medical evidence with regard to the issue of causal
relationship.13 Following such further development as deemed necessary, OWCP shall issue a
de novo decision.14
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 24, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this opinion of the Board.
Issued: May 29, 2020
Washington, DC

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

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

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

13

D.P., Docket No. 19-1407 (issued February 13, 2020).

14

E.C., Docket No. 19-0854 (issued October 17, 2019).

5


`United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Linthicum, MD, Employer
__________________________________________

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

Docket No. 13-1141
Issued: September 5, 2013

Case Submitted on the Record

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

JURISDICTION
On April 10, 2013 appellant filed a timely appeal from a December 21, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for an
employment-related injury and a February 15, 2013 nonmerit decision denying her request for
reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits and nonmerits of this
case.2
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained left elbow and shoulder conditions in the performance of duty causally related to
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the February 15, 2013 OWCP decision and on appeal, appellant
submitted new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time
it issued its final decision. See 20 C.F.R. § 501.2(c)(1).

factors of her federal employment; and (2) OWCP properly refused to reopen appellant’s case for
further reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that additional medical information he submitted may have
crossed transmittal in the mail of the reconsideration letter and, thus, may not have been
considered at the time of the December 21, 2012 OWCP decision.
FACTUAL HISTORY
On September 21, 2012 appellant, then a 55-year-old transportation security officer, filed
an occupational disease claim (Form CA-2) alleging that she sprained her arm and shoulder due
to factors of her federal employment, including consistently handling luggage all day at work,
lifting, pulling, checking, transporting luggage from one place to the next. She first became
aware of her condition and attributed it to her federal employment on September 11, 2012.
Appellant worked full-time, modified duty beginning September 12, 2012 and returned to full
duty without restrictions on September 18, 2012.
By letter dated October 11, 2012, OWCP requested additional factual and medical
information from appellant. It allotted her 30 days to submit additional evidence and respond to
its inquiries.
Subsequently, appellant submitted an October 16, 2012 narrative statement indicating
that her light-duty position required moving, lifting, pushing and carrying bags from several
heights, to and from different locations.
In a September 11, 2012 report, Dr. Hamida K. Patel, an internist at Patient First Urgent
Care, diagnosed left elbow and shoulder sprains and indicated that appellant injured her left
shoulder on August 22, 2012 around 5:00 p.m. as a result of moving luggage. She indicated that
appellant was required to lift more than 50 pounds of luggage at work. Dr. Patel released
appellant to light duty effective September 12, 2012 with restrictions on lifting no more than 10
pounds and no repeated activity of the left hand.
On September 15, 2012 Dr. Xiaohua Yan, a Board-certified family practitioner at Patient
First Urgent Care, diagnosed left shoulder sprain and opined that appellant was not able to return
to full duty.
In an October 15, 2012 report, Dr. Motti B. Mulleta, a Board-certified internist at Patient
First Urgent Care, diagnosed left shoulder sprain and found mild osteoarthritis of the left
shoulder upon x-ray review.
By decision dated December 21, 2012, OWCP denied the claim on the basis that the
medical evidence failed to establish a causal relationship between the diagnosed conditions and
the implicated employment factors.
On February 7, 2013 appellant requested reconsideration, indicating that OWCP would
receive additional medical evidence from her health care center.

2

By decision dated February 15, 2013, OWCP denied appellant’s request for
reconsideration of the merits finding that she neither raised substantive legal questions nor
included new and relevant evidence. It noted that additional medical evidence was not received
as part of the reconsideration request.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, and that an injury4 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. The opinion of the physician must
be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.7
ANALYSIS -- ISSUE 1
The Board finds that appellant did not establish that federal employment factors caused
or aggravated her left elbow and shoulder conditions. While appellant submitted a statement in
which she identified the factors of employment that she believed caused her condition, she must

3

5 U.S.C. §§ 8101-8193.

4

OWCP regulations define an occupational disease or illness 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).
5

See O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004).

6

See D.R., Docket No. 09-1723 (issued May 20, 2010). See Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

See O.W., supra note 5.

3

also submit rationalized medical evidence which explains how her medical conditions were
caused or aggravated by the implicated employment factors.8
On September 11, 2012 Dr. Patel diagnosed left elbow and shoulder sprains and indicated
that appellant injured her left shoulder on August 22, 2012 around 5:00 p.m. by moving luggage.
She indicated that appellant was required to lift more than 50 pounds of luggage at work.
Dr. Patel released appellant to light duty effective September 12, 2012 with restrictions on lifting
no more than 10 pounds and no repeated activity of the left hand. She provided firm diagnoses
and identified appellant’s work duties. However, Dr. Patel failed to provide a rationalized
opinion explaining how factors of appellant’s federal employment, such as moving, lifting,
pushing and carrying bags, caused or aggravated her left elbow and shoulder conditions. The
Board has held that the mere fact that appellant’s symptoms arise during a period of employment
or produce symptoms revelatory of an underlying condition does not establish a causal
relationship between appellant’s condition and her employment factors.9 Without thorough
medical rationale to explain that causal relationship, Dr. Patel’s report is insufficient to establish
that appellant had an employment-related injury.
On September 15, 2012 Dr. Yan diagnosed left shoulder sprain and opined that appellant
was not able to return to full duty. On October 15, 2012 Dr. Mulleta diagnosed left shoulder
sprain and found mild osteoarthritis of the left shoulder upon x-ray review. Although they
provided firm diagnoses, Drs. Yan and Mulleta did not provide a rationalized medical opinion as
to how the implicated factors of appellant’s federal employment, such as moving, lifting, pushing
and carrying bags, caused or aggravated her left elbow and shoulder conditions. Therefore,
appellant failed to meet her burden of proof with these submissions.
Because appellant did not offer rationalized medical evidence to support her allegation
that she sustained an injury causally related to the indicated employment factors, she failed to
meet her burden of proof to establish a claim.
On appeal, appellant contends that additional medical information submitted may have
crossed transmittal in the mail with the reconsideration letter and, was not considered in time of
the December 21, 2012 OWCP decision. She 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
To require OWCP to reopen a case for merit review under section 8128 of FECA,10
OWCP regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
8

A.C., Docket No. 08-1453 (issued November 18, 2008); Donald W. Wenzel, 56 ECAB 390 (2005); Leslie C.
Moore, 52 ECAB 132 (2000).
9

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

10

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, 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 U.S.C. § 8128(a).

4

considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.11 When a claimant fails to meet one of the above standards, OWCP will
deny the application for reconsideration without reopening the case for review of the merits.12
ANALYSIS -- ISSUE 2
On February 7, 2013 appellant requested reconsideration, indicating that OWCP would
receive additional medical evidence from her health care center. In its February 15, 2013
decision, OWCP denied her request, noting that there was no additional medical evidence. The
record shows in fact that OWCP did not receive any additional medical evidence from or on
behalf of appellant.
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law or advance a relevant legal argument not previously considered by OWCP. Because she did
not submit any evidence with her request for reconsideration, the Board finds that she did not
meet any of the necessary requirements and is not entitled to further merit review.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained left elbow and shoulder conditions in the performance of duty causally related to
factors of her federal employment. The Board further finds that OWCP properly refused to
reopen her case for further reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).

11

20 C.F.R. § 10.606(b)(3). See Susan A. Filkins, 57 ECAB 630 (2006).

12

Id. at § 10.608(b). See Tina M. Parrelli-Ball, 57 ECAB 598 (2006) (when an application for review of the
merits of a claim does not meet at least one of the three regulatory requirements OWCP will deny the application for
review without reviewing the merits of the claim).

5

ORDER
IT IS HEREBY ORDERED THAT the February 15, 2013 and December 21, 2012
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 5, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 16-1602
Issued: May 22, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 3, 2016 appellant filed a timely appeal from a June 21, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant is entitled to wage-loss compensation for intermittent dates
of disability from August 18, 2014 to September 16, 2015 causally related to her accepted
employment injury.
FACTUAL HISTORY
On November 26, 2014 appellant, then a 27-year-old city carrier assistant, filed an
occupational disease claim (Form CA-2) alleging that she sustained pain in her feet and legs
1

5 U.S.C. § 8101 et seq.

bilaterally causally related to factors of her federal employment. She related that her symptoms
began in August 2014 and increased on October 21, 2014 such that she sought treatment in the
emergency room.
On October 22, 2014 a physician assistant found that appellant should be excused from
work for one week beginning that date. A nurse practitioner, in a December 30, 2014 disability
certificate, advised that appellant was off work three days and could resume work on
January 5, 2015.
Appellant, on January 7, 2015, accepted a modified position at the employing
establishment. The job required intermittent standing and walking for four hours per day,
intermittent driving for two hours per day, intermittent lifting and carrying for four hours per
day, and intermittent pushing, pulling, and grasping for four hours per day. The job offer
provided that it would remain within the restrictions set forth by her physician and was subject to
revision based on the limitations provided by her physician. The offer specified appellant’s
current restrictions as no walking over two hours per day.
OWCP accepted the claim for bilateral plantar fasciitis and heel spurs.2
Appellant, on September 8, 2015, filed a claim for compensation (Form CA-7) for
intermittent dates of disability from August 2014 to August 2015. Regarding the dates relevant
to this appeal, in accompanying time analysis forms, she advised that she was off work as her
manager could not accommodate her restrictions on August 18, October 26 and 29, and
December 15, 2004, and September 3, 2015. Appellant alleged that she was unable to work due
to swollen feet on October 17 and 20, 2014 and August 22, 2015, and was in the hospital on
October 21 and 22, 2014. She did not work for 28 hours from December 30, 2014 to January 3,
2015, 32 hours from February 2 to 5, 2015, 56 hours from February 9 to 17, 2015, and 8 hours
on July 13, 2015 on the instructions of her physician. Appellant claimed eight hours of time lost
on December 30, 2014, January 30, February 11, 17, and 25, March 5, April 29, and July 13,
2015 for medical appointments. She requested compensation from September 9 to 11 and 15 to
16, 2015 as she was unable to work as a result of swelling in her feet.
On September 21, 2015 the employing establishment noted discrepancies in some of the
dates of compensation claimed by appellant on the CA-7 forms sent to OWCP on
September 21, 2015. It contended that there was no medical evidence supporting disability on
certain dates and also that some dates lacked a priority assignment worksheet. The employing
establishment further advised that appellant had the Sunday occurring from October 20 to 29,
2014 as an off day and also worked for 8.37 hours during this period.
Appellant submitted evidence to support her claim. In a January 26, 2015 form report,
Dr. Khae V. Saephanh, an osteopath, advised that he had initially evaluated appellant on
October 21, 2014. He diagnosed plantar fasciitis and noted that her bilateral foot pain increased
2

By decision dated January 8, 2015, OWCP had previously denied appellant’s claim as the medical evidence was
insufficient to support that she sustained a diagnosed condition due to the identified work factors. In a decision
dated August 18, 2015, an OWCP hearing representative reversed the January 8, 2015 and accepted the claim for
bilateral plantar fasciitis and heel spurs.

2

when she worked as a mail carrier. Dr. Saephanh opined that appellant could walk one hour per
day.
On January 29, 2015 a nurse practitioner found that appellant could work four hours a
day three days a week beginning January 30, 2015. On February 2, 2015 the nurse practitioner
requested that appellant be excused from work early on January 30, 2015 and for one week
beginning February 2, 2015. The nurse practitioner opined that appellant could resume work on
February 10, 2015.
Dr. Liu, on February 9, 2015, advised that appellant could return to work on February 10,
2015 with restrictions until March 5, 2015 of no walking more than two hours a day with 10minute breaks for each 20 minutes of walking.
On February 11, 2015 a nurse practitioner advised that appellant could not work for two
days and could resume modified work on February 14, 2015. On February 17, 2015 he indicated
that she could return to work with restrictions. On February 25, 2015 the nurse practitioner
noted that appellant received treatment on that date and could return to work on
February 26, 2015.
In a form report dated April 29, 2015, Dr. Richard A. Nolan, a Board-certified orthopedic
surgeon, diagnosed plantar fasciitis, checked a box marked “yes” that the history provided on the
form corresponded to that given by appellant, and listed work restrictions of walking up to four
hours per day intermittently for two hours at a time and standing up to two hours per day.3
By letter dated October 5, 2015, OWCP advised appellant that medical evidence from a
nurse or physician assistant must be countersigned by a physician to constitute medical evidence.
It requested that she clarify the dates that she was off work due to disability, medical
appointments, or work not being available and informed her of the medical evidence required to
establish disability.
On October 21, 2015 Dr. Liu cosigned the December 30, 2014 and the January 29,
February 2, 11, 17, and 25, 2015 reports from the nurse practitioner.
Appellant’s supervisor signed an acknowledgement of a list of dates that the employing
establishment did not have work available within her restrictions. Regarding the dates relevant
to this appeal, the supervisor indicated that there was no work available within her restrictions
from October 26 to December 24, 2015.
By decision dated December 9, 2015, OWCP found that appellant was entitled to
compensation for 882.24 hours from August 18, 2014 to September 16, 2015. It determined,
however, that there was no medical evidence supporting her claim for lost time from work for 8
hours on August 18 and October 17, 20, and 22, 2014; 28 hours from December 30, 2014 to
3

Dr. Nolan evaluated appellant on April 10, 2015. He noted that she worked with restrictions and in
November 2014 began working four hours a day four days a week. Appellant was off work for a period as there was
no work available. In January 2015 she again worked four hours a day for four days a week. Dr. Nolan attributed
appellant’s bilateral foot condition to her employment activities. He found that she could work full time with
walking no more than 2 hours at a time with a 30-minute break and driving limited to 1 hour per day.

3

January 8, 2015; 8 hours on January 30, 2015; 32 hours from February 2 to 5, 2015; 56 hours
from February 9 to 17, 2015; 8 hours on February 25 and March 5, 2015; 4 hours on April 29,
2015; 8 hours on July 13, August 22, and September 3, 2015; 20 hours from September 9 to 11,
2015; and 16 hours from September 15 to 16, 2015. It further determined that she was not
entitled to eight hours of compensation on October 26, 2014 because it was for a Sunday, a day
she was off work. OWCP noted that the employing establishment advised that she worked full
time on October 29, 2014 and that it paid her sick leave on December 15, 2014.
Appellant, on January 7, 2016, requested a review of the written record by an OWCP
hearing representative.
In a progress report dated December 30, 2014, received by OWCP on January 15, 2016, a
nurse practitioner evaluated appellant for foot pain. The nurse diagnosed “fasciitis plantar” and
indicated that he had provided a disability slip.
In a decision dated June 21, 2016, an OWCP hearing representative affirmed the
December 9, 2015 decision. She found that appellant had not submitted medical evidence
supporting her claim for employment-related intermittent disability for the hours denied from
August 18, 2014 to September 16, 2015.4
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.5 For each period of
disability claimed, he or she has the burden of proof to establish that he or she was disabled for
work as a result of the accepted employment injury.6 Whether a particular injury causes an
employee to become disabled for work, and the duration of that disability, are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.7
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.8 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.9 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages that he or she was receiving
at the time of injury, has no disability and is not entitled to compensation for loss of wage4

The hearing representative’s decision actually indicated that the denial of intermittent compensation was
through September 18, 2015. This appears to be a typographical error as the evidence set forth, supra, indicates that
the denial was for dates through September 16, 2015.
5

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986.

6

See Amelia S. Jefferson, id.

7

See Edward H. Horton, 41 ECAB 301 (1989).

8

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); 20 C.F.R. § 10.5(f).

9

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

4

earning capacity.10 When, however, the medical evidence establishes that the residuals or
sequelae of an employment injury are such that, from a medical standpoint, they prevent the
employee from continuing in her employment, she is entitled to compensation for any loss of
wages.
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
OWCP accepted that appellant sustained bilateral plantar fasciitis and heel spurs causally
related to factors of her federal employment. It denied her claim for compensation for
intermittent disability from August 8, 2014 to September 16, 2015 as she had not established that
she was receiving medical treatment for her accepted work injury, disabled from her modified
work, or that the employing establishment did not have work available within her restrictions.
Appellant claimed that she was unable to work on October 17 and 20, 2014, August 22,
2015, and intermittently from September 9 to 11 and 15 to 16, 2015 because her feet were
swollen. She has not, however, submitted any medical evidence supporting that she was unable
to work on the dates claimed. As discussed, 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.12 Accordingly, the Board finds that
appellant has not established entitlement to wage-loss compensation on these dates.
The Board further finds that the medical evidence is insufficient to support that appellant
was unable to work for 28 hours from December 31, 2014 to January 3, 2015, 32 hours from
February 2 to 5, 2015, 56 hours from February 9 to 17, 2015, and 8 hours on July 13, 2015.
Appellant contended that she was off work during this period on the advice of her physician. In
a disability certificate dated December 30, 2014, a nurse practitioner found that appellant could
not work until January 5, 2015. In an accompanying report, the nurse practitioner evaluated her
for foot pain. Dr. Liu cosigned the disability certificate on October 21, 2015. She, however, did
not provide an opinion explaining why appellant’s symptoms increased such that she was unable
to work from December 30, 2014 to January 5, 2015, and thus the evidence is of diminished
probative value.13 Such rationale is particularly important as Dr. Liu’s opinion on her ability to
work is not based upon a contemporaneous examination.14

10

Merle J. Marceau, 53 ECAB 197 (2001).

11

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

12

See S.F., Docket No. 15-0480 (issued November 4, 2015).

13

See M.H., Docket No. 15-0071 (issued March 13, 2015); P.D., Docket No. 11-0545 (issued October 21, 2011).

14

See R.B., Docket No. 16-0169 (issued February 23, 2016).

5

On February 9, 2015 Dr. Liu advised that appellant was unable to work on that date, but
could resume work on February 10, 2015 with restrictions. She did not, however, provide any
findings on examination or address causation, and thus her opinion is insufficient to support
disability on February 9, 2015.15
Regarding the February 11, 2015 report signed by a nurse practitioner, the Board notes
that nurse practitioners are not considered “physicians” under FECA and cannot render a medical
opinion.16
In a disability certificate dated February 17, 2015 and cosigned by Dr. Liu on October 21,
2015, a nurse practitioner found that appellant could return to work with restrictions on that date.
The report does not establish disability for any of the claimed period and is thus insufficient to
meet appellant’s burden of proof. The record further does not have any medical evidence
supporting disability on July 13, 2015.
Appellant requested compensation for time lost on October 21 and 22, 2014 because she
was in the hospital, and for December 30, 2014 and January 30, February 25, March 5, and
April 29, 2015 due to medical appointments. There is no evidence that she received medical
treatment on October 21, 2014, January 30, and March 5, 2015. On April 29, 2015 OWCP paid
appellant compensation for four hours of time lost for a medical appointment on April 29, 2015,
the most allowed for a routine medical appointment.17 On October 22, 2014 a physician assistant
indicated that she should be excused from work on that date. On December 30, 2014 a nurse
practitioner advised that appellant could not return to work at that time, and on February 25,
2015 a nurse practitioner indicated that she received treatment on that date. Dr. Liu later signed
these reports on October 21, 2015, rendering them medical reports. OWCP found that there was
no medical evidence supporting disability on these dates, but did not consider whether appellant
was entitled to four hours of compensation on those dates for attending a medical appointment.
The case, therefore, must be remanded for OWCP to evaluate whether appellant was entitled to
compensation for lost wages for attending medical appointments on October 22 and
December 30, 2014 and February 25, 2015 causally related to the accepted work injury.
Appellant additionally claimed that the employing establishment did not have work
available within her restrictions on August 18, October 26 and 29, and December 15, 2014, and
September 3, 2015. She submitted an October 22, 2015 statement from her supervisor
acknowledging the dates that there was no work available within her restrictions. The
15

See Sandra D. Pruitt, 57 ECAB 126 (2005); Laurie S. Swanson, 53 ECAB 517 (2002).

16

R.E., Docket No. 16-1568 (issued February 9, 2017) (nurse practitioners are not considered physicians as
defined by FECA).
17

If a claimant has returned to work following an accepted injury or the onset of an occupational disease and
must leave work and lose pay or use leave to undergo treatment, examination or testing for the accepted condition,
compensation should be paid for wage loss under section 8105 of FECA, while undergoing the medical services and
for a reasonable time spent traveling to and from the location where services were rendered. 5 U.S.C. § 8105. For a
routine medical appointment, a maximum of four hours of compensation is usually allowed. See Federal (FECA)
Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 2.901.19(c) (February 2013); see also
William A. Archer, 55 ECAB 674 (2004).

6

dates included October 26, 29, and December 15, 2014, but not August 18, 2014 or
September 3, 2015.
As to August 18, 2014 and September 3, 2015, the Board finds no evidence to establish
appellant’s claim that there was no work available for her within her restrictions. On
September 21, 2015 the employing establishment advised that appellant worked 8.37 hours
during the period October 20 to 29, 2014, but that October 26, 2014 was a Sunday, a scheduled
day off. It also noted that she received 7.65 hours of sick leave on December 15, 2015.
OWCP found that she had October 26, 2014 off work as it was a Sunday, that she worked
on October 29, 2014, and received sick leave on December 15, 2014. The employing
establishment, however, noted that there was no work available for appellant on October 26, 29,
and December 15, 2014. The Board finds, therefore, that the record contains conflicting
information from the employing establishment regarding whether appellant worked on
October 29, 2014 and received sick leave on December 15, 2014 or whether there was no work
available and whether appellant was off work on Sunday, October 26, 2014 or that she was off
work because there was no work available.
On remand OWCP should obtain clarification from the employing establishment
regarding appellant’s status on those dates prior to determining whether she is entitled to
compensation. Following such further development, it shall issue a de novo decision.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she is
entitled to wage-loss compensation for dates on October 17, 20, and 21, 2014, December 31,
2014 to January 3, 2015, January 30, February 9 to 17, March 5, July 13, August 22, and
September 9 to 11 and 15 to 16, 2015. The Board further finds that the case is not in posture for
decision regarding whether she is entitled to wage-loss compensation on October 22, 26, and 29,
December 15 and 30, 2014, and February 25, 2015.

7

ORDER
IT IS HEREBY ORDERED THAT the June 21, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: May 22, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Chicago, II, Employer
)
___________________________________________ )
M.O., Appellant

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

Docket No. 16-0106
Issued: March 8, 2016

Case Submitted on the Record

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

JURISDICTION
On October 16, 2015 appellant filed a timely appeal from a May 26, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether the accepted work incident of October 29, 2014 caused an injury in
the performance of duty.
FACTUAL HISTORY
On October 30, 2014 appellant, then a 49-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained mental stress in the performance of duty on
October 29, 2014. He did not stop work.
1

5 U.S.C. § 8101 et seq.

In an October 30, 2014 statement, appellant indicated that on October 29, 2014 at
approximately 10:30 a.m., he was delivering mail on the 8500 block of Kingston, when he
noticed a young man on the opposite side of the street watching him delivering mail. He noted
that when he completed his delivery, the man was standing next to his employing establishment
vehicle. Appellant explained that the man was staring at him and when appellant asked him if he
needed something, the man stated, “why are you staring at me?” He explained that he
immediately got into his vehicle and left. As appellant was leaving, he looked into his rearview
mirror and that was when he noticed that the individual pulled a gun out of his pocket. Appellant
notified the police and his supervisor.
By letter dated November 10, 2014, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim and requested that he submit additional supportive factual
and medical evidence.
In a November 20, 2014 statement, appellant explained that his statement was revised.
He noted that the man who was staring at him, was pulling a gun in and out of his pocket and he
felt threatened. Appellant advised that he immediately got into his vehicle and drove off. He
explained that he looked in his rearview mirror and saw the guy pull the gun out of his pocket.
Appellant notified the police and his supervisor.
By decision dated December 15, 2014, OWCP denied appellant’s claim. It found that he
established the factual component of his claim. However, the medical component had not been
met. OWCP noted that appellant did not submit any medical evidence containing a medical
diagnosis in connection with the injury and or events.
On December 22, 2014 appellant requested a review of the written record.
In a December 28, 2014 statement, appellant explained that, prior to the incident, he had
a similar incident, happen to him approximately two years earlier.2 He explained that it was
difficult dealing with his “previous assault just to have another similar incident transpire so soon
afterwards.” Appellant indicated that it was “extremely depressing and stressful” dealing with
his emotions on a daily basis and also challenging when he was trying to suppress his fears of
being attacked again.
In a December 8, 2014 treatment note, Dr. Valentin Berman, a Board-certified
psychiatrist and neurologist, diagnosed post-traumatic stress disorder as a result of an incident
that happened while he was working as a mail carrier on October 20, 2014. He placed appellant
on medical leave until December 31, 2014.
By decision dated May 26, 2015, an OWCP hearing representative affirmed the
December 15, 2014 decision. He found that, while it was accepted that a person with a gun in
his pocket approached him while he was in the performance of duty, the medical evidence was
insufficient to show that this caused an injury.

2

Appellant provided a copy of a police incident report from the January 12, 2012 incident. He also provided a
copy of a notice advising that his appearance was required as a witness on December 22, 2014.

2

LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden to establish the essential
elements of his or her claim by the weight of reliable, probative, and substantial evidence,3
including that he or she is an “employee” within the meaning of FECA and that he or she filed
his or her claim within the applicable time limitation.4 The employee must also establish that he
sustained an injury in the performance of duty as alleged and that his disability for work, if any,
was causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.6
Causal relationship is a medical issue7 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,8 must be one of reasonable medical certainty9
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.10 Medical
conclusions unsupported by rationale are of little probative value.11 Medical conclusions based
on inaccurate or incomplete histories are also of little probative value.12

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

12

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).

3

ANALYSIS
Appellant alleged an emotional condition as a result of stress related to the accepted
incident in which he was exposed to an individual with a gun while performing his duties as a
city carrier on October 29, 2014. The question presented is whether appellant suffered an injury
on October 29, 2014, as a result of this incident. Such a question calls for medical opinion
evidence from a physician.
Appellant’s psychiatrist and neurologist, Dr. Berman, in his December 8, 2014 treatment
note, diagnosed post-traumatic stress disorder as a result of an incident that happened while he
was working as a mail carrier on October 20, 2014. He placed appellant on medical leave until
December 31, 2014. Dr. Berman’s description of the incident is far too brief to establish that he
was basing his opinion on a complete and accurate history.13 He did not list any details of the
accepted incident. Further, Dr. Berman did not support his opinion with sound medical
reasoning. He simply diagnosed post-traumatic stress disorder without discussing the signs,
symptoms, or complaints which established the diagnosis in appellant’s case or how the accepted
incident caused or contributed to the disorder. For these reasons, the Board finds that
Dr. Berman’s opinion is of diminished probative value and does not establish the required
element of causal relationship. The Board finds that appellant has not met his burden of proof to
establish an injury in the performance of duty.
On appeal, appellant argues that he has established his claim. However, as found above,
the medical evidence is insufficient to establish causal relationship.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that the
accepted work incident on October 29, 2014 caused an injury. The medical opinion evidence
fails to establish causal relationship.

13

See Wyrick, id; Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based
upon an incomplete history have little probative value.

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ORDER
IT IS HEREBY ORDERED THAT the May 26, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 8, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5