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

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

Docket No. 16-0169
Issued: February 23, 2016

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 August 13, 2015 appellant filed a timely appeal from a March 23, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained
intermittent disability from April 13 to 22, May 1 and 19, and June 7, 8, and 10, 2010 causally
related to his accepted employment injuries.

1

OWCP issued a decision dated July 21, 2015 addressing a separate period of disability. Appellant separately
appealed that decision. The Board addressed this period under a different docket number, issued on
January 4, 2016. See Docket No. 16-0001 (issued January 4, 2016).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 28, 2010 appellant, then a 55-year-old carrier, filed an occupational disease
claim (Form CA-2) alleging that he sustained low back and neck pain, trigger finger of the right
thumb, and pain, strains, and spasms of the right arm, shoulder, hip, buttocks, and leg causally
related to factors of his federal employment. He did not stop work. OWCP accepted the claim
for an aggravation of lumbar degenerative disc disease, right lumbar radiculitis, a temporary
aggravation of right thumb arthritis, and a temporary aggravation of right thumb trigger finger.
The record contains numerous OWCP decisions and extensive medical evidence
addressing various periods of disability. The Board will set forth the factual and medical
evidence relevant to the periods on appeal.
On April 14, 2010 Candace Camelon, an advanced practice nurse (APN), evaluated
appellant for back, neck, and right leg pain. She found that he should not work until
April 19, 2010.
On April 22, 2010 appellant underwent a magnetic resonance imaging (MRI) scan study
of the cervical, thoracic, and lumbar spine. The study revealed scoliosis and degenerative
spondylosis of the cervical and lumbar spine.
On April 29, 2010 APN Camelon found that appellant should “limit his prolonged
carrying to 10 pounds.” On May 12, 2010 she listed work restrictions.
A June 7, 2010 work status form indicated that appellant was disabled from June 7 to 8,
2010 and listed the diagnosis as back pain.3
On July 29, 2011 appellant filed a claim for leave buyback from April 13 to
September 15, 2010. In an August 7, 2011 time analysis form, he indicated that he missed work
due to medical appointments and his accepted aggravation of lumbar disc disease and lumbar
radiculitis.
By letter dated October 4, 2011, OWCP requested that appellant submit medical evidence
supporting disability from work during the claimed periods.
In a report dated April 8, 2011, received by OWCP on October 17, 2011, Dr. Bruce E.
Mullen, a Board-certified physiatrist, listed the dates that appellant missed work between
April 13, 2010 and June 8, 2011 either due to pain, physical therapy appointments, or medical
appointments. He advised that appellant was off work on April 13 to 17, 19, 21, and 22, May 1,
and June 7, 8, and 10, 2010 due to pain.
By decision dated March 30, 2012, OWCP found that appellant was entitled to
compensation for 11.84 hours of time lost from work due to medical treatment on April 22 and
29, May 5, 12, and 21, June 7 and 24, and September 15, 2010. It denied his claim for
compensation for an additional 95.41 hours of time lost from April 13 to 22, 2010, May 1
and 19, 2010, and June 7, 8, and 10, 2010 as the medical evidence did not show that he was
disabled from work for the hours and dates claimed.
3

The form indicates that it was signed by Dana Taflin, who does not appear to be a physician.

2

On April 27, 2012 appellant requested a telephone hearing before an OWCP hearing
representative on the March 30, 2012 decision. At the telephone hearing, held on September 13,
2012, his representative contended that his workplace lost the original medical slips taking him
off work for the dates in question.
On September 19, 2012 Dr. David A. Jones, who specializes in family medicine,
diagnosed acquired spondylolisthesis, lumbar pain with radiculopathy, and scoliosis. He advised
that appellant was not able to work from April 13 to 17, April 21 to 22, May 1 and 19, and
June 7, 8, and 10, 2010 “due to an aggravation of the above diagnoses.”
In a decision dated November 29, 2012, OWCP’s hearing representative affirmed the
March 20, 2012 decision. She found that the medical evidence did not provide any rationale or
objective findings supporting disability for the dates in question.
In an August 19, 2013 report, Dr. Mullen diagnosed neck and upper shoulder girdle
dysfunction, chronic cervical disc disease, and chronic lumbar disc disease with intermittent right
L4-5 radiculitis. He related, “From 2010 to 2012, [appellant] has been either tak[en] off work or
put on restrictive duty. This was due to flare-ups, mainly in [appellant’s] lower back issues, to
where he had difficulty with ambulation, especially with his right leg. He had muscle spasms
and weakness limiting his ability to walk.”
In a report dated September 27, 2013, Dr. Jones referred to his September 19, 2012 note
specifying the dates that appellant was unable to work. He related, “This should serve to clarify
that he was unable to walk secondary to weakness and spasms in his legs and muscle pulling.
Certainly, this would be secondary to his work injury.”
On October 4, 2013 Dr. Jay K. Morgan, a Board-certified neurosurgeon, noted that
appellant sustained an injury on August 18, 2009, but was able to continue working until
April 13, 2010. He stated, “At that time, [appellant] developed neurological deficit with
weakness in his lower extremities, muscle pulls, and this kept him from work on several
occasions. [He] lost several weeks of work due to this weakness and muscle spasms.”
Dr. Morgan noted that appellant ultimately required surgery for L4-5 spondylolisthesis.
By decision dated October 25, 2013, OWCP denied modification of its November 29,
2012 decision. It determined that appellant had not submitted contemporaneous medical
evidence supporting that he was disabled for the claimed periods April 13 through 22, May 1 and
19, and June 7, 8, and 10, 2010.
On April 6, 2014 appellant requested reconsideration of the October 25, 2013 decision.
He submitted an April 3, 2014 report from Dr. Jones, physical therapy notes dated September 3,
2010, and the April 22, 2010 MRI scan study. Appellant asserted that Dr. Jones’ report clarified
that he had flare ups such that he was unable to work.
In a report dated April 3, 2014, Dr. Jones related that on March 20, 2014 appellant asked
for clarification of his diagnosis and disability. He diagnosed spinal stenosis and acquired
spondylolisthesis. Dr. Jones advised that appellant “may undergo occasional flare-ups where
symptoms are worse than on a normal basis which may preclude him from working. It should
also be noted that [he] states that he was on OxyContin.”

3

In a decision dated March 23, 2015, OWCP denied modification of its October 25, 2013
decision finding that appellant had not established entitlement to compensation for 95.41 hours
claimed for the periods April 13 to 22, May 1 and 19, and June 7, 8, and 10, 2010. It noted that
it had paid him compensation for four hours on April 22, 2010, the date of his MRI scan study.
On appeal appellant maintains that he permanently damaged his back working with
radiculopathy. He argues that the opinion of Dr. Paul J. Fry, a Board-certified orthopedic
surgeon and impartial medical examiner selected to resolve a conflict on the issue of whether he
was entitled to a schedule award, as well as the opinions of his attending physician’s support that
he missed time from work in 2010 and 2011 due to his work injury.4 Appellant further contends
that OWCP did not timely adjudicate his reconsideration requests.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.5 For each period of
disability claimed, the employee has the burden of establishing that he was disabled for work as
a result of the accepted employment injury.6 Whether a particular injury causes an employee to
become disabled for work, and the duration of that disability, are medical issues that must be
proved by a preponderance of probative and reliable medical opinion evidence.7
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.8 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.9 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages that he or she was receiving
at the time of injury, has no disability and is not entitled to compensation for loss of wageearning capacity.10 When, however, the medical evidence establishes that the residuals or
sequelae of an employment injury are such that, from a medical standpoint, they prevent the
employee from continuing in his employment, he is entitled to compensation for any loss of
wages.
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is

4

In a report dated January 7, 2015, Dr. Fry diagnosed lumbar radiculitis and a temporary aggravation of lumbar
disc disease. He found that appellant had an impairment of the lower extremities.
5

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

6

See Amelia S. Jefferson, supra note 5.

7

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

8

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

9

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

10

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

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claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.11
ANALYSIS
OWCP accepted that appellant sustained an aggravation of lumbar degenerative disc
disease, right lumbar radiculitis, a temporary aggravation of right thumb arthritis, and a
temporary aggravation of right thumb trigger finger causally related to factors of his federal
employment. On July 29, 2011 appellant requested leave buyback for time lost from work for
the period April 13 to September 15, 2010. OWCP paid him compensation for 11.84 hours of
time lost due to medical treatment on April 22 and 29, May 5, 12, and 21, June 7 and 24, and
September 15, 2010. It denied appellant’s request for compensation for an additional 95.41
hours claimed for time lost from April 13 to 22, May 1 and 19, and June 7, 8, and 10, 2010. As
discussed, appellant has the burden to establish that he was disabled from employment on those
dates as a result of his accepted work injury.12
On April 14, 2010 APN Camelon reviewed appellant’s complaints of neck, back, and
right leg pain and opined that he was unable to work until April 19, 2010. In a report dated
April 29, 2010, she found that appellant should not carry over 10 pounds for an extended period
and on May 12, 2010 she provided limitations. A nurse, however, is not considered a
“physician” under FECA and thus cannot render a medical opinion.13
A June 7, 2010 work status form indicated that appellant was disabled on June 7
and 8, 2010. There is no indication that the form was completed and signed by a physician;
consequently, it is of no probative value.14
On April 8, 2011 Dr. Mullen indicated that appellant missed work due to pain on April 13
to 17, 19, 21, and 22, May 1, and June 7, 8, and 10, 2010. Pain, however, is a description of a
symptom rather than a compensable medical diagnosis.15 Further, Dr. Mullen did not provide
any objective findings supporting disability. Generally, findings on examination are needed to
justify a physician’s opinion that an employee is disabled for work.16 The Board has held that
when a physician’s statements regarding an employee’s ability to work consist only of a
repetition of the employee’s complaints, without objective signs of disability being shown, the
physician has not presented a medical opinion on the issue of disability or a basis for payment of
compensation.17

11

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

12

See Amelia S. Jefferson, supra note 5.

13

Vincent Holmes, 53 ECAB 468 (2002). See 5 U.S.C. § 8101(2).

14

See J.T., Docket No. 15-1309 (issued September 25, 2015); C.B., Docket No. 09-2027 (issued May 12, 2010).

15

See T.G., Docket No. 13-0076 (issued March 22, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).

16

See W.H., Docket No. 12-1738 (issued June 21, 2013); Dean E. Pierce, 40 ECAB 1249 (1989).

17

John L. Clark, 32 ECAB 1618 (1981).

5

In a report dated September 19, 2012, Dr. Jones diagnosed acquired spondylolisthesis,
lumbar pain with radiculopathy, and scoliosis. He determined that appellant was disabled on
April 21 and 22, May 1 and 19, and June 7, 8, and 10, 2010 as a result of an aggravation of his
scoliosis, acquired spondylolisthesis, and lumbar pain with radiculopathy. On September 27,
2013 Dr. Jones referenced his September 19, 2012 note finding that appellant was unable to
work on various dates because of weakness and muscles spasms causing him to be unable to
walk. He advised that appellant’s disability resulted from his work injury. Dr. Jones, however,
did not provide any rationale for his opinion. Medical conclusions unsupported by rationale are
of diminished probative value.18 Such rationale is particularly important in this case, given that
Dr. Jones’ opinion on appellant’s ability to work for various dates in 2010 is not based upon a
contemporaneous examination.19
On August 19, 2013 Dr. Mullen diagnosed neck and upper shoulder girdle dysfunction,
chronic cervical disc disease, and chronic lumbar disc disease with intermittent right L4-5
radiculitis. He opined that appellant lost time from work during 2010 to 2012 due to flare ups of
his low back condition. As Dr. Mullen did not address the specific dates of disability claimed,
his report is of limited probative value.20
On October 4, 2013 Dr. Morgan noted that appellant sustained an injury on August 18,
2009 but was able to continue working until April 13, 2010. He found that he missed several
weeks of work during this period due to muscles spasms and weakness. Dr. Morgan did not
provide the dates of disability prior to April 13, 2010 and thus his opinion is insufficient to meet
appellant’s burden of proof.21
In a report dated April 3, 2014, Dr. Jones related that on March 20, 2014 appellant asked
for clarification of his diagnosis and disability. He diagnosed spinal stenosis and acquired
spondylolisthesis and indicated that he might have flare ups that rendered him unable to work.
Dr. Jones did not directly address the relevant period of disability. As noted, the Board will not
require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed.22 Consequently,
Dr. Jones’ report is insufficient to meet appellant’s burden of proof.
On appeal appellant argues that he permanently damaged his back working with
radiculopathy. The issue, however, is whether the medical evidence supports disability from
employment for the claimed dates in 2010.
Appellant additionally contends that the opinion of the impartial medical examiner and
his attending physicians, Dr. Mullen and Dr. Jones, support that he missed time from work in
2010 and 2011. The impartial medical examiner, however, provided an opinion only on the issue
relative to whether he had a permanent impairment lower extremity rather than disability for
18

Jacquelyn L. Oliver, 48 ECAB 232 (1996).

19

Medical evidence contemporaneous to the injury or disability may be afforded greater probative value in the
weight of medical evidence. George Sevetas, 43 ECAB 424 (1992).
20

See supra note 11.

21

Id.

22

Id.

6

intermittent periods from April to June 2010. The reports from Dr. Mullen and Dr. Jones are
insufficient to meet his burden of proof to show disability from employment.23
Appellant further contends that OWCP did not timely adjudicate his reconsideration
requests. However, OWCP considered each reconsideration request and issued merit decisions
on the requests.
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained intermittent disability from April 13 to 22, May 1 and 19, and June 7, 8, and 10, 2010
causally related to his accepted employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the March 23, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 23, 2016
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

23

See S.H., Docket No. 14-1574 (issued March 27, 2015).

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

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

Docket No. 17-1366
Issued: October 26, 2017

Case Submitted on the Record

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

JURISDICTION
On June 9, 2017 appellant filed a timely appeal from a January 3, 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 over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to a March 16, 2016 employment incident, as alleged.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence on appeal. As the Board’s jurisdiction is limited to evidence that was before
OWCP at the time of the final decision, the Board may not consider this evidence for the first time on appeal. 20
C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On November 21, 2016 appellant, then a 53-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained pain in his right upper bicep. The date of the
injury was reported on the claim form as May 16, 2016, based on “accumulation of work that
day.” The reverse side of the claim form indicated that appellant had not stopped working.
In a November 11, 2016 letter, an employing establishment supervisor wrote that
appellant had filed a prior claim for a right shoulder and bicep injury on November 12, 2014.
The supervisor indicated that a June 2, 2016 recurrence of disability claim had been denied by
OWCP, that appellant had “retried” by filing another Form CA-2a that was also denied, and was
now filing a Form CA-1. According to the supervisor, appellant had worked light duty until
June 8, 2015, and had worked regular duty since, with no issues. As to the alleged date of injury
of May 16, 2016, the supervisor reported that appellant was off work and used sick leave,
without reporting any type of incident.
An employing establishment human resources specialist indicated in a November 18,
2016 letter that appellant had claimed that the injury occurred on or about the middle of
May 2016. The human resources specialist noted that appellant was off work on May 16, 2016.
OWCP also received an unsigned accident form report on November 21, 2016.3 The
report related that appellant had a prior claim for injury on November 12, 2014, and appellant
had filed a notice of recurrence of disability (Form CA-2a) with respect to that claim. According
to the report, OWCP had advised appellant to submit a Form CA-1 for a new injury.
As to medical evidence, appellant submitted an October 13, 2016 report from Dr. David
Lamoreaux, a Board-certified orthopedic surgeon. Dr. Lamoreaux reported that appellant was
last seen in September 2015, and was now reporting right bicep pain.4 He reported a date of
injury as November 10, 2014, and wrote that the “reviewed problems” were right shoulder pain,
shoulder bursitis, right biceps tendinitis, right rotator cuff tear, and strain of the supraspinatus
muscle or tendon.
By letter dated November 22, 2016, OWCP advised appellant that additional factual and
medical evidence was necessary to establish his claim. Appellant was afforded 30 days to
submit the necessary additional evidence.
On November 28, 2016 appellant submitted a note dated November 22, 2016 from
Dr. Lamoreaux, relating that appellant was limited to 15 pounds lifting, with no repetitive
motion.
By decision dated January 3, 2017, OWCP denied appellant’s claim for compensation.
The decision found that the incident or events occurred as alleged. However, OWCP denied the
3

The report contains the name of a supervisor and appears to have been completed by a supervisor.

4

The record contains a September 22, 2015 report from Dr. Lamoreaux indicating that appellant was seen for
treatment of his right shoulder.

2

claim as the medical evidence was insufficient to establish the claim. Thus, fact of injury was
not established.
LEGAL PRECEDENT
FECA provides for the payment of compensation for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.5 The phrase
“sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of arising out of and in the course of
employment.6 An employee seeking benefits under FECA has the burden of establishing an
injury occurred while in the performance of duty.7 In order to determine whether an employee
actually sustained an injury in the performance of duty, OWCP begins with an analysis of
whether fact of injury has been established. Generally fact of injury consists of two components
which must be considered in conjunction with one another. The first component to be
established is that the employee actually experienced the employment incident which is alleged
to have occurred. The second component is whether the employment incident caused a personal
injury, and generally this can be established only by medical evidence.8
An employee has the burden of establishing the occurrence of an injury at the time, place
and in the manner alleged, by a preponderance of the reliable, probative, and substantial
evidence.9 An injury does not have to be confirmed by eyewitnesses to establish that an
employee sustained an injury in the performance of duty, but the employee’s statements must be
consistent with the surrounding facts and circumstances and his subsequent course of action.10
A claimant must provide detailed factual information regarding the alleged employment
incident or incidents.11 It must be clear what specific incidents appellant is alleging, when they
occurred, and other relevant details of the circumstances surrounding the claimed injury.12 The
Board has also held that a claimant cannot establish fact of injury if there are inconsistencies in
the evidence that cast serious doubt as to whether the specific event or incident occurred at the
time, place, and in the manner alleged.13 Such circumstances as late notification of injury, lack
of confirmation of injury, continuing to work without apparent difficulty following the alleged
injury, and failure to obtain medical treatment may, if otherwise unexplained, cast sufficient
5

5 U.S.C. § 8102(a).

6

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

7

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

8

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

9

William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979).

10

Charles B. Ward, 38 ECAB 667, 67-71 (1987).

11

J.N., Docket No. 17-0032 (issued April 21, 2017).

12

D.F., Docket No. 15-1745 (issued February 11, 2016).

13

Gene A. McCracken, 46 ECAB 593 (1995); Mary Joan Coppolino, 43 ECAB 988 (1992).

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doubt on an employee’s statements in determining whether a prima facie case has been
established.14
ANALYSIS
Appellant filed a traumatic injury claim alleging a right biceps injury on May 16, 2016.
As noted above, he must establish that an incident occurred as alleged, and submit medical
evidence establishing an injury causally related to the employment incident.
Although OWCP found that the incident occurred as alleged, the Board finds that
appellant has not met his burden of proof to establish an employment incident as alleged.
Appellant did not provide a clear statement as to what specific activity contributed to a
right biceps injury. He did not describe any specific incident occurring on May 16, 2016, or any
work activity he performed on that day. A traumatic injury is defined as a condition of the body
caused by a specific event or incident, or series of events or incidents, within a single workday or
shift.15 Appellant failed to establish when any alleged incident occurred. The claim form reports
an injury date of May 16, 2016, but the employing establishment indicated that appellant was not
at work on that date. To establish the factual component of his claim, appellant must provide a
detailed description of any alleged work activity, when it occurred, and other relevant details.16
OWCP advised appellant on November 22, 2016 that further factual evidence was necessary to
establish his claim, but appellant did not submit the evidence necessary to establish his claim.
The Board accordingly finds that appellant has not met his burden of proof to establish
his claim for compensation. Appellant did not establish that an employment incident occurred
on May 16, 2016. As he has not established an incident occurred as alleged, the Board will not
address the medical evidence.17
On appeal appellant refers to a mistake in case numbers and his doctor’s opinion on
causal relationship. The record indicated that he had a prior claim, but the decision on appeal
adjudicated the traumatic injury claim filed on November 21, 2016 for an injury alleged to have
occurred on May 16, 2016. For the reasons discussed above, appellant did not meet his burden
of proof to establish the claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

14

Robert A. Gregory, 40 ECAB 478, 483 (1989).

15

20 C.F.R. § 10.5(ee).

16

See D.F., supra note 12.

17

See M.P., Docket No. 15-0952 (issued July 23, 2015); Alvin V. Gadd, 57 ECAB 172 (2005).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury in
the performance of duty on March 16, 2016, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 3, 2017 is affirmed as modified.
Issued: October 26, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF THE ARMY, REDSTONE
ARSENAL, Arsenal, AL, Employer
__________________________________________

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

Docket No. 16-0267
Issued: May 17, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 23, 2015 appellant filed a timely appeal from a November 10, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury
causally related to a November 15, 2012 employment incident.
FACTUAL HISTORY
On September 23, 2015 appellant, then a 61-year-old senior adviser, filed a traumatic
injury claim (Form CA-1) alleging that on November 15, 2012 he sustained injuries to his neck

1

5 U.S.C. § 8101 et seq.

and left shoulder and subsequent post-traumatic stress disorder (PTSD) when he was involved in
a motor vehicle accident. He retired due to disability on March 30, 2013.
By letter dated September 29, 2015, OWCP requested that appellant submit factual
evidence to support that the November 15, 2012 incident occurred as alleged and medical
evidence to establish that he sustained a diagnosed condition causally related to the alleged
employment incident. Appellant was afforded 30 days to submit the requested evidence.
Appellant submitted an SF-50 notification of personnel action dated March 20, 2013,
noting the expiration of his appointment and a February 24, 2013 SF-50 form noting that
appellant’s work was at an acceptable level of competence. He also provided various e-mails
routed through Major Sam Southam, LTC Joseph Farquhar, and 1LT Ruffin Branch suggesting
that appellant’s shoulder radiculopathy was limiting his ability to accomplish his duties and
recommended that appellant return stateside for additional treatment.
Dr. John M. Woodyear, Jr., a Board-certified family practitioner, related in a report dated
December 10, 2012, that appellant was in the front passenger seat of a Chevy Suburban
performing his duties as a senior adviser in Afghanistan when the vehicle collided with a barrier.
He explained that appellant experienced extreme whiplash but due to the dangerous environment
in which the crash occurred, he did not have an opportunity to immediately treat his injuries.
Dr. Woodyear noted that the driver had to engage in evasive maneuvers when navigating away
from the scene, which exacerbated appellant’s injuries. He indicated that appellant was forced to
return stateside because of pain and weakness in his left arm. Dr. Woodyear reported that
appellant was being evaluated for what appeared to be a potentially disabling injury.
In various handwritten notes from the employing establishment health unit dated
February 13, 2013, an unknown provider indicated that on November 15, 2012 appellant was
involved in a motor vehicle accident. It was noted that appellant was diagnosed with PTSD.
Dr. Tara Chandrasekhar, a Board-certified psychiatrist specializing in child and
adolescent psychiatry, related in a July 10, 2014 psychiatric evaluation that appellant had a selfreported history of major depressive disorder with psychotic features and PTSD. She described
his history of ongoing psychiatric care while in military service. Dr. Chandrasekhar recounted
that in 2012 appellant sustained injuries to his left shoulder and neck when his vehicle was hit by
a rocket in Afghanistan. She related that, although his physical injuries were not significant, he
began to have significant panic attacks, anxiety, crying spells, nightmares, and flashbacks.
Dr. Chandrasekhar reviewed appellant’s history and, after examination, reported that he had a
history of major depressive disorder and likely PTSD with psychotic features. She explained
that his symptoms were fairly well controlled when he took his medications regularly.
In a July 15, 2014 letter to appellant, Marlo Bryant-Cunningham, a legal administrative
specialist with the Office of Personnel Management (OPM), informed appellant that the medical
records demonstrated that he was disabled from his position as a senior adviser due to PTSD,
chronic pain, cervicalgia, neuralgia, neuritis, and radiculitis.
By letter dated July 17, 2014, Dr. Chandrasekhar explained that she examined appellant
for PTSD. She also noted that appellant continued to be affected by symptoms related to PTSD.

2

Appellant provided an August 13, 2014 letter from OPM regarding his approval for
disability retirement and an October 9, 2013 letter from the Social Security Administration
(SSA) informing him that he was approved to start disability benefits.
On October 12, 2015 appellant responded to OWCP’s development letter. He explained
that on November 15, 2012 he was riding as a gunner on the passenger side of a governmentowned car to the North Atlantic Treaty Organization (NATO) airfield when the driver struck a
concrete barrier. Appellant explained that after the incident he immediately experienced pain in
his neck and shoulder and provided witnesses of the accident.
In a decision dated November 10, 2015, OWCP denied appellant’s claim. It accepted
that the November 15, 2012 incident occurred as alleged but denied his claim on the basis of
insufficient medical evidence to establish that appellant sustained a diagnosed condition causally
related to the accepted incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.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.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged.6 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.7 An employee may establish that the employment incident
occurred as alleged but fail to show that his disability or condition relates to the employment
incident.8

2
3

5 U.S.C. §§ 8101-8193.
J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

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

7

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

8

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

3

Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.9 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.10 The weight of the 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.11
ANALYSIS
Appellant alleged that on November 15, 2012 he sustained injuries to his neck and left
shoulder when he was involved in a motor vehicle accident while working overseas. OWCP
accepted that the November 15, 2012 incident occurred as alleged but denied his claim finding
insufficient medical evidence to establish a diagnosed condition causally related to the accepted
incident.
Appellant was examined by Dr. Woodyear, who recounted in a December 10, 2012
handwritten report that appellant was in the front passenger seat of a car when he worked as a
senior advisor in Afghanistan for the employing establishment when his vehicle collided with a
barrier. Dr. Woodyear explained that appellant experienced extreme whiplash but could not stop
to treat his injuries due to the dangerous environment in which the crash occurred. He related
that the driver had to engage in evasive maneuvers in order to leave the scene, which exacerbated
appellant’s injuries. Dr. Woodyear reported that appellant was evaluated for what appeared to be
a potentially disabling injury. Although he accurately described the November 15, 2012
employment incident, Dr. Woodyear’s report did not provide any findings on examination or
contain a medical diagnosis. His opinion, therefore, fails to address whether appellant sustained
a diagnosed condition causally related to the employment incident. Lacking a firm diagnosis and
thorough medical rationale on the issue of causal relationship, Dr. Woodyear’s report is
insufficient to establish that appellant sustained an employment-related injury.12
The various handwritten employing establishment health unit records dated February 13,
2013 are likewise insufficient to establish causal relationship as the records were signed by an
unknown provider. The Board has found that medical evidence lacking proper identification is
of no probative medical value.13 These reports, therefore, are insufficient to establish appellant’s
traumatic injury claim.

9

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

10

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

11

James Mack, 43 ECAB 321 (1991).

12

See C.T., Docket No. 10-2354 (issued April 21, 2011).

13

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

4

In addition to neck and shoulder injuries, appellant has alleged that he has sustained
PTSD as a result of the November 15, 2012 employment incident. OWCP has accepted that the
employment incident occurred as alleged. Appellant explained that he was working as a gunner
and seated in the passenger side of a government car on its way to the NATO airfield when the
driver struck a concrete barrier. He informed Dr. Chandrasekhar in a July 10, 2014 report that he
experienced significant panic attacks, anxiety, crying spells, nightmares, and flashbacks.
Appellant submitted reports from Dr. Chandrasekhar, a psychiatrist, in support of his
claims of post-traumatic stress disorder. Dr. Chandrasekhar’s reports are, however, of limited
probative value in establishing causal relationship because they are based upon an inaccurate
history of injury. She related that appellant sustained injuries to his left shoulder and neck in
2012 when his vehicle was hit by a rocket in Afghanistan. Dr. Chandrasekhar explained that
appellant did not sustain significant physical injuries, but began to experience panic attacks,
anxiety, crying spells, nightmares, and flashbacks. Appellant has never alleged that his vehicle
was hit by a rocket in Afghanistan, but that his vehicle struck a barrier. Given the inaccurate
history of injury, Dr. Chandrasekar’s opinion regarding the cause of appellant’s emotional
conditions is of limited probative value.14
On appeal, appellant described how he sought medical attention at the nearest medical aid
station and was sent via helicopter to a casualty center after the November 15, 2012 employment
incident. He alleged that Dr. Woodyear made note of the traumatic injury. As noted above,
however, Dr. Woodyear’s December 10, 2012 report fails to establish appellant’s claim.
Appellant further alleged that there was no other explanation, other than the traumatic
injury, to explain onset and continuation of his disability. The Board has held, however, that the
mere fact that work activities may produce symptoms revelatory of an underlying condition does
not raise an inference of an employment relation. Such a relationship must be shown by
rationalized medical evidence of a causal relation based upon a specific and accurate history of
employment conditions which are alleged to have caused or exacerbated a disabling condition.15
Because appellant has not provided such rationalized medical opinion in this case, the Board
finds that he did not meet his burden of proof to establish his traumatic injury claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a traumatic
injury on November 15, 2012 causally related to his accepted employment incident.

14

See K.S., Docket No. 16-0404 (issued April 11, 2016).

15

Patricia J. Bolleter, 40 ECAB 373 (1988).

5

ORDER
IT IS HEREBY ORDERED THAT the November 10, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 17, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.J., Appellant
and
DEPARTMENT OF DEFENSE, NATIONAL
GEOSPATIAL-INTELLIGENCE AGENCY,
Bethesda, MD, Employer
__________________________________________

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

Docket No. 10-1485
Issued: March 4, 2011

Case Submitted on the Record

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

JURISDICTION
On May 5, 2010 appellant filed a timely appeal from an April 27, 2010 overpayment
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the overpayment of this case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment from February 16 to March 13, 2010 in the amount of $2,813.59; and (2) whether
the Office properly found that appellant was at fault in the creation of the overpayment and
therefore not entitled to waiver.
FACTUAL HISTORY
On April 25, 2007 appellant, then a 50-year-old administrative officer, injured her left leg
as she was exiting a vehicle in the employer’s parking lot. She stopped work on April 25, 2007.

On August 1, 2007 the Office accepted her claim for closed dislocation of her left knee.1
Appellant was placed on the periodic compensation rolls on August 14, 2007.
In a letter dated January 11, 2008, the Office informed appellant regarding her
entitlement to compensation benefits and her responsibility to return to work. Appellant was
notified that compensation benefits were only payable when she could not perform her job duties
due to her injury and notify the Office when she returned to work. It explained that she was to
return any payments that she received for any portion of the period after she returned to work,
even if she already advised the Office that she was working.
On January 4, 2010 the employing establishment offered appellant a job within her
medical restrictions as an administrative officer, with a return to work date of February 15, 2010.
Appellant’s salary was at a rate equivalent to that earned at the time of injury.
On February 18, 2010 the Office noted that appellant returned to full-time, limited-duty
work on February 16, 2010.
In a March 8, 2010 computer printout regarding appellant’s compensation payment, the
Office noted that she returned to full-time light duty on February 16, 2010 but received wageloss compensation for 26 days afterwards resulting in an overpayment of $2,813.59. It stated
that, for a 28-day periodic rolls cycle, appellant was entitled to receive $3,505.00 or $1,129.79
per week.
On March 22, 2010 the Office made a preliminary finding that an overpayment of
$2,813.59 arose because appellant received wage-loss benefits for total disability from
February 16 through March 13, 2010, after she returned to full-time light duty on
February 16, 2010. It found that she was with fault in creating the overpayment because she was
advised in a May 26, 2009 letter that she was not entitled to compensation for total disability
when she returned to work. Appellant was informed of her options if she wished to challenge the
fact of overpayment or to request waiver of recovery of the overpayment. If she wished a waiver
of the overpayment, she was advised to submit, within 30 days, financial information by
completing an overpayment recovery questionnaire.
On April 9, 2010 appellant requested a decision based on the written evidence. She
contended that the overpayment was not her fault and completed an overpayment recovery
questionnaire. She did not think she was at fault for the overpayment because the Office was
notified of her return to work date. Appellant also stated that the Office was six months late in
making her first payment and she was unsure of the Office’s payment schedule. She believed the
last payment from the Office was a final payment to which she was entitled.
By decision dated April 27, 2010, the Office finalized the finding of overpayment in the
amount of $2,813.59. It found that appellant returned to full-time light duty on February 16,
2010 at her regular salary but received compensation until March 13, 2010. The Office further
found that she was at fault in the creation of the overpayment because she was advised in a Form
CA-1032 letter dated May 26, 2009 that she was not entitled to compensation for total disability
1

On September 17, 2007 the Office upgraded appellant’s claim to include other work-related injuries.

2

when she returned to work and earned her wages. Thus, appellant was not entitled to waiver of
recovery. She was advised to either forward a check for the entire amount of the overpayment
within 30 days or to contact the Office in order to arrange a repayment plan.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of duty.2 The Act, however, also places limitations on
an employee’s right to receive compensation benefits. Section 8116 provides that, while an
employee is receiving benefits she may not receive salary, pay or remuneration of any type from
the United States, except in limited circumstances.3 The Office regulations further state that
compensation for wage loss due to disability is available only for the period where an
employee’s work-related medical condition prevents him or her from earning the wages earned
before the work-related injury.4 A claimant is not entitled to receive temporary total disability
and actual earnings for the same period. Office procedures provide that an overpayment in
compensation is created when a claimant returns to work at regular salary but continues to
receive wage-loss compensation.5
ANALYSIS -- ISSUE 1
On January 4, 2010 the employing establishment offered appellant a full-time job within
her medical restrictions as an administrative officer. Appellant returned to work on February 16,
2010 at full salary. However, she continued to receive compensation benefits for wage loss until
March 13, 2010 resulting in an overpayment of compensation. The Board will affirm the
Office’s April 27, 2010 decision on the issue of fact of overpayment.
In calculating the overpayment, the Office determined that appellant received total
compensation in the amount of $3,505.00 every 28 days, or $125.18 in compensation per day. It
multiplied this amount, $125.18, by the 26 days for the period February 16 to March 13, 2010 to
total $2,813.59. The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $2,813.59 from February 16 to March 13, 2010,
when she returned to permanent light duty on February 16, 2010 at full salary. The Board will
affirm the April 27, 2010 decision on the amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
According to section 8129(a) of the Act, adjustment or recovery shall be made under
regulations prescribed by the Secretary of Labor when an overpayment of compensation was
2

5 U.S.C. § 8102(a).

3

Id. at § 8116(a).

4

20 C.F.R. § 10.500(a).

5

L.S., 59 ECAB 350 (2008); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.2(a) (September 2010).

3

made because of an error of fact or law.6 The only exception is if the individual is without fault
in the creation of the overpayment and when adjustment or recovery would defeat the purpose of
the Act or would be against equity and good conscience.7 A recipient is at fault in the creation or
acceptance of an overpayment if he has done any of the following: (1) made an incorrect
statement as to a material fact which he or she knew or should have known to be incorrect; or
(2) failed to provide information which he or she knew or should have known to be material; or
(3) accepted a payment which he or she knew or should have known to be incorrect.8
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in the creation of the overpayment because
she accepted a payment which she knew or should have known to be incorrect and applied the
third criterion listed above. To establish that appellant was at fault, the Office must establish that
at the time she accepted the compensation check in question she knew or should have known that
the payment was incorrect.
In this case, appellant returned to work on February 16, 2010 at her regular wages but
continued to receive wage-loss compensation to March 13, 2010. The Office explained the basis
of compensation payments in its August 1, 2007 acceptance letter and in the January 11, 2008
letter. In order to prevent an overpayment, she was asked to return any compensation check she
received which covered a time period after she was working. Office regulations provide that
each compensation check indicates the period for which payment is being made.9 By stating the
period for which payment is being made, the Office puts the recipient on notice that a payment
was made, the amount of the payment and for which period.10 Appellant was notified of the
period covered by the compensation check and knew or should have known that she could not
receive wage-loss compensation for the period after she returned to work on February 16, 2010
at her regular salary.
On appeal, appellant asserts the overpayment was not her fault because the Office knew
of her return date to work. She further claimed that because her initial compensation benefits
were six months late, she thought that the payment she received represented compensation to
which she was entitled. Even if the Office was at fault for issuing compensation checks after
appellant returned to full-time, light-duty work on February 16, 2010, this fact does not relieve
her from liability for repayment of the debt if she was at fault for accepting the payment she
knew to be incorrect.11 Additionally, given the clear indication on each compensation check of
the period covered, she knew or should have known that the checks she received after
6

5 U.S.C. § 8129(a).

7

Id.

8

B.H., 60 ECAB __ (Docket No. 09-292, issued September 1, 2009). 20 C.F.R. § 10.433(a).

9

20 C.F.R. § 10.430(a).

10

J.R., 60 ECAB __ (Docket No. 08-1107, issued June 15, 2009); Id. at § 10.430(b).

11

R.H., 61 ECAB __ (Docket No. 09-1981, issued June 11, 2010); M.J., 60 ECAB __ (Docket No. 09-469, issued
August 24, 2009).

4

February 16, 2010 was not a “late” payment for compensation due months earlier. The Board
finds, therefore, that appellant accepted compensation she knew or should have known that she
was not entitled to receive from February 16 to March 13, 2010 after she returned to work. Since
appellant is at fault on the issue of overpayment, recovery cannot be waived.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment in the amount of $2,813.59 which occurred for the period February 16 to
March 13, 2010. The Board further finds that she was at fault in the creation of the overpayment
and thus not entitled to waiver of recovery.
ORDER
IT IS HEREBY ORDERED THAT the April 27, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 4, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, 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
__________________________________________
D.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Houston, TX, Employer
__________________________________________

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

Docket No. 12-1190
Issued: June 17, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On May 7, 2012 appellant filed a timely appeal of a February 23, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has more than 4 percent impairment to the right lower
extremity and 18 percent impairment to the left lower extremity, for which she received a
schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board with respect to appellant’s emotional
condition claim under File No. xxxxxx761.2 In an April 6, 2001 decision, the Board affirmed a
March 9, 2000 OWCP decision denying her emotional condition claim. The facts and the
circumstances of the case as set out in the Board’s prior decision are incorporated herein by
reference.
OWCP, under File No. xxxxxx923, accepted that on February 4, 1992 appellant, then a
32-year-old personnel clerk, sustained a contusion and internal derangement of the left knee as a
result of hitting the knee on a file cabinet at work. It later authorized arthroscopic left knee
surgery which was performed on March 31, 1992 and August 25, 1995 and accepted herniated
discs at L4-5 and L5-S1 and a torn medial meniscus of the right knee.
Under File No. xxxxxx092 OWCP accepted that on October 22, 1997 appellant sustained
a left ankle strain when she twisted her left ankle while walking on a sidewalk. It authorized left
ankle arthroscopy which was performed on April 6, 1998. OWCP granted appellant a schedule
award for 22 percent impairment of the left lower extremity.
OWCP, under File No. xxxxxx764, accepted that on February 20, 2001 appellant
sustained a left knee sprain when she hit her knee on the corner of a desk while working in a
limited-duty information receptionist position. It later accepted herniated discs at L4-5 and L5S1 and a torn meniscus of the right knee. On July 20, 2006 appellant underwent right knee
arthroscopic surgery.
By letter dated July 25, 2002, OWCP advised appellant that her claims under File Nos.
xxxxxx092, xxxxxx923 and xxxxxx764 were combined into a Master File No. xxxxxx923.
On October 20, 2011 appellant filed a claim for a schedule award. In a medical report of
the same date, Dr. James E. Butler, III, an attending Board-certified orthopedic surgeon, obtained
a history of the accepted employment injuries and appellant’s medical treatment, which included
two left knee surgeries and a lumbar laminectomy at L4-5 and L5-S1 and work history. He
noted her complaints of pain in the middle and lower back, left hip, right foot and toe and right
hip accompanied by numbness in both legs and feet. Appellant also complained about a pins and
needles and tingling sensation and hypersensitivity in the feet, a burning sensation in the legs and
calves and weakness in the legs. She rated her pain as 8 out of 10 on the day of examination.
Appellant rated her pain as 5 at its best and 10 at its worst. Her pain was consistent and
worsened while stooping, bending, sleeping, pushing, walking, pulling, sitting, standing and
reaching and during bowel movements and weather changes. Massage, medication and physical
therapy lessened appellant’s pain. On physical examination, Dr. Butler reported ambulation with
a staggered gait and balance difficulty. Appellant appeared uncomfortable in a seated position.
She utilized a cane. Appellant arrived at the examination on a stretcher. She had a well-healed
surgical scar in the lumbar region measuring five inches. Deep tendon reflexes were two each in
the right and left patella, zero in the right Achilles and two in the right and left Achilles. On
examination of the lumbar spine, Dr. Butler reported tenderness on palpation around L4, L5 and
2

Docket No. 00-1610 (issued April 6, 2001).

2

S1. No spasms were noted. Orthopedic tests of the lumbar spine were essentially negative
except for positive Kernig/Brudzinsk and sitting root tests on the right. Appellant had decreased
lumbar range of motion with full effort. She had essentially normal sensation of the lumbar
spine except for mildly decreased sensation at left S1 and right S1 nerves. On examination of the
left lower extremity, Dr. Butler reported tenderness anteriorly on palpation of the left knee.
Effusion was mild on the left. A crepitation test was moderate on the left. Girth measurements
included 50 centimeters each for the right and left thigh, 38.0 centimeters for the right calf, 36.5
centimeters for the left calf. Atrophy was measured as 1.5 centimeters in the right calf. There
was no atrophy in the right thigh. Appellant had decreased range of motion of the left knee with
full effort. Left knee flexion was 100 degrees and flexion contracture was 5 degrees. Sensation
testing of the right and left lower extremities was within normal limits. Strength testing of the
bilateral hips, legs and ankles was good. Appellant was unable to perform heel and toe walk.
X-ray examination of the bilateral knees was normal except for minor hypertrophy of the
intercondyloid eminence and minor osteophytes in the superior aspect of the patella bilaterally.
Dr. Butler advised that appellant was status post lumbar disc disorder for which she
underwent surgery in 2006. Her cauda equine syndrome had not resolved. Appellant had
gangrene of the right foot secondary to 10 hours of low back operation with amputation of the
fourth and fifth toes. She also had osteoarthritis of the left knee secondary to multiple injuries
and surgeries. Dr. Butler advised that appellant reached maximum medical improvement on
June 23, 2011. Utilizing Table 16-3 on page 511 of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment3 (A.M.A., Guides), he found
that she had a class 1 impairment due to left knee osteoarthritis, two millimeters cartilage interval
with a default value of C. Dr. Butler assessed a grade modifier 2 each for Functional History
(GMFH) and Clinical Studies (GMCS) under Table 16-6, page 516 and Table 16-8, page 519,
respectively. He assessed a grade modifier 1 for Physical Examination (GMPE) under Table 167, page 517. Dr. Butler applied the net adjustment formula of (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX) which resulted in a -1 net adjustment that required moving one position to the left
of the default grade C which yielded an 18 percent impairment of the left lower extremity.
Regarding impairment to the right foot, Dr. Butler found that appellant had a class 1
amputation of her fourth and fifth toes with a default value of C under Table 16-16, page 542.
He assessed a grade modifier 1 for functional history under Table 16-6, page 516 which resulted
in a net adjustment formula of zero. Dr. Butler determined that a default grade C represented
two percent impairment of the right lower extremity. He diagnosed class 3 cauda equine
syndrome of the neurogenic bowel which resulted in 20 percent impairment of the whole person
under Table 13-13, page 337.4 Dr. Butler diagnosed class 3 cauda equine syndrome of the
neurogenic bladder which also resulted in 20 percent whole person impairment under Table 1314, page 337.
On January 17, 2012 an OWCP medical adviser reviewed Dr. Butler’s report and
concurred with his date of maximum medical improvement of June 23, 2011 and 18 percent left
3

A.M.A., Guides (6th ed. 2009).

4

The Board notes that Dr. Butler incorrectly stated that Table 13-13 was on page 570 rather than page 337 of the
A.M.A., Guides.

3

lower extremity impairment rating. He found that appellant had a class 1 impairment with a
default value of 20 percent due to left knee osteoarthritis. The medical adviser found that she
had functional history and clinical studies modifiers 2 and a physical examination modifier 1
which resulted in a net adjustment of -1. Utilizing the net adjustment formula discussed above,
he determined that GMFH-CDX + GMPE-CDX + GMCS-CDX or (2-2) + (1-2) + (2-2) = -1.
The medical adviser concluded that a -1 adjustment to the left of default grade C resulted in a
class 1, grade B or 18 percent impairment of the left lower extremity.
OWCP’s medical adviser noted Dr. Butler’s finding that appellant had two percent
impairment to the right lower extremity. He found that appellant had a class 1 impairment for
amputation of the fourth toe on the right foot which represented a two percent default value
under Table 16-16, page 542. The medical adviser assigned a grade modifier 1 for functional
history. He advised that grade modifiers were not applicable for physical examination and
clinical studies. Utilizing the net adjustment formula, the medical adviser determined that
appellant had a zero percent net adjustment. An adjustment of zero percent from the default
value of C represented a class 1, grade C or two percent impairment of the fourth toe. The
medical adviser determined that appellant also had a class 1 impairment with a two percent
default value for amputation of the fifth toe under Table 16-16, page 542. He further determined
that she had a zero net adjustment which resulted in a grade C default value or two percent
impairment of the fifth toe. The medical adviser combined the two percent impairment ratings
for each toe under the Combined Values Chart, page 604, which resulted in four percent
impairment of the right lower extremity.
OWCP’s medical adviser noted Dr. Butler’s 20 percent whole person impairment ratings
based on appellant’s neurogenic bowel and bladder. He stated that the bowel and bladder were
not scheduled members and, therefore, concluded that appellant was not entitled to any
impairment rating for these conditions.
In a February 23, 2012 decision, OWCP granted appellant a schedule award for 18
percent impairment to the left lower extremity and 4 percent impairment to the right lower
extremity based on the medical opinions of Dr. Butler and OWCP’s medical adviser.
LEGAL PRECEDENT
The schedule award provision of FECA,5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.7 The A.M.A., Guides has been adopted by the implementing
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

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

4

regulations as the appropriate standard for evaluating schedule losses.8 Effective May 1, 2009,
FECA adopted the sixth edition of the A.M.A., Guides9 as the appropriate edition for all awards
issued after that date.10
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the regulations.11 Neither FECA nor the implementing regulations authorize the
payment of a schedule award for the permanent loss of use of the back or spine.12 The Board has
recognized that a claimant may be entitled to a schedule award for a permanent impairment to an
extremity even though the cause of the impairment originates in the back or spine.13
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides has an alternative approach
to rating spinal nerve impairments.14 OWCP has adopted this approach for rating impairment of
the upper or lower extremities caused by a spinal injury, as provided in section 3.700 of its
procedures.15
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS.16 The
net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).17
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to its medical adviser for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides, with the medical adviser proving rationale
for the percentage of impairment specified.18

8

20 C.F.R. § 10.404; Mark A. Holloway, 55 ECAB 321, 325 (2004).

9

A.M.A., Guides (6th ed. 2008).

10

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
11

C.E., Docket No. 11-637 (issued October 14, 2011); William Edwin Muir, 27 ECAB 579 (1976).

12

FECA specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

13

F.W., Docket No. 11-191 (issued October 17, 2011); see also Thomas J. Englehart, 50 ECAB 319 (1999).

14

Rozella L. Skinner, 37 ECAB 398 (1986).

15

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, supra note 10.

16

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

17

Id. at 521.

18

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

5

ANALYSIS
OWCP accepted appellant’s claim for contusion, internal derangement and sprain of the
left ankle, herniated discs at L4-5 and L5-S1 and a torn meniscus of the right knee. On
February 23, 2012 appellant received a schedule award for 18 percent impairment of the left
lower extremity and 4 percent impairment of the right lower extremity. The Board finds that she
did not meet her burden of proof to establish greater impairment.
On October 20, 2011 appellant’s attending physician, Dr. Butler, opined that appellant
reached maximum medical improvement on June 23, 2011 based on his examination findings.
He found that appellant was status post 2006 lumbar surgery. Dr. Butler found that her cauda
equine syndrome had not resolved. He diagnosed gangrene of the right foot as a result of 10
hours of low back operation with amputation of the fourth and fifth toes. Dr. Butler also
diagnosed osteoarthritis of the left knee secondary to multiple injuries and surgeries. He
determined that appellant had 18 percent impairment of the left lower extremity and 4 percent
impairment of the right lower extremity. In determining the left lower extremity impairment,
Dr. Butler, utilized the sixth edition of the A.M.A., Guides, and identified a class 2 impairment
due to appellant’s left knee osteoarthritis, two millimeters cartilage interval with a default value
of C (A.M.A., Guides 511, Table 16-3). He assessed a grade modifier 2 each for functional
history and clinical studies (A.M.A., Guides, 516, 519, Table 16-6, Table 16-8) and a grade
modifier 1 for physical examination (A.M.A., Guides 517, Table 16-7). Dr. Butler applied the
net adjustment formula of (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX) and calculated a net
adjustment of -1 that required moving one position to the left of the default grade C which
resulted in 18 percent impairment of the left lower extremity.
On the right, Dr. Butler determined that appellant had a class 1 amputation of her fourth
and fifth toes with a default value of C (A.M.A., Guides 542, Table 16-16). He assigned a grade
modifier 1 for functional history (A.M.A., Guides 516, Table 16-6). Dr. Butler did not provide
any modifiers for physical examination or clinical studies. Utilizing the net adjustment formula
discussed above, he found a net adjustment of zero which yielded a grade C default value or two
percent impairment of the right lower extremity.
Dr. Butler advised that appellant had a class 3 impairment which represented 20 percent
impairment of the whole person each for cauda equine syndrome with a neurogenic bowel and
bladder (A.M.A., Guides 337, Table 13-13, Table 13-14).
The file was then properly routed to an OWCP medical adviser for an opinion concerning
the nature or percentage of permanent impairment in accordance with the A.M.A., Guides.19 On
January 17, 2012 the medical adviser utilized Dr. Butler’s findings, referenced the sixth edition
of the A.M.A., Guides and concurred with his opinion that appellant reached maximum medical
improvement on June 23, 2011 and she had 18 percent impairment to the left lower extremity.
He determined that appellant had a class 1 impairment with a default value of 20 percent due to
osteoarthritis of the left knee (A.M.A., Guides 511, Table 16-3). The medical adviser found a
grade modifier 2 each for functional history and clinical studies and a grade modifier 1 for
19

Id.

6

physical examination (A.M.A., Guides 516, 517, 519, Table 16-6, Table 16-7, Table 16-8). He
averaged and adjusted the grade modifiers to find a class 1, grade B or 18 percent impairment of
the left lower extremity.
As for the right lower extremity, the medical adviser noted that, while Dr. Butler
determined that appellant had two percent impairment for the amputations. He found that she
actually should have two percent impairment for each lost toe. The medical adviser indicated
that she had a class 1 impairment for amputation of the fourth toe on the right foot which
represented a default value of two percent (A.M.A., Guides 542, Table 16-16). He assigned a
grade modifier 1 for functional history and advised that grade modifiers for physical examination
and clinical studies were not applicable. The medical adviser applied the net adjustment formula
which resulted in a zero net adjustment. He determined that an adjustment of zero from the
default value of C represented a class 1, grade C or two percent impairment of the fourth toe.
Regarding impairment due to amputation of the fifth toe on the right foot, the medical adviser
determined that appellant also had a class 1 impairment with a default value of two percent and a
grade modifier 1 for functional history. The medical adviser again found that grade modifiers for
physical examination and clinical studies were not applicable. The net adjustment formula was
applied and resulted in a zero net adjustment from the default grade C value which resulted in
two percent impairment of the fifth toe. The medical adviser used the Combined Values Chart
(A.M.A., Guides 604) to arrive at four percent impairment of the right lower extremity.
The Board finds that OWCP’s medical adviser properly applied the A.M.A., Guides to
Dr. Butler’s report to find that appellant had 18 percent impairment to the left lower extremity
and 4 percent impairment to the right lower extremity. The Board further finds that he correctly
stated that appellant was not entitled to a schedule award for 20 percent whole person
impairment each to the neurogenic bowel and bladder as found by Dr. Butler as neither organ is a
scheduled member under FECA or OWCP regulations.20 No schedule award is payable for a
member, function or organ of the body not specified in FECA or in the implementing
regulations. FECA does not provide for OWCP to add organs or functions to the compensation
scheduled on a case-by-case basis and the Board does not have the power to enlarge the
provisions of either statute or regulations.21
The Board finds that the weight of the medical evidence rests with OWCP’s medical
adviser, who provided sufficient medical rationale for his conclusion that appellant, had 18
percent impairment of the left lower extremity and 4 percent impairment of the right lower
extremity. Further, appellant has not submitted sufficient medical evidence to establish that, as a
result of her accepted employment injuries, she sustained any permanent impairment to another
scheduled member or function such that she would be entitled to an additional schedule award
pursuant to the A.M.A., Guides. The Board finds, therefore, that she is not entitled to a schedule
award for permanent impairment to the bowel or bladder.

20

5 U.S.C. § 8107(c); supra note 6.

21

D.J., Docket No. 11-1359 (issued February 24, 2012).

7

Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than 18 percent impairment of the left lower
extremity and 4 percent impairment of the right lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the February 23, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 17, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
FEDERAL JUDICIARY, U.S. PROBATION &
PRETRIAL SERVICES OFFICE,
Springfield, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-0834
Issued: October 28, 2019

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 March 12, 2019 appellant, through counsel, filed a timely appeal from a February 20,
2019 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 this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a condition causally
related to the accepted February 5, 2018 employment incident.
FACTUAL HISTORY
On March 6, 2018 appellant, then a 57-year-old senior probation clerk, filed a traumatic
injury claim (Form CA-1) alleging that on February 5, 2018 she experienced a pinched nerve and
possible herniated disc in her upper back, along with pain and numbness in her right shoulder, arm,
and hand while in the performance of duty. She explained that she was moving large storage bins
full of paper outside for shredding when she reached at a difficult angle to turn the bin.
In a February 7, 2018 e-mail exchange with an employing establishment human resource
specialist and her supervisor, appellant explained that she had been having trouble with her right
shoulder, back, arm, and hand for some time, but after pulling the shred bin the pain had increased.
She also explained that she had a magnetic resonance imaging (MRI) scan performed on
December 27, 2017 due to pain she was already experiencing from what she believed was a result
of using her computer.
In a note dated February 7, 2018, Dr. Cory Bethmann, Board-certified in family medicine,
excused appellant from work from February 7 to 9, 2018.
In a February 21, 2018 medical report, Dr. Edwin Cunningham III, a Board-certified
neurosurgeon, diagnosed cubital tunnel syndrome and recommended that she receive 15 minutes
of rest per hour from the computer.
In a development letter dated March 19, 2018, OWCP advised appellant of the factual and
medical deficiencies of her claim. It informed her of the evidence necessary to establish her claim.
OWCP specifically requested that appellant submit a narrative medical report from her treating
physician which provided a diagnosis and the physician’s rationalized medical explanation as to
how the alleged employment incident caused the diagnosed condition. It afforded her 30 days to
submit the necessary evidence.
In response, appellant submitted a February 7, 2018 medical report from Dr. Bethmann in
which he noted that appellant had a history of degenerative disc disease and osteoarthritic changes
in her cervical spine that caused her pain while performing her work. Dr. Bethmann further noted
that she was moving papers on February 5, 2018 when the pain in her right shoulder, neck, and
upper extremity worsened. He diagnosed right cervical radiculopathy and recommended that
appellant not participate in sports or perform heavy lifting.
Appellant treated with Dr. Steven Pennington, Board-certified in family medicine, on
March 13, 2018. Dr. Pennington noted that she presented to his office with right neck pain that
radiated down her right arm which had worsened after lifting a box at work. He also noted that
appellant had decreased grip in her right hand and that the pain made it difficult for her to sleep at
night. Dr. Pennington assessed right cervical radiculopathy, diffused arthralgia, and pain in the
right shoulder and ordered an MRI scan of her right shoulder.

2

A March 29, 2018 MRI scan of appellant’s right shoulder verified by Dr. Kevin Baehl, a
Board-certified radiologist, found a small intrasubstance insertional supraspinatus tear, mild
subacromial/subdeltoid bursitis, increased moderate osteoarthritic changes of the right
acromioclavicular joint, and labral degeneration in her right shoulder.
OWCP received an April 12, 2018 letter from appellant stating that her cubital tunnel
syndrome was a separate issue unrelated to her case.
By decision dated May 14, 2018, OWCP denied appellant’s claim. It found that the
medical evidence of record was insufficient to establish a causal relationship between her
diagnosed medical conditions and the accepted employment incident.
Appellant thereafter submitted the results of an April 24, 2014 electromyogram (EMG)
conducted by Dr. Ted Lennard, Board-certified in physical medicine and rehabilitation.
Dr. Lennard observed moderate bilateral ulnar neuropathies at appellant’s elbows and mild
bilateral median neuropathies at her wrists. In reports dated December 15, 2015 and January 12,
2016, he noted that she experienced worsening neck and right upper extremity pain attributed to
her employment duty of 40 hours per week at the computer while at work.
In a February 8, 2016 medical report, Dr. Cunningham noted that appellant had been
experiencing pain in her right upper extremity for the past 18 months and noted right cervical
radiculopathy and ulnar neuropathy of the right elbow. He also discussed the possibility of
performing a right ulnar nerve decompression.
In a November 21, 2017 medical report, Dr. Steven Otto, a Board-certified neurologist,
noted that appellant had been dealing with right-sided pain and numbness for several years that
she believed was related to her work. Based on an EMG and a cervical spine MRI scan, Dr. Otto
assessed cervical radiculopathy, sensation disturbance of the skin, and cervicalgia and noted his
impression of multilevel spondylosis with moderate narrowing of the left neural foramen at C6C7. He also referenced an April 24, 2014 MRI scan conducted by Dr. Stephen Wong, a Boardcertified radiologist, in which he noted a tiny interstitial tear at the insertion of the anterior-mid
supraspinatus.
In a February 21, 2018 medical report, Dr. Cunningham recommended a right ulnar nerve
release procedure in order to treat the radiating pain in appellant’s right arm related to her cubital
tunnel syndrome, but explained that he was not confident that a cervical decompression and fusion
procedure would help her symptoms.
In his March 8, 2018 medical report, Dr. Cunningham noted a lesion of the ulnar nerve in
appellant’s right upper limb. On March 22, 2018 appellant underwent a right cubital tunnel release
procedure.
In an April 17, 2018 diagnostic report, Dr. Sarah Jost, a Board-certified neurologist,
explained that the x-rays of appellant’s right shoulder showed acromioclavicular arthritis, but no
evidence of acute bony injury or abnormality.
In an April 17, 2018 report, Dr. David Hicks, a Board-certified orthopedic surgeon,
indicated that appellant’s MRI scan revealed impingement and arthritis at the acromioclavicular
3

joint. He also opined that some of her pain was related to a soft tissue injury and not related to the
impingement in her shoulder. Dr. Hicks also provided appellant with a corticosteroid injection.
In an April 23, 2018 medical note, Joshua Barbieri, a physician assistant, noted appellant’s
mild improvement since her March 22, 2018 cubital tunnel release procedure.
On August 31, 2018 appellant underwent a right shoulder arthroscopy with extensive
synovectomy, a debridement of the rotator cuff, and biceps tenotomy.
Appellant also submitted medical reports dated September 13 to November 8, 2018, by
Erin Clayman, a physician assistant.
On November 28, 2018 appellant, through counsel, requested reconsideration of the
May 14, 2018 decision. Along with her request, she submitted a November 7, 2018 narrative
medical report from Dr. Pennington along with other medical notes already of record.
Dr. Pennington noted that he examined appellant on March 13, 2018 after she complained of right
shoulder pain that started to get worse after she had been lifting and pulling boxes at work. He
explained that she was referred to Dr. Hicks, where she received a corticosteroid injection and later
surgery in order to clear out the shoulder area to relieve her symptoms. Dr. Pennington referenced
Dr. Hicks’ August 31, 2018 operative note that showed a full-thickness supraspinatus tendon tear,
arthritis, and an injury to appellant’s rotator cuff. He opined that her supraspinatus tear was a
direct consequence of her injury at work. Dr. Pennington also explained that the traction from the
heavy boxes pulling down on her shoulder joint and rotator cuff caused the tear in the supraspinatus
and aggravated her acromioclavicular joint arthritis.
In a letter received by OWCP on January 16, 2019, the employing establishment
controverted appellant’s claim, contending that her injuries were preexisting. It provided a copy
of the February 7, 2018 e-mail exchange between appellant and a human resource specialist in
which she explained that she had been having trouble with her right side for “quite a while.”
By decision dated February 20, 2019, OWCP denied modification of its prior decision
finding that the evidence of record did not establish a causal relationship between the diagnosed
conditions and the accepted February 5, 2018 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related

3
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

4

to the employment injury.4 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. 5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established. 6 First,
the employee must submit sufficient evidence to establish that she actually experienced the
employment incident at the time, place, and in the manner alleged. 7 Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.8
To establish causal relationship between the condition claimed and the employment
incident, the employee must submit rationalized medical opinion evidence. 9 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.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to the accepted February 5, 2018 employment incident.
In his November 7, 2018 report, Dr. Pennington opined that appellant’s supraspinatus tear
was a direct consequence of her injury at work. He explained that the traction from the heavy
boxes pulling down on her shoulder joint and rotator cuff caused the tear in the supraspinatus and
aggravated her acromioclavicular joint arthritis. Although Dr. Pennington’s report contains an
affirmative opinion on causal relationship, it is not sufficiently rationalized as it does not provide
a detailed opinion explaining how her preexisting shoulder condition had been aggravated beyond
what was expected with normal degeneration. As the physician failed to discuss whether
appellant’s preexisting injury had progressed beyond what might be expected from the natural
progression of that condition, the opinion is insufficient to establish the claim.11

4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

7

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

8

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

9

K.V., Docket No. 18-0723 (issued November 9, 2018).

10

I.J., 59 ECAB 408 (2008).

11

R.E., Docket No. 14-0868 (issued September 24, 2014).

5

Dr. Pennington’s March 13, 2018 report noted appellant’s diagnoses of right cervical
radiculopathy, arthralgia, and that she was experiencing right neck pain that radiated down her
right arm which had worsened after lifting a box at work. While it does discuss the employment
incident as a contributing factor to appellant’s conditions, the Board finds that the March 13, 2018
report is insufficient because it does not explain the pathophysiologic mechanism by which the
accepted employment injury caused, aggravated or accelerated appellant’s injuries.12 Because
Dr. Pennington’s report does not explain how appellant’s lifting of a box caused or contributed to
her injuries, it is of limited probative value.
Similarly, Dr. Bethmann’s February 7, 2018 medical report also attributed appellant’s right
cervical radiculopathy and worsening pain in her right shoulder, neck, and upper extremity to the
February 5, 2018 employment incident. However, his report also does not explain the
pathophysiological mechanism by which the accepted employment injury caused, aggravated, or
accelerated appellant’s injuries.13 Accordingly, Dr. Bethmann’s medical report is of little
probative value.
Appellant also submitted medical reports dated April 17 and August 23, 2018 from
Dr. Hicks. In his reports Dr. Hicks opined that some of her pain was related to a soft tissue injury,
but did not provide an opinion as to whether the injury was work related. The Board has held that
medical evidence that does not offer an opinion regarding the cause of an employee’s condition is
of no probative value on the issue of causal relationship. 14 Therefore, Dr. Hicks’ reports are of no
probative value.
In medical reports dated from February 21 to March 22, 2018, Dr. Cunningham addressed
a right cubital tunnel release procedure in order to address pain appellant was experiencing.
However, appellant provided an April 12, 2018 letter in which she explained that her cubital tunnel
syndrome was an issue unrelated to this present case. Consequently, Dr. Cunningham’s reports
are insufficient to establish the claim as he did not specifically address whether appellant’s
employment activities on February 5, 2018 had caused or aggravated a diagnosed medical
condition.15 Rather, the evidence pertained to an unrelated condition and surgery. For these
reasons, Dr. Cunningham’s reports are insufficient to satisfy appellant’s burden of proof.

12

See A.P., Docket No. 19-0224 (issued July 11, 2019).

13

Id.

14

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018) (medical
evidence which does not offer any opinion regarding the cause of an employee’s condition or disability is of no
probative value on the issue of causal relationship).
15

See id.

6

OWCP also received medical reports from a physician assistant. These reports, however,
are of no probative value as physician assistants are not considered physicians as defined under
FECA.16 Consequently, these reports are also insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence establishing that her
condition is causally related to the accepted February 5, 2018 employment incident, the Board
finds that she has not met her burden of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a condition
causally related to the accepted February 5, 2018 employment incident.

16

5 U.S.C. § 8102(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. M.M., Docket No. 18-1096 (issued December 14, 2018); E.T., Docket No. 17-0265 (issued May 25,
2018) (physician assistants are not considered physicians under FECA).

7

ORDER
IT IS HEREBY ORDERED THAT the February 20, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 28, 2019
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

8