United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
DEPARTMENT OF LABOR, EMPLOYMENT
STANDARDS ADMINISTRATION,
Guaynabo, PR, Employer
__________________________________________

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

Docket No. 07-989
Issued: August 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 March 1, 2007 appellant filed a timely appeal from merit decisions of the Office of
Workers’ Compensation Programs dated June 30 and October 5, 2006 and February 6, 2007
denying her emotional condition 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 she sustained an emotional condition
in the performance of duty.
FACTUAL HISTORY
On February 17, 2006 appellant, then a 51-year-old investigator, filed an occupational
disease claim alleging that she sustained psychological distress because management denied her
request for advanced sick leave. She attributed her need for sick leave to a “recurrence of
emotional problems.”

In an email message dated February 17, 2006, David R. Heffelfinger, a manager with the
employing establishment, denied appellant’s request for advanced sick leave because she had
other forms of leave available, including annual leave and credit time. He asserted that a
manager could, in his discretion, approve advanced sick leave only when an employee had no
other leave available.
In a sworn statement dated February 6, 2006, appellant related that on January 26, 2006
her supervisor, Edison Fernandez, accompanied her on a field investigation. She stated:
“[W]hile in the car [Mr. Fernandez] suddenly and unexpectedly said ‘Talking
about retirement many people will take advantage of it. There are many people at
the office that work just for a check and not for the work itself.’ I answered that I
like my work and did not work just for the money. My impression afterwards was
that he wanted me to retire, [and] even though he did not actually say it he was
implying it.
“Th[en] last Thursday, February 2, 2006, I had been back to the [o]ffice after a
day of field work. After arrival, [Mr.] Fernandez asked me and my coworker,
David Marin, to attend an informal reunion. While we approached him he said
‘Talking about the [d]evil and the [d]evil’s horns arrived.’ Investigator Zulma
Caraballo was also present in the conference room. Then I asked him ‘What did
you say?’ and he replied with the same commentary and in addition touched my
head.”
Appellant straightened her desk on February 3, 2006.
On February 6, 2006
Mr. Fernandez stated in front of coworkers that she had packed in order to retire. Appellant
requested that he treated her with respect and he replied that he was joking. She stated, “I told
him I had a lot of work and I left. He followed me to the exit door and told me that he was my
supervisor and ordered me to look into his eyes.” Appellant sought treatment at the health unit
and a nurse told her that she had high blood pressure.
On March 14, 2006 appellant informed the Office that she had three prior accepted
claims for work injuries. She referred to a February 6, 2006 affidavit, in response to its request
for a detailed description of the employment factors to which she attributed her condition.
Appellant maintained that she liked her job and performed her duties very well. She attributed
her stress to management’s attitude and her supervisor’s micromanagement and efforts to make
her retire. Appellant contended that he created a hostile work environment.
In a statement dated May 26, 2006, Mr. Heffelfinger asserted that management supported
appellant. He noted that she performed parts of her job very well and that the job “by its very
nature does create stress.” Mr. Heffelfinger related that appellant could be “overly sensitive to
some of management[‘s] communications,” and submitted email messages in support of this
statement. He noted that Mr. Fernandez denied touching her head.
By decision dated June 30, 2006, the Office denied appellant’s claim on the grounds that
the evidence did not establish that she sustained an employment-related emotional condition.

2

The Office found that she had not established any compensable employment factors. It further
noted that appellant’s other workers’ compensation claims were not for emotional conditions.
On July 27, 2006 appellant requested reconsideration. She submitted a July 18, 2006
email message from Hedda E. Acevedo, a coworker, who described an incident on February 6,
2006 when Mr. Fernandez “commented that [appellant] was ready to retire.” Ms. Acevedo told
him that he was disrespectful and wanted to be left alone to work. Mr. Fernandez walked behind
appellant as she left the area demanding that she speak with him.
In an email message dated August 2, 2006, Victor Rodriguez, a coworker, confirmed that
on February 6, 2006 Mr. Fernandez noticed that appellant had cleaned her desk and mentioned
that she was ready to retire. Appellant replied that he should respect her and Mr. Fernandez
responded that he was joking. She asked him to leave her work area. Mr. Rodriguez stated, “I
also heard [Mr. Fernandez] telling you to calm down, that it was a joke and that it would not
happen again.”
By decision dated October 5, 2006, the Office denied modification of its June 30, 2006
decision.
Appellant again requested reconsideration on November 21, 2006. She related her
condition to her prior accepted claims. Appellant described the reference by Mr. Fernandez on
February 6, 2006 to her retirement. She told him to leave her work area but he refused.
Mr. Fernandez blocked the exit and told her to look him in the eyes because he was her
supervisor. He let appellant leave the office after she looked at him and he had finished talking.1
In a decision dated February 6, 2007, the Office denied modification of its October 5,
2006 decision.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.3
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
1

Appellant also submitted a medical report dated March 14, 2006.

2

5 U.S.C. § 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

3

Gregorio E. Conde, 52 ECAB 410 (2001).

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assigned work duties of the employee and are not covered under the Act.4 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.5
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.6
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.7 A claimant must
establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and Equal Employment Opportunity complaints, by themselves, do not establish that
workplace harassment or unfair treatment occurred.8 The issue is whether the claimant has
submitted sufficient evidence under the Act to establish a factual basis for the claim by
supporting his or her allegations with probative and reliable evidence.9 The primary reason for
requiring factual evidence from the claimant is support of his or her allegations of stress in the
workplace is to establish a basis in fact for the contentions made, as opposed to mere perceptions
of the claimant, which in turn may be fully examined and evaluated by the Office and the
Board.10
Verbal altercations and difficult relationships with supervisors, when sufficiently detailed
by the claimant and supported by the record, may constitute factors of employment. Although
the Board has recognized the compensability of verbal abuse in certain circumstances, this does
not imply that every statement uttered in the workplace will give rise to coverage under the
Act.11
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
4

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).
5

See William H. Fortner, 49 ECAB 324 (1998).

6

Ruth S. Johnson, 46 ECAB 237 (1994).

7

See Michael Ewanichak, 48 ECAB 364 (1997).

8

See Charles D. Edwards, 55 ECAB 248 (2004); Parley A. Clement, 48 ECAB 302 (1997).

9

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

10

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

11

Marguerite J. Toland, 52 ECAB 294 (2001).

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factors of employment and may not be considered.12 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.13
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents. The Office denied her emotional condition claim on the grounds that she
did not establish any compensable employment factors. The Board must, therefore, initially
review whether these alleged incidents are covered employment factors under the Act.
Appellant did not attribute her emotional condition to the performance of her regular or
specially assigned duties or out of a specific requirement imposed by her employment. She
noted that she enjoyed her job and excelled in her position. Appellant associated her
psychological distress primarily to management’s denial of her request for advanced sick leave
and comments made about retirement by Mr. Fernandez.
Regarding Mr. Heffelfinger’s denial of appellant’s request for advanced sick leave, the
Board has held that actions of the employing establishment in matters involving the use of leave
are generally not considered compensable factors of employment as they are administrative
functions of the employer and not duties of the employee.14 Approving or denying a leave
request is an administrative function of a supervisor.15 Mr. Heffelfinger denied her request for
advanced sick leave because she had other types of leave available for her to use, including
annual leave and credit time. He asserted that it was within the discretion of a manager to
approve advanced sick leave requests only when the employee had no other forms of leave
available. Appellant has not submitted any evidence showing error or abuse by management in
denying her request for advanced sick leave and thus has failed to establish a compensable
employment factor.
Appellant additionally alleged that Mr. Fernandez treated her disrespectfully by implying
that she should retire. If disputes and incidents alleged as constituting harassment and
discrimination by supervisors and coworkers are established as occurring and arising from the
employee’s performance of her regular duties, these could constitute employment factors.16 The
evidence, however, must establish that the incidents of harassment or discrimination occurred as
alleged to give rise to a compensable disability under the Act.17 Additionally, verbal altercations
12

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

13

Id.

14

Judy L. Kahn, 53 ECAB 321 (2002).

15

Beverly R. Jones, supra note 10.

16

Janice I. Moore, 53 ECAB 777 (2002).

17

Id.

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and difficult relationships with supervisors, when sufficiently detailed by the claimant and
supported by the record, may constitute factors of employment. This does not imply, however,
that every statement uttered in the workplace will give rise to coverage under the Act.18
Appellant related that Mr. Fernandez spoke to her about retirement on January 26, 2006 when he
accompanied her on a field investigation. He told her that “many people at the office that work
just for a check and not for the work itself.” Mr. Fernandez’ comments to appellant about
retirement on January 26, 2006 were general in nature rather than specific to her and thus do not
show evidence of harassment or verbal abuse. On February 6, 2006 he noticed that appellant had
straightened her desk and stated in front of coworkers that she had packed for retirement.
Mr. Fernandez noted that he was joking when she asked him to treat her with respect. He
followed appellant as she left the area and told her that he was her supervisor and told her to look
into his eyes. Ms. Acevedo corroborated that Mr. Fernandez told her that she was about to retire
and walked behind her demanding that she speak with him. Mr. Rodriguez also heard
Mr. Fernandez tell appellant that she was ready to retire after noticing that she had cleaned her
desk. She told him to treat her with respect and he maintained that he was joking.
Mr. Fernandez requested that she calm down and told her that “it would not happen again.”
While the evidence supports that Mr. Fernandez mentioned that appellant was about to retire
after seeing her clean desk, it further shows that he commented that he was joking. The witness
statements do not provide evidence that the comment of Mr. Fernandez constituted verbal
harassment under the circumstances.19 Further, appellant has not shown how his comments
about retirement would rise to the level of verbal abuse.20 Consequently, she has not established
a compensable employment factor.
Appellant further maintained that Mr. Fernandez referred to her as the “devil’s horns”
and touched her head. As discussed, the Board has recognized the compensability of physical
threats or verbal abuse in certain circumstances.21 Additionally, physical contact by a coworker
or supervisor may give rise to a compensable work factor, if the incident occurred as alleged.22
Mr. Heffelfinger asserted in his May 26, 2006 statement that Mr. Fernandez denied touching
appellant’s head and none of the witness statements corroborated her allegation that
Mr. Fernandez referred to her as the “devil’s horns” or touched her head. Even if substantiated,
she has not shown how such a comment would rise to the level of verbal abuse or otherwise fall
within coverage of the Act.23
Regarding appellant’s allegation that Mr. Fernandez micromanaged her work, the Board
has held that an employee’s complaints concerning the manner in which a supervisor performs
his duties as a supervisor or the manner in which a supervisor exercises his supervisory
18

Marguerite J. Toland, supra note 11.

19

See Cyndia R. Harrill, 55 ECAB 522 (2004).

20

Charles D. Edwards, supra note 8.

21

Id.

22

Denise Y. McCollum, 53 ECAB 647 (2002).

23

Id.

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discretion fall, as a rule, outside the scope of coverage provided by the Act.24 This principle
recognizes that a supervisor or manager must be allowed to perform their duties and that
employees will at times dislike the actions taken; however, mere disagreement or dislike of a
supervisory or management action will not be actionable, absent evidence of error or abuse.25
Appellant has not provided any specific examples of micromanagement or provided any
evidence that her supervisor acted unreasonably and thus has not established a compensable
employment factor.
Appellant generally related her emotional condition to her prior work injuries. The Board
notes that an emotional condition related to pain and other limitations resulting from an
employment injury is covered under the Act.26 Appellant, however, has not alleged that she had
pain and limitations due to a previous work injury or otherwise explained her contention. Thus,
she has not established a compensable employment factor.
On appeal appellant argues that she submitted sufficient evidence to establish a prima
facie case. As discussed above, however, as she failed to establish any compensable factors of
employment, the Office properly denied her claim.27
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition in the performance of duty.

24

See Judy L. Kahn, supra note 14.

25

Id.

26

Arnold A. Alley, 44 ECAB 912 (1993).

27

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Hasty P. Foreman, 54 ECAB 427 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 6, 2007 and October 5 and June 30, 2006 are affirmed.
Issued: August 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

8


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

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

Docket No. 10-1240
Issued: February 7, 2011

Case Submitted on the Record

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

JURISDICTION
On March 29, 2010 appellant filed a timely appeal from the December 30, 2009 and
February 16, 2010 merit decisions of the Office of Workers’ Compensation Programs which
denied her 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.1
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
bilateral foot condition causally related to her federal employment.

1

For Office decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An
appeal of Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision.
20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On August 31, 2009 appellant, then a 66-year-old expeditor, filed an occupational disease
claim alleging that she sustained a bilateral foot condition due to standing on her feet eight hours
a day at work. She first became aware of her condition on June 18, 1997 but did not realize that
it was a result of her employment until September 29, 2009. In a supplemental statement,
appellant related that she was first diagnosed with heel spurs in 1997 by Dr. Brent E. Tabor, a
podiatrist. She listed several other physicians she had seen for treatment and a July 22, 2009
surgery performed by Dr. Gary Feldman, a podiatrist. In a July 22, 2009 postoperative report,
Dr. Feldman noted that surgery was performed on appellant’s left Achilles. He diagnosed
tendinitis bursitis of the Achilles tendon and a bone calcaneal spur.
In an October 23, 2009 letter, the Office advised appellant that the evidence she
submitted was insufficient to establish her claim. It requested that she describe in detail the
employment-related activities she believed contributed to her condition, including how often and
for how long she performed these activities, list any activities she participated in outside of her
federal employment which required the use of her lower extremities and provide information
about any previous lower extremity orthopedic injuries, including diagnoses and procedures or
treatments received. The Office also requested a comprehensive medical report from a treating
physician which included a description of her symptoms, results of examinations and tests,
diagnosis, treatment provided, effect of such treatment and an opinion, based on stated medical
reasons, regarding whether her medical condition resulted from factors of her federal
employment.
On November 3, 2009 appellant responded that she was diagnosed and treated for plantar
fascitis, had arthroscopic surgery on her right knee on May 11, 2007, and had received vein
ablation treatment on both legs since December 24, 2007. She described working at window
services, conveyer belts, bulk mail acceptance, flat sorter machines, and as a bar code sorter and
general expeditor. Appellant’s duties generally required standing, walking, lifting parcels and
heavy materials, sorting mail through machines and monitoring or tracking postal motor vehicle
drivers and contractors to and from stations and branches within the metro area. She performed
these services full time, eight hours a day for 40 years.
In a June 29, 2009 report, Dr. Feldman reviewed appellant’s medical history, noted that a
recent magnetic resonance imaging (MRI) scan and x-rays revealed a very large calcaneal bone
spur to the posterior calcaneus and a large cystic lesion to the distal tibial region. On
examination, he noted extensive swelling to the left ankle, restriction of ankle joint extension to
five degrees secondary to pain and an extremely large lipoma-type structure posterior to the
fibula, left greater than right. Dr. Feldman’s diagnosed osteochondritis dissecans (OCD) or bone
cyst distal tibia with pain, a likely lipoma of both ankles, or a severe calcaneus bone spur with
Achilles tendinitis. He provided a total disability certificate dated June 29, 2009.
In a July 22, 2009 surgical report, Dr. Feldman described the procedure performed and
diagnosed Achilles tendon hypertrophy with tearing and painful bone spur to the calcaneus,
lipoma to the left ankle and distal tibial cyst with osteochondral lesion. He submitted additional
progress reports dated July 29 to September 3, 2009.

2

By decision dated December 30, 2009, the Office denied appellant’s occupational disease
claim. It accepted that she performed prolonged standing and handling of heavy materials, but
found that the medical evidence was insufficient to establish a causal relationship between her
employment activities and her diagnosed foot condition.
On January 8, 2010 appellant requested reconsideration and submitted a January 5, 2010
medical report from Dr. Feldman. She had exquisite tenderness to the anterior ankle, distal
lower leg and Achilles region with an extremely large lipomatous lesion to the proximal lateral
ankle. Dr. Feldman reviewed appellant’s MRI scan or diagnostic studies and x-rays, which
revealed a large calcaneal bone spur to the posterior calcaneus and a large cystic lesion to the
distal tibial region. He diagnosed left foot bone spur and stated that prolonged standing
aggravated this condition.
In a February 16, 2010 decision, the Office denied modification of the December 30,
2009 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of her claim by the weight of the reliable,
probative and substantial evidence3 including that she sustained an injury in the performance of
duty and that any specific condition or disability for work for which she claims compensation is
causally related to that employment injury.4 In an occupational disease claim, appellant’s burden
requires submission of the following: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
specified employment factors or incident.7 The opinion of the physician must be based on a
2
3

5 U.S.C. §§ 8101-8193.
J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

M.M., 60 ECAB __ (Docket No. 08-1510, issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine
Pendleton, 40 ECAB 1143, 1145 (1989).
5

D.U., 61 ECAB __ (Docket No. 10-144, issued July 27, 2010); R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51
ECAB 623 (2000).
6

I.R., 61 ECAB __ (Docket No. 09-1229, issued February 24, 2010); W.D., 61 ECAB __ (Docket No. 09-658,
issued October 22, 2009); D.I., 59 ECAB 158 (2007).
7

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

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complete factual and medical background of the employee, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
employee.8
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that an employee’s condition surfaced during a period of employment nor his
belief that his condition was aggravated by his employment is sufficient to establish causal
relationship.9 The mere fact that work activities may produce symptoms revelatory of an
underlying condition does not raise an inference of an employment relation. Such a relationship
must be shown by rationalized medical evidence of a causal relation based upon a specific and
accurate history of employment conditions which are alleged to have caused or exacerbated a
disabling condition.10
ANALYSIS
The Office accepted that appellant’s employment duties required prolonged standing,
walking and lifting of heavy materials. It denied her claim finding that the evidence of record
did not establish that her diagnosed bilateral foot conditions were causally related to the accepted
employment factors. The Board finds that appellant did not meet her burden of proof to establish
her claim.
Dr. Feldman advised that appellant was treated and underwent surgery for various
conditions, including bone spurs, bone cysts and an Achilles tendon tear. He reported that she
was recovering well from her surgery and that she exhibited excellent bilateral strength and little
discomfort upon flexion and extension of her ankle. While Dr. Feldman detailed the progression
of appellant’s foot conditions, he did not adequately explain how the accepted factors of her
employment caused or contributed to her foot conditions. Rationalized medical evidence must
relate specific employment factors identified by the claimant to the claimant’s condition, with
stated reasons by a physician.11 Dr. Feldman did not discuss how appellant’s postal service
duties, such as walking, standing, or heavy lifting, caused or aggravated the diagnosed
conditions.12 Appellant was advised in the Office’s October 23, 2009 letter of the need of a
comprehensive medical report addressing causal relationship but did not provide the requested
evidence. The Board finds that these reports are of probative value because they do not contain a
rationalized medical opinion regarding the cause of appellant’s foot condition.13

8

D.S., 61 ECAB __ (Docket No. 09-860, issued November 2, 2009); B.B., 59 ECAB 234 (2007).

9

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

10

Patricia Bolleter, 40 ECAB 373 (1988).

11

J.J., 60 ECAB __ (Docket No. 09-27, issued February 10, 2009); Solomon Polen, 51 ECAB 341 (2000).

12

C.B., 61 ECAB ___ (Docket No. 09-2027, issued May 12, 2010); A.C., 60 ECAB ___ (Docket No. 08-1453,
issued November 18, 2008)
13

K.W., 59 ECAB 271 (2007); Michael E. Smith, 50 ECAB 313 (1999).

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On January 5, 2010 Dr. Feldman reiterated the diagnosis of left foot bone spur and stated
that prolonged standing aggravated this condition. He failed to provide a complete factual
background supporting causal relationship.14 Dr. Feldman only identified one employment
factor, prolonged standing, but failed to address how long or how often appellant had engaged in
this employment activity or adequately explain how prolonged standing would have
physiologically aggravated appellant’s bilateral foot condition. A rationalized medical opinion
must be of reasonable medical certainty and supported by medical rationale explaining the nature
of the relationship of the diagnosed condition and the specific employment factors or injury.15
Without a complete factual background and sufficient rationale, Dr. Feldman’s opinion on causal
relationship is of diminished probative value.
As noted the mere fact that a condition manifests itself during a period of employment
does not raise an inference that there is a causal relationship between the two. The question of
causal relationship is a medical one and must be resolved by probative medical evidence.16 The
medical evidence of record does not contain probative medical opinion discussing how
appellant’s foot conditions were caused or aggravated by the work factors of her employment.
Appellant has not met her burden of proof to establish that she sustained a bilateral foot
condition in the performance of duty.17
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
bilateral foot condition was causally related to factors of her employment.

14

I.R., 61 ECAB __ (Docket No. 09-1229, issued February 24, 2010); K.E., 60 ECAB __ (Docket No. 08-1461,
issued December 17, 2008).
15

J.J., 60 ECAB __ (Docket No. 09-27, issued February 10, 2009); Charles W. Downey, 54 ECAB 421 (2003).

16

D.I., 59 ECAB 158 (2007); Margaret Carvello, 54 ECAB 498 (2003).

17

The Board notes that appellant submitted additional evidence to the file following the February 16, 2010
decision. Since the Board’s jurisdiction is limited to evidence that was before the Office at the time it issued its final
decision, the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 16, 2010 and December 30, 2009 are affirmed.
Issued: February 7, 2011
Washington, DC

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

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

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

6


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

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

Docket No. 09-789
Issued: October 15, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 30, 2009 appellant filed a timely appeal from a December 1, 2008 merit
decision of the Office of Workers’ Compensation Programs denying modification of an
October 16, 2007 merit decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant established that she sustained back and left foot conditions
in the performance of duty.
FACTUAL HISTORY
On April 30, 2007 appellant, a 45-year-old mail processing clerk, filed an occupational
disease claim (Form CA-2) for pain in her right low back and right foot. She attributed her
condition to stretching, reaching and continuous standing on a concrete floor for 8 to 10 hours
per day. Appellant first realized her condition and its relationship to her federal employment on
March 26, 2007.

By decision dated June 12, 2007, the Office denied appellant’s claim. Appellant
requested reconsideration and submitted additional evidence. By decision dated October 17,
2007, the Office accepted her claim for right foot metatarsalgia.
On September 15, 2008 appellant again requested reconsideration, arguing that her back
and left foot conditions should have been accepted because she was experiencing pain in both
feet. She alleged that these conditions were consequential injuries. In support of her argument,
appellant referenced a September 4, 2007 note in which Dr. Kathleen Fineco, Board-certified in
podiatric medicine, reported that “[appellant] experiences severe pronation in her right foot
during standing with resultant biomechanical implications affecting her back with resultant pain
in this area as well.”
By report (Form CA-17) dated July 7, 2008, Dr. Fineco diagnosed pain and provided a
list of work restrictions. In a note dated July 7, 2007, she provided additional work restrictions.
On February 18, 2008 Dr. Fineco diagnosed right and left foot metatarsalgia. She also diagnosed
left foot fajitas. Additionally, Dr. Fineco reported that appellant had subjective secondary
lumbar pain directly related to the problems in her feet.
By report dated September 13, 2008, Dr. Jennifer S. Van Vickle, a Board-certified
diagnostic radiologist, reported results from a magnetic resonance imaging (MRI) scan of
appellant’s lumbar spine and diagnosed her with degenerative disc disease and facet joint
degenerative joint disease in her lower lumbar spine.
By decision dated December 1, 2008, the Office denied modification of its October 16,
2007 decision.1
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.2
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
1

On appeal, appellant submitted additional evidence. The Board may not consider evidence for the first time on
appeal, which was not before the Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c). See
J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008) (holding the Board’s jurisdiction is limited to
reviewing the evidence that was before the Office at the time of its final decision.) As this evidence was not part of
the record when the Office issued either of its previous decisions, the Board may not consider it for the first time as
part of appellant’s appeal.
2

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

2

compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.3
ANALYSIS
Appellant contends that her claim should be accepted for a low-back condition and left
foot metatarsalgia. She identified stretching, reaching, and continuous standing on a concrete
floor for 8 to 10 hours per day as employment factors that caused these alleged conditions.
Appellant’s burden is to demonstrate, through the production of probative rationalized medical
evidence, that the identified employment factors caused her alleged low-back condition and left
foot metatarsalgia. As noted, causal relationship is a medical issue. The medical evidence of
record is insufficient to establish that appellant sustained a low-back condition and left foot
metatarsalgia in the performance of duty.4
The medical evidence of record consists of notes and reports signed by Drs. Fineco and
Vickle. Dr. Fineco’s July 17, 2008 report (Form CA-17) diagnosed pain. Pain is a symptom, not
a compensable diagnosis under the Act.5 While Dr. Fineco also asserted that appellant’s
diagnosis is right and left foot metatarsalgia and that stated that “she experience[d] severe
pronation in her right foot during standing with resultant biomechanical implications affecting
her back …,” she provided no findings on examination, a review of her medical history or
rationalized medical opinion explaining how the identified employment factors caused these
conditions. Reports lacking a physician’s medical opinion concerning causal relationship
between a diagnosed condition and identified employment factors are of diminished probative
value.6 These deficiencies reduce the probative value of Dr. Fineco’s reports and notes and,
therefore, they are insufficient to satisfy appellant’s burden of proof.
Dr. Vickle’s report is insufficient to satisfy appellant’s burden of proof because she
provides no opinion on how the identified employment factors caused the conditions she
diagnosed. As mentioned above, reports lacking a physician’s medical opinion concerning
causal relationship between a diagnosed condition and identified employment factors are of little
3

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
4

Appellant submitted reports from a physical therapist. Because healthcare providers such as nurses,
acupuncturists, physician’s assistants and physical therapists are not considered physicians under the Federal
Employees’ Compensation Act, their reports and opinions do not constitute competent medical evidence. (5 U.S.C.
§ 8101(2); see also G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007); Jerre R. Rinehart, 45
ECAB 518 (1994); Barbara J. Williams, 40 ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983). Thus, these
reports are of no probative medical value.
5

C.F., 60 ECAB __ (Docket No. 08-1102, issued October 10, 2008) (pain is a symptom, not a compensable
medical diagnosis).
6

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship
have little probative value). See also, Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB
457 (2001).

3

probative value.7 Because Dr. Vickle provided no opinion on how the identified employment
factors caused degenerative disc disease and facet joint degenerative joint disease in appellant’s
lower lumbar spine, her report is of little probative value and is insufficient to satisfy her burden
of proof.
Appellant argued that her claim should be accepted because her low-back and foot
conditions are consequential injuries. The general rule respecting consequential injuries is that,
when the primary injury is shown to have arisen out of and in the course of employment, every
natural consequence that flows from the injury is deemed to arise out of the employment, unless
it is the result of an independent intervening cause, which is attributable to the employee’s own
intentional conduct.8 The subsequent injury is compensable if it is the direct and natural result of
a compensable primary injury.9 It is appellant’s burden of proof to establish a consequential
injury.10
The evidence of record is insufficient to meet her burden as well because it lacks a
physician’s rationalized medical opinion establishing the consequential relationship between these
additional conditions and the accepted condition, metatarsalgia in her right foot. None of the
medical evidence contains a rationalized medical opinion stating that appellant’s alleged lowback condition and metatarsalgia in her left foot resulted from the direct and natural progression
of the accepted condition, metatarsalgia in her right foot11 or in the alternative, that the medical
treatment she received for the metatarsalgia in her right foot produced these additional alleged
conditions.12
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that the condition was aggravated by her employment is sufficient to
establish causal relationship.13 She has not satisfied her burden of proof to establish that she
sustained back and left foot conditions in the performance of duty and, therefore, the Office
properly denied her claim.
CONCLUSION
The Board finds that appellant has not satisfied her burden of proof to establish that she
sustained low-back and left foot conditions in the performance of duty.

7

Id.

8

Albert F. Ranieri, 55 ECAB 598 (2004).

9

Carlos A. Marrero, 50 ECAB 117 (1998); A. Larson, The Law of Workers’ Compensation § 10.01 (2005).

10

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

11

See Bernitta L. Wright, 53 ECAB 514 (2002).

12

Bonnie D. Jefferson, 34 ECAB 1426 (1983). See also Melody Friery, 48 ECAB 525 (1997).

13

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

4

ORDER
IT IS HEREBY ORDERED THAT the December 1, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 15, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY AGENCY,
Phoenix, AZ, Employer
__________________________________________

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

Docket No. 11-1600
Issued: February 8, 2012

Case Submitted on the Record

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

JURISDICTION
On June 28, 2011 appellant, through counsel, filed a timely appeal from an April 13,
2011 schedule award decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the schedule award decision.2

1
2

5 U.S.C. §§ 8101-8193.

Appellant’s counsel indicated that he sought an appeal of an April 28, 2011 OWCP letter that responded to
counsel’s request to stop appellant’s schedule award. OWCP advised counsel of the appeal rights accompanying the
April 13, 2011 decision if he disagreed with that decision. No new appeal rights were given with the letter. The
Board finds that this was an informational letter and not a final decision of OWCP. Consequently, no appeal can be
taken from the April 28, 2011 letter. See 20 C.F.R. § 501.2(c) (the Board has jurisdiction over final decisions of
OWCP); 20 C.F.R. § 10.126 (notes the contents of a final decision of OWCP).

ISSUE
The issue is whether appellant has established that she has more than 60 percent
impairment of the left upper extremity and 1 percent impairment of the right upper extremity for
which she received a schedule award.
FACTUAL HISTORY
On August 11, 2005 appellant, then a 46-year-old lead transportation security screener,
filed a traumatic injury claim alleging that she tripped and fell over a passenger bag that day,
injuring both wrists. OWCP accepted that she sustained a left closed fracture of the radius with
ulna, open fracture of unspecified part of radius with ulna, unspecified closed fracture of the
lower end of forearm and a right wrist sprain. On August 19, 2005 Dr. Robert Berghoff, a
Board-certified orthopedic surgeon, repaired the left distal radius fracture. Appellant briefly
returned to modified duty and was placed on the periodic compensation rolls in September 2006.
In a June 25, 2007 report, Dr. Kevin S. Ladin, Board-certified in physiatry and pain
medicine, advised that appellant was unable to use her left arm in a functional manner.
Following the employment injury, appellant had a complex regional pain syndrome (CRPS) of
the left upper extremity that developed into reflex sympathetic dystrophy (RSD), characterized
by marked discoloration, mottling, increased sweating, cutaneous allodynia and hyperalgesia of
the left upper limb.
Appellant came under the care of Dr. Estelle Farrell, a Board-certified osteopath
specializing in physical medicine and rehabilitation. On September 12, 2007 Dr. Farrell
diagnosed: CRPS and RSD of the left upper extremity; right upper extremity ulnar neuropathy,
possibly primarily sensory with dysfunctional motor use of the extremity; left elbow contracture;
mild concentration issues and possible right upper extremity thoracic outlet. Appellant was
removed from employment by the employing establishment effective October 9, 2010.
On October 15, 2010 appellant filed a schedule award claim. She submitted a work
capacity evaluation dated October 15, 2010 in which Dr. Farrell noted that appellant had a 100
percent impairment of the left arm and a 50 percent impairment on the right.
By letter dated October 22, 2010, OWCP asked that Dr. Farrell provide an impairment
rating in accordance with the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).3 In a January 31, 2011
report, Dr. Farrell noted that she had examined appellant on December 14, 2010 and provided an
impairment worksheet. She advised that appellant’s primary diagnosis was left upper extremity
RSD with subsidiary diagnoses of right upper extremity tendinopathy and pain, and reported the
Disabilities of the Arm, Shoulder and Hand (DASH) scores of 4,075 on the left and 3,025 on the
right. Regarding the left arm, Dr. Farrell advised that, under Table 15-24 and Table 15-26,
appellant had a class 3 impairment due to CRPS, with a grade E, for a 49 percent impairment.
She found a functional history modifier of 4, a physical examination modifier of 4, and a clinical
studies modifier of 3, which she added to the 49 percent default impairment rating, for a final left
3

A.M.A., Guides (6th ed. 2008).

2

arm impairment of 60 percent. Regarding the right arm, Dr. Farrell advised that, under Table 157 and Table 15-8, appellant had a grade C impairment, functional history and clinical modifiers
of 3, and a physical examination modifier of 2, for a 30 percent right arm impairment.
By letter dated February 2, 2011, appellant advised OWCP that she did not want to file a
schedule award and was withdrawing her claim.
OWCP referred appellant to Dr. Ronald M. Lampert, Board-certified in orthopedic
surgery, for a second opinion evaluation. Dr. Lampert was asked to provide an impairment
evaluation in accordance with the sixth edition of the A.M.A., Guides, for the accepted upper
extremity conditions, based on a statement of accepted facts. In a February 2, 2011 report, he
reviewed the history of injury and appellant’s complaint that her left arm did not function with
constant pain and pain in the right upper extremity with any type motion. Dr. Lampert reviewed
the medical record and provided physical examination findings. He advised that examination of
the right wrist showed normal flexion, extension, and radial and ulnar deviation with good grip
strength. Dr. Lampert noted that appellant did not want her left hand or arm touched, and noted
that the left wrist was essentially fixed at 30 degrees of flexion with no radial or ulnar deviation
and no active motion. He diagnosed ankylosed left wrist and normal right wrist. Dr. Lampert
advised that, based on the statement of accepted facts, appellant had no objective evidence of any
permanent impairment of the right upper extremity as a result of the employment injury. Based
on Table 15-3, Wrist Regional Grid, appellant had a zero percent right upper extremity
impairment. Regarding the left upper extremity, Dr. Lampert advised that appellant would not
fit into any category for a diagnosis-based impairment and therefore, due to abnormal motion, he
rated her under Table 15-32, Wrist Range of Motion. Appellant had a grade 4 modifier due to
ankylosis, which yielded a 25 percent left upper extremity impairment. Dr. Lampert advised that
the date of maximum medical improvement was February 2, 2011 and attached an impairment
worksheet pertaining to his findings. In a supplementary report dated February 8, 2011, he
referenced the footnote found on page 497 of the A.M.A., Guides, and advised that he used
Table 15-3 to rate appellant’s left upper extremity impairment because there was abnormal
motion, and that no adjustment was made for functional history because of factors that were not
included in the statement of accepted facts.
Dr. Farrell submitted additional reports describing appellant’s treatment. She stated that
appellant’s wrist range of motion was restricted, more on the left than right, with normal right
grip strength.
On March 28, 2011 Dr. Arthur S. Harris, an OWCP medical adviser and a Board-certified
orthopedic surgeon, reviewed the statement of accepted facts and medical record, including the
impairment evaluations of Dr. Farrell and Dr. Lampert. He diagnosed status post straining injury
of the right wrist; status post percutaneous pinning of a left distal radius fracture; and CRPS of
the left upper extremity. In accordance with the sixth edition of the A.M.A., Guides, under Table
15-3, appellant had a one percent impairment of the right upper extremity for residual problems.
Under Table 15-26, she had a 60 percent left upper extremity impairment for residual problems
with CRPS. Dr. Harris noted that Dr. Lampert did not take CRPS into account in his impairment
evaluation and agreed with Dr. Farrell’s impairment finding for the left upper extremity. He
noted that Dr. Farrell did not document any significant loss of motion to support her finding of a

3

30 percent right upper extremity impairment, and therefore appellant only had a 1 percent right
upper extremity impairment.
In an April 13, 2011 decision, appellant was granted schedule awards for 60 percent
impairment of the left and 1 percent impairment of the right arm. The awards ran from April 10,
2011 to December 2, 2014. OWCP advised that the schedule awards were payable consecutively
but not concurrently with wage-loss compensation.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides was used to calculate schedule awards.7
For decisions issued after May 1, 2009, the sixth edition is to be used.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).10 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.11

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
8

FECA Bulletin No. 09-03 (issued March 15, 2009).

9

A.M.A., Guides, supra note 2 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
10

Id. at 494-531.

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

4

ANALYSIS
The Board finds this case is not in posture for decision. Regarding appellant’s left upper
extremity, it is unclear whether CRPS has been accepted as employment related. If it is a
subsequently acquired condition, unless it has been accepted as consequential to the employment
injury, it could not form the basis for a schedule award.12 Dr. Farrell, the attending physiatrist,
and Dr. Harris, OWCP’s medical adviser, based their left upper extremity impairment rating on
physical findings for this condition. The only statement of accepted facts in the case record is
dated May 1, 2006. The record does not contain a copy of the statement of accepted facts
forwarded to Dr. Lampert, who provided a second opinion evaluation or to Dr. Harris.
Moreover, the evaluations of both physicians on CRPS do not comport with section 15.5 of the
A.M.A., Guides. Dr. Farrell indicated that she utilized Table 15-24 and Table 15-26 in rating
appellant at 60 percent left upper extremity impairment. Table 15-24 provides the diagnostic
criteria for CRPS.13 Other than generally referencing Table 15-24, Dr. Farrell did not adequately
explain how appellant had a class 3, grade E impairment of 49 percent under Table 16-26. Her
worksheet further indicates that she added the modifiers for functional history, physical
examination, and clinical studies to the 49 percent to total left upper extremity impairment of 60
percent. This does not comport with section 15.5 which provides that, while Dr. Farrell may use
her clinical judgment to decrease or increase the grade, she must explain in detail the rationale
for any adjustments.14 Table 15-26 provides that, prior to using the table, the examiner must
review sections 15.1 and 15.5, and the diagnosis of CRPS must be defined by Table 15-24, and
specified points threshold must be met as defined by Table 15-25.15 Dr. Farrell did not state how
she followed this analysis.
Dr. Harris agreed with Dr. Farrell that appellant had a 60 percent left upper extremity
impairment due to CRPS without providing a rationalized explanation for his conclusion. He
merely noted that appellant appeared to have continued problems with CRPS based on the
reports of Dr. Farrell and Dr. Lampert. Dr. Harris disregarded Dr. Lampert’s impairment
analysis because the physician did not document findings consistent with CRPS.
Dr. Lampert based his left upper extremity rating on range of motion only. He found that
under Table 15-32, Wrist Range of Motion, appellant had a 25 percent left upper extremity
impairment. The sixth edition of the A.M.A., Guides provides that under certain circumstances,
range of motion may be selected as an alternative approach in rating impairment.16 Dr. Lampert
selected this method of rating impairment because appellant did not fit into any table based on a
diagnosis-based impairment. Table 15-32 provides that an ankylosed wrist with 30 degrees of
12

Preexisting impairments to the scheduled member only are to be included in schedule award determinations.
See Peter C. Belkind, 56 ECAB 580 (2005).
13

A.M.A., Guides, supra note 2 at 453.

14

Id. at 452.

15

Id. at 454.

16

Id. at 390. The A.M.A., Guides explains that diagnoses in the grid that may be rated using range of motion are
followed by an asterisk.

5

flexion would be a 25 percent impairment.17 If CRPS has not been accepted, Dr. Lampert’s
evaluation supports a 25 percent left upper extremity impairment. He also referenced a
February 4, 2011 letter from OWCP asking for an addendum report. A copy of the February 4,
2011 letter is not in the case record.
Regarding the right upper extremity, again, Dr. Farrell’s analysis does not comport with
the A.M.A., Guides. She referenced Table 15-7 and Table 15-8.18 As explained in section 15.3
of the A.M.A., Guides, these tables are to be used to calculate a net adjustment as provided in the
net adjustment formula described above.19 The additional right upper extremity conditions
diagnosed by Dr. Farrell have not been accepted as employment related. Dr. Farrell’s report is
therefore insufficient to determine the extent of any right upper extremity impairment.
Dr. Lampert and Dr. Harris both utilized Table 15-3, wrist regional grid, in rating appellant’s
right upper extremity. Dr. Lampert rated appellant at class 0 for no impairment whereas
Dr. Harris rated appellant at class 1 for one percent impairment. Dr. Harris stated that his
conclusion was based on residual problems. He noted that Dr. Farrell did not support her rating
with sufficient documentation and Dr. Lampert found a normal range of motion. Dr. Harris did
not explain the nature of the residual problems that formed the basis of his right upper extremity
impairment rating. His report is insufficient to establish the extent of right upper extremity
impairment.
Without a clear explanation of the accepted conditions and a detailed impairment
evaluation that comports with the standards of the sixth edition of the A.M.A., Guides, the Board
is unable to determine the degree of impairment to appellant’s right or left upper extremities.
The Board finds that the case must be remanded to OWCP for further development regarding the
extent of appellant’s impairment in accordance with the sixth edition of the A.M.A., Guides.
After further development, to include an updated statement of accepted facts and such further
development as deemed necessary, OWCP should issue an appropriate decision on appellant’s
impairment of her right and left arms.20
CONCLUSION
The Board finds this case is not in posture for decision.

17

Id. at 473.

18

Id. at 406, 408.

19

Id. at 405-19.

20

The Board notes that OWCP properly found that a schedule award is payable consecutively but not
concurrently with an award for wage for the same injury. See Jack D. Henwood, Docket No. 95-596 (issued
March 27, 1997) (where appellant asked that his schedule award be stopped, the Board found that OWCP properly
interrupted payment of appellant’s wage-loss benefits to pay his schedule award benefits).

6

ORDER
IT IS HEREBY ORDERED THAT the April 13, 2011 decision of the Office of
Workers’ Compensation Programs be vacated and the case remanded to OWCP for proceedings
consistent with this opinion of the Board.
Issued: February 8, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Garden City, NY,
Employer
__________________________________________

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

Docket No. 18-0940
Issued: June 11, 2019

Case Submitted on the Record

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

JURISDICTION
On April 3, 2018 appellant filed a timely appeal from a November 3, 2017 merit decision
and a January 30, 2018 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.3

1

The Board notes that during the pendency of this appeal, OWCP issued a November 29, 2018 decision which
denied reconsideration of the November 3, 2017 merit decision currently on appeal. OWCP’s November 29, 2018
decision is null and void as the Board and OWCP may not simultaneously exercise jurisdiction over the same issue(s)
in a case on appeal. 20 C.F.R. §§ 501.2(c)(3), 10.626; see e.g., M.C., Docket No. 18-1278 (issued March 7, 2019);
Lawrence Sherman, 55 ECAB 359, 360 n.4 (2004).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the January 30, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish an injury
causally related to her accepted November 25, 2011 employment incident; and (2) whether OWCP
properly denied appellant’s request for reconsideration of the merits of her claim pursuant to
5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 3, 2011 appellant, then a 45-year-old mail handler, filed a notice of
recurrence (Form CA-2a) of an August 6, 2006 injury. She alleged that, on November 25, 2011,
she injured her neck, mid-back, and shoulders (mostly the right shoulder), while singling out
pallets from a pile while in the performance of duty. On the same claim form, appellant also
alleged that on the next day, November 26, 2011, “she injured the same body parts.” At that time
she noted that she was on a rehabilitative assignment. The employing establishment indicated that
appellant was working an eight-hour limited-duty job offer. Appellant stopped work on
November 29, 2011. OWCP converted the recurrence claim to a traumatic injury claim (Form
CA-1) with an injury date of November 25, 2011.
A January 23, 2012 duty status report (Form CA-17) from Dr. Rajpaul Singh, a neurologist,
noted that appellant was a mail handler and injured her neck, arm, and back “while working
pallets” on November 26, 2011. In a February 21, 2012 report, Dr. Singh noted a “neck workrelated injury.”
In a November 29, 2011 statement, appellant indicated that on November 25, 2011,
between the hours of 11:30 p.m. and 1:00 a.m., she was assigned to the empty equipment operation
room to work by herself moving heavy pallets, stacking empty trays, and wrapping them with
plastic. She related that, while performing these activities, she stressed her neck, back and
shoulders. Appellant also indicated that she felt the same pain while performing similar tasks the
evening of November 26, 2011 and later reported her injuries on November 29, 2011, when her
pain and dizziness were too severe for her to function.
In a February 20, 2012 statement, A.H., a health and resource management specialist,
indicated that appellant was working limited duty, had a history of depression and anxiety verified
by her psychologist, and questioned the length of time it took appellant to report the injury. She
noted that appellant called the unscheduled absence telephone line to claim stress on November 30,
2011, but had filed a Form CA-2a claiming she injured herself five days earlier.
In a development letter dated March 19, 2012, OWCP advised appellant that because her
claim appeared to be a minor injury that resulted in minimal or no lost time from work, the
employing establishment did not controvert continuation of pay (COP) or challenge the merits of
the claim, and payment of a limited amount of medical expenses was administratively approved.
It advised that the claim was reopened because the merits were not formally considered and a claim
for wage loss was received. OWCP noted that appellant was working in a modified capacity and
that the evidence was insufficient to establish that she actually experienced the incident or

2

employment factor alleged to have caused the injury.4 It explained that additional factual and
medical evidence was necessary to establish her claim and provided a questionnaire for
completion. Appellant was afforded 30 days to submit the requested evidence.
OWCP received March 12 and April 9, 2012 duty status reports (Form CA-17) from
Dr. Singh who indicated that “the employee stated [that] while working pallets [she] hurt [her]
neck, arms and back.”
Appellant responded in an April 16, 2012 letter describing the alleged employment
incident.
OWCP received March 12 and April 9, 2012 reports from Dr. Farshad Hannanian, a
neurologist, who indicated that appellant sustained injuries to her neck, back, and shoulders on
November 25, 2011, and was in good health prior to the injury. Dr. Hannanian diagnosed:
traumatic cervical myofascitis, with radiculopathy; traumatic lumbar myofascitis, with
radiculopathy, rule out disc herniation, post-traumatic, rule out lumbar disc herniation, posttraumatic; and right and left post-traumatic internal shoulder derangement, rule out tear of rotator
cuff muscles. He opined that the diagnosed conditions were the result of the employment incident.
By decision dated April 27, 2012, OWCP denied appellant’s claim, finding that fact of
injury had not been established.
On June 4, 2012 OWCP received appellant’s request for reconsideration. Appellant
reiterated the facts and circumstances surrounding the alleged employment injury.
OWCP received physical therapy notes from March 1 to June 21, 2012; a report from
Dr. Hannanian, dated May 14, 2012, indicating that appellant sustained an injury to her neck, back,
and shoulders on November 25, 2011; and a report from Dr. Molook Ali, a psychiatrist, dated
May 14, 2012, indicating that appellant had a history of anxiety attack and depression after the
November 25, 2011 injury.
By decision dated December 26, 2012, OWCP denied modification of its prior decision.
On July 22, 2015 OWCP received appellant’s request for reconsideration. Appellant
explained that the December 26, 2012 decision was mistakenly sent to her old address and she did
not receive it until on or about June 2, 2015. She enclosed copies of previously received and
considered medical reports.
By decision dated November 13, 2015, OWCP denied modification of the prior decision.5

4

The record reflects that appellant has a prior accepted claim for a traumatic injury on August 30, 2011, under
OWCP File No. xxxxxx307.
5
OWCP explained that the evidence supported a review of the merits even though the request was not made within
a year, because appellant did not receive the prior decision based on an error by it. It noted that despite appellant
informing them of her new address, it was not updated in the system and she did not receive the decision in time to
exercise her appeal rights.

3

On November 15, 2016 OWCP received appellant’s request for reconsideration.
OWCP received magnetic resonance imaging (MRI) scans dated January 3 and
February 15, 2017.
By decision dated June 23, 2017, OWCP modified the November 13, 2015 decision. It
found that appellant established the employment incident as alleged and that a medical condition
was diagnosed. OWCP further found, however, that the evidence submitted was insufficient to
establish causal relationship between the accepted incident and a diagnosed medical condition
because it had not received an opinion from a physician explaining how the claimed employment
activity caused or contributed to the diagnosed conditions.
On August 7, 2017 appellant again requested reconsideration. She also provided a report
from Dr. Ellen Edgar, a neurologist.
In a July 26, 2017 report, Dr. Edgar noted that appellant was examined for injuries
sustained in a work-related accident on November 25, 2011, and that appellant had a prior history
of injury on August 6, 2006. She diagnosed: paracervical myofascitis (increased); cervical disc
bulges and herniations; lumbar disc bulges with impingement on the thecal sac, post-traumatic;
dizziness; cervicalgia; and cervical radiculopathy. Dr. Edgar explained that she compared the MRI
scan results from the 2006 accepted injury and the 2011 injury and opined that “it is evident that
my patient indeed suffered injuries to both her neck and lower back. The 2011 injuries were caused
by bending, twisting, pulling, lifting, and pushing action while moving heavy pallets during the
course of her work.” Dr. Edgar opined that “with a reasonable degree of medical certainty … [t]he
diagnosed condition is causally related to the injuries sustained on [November 25, 2011].”
By decision dated November 3, 2017, OWCP denied modification of its June 23, 2017
decision. It explained that the medical evidence did not establish causal relationship.
On January 9, 2018 appellant requested reconsideration. She argued that on November 25,
2011, when she bent and twisted her body to lift, pull, and push heavy pallets from the pile to a
single pallet, she felt pain, dizziness, and weakness to her neck, back, and arms, and she was certain
this work incident caused her injuries. Appellant enclosed a new report from Dr. Edgar dated
November 22, 2017.
In a November 22, 2017 report, Dr. Edgar repeated the opinions she provided in her
previous July 26, 2017 report.
By decision dated January 30, 2018, OWCP denied appellant’s request for reconsideration
without a review of the merits.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 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

4

time limitation period of FECA,6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
To determine if an employee has 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 in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.9 The second component is whether the employment incident caused a personal
injury.10
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.11 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.12
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.13
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.14

6
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

Elaine Pendleton, 40 ECAB 1143 (1989).

10

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

11

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

13

T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

5

ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish an injury
causally related to the accepted November 25, 2011 employment incident.
The medical evidence of record contains no reasoned explanation of how the specific
employment incident on November 25, 2011, caused or aggravated appellant’s claimed neck,
back, and shoulder conditions.15 This is especially important as appellant has preexisting
conditions and was working on a rehabilitative assignment.16
Dr. Singh completed a January 23, 2012 duty status report indicating that appellant injured
her neck, arm, and back while working pallets on November 26, 2011. However, he did not
provide a diagnosis or an opinion as to the cause of her injury.17 Likewise, Dr. Singh’s
February 21, 2012 report does not contain a diagnosis and merely indicates “neck – work[-]related
injury” and “while working pallets hurt neck, arms and back.” The Board has held that medical
reports are of no probative value if they do not provide medical reasoning, or rationale, explaining
how appellant’s work activity caused or aggravated a particular diagnosed condition.18 As
Dr. Singh did not provide an opinion and explanation as to how appellant’s employment incident
caused a diagnosed condition, his reports are therefore of no probative value.19
OWCP received March 12, April 9, and May 14, 2012 reports from Dr. Hannanian who
indicated that appellant sustained an injury to her neck, back, and shoulders on November 25,
2011, and diagnosed traumatic cervical myofascitis, with radiculopathy; traumatic lumbar
myofascitis, with radiculopathy. Dr. Hannanian opined that the conditions were a result of the
work incident, but he did not provide medical reasoning or rationale explaining how the work
activity caused or aggravated any diagnosed condition.20 Medical evidence that states a
conclusion, but does not offer a rationalized medical explanation regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.21 The need
for rationalized medical opinion based on medical rationale is especially important in this case as
the evidence suggests that appellant had preexisting conditions.22 As Dr. Hannanian did not

15

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not fortified
by medical rationale is of little probative value).
16

The records indicated that she had a prior history of injury on August 6, 2006, when she sustained injuries to her
neck, back, and arms when she was pulling heavy mail with a hook, and received treatment.
17

Supra note 13; see also Ceferino L. Gonzales, 32 ECAB 1591 (1981).

18

Supra note 13.

See A.M., Docket No. 10-0205 (issued October 5, 2010) (a physician’s opinion must be independent from a
claimant’s belief regarding causal relationship).
19

20

Id.

21

S.H., Docket No. 17-1447 (issued January 11, 2018).

22

E.V., Docket No. 17-0417 (issued September 13, 2017).

6

provide a rationalized medical opinion regarding causal relationship, his reports are of limited
probative value.23
A May 14, 2012 report from Dr. Ali advised that appellant had anxiety and depression after
the November 25, 2011 injury. However, this report is inaccurate as appellant had a history of
depression prior to the injury. It is well established that medical opinions based on an incomplete
or inaccurate history are of little probative value.24
In a July 26, 2017 report, Dr. Edgar compared appellant’s MRI scan results from the 2006
and 2011 accepted work injuries and opined that “it is evident that my patient indeed suffered
injuries to both her neck and lower back. The 2011 injuries were caused by bending, twisting,
pulling, lifting, and pushing action while moving heavy pallets during the course of her work.”
Dr. Edgar added that her conclusion was “with a reasonable degree of medical certainty”; however,
she did not explain how the work activity caused the diagnosed conditions. For conditions not
accepted by OWCP as being employment related, it is appellant’s burden to provide rationalized
medical evidence sufficient to establish causal relationship. To be of probative medical value, a
medical opinion must explain how physiologically the movements involved in the employment
incident caused or contributed to the diagnosed conditions.25 Therefore, Dr. Edgar’s opinion is
insufficient to establish appellant’s claim.
OWCP also received January 3 and February 15, 2017 MRI scans. However, diagnostic
reports are of limited probative value as they do provide an opinion as to whether the employment
incident caused any of the diagnosed conditions.26
Because the medical reports submitted by appellant do not sufficiently address how
appellant’s November 25, 2011 work activities caused or aggravated a neck, arm, back, or other
condition, she has not met her burden of proof to establish that an employment incident caused or
aggravated a specific injury.27
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.28 OWCP has discretionary authority in this regard and has imposed certain
23

S.H., supra note 21.

24

See T.D., Docket No. 18-1190 (issued March 11, 2019); Douglas M. McQuaid, 52 ECAB 382 (2001).

25

W.M., Docket No. 19-0013 (issued April 11, 2019).

26

See J.S., Docket No. 17-1039 (issued October 6, 2017).

27

See Linda I. Sprague, 48 ECAB 386, 389-90 (1997).

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
28

7

limitations in exercising its authority.29 One such limitation is that the request for reconsideration
must be received by it within one year of the date of the decision for which review is sought.30
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.31 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration, without
reopening the case for a review on the merits.32
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s January 9, 2018 request for reconsideration neither alleged nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. She merely reiterated that
she was injured on November 25, 2011, and that she was submitting new medical evidence.
Additionally, the Board finds that she did not advance a relevant legal argument not previously
considered by OWCP. Consequently, appellant is not entitled to further review of the merits of
her claim based on the first and second above-noted requirements under section 10.606(b)(3).33
Appellant submitted a November 22, 2017 report from Dr. Edgar and argued that the report
was new medical evidence. However, the Board finds that this report reiterated the prior opinion
from her previous July 26, 2017 report. The Board has held that evidence which repeats or
duplicates evidence already in the case record does not constitute a basis for reopening a case.34
Consequently, the evidence submitted by appellant on reconsideration does not satisfy the third
criterion for reopening a claim for merit review.35

29

20 C.F.R. § 10.607.

30

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System. Id. at Chapter 2.1602.4b.
31

Id. at § 10.606(b)(3).

32

Id. at § 10.608(a),(b); C.C., Docket No. 18-0136 (issued March 14, 2019); see also E.R., Docket No. 09-1655
(issued March 18, 2010).
33

Id. at § 10.606(b)(3)(i), (ii).

34

See J.B., Docket No. 18-1531 (issued April 11, 2019); D.K., 59 ECAB 141 (2007).

35

20 C.F.R. § 10.606(b)(3)(iii).

8

The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.36
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury
causally related to the accepted November 25, 2011 employment incident. The Board also finds
that OWCP properly denied appellant’s request for reconsideration of the merits of her claim
pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the January 30, 2018 and November 3, 2017
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 11, 2019
Washington, DC

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

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

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

36

D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58
ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
U.S. POSTAL SERVICE, OSHKOSH POST
OFFICE, Oshkosh, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-1246
Issued: July 13, 2021

Case Submitted on the Record

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

JURISDICTION
On June 1, 2020 appellant filed a timely appeal from a January 8, 2020 merit decision and
a March 31, 2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issues are: (1) whether appellant has met his burden of proof to establish a left ankle
condition causally related to the accepted November 5, 2019 employment incident; and

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the March 31, 2020 decision, appellant submitted additional evidence on appeal.
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) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 5, 2019 appellant, then a 54-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date he sustained a left ankle sprain when delivering mail
he slipped and tripped over a stick covered in leaves while in the performance of duty. He stopped
work that day.
In a November 5, 2019 return-to-work report, Angela Obermeier, a certified physician
assistant, diagnosed an anterior talofibular ligament sprain of the left ankle.
In a November 6, 2019 medical report, Dr. Timothy J. Bergan, an occupational medicine
specialist, indicated that appellant sustained a work-related injury on November 5, 2019 and
diagnosed an anterior talofibular ligament sprain of the left ankle. He advised that appellant could
return to work with restrictions on November 6, 2019.
In a development letter dated November 22, 2019, OWCP informed appellant that, when
his claim was received, it appeared to be a minor injury that resulted in minimal or no lost time
from work and; therefore, payment of a limited amount of medical expenses was administratively
approved without formal consideration of the merits of his claim. It had now reopened appellant’s
claim for consideration of the merits. OWCP informed him of the deficiencies of his claim and
requested additional medical evidence. It afforded appellant 30 days to respond.
In a November 20, 2019 medical report, Dr. Bergan again indicated that appellant
sustained a work-related injury on November 5, 2019 and reiterated his diagnosis of an anterior
talofibular ligament sprain of the left ankle. He revised his opinion that appellant could return to
work with restrictions on November 20, 2019.
By decision dated January 8, 2020, OWCP denied appellant’s traumatic injury claim,
finding that he had not submitted medical evidence containing a diagnosis in connection with the
accepted November 5, 2019 employment incident. It concluded, therefore, that the requirements
had not been met to establish an injury as defined under FECA.
On January 21, 2020 appellant requested reconsideration.
By decision dated March 31, 2020, OWCP denied appellant’s request for reconsideration
of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time

3

Supra note 2.

2

limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment incident
identified by the employee.9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a left ankle
condition causally related to the accepted November 5, 2019 employment incident.
In medical reports dated November 6 and 20, 2019, Dr. Bergan indicated that appellant
sustained a November 5, 2019 work-related injury and diagnosed an anterior talofibular ligament
sprain of the left ankle. While Dr. Bergan provided a diagnosis, he failed to provide a specific
history of injury or any explanation of how the accepted November 5, 2019 employment incident
caused appellant’s left ankle sprain. The Board has held that a medical opinion should reflect a
correct history and offer a medically-sound explanation by the physician regarding how the
specific employment incident caused or aggravated the diagnosed conditions.10 Without
4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7
T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10

B.M., Docket No. 19-1341 (issued August 12, 2020); S.J., Docket No. 20-0157 (issued April 1, 2020).

3

explaining, physiologically, how the accepted employment incident caused or contributed to the
diagnosed conditions, Dr. Bergan’s reports are of limited probative value.11 Accordingly, the
Board finds that the reports are insufficient to establish appellant’s claim.
Appellant also submitted a November 5, 2019 report from Ms. Obermeier, a physician
assistant. The Board has held, however, that medical reports signed solely by a physician assistant
are of no probative value as physician assistants are not considered physicians as defined under
FECA.12 As such, this evidence is of no probative value and is also insufficient to establish
appellant’s claim.
As there is no evidence of record that establishes a causal relationship between his
diagnosed left ankle condition and the accepted November 5, 2019 employment incident, the
Board finds that appellant has not met his burden of proof.13
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.14
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.15

11

See J.J., Docket No. 19-1783 (issued March 30, 2020); J.G., Docket No. 19-1116 (issued November 25, 2019);
E.G., Docket No. 19-0914 (issued October 18, 2019); A.B., Docket No. 16-1163 (issued September 8, 2017).
Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2). See also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); M.W., Docket
No. 19-1667 (issued June 29, 2020) (physician assistants are not considered physicians under FECA).
12

13

J.L., Docket No. 18-1804 (issued April 12, 2019); M.H., Docket No. 18-1737 (issued March 13, 2019); John J.
Carlone, supra note 7.
14

5 U.S.C. § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468 (issued
February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).
15

20 C.F.R. § 10.606(b)(3); see also E.W., Docket No. 19-1393 (issued January 29, 2020); L.D., id.; B.W., Docket
No. 18-1259 (issued January 25, 2019).

4

A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.16 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.17 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
With his January 21, 2020 request for reconsideration, appellant submitted no additional
argument or evidence. The Board, therefore, finds that appellant did not show that OWCP
erroneously applied or interpreted a specific point of law or advance a relevant legal argument not
previously considered by OWCP, nor did he submit relevant and pertinent new evidence not
previously considered by OWCP.19
The Board, therefore, finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.20
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left ankle
condition causally related to the accepted November 5, 2019 employment incident. The Board
further finds that OWCP properly denied his request for reconsideration of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).

16
Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
17
Id. at § 10.608(a); see also Y.H., Docket No. 18-1618 (issued January 21, 2020); R.W., Docket No. 18-1324
(issued January 21, 2020); M.S., 59 ECAB 231 (2007).
18

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

Supra note 15. See also A.G., Docket No. 20-0290 (issued June 24, 2020); G.Q., Docket No. 18-1697 (issued
March 21, 2019).
20

C.A., Docket No. 19-0160 (issued January 16, 2020); L.E., Docket No. 19-0470 (issued August 12, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the March 31 and January 8, 2020 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: July 13, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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