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

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

Docket No. 14-1192
Issued: October 17, 2014

Case Submitted on the Record

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

JURISDICTION
On April 28, 2014 appellant, through counsel, filed a timely appeal from a December 19,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a right shoulder injury causally related to
factors of her federal employment.
FACTUAL HISTORY
On July 19, 2012 appellant, then a 56-year-old mail carrier, filed an occupational disease
claim and claim for compensation (Form CA-2) alleging that she sustained a right shoulder
injury causally related to repetitive right arm movements in her job duties. In a letter dated
1

5 U.S.C. § 8101 et seq.

July 9, 2012, she stated that she had been a city carrier until October 23, 2010, when she stopped
working due to an employment injury to her back.2 Appellant stated that in 2010 she
experienced shoulder pain and she discussed her job duties. In a letter dated September 23,
2012, she stated that a second opinion report had stated that she had a work-related shoulder
injury.
The record contains a May 26, 2011 report from Dr. Aubrey Swartz, a Board-certified
orthopedic surgeon, who noted that appellant reported pain in her right shoulder and appellant
stated that it was a repetitive strain injury.
On October 2, 2012 appellant submitted a magnetic resonance imaging (MRI) scan report
dated October 3, 2011 from Dr. Christian Neumann, a radiologist, which reflected an extensive
partial thickness tear of the right rotator cuff. In a report dated July 18, 2012, Dr. Mark
Barnhard, an osteopath, provided a history of an August 23, 2010 employment incident involving
an onset of low back pain after pulling a lever. As to the right shoulder, he reported that
appellant developed a gradual onset of pain in July 2010, but did not see a physician until
September 2011. Dr. Barnhard indicated that appellant was given an injection in her shoulder by
a physicians’ assistant in October 2011. He provided results on examination and diagnosed
lumbar facet arthropathy and right shoulder rotator cuff tendinopathy, stable.
By decision dated October 16, 2012, OWCP denied the claim for compensation. It
indicated that appellant had referred to a second opinion report from Dr. Swartz, but this was a
referral from the back injury claim and Dr. Swartz did not state that appellant had a work-related
shoulder injury. OWCP found the evidence did not establish an employment-related injury.
Appellant requested reconsideration and submitted a September 27, 2013 report from
Dr. Jacob Tauber, a Board-certified orthopedic surgeon, who provided a history and noted
appellant’s job duties. Dr. Tauber provided results on examination and diagnosed right rotator
cuff tear. He stated that appellant carried out extensive strenuous and repetitive motion duties in
the course of her employment, noting appellant’s job duties of retrieving and casing mail.
Dr. Tauber stated that appellant had a rotator cuff tear and the mechanism of injury was a
“classic repetitive motion due to her impingement.” He concluded that appellant’s injury should
be considered work related.
By decision dated December 19, 2013, OWCP reviewed the case on its merits and denied
modification. It found the medical evidence was insufficient to establish the claim.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his claim by the weight of the reliable, probative and substantial evidence, including
that an injury was sustained in the performance of duty as alleged and that any specific condition
or disability claimed is causally related to the employment injury.3
2

The record indicates that appellant filed a traumatic injury claim for injury on August 23, 2010.

3

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

2

To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.4
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.5 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.6
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.7
ANALYSIS
In the present case, appellant filed a claim alleging a right shoulder injury causally related
to repetitive work activity as a city carrier. She initially submitted a July 18, 2012 report from
Dr. Barnhard. This report is not sufficient to establish the claim, as Dr. Barnhard does not
provide an opinion on causal relationship between a diagnosed right shoulder condition and the
identified employment activity. The Board has found that reports without any opinion on causal
relationship are of limited probative value.8
Appellant has also submitted a September 17, 2013 report from Dr. Tauber, who does
provide an opinion that he believed repetitive job duties caused a rotator cuff tear. But
identifying the diagnosis of rotator cuff tear and stating that it was the result of repetitive motion
at work does not itself establish a rationalized medical opinion.9 The MRI scan reporting a
rotator cuff tear was dated October 3, 2011, and the record indicated that appellant had not
worked since October 23, 2010.10 In addition, the record indicated that appellant had not sought
treatment for a right shoulder condition until September 2011. A rationalized medical opinion
must discuss the relevant factual and medical history and clearly explain why the physician

4

Ruby I. Fish, 46 ECAB 276, 279 (1994).

5

See Robert G. Morris, 48 ECAB 238 (1996).

6

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

Id.

8

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

9

See A.C., Docket No. 11-1800 (issued March 21, 2012).

10

Appellant sustained a work injury on August 23, 2010, and it is not clear whether her job duties were altered
prior to the work stoppage.

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believes the diagnosed condition reported on October 3, 2011 was causally related to work
activity prior to October 23, 2010.
It is appellant’s burden of proof to establish her claim. The medical evidence of record
does not contain a rationalized medical opinion on causal relationship between a diagnosed right
shoulder condition and the identified employment factors.
On appeal, appellant’s representative refers to a second opinion report in the record from
Dr. Swartz. He notes this was from an “unrelated claim” and as such can serve no purpose in the
present claim. In addition, appellant argues that OWCP should not use Dr. Swartz as a second
opinion physician, citing a U.S. Court of Appeals (9th Circuit) decision. The Board notes that
Dr. Swartz was not a second opinion referral physician in the present case. In his May 26, 2011
report, Dr. Swartz does not discuss a shoulder injury other than to note that appellant reported
shoulder pain and appellant asserted that it was from repetitive strain. The report is of little
probative value to the issues presented in this case and OWCP did not rely on the report of
Dr. Swartz in denying the claim. The record indicated that it was appellant who previously
argued that it supported her claim.
For the reasons noted above, appellant did not meet her burden of proof to establish a
shoulder injury due to her work duties. She may submit new evidence or argument with a
written request for reconsideration to OWCP within one year of this merit decision, pursuant to
5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish a right shoulder injury causally related to
factors of her federal employment.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 19, 2013 is affirmed.
Issued: October 17, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.W., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Jesup, GA, Employer
__________________________________________

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

Docket No. 18-1175
Issued: December 6, 2018

Case Submitted on the Record

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

JURISDICTION
On May 14, 2018 appellant filed a timely appeal from a November 16, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
has elapsed from the last merit decision dated November 9, 2016 to the filing of this appeal, the
Board lacks jurisdiction to review the merits of the claim pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from November 16, 2017, the date of OWCP’s last decision was Tuesday,
May 15, 2018. Since using May 22, 2018, the date the appeal was received by the Clerk of the Appellate Boards
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S.
Postal Service postmark is May 14, 2018, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 19, 2005 appellant, then a 42-year-old captain’s secretary, filed a traumatic
injury claim (Form CA-1) alleging that she sustained carpal tunnel syndrome as a result of
repetitive work duties. OWCP accepted her claim for bilateral carpal tunnel syndrome and paid
her wage-loss compensation beginning April 3, 2006.3 Appellant underwent right carpal tunnel
release surgeries on April 3 and September 5, 2006.4
By decision dated June 23, 2014, OWCP reduced appellant’s wage-loss compensation,
effective June 29, 2014, based on its finding that she had the capacity to earn wages as an
administrative assistant. It found that the February 19, 2014 report from Dr. George C. Hochreiter,
an osteopath and Board-certified orthopedic surgeon, who provided a second opinion examination,
established that she had the capacity to perform the physical requirements of the position.
Appellant, through counsel, on October 13, 2015, requested modification of the June 23,
2014 loss of wage-earning capacity (LWEC) determination. Counsel contended that the LWEC
determination was in error and that newly submitted medical evidence from Dr. Sandra
Bohnstengel, Board-certified in family medicine, was sufficient to meet appellant’s burden of
proof or to establish a conflict in medical opinion with Dr. Hochreiter.
By decision dated January 11, 2016, OWCP denied modification of its June 23, 2014
LWEC determination. It found that the evidence of record was insufficient to support that the
original decision was in error or that appellant’s condition had materially worsened.
On February 10, 2016 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative.
During the telephone hearing, held on October 5, 2016, counsel contended that the opinion
of Dr. Bohnstengel was entitled to the same or greater weight as Dr. Hochreiter’s report and that
this created at a minimum a conflict in the medical evidence. He asserted that the statement of
accepted facts provided to Dr. Hochreiter did not adequately set forth appellant’s work duties.
Counsel noted that Dr. Hochreiter also found that appellant had continued wrist pain and that she
had completed a functional capacity evaluation (FCE) which found that she could not perform
repetitive employment.

3
By decision dated December 20, 2007, OWCP denied appellant’s claim for wage-loss compensation from
October 19, 2005 to March 29, 2007.
4

By decision dated June 26, 2009, OWCP reduced appellant’s wage-loss compensation as she refused to participate
with vocational rehabilitation without good cause under 5 U.S.C. § 8113(b). However, by decision dated April 19,
2012, it vacated the June 26, 2009 decision, finding that she had participated in the early and necessary stages of
vocational rehabilitation.

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By decision dated November 9, 2016, an OWCP hearing representative affirmed the
January 11, 2016 decision. He found that the newly submitted evidence was of diminished
probative value and thus insufficient to warrant modification of the prior LWEC determination.
On November 15, 2016 appellant resubmitted the February 21, 2012 and December 9,
2015 FCEs.
In a report dated June 30, 2017, Dr. Bohnstengel noted that appellant’s carpal tunnel
syndrome had progressively worsened and that a December 2015 FCE revealed that she could not
perform even sedentary employment. She attributed appellant’s disability to her employment
duties.
Appellant, on November 9, 2017, requested reconsideration. In a November 8, 2017
statement, she contended that Dr. Hochreiter did not conduct a comprehensive evaluation.
Appellant further asserted that he discussed the findings in a February 21, 2012 FCE. She noted
that the FCE indicated that she may have had self-limiting pain behavior, but also indicated that
she had an impairment of both wrists, which OWCP accepted as valid. Appellant maintained that
Dr. Hochreiter failed to provide work restrictions on repetitive movement. She noted that a
December 9, 2015 FCE indicated that she was unable to perform sedentary work duties and that
her physician had concurred with this assessment.
By decision dated November 16, 2017, OWCP denied appellant’s request for
reconsideration as she had not raised an argument or submitted evidence sufficient to warrant
reopening her case for further merit review under 5 U.S.C § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.5
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.6
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP decision for which review is sought.7 If OWCP chooses to grant reconsideration, it

5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010).

7

Id. at § 10.607(a). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the request for reconsideration
as indicated by the received date in the integrated Federal Employee’s Compensation System (iFECS). Id. at Chapter
2.1602.4b.

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reopens and reviews the case on its merits.8 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
By decision dated November 9, 2016, OWCP denied modification of its June 23, 2014
LWEC determination. On November 9, 2017 appellant timely requested reconsideration.10
As a general rule, if a formal LWEC determination has been issued, the rating should be
left in place unless the claimant requests resumption of compensation for total wage loss. In that
instance, the claims examiner should evaluate the request according to the customary criteria for
modifying a formal LWEC.11 Nonetheless, in cases where arguments submitted have previously
been addressed by OWCP and in which a claimant submits no new or relevant evidence, OWCP
may address the request under the provisions found in section 8128 of FECA and deny merit
review.12
The issue is whether appellant submitted evidence or raised an argument in support of her
request for reconsideration sufficient to warrant further merit review pursuant to 20 C.F.R.
§ 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law or raise a relevant legal argument not previously considered. She contended that
Dr. Hochreiter failed to perform a complete examination, failed to restrict repetitive movement,
and failed to review a February 21, 2012 FCE that found that some of her behavior was selflimiting. OWCP, however, previously considered counsel’s contention that Dr. Hochreiter’s
report was of diminished probative value. As appellant’s argument is cumulative in nature, it is
insufficient to warrant reopening her case for further merit review.13 Thus, she is not entitled to a
review of the merits of her claim based on the first and second above-noted requirements under
section 10.606(b)(3).
The Board further finds that appellant did not submit any relevant or pertinent new
evidence not previously considered. Appellant resubmitted FCE reports performed on
February 21, 2012 and December 9, 2015. The submission of evidence which repeats or

8

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

9

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

10

See supra note 7.

11

L.W., Docket No. 16-1202 (issued January 25, 2018); Katherine T. Kreger, 55 ECAB 633 (2004).

12

L.W., id.; A.P., Docket No. 14-0851 (issued September 2, 2014).

13

See J.B., Docket No. 17-0934 (issued September 1, 2017).

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duplicates evidence already of record does not constitute a basis for reopening a case for additional
merit review.14
On June 30, 2017 Dr. Bohnstengel related that appellant’s carpal tunnel syndrome was
worsening with time. She noted that a December 2015 FCE demonstrated that appellant could not
perform sedentary employment. Dr. Bohnstengel opined that appellant was unable to work due to
her employment injury. Her report, however, is substantially similar to a June 27, 2016 report
previously of record, and thus does not constitute relevant and pertinent new evidence.15
Appellant, consequently, is not entitled to a review of the merits of her claim based on the third
requirement under section 10.606(b)(3).
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.16
On appeal appellant raises arguments relevant to the merits of her claim. The only issue
before the Board, however, is whether OWCP properly denied her request for reconsideration of
the merits of the claim and thus these arguments are not before the Board at this time.17
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

14

See K.M., Docket No. 18-0479 (issued September 17, 2018).

15

See V.P., Docket No. 18-0440 (issued August 24, 2018).

16

See R.C., Docket No. 17-1314 (issued November 3, 2017) (when an application for reconsideration does not meet
at least one of the three requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits).
17

See C.F., Docket No. 18-0360 (issued July 19, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the November 16, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 6, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 07-95
Issued: June 26, 2007

Case Submitted on the Record

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

JURISDICTION
On October 12, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ April 28, 2006 merit decision concerning his entitlement to schedule
award compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this appeal.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has permanent
impairment of his legs which entitles him to schedule award compensation.
FACTUAL HISTORY
On August 26, 1985 appellant, then a 27-year-old laborer, sustained an injury when he
fell down stairs while carrying a metal filing cabinet. The Office accepted that he sustained an

acute dorsolumbar strain and right knee contusion.1 Appellant stopped work on August 26, 1985
and received compensation for periods of disability. By decision dated October 30, 1995, the
Office terminated his compensation effective November 12, 1995 on the grounds that he had no
employment-related disability after that date. The Office based its termination on the June 6 and
July 12, 1994 reports of Dr. Herbert Stein, a Board-certified orthopedic surgeon, who served as
an Office referral physician.2
Appellant underwent additional diagnostic testing of his low back and legs in the 1990s.
The findings of July 9, 1993 magnetic resonance imaging (MRI) scan testing revealed normal
results with no evidence of disc bulging or herniation. The findings of an October 2, 1995 nerve
conduction study were normal with electromyogram (EMG) testing suggesting L4-5 and L5-S1
radiculopathies; March 6, 1996 nerve conduction testing showed normal results with EMG
testing suggesting L3-4, L4-5 and L5-S1 radiculopathies. The findings of September 21, 1995
CT testing of the low back showed L4-5 and L5-S1 facet joint arthropathy with no evidence of a
herniated nucleus pulpous at L4, L5 or S1. MRI scan testing of the right knee performed on
January 30, 1996 revealed osteochondritis dessicans of the lateral femoral condyle and
degenerative changes.
In a decision dated and finalized August 29, 1996, an Office hearing representative
affirmed the Office’s October 30, 1995 decision on the grounds that the Office had properly
relied on the opinion of Dr. Stein in terminating appellant’s compensation effective
November 12, 1995. The Office hearing representative further determined that a January 18,
1996 report of Dr. Michael M. Cohen, an attending Board-certified neurologist, created a conflict
in the medical evidence regarding whether appellant had employment-related disability after
November 12, 1995 which required that the case be referred to an impartial medical examiner to
resolve the conflict.3
On remand, the Office referred appellant to Dr. Paul L. Liebert, a Board-certified
orthopedic surgeon, for an impartial medical examination. In a December 19, 1996 report,

1

The results of diagnostic testing conducted after the August 26, 1985 injury did not clearly show significant
impingement of the nerves in appellant’s low back. The findings of October 29, 1985 computerized tomography
(CT) scan testing showed subtle obliteration of the epidural fat-thecal sac plane at L5-S1 of uncertain significance
with no definite abnormal soft tissue density to suggest a herniated disc. Nerve conduction testing conducted on
October 31, 1985 showed no evidence of neuropathy in appellant’s legs. The findings of August 5, 1986 CT scan
testing showed herniated disc material at L4-5 and L5-S1 with probable minimal encroachment upon the right L4-5
intervertebral foramen at L4-5. The findings of September 28, 1987 MRI scan testing revealed normal results with
no evidence of disc bulging.
2

The Office made reference to a March 11, 1986 report of Dr. Frank A. Mattei, a Board-certified orthopedic
surgeon, who served as an Office referral physician, as lending support to its termination. The Office also referred
appellant to Dr. Perry Berman, a Board-certified psychiatrist, who determined in an October 19, 1994 report that
appellant did not have an employment-related emotional condition.
3

Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part: “If there is
disagreement between the physician making the examination for the United States and the physician of the
employee, the Secretary shall appoint a third physician who shall make an examination.” 5 U.S.C. § 8123(a).

2

Dr. Liebert reported the findings of a comprehensive examination and evaluation. He stated:
“It is my opinion that [appellant] sustained strictly soft tissue injuries to his lower
back and right knee as a result of the incident as reported on August 26, 1985. On
review of all the medical documents available and specifically the reports of the
physicians treating [appellant], I found no reference to his right knee being
symptomatic until very recently in the course of his treatment. On review of the
MRI [scan] report, the documented osteochondritis dessicans is, on description,
more than likely nontraumatic in character and associated with degenerative
changes. It is my opinion that this condition is in no way related causally to the
incident on August 26, 1985, with the way the claimant described his bumping of
the right knee on the railing.”
***
“On review of these studies, which include a CT scan of the lumbosacral spine as
well as an MRI [scan], I found no evidence of any impinging structures which
would explain any type of radiculopathy symptoms in [appellant]. In fact, the
MRI [scan] was normal, with no evidence of herniated disc material.
“The reports of abnormal EMG and nerve conduction studies ... were based, as I
have stated, mostly on the EMG portion of the examination, with the nerve
conduction velocities being essentially within normal limits. The nerve
conduction velocities are the more reproducible and constant parts of this
examination. I found no signs of radiculopathy or impingement whatsoever.”
***
“In summary, [appellant] has recovered fully from his soft tissue injuries to both
his right knee (contusion) and his lumbosacral spine (lumbosacral spine sprain
and strain) as a result of the injury of August 26, 1995 and I find no orthopedic
reasons why this claimant cannot return to his preinjury level of employment
without restriction on the basis of that injury.”
By decision dated February 12, 1997, the Office determined that the medical evidence,
including the December 19, 1996 report of Dr. Liebert, did not show that appellant had disability
after November 12, 1995 due to his August 26, 1985 employment injury. By decision dated and
finalized December 16, 1997, an Office hearing representative denied modification of the
Office’s February 12, 1997 decision.
In a July 12, 2000 decision, the Board found that the Office did not initially meet its
burden of proof to terminate appellant’s compensation effective November 12, 1995 by relying
on the June 6 and July 12, 1994 reports of Dr. Stein because these did not contain adequate

3

medical rationale in support of their conclusions on causal relationship.4 The Board further
found, however, that the thorough, well-rationalized December 19, 1996 opinion of Dr. Liebert,
the impartial medical specialist, established that appellant did not have disability after
December 19, 1996 due to his August 26, 1985 employment injury. The Board found that the
Office properly determined, after its October 30, 1995 termination decision, that a conflict in the
medical opinion developed between Dr. Cohen and Dr. Stein and the Office properly referred
appellant to Dr. Liebert for an impartial medical examination.5
On January 6, 2003 Dr. David Weiss, an attending osteopath, determined that appellant
had a 42 percent permanent impairment of his right leg and a 15 percent permanent impairment
of his left leg under the standards of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (5th ed. 2001). He indicated that diagnostic testing from
1995 and 1996 showed that appellant had neurological abnormalities, including radiculopathies,
at L4, L5 and S1 and that attending physicians had diagnosed right knee problems, including
probable medial and lateral meniscus tears, osteochondritis dessicans lesions of the right femoral
condyle and post-traumatic degenerative joint disease. Dr. Weiss stated that appellant reported
low back pain with radicular pain in both legs, numbness in both feet and right knee pain,
stiffness and swelling and that he complained of some difficulty in performing his activities of
daily living. He noted that on examination appellant exhibited paravertebral muscular spasms
and tenderness over the posterior midline of the back and had some limitation of back motion.
Dr. Weiss found that appellant also had tenderness in the medial and lateral joint lines of the
right knee and markedly positive apprehension and inhibition signs. Strength testing revealed
4/5 strength in the right quadriceps (on knee extension) and gastrocnemius (on ankle plantarflexion) and sensory testing showed a “perceived sensory deficit” over the L4, L5 and S1
dermatones in both legs.
Dr. Weiss diagnosed chronic post-traumatic lumbosacral strain and sprain, herniated
nucleus pulposus at L5-S1, multilevel lumbar radiculopathy, post-traumatic internal derangement
of the right knee, status post tear of the medial and lateral meniscus of the right knee and posttraumatic chondromalacia and osteoarthritis of the right knee. He determined that appellant had
a 5 percent impairment rating for right knee patellofemoral pain and crepitance, a 12 percent
rating for 4/5 strength in the right quadriceps and a 17 percent rating for 4/5 strength in the right
gastrocnemius. Appellant also had a four percent impairment rating for sensory loss of the right
L4 nerve root, a four percent rating for sensory loss of the right L5 nerve root, a four percent
rating for sensory loss of the right S1 nerve root and a three percent “pain-related impairment” in
the right leg. Dr. Weiss then combined these impairment ratings using the Combined Values
Chart of the A.M.A., Guides to determine that appellant had a 42 percent permanent impairment
4

In situations where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special weight. Jack R.
Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).
5

The Board noted that the record contained reports of other attending physicians detailing appellant’s condition
in 1995 and 1996, including several reports of Dr. Ghassem Kalani, a physician Board-certified in physical medicine
and rehabilitation. It determined that these reports were of limited probative value due to their lack of medical
rationale in support of their opinions on causal relationship.

4

of the right leg. He also determined that appellant had a four percent impairment rating for
sensory loss of the left L4 nerve root, a four percent rating for sensory loss of the left L5 nerve
root, a four percent rating for sensory loss of the left S1 nerve root and a three percent “pain
related impairment” in the left leg. Dr. Weiss combined these impairment ratings to determine
that appellant had a 15 percent permanent impairment of the left leg. He determined that
appellant reached maximum improvement on January 2, 2003.
On April 1, 2003 appellant filed a claim for a schedule award alleging that he had
employment-related permanent impairment of his legs. He submitted a March 14, 2003 report in
which Dr. Jerry Murphy, an attending physician specializing in emergency medicine, stated that
he agreed with Dr. Weiss’ assessment that appellant had a 42 percent permanent impairment of
his right leg and a 15 percent permanent impairment of his left leg. On April 2, 2003 the Office
medical adviser stated that he did not agree with Dr. Weiss’ impairment rating and indicated that
the Board had affirmed Dr. Liebert’s December 19, 1996 opinion that the effects of the
August 26, 1985 employment injury had completely resolved. He stated that there is no
impairment rating for resolved soft tissue injuries and noted that any impairment appellant
presently has is not attributable to the August 26, 1985 employment injury.
In an August 7, 2003 decision, the Office determined that appellant did not meet his
burden of proof to establish that he has permanent impairment of his legs which entitles him to
schedule award compensation. The Office indicated that it had not been shown that the
impairments found by Dr. Weiss were related to the August 26, 1985 employment injury.
Appellant requested a hearing before an Office hearing representative. At the
February 24, 2006 hearing, he testified that he continuously had pain in his legs since his
August 26, 1985 employment injury. In an April 28, 2006 decision, the Office hearing
representative affirmed the Office’s August 7, 2003 decision.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act6
has the burden of establishing the essential elements of his claim, including that he sustained an
injury in the performance of duty as alleged and that an employment injury contributed to the
permanent impairment for which schedule award compensation is alleged.7 The medical
evidence required to establish a causal relationship is rationalized medical opinion evidence.
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
6

5 U.S.C. §§ 8101-8193.

7

See Bobbie F. Cowart, 55 ECAB 746 (2004). In Cowart, the employee claimed entitlement to a schedule award
for permanent impairment of her left ear due to employment-related hearing loss. The Board determined that
appellant did not establish that an employment-related condition contributed to her hearing loss and, therefore, it
denied her claim for entitlement to a schedule award for the left ear.

5

of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.8
The schedule award provision of the Act9 and its implementing regulation10 sets forth the
number of weeks of compensation payable to employees sustaining employment-related
permanent impairment from loss, or loss of use, of scheduled members or functions of the body.
However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.11
ANALYSIS
The Office accepted that appellant sustained an acute dorsolumbar strain and right knee
contusion on August 26, 1985. Appellant later claimed entitlement to schedule award
compensation and submitted a January 6, 2003 report in which Dr. Weiss, an attending
osteopath, determined that he had a 42 percent permanent impairment of his right leg and a 15
percent permanent impairment of his left leg. The Board finds that appellant did not meet his
burden of proof to establish that he has permanent impairment of his legs because he has not
shown that the impairments reported by Dr. Weiss are related to his August 26, 1985
employment injury.
Dr. Weiss found that the 42 percent permanent impairment of appellant’s right leg was
comprised of a 5 percent impairment rating for right knee patellofemoral pain and crepitance, a
12 percent rating for 4/5 strength in the right quadriceps, a 17 percent rating for 4/5 strength in
the right gastrocnemius, a 4 percent impairment rating for sensory loss of the right L4 nerve root,
a 4 percent rating for sensory loss of the right L5 nerve root, a 4 percent rating for sensory loss of
the right S1 nerve root and a 3 percent “pain-related impairment” in the right leg. He further
determined that the 15 percent permanent impairment of appellant’s left leg was comprised of a
4 percent impairment rating for sensory loss of the left L4 nerve root, a 4 percent rating for
sensory loss of the left L5 nerve root, a 4 percent rating for sensory loss of the left S1 nerve root,
and a 3 percent “pain-related impairment” in the left leg.
The Board notes that Dr. Weiss did not provide a rationalized medical opinion explaining
how the above-noted lower extremity impairments could be related to appellant’s August 26,
1985 employment injury and the medical evidence of record does not otherwise support such a
finding. Appellant’s claim was only accepted for soft tissue injuries of the low back (strain) and
the right knee (contusion). The Office has not accepted that any more serious injury, such as
radiculopathies of the legs or degenerative disease of the right knee, were related to the
8

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

11

Id.

6

August 26, 1985 employment injury. Medical rationale relating appellant’s lower extremity
problems to the August 26, 1985 injury is especially necessary in the present case, in that the
results of diagnostic testing conducted after the August 26, 1985 injury did not clearly show
significant impingement of the nerves in appellant’s low back. In fact, most of this diagnostic
testing showed normal results.12 Dr. Weiss did not explain how, given these facts, that
appellant’s lower extremity condition in 2003 could be related to the August 26, 1985 injury.13
With respect to appellant’s right knee, there was no indication in the record that appellant had a
significant degenerative process until the mid 1990s, i.e., a period of 10 years after the
August 26, 1985 injury.
Such medical rationale is particularly necessary in the present case for the further reason
that other medical evidence of record suggests that appellant had no permanent impairment of his
lower extremities. The Board has previously determined that the termination of appellant’s
compensation effective December 19, 1996 was supported by the December 19, 1996 report of
Dr. Liebert, a Board-certified orthopedic surgeon, who served as an impartial medical specialist.
Dr. Liebert found that appellant’s accepted soft tissue injuries had resolved by
December 19, 1996. The record does contain well-rationalized medical evidence showing that
appellant had employment-related impairment of his lower extremities. Appellant submitted a
March 14, 2003 report in which Dr. Murphy, an attending physician specializing in emergency
medicine, indicated that he agreed with Dr. Weiss’ assessment that appellant had a 42 percent
permanent impairment of his right leg and a 15 percent permanent impairment of his left leg.
However, Dr. Murphy did not provide any support for this opinion. For these reasons, the Office
properly found that appellant did not show that he has permanent impairment of his legs which
entitles him to schedule award compensation.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
permanent impairment of his legs which entitles him to schedule award compensation.

12

For example, October 31, 1985 nerve conduction testing showed no evidence of neuropathy in appellant’s legs
and September 28, 1987 MRI scan testing revealed normal results with no evidence of disc bulging. Although the
findings of August 5, 1986 CT scan testing showed herniated disc material at L4-5 and L5-S1, there was minimal
encroachment upon the right L4-5 intervertebral foramen at L4-5.
13

The Board further notes that even much of the diagnostic testing from the 1990s fails to show that appellant had
herniated back discs which could cause leg radiculopathies. The findings of July 9, 1993 MRI scan testing revealed
normal results with no evidence of disc bulging or herniation and the findings of September 21, 1995 CT testing
showed L4-5 and L5-S1 facet joint arthropathy with no evidence of a herniated nucleus pulposus at L4, L5 or S1.

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
April 28, 2006 decision is affirmed.
Issued: June 26, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERIVCE, PROCESSING &
DISTRIBUTION CENTER, Southeastern, PA,
Employer
__________________________________________

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

Docket No. 15-543
Issued: June 5, 2015

Case Submitted on the Record

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

JURISDICTION
On January 20, 2015 appellant, through her attorney, filed a timely appeal from a
November 5, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for surgical
authorization and claim expansion.
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated November 18, 2010,
the Board affirmed June 30 and October 1, 2009 decisions denying appellant’s claim for
1

5 U.S.C. § 8101 et seq.

compensation for intermittent disability from September 1, 2007 through April 22, 2008 and for
a recurrence of disability on April 30, 2008 due to her September 1, 2007 employment injury.2
The Board subsequently issued an order remanding the case on January 25, 2013 after finding
that OWCP had improperly selected Dr. John F. Perry, a Board-certified orthopedic surgeon, as
an impartial medical examiner.3 The facts and circumstances from the prior decision and order
are hereby incorporated by reference. The facts relevant to the current appeal will be set forth.
On November 28, 2007 appellant, then a 34-year-old processing clerk, filed an
occupational disease claim alleging that she sustained right ulnar neuropathy due to factors of her
federal employment. OWCP accepted the claim for right ulnar neuropathy. Following her
injury, she performed limited duty. In a report dated October 29, 2007, Dr. Scott M. Fried, an
attending osteopath, diagnosed an acute subluxing ulnar nerve of the right elbow due to
repetitive work activities, right ulnar neuropathy, right radial tunnel syndrome, brachial plexitis,
and right median neuropathy.
On September 22, 2009 Dr. Fried requested authorization for a right ulnar
decompression, a muscle/tendon transfer, decompression of the forearm one space, a revision of
an arm/leg nerve, and a procedure to relieve pressure on the nerves.
On October 11, 2009 an OWCP medical adviser recommended approval of only the ulnar
nerve transposition. He advised against expanding appellant’s claim to include conditions other
than right ulnar neuropathy.
By decision dated October 14, 2009, OWCP denied authorization for a muscle/tendon
transfer, a decompression of the forearm one space, a revision of an arm/leg nerve, and a
procedure to relieve pressure on nerves. It authorized surgery to revise the right ulnar nerve.
On October 16, 2009 appellant’s attorney requested an oral hearing. In a decision dated
April 19, 2010, an OWCP hearing representative vacated the October 14, 2009 decision.4 She
found that a conflict existed between OWCP medical adviser and Dr. Fried regarding the need to
authorize additional surgical procedures. The hearing representative also found a conflict
regarding whether the claim should be expanded to include the diagnoses provided by Dr. Fried
in his October 29, 2007 report of a subluxing ulnar nerve in the right elbow, right radial tunnel
syndrome, brachial plexitis, and right medial neuropathy. She remanded the case for referral to
an impartial medical examination.

2

Docket No. 10-464 (issued November 18, 2010).

3

Order Remanding Case, Docket No. 12-1396 (issued January 25, 2013).

4

On March 25, 2010 OWCP had referred appellant to Dr. Robert Draper, a Board-certified orthopedic surgeon,
for a second opinion examination regarding her current condition. In his report dated April 27, 2010, Dr. Draper
diagnosed entrapment syndrome of the right ulnar nerve and advised that she required surgery on the right ulnar
nerve.

2

On August 26, 2010 OWCP referred appellant to Dr. Perry for an impartial medical
examination.5 In a report dated September 30, 2010, Dr. Perry diagnosed ulnar neuropathy of
the right elbow probably due to employment. He found no evidence of median nerve
compression or radial tunnel syndrome. Dr. Perry recommended additional electrodiagnostic
testing.
On October 4, 2010 OWCP informed appellant that Dr. Perry required an
electromyogram (EMG) from an independent source and provided her 30 days to submit the
study.
By decision dated November 5, 2010, OWCP denied authorization for additional surgical
procedures based on the opinion of Dr. Perry as impartial medical examiner.
On November 10, 2010 appellant submitted a September 30, 2010 EMG study.
On December 7, 2010 Dr. Fried performed an anterior transposition of the right ulnar
nerve, a right ulnar nerve neurolysis, a medial antebrachial cutaneous nerve neurolysis, a medial
cutaneous branch ulnar nerve neurolysis, a transfer of the right flexor pronator mass, and a right
forearm fasciotomy.
Following a preliminary review, in a decision dated May 25, 2011, an OWCP hearing
representative vacated the November 5, 2010 decision. She remanded the case for OWCP to
provide Dr. Perry with the September 30, 2010 EMG study and request a supplemental report.
On June 2, 2011 OWCP accepted that appellant sustained a recurrence of disability
beginning December 7, 2010 and paid her compensation for total disability beginning that date.
In a supplemental report dated July 25, 2011, Dr. Perry noted that the EMG study was
“basically negative for thoracic outlet syndrome, carpal tunnel syndrome, or radial tunnel
syndrome.” He reviewed the December 7, 2010 operative report and stated, “Basically,
[Dr. Fried] did a submuscular anterior ulnar nerve transposition. The other items mentioned,
such as the neurolysis of the nerve, the flexor pronator mass portion of the procedure, and the
fasciotomy, are all part of the basic anterior transposition of the ulnar nerve, which was done
sub-muscularly.”
By decision dated September 1, 2011, OWCP denied authorization for procedures
unrelated to the accepted condition of an ulnar nerve lesion. It further determined that the weight
of the evidence, as represented by Dr. Perry’s report, did not show that she sustained carpal
tunnel syndrome, radial nerve syndrome or thoracic outlet syndrome due to her employment
injury. In a decision dated February 28, 2012, an OWCP hearing representative affirmed the
September 1, 2011 decision.

5

OWCP initially referred appellant to Dr. Amir H. Fayyazi, a Board-certified orthopedic surgeon, for the
impartial medical examination. As Dr. Fayyazi did not respond to OWCP’s June 30, 2010 request for a
supplemental report, it referred her for to Dr. Perry for an impartial medical examination.

3

In an order dated January 25, 2013, the Board set aside the February 28, 2012 OWCP
decision denying her request for surgical authorization and expansion of her claim.6 The Board
determined that OWCP had not documented that it had properly selected Dr. Perry as the
impartial medical examiner and remanded the case for OWCP to properly select a referee
physician.
On remand OWCP referred appellant to Dr. Eric Lebby, a Board-certified orthopedic
surgeon, for an impartial medical examination. In the medical conflict statement dated
February 5, 2013, it noted that it had only authorized as work related a revision of the ulnar nerve
at the elbow. OWCP asked if any of the denied procedures should be authorized.
Based on Dr. Lebby’s April 9, 2013 report, in a decision dated April 19, 2013, OWCP
denied appellant’s request to authorize the muscle or tendon transfer, the decompression of the
forearm one space, the revision of an arm nerve, and relieving pressure on the nerve. It noted
that it had accepted and authorized the submuscular transposition of the right ulnar nerve.
Appellant’s attorney requested an oral hearing. Following a preliminary review, on
June 24, 2013 an OWCP hearing representative vacated the April 19, 2013 decision. She found
that Dr. Lebby had not provided rationale supporting his findings and had not addressed the issue
of whether appellant had sustained additional employment-related conditions. The hearing
representative instructed OWCP to obtain a supplemental report from Dr. Lebby.
In a supplemental report dated October 15, 2013, Dr. Lebby agreed with Dr. Perry’s
findings in his 2010 impartial medical examination.
By decision dated October 16, 2013, OWCP denied appellant’s request to authorize
surgical procedures other than the right ulnar nerve transposition after finding that Dr. Lebby’s
opinion constituted the weight of the evidence as impartial medical examiner.
Appellant, through her attorney, requested an oral hearing. After a preliminary review,
by decision dated January 10, 2014, OWCP hearing representative vacated the October 16, 2013
decision. She found that Dr. Lebby’s report was insufficiently rationalized and that the questions
posed to Dr. Lebby by OWCP on February 5, 2013 appeared prejudicial. The hearing
representative instructed OWCP on remand to prepare a new medical conflict statement and
questions for the referee physician and refer appellant for a new impartial medical examination.
On February 10, 2014 OWCP prepared a new conflict statement regarding whether the
additional surgical procedures of a muscle/tendon transfer, decompressing the forearm one
space, revising an arm nerve, and relieving pressure on nerves were medically necessary and
employment related.7 It also asked the impartial medical examiner to address whether additional
conditions should be accepted to approve the procedures and whether appellant required further
medical treatment.
6

Order Remanding Case, Docket No. 12-1396 (issued January 25, 2013).

7

OWCP initially had changed the date of its February 15, 2013 conflict statement to January 15, 2014; however,
it subsequently reviewed the conflict statement and questions on February 10, 2014.

4

In an e-mail dated March 24, 2014, an OWCP claims examiner requested that a medical
scheduler provide the status of the referral. The medical scheduler responded that a third-party
scheduling facility had set up an appointment with a physician who had to be added to the
system. In an e-mail dated March 24, 2014, OWCP noted that a “third-party scheduling facility”
had found a physician to treat appellant.
On March 24, 2014 OWCP referred appellant to Dr. Michael Mitrick, an osteopath who
is Board-certified with the American Osteopathic Association in orthopedic surgery, for an
impartial medical examination. The record contains an MEO23 appointment schedule form
dated March 24, 2014 identifying Dr. Mitrick as the selected physician. OWCP noted on the
form that an evaluation specialist scheduled the appointment after it had bypassed 20 physicians.
The record contains screen shots dated April 16, 2014 that appear to show physicians
bypassed by OWCP. The screen shots are not legible.
In a report dated April 8, 2014, Dr. Mitrick opined that the December 7, 2010 ulnar nerve
transposition was the only surgical procedures necessary. He found inconsistencies on
examination. Dr. Mitrick advised that appellant could perform light duty and required no further
physical therapy, self-care management training, cognitive treating, community work
reintegration, massage therapy, paraffin bath therapy, or whirlpool therapy for any of the existing
conditions.
By decision dated April 23, 2014, OWCP denied authorization for surgical procedures
other than the right ulnar nerve transposition.
On April 28, 2014 appellant, through his attorney, requested an oral hearing. At the
hearing, held on August 14, 2014, counsel argued that the questions posed to Dr. Mitrick were
prejudicial, that he did not address claim expansion, and that the bypass screens documenting his
selection were illegible.
In a decision dated November 5, 2014, an OWCP hearing representative affirmed the
April 23, 2014 decision.
On appeal appellant’s attorney argues that OWCP did not properly select Dr. Mitrick as it
was not possible to see his screen shot and as it was unclear why other physicians were bypassed.
He further argues that it was unclear which medical conflict statement was provided to the
physician and that OWCP did not ask about claim expansion.
LEGAL PRECEDENT
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.8 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
8

5 U.S.C. § 8123(a).

5

physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.9
A physician selected by OWCP to serve as an impartial medical specialist should be one
wholly free to make a completely independent evaluation and judgment. In order to achieve this,
OWCP has developed specific procedures for the selection of the impartial medical specialist
designed to provide adequate safeguards against any possible appearance that the selected
physician’s opinion was biased or prejudiced. The procedures contemplate that the impartial
medical specialist will be selected on a strict rotating basis in order to negate any appearance that
preferential treatment exists between a particular physician and OWCP.10
The Medical Management Application (MMA), which replaced the Physician’s Directory
Service, allows users to access a database of Board-certified specialist physicians and is used to
schedule referee examination. The application contains an automatic and strict rotational
scheduling feature to provide for consistent rotation among physicians and to record the
information needed to document the selection of the physician. If an appointment cannot be
scheduled in a timely manner or cannot be scheduled for some other reason such as a conflict or
the physician is of the wrong specialty, the scheduler will update the application with an
appropriate bypass code. Upon the entering of a bypass code, the MMA will select the next
physician in the rotation.11
ANALYSIS
The Board finds that OWCP failed to properly select Dr. Mitrick as the impartial medical
specialist.
It is well established that OWCP has an obligation to verify that it selected Dr. Mitrick in
a fair and unbiased manner. It maintains records for this very purpose.12 The current record
contains a Form MEO23 listing Dr. Mitrick as the selected physician. The MEO23 indicates that
an evaluation specialist selected Dr. Mitrick after OWCP bypassed over 20 physicians.
OWCP procedures provide that a referee physician should be selected only through the
use of the MMA in the absence of exceptional circumstances. It states:
“[W]here exceptional circumstances exist (such as when an esoteric specialty is
required, or the [MMA] does not contain any physicians of the required specialty
within a 200-mile radius of the claimant’s home zip code), scheduling outside of
9

20 C.F.R. § 10.321.

10

See J.N., Docket No. 13-289 (November 15, 2013); C.P., Docket No. 10-1247 (issued September 28, 2011).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.5 (July 2011,
December 2012, May 2013); see also R.C., Docket No. 12-468 (issued October 15, 2012) (where the Board first
discussed the application of the MMA and found that appellant’s reasons for objecting to the list of impartial
medical specialists provided by OWCP were not valid).
12

See J.W., Docket No. 12-331 (issued January 14, 2013).

6

the [MMA] may be appropriate. If this occurs, the scheduler should consult an
appropriate directory of Board-certified medical specialists to obtain names of
suitable physicians for referral. Documentation outlining the rationale for this
decision must be placed in the case file, and the decision must be approved by a
[s]upervisory [c]laims [e]xaminer or higher level authority”13
The record in this case contains an e-mail dated March 24, 2014 from a claims examiner
to a medical scheduler requesting the status of the case and a response from the scheduler
indicating that an appointment was set up by a third-party scheduling facility with a physician
who had to be added to the system. There is no indication that the scheduling was approved by a
supervisory claims examiner. OWCP further did not provide rationale for going outside the
MMA other than to note that 20 physicians had been bypassed.
Additionally, the screen shots showing that physicians were bypassed are not fully legible
and thus are insufficient to show that OWCP properly bypassed these physicians.14 The Board
has placed great importance on the appearance as well as the fact of impartiality, and only if the
selected procedures which were designed to achieve this result are scrupulously followed may
the selected physician carry the special weight accorded to an impartial medical specialist.15
Consequently, the Board finds that Dr. Mitrick cannot be considered the impartial medical
specialist as OWCP has not met its obligation to establish that it properly followed its selection
procedures.16 The Board will remand the case to OWCP for selection of another impartial
medical specialist to determine if any additional surgical procedures should be authorized and if
appellant’s claim should be expanded to include additional conditions. After such further
development as deemed necessary, OWCP should issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

13

Federal (FECA) Procedure Manual, supra note 11 at Chapter 3.500.5(b) (July 2011, December 2012,
May 2013).
14

See B.S., Docket No. 10-2343 (issued September 28, 2011) (where the Board remanded the case for selection of
a new impartial medical examiner as OWCP failed to establish that it properly followed its procedures for selection
of the impartial medical examiner as the screen shots in the record were illegible).
15

See N.C., Docket No. 12-1718 (issued April 11, 2013); L.W., 59 ECAB 471 (2008).

16

See supra note 14.

7

ORDER
IT IS HEREBY ORDERED THAT the November 5, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: June 5, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Waterloo, IA, Employer
__________________________________________

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

Docket No. 07-2387
Issued: May 20, 2008

Case Submitted on the Record

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

JURISDICTION
On September 21, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated June 26, 2007, denying his claim for
compensation. 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 an injury in the performance of duty on
August 3, 2005.
FACTUAL HISTORY
On August 11, 2005, appellant filed a traumatic injury claim (Form CA-1) alleging that
he sustained a heat stroke as a result of his job as a mail carrier on August 3, 2005. In a narrative
statement, appellant alleged that on August 3, 2005 he performed his mail route in high heat and
humidity. Appellant stated that on August 4, 2005 he reported for work and soon felt dizziness.
He indicated he was taken by ambulance to the local hospital.

In a report dated August 17, 2005, Dr. Clay Hallberg, an osteopath, stated appellant’s
medical history included hypertension, chronic obstructive pulmonary disease and congestive
heart failure. Dr. Hallberg stated that two weeks earlier during a hot summer afternoon appellant
succumbed to fever, sweats, chills and prostration. He opined that, with the multiple medications
and health problems, appellant should no longer deliver mail.
By decision dated November 4, 2005, the Office denied the claim for compensation. It
found the medical evidence was insufficient to establish an injury causally related to
employment on August 3, 2005.
Appellant requested reconsideration and submitted medical evidence regarding his
hospital treatment on August 4, 2005. In a discharge report dated August 8, 2005, Dr. Pratibha
Dua noted appellant was admitted on August 4, 2005 with systolic blood pressure in the 60’s.
He indicated that on August 3, 2005 appellant had walked approximately nine miles in his job,
had seen his physician and received an antibiotic for weakness, fatigue and leg cramps. The
discharge diagnosis was severe shock secondary to severe dehydration.
In a decision dated February 1, 2006, the Office denied modification of the November 4,
2005 decision.
Appellant requested reconsideration and submitted a February 22, 2006 report from
Dr. Hallberg, who stated that appellant was “treated for severe shock and severe dehydration as a
direct result of his employment.” Dr. Hallberg stated that, given the air temperature that day,
“the only logical conclusion is that his “shock and dehydration” (a.k.a. heat stroke) not only
aggravated his preexisting conditions and made them worse, but also heralded the onset of new
conditions such as his diabetes which is luckily in control.” He concluded that appellant’s
ongoing conditions were related to his work environment and the events that occurred on the day
he was hospitalized.
By decision dated June 12, 2006, the Office denied modification of the February 1, 2006
decision. Appellant requested reconsideration and submitted reports from Dr. Ehab Suleiman, an
internist. In a report dated August 4, 2005, Dr. Suleiman provided a history and results on
examination. He stated, “I think his most reasonable diagnosis is severe dehydration secondary
to heat shock and possibly acute tubular necrosis from prolonged, untreated dehydration
secondary to his ‘staying in the sun for delivery mail.’”
In a report dated April 11, 2007, Dr. Suleiman stated that at the time appellant was
admitted to the hospital, his symptoms included hypertension, body aches and chest pain, which
was suggestive of a cardiac event. He indicated cardiac testing ruled out a cardiac event and, in
talking to appellant, Dr. Suleiman discovered he had walked 9 to 10 miles as a mail carrier the
previous day. Dr. Suleiman indicated that appellant was not on diuretics and he did not have an
underlying disease to justify his situation. He concluded, “I diagnosed this patient with severe
hypotension with renal insufficiency secondary to a severe heat stroke resulting from his severe
exposure to the sun for a prolonged period of time as a consequence of working as a mail
carrier.”
The Office referred the medical evidence to an Office medical adviser for evaluation. In
a report dated June 17, 2007, the medical adviser stated that appellant was taking numerous
2

medications on hospital admission that could be implicated with hypotension. The medical
adviser opined that heat strokes do not occur a day after working in high heat and humidity, but
occur contemporaneous with the exposure. He concluded that the hypotension that led to
appellant’s hospitalization was not causally related to work activity. The medical adviser also
found that other conditions such as diabetes were not causally related to the employment.
By decision dated June 26, 2007, the Office reviewed the case on its merits. The Office
found that the medical evidence did not establish an employment-related injury on
August 3, 2005.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that he or she sustained an injury while in the performance of duty.2 In
order to determine whether an employee actually sustained an injury in the performance of duty,
the Office begins with an analysis of whether “fact of injury” has been established. Generally,
“fact of injury” consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred. The second component is whether the
employment incident caused a personal injury, and generally this can be established only by
medical evidence.3
The Act provides that, if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make the examination.4 The implementing regulation states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.5
ANALYSIS
The medical evidence contains opinions that disagree on the issue of whether appellant
has a diagnosed condition causally related to his work on August 3, 2005. Dr. Suleiman, who
treated appellant on August 4, 2005, opined that appellant’s work on August 3, 2005 in hot and

1

5 U.S.C. §§ 8101-8193.

2

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

3

See John J. Carlone, 41 ECAB 354, 357 (1989).

4

5 U.S.C. § 8123(a).

5

20 C.F.R. § 10.321 (1999).

3

humid conditions contributed to heat shock and dehydration.6 An Office medical adviser opined
that appellant’s hospitalization was caused by his preexisting medical conditions and
medications, not the work activity on August 3, 2005.
When there are opposing medical reports of virtually equal weight and rationale, the case
must be referred to a referee physician, pursuant to section 8123(a), to resolve the conflict in the
medical evidence.7 Accordingly, the case will be remanded to the Office to properly resolve the
conflict in the medical evidence. The referee physician should provide a rationalized opinion as
to whether appellant sustained heat stroke or any other condition causally related to his
employment on August 3, 2005. After such further development as the Office deems necessary,
it should issue an appropriate decision.
CONCLUSION
The medical evidence is in conflict on the issue of whether appellant sustained an injury
causally related to his employment and the case will be remanded to resolve the conflict pursuant
to 5 U.S.C. § 8123(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 26, 2007 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: May 20, 2008
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
6

Dr. Hallberg also opined that heat stroke was causally related to the August 3, 2005 employment, but his reports
are of diminished probative value as he appeared to believe appellant was hospitalized on August 3, 2005. He stated
that appellant succumbed on a hot afternoon and opined appellant’s conditions were related to events on the day he
was hospitalized.
7

William C. Bush, 40 ECAB 1064 (1989).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.W., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF RECLAMATION, Denver, CO, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 09-1934
Issued: February 24, 2010

Oral Argument December 2, 2009

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

JURISDICTION
On July 23, 2009 appellant filed a timely appeal from the July 24, 2008 and June 22,
2009 decisions of the Office of Workers’ Compensation Programs, which denied his
reconsideration requests as untimely filed and failing to present clear evidence of error. Because
more than one year has elapsed between the most recent Office merit decision dated May 1, 2007
and the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly determined that appellant’s reconsideration
requests were not timely filed and failed to present clear evidence of error.
FACTUAL HISTORY
This is the third appeal before the Board. In a September 5, 2002 decision, the Board
affirmed Office decisions dated August 2, October 25 and December 4, 2001 finding that it
properly denied modification of appellant’s wage-earning capacity determination and properly

refused to reopen appellant’s case for further merit review.1 In a September 28, 2006 order, the
Board granted the Director’s motion to remand the case and cancel oral argument, as the Office
did not properly deny appellant’s request for reconsideration on the merits of his case.2 The facts
and circumstances of the case as set forth in the Board’s prior decision are incorporated herein by
reference.
On October 25, 2004, appellant requested the Office change his compensation status from
partially disabled to totally disabled.
In correspondence dated December 22, 2004, the Office responded to appellant’s request
for total disability compensation and a modification of his loss of wage-earning capacity
determination. It advised appellant that, once a wage-earning capacity is determined,
modification is not warranted unless there was a material change in the injury-related condition,
the claimant has been retrained or otherwise rehabilitated or the original determination was in
error and the burden is on the party attempting to show the award should be modified. The
Office requested that appellant submit medical evidence supporting his work injury had
materially worsened since the wage-earning capacity determination of December 2, 1993.
On January 26, 2005 the Office denied appellant’s claim for a recurrence of disability
finding that the medical evidence did not establish that his work injury precluded him from
working in his vending machine business. On February 15, 2005 appellant requested
reconsideration. He asserted that his wage-earning capacity was based on his earnings as a
vending machine operator; however, such earnings were not a fair or reasonable representation
of his wage-earning capacity because other factors were present that affected his ability to earn
wages. In a January 14, 2005 report, Dr. Bruce Leonard, a psychologist, noted that he had
treated appellant since 1992 for a work-related emotional condition. He opined that appellant
was totally disabled from work. Appellant asserted this evidence was new and relevant. He
contended that he did not sustain a recurrence of disability and referenced Irwin E. Goldman3 to
support his argument that there was an error in the determination of his wage-earning capacity.
In a letter dated April 1, 2005, the Office acknowledged receipt of appellant’s request for
reconsideration and determined that a merit review of his claim was appropriate.
In a decision dated June 24, 2005, the Office denied appellant’s request for
reconsideration without a merit review.
On July 13, 2005 appellant requested reconsideration. He asserted that he was entitled to
a merit review as he showed the Office erroneously interpreted a specific point of law and
advanced relevant legal arguments not previously considered. Appellant reiterated that his
1

Docket No. 02-893 (issued September 5, 2002). In 1988 appellant filed a claim for an emotional condition
which was accepted by the Office for post-traumatic stress syndrome. The Office reduced appellant’s compensation
to reflect his wage-earning capacity based on his actual earnings in a vending machine business. It reaffirmed the
wage-earning capacity determination on December 2, 1993.
2

Docket No. 06-736 (issued September 28, 2006).

3

23 ECAB 46 (1971).

2

wage-earning capacity was based on earnings as a vending machine operator which was not a
fair or reasonable representation of his capacity to earn wages. He explained that, after he lost
his vending operator business in 1994, the employing establishment was unable to provide
employment. Appellant referenced the January 14, 2005 report of Dr. Leonard. He argued that
the Office was aware that several store managers requested he remove 30 of his vending
machines from their premises but had not considered that, as a result, he would not be able to
sustain his vending machine business over time.
In a decision dated September 12, 2005, the Office denied appellant’s request for
reconsideration without conducting a merit review.
On January 25, 2006 appellant requested reconsideration and submitted affidavits. He
asserted that the Office abused its discretion as he met the criteria for obtaining a merit review.
Appellant submitted evidence contending that the Office erroneously applied or interpreted a
point of law and also contended his submissions constituted relevant and pertinent new medical
evidence. He again contended that the Office did not properly interpret and apply Goldman.
Appellant asserted that his earnings as a vending machine operator were not a fair or reasonable
representation of his ability to earn wages. He further argued that the Office erred in not
deducting the direct cost of his vending machine business, $50,000.00, when calculating his
actual earnings. Appellant cited Mildred Alde-Johnson4 as support that it would be inequitable
to calculate a loss of wage-earning capacity on the basis of a claimant’s gross earnings from selfemployment without allowing for the costs of conducting business. He asserted that his vending
machine job was a makeshift position that was tailored to his needs and, pursuant to
Kathleen Weiseman,5 his actual earnings did not fairly and reasonably represent his wageearning capacity.
In a January 31, 2006 decision, the Office denied appellant’s request for reconsideration
on the grounds that the evidence was insufficient to merit warrant review.
On February 7, 2006 appellant appealed to the Board. As noted, the Board granted the
Director’s motion to remand the case.
In a merit decision dated January 16, 2007, the Office denied modification of the
January 25, 2005 decision.
On February 1, 2007 appellant requested reconsideration. He asserted that the Office did
not properly review the merits of his claim and did not address his allegation that his wageearning capacity was improperly determined or the Board precedent cited in support of his
contentions. Appellant reiterated his arguments and advised that the Office misinterpreted the
definition of wage-earning capacity as defined in Hattie Drummond.6

4

50 ECAB 474 (1999).

5

50 ECAB 416 (1999).

6

39 ECAB 904 (1988).

3

In a May 1, 2007 decision, the Office denied modification of the January 16, 2007
decision.
On April 30, 2008 appellant requested reconsideration. He submitted a brief reasserting
that his wage-earning capacity was not properly determined and should not have been based on
his actual earnings of his vending machine business. Appellant contended that the original
wage-earning capacity determination was erroneous and the Office miscalculated his actual
earnings. He reiterated that he was permanently disabled.
By decision dated July 24, 2008, the Office denied appellant’s request for reconsideration
on the grounds that the request was not timely and that he did not present clear evidence of error
by the Office.
On March 23, 2009 appellant requested reconsideration. He filed an amended
reconsideration request on March 30, 2009. Appellant again asserted that his wage-earning
capacity was erroneous and warranted modification. He restated his arguments that the wageearning capacity was improperly determined and that the Office did not properly interpret and
apply controlling Board precedent. On May 18 and June 4, 2008 appellant contended that he had
timely filed the April 30, 2008 request for reconsideration and submitted a page from his request
which was date-stamped by the Office “4-30-08.”
On June 22, 2009 the Office denied appellant’s request for reconsideration on the
grounds that the request was not timely and that he did not present clear evidence of error by the
Office.
LEGAL PRECEDENT
It is well established that either a claimant or the Office may seek to modify a formal loss
of wage-earning capacity determination. Once the wage-earning capacity of an injured
employee is determined, a modification of such determination is not warranted unless there is a
material change in the nature and extent of the injury-related condition, the employee has been
retrained or otherwise vocationally rehabilitated or the original determination was, in fact,
erroneous.7 The burden of proof is on the party attempting to show modification.8 There is no
time limit for appellant to submit a request for modification of a wage-earning capacity
determination.9

7

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004).
Tamra McCauley, 51 ECAB 375 (2000).
8

See also

Darletha Coleman, 55 ECAB 143 (2003).

9

Gary L. Moreland, 54 ECAB 638 (2003). See also Daryl Peoples, Docket No. 05-462 (issued July 19, 2005),
Emmit Taylor, Docket No. 03-1780 (issued July 21, 2004). In Peoples and Taylor, the Board determined that the
claimant’s request for reconsideration of a wage-earning capacity determination constituted a request for
modification of the decision. In both cases, the Board set aside the Office’s decision denying the claimant’s
reconsideration request as untimely and remanded for the Office to adjudicate the issue of modification of a loss of
wage-earning capacity determination.

4

ANALYSIS
The Office considered appellant’s April 30, 2008 and March 30, 2009 correspondence as
requests for reconsideration of the May 1, 2007 Office decision denying modification of the
January 16, 2007 wage-earning capacity determination under 5 U.S.C. § 8128(a). It found the
requests untimely and that appellant did not establish clear evidence of error.
In his April 30, 2008 and March 30, 2009 correspondence, appellant used the term
reconsideration. However, his letter asserts that the December 2, 1993 wage-earning capacity
determination was not properly determined and should not have been based on his actual
earnings of his vending machine business. Appellant contended that the original wage-earning
capacity determination was made in error and warranted modification as the Office failed to
properly interpret and apply relevant case precedent. His April 30, 2008 and March 30, 2009
letters constitute requests for modification of the Office’s December 2, 1993 wage-earning
capacity determination. Appellant’s request for modification of the wage-earning determination
is not a request for a review of the December 2, 1993 decision under 5 U.S.C. § 8128(a).
Therefore, the Office improperly characterized his April 30, 2008 and March 30, 2009 letters as
requests for reconsideration subject to the one-year time limitation set forth at 20 C.F.R.
§ 10.607(a).
Appellant has requested modification of the December 2, 1993 wage-earning capacity
determination based on his argument that it was in error. On remand, the Office shall adjudicate
his request for modification of the wage-earning capacity determination and issue an appropriate
decision in the case.10
CONCLUSION
The Board finds that appellant requested modification of the December 2, 1993 wageearning capacity determination and is entitled to a merit review of the wage-earning capacity
issue. The case will be remanded to the Office for all necessary development and issuance of an
appropriate decision.

10

See Gary L. Moreland, id.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 22, 2009 and July 24, 2008 are set aside and the case
remanded to the Office for further proceedings consistent with this decision of the Board.
Issued: February 24, 2010
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Plantation, FL, Employer
__________________________________________

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

Docket No. 18-1218
Issued: February 7, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 29, 2018 appellant filed a timely appeal from an April 19, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the April 19, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
in the performance of duty on September 19, 2017, as alleged.
FACTUAL HISTORY
On October 5, 2017 appellant, then a 54-year-old deportation officer, filed a traumatic
injury claim (Form CA-1) alleging that, at 10:30 a.m. on September 19, 2017, he was at the
employing establishment’s target range performing required firearms training in full body armor
when he began perspiring profusely, became lethargic, lost span of time momentarily, and became
slightly incoherent. He stopped work on September 19, 2017 and returned to work on
October 10, 2017.
Appellant sought medical treatment at an emergency room on the date of injury. In a
September 19, 2017 report, Dr. Jennifer A. Fernandez, an emergency medicine physician,
provided a final diagnosis of near syncope. Diagnostic tests results were also provided.
Work excuse notes dated September 27 and October 3, 2017, from a physician with an
illegible signature, indicated that appellant had a work-related near syncope episode.
In a February 9, 2018 report, Dr. Victor H. Faradji, a neurologist, noted that appellant had
recurrent episodes of lightheadedness since September 2017. He reported that the first episode
occurred while appellant was at a shooting range, a second similar incident occurred at a shooting
range in December 2017, and a third episode occurred at home, where appellant apparently hit his
head. Dr. Faradji reported that appellant had not worked “since December 2017.” He provided
an assessment of near syncope and noted that episodes could be in part related to hypokalemia or
dehydration. Dr. Faradji noted that a February 12, 2018 awake electroencephalography (EEG) test
was within normal limits. He also noted results of a February 21, 2018 carotid ultrasound.
By development letter dated March 12, 2018, OWCP notified appellant that his claim was
initially administratively handled to allow medical payments, as it appeared to involve a minor
injury resulting in minimal or no lost time from work. However, appellant’s claim was reopened
for consideration of the merits because his medical bills had exceeded $1,500.00. OWCP informed
him that the evidence of record was insufficient to establish his traumatic injury claim. It noted
that the evidence was insufficient to establish that appellant actually experienced the incident or
employment factor alleged to have caused injury; no diagnosis of any condition resulting from his
injury had been provided; the evidence was insufficient to support that he was injured while
performing any duty of his employment; and a physician’s opinion as to how his injury resulted in
the condition diagnosed had not been provided. OWCP advised him of the type of factual and
medical evidence necessary to establish his claim and included a questionnaire for his completion.
It afforded appellant 30 days to submit additional evidence.
In response, appellant submitted copies of medical reports previously of record.
By decision dated April 19, 2018, OWCP denied appellant’s claim. It found that he had
not established that a specific employment event(s) occurred as alleged, therefore he had not

2

established the factual component of his claim. OWCP further noted that appellant had not
submitted medical evidence that established a diagnosed medical condition causally related to an
employment injury or event, therefore fact of injury had not been established.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation,
that an injury was sustained while in the performance of duty as alleged, and that any disability or
specific condition for which compensation is claimed is causally related to the employment injury.3
These are the essential elements of each and every compensation claim regardless of whether the
claim is predicated on a traumatic injury or an occupational disease.4
To determine whether a federal employee sustained a traumatic injury in the performance
of duty, it first must be determined whether fact of injury has been established. There are two
components involved in establishing fact of injury. First, the employee must submit sufficient
evidence to establish that he or she actually experienced the employment incident at the time and
place, and in the manner alleged. Second, the employee must submit medical evidence to establish
that the employment incident caused a personal injury.5
Appellant’s burden of proof includes the submission of a detailed description of the
employment factors which he or she believes caused or adversely affected a condition for which
compensation is claimed.6
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury in the performance of duty on September 19, 2017, as alleged.
On his Form CA-1, appellant noted that on September 19, 2017 he was at the employing
establishment’s target range, wearing body armor, when he began perspiring, became lethargic,
and became incoherent. He did not identify specific employment factors alleged to have caused
his condition. The Board notes that his limited description of the traumatic incident fails to provide
sufficient details to determine the circumstances surrounding his injury.7 The alleged mechanism
of injury could not be determined as essential information such as a description of the activities

3

B.G., Docket No. 16-0121 (issued May 19, 2016); C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A.
Contreras, 57 ECAB 364 (2006).
4

B.G., id.; S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

B.G., id.; T.H., 59 ECAB 388 (2008).

6

See D.C., Docket No. 18-0082 (issued July 12, 2018); S.J., Docket No. 17-1798 (issued February 23, 2018).

7

K.S., Docket No. 17-2001 (issued March 9, 2018).

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appellant performed on the target range was not provided.8 The only explanation provided
pertaining to the claimed September 19, 2017 traumatic incident was the limited statement noted
in his Form CA-1. By failing to sufficiently describe the employment incident and circumstances
surrounding his alleged injury, appellant has not established that the traumatic injury occurred at
the time, place, and in the manner alleged.9
In a March 12, 2018 development letter, OWCP informed appellant that the evidence of
record was insufficient as he had not sufficiently described the employment factors alleged to have
caused his injury. Appellant was asked to describe those alleged work factors in detail, but he did
not respond to OWCP’s request for additional factual information.10 Accordingly, as he failed to
present a clear factual statement identifying specific employment factors or conditions alleged to
have caused or contributed to his claimed medical condition, he has not met his burden of proof.11
As appellant has not established the factual element of his claim, the Board will not address
the medical evidence.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury in the performance of duty on September 19, 2017, as alleged.

8

See R.V., Docket No. 17-1286 (issued December 5, 2017).

9

P.T., Docket No. 14-0598 (issued August 5, 2014).

10

K.S., supra note 7; see also K.W., Docket No. 16-1656 (issued December 15, 2016).

11

See D.C., supra note 6; D.D., 57 ECAB 734 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the April 19, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 7, 2019
Washington, DC

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

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

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

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