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

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Appearances:
George R. Guinn, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1372
Issued: February 14, 2012

Case Submitted on the Record

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

JURISDICTION
On May 17, 2011 appellant, through his attorney, filed a timely appeal from a
December 1, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his claim for an employment-related injury and an April 1, 2011 nonmerit decision
denying his request for reconsideration. 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 met his burden of proof to establish that he
sustained injuries to his back, legs, knees, right arm, right elbow and right shoulder in the
1
2

5 U.S.C. § 8101 et seq.

Following the issuance of the April 1, 2011 OWCP decision, appellant submitted new evidence. The Board is
precluded from reviewing evidence which was not before OWCP at the time it issued its final decision. See 20
C.F.R. § 501.2(c)(1).

performance of duty on April 25, 2010, as alleged; and (2) whether OWCP properly refused to
reopen appellant’s case for further reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant’s attorney contends that the factual and medical evidence submitted
supports causal relationship between a fall at work and injuries sustained.
FACTUAL HISTORY
On April 25, 2010 appellant, then a 58-year-old custodian, filed a traumatic injury claim
(Form CA-1) alleging that he sustained injuries to his left leg, right leg, right arm, right shoulder,
right elbow and back due to a slip and fall after his right leg gave out in the performance of duty
that day.
In an April 26, 2010 attending physician’s report, Dr. James Ellis, an emergency
medicine physician, diagnosed contusions of the knees and right arm. In an April 25, 2010
accident/incident worksheet, he reported that appellant fell on a cupped metal washer that was
laying on the floor while at work on April 25, 2010. The washer slid, causing appellant to fall to
his knees. To avoid hitting his face, he rolled to his right side landing on his right elbow and
shoulder.
Appellant submitted x-rays dated April 26, 2010, which showed no acute osseous
abnormality with mild degenerative joint disease of the acromioclavicular (AC) and humeral
joints in the right shoulder and a normal right elbow.
In a second April 26, 2010 report, Dr. Ellis diagnosed fall, knee contusions, shoulder
strain and right upper arm contusions. He reported that appellant had some knee problems in the
past and had no neck or back pain. Dr. Ellis indicated that x-rays of appellant’s shoulder and
arm were normal.
In a May 1, 2010 report, Dr. Walter A. Fernau, III, a Board-certified family medicine
physician, diagnosed back and knee pain. He noted that appellant fell on April 24, 2010 after
slipping at work. Dr. Fernau reported that appellant tripped on a washer that was about an eighth
of an inch thick. One knee went forward and the other one gave way as he lunged forward.
Appellant’s left knee went out and he fell on his right knee, rolled to his side and struck his right
elbow and then struck his back against the setup for an eye wash and a buffer he was using to
clean the floors. He had paravertebral muscle spasms and his buttocks were both in spasm.
Appellant had no knee swelling or arythema and no anterior or posterior drawer sign. He had
negative Lachman’s sign and no medial or lateral laxity with varus or valgus deformity, although
Dr. Fernau was not able to straighten his knees completely due to his pain.
On May 4, 2010 Dr. Paula M. Silha, a Board-certified family medicine physician,
diagnosed low back pain. She indicated that appellant fell at work on April 25, 2010.
In a May 11, 2010 report, Dr. Robert P. Yost, a Board-certified orthopedic surgeon,
diagnosed low back pain status post mechanical fall on April 25, 2010. He indicated that
appellant had some low-grade chronic back pain, but it was significantly worsened by the fall
which also exacerbated his bilateral knee pain.

2

Appellant submitted four radiological reports dated May 21, 2010 which revealed: no
definite compression fracture and probable diffuse idiopathic skeletal hyperostosis of the
thoracic spine; no compression fracture and multilevel disc degeneration most pronounced at L5S1 of the lumbar spine; mild-to-moderate bilateral hip degenerative joint disease with no acute
bony abnormality identified in the hips and pelvis; and mild-to-moderate AC joint degenerative
disc disease without acute bony abnormality in the right shoulder.
On May 21 and 22, 2010 Dr. Carolyn Wickenkamp, a Board-certified family medicine
physician, diagnosed sprain shoulder/arm, sprain thoracic region, sprain lumbar region due to a
fall at work on April 25, 2010. She took appellant off work due to an estimated period of total
temporary disability of 7 and 10 days, respectively.
Appellant submitted chiropractic notes dated May 24 and 25, 2010 with illegible
signatures diagnosing thoracic, lumbar and sacroiliac (SI) subluxations, calcification of anterior
longitudinal ligament, multiple levels of degeneration in the thoracic lumbar sacral (TLS) spine
and moderate degeneration of the AC joint.
On June 2, 2010 Dr. Wickenkamp reiterated her diagnoses and took appellant off work
due to an estimated period of temporary total disability of 10 days.
By letter dated June 23, 2010, OWCP informed appellant that the evidence was
insufficient to support his claim and requested additional factual and medical information. It
allotted him 30 days to submit additional evidence and respond to its inquiries.
In a June 11, 2010 report, Dr. Wickenkamp reiterated her diagnoses and released
appellant to work that same day. She indicated that he must have a sedentary job, must alternate
sitting, standing and walking four hours per shift, not work near moving machinery, not work
overhead, not kneel or squat, not climb and limit his standing, walking, stooping, bending to two
hours a day and not lift, pull or push over 20 pounds.
On June 17, 2010 Dr. Wickenkamp released appellant to full duty without restrictions at
four hours a week. The date of his maximum medical improvement was that same day.
By decision dated July 29, 2010, OWCP denied appellant’s claim on the basis that the
evidence submitted was not sufficient to establish that the employment incident occurred at the
time, place and in the manner alleged.
On August 10, 2010 appellant, through his attorney, requested a review of the written
record by an OWCP hearing representative. He submitted four narrative statements dated
August 10, 2010 and one dated August 12, 2010. Counsel also resubmitted a May 21, 2010
report by Dr. Wickenkamp, a witness statement by appellant’s supervisor, Robert P. Olson, and
emergency room progress notes dated April 26, 2010 all describing appellant’s fall at work.
By decision dated December 1, 2010, an OWCP hearing representative affirmed the
July 29, 2010 decision. Although the evidence of record was sufficient to establish that the
employment incident occurred at the time, place and in the manner alleged, the medical evidence
was insufficient to establish an injury connected to the April 25, 2010 employment incident.

3

On January 6, 2011 appellant, through his attorney, requested reconsideration. In an
April 26, 2010 radiological report, Dr. Joel C. Sim, a Board-certified radiologist, diagnosed mild
narrowing in the medial aspect of the right and left knee joints and calcification in the insertion
of the quadriceps tendon into the right patella, noting that the rest of the examination was
unremarkable. He submitted a December 28, 2010 designation notice approving leave and
resubmitted emergency room progress notes of April 26, 2010.
By decision dated April 1, 2011, OWCP denied appellant’s request for reconsideration on
the basis that he did not submit relevant and pertinent new evidence not previously considered by
OWCP, did not show that OWCP erroneously applied or interpreted a point of law or advanced a
point of law or fact not previously considered. It noted that the alleged errors in the December 1,
2010 decision were typographical in nature and unrelated to the issue of causal relationship.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury4 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.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. 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. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
3

5 U.S.C. §§ 8101-8193.

4

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

See Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB 1143 (1989). See also E.K., Docket No.
09-1827 (issued April 21, 2010).
6

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

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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 the specific employment factors identified by the employee.7
ANALYSIS -- ISSUE 1
OWCP accepted that appellant slipped and fell at work on April 25, 2010 while working
as a custodian. The Board finds that this case is not in posture for decision as to whether
appellant’s claimed back, bilateral leg, bilateral knee, right arm, right elbow and right shoulder
conditions were caused or aggravated by the accepted employment incident.
On April 26, 2010 Dr. Ellis diagnosed knee contusions, shoulder strain and right upper
arm contusions. He reported that appellant fell on a cupped metal washer that was laying on the
floor at work on April 25, 2010. The washer slid causing appellant to fall to his knees. To avoid
hitting his face, he rolled to his right side landing on his right elbow and then shoulder. On
May 4, 2010 Dr. Silha diagnosed low back pain and indicated that appellant fell at work on
April 25, 2010. On May 11, 2010 Dr. Yost diagnosed low back pain status post mechanical fall
on April 25, 2010 and indicated that appellant had some low-grade chronic back pain, but it was
significantly worsened by the fall which also exacerbated his bilateral knee pain.
Dr. Wickenkamp also reported lumbar, shoulder and thoracic strains resulting from the April 25,
2010 fall at work.8
The Board notes that, while the reports of record are not completely rationalized, they are
consistent in finding that appellant sustained the diagnosed knee contusions, shoulder strain,
right upper arm contusions and low back pain conditions because of the April 25, 2010 incident.
These reports are not contradicted by any substantial medical or factual evidence of record.9
While the reports are not sufficient to meet appellant’s burden of proof to establish his claim,
they raise an inference of causal relationship between his claimed conditions and the April 25,
2010 employment incident.10
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of establishing entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.11
On remand, OWCP should refer appellant, together with the case record and a statement
of accepted facts, for examination by an appropriate specialist and a rationalized medical opinion
7

Id. See Gary J. Watling, 52 ECAB 278 (2001).

8

The Board notes that, although Dr. Fernau reported a history of injury similar to that of Dr. Ellis, Dr. Fernau
indicated the date-of-injury as April 24, 2010, which is not the date appellant claimed. The incorrect date of injury,
coupled with the lack of rationale, diminishes the probative value of Dr. Fernau’s report.
9

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

10

Id.; see also John J. Carlone, supra note 6.

11

See Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard (Lionel F. Richard), 53 ECAB 430
(2002); William J. Cantrell, 34 ECAB 1233 (1993); Dorothy L. Sidwell, 36 ECAB 699 (1985).

5

as to whether his back, bilateral leg, bilateral knee, right arm, right elbow and right shoulder
conditions were causally related to the April 25, 2010 employment incident. After such further
development as it deems necessary, it shall issue a de novo decision concerning appellant’s
claim.
CONCLUSION
The Board finds that the case is not in posture for decision as to whether appellant
established that he sustained a traumatic injury to his back, legs, knees, right arm, right elbow
and right shoulder on April 25, 2010 in the performance of duty, as alleged.12
ORDER
IT IS HEREBY ORDERED THAT the April 1, 2011 and December 1, 2010 decisions
of the Office of Workers’ Compensation Programs are set aside and the case is remanded for
further action consistent with this decision.
Issued: February 14, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

12

In light of the Board’s disposition of the traumatic injury issue, the second issue of whether OWCP properly
refused to reopen appellant’s case for further reconsideration of the merits is rendered moot. See Sharon Edwards,
56 ECAB 749 (2005).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.Z., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kingsfield, MI, Employer
__________________________________________

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

Docket No. 16-0195
Issued: April 18, 2016

Case Submitted on the Record

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

JURISDICTION
On November 10, 2015 appellant filed a timely appeal of an October 28, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained an injury causally related
to factors of his federal employment.
FACTUAL HISTORY
On September 17, 2014, appellant a 53-year-old window clerk, filed an occupational
disease claim (Form CA-2) alleging that he developed right arm and shoulder conditions causally
related to employment factors, which required the repetitive use of his arms.2 He alleged that he
1
2

5 U.S.C. § 8101 et seq.

The record reflects that appellant has filed prior claims with OWCP, alleging both traumatic and occupational
injuries.

first became aware of his condition and its relation to his employment on January 1, 1997.
Appellant did not stop work. The employing establishment controverted appellant’s claim
contending that it was untimely filed.
In support of his claim, appellant submitted a February 21, 2012 report from
Dr. James N. Grace, a Board-certified orthopedic surgeon. Dr. Grace reviewed the history of a
February 2007 right shoulder injury, the effects of which he noted had not improved, and a
January 2009 left shoulder repair, which he noted had healed satisfactorily. Based on the results
of a January 26, 2012 magnetic resonance imaging (MRI) scan, he diagnosed a superior labral
from anterior to posterior (SLAP) tear and recommended a shoulder arthroscopy with a labral
repair, similar to what appellant had undergone with his left shoulder. Dr. Grace concluded, with
“a reasonable degree of medical certainty that the repetitive work of his right shoulder led to the
labral tearing in the right shoulder.” Further, he added that the “highly repetitive nature” of
appellant’s work aggravated and accelerated his right shoulder condition, for which he
recommended surgery.
By letter dated November 19, 2014, OWCP advised appellant that it required factual and
medical evidence to determine whether he was eligible for compensation benefits. It asked him
to submit a comprehensive report from a treating physician describing his symptoms and the
medical reasons for his condition, including an opinion as to whether his claimed condition was
causally related to his federal employment. OWCP requested that appellant submit this evidence
within 30 days.
In an October 22, 2014 report, received by OWCP on December 16, 2014, Dr. Robert
Blotter, Board-certified in orthopedic surgery, advised that appellant had been experiencing
increasing right shoulder pain since he began working for the employing establishment 21 years
ago. Appellant related that the pain became worse in 2007 when he lifted a heavy object too
quickly. He underwent surgery on the right shoulder in December 2012 to repair a SLAP tear.
Appellant reported that he underwent a similar procedure on his left shoulder in 2009.
Dr. Blotter advised that appellant had been diagnosed with shoulder dyskinesia and had
undergone multiple sessions of physical therapy, all without improvement of his symptoms. He
obtained x-rays which showed a normal glenohumeral joint and some acromioclavicular joint
arthrosis. Dr. Blotter advised that he would consider having appellant undergo an MRI scan to
see if any change had occurred to his labrum or his rotator cuff since his last surgery. He noted
that appellant believed that his job sorting mail on a machine was the activity which aggravated
his right shoulder.
In a January 7, 2015 report, Dr. Blotter noted that appellant was still experiencing pain in
his right shoulder. Appellant was forced to discontinue work for the previous two weeks to help
get his shoulder pain under control. He related that the pain intensified when he returned to work
in December 2015 and increased his activities. Dr. Blotter noted that the SLAP injury appellant
sustained in 2007 caused a right shoulder problem, but advised that the repetitive nature of his
work contributed heavily to his condition. He reported that appellant continued to experience
right shoulder pain and continued to have trouble performing his regular work activities of his
regular duty. Dr. Blotter asserted that appellant was going to have trouble continuing to do his
present job without significant light-duty restrictions that limited his right shoulder to sedentary
activity, no repetitive activity with the right upper extremity, and no repetitive lifting. He
advised that he would schedule appellant for an MRI scan arthrogram.
2

By decision dated January 23, 2015, OWCP denied the claim, finding that while it was
time filed and the evidence supports that the injury and/or events occurred as described,
appellant failed to submit sufficient medical evidence establishing that he sustained a medical
condition in the performance of duty.
On January 30, 2015 appellant requested an oral hearing before an OWCP hearing
representative, which was held on August 13, 2015.
In a March 4, 2015 report, Dr. Blotter asserted that appellant continued to have
limitations in his right shoulder, but was able to work light duty. He advised that appellant
underwent an MRI scan arthrogram, which showed a recurrence of his SLAP tear, some early
degenerative changes of his humeral head, and a paralabral cyst at the inferior anterior part of the
glenoid which he attributed to his SLAP tear. Dr. Blotter noted that the rotator cuff was intact.
He advised that appellant had right shoulder pain with recurrent SLAP tear and early
degenerative arthritis of his inferior humeral head. Dr. Blotter recommended that appellant
continue with modified activity within the bounds of his light-duty assignment. He opined that a
repeat arthroscopy to repair of the SLAP injury was probably not advisable because it might
accelerate any arthritic changes which had occurred there. Dr. Blotter concluded that appellant
had a chronic condition from his years of repetitive activity at the employing establishment. He
advised that appellant could probably work indefinitely within the limitations of his disability or
attempt another surgical procedure, but noted that there was no guarantee he could return to full
duty.
By decision dated October 28, 2015, an OWCP hearing representative affirmed the
January 23, 2015 decision. She found that there was no rationalized medical evidence of record
establishing an injury causally related to factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.4 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
3

Supra note 1.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

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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 usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and 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.6
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between his claimed right shoulder condition and his
federal employment. This burden includes providing medical evidence from a physician who
concludes that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.7
ANALYSIS
The Board finds that appellant has failed to submit any medical opinion containing a
rationalized, probative report which relates any claimed condition to factors of his federal
employment. For these reasons, he has not discharged his burden of proof.
Dr. Grace reported on February 21, 2012, with “a reasonable degree of medical certainty”
that the repetitive nature of appellant’s work duties resulted in the SLAP tear. However, he did
not provide a description of the employment factors and failed to explain the mechanism of
injury by detailing how the established employment factors would cause the diagnosed
condition.8 The Board has consistently held that a medical opinion not fortified by rationale is of
limited probative value.9 As Dr. Grace’s report lacks the necessary medical rationale, it is
insufficient to establish appellant’s claim.
Appellant submitted a series of reports dated October 22, 2014 and January 7 and
March 4, 2015 reports from Dr. Blotter. Dr. Blotter related appellant’s complaints of right
shoulder pain and presented diagnoses of recurrence of his SLAP tear, some early degenerative
changes of his humeral head, and a paralabral cyst, but did not provide a rationalized medical
opinion that these findings were causally related to factors of his employment. In his
October 22, 2014 report, he noted that appellant had been experiencing increasing right shoulder
pain since he began working for the employing establishment. Dr. Blotter advised that the pain
became worse in 2007 when appellant lifted a heavy object and underwent right shoulder surgery
in December 2012 to repair a SLAP tear in his right shoulder. He reported that appellant had
6

Id.

7

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

8

See V.N., Docket No. 16-0238 (issued March 1, 2016).

9

Id.; see also M.H., Docket No. 12-733 (issued September 5, 2012).

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been diagnosed with shoulder dyskinesia and that extensive physical therapy had not improved
his symptoms. Dr. Blotter noted in his January 7, 2015 report, that appellant was still
experiencing right shoulder pain, which intensified when he returned to work in December 2014
and increased his activities. He opined that the SLAP injury appellant sustained in 2007 caused
a right shoulder problem and that the repetitive nature of his work contributed to his condition.
Dr. Blotter reported that appellant continued to have right shoulder pain and continued to have
trouble doing his regular work activities. He restricted appellant from repetitive lifting and
engaging in repetitive activity with the right upper extremity. In his March 4, 2015 report,
Dr. Blotter noted that appellant underwent an MRI scan arthrogram, which showed a recurrence
of his SLAP tear, some early degenerative changes of his humeral head, and a paralabral cyst at
the inferior anterior part of the glenoid. He reported that appellant had right shoulder pain with
recurrent SLAP tear and early degenerative arthritis of his inferior humeral head. Dr. Blotter
opined that appellant had a chronic condition due to his years of repetitive activity at the
employing establishment. He asserted that appellant could probably continuing working light
duty within his current limitations or attempt another surgical procedure; Dr. Blotter opined,
however, that there was no guarantee that surgery would enable him to could return to full duty.
Dr. Blotter’s reports do not provide a probative, rationalized medical opinion that
appellant’s claimed condition or disability was causally related to employment factors. His
opinion on causal relationship is of limited probative value as it does not contain any medical
rationale how or why appellant’s claimed right shoulder condition was currently affected by or
related to factors of employment.10 Dr. Blotter’s opinions state conclusions, but offer no medical
explanation as to how appellant’s alleged work duties physiologically caused the diagnosed
conditions of recurrent SLAP tear and early degenerative arthritis of his inferior humeral head.
Medical opinion evidence submitted to support the claim should reflect a correct history and
offer a medically sound explanation by the physician of how the specific employment duties
physiologically, caused or aggravated his shoulder condition.11
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.12 Dr. Blotter did not sufficiently describe appellant’s job duties
or explain the medical process through which such duties would have been competent to cause
the claimed condition.13 His reports thus did not constitute adequate medical evidence to
establish that appellant’s claimed condition was causally related to his employment.
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

10

William C. Thomas, 45 ECAB 591 (1994).

11

See D.B., Docket No. 15-1506 (October 26, 2015).

12

See Anna C. Leanza, 48 ECAB 115 (1996).

13

E.R., Docket No. 15-1815 (issued December 24, 2015).

5

sufficient to establish causal relationship.14 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
OWCP advised appellant of the evidence required to establish his claim, however, he
failed to submit such evidence. Consequently, appellant has not met his burden of proof in
establishing that his claimed condition was causally related to his employment.
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 failed to meet his burden of proof to establish an
injury condition was causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the October 28, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 18, 2016
Washington, DC

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

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

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

14

Supra note 11.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD,
Portsmouth, NH, Employer
__________________________________________

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Appearances:
James G. Noucas Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1088
Issued: September 13, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 3, 2013 appellant, through his counsel, timely appealed the January 14, 2013
merit decision of the Office of Workers’ Compensation Programs (OWCP), which granted 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 over the merits of the claim.
ISSUE
The issue is whether appellant has greater than 26 percent impairment of the lungs.
FACTUAL HISTORY
Appellant, a 70-year-old retired quality assurance specialist, has an accepted occupational
disease claim for asbestosis which arose on or about October 12, 2004.2 By decision dated
1
2

5 U.S.C. §§ 8101-8193 (2006).
Appellant retired effective March 31, 2006.

February 15, 2012, OWCP granted a schedule award for 17 percent impairment of the lungs
(pulmonary system). The award covered a period of 26.52 weeks from December 5, 2008
through June 8, 2009.3 OWCP based its decision on the district medical adviser’s (DMA)
August 20, 2010 report, which found 17 percent pulmonary impairment under the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment(A.M.A.,
Guides) (2008).4
In a decision dated September 28, 2012, the Branch of Hearings & Review set aside the
February 15, 2012 schedule award. OWCP had incorrectly calculated the 17 percent award based
on impairment of a single lung (156 weeks) rather than both lungs (312 weeks).5 Additionally,
appellant submitted a March 20, 2012 pulmonary function study (PFS) and aMay 22, 2012
impairment rating from Dr. Stephen R. Gorman, an osteopath.Relying on appellant’s latest PFS
values, Dr. Gorman found 32 percent whole person impairment under Table 5-4, A.M.A., Guides
88 (6th ed. 2008). In light of OWCP’s miscalculation and the recent medical evidence submitted,
the hearing representative remanded the case for referral to the DMA.
In a report dated November 29, 2012, another DMA, Dr. Morley Slutsky, found 17
percent whole person impairment under Table 5-4, A.M.A., Guides 88 (6th ed. 2008). He
explained that the latest spirometry values (FEV1 and FVC) represented a class 2 pulmonary
dysfunction with a default (c) whole person rating of 17 percent. The DMA then converted his
17 percent whole person impairment to a 26.15 percent (organ/lung) respiratory impairment.
By decision dated January 14, 2013, OWCP found that appellant had 26 percent
respiratory impairment based on Dr. Slutsky’s (DMA) November 29, 2012 rating. The decision
noted that the award was for both lungs and that appellant had previously been compensated
$34,449.48 for impairment of one lung. OWCP indicatedthat the current award would be
adjusted to reflect the previous schedule award.
On or about January 15, 2013 OWCP disbursed payment of $22,729.98. It calculated
that appellant was entitled to receive $57,179.46 for the period March 20 to December 28, 2012
(40.56 weeks).6 That figure was reduced by the prior payment of $34,449.48, leaving a balance
owed of $22,729.98.
On appeal, counsel argues that OWCP once again improperly based its schedule award
on impairment of a single lung (156 weeks) rather than both lungs (312 weeks). Appellant’s
counsel also challenges OWCP’s reliance on Dr. Slutsky’s (DMA) impairment rating instead of
Dr. Gorman’s higher rating.

3
4

Appellant received a single payment of $34,449.48.
See Table 5-4, Pulmonary Dysfunction, A.M.A., Guides 88 (6th ed. 2008).

5

Assuming the accuracy of the DMA’s 17 percent impairment rating, appellant should have received 53.04
weeks’ compensation (.17 x 312) rather than 26.52 weeks.
6

OWCP paid appellant 13 percent impairment for each lung (20.28 weeks) based on the single lung rate of 156
weeks’ compensation.

2

LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.7 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.8 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).9
No schedule award is payable for a member, function or organ of the body that is not
specified in FECA or in the implementing regulations.10 The list of scheduled members includes
the eye, arm, hand, fingers, leg, foot and toes.11 Additionally, FECA specifically provides for
compensation for loss of hearing and loss of vision.12 By authority granted under FECA, the
Secretary of Labor expanded the list of scheduled members to include the breast, kidney, larynx,
lung, penis, testicle, tongue, ovary, uterus/cervix and vulva/vagina and skin.13
Impairment ratings for schedule awards include those conditions accepted by OWCP as
employment related and any preexisting permanent impairment of the same member or
function.14 If the employment-related injury has affected any residual usefulness in whole or in
part, a schedule award may be appropriate.15 There are no provisions for apportionment under
FECA.16
The procedure manual recognizes certain “special considerations” when evaluating
schedule awards.17 Impairment to the lungs falls within that category. Such impairment should
7
8

5 U.S.C. § 8107(c)(1).
20 C.F.R. § 10.404 (2012).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.6a (February 2013); seeFederal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700, Exhibit 1 (January 2010).
10

W.C., 59 ECAB 372, 374-75 (2008); Anna V. Burke, 57 ECAB 521, 523-24 (2006).

11

5 U.S.C. § 8107(c).

12

Id.

13

Id. at § 8107(c)(22); 20 C.F.R. § 10.404(b).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.5d (February 2013).
15

Id.

16

Id.

17

Supra note 14 at Chapter 2.808.5(c)(1).

3

be evaluated in accordance with the A.M.A., Guides insofar as possible. The procedure manual
specifies that the “percentage of ‘whole man’ impairment will be multiplied by 312 weeks (twice
the award for loss of function of one lung) to obtain the number of weeks payable, all such
awards will be based on the loss of use of both lungs.”18
ANALYSIS
Both Dr. Slutsky (DMA) and Dr. Gorman rated appellant’s pulmonary dysfunction under
Table 5-4, A.M.A., Guides 88 (6th ed. 2008). Both physicians relied on appellant’s latest PFS
dated March 20, 2012. The difference between Dr. Slutsky’s 17 percent whole person
impairment rating (class 2, grade c) and Dr. Gorman’s 32 percent whole person rating (class 3,
grade c) is that the DMA relied on the postbronchodilator spirometry results and Dr. Gorman
relied on the prebronchodilator results.
The DMA explained that the postbronchodilator values reflect the final permanent
respiratory impairment after optimal therapy and that ratings under the A.M.A., Guides are
performed only after optimal therapy. He cited section 5.6(b), A.M.A., Guides 89 (6th ed. 2008)
as justification for his reliance on the March 20, 2012 postbronchodilator values. However, this
section pertains to the evaluation of asthma under Table 5-5, A.M.A., Guides 90 (6th ed. 2008).
While Table 5-5 (Asthma) clearly references postbronchodilator values, Table 5-4 (Pulmonary
Dysfunction) does not.
Once OWCP undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.19 Accordingly, the
case shall be remanded for clarification as to why appellant’s postbronchodilator values are
purportedly a better indicator of pulmonary dysfunction under Table 5-4, A.M.A., Guides 88 (6th
ed. 2008).
The Board also finds that OWCP improperly calculated appellant’s schedule award based
on loss of function of one lung (156 weeks).20 Moreover, OWCP should have based the award
on the calculated “whole person” impairment rating under Table 5-4, A.M.A., Guides 88 (6th ed.
2008). The DMA’s conversion from 17 percent whole person impairment to 26 percent “organ”
impairment was unwarranted.The case will be remanded for further development. After OWCP
has developed the case record to the extent it deems necessary, a de novo decision shall be
issued.
CONCLUSION
The case is not in posture for decision.

18

Id.

19

Richard F. Williams, 55 ECAB 343, 346 (2004).

20

5 U.S.C. § 8107(c)(22); 20 C.F.R. § 10.404(b).

4

ORDER
IT IS HEREBY ORDERED THAT the January 14, 2013 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this decision of the Board.
Issued: September 13, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
DEPARTMENT OF THE INTERIOR, FISH &
WILDLIFE SERVICE, Albuquerque, NM,
Employer
__________________________________________

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

Docket No. 07-2228
Issued: May 19, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 4, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated August 22, 2007 finalizing an overpayment of
compensation. Pursuant to 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 the Office properly found an overpayment of $1,203.16 was
created; and (2) whether the Office properly denied waiver of the overpayment.
FACTUAL HISTORY
The Office accepted that appellant sustained a herniated lumbar disc in the performance
of duty on March 15, 2000.1 Appellant returned to work part time and as of September 7, 2001
1

A June 19, 2000 Office letter stated that the accepted condition was disc displacement; a November 9, 2006
statement of accepted facts reported that the accepted condition was a herniated lumbar disc.

she was working full time. On May 14, 2004 she began to work six hours per day. Appellant
received compensation for the remaining two hours per day.2 On April 20, 2006 the Office
issued a schedule award for 10 percent right leg impairment and 6 percent left leg impairment.
The period of the award was 46.08 weeks from May 16, 2005 to April 3, 2006.
On October 5, 2006 appellant stopped working and began receiving compensation for
temporary total disability. By letter dated November 16, 2006, the Office advised appellant that
she would be receiving net compensation of $1,706.10 every four weeks. Appellant was advised
that each payment contained the period covered, and if she worked during any portion of this
period, she should return the payment.
The employing establishment offered appellant a light-duty position at two hours per day
effective February 26, 2007. Appellant accepted the position and began working two hours per
day as of February 26, 2007. The Office issued a payment dated March 17, 2007 for the period
February 18 to March 17, 2007 in the amount of $1,644.48.3
By letter dated March 12, 2007, the Office advised appellant of a preliminary
determination that an overpayment of $1,208.83 was created and she was at fault in creating the
overpayment. The Office stated that appellant was only entitled to compensation through
February 25, 2007. Appellant responded on March 19, 2007, arguing that the amount of the
overpayment was incorrect.
In a letter dated June 7, 2007, the Office issued a “corrected” preliminary determination
that found an overpayment of $1,203.16 was created. The Office stated that the overpayment
amount was calculated by dividing $1,644.48 by 28 for a daily amount of $58.73, then
multiplying by 20, the number of days from February 26 to March 17, 2007, for a total of
$1,174.60. In addition, the Office stated that appellant was entitled to a cost-of-living increase as
of March 1, 2007 of $28.56, for a total overpayment of $1,203.16. With respect to fault, the
Office found that appellant accepted a payment she knew or should have known was incorrect.
By decision dated August 22, 2007, the Office finalized the preliminary determination as
to amount and fault. Appellant was directed to submit a payment for $1,203.16.
LEGAL PRECEDENT -- ISSUE 1
Section 8116 of the Federal Employees’ Compensation Act defines the limitations on the
right to receive compensation benefits. This section of the Act provides that, while an employee
is receiving compensation, he may not receive salary, pay, or remuneration of any type from the
United States, except in limited circumstances.4 20 C.F.R. § 10.500 provides that “compensation
for wage loss due to disability is available only for any periods during which an employee’s
2

The Office did not issue a formal wage-earning capacity decision, but offset appellant’s compensation based on
actual earnings.
3

The gross compensation was equal to the amount reported in the November 16, 2006 letter to appellant, with
miscellaneous deductions reducing the net compensation.
4

5 U.S.C. § 8116(a).

2

work-related medical condition prevents him or her from earning the wages earned before the
work-related injury.”
ANALYSIS -- ISSUE 1
The Office found that an overpayment of compensation was created when appellant
received a payment of $1,644.48 for the period February 18 to March 17, 2007, and she had
returned to work as of February 26, 2007. The preliminary determination and the final Office
decision, however, failed to make adequate findings to confirm the fact and amount of the
overpayment.
The record indicated that appellant received a payment of $1,644.48 dated
March 17, 2007. This purported to be an amount representing temporary total disability from
February 18 to March 17, 2007, but the Office stated in its preliminary determination that
appellant was entitled to a cost-of-living increase as of March 1, 2007, which apparently was not
reflected in the $1,644.48 payment. The Office calculated an overpayment based on the
conclusion appellant was not entitled to any compensation after her return to work at two hours
per day. The overpayment was held to be the daily amount of compensation received, multiplied
by the number of days from February 26 to March 17, 2007, plus a cost-of-living increase.5
No evidence was cited in support of the determination that appellant was not entitled to
any compensation for wage loss as of her return to work at two hours per day. There is no
decision terminating compensation based on medical evidence, formal wage-earning capacity
determination, or other evidence establishing that appellant was not entitled to any compensation
as of February 26, 2007. Her return to work was at two hours per day, not full time. Appellant
had been receiving compensation prior to her return to work and the Office provides no support
for a finding that she should receive no compensation for wage loss commencing
February 26, 2007.
The case will be remanded to the Office to properly explain its findings with respect to an
overpayment. The Office must clearly explain what compensation appellant was owed from
February 18 to March 17, 2007, in order to determine whether there was an overpayment, and if
so, the correct amount. After such further development as is necessary, the Office should issue
an appropriate decision. In view of the Board’s holding, the issue of waiver will not be
addressed at this time.
CONCLUSION
The Office did not provide sufficient supporting evidence to establish that an
overpayment of $1,203.16 was created and the case is remanded for further development.

5

It is not clear why the Office increased the overpayment by including a cost-of-living increase after appellant
returned to work. If the Office believed appellant was not entitled to compensation as of February 26, 2007, then the
overpayment would be the difference between $1644.48 and the amount she should have received from February 18
to 25, 2007.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 22, 2007 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: May 19, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
DEPARTMENT OF THE DEFENSE, DEFENSE
AGENCIES, Fort Eustis, VA, Employer
__________________________________________

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

Docket No. 11-1979
Issued: April 11, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 24, 2011 appellant filed a timely appeal from an August 3, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied her
traumatic injury claim. 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 sustained an injury in the performance of duty on
May 9, 2011.
FACTUAL HISTORY
On May 9, 2011 appellant, then a 56-year-old military pay technician, filed a traumatic
injury claim alleging that she experienced pain on the left side of her body when she opened the

1

5 U.S.C. § 8101 et seq.

service window of the finance office and the metal roll-up service window fell off the wall and
struck the left side of her body. She submitted various witness statements.
In a May 11, 2011 radiology report, Dr. Yizhi Liang, a Board-certified diagnostic
radiologist, noted appellant’s complaints of upper back pain. The examination revealed small
osteophytes on the thoracic spine vertebral bodies and no evidence of fracture, dislocation or
subluxation. Vertebral body alignment was within normal limits and vertebral body heights were
well maintained with no evidence of compression deformity. Dr. Liang diagnosed degenerative
changes.
In a May 11, 2011 report, Dr. Tammy Beavers, a Board-certified family practitioner,
noted appellant’s complaints of pain in her upper back and flank area that started two days ago
when a metal window shutter fell and hit her on the left side at work. Appellant related that she
was seen in urgent care and was diagnosed with musculoskeletal pain. Upon examination,
Dr. Beavers noted no bruising in appellant’s upper thoracic area, but significant pain over T3-6
ribs on the left side. She diagnosed upper back pain and recommended appellant not work until
May 19, 2011.
In a May 18, 2011 report, Dr. Beavers stated that appellant’s back symptoms had
improved from the last visit and noted that chest x-rays were negative. The examination
revealed some swelling and tenderness over appellant’s left upper back area, but no obvious
deformity or crepitus was found. Dr. Beavers diagnosed upper back pain.
In a May 25, 2011 report, Dr. Beavers noted appellant’s complaints of upper back pain
and some left lower back pain. She observed some swelling and tenderness over appellant’s left
upper back area and tenderness over her scapula. Examination of appellant’s lower back
revealed lumbar left paraspinal muscles pain upon palpation and no obvious deformity or
crepitus. Dr. Beavers diagnosed upper back pain.
In a May 25, 2011 radiology report, Dr. Jon Zachary Elliott, a Board-certified diagnostic
radiologist, noted appellant’s complaints of upper back pain. He observed mild degenerative
changes of the left acromioclavicular joint but no acute fracture or dislocation.
In a June 1, 2011 report, Dr. Beavers examined appellant for complaints of upper back
pain. Appellant related that the pain started four weeks ago when a heavy object fell on her at
work. Dr. Beavers noted that this was an acute episode and that appellant did not have a prior
history of back pain. Examination revealed some swelling and tenderness over the left upper
back area and no obvious deformity or crepitus. Dr. Beavers noted significant soft tissue
tenderness along the medial and superior scapula, but x-rays of the scapula were negative. She
excused appellant from work until June 17, 2011.
On June 9, 2011 OWCP advised appellant that the evidence submitted was insufficient to
establish that she sustained any diagnosed medical condition as a result of the May 9, 2011
employment incident. It requested additional factual and medical evidence to support her claim.
In a June 16, 2011 report, Dr. Beavers examined appellant for upper back pain that was
most prominent in the mid-thoracic spine and radiated down to the neck and shoulders. She
stated that the pain started six weeks ago when a heavy object fell on appellant at work.
2

Dr. Beavers noted that examination of the upper back was unremarkable and diagnosed acute
low back pain. She noted that palpation of appellant’s back demonstrated left-side spasm and
pain to mild palpation muscles.
In a July 1, 2011 report, Dr. Beavers noted appellant’s complaints of upper back pain and
related that her symptoms had worsened since her last visit. Examination of appellant’s back
revealed left-side spasms upon palpation and pain to mild palpation. Dr. Beavers also observed
that appellant’s upper thoracic was swollen on the left side and tender, but found no bruising.
In a July 7, 2011 letter to OWCP, Dr. Beavers provided an accurate history of injury that
on May 9, 2011 appellant was injured at work when an open metal window shutter fell on her
left upper back and posterior shoulder. Appellant received medical treatment from the
employing establishment and was diagnosed with a soft tissue injury. During her initial
evaluation, Dr. Beavers noted that she observed significant tenderness over appellant’s left upper
back and ribs. X-rays of appellant’s ribs and thoracic spine revealed mild arthritis but no acute
injury. Dr. Beavers believed that appellant had a significant soft tissue injury. During her
follow-up examinations, she observed that appellant was still significantly tender and had some
soft tissue swelling. Appellant underwent physical therapy treatments and stated that they helped
her a lot. Dr. Beavers opined that appellant’s left upper back soft tissue injury was directly
caused by the heavy metal shutter which fell on her back on the morning of May 11, 2011.
In a July 8, 2011 report, Dr. Beavers noted appellant’s complaints of muscle, ligament
and fascia disorders. Appellant completed physical therapy but still had difficulty turning her
head to the left and extending her neck due to muscle spasms to the left trapezius. Dr. Beavers
noted some soft tissue swelling as well. Upon examination, she noticed that appellant was very
tender over her left trapezius and tolerated very little pressure due to pain. Dr. Beavers observed
soft tissue swelling at the top of the shoulder and decreased rotation to the left due to pain and
spasm. No midline deformity or tenderness was present. Dr. Beavers diagnosed soft tissue
disorder and provided two trigger point injections.
In a July 14, 2011 report, Dr. Beavers stated that appellant was evaluated for unspecified
soft tissue disorders and noted that her symptoms had improved since the last visit. She
observed less swelling to the lateral posterior left shoulder but noted considerable pain and
swelling medially. Examination revealed swelling and pain along the spinal column on the left
upper paraspinal muscles and less swelling where the last trigger point injection was provided.
Dr. Beavers diagnosed unspecified soft tissue disorder and administered another injection.
In a July 14, 2011 return to work certificate, Dr. Beavers stated that appellant was under
her care from May 11 to July 14, 2011 and authorized appellant to return to work on
July 18, 2011. She diagnosed an upper back soft tissue injury and restricted appellant to working
4 hours a day 3 days a week with no stooping, bending or crawling, standing more than 30
minutes without being able to sit down and lifting more than 5 pounds,.
Appellant submitted various physical therapy progress notes dated from June 6 to
July 11, 2011. The physical therapist noted appellant’s back soreness and diagnosed back sprain.

3

OWCP referred the case to its medical adviser. In a July 15, 2011 report, a district
medical adviser stated that he reviewed the information provided and found that no definitive
diagnosis was provided. He related that appellant was apparently hit by something heavy and
complained of upper back pain since then. The medical adviser noted that one provider found
spasms and swelling but pointed out that these findings were not present during the initial
medical visit. It was also noted that no bruising was present to suggest a more serious soft tissue
injury. The medical adviser stated that appellant apparently had x-rays but the reports were not
available for review. It was advised that her case be referred to a second-opinion examiner to
determine if any objective findings were present. If nothing was found, the medical adviser
suggested that the claim not be accepted based solely on pain because that was not considered a
definitive diagnosis.
In a July 20, 2011 report, Dr. Beavers stated that appellant had returned to restricted duty
and noted that her soft tissue disorder had worsened since her last visit. The examination
revealed decreased range of motion with extension and rotation and tenderness along the left
paraspinal muscles and the top edge of the trapezius. Dr. Beavers also observed persistent
swelling along the top edge of appellant’s trapezius. She diagnosed soft tissue disorders.
In a decision dated August 3, 2011, OWCP denied appellant’s claim finding insufficient
medical evidence to establish that she sustained a diagnosed medical condition as a result of the
May 9, 2011 work event.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of her claim by the weight of the reliable, probative and substantial evidence2
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.3
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.4
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged.5 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.6 An employee may establish that the employment incident

2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

3

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
4

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

5

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

6

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

4

occurred as alleged but fail to show that her disability or condition relates to the employment
incident.7
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence providing a diagnosis or opinion as to
causal relationship.8 Rationalized medical opinion evidence is medical evidence which includes
a physician’s rationalized opinion on whether there is a causal relationship between the
employee’s diagnosed condition and the specified employment factors or incident.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 the specific
employment factors identified by the employee.10 However, it is also well established that
proceedings under FECA are not adversarial in nature and while the claimant has the burden of
establishing entitlement to compensation, OWCP shares responsibility in the development of the
evidence to see that justice is done.11
ANALYSIS
OWCP accepted that on May 9, 2011 appellant experienced pain on the left side of her
body when the service window of the finance office struck the left side of her body but found
that the medical evidence failed to establish that she sustained any condition as a result of the
accepted incident, based on the July 15, 2011 report of the district medical adviser. The Board
finds, however, that the district medical adviser’s report is insufficient to form the basis of
OWCP’s August 3, 2011 decision.
In support of her claim, appellant submitted various medical reports by Dr. Beavers. In a
July 7, 2011 report, she provided an accurate history of injury that on May 9, 2011 a metal
window shutter fell and hit her on the left side at work. Dr. Beaver’s initial evaluations revealed
some swelling and tenderness over appellant’s left upper back area and lumbar left paraspinal
muscle pain upon palpation. During her follow-up examinations, she observed that appellant
was still significantly tender and had some soft tissue swelling. Dr. Beavers stated that she
believed appellant suffered a significant soft tissue injury. She concluded that appellant’s left
upper back soft tissue injury was directly caused by the heavy metal shutter which fell on her at
work. Additional diagnostic reports by Drs. Liang and Elliott further revealed small osteophytes
on the thoracic spine and mild degenerative changes.

7

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

8

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

10

D.S., Docket No. 09-860 (issued November 2, 2009); B.B., 59 ECAB 234 (2007); Victor J. Woodhams, supra
note 9 at 352.
11

Philip L. Barnes, 55 ECAB 426 (2004); Virginia Richard, 53 ECAB 430 (2002).

5

OWCP referred appellant to the district medical adviser for an opinion on whether she
sustained any diagnosed condition as a result of the May 9, 2011 employment incident. The
medical adviser stated that she was hit by something heavy and that one provider found spasms
and swelling. He noted that appellant underwent x-rays but the reports were not available for
review. The medical adviser suggested that her case be referred to a second-opinion examiner to
determine if any objective findings were present. If nothing was found, the medical adviser
stated that the claim should not be accepted based solely on pain because that was not considered
a definitive diagnosis.
The Board finds that this report was based upon an incomplete record as the medical
adviser did not review appellant’s x-ray reports when he provided his opinion. Proceedings
under FECA are not adversarial in nature and OWCP is not a disinterested arbiter.12 While the
claimant has the responsibility to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.13 Accordingly, once OWCP undertakes to
develop the medical evidence further, it has the responsibility to do so in the proper manner.14
As it undertook to develop the medical evidence by referring appellant to the district medical
adviser, it had an obligation to secure a report based upon an accurate medical record and that
addresses the relevant issue. Therefore, the case shall be remanded to OWCP for further
development of the medical evidence. After such further development as it deems necessary,
OWCP should issue an appropriate decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

12

Vanessa Young, 55 ECAB 575 (2004).

13

Richard E. Simpson, 55 ECAB 490 (2004).

14

Melvin James, 55 ECAB 406 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 3, 2011 is set aside and the case remanded for further
proceedings consistent with this decision of the Board.
Issued: April 11, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Leavenworth, KS, Employer
__________________________________________

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

Docket No. 10-390
Issued: October 6, 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 November 30, 2009 appellant filed a timely appeal of the September 4, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for
reconsideration because it was not timely filed and failed to establish clear evidence of error.1
Because more than one year has elapsed between the most recent merit decision dated
November 14, 2002 and the filing of this appeal, the Board lacks jurisdiction to review the merits
of this claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.2

1

The Board notes that appellant also appealed a June 10, 2009 “decision.” The Board finds, however, that the
June 10, 2009 Office document is an informational letter and thus does not purport to be a final adverse decision. In
this letter the Office briefly reviewed the procedural history of the case and noted that appellant had yet to exercise
her appeal rights following the issuance of the Office hearing representative’s November 14, 2002 decision
affirming the April 19, 2002 Office decision terminating her compensation benefits. 20 C.F.R. § 501.3(a).
2

For Office decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal with the
Board. 20 C.F.R. § 501.3(d)(2). For Office decisions issued on and after November 19, 2008, a claimant has 180
days to file an appeal with the Board. 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to present clear evidence of error.
On appeal, appellant contends that the Office should have expanded his claim to include
additional diagnosed conditions.
FACTUAL HISTORY
The Office accepted that on May 1, 2001 appellant, then a 35-year-old cook supervisor,
sustained a right rotator cuff tear and concussion when a window fell onto his head while
working at the employing establishment. It authorized right rotator cuff repair which appellant
underwent on July 23, 2001.
By decision dated April 19, 2002, the Office terminated appellant’s compensation for
wage-loss and medical benefits with regard to his accepted employment-related injuries,
effective that date. On February 15, 2002 Dr. Jeffrey D. Lawhead, an attending Board-certified
family practitioner, found that appellant could return to his regular work duties as a cook
supervisor with no restrictions. The opinion of Dr. Lawhead constituted the weight of the
medical opinion evidence.
By decision dated November 14, 2002, an Office hearing representative affirmed the
April 19, 2002 termination decision, finding that the medical evidence was sufficient to establish
that appellant did not have any continuing residuals or disability causally related to his accepted
employment-related injuries.3
In an undated letter received by the Office on August 19, 2009, appellant requested
reconsideration of the April 19, 2002 termination decision. He submitted duplicate copies of
medical reports dated February 8, 2002 to May 19, 2004 which stated that he had fibromyalgia,
sleep apnea, chronic fatigue syndrome and hypometabolism of the brain. Reports dated
January 25, 2002 to March 27, 2008 also reiterated the previously stated diagnoses.
By decision dated September 4, 2009, the Office denied appellant’s August 19, 2009
request for reconsideration on the grounds that it was not timely filed and failed to present clear
evidence of error. It found that his request was not timely filed within one year of the Office’s
November 14, 2002 decision. The Office also found that the evidence submitted failed to
establish a substantial question concerning the correctness of the November 14, 2002 decision.

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By decision dated October 22, 2003, the Office granted appellant a schedule award for eight percent impairment
of the right upper extremity. In a September 29, 2004 decision, an Office hearing representative affirmed the
October 22, 2003 schedule award decision. By decision dated May 18, 2005, the Office denied modification of the
September 29, 2004 decision. In a May 24, 2006 decision, it denied appellant’s May 12, 2006 request for
reconsideration of the May 18, 2005 decision on the grounds that it neither raised substantive legal questions nor
included new and relevant evidence.

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LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act4 does not entitle a claimant
to a review of an Office decision as a matter of right.5 The Office, through its regulations, has
imposed limitations on the exercise of its discretionary authority under section 8128(a). Section
10.607(a) of the Office’s implementing regulations provide that, an application for
reconsideration must be sent within one year of the date of the Office decision for which review
is sought.6
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.7
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by the Office.8 The evidence must be positive, precise and explicit and
must be manifest on its face that the Office committed an error.9 Evidence that does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.12
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of the Office decision.13 The Board makes
an independent determination of whether a claimant has submitted clear evidence of error on the

4

5 U.S.C. § 8128(a).

5

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

20 C.F.R. § 10.607(a).

7

Id. at § 10.607(b).

8

Nancy Marcano, 50 ECAB 110, 114 (1998).

9

Leona N. Travis, 43 ECAB 227, 241 (1991).

10

Richard L. Rhodes, 50 ECAB 259, 264 (1999).

11

Leona N. Travis, supra note 9.

12

See Nelson T. Thompson, 43 ECAB 919 (1992).

13

Veletta C. Coleman, 48 ECAB 367, 370 (1997).

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part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.14
ANALYSIS
The Board finds that the Office properly determined that appellant did not file a timely
request for reconsideration. Its procedures provide that the one-year time limitation period for
requesting reconsideration begins on the date of the original Office decision.15 However, a right
to reconsideration within one year also accompanies any subsequent merit decision on the
issues.16
The last merit decision in this case was the Office hearing representative’s November 14,
2002 decision which affirmed the April 19, 2002 termination of appellant’s compensation. The
hearing representative found that the medical evidence was sufficient to establish that appellant
no longer had any residuals or disability causally related to his accepted employment-related
right rotator cuff tear and concussion. As appellant’s August 19, 2009 letter to the Office
requesting reconsideration of his claim was made more than one year after the November 14,
2002 merit decision of the hearing representative, the Board finds that it was not timely filed.
The Board finds that the evidence submitted by appellant in support of his August 19,
2009 request for reconsideration does not raise a substantial question as to the correctness of the
Office’s termination of is compensation benefits or shift the weight of the evidence of record in
his favor. Appellant resubmitted medical reports which found that he had fibromyalgia, sleep
apnea, chronic fatigue syndrome and hypometabolism of the brain. This evidence was
previously considered by the Office in its prior decisions and does not establish that the Office
committed clear evidence of error in terminating appellant’s compensation in 2002. Further, this
evidence did not provide any opinion addressing whether the diagnosed conditions were causally
related to the accepted May 1, 2001 employment-related injuries. The Board finds that the
medical reports resubmitted by appellant do not discharge his burden of showing clear evidence
of error.
Similarly, none of the medical reports dated January 25 to March 27, 2008 establishes
clear evidence of error in the November 14, 2002 termination decision. This evidence does not
provide any opinion addressing the causal relationship between appellant’s fibromyalgia, sleep
apnea, chronic fatigue syndrome and hypometabolism of the brain, and the May 1, 2001
employment-related injuries. The Board finds that these reports are insufficient to show that the
Office’s termination of appellant’s compensation benefits effective April 19, 2002 was erroneous
or raised a substantial question as to the correctness of the Office’s decision.
Appellant has not otherwise provided any argument or evidence of sufficient probative
value to shift the weight of the evidence in his favor and raise a substantial question as to the
14

Thankamma Mathews, 44 ECAB 765, 770 (1993).

15

20 C.F.R. § 10.607(a); see A.F., 59 ECAB ___ (Docket No. 08-977, issued September 12, 2008).

16

D.G., 59 ECAB ___ (Docket No. 08-137, issued April 14, 2008); Robert F. Stone, 57 ECAB 292 (2005).

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correctness of the Office’s November 14, 2002 termination decision. Consequently, the Office
properly denied appellant’s reconsideration request as his request does not establish clear
evidence of error.
CONCLUSION
The Board finds that appellant’s August 19, 2009 request for reconsideration was
untimely filed and failed to show clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the September 4, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 6, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Clifton, NJ, Employer
__________________________________________

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

Docket No. 11-34
Issued: August 2, 2011

Case Submitted on the Record

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

JURISDICTION
On October 4, 2010 appellant filed a timely appeal from an April 8, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over this decision. Because more than 180
days elapsed from May 8, 2009, the date of the most recent OWCP merit decision, to the filing
of this appeal, the Board lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a) without further merit review.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 16, 2008 appellant, then a 57-year-old letter carrier, filed an occupational
disease claim alleging that she sustained posterior tibial tendinitis due to walking and standing all
day. She stopped work on August 15, 2008. Appellant became aware of her condition and its
relationship to her employment on May 16, 2008.
An August 18, 2008 note from Dr. Glenn R. Haber, a podiatrist, related that appellant
experienced excessive foot pain. He commented that she underwent podiatric surgery on
May 23, 2008, but subsequent treatment failed “[d]ue to excessive walking associated with [her]
job.” Dr. Haber prescribed a walking boot for a minimum of three weeks.
OWCP notified appellant in an August 29, 2008 letter that the evidence was insufficient
and advised her about the evidence needed to establish her claim. Appellant responded with an
undated statement, which noted that she walked up and down steps between 8 and 10 hours each
workday. She also underwent surgery in August 2007 for a right foot spur. No additional
medical evidence was received.
By decision dated October 30, 2008, OWCP denied appellant’s claim, finding the
medical evidence insufficient to establish that her accepted employment activities caused or
aggravated a foot condition.
Appellant requested reconsideration on February 10, 2009. She submitted a January 29,
2009 report from Dr. Haber, who diagnosed acute plantar fasciitis and posterior tibial tendinitis.
Dr. Haber opined, “[Appellant’s] job has exacerbated her foot condition due to her excessive
walking and carrying a heavy [mailbag]. Her job contributed to her foot pathology.”
On May 8, 2009 OWCP denied modification of the October 30, 2008 decision.
Appellant requested reconsideration on March 1, 2010 and asserted that a premature
return to work following her surgery for plantar fasciitis caused tibial tendinitis. She provided
copies of Internet articles concerning the etiology of plantar fasciitis.
By decision dated April 8, 2010, OWCP denied appellant’s request for reconsideration on
the basis that she did not submit new and relevant evidence warranting further merit review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP regulations provide that the evidence or argument submitted by a claimant must either:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3 Where the request for

2

5 U.S.C. § 8128(a).

3

E.K., Docket No. 09-1827 (issued April 21, 2010). See 20 C.F.R. § 10.606(b)(2).

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reconsideration fails to meet at least one of these standards, OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.4
ANALYSIS
On March 1, 2010 appellant requested reconsideration and claimed that employment
duties following her return from foot surgery contributed to posterior tibial tendinitis. This
assertion does not show that OWCP erroneously applied or interpreted a specific point of law
and it also does not advance a relevant legal argument not previously considered by OWCP.
Appellant also submitted copies of Internet articles that described the causes of plantar fasciitis.
This evidence, while new, is not relevant to the underlying medical issue. The Board has held
that such articles lack evidentiary value as they are of general application and not determinative
regarding whether specific conditions are causally related to the particular employment factors in
a claim.5 Therefore, appellant did not provide new and pertinent evidence warranting further
merit review of her case.
Appellant contends on appeal that the medical evidence was sufficient to establish that
her injury was work related. As noted, the Board lacks jurisdiction to review the merits of the
case. The sole question before the Board is whether OWCP properly denied appellant’s request
for reconsideration under 5 U.S.C. § 8128(a) without further merit review. As explained above,
appellant did not submit new and pertinent medical evidence. Furthermore, she did not contend
that OWCP erroneously applied or interpreted a specific point of law or advance a relevant legal
argument not previously considered by OWCP.6 Because appellant did not provide evidence or
argument satisfying any of the three regulatory criteria for reopening a claim, she is not entitled
to reconsideration under section 8128(a) of FECA.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a) without further merit review.

4

L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.608(b).

5

B.C., Docket No. 10-691 (issued October 19, 2010).

6

See Charles A. Jackson, 53 ECAB 671 (2002) at n.14; Daniel O’Toole, 1 ECAB 107 (1948) (request for
reconsideration predicated on legal premise should contain at least an assertion of an adequate legal premise having
some reasonable color of validity).

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ORDER
IT IS HEREBY ORDERED THAT the April 8, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 2, 2011
Washington, DC

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

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

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

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