United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Imperial Beach, CA, Employer
__________________________________________

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

Docket No. 11-252
Issued: August 15, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 8, 2010 appellant filed a timely appeal from May 13 and September 2,
2010 merit decisions 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 the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on January 21, 2010.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 21, 2010 appellant, then a 38-year-old border patrol agent, filed a Form CA-1
for traumatic injury, alleging that he aggravated his right knee on that day while operating a
backhoe at work.2 He did not incur any time loss due to disability.
OWCP informed appellant in an April 12, 2010 letter that additional evidence was
needed to establish his claim. It gave him 30 days to submit a statement describing the
employment incident that contributed to his preexisting condition and a physician’s report
offering a reasoned opinion explaining how the incident aggravated the injury. Appellant did not
respond.
By decision dated May 13, 2010, OWCP denied appellant’s claim, finding the evidence
insufficient to establish that he experienced the employment incident alleged to have occurred.
Appellant filed a request for reconsideration on June 7, 2010 and submitted a May 3,
2010 medical report from Dr. Robert M. Maywood, a Board-certified orthopedic surgeon, who
specified that appellant was using heavy equipment at work on April 25, 2008 when the vehicle
fell into a pothole, injuring his right knee. Thereafter, Dr. Maywood constantly pressed the foot
pedal, which led to additional swelling. Appellant complained of pain since the incident. On
examination, Dr. Maywood observed tenderness to palpation along the medial joint line, effusion
and a positive Steinmann’s test. X-rays did not show any bony abnormality. Dr. Maywood
diagnosed a right medial meniscus tear and chondral condition and opined that the injury was
consistent with and caused by the April 25, 2008 event.
On September 2, 2010 OWCP denied modification of the May 13, 2010 decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his claim by the weight of reliable, probative and substantial evidence,3
including that he is an “employee” within the meaning of FECA and that he filed his claim
within the applicable time limitation.4 The employee must also establish that he sustained an
injury in the performance of duty as alleged and that his disability for work, if any, was causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
2

Appellant filed a prior claim for an April 25, 2008 right knee injury, which was denied on April 12, 2010.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

R.C., 59 ECAB 427 (2008).

5

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

2

the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.6
An employee’s statement 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.7
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his subsequent
course of action. An employee has not met his burden 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. Circumstances such 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 doubt on an employee’s statement in
determining whether a prima facie case has been established.8
ANALYSIS
Appellant has not sufficiently established that he experienced a January 21, 2010 work
incident while in the performance of duty because his claim lacks specificity regarding the
claimed mechanism of injury.9
In the original Form CA-1, appellant stated that he aggravated a preexisting right knee
condition on January 21, 2010 while operating a backhoe at work. Although he identified the
time and place of injury, his account of the manner in which he hurt his knee was vague and
incomplete.10 On April 12, 2010 OWCP informed appellant that additional factual evidence was
needed to establish his traumatic injury claim and gave him an opportunity to clarify the details
of the purported incident. Appellant did not respond. On reconsideration, he submitted a May 3,
2010 medical report from Dr. Maywood diagnosing a right medial meniscus tear and chondral
condition. Nevertheless, this report only noted that he previously sustained a right knee injury
on April 25, 2008 and did not refer to a January 21, 2010 employment incident. Appellant did
not submit a responsive statement providing details regarding how his claimed injury occurred
on January 21, 2010. In the absence of necessary factual evidence, the Board finds that appellant
has failed to establish a prima facie claim.11

6

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

7

Gregory J. Reser, 57 ECAB 277 (2005); R.T., Docket No. 08-408 (issued December 16, 2008).

8

Betty J. Smith, 54 ECAB 174 (2002).

9

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); M.F., Docket No. 10-1514 (issued March 11, 2011).

10

See Contreras, supra note 9.

11

See O.W., Docket No. 09-2110 (issued April 22, 2010). As appellant did not meet his burden to establish the
occurrence of an employment incident, it is not necessary to consider the medical evidence with regards to causal
relationship. D.F., Docket No. 10-1774 (issued April 18, 2011).

3

The Board notes that appellant submitted new evidence on appeal. The Board lacks
jurisdiction to review evidence for the first time on appeal.12 However, appellant may submit
new evidence or argument as part of a formal 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 did not establish that he sustained a traumatic injury in the
performance of duty on January 21, 2010.
ORDER
IT IS HEREBY ORDERED THAT the September 2 and May 13, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 15, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

12

20 C.F.R. § 501.2(c).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 12-745
Issued: October 1, 2012

Oral Argument June 26, 2012

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 21, 2012 appellant filed a timely appeal from a December 27, 2011 merit
decision of the Office of Workers’ Compensation Programs affirming the reduction of her
monetary compensation based upon the constructed position of accounts receivable clerk.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether OWCP properly determined appellant’s loss of wage-earning
capacity based upon the constructed position of accounts receivable clerk.
FACTUAL HISTORY
On October 25, 2008 appellant, then a 42-year-old city carrier, slipped and fell while
crossing a lawn and broke her left ankle. On November 6, 2008 Dr. Clifford L. Jeng, appellant’s
1

5 U.S.C. § 8101 et seq.

treating Board-certified orthopedic surgeon, performed an open reduction internal fixation of left
lateral malleous fracture. On December 19, 2008 OWCP accepted appellant’s claim for left
ankle lateral malleolus fracture with posterior malleolus fracture, open. On July 9, 2009
appellant underwent surgery for the removal of hardware from her left ankle. Appellant returned
to work on September 21, 2009 for limited hours and with restrictions. However, she was sent
home as no work was available.
On September 30, 2009 Dr. Jeng released appellant to return to work for 8 hours per day
with restrictions that prohibited walking, kneeling and climbing; allowed bending, stooping,
pushing and pulling for 30 minutes a day; allowed sitting, standing, lifting and twisting for 1
hour a day; and allowed reaching, and operating a motor vehicle at work for 2 hours a day.
Again, the employing establishment sent appellant home because no work was available within
her restrictions. On March 24, 2010 OWCP accepted left ankle osteochondral lesion.
In a report dated December 22, 2009, Dr. Robert Allen Smith, a second opinion physician
and Board-certified orthopedic surgeon, stated that, based on his current clinical examination, it
did not appear that appellant had any objective findings that would support residual impairment
due to the accepted condition. He noted that the fracture of the lateral malleolus had healed
completely and stabilizing hardware had been surgically removed. Appellant’s current clinical
examination was relatively benign showing no atrophy, good range of motion and satisfactory
strength about the ankle. He noted no ongoing pathology that would prevent her from returning
to regular-duty work.
In a February 2, 2010 report, Dr. Jeng stated that appellant had pain globally around the
ankle. Appellant had a central tibial osteochondritis dessicans lesion as well as some fluid on the
posterior tibial tendon based on her magnetic resonance imaging scan. Dr. Jeng noted that he
would continue with conservative care with the ankle brace that seemed to keep her comfortable
at work.
On March 30, 2010 OWCP referred appellant to a vocational rehabilitation counselor,
who reviewed appellant’s work history, skill development, education and training. On April 12,
2010 the counselor had a telephone conference with appellant. In an April 14, 2010 note, she
noted that appellant’s résumé revealed that she had good skills and probably did not need
additional training in order to obtain employment. The counselor noted appellant’s lengthy
history of working with temporary help firms which she noted gave appellant a lot of varied
experience in payroll and basic bookkeeping. On October 28, 2010 she closed the case. The
counselor indicated that appellant had a good administrative background and did not need
additional training. Appellant had limited success in securing interviews and that she reported
illnesses that slowed her job search. She indicated that, although appellant followed up on some
of the job leads provided, the counselor did not have any information about whether she attended
any interview.
The counselor determined in a November 10, 2010 report that appellant could obtain
work as an accounts receivable clerk at wages of $400.00 per week. She noted that this position
was sedentary and available in sufficient numbers so as to make it reasonably available to the
claimant within her commuting area. In response to whether appellant’s experience, education
and training met the position requirements, the counselor responded, “[Appellant] has worked in

2

payroll and accounting positions in the past, and has more than a year of experience in these
jobs.” The duties of this position included compiling and sorting documents, substantiating
business transactions, verifying and posting details of business transactions using a calculator or
computer. The employee would compute and record charges, refunds, cost of lost or damaged
goods, freight charges, rental and similar items. Appellant’s résumé noted that she was trained
on MS Office 2003 and 2007, Lotus and a 10-key adding machine. Her work history included
working as a letter carrier since 2006; working as an insurance agent from September 2005 to
March 2006; an accounts payable clerk for Kelly Services 2003 to 2005; computer operator,
customer service, payroll clerk and receptionist for Priority One Staffing Services from 2003 to
2006; commercial operations associate image keyer /trainer for Bank One from 2001 to 2002; a
key operator for Census 2000 -- Computer Science Corporation in 2000, a training coordinator
for integrated health services in 1999, a gift records specialist for Associated Catholic Charities
from 1997 to 1998; and a unit computer operator for Johns Hopkins Hospital from 1992 to 1996.
Appellant’s post-high school education included attendance at Gordon Phillips Beauty School
from August 1996 to 1997 where she received a diploma, and attendance at the PSI Institute of
Baltimore from September 1987 to January 1988 where she received a diploma for data entry.
On December 20, 2010 OWCP issued a notice of proposed reduction of compensation
based on appellant’s ability to earn wages as an accounts receivable clerk at $400.00 per week.
Appellant responded to the proposed reduction and noted that no agency wanted to hire
her because her injury made her a liability and because her previous employment experience was
outdated. She noted that she asked her vocational rehabilitation counselor on numerous
occasions to set up some training to update and enhance her skills because her skills were
outdated and that employing companies were looking for skills that she did not have. Appellant
noted that she had not attended college and that the majority of work was agency work which
only required her to pass a typing test and did not require programming skills to obtain
employment.
In a second notice of proposed reduction issued on March 16, 2011, OWCP found that
the position of accounts receivable clerk was medically and vocationally suitable for and fairly
and reasonably represented appellant’s wage-earning capacity. By decision dated May 19, 2011,
it finalized its reduction of wage-earning capacity determination based on the constructed
position of accounts receivable clerk effective June 5, 2011.
On May 24, 2011 appellant requested an oral hearing before an OWCP hearing
representative. At the hearing held on October 13, 2011, she testified that all contact with the
vocational rehabilitation counselor was through telephone conversations and e-mails. Appellant
had asked for training to update her skills as they were outdated, but was not given the
opportunity. She had not used a computer for her employment or updated her skills since 2004.
Appellant noted that she had performed payroll and accounting duties in the past for an agency.
She applied for various positions including data entry, office assistant and even accounting, but
did not have the appropriate skills. Appellant noted that she had registered for online job search,
applied for positions found in the newspaper and tried word-of-mouth search.
By decision dated December 27, 2011, OWCP affirmed the May 19, 2011 loss of wageearning capacity determination.

3

LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from an injury
sustained while in the performance of duty. Disability, which may be partial or total, refers to an
employee’s incapacity to earn the wages that he or she had been receiving at the time of injury.2
Compensation for partial disability is payable as a percentage of the difference between
the employee’s pay at the time of injury and the employee’s wage-earning capacity.3 According
to section 8115(a) of FECA, the wage-earning capacity of an employee is generally determined
by actual earnings. However, if actual earnings do not fairly and reasonably represent wageearning capacity or if the employee has no actual earnings, his or her wage-earning capacity is
determined with due regard to the nature of the injury, the degree of physical impairment, his or
her usual employment, age, qualifications for other employment, the availability of suitable
employment and other factors and circumstances that may affect wage-earning capacity in his or
her disabled condition.4
When OWCP makes a medical determination of partial disability and specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP or to an OWCP wage-earning capacity specialist for selection of a position, listed in
DOT or otherwise available in the open labor market, that fits the employee’s capabilities with
regard to his or her physical limitations, education, age and prior experience. Once this selection
is made, a determination of wage rate and availability in the open labor market should be made
through contact with the state employment service or other applicable service. Finally,
application of the principles set forth in Albert C. Shadrick5 will result in the percentage of the
employee’s loss of wage-earning capacity. The job selected for determining wage-earning
capacity must be one that is reasonably available in the general labor market in the commuting
area where the employee lives. OWCP may not select a makeshift or odd-lot position or one not
reasonably available on the open labor market.6
ANALYSIS
OWCP accepted appellant’s claim for left ankle lateral malleolus fracture, open posterior
malleous fracture and left ankle osteochondral lesion. Appellant’s physician, Dr. Jeng, released
her to limited work, but the employing establishment could not provide work within her
restrictions. Accordingly, OWCP referred appellant to vocational rehabilitation. The counselor
determined that appellant’s wage-earning capacity was represented by the position of accounts

2

G.G., Docket No. 11-1081 (issued June 1, 2012).

3

See 20 C.F.R. § 10.404(b)-(c).

4

N.J., 59 ECAB 376 (1953).

5

5 ECAB 376 (1953).

6

H.N., Docket No. 09-1628 (issued August 19, 2010).

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receivable clerk. OWCP reduced her compensation benefits effective June 5, 2011. It has the
burden to justify termination or modification of compensation benefits.7
When OWCP finds that a constructed position represents appellant’s wage-earning
capacity, it must find that this position was available in the open labor market, fits the
employee’s capabilities with regard to his or her physical limitations, education, age and
experience.8 There is no significant dispute that the position of accounts receivable clerk was
within appellant’s medical restrictions. The second opinion physician, Dr. Smith, advised that
appellant had no pathology that would prevent her from returning to her regular-duty work.
Appellant’s treating physician, Dr. Jeng, opined that appellant could return to work in a
sedentary position. Accordingly, the medical evidence establishes that appellant could work in
the sedentary position of accounts receivable clerk.
However, in assessing appellant’s ability to perform the selected position, OWCP must
consider not only physical limitations, but also education, age and prior experience. While in
accordance with established procedures for determining wage-earning capacity OWCP relies
upon a wage-earning capacity specialist for selection of an appropriate position, the Board has
held that it is the responsibility of OWCP to obtain confirmation of the specific requirements for
the position and that appellant has the necessary vocational skills to perform the requirements of
the position.9 The vocational rehabilitation counselor indicated that appellant was prepared for
this position because she “has two years of college and an extensive background in payroll and
accounting jobs.” However, pursuant to appellant’s résumé, her only continuing education after
high school consisted of obtaining a diploma from a beauty school in 1997 and receiving a
diploma in data entry after attending the PSI Institute of Baltimore from September 1987 through
January 1988. There is no evidence that appellant attended college. Furthermore, the vocational
rehabilitation counselor based her decision that appellant could perform the accounts receivable
clerk position on appellant’s “extensive background in payroll and accounting jobs.” Appellant
has had short assignments, generally with temporary employment agencies, doing data entry,
payroll and other temporary work. The most recent position she held as an accounts payable
clerk was for Kelly Services, where her responsibilities varied from assignment to assignment.
Appellant has not done any work in data entry or accounts payable since September 2005.
Furthermore, as previously noted, her diploma for a four-month program in data entry was
awarded in January 1988, over 20 years before the vocational rehabilitation counselor found that
appellant was capable for working as an accounts receivable clerk. Appellant’s allegations that
she did not have the proper training to perform the duties of the position appear to have some
merit. There is no specific discussion by the counselor as to how appellant’s past experience
specifically relates to the position and as to how she is properly trained for this position.
The burden of proof is on OWCP to establish that appellant has the wage-earning
capacity of an accounts receivable clerk. This requires it to establish how she met the specific
vocational preparation for the selected position. Because OWCP did not meet that burden, the
7

J.W., Docket No. 09-1800 (issued June 21, 2010)

8

G.G., Docket No. 11-1081 (issued June 1, 2012).

9

Karl W. Dunn, Docket No. 95-625 (issued February 20, 1997).

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Board will reverse the December 28, 2011 decision affirming the reduction of appellant’s
compensation for wage loss.
CONCLUSION
The Board finds that OWCP improperly determined appellant’s loss of wage-earning
capacity based upon the constructed position of accounts receivable clerk.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 27, 2011 is reversed.
Issued: October 1, 2012
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Riverdale, GA, Employer
__________________________________________

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

Docket No. 10-170
Issued: February 16, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 13, 2009 appellant filed a timely appeal from the April 23 and
September 1, 2009 schedule award decisions of the Office of Workers’ Compensation Programs
and an October 7, 2009 Office decision denying his application for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of the appeal.
ISSUES
The issues are: (1) whether appellant has more than a 17 percent left leg impairment or a
2 percent right leg impairment; and (2) whether the Office properly determined that appellant’s
application for reconsideration was insufficient to warrant further merit review of the claim.
FACTUAL HISTORY
On August 18, 2007 appellant, then a 50-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging planter fasciitis as a result of his federal employment. The
Office accepted the claim for aggravated bilateral plantar fibromatosis/fasciitis. Appellant
underwent left foot surgery on May 20, 2008.

In a report dated November 13, 2008, Dr. R. Howard Pike, an attending orthopedic
surgeon, reported a failed surgical procedure on the left foot. He stated that appellant had
reached maximum medical improvement and had a seven percent whole person impairment. In a
report dated March 2, 2009, Dr. Pike indicated that appellant had a leg impairment due to muscle
weakness. He reported that appellant had “4/5 plantar flexion strength” for the ankle. An Office
medical adviser reviewed the medical evidence and in a report dated March 9, 2009 indicated
that the left foot surgery on May 20, 2008 was not successful. He opined that under the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) (5th ed.) appellant had a 17 percent left leg impairment based on Tables 17-7 and 17-8.
By decision dated April 23, 2009, the Office issued a schedule award for a 17 percent left
leg impairment. The period of the award was 48.96 weeks commencing November 13, 2008.
In a report dated June 3, 2009, Dr. Pike opined that under the sixth edition of the A.M.A.,
Guides, appellant had a 17 percent right lower extremity impairment due to pain, with plantar
fasciitis impeding full plantar flexion strength. He stated that this was the same impairment
rating that he was given for the left leg and a 17 percent lower extremity impairment is
equivalent to a 7 percent whole person impairment.
The evidence was referred to an Office medical adviser for review. In a report dated
July 2, 2009, the medical adviser opined that under the sixth edition, appellant had a two percent
right leg impairment. The medical adviser identified Table 16-2 for a Class 1 impairment.
By decision dated September 1, 2009, the Office indicated that it was modifying the
April 23, 2009 decision. It found that the evidence was sufficient to establish a two percent right
leg permanent impairment, payable after the current schedule award expired.
Appellant requested reconsideration of his claim in a letter dated September 25, 2009.
He stated that he still had heel pain and did not believe that the two percent award was fair. As
to medical evidence, appellant submitted a September 17, 2009 report from Dr. Pike, who opined
that appellant had a 17 percent lower extremity impairment on the postoperative lower extremity
because of persistent symptoms plantar fasciitis despite surgery leading to 4 out of 5 plantar
flexion strength at the ankle. Dr. Pike stated that the contralateral limb also had a 17 percent
lower extremity impairment because he has the same diagnosis and the same findings. He
concluded that there was no change in his opinion.
By decision dated October 7, 2009, the Office determined that the application for
reconsideration was insufficient to warrant merit review of the claim.
LEGAL PRECEDENT -- ISSUE 1
Pursuant to 5 U.S.C. § 8107, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.1 Neither the Federal Employees’
1

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).

2

Compensation Act nor the regulations specify the manner in which the percentage of impairment
for a schedule award shall be determined. For consistent results and to ensure equal justice for
all claimants the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.2 As of February 1, 2001, the fifth edition of the A.M.A., Guides was to be used to
calculate schedule awards.3
ANALYSIS -- ISSUE 1
With respect to the April 23, 2009 decision, the Board notes that the proper edition of the
A.M.A., Guides for the evaluation of the permanent impairment was the fifth edition. For
schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition.4 The
April 23, 2009 decision found that appellant had a 17 percent permanent impairment to the left
leg. The attending physician, Dr. Pike, described a muscle weakness based on ankle plantar
flexion. He did not discuss any specific tables under the A.M.A., Guides. The Office medical
adviser identified Table 17-8, which provides for impairments due to leg muscle weakness,
based on muscle groups.5 Table 17-7 provides grades of severity and a Grade 4 is “active
movement against gravity with some resistance.”6 For ankle plantar flexion, a Grade 4
impairment is a 17 percent leg impairment.
The probative medical evidence therefore established that appellant had a 17 percent left
leg impairment. The Office medical adviser provided a rationalized medical opinion based on
the findings of Dr. Pike. This represents the weight of the medical evidence.
With respect to the right leg, Dr. Pike opined in his June 3, 2009 report that appellant also
had 17 percent leg impairment, using the sixth edition. He does not, however, provide any
explanation as to how he applied the sixth edition of the A.M.A., Guides. This edition provides a
different diagnosis based method of evaluation. The only medical report discussing the relevant
tables in the sixth edition is the July 2, 2009 report of the Office medical adviser. The sixth
edition requires identifying the impairment class for the diagnosed condition (CDX), which is
then adjusted by grade modifiers based on functional history (GMFH), physical examination
(GMPE) and clinical studies (GMCS).7 The net adjustment formula is (GMFH-CDX) + (GMPE
- DCX) + (GMCS- CDX). The Office medical adviser identified Table 16-2 and found a Class 1
soft tissue diagnosis, which results in a CDX of 1. He found a net adjustment of +1 by applying
the above formula to a GMFH of 1, GMPE of 2 and GMCS of 1. Under Table 16-2, this results
in a two percent leg impairment.

2

A. George Lampo, 45 ECAB 441 (1994).

3

FECA Bulletin No. 01-05 (issued January 29, 2001).

4

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

5

A.M.A., Guides 532, Table 17-8.

6

Id. at 531, Table 17-7.

7

A.M.A., Guides (6th ed. 2008) 494-531.

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The Office medical adviser provided a rationalized medical opinion on the issue. It
represents the weight of the medical evidence, as Dr. Pike did not provide a rationalized opinion
under the sixth edition. There is no probative evidence to establish greater than a two percent
right leg impairment.8
LEGAL PRECEDENT -- ISSUE 2
The Act provides that the Office may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision.9 The
employee shall exercise this right through a request to the district office. The request, along with
the supporting statements and evidence, is called the “application for reconsideration.”10
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent evidence not previously
considered by the Office.11
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits. Where the
request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.12
ANALYSIS -- ISSUE 2
In his September 25, 2009 application for reconsideration appellant indicated that he did
not believe a two percent right leg impairment was fair, since he continued to have pain. He did
not show that the Office erroneously applied or interpreted a specific point of law or advance a
relevant legal argument not previously considered by the Office. As to new evidence, appellant
submitted a September 17, 2009 report from Dr. Pike, who reiterated his opinion that appellant
had a 17 percent bilateral leg impairment. The evidence submitted is duplicative of the
physician’s opinion which was previously considered by the Office.13 The Board finds that
appellant did not submit relevant and pertinent evidence not previously considered by the Office.
8

The Office did not issue a separate decision establishing the weeks of compensation for a two percent right leg
impairment. On return of the case record, it should issue a proper decision as to a schedule award for the right leg.
9

5 U.S.C. § 8128(a).

10

20 C.F.R. § 10.605 (1999).

11

Id. at § 10.606(b)(2).

12

Id. at § 10.608.

13

See David J. McDonald, 50 ECAB 185 (1998).

4

Because appellant did not meet any of the requirements of 20 C.F.R. § 10.606(b)(2), the Office
properly denied merit review in this case.
CONCLUSION
The Board finds that the probative evidence does not establish more than a 17 percent left
leg impairment or 2 percent right leg impairment. In his application for reconsideration,
appellant did not meet the requirements of 20 C.F.R. § 10.606(b)(2) and the Office properly
refused to reopen the case for merit review.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 7, September 1 and April 23, 2009 are affirmed.
Issued: February 16, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Tallahassee, FL, Employer
__________________________________________

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

Docket No. 18-0445
Issued: August 14, 2018

Case Submitted on the Record

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

JURISDICTION
On December 29, 2017 appellant, through counsel, filed a timely appeal from a
November 28, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty on December 7, 2016, as alleged.
FACTUAL HISTORY
On December 7, 2016 appellant, then a 60-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that he was seriously injured by hard impact when his vehicle ran off
the road and hit a tree at 9:00 p.m. that day. He stated that he was on official business and noted
head, rib, and extremity injuries. The claim form indicated that appellant’s duty station was at
2800 South Adams Street, Tallahassee, Florida, and his regular work hours were 8:00 a.m. to
5:00 p.m.
The employing establishment controverted the claim, maintaining that appellant was not
in the performance of duty, noting that he was off the clock and had deviated from the direct line
of travel to retrieve his vehicle from a repair shop while travelling home. It also noted that no
medical documentation had been submitted.
By development letter dated January 24, 2017, OWCP informed appellant of the
deficiencies of his claim and advised him of the type of medical and factual evidence needed to
establish the claim. It afforded him 30 days to submit the necessary evidence. In a note to the
employing establishment, OWCP stated that, if appellant had been treated at an employing
establishment medical facility, his treatment notes should be submitted to OWCP.
In an undated response, appellant indicated that on the date of injury he went to work, and
after delivering mail for about three miles, his personal vehicle that he used for mail delivery,
broke down. He called his supervisor and a tow truck which took him back to the employing
establishment and then towed his SUV to AAA1 Transmission to be repaired. Appellant related
that he used an employing establishment long life vehicle (LLV) to complete his route, and that
when he returned the LLV, the night supervisor advised him at 9:00 p.m. that he had permission
to pick up his personal vehicle. He stated that he needed his personal vehicle for work the next
day, and that the postmaster, day and night supervisors, were aware that he had to deviate from his
usual route home to pick up his vehicle, which had been repaired. Appellant reported that his wife
picked him up and took him to AAA1 Transmission where he picked up his personal vehicle. He
indicated that the motor vehicle accident at issue occurred in front of the employing establishment
as he was driving home, and that he was hospitalized for one week following the accident.3
Dr. Colby Scott Redfield, Board-certified in emergency medicine, completed a Tallahassee
Memorial Healthcare, Inc. emergency department report dated December 7, 2016. He reported a
history that appellant’s mail truck had hit a tree, and that he had been transported to the hospital
by emergency services. Dr. Redfield noted appellant’s complaint of right rib and right abdominal
pain. Physical examination demonstrated multiple facial lacerations, chest abrasions, and a deep
laceration of the right lower leg which was repaired. Chest x-ray demonstrated right-sided rib
3
The employing establishment is located at 2355 Centerville Road, Tallahassee, Florida. AAA1 Transmission is
located at 1023 North Monroe Street, Tallahassee, Florida.

2

fractures. Head and cervical spine computerized tomography (CT) scans demonstrated no acute
injuries. Torso CT scan demonstrated multiple bilateral rib fractures, hemoperitoneum, and
possible liver fracture. Facial CT scan demonstrated nasal fracture. Dr. Redfield diagnosed
contusion, fracture, laceration, head injury, neck injury, and noted that lacerations were repaired.
Dr. Shelby L. Blank, a Board-certified surgeon, examined appellant after he was admitted
on December 6, 2017. She noted a history that he was transported to the hospital after running his
truck into a tree. Dr. Blank advised that appellant was alert and oriented, in no acute distress, and
mildly confused. Following physical examination, she diagnosed bilateral rib fractures, liver
contusion, mild mental status changes, nasal and facial abrasions and fractures, and lower
extremity lacerations, which had been repaired in the emergency department.
On February 1, 2017 Dr. L. Chris DeRosier, a Board-certified plastic surgeon, noted that
appellant developed a hematoma on his leg following a car accident. He advised that appellant
could not work until March 1, 2017 and that surgery was pending.
In a January 5, 2017 statement, R.W., manager of customer service, reported that, on
December 7, 2016 appellant, a rural carrier, was involved in a single vehicle accident at
approximately 9:00 p.m. He noted that appellant reported to work in his personal vehicle at 7:00
a.m., and that at approximately 11:00 a.m. appellant called to state that his SUV had broken down,
and that he needed an LLV. R.W. related that a tow truck driver brought appellant back to the
employing establishment, that appellant ﬁnished his route in the LLV, and signed out at 8:10 p.m.
Appellant then retrieved his personal vehicle at some time during the period between 8:10 p.m.
and 9:00 p.m. when he was involved in a single vehicle accident. R.W. indicated that it was the
employing establishment’s contention that appellant was not in the performance of duty for two
reasons. First, because appellant had not used his personal vehicle to finish his route and, therefore,
would not be covered for the drive home. Second, because he had deviated from a direct line of
travel to retrieve his vehicle from the shop.
By decision dated March 2, 2017, OWCP denied appellant’s claim. It found that he was
not in the performance of duty at the time of the December 7, 2016 motor vehicle accident because
he had deviated from his usual route home to conduct personal business.
On March 14, 2017 appellant, through counsel, timely requested a hearing before an
OWCP hearing representative. Counsel submitted evidence previously of record, and a Step 1
grievance denial by the employing establishment which indicated that appellant was not on the
clock when he had the accident and had deviated on the trip home when he had the accident at
9:00 p.m., noting that he left at 8:10 p.m.4
An unsigned, partial copy of a State of Florida traffic crash report indicated that a single
vehicle accident was reported at 8:58 p.m. on December 7, 2016, that it occurred on Centerville
4

Appellant’s union had provided a detailed statement of disputed facts. It maintained that after appellant left AAA1
Transmission he was following his normal line of travel when he lost control of his vehicle and hit a tree, suffering a
head injury among other conditions. The union indicated that he was discharged from the hospital on
December 12, 2016. Correspondence dated February 13, 2017 indicated that appellant’s union appealed the Step 1
grievance denial.

3

Road 35-feet south of the intersection with Centre Point Boulevard, that appellant was driving,
that he had run off the right side of the roadway, and that he had nonincapacitating injuries.
Medical evidence submitted included an undated report from Dr. Blank indicating that
appellant was off work for one month due to the December 7, 2016 motor vehicle accident. A
form dated January 12, 2017, indicated that appellant was discharged from the wound care center
pending results of an ultrasound on his left leg. A left thigh CT scan order with an illegible
signature noted pertinent history of a motor vehicle accident in December 7, 2016, now with large
left thigh mass, likely fluid collection vs. hematoma. On March 28, 2017 Dr. DeRosier noted that
appellant had a large traumatic injury to his left thigh that required extensive surgery and
subsequent fairly intensive care for wound healing, with recovery extending until June 2, 2017.
On June 9, 2017 Scott O. Burkhart, Psy.D., clinical director of a concussion center,
indicated that appellant was under his care and should not return to work until July 10, 2017. He
noted that appellant was seen again on June 29, 2017. In an undated report, Dr. Burkhart related
that appellant had been his patient since June 9, 2017 for a concussion sustained on
December 7, 2016. He noted that appellant had been experiencing cognitive dysfunction in areas
of attention, concentration, and memory and could also have difficulty in making judgment
decisions, both personal and financial. Dr. Burkhart opined that appellant’s cognitive difficulties
and challenges were the direct result of the December 7, 2016 injury. On July 24, 2017 he referred
appellant for vision therapy.
During the hearing, held on September 14, 2017, appellant described the events of
December 7, 2017, indicating that his wife picked him up after work and took him to the vehicle
repair shop. He testified that he did not remember how the motor vehicle accident happened and
perhaps he had the wreck due to exhaustion because he was working 12 to 14-hour days. Counsel
maintained that, because the employing establishment told appellant that he would need his vehicle
the next day, appellant was in the performance of duty when picking it up, that he was reimbursed
mileage for the use of his personal vehicle, and that he now had a traumatic brain injury and had
not returned to work.
By decision dated November 28, 2017, an OWCP hearing representative affirmed the
March 2, 2017 decision. She found that appellant was not in the performance of duty because, at
the time of the December 7, 2016 motor vehicle accident, he was conducting personal business
and had deviated from his direct route home.
LEGAL PRECEDENT
Congress, in providing for a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness, or mishap that might befall
an employee contemporaneous or coincidental with his or her employment. Liability does not
attach merely upon the existence of an employee/employing establishment relation. Instead,
Congress provided for the payment of compensation for “the disability or death of an employee
resulting from personal injury sustained while in the performance of his duty.”5 The phrase “while
in the performance of duty” has been interpreted by the Board to be the equivalent of the commonly
5

5 U.S.C. § 8102(a); Angel R. Garcia, 52 ECAB 137 (2000).

4

found prerequisite in workers’ compensation law of “arising out of and in the course of
employment.” In addressing this issue, the Board has stated: “In the compensation field, to occur
in the course of employment, in general, an injury must occur: (1) at a time when the employee
may reasonably be [stated] to be engaged in his or her master’s business; (2) at a place where he
or she may reasonably be expected to be in connection with the employment; and (3) while he or
she was reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.”6 In deciding whether an injury is covered by FECA, the test is whether, under
all the circumstances, a causal relationship exists between the employment itself, or the conditions
under which it is required to be performed, and the resultant injury.7
The Board has also recognized as a general rule that off-premises injuries sustained by
employees having fixed hours and place of work, while going to or coming from work, are not
compensable as they do not arise out of and in the course of employment. Rather, such injuries
are merely the ordinary, nonemployment hazards of the journey itself, which are shared by all
travelers.8 Due primarily to the myriad of factual situations presented by individual cases over the
years, certain exceptions to the general rule have developed where the hazards of travel may fairly
be considered a hazard of employment. Exceptions to the general coming and going rule have
been recognized, which are dependent upon the relative facts of each claim: (1) where the
employment requires the employee to travel on the highways; (2) where the employing
establishment contracts to and does furnish transportation to and from work; (3) where the
employee is subject to emergency calls, as in the case of firefighter; (4) where the employee uses
the highway to do something incidental to his or her employment with the knowledge and approval
of the employing establishment; and (5) where the employee is required to travel during a curfew
established by local, municipal, county, or state authorities because of civil disturbances or other
reasons.9 OWCP procedures indicate:
“Where the Employment Requires the Employee to Travel. This situation will not
occur in the case of an employee having a fixed place of employment unless on an
errand or special mission. It usually involves an employee who performs all or
most of the work away from the industrial premises, such as a chauffeur, truck
driver, or messenger. In cases of this type, the official superior should be requested
to submit a supplemental statement fully describing the employee’s assigned duties
and showing how and in what manner the work required the employee to travel,
whether on the highway or by public transportation. In injury cases a similar
statement should be obtained from the injured employee.”10
It is a well-established principle that where the employee, as part of his or her job, is
required to bring along his or her own car, truck, or motorcycle for use during the working day,
6

George E. Franks, 52 ECAB 474 (2001).

7

Mark Love, 52 ECAB 490 (2001).

8

See R.G., Docket No. 16-1419 (issued December 6, 2016).

9

Id.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.6(b) (August 1992).

5

the trip to and from work is by that fact alone embraced within the course of employment.11
Because rural carriers may use their own transportation to deliver their routes, which is a benefit
to the employing establishment, they may be deemed to be in the performance of their duties when
they are driving their vehicles to and from their route, when they are required by the employing
establishment to provide their own transportation.12
The Board has also recognized the special errand exception to the going to and coming
from work rule. When the employee is to perform a special errand, the employing establishment
is deemed to have agreed, expressly or impliedly, that the employment service should begin when
the employee leaves home to perform the errand. Ordinarily, cases falling within this exception
involve travel which differs in time or route or because of an intermediate stop, from the trip which
is normally taken between home and work. In such a case, the hazard encountered in the trip may
differ somewhat from that involved in normally going to and returning from work. However, the
essence of the exception is not found in the fact that a greater or different hazard is encountered,
but in the agreement to undertake a special task. For this reason, coverage is afforded from the
time the employee leaves home, even though in time and route the journey may be, in part, identical
to that normally followed in going to work.13
ANALYSIS
The Board finds that this case is not in posture for decision.
The facts indicate that on December 7, 2016 appellant was delivering mail in his personal
vehicle when it broke down. He had it towed to AAA1 Transmission, and finished his route in an
employing establishment LLV. After appellant signed out at 8:10 p.m., his wife picked him up
and took him to AAA1 Transmission to pick up his repaired vehicle. Appellant alleges that he had
to pick up his vehicle following work on December 7, 2016 because he needed it to perform his
work the next day. The accident occurred as he was driving away from the repair shop, allegedly
heading to his home.
The Board finds that the case record as transmitted to the Board is insufficient and would
not permit an informed adjudication of the case by the Board. There is insufficient evidence
regarding the employing establishment’s policy regarding use of a personal vehicle by a rural
carrier, particularly as it is relevant to whether appellant was required to use his personal vehicle
each day and whether he would have needed his vehicle to perform his employment duties on
December 8, 2016. Once OWCP has begun investigation of a claim, it must pursue the evidence
as far as reasonably possible, particular when such evidence is in the possession of the employing
establishment and is, therefore, more readily accessible to OWCP.14

11

Lex K. Larson, Larson’s Workers’ Compensation, § 15.05 (2013).

12

L.T., Docket No. 09-1798 (issued August 5, 2010).

13

D.T., Docket No. 11-0751 (issued March 12, 2012).

14

J.C., Docket No. 15-1517 (issued February 25, 2016); T.M., Docket No. 14-1631 (issued December 2, 2014).

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Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence to see that justice is done.15 The
Board finds that the claims examiner did not sufficiently develop the factual evidence as required
by its procedures by obtaining a statement from appellant’s official superior describing the manner
in which the work required the employee to travel with his own vehicle as a rural carrier.16 OWCP
should have attempted to ascertain additional information from the employing establishment
including whether appellant was required to have his personal vehicle to deliver mail and, if so
whether he was told on December 7, 2016 that he had to have it for mail delivery the next day.
Accordingly, the November 28, 2017 decision will be set aside and the case remanded for
further development including, but not limited to evidence from the employing establishment
evidence regarding its policies on personal vehicle use by rural carriers or any agreements between
appellant and the employing establishment regarding the use of his own vehicle.
Following this and such further development deemed necessary, OWCP shall issue a de
novo decision on the merits of appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

15

See Phillip L. Barnes, 55 ECAB 426 (2004).

16

Supra note 10.

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ORDER
IT IS HEREBY ORDERED THAT the November 28, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for proceedings
consistent with this opinion of the Board.
Issued: August 14, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF JUSTICE, U.S.
PROBATION DEPARTMENT, EASTERN
DISTRICT OF NEW YORK, Brooklyn, NY,
Employer
__________________________________________

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

Docket No. 14-482
Issued: May 15, 2014

Case Submitted on the Record

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

JURISDICTION
On December 23, 2013 appellant, through her attorney, filed a timely appeal from the
October 29, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained
bilateral knee, back and right shoulder injuries on November 15, 2012 while in the performance
of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 21, 2012 appellant, then a 38-year-old probation officer, filed a traumatic
injury claim alleging pain in both knees, back and right shoulder as a result of being struck by a
sport utility vehicle (SUV) as she crossed the street on November 15, 2012. She submitted a
police accident report regarding the November 15, 2012 incident.
In a November 16, 2012 medical report, Dr. Michael M. Raffinan, a Board-certified
family practitioner, diagnosed a sprain not otherwise specified. He placed appellant on lightduty work through November 30, 2012.
An unsigned hospital report dated November 15, 2012 noted that appellant was treated by
Debra Duncan-Anderson, a nurse practitioner. She was diagnosed as having a sprain and strain
of an unspecified site of the back. In a November 15, 2012 prescription, Ms. Duncan-Anderson
ordered ibuprofen to treat appellant’s sprain and strain.
By letter dated November 28, 2012, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It requested that she submit additional factual and
medical evidence, including a rationalized medical opinion from an attending physician which
provided dates of examination and treatment, a history and date of injury, a detailed description
of findings and test results, a diagnosis and clinical course of treatment together with a
physician’s opinion explaining how the reported November 15, 2012 work incident caused or
aggravated a medical condition. OWCP also requested that the employing establishment submit
factual and any medical evidence regarding treatment appellant received at its medical facility.
In a December 5, 2012 letter, the employing establishment stated that appellant was
conducting official business when she was struck by an SUV on November 15, 2012.
On December 12, 2012 appellant stated that she was conducting an initial home visit as
required at the time of her injury on November 15, 2012.
On November 28, 2012 Dr. Raffinan prescribed physical therapy to treat appellant’s neck
and back sprain after a car accident. On December 5, 2012 he reported a history of the
November 15, 2012 incident and appellant’s medical treatment. Dr. Raffinan saw her on
November 16, 2012, at which time she complained about pain in her knees, upper and lower
back and shoulders, more on the right side than the left side. He provided findings on physical
examination and placed appellant off work from November 20 through December 4, 2012. On
November 28, 2012 appellant returned to Dr. Raffinan’s office with pain in the same areas.
Dr. Raffinan stated that his examination findings were similar to those of November 16, 2012.
He referred appellant to an orthopedic surgeon for further evaluation and advised that until a
determination was made by this physician, she was unable to perform field work. Dr. Raffinan
stated that this type of work may require defensive or combative actions which would worsen her
sprained back, shoulders and knees.
Daily notes from physical therapists addressed the treatment of appellant’s lumbago on
December 7, 12 and 20, 2012.

2

In a January 3, 2013 decision, OWCP accepted that the November 15, 2012 incident
occurred as alleged. It denied appellant’s claim, however, finding that she failed to submit
sufficient medical evidence to establish that her back, shoulder or knee injuries were causally
related to the accepted employment incident.
On January 25, 2013 appellant requested an oral hearing before an OWCP hearing
representative.
Daily notes from physical therapists addressed the treatment of appellant’s lumbago on
December 21 and 31, 2012 and January 2, 2013.
In a January 17, 2013 report, Dr. Keith S. Tobin, a Board-certified radiologist, advised
that an x-ray of the right knee was normal.
On January 17, 2013 Dr. Leon E. Popovitz, an orthopedic surgeon, reported that appellant
had suffered from right knee pain for approximately two months. He obtained a history of the
November 5, 2012 employment incident. Dr. Popovitz listed findings on physical examination
and assessed appellant as having right knee pain possibly secondary to a meniscal tear. He
recommended further diagnostic testing of the right knee. In reports dated January 24 and
March 28, 2013, Dr. Popovitz listed physical examination findings and diagnostic test results.
He assessed appellant as having right knee patellofemoral syndrome which was recovering well.
In a January 24, 2013 report, Dr. William Louie, a Board-certified radiologist, advised
that an x-ray of the lumbar spine revealed subtle grade 1 retrolisthesis at L5-S1.
In reports dated March 28 and May 21, 2013, Dr. Michael Y. Mizhiritsky, a Boardcertified physiatrist, noted that appellant’s back pain had improved. He listed findings on
physical examination and diagnosed lumbar sprain and strain, and myofascial pain syndrome.
In a June 20, 2013 decision, an OWCP hearing representative affirmed the January 3,
2013 decision. She found that appellant failed to submit sufficient medical evidence to establish
a causal relationship between her diagnosed medical conditions and the November 15, 2012
employment incident.
On July 30, 2013 appellant, through her attorney, requested reconsideration.
In a July 9, 2013 report, Dr. Mizhiritsky advised that appellant sustained a lumbar stain
and myofascitis secondary to the November 15, 2012 employment incident. He noted that a
January 2013 x-ray revealed mild retrolisthesis and no fractures. Dr. Mizhiritsky further noted
that appellant was currently attending physical therapy two to three times a week for six weeks.
He advised that if her symptoms worsened he would possibly obtain a magnetic resonance
imaging scan and electromyogram to rule out disc pathology.
In an October 29, 2013 decision, OWCP denied modification of the June 20, 2013
decision. It found that Dr. Mizhiritsky’s July 9, 2013 report was not sufficiently rationalized to

3

establish that appellant sustained lumbar conditions causally related to the November 15, 2012
employment incident.2
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.6
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.8 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.9 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.10
ANALYSIS
OWCP accepted that on November 15, 2012 appellant was struck by an SUV while in the
performance of duty. It found that the medical evidence failed to establish that she sustained
bilateral knee, back and right shoulder injuries as a result of the accepted incident. The Board
2

Following the issuance of the October 29, 2013 decision, OWCP received additional evidence. The Board
cannot consider evidence for the first time on appeal which was not before OWCP at the time it issued the final
decision in the case. See 20 C.F.R. § 501.2(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007);
Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
3

5 U.S.C. §§ 8101-8193.

4

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

5

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

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

7

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

8

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
9

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

10

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

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finds that appellant failed to provide sufficient medical evidence to establish that she sustained
bilateral knee, back and right shoulder conditions causally related to the November 15, 2012
employment incident.
In a July 9, 2013 report, Dr. Mizhiritsky found that appellant sustained a lumbar strain
and myofascitis secondary to the November 15, 2012 employment incident. Although he
generally supported causal relationship, he did not adequately explain the basis of his
conclusion.11 Dr. Mizhiritsky noted the results of the January 24, 2013 lumbar x-ray and that
appellant was undergoing physical therapy. He advised that further diagnostic testing may be
required if appellant’s symptoms worsened. Dr. Mizhiritsky did not provide a fully-rationalized
opinion explaining how the accepted employment incident caused the diagnosed medical
conditions. His other reports did not provide a medical opinion addressing the causal
relationship between the accepted employment incident and appellant’s lumbar sprain and strain,
and myofascial pain syndrome. Medical evidence which does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value.12 For the stated reasons, the
Board finds that Dr. Mizhiritsky’s reports are of diminished probative value and insufficient to
establish appellant’s claim.
Similarly, Dr. Raffinan’s November 16, 2012 report which found that appellant had a
sprain not otherwise specified is also insufficient to establish the claim, as this report does not
provide a medical opinion addressing whether the accepted employment incident caused or
aggravated the diagnosed condition.13 Further, on November 28, 2012 he prescribed physical
therapy to treat appellant’s neck and back sprain post car accident, but he did not specifically
address whether the accepted work incident caused or aggravated the diagnosed conditions.14 In
a December 5, 2012 report, Dr. Raffinan provided a history of the November 15, 2012
employment incident and appellant’s medical treatment. He stated that his examination findings
were similar to his prior November 16, 2012 examination findings. Dr. Raffinan did not provide
a sufficiently rationalized medical opinion explaining why being hit by an SUV on
November 15, 2012 caused appellant’s sprain. He noted that she was being treated by an
orthopedist and found that until the physician determined otherwise, she was unable to perform
field work because it may require defensive or combative actions that would worsen her sprained
back, shoulders and knees. However, the Board has held that fear of future injury is not
compensable.15 For the stated reasons, the Board finds that Dr. Raffinan’s reports are
insufficient to establish appellant’s claim.
Dr. Popovitz’s January 17, 2013 report found that appellant had right knee pain possibly
secondary to a meniscal tear. His opinion, however, does not specifically address whether the
11

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
12

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

13

Id.

14

Id.

15

I.J., 59 ECAB 408 (2008).

5

November 15, 2012 employment incident caused an injury.16 Dr. Popovitz did not otherwise
state that being hit by an SUV on November 15, 2012 caused a meniscal tear nor did he provide
adequate rationale explaining how the diagnosed condition resulted from the accepted incident or
worsened her underlying right knee condition. His other reports also failed to provide an opinion
addressing whether appellant’s diagnosed right knee patellofemoral syndrome was caused by the
accepted employment incident.17 The Board finds that Dr. Popovitz’s reports are insufficient to
establish appellant’s claim.
Dr. Tobin’s January 17, 2013 diagnostic test results did not find that appellant had a right
knee condition causally related to the accepted employment incident. He advised that an x-ray of
the right knee was normal.
Dr. Louie’s January 24, 2013 x-ray report found that appellant had subtle grade 1
retrolisthesis at L4-S1, but he did not opine that the diagnosed condition was caused by the
November 15, 2013 employment incident.18 The Board finds, therefore, that Dr. Louie’s report
is insufficient to establish appellant’s claim.
The reports from Ms. Duncan-Anderson, a nurse practitioner, and appellant’s physical
therapists are insufficient to establish appellant’s claim. As neither a nurse practitioner nor a
physical therapist is considered to be a physician as defined under FECA, their opinions are of
no probative value.19
The unsigned hospital report is insufficient to establish appellant’s claim. A report that is
unsigned or bears an illegible signature lacks proper identification and cannot be considered
probative medical evidence.20 The Board finds that there is insufficient medical evidence to
establish that appellant sustained bilateral knee, back and right shoulder injuries causally related
to the accepted November 15, 2012 employment incident.
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.

16

See cases cited, supra note 12.

17

Id.

18

Id.

19

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors
and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8102(2); A.C.
Docket No. 08-1453 (issued November 18, 2008) (records from a physical therapist do not constitute competent
medical opinion in support of causal relation, as physical therapists are not physicians as defined under FECA);
L.D., 59 ECAB 648 (2008) (a nurse practitioner is not a physician as defined under FECA); Roy L. Humphrey, 57
ECAB 238 (2005).
20

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

6

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained bilateral knee, back and right shoulder injuries on November 15, 2012 while in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the October 29, 2013 decision of the Office of
Workers’ Compensation Programs are affirmed.
Issued: May 15, 2014
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, NETWORK
DISTRIBUTION CENTER, Allen Park, MI,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1192
Issued: January 6, 2020

Case Submitted on the Record

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

JURISDICTION
On May 7, 2019 appellant, through counsel, filed a timely appeal from a January 14, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the January 14, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On February 12, 2018 appellant, then a 21-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that she developed right shoulder bursitis due to factors of her
federal employment. She noted that she was working in a light-duty capacity and was only able
to use her right arm/shoulder.4 Appellant further indicated that she first became aware of her
condition and its relation to factors of her federal employment on November 17, 2015. She
stopped work on January 18, 2017.
In reports dated November 17 and December 30, 2015 and February 2, 2016, Dr. Faiz
Rahman, a Board-certified family medicine and emergency medicine physician, diagnosed rotator
cuff strain, neck strain, Ganglion cyst, left shoulder pain, upper back pain on left side, strain of left
rotator cuff capsule, and bursitis of right shoulder. He indicated that physical therapy had
worsened appellant’s symptoms and she had been compensating with her right arm/shoulder and
upper back, but it was not as bad as compared to the left.
In a development letter dated April 11, 2018, OWCP informed appellant that the factual
and medical evidence of record was insufficient to establish her claim. It advised her regarding
the evidence necessary to establish her claim and afforded her 30 days to submit the necessary
evidence.
In response, appellant submitted a narrative statement dated April 11, 2018, indicating that
when she first returned to work following her injuries, her supervisor had a limited amount of
employees and she ordered her to assist her in pulling empty all-purpose containers (APC’s). Her
duties changed and she had to push a dumpster button with her right side and then assist with
sorting loose mail. Appellant indicated that she was ordered to pull with her right side for
approximately an hour, she would push the dumpster button for approximately 2.5 hours, and she
would sort loose mail for approximately 2 hours.
By decision dated May 22, 2018, OWCP denied the claim finding that the medical
evidence of record was insufficient to establish causal relationship between appellant’s diagnosed
condition(s) and the accepted factors of her federal employment.
Appellant subsequently submitted an undated report from Dr. Rahman who indicated that
appellant was first seen in his office on August 14, 2015 and last seen on July 5, 2016. Dr. Rahman
noted that, when she was injured on August 13, 2015, she weighed 133 pounds and was injured
while pushing, pulling, and heavy lifting in excess of 50 pounds and suffered a muscle strain in
her left neck, shoulder, and upper back. He indicated that appellant failed physical therapy and
then continued with a pain management, muscle relaxers, and anti-inflammatory medication
regimen prescribed by him. Dr. Rahman indicated that, although there was no diagnosis code
4

Appellant has a prior claim for an August 13, 2015 traumatic injury, which OWCP accepted for left shoulder
bursitis and rotator cuff strain under OWCP File No. xxxxxx025. OWCP has not administratively combined these
claims.

2

documented in his December 30, 2015 report, she had exhibited a strain to the right side of her
upper back, neck, and right shoulder. He recalled appellant explaining to him that, despite her
weight lifting restrictions, her immediate supervisor had her do more physical work outside of her
recommended restrictions. Dr. Rahman opined that she most likely had a permanent injury at this
point in time. He noted that a magnetic resonance imaging (MRI) scan dated March 3, 2016 was
attached, but it is not of record.
On June 11, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
OWCP received an additional March 12, 2016 report from Dr. Rahman who continued to
diagnose left and right shoulder pain.
A telephonic hearing was held before an OWCP hearing representative on
November 7, 2018. Appellant testified that she had a prior approved claim for the left shoulder,
she had returned to work with restrictions on August 13, 2015, and performed her duties until
November 2015. She alleged that initially her supervisor did not honor her restrictions of no
lifting, pushing, or pulling over five pounds. Appellant was required to pull APC’s, which could
weigh up to 700 pounds, to help her supervisor set up equipment. She related that she performed
these duties for a period of time until her right shoulder gave out in November 2015. Appellant
also testified that her duties changed to require the pushing of a button and mail sorting, which still
placed pressure on her right shoulder. She worked on and off until she stopped work in
January 2017. Counsel argued that the evidence submitted was sufficient to compel further
development of the medical evidence. The hearing representative held the case record open for 30
days for the submission of additional evidence. No additional evidence was received.
By decision dated January 14, 2019, OWCP’s hearing representative affirmed the May 22,
2018 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability or specific condition for which compensation is claimed is causally related
to the employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
5

Supra note 2.

6

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
7

K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

3

disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.10 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.
OWCP received a series of reports from Dr. Rahman. In an undated report, Dr. Rahman
explained that he had first examined appellant on August 14, 2015 and last treated her on
July 5, 2016. He related that in August 2015 appellant’s injury was to the left side of her neck,
left shoulder, and left side of her upper back. However, after her return to work, appellant had a
strain to the right side of her upper back, right side of her neck, and right shoulder. The Board has
held, however, that neither the mere fact that a disease or condition manifests itself during a period
of employment, nor the belief that the disease or condition was caused or aggravated by
employment factors, is sufficient to establish causal relationship.12 Dr. Rahman’s report is
therefore insufficient to establish the claim.
In reports dated from November 17, 2015 through February 2, 2016, Dr. Rahman related
that appellant had been compensating with her right arm/shoulder and back, following her left
shoulder injury. The Board has held that a report is of limited probative value regarding causal
relationship if it does not contain medical rationale explaining how a given medical
condition/disability was related to employment factors.13 Therefore, these reports from
Dr. Rahman are also insufficient to meet appellant’s burden of proof.
As appellant has not submitted rationalized medical evidence explaining a causal
relationship between appellant’s diagnosed conditions and the accepted employment factors, the
Board finds that she has not met her burden of proof to establish the claim.
8

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
9

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

10

M.V., Docket No. 18-0884 (issued December 28, 2018).

11

Id.; Victor J. Woodhams, supra note 8.

12

See J.L., Docket No. 18-1804 (issued April 12, 2019).

13

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

4

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 right shoulder
condition causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the January 14, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 6, 2020
Washington, DC

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

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

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

5