United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
TENNESSEE VALLEY AUTHORITY,
PARADISE FOSSIL PLANT, Drakesboro, KY,
Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1249
Issued: October 22, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 7, 2014 appellant, through counsel, filed a timely appeal from an April 9, 2014
merit decision of an Office of Workers’ Compensation Programs’ (OWCP) hearing
representative. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an occupational
disease in the performance of duty.
FACTUAL HISTORY
On January 10, 2013 appellant, then a 69-year-old former pipefitter, filed an occupational
disease claim alleging hearing loss due to his federal employment. He first became aware of his
1

5 U.S.C. § 8101 et seq.

condition on January 1, 2002. Appellant did not become aware of its relation to his federal
employment until December 12, 2012. The employing establishment stated that he was last
exposed to conditions alleged to have caused his condition on December 26, 1985.
In a January 23, 2013 letter, OWCP advised appellant that the evidence was insufficient
to establish his claim. It requested information such as: his federal and nonfederal employment
history, his exposure to hazardous noise and previous ear/hearing problems. By letter dated
January 23, 2013, OWCP requested that the employing establishment submit information
including the job sites where appellant worked, the sources of noise to which he was exposed,
the period of exposure and the decibel and frequency of any exposure.
Appellant submitted a November 28, 2012 report from Dr. Thomas C. Logan, Boardcertified otolaryngologist, who diagnosed bilateral mild sloping to severe sensorineural hearing
loss. Dr. Logan found that compared to appellant’s 2006 audiogram, there had been a
generalized progression of hearing loss across most frequencies in the right ear and across the
higher frequencies in the left ear. He advised that appellant related that his symptoms had been
present for several years and he often had to ask people to repeat themselves. Dr. Logan noted
that appellant has had a significant history of noise exposure, indicating that he worked at a
power plant for 20 years. An accompanying November 28, 2012 audiogram tested decibel losses
at 500, 1,000, 2,000 and 3,000 hertz and recorded losses of 10, 15, 30 and 60 in the left ear.
Testing at the same levels for the right ear recorded decibel losses of 25, 25, 30 and 55.
In an undated statement responding to OWCP’s questionnaire, appellant noted that he
was employed by the employing establishment for four months in 1982, 10 months in 1981 and
11 months in 1985. He claimed that he was exposed to hazardous noise from generators, pumps,
motors, large fans, release valves, pneumatic tools and conveyor belts without ear protection.
Appellant advised that from 1967 to 2000 he was a member of the local 633 pipefitters’ union,
working at various fossil fuel plants, where he was exposed to the same type of hazardous noise
he experienced at the employing establishment.2 He noted that he began to wear earplugs in the
late 1980’s.
In a February 14, 2013 statement, the employing establishment advised that appellant
worked intermittently from March 31, 1970 until December 26, 1985 for a total of 2.67 years. It
stated that he could have only been exposed to hazardous noise from turbines, pressurizers and
grinders for one to two hours a day, five days a week. The employing establishment also noted
that noise level surveys indicated readings of 86 to 90 decibels at the site where appellant worked
and earplugs were mandatory. It noted that he had audiograms performed on January 14, 1972
and January 6, 1982, both of which showed no ratable hearing loss.
In a February 21, 2013 report, Dr. Eric Puestow, an OWCP medical adviser stated that
the medical record did not establish that appellant had a noise-induced hearing loss due to his
federal employment.

2

Appellant noted that he was not exposed to hazardous noise in his nonfederal positions at J.S. Cottrell Lumber
as a lumber stacker, F.A. Ames Company as a furniture manufacturer or PPMI as a mechanical contractor.

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OWCP prepared a statement of accepted facts, noting appellant’s work history. It listed
he had been exposed to noise of 86 to 90 decibels for six to seven hours a day at the employing
establishment.
OWCP referred appellant to Dr. Andrew Mickler, a Board-certified
otolaryngologist. In a March 19, 2013 report, Dr. Mickler reviewed the statement of accepted
facts and opined that appellant sustained bilateral sensorineural hearing loss. He concluded that
the workplace exposure based on an eight-hour work shift was insufficient to have caused the
loss in question. Dr. Mickler noted that appellant was not exposed to noise in excess of the
recommended time weighted exposure of 85 decibels for an eight-hour work shift. He noted that
there were no audiograms from the beginning or end of appellant’s federal employment to
compare. However, the audiograms during appellant’s employment with the employing
establishment showed no measurable hearing loss. Furthermore, Dr. Mickler stated that
appellant’s work history was intermittent with federal and nonfederal work mingled together.
By decision dated July 22, 2013, OWCP denied appellant’s claim. It found that
Dr. Mickler did not support that appellant’s hearing loss was causally related to the accepted
work exposure.
On July 30, 2013 appellant requested an oral hearing which took place on
January 22, 2014.
By decision dated April 9, 2014, OWCP’s hearing representative affirmed the
July 22, 2013 decision. She found that OWCP properly relied on Dr. Mickler’s medical report in
determining that appellant’s hearing loss was not causally related to his federal employment.
The hearing representative noted that the exposure data while at the employing establishment did
not meet time weighted standard for exposure to hazardous noise. Furthermore, she advised that
audiograms at the time of appellant’s employment did not demonstrate any ratable loss.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden 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, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.3 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.4
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established. To establish an occupational disease
claim, an employee must submit: (1) a factual statement identifying employment factors alleged
to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

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compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical background, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.6
The weight of medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.7
ANALYSIS
OWCP accepted that appellant was exposed to work-related noise while working as a
pipefitter at the employing establishment. In its April 9, 2014 decision, it denied his
occupational disease claim finding that the weight of medical opinion rested with Dr. Mickler, an
OWCP referral physician, who found that appellant’s hearing loss was not causally related to the
established employment-related noise exposure. The Board finds that this case is not in posture
for decision.
In his November 28, 2012 report, Dr. Logan diagnosed bilateral mild sloping to severe
sensorineural hearing loss. He noted that appellant had a significant history of noise exposure,
stating that he worked at power plants for 20 years. Although Dr. Logan acknowledged
appellant’s 20 years of working at a power plant, he failed to adequately address whether he was
referring to appellant’s federal or nonfederal work experience or explain how workplace noise
exposure contributed to his hearing loss. Thus, this report is insufficient to establish an
employment-related hearing loss.
OWCP referred appellant to Dr. Mickler for a second opinion.
Dr. Mickler’s
March 19, 2013 report concluded that appellant’s federal work history did not cause his hearing
loss because he was not exposed to the time weighted limit of 85 decibels for an eight-hour work
shift. The Board notes that OWCP’s procedure manual states that hearing loss may result from
decibel levels below 85 decibels if exposure is sufficiently prolonged.8 OWCP does not require
that the claimant show exposure to injurious noise in excess of 85 decibels as a condition to
approval of the claim.9 Dr. Mickler’s report is of limited probative value because his medical
5

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

6

I.J., 59 ECAB 408 (2008); supra note 4.

7

James Mack, 43 ECAB 321 (1991).

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter
3.600.8(a) (September 1995). See also C.S., Docket No. 10-2030 (issued June 9, 2011).
9

Id.

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opinion on causal relation is not adequately rationalized. He concluded that appellant’s hearing
loss was not caused by his federal employment because his work history was intermittent with
federal and nonfederal work mingled together. Dr. Mickler failed to explain why intermittent
exposure up to 90 decibels did not contribute to appellant’s hearing loss.10 He was not provided
the audiograms obtained during appellant’s employment in 1972 or 1982 for review or comment.
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden to establish entitlement to
compensation, OWCP shares the responsibility in the development of the evidence to see that
justice is done.11 Once OWCP undertakes development of the record it must do a complete job
in procuring medical evidence that will resolve the relevant issues in the case.12 When OWCP
selects a physician for an opinion on causal relationship, it has an obligation to secure, if
necessary, clarification of the physician’s report and to have a proper evaluation made.13
Because it referred appellant to Dr. Mickler, it has the responsibility to obtain a report that will
resolve the issue of whether his hearing loss was caused or contributed to by his federal
employment.14
On appeal, counsel for appellant argues that Dr. Logan’s opinion should be given more
weight than Dr. Mickler’s opinion or appellant should be referred to a referee physician. The
deficiencies in the medical reports of record have been noted.
The case will be remanded to OWCP for further development of the medical evidence.
On remand, OWCP requested that the employing establishment submit the 1972 and 1982
audiograms. It should ask Dr. Mickler to clarify his opinion on whether appellant’s hearing loss
was caused or contributed to by the accepted level of noise exposure. Dr. Mickler should also be
asked to provide medical rationale in support of his conclusion.15 Following this and any other
further development deemed necessary, OWCP shall issue a de novo decision on appellant’s
claim.

10

Furthermore, to the extent that Dr. Mickler implies that hearing loss is also caused by nonfederal employment,
there is no requirement that the federal employment be the only cause of appellant’s hearing loss. An employee is
not required to prove that occupational factors are the sole cause of his claimed condition. If work-related exposures
caused, aggravated or accelerated appellant’s condition, he is entitled to compensation. See Beth P. Chaput, 37
ECAB 158, 161 (1985); S.S., Docket No. 08-2386 (issued June 5, 2008).
11

Richard Kendall, 43 ECAB 790 (1992).

12

Phillip L. Barnes, 55 ECAB 426, 441 (2004).

13

Alva L. Brothers, Jr., 32 ECAB 812 (1981).

14

See Ramon K. Farrin, Jr., 39 ECAB 736 (1988).

15

When a medical evaluation is made at its request, OWCP has the responsibility of obtaining a proper
evaluation. Leonard Gray, 25 ECAB 147, 151 (1974).

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CONCLUSION
The Board finds that this case is not in posture for a decision as to whether appellant
developed sensorineural hearing loss in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the April 9, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: October 22, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Reno, NV, Employer
__________________________________________

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

Docket No. 17-0883
Issued: May 21, 2018

Case Submitted on the Record

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

JURISDICTION
On March 13, 2017 appellant filed a timely appeal from a November 23, 2016 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 this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On February 25, 2016 appellant, then a 59-year-old operations support specialist, filed a
traumatic injury claim (Form CA-1), alleging that, on February 24, 2016, she developed anxiety,
high blood pressure, and chest pains as a result of intense interrogation, accusations, and threats
1

5 U.S.C. § 8101 et seq.

while attending a staff meeting. She stopped work on February 25, 2016. Appellant visited an
emergency room on February 24, 2016 for severe anxiety, stress, and chest pains that began after
an intense work meeting. She was hospitalized one night for further evaluation. Dr. Fema
Aquino, a Board-certified internist, diagnosed acute chest pain and anxiety. Appellant was
treated in urgent care by Dr. Tibor Toplenszky, a Board-certified internist, on February 28, 2016,
for chest pain and anxiety. She was diagnosed with anxiety and acute stress reaction.
The employing establishment submitted a February 24, 2016 statement from S.N., a plant
support manager in Las Vegas, NV, who held a staff meeting on February 24, 2016 to discuss
expectations, standard work processes, sustainment, and goals moving forward for the
department. Appellant, whose duty station was in Reno, NV, was present at the meeting as she
was scheduled to be in Las Vegas for training with M.M., a coworker. S.N. indicated that,
during the meeting, appellant became disruptive and stated that she did not need to be there.
S.N. asked appellant not to interrupt and continued with the meeting. Appellant interrupted
again and became argumentative, stating that her training time was being wasted in the meeting
and that she should be allowed uninterrupted training time. S.N. requested that appellant not
interrupt again. When the meeting concluded, S.N. asked appellant to stay to discuss her
outburst during the meeting. Appellant told her to wait a minute while she began recording their
conversation with her cell phone. S.N. inquired whether appellant recorded the staff meeting and
appellant responded affirmatively. She informed appellant that she did not consent to be
recorded. S.N. contacted J.W., labor relations manager, and informed her that appellant recorded
conversations and meetings on her personal phone. J.W. explained the regulation on recordings
and informed appellant that she was in violation of employer regulations. Appellant reported
recording conversations frequently. S.N. advised that, she then decided to conduct an
investigative interview of appellant. A district complement coordinator represented appellant
during the interview. When the interview concluded, appellant indicated that she needed her
blood pressure checked. S.N. contacted C.G., the plant manager, about appellant’s concerns, but
he did not respond and she left a message. She contacted the plant manager’s secretary and the
plant manager arrived at the scene. C.G.’s secretary then took appellant to urgent care.
In a February 25, 2016 statement, R.B., operations support specialist, indicated that he
attended the plant support staff meeting held on February 24, 2016 along with S.N., R.B., M.M.,
G.M., R.L., B.B., and M.B. Appellant sat next to him and as the meeting began she mentioned
in a normal speaking voice that she was going to record the meeting and placed her phone in full
view on the table. It was unclear who heard the announcement. S.N. began the meeting and
discussed plant support’s role, including policing mail processing. After about 20 minutes
appellant asked if she could be excused from the meeting as she was there for training. S.N.
informed appellant that she was required to stay for the meeting. Appellant later reiterated her
request to return to training, but S.N. stated that appellant had to stay for the rest of the meeting.
The meeting continued for 30 minutes and everyone was excused except appellant.
The employing establishment submitted a February 28, 2016 statement from J.W., who
reported being contacted by S.N. for assistance with investigating the recording of a meeting by
appellant. J.W. provided S.N. copies of the regulations regarding recording postal meetings and
training. Appellant admitted to recording the meeting, but stated that she informed everyone in
the room. When asked if S.N. consented to being recorded appellant indicated that she thought

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S.N. heard her announce that she was recording the meeting. The investigative interview began
at approximately 11:30 a.m. and ended at about 12:08 p.m. In attendance were S.N., D.C., the
complement coordinator, and appellant. J.W. noted that S.N. asked approximately 11 questions
and appellant was cooperative and responded. She advised that D.C. interrupted the questioning
and attempted to provide responses. Appellant stated that she could feel her blood pressure
rising. She denied S.N.’s request to inspect her personal telephone to confirm that the recording
was deleted. J.W. advised that at no point before, during, or after the investigative interview did
appellant request medical attention. S.N. later contacted the plant manager and he arranged for
his assistant to take appellant to the Quick Care facility for medical attention.
In a March 1, 2016 statement, D.C., a complement coordinator, indicated that she was
called to be present at an investigative interview with appellant. Appellant reported being sent to
Las Vegas for training and attended a meeting with S.N. She reported announcing that she was
going to record the meeting for her notes and proceeded to place her cell phone on the table in
front of her. Appellant was never informed that she could not record the meeting and was
planning on sharing the information with others who were not in attendance. She reported that
after the meeting S.N. inquired as to whether the meeting was recorded. Appellant confirmed
recording the meeting to share with others not in attendance. S.N. announced that she would
conduct an investigative interview. She sought to contact her union representative from her
branch, but was denied. During the interview S.N. asked several long questions, but would not
provide a copy of the questions to D.C. D.C. noted that she required clarification of the
questions and J.W. yelled at her and informed her that she could not ask questions. D.C. advised
that J.N. wanted to confiscate appellant’s phone and take it to the Office of Inspector General
(OIG) to confirm that the recording was erased. Appellant refused to turn over her phone. She
indicated that she was not feeling well, that she had a heart condition, and could feel her blood
pressure increasing. S.N. contacted the plant manager, whose assistant took appellant for
medical attention.
In a March 9, 2016 statement, appellant indicated that she was in Las Vegas on
February 24, 2016 for training with M.M. She indicated that she had not met S.N., but had a
disturbing telephone conversation with her a few weeks earlier where she was confrontational,
which she reported to management. Appellant reported sitting down for the meeting and stating
out loud that she was going to record the meeting for her notes. She placed her cell phone on the
table. During the meeting S.N. made unreasonable demands and yelled that the staff was the
police. Appellant requested that she and M.M. be excused so that they could continue training
and S.N. stated “Do not interrupt my meeting.” She indicated that a coworker asked a question
and S.N. yelled in a threatening voice “Do not make me take 10 minutes to explain to you what I
want!” The meeting ended and the staff was dismissed, but S.N. asked to speak with appellant
and inquired if she recorded the meeting. Appellant confirmed the recording and indicated that
she made an announcement. S.N. yelled at her to erase the recording and proceeded to conduct
an investigative interview. Appellant noted becoming very nervous and upset and requested her
National Association of Postal Supervisors (NAPS) representative. She alleged that S.N. denied
her request responding “No, we will choose who represents at this meeting.” D.C., a NAPS
representative, was in the building and was sent to represent appellant. Appellant recognized her
and thanked her for being present. She indicated that D.C. attempted to ask questions during the
interview and J.W. advised that she was not permitted. Appellant further indicated that S.N.

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wanted to confiscate her cell phone, but she refused. She reported that she had a heart condition,
her blood pressure increased, and she could hardly breathe. S.N. called for assistance and the
plant manager’s secretary took appellant to an emergency room where she was admitted
overnight. Appellant noted having acute anxiety and arrhythmia since this incident.
On April 4, 2016 OWCP asked appellant to submit additional evidence, including a
detailed description of the work incidents that contributed to her claimed illness. It requested
that the employing establishment comment on the accuracy of all statements.
The employing establishment submitted a March 28, 2016 statement from S.N.,
controverted appellant’s claim.
On May 3, 2016 appellant asserted that the incident with S.N. affected her health and she
believed she was targeted. She indicated that her coworkers would not speak or write statements
for fear that it could damage their career. Appellant advised that she filed an Equal Employment
Opportunity (EEO) complaint on March 14, 2016. She reported no stress in her personal life and
never being treated by a psychiatrist or psychologist. Appellant submitted a note from
Dr. Samantha Durand, an osteopath, dated March 28, 2016 who noted that appellant could return
to work without restrictions.
Appellant also provided a March 9, 2016 statement from M.B. who indicated that on
February 24, 2016 appellant was brought into his office by the plant manager. She was visibly
shaken and the plant manager’s secretary took her to a medical clinic.
By decision dated May 6, 2016, OWCP denied the claim, finding that appellant had not
established that her emotional condition was sustained in the course of employment as she had
not established any compensable factors of employment.2
Thereafter, OWCP received a May 5, 2016 statement from S.N. S.N. denied yelling at
appellant on the telephone. She noted addressing appellant’s substandard work performance in
recent months. S.N. advised that appellant disregarded instructions, was not fully engaged, and
was noncompliant. She noted that appellant was not truthful about the staff meeting and
indicated that she became disruptive and interrupted the meeting stating that she did not need to
be present. S.N. indicated that appellant interrupted again and stated that her training time was
being wasted by being in the meeting and she should be permitted to attend training
uninterrupted. She asked that appellant stop interrupting and she remained silent until the
meeting ended. After the meeting, S.N. requested that appellant stay behind to discuss her
outburst. Appellant admitted to recording the meeting and attempted to record their discussion.
S.N. informed her that she did not consent to be recorded and requested that J.W., a labor
relations manager, attend the discussion. J.W. explained the regulations on recordings and
informed appellant that she had violated postal regulations. S.N. conducted an investigative
interview and, prior to the conclusion of the interview, she informed appellant that she would
temporarily need her cell phone so that the postal inspectors and OIG could ensure that the
meeting was erased as she did not consent to be recorded. At no time did she or J.W. state or
2

On May 11, 2016 OWCP reissued the decision noting that it had corrected noncrucial errors.

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imply that they were going to take possession of her cell phone for any length of time other than
to validate what she recorded was erased. S.N. indicated that she and J.W. informed appellant
that she could come with them to the OIG to validate that the recording was erased.
On June 6, 2016 appellant requested reconsideration. She provided a statement dated
May 30, 2016, which reiterated her allegations and asserted that she was targeted and singled out
by S.N. and J.W. and was denied her “Weingarten rights.” Appellant also submitted medical and
factual evidence which was previously of record. Also received was a February 24, 2016
authorization for examination and/or treatment (Form CA-16), signed by the employing
establishment which authorized appellant’s medical treatment.
On September 21, 2016 J.W. indicated that, on February 24, 2016, appellant participated
in a management investigative interview. She served as the scribe for the meeting and advised
that appellant did not exhibit any physical signs of stress or medical need during the interview,
nor did she request medical attention during the interview. Appellant was taken to Concentra
Clinic for medical assessment and the medical staff suggested that she go to the emergency
room. J.W. indicated that she did not deny appellant medical treatment. Appellant had a
representative present at the interview who sought medical assistance for her.
In a September 26, 2016 statement, S.N. denied targeting or singling out appellant.
Rather, she advised that the employing establishment incurred expense by bringing appellant to
Las Vegas, NV for training that she could have received online. The added expense of the
training was offered to appellant to ensure that she had first-hand knowledge and sight
visualization of the workroom floor to be fully aware of the expectations of her job. S.N. noted
that she did not violate appellant’s “Weingarten rights” and appellant was provided
representation. Appellant stated that she did not request to go to an emergency room and did not
indicate that she was in immediate medical need. S.N. determined that appellant violated
employing establishment rules and regulations when she recorded conversations without
authorization and consent. She advised that this violation warranted a suspension.
In a statement dated October 12, 2016, appellant reiterated her allegations and
resubmitted her March 9, 2016 statement.
By decision dated November 23, 2016, OWCP denied modification of its May 11, 2016
decision.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, appellant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to the emotional condition.3

3

George H. Clark, 56 ECAB 162 (2004).

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Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,4 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment, but nevertheless does not come within
coverage under FECA.5 When an employee experiences emotional stress in carrying out his or
her employment duties, and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.6 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.7 Where the claimant
alleges compensable factors of employment, he or she must substantiate such allegations with
probative and reliable evidence.8 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.9 On the other hand, the disability is not covered where
it results from such factors as an employee’s fear of a reduction-in-force or his or her frustration
from not being permitted to work in a particular environment or to hold a particular position.10
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of events
occurring on February 24, 2016. OWCP denied her emotional condition claim, finding that she
had not established any compensable employment factors. The Board must, thus, initially review
whether these alleged incidents and conditions of employment are covered employment factors
under FECA.
The Board notes that appellant’s allegations do not pertain to her regular or specially
assigned duties under Lillian Cutler.11 Rather, she has alleged that she was harassed and singled
out by management.

4

28 ECAB 125 (1976).

5

See Robert W. Johns, 51 ECAB 137 (1999).

6

Supra note 4.

7

J.F., 59 ECAB 331 (2008).

8

M.D., 59 ECAB 211 (2007).

9

Roger Williams, 52 ECAB 468 (2001).

10

See supra note 4.

11

See id.

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Appellant made several allegations related to administrative and personnel actions. In
Thomas D. McEuen,12 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employing establishment is not covered under FECA as
such matters pertain to procedures and requirements of the employing establishment and do not
bear a direct relation to the work required of the employee. The Board noted, however, that
coverage under FECA would attach if the factual circumstances surrounding the administrative
or personnel action established error or abuse by the employing establishment superiors in
dealing with the claimant. Absent evidence of such error or abuse, the resulting emotional
condition must be considered self-generated and not employment generated. In determining
whether the employing establishment erred or acted abusively, the Board has examined whether
the employing establishment acted reasonably.13
Appellant alleged that S.N. conducted an investigative interview on February 24, 2016,
asserting that she violated employing establishment rules and regulations when she recorded a
staff meeting on her private cell phone. The Board has found that an employee’s complaints
concerning the manner in which a supervisor performs his or her duties as a supervisor, or the
manner in which a supervisor exercises his or her supervisory discretion, fall, as a rule, outside
the scope of coverage provided by FECA. This principle recognizes that a supervisor or
manager in general must be allowed to perform his or her duties, and that employees will at
times dislike the actions taken, but mere disagreement or dislike of a supervisory or management
action will not be actionable, absent evidence of error or abuse.14 The Board has held that an
investigation itself is not a compensable factor under FECA, but is rather an administrative
function. As an investigation is generally related to the performance of an administrative
function of the employer and not to the employee’s regular or specially assigned work duties, it
is not a compensable factor of employment unless there is affirmative evidence that the employer
erred or acted abusively in the matter.15
Appellant has presented no corroborating evidence to support that the employing
establishment erred or acted abusively with regard to these allegations. In a February 24, 2016
statement, S.N. noted holding a staff meeting on February 24, 2016 in which appellant was
present. She indicated that appellant was disruptive and interrupted the meeting stating that her
training time was being wasted. After the meeting, S.N. asked appellant to discuss her outburst
during the session. Appellant acknowledged recording the meeting and conversation on her cell
phone. S.N. informed appellant that she did not consent to be recorded. While appellant
indicated that she advised that she was recording the meeting, before it started, there is no
evidence that S.N. heard appellant or was otherwise aware of the recording until after it was
made. In any event, as noted, S.N. clearly advised that she did not consent to any recording. She
advised that appellant violated employer rules and regulations in recording conversations without
consent and that she would conduct an investigative interview. The employing establishment has
12

See 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991).

13

See Richard J. Dube, 42 ECAB 916, 920 (1991).

14

See Marguerite J. Toland, 52 ECAB 294 (2001).

15

Larry J. Thomas, 44 ECAB 291 (1992).

7

either denied appellant’s allegations or provided a reasonable explanation for its actions in these
administrative matters. As such, she has not established a compensable employment factor with
respect to these administrative matters.
Appellant further alleged that, during the investigative interview, S.N. threatened to
confiscate her personal cell phone. In her May 5, 2016 statement, S.N. advised that before the
conclusion of the interview, she informed appellant that she would need to temporarily
confiscate her cell phone so that the postal inspectors and OIG could review its contents and
ensure that the meeting was erased as she did not give consent to be recorded. She noted that at
no time did she or J.W. state or imply that they were going to take possession of appellant’s
phone for any length of time other than to validate what she recorded was erased. S.N. indicated
that she and J.W. informed appellant that she could come with them to the OIG to validate that
the recording was erased. The employing establishment has explained the reasons for its actions
in these administrative matters. Appellant failed to submit any corroborating evidence to
establish the employing establishment erred in this administrative matter. She has not
established a compensable factor of employment in this regard.
Also, regarding the investigative interview on February 24, 2016, appellant alleged that
S.N. denied her a NAPS representative and violated her “Weingarten rights.”16 SN. and J.W.
both denied that appellant’s Weingarten rights were violated or that she was denied
representation of her choice. Rather, in her May 5, 2016 statement, S.N. asserted that NAPS
representative D.C. was in the building and participated in the investigative interview.
Furthermore, the Board has held that neither OWCP, nor the Board is the proper forum for
adjudicating whether the employing establishment’s actions violated appellant’s Weingarten
rights and that claimants should not view FECA as a secondary or backdoor vehicle for
establishing grievances or EEO complaints.17 Appellant did not provide any probative evidence
to establish that the employing establishment erred or acted abusively in the manner that it
conducted the investigative interview, including her right to representation.
Appellant alleged that she was denied medical assistance by management during the
February 24, 2016 investigative interview after she reported having chest tightness and became
worried about her well being. The evidence of record is insufficient to establish that the
employing establishment erred or acted abusively in this regard. In statements dated February 24
and September 26, 2016, S.N. advised that, at the time of the investigative interview, appellant
did not request to go to emergency room or state that she needed immediate medical attention.
Similarly, J.W. indicated that at no point before, during, or after the investigative interview did
appellant request medical attention. She indicated that, when S.N. became aware that appellant
had medical concerns, she contacted the plant manager who arranged for his assistant to take
appellant to a medical facility. J.W. indicated that appellant was not denied medical treatment
and her representative during the interview sought medical assistance for her. The employing

16

This right is commonly associated with investigatory interviews where there is a possibility of disciplinary
action. See R.G., Docket No. 13-0818 (issued August 1, 2014).
17

S.B., Docket No. 07-2108 (issued June 17, 2008).

8

establishment explained the reasons for its actions in this administrative matter.18 Appellant did
not provide any independent or probative evidence to establish that the employing establishment
erred or acted abusively in this matter.
Appellant also alleges that S.N. denied her request to be excused from the February 24,
2016 meeting that was held as part of her training. To the extent that appellant asserts that her
training was improperly conducted, the Board notes matters pertaining to training are an
administrative function.19 The evidence of record is insufficient to establish that the employing
establishment acted unreasonably in the manner in which it conducted appellant’s training or in
requesting that she stay for the meeting. S.N. noted deficiencies in appellant’s work that
indicated a need for in-person training in Las Vegas. Appellant’s reaction to not being allowed
to leave the February 24, 2016 meeting does not rise to a level of a compensable employment
factor. As noted mere disagreement or dislike of a supervisory or management action will not be
actionable, absent evidence of error or abuse.20
Appellant alleged that she was harassed, threatened, yelled at, and targeted by S.N. To
the extent that incidents alleged as constituting harassment or a hostile environment by a
manager are established as occurring and arising from appellant’s performance of her regular
duties, these could constitute employment factors.21 However, for harassment to give rise to a
compensable disability under FECA, there must be evidence that harassment did in fact occur.
Mere perceptions of harassment are not compensable under FECA.22 The evidence fails to
support appellant’s claim for harassment as a cause for her emotional condition. Rather, the
evidence supports that appellant recorded a staff meeting without S.N.’s consent and against
employing establishment rules and regulations relative to recordings. As a result of appellant’s
conduct, S.N. conducted an investigative interview. General allegations of harassment are
insufficient23 and in this case appellant has not submitted sufficient evidence to establish
disparate treatment by her supervisor.24 Although she alleged that her supervisor harassed and
engaged in actions, which she believed constituted harassment, she provided no corroborating
18

See R.M., Docket No. 10-0433 (issued November 1, 2010) (regarding the allegation that appellant’s supervisor
erred by not allowing appellant to seek immediate medical attention, the Board found that appellant’s supervisor did
not act unreasonably where appellant never expressly informed his supervisor that he could not continue his work
duties and his supervisor never expressly denied appellant’s request to see a doctor).
19

Jose L. Gonzalez-Garced, 46 ECAB 559 (1995).

20
See supra note 14. See also Peter D. Butt Jr., 56 ECAB 117 (2004) (dissatisfaction with perceived poor
management constitutes frustration from not being permitted to work in a particular environment or to hold a
particular position and is not compensable).
21

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

22

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a
claimant must substantiate allegations of harassment or discrimination with probative and reliable evidence). See
also M.G., Docket No. 16-1453 (issued May 12, 2017) (vague or general allegations of perceived harassment, abuse,
or difficulty arising in the employment are insufficient to give rise to compensability under FECA).
23

See Paul Trotman-Hall, 45 ECAB 229 (1993).

24

Jack Hopkins, Jr., supra note 22.

9

evidence to establish her allegations.25 The factual evidence fails to support appellant’s claim
that she was harassed by S.N. In a statement dated February 25, 2016, R.B., who attended the
February 24, 2016 meeting did not mention that S.N. yelled or verbally abused appellant, rather
he indicated that appellant interrupted the meeting twice requesting to be excused to attend
training.
With her allegations of harassment, appellant indicated that she was verbally abused.
The Board has held that, while verbal abuse may constitute a compensable factor of employment,
not every statement uttered in the workplace will be covered by FECA. A raised voice in the
course of a conversation does not, in and of itself, warrant a finding of verbal abuse.26
Appellant further alleged that S.N. was confrontational during a telephone conversation a
few weeks before the training in Las Vegas, NV on February 24, 2016. She noted being shaken
after the telephone call and reported the incident to management. This statement is vague with
respect to the time, place, and manner of occurrence.27 Appellant did not provide the date of the
call, describe the content of the conversation, provide witness statements, or other evidence to
corroborate that the incident occurred in the manner described. Although she indicated that she
reported the incident she did not provide copies of the report or any investigation into the
incident. In a May 5, 2016 statement, S.N. denied yelling at appellant on the telephone and
advised that she had addressed appellant’s substandard job performance over recent months.
There is insufficient evidence to establish a compensable work factor in this regard.
Appellant also alleged that at the February 24, 2016 staff meeting S.N. yelled that the
staff was the police and rudely told her, “Do not interrupt my meeting” when she asked to be
excused. She also indicated S.N. yelled at another coworker when he asked a question. After
the meeting, appellant alleged that S.N. yelled at her to erase the recording of the meeting. As
noted, a raised voice in the course of a conversation does not, in and of itself, warrant a finding
of verbal abuse.28 Appellant’s allegation has not been sufficiently corroborated with witness
statements or other evidence to support that the incident occurred as she described. She failed to
state with any specificity what unreasonable demands S.N. made at the meeting or established
that she yelled in a threatening voice. A February 25, 2016, statement from R.B. who sat next to
appellant during the meeting noted that S.N. described that appellant’s work unit had a role in
policing mail processing, but he did not indicate that S.N. yelled at the group which included
appellant. In February 24 and May 5, 2016 statements, S.N. indicated that during the meeting
appellant became disruptive and stated that she did not need to be at the meeting. On another
occasion during the meeting, she reported that appellant was argumentative stating that her
training time was being wasted in the meeting and that she should be allowed uninterrupted

25
See William P. George, 43 ECAB 1159, 1167 (1992) (claimed employment incidents not established where
appellant did not submit evidence substantiating that such incidents actually occurred).
26

C.T., Docket No. 08-2160 (issued May 7, 2009).

27

See M.G. supra note 22.

28

See supra note 26.

10

training time. Appellant did not provide any corroborating or probative evidence to establish
that this rises to the level of compensable verbal abuse or harassment.29
Consequently, appellant has not established her claim for an emotional condition as she
has not attributed her claimed condition to any compensable employment factors.30
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 failed to meet her burden of proof to establish an
emotional condition in the performance of duty.31

29

See F.A., Docket No. 17-0315 (issued July 11, 2017) (appellant described staff meetings that occurred where
she perceived her supervisor was at times singling her out or speaking to her in a condescending tone; the Board
found that appellant provided no probative evidence of harassment or abusive actions by the supervisor).
30

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).
31

When the employing establishment properly executes a Form CA-16 which authorizes medical treatment as a
result of an employee’s claim for an employment-related injury, the Form CA-16 creates a contractual obligation,
which does not involve the employee directly, to pay for the cost of the examination or treatment regardless of the
action taken on the claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days from
the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB
608, 610 (2003).

11

ORDER
IT IS HEREBY ORDERED THAT the November 23, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 21, 2018
Washington, DC

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

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Garden City, NY,
Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1281
Issued: March 6, 2019

Case Submitted on the Record

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

JURISDICTION
On June 12, 2018 appellant, through counsel, filed a timely appeal from a May 30, 2018
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 is whether appellant has met his burden of proof to establish a traumatic injury
causally related to the accepted March 9, 2017 employment incident.
FACTUAL HISTORY
On March 9, 2017 appellant, then a 47-year-old motor vehicle operator, filed a traumatic
injury claim (Form CA-1) alleging that he injured his back when [l]ifting mail bags in the
performance of duty. He stopped work on that day.
In a March 10, 2017 work status note, Dr. Moiz Manaqibwala, a treating orthopedic
surgeon, noted a March 9, 2017 date of injury and a diagnosis of right triangular fibrocartilage
complex (TFCC) tear. He advised that appellant was unable to return to work until further notice.
Appellant was scheduled for a follow-up evaluation on March 22, 2017.
By letter dated March 21, 2017, the employing establishment controverted appellant’s
claim. It noted that the medical evidence submitted did not mention a back injury, but a right
TFCC tear, which was normally associated with an arm/wrist injury.
OWCP subsequently received a March 10, 2017 examination note from Dr. Manaqibwala,
who related that appellant was seen for complaints of back pain radiating into his legs after lifting
70-pound bags at work yesterday. Dr. Manaqibwala reviewed appellant’s history and noted that
appellant had cervical fusion surgery in 2012. Upon examination of appellant’s back,
Dr. Manaqibwala reported bilateral lumbar paraspinal tenderness, midline lumbar tenderness, and
diminished range of motion in all planes. Straight leg raise testing was positive on both sides.
Neurological testing was intact throughout both lower extremities. Dr. Manaqibwala reported that
x-rays of the lumbar spine demonstrated straightening consistent with spasm and disc space
narrowing. He diagnosed lumbar paraspinal muscle spasm and lumbar herniated nucleus
pulposus (HNP).
In a March 22, 2017 examination note, Dr. Manaqibwala indicated that appellant was seen
for follow-up of back pain. He provided examination findings similar to his previous examination
and diagnosed lumbar HNP and lumbar paraspinal muscle spasm. Dr. Manaqibwala completed a
duty status report (Form CA-17), which indicated that appellant was totally disabled.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that following the May 30, 2018 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.

2

Dr. Manaqibwala also completed a March 27, 2017 work capacity evaluation form
(OWCP-5c), which noted a diagnosis of lumbar herniated disc and severe radicular back pain. He
checked a box marked “no” indicating that appellant was unable to work.
By development letter dated April 11, 2017, OWCP informed appellant of the type of
factual and medical evidence needed to establish his claim. It provided a questionnaire for his
completion and requested a narrative medical report from a physician, which included a diagnosis
and a rationalized opinion on causal relationship. It afforded appellant 30 days to submit the
necessary evidence.
On May 2, 2017 appellant responded that he did not have any similar disabilities or
symptoms before the claimed March 9, 2017 employment injury.
Appellant also submitted additional medical reports from Dr. Manaqibwala. In an
April 19, 2017 follow-up examination note and duty status report (Form CA-17), Dr. Manaqibwala
related that appellant’s pain was improving and that he remained off work. He provided
examination findings similar to his previous reports and diagnoses of lumbar strain, lumbar HNP,
and lumbar sprain.
In an April 26, 2017 note, Dr. Manaqibwala diagnosed a lumbar paraspinal muscle spasm.
He opined that “the incident described by the patient was the competent medical cause of the
injury.” Dr. Manaqibwala explained that appellant’s complaints and history of injury were
consistent with his objective findings and with the injury.
By decision dated May 12, 2017, OWCP denied appellant’s claim. It accepted that the
March 9, 2017 incident occurred as alleged, but denied the claim finding that the medical evidence
of record was insufficient to establish that appellant’s diagnosed lumbar conditions and TFCC tear
were causally related to the accepted March 9, 2017 employment incident.
On June 13, 2017 appellant requested a review of the written record by an OWCP hearing
representative. In an undated statement, he asserted that, on March 9, 2017, he was injured on the
job while lifting a 70-pound bag. Appellant noted that his doctor’s notes indicated that his injury
was consistent with his work.
In a May 25, 2017 narrative report, Dr. Manaqibwala related that he first treated appellant
on March 10, 2017 for back pain radiating into his legs after lifting 70-pound bags of mail at work
on March 9, 2017. He noted that appellant had no previous back injuries, but had undergone
cervical fusion surgery in 2012. Dr. Manaqibwala reported that lumbar spine x-rays demonstrated
straightening consistent with spasm and disc space narrowing and degenerative joint disease. He
described his treatment of appellant. Dr. Manaqibwala diagnosed lumbar paraspinal muscle spasm
and lumbar HNP. He opined that appellant’s diagnosed conditions were causally related to the
work incident on March 9, 2017.
OWCP received additional medical reports from Dr. Manaqibwala dated May 31 to
August 23, 2017. Dr. Manaqibwala indicated that appellant continued to complain of back pain,
although it had improved. He again provided examination findings similar to his previous findings
and diagnoses of lumbar paraspinal muscle spasm and lumbar HNP. Dr. Manaqibwala completed

3

a May 31, 2017 duty status report (Form CA-17), which indicated that appellant was unable to
work.
By decision dated October 2, 2017, an OWCP hearing representative affirmed the May 12,
2017 decision. He found that the medical evidence submitted was insufficient to establish that
appellant’s lumbar and wrist conditions were causally related to the accepted March 9, 2017
employment incident.
On March 8, 2018 appellant, through counsel, requested reconsideration. Counsel noted
that he planned to submit a new medical report, dated February 5, 2018, which contained a
rationalized opinion demonstrating causal relationship between appellant’s diagnosed medical
conditions and the March 9, 2017 employment incident.
Appellant continued to receive medical treatment from Dr. Manaqibwala. In reports dated
October 18, 2017 to March 28, 2018, Dr. Manaqibwala noted appellant’s continued symptoms of
improving back pain. He accurately described the March 9, 2017 employment incident and
provided examination findings similar to his previous reports. Dr. Manaqibwala diagnosed lumbar
paraspinal muscle spasm, lumbar HNP, and lumbar radiculopathy.
In a February 5, 2018 note, Dr. Manaqibwala related his first treatment of appellant on
May 10, 2017 and described the May 9, 2017 employment incident. He provided appellant’s
initial examination findings and a detailed description of appellant’s follow-up examinations.
Dr. Manaqibwala diagnosed lumbar paraspinal muscle spasm, lumber HNP, and lumbar
radiculopathy. He opined that appellant’s lumbar spine injury was causally related to appellant’s
lifting of heavy mail while at work on March 9, 2017. Dr. Manaqibwala explained that appellant’s
symptoms and examination findings were subsequent to his injury and consistent with a diagnosis
of lumbar HNP with nerve root irritation. He reported that he had no evidence to believe that this
was due to a preexisting condition.
In a February 28, 2018 narrative statement, appellant explained that on March 9, 2017 he
went to work and was lifting and weighing 70-pound bags of mail. He related that upon lifting a
70-pound bag of mail approximately 5 hours and 55 minutes into his shift, he felt a sudden pain in
his lower back and increasing numbness and pain radiating down his legs.
By decision dated May 30, 2018, OWCP denied modification of the October 2, 2017
decision. It found that the new medical reports by Dr. Manaqibwala failed to explain how the
lifting incident on March 9, 2017 caused or contributed to his lumbar injury.
LEGAL PRECEDENT
A claimant seeking benefits under FECA4 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including the fact that the individual is an employee of the United States within the meaning of
FECA, that the claim was filed within the applicable time limitation, that an injury was sustained
in the performance of duty as alleged, and that any specific condition or disability claimed is
4

Supra note 2.

4

causally related to the employment injury.5 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.6
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.7 Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.8 The second component is whether the employment incident caused a personal
injury.9 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the accepted incident.10
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.11 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.12 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).13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury causally related to the accepted March 9, 2017 employment incident.
Appellant submitted several reports by Dr. Manaqibwala dated March 10, 2017 to
March 28, 2018. In a March 10, 2017 work status report, Dr. Manaqibwala diagnosed right TFCC
tear, with a March 9, 2017 date of injury. He did not opine as to the cause of injury, nor did he
subsequently repeat the right wrist diagnosis. Medical evidence that does not offer an opinion

5

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

6

S.G., Docket No. 18-1373 (issued February 12, 2019); Michael E. Smith, 50 ECAB 313 (1999).

7

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

D.D., Docket No. 18-0648 (issued October 15, 2018); Shirley A. Temple, 48 ECAB 404, 407 (1997).

11

T.H., supra note 7; Robert G. Morris, 48 ECAB 238 (1996).

12

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

13

Id.

5

regarding the cause of an employee’s condition or disability is of no probative value on the issue
of causal relationship.14
In his March 10, 2017 narrative report, Dr. Manaqibwala described that on March 9, 2017
appellant experienced back pain radiating into his legs after lifting a 70-pound bag at work. Upon
initial examination of his lumbar spine, he reported bilateral lumbar paraspinal tenderness, midline
lumbar tenderness, and diminished range of motion in all planes. Straight leg raise testing was
positive on both sides. Dr. Manaqibwala reported that x-ray examination of the lumbar spine
demonstrated straightening consistent with spasm and disc space narrowing. He diagnosed lumbar
paraspinal muscle spasm and lumbar HNP. In a February 5, 2018 narrative report,
Dr. Manaqibwala opined that appellant’s lumbar spine injury was causally related to appellant’s
lifting of heavy mail at work on March 9, 2017. He explained that appellant’s symptoms and
examination findings were subsequent to his injury and was consistent with his diagnosis.
Dr. Manaqibwala reported that he had no reason to believe that appellant’s current symptoms were
due to a preexisting condition. Although these reports contain an affirmative opinion on causal
relationship, the Board finds that they are of diminished probative value because they do not
contain sufficient medical rationale explaining how lifting 70-pound bags of mail at work caused
or contributed to appellant’s lumbar condition.15 Therefore, these reports are insufficient to
establish the claim.
On appeal, counsel argues that Dr. Manaqibwala’s February 5, 2018 report contained a
reasoned medical opinion establishing causal relationship between the accepted March 9, 2017
employment incident and appellant’s diagnosed lumbar condition. As explained above, this report
lacks rationale and is, therefore, insufficient to establish causal relationship.
In order to obtain benefits under FECA an employee has the burden of proof to establish
the essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence.16 Because appellant has not provided sufficient evidence demonstrating that his
diagnosed conditions were causally related to the accepted March 9, 2017 employment incident,
he has not met his burden of proof to establish his traumatic injury claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury causally related to the accepted March 9, 2017 employment incident.

14

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

15

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

16

Supra note 5.

6

ORDER
IT IS HEREBY ORDERED THAT the May 30, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 6, 2019
Washington, DC

Patricia H. Fitzgerald, Deputy 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Brownsville, TX, Employer
__________________________________________

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

Docket No. 07-369
Issued: April 17, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 24, 2006 appellant timely appealed the November 14, 2006 merit decision
of the Office of Workers’ Compensation Programs, which denied his claim. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty.
FACTUAL HISTORY
On March 6, 2006 appellant, a 56-year-old criminal investigator, filed a claim for an
injury to his right heel.1 He stated that his injury occurred while he was on temporary

1

Although the claim is dated March 6, 2006, the employing establishment did not receive it until
August 15, 2006.

assignment in Buenos Aries, Argentina. Appellant explained that the pain in his right Achilles’
heel developed over a period of days.
In response to the Office’s request for additional information, appellant submitted an
October 5, 2006 statement describing the onset of his claimed condition. He explained that he
was on temporary assignment in Argentina from December 2, 2005 until May 26, 2006 and it
was during this time frame that his right heel condition developed. While in Argentina, appellant
worked at the U.S. Embassy. He also worked at a seaport where he provided support for the
Container Security Initiative. Appellant stated that he did not recall any single incident that may
have caused his right heel condition. He reiterated that the pain in his right heel developed over
a period of days.
While in Argentina, appellant sought treatment from an embassy physician,
Dr. Michael A. Heald, who prescribed anti-inflammatory medication. The medication provided
some temporary relief, but the pain ultimately returned. Appellant also saw a local Argentine
physician, who similarly prescribed anti-inflammatory medication. Additionally, appellant
stated that he was an avid runner for 19 years, running between 10 to 12 miles per week.
However, he suspended his running regimen due to his right heel condition. Appellant
reportedly never suffered an injury as a result of his running regimen.
Appellant’s right heel condition persisted following his return to the United States in
May 2006, and soon after he arrived home he sought treatment from his family physician,
Dr. Victor M. Gonzalez. He indicated that a recent x-ray Dr. Gonzalez obtained showed no
fracture. Dr. Gonzalez referred appellant to a podiatrist, who in turn referred him for physical
therapy. Appellant also stated that he had not previously been treated for any lower extremity
condition.
In an October 6, 2006 letter, Dr. Heald stated that he saw appellant in March 2006 for
“left” heel pain, which was probably soft tissue in origin. He prescribed Motrin, ice and
stretching exercises. Dr. Heald also indicated that no x-rays or other laboratory tests were
performed. Appellant departed the post and no further follow up was obtained.
Appellant also submitted treatment records from Dr. Gonzalez’ office dated June 8 and
August 1, 2006, along with an undated x-ray that showed a normal right heel. He was diagnosed
with right heel tendinitis. The June 8, 2006 treatment note indicated that appellant complained
of pain in the posterior portion of the right ankle, which had been present for two to three
months. Appellant reportedly denied any trauma to the right heel. When he returned on
August 1, 2006 with ongoing complaints of pain, he was referred to a podiatrist, Dr. Jose Luis
Ayala.
Dr. Ayala saw appellant on August 3, 2006 and diagnosed calcaneal bursitis and
tendinitis. The history obtained noted that appellant had experienced severe pain in his right heel
since February and that prior attempts to treat the condition with oral anti-inflammatory
medication had been unsuccessful.
Appellant later underwent physical therapy for

2

approximately two months, with little success.2 When Dr. Ayala saw appellant for a follow-up
examination on September 26, 2006, he placed him in a cast below the right knee.
In an October 18, 2006 decision, the Office denied the claim based on appellant’s failure
to establish that he sustained an injury in the performance of duty. Although the Office received
appellant’s October 5, 2006 statement and the accompanying medical evidence on October 17,
2006, this information was not associated with the case record prior to the issuance of the
October 18, 2006 decision.
Appellant requested reconsideration on October 23, 2006. The Office reviewed the
merits of the claim, but denied modification by decision dated November 14, 2006. The Office
found that appellant did not provide a factual statement describing the employment activity or
activities which caused or resulted in his claimed right heel pain. The Office also found that the
record did not include an employment-related diagnosis.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.4
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.5

2

The initial August 7, 2006 physical therapy evaluation report noted that appellant had been experiencing pain
since last March when he was on assignment. The report further indicated that appellant “does not know the
etiology of his pain” and he denied any previous ankle or foot injuries. Also noted was the fact that appellant had
been a consistent runner prior to the onset of his pain.
3

5 U.S.C. § 8101 et seq. (2000).

4

20 C.F.R. § 10.115(e), (f) (2006); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question that can generally be resolved only by rationalized medical opinion evidence. See Robert G.
Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of whether there is a causal relationship between
the claimant’s diagnosed condition and the implicated employment factors must be based on a complete factual and
medical background of the claimant. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, in order to be
considered rationalized, the 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 factors. Id.
5

Victor J. Woodhams, supra note 4.

3

ANALYSIS
Appellant has a diagnosis of right heel tendinitis. However, none of the physicians who
treated him attributed this condition to his employment. Moreover, appellant did not provide a
description of his particular job duties and physical requirements that arguably could have
contributed to his claimed condition. The only information provided was that he was assigned to
the U.S. Embassy in Buenos Aires and he occasionally worked at a local seaport. Where
appellant was physically located is largely irrelevant. His specific duties and what he actually
did at the time of his injury is more pertinent to the current inquiry. Appellant did not recall any
single incident that may have caused his right heel condition. All he noted was that it developed
over a period of days while on assignment in Argentina. The mere fact that a condition
manifests itself during a period of employment is not sufficient to establish causal relationship.6
While appellant presented evidence of a diagnosed medical condition, his claim is
properly denied because he did not identify employment factors alleged to have caused or
contributed to his condition. Moreover, the medical evidence does not establish that the
diagnosed condition is employment related.
CONCLUSION
Appellant failed to establish that he sustained an injury in the performance of duty.

6

20 C.F.R. § 10.115(e); Phillip L. Barnes, 55 ECAB 426, 440 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the November 14, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 17, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
West Orange, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Jeffery P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1019
Issued: December 10, 2007

Case Submitted on the Record

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

JURISDICTION
On March 6, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ schedule award decision dated February 6, 2007. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award decision.
ISSUE
The issue is whether appellant has more than nine percent impairment to his left upper
extremity for which he received a schedule award.
FACTUAL HISTORY
On September 7, 2005 appellant, then a 33-year-old civil aviation security specialist,
sustained traumatic injury to his shoulder while doing “lat” pulldowns in the performance of

duty.1 He did not stop work.2 On November 4, 2005 the Office accepted his claim for left
shoulder subluxation. The Office authorized a left shoulder arthroscopy with arthroscopic labral
repair which was performed on November 10, 2005.
Appellant received appropriate
compensation benefits.
On August 3, 2006 appellant requested a schedule award.
By letter dated September 7, 2006, the Office advised appellant to obtain an assessment
of permanent impairment from a physician based on the American Medical Association, Guides
to the Evaluation of Permanent Impairment, (A.M.A., Guides) (5th ed. 2001). No response was
received.
By decision dated October 19, 2006, the Office denied appellant’s claim for a schedule
award.
By letter dated November 26, 2006, appellant requested reconsideration and enclosed
additional evidence.
In an October 5, 2006 report, Dr. Emmanuele E. Jacob, a Board-certified physiatrist and
treating physician, noted appellant’s history of injury which included a November 10, 2005
procedure for an arthroscopy of the left shoulder with arthroscopic labral repair and arthroscopic
capsulorrhaphy. Appellant’s current complaints included pain in the left shoulder with limited
motion and weakness. Dr. Jacob utilized the A.M.A., Guides and noted that appellant had
muscle weakness of his left shoulder. He determined that appellant had a loss of power deficit
and referred to Tables 16-11 and 16-32.3 Dr. Jacob indicated that appellant had left shoulder
weakness equal to a Grade 4/5 which was equivalent to a “20 percent motor deficit and 35
percent maximum.” For “motor deficient impairment,” he opined that appellant had a 20 percent
impairment which was equal to a “motor deficit severity times 35 percent” for a maximum upper
extremity impairment equal to a “7 percent impairment of the upper extremity.” For loss of
motion, Dr. Jacob referred to Figure 16-404 and determined that appellant had left shoulder
flexion of 150 degrees or a two percent impairment and extension of 35 degrees which was equal
to one percent impairment. He also referred to Figure 16-435 and determined that appellant had
left shoulder abduction of 140 degrees equal to a two percent impairment and adduction of 40
degrees which was equal to zero percent impairment. Dr. Jacob referred to Figure 16-466 and
determined that appellant had left shoulder external rotation of 80 degrees equal to zero percent
1

The record reflects that appellant was participating in a structured physical fitness program authorized by the
employing establishment.
2

The record reflects that appellant has a previous claim for a February 23, 2004 injury to his left shoulder under
File No. A03-2026174. That claim was accepted for “closed dislocation of the left shoulder.”
3

A.M.A., Guides 484, 509.

4

Id. at 476.

5

Id. at 477.

6

Id. at 479.

2

impairment of the left shoulder and left shoulder internal rotation of 70 degrees equal to a one
percent impairment. He referred to Figure 16-347 for left elbow flexion of 140 degrees which
was equal to zero percent impairment and extension of 0 degrees for zero percent impairment.
Dr. Jacob referred to Figure 16-378 and determined that forearm supination of 75 degrees was
equal to zero percent impairment of the upper extremity and forearm pronation of 70 degrees
was equal to one percent impairment of the upper extremity. He referred to Figure 16-289 and
determined that left wrist flexion of 60 degrees was equal to zero percent impairment and
extension of 60 degrees was equal to zero percent impairment. Dr. Jacob also referred to Figure
16-3110 and determined that left wrist radial deviation of 30 degrees was equal to zero percent
impairment and ulnar deviation of 30 degrees was equal to zero percent impairment. He also
indicated that appellant was entitled to an additional impairment for upper limb pain according to
section 18.3D.11 Dr. Jacob added the percentages and determined that appellant had a total 18
percent impairment of the left upper extremity.
In a December 19, 2006 report, the Office medical adviser noted appellant’s history and
reviewed Dr. Jacobs October 5, 2006 report. He noted that the physician did not list any
diagnoses and impairments or abnormalities of the elbow but listed them in his examination and
in his recommendations for a schedule award. The Office medical adviser stated: “[that] this
type injury and shoulder surgery would not be expected to demonstrate any limitation of motion
of the elbow or wrist.” He noted that, if there were objections to elbow and wrist impairment not
being included, he would recommend a second opinion evaluation because the clinical picture
should not be expected to have any abnormalities of the elbow or wrist. The Office medical
adviser referred to Figure 16-4012 for range of motion and noted that left shoulder flexion was
equal to 150 degrees, which was equivalent to two percent impairment and extension of
35 degrees was equal to one percent impairment. He added the measurements and advised that
the impairment was three percent. The Office medical adviser referred to Figure 16-4313 and
determined that appellant had 140 degrees of abduction for two percent impairment and
40 degrees adduction was equivalent to zero percent impairment. He opined that appellant had a
two percent impairment based loss of abduction. The Office medical adviser referred to Figure
16-4614 and noted that for external rotation of 80 degrees appellant was entitled to a zero percent
impairment and internal rotation of 70 degrees was equal to one percent impairment. He
recommended that the measurements for forearm pronation loss of the elbow not be accepted.
The Office medical adviser concurred with Dr. Jacob regarding three percent impairment for
7

Id. at 472.

8

Id. at 474.

9

Id. at 467.

10

Id. at 469.

11

Id. at 573.

12

Id. at 476.

13

Id. at 477.

14

Id. at 479.

3

ongoing pain based upon Figure 18.115 Regarding loss of strength, he explained that it was a
subjective measurement and referred to section 16.816 The Office medical adviser noted that the
use of grip strength as an impairment factor was not encouraged because such measurements
were functional tests influenced by subjective factors that were difficult to control. He also
noted that, the A.M.A., Guides were based on anatomic impairment and that otherwise, the
impairment ratings based on objective anatomic findings take precedence. The Office medical
adviser further noted that strength could only be used in rare cases. He advised that Dr. Jacob
did not include any strength measurements other than indicate that muscle weakness was 4/5 for
the left shoulder. The Office medical adviser also noted that impairments of the upper extremity
due to motor and loss of power deficits could be utilized if they resulted from peripheral nerve
disorders, however, he noted that appellant did not have a peripheral nerve disorder.17 He
concluded that appellant had nine percent impairment of the left upper extremity.
On February 6, 2007 the Office granted appellant a schedule award for a nine percent
impairment of the left upper extremity. The award covered a period of 28.06 weeks from
October 5, 2006 to January 20, 2007.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act18 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.19 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice for all claimants under the law, good administrative practice requires the use of
uniform standards applicable to all claimants.20 The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.21
It is well established that, in determining the amount of the schedule award for a member
of the body that sustained an employment-related impairment, preexisting impairments are to be
included in the evaluation of permanent impairment.22

15

Id. at 574.

16

Id. at 508.

17

Id. at 484.

18

5 U.S.C. §§ 8101-8193.

19

5 U.S.C. § 8107.

20

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

21

A.M.A., Guides (5th ed. 2001); 20 C.F.R. § 10.404.

22

See Eleanor E. Smith, 53 ECAB 292 (2002); Lela M. Shaw, 51 ECAB 372 (2000).

4

ANALYSIS
Appellant’s claim was accepted for left shoulder subluxation and a left shoulder
arthroscopy with arthroscopic labral repair. In support of his schedule award claim, appellant
provided an October 5, 2006 report, from Dr. Jacob his treating physician, who found that
appellant had a total 18 percent impairment to the left upper extremity.23 However, the Board
finds that portions of Dr. Jacob’s report are of diminished probative value as his ratings did not
comply with the A.M.A., Guides. The Board notes that Dr. Jacob properly utilized the A.M.A.,
Guides when finding impairment for lost range of motion of the left shoulder; however, the
remainder of his report was insufficient to support a finding of greater impairment, as his
conclusions are not supported by the protocols followed by the Office.
Dr. Jacob properly determined that appellant had six percent impairment based on loss of
motion to the shoulder. He utilized Figures 16-40, 16-43 and 16-46 of the A.M.A., Guides.24
Dr. Jacob referred to Figure 16-40 and provided findings on examination of left shoulder flexion
of 150 degrees or a two percent impairment and extension of 35 degrees for one percent
impairment.25 He referred to Figure 16-43 for abduction and noted that appellant had
140 degrees of abduction or two percent impairment and adduction of 40 degrees or zero percent
impairment.26 Regarding rotation, Dr. Jacob referred to Figure 16-46 and found that appellant
had 80 degrees of external rotation or zero percent impairment and 70 degrees of internal
rotation for one percent impairment. He added these values which resulted in six percent
impairment for loss of motion. The Office medical adviser concurred with Dr. Jacob’s findings
regarding the loss of motion for the shoulder. The Board finds that this aspect of his impairment
rating complies with the A.M.A., Guides. Appellant has impairment of six percent to the left
upper extremity.
However, the Board finds that the remainder of Dr. Jacob’s report is insufficient to
support a greater impairment. Dr. Jacob indicated that appellant was entitled to an additional
three percent for pain. The Office medical adviser also agreed with Dr. Jacob’s finding that
appellant was entitled to an additional three percent impairment for pain under Chapter 18 of the
A.M.A., Guides. However, the Board notes that according to section 18.3(b) of the A.M.A.,
Guides, “examiners should not use this chapter to rate pain-related impairments for any condition
that can be adequately rated on the basis of the body and organ impairment systems given in
other chapters of the A.M.A., Guides.”27 Dr. Jacob explains why appellant’s pain could not be
adequately rated by other chapters in the A.M.A., Guides. Thus, the Board finds that appellant is
not entitled to the three percent impairment for pain under Chapter 18.
23

The Board notes that he added these values instead of combining the values. The A.M.A., Guides provide that
multiple regional impairments, such as the wrist and the shoulder, should be combined. A.M.A., Guides, paragraph
16.1c, page 438.
24

Id. at 476, 477, 479.

25

Id. at 476.

26

Id. at 477.

27

Id. at 571, (5th ed. 2001); see Mark A. Holloway, 55 ECAB 321 (2004).

5

The remainder of Dr. Jacob’s report is of diminished probative value as he did not
explain how his report conformed with the A.M.A., Guides. He provided a recommendation for
an impairment of seven percent for motor deficit. Although Dr. Jacob referred to Tables 16-11
and 16-32 of the A.M.A., Guides,28 he did not adequately explain how his rating for loss of
strength was made in light of the A.M.A., Guides at 508, section 16.8a. It is noted that decreased
strength can not be rated in the presence of decreased motion, painful conditions, deformities or
absence of parts that prevent effective application of maximum force.29 Furthermore, the Office
medical adviser explained that loss of strength should be graded separately, only if it is based on
an unrelated cause or mechanism, “otherwise, the impairment ratings based on objective
anatomic findings take precedence.”30 He noted that while Dr. Jacob opined that appellant had
muscle weakness of the left shoulder which equated to a 4/5, the treating physician did not
provide any strength measurements. The Office medical adviser also noted that appellant did not
have a “peripheral nerve disorder” and it would be inappropriate to use Table 16-11.31 Thus, the
impairment of seven percent would not be appropriate.
Additionally, the Office medical adviser questioned Dr. Jacob’s finding of one percent
for forearm (elbow) pronation loss to the upper extremity, noting that appellant’s condition was
accepted for a left shoulder subluxation and left shoulder arthroscopy, which would not affect his
wrists or elbow. Dr. Jacobs did not adequately explain why he included these calculations in
light of the accepted shoulder condition. It is well established that, in determining the amount of
the schedule award for a member of the body that sustained an employment-related impairment,
preexisting impairments are to be included in the evaluation of permanent impairment.32
However, there is no specific indication of any preexisting impairment of the arm. Dr. Jacobs
did not provide any additional explanation to support his other findings. Accordingly, the Board
finds that the evidence supports that appellant has no greater impairment than a six percent
impairment of the left upper extremity.
The Board modifies the findings provided by the Office as noted above and finds that
appellant was entitled to an impairment of no more than six percent to the left arm. Appellant
has not submitted any other medical evidence conforming with the A.M.A., Guides establishing
that appellant has a greater schedule award.33

28

A.M.A., Guides 484, 509.

29

Id. at 508, section 16.8a.

30

Id. at 508.

31

Id. at 484.

32

See supra note 22.

33

The Board notes that appellant retains the right to file a claim for an increased schedule award based on new
exposure or on medical evidence indicating that the progression of an employment-related condition, without new
exposure to employment factors, has resulted in a greater permanent impairment than previously calculated.
Linda T. Brown, 51 ECAB 115 (1999).

6

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he has
more than a nine percent impairment of the left arm for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 6, 2007 is affirmed, as modified.
Issued: December 10, 2007
Washington, DC

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

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

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

7