United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.K., Appellant
and
U.S. POSTAL SERVICE, NEW HYDE PARK
ANNEX, New Hyde Park, NY, Employer
__________________________________________
Appearances:
Stephen V. Barszcz, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 18-1594
Issued: March 8, 2019

Case Submitted on the Record

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

On August 15, 2018 appellant, through counsel, filed a timely appeal from a June 12, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards docketed the appeal as No. 18-1594.2
On October 17, 2017 appellant, then a 51-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that on January 13, 2017 he first became aware that his
bilateral knee osteoarthritis, left knee chondromalacia, and left knee degenerative joint disease had

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
The Board notes that following the June 12, 2018 decision, OWCP received additional evidence. Appellant also
submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: “The Board’s review
of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence
not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus,
the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

been caused or aggravated by his federal employment. He stated that prior to a February 4, 2014
left knee work injury that he had no problems with his knees.
By decision dated January 29, 2018, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish causal relationship between the
diagnosed bilateral knee conditions and the accepted factors of his federal employment. In denying
appellant’s claim, it referenced medical evidence contained in OWCP File No. xxxxxx681,
including reports from Dr. Joseph Stubel, a treating physician Board-certified in orthopedic
surgery and sports medicine. On March 20, 2018 counsel requested reconsideration and provided
additional evidence. By decision dated June 12, 2018, OWCP denied modification.
The Board finds that this case is not in posture for decision. Pursuant to 20 C.F.R.
§ 501.2(c)(1), 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. Decisions on claims are based on the written record,
which may include forms, reports, letters, and other evidence of various types such as photographs,
videotapes, or drawings.3 Evidence may not be incorporated by reference, nor may evidence from
another individual’s case file be used.4 Evidence contained in another of the claimant’s case files
may be used, but a copy of that evidence should be placed into the case file being adjudicated.5
All evidence that forms the basis of a decision must be in that claimant’s case record.6
In adjudicating the present occupational disease claim, File No. xxxxxx897, OWCP
specifically referenced medical evidence obtained from his prior traumatic injury claim, File No.
xxxxxx681, which was accepted on April 7, 2014 for left knee sprain. However, it did not combine
the two case records or incorporate the referenced evidence into the current case record.7 The
Board is therefore not in a position to make an informed decision regarding appellant’s entitlement
to FECA benefits.8 The case shall be remanded to OWCP to administratively combine case File
Nos. xxxxxx897 and xxxxxx681. Following this and any other further development as deemed
necessary, it shall issue a de novo decision regarding appellant’s occupational disease claim under
OWCP File No. xxxxxx897.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5(a)
(June 2011).
4

Id.

5

Id.

6

Id.

7
See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000) (cases should be combined when correct adjudication of the issues depends on frequent crossreferencing between files).
8
See C.R., Docket No. 17-1262 (issued May 21, 2018); K.P., Docket No. 15-1945 (issued February 10,
2016); M.C., Docket No. 15-1706 (issued October 22, 2015).

2

IT IS HEREBY ORDERED THAT the June 12, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this order.
Issued: March 8, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 12-583
Issued: July 25, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 13, 2012 appellant filed a timely appeal from a December 21, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying a schedule award
for an employment-related hearing loss and hearing aids. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained a ratable hearing loss entitling him to a schedule award; and (2) whether he is entitled
to hearing aids.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 29, 2011 appellant, then a 71-year-old metal forger, filed an occupational disease
claim alleging that he developed hearing loss as a result of employment-related noise exposure.
He noted that he was exposed to loud noise while working in the forge shop. Appellant first
became aware of his condition and of its relationship to his employment on January 1, 1990. He
stopped work on April 30, 1993 the date of his retirement.
Appellant submitted a history of employee health records with audiogram results dated
from October 19, 1979 to August 11, 1992. The August 11, 1992 audiogram results revealed the
following decibel losses at 500, 1,000, 2,000 and 3,000 Hertz (Hz): 10, 0, 5 and 15 for the right
ear and 5, 10, 15 and 30 for the left ear.
In a July 1, 2011 report, Dr. Gerald G. Randolph, a Board-certified otolaryngologist,
noted that he examined appellant on June 29, 2011 regarding his hearing loss claim. He related
that appellant complained of hearing loss and constant tinnitus in both ears for approximately
20 to 25 years. Dr. Randolph reviewed appellant’s job history from 1958 until 2000. From 1958
until 1962, appellant was on active duty with the U.S. Marine Corporation. From 1962 until
1966, he worked as a bus driver and was not exposed to loud noises. From 1966 until 1993,
appellant worked as a blacksmith and a foreman in the blacksmith shop at the employing
establishment and was exposed to noise from steam hammers, drop hammer machines and
furnaces. Hearing protection was utilized where required. From 1993 until 2000, appellant
worked at a golf course with no significant noise exposure. Upon examination, Dr. Randolph
observed normal external auditory canals and tympanic membranes. An audiogram completed
on June 29, 2011 revealed the following decibel losses at 500, 1,000, 2,000 and 3,000 Hz: 10,
20, 30 and 60 for the right ear and 10, 20, 60 and 65 for the left ear. Dr. Randolph diagnosed
bilateral sensorineural hearing loss. He also stated that an audiogram revealed hearing loss with
an audiometric configuration entirely compatible with hearing loss due to a combination of part
noise exposure and the aging process. Dr. Randolph concluded that in accordance with the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides), appellant had 7.5 percent monaural hearing loss in the right ear,
20.65 percent monaural hearing loss in the left ear and 9.69 percent binaural hearing loss. He
stated that no additional rating for tinnitus was indicated and that appellant was a candidate for
bilateral fitting of appropriate hearing aids.
By letter dated August 8, 2011, OWCP requested additional factual information from
both appellant and the employing establishment. Appellant was requested to provide
information regarding his employment history. He was asked to identify when he related his
hearing loss to conditions of employment and identify all nonoccupational exposure to noise.
OWCP also requested that appellant provide medical documentation pertaining to any prior
treatment he received for ear or hearing problems. It requested that the employing establishment
provide noise survey reports for each site where he worked, the sources and period of noise
exposure for each location and whether he wore ear protection.
In an August 3, 2011 statement, the employing establishment noted that appellant worked
at the employing establishment as a metal forger from August 20, 1966 to April 30, 1993 and
was exposed to noise from hammers, drop forge, trip hammers and background noise.

2

In an August 18, 2011 statement, appellant contended that his hearing tests showed
hearing loss related to exposure to loud noise and noted that he used rubber earplugs as
protection against loud noise. He stated that his hobbies outside of his employment included
hunting and fishing.
On November 10, 2011 OWCP requested that Dr. Randolph clarify his July 1, 2011
report and answer certain questions. In a November 21, 2011 report, Dr. Randolph agreed with
the statement of accepted facts and noted that a February 3, 1966 audiogram revealed entirely
normal hearing in both ears. He stated that appellant’s August 11, 1992 audiogram, which was
the last audiogram before he retired, revealed a mild high tone hearing loss in his right ear and
hearing loss at 3,000 and 4,000 cycles in the left ear. Dr. Randolph diagnosed bilateral
sensorineural hearing loss and opined that the workplace exposure as described in the material
provided was of sufficient intensity and duration to have caused and/or aggravated appellant’s
hearing loss. He further explained that appellant’s left ear hearing loss developed during his
employment and was caused by or aggravated by noise exposure but his right ear hearing loss
was not compatible with hearing loss due to noise exposure. Utilizing the A.M.A., Guides
(6th ed. 2009), Dr. Randolph concluded that appellant had zero percent ratable hearing loss in
both ears as of August 1992. He reported that appellant’s current ratable hearing loss was
7.5 percent in the right ear, 20.65 percent in the left hear and 9.69 percent binaural hearing loss
but explained that the increase in his hearing loss since he left civil service would not be due to
his industrial noise exposure during his employment. Dr. Randolph opined that appellant was a
candidate for bilateral fitting of appropriate hearing aids, but that in 1992 he would not be a
candidate for hearing aid evaluation only in his left ear, but not in his right ear.
On December 7, 2011 an OWCP medical adviser reviewed Dr. Randolph’s July 1 and
November 10, 2011 otologic examination reports and agreed that appellant’s left sensorineural
hearing loss in the left ear was due to occupational noise exposure. He explained that the 1992
audiogram showed an early very high tone hearing loss in the right ear which was not compatible
with a hearing loss due to noise exposure. The medical adviser stated that since 1992 there had
been significant deterioration in sensorineural hearing and agreed with Dr. Randolph that any
increase in appellant’s hearing impairment since he retired from federal service would not be due
to industrial noise exposure during his federal employment. He applied the audiometric data to
OWCP’s standard for evaluating hearing loss and determined that appellant had a zero percent
monaural hearing loss in the left ear and a zero percent monaural hearing loss in the right ear for
appellant’s work-related left ear hearing impairment. The medical adviser concluded that
appellant had no ratable hearing loss. He authorized hearing aids for the left ear only.
By decision dated December 21, 2011, OWCP accepted appellant’s claim for left
monaural hearing loss and denied his schedule award claim finding that his hearing loss was not
severe enough to be considered ratable. It authorized hearing aids for the left ear only.

3

LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA2 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides (6th ed. 2009), has been adopted by OWCP for evaluating schedule losses and
the Board has concurred in such adoption.3
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the fence of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.4 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss. The Board has concurred in OWCP’s adoption
of this standard for evaluating hearing loss.5 The Board has also noted OWCP’s policy to round
the calculated percentage of impairment to the nearest whole number.6
Regarding tinnitus, the A.M.A., Guides provides that tinnitus is not a disease but rather a
symptom that may be the result of disease or injury.7 The A.M.A., Guides state that, if tinnitus
interferes with [Activities of Daily Living (ADLs)], including sleep, reading (and other tasks
requiring concentration), enjoying of quiet recreation and emotional well being, up to five
percent may be added to a measurable binaural hearing impairment.8
ANALYSIS -- ISSUE 1
Appellant filed a claim for hearing loss and was examined by Dr. Randolph, who
reviewed appellant’s job history and noted that from 1966 until 1993 he worked as a foreman
2

5 U.S.C. §§ 8101-8193.

3

R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404.

4

See A.M.A., Guides 250.

5

E.S., 59 ECAB 249 (2007); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

6

Robert E. Cullison, 55 ECAB 570 (2004); J.H., Docket No. 08-2432 (issued June 15, 2009). See Federal
(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)(b) (September 2010).
7

See A.M.A., Guides 249.

8

Id. See also Robert E. Cullison, supra note 6; R.H., Docket No. 10-2139 (issued July 13, 2011).

4

and blacksmith at the employing establishment where he was exposed to noise from steam
hammers, drop hammer machines and furnaces. In a November 21, 2011 addendum report,
Dr. Randolph reviewed the statement of accepted facts and appellant’s medical records. He
noted that appellant’s last audiogram in 1992 before he retired revealed a mild high tone hearing
loss in his right ear and hearing loss at 3,000 and 4,000 cycles in the left ear. Dr. Randolph
diagnosed bilateral sensorineural hearing loss. He opined that appellant’s left ear hearing loss
was caused or aggravated by noise exposure during his employment but stated that his right ear
hearing loss was not compatible with hearing loss due to noise exposure. Dr. Randolph noted
that appellant’s hearing had deteriorated since his retirement but determined that the increase in
his hearing loss since he left civil service was not due to industrial noise exposure at work. He
stated that at the time of appellant’s retirement he was entitled to hearing aids for the left ear
only. OWCP’s medical adviser concurred with this finding and further concluded that appellant
had no ratable hearing loss to warrant a schedule award. By decision dated December 21, 2011,
OWCP accepted his claim for left monaural hearing loss, but denied a schedule award and
authorized hearing aids for the left ear.
The Board finds that OWCP properly denied appellant’s schedule award claim.
According to the August 11, 1992 audiogram, appellant’s hearing thresholds were 10, 0, 5
and 15 on the right and 5, 10, 15 and 30 on the left. These total 30 and 60 decibels, respectively,
for averages of 7.5 and 15.0 decibels. Because these averages are below the fence of 25
decibels, appellant is deemed to have no impairment in his ability to hear everyday sounds under
everyday listening conditions.9 This does not mean that he does not suffer from hearing loss. It
means that the extent or degree of loss is not sufficient to show a practical impairment in hearing
according to the A.M.A., Guides. The A.M.A., Guides set a threshold for impairment and
appellant’s occupational hearing loss did not cross that threshold. Thus, appellant’s hearing loss
was not ratable.
On appeal, appellant relates that he worked in the forge shop for 30 years and now
suffered from significant hearing loss due to his exposure to high levels of noise. Both
Dr. Randolph and the medical adviser determined, however, that appellant’s left ear hearing loss
developed during his employment and was caused or aggravated by noise exposure but that the
right ear hearing loss was not compatible with hearing loss due to noise exposure. They further
found that any increase in appellant’s hearing impairment since his retirement would not be due
to industrial noise exposure during his federal employment but from age. Appellant may be
entitled to an award for an increased hearing loss, even after exposure to hazardous noise has
ceased, if the probative medical evidence of record establishes a causal relationship between the
increased loss and the accepted employment exposure.10 The medical evidence of record,
however, does not establish that his right hearing loss or his increased hearing loss of the left side
were caused by his federal employment. Thus, the medical evidence does not establish that
appellant is entitled to a schedule award for ratable hearing loss. For this reason, the Board finds
that OWCP properly denied a schedule award for his nonratable hearing loss.

9

See G.M., Docket No. 11-1295 (issued January 25, 2012).

10

J.S., Docket No. 11-1634 (2012); see Paul Fierstein, 51 ECAB 381 (2000); Federal (FECA) Procedure Manual,
Part 2 -- Claims, Payment of Schedule Awards, Chapter 2.808.7(b)(2) (April 1995).

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Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty the services, appliances and supplies prescribed
or recommended by a qualified physician, which the Secretary of Labor considers likely to cure,
give relief, reduce the degree or the period of any disability or aid in lessening the amount of any
monthly compensation.11 OWCP must therefore exercise discretion in determining whether the
particular service, appliance or supply is likely to affect the purposes specified in FECA.12
Following medical evaluation of a claim, if the hearing loss is determined to be nonratable for
schedule award purposes, other benefits such as hearing aids may still be payable if any
employment-related hearing loss exists.13
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly authorized hearing aids for appellant’s left ear but
not the right ear as the medical evidence of record supports that he is entitled to hearing aids for
the left ear only. Both Dr. Randolph and OWCP’s medical adviser found that appellant was only
entitled to hearing aids for his left ear work-related hearing loss, but not for his right ear. As
previously noted, OWCP is obligated to pay for medical treatment of a work-related injury.14 In
this case, it accepted appellant’s claim for left monaural hearing loss but not for right hearing
loss impairment. Accordingly, OWCP properly authorized hearing aids for the left ear only. On
appeal, appellant alleges that he is in great need of hearing aids and that his physician
recommended wearing two hearing aids. He did not submit any medical evidence from a
physician establishing that he sustained right monaural hearing loss as a result of his employment
or recommending that he be provided with hearing aids for the right ear. Thus, the Board finds
that under these circumstances OWCP did not abuse its discretion under section 8103(a) by
denying authorization for hearing aids for the right ear.15

11

See Joshua A. Holmes, 42 ECAB 231, 236 (1990).

12

5 U.S.C. § 8103.

13

See F.D., Docket No. 10-1175 (issued January 4, 2011); Federal (FECA) Procedure Manual, supra note 6,
Chapter 3.4003(d)(2) (October 1990).
14

Supra note 10.

15

This does not preclude appellant from seeking authorization for hearing aids or other appropriate medical
treatment. See Federal (FECA) Procedure Manual, supra note 13; Raymond VanNett, 44 ECAB 480 (1993).

6

CONCLUSION
The Board finds that appellant has not established a ratable loss of hearing such that he is
entitled to a schedule award. The Board also finds that OWCP did not abuse its discretion in
denying hearing aids.
ORDER
IT IS HEREBY ORDERED THAT the December 21, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 25, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 14-1600
Issued: August 11, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 8, 2014 appellant, through counsel, filed a timely appeal from an April 30, 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.
ISSUE
The issue is whether OWCP properly denied appellant’s claim for a schedule award
because he refused to submit to a medical examination.
FACTUAL HISTORY
On January 17, 2002 appellant, then a 50-year-old mail handler, filed an occupational
disease claim alleging that he sustained bilateral wrist, hand, and arm injuries as a result of his

1

5 U.S.C. § 8101 et seq.

repetitive federal employment duties. OWCP accepted the claim for bilateral tenosynovitis of
hand and wrist, and bilateral sprain of wrist. Appellant stopped work in December 2002.
On January 28, 2008 appellant filed a claim for a schedule award (Form CA-7).
In support of his claim, appellant submitted an April 8, 2008 medical report from
Dr. James Templin, his treating physician, who performed a medical evaluation and calculated
20 percent impairment of the right upper extremity and 11 percent impairment of the left upper
extremity according to the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (A.M.A., Guides).2 The date of maximum medical
improvement (MMI) was noted as December 12, 2005.
OWCP routed Dr. Templin’s report, a statement of accepted facts and the case file to
Dr. Robert W. Wysocki, an OWCP medical adviser and Board-certified orthopedic surgeon, for
an opinion on permanent impairment of the upper extremities. In a May 16, 2008 medical
report, Dr. Wysocki reported that appellant had not reached MMI as surgery had been
recommended.
By decision dated May 29, 2008, OWCP denied appellant’s claim for a schedule award
finding that the evidence was insufficient to establish that he had reached maximum medical
improvement. Appellant requested reconsideration of the decision by letter dated June 17, 2008,
claiming that maximum medical improvement could be declared even if appellant refused
surgery.
By letter dated June 25, 2008, OWCP vacated the May 29, 2008 decision and routed the
case file to an OWCP medical adviser for an opinion on permanent impairment. Appellant
submitted a request for oral hearing on June 29, 2008, but by letter dated August 6, 2008 the
Branch of Hearings and Review denied the request for hearing as it was not in posture for
decision.
In a July 2, 2008 report, Dr. Amon Ferry, an OWCP medical adviser and Board-certified
orthopedic surgeon, opined that appellant had reached MMI on December 12, 2005 and
sustained 14 percent impairment of the right upper extremity and 5 percent impairment of the left
lower extremity based on the fifth edition of the A.M.A., Guides.
Appellant submitted a January 22, 2009 report from Dr. John W. Ellis, Board-certified in
family medicine. Using the fifth edition of the A.M.A., Guides, Dr. Ellis calculated 27 percent
impairment of the right upper extremity and 29 percent impairment of the left lower extremity.
He stated that the date of MMI was December 2003, one year after appellant stopped work.
In an August 13, 2009 report, Dr. Joshua D. Warach, a Board-certified neurologist,
provided electromyography (EMG) and nerve conduction velocity (NCV) findings pertaining to
appellant’s neurologic examination on that date.

2

(5th ed. 2001).

2

OWCP referred appellant and the case file to Dr. Joseph Newcomer, a Board-certified
orthopedic surgeon, for a second opinion examination to determine the extent of permanent
partial impairment according to the sixth edition of the A.M.A., Guides.3 In his December 11,
2009 second opinion evaluation, Dr. Newcomer opined that appellant had no permanent
impairment to the left and right upper extremities because his condition had not reached
maximum medical improvement. He found that appellant’s condition was not permanent as
there remained the possibility of improvement. Dr. Newcomer further found appellant’s
complaints during examination to be an exaggeration of his condition.
OWCP routed the case file to Dr. David H. Garelick, an OWCP medical adviser and
Board-certified orthopedic surgeon, for an opinion on permanent impairment. In an August 16,
2010 medical report, Dr. Garelick recommended a functional capacity evaluation to detect the
validity of appellant’s condition due to the contrary findings of Dr. Ellis and Dr. Newcomer. He
determined that MMI and permanent impairment could not be determined until appellant
submitted for an additional examination.
On September 17, 2010 OWCP referred appellant, a statement of accepted facts, the case
file, a medical conflict statement and a series of questions to Dr. Stephen F. Weiss, a Boardcertified orthopedic surgeon, for an impartial referee medical examination to resolve the conflict
on permanent impairment between Dr. Ellis and Dr. Newcomer.
By letter dated October 13, 2010, OWCP informed appellant that his referee appointment
was scheduled for November 16, 2010 at 9:00 a.m. at Dr. Weiss’ office located at 2951 Montvale
Drive, Suite A, Springfield, Illinois 62704. It informed appellant of the consequences of refusing
or obstructing the examination.
On November 16, 2010 Dr. Weiss’ office notified OWCP that appellant had cancelled his
appointment.
By letters dated December 2 and 7, 2010, OWCP informed appellant that his appointment
with Dr. Weiss had been rescheduled for January 4, 2011 at 10:00 a.m. It further informed him
of the consequences of refusing or obstructing the examination.
By letter dated December 21, 2010, appellant reported that he would not be attending his
appointment with Dr. Weiss, stating that OWCP did not have the medical authority to schedule
his appointments.
By decision dated April 30, 2014, OWCP found that appellant failed to appear for the
referee examination to resolve the conflict in medical opinion between Dr. Ellis and
Dr. Newcomer. It found that his claim for a schedule award was therefore denied as he had not
met the requirements to receive a schedule award.

3

A.M.A., Guides (2009).

3

LEGAL PRECEDENT
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability
as a result of federal employment, to undergo a physical examination as it deems necessary.4
The determination of the need for an examination, the type of examination, the choice of locale,
and the choice of medical examiners are matters within the province and discretion of OWCP.5
OWCP regulations provide that a claimant must submit to an examination by a qualified
physician as often and at such times and places as it considers reasonably necessary.6 Section
8123(d) of FECA and OWCP regulations provide that, if an employee refuses to submit to or
obstructs a directed medical examination, his or her right to compensation is suspended until the
refusal or obstruction ceases.7 OWCP procedures provide that, before it may invoke these
provisions, the employee is to be provided a period for 14 days within which to present in
writing his or her reasons for the refusal or obstruction.8 If good cause for the refusal or
obstruction is not established, entitlement to compensation is suspended in accordance with
section 8123(d) of FECA.9
The Board has previously found that these sections of FECA and the regulations do not
provide a basis for the rejection of a claim for compensation; rather they suspend the right of an
employee to compensation during the period he refuses to submit to an examination.10
ANALYSIS
OWCP directed appellant to attend a referee medical evaluation with Dr. Weiss, a Boardcertified orthopedic surgeon. It found a conflict of medical opinion evidence between Dr. Ellis,
appellant’s physician and Dr. Newcomer, the second opinion physician, regarding the extent of
appellant’s impairment for schedule award purposes. OWCP referenced the August 16, 2010
report from Dr. Garelick, serving as OWCP medical adviser, who opined that a separate
examination was required due to conflicting opinions between Dr. Ellis and Dr. Newcomer.
OWCP referred appellant to Dr. Weiss on September 17, 2010. By letter dated
October 13, 2010, it informed appellant that his appointment was scheduled for November 16,
4

5 U.S.C. § 8123.

5

J.T., 59 ECAB 293 (2008); S.B., 58 ECAB 267 (2007); James C. Talbert, 42 ECAB 974 (1991).

6

20 C.F.R. § 10.320.

7

5 U.S.C. § 8123; 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298 (2006).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13 (September 2010).
9

Id.

10

Karen K. Cassel, 35 ECAB 1053, 1059 (1984). The Board has also noted that when a claimant refuses or
obstructs a medical examination while a claim is under development, the effect of such obstruction merely delays
the development of the claim for the period of the obstruction. Vicki L. McOmber, Docket No. 03-1031 (issued
August 19, 2003).

4

2010 at 9:00 a.m. at Dr. Weiss’ office located at 2951 Montvale Drive, Suite A, Springfield,
Illinois 62704. OWCP further informed him of his obligation to attend the examination.
On November 12, 2010 appellant cancelled his scheduled appointment. By letters dated
December 2 and 7, 2010, OWCP notified appellant that his appointment had been rescheduled
for January 4, 2011 at 10:00 a.m. It further informed him of the consequences of refusing or
obstructing the examination. By letter dated December 21, 2010, appellant reported that he
would not be attending his appointment with Dr. Weiss, stating that OWCP did not have the
medical authority to schedule his appointments.
By decision dated April 30, 2014, OWCP found that appellant failed to appear for the
referee examination to resolve the conflict in medical opinion between Dr. Ellis and
Dr. Newcomer. It denied his claim for a schedule award as he had not met the requirements to
receive a schedule award.
The Board finds that appellant failed to provide good cause for his failure to appear at the
referee medical examination with Dr. Weiss on November 16, 2010 and January 4, 2011.11
Appellant argued that OWCP did not have the authority to schedule his medical examinations.
However, section 8123 of FECA authorizes OWCP to require an employee to undergo a physical
examination as it deems necessary.12 OWCP regulations also provide that a claimant must
submit to an examination by a qualified physician as often and at such times and places as
OWCP considers reasonably necessary.13 Thus, appellant’s reason for failing to attend the
referee examination does not establish good cause.14
The Board finds, however, that OWCP did not have the authority to deny appellant’s
claim for a schedule award based on his obstruction of a scheduled medical examination.15 The
Board has found that section 8123(d) of FECA does not provide a basis for the rejection of a
claim for compensation.16 OWCP may only suspend the right of an employee to compensation
during the period he refuses to submit to an examination.17 Thus, OWCP’s denial of appellant’s
claim for a schedule award was improper. However, the development by OWCP of the schedule
award claim is suspended until appellant attends the required referee medical examination.

11

Phillippe J. Jacquot, Docket No. 05-480 (issued August 3, 2005).

12

Supra note 4.

13

Supra note 6.

14

See Raymond C. Dickinson, 48 ECAB 646 (1997) (if good cause is not established for failure to attend a
medical examination, entitlement to compensation should be suspended until the claimant reports for examination).
15

Jeffrey E. Long, Docket No. 05-1613 (issued April 7, 2006); see also supra note 11.

16

See Karen K. Cassel, supra note 10.

17

Supra note 11 and 15; see also Silas Perkins, Docket No. 05-1084 (issued December 2, 2005).

5

CONCLUSION
The Board finds that OWCP improperly denied appellant’s claim for a schedule award
based on his obstruction of a medical examination. The Board further finds that OWCP’s
development of appellant’s schedule award claim is suspended until his obstruction of the referee
medical examination has ended.
ORDER
IT IS HEREBY ORDERED THAT the April 30, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 11, 2015
Washington, DC

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
B.K., Appellant
and
DEPARTMENT OF THE NAVY, U.S. MARINE
CORPS, FIRE PROTECTION OFFICE, CAMP
PENDLETON, CA, Employer
__________________________________________

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Appearances:
Brook L. Beesley, for the appellant
No appearance, for the Director

Docket No. 07-1437
Issued: January 29, 2008

Oral Argument November 14, 2007

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

JURISDICTION
On May 2, 2007 appellant filed a timely appeal from a February 6, 2007 merit decision of
the Office of Workers’ Compensation Programs which denied his claim for disability on or after
July 15, 2005. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his disability on
or after July 15, 2005 was causally related to the accepted employment injury
FACTUAL HISTORY
On February 3, 2004 appellant, then a 39-year-old firefighter, filed an occupational
disease claim for anxiety and depression. The Office accepted that seven alleged factors
occurred in the performance of duty: a meeting on July 3, 2003 regarding firehouse chores; that
a tool was improperly taken from appellant at a fire in late July 2003; incidents with Firefighter
Traci Grant on September 10 and 23 and October 7, 2003; an October 1, 2003 telephone call and

a January 9, 2004 incident with Captain Dean King, supervisor. On June 8, 2005 the Office
referred appellant to Dr. Mounir Soliman, a Board-certified psychiatrist. In a July 11, 2005
report, he reviewed the record, statement of accepted facts and appellant’s complaints of workrelated stress and anxiety. Dr. Soliman provided mental status examination and psychological
testing results and diagnosed major depression with psychotic features. He opined that
appellant’s condition was caused by the employment factors outlined in the statement of
accepted facts and that he was capable of working. By decision dated July 18, 2005, the Office
accepted that appellant sustained an employment-related prolonged depressive adjustment
reaction.
On August 8, 2005 appellant filed a Form CA-7, claim for compensation, for the period
commencing July 15, 2005.1 He submitted a July 14, 2005 form report from Dr. Monique
Masse, a Board-certified pediatrician who practices psychiatry. She diagnosed generalized
anxiety disorder, post-traumatic stress disorder, delusional disorder and paranoid personality
disorder. Dr. Masse stated that appellant’s condition had an unclear etiology and that he had a
delusional level of persecutory beliefs. She opined that he could not work because the
environment at his current fire station had become too difficult. In order for appellant to return
to work, he would need a transfer of duty. In a November 16, 2005 report, Dennis Patrick
Wood, Ph.D., a clinical psychologist, noted his review of certain records including Dr. Masse’s
medical reports. He provided results of psychological testing and diagnosed generalized anxiety
disorder, adjustment disorder with depressed mood, atypical post-traumatic stress disorder, ruleout dysthemic disorder vs. major depressive disorder and narcissistic, anti-social and histrionic
personality feature/traits. Dr. Wood stated that appellant reported compulsive anxiety, fear and
avoidance of fire chiefs. He concluded that appellant’s diagnoses were caused by employment
factors and that he was temporarily totally disabled. In a December 13, 2005 report, Dr. Masse
advised that she had reviewed her records and the reports of Dr. Soliman and Dr. Wood. She
reiterated her diagnoses and advised that appellant could drive, take care of his personal needs
and had reasonable concentration and focus. Dr. Masse advised that she agreed with
Dr. Soliman’s conclusion regarding the cause of appellant’s condition that had worsened due to
additional difficult interactions with other personnel at the employing establishment which led to
the development of a major depression with psychotic features.
By decision dated January 12, 2006, the Office denied appellant’s claim for wage-loss
compensation beginning July 15, 2005.
On January 19, 2006 his representative requested a hearing which was held on
December 6, 2006. Appellant testified regarding his relationship with Firefighter Grant and
Captain King at Station 8. He noted that Firefighter Grant was transferred from Station 8 in
December 2003 and that in January 2004 he was placed on administrative leave after an
altercation with Captain King and was then transferred to Station 9 until the end of 2004.
Appellant was again transferred in December 2004. In 2006 he moved to Colorado and began
1

On July 22, 2005 appellant filed a Form CA-2 claim in which he alleged new employment factors and submitted
evidence. The record before the Board does not contain a final decision regarding this claim. The Board’s
jurisdiction to consider and decide appeals from final decisions of the Office extends only to those final decisions
issued within one year prior to the filing of the appeal. 20 C.F.R. § 501.2(c); see Annette Louise, 54 ECAB
783 (2003).

2

part-time work as a firefighter. Appellant submitted a January 2, 2007 report in which
Suzanne L. Martin, Ph. D., a clinical psychologist, noted that she began treating appellant two
months previously for continuing symptoms associated with problems that occurred in his
previous work as a firefighter.
In a February 6, 2007 decision, an Office hearing representative affirmed the January 12,
2006 decision.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act2 the term “disability” is defined as
incapacity, because of employment injury, to earn the wages that the employee was receiving at
the time of injury.3 Disability is thus not synonymous with physical impairment which may or
may not result in incapacity to earn the wages. An employee who has a physical impairment
causally related to a federal employment injury but who nonetheless has the capacity to earn
wages he or she was receiving at the time of injury has no disability as that term is used in the
Act,4 and whether a particular injury causes an employee disability for employment is a medical
issue which must be resolved by competent medical evidence.5 Whether a particular injury
causes an employee to be disabled for work and the duration of that disability, are medical issues
that must be proved by a preponderance of the reliable, probative and substantial medical
evidence.6
The Board will not require the Office to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.7 Furthermore, it is well established that medical conclusions
unsupported by rationale are of diminished probative value.8
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.9 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
2

5 U.S.C. §§ 8101-8193.

3

See Prince E. Wallace, 52 ECAB 357 (2001).

4

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

5

Donald E. Ewals, 51 ECAB 428 (2000).

6

Tammy L. Medley, 55 ECAB 182 (2003); see Donald E. Ewals, id.

7

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

8

Jacquelyn L. Oliver, 48 ECAB 232 (1996).

9

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

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medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.10 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.11
ANALYSIS
The Office found that appellant sustained a prolonged depressive adjustment reaction
caused by the seven employment factors that occurred from September 10, 2003 and
January 9, 2004. The Board finds that he has not established that his claimed disability for the
period commencing July 15, 2005 was caused by the accepted emotional condition.
The issue of whether a claimant’s disability is related to an accepted condition is a
medical question which must be established by a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the disability is causally related to
employment factors and supports that conclusion with sound medical reasoning.12 The relevant
medical evidence includes the July 11, 2005 report of Dr. Soliman who provided a second
opinion evaluation for the Office. While he advised that appellant’s emotional condition was
caused by the accepted employment factors, he also found that appellant was capable of working.
Dr. Soliman’s report does not support disability as of July 15, 2005. In a July 14, 2005 report,
Dr. Masse opined that appellant’s emotional condition had an unclear etiology and advised that
he should change his work environment. On December 13, 2005 she opined that his condition
was caused by difficult interactions at work and had worsened due to events that occurred after
the factors that have been accepted as employment related. Dr. Masse did not provide an opinion
regarding appellant’s ability to work. She failed to provide a rationalized medical opinion
addressing how appellant’s claimed disability beginning on July 15, 2005 was causally related to
the accepted employment factors. In a November 16, 2005 report, Dr. Wood did not exhibit a
thorough knowledge of appellant’s work injury. He failed to address the accepted factors and,
thus, failed to provide a rationalized medical opinion explaining how appellant’s disability
beginning on July 15, 2005 was related to the accepted employment factors.13 Dr. Martin merely
noted that appellant was under her care for continuing symptoms related to his previous work.
She did not provide an opinion regarding appellant’s ability to work. A physician’s opinion on
causal relationship between a claimant’s disability and an employment injury is not dispositive
simply because it is rendered by a physician.
To be of probative value, the physician must provide rationale for the opinion reached.
Where no such rationale is present, the medical opinion is of diminished probative value.14 As
10

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

11

Dennis M. Mascarenas, 49 ECAB 215 (1997).

12

Sandra D. Pruitt, 57 ECAB ____ (Docket No. 05-739, issued October 12, 2005).

13

Id.

14

Thaddeus J. Spevack, 53 ECAB 474 (2002).

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appellant submitted no such evidence in this case, the Board finds that he has not met his burden
of proof to substantiate that he had an employment-related disability beginning July 15, 2005.15
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he was
entitled to wage-loss compensation on or after July 15, 2005.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 6, 2007 be affirmed.
Issued: January 29, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

15

See Mary A. Ceglia, 55 ECAB 626 (2004).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Charleston, SC, Employer
__________________________________________

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

Docket No. 12-656
Issued: August 10, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 25, 2012 appellant filed a timely appeal from an August 25, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his traumatic
injury claim and a November 8, 2011 decision which denied his request for an oral hearing as
untimely. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the August 25, 2011 decision. Since the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB
126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration.

ISSUES
The issues are: (1) whether appellant sustained an injury in the performance of duty on
July 10, 2011, as alleged; and (2) whether OWCP properly denied his October 11, 2011 request
for an oral hearing as untimely.
FACTUAL HISTORY
On July 16, 2011 appellant, then a 63-year-old transportation security officer, filed a
traumatic injury claim alleging that on July 10, 2011 at 10:21 a.m. he suffered back pain and left
buttock muscle spasms when his left foot got caught on the floor mat as he lifted a heavy bag.
He stopped work and sought treatment from the hospital the next day.
In a July 11, 2011 hospital record, Dr. Gary Headden,3 a Board-certified internist, noted
appellant’s complaints of left hip pain radiating down into his lower back that began two days
ago. He related that appellant’s work required heavy lifting and that appellant hurt his back
while lifting. Dr. Headden reviewed appellant’s history and conducted an examination. He
observed tenderness over the sciatic notch and normal extremities. X-rays of the lumbar spine
revealed osteopenic bones with spondylosis and mild wedging of the T12 vertebral body. X-rays
of the hip revealed minimal degenerative findings and no other abnormality. Dr. Headden
diagnosed left hip strain. He restricted appellant to light duty from July 14 to 21, 2011.
In a July 11, 2011 x-ray report, Dr. Gary Rike, a Board-certified radiologist, noted
appellant’s complaints of left hip pain. He noted minor spurring in each acetabulum with no
fracture, lesion or acute abnormality. Dr. Rike diagnosed minimal degenerative findings in the
hips.
In a July 11, 2011 x-ray report, Dr. John Daly Jr., a Board-certified diagnostic radiologist,
noted appellant’s complaints of back pain. He observed osteopenic bones, mild anterior wedging
of the T12 vertebral body likely chronic and bilateral sacroiliac joint osteoarthritic changes.
Sacroiliac joints were in normal alignment. Dr. Daly diagnosed osteopenic bones with
spondylosis and mild wedging of the T12 vertebral body.
In a July 18, 2011 hospital record, Dr. Cameron J. Maile, Board-certified in emergency
medicine, stated that appellant experienced back, left hip and left leg pain two weeks ago when
he lifted heavy objects at work. He related that appellant aggravated his hip when he did house
work yesterday. Dr. Maile further related that appellant injured his hip while lifting heavy
objects at work about two weeks prior. Since that time appellant had been seen several times.
Upon examination, Dr. Maile observed mild left paralumbar tenderness with extension of the left
hip and decreased sensation to light touch to the lateral aspect of the left lower leg. No edema or
cyanosis was observed and extremities were normal. Dr. Maile restricted appellant to light-duty
work with no lifting greater than 10 pounds and limited bending and twisting until July 23, 2011.

3

The report was signed by Dana Miller, a physician’s assistant. Dr. Headden noted that he reviewed the chart,
discussed it with her, and agreed with her findings and plan.

2

On July 28, 2011 OWCP advised appellant that the evidence submitted was insufficient
to support his claim and requested additional evidence. It requested a more detailed description
of the alleged July 10, 2011 incident and a medical report from his treating physician, which
included a history of injury, firm diagnosis, findings and test results, treatment provided and a
physician’s opinion, based on medical rationale explaining how the diagnosed condition was
caused or aggravated by the claimed injury.
In an undated statement, appellant stated that on July 10, 2011 he performed a bag search
for a suspicious item. After the search he picked up the bag and started to turn to his left but his
left foot got caught on floor mats and he was unable to turn or move. Appellant explained that
the checkpoint was a narrow path covered with two long rubber floor mats that often slid and
overlapped. He believed that this incident occurred at the time of his injury and prevented him
from turning his left foot. As a result, appellant experienced sharp pain in his left buttocks,
which caused immediate discomfort. He did not recall any other officers who were present.
Appellant resubmitted the July 11 and 14, 2011 hospital reports and radiology reports.
In an undated statement, Ronie K. Norton, a coworker, recalled that on July 10, 2011
between the hours of 10:00 and 11:30 a.m. he saw appellant limping as he came up the exit lane.
Appellant told him that he had hurt or pulled a muscle while doing a bag check.
In a July 23, 2011 hospital record, Dr. Kevin Price, Board-certified in emergency
medicine, stated that appellant complained of left hip and leg pain and noted that he was seen
three previous times at the hospital for the same symptoms. He reviewed appellant’s history and
conducted an examination. Dr. Price observed mild left paralumbar tenderness with extension of
the left hip and decreased sensation to light touch to the lateral aspect of the left lower leg.
In an August 11, 2011 consultation report, Dr. Stephen E. Rawe, a Board-certified
neurological surgeon, stated that on July 10, 2011 appellant suffered a work-related injury when
he picked up a bag and turned to the left but his left foot did not move. Appellant complained of
left buttocks and thigh pain that intensified over the next three days. Dr. Rawe reviewed
appellant’s history and conducted an examination. Neuromuscular examination revealed painful
range of motion of the lumbar spine on forward bending and weakness of the anterior tibialis of
the left and extensor hallucis longus muscle. Dr. Rawe observed that appellant walked with a
limp on the left lower extremity. Straight leg raise testing was negative bilaterally and range of
motion of the hips was unremarkable. Dr. Rawe opined that appellant’s problems were
consistent with a left L5 radiculopathy weakness of the extensor hallucis longus muscle and
anterior tibialis muscle. He recommended appellant remain on light duty.
In a decision dated August 25, 2011, OWCP denied appellant’s claim finding insufficient
factual evidence to establish fact of injury in the performance of duty. It noted that the medical
evidence did not correspond with the alleged incident as he described. OWCP also noted that
appellant had submitted insufficient medical evidence demonstrating that he sustained a
diagnosed condition causally related to the alleged incident.
In a letter addressed to the claims examiner dated September 14, 2011, appellant
requested an appeal of the August 25, 2011 decision based on Dr. Rawe’s report. He stated that
the decision contained several discrepancies and requested that OWCP take time to review all the

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transcripts, notes and statements provided.
diagnostic reports.

Appellant resubmitted the hospital records and

On September 23, 2011 OWCP informed appellant that it received his September 14,
2011 letter requesting an appeal but it was unclear what type of appeal he requested. It advised
him to read through the attached appeal rights, make a selection by checking his choice and
return it to the appropriate address.
In an appeal request form dated October 8, 2011 and postmarked October 11, 2011,
appellant submitted a request for an oral hearing. He resubmitted the July 18, 2011 hospital
records and Dr. Rawe’s August 11, 2011 report.
By decision dated November 8, 2011, OWCP denied appellant’s request for an oral
hearing as untimely. It found that the hearing request was postmarked October 11, 2011, more
than 30 days after the last OWCP decision was issued on August 25, 2011. OWCP exercised its
discretion by considering appellant’s hearing request and further denied it as the issues involved
could be addressed equally well pursuant to a valid request for reconsideration and submitting
evidence not previously considered to support his claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his claim by the weight of the reliable, probative and substantial evidence5
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.7
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged.8 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.9

4

5 U.S.C. §§ 8101-8193.

5

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

6

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
7

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

8

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

9

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

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An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury in the performance of duty, as alleged, but the employee’s
statements must be consistent with the surrounding facts and circumstances and his subsequent
course of action.10 An employee has not met his burden of proof in establishing the occurrence
of an injury if there are such inconsistencies in the evidence as to seriously question whether the
specific event or incident occurred at the time, place and in the manner alleged or whether the
alleged injury was in the performance of duty,11 nor can it find fact of injury if the evidence fails
to establish that the employee sustained an injury within the meaning of FECA. 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 explained, cast sufficient doubt on an employee’s statements as to whether a
prima facie case has been established.12 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.13
ANALYSIS -- ISSUE 1
Appellant alleged that on July 10, 2011 at 10:21 a.m. he experienced back pain muscle
spasms when he lifted heavy luggage at work and turned but his left foot got caught on a floor
mat. He stopped work that day and sought medical treatment at the hospital on July 11, 2011.
OWCP denied appellant’s claim finding insufficient factual evidence to establish that the
July 10, 2011 employment incident occurred as alleged. The Board finds, however, that the
evidence is sufficient to establish that appellant experienced the July 10, 2011 work incident at
the time, place and in the manner alleged.
In his Form CA-1 and subsequent statement, appellant experienced sharp back and leg
pain when he completed a bag search and started to turn but his left foot did not turn. He
explained that the rubber floor mats at the checkpoint often slid and overlapped and he believed
that his foot got caught on one of the mats. 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.14 In this case, the record does not contain any factual
evidence to dispute that the claimed incident occurred as alleged. The employing establishment
did not controvert the claim and a witness indicated that he observed appellant limping on
July 10, 2011. Appellant sought treatment from the hospital on the next day after the incident
and was examined by Dr. Headden, who related that appellant’s left hip pain began about two
days ago and that he believed he hurt his back while lifting heavy objects at work. He sought
medical treatment from the hospital two more times for back, left hip and left foot pain.
10

Gene A. McCracken, Docket No. 93-2227 (issued March 9, 1995); Joseph H. Surgener, 42 ECAB 541,
547 (1991).
11

Elaine Pendleton, 40 ECAB 1143 (1989).

12

M.H., 59 ECAB 461 (2008); Constance G. Patterson, 41 ECAB 206 (1989).

13

S.P., 59 ECAB 184 (2007).

14

Id.; see also Caroline Thomas, 51 ECAB 451 (2000).

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Appellant was also examined by Dr. Rawe who stated that on July 10, 2011 appellant suffered a
work-related injury when he picked up a heavy bag at work. The record contains no strong or
persuasive evidence to refute appellant’s allegations nor are there any inconsistencies to cast
serious doubt on his description of the July 10, 2011 employment incident. Accordingly, the
Board finds that appellant has established the occurrence of the July 10, 2011 work incident.
Nevertheless, the Board further finds that appellant did not provide sufficient medical
evidence to establish that he sustained a left hip strain, back, left hip and left leg condition as a
result of the July 10, 2011 employment incident. Causal relationship is a medical issue and the
medical evidence generally required to establish causal relationship is rationalized medical
opinion evidence.15 Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on whether there is a causal relationship between the
employee’s diagnosed condition and the specified employment factors or incident.16 Appellant
submitted emergency room records from Drs. Headden, Maile and Price who noted his
complaints of back, left hip and leg pain while lifting a heavy object at work.17 They observed
tenderness over his sciatic notch and mild left paralumbar tenderness with extension of the left
hip. Appellant was also examined by Dr. Rawe, who provided an accurate history of injury and
conducted an examination. Dr. Rawe opined that appellant’s problems were consistent with a
left L5 radiculopathy weakness of the extensor hallucis longus muscle and anterior tibialis
muscle. None of the physicians, however, contained any opinion or explanation as to the cause
of appellant’s condition. The Board has held that medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.18 Similarly, the diagnostic reports of Drs. Rike and Daly contain no
opinion as to the cause of appellant’s condition. Thus, the Board finds that appellant failed to
provide sufficient medical evidence to establish his traumatic injury claim.
On appeal, appellant related the July 10, 2011 employment incident and stated that
numerous doctors have told him that this injury was work related. As previously noted,
however, causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. While appellant alleges
that his doctors informed him that his injury was work related, the record does not contain any
rationalized medical opinion from a physician sufficient to establish causal relationship. Thus,
the Board finds that he did not meet his burden of proof to establish his claim.

15

I.R., Docket No. 09-1229 (issued February 24, 2010); W.D., Docket No. 09-658 (issued October 22, 2009);
D.I., 59 ECAB 158 (2007).
16

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

17

Although Dr. Maile indicated that appellant may have aggravated his hip doing house work the prior day the
report consistently refers to the original injury as occurring two weeks prior while lifting baggage at work.
18

Supra note 15.

6

LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary 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.19
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA
provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.20 A claimant is entitled to a hearing or review of the
written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.21 Although that is no right to a review of the written record or an oral hearing if
not requested within the 30-day time period, OWCP may within its discretionary powers grant or
deny appellant’s request and must exercise its discretion.22 Its procedures require that it exercise
its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration under section 8128(a).23
OWCP procedures also provide that where the instructions on the appeal rights that
accompanied the decision were not followed and the hearing request was received by OWCP and
then forwarded to the Branch of Hearings and Review, it will review the available evidence and
determine the timeliness of the request.24
ANALYSIS -- ISSUE 2
The Board finds that appellant’s request for an oral hearing before the Branch of
Hearings and Review was untimely.
Following OWCP’s August 25, 2011 decision, appellant requested an appeal in a letter
dated September 14, 2011, addressed to the claims examiner. He did not request an oral hearing
until he completed the appeal request form on October 8, 2011, which was received by OWCP
on October 14, 2011. Appellant had 30 calendar days from OWCP’s August 25, 2011 decision
or until September 24, 2011 to request an oral hearing. He sought an “appeal” by a claims
examiner in a letter received on September 20, 2011, not an oral hearing.
OWCP properly exercised its discretion in denying appellant’s request for hearing by
determining that the issue in the case could be equally well addressed by requesting

19

5 U.S.C. § 8124(b)(1).

20

20 C.F.R. §§ 10.616, 10.617.

21

Id. at § 10.616(a).

22

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

23

See R.T., Docket No. 08-408 (issued December 16, 2008); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Hearings and Review of the Written Record, Chapter 2.1601.2(a) (October 2011).
24

Federal (FECA) Procedure Manual, Part 2 -- Claims, Review Process, Chapter 2.1601.4(a) (October 2011).

7

reconsideration and submitting new evidence. In the present case, there is no evidence that
OWCP abused its discretion in denying his request for hearing under these circumstances.
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 failed to establish that he sustained a traumatic injury
in the performance of duty on July 10, 2011. The Board further finds that OWCP properly
determined that his request for an oral hearing was untimely filed.

8

ORDER
IT IS HEREBY ORDERED THAT the November 8 and August 25, 2011 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: August 10, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Salisbury, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1163
Issued: March 30, 2022

Case Submitted on the Record

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

JURISDICTION
On April 16, 2021 appellant filed a timely appeal from a December 14, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective December 3, 2020, as she no longer had
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 14, 2020 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
evidence for the first time on appeal. Id.

disability or residuals causally related to her accepted February 21, 2006 employment injury;
(2) whether appellant has established that she had continuing disability or residuals on or after
December 3, 2020 causally related to her accepted February 21, 2006 employment injury.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On March 22, 2006 appellant, then a 41-year-old nursing assistant, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome (CTS)
due to factors of her federal employment, including pushing, pulling, transporting, and lifting
patients. She noted that she first became aware of her condition and its relationship to her federal
employment on February 21, 2006. Appellant underwent a right carpal tunnel release on
July 12, 2006. OWCP accepted appellant’s claim for bilateral CTS on January 15, 2009.
On July 22, 2020 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a series of questions, for a second opinion examination and evaluation with
Dr. Chason Hayes, a Board-certified orthopedic surgeon. It requested that Dr. Hayes evaluate
whether appellant continued to have residuals or disability due to the accepted February 21, 2006
employment injury.
In an August 19, 2020 report, Dr. Hayes discussed appellant’s factual and medical history
and reported his findings on physical examination. He noted that appellant had last undergone an
electromyogram/nerve conduction velocity (EMG/NCV) study on October 10, 2014, which was
consistent with severe bilateral peripheral polyneuropathy, probably related to her insulin dependent diabetes. On physical examination Dr. Hayes observed that appellant’s wrists had no
abnormal findings, that her scar was well healed, she had no swelling, and full range of motion.
He also observed that she was uncooperative with the sensory examination. Dr. Hayes opined that
appellant’s work-related CTS had resolved following surgery and that she had no residuals. He
further opined that appellant was capable of working her date -of-injury position. Dr. Hayes
explained that appellant had residuals from unrelated medical conditions such as cervical
radiculopathy and peripheral neuropathy from diabetes, but that, with regard to the accepted work
condition, there was no medical contraindication to her returning to full-duty employment.
On October 23, 2020 OWCP issued a notice proposing to terminate appellant’s wage-loss
compensation and medical benefits based on Dr. Hayes’ opinion that the February 21, 2006
accepted condition had ceased without residuals or disability. It afforded her 30 days to submit
additional evidence of argument challenging the proposed termination.
In a response dated November 11, 2020, appellant replied to OWCP’s notice of proposed
termination, stating that she did not understand why her claim was being terminated when she still
had medical problems. In an attached letter dated March 5, 2020, Dr. Katherine Butler, an
3

Docket No. 10-1201 (issued January 4, 2011); Docket No. 09-2166 (issued May 12, 2010); Docket No. 07-1559
(issued November 7, 2007).

2

orthopedic surgeon, opined that appellant had recurrent bilateral CTS, noting that she had
previously been treated by another physician for bilateral CTS due to repetitive work activities.
She explained that appellant’s recurrence was likely due to scar tissue formation at the surgical
site and, therefore, could be considered related to her initial injury. In a letter dated June 24, 2020,
Dr. Butler explained that she had begun seeing appellant as a patient in 2020. She diagnosed
bilateral carpal tunnel syndrome, noting that it was supported by physical examination, NCV
studies, and medical reports. Dr. Butler stated that appellant’s symptoms appeared to be consistent
and that she had reached maximum medical improvement (MMI). She noted that appellant had
previously undergone bilateral CTS surgery, but continued to have numbness, burning, pain, and
weakness in her hands, which prevented her from returning to employment. Dr. Butler opined that
it was reasonable to assume, based on documentation, that appellant had bilateral CTS attributable
to work and that she has been persistently unable to return to work due to this injury.
In a letter dated July 15, 2020, Dr. Benjamin Ott, a Board-certified family practitioner,
opined that appellant had chronic bilateral CTS due to repetitive work activities in her federal
employment as of February 21, 2006. He explained that her persistent symptoms were likely due
to scar tissue formation related to previous treatment and that she was permanently disabled from
all occupations due to this injury.
Appellant also attached a progress report from Dr. William Mason, a Board-certified
orthopedic surgeon, dated November 29, 2006, in which he opined she was unable to work.
In a note dated November 27, 2020, Dr. Ott indicated that he had seen appellant regularly
every three to four months since prior to 2011. He noted that he regularly discussed her ongoing
issues with CTS and nerve damage at her appointments, including in 2019 and 2020.
By decision dated December 2, 2020, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective December 3, 2020, based on Dr. Hayes’ second
opinion report.
On December 10, 2020 appellant requested reconsideration.
submitted an EMG/NCV study dated March 3, 2020.

With her request, she

By decision dated December 14, 2020, OWCP denied modification the of the December 2,
2020 decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s 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

4

See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

3

the employment. 5 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.7 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective December 3, 2020.
In his August 19, 2020 report, Dr. Hayes discussed appellant’s factual and medical history
and reported the findings of his physical examination. On physical examination of appellant’s
wrists, he observed normal findings, including that appellant’s scar was well healed, she had no
swelling, and full range of motion. Dr. Hayes opined that appellant’s work-related CTS had
resolved after surgery and that she had no residuals. He related that he had reviewed appellant’s
October 10, 2014 EMG study, which he related was consistent with severe bilateral peripheral
polyneuropathy. While he opined that this finding was “probably” related to appellant insulindependent diabetes, Dr. Hayes offered no rationale in support of his opinion. His opinion regarding
the cause of appellant’s severe bilateral peripheral polyneuropathy was speculative in nature. The
Board has held that speculative and equivocal medical opinions regarding causal relationship have
no probative value. 9 The Board also notes that, while Dr. Hayes found that the 2014 EMG revealed
severe bilateral median nerve studies, he did not obtain further diagnostic studies to confirm
whether appellant’s condition had resolved. Dr. Hayes concluded that appellant had residuals from
unrelated medical conditions such as cervical radiculopathy and peripheral neuropathy from
diabetes, but he offered no medical rationale, supported by objective findings, regarding the cause
of appellant’s continued residuals. The Board has held that a medical opinion is of limited
probative value if it contains a conclusion regarding a given medical matter, which is unsupported
by medical rationale. 10

5

See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L.
Minor, 37 ECAB 541 (1986).
6

See R.P., supra note 4; Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

See R.P., supra note 4; Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued
August 5, 2009). Furman G. Peake, 41 ECAB 361, 364 (1990).
8

See R.P., supra note 4; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002);
Furman G. Peake, id.
9

M.G., Docket No. 21-0747 (issued October 15, 2021).

10

See P.C., Docket No. 20-0371 (issued January 26, 2021); L.G., Docket No. 19-0142 (issued August 8, 2019);
E.R., Docket No. 15-1046 (issued November 12, 2015); C.M., Docket No. 14-0088 (issued April 18, 2014).

4

As Dr. Hayes’ August 19, 2020 report was insufficiently rationalized and of diminished
probative medical value in establishing that appellant’s accepted bilateral carpal tunnel conditions
had resolved, OWCP improperly determined that it constituted the weight of the medical evidence.
The Board therefore finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits.11
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective December 3, 2020.
ORDER
IT IS HEREBY ORDERED THAT the December 14, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 30, 2022
Washington, DC

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

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

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

11

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
M.M., Appellant
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
San Jose, CA Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 07-444
Issued: May 10, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On December 7, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated August 29, 2006, which denied modification of a
May 15, 2006 decision finding that she did not sustain an injury as alleged. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over these decisions.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
sustained an occupational injury in the performance of duty.
FACTUAL HISTORY
On April 10, 20061 appellant, then a 44-year-old letter carrier, filed an occupational
disease claim alleging that she sustained right shoulder rotator cuff tendinitis and cervical strain.
She stopped work on November 3, 2005. In an undated statement, appellant alleged that, on
November 3, 2005, her physician treated her for shoulder pain. She referred to a prior work-

1

The form is signed April 10, 2005, but this appears to be a typographical error.

related injury of September 8, 2001.2 Appellant alleged that, in September 2005, her employer
required her to drive a coworker around the City of Watsonville to do mapping. She alleged that
she would arrive at the employing establishment and work on the computer for about an hour,
and then she would drive for the rest of the day with the exception of a 30-minute lunch break.
Appellant alleged that she did this almost every day for several months and this aggravated her
preexisting shoulder condition and caused neck problems.
The employing establishment provided an accident investigation sheet, completed by
LaLaine Cristobal, an injury compensation specialist, who indicated that no supervisors were
notified that appellant complained of pain. Ms. Cristobal also noted that Supervisor Joe Meagher
indicated that appellant was riding and making notations to maps, while her coworker, Sharon
Sanborn, was driving. Additionally, it was noted that appellant drove 95.53 miles from her home
to the employing establishment.
In a December 22, 2005 report, Dr. Nicholas Colyvas, a Board-certified orthopedic
surgeon and appellant’s treating physician, noted her history of injury and treatment, which
included two surgeries on the right shoulder due to work-related injuries. He indicated that
appellant was “permanent and stationary” on February 12, 2004, with the exception of needing
occasional cortisone injections. Appellant returned on November 3, 2005 with a severe increase
in pain. She did not describe any traumatic incident but rather related that she had been
performing her usual duties. Dr. Colyvas noted that appellant related the pain to her repetitive
work. He placed her on temporary total disability and recommended physical therapy and
cortisone injections. Dr. Colyvas conducted an examination and indicated that appellant had
evidence of right shoulder rotator cuff tendinitis and some compensatory cervical strain. He
recommended physical therapy, an electromyography (EMG) scan and a nerve conduction study.
In reports dated April 10, 2006, Dr. Colyvas diagnosed right cuff tendinitis and compensatory
cervical strain. He noted that appellant fell on her right shoulder, advised that the diagnosis was
due to the injury and placed her on temporary total disability for 30 days.
By letter dated April 13, 2006, the Office informed appellant of the evidence needed to
support her claim. The Office requested clarification from appellant regarding whether she or
Ms. Sanborn was driving. Additionally, appellant was advised to have Dr. Colyvas discuss what
effect, if any, her 95-mile commute to work each way had on her condition. The Office also
advised appellant that her physician must identify clinical findings and explain how her
underlying medical condition had changed.
In a statement dated April 21, 2006, Sharon Benassi, a mapping specialist, stated that the
employing establishment was gathering street information for route adjustments. She confirmed
that for two to three weeks appellant drove from the employing establishment to Watsonville,
five and a half to six hours each day from Monday to Friday.
On May 1, 2006 the Office received a statement from appellant, in which she confirmed
that she drove the car, while Ms. Benassi mapped out the city of Watsonville. Appellant also
stated that she informed her supervisor that the driving was bothering her. She noted that
Ms. Benassi was replaced by Sharon Stafford, a coworker, who drove while appellant mapped
2

This case is accepted for right shoulder impingement and tendinitis. File No. 132036411.

2

out Watsonville. Appellant noted, however, that she continued to drive to and from Watsonville,
even though Ms. Stafford, drove while they were in Watsonville. She contended that she drove
for six and one-half hours each day and was constantly making turns, which she believed
contributed to her condition.
By decision dated May 15, 2006, the Office denied appellant’s claim finding that she had
failed to submit the necessary medical evidence in support of her claim. The Office found that
the medical evidence did not establish that the claimed medical condition was related to
established work-related events.
Appellant requested reconsideration of the Office’s May 15, 2006 decision on
May 22, 2006. The Office also received duplicates of appellant’s statement describing her injury
and Ms. Benassi’s statement.
In an April 14, 2006 report, Dr. Colyvas opined that appellant had flare-ups related to her
right shoulder surgeries. He opined that repetitive lifting and carrying in appellant’s position as a
postal worker contributed to her current condition. Dr. Colyvas opined that the “specific work
activities include repetitive reaching, carrying, pushing, pulling and lifting.” Regarding
appellant’s 95-mile commute to work, he opined that it had “likely contributed somewhat to the
condition but I would certainly not consider it the sole cause of appellant’s current condition.”
Dr. Colyvas noted a lack of range of motion in the right shoulder, with forward flexion of 90
degrees, passive range of motion of 160 degrees, and abduction of 80 degrees, and a positive
Spurling sign. He also noted limited range of motion in the neck. In an August 21, 2006 report,
Dr. Colyvas noted that appellant related that her neck was “killing” her and that she had shoulder
pain with walking or driving, and her pain was getting worse. He diagnosed a sore shoulder and
cervical strain. In a separate report of the same date, Dr. Colyvas opined that appellant could not
use the right upper extremity, that the diagnosis was due to the injury and that appellant could
not return to work.
By decision dated August 29, 2006, the Office denied modification of the May 15, 2006
decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.4 These are the

3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

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 establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6
ANALYSIS
Appellant alleged that her preexisting shoulder condition and neck conditions were
caused or aggravated while driving and mapping in the city of Watsonville every day for several
months. The Office accepted appellant’s statement that in September 2005 she drove a coworker
to Watsonville while mapping for several months. However, the Office denied the claim finding
that she had submitted insufficient medical evidence to establish that her shoulder condition was
caused or aggravated by driving to the city of Watsonville and mapping for several months or
any other specific factors of her federal employment.
Dr. Colyvas provided a December 22, 2005 report in which he noted that appellant did
not describe any traumatic incident but that she had been performing her usual duties. He opined
that appellant’s pain was due to the repetitive nature of her work. However, appellant did not
allege that she was doing repetitive work, but rather that she was driving around the city of
Watsonville for several hours per day for several months. Medical evidence predicated on
unsubstantiated diagnoses or factual or medical history is of diminished probative value.7 In
reports dated April 10, 2006, Dr. Colyvas noted that appellant fell on her right shoulder and
opined that the diagnosis was due to the injury. However, in this claim, appellant did not allege
that she fell, but rather that her condition arose after driving each day for several hours, while

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

Id.

7

See Bilile C. Rae, 43 ECAB 192 (1991).

4

mapping. This report was also based on an inaccurate factual history and is of limited probative
value.8
On April 14, 2006 Dr. Colyvas opined that the repetitive activities of appellant’s position
as a postal worker contributed to her current condition. He related that the “specific work
activities include repetitive reaching, carrying, pushing, pulling and lifting.” As noted, appellant
did not make any specific allegations regarding these types of activities, but instead alleged that
her condition arose after she spent several months driving while mapping in the city of
Watsonville. This report included allegations that were not alleged by appellant and is of
diminished probative value.9 Dr. Colyvas did not explain how appellant’s driving at work
caused or aggravated her claimed condition. He merely noted that appellant’s 95-mile commute
to work “may have contributed somewhat to the condition.” Dr. Colyvas’ August 21, 2006
report did not offer any reasoning to explain the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. A medical opinion not
fortified by medical rationale is of little probative value.10
The record contains no rationalized medical opinion explaining the cause of appellant’s
right shoulder condition or the role of her preexisting shoulder condition in her current condition.
The Office informed appellant of the deficiencies in the medical evidence and what was needed
to establish her claim in a letter dated April 13, 2006. She did not submit a medical report from
her physician that explained how specific duties of her federal employment caused or aggravated
her diagnosed condition. This is particularly important where appellant attributed driving at
work as the cause of her claimed condition but where she also had a significant commute to and
from the employing establishment. The physician would need to provide a rationalized opinion
to explain why driving to Watsonville and mapping would cause or aggravate such a condition,
as opposed to her daily commute.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.11
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.12 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
As there is no probative, rationalized medical evidence addressing and explaining why
appellant’s right shoulder condition was caused and/or aggravated by factors of her employment,
appellant has not met her burden of proof in establishing that she sustained a medical condition
in the performance of duty causally related to factors of her employment.
8

Id.

9

Id.

10

Caroline Thomas, 51 ECAB 451 (2000).

11

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

12

Id.

5

CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 29 and May 15, 2006 are affirmed.
Issued: May 10, 2007
Washington, DC

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

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

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

6