United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
AMERICAN LAKE MEDICAL CENTER,
Tacoma, WA, Employer
__________________________________________

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

Docket No. 18-1031
Issued: March 5, 2019

Case Submitted on the Record

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

JURISDICTION
On April 23, 2018 appellant filed a timely appeal from a March 14, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish more than 34 percent
permanent impairment of her right upper extremity and 12 percent permanent impairment of her
left upper extremity, for which she previously received schedule award compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in the prior Board decision are incorporated herein by reference. The relevant facts are as follows.
On January 5, 2015 appellant, then a 67-year-old social worker, filed an occupational
disease claim (Form CA-2) alleging that she sustained a bilateral shoulder injury in the
performance of duty.3 On February 15, 2015 OWCP accepted the claim for bilateral shoulder
adhesive capsulitis, bilateral shoulder impingement, and aggravation bilateral shoulder arthritis.4
On February 23, 2015 appellant filed a claim for a schedule award (Form CA-7).
In a December 30, 2014 report, Dr. Daniel A. Brzusek, a treating Board-certified
physiatrist, provided a history of injury and physical examination findings. He diagnosed bilateral
shoulder adhesive capsulitis, bilateral shoulder impingement, and aggravation of bilateral shoulder
arthritis, caused or aggravated by appellant’s employment. Dr. Brzusek used the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides),5 to rate appellant’s bilateral shoulder impairment using the range of motion (ROM)
methodology. Using Table 15-34, page 475 and Figures 15-28, page 475; Table 15-29, page 475;
and Table 15-30, page 476, he determined that appellant had a total right upper extremity
permanent impairment of 35 percent. Next, Dr. Brzusek calculated appellant’s left upper
extremity impairment. Again, using the ROM methodology, he calculated a total left upper
extremity permanent impairment rating of 12 percent.
On March 5, 2015 Dr. Kenneth D. Sawyer, a physician Board-certified in orthopedic
surgery and occupational medicine serving as an OWCP district medical adviser (DMA), reviewed
Dr. Brzusek’s impairment rating and determined that the rating should be calculated using the
ROM method as it provided a higher rating then a diagnosis-based impairment (DBI) method
rating. He found, however, that Dr. Brzusek had incorrectly applied Table 15-34 of the A.M.A.,
Guides. Dr. Sawyer determined that appellant had 23 percent right upper extremity permanent
impairment and 13 percent left upper extremity permanent impairment.
On April 20, 2015 OWCP referred appellant for a second opinion evaluation with
Dr. Josef K. Eichinger, a Board-certified orthopedic surgeon, to determine the extent of appellant’s
bilateral upper extremity permanent impairment.

2

Docket No. 16-0585 (issued March 27, 2017).

3

Appellant retired from the employing establishment, effective June 28, 2014.

4

Under OWCP File No. xxxxxx178 OWCP accepted appellant’s occupational disease claim for other specified
disorder of right shoulder region bursae and tendons, right shoulder impingement syndrome, and left shoulder
impingement syndrome. By decision dated November 16, 2012, OWCP granted appellant a schedule award for 34
percent right upper extremity permanent impairment and 12 percent left upper extremity permanent impairment under
OWCP File No. xxxxxx178. The date of maximum medical improvement was determined to be July 12, 2012. OWCP
File No. xxxxxx178 has been combined with OWCP File No. xxxxxx012, with the latter designated as the master file.
5

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

2

In a June 15, 2015 report, Dr. Eichinger, based on a review of the statement of accepted
facts (SOAF) and the medical evidence and following a physical examination, noted the accepted
conditions were bilateral shoulder impingement, bilateral shoulder arthritis aggravation, and
bilateral shoulder adhesive capsulitis. Using the A.M.A., Guides, he also rated appellant’s bilateral
shoulder impairment using the ROM methodology and concluded that appellant had 14 percent
right upper extremity permanent impairment and 16 percent left upper extremity permanent
impairment.
By letter dated August 12, 2015, OWCP referred appellant to Dr. Lance Brigham, a Boardcertified orthopedic surgeon, to resolve the conflict in the medical opinion between Dr. Eichinger,
an OWCP referral physician; Dr. Sawyer, the DMA; and Dr. Brzusek, appellant’s treating
physician, regarding the extent of appellant’s bilateral upper extremity permanent impairment.
In a September 2, 2015 report, Dr. Brigham, following his review of medical evidence the
SOAF, and a physical examination, diagnosed bilateral shoulder impingement, adhesive capsulitis,
and aggravation of arthritis. He measured range of motion using Table 15-34, page 475, for both
upper extremities and for appellant’s right shoulder found 3 percent permanent impairment for 105
degrees flexion, 1 percent permanent impairment for 42 degrees extension, 3 percent permanent
impairment for 98 degrees abduction, 0 percent permanent impairment for 35 degrees adduction,
0 percent permanent impairment for 65 degrees external rotation, and 4 percent permanent
impairment for 10 degrees internal rotation, resulting in a combined 11 percent permanent
impairment of the right upper extremity. For the left upper extremity, Dr. Brigham found appellant
had 3 percent permanent impairment for 94 degrees flexion, 1 percent permanent impairment for
41 degrees extension, 3 percent permanent impairment for 91 degrees abduction, 0 percent
permanent impairment for 40 degrees adduction, 0 percent permanent impairment for 60 degrees
external rotation, and 4 percent permanent impairment for 18 degrees internal rotation, resulting
in a combined 11 percent permanent impairment.
Using the A.M.A., Guides, Dr. Brigham calculated 11 percent permanent impairment of
each upper extremity.
On November 15, 2015 Dr. L. Jean Weaver, a DMA, reviewed and concurred with
Dr. Brigham’s impairment determination.
By decision dated December 15, 2015, OWCP denied appellant’s claim for a schedule
award. The denial was based on the finding that appellant had previously received a schedule
award under OWCP File No. xxxxxx178 and was not entitled to an additional schedule award for
her bilateral upper extremities under the current claim number.
On February 8, 2016 appellant appealed to the Board. By decision dated March 27, 2017,6
the Board set aside OWCP’s December 15, 2015 decision and remanded the case to OWCP for
development of a consistent method for calculating permanent impairment for upper extremities
to be applied uniformly followed by a de novo decision on appellant’s claim for an upper extremity
schedule award claim.

6

Supra note 2.

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Following the Board’s March 27, 2017 decision, OWCP requested review by a DMA to
consider a permanent impairment rating in accordance with the A.M.A., Guides, including both
the ROM and DBI methods.
In a September 15, 2017 report, Dr. David H. Garelick, a Board-certified orthopedic
surgeon serving as a DMA, reviewed the medical record, including the reports from Drs. Brzusek,
Eichinger, and Brigham. Based on Dr. Brigham’s September 2, 2015 report, he agreed that ROM
was the appropriate method for rating appellant’s upper extremity permanent impairment. Using
Table 15-34, page 475, Dr. Garelick determined that for the right upper extremity appellant had 3
percent permanent impairment for 105 degrees flexion, 1 percent permanent impairment for 42
degrees extension, 3 percent permanent impairment for 98 degrees abduction, 0 percent permanent
impairment for 35 degrees adduction, 0 percent permanent impairment for 65 degrees external
rotation, and 4 percent permanent impairment for 10 degrees internal rotation, resulting in a
combined 11 percent permanent impairment of the right upper extremity. For the left upper
extremity, he found appellant had 3 percent permanent impairment for 94 degrees flexion, 1
percent permanent impairment for 41 degrees extension, 3 percent permanent impairment for 91
degrees abduction, 0 percent permanent impairment for 40 degrees adduction, 0 percent permanent
impairment for 60 degrees external rotation, and 4 percent permanent impairment for 18 degrees
internal rotation, resulting in a combined 11 percent permanent impairment. Dr. Garelick found
September 2, 2015, the date of Dr. Brigham’s report, to be the date of maximum medical
improvement (MMI).
On October 25, 2017 OWCP requested clarification from Dr. Garelick regarding whether
the prior impairment rating should be modified after considering permanent impairment including
both the ROM and DBI methods.
Dr. Garelick, in a supplemental report dated October 25, 2017, noted that appellant had
been granted a schedule award for 34 percent permanent impairment of her right upper extremity
and 12 percent permanent impairment of her left upper extremity under OWCP File No.
xxxxxx178, and thus, no additional schedule award was warranted. However, he advised that the
date of MMI should be modified to September 2, 2015.
On October 31, 2017 OWCP placed a copy of an August 9, 2012 report from Dr. William
Stewart, a DMA, from OWCP File No. xxxxxx178 into the record for OWCP File No. xxxxxx012.
Dr. Steward had found 34 percent right upper extremity permanent impairment based on the
medical evidence of record and a diagnosis of frozen shoulder.
In a March 14, 2018 supplemental report, Dr. Garelick reviewed the medical evidence of
record and a SOAF. He noted that, regarding applying ROM or DBI in rating an upper extremity
impairment, that, if the loss of range of motion had an organic basis, the range of motion should
be measured three times and the greatest measurement used to determine impairment, and that the
evaluator should determine whether the ROM or DBI method yields the greater impairment.
Dr. Garelick noted that the most that could be awarded under the DBI method, based on posttraumatic degenerative arthritis (which he found the most appropriate diagnosis) was nine percent.
Thus, he determined that ROM was the proper method to evaluate appellant’s upper extremity
permanent impairment. As appellant’s range of motion had been properly measured three times,
he used Table 15-34, page 475 to find a total 11 percent left upper extremity permanent impairment

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and 11 percent right upper extremity permanent impairment. Dr. Garelick concluded that there
was no basis for an increased award given the prior awards that appellant had received. He advised
that the date of MMI should be modified to September 2, 2015.
By decision dated March 14, 2018, OWCP denied appellant’s claim for an increased
schedule award, finding that appellant had not established more than the 34 percent permanent
impairment of her right upper extremity and 12 percent permanent impairment of her left upper
extremity previously awarded.
LEGAL PRECEDENT
The schedule award provisions of FECA,7 and its implementing federal regulations,8 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.9 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.10
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment class of diagnosis (CDX) condition, which is then adjusted by grade modifiers based
on functional history (GMFH), physical examination (GMPE), and clinical studies (GMCS).11 The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12
The A.M.A., Guides also provide that the ROM impairment method is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
diagnosis-based sections are applicable. If ROM is used as a stand-alone approach, the total of
motion impairment for all units of function must be calculated. All values for the joint are
measured and combined.13 Adjustments for functional history may be made if the evaluator
determines that the resulting impairment does not adequately reflect functional loss and functional
reports are determined to be reliable.14

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at 10.404(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
11

A.M.A., Guides 383-492.

12

Id. at 411.

13

Id. at 473.

14

Id. at 473-74.

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Regarding the application of the ROM or DBI methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.”15 (Emphasis in the original.)
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.
“If the medical evidence of record is not sufficient for the DMA to render a rating
on ROM where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available
evidence.”16
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish greater than 34
percent permanent impairment of the right upper extremity and 12 percent permanent impairment
of the left upper extremity, for which she previously received schedule award compensation.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s December 15, 2015 decision because the
Board considered that evidence in its March 27, 2017 decision when it reviewed the evidence of

15

FECA Bulletin No. 17-06 (May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., Docket
No. 18-0329 (issued July 26, 2018).
16

Id.

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record for the schedule award claim. Findings made in prior Board decisions are res
judicata absent any further review by OWCP under section 8128 of FECA.17
On prior appeal, the Board remanded the case for OWCP to reevaluate the extent of
appellant’s permanent impairment of her right and left upper extremities, applying a consistent
method for rating upper extremity impairment under the A.M.A., Guides. On remand, the DMA,
Dr. Garelick, reviewed the evidence and noted that FECA Bulletin No. 17-06 provided guidance
for consistently rating upper extremity impairments. Pursuant to the Bulletin, if the A.M.A.,
Guides allowed for both the ROM and DBI methodologies in calculating permanent impairment
of the upper extremity, the method that yielded the higher impairment rating should be used.
Dr. Garelick concurred with the impairment rating made by Dr. Brigham, the impartial medical
examiner selected to resolve the conflict in the medical opinion evidence.
Dr. Brigham, in his September 2, 2015 report, measured range of motion for both upper
extremities and determined that, for the right shoulder, appellant had 3 percent permanent
impairment for 105 degrees flexion, 1 percent permanent impairment for 42 degrees extension, 3
percent permanent impairment for 98 degrees abduction, 0 percent permanent impairment for 35
degrees adduction, 0 degree permanent impairment for 65 degrees external rotation, and 4 percent
permanent impairment for 10 degrees internal rotation, resulting in a total 11 percent permanent
impairment of the right upper extremity. For the left upper extremity, he found appellant had 3
percent permanent impairment for 94 degrees flexion, 1 percent permanent impairment for 41
degrees extension, 3 percent permanent impairment for 91 degrees abduction, 0 percent permanent
impairment for 40 degrees adduction, 0 degree permanent impairment for 60 degrees external
rotation, and 4 percent permanent impairment for 18 degrees internal rotation, resulting in a total
11 percent permanent impairment.
In reports dated September 15 and October 25, 2017 and March 14, 2018, Dr. Garelick
determined that the ROM method yielded a higher impairment rating than the DBI method. He
therefore concurred with Dr. Brigham’s bilateral shoulder permanent impairment rating using
Table 15-34, page 475. He determined that appellant’s bilateral upper extremity impairment due
to her shoulder conditions was appropriately rated using the ROM method, which yielded a greater
impairment rating than the DBI method. The current right upper extremity permanent impairment
rating of 11 percent and the current left upper extremity permanent impairment rating of 11 percent
is less than the 34 percent permanent impairment rating for right upper extremity and 12 percent
permanent impairment rating for the left upper extremity previously awarded.
As noted, it is appellant’s burden of proof to establish increased permanent impairment.18
Because her current right upper extremity permanent impairment and left upper extremity
permanent impairment is less than that previously awarded, the Board finds that she is not entitled
to an increased schedule award.19

17

See B.R., Docket No. 17-0294 (issued May 11, 2018).

18

See D.F., Docket No. 17-1474 (issued January 26, 2018); A.T., Docket No. 16-0738 (issued May 19, 2016).

19

See D.F., id.; M.B., Docket No. 16-1826 (issued May 15, 2017).

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On appeal appellant contends that since her condition has worsened that she is entitled to
an additional schedule award for her bilateral shoulder conditions. For the reasons discussed
above, appellant has not established entitlement to a greater schedule award.
Appellant may request a schedule award, or increased schedule award, at any time based
on evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established more than 34 percent permanent
impairment of her right upper extremity and 12 percent permanent impairment of her left upper
extremity, for which she has previously received schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT the March 14, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 5, 2019
Washington, DC

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

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

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

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

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Appearances:
Douglas Sughrue, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0641
Issued: November 8, 2019

Case Submitted on the Record

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

JURISDICTION
On January 28, 2019 appellant, through counsel, filed a timely appeal from an October 18,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a cervical condition
causally related to factors of her federal employment.

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On August 4, 2008 appellant, then a 42-year-old letter carrier, filed an occupational disease
claim (Form CA-2), alleging that her preexisting pinched nerve developed into five herniated discs
as a result of conducting her letter carrier duties while in the performance of duty. She first became
aware of her condition and realized it was causally related to factors of her federal employment on
December 19, 2006. Appellant did not stop work at that time.
By decision dated September 29, 2008, OWCP denied appellant’s claim on the grounds
that the evidence was insufficient to establish the events occurred, as alleged and, thus, the
requirements had not been met to establish an injury as defined by FECA. Appellant requested a
review of the written record.
By decision dated April 8, 2009, an OWCP hearing representative found that appellant had
established the factual element of her claim, but affirmed the denial of the claim because she had
not submitted sufficient medical evidence to establish causal relationship.
Appellant subsequently requested reconsideration and, by decisions dated July 27 and
November 27, 2009, OWCP denied modification.
Appellant continued to request reconsideration. By decisions dated December 29, 2009
and February 14, 2011, OWCP denied appellant’s requests for reconsideration, finding that the
evidence submitted was insufficient to warrant reconsideration of the merits of her claim.
On July 26, 2011 appellant appealed to the Board. By an April 12, 2012 order, the Board
set aside OWCP’s February 14, 2011 decision and remanded the case to OWCP for it to consider
all evidence submitted at the time of the February 14, 2011 decision.4
By decisions dated August 7, 2012, October 2, 2013, and August 25, 2014, OWCP
reviewed the merits of the claim, but denied modification. Appellant appealed to the Board. By
decision dated September 22, 2015, the Board affirmed the August 25, 2014 OWCP decision,
finding the medical evidence of record insufficient to establish causal relationship.5
On September 14, 2016 appellant, through counsel, requested reconsideration. By decision
dated December 12, 2016, OWCP denied modification. On February 17, 2017 appellant, through
counsel, appealed to the Board. By decision dated August 1, 2017, the Board affirmed the
December 12, 2016 decision.

3
Order Remanding Case, Docket No. 11-1749 (issued April 12, 2012); Docket No. 15-0622 (issued
September 22, 2015); Docket No. 17-0755 (issued August 1, 2017).
4

Order Remanding Case, Docket No. 11-1749 (issued April 12, 2012).

5

Docket No. 15-0622 (issued September 22, 2015).

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Appellant, through counsel, requested reconsideration on July 23, 2018.
In support of the request, OWCP received an August 31, 2016 x-ray of the cervical spine,
which revealed mild-to-moderate cervical spondylosis. Similarly, a magnetic resonance imaging
(MRI) scan of the cervical spine on October 24, 2016 revealed degenerative changes at C2-3,
lateral spinal stenosis at C3-4, posterior disc protrusion at C4-5, and posterior disc osteophyte at
C5-6.
Appellant was treated by Dr. Mayur Kanjia, a Board-certified anesthesiologist, from
November 8, 2016 to May 16, 2017, for a three-month history of neck pain radiating into the
bilateral arms and hands. Dr. Kanjia reported a history of lumbar radiculopathy and noted that
appellant was status post laminectomy in 2010. He performed steroid injections at C5-6 and a
spinal cord stimulator (SCS) implant.
Physical therapy notes dated December 7, 2016 to January 3, 2017 were also received.
In a letter dated September 18, 2017, Dr. Kanjia opined that appellant’s duties as a letter
carrier, including repetitive bending, twisting, turning, walking, lifting, and carrying more than 10
pounds daily, five to six days a week, for 8 to 10 hours a day, aggravated appellant’s preexisting
disc herniations and aggravated scar tissue from the surgical fusion of 2010. He reported first
treating appellant on November 8, 2016 after she underwent lumbar surgeries in 2008 and 2010.
Dr. Kanjia noted that appellant underwent a cervical epidural injection on November 23, 2016 and
reported improved symptoms, however, persistent lumbar postlaminectomy pain. On March 7,
2017 appellant underwent a SCS trial with 99 percent pain relief.
On November 6, 2017 Dr. Kanjia indicated that appellant’s work duties of repetitive
bending, twisting, turning, walking, lifting, and carrying more than 10 pounds on a daily basis,
five days a week, eight hours every day aggravated the preexisting disc herniations. He opined
that, based on her history and physical examination, appellant’s signs and symptoms have
drastically changed, which is indicative of increased nerve pinching after the aggravation. On
November 29, 2017 Dr. Kanjia provided an amended statement and opined that appellant
aggravated her preexisting disc herniation from forces required at work, which include repetitive
bending, twisting, turning, walking, lifting, and carrying more than 10 pounds daily, five to six
days a week, for 8 to 10 hours a day. He advised that the force from the motion enlarged her
herniation causing worsening symptoms.
In a February 20, 2018 letter, Dr. Kanjia opined that appellant’s preexisting condition prior
to reaggravation was a postlaminectomy fusion, which was high risk for herniating discs above
and below the surgery with enough force. He further opined that appellant’s work descriptions
could cause a great amount of force across the spine to rupture discs.
By decision dated October 18, 2018, OWCP denied modification of its prior decision.

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LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,7 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.8 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.9
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant 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 identified employment factors.10
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.11 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.12 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).13
Where there is medical evidence of a preexisting condition involving the same part of the
body as the claimed employment injury, the issue of causal relationship invariably requires inquiry
into whether there was employment-related aggravation, acceleration, or precipitation of the
underlying condition.14 Accordingly, the physician must provide a rationalized medical opinion,
6

Supra note 2.

7

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
8

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
9
R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
10

M.S., Docket No. 18-1554 (issued February 8, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

12

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, supra note 10.

13

Id.

14

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

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which differentiates between the effects of the work-related injury or disease and the preexisting
condition.15
ANALYSIS
The Board finds that this case is not in posture for decision.
Following the Board’s August 1, 2017 decision, appellant, through counsel, requested
reconsideration and submitted additional medical evidence. In letters dated September 18 and
November 6, 2017, Dr. Kanjia opined that repetitive bending, twisting, turning, walking, lifting,
and carrying more than 10 pounds daily, five to six days a week, for 8 to 10 hours a day required
by a letter carrier aggravated appellant’s preexisting disc herniations and scar tissue from the
surgical fusion from 2010. He reported that appellant’s symptoms drastically changed indicating
more nerve pinching. Similarly, in a report dated November 29, 2017, Dr. Kanjia opined that she
aggravated her preexisting disc herniation from forces required at work, which include repetitive
bending, twisting, turning, walking, lifting, and carrying more than 10 pounds daily, five to six
days a week, for 8 to 10 hours a day. He opined that the force from the motion enlarged her
herniation causing increased symptoms. Likewise, in a February 20, 2018 letter, Dr. Kanjia
described appellant’s work duties and opined that the duties could cause a great amount of force
across the spine to rupture discs.
The Board finds that the medical opinion of Dr. Kanjia is based upon a complete factual
history and medical background, is supported by reasonable medical certainty, and provides a
sufficient level of medical rationale explaining the nature of the relationship between the diagnosed
conditions and the accepted employment incident.16 While Dr. Kanjia’s reports are insufficiently
rationalized to meet appellant’s burden of proof to establish her claim, they are sufficient to require
OWCP to further develop the medical evidence and the case record.17
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility to see that justice is done.18 The nonadversarial policy of proceedings under FECA
is reflected in OWCP’s regulations at section 10.121.19 On remand OWCP should refer appellant
and the medical evidence of record to an appropriate specialist to obtain a rationalized opinion
regarding whether she sustained a cervical condition causally related to the accepted employment
incident.20 After such further development as OWCP deems necessary, it shall issue a de novo
decision.

15

Id.

16

W.C., Docket No. 18-1386 (issued January 22, 2019).

17

C.W., Docket No. 19-0231 (issued July 15, 2019).

18

X.V., Docket No. 18-1360 (issued April 12, 2019); Jimmy A. Hammons, 51 ECAB 219 (1999).

19

20 C.F.R. § 10.121.

20

M.K., Docket No. 17-1140 (issued October 18, 2017).

5

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 18, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: November 8, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
DEFENSE LOGISTIC AGENCY, NAVAL
SUPPLY CENTER, Norfolk, VA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-576
Issued: September 12, 2012

Case Submitted on the Record

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

On January 23, 2012 appellant filed an application requesting review of a December 22,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) adjudicating his
hearing loss claim in OWCP file number xxxxxx409. By that decision OWCP denied
appellant’s claim for hearing loss finding that it did not arise in the performance of duty. The
appeal was docketed as No. 12-576.
The Board has duly considered the matter and notes that OWCP, in its December 22,
2011 decision, based its decision, in part, on evidence and findings made in prior compensation
claims of appellant under file numbers xxxxxx702 and xxxxx039. As assembled, the case record
now before the Board does not allow access to case number xxxxxx039, and as such, the case
record forwarded to the Board is incomplete. Under its procedures, OWCP has determined that
cases should be combined where correct adjudication depends on cross-referencing between
files. In the instant appeal, it appears that, for a full and fair adjudication, all OWCP claims
pertaining to appellant’s hearing loss should be combined pursuant to OWCP procedures.1

1

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter
2.400.8(c) (February 2000).

The case will be remanded to OWCP to combine case File Nos. xxxxxx409, xxxxxx702
and xxxxxx039. Following this and such other development as deemed necessary, OWCP shall
issue an appropriate merit decision on appellant’s claim.
IT IS HEREBY ORDERED THAT the December 22, 2011 Office of Workers’
Compensation Programs’ decision be set aside and the case remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: September 12, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
REGION IV, Paducah, KY, Employer
__________________________________________

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

Docket No. 17-1071
Issued: November 1, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 17, 2017 appellant filed a timely appeal from a December 2, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury due to a
February 9, 2015 employment incident.

1
2

5 U.S.C. § 8101 et seq.

Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.
§ 501.5(b). After exercising its discretion, by order dated September 21, 2017, the Board denied the request as
appellant’s arguments on appeal could be adequately addressed in a decision based on a review of the case as
submitted on the record.
Order Denying Request for Oral Argument, Docket No. 17-1071 (issued
September 21, 2017).

FACTUAL HISTORY
On August 19, 2015 appellant, then a 51-year-old service representative, filed a traumatic
injury claim (Form CA-1) alleging that on February 9, 2015 she sustained injury to her ankles,
left hand, and left wrist due to a fall at work. She indicated that she turned both her ankles when
she slipped and fell on a wet breakroom floor and fell into some chairs. Appellant advised that
she put her left arm out in an attempt to stop her fall, but her left palm hit the sharp edge of a
table and her ankles rolled out from under her. She stopped work on April 16, 2015 and
requested continuation of pay.
On the same form, appellant’s current immediate supervisor indicated that appellant was
not on a break at the time of the February 9, 2015 fall and had no reason to be in the breakroom.
The supervisor indicated that the employing establishment was controverting appellant’s claim
for continuation of pay.3
In an August 19, 2015 letter, counsel, at the time, asserted that appellant was in the
performance of duty at the time of her February 9, 2015 fall and that the fall caused injury to her
ankles, left hand, and left wrist.
In a September 8, 2015 letter, OWCP requested that appellant submit additional evidence
in support of her claim. It asked her to complete and return a development questionnaire which
posed various questions regarding the circumstances of her claimed February 9, 2015
employment injury. OWCP also requested that appellant submit a physician’s opinion supported
by a medical explanation as to how the reported work incident caused or aggravated a medical
condition.
In an October 2, 2015 statement, appellant indicated that she was on the clock at the time
of her February 9, 2015 fall and had gone to the breakroom to make coffee for the office, an act
which did not require being on official break time. She provided a description of her February 9,
2015 fall which was similar to that provided in her Form CA-1 and noted that she reported the
fall to her immediate supervisor on the date it occurred.
Appellant submitted numerous medical reports which were produced prior to the
February 9, 2015 fall. In a December 17, 2012 report, Dr. Stephen H. Jackson, an attending
Board-certified orthopedic surgeon, reported performing a right carpal tunnel release on that
date. On January 3, 2013 he performed a left carpal tunnel release.4 In reports dated in 2012 and

3

In a February 9, 2015 unsigned statement, an unidentified person indicated that at approximately 8:45 a.m. on
February 9, 2015 he/she received a telephone call that appellant had fallen in the breakroom. The individual noted
that he/she went to the breakroom and saw appellant standing with her hands on the kitchen counter. Appellant
advised that she hurt her left ankle due to the fall.
4

Under a separate claim (OWCP File No. xxxxxx000), appellant filed a claim in connection with her bilateral
carpal tunnel syndrome condition. The Board notes that her bilateral carpal tunnel syndrome condition is not the
subject of the present appeal. Appellant also submitted an October 10, 2013 report indicating that Dr. Jackson
performed a release of the A1 pulley of her right thumb on that date to address a right trigger thumb condition. This
condition also is not the subject of the present appeal.

2

2013, appellant’s attending physicians discussed these medical problems, as well as her
complaints of neck and right shoulder pain.
Appellant also submitted medical reports that were produced after her February 9, 2015
fall that were related to her claimed injury. In an April 17, 2015 report, Dr. Jackson discussed
his performance on that date of an excisional arthroplasty of the trapezium of her left thumb with
interpositional soft tissue graft. The surgery was not approved by OWCP. On April 27, 2015
Dr. Jackson indicated that he removed some sutures remaining from appellant’s April 17, 2015
left hand surgery.
In a September 14, 2015 report, Dr. Jackson indicated that appellant’s chief complaint
was discomfort about her right ankle and noted that she reported suffering an inversion injury to
her right ankle on an unspecified date and having problems with swelling. He diagnosed wellfunctioning left hand postexcisional arthroplasty of the trapezium, and inflammation of the right
ankle joint.
In an October 13, 2015 decision, OWCP denied appellant’s claim for a work-related
February 9, 2015 injury. It accepted the occurrence of an employment incident on February 9,
2015 in the form of a fall at work. However, OWCP found that appellant failed to submit
sufficient medical evidence to establish a diagnosed condition due to the accepted February 9,
2015 employment incident.
In an August 25, 2016 letter received on that date, counsel at the time requested
reconsideration of OWCP’s October 13, 2015 decision. She argued that an enclosed May 23,
2016 report of Dr. Jackson established appellant’s claim for a February 9, 2015 employment
injury.
In his May 23, 2016 report, Dr. Jackson indicated that he had been treating appellant for
her hands. He noted that she had done well after bilateral carpal tunnel release surgery when she
slipped on a wet floor and struck her left hand on furniture. Dr. Jackson indicated that, following
that injury, appellant had increased pain about the carpometacarpal joint of her left thumb and
noted that “this resulted in an excisional arthroplasty of the trapezium of [appellant’] left thumb.”
He advised that she did well with the left thumb surgery and had been released to activity as
tolerated. Dr. Jackson noted, “I feel that the fall definitely exacerbated preexisting arthritis of the
carpometacarpal joint of the left thumb, necessitating that surgery and [appellant’s] subsequent
time off.”5
In a December 2, 2016 decision, OWCP denied modification of its October 13, 2015
decision. It accepted the occurrence of an employment incident on February 9, 2015 as alleged,

5

In a November 13, 2015 report, Dr. Thomas T. Dovan, an attending Board-certified orthopedic surgeon,
indicated that appellant presented to his office with a new problem. Appellant reported that she fell on
November 13, 2015 and landed on her right arm such that she hyperextended her right shoulder. Dr. Dovan noted
that his examination showed mild swelling and limited motion of the right shoulder and he diagnosed right shoulder
pain. On December 28, 2015 he indicated that appellant was seen for follow-up of her right shoulder
contusion/sprain. The Board notes that there is no indication in the record that her November 16, 2015 fall occurred
at work or that she filed a claim with OWCP in connection with the fall.

3

but found that appellant failed to submit sufficient medical evidence to establish a diagnosed
condition due to the accepted February 9, 2015 employment incident.
LEGAL PRECEDENT
A claimant seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including that an injury was sustained in the performance of duty as alleged and that
any specific condition or disability claimed is causally related to the employment injury.7
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.8 The second component is whether the employment incident caused a
personal injury.9 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.10
The fact that a condition manifests itself during a period of employment is not sufficient
to establish causal relationship.11 Temporal relationship alone will not suffice.12 Entitlement to
FECA benefits may not be based on surmise, conjecture, speculation, or on the employee’s own
belief of 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,

6

See supra note 2.

7

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

8

Elaine Pendleton, 40 ECAB 1143 (1989).

9

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.
10

Shirley A. Temple, 48 ECAB 404, 407 (1997).

11

20 C.F.R. § 10.115(e).

12

See D.I., 59 ECAB 158, 162 (2007).

13

See M.H., Docket No. 16-0228 (issued June 8, 2016).

4

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
ANALYSIS
Appellant claimed that on February 9, 2015 she sustained injury to her ankles, left hand,
and left wrist due to a fall at work. She indicated that she turned both her ankles when she
slipped and fell on a wet breakroom floor and fell into some chairs.15 In October 13, 2015 and
December 2, 2016 decisions, OWCP denied appellant’s claim for a work-related February 9,
2015 injury. It accepted the occurrence of an employment incident on February 9, 2015 in the
form of a fall at work as alleged, but found that she failed to submit sufficient medical evidence
to establish a diagnosed condition due to the accepted February 9, 2015 employment incident.
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury due to a February 9, 2015 employment incident.
Appellant only submitted one medical report which addressed her claimed February 9,
2015 employment injury. In a May 23, 2016 report, Dr. Jackson, an attending physician,
indicated that he had been treating her for her hands. He noted that appellant had done well after
bilateral carpal tunnel release surgery when she slipped on a wet floor and struck her left hand on
furniture. Dr. Jackson indicated that, following that injury, she had increased pain about the
carpometacarpal joint of her left thumb and noted that “this resulted in an excisional arthroplasty
of the trapezium of her left thumb.” He noted, “I feel that the fall definitely exacerbated
preexisting arthritis of the carpometacarpal joint of the left thumb, necessitating that surgery and
[appellant’s] subsequent time off.”
The Boards finds that Dr. Jackson’s May 23, 2016 report is of limited probative value in
establishing appellant’s claim for a February 9, 2015 employment injury because he did not
provide medical rationale in support of his opinion that the February 9, 2015 fall exacerbated her
preexisting left thumb arthritis and necessitated the April 17, 2015 excisional arthroplasty of her
left thumb trapezium. The Board has held that a medical report is of limited probative value on
the issue of causal relationship if it contains a conclusion regarding causal relationship which is
unsupported by medical rationale.16 Dr. Jackson did not describe the February 9, 2015 fall in any
detail or explain the medical process through which the fall could have aggravated appellant’s
preexisting left thumb condition. The Board notes that such medical rationale is especially
necessary in the present case because there is no contemporaneous medical evidence in the
record addressing her February 9, 2015 fall or its effects. Dr. Jackson did not explain how
specific objective findings on physical examination and diagnostic testing supported his opinion
on causal relationship.

14

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

15

Appellant advised that she put her left arm out in an attempt to stop her fall, but her left palm hit the sharp edge
of a table and her ankles rolled out from under her.
16

C.M., Docket No. 14-88 (issued April 18, 2014).

5

The record contains medical evidence pertaining to the April 17, 2015 left thumb surgery
and appellant’s follow-up care, but none of these reports contains an opinion relating her left
thumb condition to the February 9, 2015 employment incident. Appellant submitted other
reports addressing her various medical problems, but these reports of are limited probative value
on the relevant issue of this case because none of them contained a rationalized opinion relating a
specific diagnosed condition to the accepted February 9, 2015 employment incident.17
On appeal appellant asserts that she can prove that she filed a timely claim for her alleged
February 9, 2015 injury, and that she requested leave to seek medical care following her
February 9, 2015 fall rather than before it. However, the Board notes that her filing of the
present claim was found to be timely and her claim was denied on a medical basis rather than a
factual basis. Appellant also asserts that she can prove that her February 9, 2015 fall worsened
her bilateral carpal tunnel syndrome, but the Board has explained that the medical evidence was
insufficient to establish that her February 9, 2015 fall caused a new injury or aggravated a
preexisting injury.18
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury due to a February 9, 2015 employment incident.

17

See Y.D., Docket No. 16-1896 (issued February 10, 2017); D.R., Docket No. 16-0528 (issued August 24, 2016)
(finding that a report is of limited probative value regarding causal relationship if it does not contain medical
rationale explaining how an employment activity could have caused or aggravated a medical condition).
18

Appellant also claims that management made false allegations and retaliatory statements about her claim,
denied her reasonable accommodations for her targeted disabilities, and failed to adequately help her conduct an
approved time analysis. However, she did not provide any further evidence about these vague allegations or explain
how they are relevant to the main issue of this case which is essentially medical in nature, i.e., whether she
submitted sufficient medical evidence to establish a February 9, 2015 employment injury.

6

ORDER
IT IS HEREBY ORDERED THAT the December 2, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.Q., Appellant
and
DEPARTMENT OF THE NAVY,
PHILADELPHIA NAVAL SHIPYARD,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 17-1220
Issued: May 18, 2018

Case Submitted on the Record

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

JURISDICTION
On May 15, 2017 appellant filed a timely appeal from a May 2, 2017 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that modification of
his August 27, 2001 loss of wage-earning capacity (LWEC) determination is warranted.
FACTUAL HISTORY
On October 11, 1989 appellant then a 37-year-old painter, twisted his left knee while at
work. OWCP accepted his claim for left knee meniscus tear, chondromalacia patella, medial
collateral ligament sprain, lateral collateral ligament sprain, and unspecified left knee sprain.
1

5 U.S.C. § 8101 et seq.

Appellant stopped work on October 12, 1989 and returned to light duty on June 4, 1990. On
September 9, 1990 he stopped work completely to undergo arthroscopic surgery on
September 10, 1990. Thereafter, appellant was placed on the periodic compensation rolls.
Appellant was treated by Dr. John H. Wolf, Jr., a Board-certified orthopedist. On
December 12, 1989 Dr. Wolf performed an arthroscopy of the left knee and medial meniscectomy
and diagnosed meniscal tear of the left knee.
The employing establishment reemployed appellant as a light-duty painter on June 4, 1990.
On August 22, 1990 OWCP notified him that he was recently employed as a light-duty painter
effective June 4, 1990. It indicated that appellant’s monetary benefits would be reduced, effective
June 4, 1990 based upon his actual wages.
In a report dated September 5, 1990, Dr. Wolf noted appellant’s continuing complaints of
left knee pain and recommended surgery. On September 10, 1990 he performed a left knee
arthroscopy and diagnosed internal derangement of the left knee. Thereafter, appellant stopped
work completely. He underwent a magnetic resonance imaging (MRI) scan of the left knee on
March 17, 1991 which revealed a possible residual small tear within the posterior horn of the
medial meniscus. On April 30, 1991 Dr. Wolf performed an arthroscopy of the left knee, medial
synovial debridement and lateral retinacular release, and diagnosed chondromalacia of the left
patella. Appellant continued to be treated by Dr. Wolf, who found continued significant
symptoms. Dr. Wolf opined that appellant could only perform sedentary duties.
Dr. Wolf reexamined appellant on January 22, March 17 and 9, 1998, and noted his
continuing left knee complaints. He recommended a patellectomy. On May 8, 1998 Dr. Wolf
performed a patellectomy of the left knee and diagnosed chronic patellofemoral pain of the left
knee. In a December 14, 1998 report, he noted that appellant had difficulty bending his knee and
required a brace. In a December 14, 1998 work capacity evaluation (OWCP-5c), Dr. Wolf noted
that appellant could not work.
OWCP referred appellant to Dr. Steven J. Valentino, a Board-certified orthopedist, for a
second opinion examination. In a January 6, 2000 report, Dr. Valentino noted findings consistent
with symptom embellishment. He noted diagnoses and opined that appellant could return to work
without limitations due to his work injury. OWCP determined that there was a conflict of medical
opinion between Dr. Wolf and Dr. Valentino. It referred appellant to Dr. Thomas C. Peff, a Boardcertified orthopedist, for an impartial medical examination. In a report dated June 8, 2000, Dr. Peff
diagnosed status post meniscal tear, left knee, status post three arthroscopies and patellectomy of
the left knee without evidence of significant ligamentous laxity. He opined that appellant
recovered from his work-related injury of October 1989. However, Dr. Peff noted that appellant
was not capable of returning to his previous job as a painter following the patellectomy. He further
indicated that he found no significant objective findings to substantiate full disability and opined
that appellant could return to sedentary work. Dr. Peff did not believe appellant required further
treatment for his work injury of October 11, 1989.
In a work capacity evaluation (OWCP-5c) dated February 15, 2001, an OWCP medical
adviser noted that, based on Dr. Peff’s June 8, 2000 report, appellant was able to perform sedentary

2

work, eight hours a day, sitting, walking and standing limited to one hour a day, no pushing,
pulling, squatting, or kneeling, and lifting limited to one hour a day and 10 pounds.
Following vocational rehabilitation, on July 18, 2001, OWCP proposed to reduce
appellant’s compensation, finding that he was partially disabled and had the capacity to earn wages
as a check cashier. The position was found to be in compliance with Dr. Peff’s June 8, 2000
restrictions. In an undated statement received on August 15, 2001, appellant asserted that it was
unfair to reduce his compensation as he complied with vocational rehabilitation. He also asserted
that the check cashier job required too much standing.
In an August 27, 2001 decision, OWCP reduced appellant’s compensation to reflect his
wage-earning capacity as a check cashier, effective September 9, 2001.
Appellant continued to be treated by Dr. Wolf for significant left knee pain which began
in 1989. Dr. Wolf noted that appellant was unable to walk very far without having to sit because
of left knee pain, he was limited in standing for any length of time, he could not squat or climb
steps. He found appellant to be totally disabled from work. On March 2 and April 5, 2011
Dr. Wolf noted that appellant was status post arthroscopic left knee surgeries and a patellectomy
with secondary painful hips and bilateral hip replacements. He opined that appellant was totally
disabled from work. On December 6, 2011 appellant noted that x-rays revealed arthritis in the
patellofemoral joint and Dr. Wolf attributed this condition to appellant’s former employment,
which required squatting and kneeling. Dr. Wolf continued to opine that appellant was totally
disabled from work.
On January 15, 2013 Dr. Wolf saw appellant and diagnosed traumatic amputation of the
left leg above the knee. In a January 15, 2013 work capacity evaluation (OWCP-5c), he noted that
appellant had four prior left knee surgeries and was waiting for a total knee replacement and
developed blood clots and vascular insufficiency. Dr. Wolf noted that appellant could not work
eight hours a day due to lumbar disc disease, bilateral hip replacements, and partial left leg
amputation.
On January 13, 2014 appellant was treated by Dr. David Junkin, a Board-certified
orthopedist and associate of Dr. Wolf. Dr. Junkin diagnosed above the knee amputation and noted
that appellant was totally disabled due to the amputation. In a January 13, 2014 work capacity
evaluation, he noted that appellant had a failed vascularization of the left leg above the knee.
Dr. Junkin advised that appellant was unable to stand for eight hours or climb steps due to the
amputation. He noted that appellant’s medical restrictions were permanent.
In a January 15, 2015 report, Dr. Mahshid Kamyab, a Board-certified family practitioner,
noted that appellant was totally disabled due to his left leg amputation. He indicated that there
were no treatment options to facilitate his recovery and return to work.
On January 20, 2016 Dr. Thomas E. Sabalaske, an osteopath, noted objective findings of
above the left knee amputation and opined that appellant was unable to return to full- or part-time
work. The treatment plan was to have him work with the prosthesis and preserve blood flow to
the opposite leg.

3

On April 11, 2016 appellant filed a notice of recurrence (Form CA-2a) asserting that he
had a recurrence of disability on October 11, 1989 causally related to his original injury. He noted
that, after returning to work following the original injury, he could not walk. Appellant indicated
that the recurrence occurred when he had pain in his left knee and then had his left leg amputated.
The employing establishment noted on the Form CA-2a that appellant was on limited duty until
September 9, 1990. It indicated that appellant believed he had a material worsening of his
condition.
Appellant submitted an April 1, 2016 report from Dr. Sabalaske who noted that appellant
had an above-the-knee amputation due to complications from a blood clot in his left leg.
Dr. Sabalaske noted that appellant was totally disabled with chronic pain and ambulatory
dysfunction.
In an April 13, 2016 letter, OWCP requested appellant provide a date that his disability
increased due to a material worsening of his accepted work injuries. It informed him that, since a
formal LWEC determination was issued in his case, his recurrence claim would be treated as a
request for modification of the LWEC determination. Appellant was informed of the requirements
for a modification of an LWEC. OWCP provided him 30 days to provide additional information.
In a May 18, 2016 decision, OWCP denied modification of the August 27, 2001 LWEC
determination.
Appellant timely requested a telephonic oral hearing before an OWCP hearing
representative, which was held on March 29, 2017. He submitted a discharge summary for a
hospital admission from September 1 to 7, 2012 in which Dr. Gabor A. Winkler, a Board-certified
vascular surgeon, diagnosed ischemic left leg and status post left femoral to posterior tibial bypass
with a graft on September 4, 2012. Dr. Winkler noted that appellant presented on September 1,
2012 with a several week history of leg pain and received a duplex ultrasound which demonstrated
occlusion of the superficial femoral artery and popliteal artery. On September 4, 2012 he
performed a left common femoral to posterior tibial artery bypass with a bypass graft and
diagnosed left leg occluded popliteal artery and occluded left distal superficial femoral artery with
ischemic rest pain with hyperplasia of the greater saphenous vein. Dr. Winkler noted that appellant
progressed postoperatively and was discharged to rehabilitation on September 7, 2012.
Appellant submitted a March 31, 2017 report from Dr. Sabalaske who opined that appellant
had an amputation above the left knee which was in part from damage sustained to the left knee
after multiple arthroscopic surgeries. Dr. Sabalaske indicated that appellant developed blood clots
in the left knee from the knee injury which left him totally disabled.
In a decision dated May 2, 2017, OWCP denied modification of its August 27, 2001
LWEC determination.
LEGAL PRECEDENT
A wage-earning capacity determination is a finding that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn

4

wages.2 Actual wages earned is generally the best measure of wage-earning capacity.3 In the
absence of evidence showing that actual earnings do not fairly and reasonably represent the injured
employee’s wage-earning capacity, such earnings must be accepted as representative of the
individual’s wage-earning capacity.4 Compensation payments are based on the wage-earning
capacity determination and it remains undisturbed until properly modified.5
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless it meets the requirements for modification.6 OWCP
procedures at section 2.1501 contain provisions regarding the modification of a formal LWEC.7
The relevant part provides that a formal LWEC will be modified when: (1) the original rating was
in error; (2) the claimant’s medical condition has materially changed; or (3) the claimant has been
vocationally rehabilitated.8
The burden of proof is on the party attempting to show modification.9 There is no time
limit for appellant to submit a request for modification of a wage-earning capacity determination.10
ANALYSIS
Appellant twisted his left knee at work on October 11, 1989. OWCP accepted the claim
for a left knee meniscus tear, chondromalacia patella, medial collateral ligament sprain, lateral
collateral ligament sprain, and unspecified left knee sprain. On December 12, 1989 appellant
underwent an authorized left knee arthroscopic surgery. In June 1990 he returned to work in a
part-time capacity. On September 9, 1990 appellant stopped work completely and was paid wageloss compensation on the periodic rolls. On September 10, 1990 and April 30, 1991 he underwent
additional authorized left knee arthroscopic surgeries and on May 8, 1998 he underwent an
authorized left knee patellectomy. On August 27, 2001 OWCP found that appellant could perform
the duties of a check cashier and reduced his compensation to reflect his wage-earning capacity in

2

5 U.S.C. § 8115(a); see Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

3

Hayden C. Ross, 55 ECAB 455, 460 (2004).

4

Id.

5

The Board has held that, when a wage-earning capacity determination has been issued and appellant submits
evidence with respect to disability from work, OWCP must evaluate the evidence to determine if modification of
wage-earning capacity is warranted. Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB
552 (2004).
6

Sue A. Sedgwick, 45 ECAB 211 (1993).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Wage-Earning Capacity, Chapter
2.1501.3(a) (June 2013).
8

Id.

9

Darletha Coleman, 55 ECAB 143 (2003).

10

W.W., Docket No. 09-1934 (issued February 24, 2010); Gary L. Moreland, 54 ECAB 638 (2003).

5

that job. In its May 18, 2016 and May 2, 2017 decisions, it found that he had not established a
basis to modify the LWEC determination.
After OWCP found that appellant could perform the duties of a check cashier, the pertinent
medical issue is whether there had been any change in his condition that would render him unable
to perform those duties.11 For a physician’s opinion to be relevant on this issue, the physician must
address the duties of the constructed position.12
On April 11, 2016 appellant filed a notice of recurrence as of October 16, 1989 and stated
that his left leg had been partially amputated. He asserted that in 2012 he developed blood clots
in his left leg and an unsuccessful left leg bypass required he undergo a left leg amputation above
the knee. Appellant contends that the doctors attributed the blood clots to the 1989 work injury to
his left knee and the multiple related surgeries. The Board finds that the record does not contain
medical evidence establishing that his accepted work-related conditions, left knee meniscus tear,
chondromalacia patella, medial collateral ligament sprain, lateral collateral ligament sprain, had
materially changed that would render him unable to perform the check cashier duties.
On January 15, 2013 Dr. Wolf diagnosed traumatic amputation of the left leg above the
knee. In a January 15, 2013 work capacity evaluation, he noted that appellant had four prior left
knee surgeries and was waiting for a total knee replacement and developed blood clots and vascular
insufficiency. Dr. Wolf noted that appellant was disabled due to lumbar disc disease, bilateral hip
replacements and partial left leg amputation. However, he does not explain how the accepted
conditions worsened such that appellant was unable to perform the duties of a cashier.
Additionally, Dr. Wolf related appellant’s disability to conditions not accepted as employment
related,13 including lumbar disc disease, bilateral hip replacements and partial left leg amputation.
He further failed to address the job duties of the check cashier position or provide a rationalized
medical opinion explaining how residuals of the accepted conditions had materially changed such
that he no longer could perform check cashier duties. Thus, this evidence is insufficient to show
a material change in the nature and extent of the injury-related condition.
Dr. Wolf’s earlier reports from July 1, 2002 to August 7, 2012, do not establish a material
change in the accepted conditions such that appellant would not be able to perform the duties of
the constructed check cashier position. He noted that the accepted injuries limited appellant’s
ability to squat, kneel, stand or walk, but the check cashier job was sedentary and did not require
stooping, kneeling, squatting, or prolonged walking or standing. In December 6, 2011 to August 7,
2012 reports, Dr. Wolf noted arthritis in the patellofemoral joint which he attributed to appellant’s
former employment. However, OWCP did not accept left knee arthritis as causally related to
appellant’s October 11, 1989 work injury.14 Dr. Wolf has not otherwise provided sufficient
medical rationale addressing how appellant’s accepted left knee meniscus tear, chondromalacia
11

Phillip S. Deering, 47 ECAB 692 (1996).

12

Id.

13

See Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not accepted or approved
by OWCP was due to an employment injury, he bears the burden of proof to establish that the condition is causally
related to the employment injury).
14

Id.

6

patella, medial collateral ligament sprain, lateral collateral ligament sprain and unspecified left
knee sprain, changed preventing him from performing the duties of the check cashier position.15
On January 13, 2014 Dr. Junkin noted appellant’s amputation and diagnosed failed
vascularization of the left leg above the knee. He advised that appellant could not stand for eight
hours or climb steps due to the amputation. However, Dr. Junkin offered diagnoses of conditions
not accepted as employment related16 in asserting that appellant was totally disabled from work.
His opinion does not address the job duties of the check cashier position or provide a rationalized
medical opinion explaining how residuals of the accepted conditions had materially changed such
that he not perform the duties of a check cashier. Thus, this evidence does not show a material
change in the nature and extent of the injury-related condition. Similarly Dr. Kamyab, on
January 15, 2015, noted that appellant was totally disabled due to his left leg amputation.
However, this does not establish a material change in appellant’s accepted conditions as
Dr. Kamyab attributes his disability to the left knee amputation not accepted by OWCP as being
employment related. Dr. Kamyab did not address how appellant’s accepted conditions prevented
him from performing the sedentary duties of a check cashier.
In reports dated January 20 and April 1, 2016, Dr. Sabalaske opined that appellant had a
left knee amputation due to complications from a blood clot in his left leg. He noted that appellant
was totally disabled. On March 31, 2017 Dr. Sabalaske opined that appellant had a left above the
knee amputation which was in part due to damage sustained to the left knee after multiple
arthroscopic surgeries. He noted that appellant developed blood clots in the left knee from the
work injury which left him totally disabled. However, these reports are insufficient to establish a
material change in appellant’s accepted conditions as Dr. Sabalaske attributes appellant’s
disability to left knee amputation which was not accepted by OWCP as being employment
related.17 Further, Dr. Sabalaske did not specifically address the duties of a check cashier or
explain any change in appellant’s injury-related condition that would render her unable to perform
the position of accounting clerk. His report is insufficient to meet appellant’s burden of proof.
Reports from Dr. Winkler dated September 1 to 7, 2012, are of limited probative value as
he failed to address appellant’s disability due to his work-related injury.18
The Board finds that there is no medical evidence which establishes a material change in
appellant’s employment-related condition such that a modification of OWCP’s LWEC
determination would be warranted. Appellant also did not otherwise establish a basis for
modification by submitting evidence establishing that the original rating was in error, or that he
had been retrained or otherwise vocationally rehabilitated. Appellant has, therefore, not met his
burden of proof.
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

See supra note 13.

17

See supra note 13.

18
A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

7

On appeal appellant references a workers’ compensation physician who indicated that
multiple surgeries could cause blood clots to develop in the knee. He indicated that he had no
choice but to have his left leg amputated. The Board notes that appellant has not submitted
sufficient evidence to support modification of the August 27, 2001 LWEC determination. As
noted, modification of the LWEC determination is not warranted as appellant failed to establish a
material change in the nature and extent of the injury-related condition, that he has been retrained
or otherwise vocationally rehabilitated or that the original determination was erroneous.
Appellant’s physicians did not provide sufficient rationale to explain why appellant had a material
change in the nature and extent of the injury-related conditions. Consequently, appellant has failed
to carry his burden of proof to establish modification of the LWEC determination.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that modification
of his August 27, 2001 LWEC determination is warranted.
ORDER
IT IS HEREBY ORDERED THAT the May 2, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 18, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.U., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-0934
Issued: October 14, 2015

Case Submitted on the Record

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

JURISDICTION
On March 17, 2015 appellant filed a timely appeal from a February 23, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a cervical condition
causally related to a November 16, 2014 employment incident, as alleged.
On appeal, appellant contends that the evidence he submitted was sufficient to establish a
causal relationship and argues that OWCP erred in finding that the lifting incident occurred two
months prior to the filing of his claim.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 14, 2015 appellant, a 55-year-old special agent, filed a traumatic injury claim
(Form CA-1) alleging that he sustained an injury in the performance of duty on November 16,
2014 when changing a flat tire on the rear passenger side of his government-issued vehicle. He
stated that he changed the tire on a Sunday, and the following Monday morning he noted a loss
of sensation in the fingertips of his right hand. On Monday evening, appellant began to
experience pain in his shoulder, upper back, and neck. On the claim form, the employing
establishment noted that the injury was sustained in the performance of duty, but was not
reported within 30 days following the incident.
In a January 16, 2015 letter, OWCP notified appellant of the deficiencies of his claim and
afforded him 30 days to submit additional evidence and to respond to its inquiries.
Appellant submitted a January 30, 2015 narrative statement and medical bills for
radiological services rendered on December 1, 2014 and a magnetic resonance imaging (MRI)
scan on December 8, 2014.
In a January 27, 2015 report (Form CA-20), Dr. Ted Dunn, a Board-certified family
practitioner, stated that appellant had pain in his neck radiating to his right hand and diagnosed
cervical spondylosis/canal stenosis. He found loss of disc space at C5-6 and indicated that an
MRI scan showed canal stenosis at C5-6. Dr. Dunn checked a box “yes” indicating his support
for causal relationship, noting that the injury occurred while appellant was on duty and opined
that he had “some preexisting disease with symptoms triggered by lifting” at work.
By decision dated February 23, 2015, OWCP denied appellant’s claim finding that the
medical evidence was not sufficient to establish a causal relationship between his cervical
condition and the November 16, 2014 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury3 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.4

2

Id.

3

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
4

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he actually experienced the employment incident at the time,
place, and in the manner alleged. Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury. An employee may establish that the employment incident occurred as alleged
but fail to show that his or her condition relates to the employment incident.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. 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.6
ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish a cervical
condition causally related to the November 16, 2014 employment incident, as alleged.
OWCP accepted that the employment incident of November 16, 2014 occurred at the
time, place, and in the manner alleged. The issue on appeal is whether appellant’s cervical
condition resulted from the November 16, 2014 employment incident. Appellant argues that
OWCP erred in finding that the lifting incident occurred two months prior to the filing of his
claim. The Board finds, however, that OWCP did in fact properly find the November 16, 2014
incident occurred approximately two months prior to January 14, 2015, which was the date
appellant filed his claim for a traumatic injury. On the claim form, the employing establishment
noted that the injury was sustained in the performance of duty, but was not reported within 30
days following the incident.
In a Form CA-20 report dated January 27, 2015, Dr. Dunn stated that appellant had pain
in his neck radiating to his right hand and diagnosed cervical spondylosis/canal stenosis. He
found loss of disc space at C5-6 and indicated that an MRI scan showed canal stenosis at C5-6.
Dr. Dunn noted that the injury occurred while appellant was on duty and opined that appellant
had “some preexisting disease with symptoms triggered by lifting” at work. Although Dr. Dunn
presented a diagnosis of appellant’s condition and stated that results of an MRI scan
demonstrated canal stenosis at C5-6, he did not adequately address how this condition and these
findings were causally related to the November 16, 2014 employment incident. Dr. Dunn failed
to provide a rationalized opinion explaining how changing a tire on November 16, 2014 caused
or aggravated appellant’s cervical condition. The Board has held that the mere fact that a
condition manifests itself during a period of employment does not raise an inference that there is

5

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

6

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

3

a causal relationship between the two.7 Furthermore, in the January 27, 2015 form report,
Dr. Dunn checked a box “yes” indicating his support for causal relationship. The Board has
held, however, that without further explanation or rationale, a checked box is insufficient to
establish causation.8 Thus, the Board finds that the report from Dr. Dunn is insufficient to
establish that appellant sustained an employment-related injury.9
Appellant further submitted a January 30, 2015 narrative statement and medical bills for
radiological services rendered on December 1, 2014 and an MRI scan on December 8, 2014.
These documents do not constitute competent medical evidence as they do not contain rationale
by a physician relating his disability to his employment.10 As such, the Board finds that
appellant did not meet his burden of proof with these submissions.
As appellant has not submitted any rationalized medical evidence to support his
allegation that he sustained an injury causally related to a November 16, 2014 employment
incident, he has failed to meet his burden of proof to establish a claim for compensation.
Appellant contends on appeal that the evidence he submitted was sufficient to establish a
causal relationship. For the reasons stated above, the Board finds that appellant has not met his
burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a cervical
condition causally related to a November 16, 2014 employment incident, as alleged.

7

See Joe T. Williams, 44 ECAB 518, 521 (1993).

8

See Debra S. King, 44 ECAB 203 (1992); Salvatore Dante Roscello, 31 ECAB 247 (1979).

9

See C.W., Docket No. 14-1114 (issued August 25, 2014) (where the claimant, a correctional officer alleging that
he injured his lower back while responding to a call for assistance, submitted medical evidence and the Board found
that a Form CA-20 duty status report from the his treating physician which supported causal relationship with a
check mark was insufficient to establish the claim without further explanation or rationale).
10

See 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N.
Fassi, 42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).

4

ORDER
IT IS HEREBY ORDERED THAT the February 23, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 14, 2015
Washington, DC

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

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

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

5