United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Homestead, FL,
Employer
__________________________________________

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

Docket No. 10-1319
Issued: February 10, 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 April 12, 2010 appellant filed a timely appeal from a December 28, 2009 merit
decision of the Office of Workers’ Compensation Programs denying her claim for compensation.
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 in the performance of duty.
FACTUAL HISTORY
On July 24, 2009 appellant, then a 33-year-old biological science technician, filed a
traumatic injury claim (Form CA-1) alleging that on July 23, 2009 she sustained hearing loss in
her right ear, when she was ascending from her third scuba dive of the day. She claims she felt a
squeeze in her right ear and upon surfacing had vertigo, pain and loss of hearing.

By letter dated August 3, 2009, the Office requested additional factual information from
both appellant and the employing establishment. Appellant was requested to provide
information regarding her employment history and nonoccupational exposure to noise. The
Office also requested medical documentation pertaining to any treatment she had received for ear
or hearing problems.
Appellant responded to the Office request by letter dated August 26, 2009. She stated
that she had been an employee of the National Park Service for four years and her regular duties
included scuba diving for several hours a day. Appellant further explained that no ear protection
is available for use while scuba diving and that she was not exposed to any noise that could cause
hearing loss. She stated that her hearing loss was temporary and that she had recovered
completely.
In a July 24, 2009 emergency report, Dr. Leonel Cordova, a treating physician, diagnosed
appellant with acute otalgia, right ear barotraumas probable. Appellant was advised not to work
or dive for one week until released.
Appellant also submitted a July 31, 2009 audiology report from Dr. Charles Kosove, a
Board-certified otolaryngologist, to show that she had recovered completely from her hearing
loss. The audiology report revealed hearing thresholds of 10 decibels on the left and 10 decibels
on the right.
By decision dated September 4, 2009, the Office denied appellant’s claim on the grounds
that she did not establish fact of injury. It found that appellant had established the occurrence of
the claimed July 23, 2009 employment incident but failed to establish a diagnosed condition
resulting from the employment incident.
On September 11, 2009 appellant requested review of the written record. In support of
her request, she submitted a September 11, 2009 witness statement from Michelle Tongue, a
biological technician and coworker, reported that appellant told her that she suffered an ear
injury immediately after the incident occurred. Ms. Tongue stated that they had done multiple
dives on July 23, 2009 and during the last dive appellant suffered an ear injury when ascending
from depth. She noted that appellant was visibly in pain and had lost hearing in the affected ear.
By letter dated September 2, 2009, the employing establishment responded to the
Office’s request for additional information. Amanda Bourque, appellant’s supervisor, stated that
all statements on the (Form CA-1) were accurate to the best of her knowledge. She noted that
appellant’s injury was sustained while ascending from an underwater scuba dive and that no ear
protection is available for scuba diving. Ms. Bourque further stated that appellant was not
exposed to loud noises or any damaging noise for an extended period of time in the workplace.
Along with this statement, the employing establishment also submitted a National Park Service
position description for her assignment as a biological science technician.
In a July 24, 2009 medical report, Dr. Cordova noted appellant’s chief complaint as pain
and hearing loss in her right ear which had begun the previous day. He reported that she
sustained ear trauma when diving the day before and found moderate erythema and mild dullness

2

of the tympanic membrane with mild loss of tympanic membrane landmarks. Dr. Cordova
diagnosed appellant with acute otalgia.
In a July 24, 2009 Florida Workers’ Compensation Uniform Medical Treatment/Status
Reporting Form, Dr. Cordova indicated by check mark that appellant’s injury was work related,
diagnosing her with probable barotraumas of the right ear. He further indicated by check mark
that there was no preexisting condition contributing to the current medical disorder and that the
injury in question was the major contributing cause for the reported medical condition, the
treatment recommended, and the functional limitations and restrictions determined.
By decision dated December 28, 2009, an Office hearing representative affirmed the
Office’s September 4, 2009 decision, as modified, to reflect that appellant suffered from hearing
loss. The hearing representative found, however, that the medical evidence did not support that
her ear condition was causally related to the diving incident on July 23, 2009.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act2 and that an injury was
sustained in the performance of duty.3 These are the essential elements of each compensation
claim, regardless of whether the claim is predicated upon a traumatic injury or occupational
disease.4
When an employee claims that he sustained an injury in the performance of duty she
must submit sufficient evidence to establish that she experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged. She must also establish that
such event, incident or exposure caused an injury.5 Once an employee establishes that she
sustained an injury in the performance of duty, she has the burden of proof to establish that any
subsequent medical condition or disability for work, for which he claims compensation is
causally related to the accepted injury.6
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989).

3

James E. Chadden Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyet, 41 ECAB 992 (1990).

5

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
6

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

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medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.7 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. This medical opinion must include an
accurate history of the employee’s employment injury and must explain how the condition is
related to the injury. The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.8
ANALYSIS
The Board finds that this case is not in posture for decision regarding whether appellant
sustained an injury in the performance of duty.
An employee who claims benefits under the Act has the burden of establishing the
essential elements of his claim. The claimant has the burden of establishing by the weight of
reliable, probative and substantial evidence that the condition for which compensation is sought
is causally related to a specific employment incident or to specific conditions of the employment.
As part of this burden, the claimant must present rationalized medical opinion evidence, based
upon a complete and accurate factual and medical background, establishing causal relationship.9
However, it is well established that proceedings under the Act are not adversarial in nature and,
while the claimant has the burden of establishing entitlement to compensation, the Office shares
responsibility in the development of the evidence to see that justice is done.10
The Office accepted that the July 23, 2009 incident occurred and that appellant suffered
from pain and hearing loss in the right ear. It denied her claim, however, on the grounds that the
evidence failed to establish a causal relationship between the July 23, 2009 diving incident and
her hearing loss. The Board finds that the medical evidence of record supports a causal
relationship between appellant’s work activities and her hearing loss.
In a July 24, 2009 medical report, Dr. Cordova diagnosed appellant the day after the
incident with acute otalgia, right ear barotrauma. He noted her chief complaint as right ear pain
and hearing loss, reporting that she sustained ear trauma when diving the day before. Upon
7

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

8

James Mack, 43 ECAB 321 (1991).

9

See E.J., 61 ECAB ___ (Docket No. 09-1481, issued February 19, 2010); see also Virginia Richard, claiming as
executrix of the estate of Lionel F. Richard, 53 ECAB 430 (2002); Brian E. Flescher, 40 ECAB 532, 536 (1989);
Ronald K. White, 37 ECAB 176, 178 (1985).
10

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, supra note 9; Dorothy L. Sidwell, 36 ECAB
699 (1985); William J. Cantrell, 34 ECAB 1233 (1993).

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examination, Dr. Cordova noted moderate erythema and mild dullness and loss of landmarks in
appellant’s tympanic membrane. In a July 24, 2009 Florida Workers’ Compensation Medical
Treatment form, he reported that her injury was work related with no preexisting condition
contributing to the medical injury. Dr. Cordova further indicated that the injury in question was
the major contributing cause for the medical condition. While his reports did not offer an
unequivocal opinion or fully describe the mechanism of the injury, he provided an opinion, based
on examination findings and an accurate factual and medical background, that appellant
sustained an injury on July 23, 2009 due to the accepted diving incident.
Dr. Kosove’s July 31, 2009 report displayed appellant’s audiogram test results but failed
to provide a diagnosis or state any causal relationship between her hearing loss and the July 23,
2009 diving incident. The Board has held that medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.11
While none of the reports of appellant’s attending physicians is completely rationalized,
they are consistent in indicating that she sustained an employment-related injury to her right ear.
Though the reports are not sufficient to meet her burden of proof to establish the claim, they
strongly suggest and support a relationship between the July 23, 2009 diving incident and her
right ear hearing loss.12
Appellant’s Form CA-1 stated that she sustained hearing loss in her right ear when she
was ascending from a dive on July 23, 2009. In an August 3, 2009 factual statement, she
reported that her regular duties at the National Park Service include scuba diving for several
hours a day with no available ear protection for use. Appellant further stated that she was not
exposed to any noise which could cause hearing loss.
Appellant also submitted a September 11, 2009 witness statement from Michelle Tongue,
her coworker, stated that appellant told her she suffered an ear injury when ascending from her
dive and noted that appellant was visibly in pain and could not hear out of the affected ear. By
letter dated September 2, 2009, the employing establishment stated that all of the statements on
the Form CA-1 were accurate.
There is no dispute that the injury was witnessed and promptly reported to appellant’s
supervisor. Ms. Tongue was an eyewitness to appellant’s outward signs of pain and the inability
to hear out of her right ear immediately after ascending from the scuba dive. Further, the
employing establishment supported the factual statements of the claim and confirmed that
appellant was diving on July 23, 2009. No dispute exists as to fact of injury as appellant sought
medical treatment the following day and provided a consistent recessitation of facts as to the
time, place and manner of the injury.

11

C.B., 61 ECAB ___ (Docket No. 09-2027, issued May 12, 2010); S.E., 60 ECAB __ (Docket No. 08-2214,
issued May 6, 2009).
12

See Virginia Richard, supra note 9.

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The Board finds that the evidence submitted by appellant which contains a history of
injury, an absence of any other noted trauma and an opinion that the right ear hearing loss was
causally related to the July 23, 2009 diving incident is sufficient, to require further development
of the record.
On remand, the Office should further develop the medical evidence by requesting that
Dr. Cordova submit a rationalized medical opinion on whether the right ear pain and hearing loss
was causally related to the July 23, 2009 diving incident. After such development of the case
record as the Office deems necessary, a decision shall be issued.
CONCLUSION
The Board finds that this case is not in posture for a decision as to whether appellant
sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the December 28, 2009 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further development
consistent with this decision.
Issued: February 10, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Fort Belvoir, VA 22060,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-2049
Issued: September 25, 2012

Case Submitted on the Record

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

On September 13, 2011 appellant filed a timely application for review of the Office of
Workers’ Compensation Programs’ (OWCP) decision dated June 24, 2011. On November 2,
2011 the Board served the Director of OWCP with a copy of the application for review and
requested that the Director transmit the case record to the Board in accordance with the Board’s
Rules of Procedure.1 The Board has now been informed by OWCP that the physical portion of
this case record cannot be located.
The Board, having duly considered the matter, finds that the appeal docketed as
No. 11-2049 is not in posture for decision as the Board is unable to render a fully informed
adjudication of the case. The Board, therefore, finds that the case must be remanded to OWCP
for proper assemblage and reconstruction of the case record to be followed by an appropriate
decision.

1

20 C.F.R. § 501.4.

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs (OWCP) dated June 24, 2011 is set aside and the case is remanded for
further proceedings consistent with this order of the Board.
Issued: September 25, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Las Vegas, NV, Employer
__________________________________________

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

Docket No. 09-1625
Issued: March 9, 2010

Case Submitted on the Record

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

JURISDICTION
On June 4, 2009 appellant filed a timely appeal from a May 6, 2009 merit decision of the
Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established an emotional or physical condition causally
related to a compensable work factor.
FACTUAL HISTORY
On April 7, 2008 appellant, then a 52-year-old carrier technician, filed a traumatic injury
claim (Form CA-1) alleging that she sustained an injury on April 5, 2008. She described the
nature of the injury as “left shoulder pushed, anxiety, trauma due to bullying.” In a narrative
statement dated April 7, 2008, appellant alleged that she was pushed on the left shoulder by Lola
McGee, a supervisor. She stated that, after she had questioned the supervisor regarding

instructions for carriers to pull down their routes, Ms. McGee pushed with her right hand and
told appellant to get back to her case.
Ms. McGee submitted an April 7, 2008 statement indicating that appellant had told her
there were still 17 trays of mail that had not been spread. The supervisor told appellant that was
not true and “as I walked forward I touched her on her left shoulder and said you go back to your
route and I’ll see what’s going on over there.”
In a statement dated April 9, 2008, Jeffery N. Loftus, a coworker, stated that appellant
had asked him to accompany her when she talked to the supervisor on April 5, 2008. According
to him, appellant told the supervisor there were still 15 trays of mail and the supervisor “pushed”
her and told her to go to her case.
By statement dated April 19, 2008, appellant discussed an April 15, 2008 incident. She
stated that Robert Reynoso, another supervisor, told her to come into a room but she refused
because she wanted union representation. Appellant stated that she did not feel safe and began
hyperventilating. She left work and received medical treatment. The record also contains
grievance forms regarding incidents on September 4, 2007 and January 10, 2008.
With respect to the medical evidence, appellant submitted duty status reports (Form CA17) from Dr. Douglas Hermansen, a chiropractor, commencing April 7, 2008. The diagnosis was
left shoulder sprain. In a report dated April 9, 2008, Karen Huffer, M.S., a family therapist,
noted that appellant became upset over an April 5, 2008 work incident. In a form report dated
April 15, 2008, an osteopath, whose name is illegible, diagnosed stress. By report dated May 6,
2008, Dr. Hermansen diagnosed left cervical and shoulder strain.
In a June 6, 2008 decision, the Office denied appellant’s claim for compensation. It
accepted that appellant was pushed on the left shoulder on April 5, 2008, but found the evidence
was not sufficient to establish an injury.
Appellant requested a hearing before an Office hearing representative, which was held on
March 3, 2009. In a May 9, 2008 report, Dr. Patricia Brassfield, Ph.D. a clinical psychologist,
described an April 5, 2008 incident involving appellant being pushed on the left shoulder.
Appellant was treated by Dr. Hermansen for a shoulder injury. Dr. Brassfield noted that, despite
the trauma, appellant was responsible for filling out appropriate forms. Appellant attributed the
action of the supervisor as retaliation for work activities. On April 15, 2008 when asked to go to
a supervisor’s office alone she felt at risk and intimidated. Dr. Brassfield stated that appellant
was diagnosed with post-traumatic stress disorder (PTSD) on April 15, 2008, and her current
diagnoses were adjustment disorder, with anxiety and depression, and PTSD. She described the
characteristics of PTSD and adjustment disorder, recommending appellant continue therapy to
recover from “these traumatic experiences.”
By decision dated May 6, 2009, the hearing representative affirmed the June 6, 2008
Office decision. The hearing representative found a compensable work factor on April 5, 2008,
but found the medical evidence was insufficient to establish the claim.

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LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or adversely
affected by factors of her federal employment.1 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to her regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.3
A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.4 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.5
ANALYSIS
Appellant filed a traumatic injury claim for an injury on April 5, 2008 resulting from an
incident with her supervisor. While the record contains grievance documents regarding earlier
incidents, she did not attribute her condition to these incidents. Appellant did provide allegations
with respect to an April 15, 2008 incident, stating she was called into an office by a supervisor.
This incident did not occur on April 5, 2008 but the Office addressed the allegation with respect
to the present traumatic injury claim.6 In this regard, as noted above, an administrative action of
the employing establishment is not compensable absent evidence of error or abuse. Appellant’s
allegation regarding Mr. Reynoso was simply that he called her in for a discussion. There is no
1

Pamela R. Rice, 38 ECAB 838 (1987).

2

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

3

Lillian Cutler, 28 ECAB 125 (1976).

4

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

5

Margreate Lublin, 44 ECAB 945, 956 (1993).

6

A traumatic injury is a condition caused by events occurring within a single workday or shift. 20 C.F.R.
§ 10.5(ee).

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evidence of record to establish error or abuse by the supervisor. The Board finds no
compensable work factor is substantiated as occurring on April 15, 2008.
The Office did accept a compensable work factor on April 5, 2008. Although the
supervisor described the contact as inadvertent and that she only touched appellant on the
shoulder, appellant and a witness described the incident as a push. The record does support that
physical contact occurred. The issue is whether the medical evidence established an injury
causally related to the compensable work factor.
With respect to an emotional claim, the Board finds the medical evidence is not sufficient
to establish the claim. The reports from Ms. Huffer, a family therapist, are of no probative
medical value as she is not a physician as defined under the Act.7 The psychologist,
Dr. Brassfield, does not provide an opinion supported by medical rationale on causal relationship
between a diagnosed condition and the April 5, 2008 incident. In her May 9, 2008 report, she
discusses both the April 5 and 15, 2008 incidents. As noted, the April 15, 2008 incident is not
established as a compensable work factor. Dr. Brassfield did not provide a clear opinion on
causal relationship between the April 5, 2008 incident and the diagnosed conditions of
adjustment disorder and PTSD, explaining the nature of the relationship (such as aggravation or
direct causation) and supporting her opinion with medical rationale. She related the initial
diagnosis of PTSD to the April 15, 2008 incident, not the April 5, 2008 incident.8 Dr. Brassfield
noted that appellant drove herself to a quick care clinic on August 15, 2008 where the diagnosis
was made.
The Board finds that the medical evidence does not contain a medical opinion, based on a
complete background and supported by rationale, establishing a diagnosed emotional condition
causally related to the April 5, 2008 employment incident. For this reason appellant has not met
her burden of proof.
As to a physical injury, the record establishes that appellant received treatment for her
left shoulder from Dr. Hermansen, a chiropractor, who diagnosed a left shoulder and cervical
sprain. 5 U.S.C. § 8101(2) provides that the term ‘“physician’ … includes chiropractors only to
the extent that their reimbursable services are limited to treatment consisting of manual
manipulation of the spine to correct a spinal subluxation as demonstrated by x-ray to exist.”9
Dr. Hermansen did not diagnose a spinal subluxation as demonstrated by x-ray and therefore he
is not a physician under the Act. The record does not contain a rationalized medical opinion
regarding a left shoulder or cervical injury causally related to the April 5, 2008 employment
incident. Appellant has not met her burden of proof to establish an injury in the performance of
duty.

7

See Joe L. Wilkerson, 47 ECAB 604 (1996); 5 U.S.C. § 8101(2).

8

The Board notes that the medical evidence of record for April 15, 2008 provided a diagnosis of stress, not
PTSD.
9

5 U.S.C. § 8101(2).

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CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an emotional
or physical injury causally related to an April 5, 2008 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 6, 2009 and June 6, 2008 are affirmed.
Issued: March 9, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.U., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________
Appearances:
Jerry M. Anderson, for the appellant
Office of Solicitor, for the Director

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Docket No. 09-526
Issued: September 14, 2009

Case Submitted on the Record

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

On December 15, 2008 appellant filed for review from a November 17, 2008 decision of
the Office of Workers’ Compensation Programs, which found that he abandoned his request for
an oral hearing. The appeal was docketed as No. 09-526.
The Board has duly considered the matter. The Office’s determination that appellant
abandoned his request is premised on the finding that he received the June 24, 2008 letter
notifying him of the oral hearing scheduled for July 28, 2008 in San Francisco. The evidence of
record does establish that notice was sent to appellant’s address of record.
The mailbox rule provides that proper and timely mailing of a document raises a
rebuttable presumption of receipt by the addressee. The Board has applied the mailbox rule to
claimants under the Federal Employees’ Compensation Act and to the Office when it is
established that the mailing was in the ordinary course of the sender’s business practices.1 It
serves as a tool for determining in the face of inconclusive evidence, whether or not receipt has
actually been accomplished. It is to facilitate the fact finder in determining whether receipt of a

1

Kenneth E. Harris, 54 ECAB 502, 505 (2003). See also Nelson R. Hubbard, 54 ECAB 156 (2002); Dorothy
Yonts, 48 ECAB 549 (1997); Larry L. Hill, 42 ECAB 596 (1991); Jeff Minico, 39 ECAB 617 (1988).

document has occurred. However, as a rebuttable presumption, receipt will not be assumed
when there is evidence of nondelivery.
In the record on appeal, there is direct evidence of nondelivery of the notice of oral
argument to appellant. Although properly addressed to his address of record, the notice was
returned to the Office as undelivered by the post office. It noted on the envelope: “return to
sender … attempted -- not known … unable to forward.” Receipt of the returned notice in the
Kentucky Central Mailroom was on July 28, 2008, the same day as the hearing before the Office
hearing representative scheduled in San Francisco.2
On November 17, 2008 appellant was found to have abandoned his hearing request. He
contends that he never received notice of the oral argument to be held on July 28, 2008. This is
evidenced by the failed delivery of the Office’s June 24, 2008 notice. In light of the returned
envelope, which evidences nondelivery, the mailbox presumption does not apply. Appellant did
not receive notice of the hearing scheduled for July 28, 2008. The case will be remanded to the
Office’s Branch of Hearings and Review.
IT IS HEREBY ORDERED THAT the November 17, 2008 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded to the Office’s Branch of
Hearings and Review for further action in conformance with this order.
Issued: September 14, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

2

The Office hearing representative heard oral argument in other pending claims. Appellant’s representative on
appeal appeared before her on July 28 and 30, 2008 in representation of other federal employees. On appeal, he
contends that he also represented appellant at that time and was never notified of any hearing. However, there is no
record of any authorization of his representation by appellant before the Office in the record.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, TEUTONIA
STATION, Milwaukee, WI, Employer
__________________________________________

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

Docket No. 14-1851
Issued: May 22, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 20, 2014 appellant filed a timely appeal from a May 30, 2014 merit decision
and a July 18, 2014 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.
ISSUES
The issues are: (1) whether OWCP properly approved attorney fees in the amount of
$2,816.66 for services rendered for 8.67 hours from March 4, 2009 to March 26, 2012; and
(2) whether OWCP properly refused to reopen appellant’s case for further review of the merits
pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. The pertinent facts follow. On
February 4, 2009 appellant, then a 37-year-old mail carrier, filed a traumatic injury claim
alleging that on January 24, 2009 she sustained left shoulder strain due to casing mail and
streeting.2 OWCP accepted the claim for left shoulder and upper arm sprain, which was
subsequently expanded to include the conditions of left shoulder adhesive capsulitis; cervical
degenerative disc disease at C7-T1 and cervical spondylosis without myelopathy and authorized
June 4, 2009 surgery for the left shoulder. On March 11, 2009 appellant filed an occupational
disease claim (under File No. xxxxxx792) alleging that on November 18, 2004 she first became
aware of her right shoulder condition. OWCP accepted the claim for a right shoulder condition
not otherwise classified and authorized a June 10, 2010 right shoulder surgery.3
Appellant filed a claim for a schedule award on March 5, 2012. On March 20, 2012
OWCP granted a schedule award for eight percent impairment each for the right and left upper
extremities. The period of the award ran from March 11, 2012 to February 23, 2013.
Appellant appealed to the Board, and by decision dated June 14, 2013, the Board set
aside the March 20, 2012 schedule award decisions and a July 9, 2012 decision denying a
hearing of the March 20, 2012 decision as untimely.4 The Board found that an OWCP medical
adviser’s report was insufficient to form a basis for a schedule award determination as he failed
to adequately explain how his calculations had been reached.
On November 21, 2012 Mr. Shapiro requested approval of his attorney fees.5 He
submitted a fee petition noting an hourly rate of approximately $325.00 and an itemization of
services totaling 9.67 hours for a total of $3,141.66.
On November 28, 2012 OWCP returned Mr. Shapiro’s fee petition to him as he had
failed to obtain appellant’s signature, pursuant to 20 C.F.R. § 10.703(a)(2).
In a February 12, 2013 letter, OWCP reiterated that it was unable to process
Mr. Shapiro’s attorney fee petition as it was incomplete due to the lack of appellant’s signature.
It advised counsel of its regulations at 20 C.F.R. § 10.703(c) which requires counsel to forward
the fee request to appellant to afford her the opportunity to respond.
Counsel forwarded the fee request to appellant and by correspondence dated March 6,
2013, appellant refused to agree to the fee petition as she had not retained Mr. Shapiro’s services
and that no monies were owed to him. Appellant claimed to have only asked for a free
2

OWCP assigned File No. xxxxxx745.

3

On April 30, 2009 OWCP combined OWCP File No. xxxxxx792 with OWCP File No. xxxxxx745, with the
latter OWCP file number as the Master OWCP file number.
4

Docket No. 12-1847 (issued June 14, 2013).

5

On March 9, 2009 appellant signed a form authorizing Alan Shapiro, Esq., to represent her in all matters arising
out of her claim before OWCP. Although the form was signed by appellant, the case number had been handwritten
on the form.

2

consultation one time in 2004 in a previous claim. Attached to her letter was Mr. Shapiro’s fee
petition with her signature disapproving the requested fee.
In a decision dated April 4, 2013, OWCP approved attorney fees in the amount of
$2,816.66 for services rendered from March 4, 2009 to March 26, 2012. Counsel had charged 20
minutes for the preparation of three letters dated November 1, 2009, and May 1 and
June 2, 2010. As no letters with those dates were contained in the file, OWCP disallowed the
time claimed (20 minutes x 3 letters = 1 hour) for the three documents. Thus, the fee of
$3,141.66 was reduced by one hour or $325.00, which resulted in an approved fee of $2,816.66.
On April 25, 2013 appellant disagreed with the April 4, 2013 attorney fee decision and
requested a review of the written record by an OWCP hearing representative. She alleged that a
review of the fee petition showed that Mr. Shapiro did not respond to OWCP in a timely fashion
or within the time limits set by OWCP. Appellant related that she agreed to a percentage only if
both of her claims were reopened and that she has not received any award of compensation. She
stated that she did not agree to the hourly rate and that she felt Mr. Shapiro provided no
representation during the period in question. In concluding, appellant noted that, as the case was
open and she was still receiving medical treatment for her injuries, she did not believe that he
was entitled to attorney fees.
By decision dated May 30, 2014, an OWCP hearing representative affirmed the April 4,
2013 decision.
On June 23, 2014 appellant requested reconsideration of the May 30, 2014 OWCP
hearing representative’s decision and, in an attached June 18, 2014 letter, reiterated her
contentions as to why Mr. Shapiro was not entitled to the requested fee amount.
By decision dated July 18, 2014, OWCP denied appellant’s request for reconsideration
without reviewing the merits of her claim.
LEGAL PRECEDENT -- ISSUE 1
It is not the Board’s function to determine the fee for representative services performed
before OWCP. That is a function within the discretion of OWCP based on the criteria set forth
in Title 20 of the Code of Federal Regulations and mandated by Board decisions. The Board’s
sole function is to determine whether the action by OWCP constituted an abuse of discretion.6
Generally, an abuse of discretion is shown through proof of manifest error, clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deductions
from established facts.7
Section 10.703 of the Code of Federal Regulations provide in pertinent part that a
representative must submit a fee application, which includes a statement of agreement or
6

L.H., Docket No. 11-900 (issued December 6, 2011); C.H., Docket No. 10-987 (issued March 22, 2011); Eric B.
Petersen, 57 ECAB 680 (2006); Sharon Edwards, 56 ECAB 749 (2005).
7

Daniel J. Perea, 42 ECAB 214, 221 (1990), (Thomas, Alternate Member, dissenting).

3

disagreement with the amount charged, signed by the claimant.8 When a fee application has
been disputed, OWCP is required to provide the claimant with a copy of the fee application and
request the submission of further information in support of any objection.9 After the claimant
has been afforded 15 days from the date the request was forwarded to respond to the request,
OWCP will then proceed to review the fee application to determine whether the amount of the
fee is substantially in excess of the value of services received by looking at the following factors:
(1) usefulness of the representative’s services; (2) the nature and complexity of the claim; (3) the
actual time spent on development and presentation of the claim; and (4) customary local charges
for services for a representative of similar background and experience.10 Contingency fee
arrangements are not recognized under FECA.11
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for a decision regarding OWCP’s approval
of attorney fees of $2,816.66. Appellant asserts that she signed a contingency fee agreement
based on the reopening of both her claims and that she did not agree to a fee agreement based on
an hourly rate. In her June 18, 2014 letter, she further asserted that she requested the attorney to
provide her with a copy of the contingency fee agreement, but the attorney never provided her
with a copy of the contingency fee agreement despite multiple requests. The Board notes that
the record does not contain a copy of the fee agreement between the parties. As the fee
agreement is not contained in the record the Board is unable to determine whether appellant
agreed to an hourly rate or to a contingency fee agreement, as asserted by appellant. As the
record is devoid of any evidence regarding the type of fee agreement made between the parties,
on remand OWCP shall obtain a copy of the fee agreement from the attorney in determining
whether appellant had signed a contingency fee agreement or an hourly rate fee agreement.
Following any necessary further development, OWCP shall issue a de novo decision regarding
the attorney’s fee application according to the applicable regulatory procedures.
CONCLUSION
The Board finds that OWCP finds that this case is not in posture for a decision. In light
of the Board’s disposition on the first issue, the second issue is moot.

8

20 C.F.R. § 10.703(a)(i).

9

Id. at § 10.703(c).

10

Id. at § 10.703(c)(1)(i-iv).

11

Id. at § 10.703(b); see also Angela M. Sanden, Docket No. 04-1632 (issued September 20, 2004); Eric B.
Petersen, 57 ECAB 680 (2006); Sharon Edwards, 56 ECAB 749 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 18 and May 30, 2014 are set aside and the case remanded for
further proceedings consistent with the above opinion.
Issued: May 22, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.D., Appellant
and
U.S. POSTAL SERVICE, MAIL PROCESSING
& DISTRIBUTION CENTER,
Capital Heights, MD, Employer
__________________________________________

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

Docket No. 19-1637
Issued: February 25, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On July 30, 2019 appellant, through counsel, filed a timely appeal from a May 24, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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.

3
The Board notes that, following the May 24, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
disability, commencing July 18, 2018, causally related to the accepted January 21, 2016
employment injury.
FACTUAL HISTORY
On April 14, 2016 appellant, then a 45-year-old laborer custodian, filed an occupational
disease claim (Form CA-2) alleging that she sustained plantar fasciitis due to consistent walking
on concrete floors while in the performance of duty. She noted that she first became aware of her
condition on January 21, 2016 and related it to her federal employment on March 3, 2016. OWCP
accepted the claim for plantar fascial fibromatosis of the left foot. Appellant did not initially stop
work.
On June 23, 2016 appellant accepted a limited-duty assignment for eight hours per day.
OWCP paid appellant intermittent wage-loss compensation on the supplemental rolls commencing
July 12, 2016.
In a letter dated June 26, 2018, C.D., a human resource management specialist, indicated
that appellant was offered an offer of modified assignment as a retail analyst on April 14, 2018
that required eight hours of sitting at a computer and watching cameras. She noted that the
employing establishment released her from the assignment on June 8, 2018 as she was not
performing the work. C.D. indicated that she spoke to appellant and instructed her to return to her
original modified assignment; however, appellant responded that she did not like the supervisor
and that management needed to find her another job that allowed her to sit for eight hours per day.
She noted that appellant complained about her ankle/foot, even though appellant was on a detail
that allowed her to sit for eight hours per day.
In a letter dated July 17, 2018, Dr. Steven S. Blanken, a Board-certified podiatrist, noted
that appellant was experiencing severe pain due to a posterior tibial tendinitis injury to her left
foot. He indicated that the pain had worsened and she would need to use a controlled ankle
movement (CAM) boot for four to eight weeks.
In a July 17, 2018 report, Dr. Blanken noted that appellant was performing manual
activities at work, such as pushing and pulling carts, and she developed pain around the posterior
tibialis tendon resulting in knee pain due to compensation. He diagnosed posterior tibial tendinitis,
left leg, as an established problem, improved, and plantar fascial fibromatosis, established
problem, improved. Dr. Blanken advised that appellant’s job duties were probably not good for
her, as her foot condition has worsened. He also related that appellant needed a sit down job as
she would not be able to tolerate this type of activity much longer. Dr. Blanken opined that she
had reaggravated the posterior tibial tendon and she would need to use non-weight-bearing
crutches and a CAM boot for at least four weeks. He recommended against prolonged standing,
walking, climbing, stairclimbing, pushing, or pulling.

2

In a July 17, 2018 duty status report (Form CA-17), Dr. Blanken indicated that appellant
had severe posterior tibial tendinitis.4 He indicated that appellant was able to work an eight-hour
workday; however, she was unable to stand, climb, kneel, bend, stoop, twist, pull, or push.
In statements dated July 10, 17, and 18, 2018, appellant indicated that she was currently
walking four hours a day on a concrete floor to perform her work duties.
On July 18, 2018 appellant filed a notice of recurrence (Form CA-2a) claiming a recurrence
of disability beginning July 18, 2018. Appellant noted that she had posterior tibial tendinitis, flare
ups of her ankle, and pain in her foot. She indicated that she was sent home on July 18, 2018.
By development letter dated July 26, 2018, OWCP noted receipt of appellant’s claim for a
recurrence of disability due to a material change/worsening of the accepted work-related condition.
It also noted that appellant returned to work on June 18, 2018, in a limited-duty capacity and
continued working until July 17, 2018, when she stopped work. OWCP explained that it was
unclear as to whether appellant’s work stoppage was due to a recurrence of an accepted condition.
It also explained that, if her disability was due to a new work-related injury or illness, a new claim
would need to be filed/created, even if the new incident or exposure involved the same part of the
body as previously affected. It also included a list of questions. Appellant was afforded 30 days
to submit the necessary evidence.
In a July 27, 2018 statement, appellant noted that her detail was withdrawn due to her
performance. In a subsequent statement of even date, appellant indicated that her detail was
withdrawn due to her medical condition. In a July 30, 2018 statement, she indicated that her
accepted January 21, 2016 injury had not resolved and she also indicated that she had posterior
tibial tendinitis.
In an August 1, 2018 statement, appellant indicated that she did not feel that she was
qualified for the sedentary position and she was terminated due to work quality. She explained
that she was given a CAM boot on July 17, 2018 and, when she returned to the work, she was sent
home, as she was not allowed to wear a medical device on the floor. Appellant alleged that she
was not given a reasonable accommodation.
In an August 2, 2018 report, Dr. Blanken noted that appellant picked up a new ankle brace
and had an ongoing condition of posterior tibialis tendinitis along with plantar fasciitis in fasciosis
of the left lower extremity incurred from her injury. Dr. Blanken opined that it was possible that
two different problems could arise from the same injury. He noted that the injury to the Achilles
tendon was “for the most part resolved;” however, appellant was not allowed to wear her CAM
boot at work, thus, potentially causing further damage. Dr. Blanken diagnosed posterior tibial
tendinitis, left leg, and plantar fascial fibromatosis. He noted that the problem was established,
stable, or improved.
In a separate report also dated August 2, 2018, Dr. Blanken explained that the posterior
tibial tendinitis and tendinosis issues could be related to a single injury, and that he did not have
time to “keep on re-documenting the same thing over and over again.” Dr. Blanken recommended
an ankle brace and advised that appellant may not be able to drive with the device.
4

The report contained an additional illegible diagnosis.

3

By letter dated September 13, 2018, OWCP referred appellant for a second opinion
examination with Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon, to determine the
status of appellant’s work-related condition and her ability to work.
In a September 25, 2018 report, Dr. Blanken noted that appellant stopped work on
July 17, 2018. Dr. Blanken related that he informed appellant that while plantar fasciitis and
fasciosis were separate conditions, “the plantar fascia, the posterior tibial tendon and even the
Achilles tendon can all be injured at the same time of an injury that causes sudden impact. They
do not seem to understand that this can happen and are challenging the diagnosis.” Dr. Blanken
also indicated that appellant had a disease of her posterior tibialis tendon with continued pain,
which corresponded to posterior tibialis dysfunction in tendinitis along with tendinosis. He
diagnosed posterior tibial tendinitis, and plantar fascial fibromatosis.
Dr. Blanken also completed a Form CA-17 on September 25, 2018 limiting appellant to no
more than four hours of standing and walking, kneeling, bending, stooping, and driving a vehicle,
in an eight-hour day. Dr. Blanken provided a separate disability certificate, advising that appellant
could return to work on September 26, 2018, with the restrictions noted in the duty status report.
In an October 4, 2018 report, Dr. Hanley noted appellant’s history of injury and treatment.
He examined appellant and found that appellant had full range of motion of the ankle, full subtalar
range of motion, and pain on eversion. Dr. Hanley explained that appellant had pain over the
posterior tibial tendon, with an area of swelling along the course of the tendon. He also noted that
there were no obvious clinical signs of active inflammatory condition in the plantar fascia on either
side. Dr. Hanley diagnosed posterior tibial tendinitis without evidence of rupture and noted that
the medical records supported that it had resolved, and there were no findings at present to suggest
a clinically significant plantar fasciitis. He indicated that appellant was presently suffering from
an acute posterior tibial tendinitis on the left. Dr. Hanley explained that the cause was not related
to her work exposure over the last several months, because her exposure was minimal, as she was
on restricted duty. He opined that her condition was “more of a reaction to her preexisting pes
planus which puts additional stress on the medial side of the foot.” Dr. Hanley also noted that
appellant was capable of performing her modified job offer from December 21, 2017. However,
he indicated that she would have a hard time recovering if she were to be on her feet the entire
eight-hour day. Dr. Hanley explained that plantar fasciitis did not lead to posterior tibial tendinitis.
He noted that the record revealed that appellant was released from care in mid-2017. Dr. Hanley
advised that she should seek additional medical care. He completed a work capacity evaluation
and indicated that appellant was capable of working an eight-hour day, with a four-hour limitation
on walking.
On October 12, 2018 appellant accepted a job offer for a modified assignment which
required no more than four hours of walking, standing, bending, and stooping. She returned to
full-time modified duty on October 14, 2018.
By decision dated October 15, 2018, OWCP denied appellant’s recurrence claim. It found
that appellant was not taken off work due to her plantar fibromatosis, but due to her posterior tibial
tendinitis, which was a separate condition. OWCP found that appellant was not disabled from
work due to a material change/worsening of the accepted work-related condition.
On October 24, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings & Review. The hearing was held on
4

March 12, 2019. During the hearing, it was noted that the posterior tibial tendinitis was the subject
of a separate claim, OWCP File No. xxxxxx935. Counsel requested that the claims be
administratively combined.
By decision dated May 24, 2019, OWCP’s hearing representative affirmed the October 15,
2018 decision, finding that the evidence of record was insufficient to establish that appellant
sustained a recurrence of disability on July 18, 2018, due to the accepted plantar fasciitis condition.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused
the illness.5 This term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties, or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed the established physical
limitations.6
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the burden
of proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that he or she cannot perform such limited-duty work. As part of
this burden, the employee must show a change in the nature and extent of the injury-related
condition or a change in the nature and extent of the limited-duty job requirements.7 This burden
includes the necessity of furnishing evidence from a qualified physician who concludes, on the
basis of a complete and accurate factual and medical history, that for each period of disability
claimed, the disabling condition is causally related to the employment injury, and supports that
conclusion with medical reasoning. Where no such rationale is present, the medical evidence is
of diminished probative value.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability commencing July 18, 2018 causally related to the accepted January 21, 2016
employment injury.

5

20 C.F.R. § 10.5(x); S.W., Docket No. 18-1489 (issued June 25, 2019).

6

Id.

7

H.T., Docket No. 17-0209 (issued February 8, 2019); Ronald A. Eldridge, 53 ECAB 218 (2001).

8

E.M., Docket No. 19-0251 (issued May 16, 2019); Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

5

The Board initially notes that appellant’s modified light-duty position has not been
withdrawn. Rather, appellant’s detail was terminated for cause due to her failure to perform the
duties of the position.9 Following the termination of her detail, appellant did not initially return to
her modified light-duty position because of a dispute with her supervisor. The remaining issue is,
therefore, whether the medical evidence of record demonstrates a worsening of appellant’s
accepted left foot plantar fascial fibromatosis such that she could not perform her modified limitedduty position.10
Dr. Blanken provided three reports dated July 17, 2018. He noted that appellant was
experiencing severe pain due to a posterior tibial tendinitis injury; however, this was not an
accepted condition in this claim. Dr. Blanken did not provide an explanation, supported by
objective medical evidence that appellant’s accepted condition had suddenly worsened to the
extent that she could no longer perform the duties of her modified-duty position.11 Additionally,
he stated that appellant was doing manual activities at work such as pushing and pulling carts;
however, the Board notes that the record reflects that appellant was engaged in sedentary activities.
The Board has explained that medical conclusions based on inaccurate or incomplete histories are
of little probative value.12 Therefore, Dr. Blanken’s opinion is of diminished probative value.
In reports dated August 2 and September 25, 2018, Dr. Blanken diagnosed an ongoing
condition of posterior tibialis tendinitis along with plantar fasciitis in fasciosis of the left lower
extremity. These reports are speculative. The Board has long held that medical opinions that are
speculative or equivocal in character have little probative value.13 Furthermore, even if appellant
did sustain both conditions, Dr. Blanken still did not explain how objective findings of appellant’s
accepted condition would preclude her performance of her modified employment duties.14
Second opinion physician Dr. Hanley, in his October 4, 2018 report, concluded that
appellant did not require medical treatment for her January 21, 2016 employment injury, and she
had no physical limitations, restrictions, or disability related to the accepted injury. He also
explained that plantar fasciitis did not lead to posterior tibial tendinitis. As Dr. Hanley reviewed
the medical record and supported his conclusion with medical rationale, the Board finds that his
report represents the weight of the medical evidence regarding appellant’s claim for total
disability.15

9

Supra note 5.

10

K.P., Docket No. 19-1811 (issued May 12, 2020).

11

R.L., Docket No. 19-0444 (issued July 29, 2019); J.L., Docket No. 15-1951 (issued May 16, 2016).

12

See M.L., Docket No. 06-0835 (issued October 27, 2006).

13

The Board has held that speculative and equivocal medical opinions regarding causal relationship have no
probative value. R.C., Docket No. 18-1695 (issued March 12, 2019); see Ricky S. Storms, 52 ECAB 349 (2001) (while
the opinion of a physician supporting causal relationship need not be one of absolute medical certainty, the opinion
must not be speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of medical
certainty).
14

S.K., Docket No. 19-0272 (issued July 21, 2020).

15

See C.S., Docket No. 18-0712 (issued January 24, 2019).

6

As none of the medical evidence of record contains a rationalized medical explanation
establishing a recurrence of disability, commencing July 18, 2018, causally related to the accepted
January 21, 2016 employment injury, 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.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability, commencing July 18, 2018, causally related to the accepted January 21, 2016
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 24, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 25, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, LOS ANGELES
PROCESSING & DISTRIBUTION CENTER,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 20-0754
Issued: December 31, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On February 18, 2020 appellant filed a timely appeal from a January 16, 2020 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 January 16, 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish disability from work
on August 28 and 29, 2019 causally related to her accepted employment injury.
FACTUAL HISTORY
On April 4, 2008 appellant, then a 47-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that on that date she sustained injuries to three toes on her left foot when a pit
operator driving a forklift backed through plastic strips and struck her left foot while in the
performance of duty. OWCP initially accepted the claim for a crush injury of the left toe(s) and
fracture of one or more phalanges of the left foot, and subsequently expanded acceptance of the
claim to include gangrene and a mood disorder secondary to an industrially-related general medical
condition. An OWCP nurse’s report dated September 5, 2008 related that appellant’s great and
second toes had partially auto-amputated.
Appellant stopped work on the date of injury and returned to full-time regular-duty work
on March 10, 2011. OWCP paid her wage-loss compensation on the supplemental rolls as of
May 20, 2008 and on the periodic rolls from April 12, 2009 until her return to work on
March 10, 2011. Following a schedule award, it again paid appellant wage-loss compensation for
intermittent disability commencing March 14, 2014.
On October 29, 2019 appellant filed a claim for wage-loss compensation (Form CA-7) for
intermittent leave without pay on August 28 and 29, 2019. In an accompanying time analysis form
(Form CA-7a) she claimed 3.25 hours of wage loss on August 28, 2019 and 4 hours of wage loss
on August 29, 2019 due to a medical treatment of her accepted conditions.
In development letter dated November 4, 2019, OWCP requested that appellant submit
medical evidence supporting treatment on August 28 and 29, 2019. It afforded her 30 days to
provide the requested information.
On January 6, 2020 OWCP received progress notes dated November 11, 2019 from
Dr. Lishan Workenah, a psychiatrist, who noted appellant’s last three encounter dates, which
included August 28, 2019.
By decision dated January 16, 2020, OWCP denied appellant’s claim for wage-loss
compensation due to time lost from work to attend medical appointments on August 28
and 29, 2019. It found that no medical evidence was submitted following the November 4, 2019
development letter.
LEGAL PRECEDENT
OWCP’s procedures provide that wages lost for compensable medical examinations or
treatment may be reimbursed.3 A claimant who has returned to work following an accepted injury
3
Federal (FECA) Procedure Manual, Part 2 -- Claims, Wages Lost for Medical Examination or Treatment, Chapter
2.901.19 (February 2013).

2

or illness may need to undergo examination or treatment and such employee may be paid
compensation for wage loss while obtaining medical services and for a reasonable time spent
traveling to and from the medical provider’s location.4 Wage loss is payable only if the
examination, testing, or treatment is provided on a day which is a scheduled workday and during
a scheduled tour of duty. Wage-loss compensation for medical treatment received during off-duty
hours is not reimbursable.5 The evidence should establish that a claimant attended an examination
or treatment for the accepted work injury on the dates claimed in order for compensation to be
payable.6 For a routine medical appointment, a maximum of four hours of compensation may be
allowed. However, longer periods of time may be allowed when required by the nature of the
medical procedure and/or the need to travel a substantial distance to obtain the medical care. The
claims for wage loss should be considered on a case-by-case basis.7
In the case of William A. Couch,8 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued.
ANALYSIS
The Board finds that the case is not in posture for decision.
Appellant filed a claim for wage-loss compensation on October 29, 2019 alleging wage
loss due to her attending podiatric and psychiatric appointments on August 28 and 29, 2019,
respectively. In a development letter dated November 4, 2019, OWCP requested that she submit
medical evidence substantiating her attendance at medical appointments on August 28 and 29,
2019 and afforded her at least 30 days to submit such evidence. In the decision dated January 16,
2020, it found that no evidence had been received following the November 4, 2019 development
letter. However, on January 6, 2020 OWCP did receive a series of progress reports from
Dr. Workenah, which included mention of an evaluation on August 28, 2019.
As the Board’s decisions are final as to the subject matter appealed, it is crucial that all
evidence relevant to the subject matter of the claim properly submitted to OWCP be reviewed and
addressed.9 For this reason, the case will be remanded to OWCP to enable it to properly consider
all the evidence submitted at the time of the January 16, 2020 decision. Following this and other

4

Id. at Chapter 2.901.19(a); see M.B., Docket No. 19-1049 (issued October 21, 2019); T.S., Docket No. 19-0347
(issued July 9, 2019); E.W., Docket No. 17-1988 (issued January 28, 2019).
5

Id. at Chapter 2.901.19(a)(2).

6

Id. at Chapter 2.901.19(a)(3).

7

Id. at Chapter 2.901.19(c).

8

41 ECAB 548 (1990).

9
J.S., Docket No. 19-1073 (issued January 6, 2020); T.J., Docket No. 14-1854 (issued February 3, 2015); see
Yvette N. Davis, 55 ECAB 475 (2004).

3

such further development as OWCP deems necessary, it shall issue a de novo decision on the
merits of appellant’s claim for compensation.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 16, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: December 31, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


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

)
)
)
)
)
)
)
)

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

Docket No. 13-864
Issued: August 6, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 28, 2013 appellant filed a timely appeal of a January 4, 2013 Office of
Workers’ Compensation Programs’ (OWCP) merit decision granting a schedule award. Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has established permanent impairment of her right upper
extremity for which she received a schedule award.
FACTUAL HISTORY
On June 28, 2007 appellant, then a 57-year-old window counter clerk, filed a traumatic
injury claim alleging that she injured her right arm and upper shoulder pulling a bag onto a scale.
She underwent a magnetic resonance imaging (MRI) scan of the right shoulder on July 18, 2007
1

5 U.S.C. § 8101 et seq.

which demonstrated rotator cuff tear in the anterior fibers of the supraspinatus and moderate
tendinosis as well as bursitis and hypertrophic arthropathy involving the acromioclavicular joint.
Appellant’s attending physician, Dr. Peter S. Trent, a Board-certified orthopedic surgeon,
reviewed the MRI scan report on July 30, 2007 and found a retracted tear of the supraspinatus
and degenerative changes of the acromioclavicular joint. OWCP accepted appellant’s claim on
September 17, 2007 for sprain of the right shoulder and upper arm.
On March 6, 2008 Dr. Trent performed a repair of the rotator cuff, right shoulder and
subacromial decompression and repair of the subacromial bursa. In a report dated April 13,
2009, he stated that appellant’s surgical scar was healed. Dr. Trent found 140 degrees of flexion,
80 degrees of abduction, 90 degrees of internal rotation and 10 degrees of external rotation. He
further found one grade of manual muscle testing weakness as well as pain at the extremes of
motion. Dr. Trent opined that appellant had permanent impairment and provided work
restrictions.
On July 12, 2012 appellant filed a claim for a schedule award. In a letter dated July 16,
2012, OWCP requested additional evidence in support of her claim for permanent impairment of
a scheduled member. Dr. Trent applied the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment2 to appellant’s right shoulder condition on
August 6, 2012. He noted that appellant’s history of injury and the July 18, 2007 MRI scan
which demonstrated rotator cuff tear with a 1.5 gap in the tendon as well as subacromial and
subdeltoid bursitis and hypertrophic arthropathy involving the acromioclavicular joint. Dr. Trent
provided appellant’s range of motion as 30 degrees of extension, 90 degrees of internal rotation,
20 degrees of external rotation and 180 degrees of range of motion. He stated that manual
muscle testing of the rotator cuff showed one-half grade of weakness of the supraspinatus.
Dr. Trent determined that page 403, Table 15-5 of the A.M.A., Guides3 provided that rotator cuff
injury with full thickness tear and residual loss of function and normal motion was class 1, grade
D or six percent impairment of the right shoulder. In a note dated August 7, 2012, he stated that
appellant had reached maximum medical improvement. Dr. Trent noted that appellant had pain
with overhead activity but no evidence subluxation or dislocation. He found mild discomfort
with resisted internal rotation and discomfort anterolaterally with abduction and external
rotation. Dr. Trent found that appellant had a rotator cuff injury, full thickness tear with residual
loss of function with essentially normal motion under Table 15-5 of the A.M.A., Guides or
class 1 grade C.
OWCP’s medical adviser reviewed these reports on December 7, 2012 and stated that
there are some reports that the claimant has residual loss of function with essentially normal
motion and some reports that appellant has grade D or five percent impairment of the right upper
extremity. He stated, “In summary, permanent partial impairment of the right upper extremity is
five percent based on placing the claimant in a class 1 grade C category as was advised by
Dr. Trent. A one percent discrepancy is because six percent as advised by Dr. Trent is actually
under grade D category. The date of [maximum medical improvement] is March 6, 2009 one
year from the date of shoulder surgery.”
2

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

3

Id. at 403, Table 15.5.

2

By decision dated January 4, 2013, OWCP granted appellant a schedule award for five
percent impairment of her right upper extremity.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.6
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7
ANALYSIS
OWCP accepted appellant’s claim for sprain of the shoulder and upper right arm.
Appellant underwent a right shoulder MRI scan on July 18, 2007 which demonstrated rotator
cuff tear in the anterior fibers of the supraspinatus and moderate tendinosis as well as bursitis and
hypertrophic arthropathy involving the acromioclavicular joint. Dr. Trent performed a repair of
the rotator cuff, right shoulder and subacromial decompression and repair of the subacromial
bursa on March 6, 2008.
In two reports dated August 6 and 7, 2012, Dr. Trent noted appellant’s history of injury
and reviewed the July 18, 2007 MRI scan. He provided appellant’s range of motion as 30
degrees of extension, 90 degrees of internal rotation, 20 degrees of external rotation and 180
degrees of range of motion. Dr. Trent stated that manual muscle testing of the rotator cuff
showed one half grade of weakness of the supraspinatus. He determined that page 403, Table
15-5 of the A.M.A., Guides8 provided that rotator cuff injury with full-thickness tear and residual
loss of function and normal motion was class 1, grade D or six percent impairment of the right
4

5 U.S.C. §§ 8101-8193, 8107.

5

20 C.F.R. § 10.404.

6

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides (6th ed. 2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
7

A.M.A., Guides 411.

8

Id. at 403, Table 15.5.

3

shoulder in his August 6, 2012 note. In a note dated August 7, 2012, Dr. Trent found that
appellant had a rotator cuff injury, full-thickness tear with residual loss of function with
essentially normal motion under Table 15-5 of the A.M.A., Guides or class 1 grade C.
Table 15-5 of the shoulder regional grid provides that a rotator cuff injury, full thickness
tear with residual loss with normal motion was a default grade C or five percent impairment.
Grade D impairment of a rotator cuff injury results in six percent award.9
OWCP’s medical adviser reviewed reports on December 7, 2012 and noted the
discrepancy between Dr. Trent’s impairment ratings. He concluded that appellant had five
percent impairment based on class 1 grade C rather than grade D or six percent impairment.
The Board finds that this case is not in posture for decision as neither Dr. Trent nor
OWCP’s medical adviser properly explained the impairment rating in accordance with the
A.M.A., Guides. Neither physician determined the functional history, physical examination and
clinical studies grade modifiers within the net adjustment formula to reach appellant’s value to
determine the value either C or D for appellant’s impairment rating. Dr. Trent provided two
different values, but did not provide an explanation of how he reached these varying conclusions.
OWCP’s medical adviser determined that value C or five percent was the appropriate
impairment rating. The medical adviser also failed to explain the basis for his determination. As
the medical evidence has not been properly correlated to the applicable provisions of the A.M.A.,
Guides, the case must be remanded for additional development of the medical evidence.10
CONCLUSION
The Board finds that this case is not in posture for decision. On remand, OWCP should
develop the medical evidence in accordance with the A.M.A., Guides to determine appellant’s
permanent impairment for schedule award purposes.

9

Id.

10

T.T., Docket No. 10-880 (issued November 9, 2010).

4

ORDER
IT IS HEREBY ORDERED THAT the January 4, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: August 6, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 08-2079
Issued: April 9, 2009

Case Submitted on the Record

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

JURISDICTION
On July 21, 2008 appellant filed a timely appeal from December 3, 2007 and June 23,
2008 merit decisions of the Office of Workers’ Compensation Programs granting her a schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule
award decision.
ISSUES
The issues are: (1) whether appellant has more than three percent permanent impairment
of the left upper extremity; and (2) whether she is entitled to a schedule award for a permanent
impairment of the right upper extremity and/or either lower extremity.
FACTUAL HISTORY
On March 22, 2005 appellant, then a 35-year-old letter carrier, filed a claim for injuries
sustained on March 19, 2005 in a motor vehicle accident. The Office accepted the claim for
lumbar sprain/strain, cervicalgia and neck spasm. Appellant stopped work on March 19, 2005
and returned to work on April 21, 2006.

On July 13, 2007 the Office requested that appellant’s attending physician evaluate her to
determine the extent of any impairment of the upper or lower extremities due to her accepted
work injury. On August 20, 2007 Dr. Wayne R. Gavino, a Board-certified neurologist, discussed
appellant’s history of injury and complaints of tingling in the left shoulder radiating into the arm
and hand and left elbow pain. He reviewed a March 22, 2007 magnetic resonance imaging
(MRI) scan of the cervical spine and noted that a disc herniation at C5-6 compressed the left
aspect of the cervical cord and a disc bulge at C4-5 mildly compressed the cord. On examination
Dr. Gavino stated, “It is hard to assess weakness in the left upper extremity because of pain. It
seems that [appellant] may have a little bit of weakness in the left upper extremity.” He found a
loss of sensation in the left arm but an otherwise normal examination. Dr. Gavino stated,
“[Appellant] has chronic neck, interscapular and left shoulder pain arising from the motor
vehicular accident on March 19, 2005. She now has chronic pain disorder, probably from soft
tissue injury and left cervical radiculopathy…. [Appellant] has gotten somewhat better, although
I would estimate that the percentage of her loss is about 20 percent because she continues to have
pain, numbness and loss of strength.”
On November 7, 2007 the Office medical adviser noted that an MRI scan of the cervical
spine showed a C5-6 left disc herniation and a “broad-based bulge at C4-C5.” He noted that the
Office had not accepted a right upper extremity or lower extremity condition and that
consequently appellant had no employment-related permanent impairment of these extremities.
The Office medical adviser found that, as “manual muscle testing is currently limited by pain,
strength will not be included in this determination.” He found that appellant had a one percent
impairment due to Grade 4 pain in the left C5 nerve root distribution and a two percent
impairment due to Grade 4 pain in the C6 nerve root distribution according to Tables 16-10 and
16-13 on pages 482 and 489 of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001) (A.M.A., Guides). The Office medical adviser combined
the impairment ratings to total three percent permanent impairment of the left upper extremity.
He opined that appellant reached maximum medical improvement on August 20, 2007.
By decision dated December 3, 2007, the Office granted appellant a schedule award for a
three percent permanent impairment of the left upper extremity. It determined that she had no
impairment of the right upper extremity or either lower extremity. The period of the award ran
for 9.36 weeks from August 20 through October 24, 2007.
On December 10, 2007 appellant requested a telephonic hearing. On April 18, 2008 she
related that she missed the hearing due to time zone confusion and requested a review of the
written record. Appellant asserted that the Office medical adviser did not address the issue of
loss of strength. She also noted that Dr. Lisa R. Ferley, a Board-certified neurologist, provided
an opinion regarding her loss of strength.1
On May 9, 2008 appellant related that she was unable to find a physician with access to
the A.M.A., Guides. She enclosed a functional capacity evaluation (FCE) performed by a
physical therapist which she maintained measured her loss of strength.
1

In a report dated March 7, 2006, Dr. Ferley diagnosed cervical degenerative disc disease with left C7
radiculopathy, chronic neck pain and cervicogenic headaches. She found that appellant required a weight restriction
for the left arm. On April 27, 2006 Dr. Ferley opined that appellant’s lifting restriction was permanent.

2

By decision dated June 23, 2008, the Office hearing representative affirmed the
December 3, 2007 decision. She noted that the opinion of the Office medical adviser constituted
the weight of the evidence and established that appellant had no more than three percent
impairment of the left upper extremity.
LEGAL PRECEDENT -- ISSUES 1 & 2
The schedule award provision of the Federal Employees’ Compensation Act,2 and its
implementing federal regulations,3 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, the Act 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, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.4 Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in
2001, for all decisions made after February 1, 2001.5
ANALYSIS -- ISSUES 1 & 2
The Office accepted that appellant sustained lumbar sprain/strain, cervicalgia and neck
spasm due to a March 19, 2005 motor vehicle accident. Appellant requested a schedule award.
The Office instructed appellant to submit an impairment evaluation from her attending physician.
On August 20, 2007 Dr. Gavino diagnosed a chronic pain disorder most likely due to a soft
tissue injury and left cervical radiculopathy. He noted that appellant experienced tingling from
her left shoulder into her hand and pain in her left elbow. Dr. Gavino reviewed a March 22,
2007 MRI scan which showed a C5-6 disc herniation with cord compression and a C4-5 disc
bulge with mild cord compression. He found diminished sensation of the left arm and noted that
it was difficult to determine if she had weakness in the left upper extremity due to her pain.
Dr. Gavino advised that appellant had 20 percent impairment due to pain, numbness and loss of
strength. However, he did not reference the A.M.A., Guides in reaching his determination. As
Dr. Gavino’s report does not conform to the A.M.A., Guides, it is of diminished probative
value.6
On November 7, 2007 an Office medical adviser reviewed the medical record and found
that there was no evidence that appellant had an employment-related permanent impairment of
either the right upper extremity or the lower extremities. He determined that appellant had a
Grade 4, or 25 percent impairment due to sensory loss which he multiplied by 5 percent, the
maximum impairment for sensory deficit of the C5 nerve root, to find 1 percent impairment.7
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

20 C.F.R. § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

6

Mary L. Henninger, 52 ECAB 408 (2001).

7

A.M.A., Guides at 482, 489, Tables 16-10-16-13.

3

The Office medical adviser then multiplied the 25 percent graded pain by 8 percent, the
maximum impairment of the C6 nerve root, to find 2 percent impairment.8 He combined the
impairment findings and concluded that appellant had three percent left upper extremity
impairment. There is no evidence establishing that she has a greater impairment of the left upper
extremity or any employment-related impairment of the right upper extremity or lower
extremities.
Appellant submitted an April 23, 2008 FCE performed by a physical therapist. On appeal
she contends that the Office medical adviser should review the FCE and apply the provisions of
the A.M.A., Guides to the findings. The Board notes that a physical therapist is not a physician
within the meaning of section 8101(2) of the Act and cannot render a medical opinion.9 Further,
the physical therapist did not provide sufficient findings such that a determination of the extent
of any permanent impairment could be made in accordance with the provisions of the A.M.A.,
Guides.
CONCLUSION
The Board finds that appellant has no more than three percent permanent impairment of
the left upper extremity. The Board further finds that she is not entitled to a schedule award for
the right upper extremity or either lower extremity.

8

Id.

9

5 U.S.C. § 8101(2); Vickey C. Randall, 51 ECAB 357 (2000).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 23, 2008 and December 3, 2007 are affirmed.
Issued: April 9, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5