United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.A., Appellant
and
DEPARTMENT OF HOUSING & URBAN
DEVELOPMENT, HEADQUARTERS,
Washington, DC, Employer
__________________________________________

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

Docket No. 14-1626
Issued: May 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 24, 2014 appellant filed a timely appeal from a February 4, 2014 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.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss benefits effective June 7, 2013; and (2) whether appellant has established continuing
disability caused by residuals of her accepted conditions after the termination of her wage-loss
benefits.

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5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On August 14, 2009 appellant, then a 39-year-old staff assistant, slipped on the floor and
fell on her left knee, and fell on it again as she tried to stand. On September 17, 2009 OWCP
accepted the claim for a sprain of the distal tibiofibular ligament of the left ankle, a sprain of the
lateral collateral ligament of the left knee, and a contusion of the left knee and lower leg. On
December 10, 2009 it accepted the additional condition of a tear of the lateral meniscus of the
left knee.
In a report dated September 4, 2009, Dr. Philip B. Bovell2 noted that appellant had
slipped and fallen on a waxy floor at work. He stated that when she hit her knee swelling
occurred immediately. Appellant twisted her ankle and knee at the same time. Dr. Bovell noted
that she had been transported to an emergency room where x-rays were taken, noting no
fractures. He diagnosed appellant with a left ankle sprain involving the anterior tala-fibula
ligament and a left knee sprain with strain and effusion.
In a report dated September 28, 2009, Dr. Daniel R. Ignacio, Board-certified in physical
medicine and rehabilitation, stated that, after the incident of August 14, 2009, appellant had acute
pain along the left knee and left leg, for which she was treated. He noted that the pain had not
resolved and that she had developed pain along her lower back, along with numbness, and
weakness along the left leg. Dr. Ignacio diagnosed appellant with acute left knee strain with
probable internal derangement, peroneal neuropathy, and lumbar strain syndrome. He noted that
“With regard to the lumbar strain, this has been related to the injury to the left leg with abnormal
gait and the constant giving way of the left leg and therefore the lumbar pain is consequential to
the work-related conditions of August 14, 2009.”
On October 21, 2009 appellant returned to work for four hours per day with restrictions.
In a nurse report dated October 22, 2009, a field nurse stated that she contacted
appellant’s treating physician, who noted that he did not want appellant to drive 45 minutes to
his office three times per week for physical therapy, as her knee was quite swollen. The nurse
made arrangements for her to be transported.
On August 24, 2009 Dr. William O’Grady, Board-certified in diagnostic radiology,
interpreted the results of a magnetic resonance imaging (MRI) scan of appellant’s left knee. He
stated impressions of grade 2 and 3 signal changes in the anterior horn of the lateral meniscus
with a questionable subtle tear at its central attachment; mild degenerative arthritis at the
patellofemoral compartment and slight degenerative changes in the femorotibial compartments;
small joint effusion; a slight subcutaneous edema anterior to the distal attachments of the
iliotibial band; and a questionable minimal popliteal cyst.
In a report dated October 23, 2009, Dr. Bovell stated that an MRI scan of appellant’s left
knee showed a meniscus tear over the lateral aspect, degenerative joint disease over the fibular

2

Dr. Bovell’s Board certification and medical specialty could not be confirmed with the American Board of
Medical Specialties or the American Osteopathic Association.

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tibia joint surface and the surfaces of both femoral joints, and a popliteal cyst.
electromyographic study revealed L5 radiculopathy and left peroneal neuropathy.

An

On November 6, 2009 Dr. O’Grady interpreted the results of x-rays of appellant’s left
ankle as unremarkable with no obvious fracture, dislocation, bone lesion, or joint effusion.
Appellant underwent arthroscopic surgery on January 8, 2010, which had previously been
approved by OWCP. In an operative report, Dr. Bovell noted:
“Examination of the knee showed anterior cruciate was essentially intact.
Examination of the patella showed that there was some fibrillation under the
patellar surface. This was subsequently shaved. Examination of the medial
meniscus showed that it was intact. Examination of the lateral meniscus showed
that there was a tear in the periphery of midsection of the meniscus. This was
subsequently shaved and debrided and debridement was done of the tissue around
this area. There was some condylar defect seen in this area on the lateral aspect
of the femoral condyle. This area was subsequently shaved. Further, examination
of the knee showed that it was unremarkable.”
There were no complications and appellant was discharged on the same day. Dr. Bovell
placed her under temporary total disability following the surgery. Appellant underwent physical
therapy, which was also approved by OWCP.
In a report dated January 28, 2010, Dr. Bruce E. Perry, an orthopedic surgeon, evaluated
appellant and diagnosed her with chronic left knee pain with instability with a lateral meniscus
tear. He noted that she injured her left knee stepping in a pothole in her neighbor’s yard in late
October or early November 2009.
By letter dated March 29, 2010, OWCP informed appellant that she was to be placed on
the periodic rolls for compensation effective March 1, 2010.
Appellant returned to work four hours per day with restrictions as of April 12, 2010. She
was released to full-time work as of June 12, 2010, with restrictions of no more than two hours
of lifting, one hour of climbing, and no squatting or kneeling
On October 13, 2010 appellant filed a claim for recurrence of disability for the prior
October 4 through 22, 2010.
In a note dated October 14, 2010, Dr. Bovell noted that appellant was still experiencing
some effusions, varying in size, and intensity. He noted that she recently started walking with a
limp due to aggravation that occurred at work. Dr. Bovell stated that appellant was recently off
work from October 4 through 12, 2010 due to this discomfort.
On October 18, 2010 OWCP advised appellant that the evidence of record was
insufficient to establish that her recurrence was related to her original work injury. It noted that
she last returned to regular duty on June 12, 2010 and requested that she submit additional
medical information in support of her claim for disability.

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In a record of a telephone conversation dated November 8, 2010, a claims examiner noted
that appellant stated that she was off work for her back, which she believed was a consequential
condition to her knee injury. She stated that she would need to review appellant’s case and
forward to an OWCP medical adviser to determine whether her back condition was related to the
original work injury. On November 8, 2010 OWCP forwarded appellant’s case file to an OWCP
medical adviser, who noted in a report dated November 8, 2010 that there was a causal
relationship between her original work injury and aggravation of a lumbosacral spine condition.
On November 9, 2010 OWCP accepted the additional condition of thoracic or
lumbosacral neuritis or radiculitis. It listed appellant’s other accepted conditions as a sprain of
the distal tibiofibular ligament of the left ankle; a sprain of the lateral collateral ligament of the
left knee; a contusion of the left knee and lower leg; a current tear of the lateral meniscus of the
left knee; localized primary osteoarthritis of the lower left leg; a left popliteal synovial cyst; and
joint effusion of the left lower leg.
By decision dated November 9, 2010, OWCP accepted appellant’s recurrence.
On January 10, 2011 appellant underwent a knee injection of DepoMedrol and Xylocaine
with Dr. Ignacio.
In a report dated March 28, 2011, Dr. Ignacio stated that appellant’s condition had not
resolved and that she remained symptomatic. He noted that the delay in her recovery was related
to severe progressive left knee dysfunction with associated patellofemoral dystrophy.
Dr. Ignacio stated that appellant remained totally disabled to work and that vocational
rehabilitation was not appropriate at the time. Appellant continued to submit periodic medical
reports documenting that her condition still existed and that she remained disabled from work.
In a record of a telephone discussion dated January 17, 2012, appellant informed a claims
examiner that the employing establishment had terminated her position. On January 19, 2012
she called back and a claims examiner informed her that by personnel guidelines, after one year
the employing establishment could terminate her position, but that she would continue to receive
compensation on the periodic rolls until OWCP received medical evidence supporting her ability
to perform some type of work.
Appellant underwent intramuscular neural enhancement therapy on February 9, 2012
with Dr. Ignacio.
In a report dated November 8, 2012, Dr. Ignacio diagnosed appellant with status post
surgery to the left knee with residual pain; severe progressive internal derangement of the left
knee; chronic right peroneal neuropathy; chronic lumbar disc syndrome with chronic lumbar
radiculopathy; and complex regional pain syndrome. He stated that she remained totally unable
to work. Dr. Ignacio recommended that appellant be given home care assistance for about three
hours a day for at least three times per week for the next 8 to 12 weeks to help assist her with
personal care and daily activities.
On November 26, 2012 OWCP referred appellant to Dr. Kevin Hanley, a Board-certified
orthopedic surgeon, for evaluation of her extent of disability, and as to whether she continued to
suffer residuals from the incident of August 14, 2009.
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By letter dated December 5, 2012, OWCP asked Dr. Hanley to address the additional
question of whether the requested home care assistant was connected to, necessary, or warranted
in the treatment of the work injury of August 14, 2009.
In a report dated December 3, 2012, Dr. Verne K. Kemerer, a Board-certified diagnostic
radiologist, examined the results of an MRI scan of appellant’s left knee. He found a small
effusion of the extensor mechanism with mild prepatellar edema; intact anterior and posterior
cruciate ligaments; normal medial and lateral compartments; normal collateral ligaments; and a
normal popliteal fossa. Dr. Kemerer stated his impression of a small effusion.
On December 13, 2012 Dr. Hanley submitted his second opinion evaluation of appellant.
He noted:
“[Appellant] underwent surgery on January 8, 2010, which was an arthroscopic
surgery. The findings at the time of surgery were rather minimal. A peripheral
tear of the lateral meniscus was simply debrided away. There was no ligamentous
injury. There are minimal changes on the articular cartilage of either the femoral
condyle or the patella. However, [appellant] has been treated by Dr. Ignacio
continuously, very frequently, over the last three-and-a-half years, and at the
present time, based on my review of the medical records, is absolutely no better
than she was when she initially had treatment; probably worse.”
On examination, Dr. Hanley noted that there were absolutely no significant objective findings
related to appellant’s left knee, though she walked with a limp. Relating to her back, he noted
that it was straight without kyphosis, scoliosis or spasm, and no thick limitation of motion was
evident. Dr. Hanley noted that appellant volitionally limited motion due to discomfort. He
stated:
“First of all, a summary comment in my mind is appropriate. [Appellant]
currently does not show signs of a significant and completely disabling condition
of the musculoskeletal system. The original injury was clearly an injury to the
knee with soft tissue injuries possibly to the back and ankle, but which left no
significant substantive change in the anatomic structures. I believe that the
treatment rendered to [appellant] by Dr. Bovell was quite appropriate, the findings
at the time of surgery were rather minimal, and one would anticipate a complete
recovery after this particular finding. [Appellant] has been managed very
inappropriately over the last three years by Dr. Ignacio, multiple and frequent
visits to the [physician’s] that are unnecessary and accomplished absolutely
nothing, other than to reconfirm her roll as a disabled individual.”
Dr. Hanley stated that a home care assistant was not necessary noting:
“I agree that an injury to the left knee did occur by direct cause. I do not believe
that the back shows any reasonable problems from the incident and requires no
further treatment. Treatment for the knee would simply be that of observation and
pain management. Pain management should be with nonnarcotic medication only
as this is a nonmalignant condition. In my mind, the only period of disability in

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this particular case would have been for about six weeks after the operative
procedure at which time [appellant] should have been undergoing physical
therapy. Physical limitations at this time are no standing or walking greater than
six hours during the course of an eight[-]hour day, no repetitive kneeling or
squatting, no climbing. I believe that [appellant] is perfectly capable of
performing the duties as described in her prior job. I do not believe that
[appellant] is a candidate for vocational rehabilitation, as I do not believe that it is
necessary. I do not believe that she has an impact in any of her activities of daily
living.”
On January 22, 2013 OWCP proposed to terminate appellant’s compensation for wage
loss, finding that the weight of the medical evidence established no continuing residuals of her
work-related conditions.
By letter dated February 4, 2013, the employing establishment offered appellant her prior
position as a staff assistant. It noted that the limitations as outlined by Dr. Hanley would not
preclude her from returning to work in a full-time, full-duty capacity as her job had no special
physical requirements and was sedentary in nature.
On January 31, 2013 Dr. Ignacio performed an ultrasound of appellant’s left knee. He
noted an abnormal ultrasound consistent with chronic tendinopathy of the patellar tendon; an
abnormal signal along the collateral ligament indicative of chronic strain of the collateral
ligament with no frank tear; and an abnormal lateral meniscus suggestive of chronic denervation
and partial tear with early calcification. In a report of the same date, Dr. Ignacio stated that,
based on prior diagnostic studies, appellant continued to have residuals of her work-related
injury.
Dr. Ignacio noted:
“With regard to a report of Dr. Hanley, which is the basis for the proposal to
terminate compensation for wage loss for the above medical conditions, I found
this report to be interesting but rather erroneous. For one thing, Dr. Hanley
indicated that there was no ligamentous injury. This is an incorrect conclusion
reflective of the poor judgment on the part of this physician. [Appellant] had
extensive injury to the left knee and in fact even had surgeries and multiple MRI
[scans] demonstrating the significant ligamentous injury and tear of the meniscus
and even significant strain/tear of the cruciate ligament and the collateral
ligament, and these have been completely missed by Dr. Hanley, who did indicate
that there is tear of the lateral meniscus and that surgery was indicated....
Dr. Hanley’s examination simply [stated] that everything is normal, and yet [she]
does have multiple scars and has limited movement and has significant tenderness
along the knee, which have been confirmed by the MRI [scan] and other objective
studies.... I disagree with Dr. Hanley that no significant substantive changes in
the anatomic structures are involved.... I disagree with [him] that the injury was
rather minimal and that the tendon anticipates a complete recovery after this
particular finding. [Appellant’s] MRI [scans] are completely abnormal, in fact
showing significant damage to the knee including chronic quadriceps and patellar

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tendon injury, tear of the cruciate ligament, and torn meniscus. These MRI
[scans] were performed on March 9, 2011 and December 3, 2012 demonstrating
continuing edema, joint effusion, and injury to the left knee. The recent
ultrasound again confirmed the abnormal findings with early calcification of the
lateral collateral ligament indicative of the chronic ongoing strain to the torn
lateral meniscus.”
In a report dated February 12, 2013, Dr. Georgia Cu, Board-certified in family medicine,
examined appellant and stated an impression of status post surgery to the left knee with residual
pain; severe progressive internal derangement of the left knee; chronic right peroneal
neuropathy; chronic lumbar disc syndrome with chronic lumbar radiculopathy; and complex
regional pain syndrome.3 She stated that appellant remained unable to work.
On February 27, 2013 appellant accepted the offer of employment from the employing
establishment, but noted that she only accepted under duress.
By letter dated April 30, 2013, OWCP informed appellant that it had determined a
conflict in the medical evidence existence and scheduled a referee examination with Dr. Richard
Cirillo, a Board-certified orthopedic surgeon.
On May 2, 2013 Dr. Cu reexamined appellant and noted the same diagnoses as in her
report of February 12, 2013. She stated that appellant continued to be unable to work.
In a diagnostic report dated May 6, 2013, Dr. Jorge M. Garciala, a Board-certified
radiologist, examined the results of x-rays of appellant’s bilateral knees. He noted bilateral small
joint effusions, with no fracture, or joint space narrowing.
In a report dated May 10, 2013, Dr. Philip S. Man, a Board-certified radiologist,
examined the results of an MRI scan of appellant’s left knee. He noted mild chondromalacia at
the lateral and patellofemoral compartments, with no meniscal or ligamentous tears.
On May 24, 2013 Dr. Cirillo reported regarding his independent medical examination.
On examination, he found a normal lumbar spine without pain and a full range of motion; and a
left knee with diffuse pain. Dr. Cirillo stated:
“Based on the information available to me, [appellant] should be able to return to
work as an administrative assistant. I do not recommend that she perform any
lifting more than 20 pounds [and] she should be allowed to change her position
[and] no prolonged walking performed. On my exam[ination], I see no functional
deficits [and] bilaterally [appellant’s] thigh/calf circumferences are approximately
equal. If indeed a significant nerve or functional deficit was present, this should
be different.... I do feel that the diagnosed condition [of a tear of the meniscus] is
medically connected to the work injury by direct cause.... I feel that total
disability due to this work-related condition was from the time of injury to [six]
weeks after [appellant’s] surgery on January 8, 2010. [Appellant] should have
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Dr. Cu and Dr. Ignacio are partners in the same medical office.

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been able to return to her previous desk work status at that time.... I do not feel
that vocational rehabilitation is needed/indicated at this point. [Appellant] does
appear to still have some residuals of the injuries based upon her subjective
complaints.
Her subjective complaints however are difficult to support
objectively.”
He stated that appellant had reached maximum medical improvement (MMI).
In a decision dated June 7, 2013, OWCP terminated appellant’s wage-loss benefits
effective on that date, based upon Dr. Cirillo’s report of May 24, 2013. It noted that her medical
benefits were not terminated.
In a report dated June 6, 2013, Dr. Cu noted that appellant had recently been diagnosed
by a Dr. Imelda Cabalar with rheumatoid arthritis. She examined appellant and stated that she
remained unable to work.
On June 14, 2013 Dr. Bovell reviewed the reports of Drs. Hanley and Cirillo. He stated
that he could not see how crepitation in appellant’s left knee was missed by both physicians.
Dr. Bovell stated, “It appears that Dr. Cirillo’s report is a duplicate of Dr. Hanley’s report.” He
further noted, “By accumulating [appellant’s] complaints, all the findings from the MRI [scan]
and x-ray and the clinical treatment that was offered by the [i]ndependent [physician’s], clearly
shows that there is reasonable cause to conclude that [appellant’s] condition will get worst over
time and the accepted diagnoses are definitely a result of the fall sustained August 14, 2009.”
On July 3, 2013 appellant requested an oral hearing before an OWCP hearing
representative.
In a report dated June 17, 2013, Dr. Ignacio examined appellant and responded to
Dr. Cirillo’s report of May 24, 2013. He stated:
“With regard to a letter of U.S. Department of Labor indicating that [appellant’s]
workman compensation benefits will be terminated based on the report of
Dr. Cirillo dated May 24, 2013. I reviewed the report of Dr. Cirillo who outlined
the history of the injury that she sustained to the left knee and to the lumbar spine
with the lumbar neuritis and the left knee strain. Dr. Cirillo described the torn
lateral meniscus as well as the injury to the femoral condyle as well as the
accepted osteoarthritis of the left knee. [He] also outlined the continued pain to
the left knee as well as to the lower back and also the symptoms of weakness
particularly along the left leg. Dr. Cirillo also outlined the severity of the lumbar
pain which is rather severe, constant with associated symptoms of the numbness,
weakness particularly along the left leg, and the joint stability of the left knee.
These are all consistent with [appellant’s] condition.... Dr. Cirillo indicated that
[her] disability was from the time of surgery, that is, January 8, 2010 up to six
weeks after surgery. However, [appellant] does have a significant complex injury
not only to the knee but also to the lumbar spine and because of this complex
medical condition she is not able to return to work from the time she had surgery

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on January 8, 2010 up to the present time.” Appellant continued to submit reports
from Dr. Ignacio documenting continued pain in the left knee.
In a diagnostic report dated July 20, 2013, Dr. Kemerer examined the results of an MRI
scan of appellant’s lumbar spine. He stated an impression of a normal lumbar spine.
In a record of a telephone conversation dated September 16, 2013, appellant noted that
the employing establishment had issued a job offer in February 2013, but had not issued her one
since her compensation was terminated. The claims examiner explained that, because her
compensation was terminated due to her ability to work, it was up to the employing
establishment to determine whether work could be offered.
By letter dated October 18, 2013, OWCP informed appellant that a hearing would be held
with regard to her case. The hearing was held on November 21, 2013. Appellant testified that
she continued to have stiffness and pain in her left knee. She stated that Drs. Hanley and Cirillo
had examined her for only 10 minutes in their respective examinations. Appellant noted that she
was still off work, and did not attend physical therapy because she could not afford to drive to it
without an income. She stated that she could not perform sedentary work because walking was
very difficult. The hearing representative stated that appellant would consider additional current
reports from appellant’s physicians.
In a report dated December 11, 2013, Dr. Ignacio stated, “[Appellant] does suffer from
increasing chronic pain mostly in her back and her left knee since she was injured at work on
August 14, 2009. In fact, she has had extensive medical treatments of surgery to the left knee,
chronic tear of the lateral meniscus as well as the lateral femoral condyle, and patellar articular
fibrillation.” He examined her and stated that she was not able to return to work.
By decision dated February 4, 2014, the hearing representative affirmed the decision of
June 7, 2013. She found that the medical reports from Drs. Ignacio and Bovell concerning
ongoing disability were not based on objective findings but instead relied on subjective pain
complaints. The hearing representative stated that OWCP properly afforded the weight of the
evidence to the referee physician Dr. Cirillo, as his opinion fully discussed appellant’s history of
injury, medical treatment, and diagnostic tests, as well as providing a thorough medical rationale
for his opinion.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.4 After it has determined that an employee has disability causally
related to his or her federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.5

4

Gewin C. Hawkins, 52 ECAB 242, 243 (2001); Alice J. Tysinger, 51 ECAB 638, 645 (2000).

5

Mary A. Lowe, 52 ECAB 223, 224 (2001).

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FECA provides that, if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make the examination.6 The implementing regulations state that if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee or impartial examination and OWCP
will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.7
To be of probative value, a medical opinion must be based on a complete factual and
medical background, must be of reasonable medical certainty, and be supported by medical
rationale.8 Medical rationale is a medically sound explanation for the opinion offered.9
It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual, and medical background, must be given special weight.10
ANALYSIS -- ISSUE 1
In the present case, OWCP found that a disagreement existed between Drs. Ignacio, Cu,
and Bovell, the attending physicians, and Dr. Hanley, the second opinion physician, as to
whether appellant continued to be disabled due to the June 7, 2013 employment injury.
Dr. Hanley found an essentially normal examination with no objective evidence of residuals of
the employment injury. Drs. Ignacio, Cu, and Bovell indicated that appellant continued to have
residuals of her employment injury that resulted in her disability.
In accord with 5 U.S.C. § 8123(a), OWCP properly referred the case to Dr. Cirillo for a
referee examination and an opinion as to whether appellant continued to have employmentrelated residuals which caused disability. In a report dated May 24, 2013, Dr. Cirillo provided a
history, results on examination, and reviewed medical evidence. Based on an accurate factual
and medical background, he opined that appellant did not have any objective evidence of
residuals of the employment injury, but had residuals based upon subjective complaints.
Dr. Cirillo found no evidence of functional deficits and stated, “I feel that total disability due to
this work-related condition was from the time of injury to 6 weeks after her surgery on
January 8, 2010. She should have been able to return to her previous desk work status at that
time.” Dr. Cirillo concluded that appellant had reached MMI.

6

5 U.S.C. § 8123(a).

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20 C.F.R. § 10.321.

8

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

9

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641
(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound, and logical).
10

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

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Drs. Ignacio and Bovell submitted reports purporting to find problems in the medical
reasoning of Dr. Cirillo. Dr. Bovell stated, “It appears that Dr. Cirillo’s report is a duplicate of
Dr. Hanley’s report,” and claimed that he could not understand how Dr. Cirillo missed
crepitation in appellant’s knee. Dr. Ignacio stated:
“Dr. Cirillo indicated that [appellant’s] disability was from the time of surgery,
that is, January 8, 2010 up to six weeks after surgery. However, [appellant] does
have a significant complex injury not only to the knee but also to the lumbar spine
and because of this complex medical condition she is not able to return to work
from the time she had surgery on January 8, 2010 up to the present time.”
However, Dr. Cirillo reported his findings based on the physical examination he performed. A
review of the May 24, 2013 report does not establish that his opinion was based on a single
examination finding. As noted, Dr. Cirillo provided results on examination that reported some
diffuse pain. He based his opinion on all examination results, diagnostic studies, and medical
history. Dr. Cirillo explained that appellant’s disability resolved six weeks after her surgery on
January 8, 2010 and that her current symptoms were subjective in nature. He examined her
lumbar spine and left leg and found no significant objective signs of her conditions. This
represents a medically sound explanation of the opinion offered.
The Board, therefore, finds that Dr. Cirillo provided a rationalized medical opinion in this
case. As a referee physician, Dr. Cirillo’s report is entitled to special weight. The Board finds
that OWCP met its burden of proof to terminate wage-loss compensation effective June 7, 2013.
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.
LEGAL PRECEDENT -- ISSUE 2
It is well established that, after termination or modification of benefits, clearly warranted
on the basis of the evidence, the burden for reinstating compensation benefits shifts to appellant.
In order to prevail, appellant must establish by the weight of the reliable, probative, and
substantial evidence that she had an employment-related disability which continued after
termination of compensation benefits.11
ANALYSIS -- ISSUE 2
Following the termination of her wage-loss benefits, appellant submitted reports from
Drs. Ignacio, Bovell, and Cu. With respect to the termination of compensation as of June 7,
2013, as noted above Dr. Cirillo represented the weight of the evidence. Additional reports from
a physician on one side of the conflict that is properly resolved by a referee specialist are
generally insufficient to overcome the weight accorded the referee specialist’s report or to create
a new conflict.12 Drs. Ignacio, Bovell, and Cu stated that appellant continued to have disability
11

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

12

See Harrison Combs, Jr., 45 ECAB 716 (1994); Dorothy Sidwell, 41 ECAB 857 (1990).

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resulting from her employment injury, but did not provide medical opinions supported by
medical rationale establishing a continuing employment-related condition or disability after
June 7, 2013. Appellant therefore did not meet her burden of proof to establish continuing
disability after June 7, 2013.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate wage-loss compensation
effective June 7, 2013. The Board also finds that appellant did not meet her burden of proof to
establish continuing disability after June 7, 2013.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 4, 2014 is affirmed.
Issued: May 13, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
DEPARTMENT OF LABOR, OCCUPATIONAL
SAFETY & HEALTH ADMINISTRATION,
Baltimore, MD, Employer
__________________________________________

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Appearances:
Gordon Reiselt, Esq., for the appellant,
Office of Solicitor, for the Director

Docket No. 09-844
Issued: November 25, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 22, 2008 appellant, through counsel, filed a timely appeal from a
November 28, 2008 merit decision of the Office of Workers’ Compensation Programs. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant sustained an emotional condition as a result of an
October 3, 2008 work incident.
FACTUAL HISTORY
On October 6, 2008 appellant, then a 50-year-old compliance safety and health officer,
filed a traumatic injury claim alleging that as a result of an October 3, 2008 work-related
incident, she sustained a severe exacerbation of her previously diagnosed generalized anxiety
disorder. Specifically, appellant noted that on October 3, 2008 her supervisor, Frank Librich,
called her cell phone and told her that he received her letter dated September 30, 2008 and in a

sarcastic and angry tone yelled at her and demanded that she report to his office on
October 6, 2008. On the claim form, the employing establishment controverted the claim by
stating that the facts were not true, that the supervisor only informed her that she had not
completed all the forms and requested her to come to his office on October 6, 2008 to complete
them. The employing establishment noted that the supervisor’s demeanor was mild mannered,
reserved and soft spoken.
By letter dated October 24, 2008, the Office requested that appellant submit further
information.
In a notarized affidavit by appellant’s attorney dated October 23, 2008, he indicated that
on October 3, 2008 appellant called him and sounded extremely upset. He noted that she was
crying and had great difficulty in conveying her messages to him. After appellant calmed down,
she informed him that her supervisor, Mr. Librich, angrily accused her of trying to bypass using
her sick and annual leave by taking continuation of pay. She stated that Mr. Librich believed
that she could not take continuation of pay because she should have filed a claim for an
occupational disease, not a traumatic injury, in another claim. Appellant stated that Mr. Librich
demanded that she come to his office and complete forms and return her equipment. Appellant’s
attorney indicated that he then called Mr. Librich who indicated that she must come in because
she filled out traumatic injury claims and that all emotional claims were occupational disease
claims. Appellant’s attorney told Mr. Librich that this was incorrect at which point Mr. Librich
told the attorney that he did not know what he was talking about. Mr. Librich insisted that
appellant must use her medical leave and not take continuation of pay. Appellant’s attorney
noted Mr. Librich sounded sarcastic and hostile when discussing appellant’s claims and it was
clear to him that Mr. Librich was extremely upset over the fact that appellant had taken
continuation of pay.
In a statement dated November 2, 2008, Pam Cartwright stated that she has been a friend
of appellant for over 15 years and that on October 3, 2008 appellant called her and indicated that
her supervisor called her in a loud tone of voice and told her she had no right to file for
continuation of pay and demanded that she report to the office on Monday and return field
equipment. She indicated that appellant was so frightened and anxious that she needed to talk to
someone to help her calm down and that she remained relatively distraught for weeks.
Kathleen Clugson also submitted a statement that appellant called her on October 3, 2008 and
was extremely upset and distraught. Appellant told her that Mr. Librich had called her in and
wanted her to bring in all her equipment, as she was not going to be doing any inspections.
Ms. Clugson noted that appellant indicated that her supervisor’s tone was abusive and she was
extremely upset.
Appellant submitted a statement indicating that the other stress in her life was a contested
guardianship proceeding in West Virginia with regard to her elderly mother.
A magnetic resonance imaging (MRI) scan technician submitted a statement indicating
that on October 3, 2008 she was unable to complete the MRI scan on appellant due to her
inability to relax and get her breathing under control.

2

In a statement received by the Office on November 20, 2008, appellant indicated that at
1:00 p.m. on October 3, 2008 she was at Sewickly Valley Hospital awaiting a medical
examination when her supervisor, Mr. Librich, called her on her telephone. She indicated that,
with no salutation or introduction, he said in a sarcastic and aggressive tone, “I saw the letter you
put in my box, along with the CA-1 forms.” Appellant alleged that Mr. Librich said in a
demanding voice that she could not file a Form CA-1, only a Form CA-2. Mr. Librich told her
she will not get continuation of pay because she could not file a CA-1 form. Appellant indicated
that he then told her, “You WILL report to the Office on Monday, October 6 and you WILL
change the CA-1 form to a CA-2 and you WILL then submit the CA-2 form.” (Emphasis in the
original.) She noted that Mr. Librich became louder and more agitated and stated that when she
comes in on Monday, he would meet with her and discuss the matter of her claims. Appellant
noted that Mr. Librich’s tone was loud, angry and aggressive. She said he then stated in an angry
and aggressive tone, “By the way, where is the brand new camera I just gave you? Huh? Where
is it? I want that brand new camera I just gave you. Bring the camera in with you on Monday.
In fact, bring all of your equipment in with you on Monday! I want everything including your
laptop on my desk Monday morning. You are not doing inspections anymore. You are not on
Continuation of Pay and you will need to turn in a leave slip or annual leave for all days not at
work.” Appellant indicated that she could not calm down after the telephone call. She called her
lawyer, Kathy Clugon, Ms. Cartwright, her counselor and her physician. Appellant noted that
her physician indicated that she should not return to work on October 6, 2008 and that her lawyer
suggested that she deliver the equipment over the weekend.
In a decision dated November 28, 2008, the Office denied appellant’s claim because she
had not established a compensable factor of employment.
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.1 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.2
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by employment factors.3 This burden includes the submission of a detailed

1

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

2

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

3

Pamela R. Rice, 38 ECAB 838, 841 (1987).

3

description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.4
Generally, actions of the employing establishment in administrative or personnel matters,
unrelated to the employee’s regular or specially assigned work duties, do not fall within coverage
of the Act. However, where the evidence demonstrates the employing establishment either erred
or acted abusively in the administrative of personnel matters, coverage may 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
As a rule, a claimant’s allegations alone are insufficient to establish a factual basis for an
emotional condition claim.7 Mere perceptions and feelings of harassment or discrimination will
not support an award of compensation. The claimant must substantiate such allegations with
probative and reliable evidence.8
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 record establishes the truth of the matter asserted, the
Office’s decision must be based on an analysis of the medical evidence.9
ANALYSIS
Appellant has filed an emotional claim based on a specific incident, i.e., a telephone
conversation that took place with her supervisor on October 3, 2008. She alleged that, during
this telephone call, her supervisor angrily accused her of trying to bypass her sick leave by taking
continuation of pay and told her she could not file a claim for a traumatic injury as her claim was
for an occupational disease. Appellant further alleged that, during this telephone call, her
supervisor treated her with sarcasm and anger. On the claim form, the employing establishment
indicated that her supervisor’s demeanor was mild mannered, reserved and soft spoken. The
thrust of appellant’s argument is that her supervisor treated her unfairly and that this treatment
caused an aggravation of her previously diagnosed general anxiety disorder. Because she
attributes this emotional condition to the action of her supervisor with regard to administrative

4

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

5

Michael Thomas Plante, 44 ECAB 510 (1993).

6

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

7

L.S., 58 ECAB ___ (Docket No. 0-1808, issued December 29, 2006).

8

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (claimant failed to establish that the incidents or actions which she
characterized as harassment actually occurred).
9

See Normal L. Blank, 43 ECAB 384 389-90 (1992).

4

and personnel matters, i.e., her filing of several compensation claims, her claim, as a general
rule, falls outside the scope of the Act.
As noted above, the Board has recognized an exception for administrative error or abuse,
but appellant must do more than make allegations against management. Appellant must submit
proof that management did in fact commit error or abuse against her. The Board finds that her
allegations are unsupported by substantial evidence. The statements by her friends, the MRI
scan technician and her attorney all deal with what she told them happened and are not
independent corroboration as to what happened on the telephone call. Therefore, there is no
independent evidence that her supervisor acted unreasonably nor is there any independent proof
with regard to the subject matter of the conversation. Although appellant may file a traumatic
injury claim for an emotional condition,10 there is no proof in the record that during this
conversation appellant’s supervisor told her that she could not file a claim for a traumatic injury.
Appellant’s attorney’s statement with regard to his conversation with appellant’s supervisor
indicates that the supervisor told him that appellant must file an occupational disease claim, but
this is not proof of what the supervisor told appellant. Furthermore, there is no evidence as to the
circumstances of the other claims. It is possible that the other claims all involved incidents that
occurred over the course of more than one shift, under which circumstances appellant’s
supervisor would have correctly advised her that these claims were for occupational diseases.11
Moreover, there is no proof that appellant’s supervisor acted unreasonably if he asked her to
return her equipment. Under the circumstances of this case, the Board finds that appellant’s
emotional reaction to the telephone call or the request to return equipment must be considered
self-generated, in that it resulted from her perceptions regarding the supervisor’s actions.12
Accordingly, the Board finds that the Office properly denied appellant’s claim for an
emotional condition as she failed to establish a compensable factor of employment.13
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition as a result of an October 3, 2008 incident.

10

An occupational disease or illness means a condition produced over a period longer than a single workday or
shift. A traumatic injury means a condition of the body caused by a specific event or incident, or series of events or
incidents, within a single workday or shift. See 20 C.F.R. §§ 10.5(q) and (ee), respectively.
11

See 20 C.F.R. § 10.5(q).

12

J.C., 58 ECAB __ (Docket No. 07-530, issued July 9, 2007).

13

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. See Margaret Krzycki, 43 EAB 496 (1992).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 28, 2008 is affirmed.
Issued: November 25, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, MAIL FACILITY,
Raleigh, NC, Employer
__________________________________________

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

Docket No. 09-1293
Issued: December 22, 2009

Case Submitted on the Record

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

JURISDICTION
On April 2, 2009 appellant filed a timely appeal from November 24, 2008 and
February 4, 2009 merit decisions of the Office of Workers’ Compensation Programs. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an injury in the performance of duty on
August 10, 2007. Appellant argued that the evidence from three medical professionals should be
conclusive evidence to overturn the previous decision.
FACTUAL HISTORY
On October 6, 2008 appellant, an automotive technician, filed a traumatic injury claim
(Form CA-1) alleging that on August 10, 2007 he sustained a left hand injury while in the
performance of duty. He stated that he was unloading a vehicle and his left hand was caught
between the door and a pole. An employing establishment form dated August 10, 2007 signed

by appellant and a supervisor indicated that appellant did not wish to file a traumatic injury claim
at that time.
As to medical evidence, appellant submitted an October 6, 2008 report from Dr. Ward
Bennett, a family practitioner, who reported that last year appellant had pinched his hand
between a vehicle and a pole, and appellant stated that his left ring finger had developed a mass.
The diagnosis was first-degree burn of the finger. In a duty status report (Form CA-17) dated
October 6, 2008, Dr. Bennett provided a history of a left hand caught between door and pole, and
diagnosed mass in the finger.
By decision dated November 24, 2008, the Office denied appellant’s claim for
compensation. It found an employment incident was established as alleged, but the medical
evidence was insufficient to establish the claim.
Appellant requested reconsideration of his claim. He submitted a December 4, 2008
report from Dr. Bennett, who stated that the diagnosis of a finger burn was incorrect.
Dr. Bennett stated that appellant was seen for a contusion to the finger which led to a mass
formation in his finger. Appellant also submitted a December 12, 2008 report from Melissa
Blakely Beitzel, a physician’s assistant.
In a decision dated February 4, 2009, the Office provided a merit review of the claim. It
found the evidence was not sufficient to warrant modification of the November 24, 2008
decision.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides for the payment of compensation
for “the disability or death of an employee resulting from personal injury sustained while in the
performance of duty.”1 The phrase “sustained while in the performance of duty” in the Act is
regarded as the equivalent of the commonly found requisite in workers’ compensation law of
“arising out of an in the course of employment.”2 An employee seeking benefits under the Act
has the burden of establishing that he or she sustained an injury while in the performance of
duty.3 In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally “fact of injury” consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred. The second
component is whether the employment incident caused a personal injury, and generally this can
be established only by medical evidence.4

1

5 U.S.C. § 8102(a).

2

Valerie C. Boward, 50 ECAB 126 (1998).

3

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

4

See John J. Carlone, 41 ECAB 354, 357 (1989).

2

The Office’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.5 In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.6
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between a diagnosed
condition and the identified employment factor. The opinion of the physician must be based on a
complete factual and medical background, must be of reasonable medical certainty and
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. The weight of medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.7
ANALYSIS
Appellant has described, albeit briefly, an incident on August 10, 2007 where his left
hand was caught between a vehicle door and a pole. The Office accepted that an incident
occurred as alleged.
It is appellant’s burden of proof in this case to submit rationalized medical evidence on
the issue of causal relationship between a diagnosed condition and the employment incident. As
noted above, this requires a medical report with an accurate and complete history, and with an
opinion on causal relationship that is supported by medical rationale explaining the basis for the
opinion.
The medical evidence before the Office did not include a rationalized medical opinion.8
Dr. Bennett did not provide a complete factual and medical background. In addition, his
statement that there was a contusion followed by the development of a left ring finger mass was
not accompanied by any medical rationale or additional explanation. There is no evidence
clearly explaining how a contusion from over a year ago would be the cause of the current
condition. As to medical evidence from a physician’s assistant, this does not constitute
competent medical evidence as a physician’s assistant is not a physician under 5 U.S.C.
§ 8101(2).9
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (June 1995).

6

Id.

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

8

The Board noted that on appeal appellant submitted additional medical evidence. The Board can review only
evidence that was before the Office at the time of the final decisions on appeal. 20 C.F.R. § 501.2(c)(1).
9

George H. Clark, 56 ECAB 162 (2004).

3

In his brief to the Board, appellant referenced three medical professional reports, but
reports from only two of the medical professionals were in the record. There was no report from
Dr. George Edwards. Nonetheless, the evidence submitted is insufficient to meet appellant’s
burden of proof.
The Board accordingly finds that appellant did not meet his burden of proof in
establishing an injury in the performance of duty on August 10, 2007. The medical evidence
does not contain a rationalized medical opinion on the issue presented.
CONCLUSION
The Board finds that appellant did not establish an employment-related injury on
August 10, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 4, 2009 and November 24, 2008 are affirmed.
Issued: December 22, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.E., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Tucson, AZ,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of the Solicitor, for the Director

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Docket No. 11-724
Issued: October 4, 2011

Case Submitted on the Record

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

JURISDICTION
On January 28, 2011 appellant filed a timely appeal of an August 3, 2010 merit decision
of the Office of Workers’ Compensation Programs’ (OWCP) denying his traumatic injury claim
and a January 6, 2011 nonmerit decision finding that he abandoned his oral hearing. Pursuant to
the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c)(1) and 501.3, the
Board has jurisdiction to consider both the merits of the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a traumatic
injury on September 21, 2009 as alleged; and (2) whether the Branch of Hearings and Review
properly determined that he had abandoned his oral hearing.
Appellant alleged on appeal that he did not receive notification of his oral hearing.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 25, 2009 appellant, then a 71-year-old building equipment mechanic, filed
a traumatic injury claim alleging that on September 21, 2009 he felt a pain in his right knee while
walking to a work truck on a flat parking lot blacktop. He submitted form reports from a
physician’s assistant dated September 22, 2009. On September 22, 2009 a diagnostic test
revealed an effusion and no fracture. In a letter dated June 28, 2010, OWCP requested that
appellant submit additional factual and medical evidence in support of his claim. It allowed 30
days for a response.
Appellant stated that he was walking across the employing establishment parking lot to
pick up a vehicle when he felt a sharp pain in his right knee. He noted that he was carrying his
15-pound tool belt. Appellant stated that he did not have any disability or symptoms before the
injury.
Dr. John A Meany, a Board-certified orthopedic surgeon, completed a form report on
October 16, 2009 and diagnosed a torn meniscus. He indicated that appellant’s condition
commenced on September 18, 2009. The employing establishment controverted appellant’s
claim on July 23, 2010 noting that he informed his physician that his injury occurred on
September 18, 2009 rather than September 21, 2009.
By decision dated August 3, 2010, OWCP denied appellant’s claim finding that the
factual evidence did not establish that the claimed event occurred as described noting that the
medical evidence supported a preexisting condition dating from September 18, 2009 rather than
a traumatic injury occurring on September 21, 2009.
Appellant requested an oral hearing on August 20, 2010. In a letter dated November 10,
2010, the Branch of Hearings and Review informed him that his oral hearing would take place
on December 13, 2010 at 12:40 p.m. eastern time and provided him with the number and pass
code. The Branch of Hearings and Review addressed this letter to appellant at his address of
record.
By decision dated January 6, 2011, the Branch of Hearings and Review noted that
appellant had received written notification of the hearing 30 days in advance and that he failed to
appear. The Branch of Hearings and Review noted that there was no indication in the file that he
contacted OWCP prior or subsequent to the scheduled hearing to explain his failure to appeal.
The Branch of Hearings and Review determined that appellant had abandoned his request for an
oral hearing.
LEGAL PRECEDENT -- ISSUE 1
OWCP defines 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.”2 In order to
2

20 C.F.R. § 10.5(ee).

2

determine whether an employee actually sustained an 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 which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred.3 The second component is whether the employment incident
caused a personal injury and generally can be established only by medical evidence.
With respect to the first component of fact of injury, the employee has the burden of
establishing the occurrence of an injury at the time, place and in the manner alleged, by a
preponderance of the reliable, probative and substantial evidence. An injury does not have to be
confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury in
the performance of duty, but the employee’s statements must be consistent with the surrounding
facts and circumstances and his subsequent course of action. An employee has not met his
burden of proof in establishing the occurrence of an injury when there are such inconsistencies in
the evidence as to cast serious doubt upon the validity of the claim. Such circumstances as late
notification of injury, lack of confirmation of injury, continuing to work without apparent
difficulty following the alleged injury and failure to obtain medical treatment may, if otherwise
unexplained, cast sufficient doubt on an employee’s statements in determining whether a prima
facie case has been established. However, an employee’s statement alleging that an injury
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong or persuasive evidence.4
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.
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.5 Second, the
employee must submit sufficient evidence, generally only in the form a medical evidence, to
establish that the employment incident caused a personal injury.6 A medical report is of limited
probative value on a given medical question if it is unsupported by medical rationale.7 Medical
rationale includes a physician’s rationalized opinion on the issue of whether there is a causal
relationship between the claimant’s diagnosed condition and the implicated employment activity.
The opinion of the physician must be based on a complete factual and medical background of the
claim, 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 activity or factors identified by the claimant.8

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

D.B., 58 ECAB 464, 466-67 (2007).

5

John J. Carlone, 41 ECAB 354 (1989).

6

J.Z., 58 ECAB 529 (2007).

7

T.F., 58 ECAB 128 (2006).

8

A.D., 58 ECAB 149 (2006).

3

ANALYSIS -- ISSUE 1
Appellant filed a claim alleging that he sustained a right knee injury on
September 21, 2010 in the performance of duty. He sought medical treatment on September 22,
2010 from a physician’s assistant. While a physician’s assistant’s reports are not medical
evidence as a physician’s assistant is not a physician under the FECA,9 these notes do contain
appellant’s factual statement regarding the date of his employment injury. Appellant completed
the form indicating that his injury occurred on September 21, 2010. Dr. Meany completed a
report on October 16, 2009 listing appellant’s date-of-injury as September 18, 2009. The
employing establishment controverted appellant’s claim based on Dr. Meany’s report. OWCP
denied his claim for a traumatic injury on the basis that he had provided an inconsistent history
of injury.
The Board finds that appellant has submitted sufficient evidence to establish the
September 21, 2010 employment incident. Appellant provided a consistent history of injury on
his claim form and to his initial medical provider. He also sought medical treatment on the date
after his alleged employment incident. The Board finds that the record does not contain strong
or persuasive evidence that the employment incident did not occur on September 21, 2010 as
alleged by appellant.
The Board finds, however, that the medical evidence in the record is not sufficient to
establish that the diagnosed condition resulted from the September 21, 2010 employment
incident. The only medical evidence in the record in accordance with FECA is Dr. Meany’s
October 16, 2009 form report. This report provides a diagnosis of “right knee injury torn
meniscus.” Dr. Meany did not describe the employment incident and did not opine that the
employment incident was sufficient to cause or contribute to the diagnosed condition. The
Board is unable to determine from this report whether he believed that appellant’s diagnosed
condition was in anyway causally related to his accepted employment incident. Due to the
absence of medical opinion evidence, appellant has failed to meet his burden of proof in
establishing his traumatic injury claim.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary under subsection (a) of this section is
entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.”10
9

J.M., 58 ECAB 303 (2007).

10

5 U.S.C. § 8124(b)(1).

4

Unless otherwise directed in writing by the claims examiner, OWCP’s hearing
representative will mail a notice of the time and place of the hearing to the claimant and any
representative at least 30 days before the scheduled date.11 OWCP has the burden of proving
that it mailed notice of a scheduled hearing to a claimant.12
OWCP’s procedures state:
“(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to appear at a
scheduled hearing; and the claimant has failed to provide any notification for such
failure within 10 days of the scheduled date of the hearing.
“Under these circumstances, [Branch of Hearings and Review] will issue a formal
decision finding that the claimant has abandoned his or her request for a hearing
and return to case to the [district office].”13
ANALYSIS -- ISSUE 2
Appellant requested an oral hearing and on November 10, 2010, the Branch of Hearings
and Review informed him that his oral hearing would take place on December 13, 2010 at 12:40
a.m. eastern time and provided him with the telephone number and the pass code. As noted,
OWCP has the burden of proving that it mailed notice of a scheduled hearing to a claimant. The
Board has held that, in the absence of evidence to the contrary, a notice mailed to an individual
in the ordinary course of business is presumed to have been received by that individual. The
presumption arises after it appears from the record that the notice was duly mailed and the notice
was properly addressed.14 Here, the record shows that OWCP scheduled a December 13, 2010
hearing and mailed proper written notice with the designated time, date and location of the
hearing to appellant’s address of record on November 10, 2010. Appellant is presumed to have
received the notice and did not submit any rebutting evidence. The record also shows that he did
not request postponement or explain his failure to appear at the hearing within 10 days of the
scheduled hearing date. Thus, under these circumstances, OWCP properly found that appellant
abandoned his hearing request. Appellant’s failure to provide any notification, together with his
failure to appear at the scheduled hearing, constituted abandonment of his request for a hearing
and the Board finds that OWCP properly so determined.

11

20 C.F.R. § 10.617(b).

12

See Michelle R. Littlejohn, 42 ECAB 463 (1991).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
1.1601.6(e) (January 1999).
14

Newton D. Lashmett, 45 ECAB 181 (1993); Michelle R. Littlejohn, supra note 12.

5

CONCLUSION
The Board finds that appellant has established that the employment incident occurred at
the time, place and in the manner alleged, contrary to OWCP’s August 3, 2010 decision. The
Board further finds that he failed to submit the necessary medical opinion evidence to establish
that a medical condition resulted from this employment incident and therefore failed to meet his
burden of proof in establishing a traumatic injury. The Board also finds that appellant
abandoned his request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the January 6, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed and the August 3, 2010 decision is affirmed, as
modified.
Issued: October 4, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
DEPARTMENT OF THE ARMY, BROOKE
ARMY MEDICAL CENTER, Houston, TX,
Employer
__________________________________________

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

Docket No. 21-1068
Issued: March 1, 2022

Case Submitted on the Record

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

JURISDICTION
On June 28, 2021 appellant filed a timely appeal from a May 28, 2021 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 has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted October 9, 2020 employment incident.
FACTUAL HISTORY
On April 12, 2021 appellant, then a 57-year-old practical nurse, filed a traumatic injury
claim (Form CA-1) alleging that on October 9, 2020 a maintenance worker ran over her right foot
1

5 U.S.C. § 8101 et seq.

with a cart, which caused pain and swelling in her right foot as well as knee pain. On the reverse
side of the claim form, appellant’s supervisor indicated that she was injured in the performance of
duty. Appellant did not stop work.
In support of her claim, appellant submitted a medical report dated November 3, 2020 from
Dr. Melany A. Shearrer, a family medicine specialist. Dr. Shearrer related that appellant was seen
for right foot pain and a small lump on the top of her foot, which began one month prior when a
maintenance cart hit the top of her foot.
In reports dated March 10 and 12, 2021, Dr. Tamara Moseley, a podiatrist, related that a
cart ran over appellant’s foot in November 2020 and she noted that appellant had complaints of
right foot pain, swelling, and paresthesia. In the March 12, 2021 note, she related that x-rays of
appellant’s foot were negative for fracture and diagnosed right foot pain.
In a March 11, 2021 report, Dr. Bhavna Lalvani, a family medicine specialist, related that
appellant was seen for right knee pain, which appellant believed resulted from overcompensating
from a right foot injury in November 2020.
On March 30, 2021 a physical therapist requested a consultation for a provisional diagnosis
of right knee unilateral primary osteoarthritis.
OWCP received a letter dated April 8, 2021 from appellant’s co-worker, M.R., and a
separate letter from her co-worker, T.V. Both co-workers stated that they witnessed a maintenance
cart run over appellant’s right foot in October 2020. M.R. also related that appellant stated that
she was in pain and held her right leg and foot following the incident.
In a development letter dated April 26, 2021, OWCP informed appellant of the deficiencies
in her claim. It noted the type of factual and medical evidence needed and provided a questionnaire
for her completion. OWCP afforded appellant 30 days to submit the necessary evidence.
In a report dated April 27, 2021, Matthew Randel, a physical therapist, related that
appellant presented with signs and symptoms commonly associated with right foot pain , likely due
to nerve and soft tissue injury.
Appellant submitted a response to OWCP’s development questionnaire dated May 5, 2021.
She attested that she told her supervisor of her injury three or four weeks after it occurred as she
was still in pain. Appellant stated that her supervisor initially indicated that it was too late to file
a claim.
By decision dated May 28, 2021, OWCP accepted that the October 9, 2020 employment
incident occurred, as alleged; however the claim was denied as she had not submitted medical
evidence containing a medical diagnosis in connection with her accepted employment incident. It
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA 2 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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 3 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. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To 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.
There are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and 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.6
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 7 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 factors
identified by the employee. 8

2

Id.

3

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).
4

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).
5

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).
6

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).
7

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).
8

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).

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted October 9, 2020 employment incident.
In support of her claim, appellant submitted a medical report dated November 3, 2020 from
Dr. Shearrer, which related that appellant was seen for right foot pain. Similarly, OWCP received
a medical report dated March 11, 2021 from Dr. Lalvani, which stated that appellant was seen for
right knee pain. The Board has held that pain is a symptom and not a compensable medical
diagnosis.9 As these reports did not provide a firm diagnosis causally related to the acc epted
employment incident, they are insufficient to establish appellant’s claim.
OWCP also received reports dated March 10 and 12, 2021 from Dr. Moseley, which related
that appellant had right foot pain, swelling, and paresthesia. As with pain, 10 swelling,11 and
numbness12 are also symptoms of a medical condition, not diagnoses. For this reason,
Dr. Moseley’s reports are insufficient to meet appellant’s burden of proof.
Appellant also submitted were reports from physical therapists. Certain healthcare
providers such as physician assistants, nurse practitioners, and physical therapists are not
considered physicians as defined under FECA. 13 Their opinions are therefore not considered
competent medical evidence. 14 Consequently, this evidence will not suffice for purposes of
establishing entitlement to FECA benefits. 15
As there is no medical evidence of record establishing a diagnosed medical condition
causally related to the accepted October 9, 2020 employment incident, the Board finds that
appellant has not met her burden of proof.

9

See S.L., Docket No. 19-1536 (issued June 26, 2020); D.Y., Docket No. 20-0112 (issued June 25, 2020).

10

Supra note 9.

11

M.C., Docket No. 17-0024 (issued March 22, 2018).

12

See Leonardo G. Cobero, Docket No. 99-2489 (issued June 1, 2001).

5 U.S.C. § 8101(2) 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,”
20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013); see also M.F., Docket No. 19-1573 (issued March 16, 2020); N.B., Docket No. 19-0221
(issued July 15, 2019); 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).
13

14

M.T., Docket No. 21-0783 (issued December 27, 2021).

15

See M.C., Docket No. 19-1074 (issued June 12, 2020).

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Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted October 9, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 28, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 1, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
DEPARTMENT OF DEFENSE, DLA
DISTRIBUTION REGION EAST,
Fort Belvoir, VA, Employer
__________________________________________

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

Docket No. 11-228
Issued: November 3, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On November 4, 2010 appellant, through her attorney, filed a timely appeal from a
September 3, 2010 merit decision of the Office of Workers’ Compensation Programs’ (OWCP).
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that her neck and
right shoulder conditions are causally related to a December 15, 2009 employment incident.
On appeal appellant’s attorney contends that the September 3, 2010 OWCP decision is
contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 13, 2010 appellant, then a 27-year-old distribution process worker, filed a
traumatic injury claim (Form CA-1) alleging that on December 24, 2009 she sustained a neck
and right shoulder injury after picking up a row of label tape while in the performance of duty.
By letter dated January 15, 2010, OWCP requested additional factual and medical
information from appellant. It allotted her 30 days to submit additional evidence and respond to
its inquiries.
In a December 24, 2009 emergency department medical report, Jody McCann, a
physician’s assistant, diagnosed right shoulder pain. She described the incident as right shoulder
pain from repetitive lifting.
In a December 30, 2009 witness statement, Lynda A. Singer, a coworker, stated that she
was working in the same area as appellant on December 24, 2009. She indicated that their duty
was to re-label packages and the material came in a large box. Appellant was sitting behind
Ms. Singer who heard a noise at 9:00 a.m. and turned around to see the large box and the
material spilled out onto the floor. Ms. Singer saw appellant hold her neck but did not see if she
had lifted or nudged the box before it fell over.
In another witness statement, a Matthew L. Hughart stated that on December 24, 2009 he
witnessed appellant attempting to pick up a box to place it on an orange tote which then tipped
over.
In a January 26, 2010 letter to appellant, the employing establishment informed her that
the continuation of pay (COP) she had been receiving was limited to 45 days and would expire
on February 7, 2010.
In a January 26, 2010 letter to OWCP, the employing establishment notified OWCP that
it was looking for limited-duty work for appellant and requested completion of a work restriction
evaluation form or a prognosis of when she would be able to return to work if she was unable to
work at that time.
By decision dated February 22, 2010, OWCP denied appellant’s claim on the basis that
the factual and medical evidence submitted was insufficient to establish fact of injury. It found
that evidence she submitted was not sufficient to establish that the described employment
activities occurred as alleged and that there was no medical evidence that provided a diagnosis
which could be connected to the claimed event.
In a January 8, 2010 medical report, Dr. Curtis A. Goltz, a Board-certified orthopedic
surgeon, diagnosed neck strain and right shoulder strain. He noted that appellant stated that on
December 24, 2009 she had to visit the emergency room for debilitating pain and spasm into her
neck. In a January 29, 2010 progress report, Dr. Goltz diagnosed pain in right shoulder,
orthopedic reason unknown. He explained that there were no objective findings that would
suggest the cause of her pain. Dr. Goltz kept her out of work as she stated even the most routine
daily living activities were debilitating and stated that he would see her following a functional
capacity examination.
2

On March 15, 2010 appellant, through her attorney, requested an oral hearing and
submitted additional evidence. In a March 5, 2010 medical report, Dr. Goltz diagnosed right
shoulder pain. He stated that appellant indicated that she was sitting in a chair when it broke and
she fell at work on September 4, 2009.2 Dr. Goltz released her to limited duty on March 8, 2010
with restrictions on repetitive use of the right arm.
On March 19, 2010 appellant filed a claim for compensation (Form CA-7) for the period
February 8 to March 5, 2010.
By letter dated March 22, 2010, OWCP acknowledged receipt of appellant’s claim for
compensation.
In a December 4, 2009 medical report, Ms. McCann diagnosed right shoulder pain. She
indicated, among other things, that appellant had been undergoing physical therapy, was seeing a
physician and returned to light duty. On December 24, 2009 appellant was doing light-duty,
packaging and labeling, and was working herself a little bit too hard and started having severe
pain and burning in her right shoulder and up into her neck area. She denied any recent falls or
other trauma, she reported no new numbness or tingling, but did say she was having muscle
spasms in her neck.
On June 15, 2010 a telephonic hearing was held before an OWCP hearing representative.
Appellant testified that her limited duty consisted of handling label tape and labeling packages
out of a large box which required repetitive use of her right arm. She testified that she informed
her supervisor of her difficulty with the limited-duty job requirements who told her to take
breaks when needed. On December 24, 2009 appellant testified that she saw a large box on the
edge of a desk and attempted to prevent it from falling, when she reached for it with her left hand
she had a roll of tape labels in her right hand and experienced severe pain in her right neck and
shoulder.
By decision dated September 3, 2010, an OWCP hearing representative affirmed the
February 22, 2010 decision on the grounds that the medical evidence submitted was insufficient
to establish fact of injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury4 was sustained in the performance of duty, as alleged,
2

The Board notes that appellant has a September 4, 2009 injury claim under OWCP File No. xxxxxx468. Based
on the evidence of record it is not clear as to whether that prior claim was accepted by OWCP.
3

5 U.S.C. §§ 8101-8193.

4

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).

3

and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.7
ANALYSIS
OWCP has accepted that the employment incident of December 24, 2009 occurred at the
time, place and in the manner alleged. The issue is whether appellant’s neck and right shoulder
conditions resulted from the December 24, 2009 employment incident. The Board finds that she
did not meet her burden of proof to establish a causal relationship between the conditions for
which compensation is claimed and the December 24, 2009 employment incident.
Dr. Goltz submitted several reports in which he diagnosed neck strain, right shoulder
strain and right shoulder pain for unknown orthopedic reasons. He released appellant to limited
duty on March 8, 2010 with restrictions on repetitive use of the right arm. Although the Board
finds that Dr. Goltz did provide firm diagnoses, he failed to directly address the issue of causal
relationship as he did not explain how the mechanism of the December 24, 2009 employment
incident caused or aggravated appellant’s conditions. That is, Dr. Goltz failed to provide
medical rationale explaining how her neck and right shoulder conditions were caused or
aggravated by picking up a row of label tape or preventing a box from falling on
December 24, 2009. Lacking thorough medical rationale on the issue of causal relationship, the
reports are of limited probative value and not sufficient to establish that appellant sustained an
employment-related injury in the performance of duty on December 24, 2009.
5

T.H., 59 ECAB 388 (2008).
1143 (1989).

See Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB

6

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

7

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

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The reports from Ms. McCann, a physician’s assistant, are of no probative value as she is
not a physician under FECA.8 As such, the Board finds that appellant did not meet her burden of
proof with these submissions.
As appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained an injury causally related to the indicated employment factors, she
has failed to meet her burden of proof.
On appeal appellant’s attorney contends that the September 3, 2010 OWCP decision is
contrary to fact and law. For the reasons stated above, the Board finds the attorney’s argument is
not substantiated.
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 submitted sufficient rationalized medical opinion
evidence to establish that the December 24, 2009 employment incident was causally related to
the neck and right shoulder conditions. Therefore, appellant failed to meet her burden of proof to
establish a claim.

8

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).

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ORDER
IT IS HEREBY ORDERED THAT the September 3, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 3, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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