United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Las Vegas, NV, Employer
__________________________________________

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

Docket No. 13-1092
Issued: June 19, 2014

Case Submitted on the Record

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

JURISDICTION
On April 3, 2013 appellant filed a timely appeal from merit decisions dated January 31
and February 25, 2013 of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish an
emotional condition causally related to the accepted January 30, 2012 employment factor; and
(2) whether he sustained physical injuries on January 30, 2012 in the performance of duty, as
alleged.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 31, 2012 appellant, then a 56-year-old letter carrier, filed a traumatic injury
claim alleging that at 12:15 p.m. on January 30, 2012 he sustained burning eyes, itchy skin and
left shoulder, neck and lower back injuries when gasoline was thrown on him and his truck at
work. He stopped work on the date of injury. Appellant’s regular work hours were 8:00 a.m. to
4:30 p.m. with rotating days off work. In a January 30, 2012 letter, he stated that a customer on
his route had three loose dogs which had previously attacked the regular carrier. When appellant
walked by that customer’s home appellant was asked about the whereabouts of his mail. He
responded that his mail was being forwarded and home delivery was no longer provided. The
customer threatened to turn his dogs loose on appellant. Appellant responded that he would run
them over with his truck. He continued to his next loop to deliver mail. While retrieving a tray
out of the back of his truck appellant was hit with fluids. He thought it was a sprinkler, but
smelled gas. Appellant saw a man running and then he got into his truck and chased the man for
two blocks. As he exited his truck he slipped on liquid on the floor near the pedals of his truck
causing her to fall. Appellant then chased the man who jumped over a fence.
An unsigned narrative statement dated January 30, 2012, indicated that appellant was
retrieving mail from his truck when somebody spilled gasoline on him and his truck.
In an undated narrative statement, Alan Romans, a witness, stated that he heard yelling.
He saw a kid running in front of his house and a mailman chasing him in his truck. Mr. Romans
also saw a truck with at least three kids in it chasing the mailman.
In an undated narrative statement, a witness whose signature is illegible stated that she
saw a mailman screaming at a boy. The mailman got into his truck and chased the boy. A silver
truck followed the mailman’s truck.
A Form CA-16 signed by the employing establishment on January 31, 2012 authorized
medical treatment for appellant’s back, neck and bilateral shoulder injuries.
Dr. Ceylon T. Caszatt, a general practitioner, dictated a February 2, 2012 report that
provided a history that on January 30, 2012 someone sprayed gasoline on appellant as he was
getting mail from the back of his truck. Appellant drove after the suspect. When he tried to
catch the suspect he fell on his stomach hurting his neck, both shoulders and lower back. The
report provided a history of appellant’s medical condition. He had a progressive increase of
symptoms since his injury. Appellant had not worked since the incident and was very anxious
about returning to work due to pain and anxiety related to a possible repeat of the attack
described above. He did not have any skin complaints, but he had neck, back and shoulder pain.
The report listed findings on physical and x-ray examination. Appellant had cervical,
lumbosacral and shoulder strains. Another report dated February 2, 2012 from Dr. Caszatt stated
that appellant could return to work on that date with restrictions. He was referred to physical
therapy for the treatment of his cervical and lumbar conditions. An amended note dated
February 7, 2012 of Dr. Caszatt stated that a left shoulder x-ray was taken.
In a February 6, 2012 report, Dr. David D. Moon, an osteopath, obtained a history that on
January 30, 2012 gasoline was thrown on the back of appellant’s head while he was getting mail.

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Appellant slipped and fell on his left side while chasing the man. Dr. Moon noted appellant’s
back pain, shoulder treatment and inability to work for two weeks. He listed findings on
physical examination and diagnosed lumbar pain, right shoulder and cervical strains and
headache. Dr. Moon advised that appellant sustained bilateral shoulder pain during his
January 30, 2012 work injury. In a February 7, 2012 duty status report, he obtained a history that
on January 30, 2012 appellant was attacked by kids who threw a petroleum-based product into
his eyes. Dr. Moon advised that appellant sustained lumbar and bilateral shoulder strains as a
result of this incident. Appellant was unable to perform his work duties and was placed off work
for two weeks.
Crystal Peterson, an employee of Accelerated Rehabilitation and Pain Center, in a
February 9, 2012 telephone note, advised that appellant had been having a lot of anxiety since
January 30, 2012. Appellant had difficulty sleeping and his mind was constantly going.
By letter dated February 16, 2012, OWCP noted that, when appellant’s claim was
received, it appeared to be a minor injury that resulted in minimal or no lost time from work.
Because the employing establishment did not controvert the merits of the case, payment of
medical expenses was administratively approved. OWCP had not formally considered the merits
of appellant’s claim and noted that it had been reopened because he had not returned to full-time
work. It advised him that the evidence submitted was insufficient to establish his claim. OWCP
requested additional factual and medical evidence. It also requested that the employing
establishment submit medical evidence if appellant was treated at its medical facility. In a
separate letter dated February 16, 2012, OWCP requested that the employing establishment
provide information regarding the January 30, 2012 incident.
Dr. Moon, in a February 14, 2012 report, noted that appellant had presented with neck
and shoulder issues and noted difficulty sleeping due to frequent nightmares about the
January 30, 2012 incident. Appellant also had constant fatigue, continued numbness in his neck
and tingling that radiated into his left arm. He experienced anxiety while thinking about his mail
route and being attacked again. Dr. Moon provided a history of his medical treatment and
physical examination findings. He provided osteopathic manipulative therapy and trigger point
injections and diagnosed anxiety disorder.
OWCP requested that the employing establishment provide additional information,
including the proper procedure that mail carriers were instructed to follow when assaulted and
whether this procedure was communicated to them during their initial training.
In a February 16, 2012 prescription note for a cervical magnetic resonance imaging
(MRI) scan, Dr. Moon advised that appellant had cervical pain, strain and radiculopathy. In
reports dated February 22 and March 6, 2012, Dr. Moon reiterated his diagnosis of cervical strain
and addressed appellant’s treatment. In a duty status report dated March 6, 2012, he advised that
appellant’s cervical and bilateral shoulder strains were caused by the January 30, 2012 incident.
Appellant submitted a February 22, 2012 statement in which he noted that he was not the
regular carrier on the route involved in the January 30, 2012 incident. A man splashed fluid
from a two to three-gallon bucket that hit appellant’s back, hair and pants. The fluid also
splashed onto the front window, dashboard, steering wheel, seat and on mail inside his truck.

3

Appellant stated that his shoes were wet and, when he drove to the location to pursue the man, he
slipped as he got out of his truck. He fell on his left shoulder and neck. The man jumped over a
fence and appellant was unable to climb the fence. Appellant reported this incident to police and
was able to identify his attacker. He responded “yes” to OWCP’s question whether there was
animosity between him and the assailant by reason of personal association away from work.
Appellant stated that, five minutes before the attack, the assailant had asked if there was any mail
for him. He responded that his mail was being forwarded because his dogs had attacked the
regular carrier eight months ago. The assailant threatened to let his three dogs loose on him and
appellant advised the assailant not to threaten him. Appellant was mentally burnt out and afraid
to return to work. He had shoulder and neck pain and headaches.
The employing establishment provided a statement dated February 24, 2012, noting a
new standard training program for city letter carriers was upgraded in 2005. It was uncertain as
to whether appellant had received similar or the same information when he first started work in
1987. The employing establishment acknowledged that appellant had notified supervisors,
police, the fire department and postal inspectors who all responded to the January 30, 2012
incident. The guide, entitled “Standard Training Program for City Letter Carriers,” provided
safety instructions to ensure the security of the mail and equipment, to notify a supervisor about
any security problems, to not endanger oneself in the event of a threat assault or robbery or
angering or harassing the attacker, and to report the robbery or assault as soon as possible. The
employing establishment submitted additional employment records which included a list of
training courses taken by appellant from March 1, 1987 to February 11, 2004.
In a decision dated March 27, 2012, OWCP accepted that appellant was performing his
assigned duties on January 30, 2012 when he and his postal vehicle were hit by gasoline. It,
however, denied his claim, finding that he was not in the performance of duty when he climbed
into his vehicle to pursue the assailant as he substantially deviated from his regular assigned
work duty, delivering mail. OWCP noted the safety rules and procedures contained in the
employing establishment’s training materials and stated that, as a letter carrier and not a law
enforcement officer, appellant was not under any obligation to give chase or attempt to
apprehend a potential suspect. It, therefore, concluded that any resultant injury was not
compensable.
By letter dated April 18, 2012, appellant requested an oral hearing before an OWCP
hearing representative.
An operative report dated March 29, 2012 of Dr. James W. Vahey, a Board-certified
orthopedic surgeon, stated that appellant had undergone surgery to treat his left thumb extensor
pollicis longus zone 2 extensor tendon laceration.
Dr. Moon later, in an April 4, 2012 work status report, advised that appellant could return
to work on April 9, 2012 with no restrictions.
Janice Cullen, a human resource management specialist at the employing establishment,
expressed her disagreement with OWCP’s decision. In her May 11, 2012 letter, she stated that,
as a former letter carrier, she would have reacted in a similar manner as appellant during the
January 30, 2012 incident. Ms. Cullen stated that letter carriers were out there on their own

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without protection from harassers, assaulters, rabid dogs or speeding cars. Appellant always
acted as a professional letter carrier and not as a policeman during the incident. Ms. Cullen
contended that someone should be punished for criminally assaulting him.
In an August 15, 2012 report, Isaac Tunnel, a physician’s assistant, advised that
appellant’s chronic neck pain, shoulder impingement syndrome, dysfunction of the Eustachian
tube and acquired lumbar fusion were unchanged. Appellant had post-traumatic stress.
Susan Blesch, a licensed marriage and family therapist, noted in an August 29, 2012
report, appellant’s symptoms following the January 30, 2012 employment incident and advised
that these symptoms were consistent with criteria for post-traumatic stress syndrome.
In a September 24, 2012 decision, an OWCP hearing representative affirmed the
March 27, 2012 decision. The hearing representative found that the physical injuries appellant
sustained as a result of his fall on January 30, 2012 while chasing the assailant did not occur in
the performance of his job duties. The hearing representative also found that the medical
evidence was insufficient to establish that he sustained an emotional condition causally related to
the accepted January 30, 2012 gasoline attack.
By letter dated November 1, 2012, appellant requested reconsideration.
In letters dated October 29, 2012, Dr. Alex Del Rosario, a Board-certified psychiatrist,
advised the employing establishment that on October 22, 2012 appellant was admitted to Spring
Mountain Sahara under his care. Appellant was discharged on October 29, 2012 and cleared to
return to work on November 5, 2012. Dr. Del Rosario strongly recommended that he be
assigned to a new mail delivery route. He stated, “It is my professional opinion that it is
counterproductive to his continued stability if he is continually exposed to triggers related to the
incident which occurred while on his current route.” In an October 31, 2012 letter to the
employing establishment regarding appellant’s request for a transfer from his assigned route,
Dr. Del Rosario stated, “This route is pertaining to the gasoline attack at Biljac Avenue on
January 30, 2012. Peter has been diagnosed with post-traumatic stress disorder and major
depression related to the above incident.”
In a January 31, 2013 decision, OWCP denied modification of the September 24, 2012
decision. It found that appellant had not submitted sufficient evidence or argument to establish
that the physical injuries he sustained as a result of his January 30, 2012 fall occurred in the
performance of duty. OWCP further found that he failed to submit any rationalized medical
evidence to establish that his emotional condition was caused by the accepted January 30, 2012
gasoline attack.
On February 21, 2013 appellant requested reconsideration and submitted several reports
by Dr. Del Rosario.
In an October 23, 2012 hospital admission report, Dr. Del Rosario listed a history that
appellant attempted suicide. He stated, “The patient had been increasingly angry and anxious
since an incident in January of 2012 where a customer in his route threw gasoline on
him.” Dr. Del Rosario related that he presented with “depression, anxiety, flashbacks of trauma,
had overdosed on a handful of muscle relaxants and had been drinking alcohol.” He identified
5

the admitting diagnoses as, among other things, “Axis I: major depression, single episode,
severe post-traumatic stress disorder” and “Axis IV: psychological stressors: trauma in January
of 2012.” In a discharge report dated October 29, 2012, Dr. Del Rosario reiterated the history of
the January 2012 employment incident. The discharge diagnoses were the same as those on
admission.
In a February 25, 2013 decision, OWCP again denied modification of the January 31,
2013 decision on the grounds that appellant failed to provide any rationalized medical evidence
to establish that his diagnosed emotional conditions were causally related to the accepted
January 30, 2012 work factor.
LEGAL PRECEDENT -- ISSUE 1
To establish a claim that he sustained an emotional condition in the performance of duty,
appellant must submit the following: (1) medical evidence establishing that he has an emotional
or stress-related disorder; (2) factual evidence identifying employment factors or incidents
alleged to have caused or contributed to his condition; and (3) rationalized medical opinion
evidence establishing that the identified compensable employment factors are causally related to
his stress-related condition.2 If a claimant does implicate a factor of employment, OWCP should
then determine whether the evidence of record substantiates that factor.3 When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, OWCP must base its decision on an analysis of the medical evidence.4
ANALYSIS -- ISSUE 1
OWCP accepted, as a compensable factor of employment, that on January 30, 2012 a
customer threw gasoline on appellant and his truck while he was performing his regular work
duties as a letter carrier. It found that he failed to provide sufficient medical evidence to
establish that he sustained an emotional condition due to the established employment factor. The
Board finds, however, that this case is not in posture for a decision as to the issue of causal
relationship.
Appellant submitted evidence supporting that his diagnosed emotional condition was
causally related to the accepted compensable employment factor.5 Dr. Del Rosario’s October 23,
2012 hospital admission report found that appellant had major depression and post-traumatic
stress disorder as a result of the accepted employment factor. He stated, “The patient had been
increasingly angry and anxious since an incident in January of 2012 where a customer in his
route threw gasoline on him.” Dr. Del Rosario further stated that appellant presented with
“depression, anxiety, flashbacks of trauma, had overdosed on a handful of muscle relaxants and
had been drinking alcohol.” He identified the admitting diagnoses as, among other things,
2

Leslie C. Moore, 52 ECAB 132 (2000).

3

Dennis J. Balogh, 52 ECAB 232 (2001).

4

Id.

5

See William P. George, 43 ECAB 1159, 1168 (1992).

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“Axis I: major depression, single episode, severe post-traumatic stress disorder” and “Axis IV:
psychological stressors: trauma in January of 2012.” In an October 29, 2012 discharge report,
Dr. Del Rosario reiterated the above-noted history of the accepted employment factor and
diagnoses. He discharged appellant from the hospital on October 29, 2012 and released him to
return to work on November 5, 2012. Dr. Del Rosario stated, “It is my professional opinion that
it is counterproductive to his continued stability if he is continually exposed to triggers related to
the incident which occurred while on his current route.” On October 31, 2012 Dr. Del Rosario
reiterated, “This route is pertaining to the gasoline attack at Biljac Avenue on January 30, 2012.
[Appellant] has been diagnosed with post-traumatic stress disorder and major depression related
to the above incident.”
The Board finds that, although Dr. Del Rosario did not provide sufficient medical
rationale explaining how the compensable work factor resulted in appellant’s emotional
condition, his reports are generally supportive of appellant’s claim and raise an uncontroverted
inference of causal relationship sufficient to require further development by OWCP.6 The case,
therefore, is remanded to OWCP for further development of the medical evidence. After such
further development as deemed necessary, it shall issue a de novo decision on the emotional
condition aspect of appellant’s claim.
LEGAL PRECEDENT -- ISSUE 2
FECA provides for the payment of compensation for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.7 The phrase
sustained while in the performance of duty in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of arising out of and in the course of
employment.8
To arise in the course of employment, an injury must occur at a time when the employee
may reasonably be said to be engaged in the master’s business, at a place where he or she may
reasonably be expected to be in connection with the employment and while he or she was
reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.9 In deciding whether an injury is covered by FECA,10 the test is whether,
under all the circumstances, a causal relationship exists between the employment itself or the
conditions under which it is required to be performed and the resultant injury.11
In determining whether an injury occurs in a place where the employee may reasonably
be or constitutes a deviation from the course of employment, the Board will focus on the nature
6

See E.J., Docket No. 09-1481 (issued February 19, 2010); John J. Carlone, 41 ECAB 354 (1989).

7

5 U.S.C. § 8102(a).

8

See Valerie C. Boward, 50 ECAB 126 (1998).

9

See R.A., 59 ECAB 581 (2008); Mary Keszler, 38 ECAB 735 (1987).

10

5 U.S.C. §§ 8101-8193.

11

See Mark Love, 52 ECAB 490 (2001).

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of the activity in which the employee was engaged and whether it is reasonably incidental to the
employee’s work assignment or represented such a departure from the work assignment that the
employee becomes engaged in personal activities unrelated to his or her employment.12 The
Board has noted that the standard to be used in determining that an employee has deviated from
his or her employment requires a showing that the deviation was “aimed at reaching some
specific personal objective.”13
ANALYSIS -- ISSUE 2
Appellant alleged that on January 30, 2012 he sustained work-related eye, skin, left
shoulder, neck and back injuries when he slipped in gasoline on the floor of his truck and fell on
the ground as he got out of his truck to chase an assailant who had thrown gasoline on him, his
mail and truck. The Board finds that he has not established that he sustained a physical injury in
the performance of duty on January 30, 2012.
The record establishes that, following the accepted gasoline attack on January 30, 2012,
appellant stopped work and deviated from his mail delivery duty to attend to a purely personal
matter, chasing and attempting to catch his assailant. He explained that he chased the assailant
for two blocks in his truck. Appellant fell while getting out of his truck to continue to chase his
assailant, who later eluded appellant by jumping over a fence. He stated that his animosity
towards his assailant was personal and not associated with work. The witness statements and
factual history provided in the February 2, 2012 report of Dr. Caszatt, the February 6, 2012
report of Dr. Moon and October 24 and December 6, 2012 reports of Dr. Del Rosario support
appellant’s account of events. Appellant’s activity is precisely the type of “specific personal
objective” that removes an employee from the performance of duty.14 There is no indication that
this activity was a requirement of his employment or that the employing establishment derived
some substantial benefit from the activity which caused injury. The employing establishment’s
2005 standard training program guide provided safety instructions to its employees which
included not endangering oneself in the event of a threat assault or angering or harassing an
assailant and reporting the assault as soon as possible. For the stated reasons, the Board finds
that appellant was not in the performance of duty when he fell while getting out of his truck to
chase and attempt to catch his assailant on January 30, 2012. The physical injuries he sustained
on January 30, 2012 did not arise in the course of his employment as a letter carrier.15
The present case is similar to J.P.,16 where the claimant engaged in a physical altercation
with a man after being verbally threatened by him. In that case, the claimant attended a
12

Phyllis A. Sjoberg, 57 ECAB 409 (2006).

13

Rebecca LeMaster, 50 ECAB 254 (1999).

14

Id.

15

The Board notes that the employing establishment has not alleged and OWCP has not applied the statutory
defense of willful misconduct in the present case. 5 U.S.C. § 8102(a)(1); Paul Raymond Kuyoth, 27 ECAB 498, 505
(1976), reaff’d on recon, 27 ECAB 253 (1976).
16

Docket No. 12-145 (issued March 25, 2013).

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reception in a hotel which included instructors and fellow trainees and was certainly business
related. He further asserted that an unknown man touched him from behind and asked him to
shake his hand. The claimant declined, believing the man to be intoxicated, but the man
persisted in trying to get him to shake his hand. The man suggested that he and the claimant take
things outside. The claimant got up and chest bumped the man into a column and the man
punched the claimant twice in the face. The claimant struck back but another person forced him
to the ground, breaking his leg. The Board noted that OWCP did not dispute that the claimant
was in the performance of duty while sitting with his fellow trainees and instructors in the hotel
after eating dinner. The Board also noted OWCP’s finding that he remained in the course of
employment when he stayed after the reception to talk and have a couple of drinks with other
students and instructors. The Board affirmed OWCP’s finding that the claimant deviated from
employment when he engaged the man in an altercation not reasonably expected or contemplated
by the employer. The Board found that the weight of the evidence established that he initiated
the physical confrontation by chest bumping the man into a column.
In the present case, it is not disputed that he was in the performance of duty when the
assailant threw gasoline on him and his vehicle. The Board finds, however, that when he got into
his truck to chase the assailant and later fell when leaving his truck to pursue the assailant, he
engaged in activities not reasonably expected or contemplated by the employing establishment
and thus removed himself from coverage under FECA. Appellant initiated the incident and was
engaged in an activity not reasonably expected or contemplated by the employing establishment
and thus removed himself from coverage of FECA.
The instant case is distinguished from Leslie C. Moore.17 In Moore the claimant alleged
that he sustained a stress-related condition after an assault in the parking lot of the employing
establishment. The Board found that, while the assault may have arisen out of inappropriate
comments made by appellant to a coworker, FECA does not exclude coverage because an
employee either acts as an aggressor or otherwise engages in an action imputing culpability or
fault. As the assault arose on the premises due to a work-related dispute which occurred while
the claimant was performing his work duties, the Board found the situation compensable. In the
present case, however, appellant was not on his route when he fell while getting out of his truck.
Further, he was not performing his work duties at the time of injury, rather he was pursuing his
assailant. Moreover, appellant stated that his animosity towards the assailant was personal in
nature as he was threatened with physical harm by the assailant’s dogs. As the Board finds this
incident outside the performance of duty, it is not necessary to address the medical evidence.18
CONCLUSION
The Board finds that this case is not in posture for decision as to whether appellant
sustained an emotional condition due to the accepted January 30, 2012 compensable employment
factor. However, the Board finds that appellant has failed to establish that he sustained physical
injuries on January 30, 2012 in the performance of duty.

17

52 ECAB 132 (2000).

18

Alvin V. Gadd, 57 ECAB 172 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the February 25 and January 31, 2013 decisions of
the Office of Workers’ Compensation Programs are set aside in part and affirmed in part, and the
case is remanded for further proceedings consistent with this decision of the Board.
Issued: June 19, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, CENTRAL CARRIER
ANNEX, Chicago, IL, Employer
__________________________________________

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

Docket No. 11-1361
Issued: March 14, 2012

Case Submitted on the Record

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

JURISDICTION
On May 16, 2011 appellant filed a timely appeal from an April 14, 2011 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 to
consider the merits of this schedule award case.
ISSUE
The issue is whether appellant has greater than one percent impairment to her left upper
extremity, for which she received a schedule award.
FACTUAL HISTORY
On August 20, 2009 appellant, then a 51-year-old clerk, filed a traumatic injury claim
alleging that while casing mail that day she experienced painful movement in her wrist and
fingers. OWCP accepted her claim for sprain of the left elbow and forearm, ulnar collateral
1

5 U.S.C. § 8101 et seq.

ligament. On January 5, 2011 OWCP updated the acceptance of appellant’s claim to include
sprain of the left wrist interphalangeal and left radial styloid tenosynovitis.
On November 12, 2009 appellant underwent surgery for repair and reconstruction of the
ulnar collateral ligament of the left thumb and release of the first dorsal compartment and
tenolysis of the left wrist. In reports dated September 1 and November 17, 2010, Dr. Tariq B.
Ifikhar, appellant’s treating orthopedic surgeon, noted that appellant underwent surgery for the
repair and reconstruction of the ulnar collateral ligament of the left thumb, along with release of
the first dorsal compartment and tenolysis of the left wrist. He noted that she was doing well and
did not complain of any particular problem. Dr. Tariq B. Ifikhar noted essentially unremarkable
examinations with good healing, good strength and range of motion and with neurovascular
status intact.
On August 12, 2010 appellant filed a claim for a schedule award. OWCP referred her
case to an OWCP medical adviser for a determination of permanent impairment under the
American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed.
2009). In a February 7, 2011 report, the medical adviser noted that Dr. Ifikhar’s reports
indicated an unremarkable physical examination. He therefore found that given appellant’s
residual subjective complaints of weakness, he recommended awarding one percent impairment
of the left upper extremity pursuant to Table 15-3, page 395 of the A.M.A., Guides. Dr. Ifikhar
noted that there would be no change in this award with use of the net adjustment formula.
On April 14, 2011 OWCP issued a schedule award for one percent permanent impairment
of the left upper extremity.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations,3 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 for all claimants, OWCP has adopted the A.M.A.,
Guides as the uniform standard applicable to all claimants.4 As of May 1, 2009, the sixth edition
of the A.M.A., Guides is used to calculate schedule awards.5
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

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id. at § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).

2

Examination (GMPE) and Clinical Studies (GMCS).6 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through the medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.7
ANALYSIS
OWCP accepted appellant’s claim for sprain of the left elbow and forearm and ulnar
collateral ligament, sprain of the left wrist interphalangeal and left radial tenosynovitis.
Appellant underwent surgery for repair and reconstruction of the ulnar collateral ligament of the
left thumb and release of the first dorsal compartment and tenolysis of the left wrist. Her treating
physician, Dr. Ifikhar, noted unremarkable examinations postsurgery on September 1 and
November 17, 2010.
Appellant requested a schedule award. OWCP referred appellant’s case to the medical
adviser, who applied Table 15-3 of the A.M.A., Guides,8 which addresses impairment in the
wrists, and determined that appellant had one percent impairment of her left upper extremity.
The medical adviser concluded that appellant had one percent impairment based on subjective
complaints of weakness and noted that there would be no change to this award with use of the
net adjustment formula. He failed, however, to explain how he reached his conclusion. The
sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation. It requires
identifying the impairment class for the diagnosed condition, which is then adjusted by grade
modifiers based on functional history, physical examination and clinical studies.9 OWCP’s
medical adviser identified only the table and provided a minimal explanation of the diagnosis
category and no evaluation of the grade modifiers. As discussed, grade modifiers should be
considered for functional history, physical examination and clinical studies and these grade
modifiers can change the extent of a given impairment rating.10 Consequently, the Board finds
that the opinion of OWCP’s medical adviser requires further clarification on the issue of
appellant’s left upper extremity impairment. The case is remanded for proper application of the
A.M.A., Guides and, if necessary, further development of the evidence. Following such further
development as OWCP deems necessary, it should issue a de novo decision.

6

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

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
8

A.M.A., Guides 395.

9

Id. at 405-12.

10

Id.; R.O., Docket No. 10-2143 (issued August 15, 2011).

3

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 14, 2011 merit decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 14, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Long Island, NY, Employer
)
___________________________________________ )
J.N., Appellant

Appearances:
Ron Watson, for the appellant
Office of Solicitor, for the Director

Docket No. 06-1851
Issued: July 17, 2007

Oral Argument April 10, 2007

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

JURISDICTION
On August 2, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated July 27, 2006, which denied modification of the
Office’s April 7, 2006 decision which denied his claim for a recurrence. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to continued compensation benefits after
December 5, 2003.
FACTUAL HISTORY
This case has previously been on appeal before the Board. In a March 16, 2006 decision,
the Board found that appellant had not met his burden of proof to establish that he sustained
recurrences of disability as of December 5, 2003 and January 14, 2004, causally related to his
June 24, 2003 employment injury.1 Further, the Board found that the Office improperly denied
1

Docket No. 05-1040 (issued March 16, 2006).

appellant’s timely reconsideration request by applying the legal standard reserved for cases
where reconsideration is requested after more than one year. The Board set aside and remanded
the case for review under the proper standard. The facts of the case as set forth in the Board’s
prior decision are incorporated herein by reference. Certain facts germane to the present appeal
will be restated.
On June 24, 2003 appellant, then a 56-year-old letter carrier, fell from his postal vehicle
and injured his left knee. He stopped work on June 25, 2003. The Office accepted appellant’s
claim for left knee strain and arthroscopy.2 The Office also authorized physical therapy.
Appellant received appropriate compensation benefits.
In a November 12, 2003 duty status report, appellant’s treating physician, Dr. Durant, a
Board-certified orthopedic surgeon, advised that he could return to work on November 17, 2003
in a part-time capacity for four hours a day. He provided restrictions which included lifting no
more than 20 pounds for 4 hours a day; intermittent sitting, standing and walking for no more
4 hours per day, with 20- to 30-minute rest periods after 1 to 2 hours; climbing no more than
1 hour a day, no kneeling, intermittent bending/stooping, pulling/pushing for no more than 3
hours per day, intermittent twisting, continuous simple grasping, fine manipulation and reaching
for no more than 4 hours per day; and intermittent driving of a motor vehicle for 4 hours per day.
The record reflects that, on November 17, 2003, the employing establishment offered
appellant a modified assignment for four hours daily. The job was comprised of routing mail as
needed for up to four hours and express mail as needed for a half hour. Lifting in the job was
limited to 20 pounds for up to 30 minutes.
In a December 17, 2003 duty status report, Dr. Durant updated his restrictions from his
November 17, 2003 duty report. In particular, he clarified that appellant needed 20- to 30minute rest periods after 1 to 2 hours of work and that he was “not allowed to stand while
working.”
On December 9, 2003 appellant filed a notice of recurrence of disability due to his
June 24, 2003 employment injury. He alleged that he returned to light duty for four hours a day
and on December 5, 2003 he had a recurrence of his original injury due to standing and twisting
and being stuck in his car for three-hours due to a snow storm. Appellant alleged that he had to
ice his knee as it became swollen. He stopped work on December 6, 2003 and returned on
December 9, 2003.
By letter dated December 17, 2003, the Office requested that appellant submit additional
evidence.
On December 17, 2003 the Office received a vocational rehabilitation report dated
November 12 to December 7, 2003 from Harold Tischelman, a rehabilitation counselor, who
indicated that on November 22, 2003 he visited appellant’s work site and noted that appellant
was observed standing and twisting at a three-sided case, which hurt his knee. Mr. Tischelman
2

The arthroscopy was performed on September 12, 2003 by Dr. Christopher Durant, a Board-certified orthopedic
surgeon.

2

also noted that he requested a modified case for appellant, which would allow him to sit, but was
informed that, because be worked at three different cases, this would not resolve the problem. In
addition to not being able to provide appellant with a modified case, the employing
establishment indicated that a stool or high chair were impractical.
In a December 17, 2003 duty status report, Dr. Durant provided similar work restrictions
but added that appellant needed 20- to 30-minute rest periods after 1 to 2 hours of work and that
appellant was not allowed to stand while working.
In a January 14, 2004 attending physician’s report, Dr. Durant noted the history of injury
and checked a box “yes” indicating that appellant’s condition was caused or aggravated by his
employment. He diagnosed a tear of the posterior horn of the left knee and advised that
appellant would need periodic reevaluation. Dr. Durant indicated that appellant was advised that
he could not return to work. He completed a duty status work of the same date and advised that
“appellant was unable to work until further notice.” Dr. Durant requested approval for a
magnetic resonance imaging (MRI) scan.
On January 21, 2004 appellant filed a notice of recurrence of disability due to his
June 24, 2003 employment injury. He alleged that since returning to work his condition had
worsened. Appellant alleged that he could not stand for extended periods of time and his doctor
assumed that he would be able to sit down. However, he indicated that his employer was not
able to accommodate his request and that he had to work four hours a day with standing and
twisting, with only a 10-minute break. Appellant indicated that, on January 14, 2004, his
physician ordered an MRI scan and he was unable to work while waiting for approval. He
stopped work on January 14, 2004.
In a report covering December 8, 2003 to January 15, 2004, Mr. Tischelman stated that
appellant informed him on December 11, 2003, that his postmaster Heidi Roberts advised him
that if “‘she knew he could n[o]t stand for four hours a day’ she would have never taken him
back.” He also noted that on December 17, 2003 appellant was sent home after two and one half
hours as there was “no work,” and that he was told on December 18, 19, 22 and 23, 2003 and
several other days that no work was available for him.
By letter dated February 6, 2004, the Office requested that appellant submit additional
evidence.
In a report of a telephone call dated February 21, 2004, the Office verified that the
employing establishment did not have work available for appellant, within his medical
restrictions, despite his clearance to work four hours a day.
By letter dated February 23, 2004, appellant alleged that his light-duty position did not
comply with his physician’s requirements. He also alleged that he could not “rack mail” sitting
down and that he stood and twisted four hours per day in violation of his physician’s restrictions.
Appellant alleged that Ms. Roberts advised him that she never agreed to allow him to rack mail
while sitting down. He alleged that, despite his doctor indicating that he was not allowed to
stand while working and that he rest 20 to 30 minutes after every 1 to 2 hours of work, the
employing establishment was not complying with the restrictions imposed by his physician.

3

By decision dated March 12, 2004, the Office denied appellant’s claim for a recurrence of
disability on December 5, 2003 and January 14, 2004.
Appellant also filed several CA-7 forms for wage-loss compensation from December 1,
2003 to April 9, 2004.
On April 13, 2004 the Office received appellant’s request for reconsideration. Evidence
in support of the reconsideration request included numerous physical therapy reports and reports
from Dr. Durant. In a February 11, 2004 report, Dr. Durant noted that on November 11, 2003
appellant arrived in his office accompanied by his case manager. He advised that, at that time, he
believed that appellant could commence light-duty work on November 17, 2003. Dr. Durant
indicated that “[i]t was mentioned by his case manager that the light-duty work could be performed
in the sitting down position.” He noted that appellant related that, upon his return to work, “he had
to stand for four hours a day.” Dr. Durant opined that appellant was not able to perform these
duties and had to stop work. In a March 26, 2004 report, he alleged that, after appellant returned to
work, he reinjured his left knee and had to stop work. Dr. Durant advised that a second left knee
arthroscopic surgery was warranted.3
By decision dated June 17, 2004, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely and failed to establish clear evidence of
error.
By letter dated July 25, 2004, Mr. Tischelman advised that he was assigned appellant’s
case by the Office on November 13, 2003. He stated that he contacted appellant’s postmaster,
Ms. Roberts, on that same date and requested a copy of the modified-duty assignment.
Ms. Roberts noted that she refused his request and informed him that he would see a copy when
appellant returned to work on November 17, 2003. Mr. Tischelman indicated that, on
November 17, 2003, appellant reported to work and cased mail for three and one-half hours and
delivered express mail for a one-half hour and noted that the entire casing process was performed
standing up. He noted that he also observed appellant on November 22, 2003 and advised that
appellant was casing mail at a three-sided case while continuously standing. Mr. Tischelman
also indicated that appellant had to twist to each side of the case as he placed mail in the
appropriate slots and advised that the position was “not consistent with your medical
restrictions.” He referenced Dr. Durant’s duty status report, which advised that appellant could
do “intermittent standing” with “rest periods.” Mr. Tischelman also indicated that, when he
requested that the employing establishment provide appellant with a modified case, which would
allow him to sit while working, the request was denied by both appellant’s supervisor and the
postmaster. He indicated that the job that appellant was assigned to by the employing
establishment did not comply with his medical restrictions.
On September 15, 2004 appellant requested reconsideration.
By letter dated October 27, 2004, the Office requested additional information.

3

Appellant underwent the surgery on May 21, 2004.

4

On November 19, 2004 the Office received an undated letter in which appellant requested
that the Office pay compensation for total disability as he had only been receiving half pay since
November 2003. Appellant reiterated that the light-duty position offered by the employing
establishment was “never light-duty work.” He submitted reports dated October 27, November 5
and December 8, 2004 from Dr. Durant, who continued to advise that appellant was unable to
return to work.
On January 29, 2005 the Office determined that appellant was reemployed as a modified
letter carrier with wages of $851.20 per week, effective November 17, 2003. Appellant was
advised that his compensation was being adjusted as the duties of the new position reflected the
work tolerance limitations established by the weight of the medical evidence.
On March 7, 2005 appellant filed an appeal with the Board. He alleged that his light-duty
position was “never light” duty. Appellant alleged that this return to “light duty” caused him to
reinjure his left knee. He noted that his vocational rehabilitation counselor, Mr. Tischelman,
verified that the assignment was not “light duty.”
Following the Board’s March 16, 2006 decision, noted above, appellant, on April 1,
2006, submitted arguments related to his claims for a recurrence of disability as of December 5,
2003 and January 14, 2004, causally related to his June 24, 2003 employment injury. He alleged
that “limited duty consistent with [his] medical restrictions was not made available.” In
particular, appellant alleged that his physician provided limited-duty restrictions which were
based upon the employing establishment’s assurances that appellant could work while sitting
down. However, he alleged that the employing establishment refused to modify his case or
allow him to work sitting down, which violated his restrictions. In support of his argument,
appellant alleged that his vocational rehabilitation counselor, Mr. Tischelman, indicated that the
position was not consistent with his physician’s medical restrictions. Additionally, appellant
alleged that his physician provided a new CA-17 form on December 17, 2003, which indicated
that he could not stand while working. He noted that thereafter the employing establishment
certified that there was no work available and the job offer was withdrawn. Appellant also
referred to the procedure manual and alleged that the Office did not consider procedures related
to his recurrence. In addition, he referred to a February 11, 2004 report, in which Dr. Durant, a
Board-certified orthopedic surgeon, opined that he was not able to perform his duties and had to
stop work. Furthermore, appellant alleged that he underwent surgery on May 21, 2004, a
shaving of chondral flap tears, micro-fracture drilling of the medial femoral condyle chondral
defect and excision of the medial plica. He alleged that this supported that his condition had
worsened and he was disabled.
By decision dated April 7, 2006, the Office denied appellant’s request for reconsideration
as the evidence was insufficient to warrant modification of the Office March 12, 2004 decision.
By letter dated April 26, 2006, appellant requested reconsideration and repeated his
previous arguments.
By decision dated July 27, 2006, the Office denied modification of the Office’s April 7,
2006 decision.

5

LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.4
Under section 8106(c)(2) of the Federal Employees’ Compensation Act,5 the Office may
terminate compensation of an employee who refuses or neglects to work after suitable work is
offered to, procured by or secured for the employee.6 However, to justify such termination, the
Office must show that the work offered was suitable7 and must inform the employee of the
consequences of a refusal to accept employment deemed suitable.8
If the Office establishes that the work offered was suitable, the burden of proof shifts to
the employee who refuses to work to show that such refusal or failure to work was reasonable or
justified.9 However, a short-lived and unsuccessful attempt to return to duty does not by itself
discharge the Office’s burden to justify termination of compensation.10 The Board has never
excused the Office from its burden to show that light-duty work was suited to the employee’s
medical restrictions.11
When an employee, returns to a suitable light-duty position and does not subsequently
perform the duties of that position, the employee has the burden to establish a recurrence of total
disability and to show that he or she cannot perform such light duty. The recurrence must be
established by the weight of the reliable, probative and substantial evidence.12 As part of this
burden, the employee must show a change in the nature and extent of the injury-related condition
or a change in the nature and extent of the light-duty job requirements.13

4

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

5

5 U.S.C. § 8106(c)(2).

6

Martha A. McConnell, 50 ECAB 129, 131 (1998).

7

Id.

8

Ronald M. Jones, 48 ECAB 600, 602 (1997).

9

20 C.F.R. § 10.517(a); Deborah Hancock, 49 ECAB 606, 608 (1998).

10

See Cheryl A. Weaver, 51 ECAB 308, 308-09 (2000); Janice F. Migut, 50 ECAB 166, 168-69 (1998).

11

Cf. Carl C. Graci, 50 ECAB 557, 558 (1999) (before the burden of proof shifts to the claimant, there must be a
return to work or the medical evidence must establish that light duty can be performed; where appellant returned to
work for about two hours, the Office erroneously placed the burden of proof on appellant as the burden remained on
the Office and the Office failed to meet its burden of proof).
12

A recurrence of disability is defined under the Office’s implementing federal regulations as the inability to
work after an employee has returned to work, caused by a spontaneous change in a medical condition which had
resulted from a previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness. 20 C.F.R. § 10.5(x).
13

Richard E. Konnen, 47 ECAB 388 (1996); Terry R. Hedman, 38 ECAB 222, 227 (1986).

6

ANALYSIS
Appellant’s claim was accepted for a left knee sprain in the performance of duty on
June 24, 2003. The record reflects that he was on the periodic rolls and on November 17, 2003,
he attempted to return to a modified-duty position with the employing establishment for four
hours a day. However, after attempting to work the position, appellant alleged that the
employing establishment did not comply with the restrictions of November 12, 2003 imposed by
his physician, Dr. Durant. While Dr. Durant found that appellant could stand intermittently for
up to 4 hours with 20- to 30-minute breaks after 1 to 2 hours, he alleged that the modified
position actually required that he stand and twist for 4 hours with only one 10-minute break. The
employing establishment refused appellant’s request for a modified casing stool, which would
allow him to sit while casing and informed him that the position could not be performed while
seated. Appellant subsequently filed recurrences of disability on December 5, 2003 and
January 14, 2004 and the Office advised him of the medical and factual evidence needed to
establish his claim. The Office placed the burden of proof for continuing compensation on
appellant noting that a recurrence of disability includes an inability to work that takes place when
a light-duty assignment made specifically to accommodate an employee’s physical limitations
due to his or her work-related injury or illness is withdrawn or when the physical requirements of
such an assignment are altered so that they exceed his or her established physical limitations.14
The Board finds that this placement of the burden of proof was improper as the light-duty
position did not comply with appellant’s restrictions.
The work restriction provided by Dr. Durant included: lifting no more than 20 pounds
for 4 hours a day; intermittent sitting, standing and walking for no more 4 hours per day, with
20- to 30-minute rest periods after 1 to 2 hours; climbing no more than 1 hour a day, no kneeling,
intermittent bending/stooping, pulling/pushing for no more than 3 hours per day, intermittent
twisting, continuous simple grasping, fine manipulation and reaching for no more than 4 hours
per day; and intermittent driving of a motor vehicle for 4 hours per day. The record reflects that,
on November 17, 2003, appellant was provided with a modified assignment which was a fourhour position comprised of routing mail as needed for four hours and express mail as needed for
a half hour. The physical requirements indicated that appellant was not to exceed 20 pounds of
lifting over 30 minutes and not to exceed 4 hours of work. The position did not include the
standing requirement or twisting requirement or the rest period. Upon returning to work,
appellant was required to perform the 4-hour position standing without the 30-minute rest
periods. He also noted that the casing required him to twist. In a December 17, 2003 duty status
report, Dr. Durant updated his restrictions from his November 17, 2003 duty report. In
particular, he clarified that appellant needed 20- to 30-minute rest periods after 1 to 2 hours of
work and that he was “not allowed to stand while working.” In reports dated January 14, 2004,
Dr. Durant checked a box “yes” in response to whether the condition was caused or aggravated
by the employment injury and advised that appellant could not return to work. In a February 11,
2004 report, Dr. Durant noted that he believed that appellant could commence light-duty work on
November 17, 2003. However, in the modified position, appellant “had to stand for four hours a
day.” Dr. Durant opined that appellant was not able to perform these duties and had to stop

14

20 C.F.R. § 10.5(x).

7

working. In his March 26, 2004 report, Dr. Durant determined that, after appellant returned to
work, he reinjured his left knee and had to stop working.
The Office also received reports from appellant’s rehabilitation counselor,
Mr. Tischelman, who advised him that Ms. Roberts refused him a copy of the modified-duty
assignment. Mr. Tischelman indicated that, on November 17, 2003, appellant reported to work
and cased mail for three and one-half hours and delivered express mail for half an hour. He also
indicated that the casing process was performed standing up. Mr. Tischelman informed the
Office that he had conducted an on site visit on November 22, 2003 and observed appellant
standing at a three-sided case and twisting. He advised that he requested a modified case for
appellant, which would allow him to sit, but his request was denied. Mr. Tischelman explained
that the employing establishment was unable to provide appellant with a modified case, a stool or
a high chair. He advised that the job that appellant was assigned by the employing establishment
did not comply with his medical restrictions. Mr. Tischelman also reported that appellant
informed him on December 11, 2003, that his postmaster advised him that if “‘she knew he could
n[o]t stand for four hours a day’ she would have never taken him back.” Mr. Tischelman noted
that on December 17, 2003 appellant was sent home after two and one-half hours as there was
“no work.” Subsequently, he was told on December 18, 19, 22 and 23, 2003 and several other
days that no work was available for him. On February 21, 2004 the Office verified that the
employing establishment did not have work available for appellant within appellant’s medical
restrictions, despite his clearance to work four hours a day.
The evidence does not establish that appellant’s employment-related disability ended on
November 17, 2003, the date of his return to the position provided by the employing
establishment. As noted above, appellant attempted to perform the modified position; however,
the modified position did not conform with Dr. Durant’s restrictions. After several attempts by
appellant and his vocational rehabilitation counselor to rectify the problem that casing mail
required him to stand, appellant was unable to work and became totally disabled after
December 5, 2003. The Board finds that the position offered to appellant did not comply with
the restrictions imposed by his physician and thus, was not suitable. Appellant made a shortlived and unsuccessful attempt to return to a position which was described by the employing
establishment as light duty; however, the position did not comply with his physician’s
restrictions. Given the circumstances of this case, the Board finds that the burden of proof was
not shifted by appellant’s unsuccessful attempt to perform the “light-duty” position.15 The
burden of proof remained with the Office, which did not meet its burden of proof to terminate
appellant’s compensation benefits by showing either that appellant’s disability ended or that it
was no longer related to his employment injuries.
CONCLUSION
The Board finds that appellant remained entitled to compensation for total disability after
December 5, 2003.

15

See supra note 6.

8

ORDER
IT IS HEREBY ORDERED THAT the July 27 and April 7, 2006 decisions of the
Office of Workers’ Compensation Programs are reversed.
Issued: July 17, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-427
Issued: November 25, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 13, 2013 appellant, through counsel, timely appealed a November 1, 2013
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 the schedule award appeal.2
ISSUE
The issue is whether appellant has a ratable impairment of the upper or lower extremities
due to his employment-related cervical and lumbar conditions.

1
2

5 U.S.C. § 8101 et seq.

The record on appeal contains evidence received after OWCP issued its November 1, 2013 decision. The Board
is precluded from considering evidence that was not in the case record at the time OWCP rendered its final decision.
20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
Appellant, a 45-year-old claims representative, has an accepted claim for dislocation of
cervical and lumbar vertebrae, which occurred on November 28, 2005 when he slipped and fell
on a wet marble floor. He was treated by Dr. Lena Kart, a chiropractor, for intermittent
disability. Appellant was also treated by Dr. Kamal Kabakibou, a specialist in pain management,
for complaints of low back pain. Dr. Kabakibou noted that magnetic resonance imaging (MRI)
scan testing of the lumbar region did not show any herniated disc disease. He recommended
continued adjustive treatment by Dr. Kart and released appellant back to work at full duty as of
February 6, 2006.
In March 2007, appellant was seen by Dr. Kabakibou and prescribed physical therapy.
On April 27, 2007 Dr. Kabakibou noted that appellant had low back and myofascial pain with
mid back pain of uncertain etiology. He noted that appellant underwent diagnostic testing of the
disc and nerves which revealed no degeneration or dislocation. Appellant received physical
therapy and returned to work at modified duty, receiving compensation for intermittent
disability.3
On November 14, 2012 appellant filed a claim for a schedule award (Form CA-7).
On December 6, 2012 OWCP referred appellant to Dr. Raju M. Vanapalli, a Boardcertified orthopedic surgeon, for a second opinion examination. On January 8, 2013
Dr. Vanapalli reviewed appellant’s history of injury and medical treatment. He noted that the
primary complaint was of lower back and left hip pain, aggravated by sitting. Appellant rated his
pain as 4 on a scale of 1 to 10. Dr. Vanapalli reported that appellant was currently working his
regular job without restrictions. Physical examination of the cervical spine revealed no
deformity or tenderness and there was no radiating pain to the upper extremities. Dr. Vanapalli
also noted full range of motion in the cervical spine. Examination of the upper extremities
revealed good motor power. Also, sensation was intact in all dermatomes. Upper extremity
reflexes were 2+ bilaterally throughout all muscle groups (biceps, triceps and brachioradialis).
Examination of the dorsal lumbar and lumbosacral spines revealed no deformity. Appellant’s
pain was mostly over the left gluteal region and more specifically the trochanteric area.
Dr. Vanapalli noted tenderness in the area on deep palpation. He further noted that the pain did
not radiate into the lower extremities past the trochanteric region. Neurological examination of
the lower extremities was within normal limits. There was no sphincter dysfunction and pedal
pulses were 2+.
Dr. Vanapalli did not conduct any diagnostic tests because he did not believe it necessary.
His impression was low back pain and left gluteal region pain. Dr. Vanapalli found that
appellant currently had no dislocations of any cervical or lumbar vertebrae and that the accepted
conditions had resolved without residuals. Appellant continued to experience pain in the left
trochanteric region, which worsened with prolonged sitting. Dr. Vanapalli noted that appellant
had returned to his date-of-injury job without restrictions. He found that appellant had reached
3

A November 23, 2010 MRI scan of the lumbar spine revealed the vertebral body heights were well-maintained
and alignment was appropriate with no subluxation evident. There was mild facet arthropathy at L4-5 and L5-S1,
with a minor bulge versus protrusion at L5-S1.

2

maximum medical improvement and there was no permanent partial impairment as his
symptoms had resolved.
By decision dated April 5, 2013, OWCP denied appellant’s claim for a schedule award
based on Dr. Vanapalli’s January 8, 2013 opinion.
Appellant requested a hearing, which was held on August 13, 2013.
OWCP received treatment records dated April 15 to October 13, 2013 from
Dr. Kabakibou. Appellant was seen for a lumbar sprain and strain and lumbosacral spondylosis;
however, Dr. Kabakibou did not address permanent impairment or provide an impairment rating.
In a decision dated November 1, 2013, an OWCP hearing representative affirmed
OWCP’s April 5, 2013 decision. She found that the weight of medical opinion was represented
by Dr. Vanapalli and did not establish any permanent impairment to appellant’s extremities
based on his cervical or lumbar conditions.
LEGAL PRECEDENT
Section 8107 of FECA 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.4 FECA,
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 Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) as the appropriate standard for
evaluating schedule losses.5 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).6
No schedule award is payable for a member, function or organ of the body that is not
specified in FECA or in the implementing regulations.7 The list of schedule members includes
the eye, arm, hand, fingers, leg, foot, and toes.8 Additionally, FECA specifically provides for
compensation for loss of hearing and loss of vision.9 By authority granted under FECA, the

4

For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C.
§ 8107(c)(2) and for total loss of use of an arm, an employee shall receive 312 weeks’ compensation. Id. at
§ 8107(c)(1).
5

20 C.F.R. § 10.404.

6

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6a (February 2013).
7

W.C., 59 ECAB 372, 374-75 (2008); Anna V. Burke, 57 ECAB 521, 523-24 (2006).

8

5 U.S.C. § 8107(c).

9

Id.

3

Secretary of Labor expanded the list of schedule members to include the breast, kidney, larynx,
lung, penis, testicle, tongue, ovary, uterus/cervix, and vulva/vagina and skin.10
Neither FECA nor the regulations provide for the payment of a schedule award for the
permanent loss of use of the back, spine or the body as a whole.11 A schedule award is
permissible where an employment-related spinal condition affects the upper or lower
extremities.12 The sixth edition of the A.M.A., Guides provides a specific methodology for
rating spinal nerve extremity impairment.13 It was designed for situations where a particular
jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the spine.
FECA-approved methodology is premised on evidence of radiculopathy affecting the upper or
lower extremities. The appropriate tables for rating spinal nerve extremity impairment are
incorporated in FECA procedure manual.14
ANALYSIS
Appellant’s claim was accepted by OWCP for dislocation of cervical and lumbar
vertebrae. He claimed a schedule award under FECA.15 Dr. Kabakibou, appellant’s attending
pain management specialist, did not provide an impairment rating with respect to his cervical or
low back conditions. He did not address permanent impairment or state whether appellant was at
maximum medical improvement. OWCP, therefore, referred appellant to Dr. Vanapalli for
further evaluation regarding his claim for a schedule award.
Dr. Vanapalli examined appellant on January 8, 2013. He provided an accurate review of
the accepted employment injury, statement of accepted facts and the accepted dislocations of
lumbar and cervical vertebrae. Dr. Vanapalli noted appellant’s chief complaint of low back and
left hip pain, aggravated by sitting. On examination of the cervical spine, he found no deformity,
tenderness or radiating pain into the upper extremities. There was a full range of motion of the
cervical spine. The upper extremities and shoulders showed good power present, sensations in
all dermatomes and equal reflexes of the biceps, triceps and brachioradialis. The lumbar spine
showed no deformity. Appellant complained of pain over the trochanteric area on deep
palpation, but it did not radiate into the lower extremities past this region. Neurological
examination of the lower extremities was within normal limits. Dr. Vanapalli noted that prior
MRI scan testing of appellant’s lumbar spine was normal after the injury, with evidence of a
bulging disc and facet joint arthrosis after November 20, 2010. He noted that the medical
records attributed appellant’s degenerative disease of the lumbar spine to obesity. Dr. Vanapalli
found that appellant was at maximum medical improvement with no permanent impairment to
10

Id. at § 8107(c)(22); 20 C.F.R. § 10.404(b).

11

Supra note 8; id. at § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

12

Supra note 6 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6a(3).

13

The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009).
14

Supra note 6 at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4.

15

20 C.F.R. § 10.115(f).

4

the upper or lower extremities based on the accepted conditions, which he noted had resolved.
He noted that appellant had resumed his regular employment with no restrictions.
The Board finds that the weight of medical opinion is represented by the
well-rationalized report of Dr. Vanapalli, the second opinion examiner, who reviewed an
accurate history of the employment injury and accepted conditions. Dr. Vanapalli reviewed the
treatment records and diagnostic tests obtained of the lumbar spine. He advised that appellant
complained of pain, primarily in the trochanteric region that was not radiating into the lower
extremities. Neurological examination was within normal limits. Dr. Vanapalli’s examination
found that appellant had no cervical complaints or radiculopathy from the cervical region into the
upper extremities. Based on his report, OWCP properly determined that appellant did not
establish permanent impairment to any extremity based on his accepted cervical or lumbar
conditions.
On appeal, counsel argued that FECA-approved methodology for rating spinal nerve
impairment to the extremities was “junk science.” The Board has previously considered this
contention.16 As noted, the Board has determined that OWCP properly exercised its authority
when implementing the current methodology for rating spinal nerve extremity impairment under
the A.M.A., Guides (6th ed. 2008).
CONCLUSION
The Board finds that appellant has not established that he sustained permanent
impairment of any extremity due to his accepted conditions.

16

See D.S., Docket No. 14-12 (issued March 18, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).

5

ORDER
IT IS HEREBY ORDERED THAT the November 1, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 25, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


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

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

Docket No. 19-0861
Issued: September 21, 2020

Case Submitted on the Record

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

JURISDICTION
On December 11, 2018 appellant filed a timely appeal from a July 6, 2018 merit decision
and a September 6, 2018 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.3

1
Appellant timely requested an oral argument before the Board pursuant to 20 C.F.R. § 501.5(b). By order dated
July 20, 2020, the Board exercised its discretion and denied the request for oral argument as the matter could be
adequately addressed based on a review of the evidence of record. Order Denying Request for Oral Argument, Docket
No. 19-0861 (issued July 20, 2020).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 6, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a right upper
extremity condition causally related to the accepted March 8, 2018 employment incident; and
(2) whether OWCP properly denied her request for an oral hearing as untimely filed pursuant to
5 U.S.C. § 8124(b).
FACTUAL HISTORY
On March 13, 2018 appellant, then a 53-year-old learning development and diversity
manager, filed a traumatic injury claim (Form CA-1) alleging that on March 8, 2018 she
experienced right wrist pain radiating into her elbow when she moved a parcel from the bottom of
a mail hamper while in the performance of duty. She did not stop work.
In a report dated March 8, 2018, Dr. Cathy Hammond-Moulton, Board-certified in family
practice, advised that appellant was “reopening a case from 2016 for pain in the wrist and the
forearm.” She reviewed appellant’s complaints of intermittent wrist and forearm pain and altered
sensation in the fingers and forearm. Dr. Hammond-Moulton noted that appellant related that she
had not fully recovered after the initial injury and had performed “administrative work that she
thinks recently could have contributed to the increase in soreness.” On examination she found
tenderness in the lateral epicondyle. Dr. Hammond-Moulton diagnosed a right wrist sprain and
lateral epicondylitis of the right elbow. She found that appellant’s elbow condition was unrelated
to her original injury. Dr. Hammond-Moulton further related that her current symptoms were “not
the result of the initial injury, but perhaps strain due to routine, repetitive use of the hand and wrist
in general.” She opined that appellant might have degenerative joint disease of the hand and wrist.
In an unsigned work activity status report of the same date, Dr. Hammond-Moulton advised that
she could return to her usual employment on March 9, 2018.
On March 14, 2018 Dr. Hammond-Moulton evaluated appellant for elbow, wrist, hand,
and finger pain and indicated that she was being treated for a workers’ compensation injury. She
diagnosed a right forearm strain, lateral epicondylitis of the right elbow, and a right wrist sprain.
Dr. Hammond-Moulton found that appellant had reached maximum medical improvement and
could resume work without limitations. In an unsigned work activity status report of the same
date, she opined that she could return to her usual employment.
In a development letter dated May 17, 2018, OWCP informed appellant that when it had
received her claim it had appeared that her injury was minor and had resulted in minimal or no lost
time from work. It had administratively approved payment of a limited amount of medical
expenses without formally adjudicating the merits of the claim. OWCP requested that she submit
additional factual and medical information, including a comprehensive report from a physician
addressing the causal relationship between a diagnosed condition and the claimed employment
incident. It afforded appellant 30 days to submit the necessary evidence.
In a note dated June 19, 2018, Dr. F. Clarke Holmes, Board-certified in sports medicine,
requested that appellant be excused from work for four weeks after a scheduled July 10, 2018
procedure.

2

In a form report dated June 29, 2018, Dr. Holmes advised that appellant had chronic right
lateral epicondylitis with pain and dysfunction. He specified the approximate date that the
condition had begun as March 8, 2018. Dr. Holmes indicated that appellant was unable to perform
her work duties due to her condition as she could not lift over five pounds or perform repetitive
work with the upper extremity. He found that she was disabled from work from July 10 to
August 7, 2018 and that she might have periodic flare-ups in the future preventing her from
performing her employment.
By decision dated July 6, 2018, OWCP found that appellant had established that the
March 8, 2018 employment incident occurred as alleged. It denied the claim, however, finding
that the medical evidence of record was insufficient to establish causal relationship between her
diagnosed condition and the accepted employment incident.
On an appeal request form dated August 4, 2018 and postmarked August 9, 2018 appellant
requested an oral hearing in the form of a telephonic hearing before a representative of OWCP’s
Branch of Hearings and Review.
By decision dated September 6, 2018, OWCP denied appellant’s hearing request as
untimely filed. It determined that she was not entitled to an oral hearing as a matter of right under
5 U.S.C. § 8124(b) because her hearing request was postmarked more than 30 days after it had
issued its July 6, 2018 decision. OWCP considered whether to grant a discretionary hearing, but
determined that the matter could equally well be addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 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 filed within the applicable time
limitation of FECA,5 that an injury was sustained while in the performance of duty as alleged, and
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7
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.8
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. The first component is whether the employee actually experienced the employment
4

Supra note 2.

5
S.C., Docket No. 18-1242 (issued March 13, 2019); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

T.H., Docket No. 18-1736 (issued March 13, 2019); R.C., 59 ECAB 427 (2008).

7

T.E., Docket No. 18-1595 (issued March 13, 2019); Delores C. Ellyett, 41 ECAB 992 (1990).

8

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388 (2008).

3

incident that allegedly occurred.9 The second component is whether the employment incident
caused a personal injury.10
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence. The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment incident.11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a right upper
extremity condition causally related to the accepted March 8, 2018 employment incident.
On March 8, 2018 Dr. Hammond-Moulton evaluated appellant for intermittent pain in her
wrist and forearm and altered sensation of the fingers and forearm. She obtained a history of
appellant sustaining an increase in pain after performing administrative work.
Dr. Hammond-Moulton diagnosed right wrist sprain and right elbow lateral epicondylitis. She
opined that the current conditions may be due to repetitive hand use. Dr. Hammond-Moulton did,
however, provide an opinion on causal relationship between appellant’s conditions and the
accepted March 8, 2018 employment incident.12 Therefore, her opinion is insufficient to establish
causal relationship.
In a progress report dated March 14, 2018, Dr. Hammond-Moulton diagnosed right forearm
strain, lateral epicondylitis of the right elbow, and a right wrist sprain. She found that she could
perform her usual employment. Dr. Hammond-Moulton did not provide an opinion on causal
relationship. The Board has held that medical evidence that does not offer an opinion regarding
the cause of an employee’s condition is of no probative value on the issue of causal relationship.13
Therefore, this report is insufficient to establish the claim.
On June 19, 2018 Dr. Holmes found that appellant would be unable to work for four weeks
after a June 10, 2018 procedure. In a form report dated June 29, 2018, he diagnosed chronic right
lateral epicondylitis that had begun on March 8, 2018. Dr. Holmes opined that appellant was
disabled from her usual employment. In these reports, he failed to provide an opinion regarding
causation. As noted, medical evidence that does not offer an opinion regarding the cause of an

9

E.M., Docket No. 18-1599 (issued March 7, 2019); Bonnie A. Contreras, 57 ECAB 364 (2006).

10

Id.

11

See S.S., supra note 8; H.B., Docket No. 18-0781 (issued September 5, 2018).

12

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

13

Id.

4

employee’s condition is of no probative value on the issue of causal relationship.14 Therefore, this
evidence is insufficient to meet appellant’s burden of proof to establish her claim.
As the evidence of record does not contain a rationalized medical opinion explaining causal
relationship between appellant’s diagnosed condition and the accepted employment incident the
Board finds that appellant has not met her burden of proof.
On appeal appellant contends that she sustained an injury while fulfilling her work duties
and describes her pain performing activities of daily living. As discussed, however, she has the
burden of proof to submit rationalized medical evidence sufficient to establish a medical condition
caused or aggravated by the accepted employment incident.15
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124 of FECA, concerning a claimant’s entitlement to a hearing before an OWCP
hearing representative, provides that a claimant is entitled to a hearing before an OWCP
representative when a request is made 30 days after issuance of an OWCP final decision.16
A hearing is a review of an adverse decision by an OWCP’s hearing representative.
Initially, the claimant can choose between two formats: an oral hearing or a review of the written
record. In addition to the evidence of record, the claimant may submit new evidence to the hearing
representative.17 A request for either an oral hearing or a review of the written record must be
sent, in writing, within 30 days of the date of the decision for which the hearing is sought.18 A
claimant is not entitled to a hearing or a review of the written record if the request is not made
within 30 days of the date of the decision.19
OWCP has discretion to grant or deny a request that is made after the 30-day period for
requesting an oral hearing or review of the written record and must properly exercise such
discretion.20

14

Id.

15

See W.G., Docket No. 20-0439 (issued July 13, 2020).

16

5 U.S.C. § 8124(b)(1).

17

20 C.F.R. § 10.615.

18

Id. at § 10.616(a); B.V., Docket No. 18-1473 (issued April 23, 2019).

19

K.L., Docket No. 19-0480 (issued August 23, 2019).

20

Supra note 17 at § 10.616(b); see also F.M., Docket No. 18-0161 (issued May 18, 2018).

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ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely filed pursuant to 5 U.S.C. § 8124(b).
OWCP’s regulations provide that the hearing request must be sent within 30 days of the
date of the decision for which a hearing is sought.21 As appellant’s request was postmarked22
August 9, 2018, more than 30 days after OWCP’s July 6, 2018 merit decision, it was untimely
filed and she was not entitled to an oral hearing as a matter of right.23
OWCP has the discretionary power to grant an oral hearing even if the claimant is not
entitled to a review as a matter of right. The Board finds that OWCP, in its September 6, 2018
nonmerit decision, properly exercised its discretion by indicating that it had considered the matter
and had denied appellant’s request for a telephonic hearing because her claim could be equally
well addressed through a reconsideration application. Because reconsideration exists as an
alternative appeal right to address the issue raised by OWCP’s July 6, 2018 merit decision, the
Board finds that OWCP has not abused its discretion in denying appellant’s untimely hearing
request.24
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right upper
extremity condition causally related to the accepted March 8, 2018 employment incident. The
Board further finds that OWCP properly denied her request for an oral hearing as untimely filed
pursuant to 5 U.S.C. § 8124(b).

21

See supra note 16.

22

Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis
of the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings
and Reviews of the Written Record, Chapter 2.1601.4a (October 2011).
23

S.A., Docket No. 19-0613 (issued August 22, 2019).

24

See J.N., Docket No. 18-0646 (issued January 28, 2019).

6

ORDER
IT IS HEREBY ORDERED THAT the September 6 and July 6, 2018 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: September 21, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
STATION FIRE DEPARTMENT, Meridian, MS,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-1024
Issued: January 14, 2014

Case Submitted on the Record

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

On March 19, 2013 appellant filed an application for review of a January 7, 2013
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP), claim number
xxxxxx646, denying his request for reconsideration as it was not timely filed and failed to
establish clear evidence of error. The appeal was docketed as number 13-1024. The Board finds
that this case is not in posture for a decision.
On June 24, 2006 appellant, then a 42-year-old firefighter (Hazmat/Emergency Medical
Technician) filed an occupational disease claim alleging that his hearing loss was causally
related to factors of his federal employment. The evidence submitted included a November 22,
2005 audiogram and a November 22, 2005 injury notification form, in which a registered nurse
from the employing establishment diagnosed him with an occupational sensorineural hearing
loss. Appellant did not respond to a subsequent OWCP development letter. By decision dated
December 7, 2006, OWCP denied his claim on the grounds that he had not established that he
sustained a hearing loss in the performance of duty. There was no further action taken until
December 19, 2012, when appellant requested reconsideration. In his December 19, 2012 letter,
appellant alleged that his October 31, 2005 traumatic injury claim involving his left ear was
accepted by OWCP and that he believed the medical documentation and audio hearing
information provided in that claim supports his hearing loss claim. Factual and medial

information were submitted. By decision dated January 7, 2013, OWCP denied appellant’s
reconsideration request on the grounds that his request was untimely filed and that he failed to
present clear evidence of error on the part of OWCP.
A review of appellant’s claim history reflects that under case number xxxxxx343, OWCP
had accepted an October 31, 2005 traumatic injury claim. The record in the instant case,
however, does not contain any development of appellant’s claim in case number xxxxx343.
In light of the fact that appellant had identified the same claimed hearing loss in his
occupational disease claim as that of his accepted traumatic injury claim, it is essential for
OWCP to consolidate this occupational disease claim with the traumatic injury claim to
determine whether or not this is a duplicate claim. This will allow OWCP to consider all
relevant claim files in developing appellant’s claim. Moreover, to consider appellant’s appeal at
this stage would involve a piecemeal adjudication of the issues in this case and raise the
possibility of inconsistent results. It is the Board’s policy to avoid such an outcome.1 Because it
is essential for the Board to review the medical evidence contained in case number xxxxxx343 in
order to render a full and fair adjudication of the present appeal, this case will be set aside and
remanded to OWCP to consolidate case number xxxxxx646 with case number xxxxxx343.
Reconstruction of the record will be followed by a de novo decision on the merits of the claim, in
order to protect appellant’s appeal rights.2

1

See William T. McCracken, 33 ECAB 1197 (1982).

2

On remand, OWCP should review the evidence in both case files to determine whether appellant’s claim in
claim number xxxxxx646 constitutes a claim for a new injury or is a duplicate of claim number xxxxxx343.

2

IT IS HEREBY ORDERED THAT the January 7, 2013 decision be set aside and the
matter remanded to the Office of Workers’ Compensation Programs for further proceedings
consistent with this order.
Issued: January 14, 2014
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

3