United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Orlando, FL, Employer
__________________________________________

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

Docket No. 08-2518
Issued: July 1, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 24, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 4, 2008 merit decision concerning his wage-earning
capacity. 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 the Office properly reduced appellant’s compensation effective
September 28, 2008 based on his capacity to earn wages as a security guard.
FACTUAL HISTORY
The Office accepted that on January 19, 2006 appellant, then a 38-year-old federal air
marshal, sustained aggravation of spondylolisthesis and intervertebral lumbar disc disorder
during defensive measures training. He stopped work on January 19, 2008 and received
compensation from the Office for periods of disability.

Appellant received treatment from Dr. William A. Stolzer, a Board-certified orthopedic
surgeon, who found that he was totally disabled. The findings of February 9, 2006 magnetic
resonance imaging (MRI) scan testing showed disc desiccation at L2-3 and L4-5.
On June 28, 2006 Dr. Don K. Moore, an attending Board-certified orthopedic surgeon,
performed laminectomy, foraminotomy and facetectomy surgery at L4-5. The procedures were
authorized by the Office. Dr. Moore followed appellant’s post-surgery recovery and on
January 11, 2007 he indicated that appellant could return to work with restrictions such as
pushing and pulling no more than 50 pounds.
On June 6, 2006 Dr. Patrick M. Gonzalez, an attending Board-certified physical medicine
and rehabilitation physician, stated that appellant continued to report on and off low back pain,
mainly with any type of bending. He stated that appellant’s back condition had improved
significantly with a work strengthening program and indicated that he could return to work as of
today June 6, 2007 with a restriction of lifting, pushing and pulling no more than 45 pounds.1
In September 2007 appellant began participating in a vocational rehabilitation program.2
In a September 28, 2007 report, Dr. Gonzalez diagnosed chronic low back pain, status post L4-5
fusion surgery and L4-5 spondylosis/spondylolisthesis. He stated that appellant could work on a
full-time basis (8 hours per day, 40 hours per week) with restrictions of lifting, pushing and
pulling no more than 45 pounds (and no more than 25 pounds on a frequent basis). Appellant
should avoid standing, walking and sitting for more than 15 minutes at the time and he could not
drive continuously for more than an hour. On January 30, 2008 Dr. Gonzalez indicated that
appellant’s work restrictions remained the same.3
In February 2008 appellant’s vocational rehabilitation counselor determined that
appellant was able to work in the constructed position of security guard. The position was
reasonably available in appellant’s commuting area at an average pay rate of $436.00 per week.
The physical requirements included carrying, pushing and pulling up to 20 pounds on an
occasional basis and up to 10 pounds on a frequent basis. The job could include walking and/or
standing frequently.4
On June 16, 2008 Dr. Masood Hashmi, a Board-certified neurologist who served as an
Office referral physician, stated that appellant reported pain in his low back and left hip. Motor
examination revealed normal bulk, tone, and strength in all muscle groups of appellant’s upper
and lower extremities. There was no atrophy and sensory examination was intact to all
modalities in the arms and legs. Dr. Hashmi diagnosed low back pain and left sacroiliitis.
1

Appellant had participated in a functional capacity evaluation which showed that he could lift, push and pull up
to 45 pounds.
2

Appellant was unable to find a position through his participation in the program.

3

On January 30, 2008 Dr. Gonzalez stated that appellant had a five percent decrease in lumbosacral spine motion
and mild left-sided lumbar pain upon flexion. There is mild tenderness to palpation over the left paraspinal area and
in midline at L4-5 levels and straight leg testing was negative.
4

Appellant obtained a “class D” unarmed security guard license in early 2008.

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In a July 30, 2008 report, the Office advised appellant of its proposed reduction of his
compensation based on its determination that he was able to work in the constructed position of
security guard. It provided appellant 30 days to submit evidence or argument concerning his
ability to earn wages.
In an August 5, 2008 letter, appellant argued that the security guard position did not
reflect his wage-earning capacity as he was unable to obtain such a position during his job
search. He asserted that the opinion of Dr. Hashmi showed that he could not work. In a
September 4, 2008 decision, the Office reduced appellant’s compensation effective
September 28, 2008 based on his capacity to earn wages as a security guard.5
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.6 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.7
Under section 8115(a) of the Federal Employees’ Compensation Act, wage-earning
capacity is determined by the actual wages received by an employee if the earnings fairly and
reasonably represent his wage-earning capacity. If the actual earnings do not fairly and
reasonably represent wage-earning capacity, or if the employee has no actual earnings, his wageearning capacity is determined with due regard to the nature of his injury, his degree of physical
impairment, his usual employment, his age, his qualifications for other employment, the
availability of suitable employment and other factors and circumstances which may affect his
wage-earning capacity in his disabled condition.8 Wage-earning capacity is a measure of the
employee’s ability to earn wages in the open labor market under normal employment
conditions.9 The job selected for determining wage-earning capacity must be a job reasonably
available in the general labor market in the commuting area in which the employee lives.10 The
fact that an employee has been unsuccessful in obtaining work in the selected position does not
establish that the work is not reasonably available in his commuting area.11
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
5

The Office calculated the reduction in appellant’s compensation by using the formula found in Albert C.
Shadrick, 5 ECAB 376 (1953).
6

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

7

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

9

Albert L. Poe, 37 ECAB 684, 690 (1986), David Smith, 34 ECAB 409, 411 (1982).

10

Id.

11

See Leo A. Chartier, 32 ECAB 652, 657 (1981).

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by the Office or to an Office wage-earning capacity specialist for selection of a position, listed in
the Department of Labor’s Dictionary of Occupational Titles or otherwise available in the open
labor market, that fits that employee’s capabilities with regard to his physical limitations,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service. Finally, application of the principles set forth in
the Shadrick decision will result in the percentage of the employee’s loss of wage-earning
capacity.12
ANALYSIS
The Office accepted that on January 19, 2008 appellant sustained aggravation of
spondylolisthesis and intervertebral lumbar disc disorder. Appellant stopped work on
January 19, 2008 and received disability compensation from the Office.
The Office received information from Dr. Gonzalez, an attending physician of physical
medicine and rehabilitation, who found that appellant was not totally disabled for work and had a
partial capacity to perform work for eight hours per day subject to specified work restrictions.
Appellant’s vocational rehabilitation counselor then determined that appellant was able to
perform the position of security guard and that state employment services showed that the
position was available in sufficient numbers so as to make it reasonably available within
appellant’s commuting area.13
The Office properly relied on the opinion of the rehabilitation counselor that appellant
was vocationally capable of performing the security guard position and a review of the medical
evidence reveals that appellant was physically capable of performing the position. The security
guard position required carrying, pushing and pulling up to 20 pounds on an occasional basis and
up to 10 pounds on a frequent basis. The job could include walking and/or standing frequently.
On September 28, 2007 and January 30, 2008 Dr. Gonzalez indicated that appellant could work
on a full-time basis (8 hours per day, 40 hours per week) with restrictions of lifting, pushing and
pulling no more than 45 pounds (and no more than 25 pounds on a frequent basis). He stated
that appellant should avoid standing, walking and sitting for more than 15 minutes at the time
and he could not drive continuously for more than an hour. The Board notes that these work
restrictions would allow appellant to perform the required tasks of the security guard position.14
Appellant did not submit evidence or argument showing that he could not vocationally or
physically perform the security guard position. He argued that the security guard position did
not reflect his wage-earning capacity as he was unable to obtain such a job during his job search.
However, the fact that an employee has been unsuccessful in obtaining work in the selected
12

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992);
Albert C. Shadrick, supra note 5.
13

The average wage for the job was $436.00 per week.

14

There is no indication that the security guard position would prevent appellant from alternating between sitting,
walking and standing or that he would be required to drive for more than an hour at a time.

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position does not establish that the work is not reasonably available in his commuting area.15
Appellant asserted that the opinion of Dr. Hashmi, a Board-certified neurologist who served as
an Office referral physician, showed that he could not work. However, Dr. Hashmi did not
provide any opinion on appellant’s ability to work.
After determining appellant’s wage-earning capacity based on the security guard
position, the Office properly calculated the reduction in his compensation using the Shadrick
formula.16 For these reasons, the Office properly reduced appellant’s compensation effective
September 28, 2008.
CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation effective
September 28, 2008 based on his capacity to earn wages as a security guard.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
September 4, 2008 decision is affirmed.
Issued: July 1, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

See supra note 11 and accompanying text.

16

See supra note 12 and accompanying text.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.F., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Humble, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0166
Issued: March 8, 2022

Case Submitted on the Record

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

On November 12, 2020 appellant filed an appeal from a May 8, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of Appellate Boards docketed
the appeal as Docket No. 21-0166.
The Board, having duly considered the matter, notes that its jurisdiction is limited to the
review of final adverse OWCP decisions issued under the Federal Employees’ Compensation Act. 1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s authority
is limited to appeals, which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180 th day following the most recent OWCP decision, dated May 8, 2020, was
November 4, 2020. As appellant did not file an appeal with the Board until November 12, 2020,
more than 180 days after the May 8, 2020 decision, the Board finds that the appeal docketed as
No. 21-0166 is untimely filed. The Board is without jurisdiction to review the appeal. Appellant
has not offered a reason to explain her failure to timely file an appeal with supporting
1

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

2

Id. at § 501.3(e).

documentation sufficient to establish compelling circumstances. Because there is no final adverse
decision issued by OWCP within 180 days of the filing of this appeal over which the Board may
properly exercise jurisdiction, the Board concludes that the appeal docketed as No. 21-0166 must
be dismissed. 3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0166 is dismissed.
Issued: March 8, 2022
Washington, DC

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

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

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

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
3

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
U.S. POSTAL SERVICE, POSTAL &
DISTRIBUTION CENTER, Hamilton, NJ,
Employer
__________________________________________

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

Docket No. 18-0194
Issued: September 14, 2018

Case Submitted on the Record

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

JURISDICTION
On November 6, 2017 appellant, through counsel, filed a timely appeal from an August 21,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the case.

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
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5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a right shoulder
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On September 25, 2016 appellant, then a 65-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that her right shoulder rotator cuff tear was
causally related to her federal employment. She stated that she “worked manual letters and pitched
mail above her shoulders, reached and lifted trays of mail, and reached forward at chest level 40
hours a day 5 days a week.” Appellant first became aware of her condition and that it was caused
or aggravated by her federal employment on September 23, 2016. No evidence was submitted
with the claim.
By development letter dated September 30, 2016, OWCP advised appellant of the type of
medical and factual evidence necessary to establish her claim. It also provided appellant a
development questionnaire for her completion. OWCP afforded her 30 days to submit the
requested evidence.
In a September 23, 2016 report, Dr. Munir Ahmed, a Board-certified orthopedic surgeon,
noted that appellant, a postal worker who sorted and pitched mail with her right arm, presented
with right shoulder and neck pain complaints which started about two months ago. He presented
examination findings and indicated that the cervical spine x-rays showed degenerative changes in
the cervical spine with associated anterior-posterior spurring and three millimeters of
anterolisthesis of C3 or C4. Dr. Ahmed diagnosed impingement syndrome of the right shoulder,
cervicalgia, incomplete rotator cuff tear or rupture of the right shoulder, not specified as traumatic.
He noted that appellant lifted with, and used the right arm repetitively. Dr. Ahmed indicated that,
in the process of working these duties for many years, she sustained pain in her right shoulder and
neck. He opined that “this appears to be a cumulative preoperative disorder from repeated trauma.
May have to contact workmen’s compensation.” Dr. Ahmed recommended a computerized
tomography (CT) scan of the cervical spine and an electromyogram (EMG) for the right upper
extremity.
In an October 7, 2016 report, Dr. Ahmed reported that appellant’s pain was mostly in her
right bicep and that she was experiencing numbness down to the fingers and dropping things with
her right arm. Appellant also complained of neck pain which radiated into her right upper
extremity. Dr. Ahmed indicated that the mechanism of injury included pitching mail for the
employing establishment. He provided diagnoses of cervicalgia, impingement syndrome of the
right shoulder, incomplete rotator cuff tear or rupture of the right shoulder, and incomplete rotator
cuff tear or rupture of the left shoulder. In an undated Form CA-17 duty status report, with a
facsimile (fax) date of October 11, 2016, Dr. Ahmed diagnosed right shoulder pain and assigned
work restrictions.
In an October 11, 2016 statement, appellant responded to OWCP’s development letter. She
indicated that she began working for the employing establishment in June 1993 and outlined the
duties and positions she had held. Appellant noted that she had a work-related back injury in 2008
and was placed on limited duty in the manual aisle. Her duties, which were performed for six and
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a half hours per day, involved pitching the mail overhead, picking up trays which weighed about
20 pounds each, separating mail, unloading cages of boxes, and pulling cages out onto the dock
for mail distribution. Appellant noted that she had briefly returned to work the flat sorting machine
(FSM) until she felt a burning sensation in her back when she picked up a tub while working on
the FSM. After that, the employing establishment provided her with a limited-duty position in the
manual aisle, which she has been working ever since. Appellant explained that she picked up trays
at a six-pound weight limit, pitched the mail repetitively for six and a half hours a day, and swept
the mail and put it on a skid for distribution. She was placed on modified duty where she pitched
mail repetitively overhead for six and a half hours per day, five days a week. Appellant also swept
mail, picked up trays and placed the swept mail on skids for mail distribution. She also replaced
the empty trays on the racks and would resume pitching mail. Appellant claimed that the pain in
her arm and shoulder along the right side of her neck and jaw was a new problem.
In an October 11, 2016 statement, G.E., a supervisor, indicated that pitching letters in the
manual aisle required minimum effort. He advised that the employee was required to sit in a chair
or stand (braced up on stool) and pitch/sort manual letters. G.E. noted that appellant sat in an
armed chair and that she did not perform any tasks which required physical exertion. He also
noted that there were sweep times during the night to alleviate the monotony of pitching manual
letters.
On October 13, 2016 appellant underwent a CT scan of her right shoulder and a right
shoulder arthrogram.
In a November 1, 2016 report, Dr. Ahmed indicated that the diagnostic test results showed
high-grade partial tear subscapularis tendon of the rotator cuff interval, a mild arthritis in the
shoulder joints and biceps tendinitis. He also reported that an EMG study revealed right-sided
carpal tunnel syndrome. Dr. Ahmed recommended arthroscopic surgery with subacromial
decompression and possible repair of the rotator cuff tear in the right shoulder. He also
recommended a CT scan with contrast for the cervical spine.
In his November 1, 2016 CA-17 duty status report, Dr. Ahmed diagnosed right shoulder
pain and provided work restrictions. In a November 1, 2016 attending physician’s report, Form
CA-20, he diagnosed rotator cuff tear and cervicalgia. Dr. Ahmed opined, with a checkmark in a
box marked “yes,” that the diagnosed conditions were caused or aggravated by the employment
activity of pitching letters into manual cases. He also wrote “work related” on the report.
By decision dated November 18, 2016, OWCP accepted the alleged employment factors
and that appellant had been diagnosed with a medical condition. However, it denied her claim
because the medical evidence of record failed to establish that the diagnosed right shoulder
conditions were causally related to the accepted factors of her federal employment.
On November 28, 2016 OWCP received a November 10, 2016 report from Dr. Ahmed.
Dr. Ahmed indicated that the CT scan of the right shoulder showed evidence of a high-grade partial
tear of the subscapularis tendon near the rotator cuff with mild arthritic changes in the
acromioclavicular (AC) joint. The CT scan of the cervical spine showed multilevel degenerative
changes without evidence of acute osseous injury of the cervical spine and neuro foramina
narrowing on the right at C4-5 and C5-6. The EMG showed a right carpal tunnel syndrome of
moderate intensity. Dr. Ahmed provided a diagnosis of bursitis of the right shoulder, right carpal
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tunnel syndrome, cervicalgia, impingement syndrome of the right shoulder, incomplete rotator cuff
tear or rupture of the right shoulder, incomplete rotator cuff tear or rupture of the left shoulder,
pain in the right shoulder, and sprain of the right rotator cuff capsule. He indicated that appellant
required right shoulder surgery and eventually would need carpal tunnel surgery. Dr. Ahmed
opined that she was unable to work.
On December 1, 2016 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held on June 14, 2017.
Prior to the hearing, OWCP received additional medical evidence from Dr. Ahmed. In a
March 23, 2017 report, Dr. Ahmed noted that the CT arthrogram showed a tear of the subscapularis
muscle at the rotator cuff interval. He opined that appellant was a candidate for arthroscopy joint
evaluation of right shoulder and provided medical rationale for the suggested surgery. Dr. Ahmed
opined that she had accumulative trauma disorder secondary to work which involved constant
packing and lifting boxes of heavy equipment which had led to rotator cuff pathology with
subscapularis tear of the right shoulder.
In a May 19, 2017 report, Dr. Ahmed summarized appellant’s visits and test results. He
provided an assessment of rotator cuff tear of the right shoulder, impingement syndrome of the
right shoulder, and right biceps tendonesis. Dr. Ahmed noted that appellant worked for the
employing establishment for many years with repetitive motions of the right arm and that she
denied any previous history of neck pain, right shoulder pain, or right upper extremity pain. He
indicated that the CT scan of the right shoulder revealed a partial tear of the subscapular tendon of
the rotator cuff with a glenohumeral and biceps tendonesis and that surgery was recommended.
Dr. Ahmed provided text book definitions of occupational shoulder disorders or repetitive stress
injury. He then opined that the “facts of injury are the direct and proximate cause” of appellant’s
diagnosed conditions.
At the telephonic hearing held on June 14, 2017, appellant testified that she had worked in
the clerk craft since 1993. She stated that this was a labor intensive job which included lifting,
twisting, and bending. Appellant testified to prior work injuries.
In a July 13, 2017 statement, V.H., an employing establishment official, indicated that the
physical exertion associated with appellant’s job in the manual letter aisle was minimal at best.
She explained that appellant did not lift trays of letters to pitch; rather, she took small handfuls at
a time. When a holdout in the case is full, appellant empties it by taking a handful of letters out.
V.H. noted that appellant was not required to lift more than five pounds, was not required to reach
above her shoulder, and was not required to sweep during the manual aisle dispatch. She reiterated
that there was no part of appellant’s duties that required physical exertion. V.H. further noted that
appellant worked 40 hours a week, 8 hours a day and persistently requested to be allowed to work
overtime in the form of 2 extra hours a day or a full 8 hours on one of her nonscheduled days off.
She noted that appellant recently worked overtime on July 13, 2017 for a full eight hours. V.H.
related that appellant had other health issues which were not work related. She also indicated that
appellant had signed up for the overtime desired list, which would require her to work in other
areas outside of her restrictions.
Appellant responded to V.H.’s letter on July 29, 2017. She explained that she was working
a modified job and had been supplied with an adjustable chair for her work-related back injury.
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Appellant stated that she pitched mail, which involved carrying a half tray to her workstation for
about seven hours a day. Toward the end of the day, she performed dispatch work which involved
sweeping five cases filled with mail. Appellant would take half a tray and proceed to sweep the
cases. She would then place a half tray on a skid for mail dispatch. This was done until all the
cases were empty. The trays were then placed on a skid and sent out for dispatch. Appellant
indicated that she had told V.H. numerous times that her neck, shoulder and arm were very painful.
Appellant also related that she followed her physical restrictions of no lifting more than
five pounds and no pitching mail over the shoulder. She noted that she was also permitted to
sweep mail, if she was not in pain and therefore she normally swept the mail as they were shortstaffed. With regard to overtime, appellant indicated that everyone asked for overtime; however,
she usually did not get it because the mail flow was low on her workdays.
In a July 29, 2017 statement, T.P., a coworker, who worked modified assignments with
appellant, verified appellant’s statement.
By decision dated August 21, 2017, an OWCP hearing representative found that the
evidence of record established that appellant performed the repetitive manual letter duties outlined
in her July 29, 2017 statement and that she had been diagnosed with a medical condition. The
hearing representative affirmed the November 18, 2016 decision, finding that the evidence of
record failed to establish causal relationship between appellant’s diagnosed shoulder conditions
and the accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which compensation is claimed is causally related to
that employment injury.4 In an occupational disease claim, appellant’s burden requires submission
of the following: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.5
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.6 The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
3

Supra note 2.

4

J.P., 59 ECAB 178 (2007), Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143 (1989).

5

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, id.

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

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between the diagnosed condition and the specific employment factors identified by the claimant.
This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.7
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to the accepted factors of her federal employment.
OWCP has accepted that appellant performed the repetitive manual duties of pitching mail
and performing dispatch work as described in her July 29, 2017 statement. The medical evidence
of record, however, is insufficient to establish that the diagnosed right shoulder conditions are
caused or aggravated by the accepted work factors.
In support of her claim, appellant submitted reports from Dr. Ahmed. On September 23,
2016 Dr. Ahmed reported that appellant had sorted and pitched mail repetitively with her right arm
for many years and developed pain in her right shoulder and neck. He diagnosed impingement
syndrome of right shoulder, cervicalgia, and incomplete tear or rupture of right shoulder which he
opined “appeared to be a cumulative preoperative disorder from repeated trauma.” The Board
finds that Dr. Ahmed did not provide adequate medical rationale regarding causal relationship.
Dr. Ahmed’s statement on causation failed to provide a sufficient explanation as to the mechanism
of injury pertaining to this occupational disease claim, namely, how the repetitive manual duties
of pitching mail and performing dispatch work would cause or aggravate her diagnosed right
shoulder conditions.8 Without explaining how physiologically the movements involved in
appellant’s employment duties caused or contributed to her diagnosed condition, Dr. Ahmed’s
opinion on causal relationship is equivocal in nature and of limited probative value.9 Thus,
Dr. Ahmed’s September 23, 2016 report is insufficient to meet appellant’s burden of proof.
In his October 7, 2016 report, Dr. Ahmed provided right shoulder and bicep diagnoses and
indicated that the mechanism of injury included pitching mail. He reported that appellant’s pain
was mostly in her right bicep and that she was experiencing numbness down to the fingers and
dropping things with her right arm. However, Dr. Ahmed again did not explain how
physiologically pitching mail would have caused appellant’s diagnosed conditions.10 In his
November 1, 2016 Form CA-20, attending physician’s report, he diagnosed a rotator cuff tear and
cervicalgia and reported that appellant pitched letters into manual cases and he also check a box
marked “yes” indicating that the diagnosed conditions were caused or aggravated by the
employment activity described and wrote “work related” on the report. The Board has held that a
report that addresses causal relationship with a checkmark, without medical rationale explaining
7

James Mack, 43 ECAB 321 (1991).

8

S.W., Docket No. 08-2538 (issued May 21, 2009).

9

See L.M., Docket No. 14-0973 (issued August 25, 2014); R.G., Docket No. 14-0113 (issued April 25, 2014); K.M.,
Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-0548 (issued November 16, 2012).
10

Id.

6

how the employment incident caused the alleged injury, is of diminished probative value and
insufficient to establish causal relationship.11 Merely noting that the diagnosed conditions are
work related without providing adequate rationale on causal relationship are of diminished
probative value and do not meet an employee’s burden of proof.12
In his March 23, 2017 report, Dr. Ahmed advised that appellant was a surgical candidate
for her right shoulder due to the rotator cuff pathology with subscapularis tear of the right shoulder.
While he opined that appellant had a cumulative trauma disorder secondary to work, his opinion
on causal relationship is of limited probative value as it lacks medical rationale based on an
accurate description of appellant’s work factors. Specifically, Dr. Ahmed indicated that the
constant packing and lifting boxes of heavy equipment led to rotator cuff pathology with
subscapularis tear of the right shoulder which were not accepted employment factors. To establish
causal relationship, the opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the established employment factors.13 Thus, this report is insufficient to establish appellant’s
claim.
In his May 17, 2017 report, Dr. Ahmed summarized appellant’s visits and test results and
indicated that surgery was recommended. He also cited medical literature for definitions of
occupational shoulder disorders or repetitive stress injury. Dr. Ahmed then opined that the “facts
of injury were the direct and proximate cause” of appellant’s diagnosed conditions. While he
expressed his agreement that appellant had an occupational shoulder disorder or repetitive stress
injury as defined by medical literature, as previously noted, Dr. Ahmed did not provide a
biomechanical explanation of how appellant’s specific federal employment duties caused or
contributed to the diagnosed conditions. His reports therefore fail to provide the necessary medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.14 The Board has previously held that conclusory
statements not fortified by medical rationale are insufficient to establish causal relationship
between employment factors and diagnosed conditions.15 The remaining medical evidence of
record is also insufficient to establish appellant’s claim. In CA-17 forms, duty status reports, dated
October 11 and November 1, 2016, Dr. Ahmed diagnosed right shoulder pain. The Board notes
that pain is a symptom, not a medical diagnosis.16 Dr. Ahmed’s November 1 and 10, 2016 reports
and the diagnostic testing of record simply interpret diagnostic studies pertaining to the shoulder
and cervical spine without an opinion regarding causal relationship. The Board has held that
11

See R.A., Docket No. 17-1472 (issued December 6, 2017).

12

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

13

P.K., Docket No. 08-2551 (issued June 2, 2009); John W. Montoya, 54 ECAB 306 (2003).

14

Leslie C. Moore, 52 ECAB 132, 134 (2000).

15

N.M., Docket No. 10-0283 (issued August 19, 2010).

16
Findings of pain or discomfort alone do not satisfy the medical aspect of the fact of injury medical determination.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.4a(6) (August 2012). It is not
possible to establish the cause of a medical condition, if the physician has not stated a firm medical diagnosis. T.G.,
Docket No. 13-0076 (issued March 22, 2013).

7

diagnostic test reports are of limited probative value as they fail to provide an opinion on the causal
relationship between appellant’s employment duties and the diagnosed conditions. For this reason,
this evidence is insufficient to meet his burden of proof.17
On appeal counsel contends that OWCP’s decision was contrary to fact and law. Based on
the findings and reasons set forth above, the Board finds counsel’s arguments are not substantiated.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated August 21, 2017 is affirmed.
Issued: September 14, 2018
Washington, DC

Christopher J. Godfrey, 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

17

S.G., Docket No. 17-1054 (issued September 14, 2017).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF THE AIR FORCE, KELLY
AIR FORCE BASE, San Antonio, TX, Employer
__________________________________________

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

Docket No. 07-94
Issued: April 5, 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 July 7, 2006 merit decision1
of the Office of Workers’ Compensation Programs, finding that he did not have more than an
additional three percent impairment of the left upper extremity, a total of six percent impairment.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
schedule award case.
ISSUE
The issue is whether appellant established that he has more than an additional three
percent impairment of the left upper extremity, a total of a six percent impairment, for which he
received schedule awards.

1

On appeal appellant states that he is seeking review of an Office decision dated August 9, 2006. The Board
notes, however, that the only decision contained in the case record, which is within the Board’s jurisdiction, is the
Office’s July 7, 2006 schedule award decision.

FACTUAL HISTORY
On January 12, 2002 appellant, then a 58-year-old retired inventory management
employee, filed an occupational disease claim.2 On February 10, 1992 he first realized that his
carpal tunnel syndrome was caused by factors of his federal employment. In an accompanying
narrative statement, appellant related that he started to experience a tingling sensation in his right
index finger which turned into a shooting pain that ran up his shoulder. He also experienced the
same problems with his left hand. During a routine medical examination, appellant’s primary
care physician referred him to Dr. Fidel V. Exconde, Jr., a Board-certified neurologist, who
performed an electrodiagnostic study. Appellant stated that his job required him to continuously
use the computer on average 8 hours per day, 40 hours per week. He also placed orders,
established codes, removed, added and updated information every day and excessively used his
hand/wrist. By letter dated February 22, 2002, the Office accepted appellant’s claim for bilateral
carpal tunnel syndrome and authorized right wrist carpal tunnel release which was performed on
September 12, 2002 by Dr. Paul D. Pace, an attending hand surgeon.
On August 18, 2003 appellant filed a claim for a schedule award (Form CA-7). In a
November 18, 2002 medical report, Dr. Pace found that appellant reached maximum medical
improvement on that date. He determined that appellant had six percent impairment of the right
upper extremity. Dr. Pace rated 0 percent each for sensory and motor deficit of the right elbow,
based on Table 16-11 at page 484, Table 16-15 at page 492 and Table 16-10 at page 482 of the
fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides); 2 percent for motor deficit, based on Table 16-11 at page 484 and
Table 16-13 at page 489 (20 percent for a Grade 4 deficit multiplied by 10 percent maximum
median nerve impairment); and 3.9 percent (rounded to 4 percent)3 for sensory deficit, based on
Table 16-11 at page 484 and Table 16-15 at page 492 (10 percent for a Grade 2 deficit multiplied
by 39 percent maximum median nerve impairment) of the right wrist. Dr. Pace added the
percentages for motor and sensory deficit (two plus four) to calculate six percent impairment of
the right upper extremity.
Dr. Pace determined that appellant had three percent impairment of the left upper
extremity. He rated 0 percent each for motor and sensory deficit of the left elbow; 1 percent for
motor deficit (10 percent for a Grade 4 deficit multiplied by 10 percent maximum median nerve
impairment); and 1.95 percent (rounded to 2 percent) for sensory deficit (5 percent for a Grade 2
deficit multiplied by 39 percent for maximum median nerve impairment) of the left wrist.
Dr. Pace added the percentages for motor and sensory deficit (one plus two) to calculate three
percent impairment of the left upper extremity.
On September 10, 2003 an Office medical adviser reviewed Dr. Pace’s November 18,
2002 report.
He found that appellant reached maximum medical improvement on
2

Appellant retired from the employing establishment on September 3, 1999.

3

The A.M.A., Guides provides for rounding impairment to the nearest whole number. A.M.A., Guides 20,
section 2.5d Interpolating, Measuring and Rounding Off. Percentages should not be rounded until the final percent
for award purposes is obtained. Fractions should be rounded down from .49 or up from .50. Federal (FECA)
Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.0700.4.b(2) (September 1994).

2

November 18, 2002. Utilizing the appropriate tables of the A.M.A., Guides, the Office medical
adviser determined that appellant had six percent impairment of the right upper extremity and
three percent impairment of the left upper extremity based on Dr. Pace’s findings. He utilized
the Combined Values Chart at page 604 of the A.M.A., Guides. The Office medical adviser
combined four percent for sensory deficit with two percent for motor deficit resulting in six
percent impairment of the right upper extremity. He also combined two percent for sensory
deficit with one percent for motor deficit resulting in three percent impairment of the left upper
extremity.
By decision dated March 24, 2004, the Office granted appellant a schedule award for
three percent impairment of the left upper extremity and six percent impairment of the right
upper extremity based on the Office medical adviser’s opinion.
On January 27, 2005 appellant underwent left wrist carpal tunnel release which was
performed by Dr. Pace.
By letter dated April 7, 2005, appellant requested reconsideration of the Office’s
March 24, 2004 decision. In a May 2, 2005 decision, the Office denied his request for
reconsideration on the grounds that it was not timely filed and failed to establish clear evidence
of error.
On August 29, 2005 appellant filed a CA-7 form for an additional schedule award for his
upper extremities. In an August 8, 2005 report, Dr. Pace found that appellant reached maximum
medical improvement on that date. He determined that appellant had six percent impairment
each of the right and left upper extremities. Regarding the right upper extremity, Dr. Pace stated
that the range of motion of the right elbow included 142 degrees of flexion (0 percent) and no
lack of extension (0 percent), based on the A.M.A., Guides 472, Figure 16-34; and pronation of
90 degrees (0 percent) and supination of 88 degrees (0 percent), based on the A.M.A., Guides
474, Figure 16-37. He further stated that appellant had no motor or sensory deficits secondary to
a peripheral nerve injury. Dr. Pace added the motor and sensory losses to calculate zero percent
impairment. Regarding the right wrist, Dr. Pace reported 69 degrees of flexion (zero percent)
and 70 degrees of extension (zero percent), based on Figure 16-28 at page 467 of the A.M.A.,
Guides; and ulnar deviation of 38 degrees (zero percent) and 29 degrees of radial deviation (zero
percent), based on Figure 16-31 at page 469 of the A.M.A., Guides. He reiterated his prior
findings that appellant’s motor and sensory deficits were two percent and four percent,
respectively, resulting in six percent impairment. Dr. Pace added the percentages for decreased
range of motion and combined motor and sensory deficits (zero plus six) to calculate six percent
impairment of the right upper extremity.
Regarding appellant’s left upper extremity, Dr. Pace determined that the range of motion
of the left elbow included 140 degrees of flexion (zero percent) and no lack of extension (zero
percent), based on the A.M.A., Guides 472, Figure 16-34; and pronation of 90 degrees (zero
percent) and supination of 86 degrees (zero percent), based on the A.M.A., Guides 474, Figure
16-37. Dr. Pace stated that appellant had no motor or sensory deficits secondary to a peripheral
nerve injury. He added the motor and sensory losses to calculate zero percent impairment of the
left elbow. Dr. Pace determined that appellant had 64 degrees of flexion (zero percent) and 63
degrees of extension (zero percent), based on Figure 16-28 at page 467 of the A.M.A., Guides;

3

and ulnar deviation of 36 degrees (zero percent) and 27 degrees of radial deviation (zero
percent), based on Figure 16-31 at page 469 of the A.M.A., Guides of the left wrist. He further
determined that appellant had 2.5 percent for motor deficit (25 percent for a Grade 4 deficit
multiplied by 10 percent maximum median nerve impairment); and 3.9 percent for sensory
deficit (10 percent for a Grade 4 deficit multiplied by 39 percent for maximum median nerve
impairment). Dr. Pace added the percentages for motor and sensory deficits to calculate 6.4
percent impairment (rounded down to 6 percent). He then added the percentages for decreased
range of motion and combined motor and sensory deficits (zero plus six) to calculate six percent
impairment of the left upper extremity.
On March 9, 2006 an Office medical adviser reviewed Dr. Pace’s August 8, 2005 report.
He stated that appellant reached maximum medical improvement on August 8, 2005. The Office
medical adviser determined that appellant had six percent impairment each of the right and left
upper extremities. He utilized the Combined Values Chart at page 604 of the A.M.A., Guides to
determine the impairment of each extremity. The Office medical adviser combined 3.9 percent
for sensory deficit with 2 percent for motor deficit resulting in 5.9 percent (rounded to 6 percent)
impairment of the right upper extremity. He noted appellant’s prior schedule award for six
percent impairment of the right upper extremity and opined that, based on today’s
recommendation, appellant had no additional impairment of the right upper extremity.
Regarding the left upper extremity, the medical adviser combined 3.9 percent for sensory deficit
with 2.5 percent for motor deficit resulting in 6.4 percent impairment (rounded down to 6
percent) of the left upper extremity. The Office medical adviser noted that appellant had
previously received a schedule award for a three percent impairment of the left upper extremity.
He stated that this award should be subtracted from the recommended impairment rating,
yielding an additional three percent impairment of the left upper extremity.
By decision dated July 7, 2006, the Office granted appellant a schedule award for an
additional three percent impairment of the left upper extremity, for a total six percent impairment
of the left upper extremity based on the medical adviser’s opinion. The award covered a period
of 9.36 weeks from August 8 to October 12, 2005.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulation5 set forth the number of weeks of compensation to be paid for
permanent loss, or loss of use of the members of the body listed in the schedule. However,
neither the Act nor the regulations specify the manner in which the percentage of impairment
shall be determined. For consistent results and to ensure equal justice for all claimants, the
Office adopted the A.M.A., Guides as a standard for determining the percentage of impairment
and the Board has concurred in such adoption.6

4

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

5

20 C.F.R. § 10.404.

6

Id.

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ANALYSIS
The Office accepted that appellant sustained bilateral carpal tunnel syndrome while in the
performance of duty. On March 24, 2004 it granted him a schedule award for three percent
impairment of his left upper extremity and six percent impairment of his right upper extremity
based on the opinion of the Office medical adviser. In support of his claim for an additional
schedule award, appellant submitted Dr. Pace’s August 8, 2005 report. Dr. Pace determined that
appellant had six percent impairment of both the right and left upper extremities. Regarding the
right upper extremity, Dr. Pace found that appellant had zero percent impairment for loss of
range of motion of the right elbow based on the A.M.A., Guides 472, 474, Figures 16-34
and 16-37. He opined that appellant had no motor or sensory deficits secondary to a peripheral
nerve injury which constituted zero percent impairment. Regarding the right wrist, Dr. Pace
determined that appellant had zero percent impairment for loss of range of motion based on the
A.M.A., Guides 476, 469, Figures 16-28 and 16-31. He reiterated his prior findings that
appellant’s motor and sensory deficits were two percent and four percent, respectively, and
added, rather than combined these impairments to calculate six percent impairment. Dr. Pace
added the percentages for decreased range of motion and combined motor and sensory deficits (0
plus 6) to calculate 6 percent impairment of the right upper extremity.
Regarding appellant’s left upper extremity, Dr. Pace determined that he had zero percent
impairment for loss of range of motion of the left elbow based on the A.M.A., Guides 472, 474,
Figures 16-34 and 16-37. He further determined that appellant had no motor or sensory deficits
secondary to a peripheral nerve injury which constituted zero percent impairment of the left
elbow. Dr. Pace found that he had zero percent impairment for loss of range of motion of the left
wrist based on the A.M.A., Guides 467, 469, Figures 16-28 and16-31. Dr. Pace stated that he
had 2.5 percent for motor deficit (25 percent for a Grade 4 deficit multiplied by 10 percent
maximum median nerve impairment); and 3.9 percent for sensory deficit (10 percent for a Grade
4 deficit multiplied by 39 percent for maximum median nerve impairment). Dr. Pace added,
rather than combined, the percentages for motor and sensory deficits to calculate 6.4 percent
(rounded to 6 percent impairment). He then added the percentages for decreased range of motion
and combined motor and sensory deficits (0 plus 6) to calculate 6 percent impairment of the left
upper extremity.
The medical adviser reviewed Dr. Pace’s August 8, 2005 report and determined that
appellant had six percent impairment each of the right and left upper extremities. He utilized the
Combined Values Chart at page 604 of the A.M.A., Guides to determine the impairment of each
extremity. The medical adviser combined 3.9 percent or 4 percent for sensory deficit with 2
percent for motor deficit resulting in 5.9 or 6 percent impairment of the right upper extremity, for
which appellant received a schedule award. He opined that, based on this finding, appellant had
no additional impairment of the right upper extremity. Regarding the left upper extremity, the
Board finds, however, that the medical adviser’s calculation that 3.9 percent or 4 percent for
sensory deficit combined with 2.5 percent or 3 percent for motor deficit actually results in 7
percent impairment rather than 6.4 or 6 percent impairment based on the Combined Values
Chart. The Board notes that the Office medical adviser added, rather than combined his motor
and sensory deficit findings. Appellant received a schedule award for an additional three
percent impairment of the left upper extremity. Consequently, he was entitled to a schedule
award for an additional four percent impairment for his left upper extremity.
5

On appeal, appellant contends that the schedule award he received was not adequate
compensation for his bilateral carpal tunnel syndrome. As noted, the schedule award provision
of the Act provides for compensation to employees sustaining permanent impairment from loss
of use of specified members of the body.7 The Act establishes a maximum of 312 weeks of
compensation as the award for total loss of use of an arm.8 A partial loss of the right and left
upper extremities is compensated at a proportionate rate.9 Accordingly, appellant’s award of
compensation for an additional four percent impairment of the left upper extremity entitled him
to four percent of 312 weeks of compensation or 12.48 weeks of compensation.
CONCLUSION
The Board finds that appellant has an additional four percent impairment of his left upper
extremity, or a total of seven percent impairment.
ORDER
IT IS HEREBY ORDERED THAT the July 7, 2006 decision of the Office of Workers’
Compensation Programs is affirmed, as modified.
Issued: April 5, 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

7

5 U.S.C. § 8107(c).

8

5 U.S.C. § 8107(c)(1).

9

5 U.S.C. § 8107(c)(19).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 17-2007
Issued: March 1, 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 September 27, 2017 appellant filed a timely appeal from a September 5, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a right wrist condition
causally related to the accepted May 11, 2017 employment incident.
FACTUAL HISTORY
On May 16, 2017 appellant, then a 60-year-old carrier technician, filed a traumatic injury
claim (Form CA-1), alleging that on May 11, 2017 he sprained his left wrist while closing a door

1

5 U.S.C. § 8101 et seq.

on a long life vehicle (LLV).2 He stopped work on May 12, 2017. Appellant’s supervisor noted
on the reverse side of the claim form that appellant was in the performance of duty at the time of
his claimed injury.
Appellant submitted a work release form from a registered nurse dated May 13, 2017
who verified that appellant was seen and treated in the emergency department on May 12, 2017
and could return to full-duty work on May 16, 2017.
By letter dated May 24, 2017, OWCP advised appellant of the type of evidence needed to
establish his claim, particularly requesting that he submit a physician’s reasoned opinion
addressing the relationship between his claimed condition and specific employment incident.
Appellant was treated in the emergency room by Dr. Timothy Toole, a Board-certified
emergency room physician, on May 12, 2017, for right hand swelling and pain. He reported
working as a postal employee and frequently using his right hand to open and close the door on
his LLV. Dr. Toole noted findings of intact range of motion, intact sensation, mild swelling to
the dorsum of the right hand, slight tenderness to palpation of the second and third metacarpals,
and no lesion or laceration. He opined that the injury may be secondary to overuse, ligamentous
injury, ruptured cyst, or hairline fracture. Dr. Toole noted x-rays of the right hand revealed no
significant radiographic abnormality or effusion. He diagnosed right hand pain. Dr. Toole
wrapped appellant’s right hand in an Ace bandage and prescribed anti-inflammatories and rest
for three to four days.
In a June 28, 2017 decision, OWCP denied the claim, finding that appellant failed to
submit medical evidence establishing that a medical condition was diagnosed in connection with
the accepted work incident. As the medical component was not satisfied, it found that appellant
had not established that he sustained an injury as defined by FECA.
In an undated appeal form received on July 18, 2017, appellant requested reconsideration.
He submitted emergency room medical records from Dr. Toole dated May 12, 2017, a May 12,
2017 x-ray of the right hand, and a work release form from a registered nurse dated May 13,
2017, all previously of record.
In a decision dated September 5, 2017, OWCP denied modification of its June 28, 2017
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that
2

This appears to be a typographical error and should be right wrist as the medical records provided reference a
right wrist injury.
3

Supra note 1.

2

any disability or specific condition for which compensation is claimed is causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged. Second, the employee must submit
medical evidence to establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS
It is undisputed that on May 11, 2017 appellant closed an LLV door while performing his
carrier technician duties. However, the Board finds that he has failed to submit sufficient
medical evidence to establish that this accepted work incident caused or aggravated his right
wrist condition. In a letter dated May 24, 2017, OWCP requested that appellant submit a
comprehensive medical report from his treating physician which included a reasoned explanation
as to how the accepted work incident had caused his claimed injury.
Appellant was treated in the emergency room by Dr. Toole on May 12, 2017 for right
hand swelling and pain. He reported working as a postal employee and frequently used his right
hand to open and close his truck door. Dr. Toole noted findings of mild swelling to the dorsum
of the right hand and slight tenderness to palpation of the second and third metacarpals. He
noted x-rays of the right hand revealed no significant radiographic abnormality. Dr. Toole
diagnosed right hand pain. He wrapped appellant’s right hand in an Ace bandage, prescribed
anti-inflammatories, and rest. Dr. Toole opined that the injury may be secondary to overuse,
ligamentous injury, ruptured cyst, or hairline fracture. However, he merely repeated the history
of injury as reported by appellant without providing his own opinion regarding whether his
condition was work related. To the extent that Dr. Toole is providing his own opinion, he failed
to provide a rationalized opinion regarding the causal relationship between appellant’s right hand
condition and the accepted work incident.7 Additionally, the Board notes that Dr. Toole’s report
is speculative with regard to the cause of appellant’s right wrist condition noting that his “injury
4

Gary J. Watling, 52 ECAB 357 (2001).

5

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

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

7
Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

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may be secondary to overuse, ligamentous injury, ruptured cyst, or hairline fracture.” Therefore,
this report is insufficient to meet appellant’s burden of proof.8
Appellant was treated by a registered nurse on May 12 and 13, 2017 who provided a
work release form. The Board has held that treatment notes signed by a nurse9 are not
considered medical evidence as a nurse is not a physician under FECA10 and is not competent to
render a medical opinion under FECA. Thus, this evidence is insufficient to meet appellant’s
burden of proof.
The remainder of the medical evidence, including an x-ray of the right hand, is of limited
probative value. As a diagnostic test, it fails to provide a physician’s reasoned opinion on the
causal relationship between appellant’s accepted work incident and his diagnosed right hand
condition.11 For this reason, this evidence is insufficient to meet his burden of proof.
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment, nor
the belief that his condition was caused, precipitated, or aggravated by his employment is
sufficient to establish causal relationship. Causal relationship must be established by
rationalized medical opinion evidence.12 Appellant failed to submit such evidence and therefore
he has not met his burden of proof.
On appeal appellant reiterated the factual elements of his claim. He indicated that he hurt
his hand while delivering mail and reported the injury to his supervisor on the same day.
Appellant noted treatment at the emergency room. As found above, the medical evidence does
not establish that he has a diagnosed medical condition that is causally related to his accepted
work incident. Appellant has not submitted a physician’s report which sufficiently explains how
the incident on May 11, 2017 caused or aggravated his diagnosed medical conditions.
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.

8

Medical opinions that are speculative or equivocal in character are of diminished probative value. D.D., 57
ECAB 734 (2006).
9

B.B., Docket No. 09-1858 (issued April 16, 2010) (nurse’s reports have no probative value as nurses are not
considered physicians under FECA).
10

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses,
and physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this
subsection defines a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law).
11

See S.E., Docket No. 08-2214 (issued May 6, 2009) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship).
12

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right wrist
condition causally related to the accepted May 11, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the September 5, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 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
__________________________________________
E.N., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MEDICAL COMMAND, Fort Hood, TX,
Employer
__________________________________________

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

Docket No. 12-751
Issued: October 9, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 14, 2012 appellant filed a timely appeal from a November 18, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied her claim for
a recurrence. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of her medical condition commencing March 17, 2010 causally related to her
April 11, 2007 employment injury.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the November 18, 2011 OWCP decision, appellant submitted
new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued
its final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal appellant contends that she continues to suffer residuals from her employment
injury and requests further treatment.
FACTUAL HISTORY
On April 12, 2007 appellant, then a 47-year-old dental assistant, filed a traumatic injury
claim (Form CA-1) alleging that she sustained right arm and wrist pain as a result of moving a
dental chair headlight while in the performance of duty on April 11, 2007. OWCP accepted the
claim for sprain of right shoulder and upper arm, lesion of right ulnar nerve and displacement of
cervical intervertebral disc without myelopathy. Appellant received compensation for leave
without pay for intermittent periods between January 29 and October 25, 2008.
On January 16, 2009 appellant returned to full-time, full-duty work based on a
January 16, 2009 report by Dr. James E. Hansen, a Board-certified neurosurgeon, who released
her to regular duty that same day.
Appellant submitted a March 26, 2010 magnetic resonance imaging (MRI) scan which
revealed mild partial tear of the common extensor tendon of the right elbow, an April 2, 2010
MRI scan showing C5-6 shallow annual disc bulge and reversed cervical lordosis and an April 2,
2010 MRI scan of the right shoulder revealing some supraspinatus tendinopathy and mild
bursitis. She also submitted an April 16, 2010 report by Dr. Shawn A. Fyke, a chiropractor, who
indicated that appellant had an abnormal muscle study and recommended therapeutic activities
and exercises.
By letter dated April 26, 2010, OWCP acknowledged that appellant was claiming
additional medical care and requested a completed Form CA-2a, for each claimed recurrence,
through the employing establishment and additional evidence in support of her claim. It afforded
her 30 days to respond to its inquiries.
Subsequently, appellant submitted a notice of recurrence (Form CA-2a) dated
September 17, 2010, indicating that the alleged recurrence was for “Medical Treatment Only,”
commencing March 17, 2010. She indicated that she had physical therapy twice a week and
suffered neck pain, was not able to lift her right arm or write for a long period of time and
experienced shoulder pain and hand numbness. The employing establishment indicated that
appellant worked Monday through Friday from 7:30 a.m. to 4:30 p.m., half the day chair-side
assisting a dentist and half the day at the front desk filing records. In an undated narrative
statement, she indicated that she needed to continue her medical treatment.
A March 26, 2011 MRI scan of the cervical spine revealed very small C4-5 and larger but
still small C5-6 midline bulging disc without evidence of spinal or foraminal stenosis.
A March 26, 2011 MRI scan of the right elbow showed no internal derangement of the
joint. The abnormal signal within the common extensor tendon suggesting a partial tear on the
April 22, 2010 MRI scan was not identified on this study.
A March 26, 2011 MRI scan of the right shoulder revealed no evidence for internal
derangement of the joint and the reported tendinopathy from the April 22, 2010 MRI scan was
not seen.
2

Appellant submitted electrodiagnostic studies dated June 3, 2012 and a June 24, 2010
electrodiagnostic interpretation report by Dr. Meyer L. Proler, a clinical neurophysiologist, who
found evidence of acute right C6 cervical radiculopathy and right radial mononeuropathy of
uncertain etiology.
By decision dated July 25, 2011, OWCP denied appellant’s recurrence claim on the basis
that the medical evidence submitted was insufficient to establish that she sustained a recurrence
of her medical conditions commencing March 17, 2010 causally related to the employment
injury.
On September 9, 2011 appellant filed a second notice of recurrence.
In a September 27, 2011 letter, OWCP requested additional evidence in support of
appellant’s recurrence claim and afforded her 30 days for submission. Appellant did not
respond.
By decision dated November 18, 2011, OWCP denied appellant’s claim for a recurrence
on the basis that the medical evidence submitted was insufficient to establish that she sustained a
recurrence of her medical conditions beginning March 17, 2010 causally related to the April 11,
2007 employment injury.
LEGAL PRECEDENT
A recurrence of a medical condition is defined as a documented need for further medical
treatment after release from treatment for the accepted condition or injury.3 Continuous
treatment for the original condition or injury is not considered a “‘need for further medical
treatment after release from treatment,’” nor is an examination without treatment.4 As
distinguished from a recurrence of disability, a recurrence of a medical condition does not
involve an accompanying work stoppage.5 It is the employee’s burden to establish that the
claimed recurrence is causally related to the original injury.6 Causal relationship is a medical
issue that can generally be resolved only by rationalized medical opinion evidence.7
ANALYSIS
OWCP accepted that on April 11, 2007 appellant sustained sprain of right shoulder and
upper arm, lesion of right ulnar nerve and displacement of cervical intervertebral disc without
myelopathy. Appellant returned to full-time, full-duty work on January 16, 2009. On
September 17, 2010 she submitted a recurrence claim for medical treatment indicating that she
3

20 C.F.R. § 10.5(y).

4

Id.

5

Id. at § 10.5(x).

6

Id. at § 10.104. See also Mary A. Ceglia, 55 ECAB 626, 629 (2004).

7

See Jennifer Atkerson, 55 ECAB 317 (2004).

3

suffered residuals of her employment injury. The issue on appeal is whether appellant has
established a recurrence of her medical condition commencing March 17, 2010 causally related
to her accepted employment injury. The Board finds that she did not submit sufficient evidence
to establish a recurrence of a medical condition.
On June 24, 2010 Dr. Proler found evidence of acute right C6 cervical radiculopathy and
right radial mononeuropathy of uncertain etiology. The report from Dr. Proler is insufficient to
establish that appellant sustained a recurrence of her accepted medical conditions. The Board
has held that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.8
Dr. Proler failed to provide sufficient medical rationale explaining how appellant’s symptoms
beginning on March 17, 2010 were causally related to the April 11, 2007 employment injury.
For this reason, the Board finds that appellant did not meet her burden of proof with this
submission.
The April 16, 2010 report of Dr. Fyke, a chiropractor, is of no probative value. The
Board has held that a chiropractor is a physician as defined under FECA to the extent that the
reimbursable services are limited to treatment consisting of manual manipulation of the spine to
correct a subluxation as demonstrated by x-ray to exist.9 Dr. Fyke indicated that appellant had an
abnormal muscle study and recommended therapeutic activities and exercises. There is no
indication in the report that he diagnosed a subluxation as demonstrated by x-ray to exist.
Dr. Fyke is not a physician as defined under FECA and thus his report does not constitute
competent medical opinion evidence. Consequently, this report is insufficient to establish
appellant’s claim.
The MRI scans and electrodiagnostic studies are diagnostic in nature and therefore do not
address causal relationship. As such, the Board finds that they are insufficient to establish
appellant’s claim.
The Board finds that the evidence submitted by appellant lacks adequate rationale to
establish a causal connection between the alleged recurrence of her medical conditions and the
accepted employment injury. Thus, appellant did not meet her burden of proof to establish a
claim for a recurrence.
On appeal appellant contends that she continues to suffer residuals of her employment
injury and requests further treatment. For the reasons stated above, the Board finds appellant’s
argument is not substantiated and denies authorization of further medical treatment.
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.

8

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997).

9

20 C.F.R. § 10.311(a). Cf., D.S., Docket No. 09-860 (issued November 2, 2009).

4

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a recurrence
of her accepted medical conditions.
ORDER
IT IS HEREBY ORDERED THAT the November 18, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 9, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Sacramento, CA, Employer
__________________________________________

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

Docket No. 06-1344
Issued: March 28, 2007

Case Submitted on the Record

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

JURISDICTION
On March 1, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ February 28, 2005 merit decision denying her claim for acceptance of
additional employment injuries or periods of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2), the Board has jurisdiction over the merits of this case.1
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained
employment-related right upper extremity conditions or periods of disability other than those
already accepted by the Office.

1

The record also contains an October 17, 2005 Office decision approving attorney fees. Appellant has not
appealed this decision to the Board and the matter is not currently before the Board.

FACTUAL HISTORY
On December 19, 2002 appellant, then a 58-year-old postal clerk, filed an occupational
disease claim alleging that her right hand condition was “still deteriorating” and “must be
fixed.”2 She first became aware of her condition on July 31, 2000 and became aware of its
relation to her employment on October 19, 2002. Appellant did not stop work at the time she
filed her claim, but began working in a light-duty position in February 2003.
In an accompanying statement, appellant indicated that the date of her injury was
February 2, 1998 when a steel cage door fell on the back of her right hand. She asserted that she
sustained four more right upper extremity injuries between early 1998 and late 2002.3 Appellant
claimed that she sustained injury around mid March 1999 due to unloading, lifting and carrying
trays of mail weighing up to 50 pounds for several days (known as breaking down mail), on
July 25, 1999 due to breaking down mail, on July 31, 2000 due to sweeping heavy mail trays off
tray carriers and placing them into cages,4 and on or about October 19, 2002 when she had to use
her “right hand as a stick” to perform her work.
On January 22, 2003 the Office requested that appellant submit additional factual and
medical evidence in support of her claim. Appellant submitted a February 20, 2003 statement in
which she provided more details regarding her right hand condition and the employment factors
she implicated in her prior statement. She asserted that all her right hand injuries were focused
on the area of the radial nerve where she was struck by the steel cage door on February 2, 1998.
Appellant submitted a February 27, 2003 work status report in which Dr. Stephen L.
Mandaro, an attending Board-certified occupational medicine physician, listed February 2, 1998
as the date of injury and diagnosed hand contusion. On March 4, 2003 Dr. Mandaro completed
another form report and listed October 19, 2002 as the date of injury and “tray fell on hand” as
the mechanism of injury. He diagnosed hand contusion due to the October 19, 2002 injury.
In a March 26, 2003 decision, the Office denied appellant’s claim on the grounds that she
did not submit sufficient medical evidence to establish that she sustained an employment-related
right upper extremity condition other than those already accepted by the Office. The Office

2

Appellant stated, “I use my right hand as a stick sometimes in conjunction with left hand which does all work.”
The claim was given file number 13-2070171.
3

Appellant indicated that the February 2, 1998 injury did not appear on safety and health reports produced by the
employing establishment.
4

Appellant asserted that one heavy tray “fell into her hands” as she pulled it out from under a ledge and that she
felt a tearing sensation in the back of her right hand. She indicated that after she dropped the tray she saw a
“rectangular lump” on the back of her hand without blood or bruising.

2

discussed the accepted March 1999 and July 31, 2000 employment conditions but noted that
these conditions had resolved.5
In a February 27, 2003 narrative report, Dr. Mandaro stated that he first saw her on that
date and that she reported sustaining four right hand injuries, the first on February 2, 1998 when
a cage door fell on her hand and the last in October 1992. He indicated that appellant held her
right hand in a “claw fashion,” exhibited normal results on sensory examination and had good
range of motion except upon extension. Dr. Mandaro diagnosed hand contusion and
paresthesias.
On May 14, 2003 Dr. Rosalind A. Hsia, an attending Board-certified neurologist, stated
that appellant reported having more trouble with her right hand and was getting the “same
sensory symptoms” in her left hand. She stated, “[Appellant’s] exam[ination] was not able to be
done due to time constraints caused by going over her functional status forms” and diagnosed
complex regional pain syndrome of the hands and arms, probable cervical radiculopathy and
lumbar spondylosis with asymptomatic S1 radiculopathy. On July 14, 2003 Dr. Hsia stated that
appellant sustained injury when her right hand was struck by a metal cage door. She noted that
her “history of symptoms following that injury is consistent with the diagnosis of complex
regional pain syndrome (reflex sympathetic dystrophy) affecting the right hand and arm” and
concluded that the “blow to her right arm and hand is directly, and without doubt, the cause of
this chronic pain syndrome and her disability.” Dr. Hsia stated that appellant had “mirror
symptoms” involving her left arm and hand and that this condition was also employment related.
On October 8, 2003 Dr. Hsia stated that appellant was first injured on February 2, 1998
when the back of her right hand was struck by a metal cage door. This injury was aggravated on
July 31, 2000 when she experienced a tearing sensation and weakness in her right hand at the site
of her original injury after a mail tray weighing about 50 pounds fell on her hands. Dr. Hsia
stated:
“Her symptoms were consistent with a diagnosis of complex regional pain
syndrome/reflex sympathetic dystrophy affecting her right hand and arm. The
force of the tray falling into her right hand is directly, and without doubt, the
cause of this chronic pain syndrome at the site of the injury and her disability.
Her disability was increased by her second aggravating injury at the same site on
her right hand, and her ability to grasp with her right hand substantially
diminished. Her left hand has certain symptoms which mirror some of those of
the right hand, but to a far lesser extent. These mirror symptoms occur very
commonly and therefore should also be considered directly caused by her

5

The Office noted that it had been accepted that appellant sustained right arm tendinitis under a claim which had
a March 8, 1999 date of injury, but that this condition had since resolved (file number 13-1184162). The Office also
indicated that it had been accepted that on July 31, 2000 appellant sustained an aggravation of preexisting
osteoarthritis of her right hand which ceased by August 9, 2000 (file number 13-2016911). The Office indicated
that it had no prior claim for a February 2, 1998 or July 25, 1999 injury.

3

industrial injury. Because the direct physical injury was to her right hand, this
hand is significantly more impaired than the left.”6
On October 21, 2003 Dr. Asish Ghoshal, an attending Board-certified neurologist, stated
that appellant reported that she sustained an injury in February 1998 when a metal door struck
her right hand and that she sustained another injury on July 31, 2000 when a mail tray weighing
approximately 50 pounds “fell on her hands.” Dr. Ghoshal reported normal findings upon
examination and stated that despite appellant’s subjective complaints he did not “see any
evidence of neurologic impairment.”
Appellant requested a review of the written record by an Office hearing representative.
By decision dated and finalized December 15, 2003, the Office hearing representative affirmed
the March 26, 2003 decision. The hearing representative stated that there was no record that
appellant had previously filed a claim for a February 2, 1998 injury and determined that this
claimed injury was not accepted as having occurred. She stated that it was accepted that
appellant lifted mail trays weighing up to 50 pounds but that she did not submit sufficient
medical evidence to show that she sustained an additional injury due to these duties.
On October 13, 2003 Dr. Robert J. Harrison, an attending Board-certified occupational
medicine physician, stated that appellant reported that she sustained an injury on July 31, 2000
when a heavy mail tray she was removing suddenly dropped and caused a tearing sensation in
her right hand. Dr. Harrison noted that appellant exhibited significant right hand weakness on
grip strength testing and stated, “I believe your clinical picture is most consistent with either
focal dystonia or a regional pain syndrome.” He indicated that appellant did not report
significant pain and noted that there “may be a situation here of focal hand weakness following
the specific injury of July 31, 2000.”
The record also contains a January 26, 2004 form report in which Dr. Mandaro listed
February 2, 1998 as the date of injury and diagnosed hand contusion and a March 4, 2003 form
report in which he listed October 19, 2002 as the date of injury and diagnosed hand contusion
due to that injury. On March 1, 2004 Dr. Mandaro stated that appellant had “neuropathy of the
right hand as a result of multiple injuries.”
On April 15, 2004 Dr. John W. Ellis, a Board-certified occupational medicine physician,
stated that appellant sustained right hand injuries on February 2, 1998 and July 31, 2000.
Dr. Ellis indicated that he reviewed his March 3, 2004 “permanent partial disability report” and
recommended various work restrictions.7 On May 5, 2004 Dr. Ellis stated that appellant reported
that she sustained right hand injuries on February 2, 1998 and July 31, 2000 as well as on
January 19, 2002 when she used her left arm to remove heavy mail from a hamper. He
6

Appellant submitted the findings of December 2001 magnetic resonance imaging (MRI) scan testing of the right
wrist which showed normal results. The findings of the December 2003 MRI scan testing revealed small cysts at the
first and second metacarpal joints of the right hand, likely representative of osteoarthritis and mild joint fluid in the
second to fourth metacarpal phalangeal joints suggestive of possible rheumatoid arthritis. The findings of
November 2003 electromyogram (EMG) testing showed normal latencies in the right median, ulnar and radial
nerves.
7

The record does not contain a March 3, 2004 report of Dr. Ellis.

4

diagnosed strains of the left thoracic paraspinal musculature and the left forearm and indicated
that these conditions were directly related to appellant’s employment due to the fact that she
overused her left arm. On August 5, 2004 Dr. Ellis stated that appellant reported that on
February 2, 1998 a steel cage door fell on the back of her right hand and that on July 31, 2000 a
50-pound tray fell into her hands causing her to feel a tearing sensation in the same area of the
right hand. He diagnosed a crush injury of the right hand resulting in nodule/cystic structure
over the dorsal aspect of the wrist, tendinitis/tenosynovitis of the right wrist, and
irritation/impingement of the radial nerve of the right hand and concluded that these conditions
were due to appellant’s February 2, 1998 and July 31, 2000 employment injuries.8
By decision dated February 28, 2005, the Office affirmed its December 15, 2003
decision. It determined that appellant’s claim that she sustained an injury on February 2, 1998
was barred by the three-year time limitations of the Act. The Office indicated that appellant first
mentioned the February 2, 1998 injury in an April 2001 document submitted in connection with
a claimed March 1999 injury (file number 13-1184162). It noted that it had previously been
accepted under file number 13-1184162 that appellant sustained right hand tendinitis in
March 1999 but compensation for this condition was terminated effective November 3, 2002.
The Office indicated that it did not have a record of a claim for a July 25, 1999 injury but that
this claimed injury was considered to be part of the claim handled under file number 131184162. It stated that it was accepted that on July 31, 2000 appellant sustained an aggravation
of preexisting osteoarthritis of her right hand, but that it was determined in a separate claim (file
number 13-2016911) that this condition had ceased by August 9, 2000. The Office stated that
appellant was required to sort or “break down” mail at least through January 2003, a task which
required lifting mail trays weighing up to 50 pounds. It indicated that appellant’s left hand and
arm complaints were being handled under another claim (file number 13-2097387) and that the
only issue that remained was whether appellant was entitled to compensation for any injury after
November 3, 2002 which was caused by her regular duties of breaking down mail. The Office
determined that appellant had not submitted sufficient medical evidence to establish such
entitlement to compensation.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act9 has the
burden of establishing the essential elements of her claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.10 The medical evidence
required to establish a causal relationship between a claimed period of disability and an
employment injury is rationalized medical opinion evidence. Rationalized medical opinion
8

Appellant also submitted reports dated between March and September 1999 in which Dr. Michael Bugola, an
attending Board-certified occupational medicine physician, indicated that she had right wrist tendinitis.
9

5 U.S.C. §§ 8101-8193.

10

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

5

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
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.11
Section 8122(a) of the Act states, “An original claim for compensation for disability or
death must be filed within three years after the injury or death.”12 Section 8122(b) provides that
in latent disability cases, the time limitation does not begin to run until the claimant is aware, or
by the exercise of reasonable diligence should have been aware, of the causal relationship
between his employment and the compensable disability.13 When a traumatic injury definite in
time, place and circumstances is involved, the time for giving notice of injury and filing for
compensation begins to run at the time of the incident, even though the employee may not have
been aware of the seriousness or ultimate consequences of his injury.14 Even if an employee
does not file a claim form within the prescribed period, her claim would still be regarded as
timely under section 8122(a)(1) of the Act if her immediate superior had actual knowledge of the
injury within 30 days15 or under section 8122(a)(2) if written notice of injury was given within
30 days as specified in section 8119.16
ANALYSIS
Appellant claimed that she sustained right hand injuries on February 2, 1998 when a steel
cage door fell on the back of her right hand, in mid March 1999 due to unloading, lifting and
carrying trays of mail weighing up to 50 pounds for several days (known as breaking down
mail), on July 25, 1999 due to breaking down mail, on July 31, 2000 when a 50-pound tray fell
into her hands, and on or about October 19, 2002 when she had to use her “right hand as a stick”
to perform her work. It appears that the Office had previously accepted that appellant sustained
right hand or arm tendinitis in March 1999 (file number 13-1184162) and an aggravation of
preexisting osteoarthritis of her right hand on July 31, 2000 (file number 13-2016911).
The Board, having reviewed the case record submitted by the Office and the rationale for
denying appellant’s claim, finds that the record is incomplete as it does not contain numerous
documents concerning other claims filed by appellant which would be necessary to reasonably
evaluate the present claim. The absence of these documents precludes the Board from reviewing
the grounds upon which the Office relied in determining that appellant did not met her burden of
11

See Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

12

5 U.S.C. § 8122(a).

13

5 U.S.C. § 8122(b).

14

Emma L. Brooks, 37 ECAB 407, 411 (1986).

15

5 U.S.C. § 8122(a)(1); see Jose Salaz, 41 ECAB 743, 746 (1990); Kathryn A. Bernal, 38 ECAB 470, 472 (1987).

16

5 U.S.C. §§ 8119, 8122(a)(2).

6

proof to establish that she sustained employment-related right upper extremity conditions and
periods of disability other than those already accepted by the Office.
In determining that appellant’s claim for a February 2, 1998 injury was barred by the
three-year time limitations of the Act, the Office indicated that appellant first mentioned the
February 2, 1998 injury in an April 2001 document submitted in connection with the March 1999
injury handled under file number 13-1184162. The Office therefore concluded that appellant had
not filed a claim in connection with the claimed injury or advised her immediate supervisor of its
occurrence within the prescribed period.17 However, the record as currently assembled does not
contain this document or the bulk of the administrative or medical documents from file number
13-1184162 pertaining to the March 1999 injury. In determining that appellant was not entitled
to any more periods of disability compensation in connection with the March 1999 injury, the
Office indicated that compensation had been properly terminated effective November 3, 2002 in
connection with this injury claim. The current record does not contain any documentation
regarding such a termination of compensation and the Board is unable to evaluate whether there
was an adequate basis for the Office to conclude that appellant is not entitled to any more
compensation in connection with this injury. In determining that appellant was not entitled to
any more periods of disability compensation in connection with her July 31, 2000 injury handled
under file number 13-2016911, the Office indicated that compensation had been properly
terminated effective August 9, 2000 in connection with this injury claim. However, the record
does not contain any records, whether administrative or medical, regarding the July 31, 2000
injury claim.
Because the record forwarded by the Office will not allow the Board an opportunity for
an informed adjudication of the appeal, the case record will be returned to the Office for proper
assemblage of the case record. This assemblage should consolidate the various claims filed by
appellant which pertained to her right upper extremity. After such development it deems
necessary, the Office should issue an appropriate decision on the merits which preserves
appellant’s right of appeal to the Board and which adequately addresses the question of whether
she sustained employment-related right upper extremity conditions or periods of disability other
than those already accepted by the Office.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
met her burden of proof to establish that she sustained employment-related right upper extremity
conditions or periods of disability other than those already accepted by the Office. The case is
remanded to the Office for further development to include proper assemblage of the case record
and the issuance of an appropriate merit decision.

17

See supra notes 12 through 16 and accompanying text.

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
February 28, 2005 decision is set aside and the case remanded to the Office for further
proceedings consistent with this decision of the Office.
Issued: March 28, 2007
Washington, DC

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

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

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

8