United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Dallas, TX, Employer
__________________________________________
Appearances:
Michael E. Woods, for the appellant
Office of Solicitor, for the Director

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Docket No. 13-1029
Issued: September 23, 2013

Case Submitted on the Record

ORDER REVERSING CASE
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

On March 26, 2013 appellant, through her representative, filed a timely appeal from a
March 7, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which affirmed the termination of her medical benefits.
OWCP accepted that appellant, then a 39-year-old transportation security officer,
sustained injury on October 31, 2006. She climbed on a chair, it slid out from under her and she
fell and hit her head, right foot and ankle. On January 25, 2007 OWCP accepted the claim for
ankle strain and lumbar sprain. Appellant was placed on the periodic compensation rolls. On
October 1, 2011 she began work in customer service at a private employing establishment.
Due to a disagreement between Dr. John Sazy, appellant’s treating physician, and
Dr. Van Hal, an OWCP second opinion physician, as to whether appellant had any residuals
from the accepted work injury, OWCP found a conflict of medical opinion requiring referral to
an impartial medical examiner. By letter dated March 7, 2012, appellant was advised that an
appointment had been scheduled with Dr. Bernie McCaskill, a Board-certified orthopedic
surgeon, for an impartial medical evaluation.1 The record contains a March 7, 2012 iFECS
1

Dr. McCaskill’s address and telephone number were stated to be 8220 Walnut Hill Lane, Suite 310, Dallas, TX
75231 -- (214) 691-7077.

Report: MEO23 -- Appointment Schedule Notification indicating that Dr. McCaskill was
selected as impartial medical adviser.
In an April 10, 2012 report, Dr. McCaskill described appellant’s history, subsequent
treatment, diagnostic test results and findings on examination. He diagnosed spondylogenic
cervical and lumbosacral spine pain associated with chronic upper and lower extremity
symptoms, etiology unknown and multiple nonphysiologic findings. Dr. McCaskill opined that
on an objective basis, appellant’s work injuries had resolved and she had no disability from
work.
On June 22, 2012 OWCP issued a notice of proposed termination of medical benefits for
the accepted conditions. Determinative weight was accorded to Dr. McCaskill’s impartial
opinion. On July 12, 2012 OWCP responded to appellant’s May 2, 2012 request regarding the
selection of Dr. McCaskill as the impartial medical specialist and provided a copy of the bypass
history. The screen captures of record reflect that the first name on the list was Dr. Benzel
MacMaster, a Board-certified orthopedic surgeon, who was bypassed for the reason
“appointment scheduler was not in the office at this time March 7, 2012.” The bypass date and
time was stated as March 7, 2012 at 3:34 p.m.
By decision dated July 24, 2012, OWCP finalized the termination of appellant’s medical
benefits for the accepted conditions effective July 24, 2012.
On August 20, 2012 appellant’s representative requested an oral hearing, which was held
on November 29, 2012. He argued that OWCP was unable to substantiate how it selected
Dr. McCaskill as the impartial referee.
By decision dated February 6, 2013, OWCP’s hearing representative affirmed the
July 24, 2012 termination decision.
On February 26, 2013 counsel requested reconsideration of OWCP’s February 6, 2013
decision. He argued that Dr. McCaskill’s selection as an impartial medical specialist was
improper as OWCP had not established that he was the next name in the Physicians Directory
System (PDS) and Dr. McCaskill had unprofessional conduct documented by the Texas State
Medical Board.
By decision dated March 7, 2013, OWCP denied modification of its prior decisions.
Section 8123(a) of FECA provides that, 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.2 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.3 In situations where there exist opposing medical reports of virtually
2

5 U.S.C. § 8123(a).

3

20 C.F.R. § 10.321.

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equal weight and rationale and the case is referred to an impartial medical specialist for the
purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized
and based upon a proper factual background, must be given special weight.4
Congress did not address the manner by which an impartial medical referee is to be
selected.5 Under FECA Procedure Manual, the Director has exercised discretion to implement
practices pertaining to the selection of the impartial medical referee. Unlike second opinion
physicians, the selection of referee physicians is made from a strict rotational system.6 OWCP
will select a physician who is qualified in the appropriate medical specialty and who has no prior
connection with the case.7
In turn, the Director has delegated authority to each district Office for selection of the
referee physician by use of the Medical Management Application (MMA) within the iFECS.8
This application contains the names of physicians who are Board-certified in over 30 medical
specialties for use as referees within appropriate geographical areas.9 The MMA in iFECS
replaces the prior PDS method of appointment.10 It provides for a rotation among physicians
from the American Board of Medical Specialties, including the medical boards of the American
Medical Association and those physicians Board-certified with the American Osteopathic
Association.11
Selection of the referee physician is made through use of the application by a medical
scheduler. The claims examiner may not dictate the physician to serve as the referee examiner.12
The medical scheduler imputes the claim number into the application, from which the claimant’s
home zip code is loaded.13 The scheduler chooses the type of examination to be performed
(second opinion or impartial referee) and the applicable medical specialty. The next physician in
the roster appears on the screen and remains until an appointment is scheduled or the physician is
bypassed.14 If the physician agrees to the appointment, the date and time are entered into the
application. Upon entry of the appointment information, the application prompts the medical
scheduler to prepare a Form ME023, appointment notification report for imaging into the case

4

Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

5

J.S., Docket No. 12-1343 (issued April 22, 2013).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b) (July 2011).

7

Id. at Chapter 3.500.4(b)(1).

8

Id at Chapter 3.500.4(b)(6).

9

Id. at Chapter 3.500.4(b)(6)(a).

10

Id. at Chapter 3.500.5.

11

Id at Chapter 3.500.5(a).

12

Id. at Chapter 3.500.5(b).

13

Id. at Chapter 3.500.5(c).

14

Id. Upon entry of a bypass code, the MMA will present the next physician based on specialty and zip code.

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file.15 Once an appointment with a medical referee is scheduled the claimant and any authorized
representative is to be notified.16
In the present case, the record establishes by screenshot that a code 0 was entered and
Dr. MacMaster was bypassed at 3:34 p.m. on March 7, 2012 for the reason that the appointment
scheduler was not in the office at the time. On that same day Dr. McCaskill, his partner in
practice with whom he shared an office, was selected and scheduled to serve as the impartial
medical specialist. OWCP procedures describe when a code 0 is to be used. FECA Procedure
Manual states:
“This code is used when none of the other bypass reasons are applicable. This
code is appropriate to use when no one answers the telephone (e.g., “phone rings
continuously with no answer”) or the telephone number has been disconnected
(e.g., “telephone disconnected/no other contact number noted.”) A note is
required to explain usage of this code and code 0 should not be used if there is
another appropriate code.
Code 0 is also appropriate if the medical scheduler must leave a message. If a message
must be left, the medical scheduler should note the name of the person who was contacted or that
a message was left on a voicemail. While waiting for a return call, the appointment with that
particular physician should be put into a “pending” status. The scheduler should allow the
physician’s office a minimum of two business hours for a return call (as determined by usual
physician business hours). If the physician’s office does not call back within this period of time,
the physician can be bypassed with the code 0 and another physician can be contacted. When the
scheduler removes the “pending” status, the bypass note should be updated with an annotation
that no call back was received. If a call back was received, and it was determined that the
appointment could not be scheduled for some other reason (related to another bypass code), the
record should be updated accordingly.”17
The Board finds that the record does not establish that bypass procedures were properly
followed. The bypass reason that the appointment scheduler was not in Dr. MacMaster’s office
“at this time,” does not provide sufficient information as to whether the physician’s office was
allowed a minimum of two hours to call back for scheduling of the appointment. The Board
notes in this regard that the bypass note was not updated with an annotation that no call back was
received. Dr. MacMaster’s associate in practice, Dr. McCaskill, was scheduled to act as the
impartial medical specialist on the same day, March 7, 2012. Moreover, as the two physicians
are associated in their orthopedic practice, the record reflects a medical scheduler became
available and was in contact with OWCP’s scheduler.
A physician selected by OWCP to serve as an impartial medical specialist should be one
wholly free to make a completely independent evaluation and judgment. In order to achieve this,
OWCP has developed specific procedures for the selection of impartial medical specialists
15

Id. at Chapter 3.500.5(g).

16

Id. at Chapter 3.500.4(d).

17

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.5(i) (July 2011).

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designed to provide adequate safeguards against any possible appearance that the selected
physician’s opinion was biased or prejudiced. The procedures contemplate that impartial
medical specialists will be selected on a strict rotating basis in order to negate any appearance
that preferential treatment exists between a particular physician and OWCP.18
OWCP has an obligation to verify that it selected Dr. McCaskill in a fair and unbiased
manner. It maintains records for this very purpose.19
The Board has placed great importance on the appearance as well as the fact of
impartiality and only if the selection procedures which were designed to achieve this result are
scrupulously followed may the selected physician carry the special weight accorded to an
impartial specialist. OWCP has not met its affirmative obligation to establish that it properly
followed its selection procedures. The evidence is not adequate to establish that Dr. McCaskill
was properly selected in compliance with the rotational system using the MMA. OWCP’s
decision terminating appellant’s compensation benefits will be reversed due to an unresolved
conflict in medical opinion.
IT IS HEREBY ORDERED THAT the March 7, 2013 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 23, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

18

Raymond J. Brown, 52 ECAB 192 (2001).

19

M.A., Docket No. 07-1344 (issued February 19, 2008).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Horseheads, NY, Employer
__________________________________________

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Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0378
Issued: December 22, 2017

Case Submitted on the Record

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

JURISDICTION
On December 9, 20162 appellant, through counsel, filed a timely appeal from a June 16,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to

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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(f). One hundred and eighty days from June 16, 2016, the date of OWCP’s last decision was
December 13, 2016. Since using December 14, 2016, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the postmark is considered the date of filing. The date of the U.S.
Postal Service is December 9, 2016, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a traumatic injury in
the performance of duty on October 15, 2014.
FACTUAL HISTORY
On October 16, 2014 appellant, then a 46-year-old air traffic control specialist, filed a
traumatic injury claim (Form CA-1) alleging that at 4:50 p.m. on October 15, 2014 she broke her
left fifth metatarsal bone, injured her back and right hip, and twisted her right knee when she fell
into a hole while walking on uneven pavement. She stopped work on October 15, 2014. On the
reverse side of the claim form the employing establishment noted that appellant informed them
that she went out to retrieve some items from her car while on break and was planning on
walking to the mailbox in front of the terminal to mail some items. It noted that appellant had
fixed hours of work from 9:15 a.m. to 5:15 p.m.
In an October 15, 2014 emergency room report, Dr. Marc Immerman, an examining
physician Board-certified in emergency and family medicine, noted that appellant was seen that
day for a foot and ankle injury sustained at work. Appellant described the injury as occurring
when her foot rolled in a parking lot pothole at around 5:00 p.m. Dr. Immerman provided
physical examination findings and diagnosed a left fifth metatarsal fracture.
Progress notes dated October 16, 2014 from Dr. Jeffrey Alwine, an osteopathic physician,
noted that appellant was seen for a foot injury which had occurred on October 15, 2014. The
report noted that the injury occurred when she stepped into a parking lot hole, her foot rolled,
and she twisted her left ankle. Physical examinations findings and restrictions were provided. A
review of an x-ray interpretation revealed a left foot fracture. Diagnoses included right knee
contusion and left fifth avulsion metatarsal proximal fracture. OWCP also received an
October 17, 2014 report by James McAllister, a certified physician assistant, who noted a left
fifth metatarsal fracture.
Appellant submitted progress notes dated December 30, 2014, February 6, March 20, and
April 17, 2015, signed by Dr. Joel McClurg, a Board-certified orthopedic surgeon. Dr. McClurg
noted that she was seen for a follow-up visit for her left fifth metatarsal fracture. He observed
that the diagnosed condition was consistent with appellant’s history of injury. An x-ray
interpretation showed a left metatarsal fracture with no obvious healing since the last visit.
By letter dated May 15, 2015, OWCP informed appellant that the evidence of record was
insufficient to establish her claim. It noted that at the time her claim was received that her injury
appeared to be minor so her claim was not considered on the merits nor did her employing
establishment controvert or challenge the merits of the claim. OWCP informed appellant that, as
her claim had not been adjudicated, the employing establishment controverted her claim on the
3

5 U.S.C. § 8101 et seq.

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basis that she had not been in the performance of duty at the time of the incident as she had been
on break. It advised her of the type of evidence required and requested that she complete the
attached questionnaire. The attached development questionnaire asked a series of questions
including whether the alleged injury occurred on employing establishment premises and, if not,
whether the parking lot was controlled or maintained by the employing establishment. Appellant
was afforded 30 days to submit the requested information.
On June 2, 2015 OWCP received appellant’s undated response to the questions it had
posed. Appellant noted that there were four parking lots attached to the airport where she
worked. According to appellant none of the parking lots were owned by the employing
establishment. On the day in question she was on an assigned break when she went out to her
car to retrieve some papers and to place her purse and lunch materials into her car. Appellant
also planned on going to the mailbox to mail something. She noted that the employing
establishment allowed employees to leave their offices while on assigned breaks. The parking
lot where the incident occurred was the closest lot in front of the airport and provided hourly
parking. Appellant noted that she paid for her parking in that lot. She related that free parking
was provided at a Chemung County parking lot and the employing establishment paid rent to the
County. Appellant stated that she avoided the free parking lot because the lot was next to a
deicing pad, was a gravel lot, was the farthest lot from the airport, and she had been attacked by
birds when parking in the free parking lot. She related that the employing establishment was
aware of the problems with the free parking lot, but had not corrected the problems. They did
not require her to park in the free parking lot.
In a statement dated May 24, 2015, M.S., a coworker, provided information regarding the
location of what he called the “employee parking lot” and its problems due to its proximity to
deicing activity. He stated that he suggested to appellant that she pay to park in the hourly
parking lot which was located closer to the airport than the one where the employees parked for
free.
OWCP received progress notes dated June 3, 2015 from Dr. McClurg reiterating findings
from prior reports.
By decision dated August 19, 2015, OWCP denied appellant’s claim as it found that her
injury did not occur in the performance of duty. It noted that she was injured while on a break in
a general airport parking lot owned by the airport and open to the public. The parking lot was
not operated, owned, or controlled by the employing establishment.
In a letter dated September 10, 2015, appellant’s then counsel requested a telephonic
hearing before an OWCP hearing representative, which was held on April 19, 2016. During the
hearing, appellant testified that she had just finished with union business and was advised by the
employing establishment to take the rest of her shift as a break until signing out. She stated that
she took her materials from the union meeting along with other items to place in her car.
Appellant stated that she fell when she left her car en route to a mailbox. As a result of her fall
and inability to walk, she was unable to return to work to sign out.
By decision dated June 16, 2016, the hearing representative affirmed the denial of
appellant’s claim. He found that she had not been in the performance of duty at the time of the

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October 15, 2014 incident. The hearing representative explained that the parking lot where the
incident occurred was not owned, operated, or maintained by the employing establishment and
there was no evidence that appellant was required to park there, or that she was provided a
subsidy for parking. He further found that she was on an authorized break attending to personal
matters when she fell in the public parking lot on October 15, 2014.
LEGAL PRECEDENT
FECA provides for the payment of compensation for the disability or death of an
employee resulting from a personal injury sustained while in the performance of duty.4 The
phrase sustained while in the performance of duty has been interpreted by the Board to be the
equivalent of the commonly found requisite in workers’ compensation laws, namely, arising out
of and in the course of employment.5 In the course of employment deals with the work setting,
locale, and time of injury whereas, arising out of the employment encompasses not only the work
setting, but also the requirement that an employment factor caused the injury.6
To arise in the course of employment, in general, an injury must occur: (1) at a time
when the employee may reasonably be said to be engaged in her master’s business; (2) at a place
where she may reasonably be expected to be in connection with the employment; and (3) while
she was reasonably fulfilling the duties of her employment or engaged in doing something
incidental thereto.7 As to the phrase in the course of employment, the Board has accepted the
general rule of workers’ compensation law that, as to employees having fixed hours and places
of work, injuries occurring on the premises of the employing establishment, while the employees
are going to or from work, before or after working hours or at lunch time, are compensable.8
Regarding what constitutes the premises of an employing establishment, the Board has
held:
“The term ‘premises’ as it is generally used in workmen’s compensation law, is
not synonymous with ‘property.’ The former does not depend on ownership, nor
is it necessarily coextensive with the latter. In some cases ‘premises’ may include
all the ‘property’ owned by the employing establishment; in other cases even
though the employing establishment does not have ownership and control of the

4

Id. at § 8102(a). See also P.S., Docket No. 08-2216 (issued September 25, 2009).

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This construction makes the statue effective in those situations generally recognized as properly within the
scope of workers’ compensation law. See also L.T., Docket No. 09-1798 (issued August 5, 2010); Ricky A. Paylor,
57 ECAB 568 (2006). Bernard D. Blum, 1 ECAB 1 (1947).
6

A.K., Docket No. 09-2032 (issued August 3, 2010); C.O., Docket No. 09-0217 (issued October 21, 2009);
Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).
7

T.F., Docket No. 08-1256 (issued November 12, 2008); Roma A. Mortenson-Kindschi, id.

8

Narbik A. Karamian, 40 ECAB 617 (1989). The Board has also applied this general rule of workers’
compensation law in circumstances where the employee was on an authorized break. See Eileen R. Gibbons, 52
ECAB 209 (2001).

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place where the injury occurred the place is nevertheless considered part of the
‘premises.’”9
Mere use of a parking facility, alone, is insufficient to bring the parking lot within the
premises of the employing establishment. The premises doctrine is applied to those cases where
it is affirmatively demonstrated that the employing establishment owned, maintained, or
controlled the parking facility, used the facility with the owner’s special permission or provided
parking for its employees.10
ANALYSIS
Appellant sustained left fifth metatarsal bone fracture and injuries to her back, right hip,
and right knee when she fell into a hole while walking on uneven pavement in a parking lot in
front of the airport where she worked. OWCP denied the claim as it found that she was not in
the performance of duty at the time of the alleged injury because the parking lot where she
sustained her injuries was not part of the employing establishment premises and because she was
attending to personal matters at the time of injury.
Applying the principles as set forth above, the Board finds that appellant’s fall on
October 15, 2014 did not occur in the performance of duty.
The first question to be resolved is whether her injury occurred on the actual or
constructive premises of the employing establishment. The evidence of record, including
appellant’s own statements, substantiates that the parking lot where appellant fell was not owned
by the employing establishment, but by Chemung County. Appellant’s injury therefore did not
occur on actual premises of the employing establishment.
The term premises as it is used in workers’ compensation is not exclusively dependent
upon ownership, but can be based on constructive ownership.11 The Board has explained the
factors which determine whether a parking lot used by employees may be considered a part of
the employing establishment’s premises. These factors include whether the employing
establishment contracted for the exclusive use by its employees of the parking area, whether
parking spaces on the lot were assigned by the employing establishment to its employees,
whether the parking areas were checked to see that no unauthorized cars were parked in the lot,

9

Wilmar Lewis Prescott, 22 ECAB 318 (1971). Another exception to the premises rule is the proximity rule
which the Board has defined as when, under special circumstances, the industrial premises are constructively
extended to hazardous conditions, which are proximately located to the premises and may therefore be considered as
hazards of the employing establishment. The main consideration in applying the rule is whether the conditions
giving rise to the injury are causally connected to the employment. See William L. McKenney, 31 ECAB
861 (1980).
10

Roma A. Mortenson-Kindschi, supra note 6.

11

Jimmie Brooks, 54 ECAB 248 (2002).

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whether parking was provided without cost to the employees, whether the public was permitted
to use the lot, and whether other parking was available to the employees.12
Appellant contended that the employing establishment premises should be construed as
extending to the parking lot in this case. However, the evidence of record establishes that the
parking lot in which appellant fell was an hourly paid lot, open to the public, and that appellant
paid to park in this lot. The employing establishment did not contract this lot for the exclusive
use of its employees. Furthermore, there is no evidence of record that appellant was assigned a
parking space in the lot by the employing establishment or that the employing establishment
checked to see if unauthorized cars had parked in the lot. Statements from appellant as well as
the employing establishment and a coworker confirm that the parking lot where appellant fell
was not owned, leased, controlled, or maintained by the employing establishment. The Board
further notes that appellant explained that she avoided the employing establishment’s free
parking lot, which was open for the employing establishment’s employees. Rather, appellant
opted to pay to park in a parking lot open to the public. She indicated that employees were not
required to park in any specific parking lot by the employing establishment. Based on the facts
of this case, the Board finds that the evidence of record is insufficient to establish that the
parking garage was part of the employing establishment’s premises.
The Board also finds that the parking lot where the accident occurred does not constitute
a special hazard or an access route closely associated with the employing establishment. The
accident occurred in a paid public parking lot. The Board finds that appellant has not established
that parking lot where the accident occurred was used exclusively or principally by employees of
the employing establishment for the convenience of the employing establishment.13 There is no
evidence that the parking lot was restricted to the employees of the employing establishment.
The evidence reflects that the injury occurred in a public parking lot in front of the terminal. The
Board finds that appellant’s injury occurred while she was exposed to an ordinary, off-premises
nonemployment hazard of the journey shared by all travelers.14 The Board, therefore, finds that
the parking lot in which appellant sustained her alleged injury was not part of the employing
establishment’s actual or constructive premises.
Even if the injury occurred off premises, the Board has found an employee to be in the
performance of duty in certain circumstances such as when he or she completed a brief errand
while on a paid break, and acted with the consent of the employing establishment. These
12

But see, M.D., Docket No. 17-0086 (issued August 3, 2017) (based on the facts of the case, the Board found the
evidence sufficient to establish that the garage was part of the employing establishment’s premises. The Board
based its determination on the evidence of record which showed that the underground parking area was leased along
with the office building by the employing establishment and the employing establishment maintained the facility
through a contract with a building management firm); G.E., Docket No. 14-0843 (issued September 23, 2014) (the
Board determined that the parking garage was leased by the employing establishment for the use of its employees,
that appellant had a parking decal which the security guards checked to ensure that only authorized spaces were
used, and that the employing establishment recommended that employees park there for their safety and
convenience as there was limited on-street parking which was considered unsafe. Accordingly, the Board found that
the parking garage was part of the employing establishment premises).
13

See Idalaine L. Hollins-Williamson, 55 ECAB 655 (2004); Mary Keszler, 38 ECAB 735 (1987).

14

Shirley Borgos, 31 ECAB 222 (1979).

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circumstances included going off premises to get coffee when no coffee was available in the
building,15 taking a smoke break adjacent to the office building,16 or taking a walk when the
employing establishment encouraged the employees to take regular breaks for walking.17
The Board finds that appellant was not in the performance of duty at the time of her
injury. Appellant left the premises of the employing establishment to attend to personal needs,
without evidence of consent by the employing establishment to leave the employing
establishment premises.
In B.H.,18 the Board summarized a number of cases wherein an employee left the
employing establishment’s premises during a break period. The Board concluded that these
cases make clear that an employee’s journey away from the employing establishment premises to
seek personal comfort and ministration would be covered under FECA if it could be determined
that the employing establishment gave consent to such action. While the record supports a
finding that appellant was on an authorized break period, she has not alleged and there is no
evidence of record that the employing establishment consented to her leaving the employing
establishment premises to attend to such personal matters.
There were no employment factors involved in appellant’s absence from the employment
premises at the time her injury occurred. Although the injury occurred during her tour of duty,
the act of leaving the employing establishment premises to go to her car in the parking lot to
retrieve items was not incidental to her employment duties. Rather, it was a matter of personal
convenience.19 Counsel contended that the employing establishment maintained control over
appellant as air traffic controllers could be recalled from their break if deemed needed by the
employing establishment. However, appellant testified that she had been involved in a union
meeting, went to her car to drop off materials accumulated during that meeting, and had been
instructed to take the rest of her time as a break since it was close to the end of her shift.
Although she was given permission to take a break following the end of her union meeting, she
chose to depart from the premises to drop off materials from the union meeting and mail a
personal item at a mailbox in front of the terminal.
On appeal counsel contends that appellant was in the performance of duty as she was
encouraged by her supervisor to take a break. She further argues that the facts of this case are
similar to Lola M. Thomas.20 Contrary to counsel’s contention the facts of Thomas are not
similar to the instant case. As noted above, appellant was performing union work prior to being
told to use the time remaining on her shift as her break. While employees may be subject to
recall from breaks, her break was at the end of her shift and following a union meeting.
15

Helen Gundersen, 7 ECAB 288 (1954).

16

Supra note 5.

17

Mary M. Martin, 34 ECAB 525 (1983).

18

Docket No. 14-0829 (issued July 8, 2015).

19

James G. Pimenta, Docket No. 06-0598 (issued June 15, 2006).

20

37 ECAB 572 (1986).

7

Appellant was told to use the remaining time on her shift as her break as the union meeting she
attended had ended near the end of her shift. She was not performing any duties as an air traffic
controller when she was told to go on break. Most significantly, there is also no evidence that
employees were encouraged to leave the airport when taking breaks as was the case in Thomas.
For these reasons and as discussed above, appellant was not in the performance of duty at the
time of her injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on October 15, 2014.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 16, 2016 is affirmed.
Issued: December 22, 2017
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BAY PINES VETERANS MEDICAL CENTER,
Bay Pines, FL, Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-560
Issued: August 14, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 16, 2012 appellant, through his representative, filed a timely appeal from a
July 22, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employee’s Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3(e), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to wage-loss compensation for the period
December 18, 2009 to July 1, 2010.
FACTUAL HISTORY
On September 2, 2009 appellant, then a 58-year-old floor finishing worker, filed an
occupational disease claim attributing his back pain to lifting, pulling and kneeling requirements
1

5 U.S.C. §§ 8101-8193.

in his job. OWCP accepted that he aggravated/exacerbated his lumbar degenerative disc
condition and developed lumbar radiculopathy. Appellant stopped work on September 3, 2009
and did not return.
In a September 25, 2009 report, Dr. Constantine Bouchlas, a Board-certified physiatrist,
advised that appellant presented with low back pain that had worsened over the previous two
years. Appellant noted previous treatment at the employing establishment, a prior history of
back problems and surgery for a left knee meniscal tear. Dr. Bouchlas related that appellant had
recently stopped work, listing September 1, 2009 as the date of injury, although there was “no
particular injury” and no physician had taken him off of work. He stated that an August 28, 2009
magnetic resonance imaging scan report found that appellant had arthritic changes in his low
back that had been present for many years. Dr. Bouchlas advised that appellant continue with
treatment at the employing establishment.
On July 1, 2010 appellant filed a Form CA-7 claim for wage-loss compensation for the
period December 18, 2009 to July 1, 2010. In a July 12, 2010 letter, OWCP requested that
appellant submit additional medical evidence to establish his disability for work during the
period claimed.
With a July 29, 2010 cover letter, appellant’s attorney submitted a May 4, 2010 report
from Dr. Samuel Joseph, Jr., a Board-certified orthopedic surgeon, and a July 13, 2010
functional capacity evaluation. Dr. Joseph stated that he treated appellant since December 2009
for exacerbation of lumbar degenerative disease at L3-4 with bilateral lumbar radiculopathy. He
opined that the conditions were causally related to appellant’s daily job duties of loading and
unloading multiple boxes weighing up to 70 pounds, pulling up flooring and working on hands
and knees. Dr. Joseph advised that appellant’s condition was permanent and that surgery and
epidural injections had been recommended. He opined that appellant should have sedentary
restrictions with the ability to change positions as needed. Dr. Joseph stated that appellant could
not lift 50- to 70-pound boxes and that precise lifting restrictions would require a functional
capacity evaluation. On July 13, 2010 appellant underwent a functional capacity evaluation,
which found that he was capable of working in a light classification level but not capable of
working as a floor covering specialist, which was at the heavy classification level.
By decision dated August 24, 2010, OWCP denied the claim for wage-loss benefits from
December 18, 2009 through July 10, 2010.
On August 27, 2010 appellant requested a telephonic hearing before an OWCP hearing
representative, which was held on May 9, 2011. Appellant’s attorney argued that Dr. Joseph’s
May 4, 2010 report established that appellant was unable to perform his job duties and that the
functional capacity evaluation demonstrated that he was unable to perform the floor finishing
duties of his position. He stated that appellant did not want to undergo surgery and continued to
be treated. Appellant described his job duties. He last worked on September 3, 2009 and used
leave until he filed his claim for wage loss beginning December 18, 2009. Appellant opined that
he was unable to return to his job due to the strenuous nature of his position and his back pain.
He indicated that the employing establishment had not offered any vocational rehabilitation
services.

2

Following the hearing, OWCP received a May 23, 2011 response from the employing
establishment, progress notes from the Bay Pines VA Health Care System pertaining to
appellant’s back treatment and copies of diagnostic tests. Heather Nichol of the employing
establishment advised that, after appellant filed his claim, he stopped reporting to work.
Appellant did not submit any medical documentation to the employer which would allow it to
provide him a limited-duty job offer.
In a May 27, 2011 report, Dr. Gregory J. Smith, a Board-certified internist, advised that
he has been appellant’s physician for the past several years. He stated that appellant had been
unable to perform his duties as a floor installation specialist since a September 2009 injury.
Appellant had advanced degenerative arthritis in both the cervical and lumbar areas, as well as
arthritic knee pain. Dr. Smith opined that appellant should no longer be doing floor covering
work or any other work that required heavy lifting, frequent bending, stooping or kneeling.
By decision dated July 22, 2011, an OWCP hearing representative affirmed the
August 24, 2010 decision.
LEGAL PRECEDENT
For each period of disability claimed, an employee has the burden of establishing that he
was disabled for work as a result of the accepted employment injury.2 Whether a particular
injury causes an employee to become disabled for work and the duration of that disability, are
medical issues that must be proved by a preponderance of probative and reliable medical opinion
evidence.3 The Board will not require OWCP to pay compensation for disability in the absence
of medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.4
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.5 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.6 An employee who has a physical impairment causally related to his federal
employment, but who nonetheless has the capacity to earn the wages she was receiving at the
time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.7 When, however, the medical evidence establishes that the residuals or sequelae of an

2

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also David H. Goss, 32 ECAB 24 (1980).

3

See Edward H. Horton, 41 ECAB 301 (1989).

4

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

5

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
6

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

7

Merle J. Marceau, 53 ECAB 197 (2001).

3

employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his employment, he is entitled to compensation for any loss of wages.
ANALYSIS
OWCP accepted appellant’s claim for aggravation of lumbar degenerative disc disease
and lumbar radiculopathy. Appellant stopped work on September 3, 2009 and filed a claim for
wage-loss compensation from December 18, 2009 to July 1, 2010. It is his burden of proof to
establish the claimed period of employment-related disability. On July 12, 2010 OWCP advised
appellant of the evidence needed to establish his claim. The Board finds that he did not submit
sufficient medical evidence to establish that his disability beginning December 18, 2009 was
causally related to his accepted conditions. Appellant did not submit a narrative medical report
from a treating physician to explain how his disability was related to the accepted employmentrelated conditions.
Dr. Joseph opined that appellant’s exacerbation of lumbar degenerative disease at L3-4
with bilateral lumbar radiculopathy was causally related to his daily job duties of loading and
unloading multiple boxes weighing up to 70 pounds, pulling up flooring and working on hands
and knees. He stated that appellant’s condition was permanent and recommended surgery and
epidural injections. Dr. Joseph stated that appellant could not lift 50- to 70-pound boxes and
opined that he should have sedentary restrictions with the ability to change position as needed.
A July 13, 2010 functional capacity evaluation confirmed that appellant was capable of working
in a light classification level but not capable of working in his current position as a floor
covering specialist as it was at the heavy classification level. While Dr. Joseph was of the
general opinion appellant could not perform his current position because of his work-related
conditions, he did not address the specific dates of disability claimed, December 18, 2009 to
July 1, 2010, or provide sufficient medical rationale in light of his conclusion to explain why
appellant was disabled or partially disabled as a result of the accepted conditions.8 Without
reasoned medical evidence supporting that appellant had employment-related disability during
the period in question, he has not met his burden of proof to establish his claim for wage-loss
compensation beginning December 18, 2009.9
Dr. Smith opined that appellant was unable to perform the heavy lifting, frequent
bending, stooping and kneeling requirements of his position. But he failed to provide a narrative
opinion addressing the relationship of appellant’s inability to work on the dates in question to the
accepted conditions. Thus, Dr. Smith’s report is insufficient to establish appellant’s claim.
The medical report most contemporaneous with appellant’s work stoppage, Dr. Bouchlas’
September 25, 2009 report, noted that appellant stopped work without a physician’s input.
Dr. Bouchlas did not state whether appellant was totally disabled or if he had any particular work
8

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
9

There also is no evidence that appellant sought work within his restrictions after he stopped work. See 20
C.F.R. § 10.515(a) (if an employee cannot return to the job held at the time of injury from the effects of the workrelated injury, he or she must seek work).

4

restrictions. The other medical evidence of record, including diagnostic studies and progress
reports, are insufficient to establish appellant’s wage-loss claim as no medical opinion is offered
on disability due to the work injury or accepted conditions during the periods of wage loss
claimed.
Appellant argues on appeal that since his physicians restricted his physical capacity in
December 2009, the only logical inference was that he was totally disabled from his job duties in
December 2009. As noted, the medical evidence does not sufficiently address the causal
relationship of appellant’s alleged disability during the claimed period to his accepted workrelated injuries. Therefore, appellant failed to meet his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he was disabled for the period
December 18, 2009 to July 1, 2010 due to his accepted work-related injuries.
ORDER
IT IS HEREBY ORDERED THAT the July 22, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 14, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant (Executrix of the Estate of W.L.,
widower of the employee, E.L.)
and
DEPARTMENT OF THE ARMY, WALSON
ARMY HOSPITAL, Fort Dix, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1941
Issued: July 8, 2011

Case Submitted on the Record

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

JURISDICTION
On July 21, 2010 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs (OWCP) dated April 8, 2010 and a May 11, 2010 decision
that denied her request for a hearing. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that the
employee sustained a recurrence of total disability on April 8, 1992; and (2) whether OWCP
properly denied appellant’s hearing request.

1

5 U.S.C. §§ 8101-8193.

On appeal, appellant’s attorney asserts that the medical evidence establishes that the
employee was totally disabled beginning April 8, 1992 and that OWCP erred in denying
appellant’s request for an oral hearing.
FACTUAL HISTORY
On December 27, 1965 the employee, then an 18-year-old clerk typist, injured her left
knee when she fell at work. The claim was accepted for dislocation of the left knee and she
underwent a left medial meniscectomy on March 17, 1966. The employee returned to her
regular duties without restrictions and in 1984, while playing recreational softball at a local
township, she stepped in a hole and reinjured her left knee. She resigned from federal
employment on March 23, 1990. The employee underwent a second left knee arthroscopic
procedure on April 8, 1992.
On November 4, 2000 the employee filed a recurrence claim, stating that she sustained a
recurrence of disability on April 8, 1992 and noted that her left knee condition had deteriorated
and was now painful. She described the 1984 softball injury and stated that she fell on her left
knee in 1993. In an attached statement, the employee stated that she left federal employment on
March 1990 to further her education and that the 1984 injury was not work related but the fall
aggravated her knee because she had no knee cartilage due to the 1965 employment injury. She
stated that she returned to full duties after the 1965 employment injury and did not work after she
resigned from federal service in 1990. The employee maintained that her condition gradually
worsened such that activities became limited and her knee became more painful. She asserted
that her present degenerative knee arthritis was related to the December 27, 1965 employment
injury.
The employee submitted a November 7, 1989 report, in which Dr. Gregory S. Maslow, a
Board-certified orthopedist, advised that she had increased pain and degenerative change in her
left knee as a consequence of a previous meniscectomy and a number of previous injuries.
Dr. Maslow provided physical examination findings and changed her medication. In a
November 27, 1989 report, Dr. Craig R. Rosen, Dr. Maslow’s associate who is a Board-certified
orthopedist, noted that the employee had some relief from new medication and advised that she
would need surgery if her condition worsened. In a July 25, 2000 report, Dr. Rosen noted that he
had reviewed records regarding the 1965 injury and that she was first seen in his office on
November 7, 1989. He stated that on April 8, 1992 the employee underwent left knee
arthroscopy with chondroplasty of the medial joint and lateral femoral condyle and patella
shaving and thereafter had physical therapy. Dr. Rosen noted that she improved but had
persistent pain and that she would require total knee replacement (TKR) in the future. He
advised that she was next seen in January 1999 at which time there was diminished left knee
range of motion with x-ray evidence of degenerative arthritis. Dr. Rosen opined that the
degenerative arthritis and 1992 surgery were causally related to the 1965 knee injury. He
advised that, when the employee was seen on May 15, 2000, her condition was basically
unchanged and advised that she would need TKR in the very near future.
A telephone conference was held on November 22, 2000 between the employee and
OWCP’s claims examiner. The employee again described the 1965 and 1984 injuries. In a

2

January 4, 2001 report, Dr. Rosen advised that the employee was having increasing problems
with her left knee and was not ready to undergo surgery.
On January 16, 2001 OWCP accepted that the employee sustained a left knee meniscus
tear on December 27, 1965 and referred her to Dr. Howard Zeidman, a Board-certified
orthopedic surgeon. In a February 12, 2001 report, Dr. Zeidman noted his review of the medical
record, the statement of accepted facts and the history of injury. He provided physical
examination findings including limitation of left knee motion and muscle atrophy in the left leg.
Dr. Zeidman noted x-ray findings and clinical signs of progressive degenerative arthritis of the
knee which he opined was gradual and progressive damage due to the 1965 employment injury.
He concluded that the employee continued to need medical treatment for her knee and would
need a TKR at some point. In an attached work capacity evaluation, Dr. Zeidman advised that
she could work eight hours a day with walking restricted to two hours daily and standing to three
hours and no pushing, pulling, squatting, kneeling or climbing.
In a March 5, 2001 report, Dr. Rosen advised that the employee had continuing left knee
complaints due to osteoarthritis and on March 19, 2001 noted that she was having problems with
her left shoulder.2 On May 7, 2001 he again described her left knee condition.
By letter dated July 23, 2001, OWCP informed the employee that the April 8, 1992
recurrence was accepted and she was advised to file a claim for compensation.3 On August 2,
2001 the employee filed a claim for compensation for the period April 8, 1992 to August 2, 2001
and submitted an August 23, 2001 report in which Dr. Rosen noted the history of injury and
described his treatment since 1989. Dr. Rosen stated that the employment injury led to the
employee’s progressive knee degeneration and that she would need TKR in the future. By report
dated December 13, 2001, he reiterated his recommendations and conclusions and advised that
the employee needed a TKR for the degenerative disease in her left knee, causally related to the
December 27, 1965 employment injury.
On January 25, 2002 Dr. Rosen performed left TKR. The employee died on February 3,
2002, while still hospitalized following the surgery.4 The death certificate listed the immediate
cause of death as pseudomembranous colitis. The employee’s widower was appointed
administrator of her estate and on February 20, 2002 filed a survivor’s claim.5
On March 25, 2002 OWCP provided Dr. Zeidman with Dr. Rosen’s reports dated
subsequent to his examination and advised him of the employee’s surgery and death. It asked
Dr. Zeidman to provide an opinion as to when she “was no longer totally disabled.” In an
2

There is no indication that a left shoulder condition has been accepted as employment related.

3

A copy of the July 23, 2001 letter is not found in the case record. It is, however, referenced in a July 26, 2001
letter to the employee’s congressional representative.
4

The employee had been transferred to a rehabilitation unit following surgery and developed intractable nausea
and vomiting. She was admitted to the intensive care unit where she was treated until she died. The autopsy report
listed the final cause of death as pseudomembranous colitis with megacolon, acute peritonitis and septic shock.
5

He filed a second survivor’s claim on September 29, 2004.

3

April 5, 2002 response, Dr. Zeidman stated that, from his review of Dr. Rosen’s reports, the
employee had a progressive increase in symptomatology following his examination on
February 12, 2001 and that since Dr. Rosen noted that she was having continuous problems and
since she died in the hospital following TKR surgery, she had never reached a state in which she
was no longer totally disabled.
The widower died on June 24, 2005. His niece, appellant in this case, was appointed
executrix of his estate. By letter dated December 10, 2009, OWCP informed her that the
widower was entitled to survivor benefits for the period February 3, 2002 to June 24, 2005 and
that, while recurrence of a medical condition was accepted as of April 13, 1992, the record
contained insufficient medical evidence to show that the employee was disabled from work
beginning in 1992. Appellant was afforded 30 days to submit additional medical information.6
By decision dated April 8, 2010, OWCP denied the employee’s recurrence claim for
monetary compensation for the period April 8, 1992 to January 25, 2002 on the grounds that the
medical evidence did not support that the employee was totally disabled from work. On
April 19, 2010 appellant, through her attorney, requested a hearing. By decision dated May 11,
2010, OWCP denied the hearing request. It noted that the right to a hearing applied to injuries
occurring on or after July 4, 1966 and, in the instant case, the employee’s injury occurred on
December 27, 1965. Appellant was thus not entitled to a hearing as a matter of right. OWCP
exercised its discretion and found that the merit issue could be addressed with a reconsideration
request.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.”7 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial, reliable
and probative evidence that the disability for which she claims compensation is causally related to
the accepted injury. This burden of proof requires that an employee furnish medical evidence from
a physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disabling condition is causally related to the employment injury and supports that
conclusion with sound medical reasoning.8 Where no such rationale is present, medical evidence
is of diminished probative value.9
Under FECA, the term “disability” means the incapacity, because of an employment
injury, to earn the wages that the employee was receiving at the time of injury. Disability is thus
not synonymous with physical impairment, which may or may not result in an incapacity to earn
6

The widower’s estate was paid survivor benefits on December 14, 2009.

7

20 C.F.R. § 10.5(x); R.S., 58 ECAB 362 (2007).

8

I.J., 59 ECAB 408 (2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

9

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

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wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the
time of injury, has no disability as that term is used in FECA.10 Furthermore, whether a
particular injury causes an employee to be disabled for employment and the duration of that
disability are medical issues which must be proved by a preponderance of the reliable, probative
and substantial medical evidence.11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established that the employee sustained a
recurrence of total disability on April 8, 1992 caused by the accepted December 27, 1965
employment injury such that she would be entitled to monetary compensation. 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 Medical opinion evidence must be 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.13
The accepted conditions in this case are left knee dislocation and left knee meniscus tear.
The employee resigned from the employing establishment on March 23, 1990 and on
November 4, 2000, filed a recurrence claim. On August 2, 2001 she filed a claim for
compensation beginning on April 8, 1992. The employee died on February 3, 2002, following
TKR surgery. Her widower pursued the recurrence claim until his death on June 24, 2005.
Appellant, the widower’s niece and executrix of his estate, is now pursuing the recurrence claim.
The record includes a number of reports from Dr. Rosen, the employee’s attending
orthopedist, who treated her from 1989 and performed the TKR shortly before her death. While
Dr. Rosen described increasing complaints of left knee pain through the years and diagnosed
degenerative arthritis of the knee, at no time did he advise that the employee was totally disabled
or discuss her ability to work. Whether a particular injury causes an employee to be disabled for
employment and the duration of that disability are medical issues which must be proved by a
preponderance of the reliable, probative and substantial medical evidence14 and medical evidence
that does not offer any opinion regarding the cause of an employee’s condition is of limited

10

20 C.F.R. § 10.5(f); Cheryl Decavitch, 50 ECAB 397 (1999).

11

Fereidoon Kharabi, 52 ECAB 291 (2001).

12

Sandra D. Pruitt, 57 ECAB 126 (2005).

13

Roy L. Humphrey, 57 ECAB 238 (2005).

14

Tammy L. Medley, 55 ECAB 182 (2003).

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probative value on the issue of causal relationship.15 Dr. Rosen’s reports are therefore
insufficient to establish that the employee was totally disabled.
Likewise, the reports of Dr. Zeidman, OWCP’s referral orthopedist, are insufficient to
establish total disability. In the work capacity evaluation accompanying his February 12, 2001
report, he advised that appellant could work eight hours a day. While Dr. Zeidman provided
restrictions to walking, standing, pushing, pulling, squatting, kneeling and climbing, these are not
requirements of her sedentary clerical position.16 He, however, advised on April 5, 2002 that the
employee would have been totally disabled from the date of the TKR surgery on January 25,
2002 until she died on February 3, 2002. The employee would therefore be entitled to total
disability compensation for this brief period.
LEGAL PRECEDENT -- ISSUE 2
OWCP, in its broad discretionary authority in the administration of FECA, has the power
to hold hearings in certain circumstances where no legal provision was made for such hearings
and must exercise this discretionary authority in deciding whether to grant a hearing. It has the
discretion to grant or deny a hearing request on a claim involving an injury sustained prior to the
enactment of the 1966 amendments to FECA, which provided the right to a hearing, when the
request is made after the 30-day period established for requesting a hearing or when the request
is for a second hearing on the same issue.17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for a hearing. As the
Board held in Rudolph Bermann,18 FECA conferred no right to hearing before OWCP until the
enactment of the amendment in 1966. As the amendment was not retroactive, there is no right to
a hearing for pre-1966 injuries, although OWCP can grant a hearing in such a case in the
exercise of its discretion. Here, the employment injury occurred on December 27, 1965, before
the enactment of the 1966 amendments. In its May 11, 2010 decision, OWCP properly found
that appellant was not entitled to a hearing as a matter of right. It exercised its discretion and
concluded that the merit issue could be addressed with a reconsideration request. The evidence
of record does not indicate that OWCP committed any act in connection with its denial of
appellant’s request for a hearing which could be found to be an abuse of discretion. OWCP
therefore properly denied her request.19

15

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

16

Dr. Zeidman also did not explain how the work-related knee injury restricted her from pushing and pulling.

17

D.M., Docket No. 08-1814 (issued January 16, 2009).

18

26 ECAB 354 (1975).

19

See Bernice R. Krippendorf, 33 ECAB 587 (1982).

6

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 her burden of proof to establish that the
employee sustained a recurrence on April 8, 1992 but did establish that the employee would be
entitled to wage-loss compensation for the brief period from the date of her surgery on
January 25, 2002 until she died on February 3, 2002. The Board also finds that OWCP properly
refused to reopen appellant’s case for further consideration of the merits of the claim pursuant to
5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 11, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed and the April 8, 2010 decision is affirmed as
modified.
Issued: July 8, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
U.S. POSTAL SERVICE, McVITTLE ANNEX,
Richmond, CA, Employer
__________________________________________

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Appearances:
Hank Royale, for the appellant
Office of Solicitor, for the Director

Docket No. 07-393
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 November 30, 2006 appellant, through his representative, filed a timely appeal from a
November 29, 2005 merit decision of the Office of Workers’ Compensation Programs granting
him a schedule award.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the schedule award decision.
ISSUE
The issue is whether appellant has more than a 12 percent permanent impairment to each
upper extremity.
FACTUAL HISTORY
On July 31, 2002 appellant, then a 60-year-old letter carrier, filed an occupational disease
claim alleging that he sustained a left arm and shoulder condition due to factors of his federal
employment. The Office accepted his claim for adhesive capsulitis of the right and left shoulder,
1

Appellant’s appeal letter was postmarked November 24, 2006.

left shoulder tenosynovitis and neck strain. Appellant stopped work on July 30, 2003. On
November 6, 2003 Dr. William C. Lyon, a Board-certified orthopedic surgeon, performed a
debridement of the undersurface of the left rotator cuff and acromioplasty of the
acromioclavicular joint.
On April 1, 2004 the Office referred appellant to Dr. Thomas Schmitz, a Board-certified
orthopedic surgeon, for a second opinion evaluation. The Office requested that Dr. Schmitz
address appellant’s work limitations and the extent of any permanent impairment of the upper
extremities in accordance with the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001) (A.M.A., Guides).
Appellant filed a claim for a schedule award on April 29, 2004. On April 30, 2004 he
retired from the employing establishment.
In a report dated May 7, 2004, Dr. Schmitz opined that appellant reached maximum
medical improvement on May 1, 2004.2 He described his shoulder pain as uncomfortable and
not limited to a particular part of the shoulder or nerve distribution. Dr. Schmitz measured range
of motion of the right shoulder as 130 degrees forward elevation, 40 degrees backward elevation,
90 degrees abduction, 30 degrees adduction, 60 degrees internal rotation, 65 degrees external
rotation and 40 degrees extension.3 He measured range of motion of the left shoulder as 130
degrees forward elevation, 40 degrees backward elevation, 90 degrees abduction, 30 degrees
adduction, 60 degrees internal rotation, 75 degrees external rotation and 40 degrees extension.
Dr. Schmitz found that appellant had no weakness or atrophy. He stated, “I do not think that
pain is a contributory factor to [appellant’s] impairment.”
In a report dated July 28, 2004, Dr. Lyon discussed the range of motion findings by
Dr. Schmitz. He stated that appellant’s function “by my estimate is better than that described by
Dr. Schmitz and is reasonably symmetrical on both sides.” Dr. Lyon listed work restrictions.
On August 6, 2004 an Office medical adviser reviewed Dr. Schmitz’ report and found
that appellant had a 12 percent permanent impairment of the left upper extremity. By decision
dated August 31, 2004, the Office terminated appellant’s compensation on the grounds that he
refused an offer of suitable work. On July 25, 2005 an Office hearing representative reversed the
August 31, 2004 decision. He noted that the case was in posture for a schedule award
determination.
An Office medical adviser reviewed the medical evidence on September 23, 2005.
Applying the A.M.A., Guides to Dr. Schmitz range of motion measurements for the right and left
shoulder, he determined that appellant had 3 percent impairment due to loss of flexion,4 a 1

2

Dr. Schmitz also addressed appellant’s work restrictions.

3

Dr. Schmitz’ measurement of 40 degrees extension appears to duplicate his measurement of 40 degrees
backward elevation.
4

A.M.A., Guides at 476, Figure 16-40.

2

percent impairment due to loss of extension,5 a 4 percent impairment due to loss of abduction,6 a
1 percent impairment for loss of adduction7 and a 1 percent impairment for loss of internal
rotation,8 which he added to find a total range of motion impairment of 11 percent. The Office
medical adviser further found that appellant had 25 percent graded impairment due to pain of the
axillary nerve or deltoid muscle which he multiplied to find a 1 percent impairment for the right
and left upper extremity.9 He combined the 1 percent impairment due to pain and the 11 percent
impairment due to loss of range of motion to find a total impairment of each upper extremity of
12 percent. The Office medical adviser determined that appellant reached maximum medical
improvement on May 6, 2004. He noted that she had a cervical disc herniation and degenerative
disc disease, but found that he had no “neurologic deficit in either upper extremity as a result of
this.”
By decision dated November 29, 2005, the Office granted appellant a schedule award for
a 12 percent permanent impairment of the right upper extremity and a 12 percent permanent
impairment of the left upper extremity. The period of the award ran for 74.88 weeks from
September 1, 2004 to February 7, 2006.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act10 and its
implementing federal regulation,11 sets forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.12 Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in
2001, for all decisions made after February 1, 2001.13
ANALYSIS
The Office accepted that appellant sustained bilateral adhesive capsulitis of the shoulders,
left shoulder tenosynovitis and neck strain due to factors of his federal employment. Appellant
5

Id.

6

Id. at 477, Figure 16-43.

7

Id.

8

Id. at 479, Figure 16-46.

9

Id. at 492, 482, Tables 16-15, 16-10.

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

12

20 C.F.R. § 10.404(a).

13

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

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filed a claim for a schedule award on April 29, 2004. The Office referred appellant to
Dr. Schmitz for a second opinion examination to determine the extent of his employment-related
disability and permanent impairment of the upper extremities.
On May 7, 2004 Dr. Schmitz measured appellant’s bilateral shoulder range of motion as
130 degrees forward flexion, 40 degrees backward elevation, 90 degrees abduction, 30 degrees
adduction and 60 degrees internal rotation. He further found that appellant had 65 degrees
external rotation on the right side and 75 degrees external rotation on the left side. Dr. Schmitz
found no weakness or atrophy. He noted that appellant experienced some pain, but opined that it
did not contribute to his impairment.
On September 23, 2005 the Office medical adviser reviewed Dr. Schmitz’ report and
applied the A.M.A., Guides to his findings. He determined that, for the right and left shoulder,
130 degrees forward flexion constituted a 3 percent impairment,14 40 degrees backward elevation
or extension, constituted a 1 percent impairment,15 90 degrees abduction constituted a 4 percent
impairment,16 30 degrees adduction constituted a 1 percent impairment17 and 60 degrees internal
rotation constituted a 2 percent impairment.18 The Board notes that 65 degrees external rotation
of the right shoulder and 75 degrees external rotation of the left shoulder do not yield an
impairment.19 The Office medical adviser properly added the impairments due to loss of range
of motion to find an 11 percent permanent impairment.20 He further determined that appellant
had an impairment due to pain of the axillary nerve. The Office medical adviser multiplied the
maximum provided for sensory deficit of the axillary nerve, 5 percent, by 25 percent for graded
pain, to find an additional 1 percent impairment of each upper extremity.21 He combined the 11
percent impairment due to loss of range of motion with the 1 percent impairment due to pain and
concluded that appellant had a 12 percent total impairment of each upper extremity.22 Appellant
has not submitted probative medical evidence showing that he has more than a 12 percent
permanent impairment of each upper extremity.

14

A.M.A., Guides at Figure 16-40.

15

Id.

16

Id. at 477, Figure 16-43.

17

Id.

18

Id. at 479, Figure 16-46. The Board notes that the Office medical adviser indicated that appellant had a one
percent impairment due to loss of internal rotation. This appears to be a typographical error as he properly added the
impairment determinations to find a 12 percent impairment due to loss of range of motion.
19

Id.

20

Id. at 452.

21

Id. at 492, 482, Tables 16-15, 16-10.

22

Id. at 604.

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CONCLUSION
The Board finds that appellant has no more than a 12 percent permanent impairment of
each upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 29, 2005 is 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

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