United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Placida, FL, Employer
__________________________________________

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

Docket No. 12-1619
Issued: April 3, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On July 25, 2012 appellant, through her attorney, filed a timely appeal from the March 9
and June 29, 2012 merit decisions of the Office of Workers’ Compensation Programs (OWCP)
denying her claim for compensation. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant established that she sustained an employment-related
injury on January 9, 2012, as alleged.
On appeal appellant, through counsel, contends that OWCP’s decisions are contrary to
fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 9, 2012 appellant, then a 46-year-old sales and service associate, filed a
traumatic injury claim alleging that she picked up a package and stepped off a mat when she felt
a sharp pain in her right and middle low back. She attached an attending physician’s form
completed by Dr. Andrew Eisenberg, a Board-certified family practitioner, who saw appellant on
January 9, 2012 in the Emergency Department. Dr. Eisenberg diagnosed sciatica and checked a
box indicating that he believed that her condition was caused or aggravated by the employment
activity described. He noted that appellant should be reevaluated prior to reinstatement to work.
In a January 14, 2012 Florida Workers’ Compensation Form, Dr. Dale Greenberg, a
Board-certified orthopedic surgeon, listed the date of accident as January 9, 2012, diagnosed low
back pain and concluded that the condition was work related. In a January 24, 2012 report, he
again assessed appellant with low back pain, and indicated that he would see her for a follow-up
after a magnetic resonance imaging (MRI) scan and x-rays. In a duty status report of the same
date, Dr. Greenberg stated that she was advised to be off work. In response to questions sent by
OWCP on January 30, 2012, he stated that appellant was injured at work but he was unable to
determine if her sciatica was aggravated by the work injury of January 9, 2012.
By decision dated March 9, 2012, OWCP denied appellant’s claim. It found that the
medical evidence did not establish her back condition was related to the accepted incident of
January 9, 2012.
Thereafter, OWCP received a January 31, 2012 report from Dr. Greenberg who reviewed
appellant’s x-rays and set forth findings upon physical examination. Dr. Greenberg noted that
appellant’s MRI scan revealed some mild disc degeneration and the possibility of a pilonidal
cyst. On physical examination there was tenderness over the lower lumbar spine radiating into
the right buttock region and tenderness over the right gluteal area, right lower lumbar spine and
lower lumbar areas. Dr. Greenberg noted that appellant had pain with hyperextension and trunk
rotation and pain in a radicular fashion radiating down her right leg. He listed an impression of
low back pain with right lower extremity radiculopathy and possible pilonidal cyst.
Dr. Greenberg referred appellant to Dr. Gregory P. Gebauer, a Board-certified orthopedic
surgeon. In a March 14, 2012 report, Dr. Gebauer noted that appellant’s MRI scan revealed disc
degeneration at the L4-5 and L5-S1 levels with no evidence of significant neural compression.
He listed an impression of radiculopathy and sacroiliac joint pain. Dr. Gebauer noted that,
although appellant did have radicular symptoms, she had no significant neural compression. He
recommended physical therapy and pain medication. In a March 28, 2012 report, Dr. Gebauer
noted that appellant continued to have debilitating pain. He diagnosed radiculopathy with S1
joint and low back pain. Dr. Gebauer opined that given the awkward step, the “landing funny,”
her pain developed while at work and was causally related to the employment incident.
On April 5, 2012 appellant requested reconsideration.
In an April 25, 2012 report, Dr. Gebauer noted that appellant continued to have severe
pain. He reiterated the diagnosis of radiculopathy and S1 joint pain.

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By decision dated June 29, 2012, OWCP denied appellant’s claim.
modification of the March 9, 2012 decision.

It denied

LEGAL PRECEDENT
OWCP’s regulations define a traumatic injury as a condition of the body caused by a
specific event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain, which is identifiable as to
time and place of occurrence and member or function of the body affected.2
An employee seeking benefits under FECA has the burden of establishing 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 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 or her
burden of proof to establish the fact that he or she sustained an injury in the performance of duty,
an employee must submit sufficient evidence to establish that he or she 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
factual and medical background of the claimant, must be one of reasonable medical certainty and

2

20 C.F.R. § 10.5(ee).

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) (June 1995).

5

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

6

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

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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
Appellant alleged that she sustained a back injury on January 9, 2012 when she stepped
off a mat and felt a sharp pain. OWCP accepted that the employment incident occurred as
alleged.
OWCP denied appellant’s claim because it found that the medical evidence was not
sufficient to establish a back condition causally related to this accepted incident. The Board
notes that the medical evidence submitted by appellant is not sufficiently well rationalized or
detailed to establish that she sustained a back condition causally related to the accepted incident.
The evidence reflects that appellant sought medical attention on the date of the January 9, 2012
employment incident. Dr. Eisenberg saw appellant in the emergency department on that date;
but he did not give a detailed report or offer adequate medical rationale in support of causal
relation. He noted with a check mark that her condition was employment related. The Board has
held that such forms are of diminished probative value on the issue of causal relation without
further detail or explanation.8
Dr. Greenberg diagnosed low back pain and a possible pilonidal cyst. The Board has
consistently held that pain is generally a symptom, not a firm medical diagnosis.9 A medical
report is of limited probative value on the issue of causal relationship if it contains a conclusion
regarding causal relationship which is unsupported by medical rationale.10 Dr. Greenberg did
not explain how the accepted employment incident caused or contributed to a diagnosed injury.
Lacking this medical explanation, the Board finds that his report is insufficient to establish
appellant’s claim.
Dr. Gebauer noted generally that appellant’s work injury caused her symptoms due to the
fact that she had previous similar pain prior to the awkward step at work. However, he did not
provide a full history of her back condition or a specific medical diagnosis.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition were caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.11 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.

7

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

8

See Lester Covington, 47 ECAB 539 (1996).

9

C.F., Docket No. 08-1102 (issued October 10, 2008); Robert Broome, 55 ECAB 339 (2004).

10

N.C., Docket No. 12-761 (issued November 1, 2012).

11

M.I., Docket No. 12-1519 (issued February 8, 2013).

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Consequently, appellant has not met her burden of proof in establishing that she sustained an
employment-related injury on January 9, 2012.
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 failed to establish that she sustained an employmentrelated injury on January 9, 2012, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 29 and March 9, 2012 are affirmed.
Issued: April 3, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.N., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, Virginia Beach, VA,
Employer
__________________________________________

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

Docket No. 08-1162
Issued: September 11, 2008

Case Submitted on the Record

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

JURISDICTION
On March 11, 2008 appellant filed a timely appeal from May 29, 2007 and February 19,
2008 decisions of the Office of Workers’ Compensation Programs, denying his claim for an
injury on April 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 an injury on April 6, 2007 while in the
performance of duty.
FACTUAL HISTORY
On April 16, 2007 appellant, then a 46-year-old able seaman, filed a traumatic injury
claim alleging that he sustained a fractured nose, facial contusion, eye injury and left leg injury
on April 6, 2007 when he was assaulted in a restroom by two men while undergoing training at
the Merchant Marine Fire Academy in New Jersey. He was terminated from his job on April 13,

2007 for gross misconduct. An April 6, 2007 police report indicates that Michael Daly and Brian
Kaczka alleged that appellant approached Mr. Kaczka in the restroom and began accusing him of
calling appellant a “piece of shit” earlier in firefighting class.1 Mr. Daly alleged that he tried to
stop the argument but appellant struck him in the mouth. The police report noted a minor
laceration on the left side of Mr. Daly’s mouth. Instructors entered the room and broke up the
fight. Appellant alleged that he was in the restroom when one of the men called him “black.”
Mr. Daly and Mr. Kaczka stated that they never called him “black.” They called him “Blanco,”
which was the name he used in class. Appellant alleged that the two men jumped him, pushed
his face into the wall, he fell to the ground and they began kicking him. He denied that he struck
Mr. Daly.2 Appellant filed a complaint against Mr. Kaczka, alleging assault, in a New Jersey
court. The resolution of the complaint is not of record.
On April 26, 2007 the Office asked appellant to submit additional evidence within 30
days, including a full description of the events and circumstances leading up to the alleged
assault on April 6, 2007, how the injury occurred and a medical report explaining how his
medical conditions were causally related to the April 6, 2007 incident.
April 6, 2007 emergency room records from a New Jersey hospital indicated diagnoses of
a fractured nose, facial contusion and a soft tissue contusion of appellant’s left leg.
By decision dated May 29, 2007, the Office denied appellant’s claim on the grounds that
his injury on April 6, 2007 arose out of his willful misconduct and did not constitute an injury
sustained while in the performance of duty.
April 21, 2007 emergency room records from a Louisiana hospital, appellant’s home
state, indicated complaints of a headache, nausea, chest pain, abdominal pain and a “black spot”
in his peripheral vision. He attributed these conditions to the April 6, 2007 assault at the fire
training academy. A physician indicated that appellant’s headaches were due to an earlier
concussion. The discharge diagnoses were postconcussion syndrome and atypical chest pain.
Emergency room records dated April 28, 2007 indicated that appellant had a left knee abscess
which he attributed to being kicked during the incident on April 6, 2007.
In a May 21, 2007 form report, Dr. Mary E. Hood, an attending optometrist who
examined appellant on April 11, 2007, provided a history that he was attacked and struck in the
right eye on April 4, 2007. She diagnosed a right corneal abrasion and prescribed eyedrops.
Other nonwork-related eye conditions included hyperopia, astigmatism and presbyopia.
Dr. Hood checked the block marked “no” in answer to the question as to whether the diagnosed
conditions were caused or aggravated by appellant’s employment.
In a May 24, 2007 form report, Dr. Can N. Tran, an ophthalmologist, indicated that he
examined appellant on April 18, 2007 for seeing “spots” in his right eye after being struck in his
eye on April 4, 2007 while in New Jersey. He diagnosed a posterior vitreous detachment in the
1

Mr. Kaczka alleged that during the firefighting class he was joking with appellant but there was a
miscommunication because English is not appellant’s first language.
2

At the hearing held in this case, appellant indicated that he might have struck Mr. Daly while pushing him away.

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right eye. Dr. Tran checked the block marked “no” in answer to the question as to whether the
diagnosed condition was caused or aggravated by appellant’s employment.
Appellant requested an oral hearing that was held on December 5, 2007.
By decision dated February 19, 2008, an Office hearing representative denied appellant’s
claim on the grounds that the medical evidence failed to establish that his injuries were causally
related to the April 6, 2007 employment incident. She affirmed the May 29, 2007 Office
decision but insightfully modified it to reflect that the evidence did not establish that the April 6,
2007 incident arose out of appellant’s willful misconduct.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden to establish the essential elements of his claim including the fact that the individual is an
employee of the United States within the meaning of the Act, that the claim was timely filed, 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.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged.5 Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.6 An employee may establish
that the employment incident occurred as alleged but fail to show that his disability or condition
relates to the employment incident.
To establish a causal relationship between a claimant’s condition, any attendant disability
claimed and the employment event or incident, he must submit rationalized medical opinion
evidence based on a complete factual and medical background supporting such a causal
relationship. Rationalized medical opinion evidence is medical evidence which includes a
physician’s opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.7
3

5 U.S.C. §§ 8101-8193.

4

Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

Shirley A. Temple, 48 ECAB 404 (1997).

7

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, supra note 6.

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ANALYSIS
In its February 19, 2008 merit decision, the Office accepted that appellant experienced
the claimed incident on April 6, 2007 but found that the medical evidence did not establish that
he sustained an injury causally related to the incident.
Emergency room records dated the day of the incident, April 6, 2007, indicated diagnoses
of a fractured nose, facial contusion and a soft tissue contusion of appellant’s left leg. However,
there was no rationalized medical opinion as to how these conditions were causally related to the
April 6, 2007 work incident. Therefore, these records are not sufficient to establish that
appellant sustained a medical condition as a result of the April 6, 2007 incident.
April 21, 2007 emergency room records indicated complaints of a headache, nausea,
chest pain, abdominal pain and a “black spot” in appellant’s peripheral vision and attributed
these conditions to the April 6, 2007 work incident. A physician indicated that appellant’s
headaches were due to an earlier concussion. The discharge diagnoses were postconcussion
syndrome and atypical chest pain. Emergency room records dated April 28, 2007 indicated that
appellant had a left knee abscess which appellant attributed to being kicked during the April 6,
2007 work incident. These emergency room reports contain a description of appellant’s
symptoms, diagnoses and appellant’s opinion that the conditions were caused by the April 6,
2007 fight. However, there is no physician’s opinion in these records with a detailed description
of the April 6, 2007 altercation and a rationalized explanation as to how the diagnosed conditions
were causally related to the April 6, 2007 incident. Therefore, these hospital records are not
sufficient to establish that appellant sustained a work-related medical condition on April 6, 2007.
Dr. Hood examined appellant on April 11, 2007 and provided a history that he was
attacked and struck in the right eye on April 4, 2007. Her report is not based upon an accurate
factual background as the altercation occurred on April 6, 2007. She diagnosed a right corneal
abrasion, hyperopia, astigmatism and presbyopia and checked the block marked “no” in answer
to the question as to whether the diagnosed conditions were caused or aggravated by appellant’s
employment. As Dr. Hood’s opinion was that appellant’s eye conditions were not causally
related to the April 6, 2007 work incident, her report does not support his claim of a work-related
injury on that date.
Dr. Tran examined appellant on April 18, 2007 for seeing “spots” after being struck in his
right eye on April 6, 2007 while in New Jersey. He diagnosed a posterior vitreous detachment in
the right eye and checked the block marked “no” in answer to the question as to whether the
diagnosed conditions were caused or aggravated by appellant’s employment. Because Dr. Tran
indicated that appellant’s eye condition was not causally related to the April 6, 2007 work
incident, his report does not establish that he sustained an employment-related injury on that
date.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained an injury on April 6, 2007 while in the performance of duty.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 19, 2008 and May 29, 2007 are affirmed.
Issued: September 11, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Albany, NY, Employer
__________________________________________

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Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1425
Issued: March 29, 2017

Case Submitted on the Record

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

JURISDICTION
On June 28, 2016 appellant, through counsel, filed a timely appeal from a January 5,
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 over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish total disability
beginning January 11, 2006 and continuing due to her accepted work injuries.
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.

FACTUAL HISTORY
On May 12, 2007 appellant, then a 42-year-old bundle parcel sorter, filed an occupational
disease claim (Form CA-2) alleging bilateral upper extremity conditions due to performing her
repetitive work duties over time. She indicated that she first became aware of her claimed
condition on August 21, 2004 and that she also first realized on that date that it was caused or
aggravated by her employment.
Appellant stopped work on January 11, 2006.3 On February 12, 2010 she filed a claim
for compensation (Form CA-7) for the period January 11, 2006 to January 1, 2007 due to her
accepted work injuries.4
In a report dated January 3, 2007, Dr. Mahender Goriganti, an attending Board-certified
physical medicine/rehabilitation physician and osteopath, noted that he had been treating
appellant for multiple work-related conditions of her upper extremities. He indicated that
appellant was able to work part time for about four hours. Dr. Goriganti noted that appellant was
disabled for four complete days and then subsequently returned in a limited-duty capacity for
four hours a day with significant limitations of repetitive work and limitations as to the weights
that she could handle.
In a February 28, 2007 report, Dr. Goriganti diagnosed lateral epicondylitis in both
elbows and cubital tunnel syndrome of the left elbow. He noted that, due to her injuries,
appellant was capable of moderate-duty work only. Dr. Goriganti opined that occasional lifting
and carrying of up to 10 pounds was acceptable, but that repetitive motions of the wrists and
hands should be avoided. Appellant could work five to seven days per week for four to six hours
per day.
On April 26, 2007 Dr. Goriganti discussed appellant’s factual and medical history. He
noted that appellant had reported that her limited-duty position expired effective
January 11, 2006. In reports dated August 31, 2007, October 31, 2008, and November 12, 2009,
Dr. Goriganti indicated that appellant had left shoulder impingement syndrome, bilateral lateral
epicondylitis, and bilateral carpal tunnel syndrome due to performing her repetitive work duties.
OWCP accepted appellant’s claim for aggravation of right lateral epicondylitis, right
elbow strain, and left lateral epicondylitis.
Dr. Goriganti produced numerous disability certificates, dated between February 23,
2006 and October 17, 2012, in which he found that appellant could perform light-duty work. He
opined that appellant could occasionally engage in lifting and carrying, but that she could not
3

When she stopped work, appellant was working in a limited-duty job due to a prior accepted injury. The job did
not require repetitive motion of her neck or arms. Under a separate File No. xxxxxx599, OWCP accepted that on
August 21, 2004 appellant sustained a right elbow strain when her right arm was struck by a catalogue. Appellant
did not receive any disability compensation due to the August 21, 2004 injury. This file number has been doubled
into the current file number.
4

Appellant filed numerous CA-7 forms through 2014 claiming that she continued to have disability due to her
accepted work injuries after January 1, 2007.

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engage in repetitious work related to her neck and upper extremities. In duty status reports
(Form CA-17) dated June 20, 2011 and October 17, 2012, Dr. Goriganti indicated that appellant
should avoid repetitious work due to her bilateral epicondylitis, shoulder pain, and forearm pain.
By decision dated October 7, 2013, OWCP denied appellant’s claim for disability finding
that she had not submitted sufficient evidence to establish total disability beginning January 11,
2006 and continuing due to her accepted work injuries.
Appellant requested a telephonic hearing with an OWCP hearing representative which
was held on April 9, 2014. In a decision dated June 5, 2014, OWCP’s hearing representative set
aside the October 7, 2013 decision and remanded the case for an examination by an OWCP
referral physician, to be followed by the issuance of a de novo decision.
On remand OWCP referred appellant to Dr. Gregory Shankman, a Board-certified
orthopedic surgeon, for an examination and opinion on her work-related disability. In his
July 22, 2014 report, Dr. Shankman discussed appellant’s factual and medical history and
provided results on physical examination. He indicated that appellant exhibited normal
movement in all planes of both her elbows. Appellant had intact radial, median, and ulnar nerve
function and good strength in the muscle groups of both upper extremities. Dr. Shankman
reported that appellant had good grip strength in both hands and that there was no motor or
sensory deficit in either upper extremity. Appellant exhibited no tenderness in any of the
epicondyles and there was no swelling/effusion or medial/lateral instability in the elbows.
Dr. Shankman opined that there was no objective evidence that appellant was disabled during the
time period from 2006 to the present due to the accepted work injuries. He pointed out that
appellant had very mild epicondylitis in both elbows, but that her condition did not support any
degree of disability from 2006 to the present. In an attached July 22, 2014 work restrictions
form, Dr. Shankman indicated that appellant could perform her usual job.
In an October 8, 2014 decision, OWCP denied appellant’s claim for work-related total
disability beginning January 11, 2006 and continuing. It found that appellant had failed to
submit sufficient medical evidence to support her disability claim and that the opinion of
Dr. Shankman established no work-related disability from 2006 to the present.
In an October 7, 2015 letter received on that date, appellant, through counsel, requested
reconsideration of OWCP’s October 8, 2014 decision denying her disability claim. Counsel
argued that the reports of Dr. Goriganti established appellant’s claim for work-related total
disability beginning January 11, 2006 and continuing. He also asserted that appellant sustained
disability because her limited-duty job was withdrawn effective January 11, 2006.
By decision dated January 5, 2016, OWCP denied modification of its October 8, 2014
decision denying appellant’s claim for work-related total disability beginning January 11, 2006
and continuing.
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

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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.5 In general the term disability under FECA means
incapacity because of injury in employment to earn the wages which the employee was receiving
at the time of such injury.6 This meaning, for brevity, is expressed as disability for work.7
The medical evidence required to establish a causal relationship between a claimed
period of disability and an employment injury is rationalized medical opinion evidence. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.8
ANALYSIS
OWCP accepted appellant’s occupational disease claim for aggravation of right lateral
epicondylitis, right elbow strain, and left lateral epicondylitis. Appellant stopped work on
January 11, 20069 and filed CA-7 forms claiming compensation from January 11, 2006 and
continuing due to these accepted work conditions. She claimed that her limited position had
been withdrawn.
The Board finds that appellant failed to meet her burden of proof to establish total
disability beginning January 11, 2006 and continuing.
In the report dated January 3, 2007, Dr. Goriganti noted that he had been treating
appellant for multiple work-related conditions of her upper extremities and that appellant was
able to work part time for about four hours. He noted that she was disabled for four complete
days and then subsequently returned on a limited-duty capacity for four hours a day with
significant limitations of repetitive work and limitations as to the weights that she could handle.
In his February 28, 2007 report, Dr. Goriganti diagnosed lateral epicondylitis in both elbows and
cubital tunnel syndrome of the left elbow. He opined that occasional lifting and carrying of up to
10 pounds was acceptable, but that repetitive motions of the wrists and hands should be
avoided.10
The Board finds that these reports did not establish total disability beginning on or after
January 11, 2006. Dr. Goriganti failed to provide medical rationale in support of his opinions on
5

J.F., Docket No. 09-1061 (issued November 17, 2009).

6

See 20 C.F.R. § 10.5(f).

7

Roberta L. Kaaumoana, 54 ECAB 150 (2002); see also A.M., Docket No. 09-1895 (issued April 23, 2010).

8

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

9

See supra note 3.

10

Dr. Goriganti indicated that appellant could work five to seven days per week for four to six hours per day.

4

disability and his reports do not clearly show that appellant was totally disabled on or after
January 11, 2006 due to the accepted work injuries -- aggravation of right lateral epicondylitis,
right elbow strain, and left lateral epicondylitis. He did not present objective findings on
examination or diagnostic testing to establish work-related disability. The Board notes that
Dr. Goriganti discussed a medical condition that has not been accepted as work related, i.e.,
cubital tunnel syndrome of the left elbow,11 and it remains unclear if his finding of partial
disability was due to this or some other nonwork-related condition. The Board has held that a
medical report is of limited probative value if it contains an opinion on a medical matter which is
unsupported by medical rationale.12
In reports dated August 31, 2007, October 31, 2008, and November 12, 2009,
Dr. Goriganti indicated that appellant had left shoulder impingement syndrome, and bilateral
lateral epicondylitis, and bilateral carpal tunnel syndrome due to performing repetitive work
duties. The Board notes that these reports do not contain any opinion on disability and refer to
two conditions that have not been accepted as work related. The Board has held that medical
evidence which does not offer a clear opinion regarding the cause of an employee’s
condition/disability is of limited probative value on the issue of causal relationship.13
Dr. Goriganti produced numerous disability certificates, dated between February 23, 2006 and
October 17, 2012, in which he indicated that appellant could perform light-duty work. He
opined that appellant could occasionally engage in lifting and carrying, but that she could not
engage in repetitious work related to her neck and upper extremities. In CA-17 forms dated
June 20, 2011 and October 17, 2012, Dr. Goriganti indicated that appellant should avoid
repetitious work due to her bilateral epicondylitis, shoulder pain, and forearm pain. However,
the Board notes that none of these brief reports, which are unsupported by objective findings,
shows that appellant was disabled beginning January 11, 2006 due to her accepted work injuries.
On the contrary, the medical evidence reflecting that appellant was not disabled
beginning January 11, 2006 due to her accepted work injuries. In a July 22, 2014 report,
Dr. Shankman, OWCP’s referral physician, discussed appellant’s factual and medical history and
detailed the findings of the physical examination. He indicated that appellant exhibited normal
movement in all planes of both her elbows and reported other normal findings regarding her
upper extremities. Dr. Shankman opined that there was no objective evidence that appellant was
disabled during the time period from 2006 to the present due to the accepted work injuries. He
pointed out that appellant had very mild epicondylitis in both elbows, but that her condition did
not support any degree of disability from 2006 to the present. In an attached July 22, 2014 work
restrictions form, Dr. Shankman indicated that appellant could perform her usual job.

11

For injuries or conditions not accepted by OWCP, appellant has the burden of proof to establish causal
relationship. See Jaja K. Asaramo, 55 ECAB 200 (2004).
12

C.M., Docket No. 14-88 (issued April 18, 2014).

13

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

5

On appeal counsel asserts that “factual and medical evidence was not fully considered
and addressed by [OWCP] in the decision.” However, he did not identify the factual and
medical evidence to which he referred.14
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish total
disability beginning January 11, 2006 and continuing due to her accepted work injuries.
ORDER
IT IS HEREBY ORDERED THAT the January 5, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 29, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

14

Counsel also asserted that appellant sustained disability because her limited-duty job was withdrawn effective
January 11, 2006. In some cases, disability occurs when a limited-duty assignment made specifically to
accommodate an employee’s physical limitations due to his or her work-related injury or illness is withdrawn. See
20 C.F.R. § 10.5(x). However, counsel did not present evidence showing that appellant’s limited-duty job was
withdrawn as alleged.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 08-212
Issued: April 18, 2008

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 October 30, 2007 appellant filed a timely appeal of a July 24, 2007 decision of the
Office of Workers’ Compensation Programs, denying her request for reconsideration. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the July 24, 2007 decision.
The Board does not have jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
FACTUAL HISTORY
On May 27, 2002 appellant, then a 42-year-old clerk, filed a claim for right wrist
tendinitis caused by repetitive motion from keying mail. In a disability certificate dated
February 25, 2002, Dr. Robert A. Alter, an attending physician, diagnosed tenosynovitis of the
right thumb, also known as de Quervain’s tenosynovitis, caused by overuse. He returned her to

light-duty work with restrictions.
tenosynovitis.

The Office accepted appellant’s claim for right thumb

On April 26, 2006 appellant filed a claim for disability beginning April 7, 2006. By
decision dated July 10, 2006, the Office denied appellant’s claim for a recurrence of disability.
In a letter dated and postmarked July 16, 2007, appellant filed a request for
reconsideration. Medical evidence previously considered was submitted to the record.
By decision dated July 24, 2007, the Office denied appellant’s request for reconsideration
on the grounds that it was not timely filed within one year of the last merit decision on July 10,
2006 and the medical evidence failed to show clear evidence of error.1
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act2 does not entitle a claimant
to a review of an Office decision as a matter of right.3 This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.4 The Office, through its regulations, has imposed limitations on the exercise of
its discretionary authority. One such limitation is that the Office will not review a decision
denying or terminating a benefit unless the request for reconsideration is filed within one year of
the date of that decision.5 The Board has found that the imposition of this one-year time
limitation does not constitute an abuse of the discretionary authority granted the Office under 5
U.S.C. § 8128(a).6
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.7 To establish clear evidence of error, a claimant must submit evidence relevant
to the issue which was decided by the Office.8 The evidence must be positive, precise and
explicit and must be manifest on its face that the Office committed an error.9 Evidence which
1

The first paragraph of the July 24, 2007 decision contains an error regarding the date that appellant submitted
her request for reconsideration.
2

5 U.S.C. § 8128(a).

3

Thankamma Mathews, 44 ECAB 765 (1993).

4

Id. at 768.

5

20 C.F.R. § 10.607; see also Alberta Dukes, 56 ECAB 247 (2005).

6

Thankamma Mathews, supra note 3 at 769.

7

20 C.F.R. § 10.607(b); see also Donna M. Campbell, 55 ECAB 241 (2004).

8

Dean D. Beets, 43 ECAB 1153 (1992).

9

Leona N. Travis, 43 ECAB 227 (1991).

2

does not raise a substantial question concerning the correctness of the Office’s decision is
insufficient to establish clear evidence of error.10 It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion.11 To show clear evidence of
error, the evidence submitted must not only be of sufficient probative value to create a conflict in
medical opinion or establish a clear procedural error, but must be of sufficient probative value to
prima facie shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of the Office’s decision.12 The Board makes an independent
determination of whether a claimant has submitted clear evidence of error on the part of the
Office such that the Office abused its discretion in denying merit review in the face of such
evidence.13
ANALYSIS
The merits of appellant’s case are not before the Board. Her request for reconsideration
was dated July 16, 2007. As this request was filed more than one year after the Office’s July 10,
2006 merit decision, it is not timely.14 The Office must therefore make a determination as to
whether appellant demonstrated clear evidence of error in her untimely request for
reconsideration.
The Board finds that the Office properly denied appellant’s untimely request for
reconsideration on the grounds that the evidence failed to demonstrate clear evidence of error in
the July 10, 2006 merit decision, denying her claim for a recurrence of disability on
April 7, 2006. Appellant submitted notes dated May 10, 2002 to December 1, 2003 and reports
dated February 18 to September 19, 2005 from a Dr. William A. Heller. These notes predate the
claimed recurrence of disability on April 7, 2006. As such, they do not demonstrate clear
evidence of error in the denial of the April 7, 2006 claim. In a July 11, 2006 report, Dr. Heller
diagnosed right thumb recurrent stenosing tenosynovitis and recommended light duty.15 On
July 25, 2006 he stated that appellant’s right thumb tenosynovitis had resolved. Appellant was
discharged from care and could perform her regular work duties. However, Dr. Heller did not
address the underlying issue of whether appellant sustained a recurrence of disability on April 7,
2006 causally related to her accepted right thumb tenosynovitis. Therefore, his reports do not
demonstrate clear evidence of error in the July 10, 2006 merit decision. In a disability certificate
dated August 9, 2006, Dr. Alter indicated that appellant was totally disabled from July 31 to
August 9, 2006 due to de Quervain’s tenosynovitis. In a September 25, 2006 disability
certificate and November 28, 2006 report, he stated that appellant was totally disabled from
September 14 to 27, 2006 due to de Quervain’s tenosynovitis, epicondylitis and back pain. In a
10

Darletha Coleman, 55 ECAB 143 (2003).

11

Leona N. Travis, supra note 9.

12

Darletha Coleman, supra note 10.

13

Pete F. Dorso, 52 ECAB 424 (2001).

14

Howard Y. Miyashiro, 51 ECAB 253 (1999).

15

A portion of the report is illegible.

3

January 12, 2007 disability certificate, Dr. Alter diagnosed de Quervain’s tenosynovitis and
diffuse musculoskeletal pain and indicated that appellant was totally disabled from January 4
to 12, 2007. In a March 23, 2007 certificate, he indicated that appellant was totally disabled
from March 15 to 16, 2007 due to tenosynovitis and epicondylitis. The medical evidence from
Dr. Alter does not address the issue of whether appellant had a recurrence of disability on
April 7, 2006 causally related to her accepted right thumb tenosynovitis. Therefore, it does not
demonstrate clear evidence of error in the July 10, 2006 merit decision.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that it was untimely and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 24, 2007 is affirmed.
Issued: April 18, 2008
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF THE AIR FORCE,
RANDOLPH AIR FORCE BASE, TX, Employer
__________________________________________

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

Docket No. 13-637
Issued: March 21, 2013

Case Submitted on the Record

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

JURISDICTION
On January 22, 2013 appellant filed a timely appeal from a September 24, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As the last merit decision,
dated May 4, 2012, was issued more than 180 days before the filing of this appeal, the Board
lacks jurisdiction to review the merits of this case pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request to reopen her case for
further review of the merits under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 22, 2010 appellant, then a 43-year-old medical support assistant, filed an
occupational disease claim alleging that she sustained pain and tension in her shoulder, neck and
1

5 U.S.C. § 8101 et seq.

back and numbness in her right leg causally related to factors of her federal employment. She
attributed her condition to “working in an ergonomically incorrect environment.”
By decision dated March 25, 2011, OWCP denied appellant’s claim after finding that she
did not factually establish that her workstation was not ergonomically correct. In a decision
dated October 3, 2011, it denied modification of its March 25, 2011 decision. OWCP found that
appellant had not submitted the required factual information. It further noted that she had not
provided medical evidence containing a description of the identified work factors.
A request for reconsideration was filed on January 17, 2012.
In a decision dated May 4, 2012, OWCP modified its October 3, 2011 decision to find
that appellant had factually established the occurrence of the work factor alleged to have caused
her condition, but that she had not submitted rationalized medical evidence showing that she
sustained a medical condition due to the identified work factor.
On August 14, 2012 appellant, by checkmark on a form, requested reconsideration. In a
decision dated September 24, 2012, OWCP denied her request as she did not submit evidence or
raise argument sufficient to warrant reopening the case for further merit review under 5 U.S.C.
§ 8128.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.3 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.4 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.5
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.6 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.7 While the reopening of a case may be predicated
2

5 U.S.C. § 8101 et seq. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.”
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

7

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

2

solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.8
ANALYSIS
In the last merit decision dated May 4, 2012, OWCP denied appellant’s occupational
disease claim after finding that she had not submitted sufficient medical evidence to establish a
condition causally related to the identified employment factor of working at an ergonomicallyincorrect location. On August 24, 2012 she requested reconsideration.
As noted above, the Board does not have jurisdiction over the May 4, 2012 decision. The
issue presented on appeal is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim. In her
August 14, 2012 request for reconsideration, appellant did not show that OWCP erroneously
applied or interpreted a specific point of law. She did not identify a specific point of law or show
that it was erroneously applied or interpreted. Appellant did not advance a new and relevant
legal argument. The underlying issue in this case is whether the medical evidence establishes
that she sustained an occupational disease causally related to factors of her federal employment.
That is a medical issue which must be addressed by relevant medical evidence.9 A claimant may
be entitled to a merit review by submitting pertinent new and relevant evidence, but appellant did
not submit any pertinent new and relevant medical evidence in this case.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal appellant submitted new medical evidence. The Board has no jurisdiction to
review new evidence on appeal.10 Appellant can submit this evidence to OWCP and request
reconsideration under 5 U.S.C. § 8128.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request to reopen her case for
further review of the merits under 5 U.S.C. § 8128(a).

8

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

9

See Bobbie F. Cowart, 55 ECAB 746 (2004).

10

See 20 C.F.R. § 501.2(c)(1).

3

ORDER
IT IS HEREBY ORDERED THAT the September 24, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 21, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


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

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

Docket No. 18-0242
Issued: June 11, 2018

Case Submitted on the Record

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

JURISDICTION
On November 13, 2017 appellant filed a timely appeal from an October 13, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an occupational
disease in the performance of duty, as alleged.
FACTUAL HISTORY
On June 28, 2017 appellant, then a 45-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that his federal employment duties caused bulging and degenerated
discs, as well as subluxation of the pelvis. He indicated that he first became aware of the conditions
1

5 U.S.C. § 8101 et seq.

on December 1, 2011 and their relationship to factors of his federal employment later on
May 29, 2015. In an accompanying statement, appellant related that he delayed filing his claim
because he did not become a career employee until November 2, 2013, and his health insurance
did not become effective until January 2, 2014. He did not indicate whether he had stopped work.2
On August 24, 2017 P.H., an employing establishment human resources specialist,
controverted the claim. She noted that appellant’s two previous claims were denied, and that since
March 2014 appellant had only cased his route and was not carrying any mail.
Medical evidence submitted included a September 5, 2014 duty status report (Form CA-17)
in which Dr. Kyle A. Roesler, a chiropractor, noted appellant’s report that he slipped in snow and
fell to his knees. He described clinical findings of leg pain consistent with lumbosacral radiculitis
and advised that appellant could return to restricted duty with standing, walking, and climbing
limited to one-hour daily. On February 6, 2015 Dr. Roesler noted treating appellant since March 5,
2014 for low back and leg pain and provided restrictions to appellant’s physical activity. On
May 29, 2015 he diagnosed lumbar segmental dysfunction, lumbosacral radiculitis, sacral
subluxation, subluxation pelvis, cervical segmental dysfunction, thoracic segmental dysfunction,
and paravertebral myositis. Dr. Roesler advised that the stress and strain associated with
appellant’s letter carrier duties caused injury to and exacerbations of his low back conditions.
In correspondence dated March 7, 2017, Peggy Reed, a registered nurse and occupational
health administrator, noted that appellant had a fitness-for-duty examination on January 26, 2017
including a magnetic resonance imaging (MRI) scan of the lumbar spine. She related that there
was no objective evidence to show that appellant could not work without limitation and his only
limiting factors were subjective complaints of pain.3
A report dated April 4, 2017 with an illegible signature indicated that appellant should be
limited to light duty due to chronic pain. In May 4 and August 8, 2017 reports, Dr. Dawn Davis,
a Board-certified family physician, related appellant’s work restrictions.
By development letter dated September 7, 2017, OWCP informed appellant that the
evidence received was insufficient to establish his claim. It notified him of the evidence needed
to substantiate the factual and medical elements of his claim. OWCP noted that he did not identify
specific work factors on his claim form that he believed caused his condition. It requested that he
complete an attached questionnaire regarding his employment-related activities and provide a
medical report from his physician which contained an opinion, supported by a medical explanation,

2

The present claim was assigned OWCP File No. xxxxxx573. The record indicates that appellant previously filed
a traumatic injury claim (Form CA-1) on June 20, 2014 alleging that on December 1, 2011 he slipped on the snow
while in the performance of duty and this caused a bulging disc, sciatica, nerve damage, and back spasms. That claim
was adjudicated by OWCP under File No. xxxxxx483 and was denied on August 4, 2014. Appellant filed an
occupational disease claim on June 12, 2015, alleging that employment duties caused a bulging disc and pelvic
subluxation. OWCP adjudicated the 2015 claim under OWCP File No. xxxxxx062 and denied the claim on
August 20, 2015.
3

A copy of the fitness-for-duty examination is not found in the case record before the Board.

2

as to how specific work activities caused or contributed to, or aggravated his medical condition.
Appellant was afforded 30 days to submit the requested evidence.
In a separate September 7, 2017 letter, OWCP requested that the employing establishment
provide a statement regarding appellant’s work activities, including the physical requirement of
his job.
In a statement dated October 4, 2017, W.S., an employing establishment manager,
controverted the claim. He maintained that none of the medical evidence, which provided work
restrictions, indicated that appellant’s medical condition was caused by employment duties. W.S.
noted that since March 2014 appellant had only cased his route for two hours daily and would then
go home without delivering his route. He also referenced the two prior claims that had been denied
by OWCP4 and attached a position description for a letter carrier. W.S. also attached a duplicate
of Dr. Roesler’s February 6, 2015 report, and a February 4, 2015 report in which Dr. Roesler
provided the same diagnoses as in his May 29, 2015 report previously submitted. In the May 29,
2015 report, Dr. Roesler also indicated that appellant should not perform work which required
lifting, bending, twisting, or turning over 15 pounds for extended periods or greater than two hours
at a time.
By decision dated October 13, 2017, OWCP denied appellant’s occupational disease claim,
finding that he failed to establish the factual component of fact or injury. Appellant did not respond
to the September 7, 2017 letter. OWCP further found that the medical evidence of record did not
contain a comprehensive report from a treating physician explaining causal relationship between
appellant’s job duties and the claimed conditions.
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, and that the claim was timely filed within the
applicable time limitation period of FECA.6 When an employee claims that he or she sustained an
injury in the performance of duty,7 he or she must submit sufficient evidence to establish that he
or she experienced a specific event, incident, or exposure occurring at the time and place, and in
the manner alleged.8 The employee must also establish that such event, incident, or exposure

4

Supra note 2.

5

Supra note 1.

6

5 U.S.C. § 8101(1); L.M., Docket No. 16-0143 (issued February 19, 2016); B.B., 59 ECAB 234 (2007).

7

5 U.S.C. § 8102(a).

8

J.C., Docket No. 16-0057 (issued February 10, 2016); E.A., 58 ECAB 677 (2007).

3

caused an injury.9 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.10
OWCP regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.”11 To
establish that an injury was sustained in the performance of duty in an occupational disease claim,
a claimant must submit the following: (1) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the employment factors identified by the claimant. The medical opinion 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.12
Appellant’s burden of proof includes the submission of a detailed description of the
employment factors or conditions which he or she believes caused or adversely affected a condition
for which compensation is claimed.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an occupational
disease in the performance of his federal employment.
On his claim form appellant alleged that his federal employment duties caused bulging and
degenerated discs and subluxation of the pelvis. He, however, did not present a clear factual
statement identifying specific employment factors of conditions alleged to have caused or
contributed to the presence or occurrence of the claimed medical conditions nor explained how
any work factor caused or aggravated the claimed conditions. By letter dated September 7, 2017,
OWCP informed appellant that the evidence it had received was insufficient to establish that he
experienced any employment factors that were alleged to have caused an injury. He was asked to
complete an attached questionnaire describing his employment-related activities and explain how
these activities contributed to the claimed conditions. Appellant did not respond to OWCP’s
September 7, 2017 letter. Since he has not provided a factual statement describing in detail the
employment duties that caused the claimed conditions, he has not met his burden of proof.14

9

Id.

10

R.H., 59 ECAB 382 (2008).

11

20 C.F.R. § 10.5(ee).

12

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

13

T.B., Docket No. 17-0444 (issued May 5, 2017).

14
S.J., Docket No. 17-1798 (issued February 23, 2018); see also P.G., Docket No. 15-1345 (issued
August 23, 2016).

4

As appellant did not establish the factual component of his claim, the Board will not address
the medical evidence with respect to causal relationship.15
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an occupational
disease in the performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the October 13, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 11, 2018
Washington, DC

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

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

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

15

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.R., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 18-0022
Issued: April 9, 2018

Case Submitted on the Record

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

JURISDICTION
On October 2, 2017 appellant filed a timely appeal from a September 12, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish more than 25 percent
permanent impairment of his right lower extremity, for which he previously received a schedule
award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 19, 1998 appellant, then a 49-year-old material handler, filed a traumatic
injury claim (Form CA-1) alleging that on November 18, 1998 he sustained a right ankle injury at
work. He claimed that he was standing on a “Big Joe” pallet jack that was driven by a coworker.
The Big Joe moved forward and appellant fell approximately 10 feet. Appellant stopped work on
the date of injury.
OWCP accepted the claim for right ankle fracture and a left calcaneus fracture. It
authorized an open reduction and internal fixation of the fractured left calcaneus performed on
November 30, 1998. OWCP paid appellant compensation benefits on the supplemental rolls
effective January 17, 1999.
On February 1, 1999 appellant returned to limited-duty work. On February 19, 1999 he
underwent authorized irrigation and debridement with attempted secondary closure ulceration of
the left heel. Appellant returned to full-time, limited-duty work on April 26, 1999. He stopped
work again on June 10, 1999 due to a wound infection and received compensation benefits on the
daily rolls. On July 19, 1999 appellant returned to full-time, limited-duty work.
By decision dated January 28, 2000, OWCP terminated appellant’s wage-loss
compensation benefits effective January 4, 2000 as his actual wages as a supply technician fairly
and reasonably represented his wage-earning capacity.2 It explained that these wages either met
or exceeded the wages of his date-of-injury position. Medical benefits continued.
By decision dated February 24, 2000, OWCP granted appellant a schedule award for 25
percent permanent impairment of each lower extremity. The schedule award was paid during the
period January 21, 2000 to October 25, 2002, for a total of 144 weeks of compensation.
On February 15, 2016 appellant underwent subtalar and talonavicular fusions and
arthroscopy of the right ankle performed by Dr. Richard Langerman, Jr., a Board-certified
orthopedic surgeon. Dr. Langerman noted preoperative diagnoses of talonavicular and subtalar
arthrosis with possible right ankle arthrosis. He noted postoperative diagnoses included moderate
right ankle arthrosis with advanced talonavicular and subtalar arthritis.
On February 13, 2017 appellant filed a claim for an additional schedule award (Form
CA-7).
By development letter dated February 22, 2017, OWCP requested that appellant submit
additional medical evidence in support of his schedule award claim, including an impairment
rating, which applied the standards of the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3 It afforded appellant 30
days to submit the requested information.

2

Appellant voluntarily retired from the employing establishment effective December 28, 2012.

3

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

2

In an April 26, 2017 medical report, Dr. John W. Ellis, a Board-certified family
practitioner, related a history of the November 18, 1998 employment injury and appellant’s
medical background. He reviewed medical records, including diagnostic test results. Dr. Ellis
noted appellant’s complaints related to his right ankle. A Bragard’s sign could not be done because
of the fusion of the right ankle. Pressure on the tarsal tunnels did not cause any numbness in the
feet. The right ankle had surgical scars and was fused in a position of function. There was
hypertrophy of the bones of the medial and lateral malleoli and anteriorly and posteriorly in the
ankle. Appellant walked with an antalgic gait due to the fused right ankle. There was no swelling
over the ankles. Appellant wore a brace on his right ankle. He reported that above the brace, he
sometimes had swelling where the sock ended. Dr. Ellis found no pitting edema in the feet. He
diagnosed secondary osteoarthritis of the right ankle and foot, chondromalacia of the right ankle
and joints of the right foot, and fracture of the right ankle. Dr. Ellis opined that, based on his
examination, review of the medical and other records, appellant’s impairment arose out of and in
the course of appellant’s employment. He determined that appellant had reached maximum
medical improvement (MMI) as of April 13, 2017, the date Dr. Langerman referred appellant for
an impairment evaluation. Thus, Dr. Ellis advised that appellant could be rated for permanent
partial impairment.
Regarding impairment of the right lower extremity, Dr. Ellis utilized Table 16-2 on page
507 of the sixth edition of the A.M.A., Guides, and found 50 percent diagnosis-based impairment
(DBI) due to subtalar and talonavicular fusions of the ankle. Under Table 16-22 on page 549, he
found 37 percent impairment due to decreased range of motion (ROM) of the ankle. Dr. Ellis
utilized Table 16-20 on the same page and found 10 percent impairment due to decreased range of
motion of the hindfoot. He added the ROM impairment ratings for a total 47 percent impairment.
Dr. Ellis used the Combined Values Chart to combine the 37 percent and 10 percent ROM
impairment ratings to find 43 percent total combined impairment. He concluded that appellant
had 50 percent permanent impairment of the right lower extremity based on the DBI method.
Dr. Ellis noted Table 2-1, No. 12 on page 20, which indicated that the method producing the higher
rating should be used.
On June 5, 2017 Dr. Arthur S. Harris, an OWCP medical adviser and a Board-certified
orthopedic surgeon, reviewed the medical record, and Dr. Ellis’ April 26, 2017 findings. He also
noted appellant’s February 15, 2016 right ankle arthroscopy with subtalar and talonavicular fusion,
which documented arthroscopic findings of grade 2 to 3 degenerative changes in the tibiotalar
joint. Dr. Harris related that a September 7, 2016 right ankle computerized tomography scan
demonstrated degenerative changes in the ankle with postsurgical changes in the subtalar joint. In
determining impairment to appellant’s right lower extremity, he used Table 16-2 on page 508 of
the sixth edition of the A.M.A., Guides and found 13 percent impairment due to a satisfactory
result following right ankle arthroscopy with subtalar and talonavicular fusion (CDX 1E). Dr.
Harris further found, under Table 16-2 on page 506, three percent impairment based on
documented degenerative changes of the ankle. He utilized the Combined Values Chart and
combined the two impairment ratings to calculate 16 percent right lower extremity permanent
impairment. Dr. Harris related that the A.M.A., Guides did not allow for impairment ratings to be
calculated on the ROM method for the diagnosed condition. He maintained that appellant had 16
percent impairment of the right lower extremity resulting from the accepted November 18, 1998
work injury. Dr. Harris determined that the date of MMI was April 26, 2017, the date of Dr. Ellis’
impairment evaluation. He disagreed with Dr. Ellis’ impairment rating as it was based on the
3

ROM method. Dr. Harris related that the A.M.A., Guides provides that the DBI method was the
preferred rating method. He further related that the A.M.A., Guides provides that the ROM method
was used primarily as a physical examination adjustment factor and only to determine actual
impairment values in the rare case when it was not possible to otherwise define impairment.
Dr. Harris indicated that, as discussed in his review, appellant’s impairment was easily defined
using the DBI method for having undergone talonavicular and subtalar fusions, as well as,
documented degenerative joint disease of the ankle.
By decision dated September 12, 2017, OWCP denied appellant’s claim for an additional
schedule award. It based its determination on Dr. Harris’ June 5, 2017 report which evaluated the
April 26, 2017 findings of Dr. Ellis relative to appellant’s right lower extremity.4
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing federal regulations6 set forth
the number of weeks of compensation payable to employees sustaining permanent impairment
from loss or loss of use, of scheduled members, functions, and organs of the body. FECA,
however, does not specify the manner by which the percentage loss of a member, function, or
organ shall be determined. To ensure consistent results and equal justice for all claimants under
the law, good administrative practice requires the use of uniform standards applicable to all
claimants.7 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.8 As of May 1, 2009, schedule awards are
determined in accordance with the sixth edition of the A.M.A., Guides (2009).9 The Board has
approved the use by OWCP of the A.M.A., Guides for the purpose of determining the percentage
loss of use of a member of the body for schedule award purposes.10 It is well established that in
determining the amount of a schedule award for a member of the body that sustained an
employment-related permanent impairment, preexisting impairments are to be included.11
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
4

OWCP noted that appellant had previously received a schedule award for his right and left lower extremities.

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

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

8

Id.

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010);
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (February 2013).
10

Isidoro Rivera, 12 ECAB 348 (1961).

11

See Dale B. Larson, 41 ECAB 481, 490 (1990); supra note 7 at Part 3 -- Medical, Schedule Awards, Chapter
3.700.3.a.3 (January 2010). This portion of OWCP procedures provides that the impairment rating of a given
scheduled member should include any preexisting permanent impairment of the same member or function.

4

and Health (ICF).12 Under the sixth edition, the evaluator identifies the impairment class for the
Class of Diagnosis (CDX), which is then adjusted by grade modifiers based on Functional History
(GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).13 The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).14
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing
rationale for the percentage of impairment specified.15
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted appellant’s claim for right ankle fracture and a left calcaneus fracture. It
authorized an open reduction and internal fixation of the fractured left calcaneus performed on
November 30, 1998. OWCP granted appellant a schedule award for 25 percent permanent
impairment of each lower extremity. Appellant underwent an arthroscopy of the right ankle with
subtalar and talonavicular fusion on February 15, 2016. On February 13, 2017 he filed a claim for
an increased schedule award.
In an April 26, 2017 report, Dr. Ellis, an attending physician, utilized the DBI method for
rating appellant’s permanent impairment and identified the diagnosis of subtalar and talonavicular
ankle fusion on page 507 of the A.M.A., Guides. He opined that, under Table 16-2 of the sixth
edition of the A.M.A., Guides, appellant had 50 percent permanent impairment of the right lower
extremity. The Board notes that while Dr. Ellis also rated appellant’s right lower extremity
impairment using ROM methodology, he ultimately concluded that appellant’s impairment should
be rated using Table 16-2, page 507, for the diagnosis of joint ankylosis fusion, of the talarcalcaneal, talar-navicular.
In a June 5, 2017 report, Dr. Harris, an OWCP medical adviser, similarly utilized the DBI
method, but identified the diagnosis of subtalar and talonavicular ankle fusion on page 508 of the
A.M.A., Guides. He utilized Table 16-2 of the sixth edition of the A.M.A., Guides and found 13
percent impairment due to a satisfactory result following surgery. Dr. Harris further found, under
Table 16-2 on page 506, three percent impairment based on documented degenerative changes of
the ankle. He utilized the Combined Values Chart and combined the two impairment ratings to
find that appellant had 16 percent permanent impairment of the right lower extremity.

12
A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
13

Id. at 494-531.

14

Id. at 521.

15

See supra note 7 at Chapter 2.808.6(f) (February 2013).

5

The Board finds that there is an unresolved conflict as to the impairment related to
appellant’s right lower extremity between Dr. Ellis and Dr. Harris based upon the proper diagnosis
utilized within Table 16-2. The Board notes that both utilized the DBI methodology, but relied
upon different diagnoses classifications for appellant’s condition. If there is disagreement between
OWCP’s medical adviser and appellant’s physician, OWCP will appoint a third physician who
shall make an examination.16 For a conflict to arise, the opposing physicians’ viewpoints must be
of virtually equal weight and rationale.17 The Board finds that the two medical opinions of
Dr. Ellis and Dr. Harris are of equal weight. The dispute between these physicians centers on their
use of Table 16-2, which ostensibly supported their respective opinions. Accordingly, there was
an unresolved conflict in medical opinion regarding the extent of appellant’s right lower extremity
impairment.
Because there is an unresolved conflict in medical opinion regarding the extent of
appellant’s right lower extremity impairment, pursuant to 5 U.S.C. § 8123(a), the case will be
remanded to OWCP for referral of appellant, together with the medical record and a statement of
accepted facts, to an appropriate Board-certified specialist for an impartial medical examination to
determine the extent and degree of appellant’s right lower extremity permanent impairment in
accordance with the sixth edition of the A.M.A., Guides. After such further development as
OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

16

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

17

Darlene R. Kennedy, 57 ECAB 414 (2006).

6

ORDER
IT IS HEREBY ORDERED THAT the September 12, 2017 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 9, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, LANCASTER
PROCESSING & DISTRIBUTION CENTER,
Lancaster, PA, Employer
__________________________________________

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

Docket No. 13-1375
Issued: March 25, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On May 20, 2013 appellant, through her attorney, filed a timely appeal from a
February 19, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation benefits based
on her capacity to earn wages in the constructed position of customer service representative.
On appeal, counsel contends that the constructed position is not medically or vocationally
suitable. He states that the physical requirements of the position exceed appellant’s physical
restrictions. Counsel further states that appellant does not have a general educational diploma
(GED) and the vocational rehabilitation counselor stated that this would limit the number of
available positions.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on June 19, 2006 appellant, then a 59-year-old clerk, sustained a
sprain, rotator cuff injury and aggravation of tendinitis of the right shoulder as a result of lifting
heavy sacks at work.2 It authorized right shoulder arthroscopy with arthroscopic repair of`
biceps tendinitis, subacromial decompression, debridement of a partial thickness rotator cuff tear
and open distal clavicle excision performed on November 15, 2006. On January 3, 2007
appellant returned to full-time, modified-duty work at the employing establishment. OWCP
authorized additional open repair of the right rotator cuff performed on May 1, 2007. In a
December 5, 2007 decision, it accepted that on October 22, 2007 appellant sustained a
recurrence of disability causally related to her June 19, 2006 employment injuries.
On July 29, 2010 appellant declined the employing establishment’s offer of modified
duty, contending that the position did not meet the restrictions set forth by her attending
physician. On August 4, 2010 the employing establishment advised her that there was no work
available.
In a March 11, 2011 medical report, Dr. Michael W. Gish, an attending Board-certified
orthopedic surgeon, advised that appellant could perform sedentary work with permanent
restrictions which included no repetitive gripping, squeezing or pulling; no frequent reaching
above countertop level with either shoulder; occasional reaching above shoulder level; frequent
lifting not exceeding five pounds at countertop level and occasional lifting not exceeding two
pounds above shoulder level.
By letter dated June 21, 2011, OWCP accepted that on August 4, 2010 appellant
sustained a recurrence of disability.
On September 28, 2011 OWCP referred appellant for vocational rehabilitation services.
Appellant met with a vocational rehabilitation counselor on October 11, 2011. The vocational
rehabilitation counselor noted that appellant did not have a GED and had severe lifting
restrictions which would greatly limit the number of appropriate positions available to her. She
planned to request a waiver for vocational testing as appellant had basic computer knowledge,
was able to type and presented herself well which would be beneficial in procuring a position
perhaps dealing with the public. The vocational rehabilitation counselor stated that vocational
testing would not present any further information to assist her in determining suitable positions
within appellant’s abilities and educational background. On November 9, 2011 she determined
that appellant could be reemployed as a customer service representative or receptionist. The
duties of the customer service representative position listed in the Department of Labor’s
Dictionary of Occupational Titles required interviewing applicants; recording the interview
information into a computer; soliciting the sale of new or additional services; and adjusting
complaints or referring complaints to designated departments. This job was classified as
2

In a prior claim assigned File No. xxxxxx772, OWCP accepted that appellant sustained a rotator cuff sprain and
impingement syndrome of the left shoulder. It combined this claim and the instant claim assigned File No.
xxxxxx644 into a master claim assigned File No. xxxxxx644. In an April 28, 2009 decision, OWCP granted
appellant a schedule award for 21 percent impairment of the right upper extremity and 13 percent impairment of the
left upper extremity, totaling a 34 percent bilateral upper extremity impairment.

2

sedentary with no climbing, balancing, stooping, kneeling, crouching, crawling, feeling, tasting,
smelling, far acuity, depth perception, color vision or field of vision. The position required
occasional reaching, handling and near acuity, frequent fingering and accommodation, and
constant talking and hearing. The strength level was listed as sedentary, which involved
occasional lifting up to 10 pounds. The vocational rehabilitation counselor determined that
appellant would meet the specific vocational preparation in six months to one year. She noted
that many customer service representative positions were entry level with basic computer
knowledge. The vocational rehabilitation counselor made an illegible statement about what
occurs with a lack of experience. She determined that the job was performed in sufficient
numbers to be reasonably available within appellant’s commuting area. The vocational
rehabilitation counselor noted that expected growth for the position was 6.6 percent between
2008 and 2018. There were 21 openings due to growth and 88 openings due to replacement.
The yearly wages for an entry level position was $23,290.00.
By letter dated June 15, 2012, OWCP proposed to reduce appellant’s compensation
benefits based on her capacity to earn wages as a customer service representative.
In a July 16, 2012 decision, OWCP finalized the June 15, 2012 proposed decision based
on her capacity to earn wages as a customer service representative. It applied the principles
identified in Albert C. Shadrick,3 finding a new wage-earning capacity of 43 percent and
accordingly reduced her compensation.
On July 19, 2012 appellant, through her attorney, requested an oral hearing before an
OWCP hearing representative. By letter dated November 28, 2012, she requested a review of the
written record in lieu of an oral hearing and submitted additional medical evidence.
In a work capacity evaluation dated December 5, 2012, Dr. Gish revised his prior
restrictions to no reaching or reaching above the shoulder and lifting no more than five pounds.
He also restricted her to operating a motor vehicle at work for no more than four hours a day.
In a February 19, 2013 decision, an OWCP hearing representative affirmed the July 16,
2012 decision. The hearing representative found that the medical and factual evidence of record
established that the selected customer service representative job was medically and vocationally
suitable for appellant and represented her loss of wage-earning capacity.
LEGAL PRECEDENT
Section 8115 of FECA4 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, her wage-earning capacity is determined with
due regard to the nature of her injury, the degree of physical impairment, her usual employment,
her age, her qualifications for other employment, the availability of suitable employment and
3

5 ECAB 376 (1953); 20 C.F.R. § 10.403(d).

4

5 U.S.C. §§ 8101-8193, 8115.

3

other factors or circumstances which may affect her wage-earning capacity in 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 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 principles set forth in Shadrick5 will result in the percentage of the
employee’s loss of wage-earning capacity. The basic rate of compensation paid under FECA is
66 2/3 percent of the injured employee’s monthly pay.6
ANALYSIS
OWCP accepted that appellant sustained a sprain, rotator cuff injury and aggravation of
tendinitis of the right shoulder while in the performance of duty on June 19, 2006 and authorized
right shoulder surgeries. In the March 11, 2011 report, Dr. Gish, an attending physician, found
that appellant could perform sedentary work with permanent restrictions that included no
repetitive gripping, squeezing or pulling; no frequent reaching above countertop level with either
shoulder; occasional reaching above shoulder level; frequent lifting of no more than five pounds
at countertop level; and occasional lifting of no more than two pounds above shoulder level.
Based upon Dr. Gish’s March 11, 2011 report, OWCP referred appellant for vocational
rehabilitation. The Board finds that OWCP properly referred her to vocational rehabilitation as
appellant was no longer totally disabled due to her employment-related injuries.
The Board finds, however, that OWCP failed to meet its burden of proof to reduce
appellant’s compensation based on the constructed position of customer service representative.
The issue of whether appellant has the physical ability to perform a selected position is primarily
a medical question that must be resolved by the medical evidence.7 In his March 11, 2011
report, Dr. Gish indicated that appellant could perform a sedentary position and noted restrictions
which included no repetitive gripping, squeezing or pulling; no frequent reaching above
countertop level with either shoulder; occasional reaching above shoulder level; frequent lifting
not exceeding five pounds at countertop level; and occasional lifting not exceeding two pounds
above shoulder level. Based on these restrictions, the rehabilitation counselor found the position
of customer service representative to be suitable on November 9, 2011. However, on
December 5, 2012 Dr. Gish modified these restrictions to include no reaching, no reaching above
the shoulder, no operating a motor vehicle more than four hours, no repetitive movements of the
elbow, and no pushing, pulling and lifting more than five pounds. The position requirement of

5

Supra note 3; 20 C.F.R. § 10.403.

6

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

7

See Maurissa Mack, 50 ECAB 498 (1999); Robert Dickinson, 46 ECAB 1002 (1995).

4

occasional lifting up to 10 pounds contradicts these revised restrictions.
customer service representative exceeded appellant’s physical restrictions.

The position of

Based on the evidence of record, the Board finds that OWCP has not established that the
constructed position of customer service representative is medically suitable. Therefore, it failed
to meet its burden of proof to reduce appellant’s wage-loss compensation.8
CONCLUSION
The Board finds that OWCP improperly reduced appellant’s compensation based on its
finding that she had the capacity to perform the constructed position of customer service
representative.
ORDER
IT IS HEREBY ORDERED THAT the February 19, 2013 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 25, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8d (October 2009); see also William H. Woods, 51 ECAB 619 (2000).

5