United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Burlington, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-360
Issued: April 17, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 21, 2006 appellant filed a timely appeal from a merit decision of the Office
of Workers’ Compensation Programs dated December 20, 2005 granting her a schedule award
and an August 21, 2006 nonmerit decision denying her request for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case and over
the August 21, 2006 nonmerit decision.
ISSUES
The issues are: (1) whether appellant has more than a five percent permanent impairment
of each upper extremity; and (2) whether the Office properly refused to reopen her case for
review of the merits pursuant to 5 U.S.C. § 8128.
FACTUAL HISTORY
On October 28, 1996 appellant, then a 39-year-old mail clerk, filed an occupational
disease claim alleging that she sustained bilateral carpal tunnel syndrome (CTS) causally related
to factors of her federal employment. The Office accepted her claim for bilateral CTS and

authorized bilateral surgical releases. Appellant underwent a right carpal tunnel release on
February 4, 1997 and a left carpal tunnel release on March 10, 1997.1
On June 13, 2003 appellant filed a claim for a schedule award. She submitted an
impairment evaluation dated April 22, 2003 from Dr. David Weiss, an osteopath, who discussed
appellant’s complaints of bilateral wrist numbness and left wrist pain. On examination,
Dr. Weiss found a bilateral negative Phalen’s test, a positive Tinel’s sign of the left wrist and
negative Tinel’s sign of the right wrist. For the right side, he determined that appellant had a 20
percent impairment due to loss of grip strength according to Tables 16-32 and 16-34 on page 509
of the American Medical Association, Guides to the Evaluation of Permanent Impairment (5th
ed. 2001) (A.M.A., Guides). Dr. Weiss further found a 9 percent motor deficit in right thumb
abduction for a combined right upper extremity impairment of 27 percent.2 For the left side, he
opined that appellant had a 10 percent impairment due to loss of grip strength3 and a 9 percent
impairment due to a motor deficit in left thumb abduction, for a combined left upper extremity
impairment of 15 percent.4 Dr. Weiss next added an additional 3 percent impairment due to pain
according to Figure 18-1 on page 574 of the A.M.A., Guides to find a total right upper extremity
impairment of 30 percent and a total left upper extremity impairment of 18 percent. He opined
that appellant reached maximum medical improvement on April 22, 2003.
On November 19, 2003 an Office medical adviser reviewed Dr. Weiss’ report. He noted
that, according to pages 493 through 495 of the A.M.A., Guides, an additional impairment for
loss of grip strength was not included in evaluating compression neuropathies. The Office
medical adviser found that the maximum impairment for a median nerve deficit below the
midforearm was 10 percent according to Table 16-15 on page 492. He multiplied the 10 percent
maximum impairment by a 25 percent graded impairment according to Table 16-10 on page 482
to find a 2.5 percent impairment of each upper extremity.
The Office determined that a conflict in medical opinion existed between Dr. Weiss and
the Office medical adviser. The Office referred appellant to Dr. George P. Glenn, Jr., a Boardcertified orthopedic surgeon, for an impartial medical examination. In a report dated March 22,
2004, Dr. Glenn listed findings of a negative Tinel’s sign and Phalen’s test. He noted that
“[appellant] did report blunting of sensation to involve the thumb, index, long and ring digit
bilaterally on the palmar aspect with a normal pinprick response dorsally[;] this is a bilateral

1

By decision dated December 30, 1997, the Office reduced appellant’s compensation to zero based on its finding
that her actual earnings as a modified distribution clerk effective October 15, 1997 fairly and reasonably represented
her wage-earning capacity.
2

A.M.A., Guides at 492, 484, Tables 16-15, 16-14.

3

Id. at 509, Tables 16-32, 16-34.

4

Id. at 492, 484, Tables 16-15, 16-11.

2

finding.” Dr. Glenn found no motor weakness or atrophy. He indicated that appellant’s
examination was normal except for her subjective complaints of numbness. Dr. Glenn stated:
“The [A.M.A.,] Guides report that three possible scenarios can be present (page
495 -- carpal tunnel syndrome). As you can see each of these is dependent in part
upon the interpretation of a recent electromyogram [EMG] and nerve conduction
study [NCS].
“[Appellant] did have EMG and NCS on….” At this point Dr. Glenn’s report
abruptly ended.
An NCS and EMG conducted for Dr. Glenn on April 12, 2004 revealed bilateral mild
CTS.
On August 23, 2004 an Office medical adviser reviewed Dr. Glenn’s March 23, 2004
report and found that it conflicted with the April 22, 2003 report of Dr. Weiss. He noted that
Dr. Glenn found sensory rather than motor impairment. The Office medical adviser determined
that appellant had a Grade 4 sensory impairment of the median nerve below the midforearm,
which constituted a maximum impairment of 39 percent.5 He multiplied the 39 percent by a
graded 25 percent impairment for sensory loss of find that appellant had a 10 percent impairment
of each upper extremity.6
On January 28, 2005 a second Office medical adviser reviewed Dr. Glenn’s March 23,
2004 report. He stated:
“Dr. Glenn really did not resolve the issue of whether there is any [schedule
award] for each [upper extremity] but rather ended his commentary that it would
all depend on the results of a recent EMG [and] NCV test. He left blank the date
such a test was done [and] he offered no conclusion as to which of the three
scenarios in the [A.M.A.], Guides applies.”
The Office medical adviser noted that, if recent electrodiagnostic studies were positive, a
five percent upper extremity impairment could be awarded for each upper extremity.
In a decision dated February 28, 2005, the Office granted appellant a schedule award for
a five percent impairment of each upper extremity. Appellant requested reconsideration.7 In a
report dated April 1, 2005, Dr. Weiss reviewed the April 12, 2004 EMG and NCS and opined
that appellant continued to have bilateral CTS. He disagreed with Dr. Glenn’s finding that
appellant could not receive an award for loss of grip strength.

5

Id. at 492, Table 16-15.

6

Id. at 482, Table 16-11.

7

The Office’s February 28, 2005 decision and appellant’s request for reconsideration are not contained in the case
record.

3

On December 19, 2005 an Office medical adviser found that appellant had a five percent
impairment of both upper extremities based on increased latencies of the bilateral median nerve
on NCV testing according to page 495 of the A.M.A., Guides.
By decision dated December 20, 2005, the Office denied modification of its February 28,
2005 schedule award decision. On May 23, 2006 appellant requested reconsideration of her
claim. She submitted an impairment evaluation dated March 14, 2006 from Dr. Weiss. In a
decision dated August 21, 2006, the Office denied merit review of the prior decision. The Office
noted that, as Dr. Weiss indicated that appellant’s symptoms had worsened, it would adjudicate
her request for reconsideration as a claim for an increased schedule award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,8 and its
implementing federal regulation,9 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 American Medical Association, Guides to the Evaluation
of Permanent Impairment (5th ed. 2001) as the uniform standard applicable to all claimants.10
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.11 The implementing regulation states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.12 Where there exist opposing medical reports of virtually equal weight and rationale
and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.13
In a situation where the Office secures an opinion from an impartial medical specialist for
the purpose of resolving a conflict in the medical evidence and the opinion from such specialist
requires clarification or elaboration, the Office has the responsibility to secure a supplemental
8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

20 C.F.R. § 10.404(a).

11

5 U.S.C. § 8123(a).

12

20 C.F.R. § 10.321.

13

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

4

report from the specialist for the purpose of correcting the defect in the original opinion.14 If the
specialist is unwilling or unable to clarify and elaborate on his or her opinion, the case should be
referred to another appropriate impartial medical specialist.15
ANALYSIS
The Office accepted that appellant sustained bilateral CTS due to factors of her federal
employment. Appellant underwent a right carpal tunnel release on February 4, 1997 and a left
carpal tunnel release on March 10, 1997. On June 13, 2003 she filed a claim for a schedule
award. Appellant submitted an April 22, 2003 impairment evaluation from Dr. Weiss, who
found that she had a 30 percent impairment of the right upper extremity and an 18 percent
impairment of the left upper extremity. An Office medical adviser reviewed Dr. Weiss’ report
and opined that appellant had a 2.5 percent impairment of both upper extremities.
The Office determined that a conflict in medical opinion existed between appellant’s
physician, Dr. Weiss and the Office medical adviser regarding the extent of her permanent
impairment of the upper extremities. The Office referred appellant to Dr. Glenn for resolution of
the conflict.
Section 8123(a) of the Act provide that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician, who shall make an examination.16 In situations where there are
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.17
In a report dated March 22, 2004, Dr. Glenn listed findings on physical examination of a
negative Tinel’s sign and Phalen’s test. He discussed appellant’s complaints of blunting of
sensation along the thumb, index, long and ring fingers. Dr. Glenn noted that, under the A.M.A.,
Guides, three scenarios were possible in CTS cases and that each depended on “the interpretation
of a recent EMG and NCV study.” He stated, “[Appellant] did have EMG and NCV study
on….” Dr. Glenn’s report then ended without the physician reaching any conclusion regarding
the relevant issue of the extent of appellant’s permanent impairment of the upper extremities. In
situations where the Office secures an opinion from an impartial medical specialist for the
purpose of resolving a conflict in the medical evidence and the opinion from such specialist
requires clarification or elaboration, the Office has the responsibility to secure a supplemental
report from the specialist for the purpose of correcting the defect in the original opinion. If the
specialist is unwilling or unable to clarify and elaborate on his or her opinion, the case should be

14

Guiseppe Aversa, 55 ECAB 164 (2003).

15

Id.

16

5 U.S.C. § 8123.

17

Thomas J. Fragale, 55 ECAB 619 (2004).

5

referred to another appropriate impartial medical specialist.18 The Office should have requested
a supplemental report from Dr. Glenn containing his complete findings and an opinion on the
extent of appellant’s permanent impairment of the upper extremities. An Office medical adviser
reviewed Dr. Glenn’s report and found that appellant had a five percent impairment of each
upper extremity. In order to properly resolve the conflict created, however, it is the impartial
medical examiner who should have provided a reasoned opinion as to the extent of permanent
impairment in accordance with the A.M.A., Guides. An Office medical adviser may review the
opinion but the resolution of the conflict is the responsibility of the impartial medical examiner.19
The case is, therefore, remanded for the Office to secure a supplemental report from
Dr. Glenn regarding the extent of appellant’s permanent impairment of the upper extremities. If
he is unable to clarify or elaborate on his opinion, the case should be referred to another
appropriate impartial medical examiner. After such further development as the Office deems
necessary, it should issue an appropriate merit decision on the schedule award issue.
CONCLUSION
The Board finds that the case is not in posture for decision. The case is remanded to the
Office for further development of the medical evidence to be followed by an appropriate
decision.20

18

See Guiseppe Aversa, supra note 14.

19

Richard R. LeMay, 56 ECAB ___ (Docket No. 04-1652, issued February 16, 2005).

20

In view the Board’s disposition of the merits, the issue of whether the Office properly denied appellant’s
request for reconsideration under section 8128 is moot.

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 21, 2006 and December 20, 2005 are set aside and the
case is remanded for further proceedings consistent with this decision by the Board.
Issued: April 17, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.F., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Southeastern, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-865
Issued: July 23, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 8, 2007 appellant, through his attorney, filed a timely appeal from an
August 16, 2006 merit decision of the Office of Workers’ Compensation Programs denying his
occupational disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained a left upper extremity
condition causally related to factors of his federal employment.
FACTUAL HISTORY
On June 28, 2004 appellant, then a 52-year-old automated flat sorter machine clerk, filed
an occupational disease claim alleging that he sustained problems with his left hand, wrist and
arm due to factors of his federal employment. In a statement accompanying his claim, he
attributed his left hand and arm condition to working on an automated flat sorter machine.
Appellant lifted and loaded tubs of mail and fed mail into the machine “at a fast pace.” He

performed repetitive work on the flat sorter machine for 17 years. Appellant experienced pain,
numbness and tingling in his left hand beginning in 2003.1 He currently worked in a limitedduty capacity.
In a report dated May 24, 2004, Dr. Scott M. Fried, an osteopath, described in detail
appellant’s job duties on the flat sorter machine. He noted that appellant experienced bilateral
problems, right side more than left, with his shoulder, upper trapezius, thumb, thenar area and
carpometacarpal joint in 2001. Dr. Fried stated:
“By 2003, [appellant] noted gradual and progressively increased symptoms on the
left. He was overusing the left to compensate for the right and actually would
switch right and left hand on casing and sorting. [Appellant] was stopped on the
flat sorter machine at this point and [has] been on manual sorting. He feels what
really se[n]t him over the edge was the fact that the job required overhead lifting
and reaching to bring down tubs of mail as well as putting them back up. These
weighed 40 [to] 50 [pounds] and [appellant] had to bring these up and down for
sorting and loading the machine. He feels the machine did increase in pace and
keeping up with the high pace significantly stressed his upper back and arms.”
Dr. Fried described the onset and progression of appellant’s symptoms and listed findings
on physical examination. He diagnosed a repetitive strain injury on both sides with
trapeziometacarpal synovitis and moderate arthrosis greater on the right side, flexor
tenosynovitis “with median neuritis and radial neuritis bilaterally secondary to repetitive work
activities” and tendinitis of the rotator cuff “right side greater than left with brachial plexitis
right, moderate left secondary to repetitive lifting of bins and repetitive sorting activities on a flat
sorter.” Dr. Fried listed work restrictions. He concluded, “I have concern that [appellant] has a
combination of a musculoskeletal disorder, repetitive strain injury and also underlying
neurogenic involvements.”2
In a statement received September 20, 2004, the employing establishment described
appellant’s work duties on the flat sorter machine, which included pulling flats of mail off a
conveyor belt, loading the mail into a hamper and lifting tubs of mail. The employing
establishment indicated that for four hours per day he bent, loaded, lifted, pushed and pulled
mail. Appellant began working in the manual section rather than on the flat sorter machine
beginning April 2004.
On October 4, 2004 appellant again described in detail, the employment duties to which
he attributed his left upper extremity conditions. He related that he bent down to get tubs of mail
which he lifted above shoulder level. Appellant also “work[ed] off a rack grabbing handful[s] of
magazines, bulk mail and first class flat mail. This is continuous throughout [an] eight-hour
workday five days a week.”
1

Appellant noted that he had previously filed a claim for a right hand and thumb condition, assigned file
number 032004002.
2

Dr. Fried interpreted an x-ray of appellant’s hands and wrists as showing trapeziometacarpal articulations,
spurring and joint space narrowing. An x-ray of the elbows and forearms was unremarkable.

2

By decision dated November 17, 2004, the Office denied appellant’s claim on the
grounds that the medical evidence was insufficient to show that he sustained a condition due to
the accepted employment factor of working on a machine. The Office found that Dr. Fried did
not adequately explain his diagnoses in view of the results of diagnostic testing or provide an
unequivocal opinion on causal relationship.
On November 18, 2004 appellant, through his attorney, requested an oral hearing.
Following the June 28, 2005 hearing, by decision dated September 27, 2005, the Office hearing
representative affirmed the November 17, 2004 decision.
In a report dated September 21, 2005, received by the Office on November 28, 2005,
Dr. Fried reviewed appellant’s statement describing his employment duties. He noted that
appellant lifted mail out of tubs. Dr. Fried noted:
“[Appellant] also had to work off of racks, grabbing hands full of magazines, bulk
mail and first-class flat mail. This is continuous work of a repetitive basis
throughout an 8-hour day dispatching over 100 tons of mail off the flat sorter
machine into equipment called [the] [b]ulk [m]ail [c]ontainer. There is aggressive
and repetitive hand, wrist and arm activity with grasping, pulling, pushing, lifting
and the like.”
Dr. Fried analyzed the diagnostic studies and his objective findings on physical
examination. He asserted:
“Objectively on [appellant’s] clinical examination findings on the left indicated a
positive Tinel or compression test at the radial nerve in the left forearm. This is
consistent with inflammation and swelling which is palpable as well as
appropriate radiation of nerve symptoms into the forearm. This is consistent with
a lateral epicondylor problem and radial nerve problem. The radial nerve is
involved in grasping and wrist extension activity again which were performed on
a repetitive basis from [appellant’s] work activities.”
Dr. Fried further listed objective findings consistent with flexor tenosynovitis of the wrist
and brachial plexus nerve irritation “consistent with the repetitive overhead reaching and regular
reaching and pulling, pushing and grasping activities that [appellant] performed.” He concluded:
“In summary, [appellant] has a well-documented repetitive strain injury in his
right upper extremity and left upper extremity is involved as well. Although his
initial symptoms were worse on the right, [appellant] continued to overuse the left
to compensate for the right and actually continued to switch hands back and forth.
[Appellant] had progressive symptoms in the left upper extremity and this
resulted in permanent involvement. Specifically, his diagnoses are trapezial
metacarpal arthrosis with synovitis and subluxation with instability on the left.
[Appellant] has a flexor tenosynovitis with median neuritis and radial nerve
involvement [and] also left wrist and forearm secondary to these work activities
with objective findings as noted above. He has rotator cuff tendonovitis with

3

brachial plexus and inflammation [on the] left side as well, secondary to his
repetitive reaching and lifting activities.
“I hope the above is helpful in providing medical documentation explanation of
the same. This is a classic repetitive strain injury with 17 years of cumulative
traumas each providing microtraumas subsequently resulting in pain, discomfort,
dysfunction and disability. There is direct cause and relationship between the
repetitive activities performed on the flat sorter machine and the above diagnoses.
The objective findings are consistent with [appellant’s] history of work, the
history of work pathology, the progressive development of his injuries and his
present clinical complaints as well as objective findings on examination. There is
a high degree of consistency and correlation between the history of injury, work
as described and present and ongoing complaints. The cause and effect
relationship is absolute and clear cut.”
In a report dated May 15, 2006, Dr. Fried listed findings on examination and
recommended a pain management program.
On August 2, 2006 appellant, through his attorney, requested reconsideration of the
claim. By decision dated August 16, 2006, the Office denied modification of its September 27,
2005 decision. It stated that Dr. Fried inaccurately described appellant’s employment duties as
repetitive in nature as a “flat sorter keys flats, he does not sort them.” The Office further
determined that Dr. Fried did not support his conclusions with objective studies or explain the
effect of any preexisting condition.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 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 filed within the applicable time limitation; that an injury was sustained while 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 on
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;6 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
3

5 U.S.C. §§ 8101-8193.

4

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

5

See Ellen L. Noble, 55 ECAB 530 (2004).

6

Michael R. Shaffer, 55 ECAB 386 (2004).

4

presence or occurrence of the disease or condition;7 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.8
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence, which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.9 The
opinion of the physician must be based on a complete factual and medical background of the
claimant,10 must be one of reasonable medical certainty11 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.12
ANALYSIS
Appellant attributed his left hand and arm condition to bending and lifting tubs of mail
and working on the automated flat sorter machine. In a statement received by the Office on
October 4, 2004, he related that he performed these activities continuously throughout an eighthour workday. The employing establishment confirmed that appellant worked on a flat sorter
machine bending, loading, lifting, pushing and pulling mail but maintained that he performed
these duties for only four hours per day. The employing establishment did not provide
information regarding his work duties for the remainder of the workday. Appellant submitted a
comprehensive medical report dated September 21, 2005 from his attending physician, Dr. Fried,
who diagnosed trapeziometacarpal arthrosis with synovitis, flexor tenosynovitis with median
neuritis and radial nerve involvement and rotator cuff tendinitis. Dr. Fried explained that the
objective findings on examination, work history and the progression of injury supported a causal
relationship between the diagnosed conditions and his employment. He relied, however, on a
history of appellant working on a flat sorter machine for eight hours per day performing
repetitive work duties.13
Although it is appellant’s burden to establish his claim, the Office is not a disinterested
arbiter but, rather, shares responsibility in the development of the evidence, particularly when
such evidence is of the character normally obtained from the employing establishment or other
7

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

8

Beverly A. Spencer, 55 ECAB 501 (2004).

9

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

10

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

11

John W. Montoya, 54 ECAB 306 (2003).

12

Judy C. Rogers, 54 ECAB 693 (2003).

13

Medical conclusions based on inaccurate or incomplete histories are of little probative value and are insufficient
to satisfy a claimant’s burden of proof. John W. Montoya, supra note 11.

5

government source.14 In order to properly adjudicate the claim, it is important to secure evidence
regarding appellant’s actual employment duties. While the employing establishment provided a
statement to the Office, the statement did not contain a full description of appellant’s work duties
for eight hours per day, but instead described his work for four hours per day on the flat sorter
machine. The Board, therefore, will remand the case to the Office to request additional
information from the employing establishment regarding appellant’s work duties. Upon securing
the information, the Office should prepare a statement of accepted facts and request an opinion
from Dr. Fried based on a complete and accurate factual history addressing the causal
relationship between any diagnosed conditions and the accepted work factors. After such further
development as is deemed necessary, the Office should issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 16, 2006 is set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: July 23, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

14

See Claudia A. Dixon, 47 ECAB 168 (1995).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-2368
Issued: June 14, 2011

Case Submitted on the Record

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

JURISDICTION
On September 27, 2010 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ decisions dated April 15 and August 16, 2010. Pursuant to the Federal
Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
to review the merits of this case.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s compensation claim
on the grounds that his claim was not filed within the applicable time limitation provisions of the
Act; and (2) whether it properly found that appellant abandoned his request for a hearing.
FACTUAL HISTORY
Appellant, a 55-year-old former ship worker, filed a claim for benefits on March 5, 2010,
alleging that he sustained a right-sided carpal tunnel condition causally related to factors of his
1

5 U.S.C. § 8101 et seq.

federal employment. He stated that he first became aware he had sustained carpal tunnel
syndrome on August 9, 2005. Appellant was employed by the employing establishment until
1987. The record indicates that appellant became disabled and was placed on the Office’s
periodic rolls in 1985 due to a neck and right shoulder injury. Appellant remains on the periodic
rolls.
By letter dated March 15, 2010, the Office advised appellant that he needed to submit
additional factual and medical evidence in support of his claim. It stated that appellant had 30 days
to submit the requested information.
Appellant submitted a 24-page summary of his medical records from Dr. Arthur W.
Wardell, a Board-certified orthopedic surgeon, which documented his treatment for right-sided
carpal tunnel syndrome, right elbow pain, right wrist, right arm and bilateral upper extremity pain
from July 2004 to July 2009. An electromyogram (EMG) study of appellant’s right upper
extremity dated August 9, 2005 was interpreted by Dr. Quingyan Zhu, a Board-certified
neurologist, as revealing a mild right upper extremity carpal tunnel syndrome. The progress notes
first reference carpal tunnel syndrome in an August 18, 2005 note, wherein it was reported that
electrodiagnostic testing showed a mild right carpal tunnel syndrome. Dr. Wardell addressed the
issue of causal relationship in a report dated December 24, 2009 by stating: “Taking into
consideration Mr. Jones work history, I think that the carpal tunnel that is characterized by his
electrodiagnostic studies is a direct result of his work activities.”
Appellant also submitted a statement indicating his work history and explaining how his
right-sided carpal tunnel syndrome developed.
By decision dated April 15, 2010, the Office denied appellant’s claim, finding that he failed
to file a timely claim under section 8122. It noted that the date of injury was August 9, 2005 and
that the claim for compensation was filed on March 5, 2010; it advised him that he should have
been aware of a relationship between his employment and the claimed condition by
August 9, 2005. The Office further stated that there was no evidence that his immediate supervisor
had no actual knowledge within 30 days of the date of injury.
On April 20, 2010 appellant requested an oral hearing. On June 15, 2010 the Office sent
a notice of hearing to appellant and provided procedural information regarding the hearing. The
notice stated that a hearing would be held on August 4, 2010 at 9:30 a.m. Appellant did not
appear at the hearing.
By decision dated August 16, 2010, the Office determined that appellant had abandoned
his request for a hearing.
LEGAL PRECEDENT -- ISSUE 1
Section 8122(a) of the Act states, “An original claim for compensation for disability or
death must be filed within three years after the injury or death.”2 Section 8122(b) provides that
in latent disability cases, the time limitation does not begin to run until the claimant is aware, or
2

Id. at § 8122(a).

2

by the exercise of reasonable diligence should have been aware, of the causal relationship
between her employment and the compensable disability.3 The Board has stated that in a case of
occupational disease, the time for filing a claim begins to run when the employee first becomes
aware or reasonably should have been aware, of a possible relationship between his condition
and his employment. When an employee becomes aware or reasonably should have been aware
that he has been adversely affected by factors of his federal employment, such awareness is
competent to start the limitation period even though the employee does not know the precise
nature of the impairment or whether the ultimate result of such affect would be temporary or
permanent.4
The Board has held that, if an employee continues to be exposed to injurious working
conditions after such awareness, the time limitation begins to run on the last date of this
exposure.5
ANALYSIS -- ISSUE 1
In the present case, as appellant had not been employed by the employing establishment
since 1987, he was no longer exposed to the injurious factors of employment after 1987. He was
diagnosed with mild carpal tunnel syndrome on August 9, 2005 and he stated that he became
aware of his right-sided carpal tunnel syndrome and its relationship to his federal employment on
August 9, 2005. The time limitation for filing the claim began to run on August 9, 2005, the date
that appellant became aware of his carpal tunnel condition and its relationship to his
employment.6 Although Dr. Wardell first commented on causal relationship in a brief note dated
December 24, 2009, appellant has acknowledged that he knew of the condition and the possible
relationship to his employment since August 9, 2005. This is therefore not a case wherein
appellant files a claim within the time limitation, after discovering a latent condition. The Board
also notes that appellant has been on the periodic rolls arising from another injury for many
years. Appellant was therefore familiar with the concepts of diagnosis, causal relationship and
filing of a claim.
Appellant had three years from August 9, 2005 to timely file his claim. Since he did not
file a claim until March 5, 2010 it was not timely filed within the three-year period of limitation.
In addition, there is no evidence in the record indicating that his immediate supervisor
had actual knowledge of the injury within 30 days, or that anything occurred to make his
supervisor reasonably aware that he sustained an occupational disease or condition relating to his
employment.7 The record therefore does not support that appellant satisfied this requirement.

3

Id. at § 8122(b).

4

Gerald A. Preston, 57 ECAB 270 (2005).

5

J.P., 59 ECAB 178 (2007); Linda J. Reeves, 48 ECAB 373 (1997).

6

See supra note 2 at § 8122(b). See also James W. Beavers, 57 ECAB 254 (2005).

7

Roger W. Robinson, 54 ECAB 846 (2003).

3

LEGAL PRECEDENT -- ISSUE 2
With respect to abandonment of hearing requests, Chapter 2.1601.6.e of the Office’s
procedure manual provides in relevant part:
“(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to appear at a
scheduled hearing; and the claimant has failed to provide any notification for such
failure within 10 days of the scheduled date of the hearing.
“Under these circumstances, [the Branch of Hearings and Review] will issue a
formal decision finding that the claimant has abandoned his or her request for a
hearing and return the case to the [district Office]. In cases involving
precoupment hearings, [the Branch of Hearings and Review] will also issue a
final decision on the overpayment, based on the available evidence, before
returning the case to the [district Office].
“(2) However, in any case where a request for postponement has been received,
regardless of any failure to appear for the hearing, [the Branch of Hearings and
Review] should advise the claimant that such a request has the effect of
converting the format from an oral hearing to a review of the written record.
“This course of action is correct even if [the Branch of Hearings and Review] can
advise the claimant far enough in advance of the hearing that the request is not
approved and that the claimant is, therefore, expected to attend the hearing and
the claimant does not attend.”8
ANALYSIS -- ISSUE 2
In finding that appellant abandoned his April 15, 2010 request for a hearing, the Office
noted that a telephonic hearing had been scheduled on August 4, 2010, that appellant received
written notification of the hearing 30 days in advance, that appellant failed to appear and that the
record contained no evidence that appellant contacted the Office to explain his failure to attend
the hearing. On appeal, appellant contends that he did not attend the hearing because he never
received the notice. The Board has previously found that, in the absence of evidence to the
contrary, a letter properly addressed and mailed in the due course of business is presumed to
have arrived at the mailing address in due course.9 This is known as the mailbox rule. On
review of the record, the Board notes that the June 15, 2010 letter was properly addressed to
appellant’s address of record in Portsmouth, Virginia. The record contains no evidence to rebut
the presumption that appellant received the June 15, 2010 notice. The Board therefore finds that

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6.e (January 1999).
9

See W.P., 59 ECAB 514 (2008).

4

appellant’s contention that he did not receive notice of the proposed findings is not supported by
the record.
Based on the evidence of the record, appellant did not request postponement of the
hearing date, failed to appear at the scheduled hearing and failed to provide any notification for
such failure within 10 days of the scheduled date of the hearing. As this meets the criteria for
abandonment as specified in Chapter 2.1601.6.e of the Office’s procedure manual, the Office
properly found that appellant abandoned his request for an oral hearing before an Office hearing
representative.
CONCLUSION
The Board finds that the Office properly denied appellant’s compensation claim on the
grounds that his claim was not filed within the applicable time limitation provisions of the Act.
The Board finds that the Office properly determined that appellant abandoned his request for a
hearing.
ORDER
IT IS HEREBY ORDERED THAT the August 16 and April 15, 2010 decisions of the
Office of Workers’ Compensation Programs be affirmed.
Issued: June 14, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.V., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NATIONAL CEMETERY ADMINISTRATION,
Farmingdale, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-2165
Issued: February 25, 2014

Case Submitted on the Record

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

JURISDICTION
On September 23, 2013 appellant filed a timely appeal from a May 22, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his 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 on December 14, 2012 in the
performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 14, 2012 appellant, then a 44-year-old cemetery caretaker, filed a traumatic
injury claim alleging that on that date he experienced a sharp low back pain while shoveling. He
stopped work on December 15, 2012.
In a December 14, 2012 duty status report, a physician’s assistant diagnosed lumbar
sprain and found that appellant should be off work for seven days and work with restrictions
beginning December 24, 2012. In a note dated December 24, 2012, a physician indicated that
appellant was evaluated at the emergency room for back pain and recommended bed rest for two
days.2
In a duty status report dated December 27, 2012, Dr. Jeffrey Goldstein, a Board-certified
orthopedic surgeon, diagnosed low back pain and found that appellant could work with
restrictions.
By letter dated January 4, 2013, OWCP informed appellant that it had paid a limited
amount of medical expenses but was now formally adjudicating his claim. It requested that he
submit supporting factual and medical evidence, including a detailed report from his attending
physician, addressing the causal relationship between any diagnosed condition and the identified
work factors.
In a progress report dated January 31, 2013, Dr. Goldstein noted that appellant had a
history of a prior disc herniation at L5-S1 with stenosis. He diagnosed low back pain with a
history of a prior left L5 compression.
By decision dated February 14, 2013, OWCP denied appellant’s claim after finding that
the evidence was insufficient to establish fact of injury. It determined that the December 14,
2012 incident occurred as alleged but that the medical evidence did not establish that he
sustained a diagnosed condition causally related to the accepted work incident.
On February 26, 2013 appellant requested a review of the written record by an OWCP
hearing representative.
In a report dated December 14, 2012, received by OWCP on March 1, 2013, Dr. Mandar
Tank, a Board-certified internist, evaluated appellant in the emergency room. He noted that
appellant described his injury as occurring when he felt a sharp back pain while shoveling dirt.
Dr. Tank had experienced a herniated disc in the same location a year before that was work
related. He diagnosed a straightened lumbar lordosis, moderate-to-severe disc space narrowing
at L5-S1, facet hypertrophy at L4-S1 and a left lateral disc herniation at L5-S1 contracting the L5
nerve root on the left. Dr. Tank related that “[m]ore than likely this injury is related to the
repetitive digging that often occurs in the cemetery.”
On December 27, 2012 Dr. Goldstein made a provisional diagnosis of lumbar sprain. He
noted that appellant described an injury to his back two weeks ago as a result of shoveling.
2

The name of the physician is not legible.

2

Dr. Goldstein related that he initially experienced back pain two years before after moving a
headstone and had a history of a disc herniation at L5 on the left. He listed work restrictions.
In a letter dated March 1, 2013, the employing establishment indicated that appellant had
a preexisting L5-S1 disc herniation that was “being aggravated by the repetitive digging
performed by the employee during the performance of his position.” It advised that he had
returned to his usual employment on February 1, 2013.
By decision dated May 22, 2013, an OWCP hearing representative affirmed the
February 14, 2013 decision as modified to show that appellant had established fact of injury.3
She found, however, that he failed to submit medical evidence sufficient to establish that he
sustained a low back condition causally related to the December 14, 2012 employment incident.
The hearing representative instructed appellant to file an occupational disease claim if he
believed that his condition arose from factors of employment occurring over the course of more
than one workday.
On appeal appellant contends that Dr. Tank in his December 14, 2012 report found that
appellant’s condition most likely resulted from repetitive digging at work. He discusses his
physicians’ findings and asserts that his condition was aggravated by repetitive shoveling.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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 filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.7 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish a
causal relationship between the employment incident and the alleged disability and/or condition

3

OWCP’s hearing representative indicated that she was modifying the decision to show that appellant had
established fact of injury but had not established causation between any diagnosed condition and the identified work
factors. The Board notes that the hearing representative accepted fact of incident rather than fact of injury.
4

Supra note 1.

5

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

6

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

7

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

3

for which compensation is claimed.8 An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her disability and/or condition relates to the
employment incident.9
ANALYSIS
Appellant alleged that on December 14, 2012 he experienced a sharp pain in his lower
back while shoveling. OWCP accepted that the incident occurred at the time, place and in the
manner alleged. The issue, consequently, is whether the medical evidence establishes that he
sustained an injury as a result of this incident.
The Board finds that appellant has not established that the December 14, 2012
employment incident resulted in an injury. The determination of whether an employment
incident caused an injury is generally established by medical evidence.10
In a form report dated December 14, 2012, a physician’s assistant diagnosed lumbar
sprain and found that appellant should be off work for seven days and return to work on
December 24, 2012 with restrictions. A physician’s assistant, however, is not considered a
physician under FECA and thus the report is of no probative value.11
On December 14, 2012 Dr. Tank provided a history of appellant experiencing back pain
in the same location as a prior herniated disc after shoveling dirt. He diagnosed a straightened
lumbar lordosis, disc narrowing at L5-S1, facet hypertrophy at L4-S1 and a left L5-S1 disc
herniation compressing the L5 nerve root. Dr. Tank found that the injury most likely resulted
from repetitive digging in the course of appellant’s federal employment. His opinion does not
support that appellant sustained a traumatic injury on December 14, 2012 as he attributed the
diagnosed conditions to work duties occurring over more than one workday, which is akin to an
occupational injury claim.12
On December 24, 2012 a physician indicated that appellant was evaluated at the
emergency room for back pain, noted that x-rays revealed no fractures and recommended bed
rest for two days. However, the physician’s signature is illegible. As such, the author cannot be
readily identified as a physician. Consequently, the report is of no probative value.13

8

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

9

Id.

10

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

11

See 5 U.S.C. § 8101(2); Allen C. Hundley, 53 ECAB 551 (2002).

12

A traumatic injury is defined 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.” 20 C.F.R. § 10.5(ee). An occupational disease is defined as a
condition produced by the work environment over a period longer than a single workday or shift.” 20 C.F.R.
§ 10.5(q).
13

See Merton J. Sills, 39 ECAB 572, 575 (1988).

4

On December 27, 2012 Dr. Goldstein related that appellant injured his low back two
weeks earlier shoveling. He discussed his history of a herniated disc on the left at L5 and back
pain two years ago moving a headstone. Dr. Goldstein provisionally diagnosed lumbar sprain
and provided work restrictions. He did not, however, provide a firm diagnosis of appellant’s
condition or explain whether the described work incident caused or aggravated his condition.
Without a firm diagnosis supported by medical rationale, the report is of little probative value.14
On January 31, 2013 Dr. Goldstein diagnosed low back pain and noted that appellant had
a history of a disc herniation at L5-S1 with stenosis and left L5 compression. He did not address
the cause of the low back pain or attribute any back condition to the December 14, 2012
employment incident, consequently his opinion is of little probative value.15
On appeal appellant attributes his condition to repetitive shoveling at work. If he
believes that his condition is related to employment factors occurring over more than one work
shift, he can file an occupational disease claim before OWCP.16
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury on
December 14, 2012 in the performance of duty.

14

See Samuel Senkow, 50 ECAB 370 (1999) (finding that, because a physician’s opinion of Legionnaires disease
was not definite and was unsupported by medical rationale, it was insufficient to establish causal relationship).
15

See supra note 13.

16

See supra note 12.

5

ORDER
IT IS HEREBY ORDERED THAT the May 22, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 25, 2014
Washington, DC

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

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

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 19-1521
Issued: February 22, 2021

Case Submitted on the Record

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

JURISDICTION
On July 9, 2019 appellant, through his representative, filed a timely appeal from a
January 16, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

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

Appellant timely requested oral argument before the Board. By order dated April 15, 2020, the Board exercised
its discretion and denied the request as the matter could be adequately addressed based on a review of the case record.
Order Denying Request for Oral Argument, Docket No. 19-1521 (issued April 15, 2020).

Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.4
ISSUE
The issue is whether appellant has met his burden of proof to modify OWCP’s June 1, 2017
loss of wage-earning capacity (LWEC) determination.
FACTUAL HISTORY
On May 18, 2015 appellant, then a 56-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that factors of his federal employment, including over 30 years
of bending, twisting, lifting, and falling caused a medical condition. He noted that he first became
aware of his condition on September 1, 2014 and its relation to his federal employment on
May 7, 2015. In an accompanying narrative, appellant indicated that the implicated employment
factors caused a neck injury. OWCP accepted the claim for cervical radiculopathy. Appellant
stopped work on September 9, 2015. On November 12, 2015 OWCP expanded acceptance of the
claim to include bilateral carpal tunnel syndrome, cervical disc displacement, mid-cervical region,
and cervical disc displacement, cervicothoracic region C3-C7. Appellant returned to full-time,
limited-duty work on July 19, 2016.
Appellant accepted a modified limited-duty assignment on September 10, 2016, which
required lifting up to 47 pounds for 2 to 4 hours, carrying up to 42 pounds for 2 to 4 hours and
pushing pulling up to 200 pounds for 2 to 4 hours.
By decision dated June 1, 2017, OWCP found that the modified city carrier position
appellant had held since September 10, 2016 fairly and reasonably represented his wage-earning
capacity. It further found that, as his actual earnings met or exceeded the current wages of the job
he held when injured, there was no loss of wage-earning capacity (LWEC).
On July 14, 2017 OWCP received a claim for compensation (Form CA-7) for total
disability from June 24 to July 7, 2017. Along with the Form CA-7, it also received a June 23,
2017 work restriction note from Dr. Bruce J. Montella, a Board-certified orthopedic surgeon,
holding appellant off work until further evaluation.
In a July 17, 2017 development letter, OWCP advised appellant that his claim for wageloss compensation for the period June 24 to July 7, 2017 was considered a request for modification
of his formal LWEC decision. It informed him of the three criteria to establish modification of an
LWEC and afforded him 30 days to submit the necessary information. OWCP also noted that

3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the January 16, 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
additional evidence for the first time on appeal. Id.

2

appellant’s accepted conditions were bilateral carpal tunnel syndrome, other cervical disc
displacement, mid-cervical region, and other cervical disc displacement, cervicothoracic region.
Appellant subsequently submitted additional reports from Dr. Montella, along with a Form
CA-7, claiming compensation from August 5 through 18, 2017.
By decision dated September 11, 2017, OWCP denied modification of its June 1, 2017
LWEC determination. It found that Dr. Montella did not describe the changes in appellant’s
accepted conditions or provide rationalized medical opinion regarding the causal relationship
between such changes and the increase in disability. The decision noted that appellant’s claim was
accepted for bilateral carpal tunnel syndrome, other cervical disc displacement, mid-cervical
region, and other cervical disc displacement, cervicothoracic region.
A September 26, 2017 magnetic resonance imaging (MRI) scan of the cervical spine
demonstrated restriction of movement in various flexion and extension positions along with
numerous disc bulges. A September 26, 2017 MRI scan of the cervical spine revealed mild
increase in the severity of right neural foraminal stenosis at C3-4 level and mild increase in severity
of bilateral foraminal stenosis at C4-5 level as compared to previous MRI scan of cervical spine
dated July 24, 2015. An October 2, 2017 electromyogram (EMG) showed moderate bilateral
median neuropathy across the wrists, left worse than right, with no significant change from prior
study. It also noted suspicious but not diagnostic findings of chronic bilateral mid-cervical (C6-7)
radiculopathy.
In reports beginning September 22, 2017, Dr. Montella indicated that appellant’s
conditions had worsened to a state of permanent total disability. In an October 13, 2017 report, he
provided an impression of cervical disc displacement at C5-6 level and cervical disc disorder at
C6-7 level with radiculopathy. Dr. Montella indicated that appellant’s MRI scans showed a
distinct worsening of the biomechanic integrity and ability of appellant’s spinal column to function
in regard to bearing stresses required of him at work. He advised that the EMGs were consistent
with nerve root entrapment at the cervical spine as well as at the wrists; that the serial radiographs
showed significant progression of spondylitic changes consistent with disability; and that a followup EMG was consistent with radiculopathy. Dr. Montella related that appellant required daily pain
medication and should not be operating a motor vehicle. He also related that appellant could not
lift weights in excess of 5 to 10 pounds, and could not lift any weight in a repetitive fashion. Dr.
Montella opined that this was consistent with a worsening of appellant’s overall condition which
precluded him from returning to work from June 24, 2017 onward.
Appellant requested reconsideration on November 1, 2017. In support of his request,
appellant submitted additional reports from Dr. Montella.
By decision dated January 23, 2018, OWCP denied modification of its September 11, 2017
decision, finding that Dr. Montella had not provided a well-rationalized explanation of how
appellant’s accepted medical conditions had materially changed. The decision noted that
appellant’s claim was accepted for bilateral carpal tunnel syndrome, other cervical disc
displacement, mid-cervical region, and other cervical disc displacement, cervicothoracic region.

3

Appellant continued to submit evidence from Dr. Montella. In a February 15, 2018 letter,
Dr. Montella advised that appellant was being treated for cervical disc herniation at the C5-6 level
and cervical disc radiculopathy the C6-7 level. He requested that OWCP expand acceptance of
the claim to include cervical radiculopathy based on the October 2, 2017 EMG. Dr. Montella also
explained how appellant’s cervical spine was aggravated, which caused a herniated disc and led to
radiculopathy.
A note of a telephone call (Form CA-110) dated April 26, 2018 revealed that a voicemail
message from OWCP advised appellant that cervical disc radiculopathy could not be added to his
claim as the October 2, 2017 EMG findings were “suspicious” and not diagnostic of cervical
radiculopathy.
An EMG of May 11, 2018 showed, in relevant part, a more central chronic lesion,
radiculopathy of C6-7, bilaterally. In an addendum to a May 11, 2018 EMG report, Dr. Drew S.
Kandilakis, a Board-certified neurological electrodiagnostics, opined that, based on the EMG
findings, appellant has a chronic C6-7 bilateral cervical radiculopathy.
In a May 25, 2018 report, Dr. Montella again requested that radiculopathy of C6-7
bilaterally be added to appellant’s accepted conditions based on the May 11, 2018 addendum to
the recent EMG report. He additionally provided a medical explanation as to how the condition
resulted from the original cervical disc herniation conditions.
On August 30, 2018 appellant, through his representative, requested reconsideration of the
June 1, 2017 LWEC determination, contending that appellant sustained a worsening of his medical
conditions because OWCP had not accepted cervical radiculopathy. Narrative medical reports
from Dr. Montella, dated February 15 through October 2, 2018, were received along with physical
therapy reports, diagnostic tests, and medical literature.
By decision dated January 16, 2019, OWCP denied modification of its January 23, 2018
decision. It indicated, in relevant part, that appellant’s cervical radiculopathy was an accepted
condition. However, OWCP also found that Dr. Montella’s reports were vague as to what material
change occurred on June 24, 2017 that demonstrated total disability for all employment. It further
found that there was no evidence that the original LWEC decision was in error or that appellant
was vocationally rehabilitated.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.5 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.6 OWCP’s regulations and procedures contain

5

See 5 U.S.C. § 8115 (determination of wage-earning capacity).

6
W.R., Docket No. 18-1782 (issued May 29, 2019); L.T., Docket No. 18-0797 (issued March 4, 2019); Katherine T.
Kreger, 55 ECAB 633 (2004).

4

provisions regarding the modification of a formal LWEC.7 The relevant part provides that a formal
LWEC will be modified when: (1) the original rating was in error; (2) the claimant’s medical
condition has materially changed; or (3) the claimant has been vocationally rehabilitated.8 It
further provides that the party seeking modification of a formal LWEC decision has the burden to
prove that one of these criteria has been met.9
ANALYSIS
The Board finds that appellant has met his burden of proof to modify OWCP’s June 1,
2017 LWEC determination.
Appellant received wage-loss compensation based upon an LWEC determination that his
modified regular city carrier position which he held since September 10, 2016 fairly and
reasonably represented his wage-earning capacity. He subsequently claimed total disability
commencing June 24, 2017, which OWCP properly developed as a request for modification of the
LWEC.
In denying appellant’s initial requests for modification of the LWEC determination
following his June 24, 2017 work stoppage due to alleged total disability, OWCP, in its decisions
dated September 11, 2017 and January 23, 2018, incorrectly indicated that cervical radiculopathy
was not an accepted condition and, therefore, appellant had not established a worsening of his
accepted conditions. In the January 16, 2019 decision, OWCP acknowledged that cervical
radiculopathy was an accepted condition; however, it found that appellant had not established that
his accepted condition had worsened, thereby requiring modification of the LWEC determination.
In his October 13, 2017 report, Dr. Montella related that he had reviewed appellant’s MRI
and EMG studies and he concluded that appellant had sustained a worsening of his condition,
which precluded him from returning to work from June 24, 2017 and continuing. He explained
that appellant had cervical disc displacement at C5-6 and cervical disc disorder at C6-7 with
radiculopathy. Dr. Montella related that appellant’s MRI scan showed a distinct worsening of
biomechanic integrity and ability of appellant’s spinal column to function in regard to bearing
stresses required of him at work. Furthermore, he related that appellant’s EMG’s were consistent
with nerve root compression of the cervical spine and wrists, consistent with radiculopathy, he
also noted that appellant had progression of spondylitic changes consistent with disability. In
explaining appellant’s disability status, Dr. Montella related that appellant could not lift weights
in excess of 5 to 10 pounds, and could not lift any weight in a repetitive fashion.

7

20 C.F.R. § 10.511; Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning
Capacity, Chapter 2.1501 (June 2013); see also C.S., Docket No. 18-1610 (issued April 25, 2019).
8

Id. at Chapter 2.1501.3(a) (June 2013); see C.S., id.

9
Id. at Chapter 2.1501.4 (June 2013); see J.A., Docket No. 18-1586 (issued April 9, 2019); Stanley B. Plotkin, 51
ECAB 700 (2000).

5

It is appellant’s burden of proof to establish that his accepted conditions have materially
worsened, such that the LWEC determination should be modified.10 Further definition as to when
modification of a formal LWEC determination should occur if the claimant’s medical condition
has materially changed is provided in OWCP’s procedures. These procedures provide for
modification of an LWEC determination when current medical evidence demonstrates a worsening
of the accepted medical condition with no intervening injury resulting in new or increased workrelated disability.11
Dr. Montella has provided objective evidence that appellant’s accepted cervical
radiculopathy condition worsened and caused disability from the modified limited-duty position
as of June 24, 2017. Appellant’s modified limited-duty position, which was the basis of his LWEC
determination required lifting up to 47 pounds for two to four hours, carrying up to 42 pounds for
two to four hours and pushing pulling up to 200 pounds for two to four hours. Dr. Montella,
however, explained that appellant was not able to lift weights in excess of 5 to 10 pounds, and
could not lift any weight in a repetitive fashion. He has, therefore, provided the medical rationale
necessary to establish that appellant’s accepted condition had worsened and that appellant was
unable to perform the duties of the modified position.12 Aappellant has met his burden of proof to
modify the June 1, 2017 LWEC determination.13
CONCLUSION
The Board finds that appellant has met his burden of proof to modify OWCP’s June 1,
2017 LWEC determination.

10

See L.P., Docket No. 17-1624 (issued March 9, 2018); Darletha Coleman, 55 ECAB 143 (2003).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Wage-Earning Capacity, Chapter 2.1501
(June 2013).
12

Id.

13

See M.K., Docket No. 17-1852 (issued August 23, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the January 16, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: February 22, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Philadelphia, PA, Employer
)
___________________________________________ )
Y.C., Appellant

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

Docket No. 08-1545
Issued: March 10, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On May 5, 2008 appellant filed a timely appeal of the April 14, 2008 merit decision of
the Office of Workers’ Compensation Programs which denied her claim for a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether the Office properly denied appellant’s claim for a schedule award.
FACTUAL HISTORY
On July 18, 2001 appellant then a 44-year-old letter carrier, filed a claim alleging that on
April 30, 2001 she experienced neck, shoulder and arm pain while in the performance of duty.
The Office accepted her claim for aggravation of degenerative disc disease of the cervical spine.
Appellant stopped work on July 18, 2001 and returned on September 26, 2002 and worked
intermittently thereafter. Appropriate compensation benefits were paid.

Appellant was treated by Dr. Steven J. Valentino, an osteopath, on June 13, 2001 for
cervical degenerative disc disease with neck pain radiating into her right arm which became
worse when she carried mail. Dr. Valentino noted that appellant’s history was significant for
carpal tunnel syndrome. He diagnosed exacerbation of cervical degenerative disc disease with
facet strain, right C6 radiculopathy and recommended conservative treatment. In subsequent
reports, Dr. Valentino noted appellant’s symptoms of neck pain radiating into both arms with
paresthesias and diagnosed aggravation of cervical degenerative disc disease with herniated disc,
stenosis, radiculitis and facet syndrome and recommended splinting and limited-duty work.
On November 14, 2007 appellant filed a claim for a schedule award.
On February 21, 2008 the Office advised appellant to submit a physician’s opinion
regarding the extent of any permanent impairment due to the accepted condition. It advised that
the impairment rating should be prepared in accordance with the fifth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment.1 It attached an
impairment form to be completed by appellant’s treating physician and requested that the form
be submitted within 30 days.
In a report dated February 27, 2008, Dr. Valentino noted appellant’s complaints of neck
pain, diminished range of motion with paresthesias and weakness dating back to a work injury
in 2000. Dr. Valentino noted range of motion of the cervical spine for flexion measured 30
degrees, extension measured 10 degrees, lateral rotation measured 25 degrees. He further noted
the modified Spurling’s maneuvers reproduced neck pain and right biceps strength measured 4/5
with diminished sensation about the right C5 and D6 dermatome. Examination of the bones,
muscles, tendons, skin, vascular and palpatory lymphatic systems of the four extremities
revealed no abnormalities. Dr. Valentino opined that in accordance with the A.M.A., Guides
appellant sustained 18 percent whole person impairment pursuant to DRE cervical category 3.
However, he noted that appellant had not yet reached maximum medical improvement.
Dr. Valentino recommended additional facet injections.
In a decision dated April 14, 2008, the Office denied appellant’s claim for a schedule
award. It noted that the evidence was insufficient to establish that appellant sustained permanent
impairment to a scheduled member due to her accepted work injury.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 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 to all claimants,
1

A.M.A., Guides (5th ed. 2001).

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

2

good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.4
The period covered by a schedule award commences on the date that the employee
reaches maximum medical improvement from the residuals of the employment injury. A
schedule award is not payable until maximum improvement of the claimant’s condition has been
reached.5 Maximum improvement means that the physical condition of the injured member’s
body has stabilized and will not improve further.6 The question of when maximum medical
improvement has been reached is a factual one which depends on the medical evidence of record.
The determination of such date in each case is to be made based upon the medical evidence.7
No schedule award is payable for a member, function or organ of the body not specified
in the Act or in the implementing regulations.8 As neither the Act nor its regulations provide for
the payment of a schedule award for the permanent loss of use of the back or the body as a
whole, no claimant is entitled to such a schedule award.9 The Board notes that section
8101(19) specifically excludes the back from the definition of “organ.”10 However, a claimant
may be entitled to a schedule award for permanent impairment to an upper or lower extremity
even though the cause of the impairment originated in the neck, shoulders or spine.11
ANALYSIS
Appellant contends that she is entitled to a schedule award for impairment due to her
cervical spine condition. The Office accepted her claim for aggravation of degenerative disc
disease of the cervical spine.
Appellant’s treating physician was asked by the Office to prepare a medical opinion
addressing appellant’s degree of permanent impairment under the A.M.A., Guides and the date
of maximum medical improvement. On February 27, 2008 Dr. Valentino opined that appellant
had not reached maximum medical improvement and requested that she be permitted to proceed
with additional facet injections. In the absence of a finding by him that maximum medical
improvement had been reached, it cannot be found that appellant’s condition has stabilized and

4

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

5

See Robert L. Mitchell, Jr., 34 ECAB 8 (1982).

6

Joseph R. Waples, 44 ECAB 936 (1993).

7

Richard Larry Enders, 48 ECAB 184 (1996); Joseph R. Waples, id.

8

Thomas J. Engelhart, 50 ECAB 319 (1999).

9

See Jay K. Tomokiyo, 51 ECAB 361 (2000).

10

5 U.S.C. § 8101(19).

11

Thomas J. Engelhart, supra note 8.

3

will not improve any further.12 Since Dr. Valentino did not find that maximum medical
improvement has been reached, it is premature to consider appellant’s claim for a schedule
award. There is no other current medical evidence of record supporting that appellant has
reached maximum medical improvement. Consequently, the Office properly found that
appellant is not entitled to receive a schedule award.
Furthermore, the Board notes that Dr. Valentino opined that appellant sustained 18
percent whole person impairment pursuant to DRE cervical category 3, page 392 of the A.M.A.,
Guides, which pertains to impairment for a cervical spine.13 However, as noted, neither the Act
nor its regulations provide for the payment of a schedule award for whole body impairment or
for impairment of the cervical spine. In addition to finding that appellant had not reached
maximum medical improvement, Dr. Valentino did not otherwise address how the accepted
employment injury caused any impairment to a scheduled member of the body.
Although appellant contends that she is entitled to a schedule award for permanent
impairment of her upper extremities due to the accepted work-related condition, she has the
burden of proof to establish entitlement to a schedule award.14 She has not submitted medical
evidence supporting that she has reached maximum medical improvement or that she sustained
permanent impairment to a scheduled member of the body causally related to her accepted
condition.
CONCLUSION
The Board finds that appellant failed to establish that she sustained permanent
impairment due to her accepted cervical condition.

12

See supra notes 6-7; see also L.H., 58 ECAB ___ (Docket No. 06-1691, issued June 18, 2007) (the question of
when maximum medical improvement has been reached is a factual one that depends upon the medical findings in
the record; the determination of such date is to be made in each case on the basis of the medical evidence).
13

A.M.A., Guides 392.

14

D.H., 58 ECAB ___ (Docket No. 06-2160, issued February 12, 2007). A description of a claimant’s
impairment must be obtained from his or her physician which is in sufficient detail so that the claims examiner and
others reviewing the file will be able to clearly visualize the impairment with it resulting restrictions and limitations.
James E. Archie, 43 ECAB 180 (1991); Patricia J. Lieb, 42 ECAB 861 (1991).

4

ORDER
IT IS HEREBY ORDERED THAT the April 14, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 10, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 18-0177
Issued: May 17, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 30, 2017 appellant, through counsel, filed a timely appeal from a June 19, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3(c), the Board has
jurisdiction over the merits of the claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a right foot injury
in the performance of duty on March 16, 2016.
FACTUAL HISTORY
On April 1, 2016 appellant, then a 60-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on March 16, 2016, coworker C.G. approached her to retrieve work
that she had not yet completed.3 When she informed C.G. that she was not yet finished and arose
to get more work, C.G. deliberately stepped on appellant’s right great toe. Appellant then
“push[ed] C.G. She provided a scanned copy of a March 30, 2016 duty status report (Form CA17) signed by Dr. Marie Williams, an attending podiatrist, restricting appellant from work.
On April 11, 2016 the employing establishment issued appellant a notice of removal as she
violated the “Zero Tolerance Policy for violence in the workplace.” Appellant was placed in an
unpaid, emergency leave status.
In a statement dated April 14, 2016, C.R., an employing establishment supervisor,
controverted the claim, contending that the claimed injury was caused by appellant’s willful
misconduct. C.R. contended that appellant “was angered by another employee picking up a tray
with labels. [Appellant] proceeded to push the employee on the back, violating the [employing
establishment] [Z]ero [T]olerance [P]olicy.” C.R. also alleged that appellant’s statement did “not
correspond to the two witness statements and the investigating interview.
In a letter dated April 14, 2016, an employing establishment manager controverted
appellant’s claim. She explained that at the time of the claimed injury, appellant had been on
modified duty due to a May 3, 2008 injury accepted under OWCP File No. xxxxxx960. The
manager alleged that on March 16, 2016 appellant confronted and pushed C.G.
By development letter dated April 21, 2016, OWCP notified appellant of the additional
evidence needed to establish her traumatic injury claim, including factual evidence in
corroboration of her allegation that C.G. stepped on her feet, and a well-reasoned medical opinion
from her attending physician which established a medical diagnosis causally related to the
March 16, 2016 employment incident. It also requested that appellant respond to an attached
development questionnaire in order to substantiate the factual elements of her claim. Appellant
was afforded 30 days to submit the additional evidence. A similar letter was sent to the employing
establishment.
In response, appellant provided statements dated May 3, 2016, alleging that C.G.
deliberately stepped on her feet to aggravate a prior injury, and that she pushed C.G. only to get
her off her feet.

3

On May 18, 2016 appellant claimed wage-loss compensation (Form CA-7) for total disability from May 14 to
June 3, 2016. By development letter dated May 19, 2016, OWCP noted that her claim for wage-loss compensation
would not be reviewed unless her traumatic injury claim was accepted.

2

The employing establishment submitted an incident report and witness statements dated
March 16, 2016. Appellant alleged that, when she reached for a container of unfinished work that
C.G. had removed from her desk, C.G. deliberately stepped on her feet and appellant pushed her
off. In her statement, C.G. alleged that, while collecting work trays from various employees,
appellant approached her from behind. She turned to face appellant, who “was so close her
stomach was pressing against me, touching me.” Appellant allegedly yelled at and threatened
C.G., then “swatted” her and “shov[ed] her in the back while [C.G.] had her hands up in the air.”4
Coworker H.W. asserted that when C.G. collected tabs from appellant’s work area, appellant told
C.G. to leave them, then “walked over and tried to take the tray from [C.G.]. [C.G.] lifted the tray
high above her head so [appellant] would n[o]t reach. There was a commotion and as [C.G.] turned
to walk away, [appellant] pushed her slightly on her back.” Coworker R.D. recalled that she saw
appellant trying to “get a small tray that [C.G.] had in her hands.” When C.G. turned away from
appellant, appellant pushed C.G. on the back.
On May 10, 2016 the employing establishment reinstated appellant pursuant to a settlement
agreement.
Appellant also submitted additional reports from Dr. Williams. In reports dated March 30
and April 12, 2016, Dr. Williams noted swelling and bruising in the toes of both feet, greater on
the left, without a history of new trauma. She related appellant’s account of another employee
stepping on her “right great toe and joint” during an altercation. Dr. Williams diagnosed peripheral
vascular disease, bilateral ankle and foot pain, and a contusion of the right great toe. She held
appellant off work. In an attending physician’s report (Form CA-20) dated April 12, 2016,
Dr. Williams noted that appellant had a contusion of the right foot demonstrable by x-ray. She
checked a box marked “yes” supporting causal relationship between a coworker stepping on
appellant’s foot on March 16, 2016 and the diagnosed contusion. Dr. Williams prescribed physical
therapy. In a report dated April 28, 2016, she held appellant off work due to increased pain and
swelling of the right foot. Dr. Williams administered an injection and applied strapping. She
opined that appellant’s “injury was solely caused by being stepped on at work on March 16, 2016.”
Dr. Williams held appellant off work through May 11, 2016.
Appellant also provided a set of eight photographs taken on or before April 10, 2016. Four
photographs are of her right foot, showing the right great toe. Three photographs are of an
unidentified medical provider applying two layers of material to the right foot and right great toe,
and the remaining photographs showed appellant’s right foot wrapped with two layers of material.
By decision dated May 24, 2016, OWCP denied the claim, finding that fact of injury had
not been established. It found that the factual inconsistencies between appellant’s account of
events and the witness statements cast serious doubt on the validity of her claim. OWCP noted
that she delayed seeking medical treatment for two weeks. Additionally, it found that Dr. Williams
provided inconsistent accounts of the mechanism of injury and that appellant waited almost a
month to report the injury.

4
On its face, C.G.’s statement is dated March 15, 2016. As the body of the statement describes the alleged
March 16, 2016 incident, the March 15, 2016 date appears to be a harmless clerical error.

3

On June 3, 2016 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held on February 16, 2017.
During the hearing, appellant alleged that on March 16, 2016 she and C.G. had processed
different sections of international mail tags. C.G. grabbed a tray of uncompleted tags from
appellant’s workstation. Appellant attempted to retrieve them, but C.G. held the tray above her
head and stomped on appellant’s right foot. She explained that when she reached for the tray, C.G.
lifted the tray above her head, turned her back toward appellant and then stepped backwards onto
appellant’s feet. Appellant explained that she delayed seeking medical treatment for the claimed
injury because she could not get an earlier appointment with Dr. Williams, who was then treating
her for bilateral plantar fibromatosis, and did not want to risk incurring expenses for emergency
treatment. In March 2016, she participated in physical therapy three times a week for plantar
fasciitis.5 Appellant acknowledged that she and C.G. had prior interpersonal difficulties as C.G.
“talked down” to people during training, but that she had no relationship with C.G. outside of
work.
In a report dated October 10, 2016, Dr. Williams noted appellant’s complaints of continued
pain in the right great toe and right foot. On examination, the toes of both feet were swollen and
painful to palpation, with swelling, bruising, and restricted motion of the first right
metatarsophalangeal joint. Dr. Williams diagnosed a contusion of the right great toe and an
unspecified enthesopathy of the right foot. She applied Kinesiotape strapping and prescribed
medication. Dr. Williams held appellant off work.
In a questionnaire dated October 10, 2016, Dr. Williams asserted that on March 16, 2016
C.G. went to appellant’s desk “to get paperwork without consent. [Appellant] told [C.G.] to put
the paperwork back and [C.G.] did not. [She] stood up and [C.G.] stepped on her toe.”
In an attending physician’s report (Form OWCP-20) dated November 21, 2016,
Dr. Williams noted that appellant had undergone bilateral plantar fascial release. She diagnosed
chronic plantar fascial fibromatosis caused by prolonged walking, standing, and climbing stairs at
work.
By decision dated June 19, 2017, the hearing representative affirmed OWCP’s May 24,
2016 decision, finding that the evidence of record failed to establish fact of injury. The hearing
representative found that appellant provided multiple accounts of the alleged March 16, 2016
incident, none of which were corroborated by witness statements. Although the factual evidence
of record supported a March 16, 2016 encounter between appellant and C.G., none of the witnesses
saw C.G. step on appellant’s foot. The hearing representative further found that appellant did not
provide an adequate explanation as to why she delayed seeking medical treatment for two weeks
following the claimed injury.

5

Appellant submitted physical therapy appointment slips dated March 2 to 30, 2016.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA, that an injury was sustained in the performance of duty as alleged, and
that any specific condition or disability for which compensation is claimed is causally related to
the employment injury.7
To determine whether an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered conjunctively. First, the employee
must submit sufficient evidence to establish that he or she actually experienced the employment
incident that is alleged to have occurred.8 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.9
OWCP cannot accept fact of injury if there are such inconsistencies in the evidence as to
seriously question whether the specific event or incident occurred at the time and place, and in the
manner alleged, or whether the alleged injury was in the performance of duty,10 nor can OWCP find
fact of injury if the evidence of record fails to establish that the employee sustained an “injury”
within the meaning of FECA. An injury does not have to be confirmed by eyewitnesses in order to
establish the fact that an employee sustained an injury in the performance of duty, as alleged, but the
employee’s statements must be consistent with surrounding facts and circumstances and her
subsequent course of action.11 Such circumstances as late notification of injury, lack of confirmation
of injury, continuing to work without apparent difficulty following the alleged injury, and failure to
obtain medical treatment may cast doubt on an employee’s statements in determining whether he or
she has established the claim.12
ANALYSIS
The Board finds that appellant has not established that she sustained a right foot injury on
March 16, 2016 in the performance of duty.

6

Supra note 2.

7

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

8

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

9

Deborah L. Beatty, 54 ECAB 340 (2003).

10

A.S., Docket No. 16-0735 (issued November 3, 2016); Elaine Pendleton, 40 ECAB 1143 (1989).

11

See Gene A. McCracken, Docket No. 93-2227 (issued March 9, 1995); Joseph H. Surgener, 42 ECAB 541,
547 (1991).
12

A.S., supra note 10. See Constance G. Patterson, 42 ECAB 206 (1989).

5

Appellant asserted on her April 1, 2016 Form CA-1 and in a May 3, 2016 statement that, on
March 16, 2016, coworker C.G. deliberately stepped on her right great toe while holding a tray of
appellant’s work above her head, and that she pushed C.G. to get her off her right foot. In her
March 16, 2016 statement, C.G. acknowledged that, while she held her hands above her head, she
was in very close proximity to appellant such that appellant’s abdomen was in contact with C.G.’s
person. However, C.G. alleged that appellant “swatted” and “shoved her” for no reason, and C.G.
did not mention whether she stepped on appellant’s foot. Coworker H.W.’s March 16, 2016
statement corroborated that C.G. held a tray above appellant’s head, and that as C.G. turned to
walk away, appellant “pushed [C.G.] slightly on her back.” Similarly, coworker R.D. asserted in
a March 16, 2016 statement that C.G. had a small tray in her hands that appellant wanted, and that,
when C.G. turned away, appellant pushed her on the back.
The factual evidence thus supports an encounter between appellant and C.G. on March 16,
2016, that the two were in very close physical proximity, and that C.G. held a tray of appellant’s
work above her head. However, there is insufficient factual evidence that C.G. also stepped on
appellant’s right foot, whether accidentally or deliberately. C.G. did not directly address this
aspect of appellant’s allegations, and witnesses H.W. and R.D. did not relate that C.G. stepped on
appellant’s foot. Therefore, the Board finds that the factual evidence of record is insufficient to
establish that C.G. stepped on appellant’s foot as alleged.13
In addition to the lack of direct factual corroboration, appellant did not seek medical
attention for the claimed injury until her March 30, 2016 with Dr. Williams, an attending
podiatrist. She asserted at a February 16, 2017 hearing that she delayed seeking treatment as she
did not wish to incur the financial expenses of emergency treatment. Also, appellant preferred to
wait to see Dr. Williams, who was then treating her for bilateral plantar fibromatosis. Although
she participated in physical therapy throughout March 2016 to treat plantar fibromatosis, she did
not provide probative medical evidence dated prior to March 30, 2016 documenting the presence
of a new traumatic right foot injury. The lack of contemporaneous medical evidence casts doubt
on the validity of the claim.14
By development letter dated April 21, 2016, OWCP requested that appellant submit
additional factual and medical evidence explaining how she sustained an injury to her right foot on
the date in question. Appellant failed to submit such evidence. Therefore, the Board finds that there
is insufficient evidence of record to meet her burden of proof to establish that she sustained an injury
in the performance of duty, as alleged.15
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

13

A.S., supra note 10.

14

Constance G. Patterson, supra note 12.

15

Supra note 10.

6

On appeal counsel contends that OWCP “failed to adjudicate the claim in accordance with
standard of causation,” that there was an unresolved conflict of medical evidence, and that OWCP
failed “to give due diligence to the findings of the attending physician” and requested that the
Board specify any defects in medical rationale. As set forth above, OWCP properly denied the
claim based on a lack of factual evidence. As appellant failed to meet the threshold issue of fact
of injury, the medical evidence is no longer dispositive in the case.
The Board notes that there is no conflict of medical evidence in the case under 5 U.S.C.
§ 8123 as OWCP did not obtain a second opinion or direct a review by an OWCP medical adviser.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right foot
injury in the performance of duty on March 16, 2016.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated June 19, 2017 is affirmed.
Issued: May 17, 2018
Washington, DC

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

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

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

7