United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
U.S. POSTAL SERVICE, STONE MOUNTAIN
POST OFFICE, Stone Mountain, GA, Employer
__________________________________________

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

Docket No. 19-1703
Issued: April 16, 2021

Case Submitted on the Record

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

JURISDICTION
On August 9, 2019 appellant filed a timely appeal from a May 6, 2019 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 has established a medical condition causally related to the
accepted factors of his federal employment.

1
The Board notes that following the May 6, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 25, 2017 appellant, then a 47-year-old modified city letter carrier, filed an
occupational disease claim (Form CA-2) alleging that he developed herniated discs in his neck due
to factors of his federal employment.3 He noted that he first became aware of his condition and its
relation to his federal employment on August 3, 2017.
In a narrative statement, appellant noted that on September 2, 2008 he had sustained a
work-related traumatic injury, resulting in herniated discs at C6-7. He noted that he underwent
cervical fusion at C6-7 and returned to modified-duty work. Appellant indicated that on August 3,
2017 he indicated that he was no longer able to perform his modified work duties as a result of
debilitating neck pain. He alleged that his discs in the levels adjacent to his fusion had moved and
resulted in his current condition.
On August 9, 2017 Dr. Robinson examined appellant due to his cervical herniated disc. He
noted that appellant’s cervical problem had worsened with persistent neck pain and weakness.
Dr. Robinson diagnosed post-laminectomy syndrome. He found that appellant had been unable to
work from August 3 through 13, 2017, and that he was to continue modified duty. Dr. Robinson
indicated that appellant needed medication periodically and that in the future he would likely
require a fusion at C5-6.
In a report dated September 27, 2017, Dr. Robinson examined appellant due to neck pain.
He reported that the location of appellant’s pain was in his anterior, lateral, and posterior neck.
Dr. Robinson noted that the events surrounding the occurrence of the symptoms included twisting
movement and that aggravating factors included flexion and turning his head. He further noted
that appellant had previously undergone an anterior cervical discectomy and fusion. In a separate
note of even date, Dr. Robinson diagnosed cervical disc herniation and found that appellant could
work with restrictions. Appellant also provided an unsigned treatment note dated August 9, 2017.
In an October 18, 2017 development letter, OWCP advised appellant of the deficiencies of
his occupational disease claim. It requested additional factual and medical evidence from
appellant, and provided a questionnaire for his completion. OWCP afforded him 30 days for a
response.
On October 18, 2017 appellant underwent an additional cervical MRI scan which
demonstrated an anterior intervertebral disc fusion with a metallic fusion plate from C6-7 as well
as degenerative disc disease from C2-5 increasing with proximity to appellant’s fusion. It also
3
On September 10, 2008 appellant, then a 38-year-old letter carrier, filed a traumatic injury claim (Form CA-1)
alleging that on September 2, 2008 he injured his left shoulder, and arm reaching for and adjusting mail in trays while
in the performance of duty. On October 21, 2008 he returned to regular-duty work. On January 28, 2009 OWCP
accepted appellant’s claim for left shoulder strain, left trapezius strain, and cervical strain under OWCP File No.
xxxxxxx432. On April 20, 2010 appellant accepted a light-duty position as a modified city letter carrier, with
restrictions on reaching above the shoulder, lifting more than 20 pounds, and reaching and twisting more than six
hours a day. By decision dated January 18, 2012, OWCP granted appellant a schedule award for 11 percent permanent
impairment of the left upper extremity. By decision dated April 20, 2012, OWCP’s hearing representative affirmed
the January 18, 2012 schedule award determination. Appellant filed a recurrence claim under OWCP File No.
xxxxxx432; however, OWCP advised that he should file an occupational disease claim.

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showed central canal stenosis at C5-6 associated with moderate bilateral neural foraminal stenosis.
Appellant also underwent cervical x-rays which demonstrated postoperative changes of an anterior
cervical fusion at C6-7 with mild spondylosis at C4-5 and C5-6 demonstrating anterior endplate
spurring.
On November 1, 2017 Dr. Robinson examined appellant due to cervical herniated disc and
noted that his problems had worsened. He reported that appellant had weakness and numbness in
the left shoulder and arm. Dr. Robinson diagnosed radiculopathy of cervical region as well as
worsening symptomatic cervical disc herniations located above prior surgery secondary to stress
and work activities.
By decision dated November 22, 2017, OWCP denied appellant’s August 3, 2017
occupational disease claim, finding that he failed to identify the specific modified work duties
which he felt caused or contributed to his current cervical condition. On December 22, 2017
appellant requested a review of the written record by a representative of OWCP’s Branch of
Hearings and Review.
In a December 18, 2017 statement, appellant attributed his current cervical condition to his
repetitive duties of twisting his neck and lifting his arms. He noted that on August 3, 2017, while
casing mail, he experienced a debilitating pain in his neck that radiated down his right shoulder
and arm.
On December 18, 2017 Dr. Robinson examined appellant due to his cervical herniated disc.
He noted that appellant had left-sided neck, right shoulder, and arm pain. Dr. Robinson reported
that appellant had foraminal stenosis above his prior fusion. He diagnosed post-laminectomy
syndrome, cervical radiculopathy, and advanced disc disease at C5-6 and C4-5 which was causing
foraminal compression and was secondary to his repetitive work activities of cervical twisting and
upper extremity lifting as well as the previous surgery at C6-7 which was causing increased
movement to the levels above the fusion. Dr. Robinson indicated that appellant would likely need
additional surgery.
By decision dated May 18, 2018, OWCP’s hearing representative found appellant had not
met his burden of proof to establish his occupational disease claim as he had not provided medical
evidence establishing causal relationship between his employment duties and his diagnosed
cervical condition.4
On June 11, 2018 Dr. Robinson examined appellant due to worsening left posterior neck
and left shoulder pain radiating into the left upper arm. On examination he found muscle spasm
and moderately reduced range of motion. Dr. Robinson diagnosed post-laminectomy syndrome
and cervical disc disorder with myelopathy. He found that appellant continued to exhibit cervical
disc disease and radiculopathy. Dr. Robinson found that appellant was unable to work June 12
through 15, 2018 due to a flare-up of his cervical condition.

4

Appellant appealed the May 18, 2018 decision to the Board. In its March 22, 2019 Order Remanding Case, the
Board directed OWCP to combine appellant’s cervical claims and issue a de novo decision. Supra note 2. On April 29,
2019 OWCP combined appellant’s files.

3

On June 20, 2018 appellant underwent additional cervical spine x-rays which demonstrated
moderate endplate and facet degenerative changes at C4-5 and C5-6 with neural foraminal
encroachment at C4-5 and C5-6 on the left. On July 11, 2018 Dr. Robinson examined appellant
due to left lateral neck pain. On October 24, 2018 and February 21, 2019 he examined appellant
due to cervical spinal stenosis. Dr. Robinson diagnosed cervical disc disorder with myelopathy
and recommended that appellant continue with his work restrictions.
By decision dated May 6, 2019, OWCP denied appellant’s occupational disease claim
finding that he had not established causal relationship between his diagnosed condition and the
accepted factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 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,6 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
to the employment injury.7 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.8
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence.9 Rationalized medical opinion evidence is evidence which includes a
physician’s rationalized opinion on the issue of whether there is causal relationship between the
claimant’s diagnosed condition and the established employment injury. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the accepted employment injury.10
ANALYSIS
The Board finds this case is not in posture for decision.

5

Supra note 2.

6

L.C., Docket No. 19-0724 (issued September 5, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P.,
59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
7
D.W., Docket No. 18-1139 (issued May 21, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59
ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
8

D.W., id.; 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).
9

L.C., supra note 6; M.B., Docket No. 17-1999 (issued November 13, 2018).

10

M.L., Docket No. 18-1605 (issued February 26, 2019).

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Dr. Robinson treated appellant for his accepted conditions due to his September 2, 2008
employment injury including left shoulder strain, left trapezius strain as well as cervical strain and
on June 2, 2009 performed an authorized anterior cervical discectomy and fusion at C6-7. He
released appellant to return to work as a modified city letter carrier in 2010. Beginning on
August 9, 2017 Dr. Robinson reported that appellant’s cervical problem had worsened and
diagnosed the additional condition of post-laminectomy syndrome. On November 1, 2017 he
found that appellant had sustained worsening symptomatic cervical disc herniations secondary to
stress from the prior fusion/injury and work activities. On December 18, 2017 Dr. Robinson
diagnosed post-laminectomy syndrome, cervical radiculopathy, and advanced disc disease at C5-6
and C4-5. He opined that these conditions were causing foraminal compression and were
secondary to his repetitive work activities of cervical twisting and upper extremity lifting as well
as the previous surgery at C6-7. Dr. Robinson explained that appellant’s previously accepted
conditions, as well as his modified work duties, were causing increased movement to the levels
above the fusion resulting in post-laminectomy syndrome.
The Board finds that while Dr. Robinson’s reports are not completely rationalized and are
insufficient to meet appellant’s burden of proof to establish his occupational disease claim, they
are consistent in indicating that he sustained a medical condition due to the accepted factors of
federal employment and are sufficient to require OWCP to further develop the medical evidence
and the case record.11
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.12
The Board will therefore remand the case for further development of the medical evidence.
On remand, OWCP shall prepare a statement of accepted facts and obtain a rationalized opinion
from a physician in the appropriate field of medicine as to whether the accepted work factors
caused or aggravated a diagnosed medical condition. Following this and other such further
development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

11

C.W., Docket No. 19-0322 (issued July 18, 2019); X.V., Docket No. 18-1360 (issued April 12, 2019); D.W.,
Docket No. 17-1884 (issued November 8, 2018); John. J. Carlone, 41 ECAB 354 (1989).
12
C.W., id.; X.V., id.; S.W., Docket No. 18-0119 (issued October 5, 2018); William J. Cantrell, 34 ECAB
1233 (1993).

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ORDER
IT IS HEREBY ORDERED THAT the May 6, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: April 16, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
DEPARTMENT OF TRANSPORTATION,
MERCHANT MARINE ACADEMY,
Kings Point, NY, Employer
__________________________________________

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Appearances:
Joanne Dunat, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-0456
Issued: July 25, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 24, 2014 appellant, through counsel, filed a timely appeal from an
October 24, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
The record also contains a November 19, 2014 OWCP decision denying review of the merits of
the claim. 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.

ISSUES
The issues are: (1) whether appellant has established an injury in the performance of
duty on July 4, 2014; and (2) whether OWCP properly denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 18, 2014 appellant, then an 18-year-old midshipman student,3 filed a traumatic
injury claim (Form CA-1) alleging a head injury on July 4, 2014. When he was receiving
punishment along with his company the punishment involved wearing a bathrobe, raincoat, and
boots, and having to wrap a blanket around himself. According to appellant, he woke up laying
on the floor, did not remember falling, and was told he had passed out and hit his head on the
floor.
Appellant submitted an employing establishment health unit note dated July 5, 2014. The
note was prepared by a nurse and countersigned by Dr. Ronald Feinstein, a Board-certified
pediatrician. The note recorded that appellant was being punished for having a drawstring
hanging out of his shorts. Appellant was ordered to put on a white shirt, bathrobe, raincoat, and
black boots and then wrap a blanket around himself along with the remainder of the company.
After these orders he next remembered waking up on the floor. First responders were called to
the scene of his fall and an emergency medical technician (EMT) was noted to have seen
appellant on a hallway floor in the items of clothing previously described. Dr. Feinstein noted
that appellant was status post syncope, instructed him to return immediately for a headache, pain,
or lightheadedness. He also noted that an eyewitness to appellant’s fall reports that he fell to the
ground striking his head against the floor and that his head “bounced” off the floor when it hit.
On September 3, 2014 appellant submitted hospital reports indicating that he had
received hospital treatment on July 5 and 15, 2014. A July 15, 2014 emergency treatment report
provides a diagnosis of concussion and contains an illegible signature. In a report dated July 16,
2014, Dr. Robert Duarte, a Board-certified neurologist, provided a history that appellant had
passed out 10 days earlier and hit his head resulting in a loss of consciousness after being
required to wear multiple clothes. He provided results on examination and diagnosed
concussion, probable post-traumatic migraine, and syncope. Dr. Duarte opined that the
examination is not consistent with a neurological etiology for his left-sided weakness/numbness,
but still recommended a magnetic resonance imaging (MRI) scan of the brain to document
pathology. By report dated July 23, 2014, he provided results on examination and noted that
appellant reported a minimal headache, but essentially all symptoms had resolved.
By letter dated September 22, 2014, OWCP noted that his claim initially appeared to be a
minor injury that resulted in minimal or no time lost from work and therefore the employing
establishment had not controverted continuation of pay. However, the claim was now reopened
for consideration because medical bills exceeded $1,500.00.

3

Midshipmen at the Merchant Marine Academy are covered under the provisions of FECA. See Rolf W. Beere, 8
ECAB 186 (1955).

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OWCP requested that appellant submit additional factual and medical evidence in
support of his claim. As to factual evidence, it asked appellant for an explanation as to the delay
in filing the claim, whether appellant had any symptoms prior to the alleged incident, and
whether there were any other injuries prior to notification to the supervisor. Appellant did not
respond to the September 22, 2014 letter.
By decision dated October 24, 2014, OWCP denied appellant’s claim for compensation.
It found the factual element of the claim had not been established, noting that appellant had not
responded to the request for additional information. OWCP also noted that appellant did not
submit probative medical evidence establishing an employment injury.
On November 5, 2014 appellant requested reconsideration. He submitted employing
establishment health unit notes. In a note dated July 17, 2014, Dr. Feinstein diagnosed status
postconcussion syndrome and noted that appellant continued to have symptoms. In a note dated
July 21, 2014, Dr. Marigold Castillo, a Board-certified pediatrician, noted that appellant’s
concussion was improving despite continuation of symptoms.
By decision dated November 19, 2014, OWCP denied appellant’s request for
reconsideration finding that the evidence of record was insufficient to warrant merit review of
the claim.
LEGAL PRECEDENT -- ISSUE 1
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.”4 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.”5 An employee seeking benefits under FECA has the burden of proof to establish
that he or she sustained an injury while in the performance of duty.6 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 rationalized medical
evidence.7
An injury does not have to be confirmed by eyewitnesses in order 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 or her subsequent course of

4

5 U.S.C. § 8102(a).

5

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

6

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

7

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

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action.8 An employee has not met his or her burden of proof to establish the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim.9 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 doubt on an employee’s
statements.10 However, an employee’s statement regarding the occurrence of an employment
incident is of great probative force and will stand unless refuted by strong or persuasive
evidence.11
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background, of reasonable medical certainty, and supported by sound
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the claimant. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.12
ANALYSIS -- ISSUE 1
The Board finds that appellant has presented sufficient evidence to meet his burden of
proof to establish that the July 4, 2014 incident occurred as alleged.
In its decision of October 24, 2014, OWCP noted that as appellant failed to explain how
his work-related activity caused, aggravated, or contributed to his medical condition, the 12-day
delay in reporting his claim made the circumstances surrounding his injury unclear.
A review of the evidence of record establishes that appellant sustained a traumatic fall in
the performance of duty when he was required to wear multiple articles of clothing and wrap a
blanket around himself. He hit his head against the floor and lost consciousness when his head
bounced off of the floor. Emergency medical treatment was immediately summoned and he was
transported to a local medical facility for care. The EMT reported finding appellant on the floor
in a condition consistent with the description of injury on the Form CA-1. Dr. Feinstein
contemporaneously noted symptomology consistent with a head injury and loss of consciousness
due to a traumatic fall. Moreover, the initial treatment note includes an eyewitness statement
describing the severity of the injury, including witnessing his head bounce off of the floor and a
resulting and immediate loss of consciousness. There are no inconsistencies in the allegations of
the injurious event and therefore there is no basis to cast serious doubt upon the validity of the
incident of July 4, 2014. The employing establishment has not controverted the incident as
alleged in this claim. Therefore the Board finds that appellant has met his burden of proof to
establish that the incident on July 4, 2014 occurred as alleged.
8

See Betty J. Smith, 54 ECAB 174 (2002).

9

Id.

10

See Linda S. Christian, 46 ECAB 598 (1995).

11

See Gregory J. Reser, 57 ECAB 277 (2005).

12

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

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Given that appellant has established that the July 4, 2014 incident occurred as alleged, the
question becomes whether the medical evidence establishes a causal relationship between the
claimed condition and the accepted incident. The Board will remand the case for OWCP to issue
a de novo decision as to whether the evidence of record is sufficient to establish a head injury as
a result of the accepted incident.13
CONCLUSION
The Board finds that this case is not in posture for decision. As appellant has established
the July 4, 2014 incident occurred as alleged, OWCP must review the evidence of record to
determine whether he has established a head injury resulted from the accepted incident. After
such further development as is deemed necessary, OWCP shall issue a de novo decision.
ORDER
IT IS HEREBY ORDERED THAT the November 19 and October 24, 2014 decisions
of the Office of Workers’ Compensation Programs are set aside and the case is remanded for
further proceedings consistent with this decision.14
Issued: July 25, 2016
Washington, DC

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

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

13

Based upon the disposition of the first issue, the second issue presented for consideration by the Board is found
to be moot and therefore need not be addressed in this decision.
14

James A. Haynes, Alternate Judge, participated in the preparation of this decision but was no longer a member
of the Board effective November 16, 2015.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
TENNESSEE VALLEY AUTHORITY, BULL
RUN FOSSIL PLANT, Clinton, TN, Employer
__________________________________________

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

Docket No. 08-71
Issued: April 24, 2008

Case Submitted on the Record

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

JURISDICTION
On October 9, 2007 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated July 9 and September 6, 2007. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained any permanent impairment due to her accepted
low back strain.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated July 24, 2006, the
Board found that appellant’s reconsideration request was not timely filed and that clear evidence
of error was not established. The Board, however, noted that she had filed a schedule award

claim for which an appropriate decision was warranted.1 The law and the facts of the previous
Board decision are incorporated herein by reference.
By letter dated June 6, 2007, addressed to her treating physician, and forwarded to
appellant, the Office asked for an impairment rating in accordance with the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter
A.M.A., Guides).2 The Office attached information entitled “Guidelines for the Spinal Nerves
Impairment Rating” and provided a form with instructions to “please review the attached
Guidelines ... in completing this evaluation.” On June 6, 2007 appellant was also asked to
forward the requested information within 30 days.
In a July 9, 2007 decision, the Office denied appellant’s claim for a schedule award. The
Office noted that she had failed to submit any medical evidence as requested in its June 6, 2007
letter. On July 23, 2007 appellant requested reconsideration. She submitted a form report in
which Dr. Luis Pannocchia, Board-certified in family medicine and geriatrics, advised that
maximum medical improvement was reached in 1991, that L3-4 and L4-5 were the affected
nerve roots, and that appellant had 100 percent impairment due to loss of function from sensory
deficit and 100 percent loss of function from decreased strength.3 By decision dated
September 6, 2007, the Office denied modification of the July 9, 2007 decision, finding that
Dr. Pannocchia’s report did not comport with the A.M.A., Guides.
LEGAL PRECEDENT
Pursuant to section 8107 of the Federal Employees’ Compensation Act4 and section
10.404 of the implementing federal regulations,5 schedule awards are payable for permanent
impairment of specified body members, functions or organs. The Act, however, does not specify
the manner in which the percentage of impairment shall be determined. For consistent results
and to ensure equal justice under the law for all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to

1

Docket No. 06-558 (issued July 24, 1996). Appellant’s claim was accepted by the Office for low back strain,
lumbago, an aggravation of degenerative disc disease and temporary aggravation of dysthymic disorder. She had
not worked since June 3, 1991 and her compensation benefits were terminated effective June 7, 2001.
2

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

3

Additional medical evidence submitted subsequent to the termination of appellant’s wage-loss compensation
and medical benefits effective June 17, 2001 included reports dated September 21 and December 20, 2005 in which
Dr. Pannocchia described appellant’s history of injury, treatment regimen, provided physical findings, and
diagnosed degenerative disc disease of the lumbar spine, herniated disc with radiculopathy secondary to 1990 injury,
cervical arthritis, chronic cervical pain secondary to injury, chronic depression/anxiety secondary to chronic pain,
chronic pain syndrome, hypertension, noninsulin-dependent diabetes mellitus, osteoporosis, coronary artery disease,
chronic obstructive pulmonary disease and tobacco use. In a January 10, 2006 report, appellant’s attending Boardcertified psychiatrist, advised that she had treated appellant since February 1992 and opined that she would never
work again.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

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all claimants. The A.M.A., Guides6 has been adopted by the Office, and the Board has concurred
in such adoption, as an appropriate standard for evaluating schedule losses.7
It is well established that a schedule award is not payable under the Act for injury to the
spine. In 1960 amendments to the Act modified the schedule award provisions to provide for an
award for permanent impairment to a member of the body covered by the schedule regardless of
whether the cause of the impairment originated in a scheduled or nonscheduled member. As the
schedule award provisions of the Act include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.9
8

The A.M.A., Guides provide that, if lower extremity impairment is due to an underlying
spine disorder, the lower extremity impairment would, in most cases, be accounted for in the
spine impairment rating.10 Section 15.12 of the fifth edition of the A.M.A., Guides describes the
method to be used for evaluation of impairment due to sensory and motor loss of the extremities
as follows. The nerves involved are to be first identified. Then, under Tables 15-15 and 15-16,
the extent of any sensory and/or motor loss due to nerve impairment is to be determined, to be
followed by determination of maximum impairment due to nerve dysfunction in Table 15-17 for
the upper extremity and Table 15-18 for the lower extremity. The severity of the sensory or
motor deficit is to be multiplied by the maximum value of the relevant nerve.11 It is appellant’s
burden to submit sufficient evidence to establish entitlement to a schedule award.12
ANALYSIS
The Board finds that appellant has not established that she has sustained any permanent
impairment to her lower extremities due to her accepted low back conditions. Schedule awards
under the Act are to be based on the A.M.A., Guides, and an estimate of permanent impairment
is not probative where it is not based on the A.M.A., Guides.13 Factors such as employability or
limitations on daily activities have no bearing on the calculation of a schedule award.14 Schedule
awards are to be based on the A.M.A., Guides.
6

A.M.A., Guides, supra note 2.

7

See Joseph Lawrence, Jr., supra note 2; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287
(1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
8

Pamela J. Darling, 49 ECAB 286 (1998).

9

Thomas J. Engelhart, 50 ECAB 319 (1999).

10

Vanessa Young, 55 ECAB 575 (2004).

11

A.M.A., Guides, supra note 2 at 423.

12

See Annette M. Dent, 44 ECAB 403 (1993).

13

James R. Hill, 57 ECAB ___ (Docket No. 05-1899, issued May 12, 2006); Shalanya Ellison, 56 ECAB
150 (2004).
14

Kimberly M. Held, 56 ECAB 670 (2005).

3

In a July 3, 2007 report, Dr. Pannocchia did not provide any impairment rating for
appellant’s lower extremities under the A.M.A., Guides. He advised that appellant had 100
percent impairments due to sensory and motor deficits of the spine at L3-5. However, as noted a
schedule award is not payable for the spine or back. Dr. Pannocchia did not provide a proper
analysis as instructed by utilizing Tables 15-15, 15-16 and 15-18 of the A.M.A., Guides. His
report is therefore insufficient to establish entitlement to a schedule award.15 The record
contains no other medical evidence providing an impairment rating.
CONCLUSION
The Board finds that appellant has not established that she has any permanent impairment
of a scheduled member.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 6 and July 9, 2007 be affirmed.
Issued: April 24, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

See Carl J. Cleary, 57 ECAB ____ (Docket No. 05-1558, issued May 10, 2006).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Tucson, AZ, Employer
__________________________________________

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Appearances:
Johnny Gallego, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1901
Issued: April 17, 2017

Case Submitted on the Record

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

JURISDICTION
On September 27, 2016 appellant, through his representative, filed a timely appeal from a
May 16, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of 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 established a left shoulder condition causally related to
the accepted March 27, 2013 employment incident.
FACTUAL HISTORY
On July 30, 2013 appellant, then a 53-year-old housekeeping aid, filed a traumatic injury
claim (Form CA-1) alleging that on March 27, 2013 he sustained a left shoulder condition when
he fell against the wall after stepping on a stack of loose floor tiles.
In support of his claim, appellant submitted a March 27, 2013 employing establishment
health clinic note from Dr. Sonia M. Perez-Padilla, a Board-certified internist. He reported that
at 6:35 a.m. that morning he had walked into his supply closet, there were some loose tiles on the
floor, his foot slipped on the tiles, and he fell back hitting his left posterior shoulder on the wall.
Appellant noted pain and stiffness in the shoulder with tingling into the left hand. Physical
examination findings included normal, active range of motion of the left shoulder with some
crepitus. Discomfort with palpation of the posterior left shoulder was noted which did not impact
the cervical or thoracic vertebral area. Dr. Perez-Padilla diagnosed left shoulder contusion/strain
and released appellant to full duty.
In a July 25, 2013 note, Dr. William F. Rees, a Board-certified internist, indicated that
appellant’s left shoulder, left ankle, and left knee pain were improving. He noted that appellant
injured himself one to two months ago at work. Dr. Rees diagnosed left shoulder pain, suspect
rotator cuff tear, ankle pain, improving left knee pain, hypertension, and post-traumatic stress
disorder. Appellant also submitted a July 30, 2013 x-ray that was interpreted by Dr. Jennifer H.
Alcala, a Board-certified radiologist, as lucency through the greater tuberosity, which could
reflect an acute fracture site without significant displacement.
By letter dated August 6, 2013, OWCP informed appellant that further evidence,
including medical evidence, was needed to support his claim. Appellant was afforded 30 days to
submit this evidence.
By letter dated September 13, 2013, the employing establishment controverted the claim.
In a decision dated September 16, 2013, OWCP denied appellant’s claim finding that the
evidence of record was insufficient to establish that the incident occurred as alleged.
On June 17, 2014 appellant requested reconsideration. In his request, he further
described the employment incident and discussed his medical treatment. Appellant noted that
after the incident he took ibuprofen and his pain decreased, but would not go away. He noted
that he tried to use his left arm less, but that he would have pain in his left shoulder and would
put ice on his shoulder every night. Appellant noted that he continued to work and on
August 28, 2013 his work requirements were modified because of the pain he had in his left
shoulder. He noted that he was given a light-duty limitation for lifting with the left arm.
Appellant discussed the medical opinions and argued that they clearly established a causal
relationship between his left shoulder injury and the employment incident.

2

On June 17, 2014 OWCP received additional medical evidence.
In an August 28, 2013 note, Nurse Barbara A. Bridges indicated that appellant should not
lift over 15 pounds, or push and pull anything over 20 pounds until seen and evaluated by an
orthopedist.
In an August 29, 2013 report, a physician assistant ordered no heavy lifting with
appellant’s left arm for six weeks.
In a March 3, 2014 MRI scan report, Dr. Shahin S. Amanat, a Board-certified radiologist,
found high grade partial thickness tear, versus small full-thickness tear, of the anterior fibers of
the supraspinatus tendon approximately two centimeters from the insertion with at least bursal
and articular-sided elements to the tear, possible post-traumatic avulsion fragments or osteophyte
formation off the humeral head related to the anterior tear of the supraspinatus tendon, and
biceps tenosynovitis.
In support of his reconsideration request, appellant also submitted March 20, 2014
handwritten notes from Dr. Patrick O’Brien, an orthopedic surgeon at the Southern Arizona
Veterans Administration Health Care System. Dr. O’Brien noted that appellant fell at work one
year ago and injured his shoulder, that a magnetic resonance imaging (MRI) scan revealed a left
rotator cuff tear, and that appellant would need surgery to repair the tendon. He noted that
appellant’s history of injury was consistent with this condition. Dr. O’Brien indicated that
appellant would need to be off work for three months.
In a September 15, 2014 decision, OWCP reviewed appellant’s claim on the merits. It
determined that he had now established that the incident occurred as alleged and that he had a
left rotator cuff tear. However, OWCP found that the claim remained denied as appellant had
failed to provide sufficient evidence with regard to a causal relationship between the rotator cuff
tear and the accepted incident of employment.
On April 24, 2015 appellant requested reconsideration. In support of his request,
appellant submitted a March 9, 2015 note from Dr. O’Brien which related that appellant suffered
a fall at work two years prior when he slipped on loose tiles in his maintenance closet.
Dr. O’Brien noted that appellant never had shoulder pain before the fall and that after that fall he
sought help at the employee health unit. He noted that appellant has had various treatments since
that time, but his pain had persisted, and that he recently had a left shoulder MRI scan
confirming a rotator cuff tear. Dr. O’Brien indicated that appellant’s mechanism of injury was
consistent with his complaints and his physical findings. He noted that appellant would need
surgery to correct the damage. Dr. O’Brien related that there was no question in his mind that
the fall caused the injury.
On April 24, 2015 Kelley S. Ireland, a program manager for workers’ compensation at
the employing establishment, noted that there was no possibility of knowing whether this injury
happened in the performance of duty given the amount of time it took appellant to address it
medically. The employing establishment contended that appellant alleged that the fall occurred
on March 27, 2013, but he waited until July 30, 2013 to file his claim.

3

By an appeal request form received on February 11, 2016, appellant again requested
reconsideration.
By letter dated April 15, 2016, OWCP referred appellant to Dr. John R. Klein, a Boardcertified orthopedic surgeon, for a second opinion. Appellant did not keep this appointment.
By decision dated May 16, 2016, OWCP denied appellant’s claim. It determined that he
had not established a causal relationship between the rotator cuff tear and the accepted
employment incident. OWCP found that the diagnosis at the time of the employment incident
was not that of rotator cuff tear. It noted that appellant did not seek treatment for four months,
there was no interval history provided by the physician between his diagnosis and the date of the
employment incident, and there was no explanation of any pathophysiologic changes because of
the fall. OWCP also noted that appellant failed to report for his second opinion examination.
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, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury. 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.3
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 or exposure, which is alleged to have occurred.4
In order to meet his burden of proof to establish the fact that he sustained an injury in the
performance of duty, the employee must submit sufficient evidence to establish that he actually
experienced the employment injury or exposure at the time, place, and in the manner alleged.5
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.6 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
3

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (August 2012).

5

Linda S. Jackson, 49 ECAB 486 (1998).

6

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

4

factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.7
ANALYSIS
OWCP accepted that the employment incident of March 27, 2013 occurred as alleged. It
further accepted that appellant was diagnosed with a rotator cuff tear. However, OWCP denied
his claim as he failed to establish a causal relationship between the accepted employment
incident and the accepted medical diagnosis.
The Board finds that appellant has not established a left shoulder condition causally
related to the accepted March 27, 2013 employment incident.
Appellant was seen on the date of injury by Dr. Perez-Padilla at the employing
establishment health unit. The health unit notes provide an accurate history of the employment
incident. However physical examination findings were related as normal and appellant’s
diagnosis was listed as left shoulder contusion/strain. No opinion was provided regarding causal
relationship. The Board has held that medical reports are of limited probative value if they do
not provide an opinion regarding causal relationship.8
The July 25, 2013 report of Dr. Rees is the first medical report in the record indicating
that appellant sought further medical treatment. Dr. Rees suspected a rotator cuff tear at the
time, but did not provide a rationalized medical opinion explaining how the March 27, 2013
employment incident resulted in the suspected tear. Medical conclusions unsupported by
rationale are of little probative value.9 Furthermore, Dr. Rees noted that appellant had left
shoulder pain for one to two months, but the fall had occurred four months prior to the July 25,
2013 appointment. He did not provide a clear opinion on causal relationship and thus his report
is of little probative value.
Appellant contended that the report of Dr. O’Brien established that his fall at work on
March 27, 2013 caused his injury. However, Dr. O’Brien’s brief note does not establish causal
relationship. He indicated that appellant was his patient, that he suffered a fall at work two years
prior when he slipped on loose tiles, that he never had shoulder pain prior to that incident, and
that he sought help at employee health on the day of the fall. Dr. O’Brien noted that, despite
various treatments since that time, appellant’s pain persisted, and a recent MRI scan showed a
rotator cuff tear. He concluded that appellant’s mechanism of injury was consistent with his
complaints and his physical findings. Dr. O’Brien, however, did not explain how the mechanism
of injury would have physiologically caused the diagnosed condition.10 While Dr. O’Brien
opined that there was no question in his mind that the fall caused the injury, his report did not
7

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

8

G.M., Docket No. 14-2057 (issued May 12, 2015).

9

D.B., Docket No. 14-295 (issued April 25, 2014); see also Willa M. Frazier, 55 ECAB 379, 384 (2004).

10

Id.

5

contain sufficient rationale.11 Dr. O’Brien’s report is not sufficient to establish causal
relationship. The opinion of a physician supporting causal relationship must rest on a complete
factual and medical background supported by affirmative evidence, address the specific factual
and medical evidence of record, and provide medical rationale explaining the relationship
between the diagnosed condition and the established incident or factor of employment.12
Dr. O’Brien contends that appellant did not have shoulder pain before the fall, and noted that he
sought medical treatment from the employee health unit. The Board has held that a medical
opinion that a condition is causally related to an employment injury, but symptomatic after it is
insufficient, without supporting rationale to establish causal relationship.13 The notation of a
rotator cuff tear first appeared in Dr. O’Brien’s handwritten notations on March 20, 2014, one
year after the March 27, 2013 fall. There is no indication that Dr. O’Brien treated appellant
during that year,14 nor did Dr. O’Brien explain why the tear was not diagnosed earlier.
Neither of the radiologists who reviewed the diagnostic test results discussed causal
relationship. Dr. Alcala interpreted a July 30, 2013 x-ray as showing lucency through the great
tuberosity which could reflect an acute fracture cite without displacement. Dr. Amanat did find a
high grade partial thickness tear of the anterior fibers of the supraspinatus tendon in an x-ray
dated March 3, 2014. However, these reports are of limited probative value as neither radiologist
provided an opinion on causal relationship.15
Appellant submitted notes by a physician assistant and from a nurse. Evidence from a
physician assistant or nurse does not constitute competent medical evidence under FECA as
neither is considered as a physician as defined under section 8102(2) of FECA.16
The Board notes that OWCP attempted to further develop the medical evidence by
referring appellant to Dr. Klein for a second opinion. However, appellant did not attend that
examination.
An award of compensation may not be based on surmise, conjecture, speculation, or on
the employee’s own belief of causal relation.17 Appellant’s honest belief that the March 27,

11

Supra note 8.

12

See Lee R. Haywood, 48 ECAB 145 (1996).

13

E.D., Docket No. 16-1854 (issued March 3, 2017); Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

14

Supra note 8.

15

G.M., Docket No. 14-2057 (issued May 12, 2015).

16

5 U.S.C. § 8101(2) provides that a physician includes, surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
V.C., Docket No. 16-0642 (issued April 19, 2016); L.C., Docket No. 16-1717 (issued March 2, 2017) (nurses);
Allen C. Hundley, 53 ECAB 551, 554 (2002) (physician assistant). David P. Sawchuk, 57 ECAB 316, 320
n.11 (2006).
17

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

6

2013 employment incident caused his medical injury is not in question, but that belief, however
sincerely held, does not constitute the medical evidence to establish causal relationship.18
Appellant has therefore failed to establish that his rotator cuff tear was related to his
accepted employment incident. Because he has not provided a rationalized opinion supporting
causal relationship, he has not met his burden of proof.19
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 established a left shoulder condition causally
related to the accepted March 27, 2013 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 16, 2016 is affirmed.
Issued: April 17, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

18

H.H., Docket No. 16-0897 (issued September 21, 2016).

19

See J.E., Docket No. 16-0509 (issued September 16, 2016).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
EL PASO HEALTH CARE SYSTEM,
El Paso, TX, Employer
__________________________________________

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Docket No. 16-1203
Issued: May 23, 2017

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

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 18, 2016 appellant filed a timely appeal from a December 23, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
elapsed from the last merit decision, dated April 9, 2015, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of the claim.3

1

Appellant timely requested oral argument; however, the Board exercised its discretion and denied her request
pursuant to 20 C.F.R. § 501.5(a). See Order Denying Request for Oral Argument, Docket No. 16-1203 (issued
October 21, 2016).
2
3

5 U.S.C. § 8101 et seq.

The record includes evidence received after the December 23, 2015 decision. As this evidence was not part of
the record when the Branch of Hearings and Review issued its final decision, the Board is precluded from
considering it for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing.
FACTUAL HISTORY
On February 10, 2015 appellant, then a 52-year-old licensed vocational nurse, filed a
traumatic injury claim (Form CA-1) for a leg/knee injury that allegedly occurred on February 5,
2015 while in the performance of duty.4 She claimed that a wheelchair hit her leg. On Form
CA-1 appellant’s supervisor indicated that appellant was injured in the performance of duty.
Appellant continued to work following the February 5, 2015 alleged incident. She submitted
medical evidence with a diagnosis of left knee effusion and leg contusion. Appellant reported
that she was placing a folded wheelchair in the back of a car when the wheelchair fell back and
hit her left knee.5
On March 2, 2015 OWCP advised appellant of the need for additional factual and
medical evidence in support of her claim. It also requested additional factual information from
the employing establishment regarding the location of the alleged injury and whether she was
performing her assigned duties at the time of the alleged injury.
In a March 2, 2015 statement, the supervisor indicated that on February 5, 2015 appellant
was assisting a veteran/patient by putting his wheelchair in his car. She noted that appellant did
not lift the patient, just the wheelchair. The supervisor stated that appellant was “injured at work
in the line of her duties….” After the incident/injury, the employing establishment’s safety
officer reportedly informed the supervisor that helping the veteran in that particular manner was
not part of appellant’s duties. However, the supervisor explained that such information has not
previously been communicated to her staff, at least not in the past few years, and it was not part
of their practice at the Las Cruces outpatient clinic. She further indicated that she had since
requested a copy of the employing establishment’s standard operating procedures, and the safety
officer had yet to provide the requested information. The supervisor stated that appellant was
helping a veteran when she was injured and, as her direct supervisor, that is what she had asked
of appellant.
On March 9, 2015 the employing establishment offered appellant a limited-duty
assignment, which she accepted.
OWCP also received additional medical evidence regarding appellant’s left knee
complaints, including March 12, 2015 diagnostic evidence of a small joint effusion.
4

According to Form CA-1, appellant’s official duty station was in El Paso, TX. The alleged injury occurred at
the employing establishment’s community-based outpatient clinic (CBOC) in Las Cruces, NM.
5

The record also includes an unsigned Form CA-1 dated February 18, 2015. On this particular form, “Nurse
Manager” T.L. represented that appellant was not in the performance of duty at the time of the alleged injury on
February 5, 2015. He did not challenge the specifics of the alleged incident, but instead noted that placing a
wheelchair into a patient’s vehicle was not part of appellant’s job description. T.L. further noted that appellant had
not followed the facility’s policy/procedures, which reportedly prohibited employees from performing any lifting
unrelated to patient care.

2

In a March 13, 2015 e-mail/statement, appellant indicated that she was helping an 80year-old caregiver and her veteran son place a VA-provided wheelchair in the back seat of their
automobile. The wheelchair could not fit in the trunk. Appellant indicated that the caregiver
was unable to lift the wheelchair (35 to 50 pounds) into the car, so appellant placed the folded
chair in the back seat. She stated that the wheelchair dropped down a little from the back seat
into the open car door where she was standing, and it came down on the upper part of her knee.
Appellant then lifted the wheelchair up again and secured it with the seatbelt. She explained that
she was just trying to help an 80-year-old mother with her veteran son, which was the employing
establishment policy when asked for assistance. Appellant further explained that part of her
responsibility as a nurse was to teach patients and/or caregivers how to use a wheelchair (or other
provided equipment), including how to break it down to place it into a vehicle.
By decision dated April 9, 2015, OWCP denied appellant’s traumatic injury claim as she
had failed to establish fact of injury. It noted that the employing establishment’s safety officer
indicated that helping patients put wheelchairs in their vehicles was not in appellant’s line of
duty. The claims examiner further noted that the employing establishment controverted the
claim.
In an appeal request form dated April 16, 2015, postmarked April 23, 2015 and received
on April 24, 2015, appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. She submitted a February 6, 2015 employing establishment
report of contact wherein she explained that on February 5, 2015 at approximately 11:00 a.m.,
she assisted a patient’s mother load a wheelchair into the back seat of her car. Appellant further
explained that she developed a strain on her left side, lower back, and left leg that evening. She
noted that she continued to have pain and discomfort from lifting the wheelchair into the car, and
that she had planned to seek medical attention that day. Appellant also indicated that she had
reported the incident to her supervisor.
In an April 21, 2015 statement, appellant’s supervisor confirmed that appellant had been
injured at work in the line of duty on February 5, 2015. She noted that appellant was showing a
veteran with a new wheelchair how to load it into his vehicle. The supervisor further stated that
appellant was within her regular tour of duty and not at lunch when the incident occurred. She
reiterated that appellant was helping a veteran when she was injured and, as her direct
supervisor, that is what she asked of appellant.
On April 24, 2015 OWCP acknowledged receipt of appellant’s hearing request.
On May 13, 2015 the Branch of Hearings and Review received another appeal request
form from appellant.6 Appellant changed her previous request for an oral hearing to a request for
review of the written record.
In a May 20, 2015 statement, appellant noted that the safety officer, T.L., was not her
supervisor. She argued that he switched her original February 10, 2015 CA-1 form for the
February 18, 2015 CA-1 form. Appellant also argued that her direct nursing supervisor had
entered the same form on which her handwritten signature was entered. She explained that her
6

The request was postmarked May 7, 2015.

3

supervisor responded “yes” to question 28 regarding whether the employee was injured in the
performance of duty, as opposed to T.L. who responded “no.” Appellant requested that OWCP
use the original “unadulterated form” that her supervisor had signed on February 10, 2015.
OWCP also received a position description and an undated statement from a coworker.
The coworker confirmed that appellant’s activities of assisting the veteran was part of their work
duties.
In a letter dated November 2, 2015, OWCP advised appellant that a telephonic hearing
was scheduled for December 8, 2015 at 11:15 a.m. (Eastern Standard Time). It provided her
with a toll-free number and passcode for the call.
In a December 23, 2015 decision, the hearing representative found that appellant had
abandoned her request for a hearing, which had been scheduled for December 8, 2015.
Appellant failed to appear at the designated time and place and, according to the hearing
representative, there was no indication in the file that she had contacted OWCP either before or
after the scheduled hearing explaining her failure to appear.
LEGAL PRECEDENT
A claimant dissatisfied with a decision on his or her claim is entitled, upon timely
request, to a hearing before an OWCP representative.7 The claimant may request either an oral
hearing or a review of the written record.8 Unless otherwise directed in writing by the claimant,
OWCP’s hearing representative will mail a notice of the time and place of the oral hearing to the
claimant and any representative at least 30 days before the scheduled date.9 A claimant who fails
to appear at a scheduled hearing may request in writing within 10 days after the date of the
hearing that another hearing be scheduled.10 Where good cause for failure to appear is shown,
another hearing will be scheduled and conducted by teleconference.11 The claimant’s failure to
request another hearing within 10 days shall constitute abandonment of the hearing request.12
Once an oral hearing is scheduled and OWCP’s hearing representative has mailed
appropriate written notice to the claimant and representative, OWCP will, upon submission of
proper written documentation of unavoidable serious scheduling conflicts (such as court-ordered
appearances/trials, jury duty, or previously scheduled outpatient procedures), entertain requests
from a claimant or his or her representative for rescheduling as long as the hearing can be
rescheduled on the same monthly docket, generally no more than seven days after the originally
7

5 U.S.C. § 8124(b); 20 C.F.R. § 10.616(a).

8

20 C.F.R. § 10.615.

9

Id. at § 10.617(b).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6g (October 2011).
11

Id.

12

Id.

4

scheduled time. In these instances, rescheduled hearings will usually be held via teleconference,
and the hearing representative will ensure that the file accurately reflects any action taken to
reschedule the hearing. When a request to postpone a scheduled hearing cannot be
accommodated on the docket, no further opportunity for an oral hearing will be provided.
Instead, the hearing will take the form of a review of the written record and a decision issued
accordingly.13
ANALYSIS
On an April 16, 2015 appeal request form appellant initially requested an oral hearing
with respect to OWCP’s April 9, 2015 decision. OWCP received her request on April 24, 2015,
and sent an acknowledgment letter that same day. On May 13, 2015 it received another appeal
request form from appellant. Instead of the previously requested oral hearing, appellant
requested rather a review of the written record. OWCP did not acknowledge receipt of
appellant’s latest appeal request form.
By letter dated November 2, 2015, OWCP advised appellant that the requested “oral
hearing” would be conducted by telephone on December 8, 2015. It provided additional
instructions on how and when to call in, including the toll-free access number and pass code.
Appellant did not participate in the scheduled December 8, 2015 hearing, nor is there any
indication from the record that she contacted OWCP between November 2 and December 23,
2015, when OWCP issued its decision finding that appellant abandoned her hearing request.
Once a request for a hearing has been received, the claimant may request a change in the
format from a hearing to a review of the written record by making a written request to the Branch
of Hearings and Review.14 OWCP will grant a request received by the Branch of Hearings and
Review within 30 days of: (1) the date OWCP acknowledges the initial hearing request; or
(2) the date OWCP issues a notice setting a date for an oral hearing, in cases where the initial
request was for, or was treated as a request for, an oral hearing.15 A request received beyond the
above-noted time frames will be subject to OWCP’s discretion.16 The decision to grant or deny a
change of format from a hearing to a review of the written record is not reviewable.17
The Board finds that appellant did not abandon her request for a hearing, as the record
reveals that she timely changed her request from an oral hearing to a review of the written
record. On May 13, 2015 OWCP received appellant’s request for a review of the written record,
which was within 30 days of its April 24, 2015 acknowledgment of appellant’s initial hearing

13

20 C.F.R. § 10.622(c).

14

Id. at § 10.616(b).

15

Id.

16

Id.

17

Id.

5

request.18 This was, therefore, a timely request. As it did not conduct a review of the written
record, the case must be remanded for a merit review and a de novo decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the December 23, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: May 23, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

18

The subsequent request for a review of the written record was also timely with respect to OWCP’s April 9,
2015 merit decision.

6


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
I.P., Appellant
and
DEPARTMENT OF THE NAVY,
SAN FRANCISCO NAVAL SHIPYARD,
San Francisco, CA, Employer
_________________________________________

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

Docket No. 11-2079
Issued: May 1, 2012

Case Submitted on the Record

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

JURISDICTION
On September 23, 2011 appellant filed a timely appeal of the September 13, 2011
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for an
oral hearing. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review this nonmerit decision.
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 In the most recent appeal, the Board
issued a decision on June 16, 2011 which affirmed OWCP’s April 28, 2010 decision finding that
appellant was not entitled to a schedule award and June 22, 2010 decision denying his request for
a review of the written record.3 The findings of fact as set forth in the Board’s prior decisions
are hereby incorporated by reference.
On June 21, 2011 appellant requested an oral hearing before an OWCP hearing
representative. In a September 13, 2011 decision, OWCP’s Branch of Hearings and Review
denied his request. It noted that the most recent merit decision in this case was issued by the
Board and that OWCP did not have jurisdiction to review decisions of the Board. It further
reviewed appellant’s request under its discretionary authority and found that the issue regarding
his entitlement to a schedule award could equally well be addressed by requesting
reconsideration and submitting new evidence.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides:
“Before review under section 8128(a) of this title (related to reconsideration), a
claimant for compensation not satisfied with a decision of the Secretary under
subsection(a) of this section is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on [his] claim before a
representative of the Secretary.”4
FECA provides OWCP with original jurisdiction in the processing of compensation
claims and section 8124(a) provides it with the duty and authority to issue an initial decision on
an employee’s claim for compensation.5 Once an initial decision is made in a compensation
2

OWCP accepted that appellant, a boilermaker, sustained a back contusion and abrasion as a result of a
September 15, 1959 injury which incurred when a sailor dropped a valve from 10 feet above onto his back for the
closed period September 15 through 17, 1959. It denied his claim for treatment of a degenerative low back
condition or lost compensation occurring alter September 17, 1959 as the medical evidence did not establish that his
current back condition and resultant disability were causally related to his accepted September 15, 1959 injury. In a
November 30, 2006 decision, the Board affirmed OWCP’s September 12, 2005 decision which found that appellant
failed to submit sufficient medical evidence to establish that his current back condition and resultant disability were
causally related to his accepted September 15, 1959 employment-related injuries. The Board also affirmed OWCP’s
November 16, 2005 decision which denied his request for an oral hearing. Docket No. 06-1652 (issued
November 30, 2006). In an October 1, 2007 decision, the Board affirmed OWCP’s April 2, 2007 decision which
again found that appellant failed to establish a causal relationship between his current back condition and resultant
disability and the accepted employment-related injuries. Docket No. 07-1304 (issued October 1, 2007). In a
January 14, 2009 decision, the Board affirmed OWCP’s May 14, 2008 decision denying appellant’s request for
further merit review of his claim. Docket No. 08-1800 (issued January 14, 2009).
3

Docket No. 10-847 (issued June 16, 2011).

4

5 U.S.C. § 8124(b)(1).

5

Id.

2

case, the claimant’s rights arise by which the claimant may seek further review of his claim, the
right to a hearing or review of the written record before OWCP, the right to reconsideration
before OWCP or an appeal to the Board. The Board has clarified that OWCP does not have the
discretionary authority to grant a request for hearing immediately following a Board decision.
OWCP’s Branch of Hearings and Review may not assume jurisdiction in the claims process
absent a final adverse decision by the Director of OWCP.6 Following the Board’s review of
OWCP’s decision, there is no final decision of it left unreviewed over which the Branch of
Hearings and Review can assume jurisdiction to exercise its discretionary authority.7
ANALYSIS
The Board previously reviewed the merits of the case and issued a decision on June 16,
2011 which affirmed OWCP’s decision finding that appellant was not entitled to a schedule
award. OWCP did not subsequently issue a final decision on the merits. On June 21, 2011
appellant requested a hearing before OWCP’s Branch of Hearings and Review. The Board has
held that, following its review of OWCP’s decision, a claimant does not have the right under 5
U.S.C. § 8124(b)(1) to request an oral hearing or review of the written record in the absence of a
final OWCP decision.8 The Board finds that appellant had no right to an oral hearing following
the Board’s June 16, 2011 decision. There is no final OWCP decision left unreviewed over
which the Branch of Hearings and Review could assume jurisdiction.9 The Board finds,
therefore, that OWCP properly denied appellant’s request for a hearing.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing
before its hearing representative.

6

Patricia G. Aiken, 57 ECAB 441 (2006); Eileen A. Nelson, 46 ECAB 377 (1994).

7

J.H., Docket No. 09-1406 (issued January 14, 2010); Robert N. Thomas, 51 ECAB 180 (1999).

8

Id.

9

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the September 13, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 1, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.A., Appellant
and
DEPARTMENT OF DEFENSE,
San Antonio, TX, Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1826
Issued: June 25, 2013

Case Submitted on the Record

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

JURISDICTION
On August 31, 2012 appellant, through her attorney, filed a timely appeal of a May 7,
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 to consider the merits of the case.
ISSUE
The issue is whether OWCP met its burden to establish that the constructed position of
teller represented appellant’s wage-earning capacity.
On appeal, counsel argues that the selected position was not within appellant’s physical
or vocational abilities. He further argued that there is an unresolved conflict of medical opinion
and that OWCP should have accepted fibromyalgia as work related.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 16, 2001 appellant, then a 42-year-old cashier, filed a traumatic injury claim
alleging that she sustained shoulder and neck pain that day in the performance of duty. OWCP
accepted her claim for cervical strain on January 24, 2002. It accepted a right shoulder sprain as
work related on January 21, 2003. Appellant underwent a right shoulder arthroscopic
acromioplasty with subacromial decompression on February 18, 2003. She returned to light-duty
work on July 9, 2003. In a note dated December 11, 2003, appellant’s physician stated that she
had permanent restrictions of 30 minutes of upper extremity activity per hour and lifting no more
than 25 pounds.
By decision dated March 5, 2004, appellant received a schedule award for 11 percent
impairment of her right upper extremity.
Appellant underwent a functional capacity evaluation on April 20, 2004 which
demonstrated that she was capable of performing medium work of lifting 10 pounds consistently
and 25 pounds frequently.
Appellant underwent an electromyogram (EMG) and nerve conduction study on June 9,
2005 which demonstrated mild median sensory nerve entrapment at the left wrist. The
remainder of her upper extremity studies were normal. Appellant underwent a second functional
capacity evaluation on June 22, 2005 which again indicated that she was capable of performing
medium work.
OWCP referred appellant for vocational rehabilitation services on January 27, 2006. The
vocational rehabilitation counselor found that she was a high school graduate who had worked as
cashier checker, fast food worker and sales clerk.
In a letter dated August 17, 2006, Dr. Timothy V. Sandell, a physician Board-certified in
physical medicine and rehabilitation, stated that appellant required equal work to rest time. He
stated that she could not do repetitive work more than 15 minutes at a time and then required 15
minutes of rest or nonrepetitive activity. Dr. Sandell stated that there was also a concern
regarding her cognitive function and ability to drive to and from work due to her medications.
On April 26, 2007 OWCP accepted the additional condition of calcifying tendinitis of the right
shoulder as due to appellant’s employment.
On May 1, 2007 OWCP referred appellant for a second opinion evaluation to
Dr. Hendrick J. Arnold, a Board-certified orthopedic surgeon. In a report dated May 31, 2007,
Dr. Arnold noted her history of repetitive lifting as a cashier. On examination he stated that
appellant had full range of motion and no findings other than tenderness in the neck and right
shoulder region. Dr. Arnold stated that she should not drive while taking her prescribed
medications and should not have to do mentally exacting maneuvers such as cashiering or
figuring change and would not be able to do reports. He indicated that appellant could work
eight hours a day with restrictions including no reaching above the shoulder and no operating a
motor vehicle while on her medication. Dr. Arnold found that appellant could push, pull and lift
35 pounds, eight hours a day.

2

On April 2, 2009 appellant underwent a second opinion examination by Dr. William V.
Watson, a Board-certified orthopedic surgeon, who noted appellant’s history of injury and
medical history. Dr. Watson found tenderness of the right shoulder, cervical spine and right
trapezial muscle with no other objective findings. He stated that appellant’s medications of
Percocet and Valium should not be used when she was driving or any activities involving higher
cognitive skills. Dr. Watson recommended Tramadol for pain and Flexeril for muscle relaxer as
medications that would not reduce her work capacity. He indicated that appellant could work
with no reaching above the shoulder, no operating a motor vehicle when on medication and
pushing, pulling and lifting up to 35 pounds. Dr. Watson did not indicate that appellant required
any breaks.
In a report dated February 18, 2010, Dr. Sandell diagnosed cervical strain, right upper
extremity pain with history of rotator cuff repair and carpal tunnel release as well as left carpal
tunnel syndrome and chronic pain/fibromyalgia.
OWCP referred appellant for vocational rehabilitation counseling on August 31, 2010. In
a letter dated September 28, 2010, it noted that she refused to participate in vocational
rehabilitation and explained the penalties for failing to cooperate with vocational rehabilitation.
Appellant signed a vocational plan on October 28, 2010 and chose the goals of bank teller and
sales attendant.
On February 23, 2011 OWCP noted that in addition to the accepted conditions of neck
sprain, right shoulder sprain and right shoulder tendinitis, appellant had another claim which had
been accepted for right carpal tunnel syndrome. It noted that left carpal tunnel syndrome was not
an accepted condition and requested additional information if she believed that she had
developed a consequential injury.
The vocational rehabilitation counselor identified the position of teller as physically and
vocationally appropriate for appellant. The position required light strength levels including
occasionally lifting up to 20 pounds and frequently lifting up to 10 pounds within appellant’s
established work restrictions. The vocational rehabilitation counselor concluded that appellant’s
high school diploma and a work history of handling money, balancing cash drawers and working
with customers as well as her nine years’ experience as cashier-checker met the specific
vocational preparation for the position of teller. The vocational rehabilitation counselor further
found that the job was being performed in sufficient numbers as to make it reasonably available
to appellant according to Pikes Peake Workforce Center. She noted full-time openings with
three employers.
On May 3, 2011 Dr. Sandell repeated his prior work restrictions of 15 minutes of
repetitive work with 15 minutes rest time and again directed appellant to exercise caution getting
to and from work with taking medications. He recommended a functional capacity evaluation.
The vocational rehabilitation counselor submitted a copy of appellant’s résumé, which
included a statement that she received a high school diploma in 1977.
In a letter dated June 13, 2011, OWCP proposed to reduce appellant’s compensation
benefits based on her capacity to earn wages as a teller. It allowed 30 days for a response.

3

Counsel responded on July 11, 2011 and requested that the additional condition of fibromyalgia
be accepted, alleged that there was an unresolved conflict of medical opinion evidence between
Dr. Sandell and Dr. Watson and stated that the position did not comport with Dr. Watson’s
restrictions of no reaching above the shoulder and no driving to and from work on medications.
He further alleged that the specific vocational preparation required of five to six years’
experience was not met.
By decision dated September 21, 2011, OWCP finalized the proposed reduction of
appellant’s compensation effective September 25, 2011. It found that the position of teller was
medically and vocationally suitable for her and reasonably represented her wage-earning
capacity.
Counsel requested an oral hearing before an OWCP hearing representative on
October 19, 2011. Appellant testified at the oral hearing on February 16, 2012 and stated that
she used several medications for treatment of her symptoms resulting in drowsiness. She stated
that her physician restricted her from operating a motor vehicle. Appellant stated that she did not
graduate from high school only completing the eleventh grade.
In a report dated March 21, 2012, Dr. Sandell stated that appellant’s diagnosis of
fibromyalgia came about over time beginning in 2007. He recommended restrictions due to this
condition including limiting repetitive activity to equal work and rest time or 15 minutes of
repetitive work at a time.
By decision dated May 7, 2012, an OWCP hearing representative found that the position
of teller fairly and reasonably represented appellant’s wage-earning capacity.
LEGAL PRECEDENT
Section 8115 of FECA2 provides that wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent wage-earning
capacity or the employee has no actual earnings, his or her wage-earning capacity is determined
with due regard to the nature of his or her injury, the degree of physical impairment, his or her
usual employment, his or her age, his or her qualifications for other employment, the availability of
suitable employment and other factors or circumstances which may affect his or her wage-earning
capacity in his or her disabled condition.
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized by
OWCP for selection of a position, listed in the Department of Labor’s Dictionary of Occupational
Titles or otherwise available in the open market, that fits that employee’s capabilities with regard to
his or her physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the open labor market should be made through
contact with the state employment service or other applicable service. Finally, application of the

2

5 U.S.C. §§ 8101-8193, 8115.

4

principles set forth in Albert C. Shadrick3 will result in the percentage of the employee’s loss of
wage-earning capacity. The basic range of compensation paid under FECA is 66 2/3 percent of the
injured employee’s monthly pay.4
ANALYSIS
The Board finds that OWCP met its burden of proof to reduce appellant’s compensation
benefits based on her capacity to earn wages in the constructed position of teller.
OWCP accepted appellant’s claims for cervical and right shoulder strain, right shoulder
calcifying tendinitis and right carpal tunnel syndrome. Appellant’s attending physician,
Dr. Sandell, repeatedly found that she could work with 15 minutes of repetitive activity followed
by 15 minutes of rest. The Board notes that Dr. Sandell’s reports from August 2006 through
March 21, 2012 are generally only brief statements on treatment and not sufficient to establish
appellant’s disability for work due to the lack of supporting physical findings and medical
reasoning. In a March 21, 2012 report, Dr. Sandell attributed appellant’s work restrictions of 15
minutes rest and 15 minutes work to her fibromyalgia, a nonemployment-related condition.
Dr. Arnold and Dr. Watson both second opinion physicians, found no objective findings
on examination. Each opined that appellant could work with no reaching above the shoulder and
a pushing, pulling and lifting limitation of 35 pounds. Dr. Arnold and Dr. Watson noted that
appellant should not operate a motor vehicle while on medications. Neither physician supported
the need for breaks. The Board finds that these reports represent the weight of the medical
opinion evidence and establish that appellant could physically perform the duties of a teller
which requires light strength levels of lifting up to 20 pounds occasionally and 10 pounds
frequently. Contrary to counsel’s argument, the Board finds no conflict of medical opinion
evidence and that the position was within appellant’s medical restrictions.
The Board also finds that the identified position of teller was vocationally suitable. The
vocational rehabilitation counselor stated that appellant met the specific vocational preparation
of five to six months to one year as she had a high school diploma and a work history of handling
money, balancing cash drawers and working with customers. She stated that appellant’s nine
years’ experience as cashier-checker would meet the specific vocational preparation for the
position of teller. The vocational rehabilitation counselor further found that the job was being
performed in sufficient numbers as to make it reasonably available to appellant according to
Pikes Peake Workforce Center. She noted full-time openings with three employers.5 Because
the vocational rehabilitation counselor is an expert in the field of vocational rehabilitation,
OWCP may rely on his or her opinion as to whether the job is reasonably available and

3

Id. at 376.

4

Karen L. Lonon-Jones, 50 ECAB 293 (1999).

5

The lack of current job openings does not equate to a finding that the position was not performed in sufficient
numbers to be considered reasonably available. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.8d (October 2009). M.P., Docket No. 121458 (issued May 9, 2013).

5

vocationally suitable.6 The Board finds that OWCP properly reduced appellant’s wage-loss
compensation based on her capacity to earn wages as teller.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that the position of teller represented appellant’s wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the May 7, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 25, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6

Id.

6


United States Department of Labor
Employees’ Compensation Appeals Board
____________________________________________
E.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CENTRAL ARKANSAS VETERANS
HEALTHCARE SYSTEM, North Little Rock, AR,
Employer
____________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 10-2213
Issued: June 13, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 30, 2010 appellant, through his representative, filed a timely appeal from the
July 30, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP), which
denied modification of his schedule award. Pursuant to the Federal Employees’ Compensation
Act (FECA)1 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 a 25 percent impairment of his left lower
limb due to a total hip replacement.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 5, 2008 appellant, then a 50-year-old nursing assistant, sustained an injury
in the performance of duty when a patient released a safety belt, stood up and grabbed him, and
they both fell to the floor with the patient landing on top of him. OWCP accepted his claim for
left hip contusion, right knee contusion and aggravation of mechanical loosening of a prosthetic
left hip joint. It authorized a revision left total hip arthroscopy, which was performed on
October 1, 2008.
Appellant claimed a schedule award. Dr. D. Gordon Newborn, the attending orthopedic
surgeon, found that appellant had a 25 percent impairment of his left lower limb due to his total
hip replacement. He noted that the hip replacement was in good position and was both stable
and functional. OWCP’s medical adviser reviewed Dr. Newborn’s evaluation and agreed with
the impairment rating.
On March 23, 2010 OWCP issued a schedule award for a 25 percent impairment of
appellant’s left lower limb.
Appellant requested reconsideration and submitted a May 10, 2010 impairment rating
from Dr. Jon H. Dodson, a Board-certified radiologist, who noted a marked progression of
appellant’s hip pathology. Dr. Dodson found a 74 percent impairment of the hip, which
translated to a 30 percent whole man impairment.
OWCP’s medical adviser reviewed Dr. Dodson’s rating and noted that the doctor’s fourline note did not follow the three-step process required to estimate impairment properly, nor did
it provide the information necessary to rate appellant’s impairment. Further, the medical adviser
noted that under no circumstances would a 74 percent impairment be possible for a total hip
replacement.
In a decision dated July 30, 2010, OWCP denied modification of appellant’s schedule
award. It found that Dr. Dodson’s report did not establish an increase in appellant’s impairment
rating.
LEGAL PRECEDENT
Section 8107 of FECA2 authorizes the payment of schedule awards for the loss or loss of
use of specified members, organs or functions of the body. Such loss or loss of use is known as
permanent impairment. OWCP evaluates the degree of permanent impairment according to the
standards set forth in the specified edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment.3

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, the Office should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).

2

ANALYSIS
Diagnosis-based impairment is the primary method of evaluation of the lower limb.4
Regional grids in the A.M.A., Guides list various diagnoses and classes of impairment. Table
16-4, page 515 of the A.M.A., Guides shows three classes of impairment for a total hip
replacement. Class 2 represents a good result, with good position, stability and function. This is
what the operating surgeon, Dr. Newborn, reported. The default impairment value for a class 2
or good result is 25 percent of the lower limb. Indeed, this is the highest impairment rating
possible for a class 2 impairment. OWCP properly awarded appellant a schedule award for a 25
percent impairment of his left lower limb.
The subsequent report from the radiologist, Dr. Dodson, provided no basis for modifying
appellant’s schedule award. As OWCP’s medical adviser observed, Dr. Dodson’s report was
quite brief. Apart from noting a marked progression of hip pathology (he did not mention which
hip), Dr. Dodson provided no information that would allow a reclassification of appellant’s left
lower limb impairment. He did not discuss positioning of the hip replacement, stability, motion
deficits or infection. Dr. Dodson simply provided an impairment rating of 74 percent, a rating
that Table 16-4 does not allow but which would nonetheless indicate a class 4 or very severe
problem and poor result from the total hip replacement.
The Board finds that Dr. Dodson’s impairment rating has no probative value and does not
establish an increased impairment of appellant’s left lower limb. The Board will therefore affirm
OWCP’s July 30, 2010 decision denying modification of appellant’s schedule award.
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 the medical evidence establishes no more than a 25 percent
impairment of appellant’s left lower limb.5

4

A.M.A., Guides 497 (6th ed. 2009).

5

FECA does not authorize the payment of schedule awards for impairment of “the whole person.” Ernest P.
Govednick, 27 ECAB 77 (1975). Payment is authorized only for the permanent impairment of specified members,
organs or functions of the body.

3

ORDER
IT IS HEREBY ORDERED THAT the July 30, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 13, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4