United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Cherry Hill, NJ, Employer
__________________________________________

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

Docket No. 09-450
Issued: December 17, 2009

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 December 4, 2008 appellant filed a timely appeal from an August 28, 2008 decision
of the Office of Workers’ Compensation Programs that denied his claim. 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 met his burden of proof to establish that he sustained an
emotional condition as a consequence of his February 3, 2006 employment-related lumbar strain.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated September 5, 2008,
the Board found that the Office met its burden of proof to terminate appellant’s compensation
benefits effective March 18, 2007 on the grounds that he had no residuals of a February 3, 2006
lumbar strain. The Board also found that he did not establish that he sustained recurrences of

disability on April 5 or 20, 2007.1
incorporated herein by reference.

The law and facts of the previous Board decision are

On May 24, 2007 appellant filed a Form CA-2, occupational disease claim, alleging that
he suffered from anxiety and depression due to the 2006 injury to his lower back, extremities and
abdomen. Due to his two-hour commute, he had residual pain and was unable to sleep.
Appellant related that he sustained an abdominal injury for which he had a hernia repair on
January 29, 2007 and the back injury of February 3, 2006 and described his medical care.2 He
stated that he was tired and depressed because he could not be as physically active due to his
employment-related physical injuries.
Appellant was stressed because the employing
establishment had an adversarial attitude toward him and would not accommodate him. He
stated that, because of his mental and physical conditions, due to his long commute, his
physicians concluded that his functioning capacity at work would diminish.
By report dated June 12, 2007, Robert Chorney, Psy.D., a licensed psychologist, advised
that he had seen appellant monthly over the past year, noting that appellant “has struggled with
anger and suffered depression ... resulting from what he considers discriminatory work
practices.” He reported that appellant’s mood lifted significantly in early 2006 when he was
offered a promotion but that, shortly after starting this new job, appellant sustained work-related
back and abdominal injuries, which resulted in a long period of disability. When appellant
requested special accommodation upon returning to work in March 2007 such that he could
avoid a long commute, it was denied. Dr. Chorney stated that appellant’s pain had worsened due
to a two-hour commute daily, which triggered a recurrence of depression and agitation. He
stated that appellant “is probably experiencing depression both as a response to chronic pain and
as a reaction to what he describes as another version of bias and discriminatory work practices as
it related to his request for a special accommodation that requires less driving.” Dr. Chorney
diagnosed adjustment disorder with depressed mood, opining that appellant’s depression “can
directly be tied to work conditions” based on the employing establishment’s refusal to provide a
reasonable accommodation and the consequence of a long commute. He recommended a brief
medical leave. In a July 18, 2007 report, Dr. Chorney advised that appellant was unable to work
due to psychological problems and recommended a leave of absence for an indeterminate period.
On August 8, 2007 he advised that, although appellant had improved, he should continue to be
off work. On August 29, 2007 Dr. Chorney stated that, because appellant did not have the
commute, the cycle of physical pain and emotional distress had been broken or interrupted and
his psychological functioning had improved. He recommended that appellant remain off work at
least until September 12, 2007.
By decision dated October 30, 2007, an Office hearing representative affirmed the
March 19, 2007 decision, finding that appellant had no residuals of his accepted lumbar strain.
The hearing representative, however, remanded the case to the Office for further development
regarding whether he had developed a consequential emotional condition causally related to the
February 3, 2006 employment injury.

1

Docket No. 08-708 (issued September 5, 2008).

2

Appellant noted that the abdominal claim was adjudicated under Office file number xxxxxx597.

2

On May 13, 2008 the Office referred appellant to Dr. Lawrence P. Clinton, a Boardcertified psychiatrist, for a second opinion evaluation regarding his psychiatric/psychological
condition. By report dated June 27, 2008, Dr. Clinton reviewed the medical records and
statement of accepted facts and appellant’s history of chronic low back pain with underlying
degenerative disc disease and spondylosis of the lumbar spine. He reported appellant’s
complaints that a two-hour commute to work led to increased pain and exhaustion with
depression and anxiety, difficulties with sleep and problems with concentration. Dr. Clinton
performed a mental status examination and advised that appellant “definitely has a psychiatric
condition, namely major depression driven by pain,” with manifestations of sleep disturbance,
concentration difficulties and dysphoric mood, directly related to the work injuries. His
diagnostic impression was an ongoing vulnerability for major depression as a result of his
physical injuries and chronic pain as a result of disc disease in the lower spine and a history of
injury and reinjury at work with stressors of long car trips and sitting too long. In an attached
psychiatric work capacity evaluation, Dr. Clinton advised that appellant could work eight hours a
day and needed time to change position, walk and stretch his legs, and that he could also do
better with a shorter commute, advising that chronic pain could compromise his endurance. He
recommended continued psychotherapy and medication.
By decision dated August 28, 2008, the Office denied appellant’s claim that he sustained
an emotional condition as a consequence of his accepted February 3, 2006 back injury, finding
that he did not establish a factor of employment. It noted that, while both Dr. Chorney and
Dr. Clinton attributed appellant’s emotional condition, in part “to continuing problems with your
back condition, they are psychiatrists and their opinions regarding your orthopedic condition are
of less probative value than the opinion of an orthopedic specialist.”
LEGAL PRECEDENT
To establish his claim that he sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that he has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his stress-related condition.3 If a claimant does implicate a factor of employment, the
Office should then determine whether the evidence of record substantiates that factor.4 When the
matter asserted is a compensable factor of employment and the evidence of record establishes the
truth of the matter asserted, the Office must base its decision on an analysis of the medical
evidence.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,6 the Board
3

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

4

Dennis J. Balogh, 52 ECAB 232 (2001).

5

Id.

6

28 ECAB 125 (1976).

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explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.7
There are situations where an injury or illness has some connection with the employment but
nevertheless does not come within coverage under the Act.8 When an employee experiences
emotional stress in carrying out his or her employment duties and the medical evidence
establishes that the disability resulted from an emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from his or her emotional reaction to a special
assignment or other requirement imposed by the employing establishment or by the nature of the
work.9 Allegations alone by a claimant are insufficient to establish a factual basis for an
emotional condition claim.10 Where the claimant alleges compensable factors of employment, he
or she must substantiate such allegations with probative and reliable evidence.11 Personal
perceptions alone are insufficient to establish an employment-related emotional condition.12
For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the Acts alleged or implicated by the employee did,
in fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative
of whether such harassment or discrimination occurred. A claimant must establish a factual
basis for his or her allegations that the harassment occurred with probative and reliable
evidence.13
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional conduct.
The subsequent injury is compensable if it is the direct and natural result of a compensable
primary injury. With respect to consequential injuries, the Board has stated that, where an injury
is sustained as a consequence of an impairment residual to an employment injury, the new or
second injury, even though nonemployment related, is deemed, because of the chain of causation
to arise out of and in the course of employment and is compensable.14
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
7

5 U.S.C. §§ 8101-8193.

8

See Robert W. Johns, 51 ECAB 137 (1999).

9

Lillian Cutler, supra note 6.

10

J.F., 59 ECAB ____ (Docket No. 07-308, issued January 25, 2008).

11

M.D., 59 ECAB ____ (Docket No. 07-908, issued November 19, 2007).

12

Roger Williams, 52 ECAB 468 (2001).

13

James E. Norris, 52 ECAB 93 (2000).

14

S.S., 59 ECAB ____ (Docket No. 07-579, issued January 14, 2008).

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complete factual and medical background, showing causal relationship. Rationalized medical
evidence is evidence which relates a work incident or factors of employment to a claimant’s
condition, with stated reasons of a physician. The opinion must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship of
the diagnosed condition and the specific employment factors or employment injury.15
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, Larson notes that, when the question is whether compensability
should be extended to a subsequent injury or aggravation related in some way to the primary
injury, the rules that come into play are essentially based upon the concepts of direct and natural
results and of claimant’s own conduct as an independent intervening cause. The basic rule is
that, a subsequent injury, whether an aggravation of the original injury or a new and distinct
injury, is compensable if it is the direct and natural result of a compensable primary injury.16
ANALYSIS
Appellant contented that his commute was too long and not accommodated by the
employing establishment. The Board has held that frustration from not being permitted to work
in a particular environment or to hold a particular position is not covered by workers’
compensation.17
Regarding his general contention that he was harassed while at the employing
establishment, mere perceptions of harassment or discrimination are not compensable under the
Act.18 Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations with probative and reliable evidence.19 Appellant did not submit
evidence sufficient to substantiate that he was harassed at the employing establishment.20 The
Board finds that he did not establish a factual basis for his claim of harassment with probative
and reliable evidence.21
The Board also finds that appellant did not establish that he sustained an emotional
condition as a consequence of his accepted lumbar strain. His compensation benefits for that
condition were terminated effective March 18, 2007 on the grounds that he had no employmentrelated residuals, and that decision was affirmed by the Board in its September 5, 2008

15

Charles W. Downey, 54 ECAB 421 (2003).

16

Larson, The Law of Workers’ Compensation § 10.01 (December 2000); see Charles W. Downey, supra note 15.

17

J.C., 58 ECAB ___ (Docket No. 07-530, issued July 9, 2007).

18

James E. Norris, supra note 13.

19

Id.

20

Beverly R. Jones, 55 ECAB 411 (2004).

21

See Robert Breeden, 57 ECAB 622 (2006).

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decision.22 The Board finds the opinion of appellant’s attending psychologist, Dr. Chorney, is
speculative and insufficient to meet his burden of proof to establish that his depression is a
consequence of the accepted lumbar strain. In a June 12, 2007 report, Dr. Chorney advised that
upon appellant’s return to work in March 2007 his pain worsened due to a two-hour commute
daily which triggered a recurrence of depression and agitation. He advised that appellant was
“probably” experiencing depression as a response to chronic pain and as a reaction to what he
described as bias and discriminatory work practices regarding his request for a special
accommodation that required less driving. Dr. Chorney diagnosed adjustment disorder with
depressed mood, opining that appellant’s depression “can directly be tied to work conditions”
based on the employing establishment’s refusal to provide a reasonable accommodation and as a
consequence of a long commute. He recommended a brief medical leave. Dr. Chorney
recommended that appellant remain off work until September 2007. While the medical opinion
of a physician supporting causal relationship does not have to reduce the cause or etiology of a
disease or condition to an absolute certainty, neither can such opinion be speculative or
equivocal. The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to
federal employment and such relationship must be supported with affirmative evidence,
explained by medical rationale and be based upon a complete and accurate medical and factual
background of the claimant.23 Dr. Chorney couched his opinion in equivocal terms, noting that
appellant was “probably” experiencing depression. He attributed the emotional condition to
factors that are not compensable and generally accepted appellant’s allegations of harassment
and non-accommodation as factual. Dr. Chorney did not provide rationale to support his
conclusion other than to state the depression was due to appellant’s long commute and the failure
of the employing establishment to accommodate this condition so that he would avoid a long
commute. These are not established as compensable factors of employment.24
The Board also finds the opinion of Dr. Clinton, an Office referral psychiatrist,
insufficient to meet appellant’s burden because he did not provide a clear-cut diagnosis. At one
point he stated that appellant definitely had a psychiatric condition of major depression driven by
pain, yet under Axis I of his diagnostic impression, Dr. Clinton stated that appellant had an
ongoing vulnerability for major depression as a result of his physical injuries and chronic pain.
As noted, a medical opinion cannot be speculative or equivocal.25 Dr. Clinton did not provide a
fully-rationalized opinion as to whether appellant’s pain was due to his underlying degenerative
disc disease or caused by the February 3, 2006 lifting injury that was accepted for a lumbar strain
that has since resolved.

22

Supra note 1.

23

Patricia J. Glenn, 53 ECAB 159 (2001).

24

See Debra L. Dillworth, 57 ECAB 516 (2006).

25

Patricia J. Glenn, supra note 23.

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A claimant bears the burden of proof to establish a claim for a consequential injury,
including a presentation or rationalized medical opinion evidence.26 Appellant did not meet that
burden in this case.
CONCLUSION
The Board finds that appellant has not established that he sustained an emotional
condition as a consequence of his February 3, 2006 employment-related lumbar strain.
ORDER
IT IS HEREBY ORDERED THAT the August 28, 2008 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: December 17, 2009
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

26

Charles W. Downey, supra note 15.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
U.S. POSTAL SERVICE, DISTRIBUTION
CENTER, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 06-1312
Issued: August 17, 2007

Case Submitted on the Record

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

JURISDICTION
On May 23, 2006 appellant filed a timely appeal from a May 8, 2006 decision of the
Office of Workers’ Compensation Programs which denied her claim on the basis that her injury
did not arise in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the appeal.
ISSUE
The issue is whether appellant’s injury on October 22, 2004 was sustained in the
performance of duty.
FACTUAL HISTORY
On October 22, 2004 an altercation arose between appellant, then a 42-year-old
maintenance custodian, and a coworker, Darian Hamlin. In her claim dated October 29, 2004,
appellant alleged that at 2:00 a.m. on October 22, 2004 she was assaulted by Mr. Hamlin in an
employing establishment elevator and beaten around her head, neck and back and thrown to the

floor. Cynthia S. Freeman, a coworker, stated that she witnessed appellant being repeatedly
struck about the face and body by a fellow employee on the elevator.1
The U.S. Postal Service Inspection Service conducted an investigation of the October 22,
2004 incident. In a November 2, 2004 report, Joseph L. Carcaci, a postal inspector, noted that
interviews were held with various employees concerning the altercation. Michael Sinko reported
that, while he was loading trucks with mail, he saw Mr. Hamlin punch appellant in the head.
When Mr. Sinko yelled at Mr. Hamlin, he stopped hitting appellant and she backed away.
Mr. Hamlin took the elevator back upstairs. Mr. Sinko did not see or hear anything between
Mr. Hamlin and appellant prior to observing Mr. Hamlin striking her. Ms. Freeman reported that
she had just returned from her lunch period when appellant told her that there was a bottle of
water for her in elevator 14. She approached Mr. Hamlin, who was in the elevator and asked for
the water bottle. Mr. Hamlin told her that it was his bottle of water. Ms. Freeman advised
appellant what Mr. Hamlin had said, at which point appellant went over to the elevator to get the
water bottle from Mr. Hamlin. She next saw appellant slide across the floor from elevator 14.
Appellant got up and went back over to the elevator. Ms. Freeman then went to the elevator and
saw appellant being held and repeatedly hit by Mr. Hamlin.
When interviewed by the inspection service, Mr. Hamlin stated that he was on elevator
14 at 2:00 a.m. when he transported a cafeteria employee on the elevator who gave him a bottle
of water. While on the platform level, he was approached by Ms. Freeman who said the water
bottle was for her. Mr. Hamlin told Ms. Freeman that the cafeteria worker had given the bottle
of water to him. Thereafter, appellant approached him “hollering and screaming about the water
being hers.” He indicated that appellant rushed towards him, grabbed the gate of the elevator
and then grabbed his shirt and arm. Mr. Hamlin pushed appellant away and she fell. She got up
and charged at him again. He acknowledged that he pushed or hit her to get her away from him.
When he tried to leave, appellant continued to grab at the elevator door. Ms. Freeman pulled her
away and he took the elevator upstairs to get mail. Mr. Hamlin advised that he had a relationship
with appellant that ended several months prior and that she had been harassing him for several
weeks. He attributed the altercation to their relationship and breakup.
Appellant advised the inspection service that on October 22, 2004 she was working as the
relief elevator operator on elevator 13 for Ms. Freeman, who was the regular operator. She was
moving mail and trash between the cafeteria and platform levels. At 2:00 a.m. Ms. Freeman
returned from lunch and Mr. Hamlin had just transported a cafeteria worker down to the platform
in elevator 14. This employee told appellant and Ms. Freeman that he had given Mr. Hamlin
appellant’s bottle of water. Appellant requested that Ms. Freeman ask Mr. Hamlin for the bottle
because she was busy moving trash. Ms. Freeman returned, stating that Mr. Hamlin said no and
had not given her the bottle of water. Appellant then went to elevator 14 to get the bottle of
water from Mr. Hamlin. She stated that she asked him for the bottle and he stated: “get the fuck
out of here” and punched her in the face. Appellant advised that elevator 14 was open and that

1

Appellant sought an emergency protective order in the Court of Common Pleas, Philadelphia County, which
was granted on October 24, 2004. Her petition for relief described her relationship with Mr. Hamlin as
“ex-boyfriend.”

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she did not say anything to provoke Mr. Hamlin nor had she touched him. She did not recall
being pushed or hit onto the platform floor and then returning to the elevator.2
In a December 15, 2004 decision, the Office denied appellant’s claim finding that the
October 22, 2004 incident did not arise in the performance of duty. The Office found that her
dispute with Mr. Hamlin did not pertain to work-related matters or have its origin in the
workplace, noting that it was due to her prior personal relationship with her coworker.
On January 14, 2005 appellant requested a hearing and submitted additional medical
evidence in support of the claim. Materials submitted to the record included those related to a
December 17, 2004 notice of removal issued to appellant following the October 22, 2004
altercation and the arbitration of this disciplinary matter. In a June 27, 2005 decision, a mediator
noted that on May 22, 2005 an arbitrator upheld a disciplinary action brought against
Mr. Hamlin. The mediator found that the failure of the employing establishment to interview the
cafeteria worker constituted a violation of appellant’s due process and that the evidence before
him did not support the assertion that she assaulted Mr. Hamlin at the time of the altercation or
acted in a provocative manner. He advised that videotapes of the incident consisted of timelapse pictures but did not show who started the altercation. However, the videotapes did reveal
Mr. Hamlin striking appellant.
A hearing was held on November 30, 2005. Counsel contended that the assault arose in
the performance of duty as appellant was merely trying to obtain a water bottle from Mr. Hamlin.
Appellant acknowledged having a prior relationship with Mr. Hamlin, which ended sometime in
2003 after which she had no dealings with him. She noted that she returned to work at a
different location on August 11, 2005 with restrictions on her physical activities.
In a May 8, 2006 decision, an Office hearing representative affirmed the December 15,
2004 decision. She found that the altercation arose from the personal relationship of appellant
and Mr. Hamlin and not from her work duties or any requirement of her employment.3
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation law, namely
“arising out of and in the course of employment.”5 “Arising in the course of employment”
2

Appellant received initial treatment at the employing establishment health clinic. A clinic nurse noted findings
on examination, including slight swelling of the left side of the face with no open sores or wounds and no bleeding
around the mouth, nose, eyes or ears. The nurse noted that she detected alcohol on appellant’s breath. Appellant
was also examined at a local emergency room where she was diagnosed with a jaw contusion.
3

Counsel requested a copy of the videotape referenced in the postal inspector’s report.
representative noted that a copy was not provided to the record.

The hearing

4

5 U.S.C. § 8102. See Guadalupe P. Americano, 53 ECAB 297 (2002); Leslie C. Moore, 52 ECAB 132 (2000).

5

Id. See also Bernard D. Blum, 1 ECAB 1 (1947).

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relates to the elements of time, place and work activity. To arise in the course of employment,
an injury must occur at a time when the employee may reasonably be said to be engaged in her
master’s business, at a place where she may reasonably be expected to be in connection with her
employment and while she was reasonably fulfilling the duties of her employment or engaged in
doing something incidental thereto. This alone, however, is not sufficient to establishment
entitlement to compensation.6
The employee must also establish the concurrent requirement of an injury “arising out of
the employment.” This requires that a factor of employment caused the injury.7 Larson, in
addressing assaults arising out of employment, states the following:
“Assaults arise out of the employment either if the risk of assault is increased
because of the nature or setting of the work, or if the reason for the assault was a
quarrel having its origin in the work.... Assaults for private reasons do not arise
out of the employment unless by facilitating an assault which would not otherwise
be made, the employment becomes a contributing factor….”8
The Board has held that when animosity or a dispute which culminates in an assault is
imported into the employment from a claimant’s domestic or private life, the assault does not
arise in the performance of duty.9 In Agnes V. Blackwell,10 the employee sustained injury
following an assault by a coworker with whom she had been romantically involved outside of
work. The Board denied coverage under the Act, finding that the altercation arose out of a prior
personal relationship between the employee and her coworker. The employee acknowledged
that, during the prior year, she had slept with her coworker on a single occasion but had come to
believe this a mistake as he was married. The Board found that the animosity which precipitated
the assault was imported into the employment from the prior private relationship between the
parties and not out of or in the course of their employment.
ANALYSIS
The Board finds that appellant’s injury on October 22, 2004 did not arise out of the
course of her federal employment.
At the time of the assault, appellant was engaged in the performance of her duties as a
maintenance clerk, working as the relief elevator operator on elevator 13 for Ms. Freeman. As
noted, however, time, place and manner are not alone sufficient to establish entitlement to
compensation. Appellant must also establish that her injury arose out of her employment or that
6

See Lenneth W. Richard, 49 ECAB 337 (1998); Janet Hudson-Dailey, 45 ECAB 435 (1994).

7

Guadalupe P. Americano, supra note 4; Charles Crawford, 40 ECAB 474 (1989). See also Clayton Varner,
37 ECAB 248 (1985); Thelma B. Barenkamp (Joseph Barenkamp), 5 ECAB 228 (1952).
8

A. Larson, The Law of Workers’ Compensation Chapter 8 (2006).

9

See Veleria Minus, 46 ECAB 799 (1995).

10

44 ECAB 200 (1992).

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a factor of her employment gave rise to the assault. Before the Office and on appeal to the
Board, counsel contends that this nexus is represented by “the quarrel over appellant’s water
bottle.” He characterized her prior relationship with her assailant as merely coincidental. The
Board does not agree.
The evidence of record does not establish that appellant’s employment contributed to or
facilitated the assault of October 22, 2004. The increased risk of injury arose from a prior
personal relationship with her coworker, which was imported into the workplace. Appellant’s
injury did not arise from the type of work she was required to perform as a maintenance
custodian. Rather, it was the result of personal animosity that arose out of her domestic and
private life and prior relationship with her coworker, an estranged boyfriend.11 The statements of
Mr. Sinko and Ms. Freeman reflect that they did not hear or observe what happened between
Mr. Hamlin and appellant prior to his striking her. Ms. Freeman noted that she approached
Mr. Hamlin in elevator 14 for a water bottle and was told that it was his. When she advised
appellant of this, appellant went to elevator 14. Ms. Freeman next saw appellant slide across the
floor, get up and return to the elevator. When she went back to the elevator, Ms. Freeman
observed appellant being struck by Mr. Hamlin.12
Mr. Hamlin advised the postal inspectors that he was approached by appellant, who
grabbed at his shirt and arm. The evidence establishes that he either pushed her or struck her and
she fell to the floor. Appellant then got up and returned to elevator 14. At this time,
Ms. Freeman arrived and, as noted, observed appellant being struck by Mr. Hamlin. He
apparently stopped after Mr. Sinko yelled at him and appellant backed away. Mr. Hamlin
attributed the altercation to his prior relationship with appellant and their break up. Appellant’s
statement described her work on the date of injury. She contended that she had not said or done
anything to provoke Mr. Hamlin. Appellant did not recall being pushed or hit onto the platform
floor or then returning to elevator 14, as described by Ms. Freeman and Mr. Hamlin. On appeal,
counsel contends that the statement of Mr. Hamlin is not trustworthy or credible, as he was the
aggressor with a dangerous propensity towards violence and whose removal from employment
was ultimately upheld. However, there is nothing of record to cast doubt upon the credibility of
any of the statements obtained by the postal inspectors. The only significant question is the
motivation for the assault on appellant, a matter Mr. Hamlin clearly attributed to their prior
relationship outside of work. Such animosity or quarrel did not have its origin in the workplace.
CONCLUSION
The Board finds that appellant’s injury on October 22, 2004 did not arise out of the
course of her federal employment.
11

“[I]t would be going too far to say that every assault arises out of the employment if it can be proved that the
acquaintance of the parties came about through the employment. If the friction and strain arise not because of the
enforced contacts resulting from the duties of the employment, but rather because the two employees, who met each
other on the job, choose to enter into a purely private relationship just as they might if they had met elsewhere and if
in the course of the ups and downs of that private relationship a private quarrel develops, the quarrel may well be
treated the same as a domestic quarrel brought to the employment.” A. Larson, supra note 8 at § 8.02[2].
12

Ms. Freeman’s account of the assault does not support appellant’s subsequent assertion that she lost
consciousness at the time of injury.

5

ORDER
IT IS HEREBY ORDERED THAT the May 8, 2006 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 17, 2007
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, MITCHELL POST
OFFICE, Mitchell, SD, Employer
__________________________________________

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Appearances:
Larissa Ann Parde, for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0908
Issued: March 4, 2022

Case Submitted on the Record

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

JURISDICTION
On May 26, 2021 appellant, through his representative, filed a timely appeal from a
March 24, 2021 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right hip condition
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On July 11, 2018 appellant, then a 57-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained right hip osteoarthritis as a result of factors
of his federal employment including standing, walking, lifting, twisting, and turning. He noted
that he first became aware of his claimed condition and that it was cause d or aggravated by his
federal employment on May 9, 2018. Appellant did not stop work.
In a development letter dated July 17, 2018, OWCP advised appellant of the deficiencies
of the claim. It advised him of the type of factual and medical evidence necessary to establish his
claim and afforded him 30 days for the submission of additional evidence.
An x-ray of appellant’s right hip obtained on May 9, 2018 demonstrated advancement of
severe degenerative joint disease with bone-on-bone acetabular osteophytes.
In a note dated June 18, 2018, Dr. Chris Krouse, an osteopath Board-certified in orthopedic
surgery, diagnosed severe degenerative change of the right hip. He recommended a total hip
arthroplasty. Dr. Krouse noted that appellant had a long-standing history of extensive use of the
right hip as a result of his federal employment, including factors such as ambulation, lifting of mail
tubs, pushing/pulling, and bending/twisting. He opined within a reasonable degree of certainty
that appellant’s right hip degenerative change was beyond a reasonable doubt directly related to
appellant’s occupation and 35 years of federal service.
By decision dated October 9, 2018, OWCP denied appellant’s claim as the medical
evidence of record was insufficient to establish a causal relationship between the diagnosed
conditions and factors of his federal employment.
OWCP continued to receive medical evidence. In a report dated September 5, 2013,
Dr. John Swisher, an osteopath Board-certified in sports medicine, examined appellant for
complaints of right hip and leg pain. He diagnosed right low back pain with right lower extremity
pain resembling potential radiculopathy, right lateral hip pain, either secondary to radiculopathy
or trochanteric syndrome, right proximal hamstring pain consistent with probable tendinosis,
intermittent right knee pain with evidence of degenerative joint disease , and right groin/deep
gluteal pain with femoral acetabular impingement. In a report dated September 25, 2013,
Dr. Swisher diagnosed localized osteoarthritis of the pelvis, lumbosacral spondylosis, and
trochanteric bursitis.
An x-ray of appellant’s right hip obtained on September 5, 2013 demonstrated moderate
narrowing involving the superior hip joint space with osteophytes off the superior and inferior
aspects of the acetabulum and inferior aspect of the femoral head. A magnetic resonance imaging
scan of the hip and pelvis obtained on September 6, 2013 demonstrated degenerative changes

2

including flattening of the inferior articular surface of the femoral head, osteophyte formation, and
moderate narrowing medially.
On April 11, 2014 appellant underwent right hip arthroscopic labral repair, arthroscopic
acetabuloplasty and arthroscopic femoral neck osteochondroplasty.
In a report dated September 17, 2014, Dr. Swisher examined appellant for complaints of
progressively more painful right hip. He diagnosed right greater trochanteric syndrome and
administered an injection.
In a report dated February 8, 2016, Dr. Krouse examined appellant for complaints of right
hip pain. He diagnosed right hip pain, likely bursitis versus degenerative change. Dr. Krouse
administrated an injection.
On July 20, 2016 Dr. Krouse examined appellant for right hip and left knee pain. On
physical examination of the right hip, he observed a positive grind test. Dr. Krouse diagnosed left
knee and right hip degenerative joint disease. He administered an injection.
Dr. Krouse reported on May 9, 2018 that he had examined appellant for severe right hip
pain, interfering with walking and sleeping. On physical examination, he observed a severely
antalgic gait with positive grind testing and minimal internal/external rotation. Dr. Krouse
diagnosed bone-on-bone degenerative joint disease of the right hip and recommended right hip
arthroplasty.
In a note dated May 23, 2018, Dr. Krouse diagnosed right hip advanced degenerative
change and opined that, after reviewing appellant’s work duties, his diagnosis was beyond a
reasonable doubt directly related to appellant’s occupation of over 35 years. He explained that the
amount of ambulation and positional changes appellant performed were the direct cause of
aggravation and acceleration of cartilage wear of the right hip, leading to advanced osteoarthritis
necessitating total hip arthroplasty.
OWCP received a note from Dr. Krouse dated July 5, 2018, which was substantially similar
to his note of June 18, 2018.
In a letter dated January 16, 2019, Dr. Krouse diagnosed degenerative joint disease. He
noted that appellant’s overall degenerative decline, based on physical examination and
radiographic findings, continued to progress despite conservative treatment. Dr. Krouse reviewed
appellant’s employment duties and opined that they had contributed to acceleration of appellant’s
degenerative joint disease.
On June 7, 2019 appellant requested reconsideration of the October 9, 2018 decision.
By decision dated August 27, 2019, OWCP denied modification.
In a letter dated January 29, 2020, Dr. Krouse stated that he had reviewed all medical
documentation and agreed with his previous narrative.
On March 10, 2020 appellant requested reconsideration.

3

By decision dated May 5, 2020, OWCP denied modification.
In a letter dated October 28, 2020, Dr. Krouse explained that, as stated previously, it
appeared that appellant’s degenerative changes had been exacerbated by appellant’s work duties,
which included ambulating for long distances and on uneven surfaces, climbing stairs, carrying a
weighted satchel, and entering/exiting his work vehicle several times per day while delivering mail
for over 39 years. He opined that the duties of appellant’s employment, including an excessive
amount of walking, was likely a contributing factor to appellant’s arthritis. Dr. Krouse explained
that appellant was on his feet for upwards of 10 hours per day for five to six days per week and
that appellant’s duties would contribute to progressive degenerative changes to the hip joint, which
over time would be viewed as degenerative arthritis. He opined that there was a causal relationship
between appellant’s duties and his medical findings on examination. Dr. Krouse further explained
that working for 39 years and averaging many miles of walking in various terrains with repetitive
movement, up and down stairs, on uneven ground, in and out of mail trucks, twisting, and changing
directions would contribute to appellant’s osteoarthritis findings. He opined within a reasonable
medical certainty that appellant’s repetitive walking and duties of appellant’s federal employment
over the past 39 years was a contributing factor to his medical findings of hip osteoarthritis.
Dr. Krouse further opined that appellant’s work duties had aggravated his diagnosed appellant’s
osteoarthritis, that it was beyond a reasonable double that years of repetitive movement and
excessive loading/movements were well beyond a normal course of natural aging to the joints. He
opined that it was his medical judgment that this process was a contributing factor to acceleration
of hip osteoarthritis.
On December 29, 2020 appellant requested reconsideration.
By decision dated March 24, 2021, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed with in the applicable
time limitation of FECA, 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 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.
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence o f the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or co ndition for which

3

Id.

4

C.K., Docket No. 19-1549 (issued June 30, 2020); R.G., Docket No. 19-0233 (issued July 16, 2019); Elaine
Pendleton, 40 ECAB 1143 (1989).

4

compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors.5
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 6 The opinion of the physician must be based on a complete factual
and medical background, must be one of reasonable medical certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors. 7
ANALYSIS
The Board finds that this case is not in posture for decision.
In a note dated May 23, 2018, Dr. Krouse diagnosed right hip advanced degenerative
change and after reviewing appellant’s work duties, opined that his diagnosis was directly related
to appellant’s occupation of over 35 years. He explained that the amount of ambulation and
positional changes were the direct cause of aggravation and acceleration of cartilage wear of the
right hip, leading to advanced osteoarthritis necessitating total hip arthroplasty.
In a letter dated October 28, 2020, Dr. Krouse explained that, as stated previously, it
appeared that appellant’s degenerative changes had been exacerbated by appellant’s work duties,
which included ambulating for long distances and on uneven surfaces, climbing stairs, carrying a
weighted satchel, and entering/exiting his work vehicle several times per day while delivering mail
for over 39 years. He opined that the duties of appellant’s employment, including an excessive
amount of walking, was likely a contributing factor to appellant’s arthritis. Dr. Krouse explained
that appellant was on his feet for upwards of 10 hours per day for five to six days per week and
that appellant’s duties would contribute to progressive degenerative changes to the hip joint, which
over time would be viewed as degenerative arthritis. He opined that there was a causal relationship
between appellant’s duties and medical findings on examination. Dr. Krouse further explained
that appellant’s work for 39 years, averaging many miles of walking in various terrains with
repetitive movement, up and down stairs, on uneven ground, in and out of m ail trucks, twisting,
and changing directions would contribute to appellant’s osteoarthritis findings. He further opined
that appellant’s work duties had aggravated his diagnosed his osteoarthritis, as years of repetitive
movement and excessive loading/movements were well beyond a normal course of natural aging
to the joints. Dr. Krouse opined that it was his medical judgment that this process was a
contributing factor to acceleration of hip osteoarthritis.
The Board finds that, taken together, Dr. Krouse’s reports are sufficient to require further
development of the medical evidence. Dr. Krouse provided a comprehensive understanding of the

5

L.D., Docket No. 19-1301 (issued January 29, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
6

I.J., Docket No. 19-1343 (issued February 26, 2020); T.H., 59 ECAB 388 (2008); Robert G. Morris, 48 ECAB
238 (1996).
7

D.J., Docket No. 19-1301 (issued January 29, 2020).

5

medical record and case history. He provided explanation as to how appellant’s work duties
resulted in his diagnosed right hip condition.
The Board has long held that it is unnecessary that the evidence of record in a case be so
conclusive as to suggest causal connection beyond all possible doubt. Rather, the evidence
required is only that necessary to convince the adjudicator that the conclusion drawn is rational,
sound, and logical. 8 Dr. Krouse’s reports, while insufficient to meet appellant’s burden of proof
to establish his claim, raise an uncontroverted inference between his diagnosed right hip condition
and the accepted factors of appellant’s federal employment. Accordingly, his medical opinion is
sufficiently to require further development of appellant’s claim.9
It is well established that, proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.10 OWCP has an obligation to see that justice is
done.11
On remand, OWCP shall refer appellant to a physician in the appropriate field of medicine,
along with the case record and a statement of accepted facts, for an examination and a rationalized
medical opinion as to whether the accepted employment factors either caused or aggravated h is
diagnosed right hip conditions. 12 If the second opinion physician disagrees with the opinion of
Dr. Krouse, he or she must provide a fully-rationalized explanation explaining why the accepted
employment factors were insufficient to have caused or aggravated appellant’s right hip condition.
After this and other such further development as deemed necessary, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

8

B.H., Docket No. 20-0734 (issued November 13, 2020); W.M., Docket No. 17-1244 (issued November 7, 2017);
E.M., Docket No. 11-1106 (issued December 28, 2011); Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases
cited therein.
9

D.S., Docket No. 17-1359 (issued May 3, 2019); X.V., Docket No. 18-1360 (issued April 12, 2019); C.M., Docket
No. 17-1977 (issued January 29, 2019); William J. Cantrell, 34 ECAB 1223 (1983).
10

See id. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219,
223 (1999).
11

See B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19, 2010);
John J. Carlone, 41 ECAB 354 (1989).
12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
C.C., Docket No. 19-1631 (issued February 12, 2020).

6

ORDER
IT IS HEREBY ORDERED THAT the March 24, 2021 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: March 4, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phoenix, AZ, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 19-0368
Issued: November 26, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On December 10, 2018 appellant, through counsel, filed a timely appeal from a
November 6, 2018 decision of the Office of Workers’ Compensation Programs (OWCP). The
Clerk of the Appellate Boards docketed the appeal as No. 19-0368.
On October 7, 2017 appellant, then a 52-year-old mail carrier, filed a notice of recurrence
(Form CA-2a) of disability concerning a previously accepted October 10, 2014 employment injury
under File No. xxxxxx866. On his Form CA-2a he identified September 27, 2017 as the date of
recurrence and explained that his current condition was related to his original injury because the
pain in his lower back was in the same place. On the reverse side of the claim form S.M.,
appellant’s manager at the employing establishment, confirmed that after the October 10, 2014
original injury appellant accepted a permanent modified job offer on November 20, 2015. She
noted that appellant had worked his modified carrier position until he stopped work on
September 27, 2017. Appellant submitted various medical reports related to his claimed
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.

recurrence of injury. The claim for appellant’s previously accepted October 10, 2014 employment
injury under File No. xxxxxx866 is not presently before the Board.
On November 29, 2017 appellant filed an occupational disease claim (Form CA-2) alleging
that he had sustained a “flare-up” of back pain while delivering mail, and that the pain was in the
same location as the pain he experienced in October 2014. He noted that he first became aware of
his condition and realized it resulted from his employment on October 7, 2017. OWCP assigned
that claim File No. xxxxxx821. By decision dated February 27, 2018, it denied appellant’s
occupational disease claim, finding that the evidence of record was insufficient to establish that
the employment factors occurred as alleged. OWCP noted that appellant had not submitted a
detailed description of the employment factors he believed caused or contributed to his alleged
lumbar condition. Accordingly, appellant had not met his burden of proof to establish fact of
injury.2
On July 24, 2018 appellant, through counsel, requested reconsideration. By decision dated
November 6, 2018, OWCP denied modification of the February 27, 2018 denial decision.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between case files.3 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition or the same part of the body, doubling is required.4
Herein, appellant filed a recurrence of disability claim for an October 10, 2014 injury, to
which OWCP had assigned File No. xxxxxx866. He subsequently filed an occupational disease
claim on November 29, 2017, which was assigned File No. xxxxxx821. On the claim form
appellant noted that he sustained a “flare-up” of back pain and related that his back was hurting in
the same place as the October 10, 2014 work injury. OWCP thereafter denied the occupational
disease claim for failure to establish fact of injury. In its February 27, 2018 decision, it noted that
appellant had filed a recurrence of disability claim of his October 10, 2014 work injury. OWCP
did not, however, provide any other information regarding the adjudication of appellant’s
recurrence claim nor an explanation for why it adjudicated appellant’s new November 29, 2017
occupational disease claim instead of his October 7, 2017 recurrence of injury claim.
The record reveals that appellant’s previous October 10, 2014 employment injury was
assigned File No. xxxxxx866 and that the injury in that claim was to the same part of the body as
the injury in the present claim. The factual and medical evidence pertaining to File No.
xxxxxx866, however, is not in the case record presently before the Board.

2

OWCP also noted that appellant had filed a recurrence claim on October 10, 2017 alleging that he sustained a
recurrence of his previously accepted October 10, 2014 work injury under File No. xxxxxx866. It related that the
previous claim was accepted for closed lumbar fracture.
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8c
(February 2000).
4

Id.

2

For a full and fair adjudication, the case must be returned to OWCP to combine the current
case record with File No. xxxxxx866.5 On remand OWCP shall determine whether appellant
sustained either a new work injury or a recurrence of disability due to his previously accepted
employment injury. Following this and other such further development as it deems necessary,
OWCP shall issue a de novo decision. Accordingly,
IT IS HEREBY ORDERED THAT the November 6, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: November 26, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

5

See M.W., Docket No. 17-0743 (issued January 23, 2018).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sylvania, OH, Employer
__________________________________________

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)
)
)
)
)
)
)

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

Docket No. 16-0234
Issued: April 11, 2017

Case Submitted on the Record

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

JURISDICTION
On November 19, 2015 appellant filed a timely appeal from June 19 and October 26,
2015 merit decisions 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 determined that appellant had more than 10 percent
permanent impairment of the left upper extremity, for which she previously received a schedule
award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on January 4, 2012 appellant, then a 56-year-old rural carrier, lifted
a tub of mail and sustained a left shoulder strain/sprain with adhesive capsulitis.2
Dr. Stephen R. Saddemi, an attending Board-certified orthopedic surgeon, diagnosed left
shoulder impingement with adhesive capsulitis on February 8, 2012. On April 24, 2012 he
performed closed manipulation of the left shoulder under general anesthesia and an intraarticular injection, approved by OWCP. Appellant received wage-loss compensation for work
absences. She continued to participate in physical therapy. Dr. Saddemi released appellant to
full-time, limited-duty work on August 1, 2012.
As appellant’s condition did not improve on September 27, 2012 Dr. Saddemi performed
arthroscopic subacromial decompression with bursectomy and acromioplasty, a Mumford
procedure with distal clavicle restriction, and manipulation under anesthesia. OWCP authorized
these procedures and issued wage-loss compensation for work absences. Appellant returned to
full-time, limited-duty work on January 7, 2013. She participated in postoperative physical
therapy through June 2013. OWCP paid wage-loss compensation for intermittent work
absences. Appellant returned to full duty on February 10, 2014.3
On August 18, 2014 appellant filed a claim for a schedule award (Form CA-7). In an
August 27, 2014 letter, OWCP notified her of the additional evidence needed to establish her
schedule award claim, including a report from her attending physician supporting that she had
attained maximum medical improvement (MMI), the diagnosis on which the permanent
impairment is based, a detailed description of the permanent impairment, and an impairment
rating calculated according to the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (hereinafter, A.M.A., Guides). Appellant was afforded
30 days to submit such evidence.
In response, appellant provided her September 15, 2014 letter, explaining that
Dr. Saddemi did not perform impairment ratings, but could refer her to a physician who did if
OWCP would authorize the expense.
On April 10, 2015 OWCP obtained a second opinion from Dr. Emmauel Obianwu, a
Board-certified orthopedic surgeon. Dr. Obianwu reviewed the medical record and a statement
of accepted facts. On examination, he found forward flexion of the left shoulder at 140 degrees,
abduction at 130 degrees, internal rotation at 70 degrees, internal rotation at 40 degrees,
extension at 40 degrees, and adduction at 40 degrees. Dr. Obianwu observed tissue tightness at
the terminal phases of motion which he attributed to intrinsic capsular tightness. He opined that
appellant had attained MMI. Dr. Obianwu diagnosed adhesive capsulitis with impingement of
the left shoulder and mild0-to-moderate residual adhesive capsulitis. He opined that appellant
2

A January 13, 2012 magnetic resonance imaging scan of the left shoulder showed supraspinatus tendinopathy
without a full-thickness tear, and hypertrophic degenerative changes of the acromioclavicular joint causing
impingement upon the supraspinatus musculotendinous junction).
3

Dr. Saddemi administered a series of subacromial injections through February 5, 2015.

2

sustained a permanent impairment due to residual adhesive capsulitis and the Mumford resection
of the distal clavicle. Referring to Table 15-5 of the A.M.A., Guides,4 Dr. Obianwu noted a
diagnosis-based impairment (DBI) for acromioclavicular joint disease with distal clavicle
resection, with a default grade C, equaling 10 percent. Appellant had a grade modifier for
Functional History (GMFH) of 1 for symptoms with strenuous activities, a grade modifier for
Clinical Studies (GMCS) of 2 for tenderness on palpation with some crepitus, and a grade
modifier for Physical Examination (GMPE) of zero. Applying the net adjustment formula of
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), or (1-1) + (0-1) + (2-1), Dr. Obianwu
calculated a net grade modifier of zero. He therefore found 10 percent permanent impairment of
the left arm. Dr. Obianwu also opined that appellant had additional “stand-alone” impairments
for range of motion (ROM) loss under Table 15-345 of the A.M.A., Guides: three percent for
flexion at 140 degrees; three percent for abduction at 130 degrees; one percent for extension at
30 degrees; two percent internal rotation at 70 degrees; two percent for external rotation at 40
degrees. He added these percentages to equal 11 percent permanent impairment of the left upper
extremity. Dr. Obianwu then combined the 10 percent DBI impairment with the 11 percent
impairment for loss of ROM, equaling 21 percent permanent impairment of the left arm.
In an April 24, 2015 addendum, Dr. Obianwu clarified that the correct combined
impairment was 20 percent for “two etiological conditions in one extremity or organ system.”
An OWCP medical adviser reviewed Dr. Obianwu’s impairment rating on May 29, 2015
and opined that it should be disregarded. The medical adviser instead recommended a DBI
rating of 10 percent according to Table 15-5,6 as the distal clavicle resection was the “most
impairing” condition. The medical adviser opined that the A.M.A., Guides did not allow
inclusion of ROM impairments in a DBI rating.
By decision dated June 19, 2015, OWCP issued a schedule award for 10 percent
permanent impairment of the left upper extremity, based on OWCP’s medical adviser’s review
of Dr. Obianwu’s clinical findings
On August 6, 2015 appellant requested reconsideration. She questioned why OWCP
would refer her to Dr. Obianwu and then disregard his opinion. Appellant submitted a
September 9, 2015 report from Dr. Saddemi, noting that he administered a subacromial injection
that day.
By decision dated October 26, 2015, OWCP denied modification of the June 19, 2015
schedule award determination, finding that Dr. Obianwu misapplied the A.M.A., Guides by
including ROM deficits in his impairment rating.

4

Table 15-5, page 403 of the sixth edition of the A.M.A., Guides is titled “Shoulder Regional Grid: Upper
Extremity Impairments.”
5

Table 15-34, page 475 of the sixth edition of the A.M.A., Guides is titled “Shoulder Range of Motion.”

6

Table 15-5, page 405 of the sixth edition of the A.M.A., Guides is titled “Shoulder Regional Grid: Upper
Extremity Impairments.”

3

LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.7 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.8 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 under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.9
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).10 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.11
ANALYSIS
The issue on appeal is whether OWCP properly determined that appellant had more than
10 percent permanent impairment of the left upper extremity, for which she previously received
a schedule award. Dr. Obianwu, a Board-certified orthopedic surgeon and second opinion
physician, opined that according to the ROM rating method of the A.M.A., Guides, the accepted
injuries caused 11 percent permanent impairment of the left arm which he combined with 10
percent DBI to yield 20 percent total permanent impairment of the left arm. In contrast, an
OWCP medical adviser found that appellant had 10 percent permanent impairment of the left
arm using the DBI rating method which excluded deficits due to limited ROM. OWCP issued its
June 19, 2015 schedule award for 10 percent permanent impairment of the left upper extremity,
7

See 20 C.F.R. §§ 1.1-1.4.

8

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
9

5 U.S.C.

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

10

See 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).
11

Isidoro Rivera, 12 ECAB 348 (1961).

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relying on OWCP’s medical adviser’s use only of the DBI rating method, as he opined that the
distal clavicle resection was more impairing than the ROM deficits and noted that DBI and ROM
methods could not be combined.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.12
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.13 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.14
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the June 19 and
October 26, 2015 decisions. Following OWCP’s development of a consistent method for
calculating permanent impairment for upper extremities to be applied uniformly, and such other
development as may be deemed necessary, OWCP shall issue a de novo decision on appellant’s
claim for an upper extremity schedule award.
CONCLUSION
The Board finds that this case is not in posture for decision.

12

T.H., Docket No. 14-0943 (issued November 25, 2016).

13

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

14

Supra note 12.

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ORDER
IT IS HEREBY ORDERED THAT the October 26 and June 19, 2015 decisions of the
Office of Workers’ Compensation Programs are set aside, and the case is remanded for further
action consistent with this decision.
Issued: April 11, 2017
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

6