United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Providence, RI, Employer
__________________________________________

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

Docket No. 15-0929
Issued: February 16, 2017

Case Submitted on the Record

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

JURISDICTION
On March 23, 2015 appellant filed a timely appeal from a March 2, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established greater than 14 percent impairment of the
left upper extremity, for which he previously received a schedule award.
FACTUAL HISTORY
OWCP accepted that on October 15, 1992 appellant, then a 41-year-old mail handler,
while emptying a mail hamper sustained a left shoulder sprain, left rotator cuff tear, cervical

1

5 U.S.C. § 8101 et seq.

strain, and displacement of a cervical disc without myelopathy. He stopped work shortly after
the injury and received total disability compensation beginning on December 11, 1992.
Dr. Norman Kornwitz, an attending Board-certified orthopedic surgeon, performed a left
rotator cuff repair and subacromial decompression2 on April 19, 1993, as authorized by OWCP.
On May 5, 1994 Dr. James E. McLennan, an attending Board-certified neurosurgeon, performed
a C4-5 and C5-6 anterior resection with interbody fusion, authorized by OWCP.3
Following a brief return to modified duty in January 1995, appellant again stopped work.
He continued to receive total disability compensation. Appellant was followed by Dr. W. Lloyd
Barnard, Jr., an attending Board-certified orthopedic surgeon, who provided reports through
February 14, 1996 noting anterior left shoulder crepitus and a positive impingement sign.
On February 25, 2000 OWCP obtained a second opinion regarding appellant’s cervical
spine from Dr. R. John Groves, a Board-certified orthopedic surgeon, who opined that appellant
required a repeat cervical discectomy and fusion. In an August 24, 2000 report, Dr. McLennan,
an attending Board-certified neurosurgeon, countered that appellant should not undergo
additional cervical spine surgery as imaging studies demonstrated a stable C6-7 disc without
nerve root compression.
OWCP found a conflict in medical opinion between Dr. Groves, for the government, and
Dr. McLennan, for appellant. Dr. Peter Pizzorella, a Board-certified orthopedic surgeon and
independent medical specialist, was selected to resolve the conflict. He submitted a
December 14, 2000 report, noting that appellant ambulated with two Canadian crutches due to
pain complaints throughout his spine and extremities. On examination, Dr. Pizzorella observed
restricted shoulder motion secondary to pain, no atrophy in either arm, restricted cervical spinal
motion, lumbosacral pain and limitation, and diffuse sensory loss in the C4 to T2 dermatomes on
the right. He diagnosed status post laminectomy cervical disc pain, and pain throughout the
spine and extremities. Dr. Pizzorella recommended a program for chronic pain.
An April 2, 2002 magnetic resonance imaging (MRI) scan showed a stable C4-6 fusion,
osteophytic spurring at C5-6 with foraminal stenosis, and a right-sided osteophytic complex at
C6-7 impinging the spinal cord and causing right foraminal narrowing. April 3, 2002
electromyogram and nerve conduction velocity studies showed moderate left carpal tunnel
syndrome and right-sided C7 radiculopathy.
On August 23, 2002 Dr. Curtis Doberstein, an attending Board-certified neurosurgeon,
observed diminished sensation in the C7 dermatome of the left hand.
In August 31, 2009 and September 2, 2010 reports, Dr. Antonio J. Villasan, an attending
osteopathic physician, found that appellant had attained maximum medical improvement and

2

The operative report is not of record.

3

In a December 15, 1994 report, Dr. Albert Weyman, attending cardiothoracic surgeon, observed a “[g]ood range
of left shoulder motion,” but with pain.

2

opined that appellant was permanently and totally disabled due to left shoulder and cervical spine
pain.
On October 30, 2013 appellant a filed claim for a schedule award (Form CA-7). In a
November 7, 2013 letter, OWCP advised him of the additional evidence needed to establish his
claim, including an impairment rating from his attending physician utilizing the tables and
grading schemes of the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter, A.M.A., Guides).4
As appellant failed to submit an impairment rating from his physicians, OWCP obtained
a second opinion examination from Dr. Gilbert Shapiro, a Board-certified orthopedic surgeon. In
a February 28, 2014 report, Dr. Shapiro reviewed the medical record and a statement of accepted
facts. On examination, he noted left arm weakness from disuse, diminished biceps, triceps, and
brachioradialis reflexes, surgical scars on the left shoulder, a history of bilateral knee surgeries,
and a partial gastrectomy. Dr. Shapiro also observed restricted motion of the left shoulder. He
diagnosed degenerative disc disease, status post C4-5 and C5-6 disc resection and fusion, status
post left shoulder strain, and status post left rotator cuff tear and repair. Dr. Shapiro opined that
the range of motion (ROM) rating method under section 15.7 of the A.M.A., Guides was
preferable to the diagnosis-based impairment (DBI) method due to appellant’s postsurgical status
and the original diagnosis of a shoulder sprain. Referring to Table 15-34,5 he found three percent
impairment of the left upper extremity for forward flexion at 150 degrees, six percent impairment
for abduction at 80 degrees, zero percent impairment for extension at 80 degrees, one percent
impairment for adduction at 10 degrees, two percent impairment for external rotation at 50 degrees,
and two percent impairment for internal rotation at 60 degrees. Dr. Shapiro found that these ROM
equaled 14 percent permanent impairment of the left arm. He concluded that the ROM deficits
required assessment of a grade 2 modifier according to Table 15-35,6 and that appellant’s pain
profile warranted a grade 2 modifier for functional history according to Table 15-36.7 Applying
the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), Dr. Shapiro
calculated a net modifier of zero, leaving the total upper extremity impairment at 14 percent. He
commented that he was unable to evaluate any radicular impairment of the left arm as there had
been no imaging studies since the April 3, 2002 MRI scan. Dr. Shapiro noted that the right-sided
C7 radiculopathy and left carpal tunnel syndrome shown in April 2002 studies were no longer
present.
On April 14, 2014 an OWCP medical adviser concurred with Dr. Shapiro’s assessment of
14 percent permanent impairment of the left upper extremity. The medical adviser found that

4

A.M.A., Guides (6th ed. 2009) A December 13, 2013 functional capacity evaluation demonstrated that appellant
could perform sedentary work.
5

Table 15-34, page 475 of the sixth edition of the A.M.A., Guides is entitled “Shoulder Range of Motion.”

6

Table 15-35, page 477 of the sixth edition of the A.M.A., Guides is entitled “Range of Motion Grade
Modifiers.”
7

Table 15-36, page 477 of the sixth edition of the A.M.A., Guides is entitled “Functional History Grade
Adjustment: Range of Motion.”

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appellant attained maximum medical improvement as of February 18, 2014, the date of
Dr. Shapiro’s evaluation.
By decision dated April 25, 2014, OWCP granted appellant a schedule award for 14
percent permanent impairment of the left upper extremity. The period of the award ran from
April 6, 2014 to February 5, 2015.
Appellant disagreed with the schedule award and on May 14, 2014 requested an oral
hearing, held December 15, 2014. At the hearing, he contended that Dr. Shapiro did not perform
a thorough examination and that OWCP discounted Dr. Shapiro’s 22 years of medical treatment
for multiple orthopedic, musculoskeletal, psychiatric, neurologic, gastric, and dermatologic
conditions.
Following the hearing, appellant submitted a June 24, 2013 report from Dr. Thomas Jean,
an attending Board-certified internist, who diagnosed osteoarthritis of the right shoulder and left
knee, bipolar I, a neurocognitive disorder, an umbilical hernia, alcoholism, gastric disorders,
eczema, cardiac issues, and a history of left rotator cuff repair. March 25, 2014 left shoulder xrays showed postoperative and degenerative changes without acute abnormality.8 Appellant also
submitted his statement alleging that he had undergone two left shoulder surgeries on
unspecified dates. Additionally, he provided letters from two family members describing his
debilitation.
By decision dated March 2, 2015, an OWCP hearing representative affirmed the April 25,
2014 schedule award, finding that the additional evidence submitted failed to establish more than
14 percent permanent impairment.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.9 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.10 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing

8

Appellant also submitted more than 800 pages of medical records, prescription monitoring reports, and chart
notes dated from 1998 to 2014, principally from clinic physicians at the Department of Veterans’ Affairs. These
documents did not address his left shoulder.
9

See 20 C.F.R. §§ 1.1-1.4.

10

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).

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regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.11
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A., issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).12 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.13
ANALYSIS
The issue on appeal is whether appellant has established greater than 14 percent
impairment of the left upper extremity, for which he previously received a schedule award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.14
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.15 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.16
11

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
13

Isidoro Rivera, 12 ECAB 348 (1961).

14

T.H., Docket No. 14-0943 (issued November 25, 2016).

15

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

16

Supra note 14.

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In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the March 2, 2015 decision.
Following OWCP’s development of a consistent method for calculating permanent impairment
for upper extremities to be applied uniformly, and such other development as may be deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper extremity
schedule award.
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 2, 2015 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: February 16, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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

Docket No. 12-1126
Issued: November 26, 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 April 30, 2012 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs (OWCP) dated November 22, 2011 concerning the
termination of her wage-loss benefits. 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 terminated appellant’s wage-loss compensation
benefits effective November 20, 2011 on the grounds that her disability due to her accepted
condition had ceased.
FACTUAL HISTORY
This case has previously been before the Board. In an August 8, 2008 decision, the
Board reversed a September 18, 2007 OWCP hearing representative’s decision affirming a
1

5 U.S.C. § 8101 et seq.

January 23, 2007 OWCP decision terminating her wage-loss compensation. The Board found
the opinion of Dr. Gary C. Freeman, a second opinion Board-certified orthopedic surgeon, was
insufficient to support termination of appellant’s compensation as his opinion was contrary to
OWCP’s statement of accepted facts. Dr. Freeman opined that appellant only suffered a soft
tissue injury which was contrary to OWCP’s acceptance of cervical radiculopathy. The facts and
circumstances of the Board’s prior decision are incorporated by reference.2
In a January 14, 2010 report, Dr. Qaiser Yusuf, a treating physician, related that appellant
sustained a neck injury in the performance of duty which has impacted her ability to work.
Diagnoses included: C5-6 disc protrusion; arthritis at C4-5 and C5-6; fibromyalgia, anxiety;
depression; and chronic pain with acute exacerbations. Dr. Yusuf recommended reducing
appellant’s work hours due to her current difficulty with working six hours per day.
In a March 26, 2011 report, Dr. Robert A. Fulford, a second opinion Board-certified
orthopedic surgeon, concluded that appellant was capable of returning to full-duty work for eight
hours per day with no restrictions. He diagnosed cachexia, neck pain and cervical degenerative
disc disease. A physical examination revealed normal cervical and lumbar range of motion.
On July 6, 2011 OWCP referred appellant to Dr. Frank L. Barnes, a Board-certified
orthopedic surgeon, to resolve the conflict in the medical opinion between Drs. Fulford and
Yusuf regarding her work capability. In a July 28, 2011 report, Dr. Barnes diagnosed brachial
neuritis and radiculitis. A physical examination revealed no cervical atrophy, weak bilateral
biceps reflexes, posterior neck tenderness, normal radial pulses, normal bilateral upper extremity
muscle strength and normal sensory testing on light touch. Dr. Barnes stated that he concurred
with Dr. Fulford’s opinion that appellant was capable of performing her date-of-injury job as a
mail handler. In support of this conclusion, he noted that there were no objective findings which
showed that she was unable to perform the duties of this position due to her neck problems. In
an attached work capacity evaluation form (OWCP-5c), Dr. Barnes noted that appellant had
reached maximum medical improvement and was capable of performing her usual job with no
restrictions.
On October 4, 2011 OWCP issued a notice proposing to terminate appellant’s wage-loss
compensation based on the opinion of Dr. Barnes, the impartial medical examiner.3 Dr. Barnes
concluded that she was capable of working eight hours per day as a mail handler with no
restrictions.
In response to its proposal to terminate appellant’s wage-loss compensation benefits,
OWCP received medical evidence from Dr. Shivarajpur K. Ravi, appellant’s treating Boardcertified neurologist and pain medicine physician. In his October 4, 2011 response to OWCP’s
2

On June 17, 2002 appellant, then a 35-year-old mail handler, filed a traumatic injury claim alleging that on that
date she injured her neck and shoulders while lifting trays. She stopped work on June 18, 2002. OWCP accepted
the claim for cervical radiculopathy and placed appellant on the periodic rolls for temporary total disability. On
April 22, 2003 appellant accepted a modified job working four hours per day, which were subsequently increased to
six hours per day.
3

The Board notes that, following the November 21, 2011 decision, OWCP received additional evidence.
However, the Board may only review evidence that was in the record at the time OWCP issued its final decision.
See 20 C.F.R. §§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008);
G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

2

May 1, 2011 letter and an October 21, 2011 report, Dr. Ravi disagreed with Dr. Fulford’s
opinion regarding appellant’s work capability. He opined that appellant was totally disabled
from working.
By decision dated November 22, 2011, OWCP finalized the terminatinon of appellant’s
wage-loss compensation effective November 20, 2011.4 It found that Dr. Barnes’ opinion
constituted the special weight of the evidence in finding appellant was no longer totally disabled
from working.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.5 Having determined that an employee has a disability
causally related to her federal employment, OWCP may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.6
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”7 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.8
ANALYSIS
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits effective November 22, 2011. The accepted condition in this case is
cervical radiculopathy. OWCP properly determined that a conflict in medical evidence had been
created between the opinions of appellant’s treating physician, Dr. Yusuf, and Dr. Fulford, an
OWCP referral physician, regarding appellant’s work capability. It referred appellant to
Dr. Barnes, Board-certified in orthopedic surgery, for an impartial evaluation.
The Board, however, finds that the opinion of Dr. Barnes is not well rationalized or
sufficient to represent the special weight of the medical evidence. OWCP provided the physician
with a list of questions and asked that he provide objective support and medical rationale for his
conclusions. In his July 28, 2011 report, Dr. Barnes’ response to the questions presented by
OWCP was quite brief. He repeated the question posed by OWCP and provided a conclusory
4

The Board notes that, following the November 22, 2011 decision, OWCP received additional evidence.
However, the Board may only review evidence that was in the record at the time OWCP issued its final decision.
See 20 C.F.R. § 501.2(c)(1); M.B., supra note 3; J.T., supra note 3; G.G., supra note 3; Donald R. Gervasi, supra
note 3; Rosemary A. Kayes, supra note 3.
5

T.F., 58 ECAB 128 (2006); George A. Rodriguez, 57 ECAB 224 (2005).

6

J.M., 58 ECAB 478 (2007); Elaine Sneed, 56 ECAB 373 (2005).

7

5 U.S.C. § 8123(a); see T.C., Docket No. 08-2112 (issued June 12, 2009).

8

J.J., Docket No. 09-27 (issued February 10, 2009); William C. Bush, 40 ECAB 1064 (1989).

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answer without any accompanying narrative explanation. Dr. Barnes did not refer to results on
examination, the medical or factual history, the nature of the accepted conditions, or provide
sufficient medical rationale to support his opinion that appellant was capable of performing the
duties of her date-of-injury position. Because he did not fully explain the basis for his opinion,
his July 28, 2011 report is of limited probative value. There is, therefore, an unresolved conflict
in the medical opinion evidence regarding whether appellant continues to have residuals of her
employment injuries. Therefore, OWCP did not meet its burden of proof to terminate her wageloss compensation effective November 20, 2011.9
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation effective November 20, 2011.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 22, 2011 is reversed.
Issued: November 26, 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

9

See Elaine Sneed, supra note 6.

4


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

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

Docket No. 11-978
Issued: January 17, 2012

Case Submitted on the Record

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

JURISDICTION
On March 9, 2011 appellant filed a timely appeal from a February 18, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his occupational
disease claim.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
Whether appellant met his burden of proof to establish that he sustained an occupational
disease in the performance of duty as a sales distribution clerk.

1

The Board notes that appellant filed an appeal to the Board and a reconsideration request to OWCP. By letter
dated March 17, 2011, the Board informed him that ECAB and OWCP could not have simultaneous jurisdiction
over his case. Appellant was told to inform the Board on or before April 18, 2011 whether he wished to pursue his
appeal with the Board or seek reconsideration before OWCP. He did not respond and the Board proceeded with his
appeal.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 19, 2010 appellant, then a 53-year-old sales distribution clerk, filed a
notice of occupational disease claim (Form CA-2) alleging that he developed an injury from his
employment at the downtown station.3 He stated that a steroid shot relieved his pain for the short
term. Appellant had first become aware of his condition on November 10, 2008 and of its
relationship to his employment later on April 9, 2010. His supervisor indicated that he was not
disabled for work.
In medical reports dated March 5, 2009 to March 3, 2010, Dr. George Salloum, a Boardcertified orthopedic surgeon, reported that appellant complained of bilateral knee pain, left
shoulder pain and an increasing mass on the top of his left hand. Appellant experienced bilateral
knee pain with kneeling, squatting, getting up from a sitting position and prolonged standing.
Upon examination of the left shoulder, Dr. Salloum diagnosed shoulder impingement syndrome
and provided appellant with a cortisone injection. He also noted early degenerative changes of
the knees and a nonmalignant nodule of the left hand. Dr. Salloum further diagnosed localized
arthritis in the lower leg, a meniscus tear, patellofemoral syndrome, joint knee instability and a
traumatic ligament tear.
In medical reports dated March 8 to July 29, 2010, Dr. Henry Leis, a Board-certified
orthopedic surgeon, reported that appellant complained of left shoulder pain. He diagnosed
osteoarthritis, acute rotator cuff tear and shoulder impingement syndrome and restricted
appellant from lifting over 20 pounds.
By letter dated December 6, 2010, OWCP informed appellant that the evidence of record
was insufficient to support his claim. Appellant was advised of the medical and factual evidence
needed and asked that he respond to the provided questions within 30 days. No further evidence
was submitted.
By decision dated February 18, 2011, OWCP denied appellant’s claim finding that the
evidence did not establish that the occupational exposure occurred as alleged. It also noted that
he failed to establish that he sustained an injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was filed within the applicable time

3

On the CA-2 form application, appellant did not identify either an affected body part or an occupational disease
process. He simply mailed various medical records to OWCP. This raises the inference that appellant potentially
believes his left shoulder, left hand and bilateral knee conditions are causally related to factors of his federal
employment.
4

5 U.S.C. §§ 8101-8193.

2

limitation period of FECA5 and that an injury was sustained in the performance of duty.6 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or occupational disease.7
When an employee claims that he sustained an injury in the performance of duty he must
submit sufficient evidence to establish a specific event, incident or exposure occurring at the
time, place and in the manner alleged. He must also establish that such event, incident or
exposure caused an injury.8 Once an employee establishes that he sustained an injury in the
performance of duty, he has the burden of proof to establish that any subsequent medical
condition or disability for work, for which he claims compensation is causally related to the
accepted injury.9
ANALYSIS
The Board finds that appellant failed to establish that he sustained an injury in the
performance of duty as a sales distribution clerk.
Appellant alleged that he sustained an injury from his duties as a sales distribution clerk.
He has not provided sufficient detail to establish that an occupational exposure occurred as
alleged.10 Appellant failed to adequately describe the circumstances of his injury, how the
diagnosed condition, and his employment factors caused his injury. He did not respond to the
questionnaire in OWCP’s December 6, 2010 development letter and did not provide OWCP with
the additional factual evidence requested. Moreover, the employing establishment indicated that
appellant was not disabled for work.
OWCP found that appellant did not submit sufficient medical evidence to establish a firm
medical diagnosis. Dr. Salloum’s medical reports established a diagnosis of localized arthritis in
the lower leg, a meniscus tear, patellofemoral syndrome, joint knee instability and a traumatic
ligament tear. Dr. Leis’ reports showed a diagnosis of osteoarthritis, acute rotator cuff tear and
shoulder impingement syndrome. The Board finds that, contrary to OWCP decision, the medical
evidence of record establishes a diagnosis.
While Dr. Salloum noted that appellant experienced bilateral knee pain with kneeling,
squatting, getting up from a sitting position and prolonged standing, no report provided an
adequate explanation of the activities performed during employment which might have caused
his injuries. The medical evidence failed to describe a mechanism of injury. Further, the
5

Joe D. Cameron, 41 ECAB 153 (1989).

6

James E. Chadden, Sr., 40 ECAB 312 (1988).

7

Delores C. Ellyet, 41 ECAB 992 (1990).

8

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
9

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

10

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

3

physicians did not offer a rationalized opinion reporting that appellant’s conditions were a result
of his employment activities as a sales distribution clerk.11
Though appellant has established a firm medical diagnosis, the record lacks any evidence
that his conditions were caused by his employment factors. An award of compensation may not
be based on surmise, conjecture or speculation. Because appellant did not submit sufficient
evidence that his injuries were caused by his employment, OWCP properly denied his claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F. R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in the performance of duty as a sales distribution clerk.
ORDER
IT IS HEREBY ORDERED THAT the February 18, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: January 17, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF THE ARMY, NATIONAL
GROUND INTELLIGENCE CENTER,
Charlottesville, VA, Employer
__________________________________________

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Appearances:
Debra Hauser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1426
Issued: December 29, 2015

Case Submitted on the Record

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

JURISDICTION
On June 17, 2015 appellant, through counsel, filed a timely appeal of a January 26, 2015
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition due to factors of her federal employment.
On appeal, counsel argues that appellant had established harassment and overwork as
compensable factors and that OWCP improperly failed to review the medical evidence.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 15, 2013 appellant, then a 59-year-old program support assistant, filed an
occupational disease claim (Form CA-2) alleging that she developed an acute reaction to stress
and mood disorder. She alleged that she was overworked as a direct result of raising concerns of
an improper affair between a coworker and her third level supervisor. Appellant alleged that she
was living with fear, stress, and anxiety.
OWCP requested additional factual and medical evidence from appellant in a letter dated
April 8, 2013. Appellant submitted reports dated January 9 and March 15, 2013 from
Dr. Stephen McNamara, a Board-certified psychiatrist, diagnosing adjustment disorder with
mixed anxiety and depression due to her employment.
Appellant completed a narrative statement and alleged that in May 2008, it became
apparent to her that Mr. W, Chief of Staff, was in an adulterous relationship with Ms. B,
appellant’s coworker. She and another coworker, Ms. S, informed Mr. W that he was the subject
of gossip. According to appellant, Mr. W became hostile and intimidating with accusatory
comments and an angry and condescending attitude. He was then promoted to become
appellant’s senior rater. Appellant managed to avoid Mr. W, until Ms. B was given a position in
appellant’s division directly in Mr. W’s chain of command and was assigned to the same fourperson cubicle as appellant. Appellant complained about the situation to her supervisors and an
Equal Employment Opportunity (EEO) officer because of the appearance of nepotism, favor, and
impropriety. She alleged that Mr. W pressured her supervisor to hire Ms. B. Appellant stated
that Ms. B interfered with the management of the division by questioning their supervisor’s
authority and instructions. She also alleged that Ms. B kept notes on appellant’s whereabouts
and work, and that Ms. B questioned her about her movements. Appellant alleged that Ms. B
stalked her and spied on her constantly in violation of workplace regulations. Mr. W gained
information through Ms. B who alleged that appellant did not do any work. Appellant stated that
she had a verbal confrontation with Ms. B which caused her to be fearful. She also alleged that
her workload increased and that she had no back-up personnel for her work responsibilities.
Appellant alleged that these additional assignments, on top of her regular workload and
deadlines, caused her stress. She stated that Ms. B ridiculed her and laughed at her tears, and
that Ms. B called appellant’s behavior ridiculous.
Appellant stated that her supervisors tried to protect her from Mr. W, who found fault
with and complained about appellant. She was directed to avoid the area of Mr. W’s office and
the Commander’s office on the fifth floor because her supervisors felt she was a target of Mr. W.
Appellant stated that she stressed over all of her work because she feared Mr. W’s criticism.
The employing establishment moved Ms. B in December 2011. Appellant’s supervisor,
Mr. B, filed a grievance against management due to Mr. W’s interference. Appellant alleged that
there was a hostile work environment, but the employing establishment found the complaints
unfounded. She alleged that Mr. W threw things in the presence of other employees and that this
caused her anxiety.
The employing establishment completed a statement on March 27, 2013 and stated that
appellant had been required to report to the fifth floor on a monthly basis for one day to

2

supervise drug testing. It stated that appellant would encounter Mr. W for less than five minutes
a week, and only if passing in the hallway, as she worked on the third floor and he worked on the
fifth floor.
On April 23, 2013 appellant admitted that she had a source of stress in her personal life,
the death of her stepfather due to cancer on September 25, 2012.
By decision dated October 23, 2013, OWCP denied appellant’s claim for an emotional
condition as she had failed to submit any corroborating evidence supporting her alleged factors
of employment. It noted that due to the factual deficiencies it was unnecessary to address the
medical evidence.
Appellant, through her counsel at the time, requested reconsideration on
September 23, 2014. Counsel listed appellant’s alleged employment factors and argued that her
claim was based on a hostile work environment based on Mr. W’s comments and attitude as well
as Ms. B’s notes regarding appellant’s location and activities. She repeatedly referenced an EEO
claim which was not included in the prior record. Counsel attached statements from the EEO
claim to her reconsideration request.
Appellant submitted a witness statement from a coworker, Ms. G, dated May 4, 2014,
noting that appellant was crying in the ladies room and that appellant had attributed her state to
Mr. W and Ms. B. On May 23, 2014 another coworker, Ms. IB stated that appellant frequently
cried in 2012 and that she alleged a hostile work environment due to Mr. W and Ms. B. In an
e-mail dated January 17, 2012, a third coworker, Mr. P stated that on October 28, 2011 appellant
was upset and crying and that she had attributed her condition to a hostile work environment.
In a May 21, 2014 statement, a coworker, Ms. M noted that she worked in the cubicle
with appellant and Ms. B. She noticed animosity between the two and stated that Ms. B seemed
to monitor appellant’s activities in the office and would comment on appellant’s conversations
and activities. Ms. M stated that appellant became upset, fearful, and cried on several occasions.
On one of these occasions Ms. B laughed and made a snide comment. She stated that appellant
was never going to be promoted.
Another coworker, Ms. JM stated that she was in the next cubicle and overheard
conversations between appellant and Ms. B. Ms. B stated that she witnessed appellant’s every
move being recorded and business actions being monitored for reporting to Mr. W. Ms. JM
stated that Ms. B became Mr. W’s spy and monitored how long appellant was in the ladies room.
In a statement dated January 18, 2012, appellant’s supervisor Mr. B stated that appellant
became more reserved in July 2010 when Ms. B began working in the division. He stated that in
October 2011 appellant had a breakdown due to stress, her strained relationship with Ms. B, and
her perception that she shared with Mr. B, that Ms. B was harassing her with encouragement
from Mr. W. Appellant also submitted statements from her husband and mother.
By decision dated January 26, 2015, OWCP denied appellant’s claim, finding that the
evidence she submitted, including witness statements, did not provide proof that she was
harassed or given extra work assignments or deadlines. It noted that the statements submitted
were of general application and not determinative of the specific employment factors alleged.
3

OWCP accepted that appellant had concerns regarding the alleged affair between Mr. W and
Ms. B, but found that this was not a factor of employment. It further found that management did
not like appellant, but that was also not a factor of employment.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,2 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.3 There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.4 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.5 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a
person injury sustained in the performance of duty within the meaning of FECA. Thus disability
is not covered when it results from an employee’s fear of a reduction-in-force. Nor is disability
covered when it results from such factors as an employee’s frustration in not being permitted to
work in a particular environment or to hold a particular position.6
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.7 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.8 A claimant must support his or her allegations with probative and reliable
evidence. Personal perceptions alone are insufficient to establish an employment-related
emotional condition.9

2

28 ECAB 125 (1976).

3

Supra note 1.

4

See Robert W. Johns, 51 ECAB 136 (1999).

5

Supra note 2.

6

Id.

7

Charles D. Edwards, 55 ECAB 258 (2004).

8

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
9

Roger Williams, 52 ECAB 468 (2001).

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For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did, in fact, occur. Mere perceptions of
harassment or discrimination are not compensable under FECA. Unsubstantiated allegations of
harassment or discrimination are not determinative of whether such harassment or discrimination
occurred. To establish entitlement to benefits, a claimant must establish a factual basis for the
claim by supporting his or her allegations with probative and reliable evidence.10
ANALYSIS
Appellant has alleged that she was overworked and subjected to stress inducing
deadlines. If established, these elements relate to her job duties under Lillian Cutler11 and would
be compensable employment factors. The Board finds that appellant has submitted no evidence
supporting her allegations that she was overworked or that her employment duties involved
deadlines. Without evidence substantiating the allegations of overwork and deadlines, appellant
has failed to meet her burden of establishing a compensable factor of employment under Cutler.
In Thomas D. McEuen,12 the Board held that an employee’s emotional reaction to
administrative actions or personnel matters taken by the employing establishment is not covered
under FECA as such matters pertain to procedures and requirements of the employer and do not
bear a direct relation to the work required of the employee. The Board noted, however, that
coverage under FECA would attach if the facts surrounding the administrative or personnel
action established error or abuse by employing establishment superiors in dealing with the
claimant. Absent evidence of such error or abuse, the resulting emotional condition must be
considered self-generated and not employment generated. In determining whether the employing
establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.
Appellant alleged error or abuse in an administrative action under McEuen in that she
believed it violated employing establishment policies for Mr. W to engage in an affair with
Ms. B, to supervise Ms. B given her relationship to him, and to require appellant’s supervisor
Mr. B to hire Ms. B. The Board finds that appellant has not established these events as
compensable factors of employment as she has not substantiated the affair nor provided
documentation of the violations of specific employing establishment policy. Without evidence
of error or abuse in an administrative action, appellant has not established a compensable factor
of employment with regard to these alleged events. Furthermore, even if these had been
established, they would not be related to appellant in such a way as to be a compensable factor
for her as she has been impacted by the events only due to her belief others were violating a
policy.
Appellant also attributed her emotional condition to harassment by Mr. W and Ms. B in
retaliation for her complaints that their alleged improper relationship created a hostile work
10

Alice M. Washington, 46 ECAB 382 (1994).

11

Supra note 2.

12

Supra note 8.

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environment. She has provided witness statements supporting that she believed that Mr. W and
Ms. B harassed her and that there was a hostile work environment, but her mere perceptions,
even if revealed to others and recorded by them, are insufficient to establish that harassment
occurred as alleged. Appellant has not submitted specific details or evidence of specific
incidents of harassment with dates and times and as such has not established a hostile work
environment.
Appellant alleged that Ms. B monitored her activities while at work and reported her
findings to Mr. W. She alleged that this was error and abuse as it was a violation of the
employing establishment’s policy on harassment. Appellant’s coworkers, Ms. M and Ms. JM,
completed statements generally alleging that Ms. B seemed to monitor appellant’s activities in
the office and would comment on her conversations and activities. Ms. JM asserted that Ms. B
was a spy. The Board finds that these witness allegations regarding Ms. B are insufficiently
substantiated by the evidence of record as to date, time, and place to find them compensable.13
Neither Ms. M nor Ms. JM provided specific instances in which Ms. B spied upon appellant,
recorded her activities, or commented on her conversations. Such general allegations are
insufficient to establish harassment or error and abuse by the employing establishment.
Appellant alleged that she had a verbal confrontation with Ms. B, and that Ms. B laughed
on occasions when appellant was upset and crying. Ms. M noted that appellant frequently cried
and became upset and that on one of these occasions Ms. B laughed and made a snide comment.
She further alleged that Ms. B stated that appellant was never going to be promoted. Verbal
altercations and difficult relationships with coworkers and supervisors/managers, when
sufficiently detailed and supported by the record, may constitute compensable factors of
employment.14 However, this does not imply that every ostensibly abusive or threatening
statement uttered in the workplace will give rise to coverage under FECA. For appellant to
prevail on her claim, she must support her allegations with specificity and reliable evidence. The
Board finds that while they are generally supported, Ms. B’s statements and actions are not
proved with specific dates and times and as such are not sufficiently established as true.
Contrary to counsel’s arguments on appeal, the Board finds that appellant has not
submitted the necessary specific corroborative evidence to establish her claims of hostile work
environment and harassment. The Board further finds that appellant has not established error or
abuse in an administrative action or verbal confrontation. Where a claimant has not established
any compensable employment factors, the Board need not consider the medical evidence of
record.15
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.
13

M.D., Docket No. 13-867 (issued September 26, 2014) (finding that witness statements must provide precise
support for alleged employment factors).
14

L.M., Docket No. 13-267 (issued November 15, 2013).

15

A.K., 58 ECAB 119 (2006).

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CONCLUSION
The Board finds that appellant has not established a compensable factor of employment
and therefore has not met her burden of proof to establish her emotional condition claim.
ORDER
IT IS HEREBY ORDERED THAT the January 26, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 29, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NEW JERSEY HEALTH CARE SYSTEM,
Lyons, NJ, Employer
__________________________________________

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Appearances:
Russell T. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1154
Issued: January 10, 2018

Case Submitted on the Record

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

JURISDICTION
On May 4, 2017 appellant, through counsel, filed a timely appeal from December 6, 2016
and March 24, 2017 merit decisions of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established that her claim should be expanded to
include aggravation of preexisting internal derangement of her right knee and aggravation of
preexisting moderate degenerative joint disease of her right knee causally related to her
January 29, 2016 employment injury.
On appeal counsel asserts that the medical evidence submitted is sufficient to warrant
expansion of the claim to include additional right knee conditions or, in the alternative, to find a
conflict in medical evidence between Dr. Teofilo A. Dauhajre, an attending Board-certified
orthopedic surgeon, and Dr. Arnold T. Berman, an OWCP medical adviser who is also Boardcertified in orthopedic surgery.3
FACTUAL HISTORY
On January 29, 2016 appellant, then a 62-year-old secretary/office assistant, filed a
traumatic injury claim (Form CA-1) alleging that she injured her right foot and knee on that date
when she slipped on wet ground at Building 7 of the employing establishment. She stopped
work on the date of injury.
In a report dated January 29, 2016, Dr. B.W. Yang, an employing establishment
physician, noted a history that appellant slipped and fell on a wet ramp, landing on her right side
and striking her right knee, leg, and foot. Clinical findings included right lower leg and right
knee abrasions and ecchymosis with tenderness to touch and difficulty with weight-bearing.
Dr. Yang advised that appellant could not work. A right tibia and fibula x-ray performed that
day showed no acute abnormality. Right foot x-rays demonstrated fracture deformities of the
third and fourth metatarsals. A right knee x-ray demonstrated mild-to-moderate degenerative
changes in the medial tibiofemoral and patellofemoral joints.
In a February 16, 2016 report, Dr. Dauhajre noted seeing appellant the previous day. He
reported a history that appellant injured her right knee, leg, foot, and ankle while going down a
wet ramp at work on January 29, 2016. Dr. Dauhajre indicated that appellant had previously
injured her right knee when she fell on July 31, 2004.4 Appellant also had a right knee magnetic
resonance imaging (MRI) scan and a left knee arthroscopy in 2013. Dr. Dauhajre described the
x-ray findings and appellant’s complaint of right knee and right foot pain. Right knee
examination revealed full range of motion, scant effusion, stable collateral ligaments, and
negative drawer, Lachman, and pivot-shift signs with diffuse medial joint line tenderness, no
lateral joint line tenderness, good patellar tracking, no patellofemoral grind, no evidence of plica,
and a negative apprehension sign. Right leg examination demonstrated ecchymoses, and right
foot examination revealed tenderness over the third and fourth toes. Dr. Dauhajre diagnosed
contusion to the right knee and proximal right leg, ecchymoses of right leg, aggravation of
3

Counsel specifically indicated that appellant was not seeking expansion to include right foot conditions.

4

The record indicates that appellant has an accepted July 31, 2004 employment injury, adjudicated by OWCP
under File No. xxxxxx755. That claim is not presently before the Board. The instant claim was adjudicated by
OWCP under File No. xxxxxx028.

2

preexisting internal derangement of right knee, preexisting moderate degenerative joint disease
of right knee, and contusion/sprain of right distal forefoot and third and fourth toes. He found
that appellant was totally disabled from work. A February 22, 2016 right foot x-ray showed no
fracture.
In other reports dated February 26 to March 11, 2016, Dr. Dauhajre reiterated his
findings and conclusions. He additionally diagnosed healing, nondisplaced fracture of the
second, third, and fourth metatarsal necks of the right foot and advised that appellant continued
to be totally disabled from work.
By letter dated March 28, 2016, OWCP informed appellant of the type of evidence
needed to support her claim. It specifically noted that she had a separate claim for a right foot
injury that occurred on January 22, 2016, adjudicated under File No. xxxxxx226 and inquired
whether these were two separate injuries. OWCP advised appellant to submit a detailed and
well-rationalized medical report explaining how the claimed conditions resulted from the alleged
January 29, 2016 employment incident.
In an April 11, 2016 statement, appellant indicated that the January 29, 2016 injury
alleged in the present claim (File No. xxxxxx028) was a new injury when she broke three toes.
On April 11, 2016 Dr. Dauhajre noted that appellant continued to complain of residual,
intermittent medial joint line pain and stiffness of the right knee with recurrent giving out, and
resolving right foot pain. He reviewed an October 3, 2013 right knee MRI scan, indicating that it
showed degenerative changes at the medial compartment, with an occult plateau fracture of
unknown age, a medial meniscal tear, joint effusion, edema, chondromalacia patella, and an
occult hairline fracture of the proximal fibula. Physical examination of the right foot revealed
mild residual swelling of the distal forefoot and toes. Right knee examination demonstrated
similar findings to those seen on previous examinations. Dr. Dauhajre reiterated his diagnoses
and conclusion that appellant continued to be totally disabled from work.
On May 6, 2016 OWCP accepted the present claim, assigned File No. xxxxxx028, for
right knee, right lower leg, and right foot contusions, right foot sprain, and nondisplaced
fractures of the second, third, and fourth metatarsal bones of the right foot. By separate May 6,
2016 decision, it denied that the January 29, 2016 injury caused dislocation of tarsometatarsal
joints of the right and left foot or aggravation of preexisting internal derangement of right knee
and preexisting moderate degenerative joint disease of right knee.
On May 23, 2016 appellant, through counsel, requested a hearing with OWCP’s Branch
of Hearings and Review. She thereafter filed claims for compensation (CA-7 forms) for periods
of disability beginning March 15, 2016.5 OWCP paid appellant wage-loss compensation for the
claimed periods.
Appellant provided the October 3, 2013 right knee MRI scan report which noted
degenerative changes, medial meniscus tear, joint effusions, edema, chondromalacia patella, and
5
The employing establishment indicated that appellant received continuation of pay for the period January 30 to
March 14, 2016.

3

an occult hairline fracture at the proximal fibula. A June 13, 2016 right knee MRI scan showed
advanced degenerative disease in the medial femorotibial compartment with tears of the posterior
horn, essentially complete absence of the body, an inferior surface tear at the anterior horn body
junction, a lax anterior cruciate ligament, advanced degenerative disease in the patellofemoral
compartment, and edema anterior to the patella and patellar tendon.
Appellant returned to modified duty on July 18, 2016.
In reports dated through June 6, 2016, Dr. Dauhajre described appellant’s condition. On
July 5, 2016 he noted the June 13, 2016 MRI scan findings and additionally diagnosed internal
derangement of the right knee. Dr. Dauhajre advised that appellant’s clinical examination and
the MRI scan supported a probable tear of the right medial meniscus. On August 1 and
September 12, 2016 he noted appellant’s continued complaints of residual right knee pain
associated with recurrent giving out, and effusions. Examination findings remained the same.
Dr. Dauhajre reiterated his diagnoses and requested authorization for diagnostic arthroscopic
surgery.
During the hearing, held on September 27, 2016, appellant testified regarding the
circumstances of the January 22 and 29, 2016 employment injuries. She explained that, since her
fall on January 29, 2016, her right knee pain had increased with locking and that she now walked
with a cane.
In correspondence dated October 4, 2016, OWCP denied authorization for right knee
arthroscopic surgery.
Dr. Dauhajre submitted an October 15, 2016 report in which he described appellant’s
care from her first visit on February 15, 2016 to September 12, 2016.6 He opined, with a
reasonable degree of medical certainty, that appellant sustained residual permanency to the right
foot and additional permanency to the right knee that was causally related to the January 29,
2016 work injury. Dr. Dauhajre noted continued complaints of residual intermittent right distal
forefoot pain with residual mild swelling and slight tenderness of the fourth metatarsal shaft.
Regarding the right knee, he advised that the contusion appellant sustained on January 29, 2016
resulted in aggravation of her preexistent internal derangement and aggravation of her
preexistent moderate degenerative joint disease. Dr. Dauhajre described residual subjective
complaints of frequent deep-seated right knee pain, associated with recurrent giving out and
recurrent right knee effusions. He described right knee findings of residual moderate medial
joint line tenderness midbody and posteriorly, which supported a clinical diagnosis of a probable
tear of the medial menisci, noting that the June 13, 2016 MRI scan showed a complex tear of the
posterior mid horn of the medial meniscus, with dislocation into the joint and slight laxity of the
anterior cruciate ligament, residual medial marginal osteophytes, and moderate-to-advanced
degenerative changes of the patellofemoral joint. Dr. Dauhajre opined that appellant’s current
right knee condition was 30 percent causally related to the January 29, 2016 employment injury
and 70 percent causally related to her preexistent right knee condition, and this made her more
susceptible to experience her current symptoms. He advised that appellant’s prognosis for the
January 29, 2016 right foot and right knee injuries were guarded. Dr. Dauhajre recommended a
6

Dr. Dauhajre incorporated his treatment notes into the October 15, 2016 report.

4

diagnostic operative arthroscopy of the right knee to trim away the complex tear of the posterior
horn of the medial meniscus, and concluded that appellant would require total joint arthroplasty
of the right knee in the future. In a treatment note dated October 24, 2016, he reiterated his
findings and conclusions.
By decision dated December 6, 2016, an OWCP hearing representative affirmed the
May 6, 2016 decision, finding that the medical evidence of record did not contain a sufficient
explanation to establish that the claim should be expanded.
On December 29, 2016 appellant, through counsel, requested reconsideration and
provided a December 19, 2016 report from Dr. Dauhajre. Dr. Dauhajre advised that, as an
addendum to his October 15, 2016 report, he had telephoned appellant to discuss the exact
mechanism of injury. Appellant related that the January 29, 2016 employment injury occurred
when she slipped and fell, landing her right knee directly onto the concrete pavement.
Dr. Dauhajre opined that a direct contusion to the right knee could result in a direct impact to the
right knee in a flexed position and subsequent twisting motion at the time of injury could result
in a tear of the menisci of the knee. He concluded that, with a reasonable degree of medical
probability, the complex tear of the posterior mid horn of the medial meniscus, noted by the
June 13, 2016 right knee MRI scan, was a result of the direct impact to the right knee when
appellant fell on concrete pavement on January 29, 2016, causing a twisting motion of the right
knee in a flexed position.
Dr. Dauhajre also submitted treatment notes dated December 12, 2016 and January 20,
2017 in which he noted knee examination findings of mild effusion and joint line tenderness. He
reiterated his diagnoses and indicated that he was awaiting approval for arthroscopic surgery.
On February 1, 2017 OWCP referred the medical record and statement of accepted facts
(SOAF) to Dr. Berman, its medical adviser, for review. Dr. Berman was specifically asked to
comment on whether the complex tear of the posterior mid horn of the medial meniscus was a
consequence of the January 29, 2016 employment injury and whether the requested surgery was
medically necessary for and causally related to the complex tear. He was also asked to discuss
any disagreement with Dr. Dauhajre’s opinion.
In a February 14, 2017 report, Dr. Berman noted his review of the SOAF and medical
record, including the October 3, 2013 and June 13, 2016 MRI scans. He opined that the
January 29, 2016 employment injury was not competent to produce a medial meniscus tear or
degenerative arthritis. Dr. Berman explained that a “complex tear” meant that it was
degenerative in nature and, in this instance, there was irrefutable evidence of it being
degenerative because the nature of appellant’s right knee arthritic disease as found in the medial
and lateral compartments and patellofemoral articulation. He referenced the October 3, 2013
MRI scan, noting that it showed degenerative medial compartment changes. The MRI indicated
that the meniscus tear was preexisting and degenerative in nature as it was performed almost
three years before the January 29, 2016 work injury. Dr. Berman commented that, while
appellant fell directly on her right knee and had a contusion, a direct impact was not a
mechanism of injury to cause a meniscal tear, but was the mechanism to cause a contusion
superimposed on degenerative changes, adding that her direct fall impact was contrary to having
a torsional injury.

5

Dr. Berman noted that the June 13, 2016 MRI scan, five months after the work injury,
showed continued degeneration that would be expected from the natural progression of the
advanced degenerative changes seen three years previously, and that the marked abnormalities of
the medial meniscus were all of a degenerative nature. He opined that appellant would not
benefit from an arthroscopic medial meniscectomy as the meniscal changes were severely
degenerative and, clinically, her condition would not be improved by arthroscopy. Dr. Berman
indicated that, while appellant would ultimately need total knee replacement, this was not work
related and was rather due to her degenerative disease, which was very well documented three
years before the January 29, 2016 work injury. He commented that natural progression over the
three years was expected with the normal natural history of degenerative changes.
Dr. Berman advised that, for these reasons, diagnostic and operative arthroscopy should
not be approved because it would not represent a therapeutic measure for appellant who would
not benefit from the procedure, because even if the procedure was done, her pain would persist,
and there would be no improvement as a result of the procedure. He concluded that, based upon
current orthopedic knowledge and within a reasonable degree of medical certainty, appellant did
not develop a complex tear of the posterior and midportion of the medial meniscus as a result of
the January 29, 2016 work injury and that the requested surgery should not be approved.
In a March 24, 2017 decision, OWCP denied modification of its prior decisions. It found
Dr. Dauhajre’s opinion insufficient to establish that appellant’s knee conditions were caused by
the January 29, 2016 employment injury, noting that Dr. Dauhajre did not reference a twisting
motion until his December 19, 2016 report when he advised that this could result in a tear.
LEGAL PRECEDENT
An employee has the burden of proof to establish that any specific condition for which
compensation is claimed is causally related to the employment injury.7 Causal relationship is a
medical issue, and the medical evidence required to establish causal relationship is rationalized
medical evidence.8 The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.9 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.10

7

Kenneth R. Love, 50 ECAB 276 (1999).

8

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

9

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

10

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

6

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that additional
right knee conditions were caused or aggravated by the accepted January 29, 2016 employment
injury. OWCP accepted right knee, right lower leg, and right foot contusions, right foot sprain,
and nondisplaced fractures of the second, third, and fourth metatarsal bones of the right foot. It
did not accept aggravation of preexisting internal derangement of right knee and preexisting
moderate degenerative joint disease of right knee.
The opinion of a physician supporting causal relationship must be based on a complete
factual and medical background, supported by affirmative evidence, must address the specific
factual and medical evidence of record, and must provide medical rationale explaining the nature
of the relationship between the diagnosed condition and the established incident or factor of
employment.11 No physician did so in this case.
The relevant medical record includes numerous reports from Dr. Dauhajre, an attending
orthopedic surgeon, who began treating appellant on February 15, 2016. In a February 16, 2016
report, Dr. Dauhajre noted that appellant injured her right knee, leg, foot, and ankle while going
down a wet ramp at work on January 29, 2016. He also reported that she had previously injured
her right knee when she fell on July 31, 2004. Dr. Dauhajre noted findings and diagnosed
contusion to the right knee and proximal right leg, ecchymoses of right leg, aggravation of
preexisting internal derangement of right knee and preexisting moderate degenerative joint
disease of right knee, and contusion/sprain of right distal forefoot and third and fourth toes. In
subsequent treatment notes through June 6, 2016, he reported similar complaints and described
similar examination findings. On July 5, 2016 Dr. Dauhajre noted the June 13, 2016 MRI scan
findings and additionally diagnosed internal derangement of the right knee, advising that
appellant’s clinical examination and the MRI scan supported a probable tear of the right medial
meniscus. In subsequent reports, he noted appellant’s complaints of right knee pain with locking
and give-way and provided similar examination findings. Dr. Dauhajre, however, did not
explain how the January 29, 2016 fall caused an aggravation of appellant’s previous degenerative
right knee condition or a newly diagnosed internal derangement in any of the preceding reports.
In his October 15, 2016 report, after noting the June 13, 2016 MRI scan results and
describing appellant’s complaints and findings, Dr. Dauhajre merely concluded that appellant’s
right knee condition was partially caused by the January 29, 2016 employment injury with a
specific explanation of the mechanics of the injury. It was not until December 19, 2016, almost
11 months after the employment injury, that he provided a mechanism of injury by explaining
that a direct contusion to the right knee could result in a direct impact to the right knee in a
flexed position and subsequent twisting motion at the time of injury and could result in a tear of
the menisci of the knee. Dr. Dauhajre concluded that, with a reasonable degree of medical
probability, the complex tear of the posterior mid horn of the medial meniscus, noted by the
June 13, 2016 right knee MRI scan, was a result of the direct impact to the right knee when
appellant fell on concrete pavement on January 29, 2016, causing a twisting motion of the right
knee in a flexed position.
11

Robert Broome, 55 ECAB 339 (2004).

7

The Board finds Dr. Dauhajre’s opinion contains insufficient rationale to meet appellant’s
burden of proof. The December 19, 2016 report was couched in equivocal terms. Moreover,
Dr. Dauhajre did not previously mention a twisting injury in any of his reports that began in
February 2016 and did not discuss how appellant’s preexisting right knee degenerative
conditions had progressed beyond what might be expected from the natural progression of
degeneration.12
While the medical opinion of a physician supporting causal relationship does not have to
reduce the cause or etiology of a disease or condition to an absolute certainty, neither can such
opinion be speculative or equivocal. The opinion of a physician supporting causal relationship
must be one of reasonable medical certainty that the condition for which compensation is
claimed is causally related to federal employment and such relationship must be supported with
affirmative evidence, explained by medical rationale and be based upon a complete and accurate
medical and factual background of the claimant.13 A well-rationalized opinion is particularly
warranted in this case due to appellant’s history of preexisting conditions.14
Other medical evidence provided by appellant, including x-rays and MRI scans, did not
address whether the January 29, 2016 work injury caused or aggravated the claimed conditions.
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.15 Thus,
this evidence is of limited probative value and insufficient to establish that additional conditions
are causally related to the January 29, 2016 employment injury.
The medical record was also reviewed by Dr. Berman, an OWCP medical adviser. In his
February 14, 2017 report, Dr. Berman discussed the medical evidence of record, including the
MRI scan findings, noting that appellant exhibited degenerative right knee changes in
October 2013, almost three years prior to the January 29, 2016 employment injury. He opined
that the changes seen on the June 13, 2016 MRI scan were also degenerative in nature, showing a
natural progression of appellant’s right knee degenerative joint disease. Dr. Berman further
noted that the contemporaneous medical evidence did not indicate that appellant sustained a
torsional injury, and advised that arthroscopic surgery would not benefit appellant, indicating
that at some point she would need knee replacement surgery but that this was due to degenerative
pathology and was not employment related.
To establish causal relationship, a claimant must submit a physician’s report in which the
physician reviews the employment factors identified as causing the claimed condition and, taking
these factors into consideration as well as findings upon examination, states whether the
employment injury caused or aggravated the diagnosed conditions and presents medical rationale
in support of his or her opinion.16 Rationalized medical evidence is evidence which relates a
12

R.E., Docket No. 14-868 (issued September 24, 2014).

13

Patricia J. Glenn, 58 ECAB 159 (2001).

14

K.P., Docket No. 14-1330 (issued October 17, 2014).

15

Willie M. Miller, 53 ECAB 697 (2002).

16

D.E., 58 ECAB 448 (2007).

8

work incident or factors of employment to a claimant’s condition, with stated reasons of a
physician. The opinion must be one of reasonable medical certainty and must be supported by
medical rationale explaining the nature of the relationship of the diagnosed condition and the
specific employment factors or employment injury.17 The Board finds that appellant has not
submitted sufficient rationalized medical evidence supporting causal relationship between the
January 29, 2016 employment injury and any of the claimed additional right knee conditions.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish additional
right knee conditions causally related to the January 29, 2016 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 24, 2017 and December 6, 2016 are affirmed.
Issued: January 10, 2018
Washington, DC

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

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

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

17

C.O., Docket No. 10-189 (issued July 15, 2010).

9


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Jacksonville, FL, Employer
)
___________________________________________ )
R.M., Appellant

Appearances:

Docket No. 08-1181
Issued: November 19, 2008

Case Submitted on the Record

Appellant, pro se
Office of Solicitor, for the Director

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

JURISDICTION
On March 13, 2008 appellant filed a timely appeal from a December 5, 2007 decision of
the Office of Workers’ Compensation Programs which denied his reconsideration request
without conducting a merit review. Because more than one year has elapsed between the most
recent merit decision of the Office dated January 18, 2007 and the filing of this appeal, the Board
lacks jurisdiction to review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
This is the second appeal in the present case. In an October 11, 2007 decision, the Board
affirmed a January 18, 2007 Office decision which denied appellant’s claim for a traumatic
injury. The Board found that appellant failed to meet his burden of proof to establish that he
sustained a bilateral arm and shoulder injury causally related to the November 28, 2006

employment incident.1 The facts and the circumstances of the case are set forth in the Board’s
prior decision and are incorporated herein by reference.2
In a letter dated May 18, 2007, appellant requested reconsideration. He submitted a copy
of the traumatic injury claim filed on November 29, 2006 and a copy of his March 28, 2007
appeal form submitted to the Board. A November 28, 2006 attending physician’s report from
Dr. William D. Moore, a Board-certified internist, treated appellant for cervical pain which
began on November 28, 2006 when he was pushing a mail container at work. Dr. Moore
diagnosed C6-7 disc herniation and noted with a checkmark “yes” that appellant’s condition was
caused or aggravated by an employment activity. An April 16, 2007 attending physician’s report
from Dr. Andrew Cannestra, a Board-certified neurologist, noted that appellant reported pushing
a mail cart at work on November 28, 2006 when it stopped suddenly causing an injury to his
cervical spine. Dr. Cannestra diagnosed cervical disc herniation, left paracentral disc herniation
at C6-7 and noted with a checkmark “yes” that appellant’s condition was caused or aggravated
by an employment activity.
He noted appellant was totally disabled commencing
November 29, 2006. On June 21, 2007 Dr. Cannestra noted that appellant had surgery on May 7,
2007 and could return to full-time work on June 25, 2007 with no lifting over 25 pounds.
By decision dated December 5, 2007, the Office denied appellant’s reconsideration
request on the grounds that the evidence was repetitious and immaterial and insufficient to
warrant further merit review.
LEGAL PRECEDENT
Under section 8128(a) of the Act,3 the Office has the discretion to reopen a case for
review on the merits. It must exercise this discretion in accordance with the guidelines set forth
in section 10.606(b)(2) of the implementing federal regulations,4 which provides that a claimant
may obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence which:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the
[Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”
1

On November 29, 2006 appellant, then a 51-year-old tractor trailer operator, filed a claim alleging that, on
November 28, 2006, he experienced bilateral arm and shoulder pain while pushing a general purpose container on a
trailer.
2

Docket No. 07-1241 (issued October 11, 2007).

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b).

2

Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.5
ANALYSIS
The Office denied appellant’s reconsideration request without conducting a merit review,
on the grounds that the evidence submitted neither raised substantive legal questions nor
included new and relevant evidence and was therefore insufficient to warrant review of the prior
decision.
However, appellant submitted relevant and pertinent evidence not previously considered
by the Office. The Office’s January 18, 2007 decision denied appellant’s claim because he had
not submitted sufficient medical evidence to establish his claim. Appellant submitted an
attending physician’s report from Dr. Cannestra dated April 17, 2007. He addressed the
causation of appellant’s injuries. Dr. Cannestra noted a history of appellant’s injury on
November 28, 2006 and diagnosed cervical disc herniation, left paracentral disc herniation at
C6-7. He noted with a checkmark “yes” that appellant’s condition was caused or aggravated by
an employment activity. Dr. Cannestra opined that appellant was totally disabled from
November 29, 2006 to June 18, 2007.
This medical evidence was not previously of record and is relevant to the issue of
whether appellant’s current condition is related to the incident of November 28, 2006. This
evidence was not previously considered by the Office in rendering a decision. The Board has
held that the requirement for reopening a claim for merit review does not include the requirement
that a claimant must submit all evidence which may be necessary to discharge his or her burden
of proof. Instead, the requirement pertaining to the submission of evidence in support of
reconsideration only specifies that the evidence be relevant and pertinent and not previously
considered by the Office.6 The Board finds that the report from Dr. Cannestra is relevant new
evidence that is sufficient to require reopening appellant’s case for further review on its merits.
Therefore, the Office improperly refused to reopen appellant’s claim for further review
on its merits under 5 U.S.C. § 8128. Consequently, the case will be remanded to the Office for a
merit review. Following this and such other development as deemed necessary, the Office shall
issue an appropriate merit decision on appellant’s claim.
CONCLUSION
The Board finds that the Office, in its decision dated December 5, 2007, improperly
denied appellant’s request for reconsideration of his case on its merits.7
5

20 C.F.R. § 10.608(b).

6

See Helen E. Tschantz, 39 ECAB 1382 (1988).

7

Following the Office’s December 5, 2007 decision and on appeal, appellant submitted additional evidence to the
Office. However, the Board may not consider new evidence on appeal; see 20 C.F.R. § 501.2(c).

3

ORDER
IT IS HEREBY ORDERED THAT the December 5, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to the Office for further
development in accordance with this decision.
Issued: November 19, 2008
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

4