United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Buffalo, NY,
Employer
__________________________________________

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

Docket No. 20-0773
Issued: December 8, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On February 20, 2020 appellant filed a timely appeal from a September 23, 2019 merit
decision and a January 14, 2020 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a left knee
condition causally related to the accepted June 19, 2017 employment incident; and (2) whether
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 14, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

OWCP properly denied appellant’s request for reconsideration of the merits of her claim pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 14, 2017 appellant, then a 55-year-old program evaluation and risk analyst, filed a
traumatic injury claim (Form CA-1) alleging that on June 19, 2017 she sustained a knee injury
when she stepped onto a curb while walking into the parking lot of her building while in the
performance of duty. She did not immediately stop work.
A July 5, 2017 magnetic resonance imaging (MRI) scan of the right knee revealed a fairly
extensive degenerative tear involving the lateral meniscus, mild degenerative changes in the
medial meniscus, grade two degenerative change in the medial compartment of the medial femoral
condyle, grade three degenerative change in the patellofemoral compartment, grade two
degenerative change in the lateral compartment, associated joint effusion, and a Baker’s cyst.
On July 10, 2017 Dr. John C. Karpie, a Board-certified orthopedist, treated appellant for
right knee pain that developed after a twisting injury on her way into work on June 19, 2017.
Examination of the right knee revealed slightly antalgic gait, mild effusion, and tenderness to
palpation over the medial and lateral joint line and medial patellar facet. Dr. Karpie reviewed the
MRI scan of the right knee and diagnosed right knee conditions of chondromalacia patellae, other
meniscal derangements and unspecified lateral meniscus, and other meniscus derangements. On
July 20, 2017 he performed a right knee arthroscopic partial lateral meniscectomy and right knee
arthroscopic extensive synovectomy. Dr. Karpie diagnosed right knee lateral meniscal tear and
right knee synovitis. On July 28, 2017 he evaluated appellant eight days status post right knee
surgery and noted the incisions were clean and dry with mild swelling. Dr. Karpie diagnosed other
tear of lateral meniscus, right knee, synovial hypertrophy, right lower leg, and chondromalacia
patellae, right knee. He removed sutures and recommended physical therapy and sedentary work
beginning July 31, 2017. In a July 28, 2017 work restriction note, Dr. Karpie treated appellant in
follow up and released her to work without restrictions on July 31, 2017.3
In a development letter dated September 13, 2017, OWCP informed appellant of the
deficiencies of her claim. It advised her of the type of factual and medical evidence needed and
provided a questionnaire for her completion. In a separate development letter dated September 25,
2017, OWCP also requested additional information from the employing establishment. It afforded
both parties 30 days to submit the necessary evidence.
In response to OWCP’s development letter, appellant submitted a statement and indicated
that on the morning of June 19, 2017 she walked approximately seven feet inside the fence
surrounding the perimeter of the federal building where she worked and stepped onto a curb
twisting her right knee. She immediately experienced right knee pain and swelling and on June 30,
2017 she sought treatment from Dr. Alexandra C. D’Angelo, an osteopath. Appellant had not
experienced a similar injury prior to this time. She indicated that at the time of her injury she was
on the premises of the employing establishment.
3

Appellant attended physical therapy treatment from August 3 through 30, 2017.

2

In a work restriction note dated July 11, 2017, Dr. Karpie indicated that appellant was
scheduled for right knee surgery on July 20, 2017 and would be totally disabled from July 20
to 28, 2017. In reports dated September 1, October 6, and November 17, 2017, he noted that
appellant was progressing well after surgery and could return to full-duty work. In the October 6
and November 17, 2017 reports, Dr. Karpie checked a box marked “Yes” indicating that the
employment incident was the competent medical cause of her injury. In an attending physician’s
report (Form CA-20) dated October 12, 2017, he advised that appellant twisted her right knee?on
June 19, 2017 while going into work. Dr. Karpie diagnosed right knee medial meniscus tear and
status post arthroscopy meniscectomy and checked a box marked “Yes” indicating that appellant’s
condition had been caused or aggravated by an employment activity. He noted that appellant was
disabled from July 11 to 30, 2017 and could resume regular duty on July 31, 2017.
By decision dated December 15, 2017, OWCP denied the claim, finding that the June 9,
2017 employment incident occurred, as alleged, but that the medical evidence submitted was
insufficient to establish causal relationship between her diagnosed condition and the accepted
June 19, 2017 employment incident.
In attending physician’s reports (Form CA-20) dated November 21, 2017 and March 27,
2018, Dr. Karpie indicated that appellant twisted her right knee? on June 19, 2017, while going to
work. He diagnosed right knee lateral meniscus tear and synovitis of the right knee and checked
a box marked “Yes” indicating that appellant’s condition had been caused or aggravated by an
employment activity. Dr. Karpie noted that appellant had been working full duty since
September 1, 2017. In reports dated March 16 and July 27, 2018, he noted that appellant was
status post right knee arthroscopic partial lateral meniscectomy and synovectomy and reported 90
percent improvement overall. Dr. Karpie noted that appellant had retired.
On January 10, 2018 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review. The hearing was held on June 14, 2018.
By decision dated September 4, 2018, OWCP’s hearing representative affirmed the
December 15, 2017 decision.
In an attending physician’s report (Form CA-20) dated August 8, 2018, Dr. Karpie
diagnosed right knee lateral meniscus tear and synovitis of the right knee and checked a box
marked “Yes,” indicating that appellant’s condition had been caused or aggravated by an
employment activity.
On October 16, 2018 appellant requested reconsideration. In support of her request, she
submitted a September 20, 2018 note from Dr. Karpie, who indicated that appellant sustained a
twisting injury to her right knee on June 19, 2017 and experienced medial and anterior knee pain,
which has continued. He indicated that appellant did not have pain or dysfunction prior to her
twisting injury. Dr. Karpie concluded that the twisting injury on June 19, 2017 caused her
meniscal tears resulting in pain, dysfunction, and surgery.
By decision dated January 8, 2019, OWCP denied modification of the September 4, 2018
decision.

3

On March 8, 2019 appellant requested reconsideration. She submitted a June 30, 2017
report from Dr. D’Angelo, who treated her for right knee pain which began on June 19, 2017.
Appellant reported walking through a parking lot and stepping on a curb and twisting her right
knee. Examination of the right knee revealed no instability, intact strength, normal muscle tone,
full range of motion, and negative anterior drawer and posterior drawer test. Dr. D’Angelo
diagnosed pain in the right knee.
By decision dated April 30, 2019, OWCP denied modification of the January 8, 2019
decision.
On June 25, 2019 appellant requested reconsideration. She submitted documents which
provided definitions of knee sprains, strains, and tears.
By decision dated September 23, 2019, OWCP denied modification of the April 30, 2019
decision.
On January 10, 2020 appellant requested reconsideration. In support thereof, she submitted
a statement dated January 6, 2020 in which she reiterated that she had injured her right knee on
June 19, 2017 while walking into work. Appellant indicated that she was also carrying a computer
bag weighing approximately 22 pounds that contained her computer, cords, and file folders. She
attached a photograph of the computer bag. Appellant noted no prior injuries to her knee. She
also resubmitted a report from Dr. Karpie dated September 20, 2018, previously of record.
By decision dated January 14, 2020, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA,5 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.6 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.7
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
4

Id.

5

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

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are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.8
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a right knee
condition causally related to the accepted June 19, 2017 employment incident.
Dr. Karpie, in a note dated September 20, 2018, indicated that on June 19, 2017 appellant
sustained a twisting injury to her right knee and experienced medial and anterior knee pain. He
noted that appellant did not have pain or dysfunction prior to her twisting injury. Dr. Karpie
concluded that the twisting injury on June 19, 2017 caused her meniscal tears resulting in pain and
dysfunction and surgery. Although Dr. Karpie supported causal relationship, he did not provide
medical rationale supporting his conclusory opinion. The Board has held that a medical opinion
is of limited value if it is conclusory in nature.11 A medical opinion must explain how the
implicated employment incident physiologically caused, contributed to, or aggravated the specific
diagnosed conditions.12 Dr. Karpie did not explain how appellant’s act of twisting had resulted in
the conditions he had diagnosed and considered work related. Without this explanation, his report
is insufficient to meet appellant’s burden of proof to establish her claim.13
In support of her claim, appellant submitted additional medical records authored by
Dr. Karpie, including a July 10, 2017 report in which he diagnosed right knee conditions, a July 20,
2017 surgical report, a July 28, 2017 report in which he noted the prior surgery and diagnosed right
knee conditions, and work restriction notes dated from July 28 to November 17, 2017 in which he
reported treating appellant. However, in none of these reports did Dr. Karpie provide an opinion
8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
11

C.M., Docket No. 19-0360 (issued February 25, 2020); B.H., Docket No. 18-1219 (issued January 25, 2019).

12

C.M., id.; K.G., Docket No. 18-1598 (issued January 7, 2020).

13

Id.

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on the issue of causal relationship. The Board has held that medical evidence that does not offer
an opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.14 These reports, therefore, are insufficient to establish appellant’s claim.
In reports dated October 6, and 12, November 17 and 21, 2017, and August 8, 2018,
Dr. Karpie checked a box marked “Yes” indicating that appellant’s condition had been caused or
aggravated by an employment activity. However, the Board has held that an opinion on causal
relationship that consists only of an affirmative check mark on a form report, without more by way
of medical rationale, is of limited probative value.15 As such, these reports are insufficient to
establish appellant’s claim.
Appellant also submitted reports signed by a physical therapist. Certain healthcare
providers such as physical therapists,16 however, are not considered physicians as defined under
FECA.17 Consequently, these reports will not suffice for purposes of establishing entitlement to
FECA benefits.18
Appellant further submitted a right knee MRI scan report. The Board has held, however,
that diagnostic studies, standing alone, lack probative value on the issue of causal relationship as
they do not address whether the employment incident caused the diagnosed conditions.19 The MRI
scan is thus insufficient to establish the claim.
Appellant also submitted excerpts from a publication which provided definitions of knee
sprains, strains, and tears. The Board has long held that medical texts and excerpts from
publications lack probative value in establishing the causal relationship between a claimed
condition and an employment incident as such materials are of general application and are not
determinative of whether the specific condition claimed is related to the particular employment
factors alleged by the employee.20 This material has probative value only to the extent that it is
interpreted and cited by a physician rendering an opinion on the causal relationship between a
14

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

15

See C.S., Docket No. 18-1633 (issued December 30, 2019); D.S., Docket No. 17-1566 (issued
December 31, 2018).
16

V.W., Docket No. 16-1444 (issued March 14, 2017) (where the Board found that physical therapy reports do not
constitute competent medical evidence because a physical therapist is not a “physician” as defined under FECA).
17

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

18
Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3(a)(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); R.L., Docket
No. 19-0440 (issued July 8, 2019) (physical therapists are not considered physicians as defined under FECA).
19

K.G., Docket No. 18-1598 (issued January 7, 2020); J.P., Docket No. 19-0216 (issued December 13, 2019).

20

L.C., Docket No. 17-1811 (issued March 23, 2018); N.B., Docket No. 14-1702 (issued December 29, 2014); S.A.,
Docket No. 13-1551 (issued December 17, 2013); Gloria J. McPherson, 51 ECAB 441 (2000); William C. Bush, 40
ECAB 1064, 1075 (1989).

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condition and specified employment injury.21 As these publications were not interpreted and cited
by appellant’s physicians in offering a rationalized medical opinion as to how appellant’s specific
employment factors caused her diagnosed conditions, these publications are insufficient to
establish causal relationship.
On appeal appellant asserts that she submitted sufficient medical evidence in support of
her claim for compensation. However, as explained above, there was no rationalized medical
evidence by a physician of record at the time OWCP issued its September 23, 2019 decision. As
such, the Board finds that appellant has not met her burden of proof.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.22
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.23
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.24 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.25 If the request is timely, but fails to meet at least one of the

21

L.C., id.; C.S., Docket No. 12-1169 (issued November 5, 2012); Harlan L. Soeten, 38 ECAB 566, 567 (1987).

22

5 U.S.C. § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468 (issued
February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).
23

20 C.F.R. § 10.606(b)(3); see also E.W., Docket No. 19-1393 (issued January 29, 2020); L.D., id.; B.W., Docket
No. 18-1259 (issued January 25, 2019).
24
Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
25
Id. at § 10.608(a); see also Y.H., Docket No. 18-1618 (issued January 21, 2020); R.W., Docket No. 18-1324
(issued January 21, 2020); M.S., 59 ECAB 231 (2007).

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requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.26
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant has not alleged or demonstrated that OWCP erroneously applied or interpreted
a specific point of law. Moreover, she has not advanced a relevant legal argument not previously
considered. Consequently, appellant is not entitled to a review of the merits of her claim based on
the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).27
Further, appellant has not provided relevant and pertinent new evidence in support of her
request for reconsideration. The underlying issue is whether a diagnosed condition was causally
related to the accepted June 9, 2017 employment incident. This is a medical issue which must be
determined by rationalized medical evidence.28 On reconsideration appellant submitted a picture
of a computer bag that she was carrying on June 19, 2017. However, as this is not medical
evidence it is irrelevant to the underlying issue on reconsideration, whether appellant had met her
burden of proof to establish that her right knee condition was causally related to the accepted work
incident.29 Therefore, this photograph is insufficient to warrant a merit review. Appellant also
resubmitted a copy of Dr. Karpie’s September 20, 2018 report. The Board has held that the
submission of evidence or argument which repeats or duplicates evidence or argument already in
the case record does not constitute a basis for reopening a case and thus, this report is also
insufficient to warrant a merit review.30
As appellant failed to provide relevant and pertinent new evidence related to the underlying
issue of causal relationship, she was not entitled to a merit review based on the third requirement
under 20 C.F.R. § 10.606(b)(3).

26

Id. at § 10.608(b); D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., Docket No. 19-0291 (issued
June 21, 2019).
27

M.O., Docket No. 19-1677 (issued February 25, 2020); C.B., Docket No. 18-1108 (issued January 22, 2019).

28

See J.B., Docket No. 18-1531 (issued April 11, 2019); E.D., Docket No. 18-0138 (issued May 14, 2018);
Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).
29

B.O., Docket No. 20-0156 (issued May 13, 2020); E.T., Docket No. 14-1087 (issued September 5, 2014).

30
D.M., Docket No. 18-1003 (issued July 16, 2020); L.C., Docket No. 19-0503 (issued February 7, 2020); A.A.,
Docket No. 18-0031 (issued April 5, 2018).

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The Board accordingly finds that OWCP properly determined that appellant was not
entitled to further review of the merits of her claim pursuant to any of the three requirements under
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.31
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right knee
condition causally related to the June 19, 2017 employment incident. The Board further finds that
OWCP properly denied appellant’s request for reconsideration of the merits of her claim pursuant
to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the January 14, 2020 and September 23, 2019
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 8, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

31

D.M., id.; C.C., Docket No. 18-0316 (issued March 14, 2019); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57
ECAB 630 (2006) (when a request for reconsideration does not meet at least one of the three requirements enumerated
under section 10.606(b), OWCP will deny the application for reconsideration without reopening the case for a review
on the merits).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Mill, SC, Employer
__________________________________________

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

Docket No. 10-920
Issued: February 18, 2011

Case Submitted on the Record

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

JURISDICTION
On February 18, 2010 appellant filed a timely appeal from the January 12, 2010 decision
of the Office of Workers’ Compensation Programs denying her claim for an injury on
January 20, 2009. 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 her burden of proof to establish that she sustained an
injury while in the performance of duty on January 20, 2009.
FACTUAL HISTORY
On February 14, 2009 appellant, then a 25-year-old rural carrier associate, filed a
traumatic injury claim alleging that on January 20, 2009 she was a passenger in a coworker’s
vehicle en route to work when it was struck head on by another vehicle. She sustained a
fractured right femur. Appellant normally delivered rural route mail in her private vehicle but
her car would not start on January 20, 2009 so she asked a coworker for a ride to work. She

indicated that she telephoned her supervisor about the problem with her car and asked whether
she could ride to work with a coworker and case mail while waiting for her husband to repair her
car and deliver it to the postal facility. Appellant’s supervisor consented to this arrangement.
The employing establishment controverted her claim, noting that she was traveling to work as a
passenger in a coworker’s private vehicle.
By decision dated April 10, 2009, the Office denied appellant’s claim on the grounds that
the evidence did not establish that she sustained an injury on January 20, 2009 while in the
performance of duty.
Appellant requested a hearing that was held on August 3, 2009. She contended that she
was in the performance of duty because she was a passenger in a private vehicle that was used in
the course of employment by her coworker, another rural carrier. Appellant also contended that
the coworker’s vehicle was part of the premises of the employing establishment because it was a
mandatory part of the employment environment for her coworker.
By decision dated January 12, 2010, an Office hearing representative affirmed the
April 10, 2009 decision.1
LEGAL PRECEDENT
The Federal Employees’ Compensation Act2 provides for the payment of compensation
for disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
“arising out of and in the course of employment.”4 “In the course of employment” 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 when 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. As to the phrase “in the course of employment,” the Board
has accepted the general rule of workers’ compensation law that, as to employees having fixed
hours and places of work, injuries occurring on the premises of the employing establishment,
while the employees are going to and from work, before or after work hours or at lunch time, are
compensable.5 The Board has stated, as a general rule, that off-premises injuries sustained by
employees having fixed hours and places of work, while going to or coming from work, are not
1

Subsequent to the January 12, 2010 Office decision, additional evidence was associated with the file. The
Board’s jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See
20 C.F.R. § 501.2(c). The Board may not consider this evidence for the first time on appeal.
2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8102(a).

4

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).
5

D.L., 58 ECAB 667 (2007).

2

compensable as they do not arise out of and in the course of employment, but are merely the
ordinary, nonemployment hazards of the journey itself, which are shared by all travelers.6
Exceptions to the general coming and going rule have been recognized, which are
dependent upon the facts of each claim: (1) where the employment requires the employee to
travel on the highways; (2) where the employer contracts to and does furnish transportation to
and from work; (3) where the employee is subject to emergency calls, as in the case of
firefighters; and (4) where the employee uses the highway to do something incidental to his or
her employment with the knowledge and approval of the employer.7
Although there is a presumption that employees with fixed hours and places of work are
not entitled to coverage for commuting, in the case of employees furnishing their own
conveyance, coverage is extended when the employee is in the vehicle and driving to and from
work because she is required to take her vehicle to perform her regularly assigned duties.8
ANALYSIS
Appellant sustained a fractured right femur on January 20, 2009 during a motor vehicle
accident while traveling to work. The accident did not occur on the employing establishment
premises.
The issue is whether appellant’s claimed injury occurred in the performance of duty, that
is, in the course of her employment despite the fact that it did not occur on employing
establishment premises. In the case of employees furnishing their own conveyance, coverage is
extended when the employee is in the vehicle and driving to and from work because she is
required to take her vehicle to perform her regularly assigned duties.9 As noted by the solicitor
on appeal, appellant was not driving her own vehicle at the time of injury, the vehicle that she
used in performing her job, because it was not working. She planned to secure alternative
transportation to work while her husband attempted to repair her vehicle. Appellant planned to
case mail while waiting for her husband and mother to deliver the car to her workplace. To get
to her job, she rode as a passenger in a coworker’s vehicle. Appellant did not use the coworker’s
vehicle in performing her regularly assigned duties. She was merely commuting to work and she

6

See Idalaine L. Hollins-Williamson, 55 ECAB 655 (2004).

7

See Jon Louis Van Alstine, 56 ECAB 136 (2004) (finding that, employment did not fall within any exception to
the general rule, the Board denied coverage where the employee sustained an off-premises injury while riding his
motorcycle to work).
8

See Melvin Silver, 45 ECAB 677 (1994).

9

Id.

3

sustained her injury due to the ordinary, nonemployment hazards of the journey itself, which are
shared by all travelers.10 Consequently, appellant was not in the performance of duty.11
The Board finds that appellant’s injury did not arise out of and in the course of her
federal employment. For the reasons stated above, appellant did not meet her burden of proof to
establish that she sustained an injury in the performance of duty on January 20, 2009.
On appeal, appellant contends that she was in the course of employment because her
supervisor gave permission for her to travel to work as the passenger of a coworker. The fact
that her supervisor assented to her mode of travel to work when her vehicle would not start, does
not change the established criteria for an injury sustained in the performance of duty under the
Act. It merely suggests that the employer wanted appellant to come into work at the employing
establishment that day, even though her personal vehicle was temporarily unavailable for her
mail delivery duties. Appellant failed to establish that the motor vehicle accident arose out of
and in the course of her employment. The Office properly denied her claim for compensation.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury while in the performance of duty on January 20, 2009.

10

Supra note 6.

11

See, e.g., Kathryn A. Tuel-Gillem, 52 ECAB 451 (2001) (coverage is extended when the employee is in the
vehicle driving to and from work because she is required to take her vehicle with her to perform her regularly
assigned duties. It is at the point that she enters her vehicle that she would be considered to be in the performance of
her duties).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 12, 2010 is affirmed.
Issued: February 18, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Amarillo, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-48
Issued: May 9, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On October 11, 2011 appellant filed a timely appeal from a September 9, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) finding that he received an
overpayment of compensation for which he was at fault. The Board docketed the appeal as
No. 12-48.
The Board has reviewed the case and finds that it is not in posture for decision. On
August 2, 2011 OWCP notified appellant of its preliminary determination that he received an
overpayment of compensation in the amount of $4,030.50 because it did not deduct premiums
for health benefits from May 31, 2010 to July 2, 2011. It advised him that within 30 days he
could request a telephone conference, a final decision based on the written evidence or a
prerecoupment hearing. OWCP provided on the form that a prerecoupment hearing before the
Branch of Hearings and Review could be held by telephone in a teleconference.
On August 19, 2011 OWCP received appellant’s timely request for a prerecoupment
hearing before OWCP’s Branch of Hearings and Review.1 Appellant indicated that he was
amenable to the option of a telephone hearing. He contended that he was not at fault in creating
the overpayment and requested that it be waived. OWCP, however, did not conduct a
1

The envelope containing the request is not in the record.

prerecoupment hearing. Instead, on September 9, 2011 it held a telephone conference with a
claims examiner. By decision dated September 9, 2011, OWCP determined that appellant
received an overpayment of compensation in the amount of $4,080.50 because it did not deduct
health benefit premiums from May 31, 2010 through July 22, 2011. It further determined that he
was at fault creating the overpayment and thus it could not be waived.
OWCP is required to follow certain procedures in overpayment cases. Section 10.432
provides that the recipient of an alleged overpayment may present evidence in response to
OWCP’s preliminary notice, either in writing or at a prerecoupment hearing requested within 30
days.2 As appellant timely requested a telephone prerecoupment hearing within 30 days of the
August 2, 2011 preliminary determination and OWCP issued its September 9, 2011 final
overpayment decision without properly addressing his request, the Board concludes that the
September 9, 2011 decision was premature.3 The case must be remanded to OWCP to respond
to his request for a prerecoupment hearing regarding the overpayment of compensation.4
Following this and such other development as deemed necessary, OWCP shall issue a de novo
decision.

2

20 C.F.R. § 10.432.

3

The Board notes that OWCP, in the September 9, 2011 decision, inappropriately changed its preliminary finding
that appellant was without fault to a finding that he was at fault without providing proper notice; see 20 C.F.R.
§ 10.431(b). OWCP further changed the amount and period of the overpayment; however, it appears that may have
been a typographical error.
4

See Willie C. Howard, 55 ECAB 564 (2004).

2

IT IS HEREBY ORDERED THAT the September 9, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this order of the Board.
Issued: May 9, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


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

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

Docket No. 12-1803
Issued: February 15, 2013

Case Submitted on the Record

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

JURISDICTION
On August 29, 2012 appellant filed a timely appeal from an August 16, 2012 decision of
the Office of Workers’ Compensation Programs (OWCP) suspending her 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 the case.
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits for
failure to submit an EN1032 form when requested.
FACTUAL HISTORY
On March 1, 2012 appellant, then a 35-year-old rural carrier, filed a traumatic injury
claim after her vehicle was struck from behind while delivering mail. She stopped work the

1

5 U.S.C. §§ 8101-8193.

same day and did not return. OWCP accepted the claim for a neck sprain and appellant received
wage-loss compensation and medical benefits.
By letter dated July 2, 2012, OWCP asked appellant to complete a Form EN1032 within
30 days to provide information regarding any earnings over the reporting period. It was sent to
her address of record. Appellant was advised that her benefits would be suspended pursuant to
20 C.F.R. § 10.528 if a completed EN/CA-1032 form was not received by OWCP within 30
days. No response was received.
By decision dated August 16, 2012, OWCP suspended appellant’s wage-loss benefits
effective August 26, 2012 finding that she did not submit a complete Form EN/CA-1032, as
requested. It informed her that, when she completed the EN/CA-1032 form, her compensation
would be restored retroactively from the date of suspension.2
LEGAL PRECEDENT
FECA authorizes the Secretary of Labor to require a partially disabled employee to report
his or her earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.3
Under section 10.528 of OWCP’s implementing federal regulations, an employee in
receipt of compensation benefits must complete an affidavit as to any work or activity indicating
an ability to work which the employee has performed for the prior 15 months.4 If an employee
who is required to file such a report fails to do so within 30 days of the date of the request, his or
her right to compensation for wage loss is suspended until OWCP receives the requested report.5
At that time, OWCP will reinstate compensation retroactive to the date of suspension if the
employee remains entitled to compensation.6
ANALYSIS
OWCP requested that appellant submit an EN1032 form with respect to any employment
activity performed during the prior 15 months. It requested the information by letter dated
July 2, 2012. OWCP advised her to submit the form within 30 days or her compensation could
be suspended. The record establishes that appellant did not respond prior to OWCP’s August 16,

2

The Board notes that appellant submitted a completed Form EN1032 with her appeal. The Board may only
review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1);
M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007);
Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). This decision does not
preclude appellant from submitting this evidence to OWCP.
3

5 U.S.C. § 8106(c).

4

20 C.F.R. § 10.528.

5

See Lucille A. Pettaway, 55 ECAB 228 (2004); Demetrius Beverly, 53 ECAB 305 (2002).

6

Supra note 3.

2

2012 decision. As noted, a recipient of compensation is required to submit a report as to
earnings or self-employment as required by OWCP.7
Based on the evidence of record, OWCP properly suspended appellant’s compensation
effective August 26, 2012 pursuant to 20 C.F.R. § 10.528.
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 OWCP properly suspended appellant’s compensation benefits based
on her failure to timely submit a completed EN1032 form when requested.
ORDER
IT IS HEREBY ORDERED THAT the August 16, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 15, 2013
Washington, DC

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

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

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

7

See Robert A. Robbins, Docket No. 05-728 (issued July 15, 2005).

3


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

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

Docket No. 18-1670
Issued: March 22, 2019

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 September 4, 2018 appellant filed a timely appeal from a May 29, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the May 29, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish greater than 16
percent permanent impairment of the left lower extremity, for which she previously received
schedule award compensation.
FACTUAL HISTORY
On April 11, 2006 appellant, then a 53-year-old transportation security screener, filed a
traumatic injury claim (Form CA-1) alleging that, on February 3, 2006, she injured her back, chest,
and left ankle lifting heavy bags while in the performance of duty. OWCP accepted the claim for
lumbar sprain, a sprain of the sternum, lumbar spinal stenosis, and left ankle sprain. Appellant
stopped work on February 17, 2006 and did not return. OWCP paid her wage-loss compensation
for total disability.
On December 20, 2006 appellant underwent a left ankle synovectomy and debridement of
the joint with a partial bone resection.
By decision dated August 11, 2009, OWCP reduced appellant’s wage-loss compensation,
effective August 30, 2009, based on its determination that she had the capacity to earn wages as
an accounting clerk. Appellant elected to receive retirement benefits from the Office of Personnel
Management in lieu of workers’ compensation benefits, effective January 10, 2010.
By decision dated March 4, 2010, OWCP granted appellant a schedule award for nine
percent permanent impairment of the left lower extremity. By decision dated June 21, 2012, it
granted her an additional schedule award, finding that she had a total of 16 percent permanent
impairment of the left lower extremity.3
Appellant subsequently filed claims for an increased schedule award (Form CA-7), which
OWCP denied by decisions dated February 4, 2014 and October 13, 2015.4
On July 28, 2017 appellant filed a claim for an increased schedule award (Form CA-7).
By development letter dated August 7, 2017, OWCP requested that appellant submit an
impairment evaluation from her attending physician in accordance with the sixth edition of the

3

OWCP indicated that it had awarded appellant an additional 9 percent permanent impairment of the left lower
extremity, or 17 percent total permanent impairment of the left lower extremity. However, it paid her schedule award
compensation for an additional 7 percent permanent impairment of the left lower extremity, 20.16 weeks of schedule
award compensation, for a total left lower extremity impairment of 16 percent. OWCP’s medical adviser had
determined that appellant was entitled to an additional seven percent permanent left lower extremity impairment, and
thus it appears that OWCP’s finding that she had an additional nine percent left lower extremity impairment was a
typographical error.
4

By decision dated February 28, 2014, OWCP denied appellant’s request for reconsideration of the merits of its
February 4, 2014 decision as she had not raised an argument or submitted evidence sufficient to warrant reopening
her case for further merit review under 5 U.S.C. § 8128(a).

2

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides)5 addressing the extent of her permanent impairment.
By decision dated October 23, 2017, OWCP denied appellant’s claim for an increased
schedule award. It found that she had not submitted evidence demonstrating greater permanent
impairment than the 16 percent previously awarded for the left lower extremity.
In a January 15, 2018 impairment evaluation, Dr. Robert H. Sheinberg, Board-certified in
reconstructive rear-foot/ankle surgery, related that appellant had left ankle pain with limited
motion and diffuse swelling. He found an antalgic gait and indicated that x-rays revealed stage IV
osteoarthritis. Dr. Sheinberg diagnosed severe left ankle osteoarthritis, subtalar joint with
calcaneus in varus, genu recurvatum to compensate, and chronic pain. He related that appellant
had no dorsiflexion of the left ankle and that it was “fixed in almost plantar flexion.” Dr. Sheinberg
recommended surgery. He found that, under the A.M.A., Guides, appellant had class 3 impairment
based on her severe left foot and ankle deformity, which yielded 49 percent permanent impairment
of the left lower extremity.
Appellant, on February 23, 2018, requested reconsideration.
On March 14, 2018 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as
an OWCP district medical adviser, reviewed the medical record and noted that Dr. Sheinberg had
not identified the diagnosis or referred to specific tables of the A.M.A., Guides in his finding that
appellant had 49 percent left lower extremity impairment. He advised that Table 16-2 on page 506
of the A.M.A., Guides, the foot and ankle regional grid, did not provide 49 percent as a possible
permanent impairment rating for ankle arthritis and ankyloses. Dr. Katz further noted that the
record did not contain x-rays showing the loss of cartilage interval as required under the A.M.A.,
Guides to assess impairment due to arthritis. He recommended that OWCP obtain a supplemental
report from Dr. Sheinberg.
On March 21, 2018 OWCP requested that Dr. Sheinberg provide a supplemental report
referencing the applicable tables and pages of the A.M.A., Guides that he used in reaching his
impairment rating. He did not, however, respond to OWCP’s request.
OWCP, on April 26, 2018, referred appellant to Dr. Clinton G. Bush, III, a Board-certified
orthopedic surgeon, for a second opinion evaluation to determine the extent of her employmentrelated permanent impairment.
In a report dated May 18, 2018, Dr. Bush discussed appellant’s history of a work injury
moving baggage on February 3, 2006. He noted that a magnetic resonance imaging (MRI) scan
of the left ankle obtained on February 28, 2006 showed evidence of probable prior fractures and
end-stage arthritis at the tibiotalar joint with “osteophyte formation and full thickness articular
cartilage loss.” Dr. Bush further found that a lumbar MRI scan dated February 28, 2006 revealed
degenerative disc disease with disc protrusions and osteophyte formation. He reviewed appellant’s
symptoms of back pain with intermittent radiation into the right lower extremity and occasional
radiation into the left lower extremity and left ankle pain with reduced motion. Dr. Bush noted
5

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

3

that she had fractured her left ankle at the age of 15 and had undergone an open reduction and
internal fixation.
On examination Dr. Bush measured normal left ankle plantar flexion, a loss of dorsiflexion,
a loss of inversion and eversion, and found swelling “consistent with a combination of osteophyte
formation, effusion, and synovitis.” He diagnosed a resolved thoracic wall injury, advanced and
diffuse lumbar and lower thoracic spine degenerative disc disease and facet arthritis, resolved
lumbosacral strain, resolved left ankle sprain/strain, severe post-traumatic arthritis of the left ankle,
and right shoulder pain. Dr. Bush related that appellant had sustained soft tissue injuries to her
back and left ankle on February 3, 2006 that should have resolved within six to eight weeks of the
injury. He found that appellant had an essentially normal examination of the lumbar spine.
Dr. Bush opined that her left ankle strain or sprain that had occurred on February 3, 2006 had
“fully resolved leaving the claimant with her preexisting diagnosis of post-traumatic left ankle
arthritis secondary to her ankle fracture at age 15.” He concluded that appellant had no permanent
impairment of the left ankle causally related to the February 3, 2006 employment injury. Dr. Bush
further indicated that she had no spinal impairment.
By decision dated May 29, 2018, OWCP denied modification of its October 23, 2017
decision. It found that Dr. Bush’s report constituted the weight of the evidence and established
that appellant was not entitled to an increased schedule award.
LEGAL PRECEDENT
The schedule award provisions of FECA,6 and its implementing federal regulations,7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish greater than 16
percent permanent impairment of the left lower extremity, for which she previously received
schedule award compensation.
OWCP accepted that appellant sustained a left ankle sprain, lumbar sprain, lumbar spinal
stenosis, and a sprain of the sternum due to a February 3, 2006 employment injury. It awarded her
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

4

schedule awards totaling 16 percent permanent impairment of the left lower extremity as a result
of her ankle injury.
Appellant, on July 28, 2017, requested an increased schedule award. She submitted a
January 15, 2018 impairment evaluation from Dr. Sheinberg, who is Board-certified in
reconstructive rear-foot/ankle surgery. Dr. Sheinberg indicated that x-rays revealed stage IV
osteoarthritis. He opined that appellant had 49 percent permanent impairment of the left lower
extremity due to loss of alignment of the left ankle and reduced motion. Dr. Sheinberg, however,
failed to refer to the specific tables and charts in the A.M.A., Guides he used in reaching his
impairment rating. His report thus lacks the probative value necessary to determine appellant’s
permanent impairment for schedule award purposes.10
In a May 18, 2018 report, Dr. Bush, an OWCP referral physician, diagnosed a resolved
thoracic wall injury, advanced lumbar and lower thoracic spine degenerative joint disease and facet
arthritis, resolved lumbar sprain, and a resolved left ankle sprain/strain. He determined that
appellant had preexisting ankle post-traumatic arthritis due to a left ankle fracture when she was
15 years old, noting that a left ankle MRI scan obtained on February 28, 2006 showed evidence of
prior fractures and end-stage arthritis at the tibiotalar joint with the loss of articular cartilage and
osteophyte formation. Dr. Bush found that appellant’s left ankle and back sprain due to her
February 3, 2006 employment injury had resolved and that she had no permanent impairment
resulting from her accepted employment injury.11 His opinion is based on a complete history, a
review of the medical evidence and the results of diagnostic studies, and findings on examination,
and thus constitutes the weight of the evidence.12 Accordingly, appellant has not established
greater than the 16 percent permanent impairment of the left lower extremity previously awarded.
On appeal appellant asserts that she informed the employing establishment of her prior
ankle injury and advises that she lifted bags that were heavier than those she was supposed to lift.
She asks OWCP to obtain x-rays of her left foot and lower back. As noted, however, appellant
has the burden of proof under FECA to establish an increased schedule award.13 For the reasons
set forth above, the Board finds that she has not met that burden of proof.
Appellant may request a schedule award or an increased schedule award at any time based
on evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in permanent impairment or increased impairment.

10
11

B.B., Docket No. 18-0782 (issued January 11, 2019).
M.D., Docket No. 18-0888 (issued November 29, 2018).

12

D.B., 17-0930 (issued July 11, 2018).

13

See G.S., Docket No. 18-0299 (issued June 12, 2018).

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish greater than 16
percent permanent impairment of the left lower extremity, for which she previously received
schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT the May 29, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 22, 2019
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
El Centro, CA, Employer
__________________________________________

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

Docket No. 15-415
Issued: May 15, 2015

Case Submitted on the Record

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

JURISDICTION
On December 15, 2014 appellant filed a timely appeal of the September 17, 2014 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 in establishing that he
sustained an occupational disease in the performance of duty.
FACTUAL HISTORY
On August 8, 2014 appellant then a 55-year-old letter carrier, filed a Form CA-2,
occupational disease claim for pain in his left knee. He alleged that he had a previous left knee
injury in 2004 for which he underwent surgery and noted that recently his knee was swollen and
1

5 U.S.C. §§ 8101-8193.

painful. Appellant indicated that he was advised that continued walking would aggravate his
knee condition. He realized his illness was caused or aggravated by his employment on
July 31, 2014. Appellant did not stop work.
In an August 11, 2014 letter, OWCP advised appellant to submit additional information
including a comprehensive medical report from his treating physician which included a reasoned
explanation as to how the specific work factors or incidents identified by appellant had
contributed to his claimed injury. It also requested that appellant respond to a questionnaire to
substantiate the factual elements of his claim. No additional evidence was received.
In a September 17, 2014 decision, OWCP denied the claim because appellant did not
submit sufficient evidence establishing that the injury or events occurred as alleged. It advised
that he failed to provide a description of specific employment factors that contributed to his
medical condition and also failed to submit medical evidence containing a medical diagnosis in
connection with the injury or events.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim. When an employee claims that he or she sustained an
injury in the performance of duty, he or she must submit sufficient evidence to establish that he
or she experienced a specific event, incident, or exposure occurring at the time, place, and in the
manner alleged. Appellant must also establish that such event, incident, or exposure caused an
injury.2
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) 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
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion 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 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.3
2

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
3

Solomon Polen, 51 ECAB 341 (2000).

2

ANALYSIS
Appellant alleged that his knee began to bother him, started to swell, and was painful. He
noted having a previous left knee injury in 2004, for which he underwent surgery, and was
advised that continued walking would aggravate his knee condition.
The Board finds that there is no medical evidence of record to establish that the injury or
events occurred as alleged. In a letter dated August 11, 2014, OWCP requested that appellant
submit additional evidence in support of his claim, specifically a comprehensive medical report
from his treating physician which included a reasoned explanation as to how the specific work
factors or incidents identified by appellant had caused his claimed injury. It further requested
that appellant answer a questionnaire to substantiate the factual allegations of his claim.
However, no response was submitted prior to OWCP’s decision of September 17, 2014.
As noted, part of appellant’s burden of proof includes the submission of rationalized
medical opinion evidence, based on a complete factual and medical background, supporting such
a causal relationship between the employment and the diagnosed condition. The record contains
no medical evidence. Because appellant has not submitted reasoned medical evidence
explaining how and why his left knee condition was employment related, he has not met his
burden of proof.
Causal relationship is a medical issue, and the medical evidence required to establish
causal relationship is rationalized medical evidence.4 An award of compensation may not be
based on surmise, conjecture, or speculation. Neither the fact that appellant’s condition became
apparent during a period of employment nor the belief that his condition was caused,
precipitated, or aggravated by his employment is sufficient to establish causal relationship.
Causal relationships must be established by rationalized medical opinion evidence.5 Appellant
failed to submit such evidence, and OWCP therefore properly denied appellant’s claim for
compensation.
On appeal appellant disagreed with OWCP’s decision denying his claim for
compensation. He explained that his supervisor submitted the claim before his doctor’s
appointment was scheduled and this was an error. Appellant requested that his claim be
reviewed with all the information. The record before the Board contains no medical evidence
explaining how and why his left knee condition was employment related, and therefore he has
not met his burden of proof.6
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. Therefore, he may submit doctors’ reports obtained
from examinations after his supervisor submitted his claim.
4

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

5

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

6

With his request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence on appeal; see 20 C.F.R. § 501.2(c).

3

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an occupational disease in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the September 17, 2014 decision of Office of
Workers’ Compensation Programs is affirmed.
Issued: May 15, 2015
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.F., Appellant
and
DEPARTMENT OF COMMERCE, NATIONAL
OCEANIC & ATMOSPHERIC
ADMINISTRATION, Woods Hole, MA,
Employer
__________________________________________

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

Docket No. 20-0869
Issued: October 14, 2021

Case Submitted on the Record

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

JURISDICTION
On March 11, 2020 appellant, through counsel, filed a timely appeal from a January 6,
2020 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 OWCP has met its burden of proof to reduce appellant’s wage-loss
compensation, effective August 18, 2019, based on his capacity to earn wages in the constructed
position of security guard/system monitor.
FACTUAL HISTORY
On October 2, 2014 appellant, then a 55-year-old skilled fisherman, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a low back injury during labor intensive trawling
operations when he slipped while pulling a heavy net after dumping the bag in the sorting checker,
which placed his lumbar spine in an awkward position, in the performance of duty. He stopped
work on October 6, 2014.
In an October 24, 2014 report, Dr. Adnan Elamine, a Board-certified internist, noted that
appellant’s neck was supple with full range of motion (ROM), no masses, and no cervical
lymphadenopathy (LAD). He diagnosed low back pain, lumbago, and noted that x-rays revealed
diffuse lumbar spine degenerative changes. On October 28, 2015 OWCP accepted the claim for
lumbar sprain, L5 radiculopathy, lumbar region, traumatic arthritis, right hip. It initially paid
appellant wage-loss compensation on the supplemental rolls, and then on the periodic rolls as of
December 11, 2016.
In a November 17, 2016 report, Dr. Alan Geller, a Board-certified neurologist and treating
physician, related that since he last evaluated appellant in January, appellant had noticed atrophy
of his right hand muscles. He noted active problems of cervical myelopathy, cervical
radiculopathy, hip arthritis, lumbar radiculopathy, and sciatica. Dr. Geller reported that appellant
was attending a work hardening program after completing his physical therapy program. He
diagnosed sciatica, lumbar radiculopathy, hip arthritis, cervical myelopathy , and cervical
radiculopathy. Dr. Geller opined that the crush injury appellant sustained at work on
September 30, 2014, severely exacerbated lumbar spine arthritic changes and produced traumatic
bursitis of the right trochanteric bursa. He also opined, “In all likelihood, he also sustained
simultaneous trauma to his cervical spine, resulting in his spinal canal stenosis and C7 -8
radiculopathy on the right with resultant right hand weakness. Appellant is completely disabled
from working as a professional fisherman because of these work-related injuries.”
On September 13, 2017 Dr. Geller completed a work capacity evaluation (Form
OWCP-5c) in which he related that appellant would be unable to return to his date-of-injury
position as he was unable to sit for prolonged periods of time due to herniated lumbar disc,
radiculopathy, and trochanter bursitis. He noted that appellant initially complained of low back
and hip pain following the employment injury, however, in May 2016 he was found to have
scarring at C4-5 and C5-6 for which he underwent cervical spine surgery.
In an October 6, 2017 report, Dr. Michael Geary, a sports medicine specialist and treating
physician, diagnosed osteoarthritis of the right hip. He related that appellant felt that he was unable
to work due to hip pain caused by osteoarthritis. Dr. Michael Geary completed a Form OWCP 5c
on October 6, 2017 indicating that appellant could perform sedentary work for eight hours a day.

2

In a November 1, 2017 report, Dr. Geller opined that appellant was completely disabled
because of an injury that occurred on September 30, 2014, while working as a government
fisherman. He explained that as a result of the crush injury, appellant sustained right hip arthritis
and bursitis and right groin pain that worsened with weight bearing and movement at the hip.
Dr. Geller noted that appellant sustained right lumbar radiculopathy in the L4 and L5 distribution
with sciatica and continued to experience pain involving his right buttock and low back, radiating
into the posterior right thigh, calf and foot, with subjective numbness involving a similar
distribution. He found L4-5 right neuroforaminal stenosis caused by severe facet arthropathy and
posterior disc bulge with right foramina disc protrusion. Dr. Geller explained that these findings
were revealed on the magnetic resonance imaging (MRI) scan of January 30, 2015, were the cause
of the symptoms of sciatica on the right, and were the direct result of the crush injury that appellant
sustained on September 30, 2014. He opined that the employment-related conditions had not
resolved, had worsened over time, and that appellant could not return to work of any kind, with or
without restrictions.
In January 23, 2018 letters to Dr. Geller and Dr. Michael Geary, OWCP noted that there
was a discrepancy regarding appellant’s ability to perform any type of work and requested
clarification.
In a February 16, 2018 report, Dr. Michael Geary opined that appellant could not return to
his previous employment as a fisherman. He explained that appellant’s hip condition did not allow
him to perform this job, as he was unable to stand and walk for prolonged periods. Dr. Michael
Geary also noted that appellant was unable to squat, kneel, and climb, and that he was completely
disabled from any lifting or prolonged sitting. He opined that appellant was disabled and could
not return to work in any capacity.
On May 29, 2018 OWCP prepared a statement of accepted facts (SOAF) and referred
appellant for a second opinion examination with Dr. Christopher Geary, a Board-certified
orthopedic surgeon, to determine the nature of appellant’s condition, extent of disability, and
appropriate treatment.
In a June 14, 2018 report, Dr. Christopher Geary noted appellant’s history of injury and
that appellant had explained that he twisted his back and hip during the employment incident. He
also reviewed appellant’s prior medical treatment and the SOAF. Dr. Christopher Geary examined
appellant and provided findings. He noted that appellant’s work-related conditions had not
resolved, finding that appellant walked with an antalgic gait, had decreased ROM and groin pain,
as well as a positive straight leg raise and decreased light-touch sensation. Dr. Christopher Geary
opined that appellant had reached maximum medical improvement (MMI). Regarding return to
work, he advised that appellant was unable to return to his previous job as a mariner; however, he
opined that appellant could work at a sedentary job. Dr. Christopher Geary completed a Form
OWCP-5c and provided restrictions of: no more than two hours of walking or standing; no more
than four hours of twisting, bending, and stooping; no more than one hour of operating a motor
vehicle at work, or to and from work; no more than four hours of pushing, pulling, and lifting; no
more than six hours of squatting, kneeling, and climbing; and no lifting of more than 10 pounds.

3

In a letter dated June 28, 2018, addressed to the employing establishment, OWCP
requested, if possible, that a position be offered to appellant in writing, within the restrictions
provided by Dr. Christopher Geary, the second opinion physician.
In letters dated June 28 and 29, 2018, OWCP referred appellant for vocational
rehabilitation to identify an employment position within the restrictions provided by
Dr. Christopher Geary.
In a letter dated July 9, 2018, Andrea Pelfrey, a registered nurse and medical case manager
with the employing establishment, noted that it was unable to extend a sedentary job offer to
appellant, and that it concurred with appellant’s referral for vocational rehabilitation.
In an October 10, 2018 report, Dr. Geller related a history of injury that appellant slipped
on September 30, 2014 and landed on his buttocks, at the same time his neck “descended and
landed on his lower abdomen.” He further explained that it was likely that appellant’s spinal cord
injury occurred as a result of whiplash caused by his slip and fall just prior to the crush injury
caused by the falling net full of fish and that this cervical spinal cord injury had in all likelihood
contributed to appellant’s right-hand weakness and clumsiness. Dr. Geller indicated that he
disagreed with Dr. Christopher Geary’s work capacity evaluation because it did not take into
account that appellant had a spinal cord injury and right hand clumsiness that would prevent him
from repetitive pushing, pulling, and lifting. He opined that appellant was completely disabled
from any occupation because of injuries directly resulting from his work -related trauma on
September 30, 2014.
In an October 18, 2018 report, the vocational rehabilitation counselor described appellant’s
education, training, and work experience and noted that testing had been performed and that three
sedentary jobs had been identified for appellant that were within his medical restrictions and
reasonably available in his commuting area. The positions identified were: dispatcher, Dictionary
of Occupational Titles (DOT) No. 379.362-010; security guard/system monitor, DOT No.
379.367-010; and electronics worker, DOT No. 726.684-110. The vocational rehabilitation
counselor also completed a job classification (Form CA-66) on October 12, 2018, and noted that
the security guard/system monitor position was sedentary, required no climbing, balancing,
stooping, kneeling, crouching, crawling, reaching, handling, fingering, feeling, taste/smelling, far
visual acuity, depth perception, accommodation, color vision, or field of vision, and required
frequent talking, hearing, and near visual acuity, all of which were consistent with appellant’s
medical restrictions. He also noted that appellant had a degree in criminal justice and advised that
appellant met the specific vocational preparation required for the position as it was unskilled and
did not require prior experience or training. The vocational rehabilitation counselor advised that
the position was reasonably available within appellant’s commuting area, based on the April 1,
2018 employment data from the Bureau of Labor Statistics (BLS) and from a private source, and
the entry level wage for the position was $11.55 per hour.
In a February 26, 2019 report, the vocational rehabilitation counselor noted that
Dr. Christopher Geary indicated that appellant was capable of working in a sedentary position for
eight hours per day, walking or standing for two hours per day, operating a motor vehicle at work
for one hour per day, with limits on pushing, pulling, and lifting up to 10 pounds for up to four

4

hours per day each. However, the vocational rehabilitation counselor related that appellant
considered himself totally disabled and did not sign the rehabilitation plan.
In a letter dated March 21, 2019, OWCP informed appellant that it was advised that he had
refused to cooperate with the OWCP-approved training program and that pursuant to Section
8113(b) of FECA (5 U.S.C. § 8113 (b)), if he failed without good cause to participate in the
vocational rehabilitation process when so directed, OWCP would reduce his compensation based
upon what would have been his wage-earning capacity had he not failed to undergo vocational
rehabilitation.
In a letter dated April 5, 2019, appellant, through counsel, denied that he had failed to
cooperate. Counsel argued that appellant did not sign the rehabilitation plan because it would
foreclose him from his ongoing compensation payments, and that his treating physicians had
explained why appellant could not participate. Counsel also argued that if a conflict existed in the
medical evidence regarding appellant’s ability to participate in vocational rehabilitation then he
should be referred for an impartial medical evaluation.
In an April 20, 2019 report, the vocational rehabilitation counselor noted that on April 16,
2019, he spoke with appellant by telephone, that appellant was in California until June, and that
he was currently unable to cooperate due to his location.
On April 22, 2019 placement assistance and vocational rehabilitation services were
terminated due to appellant’s lack of compliance and refusal to sign the rehabilitation plan.
In a letter dated May 10, 2019, OWCP informed counsel for appellant that it found that
appellant obstructed vocational rehabilitation by refusing to sign the rehabilitation plan and by
being unavailable to attend meetings with the rehabilitation specialist.
On June 5, 2019 OWCP issued a Shadrick documentation memorandum. It noted that
appellant’s total date-of-injury pay rate was $797.79. It also found that the constructed position
chosen was that of security guard/system monitor, with constructed earnings of $462.00 per week,
effective October 12, 2018, based upon the Labor Market Survey of October 12, 2018.
On June 11, 2019 OWCP notified appellant that it proposed to reduce his wage-loss
compensation based on his capacity to earn wages in the constructed position of security
guard/system monitor DOT No. 379.367-010 at the weekly pay rate of $462.00. It noted that the
physical requirements of the security guard/system monitor position did not exceed appellant’s
medical restrictions and that the October 10, 2018 report of Dr. Geller indicated that there was no
neck or cervical injury at the time of the employment injury. OWCP also found that the position
was vocationally suitable, based on the rehabilitation counselor’s report. Based on the weekly pay
rate of $462.00, OWCP calculated 54 percent wage-earning capacity using the Shadrick formula
and specified a new periodic compensation rate of $1,173.00. It afforded appellant 30 days to
submit evidence and argument regarding the proposed reduction of his compensation and attached
the job classification for the security guard/system monitor position completed by the vocational
rehabilitation counselor on October 18, 2018, and Dr. Christopher Geary’s June 14, 2018 work
restrictions.

5

On June 14, 2019 OWCP received a letter from appellant dated June 10, 2019. He argued
that his own physicians had related that he was totally disabled from work and that Dr. Christopher
Geary indicated that he could push, pull, and lift up to 10 pounds for four hours per day and that
these restrictions did not conform to sedentary work. He noted that he had cooperated with
vocational rehabilitation, but that he had travelled to California to visit his family as his daughter
had graduated from medical school. On July 11, 2019 appellant further noted that he had never
heard of the sedentary positions listed in the notice of proposed reduction.
By decision dated July 30, 2019, OWCP reduced appellant’s wage-loss compensation,
effective August 8, 2019, consistent with its finding that the constructed position of security
guard/system monitor DOT No. 379.367-010 with weekly earnings of $462.00, represented his
wage-earning capacity.
On August 7, 2019 appellant, through counsel, requested a telephonic hearing, before a
representative of OWCP’s Branch of Hearings and Review, which was held on November 4, 2019.
In an October 29, 2019 report, Dr. George Cuchural, a Board-certified internist, noted that
appellant had severe right hip pain with decreased range of motion that was attributed to traumatic
arthritis “as a function of crush injury when working as a seaman.” He also noted that appellant
had a history of severe cervical spinal cord trauma causing right-hand clumsiness and weakness.
Dr. Cuchural indicated that an MRI scan from November 2016 showed severe degenerative
stenosis at C4-5 and C5-6 with cord deformity and cord high signal at the C4-5 right paracentral
disc osteophyte complex that would produce severe impingement at the right C5 root. He noted
that a follow-up cervical spine x-ray in February 2019 showed anterolisthesis of C3 and C4 with
dynamic instability and flexion and significant multilevel cervical spondylosis on x-ray.
Dr. Cuchural found L5 radiculopathy that resulted in lower extremity pain, numbness, and
weakness. He also noted that appellant recently had become unsteady and had fallen a few times
because of right leg numbness and instability. Dr. Cuchural opined that appellant was unable to
walk or stand for any prolonged period and was unable to squat, kneel, or climb. He indicated that
he concurred with Dr. Geller that appellant was unable to work even a sedentary job due to his
work-related injuries.
On December 6, 2019 OWCP received a July 22, 2019 report from Dr. Geller who
examined appellant and provided findings. Dr. Geller noted that appellant had a crush injury
involving his abdomen and pelvic area and low back and right hip producing multilevel
spondylotic changes of the low back and traumatic arthritis and bursitis of the right hip . He opined
that the cervical spine disease with spinal cord scarring and spinal arthritis were caused by the
cumulative traumas that appellant sustained working as a professional fisherman and that these
conditions were worsened “most likely” during his September 30, 2014 injury. Dr. Geller further
opined that appellant was completely and permanently disabled from work because of his
employment-related injury of September 30, 2014.
By decision dated January 6, 2020, an OWCP hearing representative affirmed the June 30,
2019 decision. The hearing representative noted that Dr. Cuchural and Dr. Geller supported total
disability based upon unaccepted cervical and right upper extremity hand conditions. The hearing
representative further noted that they did not explain the basis for their opinions and their reports
indicated that appellant first began treatment for the cervical spine on November 17, 2016, when

6

Dr. Geller diagnosed cervical myelopathy and radiculopathy, more than two years later after the
September 30, 2014 work injury. The hearing representative found that Dr. Geller did not address
the delay of more than two years prior to onset of symptomatology, provided an equivocal
statement, and little rationale. The hearing representative also found that Dr. Cuchural supported
total disability based partly upon the cervical conditions, but d id not indicate they were
employment related. The hearing representative explained that medical conditions that developed
following the accepted injury did not have to be considered in a loss of wage-earning capacity
(LWEC) determination.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of the compensation benefits. 3 An injured employee who is either unable to return
to the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on LWEC. 4
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his or her wage-earning
capacity.5 If the actual earnings do not fairly and reasonably represent wage-earning capacity, or
if the employee has no actual earnings, the wage-earning capacity is determined with due regard
to the nature of the injury, the degree of physical impairment, the usual employment, age,
qualifications for other employment, the availability of suitable employment, and other factors and
circumstances which may affect the wage-earning capacity in his or her disabled condition.6
Wage-earning capacity is a measure of the employee’s ability to earn wages in the open labor
market under normal employment conditions. The job selected for determining wage-earning
capacity must be a job reasonably available in the general labor market in the commuting area in
which the employee lives. The fact that an employee has been unsuccessful in obtaining work in
the selected position does not establish that the work is not reasonably available in his or her
commuting area. 7
OWCP must initially determine an employee’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The medical
evidence upon which OWCP relies must provide a detailed description of the employee’s medical

3

See S.C., Docket No. 19-1381 (issued November 24, 2020); C.H., Docket No. 19-0136 (issued May 23, 2019).

4

J.F., Docket No. 19-0864 (issued October 25, 2019).

5

5 U.S.C. § 8115(a).

6

C.M., Docket No. 18-1326 (issued January 4, 2019).

7

Id.

7

condition.8 Additionally, the Board has held that a wage-earning capacity determination must be
based on a reasonably current medical evaluation.9
In determining an employee’s wage-earning capacity based on a position deemed suitable,
but not actually held, OWCP must consider the degree of physical impairment, including
impairments resulting from both injury-related and preexisting conditions, but not impairments
resulting from post-injury or subsequently-acquired conditions. 10 Any incapacity to perform the
duties of the selected position resulting from subsequently-acquired conditions is immaterial to
LWEC that can be attributed to the accepted employment injury and for which the claimant may
receive compensation. 11
When OWCP makes a 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 DOT or otherwise available in the open market, that fits the
employee’s capabilities with regard to his or her physical limitations, education, age, and prior
experience. Once this selection is made, a determination of wage rate and availability in the open
labor market should be made through contact with the state employment service, a local “Chamber
of Commerce,” employing establishment contacts, and actual job postings. 12 Lastly, OWCP
applies the principles set forth in Albert C. Shadrick,13 as codified in section 10.403 of OWCP’s
regulations,14 to determine the percentage of the employee’s LWEC.
ANALYSIS
The Board finds that OWCP has met its burden of proof to reduce appellant’s wage-loss
compensation, effective August 8, 2019, based on his capacity to earn wages in the constructed
position of security guard/system monitor.
Appellant’s attending physicians, Dr. Geller and Dr. Cuchural, opined that appellant was
totally disabled from any work. Dr. Geller in his November 17, 2016 and July 22, 2019 reports
noted a “crush injury” and in his October 10, 2018 report related that during the accepted
employment incident appellant fell on his buttocks and as he fell his neck descended and landed
on his abdomen. His history of injury is, however, inconsistent with the history provided on
appellant’s CA-1 form which indicated that appellant sustained a low back injury when he slipped
“while pulling on a heavy net after dumping the bag in the sorting checker causing his back to be
8

J.H., Docket No. 18-1319 (issued June 26, 2019).

9

Id.

10

G.E., Docket No. 18-0663 (issued December 21, 2018).

11

Id.

12

C.M., supra note 6; Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services,
Chapter 2.813.7(a)(3) (February 2011).
13

5 ECAB 376 (1953).

14

20 C.F.R. § 10.403.

8

put in an awkward position.” The Board has previously explained that medical reports which
contain an incorrect history of injury are of limited probative value. 15 The Board further notes
Dr. Geller diagnosed cervical spine disease with spinal cord scarring and spinal arthritis caused by
the cumulative traumas that appellant sustained working as a professional fisherman and opined
that those conditions were worsened “most likely” by the September 30, 2014 work injury. The
Board finds that this opinion is speculative and does not offer a firm opinion that these conditions
were preexisting. The Board has held that medical opinions that are speculative or equivocal have
little probative value. 16 The Board notes that the record reveals treatment for a cervical condition
was not until November 17, 2016, more than two years after the September 30, 2014 employment
incident. Where suitability is to be determined based on a position not actually held, the selected
position must accommodate the employee’s limitations from both injury-related and preexisting
conditions, but not limitations attributable to post-injury or subsequently-acquired conditions. 17
As such, Dr. Geller’s report fails to establish that appellant was completely disabled from work
due to the accepted conditions of lumbar sprain, L5 radiculopathy, lumbar region, and trau matic
arthritis, right hip.
Dr. Cuchural also opined that appellant was completely disabled from work due to severe
cervical spine cord trauma causing right-hand clumsiness and weakness. While he related that
appellant attributed the conditions to the work injury, Dr. Cuchural did not opine that appellant’s
diagnosed conditions were caused or aggravated by the accepted employment injury on
September 30, 2014. He did not explain how the conditions would be preexisting, in light of the
first mention of treatment not occurring until almost two years later. To the extent that the
diagnosed conditions developed afterwards, they are not considered in the LWEC determination.18
Appellant’s treating physician, Dr. Michael Geary initially completed a Form OWCP- 5c
on October 6, 2017 indicating that appellant could perform sedentary work for eight hours a day.
However, in a February 16, 2018 report, Dr. Michael Geary opined that appellant could not return
to his previous employment as a fisherman as he was unable to stand and walk for prolonged
periods. He also noted that appellant was unable to squat, kneel, and climb, and could not lift or
sit for prolonged periods of time and concluded that appellant could not return to work in any
capacity. The Board finds that Dr. Michael Geary’s February 16, 2018 report was conclusory, as
he did not explain why appellant’s condition had worsened such that he could no longer perform
sedentary work. The Board has held that a medical opinion is of limited probative value if it is
conclusory in nature.19 This report is, therefore, insufficient to establish total disability.

15

M.G., Docket No. 18-1616 (issued April 9, 2020); see J.M., Docket No. 17-1002 (issued August 22, 2017) (a
medical opinion must reflect a correct history and offer a medically sound explanation by the physician of how the
specific employment incident physiologically caused or aggravated the diagnosed conditions).
16

See A.G., Docket No. 20-1319 (issued May 19, 2021); see R.W., Docket No. 19-0844 (issued May 29, 2020).

17

See L.M., Docket No. 20-1038 (issued March 10, 2021); N.J., 59 ECAB 171, 176 (2007); Federal (FECA)
Procedure Manual, supra note 12 at Chapter 2.816.4c (June 2013).
18

Id.

19

C.M., Docket No. 19-0360 (issued February 25, 2020).

9

The second opinion physician, Dr. Christopher Geary, opined that appellant could perform
sedentary duties, with walking and standing for two hours, twisting for four hours, bending and
stooping for four hours, and operating a motor vehicle at work for one hour, with restrictions on
pushing, pulling, lifting, squatting, kneeling, and climbing. OWCP, therefore, properly referred
appellant for vocational rehabilitation in June 2018, as the medical evidence established that he no
longer was totally disabled from work due to residuals of his employment injury. 20
The Board finds that OWCP properly determined that appellant had the physical capacity
to perform the duties of a security guard/system monitor and considered both injury-related and
preexisting conditions. OWCP explained why the cervical condition was not considered a
preexisting condition. The vocational rehabilitation counselor noted that the position of security
guard/system monitor allowed for a variety of duties, none of which exceeded appellant’s medical
restrictions as provided by Dr. Christopher Geary. The Board, therefore, finds that the weight of
the medical evidence establishes that appellant had the physical capacity to perform the duties of
the selected position. 21
In assessing the employee’s ability to perform the selected position, OWCP must consider
not only physical limitations, but also consider work experience, age, mental capacity, and
educational background.22 In an October 12, 2018 report, the rehabilitation counselor indicated
that the security guard/system monitor position was vocationally suitable for appellant and
available in appellant’s commuting area. The report noted that the source of wage data was a BLS
labor market survey dated April 1, 2018, which revealed a wage of $11.55 per hour for the entry
level position. As the rehabilitation counselor is an expert in the field of vocational rehabilitation,
OWCP may rely on their opinion in determining whether a job is vocationally suitable and
reasonably available. 23
The Board finds that OWCP considered the proper factors, including the availability of
suitable employment and appellant’s physical limitations and employment qualifications in
determining that he had the capacity to perform the position of security guard/system monitor.24
It properly applied the Shadrick formula, as codified in section 10.403 of its regulations, 25 in
determining appellant’s LWEC and reducing his compensation. The Board thus finds that OWCP
properly determined that the position of security guard/system monitor reflected appellant’s wageearning capacity. 26

20

Id.

21

Id.

22

C.M., supra note 6.

23

C.H., supra note 3; Federal (FECA) Procedure Manual, supra note 12 at Chapter 2.816.6(b) (June 2013).

24

T.B., Docket No. 17-1777 (issued January 16, 2019).

25

20 C.F.R. § 10.403.

26

C.M., supra note 6.

10

CONCLUSION
The Board finds that OWCP has met its burden of proof to reduce appellant’s wage-loss
compensation, effective August 18, 2019, based on his capacity to earn wages in the constructed
position of security guard/system monitor.
ORDER
IT IS HEREBY ORDERED THAT the January 6, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 14, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

11