United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SALISBURY VETERANS ADMINISTRATION
MEDICAL CENTER, Salisbury, NC, Employer
__________________________________________

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

Docket No. 09-256
Issued: August 3, 2009

Case Submitted on the Record

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

JURISDICTION
On November 4, 2008 appellant filed a timely appeal from an October 2, 2008 merit
decision of the Office of Workers’ Compensation Programs’ Branch of Hearings and Review.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant established that she sustained a right arm injury in the
performance of duty on January 24, 2008.
FACTUAL HISTORY
On February 4, 2008 appellant, a 38-year-old medical clerk, filed a traumatic injury claim
(Form CA-1) for a bruised right elbow. She attributed her injury to an event on January 24, 2008
when, while putting paper in the nurse closet, a 20-pound pack of paper fell on to her right arm

below the elbow area. The employing establishment controverted appellant’s claim on the
grounds that there was no medical evidence substantiating her claim.
Appellant submitted no evidence in support of her claim and, by letter dated February 5,
2008, the Office notified appellant that the evidence of record was insufficient to support her
claim. The Office requested that she submit additional evidence in support of her claim.
Responding to the Office’s letter, appellant submitted a January 24, 2008 treatment report
signed by an individual whose name is illegible. She also submitted a Form CA-16 dated
February 1, 2008.1
Appellant submitted a February 5, 2008 note signed by Dr. Acquawon Stallworth, Boardcertified in family medicine, Dr. Obioma Anukwuem, a Board-certified internist, and Dr. Deidra
McCants, Board-certified in family medicine, which stated that appellant could return to work on
February 13, 2008.
By report dated February 4, 2008, Dr. Stallworth reported that appellant had chronic right
shoulder pain for which she had undergone surgery in May 2007. He noted that on January 24,
2008 she was placing reams of paper in a closet when the paper fell and landed on her sore right
shoulder. Dr. Stallworth noted that appellant had reproducible pain with passive and active
movement of the right shoulder and weakness on the upper right extremity. He diagnosed her
with chronically painful right shoulder.
In a February 13, 2008 report, Dr. Christopher K. Nagy, a Board-certified orthopedic
surgeon, reported that appellant had some dependent edema and some swelling in her fingers.
His assessment of her condition was nerve injury/impingement versus dependent edema, upper
right extremity.
By decision dated March 12, 2008, the Office denied appellant’s claim because the
evidence of record was insufficient to establish that she sustained an injury as defined by the
Federal Employees’ Compensation Act.
Appellant disagreed and, through her attorney, requested a hearing. By letter dated
July 10, 2008, the Office notified her that a hearing was scheduled for August 12, 2008 at
11:00 a.m. and that she and/or her representative should be present.
Appellant submitted a treatment report concerning appointments occurring on March 12
and 25, 2008 signed by Dr. Nagy. On March 12, 2008 Dr. Nagy noted the presence of some
swelling in her arm as well as some tenderness in the right trapezial and supraspinatus region.
He also noted that, other than this swelling, appellant had no other deformities. Dr. Nagy’s
assessment was that her condition was secondary to a mild nerve stretch injury with resultant
pain and lack of function.
1

The Board notes that the Office issued a Form CA-16. A properly executed Form CA-16 creates a contractual
obligation, which does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim. See Elaine M. Kreymborg, 41 ECAB 256, 259 (1989). The Form CA-16 issued to
appellant authorized examination of appellant by OrthoCarolina Clinic of Charlotte, North Carolina, and was
properly executed.

2

In a subsequent report dated April 17, 2008, Dr. Nagy reported that appellant was still
experiencing some generalized aches, pains and burning sensations in her arm. In a May 29,
2008 medical report, he reported that appellant’s arm was tender in the subacromial space but
that she was neurovascularly intact. Dr. Nagy reported that x-rays revealed no abnormalities.
Moreover, in August 25, 2008, he noted that there was some swelling present in appellant’s arm
and she experienced pain with mobilization.
By decision dated October 2, 2008, the Office’s Branch of Hearings and Review affirmed
the Office’s March 12, 2008 decision because the evidence of record failed to establish that the
diagnosed right upper extremity condition was causally related to an employment-related
incident. The hearing representative also noted that the evidence failed to establish a firm injuryrelated diagnosis.
LEGAL PRECEDENT
An employee seeking benefits under the Act2 has the burden of proof to establish the
essential elements of her claim by the weight of the evidence,3 including that she sustained an
injury in the performance of duty and that any specific condition or disability for work for which
she claims compensation is causally related to that employment injury.4 As part of her burden,
the employee must submit rationalized medical opinion evidence based on a complete factual
and medical background showing causal relationship.5 The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested and the medical rationale expressed in support of the physician’s opinion.6
Furthermore, a person who claims benefits for a work-related condition has the burden of
establishing by the weight of the medical evidence a firm diagnosis of the condition claimed and
a causal relationship between that condition and factors of federal employment.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.8 Second, the employee must submit

2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
5

G.T., supra note 4; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

7

See Roy L. Humphrey, 57 ECAB 238 (2005).

8

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

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evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.10
ANALYSIS
Appellant filed a traumatic injury claim for a bruised right elbow. She alleged that her
injury arose from an employment-related event when a 20-pound pack of paper fell on to her
right arm near the elbow area. As noted above, appellant’s burden is to demonstrate, through the
production of rationalized medical opinion evidence, based upon a complete factual and medical
background, a causal relationship between a firmly diagnosed medical condition and an
employment-related incident. The Board finds the evidence of record insufficient to satisfy her
burden of proof because it lacks a firm diagnosis and a rationalized medical opinion causally
relating the diagnosed condition to the employment incident.
The relevant medical evidence of record consisted of reports and notes from
Drs. Stallworth and Nagy.11 These physicians defined appellant’s medical condition using a
myriad of descriptive terms, including “nerve injury/impingement vs. dependent edema,” mild
nerve stretch and chronically painful right shoulder. This fact raises three issues that are
pertinent to the analysis and disposition of appellant’s appeal.
First, medical opinions that are speculative or equivocal in character are of diminished
probative value. Dr. Nagy’s February 13, 2008 medical report diagnosed appellant’s condition
“nerve injury/impingement vs. dependent edema, upper right extremity.” The Board notes that
by virtue of his use of “vs.” in his diagnosis, Dr. Nagy’s opinion is, at best, speculative, if not
vague and equivocal, and therefore of no probative value.12

9

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
10

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

The Board acknowledges that appellant submitted a note that was also signed by Drs. Anukwuem and
McCants. This note, however, merely stated that appellant could return to work on February 13, 2008, and did not
present anything of analytical significance to the relevant analysis such as a review of appellant’s medical history or
a diagnosis and, therefore, is not included in the tranche of relevant medical evidence for purposes of this analysis.
12

D.D., 57 ECAB 734 (2006).

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Secondly, Dr. Stallworth’s report reflects that appellant had a prior right shoulder injury
for which she had undergone surgery in May 2007 and that his history regarding the
January 2008 injury was that the ream of paper fell and landed on appellant’s chronically sore
right shoulder. This history of injury does not comport with appellant’s statements that during
the January 2008 event the ream of paper fell and struck her right arm below her elbow.
Furthermore, none of these physicians ever reduced appellant’s condition to a firm
diagnosis which they causally linked to the employment-related event.13 The Board has held that
medical reports lacking an opinion on causal relationship are of limited probative value.14 Thus,
these reports lack probative medical value in that they do not provide a firm diagnosis, are vague
and equivocal, and fail to explain the causal relationship between appellant’s condition and any
work-related exposures.15
Although appellant alleged that her condition arose from a January 24, 2008
employment-related event when a 20-pound pack of paper fell on to her right arm near the elbow
area, her allegation, in and of itself, is not sufficient to satisfy her burden of proof.16 The Board
has held that the mere fact that a condition manifests itself during a period of employment does
not raise an inference that there is a causal relationship between the two.17 Neither the fact that
the condition became apparent during a period of employment nor the belief that the condition
was caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.18 Causal relationship must be substantiated by reasoned medical opinion evidence,
which appellant failed to submit. Therefore, appellant’s belief that her condition was caused by
the alleged work-related injury is not determinative.
The Office advised appellant of the evidence required to establish her claim; however,
appellant failed to submit such evidence. Appellant did not provide a firm diagnosis of her right
arm condition or a medical opinion that sufficiently described or explained how the January 24,
2008 employment-related event caused an injury. As she has failed to submit any probative
medical evidence establishing that she sustained an injury in the performance of duty, the Office
properly denied appellant’s claim for compensation.

13

See Roy L. Humphrey, supra note 7; see Naomi A. Lilly, supra note 6.

14

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value). See also Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52
ECAB 332 (2001).
15

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

16

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s self-serving declarations do not, in the opinion of
the Board, constitute evidence of a sufficiently substantial nature).
17

See Joe T. Williams, 44 ECAB 518, 521 (1993).

18

Id.

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CONCLUSION
The Board finds that appellant has failed to meet her burden of proof in establishing that
her claimed right arm injury was sustained in the performance of duty on January 24, 2008.
ORDER
IT IS HEREBY ORDERED THAT the October 2 and March 12, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 3, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF THE ARMY, FORT McCOY, )
Sparta, WI, Employer
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___________________________________________ )
E.M., Appellant

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

Docket No. 06-1946
Issued: July 13, 2007

Case Submitted on the Record

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

JURISDICTION
On August 21, 2006 appellant filed a timely appeal from an August 24, 2005 nonmerit
decision of the Office of Workers’ Compensation Programs finding that his request for
reconsideration was untimely filed and failed to show clear evidence of error. The most recent
merit decision is dated July 24, 1996. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board’s
jurisdiction is limited to final decisions of the Office issued within one year of the filing of the
appeal. The Board does not have jurisdiction over the merits of the claim on this appeal.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request for reconsideration was untimely
filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On February 14, 1979 appellant, then a 46-year-old boiler fireman, filed a traumatic
injury claim alleging that on February 9, 1979 he bumped his forehead on a pipe length on a

truck and sustained injury to his back. The claim was accepted for acute muscle spasm with
C5-6 radiculopathy and for a discectomy and fusion at C5, C6-7. Appellant received appropriate
compensation until June 18, 1994.
By decision dated July 13, 1994, the Office terminated appellant’s compensation benefits
effective June 18, 1994 due to his refusal of a suitable light-duty job, i.e., a position as an orders
clerk for the employing establishment. The Office found that a conflict in medical opinion arose
between appellant’s treating physician, Dr. Eugene Carlisle, a Board-certified orthopedic
surgeon, and the second opinion physician, Dr. Michael Plooster, a Board-certified orthopedic
surgeon, with regard to appellant’s ability to work the light-duty position. The Office referred
appellant to Dr. Gay R. Anderson, a Board-certified orthopedic surgeon, to resolve the conflict.
Dr. Anderson stated that appellant could perform the duties of the offered position. By decision
dated July 17, 1995, the hearing representative affirmed the Office’s decision of June 20, 1994.
In response to a request for reconsideration, on July 24, 1996, the Office issued a decision
denying modification of its prior decisions. Subsequent requests for reconsideration were denied
by the Office without merit review on February 4 and March 17, 1997.
By letter dated July 15, 2005, appellant’s congressional senatorial representative
requested that the Office provide him with current information on appellant’s appeal. The Office
treated this letter as a request for reconsideration. Appellant submitted a May 10, 2005 letter by
his treating physician, Dr. Carlisle, who noted that he had followed appellant for his injuries and
illnesses for many years, even preceding 1992. Dr. Carlisle reiterated his prior opinions of
November 19, 1992 and August 15, 1996 that appellant was totally and permanently disabled.
He noted that appellant continued to have chronic pain related to the employment injury of
February 9, 1979.
By decision dated August 24, 2005, the Office denied appellant’s request for
reconsideration as it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.1
The Office will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.2 When an application for review is
untimely, the Office undertakes a limited review to determine whether the application presents
clear evidence that the Office’s final merit decision was in error.3 The Office’s implementing
procedures state that the Office will reopen a claimant’s case for merit review, notwithstanding
the one-year filing limitation set forth at section 10.607, if the claimant’s application for review

1

5 U.S.C. §§ 8101-8193.

2

20 C.F.R. § 10.607(b); see Gladys Mercado, 52 ECAB 255 (2001).

3

Cresenciano Martinez, 51 ECAB 322 (2000).

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shows clear evidence of error. In this regard, the Office will limit its focus to a review of how
the newly submitted evidence bears on the prior evidence of record.4
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office. To show clear
evidence of error, the evidence submitted must be of sufficient probative value to prima facie
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of the Office decision. The Board makes an independent determination of whether a
claimant has submitted clear evidence of error on the part of the Office.5
ANALYSIS
The last merit decision in this case was dated July 24, 1996. The date of request for
reconsideration was July 15, 2005. Since the application for reconsideration was filed more than
one year after the last merit decision, it is untimely pursuant to 20 C.F.R. § 10.607(a).
The underlying decision terminated appellant’s compensation benefits because he refused
an offer of suitable work. On reconsideration, appellant submitted a report from his attending
physician, Dr. Carlisle, who restated his prior opinion that he was totally disabled. This is
repetitive of Dr. Carlisle’s earlier opinions of record. The Office had already considered
Dr. Carlisle’s opinion, noted that it differed from the opinion of Dr. Plooster, the second opinion
physician, and referred appellant for an impartial medical examination by Dr. Anderson. The
Office relied upon Dr. Anderson’s opinion to find that the position offered by the employing
establishment was suitable to appellant’s physical limitations. Dr. Carlisle’s opinion does not
add any new findings to appellant’s case and accordingly does not show clear evidence of error
on the part of the Office in determining that appellant refused suitable employment.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of his claims on the grounds that his request for reconsideration was
untimely filed and failed to demonstrate clear evidence of error.

4

20 C.F.R. § 10.607.

5

Alberta Dukes, 56 ECAB ___ (Docket No. 04-2028, issued January 11, 2005).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 24, 2005 is affirmed.
Issued: July 13, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Washington, DC,
Employer
__________________________________________

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

Docket No. 21-1060
Issued: March 11, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 5, 2021 appellant filed a timely appeal from a February 2, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’

1

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the Board’s Rules
of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In support of appellant’s
oral argument request, she asserted that oral argument should be granted because the evidence of record was sufficient
to establish that she was totally disabled from work due to her accepted employment-related condition. The Board, in
exercising its discretion, denies appellant’s request for oral argument because the arguments on appeal can adequately
be addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay
issuance of a Board decision and not serve a useful purpose. As such, the oral argument request is denied and this
decision is based on the case record as submitted to the Board.

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
ISSUE
The issue is whether appellant has met her burden of proof to establish disability from work
for the period November 13, 2020 through January 30, 2021 causally related to her accepted
March 23, 2020 employment injury.
FACTUAL HISTORY
On April 27, 2020 appellant, then a 60-year-old nurse, filed a traumatic injury claim (Form
CA-1) alleging that on March 23, 2020 she contracted COVID-19 while in the performance of
duty. She stopped work on the date of injury and has not returned. On July 20, 2020 OWCP
accepted the claim for COVID-19.
OWCP received hospital records dated April 2 through July 13, 2020, which indicated that
appellant was admitted to the intensive care unit (ICU) on April 2, 2020 and treated for acute
hypoxic respiratory failure and acute renal failure due to COVID-19. The hospital records also
addressed her subsequent physical and occupational therapy.
In a June 22, 2020 letter, Dr. Anna-Carson Rimer Uhelski, an internist, advised appellant
that she should not return to work while she was recovering in the hospital. She also advised that
appellant could be in the hospital through 2020 with a possible return -to-work date of
January 1, 2021.
Dr. Robert S. Mayer, Board-certified in physical medicine and rehabilitation, indicated in
a letter dated July 15, 2020 that appellant could benefit from a home health aide six to eight hours
per day over the next one to two months to assist her with the performance of activities of daily
living (ADLs).
In an undated response to a questionnaire, appellant noted her symptoms and/or conditions
of COVID-19, organ failure of the kidney, lungs, and heart, pneumonia in both lungs, high fever,
coughing, and bacterial infections. She also noted that she was on a ventilator and an
extracorporeal membrane oxygenation bypass portable machine for her lungs and heart and on
dialysis for her kidneys. Additionally, appellant took blood pressure medication, underwent a
tracheostomy, was incubated, and received blood transfusions. She indicated that her conditions
were caused by her employment. Appellant further indicated that she was disabled from work for
the period March 25 through December 31, 2020 due to her conditions.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the issuance of the February 2, 2021 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.

2

On December 15 and 16, 2020 appellant filed claims for compensation (Form CA-7) for
disability from work for the period November 13 through December 11, 2020.
OWCP, in a December 18, 2020 development letter, informed appellant of the deficiencies
of her wage-loss compensation claim. It advised her of the type of medical evidence needed and
afforded her 30 days to respond.
Appellant filed additional CA-7 forms for disability from work through January 30, 2021.
OWCP received additional medical evidence. In a progress note dated August 4, 2020,
Dr. Daniel R. A. Sova, a physiatrist, noted appellant’s history of injury and medical treatment. He
discussed examination findings. Dr. Sova provided assessments that included no signs of anxiety,
depression, or post-traumatic stress disorder (PTSD). He also noted a history of hypoxic
respiratory failure, noting that a tracheostmy tube had been removed, acute renal failure, noting
that appellant remained off dialysis, right and left upper extremity catheter-associated thrombosis,
atrial fibrillation with rapid ventricular response (RVR), klebsiella pneumonia for which she had
finished a course of treatment, Coagulase-negative staphylococci (CoNS) bacteremia, and that
there was a concern for seizure for which she took medication. Dr. Sova noted that she denied any
current COVID-19-related symptoms. He also noted that appellant received home physical and
occupation therapy treatment and treatment from a speech language pathologist. Appellant
reported that she was making progress with her physical function and endurance.
Dr. Ashral Fawzy, a pulmonologist, noted, in an August 12, 2020 progress note, that
appellant was treated for COVID-19-related symptoms of shortness of breath and voice
hoarseness, and screened for depression. He reported physical examination findings and
diagnostic and laboratory test results. Dr. Fawzy provided assessments of dyspnea, hoarse voice,
deep vein thromobosis (DVT), no significant depression or anxiety , 50 percent physical function,
and adequate cognitive function and no symptoms of memory loss. In a November 11, 2020
progress note, he concluded that, cognitively, appellant performed poorly with respect to her
memory, processing speed, and verbal ﬂuency. Dr. Fawzy noted that appellant denied problems
with mood, anxiety, trauma, or functional decline. He indicated that her scores suggested that she
may beneﬁt from a full neuropsychological examination given her pattern of cognitive deﬁcits.
In a September 4, 2020 report, Dr. Robert A. Wise, Board-certified in internal medicine
and pulmonology, noted that he performed a pulmonary function test, which demonstrated
moderate restrictive ventilatory defect, severe gas transfer defect, and variable extrathoracic
obstruction.
In a report of even date, Dr. Nathaniel Shalom and Dr. Stefan Zimmerman, both Boardcertified in diagnostic radiology, performed a computerized tomography (CT) scan of appellant’s
chest. Dr. Shalom and Dr. Zimmerman provided an impression of peripheral reticulations, ground
glass opacities, and consolidative opacities, which were compatible with the sequela of COVID19 infection; ground glass that could represent mild residual inﬂammation, areas of reticulation
and a cystic change compatible with mild ﬁbrosis, either secondary to COVID -19 infection or
preexisting; and additional multiple subcentimeter lymph nodes compatible with reactive change.
These physicians also provided: impressions of coronary artery calciﬁcations; dilatation of the
main pulmonary artery, which may be seen in the setting of pulmonary hypertension; incidental

3

thyroid nodule measuring greater than or equal to 1.5 centimeters in a patient with age greater than
or equal to 35, recommendation for an evaluation with a thyroid ultrasound on a nonemergent
basis; postsurgical changes of sleeve gastrectomy; and findings suggestive of a small intralobar
pulmonary sequestration in the inferomedial right lower lobe.
In a September 21, 2020 diagnostic report, Dr. Eva K. Ritzal, a Board-certified neurologist,
conducted electroencephalogram (EEG) testing, finding that it was normal with no epileptiform
discharges or lateralizing signs. She noted that this did not rule ou t the presence of a seizure
disorder.
An October 7, 2020 progress note signed by Dr. George T. Kannarkat, a Board-certified
internist, and Dr. Brett M. Morrison, a Board-certified neurologist, indicated that appellant was
evaluated for seizures. Appellant’s history of injury and medical treatment, physical examination
findings and diagnostic test results were provided. Dr. Kannarkat and Dr. Morrison noted that
appellant was recently very critically ill and that she had made a remarkable recovery. She had a
seizure while critically ill and brain imaging was notable for subcortical T2 flair hyper intensities
(non-speciﬁc, but may be chronic ischemic with superimposed changes in setting of critical illness)
and diffuse micro hemorrhages (likely from extracorporeal membrane oxygenation). An EEG,
which was performed while appellant was an inpatient, was diffusely slow, but there was no clear
focality. Dr. Kannarkat and Dr. Morrison indicated that they would use an EEG to risk stratify
given that she had some underlying structural etiology that could predispose her to seizure
although seizure was only in the setting of her critical illness. As appellant was on anticoagulation
for atrial fibrillation, a seizure in this setting could theoretically put her at risk for intracerebral
hemorrhage so this will be weighed in a risk benefit analysis of continuing automated external
defibrillators. Additionally, she had signs of proximal weakness in the right upper extremity and
bilateral lower extremities, and bilateral foot drop, left greater than right. Appellant also had
sensory loss and weakness in the left distal tibial distribution. There was no Tinel’s sign over the
tarsal tunnel. Dr. Kannarkat and Dr. Morrison related that if this continued to improve there was
no need for evaluation as this was the likely sequela of her prolonged critical illness, compression
from positioning, and multiple venous thrombotic events.
In an October 8, 2020 progress note, Dr. Lee M. Akst, a Board-certified otolaryngologist,
reported appellant’s history of injury and medical treatment. He discussed examination findings
and provided an assessment of posterior glottic diastasis after prolonged intubation and
tracheostomy secondary to COVID-19. In a report of even date, Dr. Grace Snow, an
otolaryngologist, performed a transnasal videostrobolaryngoscopy to treat appellant’s dysphonia.
In a progress note dated November 10, 2020, Dr. Sima Rozati, Board-certified in internal
medicine and dermatology, provided findings on physical examination of appellant and diagnosed
acne vulgaris, primary, hair loss, seborrheic dermatitis of the scalp, and post-inﬂammatory
hyperpigmentation.
In a November 23, 2020 progress note, Dr. Nelson Maniscalco, a podiatrist, indicated that
appellant presented with complaints of persistent left foot numbness. He reported findings on
physical, neurological, and dermatologic examination. Dr. Maniscalco diagnosed left lower limb
mononeuropathy and neuropathic left foot pain, gait abnormality, and history of COVID-19.

4

Dr. Sova, in an additional progress note dated December 1, 2020, reiterated his prior
assessments of no signs of anxiety, depression, or PTSD, and he noted that appellant had been
scheduled for an evaluation of her cognitive status. He noted that appellant had a history of
hypoxic respiratory failure, right and left upper extremity catheter-associated thrombosis, atrial
fibrillation with RVR, concern for seizures, and left foot numb ness and intermittent pain in the
first and fifth toes.
In a December 10, 2020 progress note, Dr. Zachary D. Berger, a Board-certified internist,
diagnosed stage 3 chronic kidney disease, dyspnea on exertion, voice hoarseness, unspecified type
of atrial fibrillation, history of DVT in adulthood, chronic anticoagulation, and left foot
neuropathic pain.
A December 23, 2020 progress note from Dr. Vasanth Sathiyakumar, a cardiologist,
reported appellant’s history of injury and medical treatment. He discussed examination and
reviewed laboratory test results. Dr. Sathiyakumar provided an assessment of essential
hypertension, hyperlipdima, and obstructive sleep apnea.
Progress notes dated November 3 and 18, and December 15 and 29, 2020 from Kristine M.
Pietsch, a certified speech language pathologist, provided an assessment that appellant presented
with severe dysphonia secondary to posterior glottic diastasis that negatively impacted
communication. Dr. Pietsch advised that appellant’s prognosis was fair.
OWCP also received clinic treatment, and progress notes dated September 30, 2020
through January 8, 2021 signed by Caroline C. Griffin, a registered occupational therapist,
Casey A. Houlihan, Allison Nogi, and Julia L. Falkenklous, physical therapists, and Blakeney T.
Patterson, an occupational therapist.
By decision dated February 2, 2021, OWCP denied appellant’s claim for disability. It
found that the medical evidence of record was insufficient to establish disability from work during
the claimed period due to the accepted employment injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.5 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled

4

Supra note 2.

5

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989). See also FECA Bulletin No. 20-05 (issued March 31, 2020) entitled Federal Employees
Contracting COVID-19 in Performance of Duty, which provides in pertinent part: “DISABILITY: FECA pays
compensation for partial or total disability of an employee resulting from injury in the performance of duty. Just as
with other conditions/claims, disability is claimed by the filing of a CA-7, Claim for Compensation, with the
employing agency and requires an incapacity because of an employment-related injury to earn wages.”

5

from work as a result of the accepted employment injury.6 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.7
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.8 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.9
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.10 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period November 13, 2020 through January 30, 2021 causally related to her accepted
March 23, 2020 employment injury.
In support of her claim for compensation, appellant submitted a June 22, 2020 opinion from
Dr. Uhelski. Dr. Uhelski found that appellant could not work while she was recovering in the
hospital and that she could be in the hospital through 2020. She advised that appellant could
possibly return to work on January 1, 2021. Dr. Uhelski’s opinion regarding appellant’s disability
status was speculative in nature. The Board has held that medical opinions that are equivocal or
speculative in nature are of diminished probative value. 12 Thus, the Board finds that Dr. Uhelski’s
June 22, 2020 opinion is insufficient to establish appellant’s disability claim.
The progress reports dated August 4 through December 23, 2020 from Drs. Sova, Fawzy,
Kannarkat, Morrison, Rozati, Maniscalco, Berger, Akst, Snow, Wise, and Sathiyakumar addressed
appellant’s diagnosed conditions, including COVID-19, and her medical treatment. However,
6

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
7

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

8

Id. at § 10.5(f); see, e.g., G.T., 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 397 (1999).

9

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

10

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

11

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
12

See M.L., Docket No. 20-1682 (issued June 24, 2021).

6

these reports did not offer an opinion addressing whether appellant was totally disabled from work
during the claimed period due to the accepted injury. As such, the Board finds that this medical
evidence is of no probative value and insufficient to establish appellant’s disability claim. 13
Appellant also submitted a September 4, 2020 chest CT scan report and a September 21,
2020 EEG report. The Board has held, however, that diagnostic studies, standing alone, lack
probative value on the issue of causal relationship as they do not address whether the accepted
employment injury resulted in appellant’s period of disability on specific dates. 14
Progress notes from the speech language pathologists and physical and occupational
therapists were also received. Speech pathologists, physical therapists, and occupational therapists
are not considered physicians as defined under FECA. 15 As such, this evidence is also of no
probative value and insufficient to establish the claim.
As noted, for each period of disability claimed, the employee has the burden of proof to
establish that he or she was disabled from work during the claimed period due to the accepted
employment injury. 16 As appellant has not submitted rationalized medical opinion evidence
sufficient to establish employment-related disability during the period November 13, 2020 through
January 30, 2021due to her accepted employment injury, the Board finds that she has not met her
burden of proof to establish her claim.
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.

13

Medical evidence that does not offer an opinion regarding the cause of an employee’s condition or disability is
of no probative value. See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued
July 6, 2018).
14

D.M., Docket No. 20-0548 (issued November 25, 2020); O.C., Docket No. 20-0514 (issued October 8, 2020);
R.J., Docket No. 19-0179 (issued May 26, 2020).
Section 8101(2) of FECA provides that the term physician includes “surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law.” 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion
under FECA); see also S.S., Docket No. 18-0081 (issued August 22, 2018); P.Y., Docket No. 16-1324 (issued July 24,
2017) (a speech pathologist is not considered a physician under FECA); F.H., supra note 5; R.L., Docket No. 19-0440
(issued July 8, 2019) (a physical therapist is not considered a physician under FECA); S.J., Docket No. 20-1061 (issued
December 22, 2020); J.R., Docket No. 19-0812 (issued September 29, 2020) (an occupational therapist is not
considered a physician under FECA).
15

16

Supra note 6.

7

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period November 13, 2020 through January 30, 2021, causally related to her accepted
March 23, 2020 employment injury.17
ORDER
IT IS HEREBY ORDERED THAT the February 2, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2022
Washington, DC

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

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

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

17

The Board notes that OWCP has not adjudicated appellant’s claims for compensation for subsequent periods of
disability causally related to her accepted employment injury.

8


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

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

Docket No. 10-1576
Issued: February 2, 2011

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 May 25, 2010 appellant filed a timely appeal from a February 18, 2010 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than an eight percent impairment to his right and
left arms.
FACTUAL HISTORY
On September 2, 2006 appellant, then a 50-year-old distribution supervisor, filed an
occupational claim (Form CA-2) alleging that her bilateral carpal tunnel syndrome was causally
related to her federal employment. On December 21, 2006 the Office accepted bilateral carpal
tunnel syndrome.

In a report dated February 25, 2009, Dr. Jacob Salomon, a surgeon, noted that appellant
had seven OWCP claims. He stated that he would provide an impairment rating for carpal tunnel
syndrome. In a report dated March 2, 2009, Dr. Milena Appleby, a neurologist, indicated that a
February 26, 2009 electromyogram (EMG) showed no signs of neuropathy or radiculopathy.
By report dated July 21, 2009, Dr. Salomon diagnosed bilateral carpal tunnel syndrome.
He provided grip strength results and stated that neurological examination showed decreased
pinprick sensation over the median nerve. Dr. Salomon opined that, under Table 15-21 of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (sixth
edition), appellant had a 17 percent left arm impairment and a 10 percent right arm impairment.
The case was referred to an Office medical adviser for evaluation. In a report dated
September 7, 2009, he opined that appellant had no ratable impairment. The Office medical
adviser noted that the February 26, 2009 EMG showed no signs of neuropathy or radiculopathy
and there was no objective basis for a permanent impairment rating.
By decision dated November 3, 2009, the Office found appellant was not entitled to a
schedule award as the medical evidence did not establish permanent impairment related to his
accepted conditions.
Appellant requested reconsideration on January 3, 2010. In a report dated October 23,
2009, Dr. Salomon stated that appellant had carpal tunnel syndrome and on examination the left
hand and wrist were swollen with decreased grip strength. He also opined that appellant had
developed complex regional pain syndrome (CRPS) in the left hand and wrist secondary to
carpal tunnel and cervical disc disease. Dr. Salomon indicated that appellant would be referred
to a pain management specialist for the CRPS.
In a report dated November 19, 2009, Dr. Anatoly Rozman, a neurologist, provided
results of a November 10, 2009 EMG. He reported moderate left median nerve entrapment
neuropathy and severe right median nerve entrapment neuropathy.
The Office referred the evidence to an Office medical adviser for evaluation. In a report
dated January 27, 2010, the medical adviser identified Table 15-23 of the A.M.A., Guides. He
opined that, with symptoms of bilateral carpal tunnel syndrome, bilateral positive EMG for
carpal tunnel syndrome (CTS) (right worse than left) and bilateral abductor pollicis brevis (APB)
muscle atrophy, appellant had eight percent impairment to each arm. The date of maximum
medical improvement was March 25, 2008.1
By decision dated February 18, 2010, the Office issued schedule awards for eight percent
permanent impairment to each arm. The period of the awards covered 49.92 weeks commencing
March 25, 2008.

1

The record contains a March 25, 2008 report from Dr. Martin Lanoff, a physiatrist, who was an Office referral
physician pursuant to another claim. He noted that a March 5, 2008 EMG did not show CTS.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants.4 The American Medical Association, Guides to
the Evaluation of Permanent Impairment has been adopted by the implementing regulations as
the appropriate standard for evaluating schedule losses.5 For schedule awards after May 1, 2009,
the impairment is evaluated under the sixth edition.6
ANALYSIS
The Office issued schedule awards for eight percent permanent impairment to each arm.
The diagnosis by Dr. Salomon was CTS and under the A.M.A., Guides an entrapment/
compression neuropathy is evaluated under Table 15-23.7 In a July 21, 2009 report, Dr. Salomon
had applied Table 15-21, which is for peripheral nerve impairments.8 The A.M.A., Guides
specifically state that the peripheral nerve impairment section is not to be used for nerve
entrapment.9 Dr. Salomon did not explain why Table 15-21 would be appropriate in this case
and therefore his opinion as to the degree of impairment is of diminished probative value.
The Board notes that in his October 23, 2009 report, Dr. Salomon briefly referred to a
diagnosis of complex regional pain syndrome (CRPS) for the left arm. The A.M.A., Guides does
provide a separate, “stand alone” method for a CRPS impairment that is not to be combined with
any other method for the same extremity.10 The A.M.A., Guides note, however, that an accurate
diagnosis is difficult and the diagnostic criteria under Table 15-24 must be met, as well as other
conditions, before an impairment rating based on CRPS can be made.11 Dr. Salomon did not
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

See Ronald R. Kraynak, 53 ECAB 130 (2001); August M. Buffa, 12 ECAB 324 (1961).

5

Supra note 3.

6

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

7

A.M.A., Guides 449, Table 15-23.

8

Id. at 436, Table 15-21.

9

Id. at 429.

10

Id. at 452.

11

Id. at 451. The other conditions include that the diagnosis has been present for a year, verified by more than
one physician, and other differential diagnoses have been ruled out.

3

provide a detailed description of the diagnosis12 or any evidence that would establish a basis for
an impairment rating from a CRPS diagnosis.
The Office medical adviser found that under Table 15-23 appellant had an eight percent
impairment to each arm. Under this table, a grade modifier is identified based on test findings,
physical findings and history. The default upper extremity impairment for grade modifier 3 is
eight percent, which is the highest default impairment under the table.13 The Office medical
adviser noted atrophy, symptoms and positive test findings to support his opinion. The default
may be modified up or down by one percent based on functional scale, an assessment of impact
on daily living activities. Even a severe rating on a functional scale is a grade modifier 3 and
would not modify the default value.14
The Board finds that the evidence of record does not establish more than an eight percent
permanent impairment to each upper extremity. The weight of probative medical opinion is
represented by the Office medical adviser. The Board notes that the number of weeks of
compensation for a schedule award is determined by the compensation schedule at 5 U.S.C.
§ 8107(c). For complete loss of use of the arm, the maximum number of weeks of compensation is
312 weeks. Since appellant’s impairment totaled eight percent to each arm, she is entitled to eight
percent of 312 weeks or 24.96 weeks of compensation for each arm. For both upper extremities,
this is a total 49.92 weeks of compensation. It is well established that the period covered by a
schedule award commences on the date that the employee reaches maximum medical improvement
from residuals of the employment injury.15 In this case, the Office medical adviser found the date
of maximum medical improvement was March 25, 2008, based on the medical evidence of record.
No contrary evidence was submitted.
On appeal, appellant submitted an additional medical report. The Board’s jurisdiction to
review evidence is limited to the evidence that was before the Office at the time of its final
decision.16 For the reasons noted above, the Board finds the evidence of record did not establish
more than an eight percent bilateral arm impairment.
CONCLUSION
The Board finds that the medical evidence does not establish more than an eight percent
permanent upper extremity impairment to each arm.
12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(c) (March 1995) (to support a schedule award, the attending physician must include a detailed
description of the impairment).
13

A.M.A., Guides 449, Table 15-23. A grade modifier 3 is for axon loss, constant symptoms and atrophy or
weakness.
14

The table indicates that an impairment of nine percent could be found, although this would apparently only
occur if the functional scale was beyond severe. No evidence supporting a modification to nine percent was
submitted.
15

Albert Valverde, 36 ECAB 233, 237 (1984).

16

20 C.F.R. § 501.2(c).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 18, 2010 is affirmed.
Issued: February 2, 2011
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Moab, UT
Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0774
Issued: September 26, 2017

Case Submitted on the Record

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

JURISDICTION
On February 24, 2017 appellant, through counsel, filed a timely appeal from a
January 23, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP properly found an overpayment in the amount of
$6,121.53 as his permanent impairment was no more than six percent of his left upper extremity;
and (2) whether appellant’s overpayment is subject to waiver.
FACTUAL HISTORY
On December 4, 2001 appellant, then a 44-year-old telecommunications specialist, filed a
traumatic injury claim (Form CA-1) alleging that he developed bruising and soreness in his
middle back, and extreme internal pain in his left shoulder. He alleged that the injury occurred
while carrying a 45-pound battery in a backpack and a 30-pound repeater with his left arm for
approximately two miles, up 500 to 750 feet of elevation, and over loose rocks on
November 27, 2001.
A left shoulder magnetic resonance imaging (MRI) scan on January 18, 2003 showed a
full thickness tear of the supraspinatus tendon on the rotator cuff.
OWCP accepted appellant’s claim on March 7, 2003 for left rotator cuff tear. On April 7,
2003 appellant underwent a diagnostic arthroscopy of the left shoulder with anterior Neer
acromioplasty, distal clavicle Mumford excision, and open complex rotator cuff repair. OWCP
placed appellant on the periodic rolls on April 28, 2003 effective April 7, 2003. Appellant
returned to light-duty work on June 3, 2003.
Appellant underwent a left shoulder MRI scan on October 25, 2003 which demonstrated
tendinosis of the supraspinatus and infraspinatus tendons with no full-thickness tear, but a
possible small partial thickness tear of the supraspinatus.
The employing establishment terminated appellant’s employment on January 25, 2004.
OWCP placed appellant on the periodic rolls effective January 25, 2004.
OWCP referred appellant for vocational rehabilitation on January 30, 2004. Appellant
returned to work at the employing establishment on March 5, 2005 as a purchasing agent with a
loss of wage-earning capacity. By decision dated May 11, 2005, OWCP found that the position
of purchasing fairly and reasonably represented appellant’s wage-earning capacity and reduced
his compensation benefits based on his actual earnings.3 Appellant returned to his date-of-injury
position with modifications on April 15, 2007. OWCP proposed to modify the formal loss of
wage-earning capacity decision dated May 11, 2005 on June 21, 2007 based on appellant’s
increased earnings. By decision dated June 23, 2007, OWCP reduced appellant’s wage-loss
compensation benefits to zero based on his actual earnings.
On September 17, 2012 appellant underwent an additional left shoulder MRI scan which
demonstrated postoperative changes, a defect in the supraspinatus tendon, intrasubstance
3

Appellant alleged that he sustained a back injury at the time of his initial injury on November 27, 2001. OWCP
denied his requests for diagnostic back treatments by decisions dated January 12, 2006 and January 19, 2006.
Appellant requested reconsideration of the January 19, 2006 decision. OWCP denied modification of the
January 19, 2006 decision on January 10, 2007.

2

delamination involving the infraspinatus tendon, and mild thickening of the biceps tendon with
no definitive full-thickness rotator cuff tear.
Appellant filed a claim for a schedule award (Form CA-7) on March 4, 2013. Dr. Lionel
Edwards Weeks, a Board-certified orthopedic surgeon, examined appellant on December 18,
2012 and found that he had reached maximum medical improvement (MMI) in regard to his left
shoulder.
Dr. Weeks diagnosed full-thickness rotator cuff tears of subscapularis and
supraspinatus tendons. He recommended surgery, but appellant declined. Dr. Weeks calculated
appellant’s left shoulder permanent impairment using the range of motion (ROM) method of
impairment rating under the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).4 He found that appellant had 24 percent permanent
impairment of his left upper extremity due to loss of ROM.5
Appellant filed an additional claim for a schedule award on May 24, 2013 which also
noted that he had a service connected low back condition.
OWCP referred appellant’s schedule award claim to Dr. Morley Slutsky, an OWCP
medical adviser Board-certified in occupational medicine, on November 14, 2013. Dr. Slutsky
determined that appellant had nine percent permanent impairment of his left upper extremity
using the diagnosis-based impairment (DBI) of the A.M.A., Guides.6 He diagnosed
acromioclavicular joint disease status post distal clavicle resection and determined that the DBI
method was the appropriate method for determining appellant’s percentage of permanent
impairment.
By decision dated November 25, 2013, OWCP granted a schedule award for nine percent
permanent impairment of his left arm. On December 3, 2013 counsel requested an oral hearing
from OWCP’s Branch of Hearings and Review.
Appellant had previously filed a traumatic injury claim on October 16, 2007 alleging that
on October 12, 2007 he injured his neck and middle back with tingling and numbness in both
arms. He attributed his condition to transporting solar radio equipment using a wheelbarrow and
dollies over 60 degree inclines, hills, and gullies with loose rocks, sand, and small brush. On
June 6, 2014 the employing establishment requested authorization for medical treatment for
appellant’s diagnosed conditions of cervical disc degeneration, cervical spinal stenosis,
cervicalgia, and radiculitis.
On June 4, 2014 Dr. Weeks asserted that under the A.M.A., Guides the ROM approach
was most appropriate to evaluate appellant’s permanent impairment for schedule award
purposes. Counsel appeared at the oral hearing on June 17, 2014. He argued that OWCP’s
medical adviser was biased.
4

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700, Exhibit 1 (January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.5a (February 2013).
5

A.M.A., Guides 475, Table 15-34; 477, Table 15-35, Table 15-36.

6

Id. at 403, Table 15-5.

3

Appellant underwent C5-6 and C6-7 anterior cervical decompression and fusion with
interbody implants on June 12, 2014.
On September 11, 2014 OWCP’s hearing representative vacated the November 25, 2014
schedule award decision, found a conflict between Dr. Weeks and Dr. Slutsky and remanded
appellant’s referral to an impartial medical examiner to determine the extent of his left shoulder
condition for schedule award purposes.
In a letter dated February 18, 2015, counsel requested that OWCP accept the additional
conditions of aggravation of preexisting degenerative process and cervical disc herniation.
By decision dated March 9, 2015, OWCP denied appellant’s claim for an increased
schedule award as the evidence was insufficient to establish additional permanent impairment
due to his accepted work injury. It found that appellant had not yet reached MMI. Counsel
requested an oral hearing on March 16, 2015.
In a decision dated March 25, 2015, OWCP accepted appellant’s claim for degeneration
of cervical intervertebral disc.7
Dr. Weeks examined appellant on May 13, 2015 and reviewed the September 17, 2012
MRI scan finding. He indicated that appellant had reached MMI on December 18, 2012.
Dr. Weeks noted that appellant did not wish any further treatment for his left shoulder, but that it
was possible in the future appellant might need a new MRI scan and surgery.
On October 5, 2015 appellant testified at the oral hearing regarding the March 9, 2015
schedule award denial. He stated that he had returned to full-time work and was not receiving
wage-loss compensation from OWCP. Appellant noted his current medical treatment and
advised that he had declined further left shoulder surgery.
By decision dated December 18, 2015, OWCP’s hearing representative vacated the
March 9, 2015 schedule award decision of OWCP and remanded the case for referral to an
impartial medical examiner.
On February 25, 2016 OWCP referred appellant to Dr. Richard Knoebel, a Boardcertified orthopedic surgeon, to resolve the conflict of medical opinion between Dr. Weeks and
OWCP’s medical adviser regarding the extent of appellant’s permanent impairment for schedule
award purposes.
Dr. Knoebel completed a report on April 5, 2016 and reported his findings of permanent
impairment. He examined both upper extremities and found that appellant had 12 percent loss of
ROM of his unaffected right arm and 13 percent loss of ROM of his left arm. Dr. Knoebel noted
that appellant had only an additional one percent loss of ROM of the left upper extremity8 and
concluded that appellant’s impairment was better addressed using the shoulder regional grid

7

In a July 21, 2015 letter, OWCP noted that the cervical spine surgery of June 12, 2014 was authorized.

8

A.M.A., Guides 386 (if the opposite extremity is uninvolved and not previously injured, it should be used to
define normal for that individual).

4

model and found that appellant had six percent permanent impairment of his left upper extremity
due to the DBI of rotator cuff injury, full thickness tear.9
OWCP’s medical adviser, Dr. Michael M. Katz, a Board-certified orthopedic surgeon,
reviewed Dr. Knoebel’s report on April 18, 2016. He opined that Dr. Knoebel properly applied
the A.M.A., Guides and concurred with Dr. Knoebel that appellant had no more than six percent
permanent impairment of his left upper extremity warranting a schedule award.
In a June 14, 2016 decision, OWCP found that appellant had not established an increased
impairment of his left arm. It noted that he had previously received a schedule award for nine
percent permanent impairment of his left arm and that the medical evidence currently established
no more than six percent left arm impairment. By decision dated June 15, 2016, OWCP issued
appellant a schedule award for six percent permanent impairment of his left arm, noting that
there was no further entitlement to compensation.
On June 15, 2016 OWCP made a preliminary finding that appellant received a $6,121.53
overpayment because new medical evidence established that he was overpaid schedule award
benefits. It found that he was without fault in the creation of the overpayment. OWCP noted
that appellant had received compensation for a nine percent schedule award or $25,506.09, but
was entitled to only six percent impairment or $19,384.56. It afforded him 30 days to request a
prerecoupment hearing and requested that he complete an overpayment recovery questionnaire
(OWCP-20) in order to consider the issue of waiver of recovery or to determine a reasonable
method for collection.
Counsel requested an oral hearing. He submitted a report dated November 17, 2016 from
Dr. Steven Rouzer, a family practitioner. Dr. Rouzer provided his findings on physical
examination and diagnosed spondylosis an spondylolisthesis of L4-5 and S1 causing sciatica in
appellant’s right leg.
Appellant testified at the oral hearing on November 30, 2016. OWCP’s hearing
representative noted that the issues were both the percentage of impairment of the left upper
extremity and overpayment. Appellant noted that he had retired.
In a January 23, 2017 decision, OWCP’s hearing representative found that the weight of
the medical evidence established that appellant had no more than six percent permanent
impairment of his left upper extremity based on the DBI rather than the ROM figures provided
by appellant’s physician.10 He further found that appellant had received an overpayment of
compensation in the amount of $6,121.53 for which he was without fault. The hearing
representative concluded that, as appellant failed to submit the requested financial information,
there was no basis for the waiver of the overpayment.

9

Id. at 403, Table 15-5.

10

On June 27, 2016 appellant filed a claim for compensation (Form CA-7) requesting leave without pay
compensation from March 3 through 30, 2016. OWCP issued a decision on January 19, 2017 denying appellant’s
claimed period of disability from March 3 through 30, 2016. Counsel did not appeal this decision to the Board, and
therefore the Board will not address this issue in this appeal. 20 C.F.R. § 501.3(c).

5

LEGAL PRECEDENT -- ISSUE 1
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.11 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.12 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. Through its
implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.13
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).14 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.15
ANALYSIS -- ISSUE 1
The issue on appeal is whether OWCP properly found an overpayment in the amount of
$6,121.53 as his permanent impairment was no more than six percent of his left upper extremity.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation had been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.16
11

See 20 C.F.R. §§ 1.1-1.4.

12

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).
13

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

14

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 2.808.5a (February 2013).
15

Isidoro Rivera, 12 ECAB 348 (1961).

16

T.H., Docket No. 14-0943 (issued November 25, 2016).

6

The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.17 In T.H., the Board concluded that OWCP physicians
were at odds over the proper methodology for rating upper extremity impairment, having
observed attending physicians, evaluating physicians, second opinion physicians, impartial
medical examiners, and district medical advisers use both DBI and ROM methodologies
interchangeably without any consistent basis. Furthermore, the Board observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board found that OWCP could no longer ensure
consistent results and equal justice under the law for all claimants.18
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the January 23, 2017 decision. Utilizing a
consistent method for calculating permanent impairment for upper extremities applied uniformly,
and after such other development as may be deemed necessary, OWCP shall issue a de novo
decision on appellant’s claim for an upper extremity schedule award.
CONCLUSION
The Board finds this case not in posture for decision. In view of the Board’s decision, the
issues of whether there is an overpayment and eligibility for waiver are premature.

17

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

18

Supra note 16.

7

ORDER
IT IS HEREBY ORDERED THAT the January 23, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further actions
consistent with this decision.
Issued: September 26, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


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

)
)
)
)
)
)
)
)

Appearances:
Stanley R. Stein, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0653
Issued: July 15, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 19, 2016 appellant, through counsel, filed a timely appeal from an
October 27, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
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 the case.
ISSUE
The issue is whether appellant met her burden of proof to establish left knee conditions
causally related to an October 17, 2014 employment incident.
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board.
20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board.
Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor,
subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of
fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

On appeal, counsel contends that OWCP erred by not accepting the medical rationale
contained in the September 21, 2015 report from her treating physician, Dr. Matthew W.
Heckler, a Board-certified orthopedic surgeon. Counsel further contends that the totality of the
medical evidence of record is sufficient to establish causal relationship entitling appellant to
compensation.
FACTUAL HISTORY
On October 17, 2014 appellant, a 58-year-old mail handler, filed a traumatic injury claim
(Form CA-1), alleging that she injured her left knee that day as a result of climbing off a forklift
by door 30 to move a bulk mail container (BMC) that was in the way. She stated that she took
three steps and her left knee popped while walking on the dock, then she grabbed the BMC to
keep from falling to the floor. Appellant did not stop work.
In emergency room reports dated October 17, 2014 Dr. Harold Guadalupe, a Boardcertified pediatrician, diagnosed left knee sprain and took appellant off work for three days.
On October 19, 2014 a registered nurse indicated that appellant was seen for a left knee
injury and called by radiology for a computerized tomography (CT) scan due to a possible
hairline fracture.
A CT scan of the left knee dated October 18, 2014 demonstrated questionable irregularity
of the lateral tibial plateau on the frontal projection, small knee joint effusion, and moderate
tricompartmental osteoarthrosis. An October 19, 2014 CT scan of the left knee showed no
evidence of acute fracture.
In an October 19, 2014 report, Dr. Ramesh C. Gupta, a Board-certified internal and
emergency medicine specialist, asserted that appellant was seen on October 17, 2014 for pain in
the left knee. He reported that CT scans of the left knee revealed a small effusion and
degenerative arthritis, but no evidence of fracture. Dr. Gupta diagnosed acute left knee pain
possibly secondary to strain and discharged appellant with an immobilizer and crutches.
On October 21, 2014 Dr. Harvey D. Rhodes, a Board-certified family practitioner,
asserted that appellant was seen for severe left knee pain and inability to bend the left knee. He
noted that she was injured on October 17, 2014 when she climbed down from a forklift and
started to walk forward. After two steps appellant had a painful pop in her left knee and was
unable to bend it. On examination, Dr. Rhodes found that she was unable to bend the left knee
or do any movement testing on the left knee joint. Appellant had mild pain along the medial
joint line and around the patella and was unable to tolerate any ligamentous testing because of
her discomfort. There was no redness or heat and the neurovascular examination of the lower
leg and foot was intact. Dr. Rhodes diagnosed locked left knee joint and left knee strain/sprain.
He noted that he was unable to perform any meaningful left knee examination, but the left knee
joint appeared locked in full extension. Dr. Rhodes opined that this raised concern regarding a
meniscal tear versus a loose body interfering with joint motion and requested a magnetic
resonance imaging (MRI) scan. On October 27, 2014 he reiterated his diagnoses and request for
a left knee MRI scan.

2

An October 27, 2014 MRI scan of the left knee revealed a medial meniscal tear,
tricompartmental osteophytosis, tricompartmental chrondromalacia, and synovitis with effusion.
In an October 27, 2014 report, Dr. Rhodes diagnosed internal derangement of the knee
and knee and leg sprain/strain. He opined that appellant’s conditions were causing temporary
total disability and took her off of work from October 27 to November, 3, 2014.
On November 3, 2014 Dr. Heckler diagnosed osteoarthritis of the lower leg and took
appellant off of work for three weeks pending injection and reevaluation.
Appellant requested authorization for left knee surgery on November 11, 2014.
In a November 17, 2014 letter, OWCP indicated 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 of this and since the employing establishment did not controvert continuation of pay or
challenge the case, payment of a limited amount of medical expenses was administratively
approved. It stated that it had reopened the claim for consideration because appellant had now
requested authorization for surgery. OWCP requested additional evidence and afforded her
30 days to respond to its inquiries for additional evidence.
In response, appellant submitted a December 9, 2014 narrative statement reiterating the
factual history of her claim and a November 26, 2014 report from Dr. Heckler who asserted that
she was seen for a follow up of her left knee. Dr. Heckler diagnosed left knee sprain and
osteoarthritis and opined that appellant’s “advanced arthritis [was] clearly preexisting and not
work related.”
By decision dated January 6, 2015,3 OWCP denied the claim as the medical evidence was
insufficient to establish a causal relationship between appellant’s diagnosed conditions and the
October 17, 2014 employment incident.
On January 28, 2015 appellant’s counsel requested an oral hearing before the Branch of
Hearings and Review and resubmitted medical and diagnostic reports dated October 17 through
November 26, 2014. Appellant also submitted new medical evidence, including a surgical report
indicating that she underwent a left total knee arthroplasty on December 30, 2014.
In a January 14, 2015 progress report, Dr. Heckler noted that appellant underwent a left
total knee replacement on December 30, 2014 and had mild swelling, but no signs of infection.
On February 11, 2015 he found mild swelling, but well-healed wounds.
On March 4, 2015 Dr. Heckler reported that appellant felt frustrated because she had
plateaued with her flexion nine weeks after surgery. He diagnosed contracture of the left knee
and recommended manipulation under anesthesia (MUA) of the left knee. In a March 11, 2015
report, Dr. Heckler noted that appellant had undergone MUA of the left knee on March 6, 2015.
He found that her range of motion was improving with daily physical therapy, but she was
concerned about a “knot” she felt in the posterior medial aspect of the knee, which she did not
3

The Board notes that although this decision was dated January 6, 2014, it is a harmless, typographical error.

3

recall prior to surgery. Dr. Heckler opined that appellant was capable of returning to work,
driving her forklift, lifting, pushing, and carrying as her pain tolerance allowed. He opined that
her “degree of arthritis was not work related, but as it had previously been asymptomatic, may
have been an exacerbation from her work-related injury.”
On August 7, 2015 Dr. Heckler opined that appellant aggravated her end-stage arthritis
with complete joint space collapse and tearing of the meniscus with the October 17, 2014
employment injury when she was getting off a fork lift, landed wrong on her left leg, and heard a
pop. He reiterated that “the arthritic changes were preexisting conditions and not directly
cause[d] by her work injury.” Dr. Heckler reviewed appellant’s medical history and diagnosed
torn medial meniscus, osteoarthritis, contracture, and complications due to an internal joint
prosthesis of the left knee. He opined that the torn medial meniscus was an acute injury
sustained at the time of the initial injury and was directly due to that injury. Dr. Heckler further
opined that the osteoarthritis was not directly caused by the work injury based on the review of
outside x-rays and testing, but this condition was definitely aggravated by the work injury. He
further opined that the history and mechanism of appellant’s injury was consistent with the
presentation of symptoms and objective findings. Dr. Heckler concluded that the knee
contracture and complication of internal joint prosthesis were both causally related to the original
injury as they occurred as a result of the initial injury and also that the subsequent surgery was
performed as a result of that injury.
A telephonic hearing was held before an OWCP hearing representative on
September 3, 2015. Appellant provided testimony and the hearing representative held the case
record open for 30 days for the submission of additional evidence.
Subsequently, appellant submitted a September 21, 2015 report from Dr. Heckler who
explained that it was only after an injury occurred that a patient began to have symptoms of pain
or limited range of motion or difficulty doing work or activities of daily living, which was a
fairly common occurrence that he had observed many times in his practice. Dr. Heckler
indicated that he based his medical opinion on those factors, including her ability to do her work
and activities of daily living prior to her injury and her inability to do work and activities of daily
living at full function after the injury. He asserted that appellant was not under active treatment
for her left knee prior to her injury and required care after the injury due to her pain and limited
range of motion, along with her inability to work or do her activities of daily living at full
function.
By decision dated October 27, 2015, the OWCP hearing representative affirmed the prior
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of her claim, including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable

4

time limitation period of FECA, that an injury4 was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is
causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that she actually experienced the employment incident at the
time, place, and in the manner alleged. Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury. An employee may establish that the employment incident occurred as alleged,
but fail to show that her condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence generally 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 employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
ANALYSIS
OWCP has accepted that the employment incident of October 17, 2014 occurred at the
time, place, and in the manner alleged. The issue is whether appellant’s left knee conditions
resulted from the October 17, 2014 employment incident. The Board finds that she has failed to
meet her burden of proof to establish a causal relationship between the conditions for which
compensation is claimed and the employment incident.
In his reports, Dr. Heckler diagnosed left knee sprain, torn medial meniscus,
osteoarthritis, contracture, and complications due to an internal joint prosthesis of the left knee.
On August 7, 2015 he opined that appellant aggravated her end-stage arthritis with complete
joint space collapse and tearing of the meniscus with the October 17, 2014 work injury when she
was getting off a forklift, landed wrong on her left leg, and heard a pop. Dr. Heckler opined that
the torn medial meniscus was an acute injury sustained at the time of the initial injury and was
directly due to that injury. He further opined that the osteoarthritis was definitely aggravated by
the work injury. Dr. Heckler asserted that the history and mechanism of appellant’s injury was
consistent with the presentation of symptoms and objective findings. He opined that the knee
4

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

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

6

Id.

7

Id.

5

contracture and complication of internal joint prosthesis were both causally related to the original
injury as they occurred as a result of the initial injury and that her subsequent surgery was due to
the work injury. On September 21, 2015 Dr. Heckler explained that it was only after an injury
occurred that a patient began to have symptoms of pain or limited range of motion or difficulty
doing work or activities of daily living, which was a fairly common occurrence that he had
observed many times in his practice. He indicated that he based his medical opinion on those
factors, including appellant’s ability to do her work and activities of daily living prior to her
injury and her inability to do work and activities of daily living at full function after the injury.
Dr. Heckler asserted that appellant was not under active treatment for her left knee before her
injury, but required care after the injury.
The Board finds that Dr. Heckler did not provide sufficient medical rationale explaining
the mechanism of how appellant’s left knee conditions were caused or aggravated by getting off
a forklift and landing on her left leg on October 17, 2014. Dr. Heckler’s opinion was based, in
part, on temporal correlation. However, the Board has held that neither the mere fact that a
disease or condition manifests itself during a period of employment nor the belief that the disease
or condition was caused or aggravated by employment factors or incidents is sufficient to
establish a causal relationship.8 While such a temporal relationship has some positive value, it
alone is insufficient to establish a causal relationship. Dr. Heckler did not otherwise sufficiently
explain why diagnostic testing and examination findings led him to conclude that the October 17,
2014 incident at work caused or contributed to the diagnosed conditions. Thus, the Board finds
that the reports from Dr. Heckler are insufficient to establish that appellant sustained an
employment-related injury. The need for medical reasoning is particularly important where
Dr. Heckler acknowledges that appellant has a preexisting degenerative condition in the knee.
In his reports, Dr. Rhodes diagnosed locked left knee joint, left knee strain/sprain, and
internal derangement of the knee and opined that appellant’s conditions were causing temporary
total disability. He noted that she was injured on October 17, 2014 when she climbed down from
a forklift and started to walk forward. After two steps appellant had a painful pop in her left
knee and was unable to bend it. The Board finds that Dr. Rhodes failed to provide a rationalized
opinion explaining how factors of her federal employment, such as climbing down from a
forklift and walking forward at work, caused or aggravated her left knee conditions. Dr. Rhodes
noted that appellant’s conditions occurred while she was at work, but such generalized
statements do not establish causal relationship because they merely repeat her allegations and are
unsupported by adequate medical rationale explaining how her physical activity at work actually
caused or aggravated the diagnosed conditions.9 He failed to provide an opinion adequately
addressing how and why the October 17, 2014 employment incident contributed to her
conditions. Thus, the Board finds that the reports from Dr. Rhodes are insufficient to establish
that appellant sustained an employment-related injury.
The emergency room reports from Drs. Guadalupe and Gupta diagnosed left knee sprain,
but did not specifically address whether the October 17, 2014 employment incident caused or
contributed to the diagnosed condition. Medical evidence that does not offer any opinion
8

E.J., Docket No. 09-1481 (issued February 19, 2010).

9

K.W., Docket No. 10-98 (issued September 10, 2010).

6

regarding the cause of an employee’s condition is of diminished probative value on the issue of
causal relationship.10 Likewise, CT and MRI scans are of limited probative medical value as
they do not specifically address whether appellant’s left knee conditions are attributable to her
accepted work injury.11 Thus, appellant has not met her burden of proof with this evidence.
Appellant also submitted evidence from registered nurses. These documents do not
constitute competent medical evidence because a nurse is not considered a “physician” as
defined under FECA.12 As such, this evidence is also insufficient to meet appellant’s burden of
proof.
On appeal, counsel contends that OWCP erred by not accepting the medical rationale
contained in Dr. Heckler’s September 21, 2015 report regarding the medical conditions which
were caused by the October 17, 2014 work incident. He further contends that the totality of the
medical evidence of record is sufficient to establish causal relationship entitling appellant to
compensation. However, based on the findings and reasons stated above, the Board finds that
appellant has not submitted sufficient rationalized medical evidence to support her allegation that
she sustained an injury causally related to the October 17, 2014 employment incident and failed
to meet her burden of proof to establish a claim for compensation.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her left
knee conditions are causally related to an October 17, 2014 employment incident.

10

Jaja K. Asaramo, 55 ECAB 200 (2004).

11

Id.

12

5 U.S.C. § 8101(2); A.C., Docket No. 15-1892 (issued February 1, 2016); E.K., Docket No. 09-1827 (issued
April 21, 2010) (where the Board noted that reports from physician assistants and registered nurses were of no
probative value as they are not physicians under FECA). See also Gloria J. McPherson, 51 ECAB 441 (2000);
Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be resolved
through the submission of probative medical evidence from a physician).

7

ORDER
IT IS HEREBY ORDERED THAT the October 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 15, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8