United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
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and
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DEPARTMENT OF VETERANS AFFAIRS,
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VETERANS HEALTH ADMINISTRATION,
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Loma Linda, CA, Employer
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___________________________________________ )
E.M., Appellant

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

Docket No. 17-1683
Issued: January 4, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 31, 2017 appellant, through counsel, filed a timely appeal from a May 15, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

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.

Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3
ISSUE
The issue on appeal is whether appellant has met his burden of proof to establish a
recurrence of disability on June 26, 2016 causally related to his August 6, 2012 employment
injury.
FACTUAL HISTORY
OWCP accepted that on August 6, 2012 appellant, then a 56-year-old maintenance
mechanic supervisor, was attempting to reposition a caulking gun on a high overhead shelf and it
got caught on a 32-pound case which fell on his left shoulder while in the performance of duty. It
accepted his traumatic injury claim (Form CA-1) for a closed fracture of the distal clavicle.
Appellant stopped work following the injury, but returned to modified work on March 25, 2013.4
OWCP paid wage-loss compensation on the supplemental rolls commencing September 21, 2012.
In a letter dated June 15, 2016, counsel requested that the acceptance of appellant’s claim
be expanded to include the condition of moderately displaced, ununited fracture of the distal
clavicle of the left shoulder. He submitted supporting medical documentation from Dr. Reed
Liang, an internist. In a May 12, 2016 report, Dr. Liang noted appellant’s history of an
employment-related injury on August 6, 2012. He noted that, despite treatment, appellant
continued to suffer from constant pain and achiness in his left shoulder area. Additionally,
Dr. Liang indicated that appellant had decreased range of motion and had undergone occupational
therapy including the use of a bone stimulator to assist the healing process. He noted that a left
shoulder x-ray of May 11, 2016 revealed a moderately displaced ununited fracture involving the
distal clavicle with no change since November 25, 2014, and no maximum medical improvement.
Dr. Liang explained that over time, appellant’s function and pain improved, but not enough for
him to return to his date-of-injury position as a mason. He indicated that appellant was placed on
permanent light duty with no heavy lifting of his left shoulder due to limited range of motion and
because the fracture had not healed “well.” Dr. Liang indicated that appellant was requesting
disability retirement, which he fully supported.
In a letter dated June 20, 2016, counsel again requested that the acceptance of appellant’s
claim be expanded to include post-traumatic stress disorder (PTSD), panic disorder, and insomnia,
2

5 U.S.C. § 8101 et seq.

3

The Board notes that following the May 15, 2017 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.
4

The record reflects that appellant was offered limited duty in the administrative office on March 25, 2013 for eight
hours per day. Appellant’s duties included filing, answering telephones, taking messages, faxing, photocopying, work
order distribution, sorting mail, data entry, typing routine memos, and other routine office functions.

2

and submitted additional evidence in support of his request. He argued that an attached report by
Dr. Dawn M. White, a psychiatrist, supported expansion of the claim
In a June 6, 2016 report, Dr. White noted that he had treated appellant since November 10,
2014 for PTSD, panic disorder, and insomnia. She noted that he was originally hired as a mason,
but a work-related injury resulted in his being unable to continue in this capacity. Dr. White
advised that alternate, less physically taxing work positions were tried, but resulted in a worsening
of appellant’s mental health condition. She explained that he had a progressive worsening of his
symptoms due to job-related stressors, which caused further activation of his PTSD. Dr. White
noted that dealing with angry, upset, at times hostile veterans caused activation of appellant’s own
anxiety and resulted in increased insomnia, panic, and reactivation or traumatic memories. She
explained that “his sense of anxiety and impending doom made staying centralized in a closed
office uncomfortable and at times panic producing.” Furthermore, Dr. White noted that appellant
would find his anxiety increasing to the point of needing to leave the environment, which could be
perceived as work avoidance rather than a mental health-related issue. She opined that this resulted
in interpersonal issues with coworkers and supervisors and further exacerbated his condition.
Dr. White added that, despite removing appellant from duties requiring customer interaction, his
anxiety continued to be heightened and his panic attacks continued. She noted that
accommodations failed to stop his deterioration. Dr. White added that as a result appellant was
requesting disability retirement, which she fully supported.
In a June 7, 2016 handwritten report, Dr. White noted that appellant was unable to
participate in a customer service-related job as dealing with occasional angry or upset customers
resulted in activation of his PTSD and further worsening. Additionally, she noted that it caused a
significant increase in anxiety, irritability, panic, decreased sleep, and avoidance. Dr. White
explained that requiring appellant to continuously work in an activating environment would cause
continued activation of his PTSD and further related psychological and physical damage from
stress. A note from the employing establishment indicated that appellant’s PTSD, was chronic
and began while in service as a marine and fluctuated in severity from moderate to severe.
On June 23, 2016 appellant filed a claim for compensation (Form CA-7) requesting total
disability compensation benefits for the period June 26, 2014 through July 8, 2016. The
employing establishment confirmed that he had returned to work on March 25, 2013 with
restrictions and that there was no medical support for the claimed period of disability. Appellant
filed additional claims for disability compensation benefits. In his August 29, 2016 claim for
disability for the period August 20 to September 2, 2016, the employing establishment noted that
he had recently filed for disability retirement.
In a development letter dated June 28, 2016, OWCP advised appellant of the additional
factual and medical information needed to establish his claim for a recurrence. It explained that
following the original injury, he returned to work on March 25, 2013 and continued working until
June 26, 2016,5 when he stopped work completely. OWCP explained that the evidence included
a report from Dr. Liang that indicated that appellant could continue with light duty and a report
from Dr. White that indicated that appellant had PTSD and that dealing with Veterans’ complaints
5

Although OWCP indicated June 26, 2014, it was later clarified that the proper date was June 26, 2016.

3

activated his symptoms. It noted that this evidence was insufficient to establish his claim for a
recurrence because it had not received evidence that demonstrated he could not work in the limitedduty position offered by the employing establishment. OWCP suggested that, if additional work
exposures caused his preexisting PTSD to worsen, then the exposure would be the basis for an
occupational disease claim. It advised appellant of the additional factual and medical evidence
needed to support his claim for a recurrence, to include providing responses to a questionnaire,
and requested that he submit such evidence within 30 days.
On August 5, 2016 OWCP received appellant’s responses to its questionnaire. Appellant
indicated that he had returned to work for one hour per day, but his arm was still broken. He
advised that office work caused his pain to increase and that he never healed, only worsened.
Appellant denied any other injuries and advised that his PTSD had increased. Regarding bridging
the timeline and all periods of disability from his work injury, appellant responded “none,” and
that no doctors were available until May 11, 2016.
By decision dated August 31, 2016, OWCP denied appellant’s claim for a recurrence of
disability as the evidence of record was insufficient to establish a return or increase of disability
due to his accepted condition of closed fracture of the left clavicle. It noted that he had failed to
establish that he had a return or increase of disability due to a consequential injury or condition
stemming from the accepted condition.
In a letter dated September 7, 2016, counsel requested a telephonic hearing, which was
held on April 12, 2017. During the hearing, appellant testified that he had no doctor for two and
a half years and his arm was hurting. When asked if it was his arm or the panic attacks that were
keeping him off work, appellant responded, “both.” He confirmed that he stopped work in
June 2016. Appellant also denied that his limited-duty position was withdrawn and explained that
it was suggested that he put in for medical retirement. Counsel also indicated that OWCP issued
its decision prematurely before adequately developing the claim to include his PTSD and
insomnia, which were consequential conditions.
In an August 29, 2016 report, Dr. White explained that appellant had preexisting PTSD
related to military service. She noted that he was working as a mason when he sustained an onthe-job injury. Dr. White advised that afterwards appellant was placed in a desk job in finance.
She explained the conditions of the new job included dealing with customers and hostile
interactions, which caused his PTSD symptoms to increase. Dr. White diagnosed PTSD and panic
disorder. She opined that the “facts of injury are more likely than not the cause of the diagnosis”
that she cited. Dr. White indicated that, while there might be other causes, one of the causes was,
more likely than not, the activities of work described by appellant.
In a September 21, 2016 report, Dr. James D. Matiko, an orthopedic surgeon, noted the
history of appellant’s accepted employment injury. He noted that appellant was released as
permanent and stationary in March 2013 with permanent restrictions. Dr. Matiko noted that, while
appellant related that he continued to have pain, he did not see a physician until May 2016 through
his private insurance. He noted that at that time, appellant saw Dr. Liang, who advised him that
the fracture had not healed. Dr. Matiko diagnosed status post fracture distal left clavicle on
August 2012, probable nonunion fracture distal left clavicle, and left shoulder rotator cuff

4

tendinopathy. Regarding appellant’s work status, he noted that appellant had not worked since
June 20, 2016 and was applying for medical retirement.
Dr. Matiko continued to treat appellant on November 22, 23, and 29, 2016, for his left
clavicle and rotator cuff. In the November 22, 2016 report, he noted that a magnetic resonance
imaging (MRI) scan of the left shoulder, obtained on November 6, 2016, revealed supraspinatus
tendinosis and distal clavicle nonunion. Dr. Matiko explained that appellant had type III acromial
morphology and that in all probability it would continue to be symptomatic so he wished to proceed
with a diagnostic left shoulder arthroscopy with rotator cuff debridement versus repair and
subacromial decompression. He advised that he was nontender over the acromioclavicular joint
and over the aforementioned ununited distal clavicle fracture and advised that no surgical
intervention would be undertaken with respect to his clavicle. He advised that regarding work
status appellant was “permanent and stationary.”
OWCP received a November 6, 2016 MRI scan read by Dr. Shobi Zaidi, a diagnostic
radiologist, which revealed a chronic nonunited, comminuted fracture of the distal clavicle at the
level of the coracoclavicular ligaments, no acute ligament injury, no evidence of acromioclavicular
joint injury, tendinosis of the distal supraspinatus tendon, small nondisplaced tear of the anterior
superior labrum, and undersurface bony remodeling of the distal acromion, and degenerative
changes at the acromioclavicular joint, increasing the risk for subacromial impingement.
By decision dated January 17, 2017, OWCP expanded the acceptance of appellant’s claim
to include the additional conditions of superior glenoid labrum lesion of left shoulder and sprain
of unspecified parts of left shoulder girdle.
Dr. Matiko provided a March 24, 2017 operative report, in which he performed a left
glenohumeral arthroscopy and subacromial bursoscopy, arthroscopic debridement of partial
articular supraspinatus tendon tear, and left endoscopic subacromial decompression.
By decision dated May 15, 2017, OWCP’s hearing representative affirmed the August 31,
2016 decision. He noted that the claim was initially accepted for the condition of a closed fracture
of the left distal clavicle, but had been expanded to include additional left shoulder conditions on
January 17, 2017. The hearing representative explained that, if appellant’s worsening PTSD and
panic attacks were caused by factors of his employment, then it would be considered to be a new
work-related injury, as a recurrence did not include a work stoppage caused by a condition, which
resulted from a new injury, even if it involved the same part of the body, previously injured, or by
renewed exposure to the causative agent of a previously suffered occupational disease. He noted
that, if a new exposure or injury had occurred, a Form CA-1 or CA-2 should be completed
accordingly. The hearing representative found that appellant had not met his burden to submit
medical evidence which established that his accepted medical conditions materially worsened,
without intervening factors, such that he was unable to work beginning June 26, 2016. He also
noted that OWCP should consider making a formal determination in response to appellant’s
request with regard to additional accepted conditions.

5

LEGAL PRECEDENT
Section 10.5(x) of OWCP’s regulations provides that 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. The term also means an
inability to work that takes place when a light-duty assignment made specifically to accommodate
an employee’s physical limitations due to his or her work-related injury or illness is withdrawn
(except when such withdrawal occurs for reasons of misconduct, nonperformance of job duties or
a reduction-in-force), or when the physical requirements of such an assignment are altered so that
they exceed his or her established physical limitations.6
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative, and substantive evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the light-duty job requirements.7
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship, generally, is rationalized medical evidence.8 This consists of a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors.9 The physician’s opinion
must be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.10
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of employment
nor his belief that his condition was aggravated by his employment is sufficient to establish causal
relationship.11

6

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

7

Richard E. Konnen, 47 ECAB 388 (1996); Terry R. Hedman, 38 ECAB 222, 227 (1986).

8

Elizabeth Stanislav, 49 ECAB 540, 541 (1998).

9

Duane B. Harris, 49 ECAB 170, 173 (1997).

10

Gary L. Fowler, 45 ECAB 365, 371 (1994).

11

Walter D. Morehead, 31 ECAB 188 (1986).

6

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability on June 26, 2016 causally related to his August 6, 2012 employment injury.
Appellant has not alleged a change in the nature and extent of his light-duty job
requirements. Therefore, he must thus provide medical evidence establishing that he was disabled
due to a worsening of his accepted work-related conditions.12 The Board finds that appellant did
not submit medical evidence to support that he was disabled due to a worsening of his accepted
work-related conditions on or after June 26, 2016.
The Board has held that the issue of disability from work can only be resolved by competent
medical evidence.13 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.14 The record does not contain a
medical opinion of sufficient rationale to establish that appellant was disabled from work
commencing June 26, 2016 causally related to his August 6, 2012 employment injury.
In a May 12, 2016 report, Dr. Liang noted that, despite treatment, appellant continued to
suffer from constant pain and achiness in his left shoulder area. He indicated that appellant was
placed on permanent light duty with no heavy lifting of his left shoulder due to limited range of
motion and because the fracture had not healed “well.” Dr. Liang indicated that appellant was
requesting disability retirement, which he fully supported. However, he did not explain how
appellant was disabled on or after June 26, 2016 due to a worsening of his accepted work-related
conditions.15 Without such an explanation, this report of Dr. Liang is insufficient to establish a
recurrence of disability, as alleged.
In support of his claim for a recurrence of disability appellant submitted reports from
Dr. White. In a June 6, 2016 report, Dr. White noted that she had treated appellant since
November 10, 2014 for PTSD, panic disorder, and insomnia. However, no work-related mental
health conditions have been accepted in the current claim. In her reports of June 7 and August 15
and 29, 2016, Dr. White fails to provide a medical opinion as to how appellant’s accepted
conditions had resulted in a recurrence of disability. While her reports may be supportive of mental
health-related conditions, they lack probative value as to the issue of a recurrence of disability due
to the accepted left shoulder conditions.16

12

Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

13

R.C., 59 ECAB 546 (2008).

14

M.C., Docket No. 18-0919 (issued October 18, 2018); see also Sandra D. Pruitt, 57 ECAB 126 (2005).

15

E.B., Docket No. 17-1467 (issued July 26, 2018); see S.E., Docket No. 08-2214 (issued May 6, 2009); T.M.,
Docket No. 08-0975 (issued February 6, 2009).
16

Id.

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In a September 21, 2016 report, Dr. Matiko diagnosed status post fracture distal left
clavicle on August 2012, probable nonunion fracture distal left clavicle, and left shoulder rotator
cuff tendinopathy. Regarding appellant’s work status, he noted that appellant had not worked
since June 20, 2016 and was applying for medical retirement. Dr. Matiko continued to treat
appellant on November 22, 23, and 29, 2016, for his left clavicle and rotator cuff. In the
November 22, 2016 report, he reviewed diagnostic reports and findings and explained that
appellant wished to proceed with a diagnostic left shoulder arthroscopy with rotator cuff
debridement versus repair and subacromial decompression at the very least. Dr. Matiko advised
that appellant was nontender over the acromioclavicular joint and over the aforementioned
ununited distal clavicle fracture and advised that no surgical intervention would be undertaken
with respect to his clavicle. He advised that regarding work status appellant was “permanent and
stationary.” While he did note that appellant was unable to work after June 26, 2016, as a result
of his August 6, 2012 employment injury, Dr. Matiko’s opinion is conclusory in nature as he did
not support his opinion with medical rationale. Consequently, the Board finds that these reports
of Dr. Matiko are insufficient to establish appellant’s claim for a recurrence of disability.17
OWCP also received a November 6, 2016 MRI scan read by Dr. Zaidi and a March 24,
2017 operative report from Dr. Matiko, who performed a left glenohumeral arthroscopy and
subacromial bursoscopy, arthroscopic debridement of partial articular supraspinatous tendon tear,
and left endoscopic subacromial decompression. However, these reports, are insufficient to
establish appellant’s claim for a recurrence of disability, as they do not specifically address how
any condition on or after June 26, 2016 is causally related to the original employment injury.18
Consequently, appellant has not established that there was a change in the nature or extent
of the injury-related condition or a change in the nature and extent of the light-duty requirements
which would prohibit him from performing the light-duty position he assumed after he returned to
work.
On appeal counsel asserts that the claim was not adequately developed before the
recurrence was denied. He argues that OWCP must expand the acceptance of appellant’s claim.
However, the sole issue on appeal is whether appellant has met his burden of proof to establish a
recurrence of disability as alleged.
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 his burden of proof to establish a recurrence of
disability on June 26, 2016 causally related to his August 6, 2012 employment injury.

17

See J.J., Docket No. 15-1329 (issued December 18, 2015).

18
The Board has held that diagnostic studies lack probative value as they do not address whether the employment
incident caused any of the diagnosed conditions. See J.S., Docket No. 17-1039 (issued October 6, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the May 15, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 4, 2019
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, PLAINVIEW POST
OFFICE, Plainview, NY, Employer
__________________________________________

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

Docket No. 20-0638
Issued: November 17, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 29, 2020 appellant filed a timely appeal from an August 30, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish disability from work
for the period beginning June 25, 2019, causally related to his accepted May 10, 2019 employment
injury.

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the August 30, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On May 10, 2019 appellant, then a 55-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on that date, he sustained a right foot injury while in the performance
of duty when he stepped down onto a driveway while delivering his mail route. He stopped work
on May 11, 2019. Appellant received continuation of pay from May 11 to June 24, 2019.
In a May 16, 2019 report, Dr. Richard A. Ritter, a Board-certified orthopedist, treated
appellant for a right foot injury that occurred on May 10, 2019, when he was stepping off a ledge
onto a driveway and his foot shifted and he felt a crack sensation. He diagnosed right mid-foot
sprain and contusion. Dr. Ritter prescribed a Darco shoe and returned him to work modifiedsedentary duty. In a return to work slip of even date, he noted that appellant was able to return to
work in a light-duty position performing desk work. Dr. Ritter completed a May 28, 2019 duty
status report (Form CA-17) and diagnosed right foot sprain and returned appellant to work full
time with restrictions.3
On June 6, 2019 Dr. Ritter treated appellant in follow-up for improving right foot
symptoms. He noted an essentially normal physical examination with some tenderness over the
metatarsal shaft. Dr. Ritter indicated that although appellant was unable to work in his date-ofinjury capacity as a letter carrier, he would be capable of sedentary work. He completed a Form
CA-17 on June 20, 2019, and diagnosed right foot sprain due to injury. Dr. Ritter noted that
appellant was totally disabled from work.
A June 18, 2019 magnetic resonance imaging (MRI) scan of the right foot revealed partial
thickness tearing of the second metatarsophalangeal (MTP) plantar plate with edema and effusion
and hallux valgus with severe arthrosis at the medial metatarsosesamoid joint.
In a report dated June 25, 2019, Dr. Ritter treated appellant in follow-up for persistent pain
directly over the plantar aspect of the first and second MTP joints. He reviewed the June 18, 2019
MRI scan of the right foot and diagnosed partial thickness right foot second MTP plantar plate
tear. Dr. Ritter opined that appellant was unable to return to work due to his current injury and the
nature of his work. He completed a July 1, 2019 Form CA-17, and noted clinical findings of right
foot sprain. Dr. Ritter again noted that appellant was unable to return to work. In an attending
physician’s report (Form CA-20) dated July 2, 2019, he recounted a history of the right foot injury
on May 10, 2019. Dr. Ritter diagnosed right foot second MTP plantar plate tear and checked a
box marked “Yes,” indicating that the diagnosed conditions were caused or aggravated by the
described employment incident. He noted that appellant was totally disabled from May 10, 2019
to the present.
On July 22, 2019 appellant filed a claim for wage-loss compensation (Form CA-7) due to
work-related disability for the periods June 25 through July 5, 2019 and July 6 through 19, 2019.
OWCP accepted appellant’s claim for right foot sprain.

3
The restrictions were lifting/carrying limited to 15 pounds continuously and intermittently, sitting up to eight
hours a day, simple grasping, fine manipulation, and reaching above the shoulder up to eight hours a day, standing for
one hour a day, walking up to two hours a day, no climbing, kneeling or driving a vehicle, bending/stopping, twisting,
pulling/pushing limited to four hours a day.

2

On July 23, 2019 Dr. Ritter noted that appellant was unable to work until his next
evaluation. In a July 25, 2019 Form CA-17, he again diagnosed sprain of the right foot and
indicated that appellant was disabled from work.
In a development letter dated July 30, 2019, OWCP requested that appellant submit a wellreasoned medical report from his attending physician detailing whether objective findings related
to the accepted May 10, 2019 employment injury restricted him from performing full-duty work.
It afforded him 30 days to submit the requested evidence.
Appellant was treated in follow-up on July 23, 2019 by Steven Esposito, a physician
assistant, who diagnosed partial-thickness right foot second MTP plantar plate tear. Mr. Esposito
noted that appellant remained out of work as there was no light duty available.
On August 3 and 22, 2019 appellant filed Form CA-7 claims due to work-related disability
for the period July 20 through August 2, 2019, and August 3 to 16, 2019.
In letters of medical necessity dated August 26 and 28, 2019, Dr. Ritter recounted treating
appellant for a right foot injury that occurred on May 10, 2019, when he stepped off a ledge and
twisted his foot. An MRI scan revealed a partial thickness tear of the plantar plate. Dr. Ritter
opined that this injury was directly caused by the mechanism of the May 10, 2019 work injury.
He noted that this kind of injury was typically caused by hyperextension of the MTP joint which
was “likely” what had occurred when appellant stepped. Dr. Ritter opined that due to the location
of the partial-thickness tear along the plantar aspect of his foot appellant has been unable to return
to work as a mail carrier as he was required to be ambulatory and stand for the majority of his
workday. He advised that he found it medically necessary for appellant to remain out of work
from May 10, 2019, until his pain improved. Dr. Ritter indicated that appellant would be capable
of modified sedentary duty if available.
By decision dated August 30, 2019, OWCP denied appellant’s claim, finding that he had
not established disability from work for the period beginning June 25, 2019, causally related to the
accepted May 10, 2019 right foot sprain. It found that, with respect to the claimed period of
disability, “the medical evidence of file does not establish that you were disabled as a result of
your accepted work-related medical condition(s).”
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.4
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.5 Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn

4

S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009).

5

20 C.F.R. § 10.5(f).

3

wages.6 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.7 When, however, the medical evidence
establishes that the residuals or sequelae of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for loss of wages.8
The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. 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 claimed disability and the specific employment factors
identified by the claimant.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish disability from
work for the period beginning June 25, 2019, causally related to his accepted May 10, 2019
employment injury.
In support of his claim appellant submitted a May 16, 2019 report from Dr. Ritter who
diagnosed right mid-foot sprain and contusion and returned him to work modified-sedentary duty.
In a return to work slip of even date, Dr. Ritter noted that appellant was able to return to work with
restrictions, light-duty/desk work. Similarly, in a Form CA-17 dated May 28, 2019, he diagnosed
right foot sprain and returned appellant to work full time with restrictions. As he twice opined that
appellant could return to work in May 2019, Dr. Ritter’s opinion negates causal relationship for
the claimed period.10 Therefore, the Board finds that these reports are insufficient to establish
appellant’s claim for compensation.11
On June 6, 2019 appellant presented with improving right foot symptoms. Dr. Ritter noted
that appellant had been unable to work in his usual capacity as a letter carrier, but he could perform
sedentary work. He later noted that appellant was unable to return to work. In Form CA-17s dated
June 20 to July 25, 2019, Dr. Ritter diagnosed right foot sprain due to injury and noted that
appellant was totally disabled from work. Similarly, on July 23, 2019, he noted that appellant was
unable to work until his next evaluation. However, Dr. Ritter did not address whether appellant’s
disability was causally related to the accepted employment condition of right foot sprain or
otherwise provide medical reasoning explaining why his current condition or disability was due to

6

See L.W., Docket No. 17-1685 (issued October 9, 2018).

7

See K.H., Docket No. 19-1635 (issued March 5, 2020).

8

See D.R., Docket No. 18-0323 (issued October 2, 2018).

9

Y.S., Docket No. 19-1572 (issued March 12, 2020).

10

T.W., Docket No. 19-0677 (issued August 16, 2019).

11

L.S., Docket No. 18-0264 (issued January 28, 2020); Id.

4

the accepted May 10, 2019 employment injury.12 Thus these reports are of no probative value and
are insufficient to establish appellant’s claim for compensation.13
On June 25, 2019 Dr. Ritter reviewed the MRI scan and diagnosed partial thickness right
foot second MTP plantar plate tear. He opined that appellant was unable to return to work due to
his current injury and the nature of his work. However, partial thickness right foot second MTP
plantar plate tear is not an accepted condition. If an employee claims that a condition not accepted
or approved by OWCP was due to an employment injury, he or she bears the burden of proof to
establish that the condition is causally related to the employment injury.14 As Dr. Ritter did not
provide an opinion as to whether these conditions were causally related to the accepted
employment injury, these reports are insufficient to establish appellant’s claim.
In a July 2, 2019 attending physician’s report (Form CA-20), Dr. Ritter diagnosed right
foot second MTP plantar plate tear and checked a box marked “Yes” indicating that the diagnosed
conditions were caused or aggravated by the described employment incident. He noted that
appellant was totally disabled from May 10, 2019, to the present and noted no light-duty work was
available. However, the Board has held that checking a box marked “Yes” in a form report,
without additional explanation or rationale, is not sufficient to establish causal relationship.15 This
report is, therefore, insufficient to establish that the claimed disability is causally related to the
accepted employment injury.
In letters of medical necessity dated August 26 and 28, 2019, Dr. Ritter diagnosed partial
thickness tear of the plantar plate and opined that these conditions were directly caused by the
mechanism of the work injury. He noted that this kind of injury was typically caused by
hyperextension of the MTP joint, which was “likely what had occurred when [appellant] stepped.”
Dr. Ritter indicated that, due to the location of the partial-thickness tear along the plantar aspect of
his foot, he found it medically necessary for appellant to remain out of work from May 10, 2019.
The Board has held that medical opinions that suggest that a condition was “likely” caused by
work activities are speculative or equivocal in character and have limited probative value.16 As
such, these medical notes by Dr. Ritter are insufficient to establish appellant’s claim.
In support of his claim, appellant also provided a July 23, 2019 report from a physician
assistant. Physician assistants, however, are not considered physicians as defined under FECA.17
Consequently, their medical findings and opinions are insufficient to establish entitlement to
12

J.M., Docket No. 18-0847 (issued December 5, 2019).

13

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

14

S.H., Docket No. 19-1128 (issued December 2 2019).

15

M.D., Docket No. 18-0195 (issued September 13, 2018).

16

J.W., Docket No. 18-0678 (issued March 3, 2020).

17

Section 8101(2) of FECA provides that medical opinion, in general, can only be given by a qualified physician.
This section defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by state law. 5 U.S.C. § 8101(2); 20 C.F.R.
§ 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013); H.K., Docket No. 19-0429 (issued September 18, 2019); K.W., 59 ECAB 271, 279 (2007); David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006).

5

compensation benefits. Appellant also submitted results from diagnostic testing. The Board has
held, however, that diagnostic studies are of limited probative value as they do not address whether
the employment incident caused any of the diagnosed conditions.18 These reports are therefore
insufficient to establish the claim.
As appellant has not submitted rationalized medical opinion evidence establishing
disability from work beginning on June 25, 2019 due to the accepted May 10, 2019 employment
injury, he has not met his burden of proof. Therefore, he is not entitled to wage-loss compensation
for the period claimed.
On appeal appellant asserts that he submitted sufficient medical evidence in support of his
claim for compensation beginning June 25, 2019. As noted above, the medical evidence failed to
address whether appellant’s disability was causally related to the accepted employment condition
of right foot sprain or otherwise provide medical reasoning explaining why his current condition
or disability was due to the accepted May 10, 2019 employment injury.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish disability from
work for the period beginning June 25, 2019, causally related to his accepted May 10, 2019
employment injury.

18

See J.S., Docket No. 17-1039 (issued October 6, 2017).

6

ORDER
IT IS HEREBY ORDERED THAT the August 30, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 17, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Albany, NY, Employer
__________________________________________

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

Docket No. 21-1372
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On September 13, 2021 appellant filed a timely appeal from a May 28, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUE
The issue is whether appellant has established right plantar fasciitis causally related to the
accepted factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 28, 2021 OWCP decision, appellant submitted additional evidence to
the Board. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the
evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will
not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded
from reviewing this additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On April 19, 2021 appellant, then a 52-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed plantar fasciitis due to factors of his federal
employment, including wearing ice grippers on his feet to deliver mail during two to three weeks
of icy conditions. He reported worsening pain and soreness in the sole of his right foot, near his
heel, which persisted even after he stopped wearing the ice grippers. Appellant reported that he
first became aware of his condition and its relation to his federal employment on
February 18, 2021. He explained that he delayed filing his claim because he hoped the pain would
go away after he stopped wearing the ice grippers. On the reverse side of the claim form,
appellant’s supervisor indicated that appellant first reported his condition on March 31, 2021 and
was last exposed to the conditions alleged to have caused his condition on April 1, 2021.
In support of his claim, appellant submitted a duty status report (Form CA-17) dated
March 30, 2021, bearing an illegible signature. The provider diagnosed plantar fasciitis and
recommended work restrictions limiting appellant’s standing, walking, climbing, kneeling,
bending, stooping, twisting, pulling, and pushing.
In a development letter dated April 27, 2021, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence needed and provided a
questionnaire for his completion. In a separate development letter of even date, OWCP requested
that the employing establishment provide comments from a knowledgeable supervisor regarding
the accuracy of appellant’s allegations. It afforded both parties 30 days to respond.
Appellant subsequently submitted an April 26, 2021 medical report from Dr. Steven Fish,
a Board-certified orthopedic surgeon, relating appellant’s history of injury and treatment. Dr. Fish
noted that appellant had been having difficulties with his right heel since February 18, 2021 as a
result of walking on ice with ice scrapers on his shoes. His examination revealed-moderate
bilateral pes planus, fullness along the medial aspect of the right plantar heel, tenderness along the
plantar aspect of the heel at the insertion of the plantar fascia, and occasional pain radiating distally
along the plantar fascia. Dr. Fish reviewed previous x-rays, which revealed-moderate mid-foot
arthritis and some degree of pes planus. He diagnosed plantar fascial fibromatosis and bilateral
pes planus and opined that the right plantar fasciitis was work related, stating that appellant “does
have some preexisting plantar fasciitis, which might predispose him to this, but this started while
[appellant] was at work.” Dr. Fish prescribed custom orthotics, recommended physical therapy,
and advised that appellant should be off work for one week to rest before returning with
restrictions. In a disability certificate of even date, he advised that appellant was 100 percent
disabled from work from April 27 through May 4, 2021, after which he could return to work with
restrictions. In a Form CA-17 of even date, Dr. Fish related appellant’s history of injury and
diagnosed plantar fasciitis. He advised that appellant could return to work on May 4, 2021 with
restrictions.
On May 12, 2021 appellant responded to OWCP’s development questionnaire, relating that
he had worked as a full-time mail carrier for 15 years, walking 8 to 10 miles each day, and that he
believed that walking on icy sidewalks using ice grippers caused his claimed condition. He
explained that it was icy for two to three weeks and he wore his ice grippers while delivering mail
during most of that time. Appellant began to feel pain while working on or around

2

February 18, 2021. The pain was constant, but fluctuated in severity, worsening with walking and
improving with daily foot soaks and ice. Appellant clarified that he did not stop working on
April 1, 2021. He indicated that he did not have any exposure that could have caused the condition
outside of his federal employment and had no other conditions affecting his foot.
In a May 14, 2021 letter, an employing establishment human resource management (HRM)
specialist, noted that appellant did not stop working on March 30, 2021, but rather was working
with restrictions. The HRM specialist reported that appellant was out of work from April 27
through May 4, 2021 and returned to work on May 5, 2021 with restrictions.
Appellant submitted an additional statement, dated May 23, 2021, providing further
information about his employment duties, including walking 5 to 7 hours each day delivering mail
and parcels, totaling over 20,000 miles during his roughly 15 years of federal employment. He
explained that the employing establishment authorized and issued “ice grippers,” adaptive wear
worn over boots with screws on the bottom to provide traction and minimize slips and falls on icy
sidewalks. Appellant described how, during the two to three weeks of icy conditions, each time
he stepped out of his truck on the right side, his right foot/heel was the first thing that touched the
ground in order to secure good traction with the ice grippers while dismounting. He opined that
“[a]s the screws hit the ice and get traction, some reverse energy or force, I’m sure will go to your
feet and body.” Appellant’s pain began in the bottom of his right foot while wearing the ice
grippers and gradually worsened over time as he walked. On March 30, 2021 the pain was so
severe that he could not finish work and he sought treatment at an urgent care facility. The pain
did not improve when appellant stopped wearing the ice grippers. In the last five years, he had not
participated in any strenuous activities outside of his work, only household chores.
By decision dated May 28, 2021, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish that his medical condition was
causally related to the accepted factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 5

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

To establish that an injury was sustained in the perf ormance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence o f the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors. 6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 7 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s). 9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish right plantar
fasciitis causally related to the accepted factors of his federal employment.
In his April 26, 2021 report, Dr. Fish noted that appellant began to experience plantar heel
pain as a result of walking on ice with ice scrapers on h is shoes. He diagnosed plantar fascial
fibromatosis and opined that the right plantar fasciitis was work related, stating that appellant “does
have some preexisting plantar fasciitis, which might predispose [appellant] to this, but this started
while [appellant] was at work.” While Dr. Fish provided an affirmative opinion suggestive of
causal relationship, he did not offer medical rationale sufficient to explain how appellant’s
employment duties resulted in or contributed to his diagnosed condition. Without explaining how

6

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

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

8

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

9

Id.; Victor J. Woodhams, supra note 6.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
G.T., Docket No. 21-0170 (issued September 29, 2021); D.W., Docket No. 20-0674 (issued September 29, 2020);
V.W., Docket No. 19-1537 (issued May 13, 2020); N.C., Docket No. 19-1191 (issued December 19, 2019); R.D.,
Docket No. 18-1551 (issued March 1, 2019).

4

appellant’s employment duties caused or aggravated his condition, Dr. Fish’s report is of limited
probative value and is insufficient to meet appellant’s burden of proof. 11
In a Form CA-17 dated April 26, 2021, Dr. Fish diagnosed plantar fasciitis and described
appellant’s work restrictions. Similarly, in a disability certificate of even date , he described
appellant’s disability status. However, neither the Form CA-17, nor the disability certificate
offered an opinion on causal relationship. The Board has held that medical evidence that does not
offer an opinion regarding the cause of an employee’s condition is of no probative value on the
issue of causal relationship. 12 For these reasons, Dr. Fish’s remaining evidence is insufficient to
meet appellant’s burden of proof.
Appellant submitted a Form CA-17, dated March 30, 2021, bearing an illegible signature.
The Board has held that reports that are unsigned or bear an illegible signature cannot be
considered probative medical evidence as the author cannot be identified as a physician. 13
Therefore, this report is also of no probative value and is insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence establishing that his right
plantar fasciitis is causally related to the accepted factors of his federal employment, the Board
finds that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request fo r 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 his burden of proof to establish right plantar
fasciitis causally related to the accepted factors of his federal employment.

11

See A.P., Docket No. 19-0224 (issued July 11, 2019).

12

S.J., Docket No. 19-0696 (issued August 23, 2019); M.C., Docket No. 18-0951 (issued January 7, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
13

C.S., Docket No. 20-1354 (issued January 29, 2021); D.T., Docket No. 20-0685 (issued October 8, 2020);
Merton J. Sills, 39 ECAB 572, 575 (1988).

5

ORDER
IT IS HEREBY ORDERED THAT the May 28, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 15, 2022
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, Texarkana, TX, Employer
__________________________________________

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

Docket No. 16-0282
Issued: March 29, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 1, 2015 appellant filed a timely appeal of an October 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 to consider the merits of the case.
ISSUE
The issue is whether appellant has more than 17 percent monaural loss of hearing in the
left ear for which he received a schedule award and no ratable impairment in his right ear.
On appeal appellant argues that he is entitled to a schedule award for loss of hearing in
his right ear and that he requires hearing aids for both ears.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 18, 2014 appellant, then a 59-year-old toolmaking inspector, filed an
occupational disease claim (Form CA-2) alleging that he developed a loss of hearing in his left
ear due to noises at work including machines, hand grinders, and chipping guns. He indicated
that he first became aware of his condition on June 5, 2014 and first attributed the condition to
his employment on that date.
In support of his claim, appellant submitted audiologic records from the employing
establishment’s hearing loss conservation program. The employing establishment controverted
appellant’s claim and asserted that the building where appellant worked was well within the
guidelines for noise exposure.
By letter dated July 23, 2014, OWCP requested that appellant provide additional medical
evidence in support of his claim. Appellant informed OWCP that he had worked at the
employing establishment for 30 years in the machine shop. He noted that the employing
establishment provided earplugs and that he worked 10 hours a day, four days a week. Appellant
listed the source of noise as loud machines, impact wrenches, air hoses, chipping guns, and loud
fans. He disputed the employing establishment’s allegations regarding his limited noise
exposure and asserted that he had requested a safety check, but did not yet have the results.
OWCP referred appellant for a second opinion evaluation with Dr. Charles
Hollingsworth, II, a Board-certified otolaryngologist, on January 27, 2015. In his February 19,
2015 report, Dr. Hollingsworth described appellant’s noise exposure. He reviewed appellant’s
audiogram dated February 10, 2015 and found bilateral severe high frequency hearing loss worse
on the left. Dr. Hollingsworth opined that appellant’s loss of hearing was employment related
and recommended hearing aids.
Dr. Hollingsworth applied the American Medical Association, Guides to the Evaluation
of Permanent Impairment2 formula and determined that appellant had no ratable loss of hearing
on the right, but 16.9 percent left monaural impairment. He found that appellant had 2.8 percent
binaural hearing loss. Appellant’s February 19, 2015 audiogram demonstrated testing at 500,
1,000, 2,000, and 3,000 hertz (Hz) and on the right exhibited decibel (dB) loss of 20, 20, 20, and
20 respectively. This averaged dB loss of 20. Dr. Hollingsworth subtracted the fence of 25 dBs
resulting in -5, which he multiplied by 1.5 to result in no monaural hearing loss on the right. On
the left at the aforementioned levels, appellant’s audiogram demonstrated losses of 25, 35, 35,
and 50 dBs respectively. Applying the same procedures to the audiologic results for appellant’s
left ear resulted in an average of 36.2 and reducing by the fence of 25 and multiplying this by
1.5, Dr. Hollingsworth found 16.9 percent. He then calculated appellant’s binaural loss of
hearing as 2.8 percent.
In a decision dated April 15, 2015, OWCP accepted appellant’s claim for bilateral loss of
hearing due to noise exposure. An OWCP medical adviser reviewed Dr. Hollingsworth’s report
and concluded that the binaural hearing loss was three percent under the A.M.A., Guides. He
further found that noise exposure on the job was deemed sufficient to implicate it as a
2

A.M.A., Guides, 6th ed. (2009).

2

contributing factor to appellant’s
Dr. Hollingsworth’s recommendation.

hearing

loss

and

authorized

hearing

aids

per

Appellant filed a claim for compensation (Form CA-7) requesting a schedule award on
June 2, 2015. In a telephone memorandum dated August 17, 2015, an OWCP claims examiner
noted informing appellant that hearing aids were authorized. OWCP compared the amount of
compensation for 3 percent binaural loss of hearing, which was 42 days, while 17 percent
monaural loss of hearing yielded 61.88 days of compensation. It determined that appellant
should get the monaural rating because it would provide a greater amount of compensation than
the binaural amount.
Appellant requested binaural hearing aids on October 7, 2015.
By decision dated October 2, 2015, OWCP granted appellant a schedule award for 17
percent loss of hearing in his left ear.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of use of scheduled members or functions of the body. FECA, however, does not specify
the manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a matter which rests in the discretion of OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so
that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 dB is deducted because, as the
A.M.A., Guides points out, losses below 25 dB result in no impairment in the ability to hear
everyday speech under everyday conditions.6 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five and then added to the greater loss and the total is divided by six to arrive at the amount of
the binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010).
6

See A.M.A., Guides 250.

3

evaluating hearing loss.7 The Board has also noted OWCP’s policy to round the calculated
percentage of impairment to the nearest whole number.8
ANALYSIS
The Board finds that OWCP properly considered the medical evidence submitted in
support of appellant’s claim and properly applied the A.M.A., Guides. A medical report was
submitted from Dr. Hollingsworth which conforms to applicable criteria. The losses at the
frequencies of 500, 1,000, 2,000, and 3,000 Hz were added and averaged and the fence of 25 dBs
was deducted.9 The remaining amount was multiplied by 1.5 to arrive at the percentage of
monaural hearing loss. Applying this formula to the hearing loss on the right did not result in a
ratable loss of hearing. Dr. Hollingsworth applied the formula to the loss of hearing on the left
and reached 16.9 percent impairment.
For a binaural hearing loss, the loss in each ear is calculated using the above formula.
The lesser loss is then multiplied by five and added to the greater loss. This amount is then
divided by six to arrive at the total binaural hearing loss. For levels recorded in the right ear of
20, 20, 20, and 20, the above formula derives 0 percent monaural loss and for levels recorded in
the left ear of 25, 35, 35, and 50, the above formula derives 16.9 percent monaural loss in the left
ear. According to the accepted formula these combine to reach 2.8 percent binaural loss of
hearing, which is rounded up to 3, the nearest whole.
The schedule provisions of FECA specify the number of weeks of compensation to be
paid for each permanent impairment listed in the schedule.10 FECA provides that a claimant is
entitled to 52 weeks of compensation for a 100 percent loss of hearing in one ear and 200 weeks
of compensation for 100 percent hearing loss in both ears. OWCP used 17 percent left ear
monaural hearing loss impairment rating (rounded up from 16.9 percent). Multiplying 17
percent by the 52 weeks provided for monaural hearing loss results in 8.84 total weeks of
compensation. With respect to the three percent binaural hearing loss impairment found by
Dr. Hollingsworth, OWCP determined that multiplying three percent by the 200 weeks provided
for binaural hearing loss would result in a total of six weeks of compensation. The Board notes
that if the allowance for monaural hearing loss would be greater than that for binaural hearing
loss, the claimant should receive the benefit of the more favorable allowance. Thus, OWCP
properly determined that appellant would receive greater compensation for his monaural left ear

7

R.B., Docket No. 15-1482 (issued December 7, 2015); E.S., 59 ECAB 249 (2007); Reynaldo R. Lichetenberger,
52 ECAB 462 (2001).
8

R.B., supra note 7; J.H., Docket No. 08-2432 (issued June 15, 2009), Robert E. Cullison, 55 ECAB 570 (2004).
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)(b)
(January 2010).
9

The A.M.A., Guides points out that the loss below an average of 25 dBs is deducted as it does not result in
impairment in the ability to hear every day sounds under everyday listening conditions.
10

5 U.S.C. § 8107; 20 C.F.R. § 10.304(b).

4

hearing loss rather than for his binaural hearing loss and granted him a schedule award based on
this amount.11
In response to appellant’s allegations on appeal, the Board notes that the record
establishes that OWCP is processing appellant’s request for binaural hearing aids. There is no
final adverse decision on this issue. The record does not establish that appellant has more than
17 percent monaural loss of hearing for which he received a schedule award, that he has a ratable
impairment of the right ear,12 or that he would receive additional schedule award compensation
for his binaural loss of hearing.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than 17 percent impairment due to loss of
hearing in his left ear. The Board further finds that appellant has no ratable impairment in his
right ear due to loss of hearing and that he would not receive an additional schedule award based
on binaural loss of hearing.

11

M.M., Docket No. 15-1719 (issued November 2, 2015); T.H., Docket No. 07-965 (issued August 6, 2007). As
explained, OWCP determined that appellant’s schedule award based on 17 percent monaural impairment of the left
ear which resulted in 8.84 weeks of compensation would provide more compensation than a 3 percent binaural
award, which would provide six weeks of compensation. See Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700, Exhibit 2, Percentage Table of Schedule Awards, Form CA-699 (January 2010).
12

This does not mean that appellant has no hearing loss. It means that the extent or degree of loss is not sufficient
to show a practical impairment in hearing according to the A.M.A., Guides. See J.C., Docket No. 15-1294 (issued
August 20, 2015).

5

ORDER
IT IS HEREBY ORDERED THAT the October 2, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 29, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Detroit, MI, Employer
__________________________________________

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)
)
)
)
)
)
)
)

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

Docket No. 10-2075
Issued: June 22, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 3, 2010 appellant, through his attorney, filed a timely appeal from a June 24,
2010 merit decision of the Office of Workers’ Compensation Programs hearing representative
denying his traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act1 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 his burden of proof to establish that his right knee
condition is causally related to the July 1, 2009 employment incident.
FACTUAL HISTORY
On July 16, 2009 appellant, then a 38-year-old motor vehicle operator, filed a traumatic
injury claim alleging that on July 1, 2009 he sustained an injury to his right knee as a result of
1

5 U.S.C. § 8101 et seq.

walking up the stairs at work. He stopped work on July 1, 2009. In a supplemental signed
personal statement, appellant reported that on July 1, 2009 at approximately 5:45 a.m. he walked
up eight flights of stairs at work because the power was out in his building. He explained that
around the fourth floor he twisted his knee, but continued to climb the stairs even though he
experienced significant pain.
Appellant was initially examined at the occupational health department at his work. In a
July 1, 2009 medical note, a nurse practitioner and Dr. Ramesh Padiyar, an internist, reported
that appellant was walking up the stairs because the power was out when he felt pain in his right
knee. Dr. Padiyar did not report a fall or history of trauma. He noted that appellant’s right knee
was not red, swollen, or bruised and recommended light duty. In a July 2, 2009 follow-up report,
Dr. Padiyar reviewed appellant’s x-ray, which did not reveal any evidence of an acute fracture,
dislocation, or abnormality and authorized appellant to return to full duty.
In a July 14, 2009 medical report, Dr. Vasilios Moutzouros, a Board-certified orthopedic
surgeon, reported that appellant’s right knee had been painful since June 30, 2009 when he was
going up a flight of stairs and felt a pop over his right knee. He reviewed appellant’s medical
history and noted that appellant was initially seen a few years ago for knee difficulties, which
was diagnosed as significant patellar tendinitis and resulted in a left knee arthroscopy. The
examination revealed that appellant was unable to do a straight leg raise and had a positive defect
at the proximal patellar tendon with significant swelling and effusion in the knee.
Dr. Moutzouros recommended a magnetic resonance imaging (MRI) scan examination because
he believed appellant may have sustained a patellar tendon rupture.
On July 27, 2009 appellant underwent an MRI scan examination of his right knee
interpreted by Dr. Mark Diamond, a Board-certified diagnostic radiologist. The MRI scan
revealed a large joint effusion with the patellofemoral compartment, significant artilage loss
medially and a full thickness cartilage defect within the weight-bearing portion of the femoral
condyle. Dr. Diamond noted that the MRI scan suggested a fat pad impingement syndrome,
patellofemoral degenerative change and somewhat focal, large chondral defect from the medial
femoral condylo.
In a July 21, 2009 medical report, Dr. Robert A. Teitge, a Board-certified orthopedic
surgeon, confirmed that appellant was seen for an acute right knee injury and provided a history
of injury. He stated that on July 1, 2009 appellant walked up eight flights of stairs and realized
that his knee was swollen when he reached the top of the staircase. Appellant further informed
him that on July 4, 2009 he went to the hospital emergency room because his knee was still
swollen and painful. Dr. Teitge conducted a physical examination and reviewed appellant’s MRI
scan report. He observed a moderate fragment off the center of the medial femoral condyle
articular surface and diagnosed appellant delamination with a defect in the center of articular
surface. Dr. Teitge recommended an arthroscopy for removal of loose body and, in an
August 13, 2009 letter, he authorized appellant to undergo right knee arthroscopy and excused
him from work for four weeks.
On October 15, 2009 the Office advised appellant that the evidence was insufficient to
support that the alleged July 1, 2009 event occurred as alleged and requested additional
information. It asked him to clarify what happened on July 1, 2009 which caused his alleged

2

knee injury and to provide a statement from any witnesses. The Office further requested a
comprehensive medical report from appellant’s treating physician which should include a history
of injury, treatment and examination results, diagnosis and a doctor’s opinion, with stated
medical reasons, explaining how the alleged July 1, 2009 event caused or aggravated his knee
condition. It specifically requested for the physician to explain the relationship between
appellant’s preexisting degenerative condition and the alleged July 1, 2009 knee injury.
Appellant responded by providing a July 4, 2009 MRI scan report interpreted by
Dr. Matthew Rheinboldt, a Board-certified diagnostic radiologist, who observed a large effusion
and focal irregularity of the lateral tibial plateau and mild spurring at the anterior intercondylar
eminence and minimal patellar pole spurring. Dr. Rheinboldt diagnosed appellant with large
effusion, but he could not rule out second fracture lateral tibial plateau with the possibility of
accompanying internal ligamentous derangement.
In a November 12, 2009 decision, the Office denied appellant’s traumatic injury claim on
the grounds of insufficient evidence establishing that he sustained an injury in the performance
of duty. It determined that the factual evidence failed to demonstrate that the alleged July 1,
2009 employment incident occurred as alleged and to explain the mechanism of injury for what
caused appellant’s alleged knee condition.
On November 24, 2009 appellant, through his representative, requested a telephone
hearing. Prior to the hearing, he provided a January 6, 2010 signed personal statement.
Appellant stated that on July 1, 2009 at approximately 4:45 a.m., he had to climb approximately
100 to 110 stairs because the building did not have power. As he was walking up the winding
stairs, he felt his knee give out and heard a pop, causing him pain, but continued walking up the
stairs to get to his office.
Appellant also provided a July 4, 2009 emergency room report by Dr. Tony Kanluen,
Board-certified in emergency medicine, who reviewed appellant’s medical history and reported
that he injured his right knee five days ago at home when he ran up eight flights of stairs and
experienced pain in his right knee. Upon physical examination, Dr. Kanluen observed some
swelling and mild spurring at the anterior intercondylar eminence and minimal patellar pole.
X-rays also revealed a large effusion and focal irregularity of the lateral tibial plateau.
Dr. Kanluen ultimately diagnosed appellant with a large right knee traumatic effusion but could
not rule out second fracture lateral. He also resubmitted the July 4, 2009 MRI scans results
interpreted by Dr. Rheinboldt.
In an April 1, 2010 letter, Dr. Angelia Mosley-Williams, a Board-certified internist who
specializes in rheumatologist, stated that appellant was initially seen on August 29, 2007 for knee
pain and was eventually diagnosed with osteochondritis dessicans of his knees. She reported that
he continued to complain of right knee pain and reported that on July 1, 2009 his knee gave out
while climbing stairs at work due to severe pain. Dr. Mosley-Williams reviewed appellant’s
MRI scan reports and noted a large chondral defect and osteoarthritis of the patellofemoral
joints. She further explained that according to rheumatology literature his right knee gave out
because knees with osteoarthritis do give way during weight-bearing activities. Dr. MosleyWilliams also noted that appellant’s pain would increase due to the progression of his
osteoarthritis.

3

On April 13, 2010 a telephone hearing was held with appellant’s attorney and a
representative from the employing establishment. Appellant stated that in August 2007 he was
diagnosed with early onset of osteoarthritis in his knees, but that this knee condition was not
work related. He eventually underwent surgery on his left knee in January 2008. Appellant then
explained that on July 1, 2009 he climbed about 100 winding stairs to the fourth floor because
the power was out. He began to feel right knee pain around the second floor but continued to
walk up the stairs when the pain became so severe that his knee gave out. Appellant did not fall,
but continued to climb the stairs to reach his office despite the pain.
Appellant further described the medical treatment he received. On July 1, 2009 he was
examined by the employee health unit at work, who recommended that he return to light-duty
work to see if the swelling in his knee would go down and authorized him to full duty on
July 2, 2009. When appellant’s knee pain did not improve by July 4, 2009, he went to the
emergency room where an x-ray was taken and fluid was drained from his knee. The Office
hearing representative pointed out that Dr. Kanluen stated in his emergency room report that
appellant injured his knee at home on June 30, 2009 and that the medical evidence failed to
contain a physician’s opinion establishing whether and how the July 1, 2009 event caused or
aggravated his knee condition. He emphasized the fact that because appellant had a preexisting
knee condition, the Office needed a definitive opinion and explanation as to how walking up the
stairs on July 1, 2009 caused the new injury. Appellant refuted that the accurate date of injury
was July 1, 2009 at work, and he did not know why Dr. Kanluen noted an incorrect date. His
representative further asked to hold the record open for 30 days in order to provide the necessary
medical evidence. No additional information was received.
By decision dated June 24, 2010, the Office affirmed the November 12, 2009 Office
denial with modification. It determined that the evidence was sufficient to establish fact of
injury, but the record was void of sufficient medical evidence demonstrating that appellant’s
right knee condition was causally related to the July 1, 2009 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under the Act2 has the burden of proof to establish the
essential elements of her claim by the weight of the reliable, probative and substantial evidence3
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.5
2

5 U.S.C. §§ 8101-8193.

3

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

4

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
5

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

4

There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.7 An employee may establish that the
employment incident occurred as alleged but fail to show that his disability or condition relates
to the employment incident.8
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence providing a diagnosis or opinion as to
causal relationship.9 Rationalized medical opinion evidence is medical evidence which includes
a physician’s rationalized opinion on whether there is a causal relationship between the
employee’s diagnosed condition and the specified employment factors or incident.10 The
opinion of the physician must be based on a complete factual and medical background of the
employee, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the employee.11
In addition, under the Act, when employment factors cause an aggravation of
underlying physical condition, the employee is entitled to compensation for the periods
disability related to the aggravation.12 When the aggravation is temporary and leaves
permanent residuals, compensation is not payable for periods after the aggravation ceased.13
the employment exposure causes a permanent condition, the employee may be entitled
continuing compensation.14

an
of
no
If
to

ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a knee condition causally related to walking up several flights of stairs at work on
July 1, 2009. The Office accepted that the July 1, 2009 employment incident occurred as alleged
and that appellant sustained a knee condition. The issue is whether the medical evidence
6

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

7

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

8

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

9

Paul E. Thams, 56 ECAB 503 (2005).

10

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

11

B.B., 59 ECAB 234 (2007); Victor J. Woodhams, supra note 10 at 352; D.S., Docket No. 09-860 (issued
November 2, 2009).
12

Raymond W. Behrens, 50 ECAB 221, 222 (1999); James L. Hearn, 29 ECAB 278, 287 (1978).

13

Id.

14

James C. Ross, 45 ECAB 424, 429 (1994); Gerald D. Alpaugh, 31 ECAB 589, 596 (1980).

5

establishes that appellant’s knee condition was causally related to the accepted employment
incident.
The record establishes that appellant suffers from a preexisting knee condition that is not
work-related and underwent a left knee arthroscopy in January 2008. In an April 1, 2010 letter,
Dr. Mosley-Williams stated that she initially saw appellant on August 29, 2007 for
osteochondritis dessicans of his knees and related that he experienced severe knee pain on July 1,
2009 while climbing stairs at work. She reviewed his MRI scan results and noted a large
chondral defect and osteoarthritis of the patellofemoral joints. Dr. Mosley-Williams explained
that appellant’s right knee gave out because knees with osteoarthritis give way during
weight-bearing activities. Although she provides an accurate history of injury, she did not offer
any medical rationale explaining how climbing up the stairs at work would aggravate appellant’s
preexisting osteoarthritis or cause any new injury. Dr. Mosley-Williams did not provide a
medical opinion which sufficiently described or explained the medical process through which the
July 1, 2009 work event would have caused or aggravated the claimed injury.15
After the July 1, 2009 employment incident, appellant was first examined by the
occupational health department at his work. Dr. Padiyar stated that appellant was walking up the
stairs and felt pain in his right knee. He observed no redness, swelling or bruising and
recommended light duty. In a July 2, 2009 follow-up report, Dr. Padiyar observed no swelling or
bruising and noted that x-rays did not reveal a fracture, dislocation or articular abnormalities.
While he provides an accurate history of injury on July 1, 2009 appellant was walking up the
stairs at work, he does not claim that this event caused any diagnosed medical condition or
aggravated appellant’s preexisting knee problems.16 Dr. Padiyar also does not provide a firm
medical diagnosis, but only states that appellant experienced pain, which is not a compensable
medical diagnosis.17 Thus, these reports are insufficient to establish causal relationship.
Appellant was also examined in the emergency room by Dr. Kanluen. In a July 4, 2009
hospital record, Dr. Kanluen stated that appellant complained of a right knee injury that occurred
five days ago at home when he ran up eight flights of stairs. X-rays revealed a large effusion and
focal irregularity of the lateral tibial plateau. Dr. Kanluen noted that appellant sustained a right
knee traumatic effusion. Appellant alleges, however, that he sustained an injury on July 1, 2009
at work, not at home five days earlier on June 30, 2009, as Dr. Kanluen stated. Similarly, in a
July 14, 2009 report, Dr. Moutzouros reported the date of injury as June 30, 2009 and explained
that appellant felt a pop as he was going up the flight of stairs. While both doctors provided a
firm medical diagnosis, they also listed an incorrect date of injury, and thus, did not provide an
accurate history of the employment injury as appellant alleged. Without a correct history of
injury, these reports are not based upon a complete and factual background and are thus, of
limited probative value in establishing appellant’s claim.18
15

J.Z., 58 ECAB 529 (2007); see also Thomas L. Hogan, 47 ECAB 323 (1996).

16

S.E., Docket No. 08-2214 (issued May 6, 2009); J.F., Docket No. 09-1061 (issued November 17, 2009).

17

Robert Broome, 55 ECAB 339, 342, (2004); C.B., Docket No. 09-2027 (issued May 12, 2010).

18

See M.W., 57 ECAB 710 (2006); John W. Montoya, 54 ECAB 306 (2003); B.H., Docket No. 10-907 (issued
November 9, 2010).

6

Appellant also provided a July 21, 2009 medical report from Dr. Teitge, who stated that
on July 1, 2009 appellant’s knee became swollen after walking up eight flights of stairs at work.
He conducted a physical examination and reviewed appellant’s MRI scan results. Dr. Teitge
diagnosed appellant with delamination with a defect in the center of articular surface and
recommended a right knee arthroscopy. He, however, does not provide any opinion on the cause
of appellant’s diagnosed knee condition. Dr. Teitge only states that appellant’s knee was swollen
when he reached the top of the staircase without explaining how walking up the stairs resulted in
appellant’s knee condition. He also fails to mention appellant’s preexisting knee condition. As
medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value, Dr. Teitge’s report fails to establish causal relationship in
this case.19 In addition, appellant’s July 4 and 17, 2009 MRI scan results interpreted by
Dr. Rheinboldt and Dr. Diamond do not provide any opinion regarding the etiology of
appellant’s knee condition, and are likewise, insufficient to meet his burden of proof.
On October 15, 2009 the Office advised appellant of the medical evidence needed to
establish his claim. Furthermore, the Office hearing representative again informed him that he
needed to provide a medical opinion from his physician explaining how walking up the stairs
caused a new knee injury or contributed to his preexisting knee condition. Appellant failed to
submit such probative medical opinion in this case and, thus, did not meet his burden of proof to
establish his claim.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a knee injury on July 1, 2009.

19

A.D., 58 ECAB 149 (2006); C.B., Docket No. 09-2027 (issued May 12, 2010).

7

ORDER
IT IS HEREBY ORDERED THAT the June 24, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 22, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Scranton, PA, Employer
__________________________________________

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)

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

Docket No. 12-929
Issued: September 5, 2012

Case Submitted on the Record

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

JURISDICTION
On March 20, 2012 appellant filed a timely appeal from a September 15, 2011 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 more than a four percent permanent impairment to his
right and left legs.
FACTUAL HISTORY
Appellant filed an occupational disease claim in February 2000 alleging that he sustained
back injuries causally related to lifting and carrying mail as a mail carrier. OWCP accepted that
he sustained a lumbar sprain and lumbar degeneration causally related to his federal
1

5 U.S.C. § 8101 et seq.

employment. Appellant also had a June 7, 2000 motor vehicle accident in the performance of
duty, which was accepted for thoracic and neck sprains, aggravation of lumbar sprain and
contusions of the right knee and left thigh. He retired from federal employment on
March 8, 2002.
On November 16, 2010 appellant submitted a claim for compensation (Form CA-7) for a
schedule award. He submitted a report dated June 15, 2010 from Dr. Neil Novin, an internist,
who provided a history of injury and results on examination. Dr. Novin found that appellant had
a 29 percent impairment to his left leg. He cited generally to Table 17-2, Table 17-7 and Table
17-8 of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(sixth edition, hereinafter A.M.A., Guides), without explaining how the tables were applied.
In a report dated December 19, 2010, Dr. Arnold T. Berman, a Board-certified orthopedic
surgeon and OWCP’s medical adviser, reviewed the medical evidence. He found that appellant
had a four percent permanent to each leg based on an S1 spinal nerve impairment under the
A.M.A., Guides July to August 2009 Newsletter (Rating Spinal Nerve Impairments Using the
sixth edition). The date of maximum medical improvement was reported as June 15, 2010.
By decision dated February 9, 2011, OWCP issued schedule awards for four percent
permanent impairment to each leg. The period of the award was 23.04 weeks commencing
June 15, 2010.
On July 1, 2011 appellant, through his representative, requested reconsideration. In a
June 22, 2011 report, Dr. Robert Macht, a surgeon, provided a history that appellant slipped and
fell while delivering mail and was involved in a motor vehicle accident in June 2000. He
provided results on examination and diagnosed traumatic injury to back with bilateral multiple
level radiculopathy. With respect to permanent impairment, Dr. Macht identified Table 17-4 of
the A.M.A., Guides. He first stated that appellant had a class 1 impairment or a seven percent
whole person impairment and then stated that appellant had a class 4 impairment because of the
bilateral radiculopathy, resulting in a 29 percent whole person impairment. Dr. Macht stated that
the difference was 22 percent, and using the Combined Values Chart, this would be a 12 percent
“impairment of the whole person due to the left leg and 11 percent impairment to the whole
person due to the right leg.” He concluded that the value of the leg was 40 percent of the whole
person, for a 29 percent left leg impairment and 27 percent right leg impairment.
Appellant also submitted continuing treatment reports from attending physician
Dr. Leroy Pelicci, Board-certified in neurology, from March 1 to September 12, 2011.
Dr. Pelicci did not provide any opinion as to permanent impairment.
By decision dated September 15, 2011, OWCP found the evidence submitted was
insufficient to warrant modification of the February 9, 2011 schedule award decision.

2

LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA 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 to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants.4 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 For schedule awards after May 1, 2009, the
impairment is evaluated under the sixth edition.6
A claimant seeking compensation under FECA has the burden to establish the essential
elements of his claim.7 With respect to a schedule award, it is appellant’s burden of proof to
establish an increased schedule award.8 A claimant may seek an increased schedule award if the
evidence establishes that he sustained an increased impairment causally related to an
employment injury.9
For peripheral nerve impairments to the upper or lower extremities resulting from spinal
injuries, OWCP procedures indicate that The Guides Newsletter “Rating Spinal Nerve Extremity
Impairment using the sixth edition” (July to August 2009) is to be applied.10
ANALYSIS
OWCP granted a schedule award on February 9, 2011, finding appellant had a four
percent permanent impairment to each leg. The schedule award was based on the opinion of
Dr. Berman, an OWCP medical adviser, who applied The Guides Newsletter to the medical
evidence. As noted, The Guides Newsletter is the appropriate method of evaluating peripheral
nerve impairments to the lower extremities. Dr. Berman’s opinion was the only medical opinion
properly applying The Guides Newsletter.

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

See Ronald R. Kraynak, 53 ECAB 130 (2001); August M. Buffa, 12 ECAB 324 (1961).

5

Supra note 3.

6

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

7

John W. Montoya, 54 ECAB 306 (2003).

8

Edward W. Spohr, 54 ECAB 806, 810 (2003).

9

See Rose V. Ford, 55 ECAB 449 (2004).

10

See G.N. Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part 3
-- Medical, Schedule Awards, Chapter 3.700 (January 2010). The Newsletter is included as Exhibit 4.

3

On July 1, 2011 appellant stated that he was requesting reconsideration contending that
he had greater impairment of his legs. He submitted the June 22, 2011 report from Dr. Macht.
The Board notes that a medical report must be based on a complete and accurate background to
be of probative value.11 Dr. Macht referred generally to a slip and fall at work in the history
provided. As noted by OWCP, there was no evidence presented as to a claim for a slip and fall.
The accepted claim in this case was for a lumbar sprain and lumbar degeneration causally related
to appellant’s work duties, as well as a separate claim for lumbar injuries in a June 2000 motor
vehicle accident. Dr. Macht did not provide a complete and accurate background for his opinion.
In addition, Dr. Macht did not provide a probative medical opinion with respect to a
permanent impairment as rated under the A.M.A., Guides under FECA. He referred to Table
17-3, which is a table for thoracic spinal impairments rated in terms of whole person
impairments.12 Neither FECA nor its regulations provide for a schedule award for impairment to
the back or to the body as a whole. Furthermore, the back is specifically excluded from the
definition of “organ” under FECA.13 Use of the spinal regional grids is not appropriate to
determine an impairment under FECA.14
As noted, peripheral nerve impairments to the legs are to be based on spinal injuries rated
in conformance to The Guides Newsletter. Dr. Macht did not refer to The Guides Newsletter or
identify any appropriate table in rating lower extremity impairment under the A.M.A., Guides. It
is appellant’s burden of proof to establish an increased schedule award, and he did not meet his
burden of proof in this case. Neither Dr. Macht nor Dr. Pelicci provided a medical opinion
sufficient to establish an increased permanent impairment.
On appeal, appellant indicated that he had been treated by Dr. Pelicci for 12 years and
was concerned that his medical condition could progressively worsen. The issue on appeal is
limited to whether he is entitled to a schedule award for additional permanent impairment. The
medical evidence of record does not establish more than a four percent permanent impairment to
each leg.
The Board notes that appellant may at anytime request an increased schedule award
based on medical evidence showing progression of an employment-related condition resulting in
permanent impairment or increased impairment.15
CONCLUSION
The Board finds that appellant has not established more than a four percent permanent
impairment to each leg.
11

See, e.g., K.C., Docket No. 11-2026 (issued June 7, 2012).

12

A.M.A., Guides 567, Table 17-3.

13

See James E. Jenkins, 39 ECAB 860 (1988); 5 U.S.C. § 8101(20).

14

See W.C., Docket No. 11-1659 (issued March 22, 2012).

15

See Linda T. Brown, 51 ECAB 115 (1999).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 15, 2011 is affirmed.
Issued: September 5, 2012
Washington, DC

Alec J. Koromilas, Alternate 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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