United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baton Rouge, LA, Employer
__________________________________________

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Appearances:
J. Courtney Wilson, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-616
Issued: May 23, 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 January 3, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ November 3, 2006 merit decision denying her claim for an October 22,
2004 injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this
merit decision. Appellant also filed an appeal from the Office’s December 19, 2005 decision
denying another claim she filed on October 4, 2005. Because more than one year has elapsed
between the December 19, 2005 decision and the filing of this appeal on January 3, 2007, the
Board lacks jurisdiction to review that decision.1

1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2). The Board notes that the Office issued a decision on February 16,
2007 concerning the claimed October 22, 2004 injury, after appellant’s filing of an appeal with the Board in this
case. It is well established that the Board and the Office may not have concurrent jurisdiction over the same case
and those Office decisions which change the status of the decision on appeal are null and void. 5 U.S.C. § 8101(2).
Therefore, the February 16, 2007 Office decision is found to be null and void. Douglas E. Billings, 41 ECAB 880,
895 (1990). It is also noted that appellant, on appeal has discussed evidence that was submitted after the
November 3, 2006 Office decision. The Board’s jurisdiction on this appeal is limited to evidence that was before
the Board at the time of the November 3, 2006 decision. 20 C.F.R. § 501.2(c).

ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on October 22, 2004.
FACTUAL HISTORY
On July 11, 2006 appellant, then a 53-year-old mail carrier, filed a traumatic injury claim,
(File Number 16-2116813), alleging that she sustained injury to her neck and right shoulder at
work on October 22, 2004 when she lifted a bucket weighing 20 to 25 pounds.2
In an October 23, 2006 report, Dr. Stephen M. Wilson, an attending Board-certified
orthopedic surgeon, indicated that appellant reported having difficulty with her right shoulder.
He stated that appellant reported that she injured her right shoulder for the first time in 2003 “in
an automobile accident where the arm was hanging out the window” and that she also injured her
neck and right shoulder in another accident in 2004. Dr. Wilson indicated that appellant
exhibited pain upon movement of the right arm and recommended work restrictions including no
lifting more than 10 pounds with the right arm.
In a November 3, 2006 decision, the Office denied appellant’s claim that she sustained an
employment injury on October 22, 2004. The Office found that appellant established the
occurrence of an employment incident on October 22, 2004 in the form of lifting a bucket
weighing 20 to 25 pounds, but that she did not submit sufficient medical evidence to establish
that she sustained an injury due to that incident.3
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing the essential elements of her claim including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and specific condition for which
compensation is claimed are causally related to the employment injury.5 These are the essential

2

Appellant had previously filed an occupational disease claim (File Number 16-2102275) on October 4, 2005 in
which she appeared to attribute her medical problems to a July 9, 2003 motor vehicle accident, the October 22, 2004
lifting incident and various work duties. By decision dated December 19, 2005, the Office denied appellant’s claim
on the grounds that she did not submit sufficient medical evidence in support thereof.
3

Appellant submitted additional evidence after the Office issued its November 3, 2006 decision. The Board’s
jurisdiction on this appeal is limited to evidence that was before the Board at the time of the November 3, 2006
decision. 20 C.F.R. § 501.2(c). Appellant may wish to resubmit such evidence to the Office through the
reconsideration process. See 5 U.S.C. § 8128; 20 C.F.R. §§ 10.605 to 10.607.
4

5 U.S.C. §§ 8101-8193.

5

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

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elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged.7 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.8
The term injury as defined by the Act refers to some physical or mental condition caused by
either trauma or by continued or repeated exposure to or contact with certain factors, elements or
conditions.9
ANALYSIS
Appellant claimed that she sustained injury to her neck and right shoulder at work on
October 22, 2004 when she lifted a bucket weighing 20 to 25 pounds. The Board finds that she
established the occurrence of an employment incident on October 22, 2004 in the form of lifting
a bucket weighing 20 to 25 pounds, but that she did not submit sufficient medical evidence to
establish that she sustained an injury due to that incident.
In support of her claim, appellant submitted an October 23, 2006 report in which
Dr. Wilson, an attending Board-certified orthopedic surgeon, indicated that appellant reported
having difficulty with her right shoulder. Dr. Wilson indicated that she exhibited pain upon
movement of the right arm and recommended work restrictions. This report, however, is of
limited probative value on the relevant issue of the present case in that it does not contain an
opinion on causal relationship.10 Dr. Wilson did not provide an opinion that appellant sustained an
employment injury on October 22, 2004 as alleged. Although he stated that appellant reported
that she injured her right shoulder and neck in an accident in 2004, he did not describe the nature
of the reported injury or the date that it occurred. Dr. Wilson merely made note of the injury as
reported by appellant and he did not provide any opinion whatsoever that she sustained an
employment injury.11
6

Delores C. Ellyett, 41 ECAB 992, 998-99 (1990); Ruthie M. Evans, 41 ECAB 416, 423-27 (1990).

7

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
8

John J. Carlone, 41 ECAB 354, 356-57 (1989); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact
of Injury, Chapter 2.803.2a (June 1995).
9

Elaine Pendleton, supra note 4; 20 C.F.R. § 10.5(a)(14).

10

See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding that medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
11

The Board notes that it is not clear whether Dr. Wilson treated appellant at any point close in time to the alleged
October 22, 2004 injury.

3

Appellant did not submit any other medical evidence prior to the denial of her claim on
November 3, 2006. For these reasons, the Office properly denied her claim that she sustained an
injury in the performance of duty on October 22, 2004.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty on October 22, 2004.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
November 3, 2006 decision is affirmed.
Issued: May 23, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.H., Appellant
and
U.S. POSTAL SERVICE, KANSAS CITY
PROCESSING & DISTRIBUTION
CENTER/FACILITY, Kansas City, MO,
Employer
__________________________________________

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

Docket No. 21-1133
Issued: February 25, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 20, 2021 appellant, through counsel, filed a timely appeal from a June 30, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On November 9, 2020 appellant, then a 46-year-old mail handler technician, filed an
occupational disease claim (Form CA-2) alleging that she developed right carpal tunnel syndrome
(CTS) due to factors of her federal employment. OWCP assigned this claim File No. xxxxxx998. 3
Appellant noted that she first became aware of her condition on October 3, 2017 and realized its
relationship to her federal employment on November 3, 2020.
In a November 3, 2020 statement, appellant noted that she underwent an electromyogram/
nerve conduction velocity (EMG/NCV) study on October 3, 2020, which diagnosed right CTS due
to repetitive motion of her right hand and wrist including gripping, lifting, pushing, and grasping
equipment, tubs, and letter trays. Additionally, she noted that her thumb had been locking up.
OWCP, in a November 23, 2020 development letter, informed appellant that the evidence
of record was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. In a separate development letter
of even date, OWCP requested that the employing establishment provide a copy of appellant’s
position description and physical requirements of her job. It afforded both parties 30 days to
respond. No additional evidence was received from either party.
By decision dated December 28, 2020, OWCP denied appellant’s occupational disease
claim, finding that the evidence of record was insufficient to establish the alleged factors of
employment, therefore, the factual component of fact of injury had not been established. It
concluded, therefore, that she had not met the requirements to establish an injury as defined under
FECA.
On January 6, 2021 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
OWCP subsequently received medical evidence by Dr. Prem Parmar, an attending Boardcertified orthopedic surgeon. In a letter dated May 3, 2017, Dr. Parmar noted a history of
appellant’s April 22, 2017 employment injury and reported findings on physical examination. He
provided an impression that she probably re-aggravated her previous work-related right shoulder
injury.

3

The record indicates that appellant has prior claims. In OWCP File No. xxxxxx209, OWCP accepted her May 29,
2001 traumatic injury claim (Form CA-1) for right shoulder/upper arm/rotator cuff sprain. In a December 5, 2002
decision, OWCP granted appellant a schedule award for eight percent permanent impairment of the right upper
extremity. In OWCP File No. xxxxxx328 OWCP accepted her April 22, 2017 traumatic injury claim for cervical
strain at the right trapezius muscle. See infra note 4.

2

In progress notes dated May 3, 2017 through February 3, 2021, Dr. Parmar discussed
findings on physical examination of appellant’s shoulders and hands. In an October 14, 2020
progress note, he provided an assessment that she was status quo with respect to her right and left
shoulders. Dr. Parmar also assessed that appellant had right CTS based on an EMG/NCV study,
his physical examination findings, and her complaints of discomfort radiating proximally and
numbness and tingling in her hand. Further, he provided an assessment that she had right thumb
A1 pulley pain. Dr. Parmar opined that appellant’s right CTS and right trigger thumb were caused
by her repetitive work duties of gripping, grasping, pulling, and pushing that she performed over
the past two decades.
In work status notes also dated May 3, 2017 through February 3, 2021, Dr. Parmar
diagnosed right shoulder impingement. He advised that appellant could return to work with the
temporary restrictions of no use of her right arm above the chest, and no lifting, pushing, or pulling
more than 20 pounds.
OWCP also received diagnostic test reports. In an October 3, 2017 cervical spine magnetic
resonance imaging (MRI) scan report, Dr. Jeffrey Herman, a Board-certified diagnostic
radiologist, provided impressions of minimal annular disc bulging resulting in mild central canal
stenosis and mild bilateral foraminal narrowing at C3-4; and mild broad-based posterior disc
osteophyte formation and bilateral uncovertebral osteophyte formation resulting in moderate left
foraminal narrowing, mild right foraminal narrowing, and mild central at C5-6.
Dr. Scott Sher, a Board-certified diagnostic radiologist, performed a right shoulder MRI
scan arthrogram on October 20, 2017 and provided impressions of possible minimal supraspinatus
tendinopathy without a tendon tear, no labral tear, and possible minimal subdeltoid/subacromial
bursitis.
In an October 7, 2020 diagnostic test report, Dr. Kelly Own, a Board-certified physiatrist,
indicated that an EMG/NCV study of appellant’s right upper extremity revealed moderate right
median sensorimotor neuropathy across the wrist, and no electrodiagnostic evidence of cervical
radiculopathy, brachial plexopathy, or peripheral neuropathy.
During the telephonic hearing held on April 19, 2021, appellant again described the
repetitive work duties to which she attributed her claimed conditions. Additionally, she testified
that she had previously sustained a right shoulder injury in 2001 and a back injury in 2017.
Appellant further testified that in the summer of 2020 she began treating with Dr. Parmar for her
right-hand symptoms and that he diagnosed right CTS and right trigger thumb.
Following the hearing, OWCP received progress notes by Dr. Parma. In a March 17, 2017
progress note, Dr. Parmar reported appellant’s complaints of intermittent bilateral shoulder issues
and increasing right hand stiffness, numbness and tingling. He discussed examination findings,
noting a positive compression test on the right and negative on the left.
Dr. Parmar, in a June 9, 2021 progress note, related that appellant’s right lateral elbow
complaints were a bigger concern than her bilateral shoulder complaints. He noted that she had
been performing increased repetitive activities at work. Dr. Parmar also noted that appellant

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noticed pain in the right elbow. He provided an impression that she had right tennis elbow due to
her repetitive work activities.
By decision dated June 30, 2021, an OWCP hearing representative affirmed OWCP’s
December 28, 2020 decision, finding that the evidence of record was sufficient to establish the
alleged employment factors. The claim remained denied, however, as the medical evidence of
record was insufficient to establish that appellant’s diagnosed medical conditions were causally
related to the accepted employment factors.4
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 7 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. 8
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence o f the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors. 9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 10 The opinion of the physician must be based on a complete factual
4

The hearing representative also directed OWCP to administratively combine appellant’s prior claims for right
shoulder and neck injuries under OWCP File Nos. xxxxxx209 and xxxxxx328 with the present claim, OWCP File No.
xxxxxx998 in accordance with OWCP’s procedures. The Board notes that the electronic case record as transmitted
to the Board indicates that OWCP administratively combined appellant’s claims under OWCP File Nos. xxxxxx209,
xxxxxx328, and xxxxxx998 with OWCP File No. xxxxxx209 serving as the master file.
5

Supra note 2.

6

S.S., Docket No. 19-1815 (issued June 26, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
7

M.H., Docket No. 19-0930 (issued June 17, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
8

S.A., Docket No. 19-1221 (issued June 9, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C.
Ellyett, 41 ECAB 992 (1990).
9

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
10

L.F., Docket No. 19-1905 (issued April 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

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and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. 11
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.
In support of her claim, appellant submitted reports from Dr. Parmar, who indicated that
he had treated appellant for her bilateral shoulders and hands, and right thumb and elbow
conditions. In a March 17, 2017 progress note, Dr. Parmar reported examination findings,
including a positive compression test on the right and negative on the left. In a progress note dated
October 14, 2020, he reported findings on physical examination and reviewed EMG/NCV study
results and appellant’s employment duties, which consisted of gripping, grasping, pulling, and
pushing over the past two decades. Dr. Parmar assessed right CTS and right trigger thumb. He
opined that appellant’s diagnosed conditions were caused by the accepted employment factors.
Dr. Parmar, in a June 9, 2021 progress note, provided an impression that appellant had right tennis
elbow due to her repetitive work activities. While he provided an affirmative opinion on causal
relationship, he did not offer medical rationale to explain why he believed appellant’s accepted
employment duties could have resulted in or contributed to her diagnosed conditions. The Board
has held that a medical opinion must explain how the implicated employment factors
physiologically caused, contributed to, or aggravated the specific diagnosed conditions. 13 Without
explaining how or why gripping, grasping, pulling, and pushing over the past two decades caused
or aggravated appellant’s right wrist and thumb conditions, Dr. Parmar’s progress notes are of
limited probative value and, thus, insufficient to establish appellant’s burden of proof.14
Dr. Parmar noted in his May 3, 2017 letter that appellant “probably” re-aggravated her
prior work-related right shoulder injury. This opinion is speculative in nature as he identified only
a possible cause of the aggravation. The Board has held that medical opinions that are speculative

11

A.S., Docket No. 19-1955 (issued April 9, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
J.D., Docket No. 20-0404 (issued July 22, 2020); K.G., Docket No. 18-1598 (issued January 7, 2020); M.S., Docket
No. 19-0913 (issued November 25, 2019).
13

See R.P., Docket No. 20-0661 (issued April 14, 2021); R.L., Docket No. 21-0397 (issued September 7, 2021);
B.S., Docket No. 20-0927 (issued January 29, 2021); A.P., Docket No. 19-0224 (issued July 11, 2019).
14

Id.

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or equivocal are of diminished probative value. 15 Thus, the Board finds that Dr. Parmar’s May 3,
2017 letter is insufficient to meet appellant’s burden of proof.
Dr. Parmar’s remaining work status notes dated May 3, 2017 through February 3, 2021
addressed appellant’s right shoulder impingement, work capacity, and restrictions, but failed to
offer a medical opinion addressing whether the diagnosed condition and resultant work restrictions
were causally related to the accepted employment factors. Medical evidence that does not offer
an opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship. 16 Therefore, the Board finds that this evidence is insufficient to establish
appellant’s claim.
Appellant also submitted diagnostic test reports. However, diagnostic studies, standing
alone, lack probative value on the issue of causal relationship as they do not address whether
employment factors caused the diagnosed condition. 17
As the record does not contain rationalized medical opinion evidence sufficient to establish
causal relationship, the Board finds that appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.

15

See D.B., Docket No. 20-0775 (issued July 28, 2021); R.P., supra note 13.

16

E.G., Docket No. 20-1191 (issued April 5, 2021); K.G., Docket No. 20-0625 (issued November 6, 2020); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
17

C.A., Docket No. 21-0601 (issued November 15, 2021); K.R., Docket No. 20-1103 (issued January 5, 2021); F.S.,
Docket No. 19-0205 (issued June 19, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the June 30, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 25, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Mission Valley, CA, Employer
__________________________________________

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Appearances:
Max Gest, Esq., for the appellant1
Office of Solicitor, for the Director

Docket Nos. 15-0972 &
15-1005
Issued: September 27, 2016

Case Submitted on the Record

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

JURISDICTION
On March 17, 2015 appellant, through counsel, filed a timely appeal from two
December 4, 2014 merit decisions of the Office of Workers’ Compensation Programs (OWCP).2

1

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

When counsel filed the appeals on March 17, 2015, the employee was living. Counsel timely requested an oral
argument. On June 15, 2016 the Board issued an order granting the request for oral argument. In a July 26, 2016
letter, counsel advised the Board that the employee died in October 2015. He withdrew his request for oral
argument and requested that the Board issue a decision on the written record. Counsel requested that the Board
consider both claims conjunctively. He requested that the employee’s son be substituted as appellant and provided
documentation that the son was appointed trustee of the employee’s estate. A proper appeal having been filed and a
representative designated, the appeal may proceed to adjudication. Lorie C. Josey, 25 ECAB 85 (1973) (designated
representative of deceased appellant requested a decision by the Board); see Albert F. Kimbrell, 4 ECAB 662 (1952)
(appellant’s widow sought to be substituted as his representative for the purpose of pursuing his appeal).

Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the employee met his burden of proof to establish total
disability for work commencing October 1, 2010 due to accepted degenerative cervical disc
disease and a cervical spine sprain under OWCP File No. xxxxxx336; and (2) whether he met his
burden of proof to establish bilateral carpal tunnel syndrome, bilateral ulnar neuritis at Guyon’s
canal, and right cubital tunnel syndrome causally related to factors of his federal employment
under OWCP File No. xxxxxx457.
FACTUAL HISTORY
OWCP accepted that on or before January 22, 2008 the employee, then a 66-year-old
orthopedic surgeon on a five-year, fee-based appointment, sustained a cervical spine sprain and
cervical degenerative disc disease in the performance of duty, caused by repetitive writing,
typing, and the stresses of performing physical examinations. The employee stopped work on
September 30, 2010, the day his fee-basis appointment ended. He was not offered a new
appointment.4 The employee did not return to work. OWCP assigned the claim File No.
xxxxxx336.
The employee provided records regarding preexisting cervical spine injuries. He
sustained a right paracervical muscle strain in a June 3, 2000 motor vehicle collision. On
July 27, 2001 the employee fell asleep while driving and was involved in a roll-over accident.
Dr. Thomas Webster, Board-certified in emergency medicine, diagnosed an acute neck strain
with preexisting degeneration of the C4 disc, chronic cervical spondylosis, and bilateral neural
foraminal stenosis at C6-7.
Dr. Joel Heiser, an attending Board-certified orthopedic surgeon, provided a January 22,
2008 report diagnosing preexisting cervical degenerative disc disease. He related the employee’s
complaints of neck pain when he used a computer or telephone at work. Dr. Heiser permanently
limited the employee to using a computer for no more than 10 minutes an hour, and “continue
using the current dictating system.” He renewed these restrictions on December 15, 2009.5
In an August 31, 2010 report, Dr. Heiser noted that the employee was involved in a
July 18, 2010 motor vehicle accident, increasing his neck pain and headaches. He diagnosed
multilevel cervical spine degenerative disc disease, “aggravated by recent MVA [motor vehicle
accident], July 18, 2010.” Dr. Heiser recommended continued restrictions. On December 20,
2010 he explained that despite three cervical spine injuries in motor vehicle accidents, the
employee attributed his neck symptoms to computer use and repeated neck flexion at work.
3

5 U.S.C. § 8101 et seq.

4

In a September 23, 2010 letter, the employing establishment advised the employee that his fee-basis
appointment expired on September 30, 2010. His services would not be continued as his appointment would expire.
5

A July 30, 2010 magnetic resonance imaging (MRI) scan showed multilevel cervical degenerative disc disease
without focal disc herniations.

2

Dr. Heiser diagnosed “[a]ggravation of DDD [degenerative disc disease] of the C[ervical]-spine
from work at the [employing establishment] in the past few years.”
Dr. Neville Alleyne, an attending Board-certified orthopedic surgeon, provided a
January 27, 2011 report relating the employee’s contention that his intermittent neck pain, due to
motor vehicle accidents in 2000 and 2001, increased when the employing establishment switched
to a computer-based report system in 2008. The employee was in a rear-end collision on July 18,
2010, causing an exacerbation of neck pain. On examination Dr. Alleyne found limited cervical
motion, a positive Tinel’s sign at the right elbow, and point tenderness over the mid-to-lower
cervical spine. He diagnosed preexisting degenerative disc disease without evidence of
radiculopathy or myelopathy, mild exacerbation of neck pain due to June 2000, March and
July 2001, and July 18, 2010 motor vehicle accidents, and a “significant exacerbation in neck
pain by medical examination for [employing establishment] patients over the last five years.”
Dr. Alleyne opined that performing examinations, documenting range of motion “for hands, and
doing a lot of repetitive bending,” carrying charts, reading charts, and reading x-rays, “resulted in
extreme exacerbations in his neck pain, headaches and pain radiating into his shoulders.” He
found appellant permanently disabled from these activities.
In a May 23, 2011 progress note, Dr. Alleyne commented that, although the employee
had retired, he continued to experience neck pain with any prolonged flexion. On October 6,
2011 Dr. Alleyne newly reported that the employee sustained an unspecified occupational injury
on January 22, 2008. He reasoned that the employee’s work tasks were the primary cause of his
continuing condition as his symptoms decreased after the car accidents, but he “continued to
experience daily symptomatology with cervical flexion and extension while reviewing charts and
working on the computer keyboard.”
On September 12, 2011 the employee filed a claim for ongoing total disability
compensation (Form CA-7) commencing October 1, 2010.
By decision dated January 12, 2012, OWCP denied the claim for disability compensation
on and after October 1, 2010, based on a lack of medical evidence supporting causal relationship.
The employee disagreed and, in a January 31, 2012 letter, through counsel, requested an oral
hearing before a representative of OWCP’s Branch of Hearings and Review.
At the hearing, conducted telephonically on March 26, 2012, the employee noted that he
retired from medical practice in 1988, but accepted an appointment with the employing
establishment in 2005. He used January 22, 2008 as the date of injury as this was the date that
Dr. Heiser first provided work restrictions for computer use. The employee provided additional
medical evidence.6
In an August 27, 2010 report, Dr. Stephen P. Nichols, an attending Board-certified
orthopedic surgeon, related the employee’s account of a July 18, 2010 motor vehicle accident,
with “excruciating neck pain” at impact. The employee explained that, since the accident, it was
“much more difficult for him” to write reports at work. The employee also described June 2000,
March and July 2001 car accidents, with neck pain after the second incident. On examination
6

Following the hearing, counsel submitted a March 20, 2012 brief asserting that the employee was entitled to
compensation based on the reports of his attending physicians. He also provided minor corrections to the hearing
transcript on April 12, 2012.

3

Dr. Nichols noted a normal cervical lordosis, midline tenderness to palpation from the occiput to
C7, and limited cervical motion. He diagnosed cervical sprain/strain syndrome with concurrent
degenerative disc disease.
The employee provided a request for reasonable accommodation (Americans with
Disabilities Act Checklist) which he signed on August 31, 2010. In an attached statement, the
employee explained that he had degenerative cervical disc disease. He requested to continue to
use the dictation system rather than change to voice recognition software, which created errors
necessitating long periods of computer use to correct. This form was not signed or
acknowledged by the employing establishment.
In a February 28, 2012 report, Dr. Jacob E. Tauber, an attending Board-certified
orthopedic surgeon, noted appellant’s June 2000, March 2001, and July 2010 motor vehicle
accidents, and related the employee’s account of dictating reports and conducting evaluations at
work. On examination Dr. Tauber observed restricted cervical motion, and a positive right elbow
Tinel’s sign. He diagnosed a permanent aggravation of multilevel cervical degenerative disc
disease with facet arthropathy. Dr. Tauber noted that cervical flexion while performing data
entry or examinations at work aggravated the degenerated cervical discs and facets. He opined
that the increase in the employee’s workload during the final year of his employment exceeded
his “capacities from an anatomic standpoint,” causing a permanent aggravation.
By decision dated June 11, 2012 under File No. xxxxxx336, an OWCP hearing
representative set aside OWCP’s January 12, 2012 decision and remanded the case for referral to
a second opinion specialist. OWCP found that Dr. Tauber’s opinion was of sufficient probative
value to require further development.
On September 7, 2012 OWCP obtained a second opinion from Dr. David Easley, a
Board-certified orthopedic surgeon. Dr. Easley reviewed the medical record and a statement of
accepted facts. He noted the history of June 2000, March 2001, and July 2010 motor vehicle
accidents, and a January 22, 2008 “cervical sprain with aggravation of cervical degenerative disc
disease due to his work-related activities as a physician, specifically, conducting physical
examinations, taking notes, dictating, and using a computer.” On examination Dr. Easley noted
severely restricted cervical motion, and a positive Tinel’s sign at the medial elbow bilaterally.
He diagnosed cervical degenerative disc disease and severe bilateral ulnar neuritis at Guyon’s
canal. Dr. Easley opined that as the employee was asymptomatic prior to January 22, 2008, his
work duties “aggravated the underlying cervical degenerative disc disease.” He found that the
aggravation was permanent, “predicated upon the fact that his symptoms of cervical pain, if any,
were minimal prior to the commencement of this type of work.” Dr. Easley opined that the
employee was totally and permanently disabled.
Dr. Alleyne provided an August 29, 2012 update, diagnosing “advanced cervical
spondylosis without radiculopathy or myelopathy.” He opined that appellant “had a preexisting
condition aggravated by his employment, which has now resulted in him having chronic
disabling cervical pain.” On April 3, 2013 Dr. Alleyne opined that work factors permanently
aggravated the employee’s cervical spine condition because his symptoms increased during his
federal employment. He found appellant totally and permanently disabled for work beginning
October 1, 2010 due to an increase of symptoms.

4

Dr. Tauber noted on February 25, 2013 that electrodiagnostic tests were needed to
determine whether the employee’s upper extremity symptoms were due to his cervical spine
condition or to peripheral nerve entrapment.7 On June 18, 2013 he diagnosed cervical disc
disease, cervical radiculopathy, bilateral carpal tunnel syndrome, bilateral Guyon’s canal
entrapment, right cubital tunnel syndrome, right medial epicondylitis, and left lateral
epicondylitis. Dr. Tauber opined that the employee had a “classic double crush syndrome,” with
peripheral and cervical spine nerve entrapments.
On July 8, 2013 the employee filed a claim for ongoing wage-loss compensation (Form
CA-7) commencing October 1, 2010 under File No. xxxxxx336. As the form did not contain
wage information, on July 15, 2013 OWCP requested additional information from the employing
establishment regarding his wages and benefits.8
On August 7, 2013 the employee filed an occupational disease claim (Form CA-2)
alleging that he sustained bilateral carpal tunnel syndrome, right cubital tunnel syndrome, and
bilateral ulnar neuritis at Guyon’s canal in the performance of duty on or before
September 7, 2010. OWCP assigned the claim File No. xxxxxx457. The employee asserted that
the reports of Dr. Tauber and Dr. Easley, submitted under File No. xxxxxx336, were sufficient to
establish causal relationship. The employing establishment controverted the claim, noting that
the he did not report “any type of work-related injury or illness” before the end of his
appointment on September 30, 2010.
In a September 12, 2013 letter, OWCP advised the employee of the additional evidence
needed to establish his wage-loss claim under File No. xxxxxx336. It noted that the medical
record did not explain how he became disabled for work on October 1, 2010, although he
performed full duty to the end of his appointment on September 30, 2010.
In an October 4, 2013 letter, OWCP advised the employee of the type of additional
evidence needed to establish his claim for upper extremity conditions. It requested a rationalized
report from his attending physician, and the employee’s statement on the etiology of the claimed
conditions.
The employee provided a statement noting that he worked from two to four days a week
during his appointment, with dictation at home taking an additional two days a week. He first
noticed right elbow problems in 2009, but did not receive a diagnosis until he saw Dr. Easley in
2012. The employee submitted additional reports from Dr. Tauber, finding his condition
unchanged. On October 21, 2013 Dr. Tauber opined that repetitive work duties caused and
permanently aggravated the employee’s bilateral carpal tunnel syndrome, bilateral ulnar neuritis
at Guyon’s canal, and right cubital tunnel syndrome.
7

June 12, 2013 ultrasound studies showed left elbow arthritic changes and edema with microruptures of the right
common flexor tendon. June 3, 2013 nerve conduction velocity and electromyography studies demonstrated
moderate bilateral carpal tunnel syndrome, bilateral moderate ulnar nerve compression at Guyon’s canal, and right
moderate ulnar compression at or near the medial epicondyle.
8

The employee provided documents indicating that he received approximately $19,800.00 in unemployment
insurance benefits from October 17, 2010 to September 17, 2011, after his five-year appointment ended on
September 30, 2010. The employee continued to file wage-loss compensation claims for the period November 4,
2013 to July 1, 2014.

5

By decision dated November 19, 2013, OWCP denied the claim for bilateral upper
extremity conditions under File No. xxxxxx457. It accepted that the employee wrote notes,
dictated reports, used a computer, and performed examinations as alleged. OWCP found,
however, that the employee’s physicians did not sufficiently explain how and why the accepted
work factors would cause the claimed conditions.
By decision dated November 22, 2013 under File No. xxxxxx336, OWCP denied
appellant’s claim for compensation commencing October 1, 2010, finding that the medical
record did not establish a spontaneous worsening of the accepted conditions on or about that
date. It found that the employee stopped work on October 1, 2010 because his appointment
ended on September 30, 2010, not because of an objective worsening of the accepted cervical
sprain and degenerative cervical disc disease.
In December 2, 2013 letters, counsel requested an oral hearing regarding the
November 19 and 22, 2013 decisions.9
At the hearing, held September 10, 2014, the employee explained that he retired from
medical practice in 1988, but then worked at the employing establishment from September 2005
to September 2010. He contended that he did not have cervical spine symptoms prior to working
at the employing establishment and he first developed upper extremity symptoms in 2008. The
employee stated that he had an implied agreement with his supervisor permitting him to use the
dictation service in return for being assigned more difficult cases. He alleged that the employing
establishment ignored his August 2010 request for reasonable accommodations.
Following the hearing, counsel provided comments to the hearing transcript. He also
submitted a May 25, 2010 appraisal from Dr. Hong B. Huynh, the employee’s supervisor, noting
that Dr. Heiser permanently restricted the employee to using the computer no more than 10
minutes an hour. Dr. Huynh explained that the unit staff was required to transition from
dictating reports to using computer templates, significantly increasing the physician’s computer
usage. The employee also submitted a copy of the physical examination protocol he performed
at work, detailing the measurements needed to assess each joint, and sample chart notes with
identifying information blocked out.
In a December 17, 2013 report, Dr. Tauber opined that repetitive writing, handling paper,
computer keyboarding, and “copying” caused the employee’s peripheral nerve entrapments. He
concluded that the employee’s ongoing cervical spine symptoms were “unquestionably” work
related. He contended that the employee should not be penalized for being misdiagnosed with
cervical radiculopathy, whereas electrodiagnostic studies later established peripheral nerve
entrapment. On February 19, 2014 Dr. Tauber reiterated that the employee had objective
electrical studies confirming bilateral carpal tunnel syndrome, right cubital tunnel syndrome, and
bilateral ulnar neuritis at Guyon’s canal. He attributed these conditions to repetitive arm motions
while keyboarding, preparing reports, making notes, and examining patients. Dr. Tauber noted
on August 19, 2014 that the employee remained unchanged.
9

Counsel submitted a July 21, 2014 brief, asserting that the medical evidence was sufficient to establish that the
employee was totally disabled for work on and after October 1, 2010 due to the accepted cervical conditions. He
also contended that the August 31, 2010 request for accommodation established that the employing establishment
was aware that the upper extremity conditions claimed under File No. xxxxxx457 were also work related.

6

By decision dated December 4, 2014 under File No. xxxxxx336, an OWCP hearing
representative affirmed OWCP’s November 22, 2013 decision, finding that the medical and
factual evidence did not demonstrate that the employee was disabled for work on and after
October 1, 2010 due to factors of his federal employment. The hearing representative noted that,
although the employee asserted at the hearing that he did not have neck symptoms prior to
beginning work in September 2005, the medical record established that he did. Additionally, the
employee worked full duty with no limitations for more than two years prior to stopping work at
the end of his appointment.
By decision dated December 4, 2014 under File No. xxxxxx457, an OWCP hearing
representative affirmed OWCP’s November 9, 2013 decision, finding that the medical and
factual evidence was insufficient to establish that work factors caused or aggravated any upper
extremity condition. The hearing representative found that there was no contemporaneous
medical evidence for the period September 2005 to September 2010 documenting any upper
extremity condition.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA10 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general, the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”11 This meaning, for brevity, is expressed as disability for
work.12 For each period of disability claimed, the employee has the burden of proving that he
was disabled for work as a result of the accepted employment injury.13 Whether a particular
injury caused an employee to be disabled for employment and the duration of that disability are
medical issues which must be proved by the preponderance of the reliable, probative, and
substantial medical evidence.14
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision and must be remanded for
further development.
OWCP accepted that the employee sustained a cervical spine sprain and cervical
degenerative disc disease in the performance of duty on or before January 22, 2008. His fiveyear appointment ended on September 30, 2010, at which time he stopped work and did not

10

5 U.S.C. § 8102(a).

11

20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548
(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
12

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

13

See William A. Archer, 55 ECAB 674 (2004).

14

See Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

7

return. On September 12, 2011 the employee filed a claim for total disability compensation
beginning October 1, 2010.
The employee submitted medical evidence in support of his claim. Dr. Heiser limited
computer use to 10 minutes an hour as of January 22, 2008. He opined that a July 18, 2010
motor vehicle accident aggravated the employee’s degenerative disc disease. However,
Dr. Heiser did not indicate that the employee’s accepted cervical conditions worsened as of
October 1, 2010, or that he was totally disabled for work as of that date. His opinion is therefore
of diminished value in establishing the claimed period of disability.
Dr. Nichols noted on August 27, 2010 that the employee related that after experiencing
“excruciating neck pain” in the July 18, 2010 motor vehicle accident, it was “much more
difficult for him” to write reports at work. Although he did not specifically address the
employee’s condition as of September 30, 2010, he clearly opined that the employee’s symptoms
as of late August 2010 were attributable to the July 18, 2010 motor vehicle accident and not to
work factors. Dr. Nichols’ opinion thus tends to negate the employee’s assertion of causal
relationship.
Dr. Alleyne opined on January 27, 2011 that the employee’s cervical spine pain was
aggravated by 2000, 2001, and 2010 motor vehicle accidents and by examining patients at the
employing establishment. He reported that the employee stopped work on October 1, 2010 as
his symptoms had been increasing. However, Dr. Alleyne did not find an objective change in the
accepted conditions as of October 1, 2010. Also, although he noted that neck flexion continued
to cause cervical spine pain two years after the employee stopped work, he did not attribute the
employee’s continuing symptoms to work factors.15
Dr. Tauber first examined the employee on February 28, 2012. He opined that cervical
flexion at work permanently aggravated cervical degenerative disc disease, but did not
specifically address whether the employee was disabled for work as of October 1, 2010.
Dr. Tauber’s opinion is of little relevance in establishing the claimed period of disability as he
provided no opinion on that specific issue.16
The employee also submitted factual evidence which he asserted established partial
disability for work prior to September 30, 2010. In a May 25, 2010 appraisal, Dr. Huynh, the
employee’s supervisor, noted that Dr. Heiser limited the employee’s computer use to 10 minutes
an hour, but that unit staff would soon be required to type their reports rather than dictate them.
However, Dr. Huynh did not indicate that the employee was on limited or modified duty. On
August 31, 2010 one month before his appointment ended on September 30, 2010, the employee
signed a Request for Reasonable Accommodation. However, the employing establishment did
not sign or acknowledge the request. There is no evidence that the employing establishment
received or considered it.
OWCP undertook further development of the claim to determine whether appellant had
established the conditions of bilateral carpal tunnel surgery, bilateral ulnar neuritis at Guyon’s

15

See W.S., Docket No. 15-0602 (issued August 11, 2016); Willie M. Miller, 53 ECAB 697, 701 (2002).

16

Id.

8

canal, and right cubital tunnel syndrome in the performance of duty and whether he was totally
disabled commencing October 1, 2010.
Appellant was referred to Dr. Easley, for a second opinion, to determine the relationship
between the injury and the claimed employment factors. Dr. Easley opined on September 7,
2012 that, because the employee’s cervical degenerative disc disease was asymptomatic prior to
January 22, 2008, his work duties must have aggravated the condition. He found the employee
permanently disabled for work on that basis. While the Board has held that a temporal
relationship alone is insufficient to establish causal relationship,17 the Board further finds that
Dr. Easley’s second opinion report is based upon an accurate medical history, his review of the
statement of accepted facts, and provides an unequivocal opinion supportive of the employee’s
claim. While he failed to provide a sufficiently well-reasoned medical opinion in support of
causation of additional medical conditions and commencement of total disability, he nonetheless
provided opinions sufficient to require further development of the issues.18
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 responsibility in the development of the evidence to see that justice is done. Once it
undertakes development of the record, it must do a complete job in procuring medical evidence
that will resolve the relevant issues in the case.19
When OWCP selects a physician for an opinion on the employee’s employment-related
injury, it has an obligation to secure, if necessary, clarification of the physician’s report and to
have a proper evaluation made.20 Because it referred the employee to a second opinion
physician, it has the responsibility to obtain a report that will resolve the issue of whether he
developed further medical conditions or was totally disabled from work.21 After receiving
Dr. Easley’s September 7, 2012 report, OWCP was required to seek clarification on those
aspects of his medical opinion report that lacked sufficient rationale. As it did not do so, OWCP
did not properly discharge its responsibilities in developing the record.22 Without such
information, an informed decision cannot be reached on the relevant issue.
The Board finds that OWCP failed to fully develop the employee’s claim once it
determined that a second opinion examination was required in the case. Therefore, the two
December 4, 2014 merit decisions will be set aside and remanded for further development of the
medical evidence and a reasoned opinion from Dr. Easley as to the issues of medical conditions
causally related to the stipulated work duties and the period of total disability, if any, causally

17

Louis R. Blair, Jr., 54 ECAB 348 (2003).

18

See E.J., Docket No. 09-1481 (issued February 19, 2010); John J. Carlone, 41 ECAB 354 (1989).

19

William J. Cantrell, 34 ECAB 1223 (1983).

20

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

21

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

22

Richard F. Williams, 55 ECAB 343 (2004).

9

related all accepted conditions in the claim.23 Following any necessary further development,
OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 4, 2014 are set aside and remanded for further
development.
Issued: September 27, 2016
Washington, DC

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

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

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

23

Due to the Board’s finding as to the lack of proper claim development, both issues one and two are remanded
for further development by OWCP.

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oakland, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1733
Issued: January 28, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 3, 2008 appellant filed a timely appeal of a May 16, 2008 merit decision of the
Office of Workers’ Compensation Programs denying his claim for an increased schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has more than 11 percent impairment to his left lower
extremity for which he received a schedule award.
FACTUAL HISTORY
On January 17, 2006 appellant, then a 47-year-old clerk, injured his back when his chair
rolled out from under him and he fell to the floor. He stopped work on January 17, 2006 and
returned on January 25, 2006. The Office accepted the claim for displacement of a lumbar
intervertebral disc without myelopathy and spinal stenosis of the lumbar region. On August 8,
2006 appellant underwent a left L5-S1 lumbar laminectomy and disc/excision/reexploration.

The operative report indicated complete decompression of the L5 nerve root was achieved. He
returned to limited-duty work in February 2007. Under a separate claim, number xxxxxx799,
appellant has an accepted lumbosacral strain and herniated disc at L4-5, for which he underwent
surgery on July 7, 2001. He previously received a schedule award for 11 percent permanent
impairment of the left leg.
On August 20, 2007 appellant filed a request for an increased schedule award. In an
August 29, 2007 letter, the Office provided appellant a copy of a lower extremity impairment
rating form to give to his physician to determine the extent and degree of any impairment related
to his accepted conditions.
In a November 30, 2007 report, Dr. Desmond Erasmus, a Board-certified neurologist,
reviewed the history of injuries to appellant’s back, surgeries and postoperative course. He noted
subjective complaints of back pain at the end of the workday with shooting pain radiating to the
left posterior thigh and calf with occasional tingling and paresthesias in the left leg and foot.
Physical examination revealed limitation in forward flexion of the lumbar spine with negative
straight leg raising to 90 degrees bilaterally and complete ability to heel and toe walk. A slight
antalgia on the left side was demonstrated. Dr. Erasmus diagnosed left traumatic L5 radiculitis;
L4-5 lumbar disc herniation; and postlaminectomy low back pain syndrome with residual left
sciatic pain were provided. Using the diagnosis-related estimate (DRE) method in the American
Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A.,
Guides), Dr. Erasmus placed appellant in a DRE lumbar category III and found 13 percent
impairment of the whole person. He added 2 percent residual pain impairment, for a total
impairment of 15 percent. Dr. Eramus stated that this was a four percent increase in disability
from appellant’s previous impairment rating. On the lower extremity form supplied by the
Office, he advised that appellant had reached maximum medical improvement on
September 26, 2007. Dr. Eramus found the L5 nerve root was affected and appellant had severe
pain. He also noted that appellant had active movement against gravity with full resistance.
Progress reports on appellant’s conditions were also submitted.
In a May 6, 2008 report, an Office medical adviser reviewed the statement of accepted
facts provided by the Office as well as the report of Dr. Erasmus. He agreed that appellant
reached maximum medical improvement on September 26, 2007. Using the fifth edition of the
A.M.A., Guides, the medical adviser opined that appellant had a five percent permanent
impairment of the left lower extremity. Utilizing Tables 15-15 and 15-18, page 424, he graded
appellant’s severe pain as 100 percent of the maximum 5 percent for the L5 nerve root to
calculate a 5 percent impairment of the left lower extremity for pain. The medical adviser noted
that the records did not indicate any left lower extremity atrophy or weakness; thus, no
impairment was provided. He further noted the records did not indicate any loss of hip, knee,
ankle, subtalar or toe range of motion or document any right lower extremity symptomatology;
thus, no impairment was provided. The medical adviser concluded that appellant’s current
ratable impairment, 5 percent, was less than the 11 percent previously awarded.
By decision dated May 16, 2008, the Office denied appellant’s claim for an increased
schedule award, finding that the evidence did not demonstrate greater impairment than that
already paid.

2

LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act1 and section 10.404 of
the implementing federal regulations,2 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides3 has been adopted by the Office, and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.4
Although the A.M.A., Guides include guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under the Act for injury to the spine.5 In
1960, amendments to the Act modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. As the schedule
award provisions of the Act include the extremities, a claimant may be entitled to a schedule
award for permanent impairment to an extremity even though the cause of the impairment
originates in the spine.6 An impairment should not be considered permanent until the clinical
findings indicate that the medical condition is static and well stabilized.7
Section 15.12 of the fifth edition of the A.M.A., Guides describes a method to be used for
evaluation of impairment due to sensory and motor loss of the extremities as follows. The
nerves involved are to be first identified. Then, under Tables 15-15 and 15-16, the extent of any
sensory and/or motor loss due to nerve impairment is to be determined, to be followed by
determination of the maximum impairment due to nerve dysfunction applying Table 15-18 for
the lower extremity. The severity of the sensory or motor deficit is to be multiplied by the
maximum value of the relevant nerve.8
Office procedures further provide that, after obtaining all necessary medical evidence, the
file should be routed to the Office medical adviser for an opinion concerning the nature and

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

4

See Joseph Lawrence, Jr., supra note 3; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287
(1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
5

Pamela J. Darling, 49 ECAB 286 (1998).

6

Thomas J. Engelhart, 50 ECAB 319 (1999).

7

Patricia J. Penney-Guzman, 55 ECAB 757 (2004).

8

A.M.A., Guides, supra note 3 at 423.

3

percentage of impairment in accordance with the A.M.A., Guides, with the Office medical
adviser providing rationale for the percentage of impairment specified.9
ANALYSIS
Appellant asserts that he has more than 11 percent impairment of his left leg for which he
received a schedule award under claim number xxxxxx799. The Board finds that the Office’s
May 16, 2008 decision denying his request for an increased schedule award should be affirmed.
The Office accepted appellant’s current claim for lumbar disc displacement and lumbar spinal
stenosis. On August 8, 2006 he underwent a lumbar laminectomy with disc excision with
microdissection and a complete decompression of the L5 nerve root was achieved.
On November 30, 2007 Dr. Erasmus stated that, under the A.M.A., Guides, appellant’s
symptoms were most consistent with DRE lumbar category III, which represented a 13 percent
impairment of the whole person.10 The Board notes, however, that neither the Act nor its
implementing regulations provide for a schedule award for impairment to the back or to the body
as a whole.11 Dr. Erasmus also opined that appellant had an additional two percent residual pain
impairment but did not provide a detailed evaluation of the sensory impairment of appellant’s
lower extremities under the relevant standards of the A.M.A., Guides. Thus, his impairment
rating is of diminished probative value regarding appellant’s left leg under the relevant standards
of the A.M.A., Guides.12
On May 6, 2008 the Office medical adviser properly applied the A.M.A., Guides to the
information provided by Dr. Erasmus. As the Act does not provide for whole person impairment
ratings,13 the medical adviser correctly provided an impairment rating using the clinical
descriptions provided by Dr. Erasmus. Based on Dr. Erasmus’ description of appellant’s severe
pain, the medical adviser properly determined that appellant had a 100 percent pain grade (Grade
0) for sensory loss associated with the L5 nerve in the left leg and multiplied this value by the 5
percent maximum for sensory loss associated with that nerve to get a 5 percent impairment in the
left leg.14 He also correctly found that the record did not indicate any left lower extremity
atrophy or weakness, any right lower extremity symptomatology, or any loss of hip, knee, ankle,
subtalar or toe range of motion.
9

See Thomas J. Fragale, 55 ECAB 619 (2004); see Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(d) (August 2002).
10

A.M.A., Guides 384, Table 15-3.

11

James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990).

12

See Linda Beale, 57 ECAB 429 (2006) (when the attending physician fails to provide an estimate of
impairment conforming to the A.M.A., Guides, his or her opinion is of diminished probative value in establishing
the degree of permanent impairment and the Office may rely on the opinion of its medical adviser to apply the
A.M.A., Guides to the findings reported by the attending physician).
13

See Tommy R. Martin, 56 ECAB 273 (2005).

14

A.M.A., Guides 424, Tables 15-15 and 15-18. Table 15-15 indicates that a Grade 0 is appropriate when severe
pain prevents all activity.

4

The Board finds that the medical adviser properly applied the appropriate tables and
figures contained in the A.M.A., Guides in determining that appellant had no more than five
percent impairment of his left leg. As appellant previously received a schedule award for an 11
percent permanent impairment of the left leg, he did not establish greater impairment of his left
leg. Therefore, appellant is not entitled to an increased schedule award.15
CONCLUSION
The Board finds that appellant has no more than an 11 percent left lower extremity
impairment, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 16, 2008 is affirmed.
Issued: January 28, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

15

The Office procedures provide that any previous impairment to a member under consideration is included in
calculating the percentage of loss. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and
Permanent Disability Claims, Chapter 2.808.7(a)(2) (August 2002).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
U.S. POSTAL SERVICE, RANSON POST
OFFICE, Ranson, WV, Employer
__________________________________________

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)

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

Docket No. 21-1155
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On June 4, 2021 appellant, through counsel, filed a timely appeal from a May 21, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the May 21, 2021 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish her remaining
claims for intermittent disability from work for the period March 5 through April 9, 2021, causally
related to her accepted April 30, 2018 employment injury.
FACTUAL HISTORY
On May 8, 2018 appellant then a 41-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on April 30, 2018 she sustained a strained left hip/buttock when she
was startled by a snake and fell backwards when delivering mail while in the performance of duty.
She stopped work on the filing date of her claim. On June 8, 2018 OWCP initially accepted the
claim for strain of the muscle, fascia, and tendon of the left hip, and unspecified strain of the left
hip. It later expanded acceptance of the claim to include trochanteric tendinitis/bursitis of the left
hip and strain of the gluteus medius. OWCP paid appellant wage-loss compensation on the
supplemental rolls as of June 23, 2018 and on the periodic rolls commencing January 6, 2019. It
again paid her intermittent wage-loss compensation on the supplemental rolls as of September 15,
2019, following her return to part-time limited-duty work on September 23, 2019.
Appellant filed several claims for compensation (Form CA-7) for disability from work for
the period February 27 through April 9, 2021. On March 29, and April 2 and 13, 2021 she filed
an accompanying time analysis form (Form CA-7a) wherein she claimed that she used leave
without pay (LWOP) as follows: eight hours each on February 27, March 13, 16, 20, 23, and 30,
and April 2, and 3, 2021 due to her days off work; two hours on March 1, 2021; 1.34 hours on
March 3, 2021; 4.20 hours on March 4, 2021; eight hours each on March 5 and 6, 2021 to receive
an injection in her physician’s office; 3.48 hours on March 8, 2021; 2.35 hours on March 9, 2021;
eight hours on March 11, 2021 due to being placed off work by her physician; eight hours each on
March 12, 15, 19, 22, 29 and April 8 and 9, 2021 due to hip pain; 1.46 hours on March 24, 2021;
3.08 hours on March 25, 2021; 2.02 hours on March 31, 2021; 2.85 hours on April, 1, 2021; 2.59
hours on April 6, 2021; and 4.45 hours on April 7, 2021.
In support of her claim, appellant submitted medical reports dated March 4 and 24, 2021
from Juris Eyler, a physician assistant. Mr. Eyler diagnosed pain, unilateral primary osteoarthritis,
other articular cartilage disorders of the left hip; sacroiliitis, not elsewhere classified; difﬁculty in
walking, not elsewhere classiﬁed, and trochanteric bursitis of the left hip. He advised that appellant
could continue to perform sedentary work with restrictions and indicated that her absences from
work for a partial day on March 4, 2021 and a full day on March 5, 2021 should be excused due
to a hip injection she received on March 4, 2021. On March 24, 2021 Mr. Eyler restricted her to
work four-to-six hours per day, three- to four-hour days per week, due to flare-ups of pain and
other symptoms effective March 3, 2021.
OWCP, in a development letter dated March 29, 2021, informed appellant that the evidence
submitted was insufficient to establish her claim for wage-loss compensation. It advised her of
the type of medical evidence necessary to establish her disability claim and afforded her 30 days
to submit the requested evidence.

2

In a separate letter dated March 29, 2021, OWCP requested that the employing
establishment indicate whether work was available for appellant on February 27 and March 5, 6,
11, and 12, 2021.
OWCP subsequently paid appellant wage-loss compensation on the supplemental rolls for
intermittent disability from work for the period February 13 through 26 and March 8 and 9, 2021.
OWCP received an April 3, 2020 left hip arthrogram report by Dr. Taik-Kun Kim, a Boardcertified diagnostic radiologist. Dr. Kim noted that the arthrogram was performed prior to a
magnetic resonance imaging (MRI) scan. He provided an impression that the arthrogram was
successful and uncomplicated.
On April 6, 2021 the employing establishment responded to OWCP’s March 29, 2021
letter, noting that no work was available on February 27, 2021 and eight hours of work was
available on March 5, 6, 11, and 12, 2021.
In an April 16, 2021 letter, OWCP requested that the employing establishment provide
whether limited-duty work was available for appellant on intermittent dates during the period
March 13 through April 9, 2021.
In an initial response dated April 22, 2021, the employing establishment indicated that up
to six hours of limited-duty work per day was available on March 13, 15, 16, 19, 20, 22, 23, 29,
30, 31 and April 2, 3, 8, and 9, 2021. It indicated that medical evidence dated March 24, 2020
provided that appellant could work four-to-six hours per day, three-to-four days per week as
tolerated.
On April 28, 2021 the employing establishment further responded that appellant had days
off from work and was off work based on her physician’s order during the period March 13 through
April 9, 2021. It noted that her days off from work were March 13, 16, 20, 23, and 30 and
April 2, 2021. The employing establishment also noted that appellant was off from work on
March 15, 19, 22, and 29 and April 6 and 9, 2021 based on her physician’s order. Appellant
worked 5.98 hours on March 31, 2021.
OWCP subsequently paid appellant wage-loss compensation on the supplemental rolls for
intermittent disability from work for the periods March 13 through 26, 2021 and March 31 through
April 7, 2021.
OWCP continued to receive medical evidence. In an April 3, 2021 left hip MRI arthrogram
report, Dr. John M. Filigenzi, a Board-certified diagnostic radiologist, provided an impression of
mild left hip chondromalacia. Dr. Filigenzi related that appellant had a complex tear of the
acetabular labrum extending from the anterior-superior labrum through the posterior-superior
labrum, more severe anteriorly as detailed in his report. He also provided impressions of mild
degenerative changes of the sacroiliac joints and pubic symphysis, based on review of an April 1,
2020 pelvis MRI scan.
Dr. S. Shar Hashemi, a Board-certified surgeon, noted in reports dated May 10 and 14,
2021 that appellant’s history of a 2018 employment-related left hip injury. He discussed:
examination findings and diagnosed injury of cutaneous sensory nerve at hip and thigh level, left
3

leg, initial encounter; injury of other nerves at hip and thigh level, left leg, initial encounter; and
causalgia of the left lower limb. Dr. Hashemi placed appellant off work for one month
commencing April 29 and May 14, 2021, respectively.
A May 6, 2021 report by Dr. Raj Parekh, an anesthesiologist, noted appellant’s history of
injury, discussed examination findings, and provided impressions of high risk medication
monitoring narcotics, left hip chronic pain syndrome, unspecified and uncomplicated opioid use,
generalized anxiety disorder, and left hip labral tear. Dr. Parekh related that there was no doubt
that appellant’s left hip pain was causing significant disability and pain. He noted that she reported
that prior to her accepted employment injury, she was quite active, but now she was limited by her
pain and could not adequately perform her work duties.
In a May 21, 2021 decision, OWCP authorized payment of wage-loss compensation for
eight hours on February 27, 2021 and two hours each on March 13, 15, 16, 19, 20, 22, 23, 29, 30,
and 31 and April 2, 3, 8, and 9, 2021. It also noted that appellant had previously received
intermittent wage-loss compensation for March 1, 3, 4, 8, 9, 17, 24, 25, 31, and April 1, 6, and
9, 2021. The claim remained denied, however, as appellant had not provided medical evidence
establishing that she was disabled from work as a result of her accepted work -related medical
conditions for the remainder of the claimed period.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.5 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.6 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.7
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.8 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a

4

Supra note 2.

5

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
6

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
7

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

8

Id. at § 10.5(f); see, e.g., G.T., 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 397 (1999).

4

medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.9
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.10 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.11
For a routine medical appointment, a maximum of four hours of compensation for time lost
to obtain medical treatment is usually allowed.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish her remaining
claims for intermittent disability from work for the period March 5 through April 9, 2021, causally
related to her accepted April 30, 2018 employment injury. Appellant filed a series of CA-7 forms
for intermittent disability from work commencing February 27, 2021. The record reflects that
OWCP has paid intermittent wage-loss compensation commencing February 27, 2021 for the dates
on which eight hours of work was not made available by the employing establishment and for the
dates on which appellant received authorized medical treatment.
OWCP received reports from medical providers regarding appellant’s disability status
during the relevant period. Several reports were submitted by Mr. Eyler, a physician assistant. In
a report dated March 4, 2021, Mr. Eyler advised that appellant’s absences from work for a partial
day on March 4, 2021 and a full day on March 5, 2021 should be excused due to a hip injection
she received on March 4, 2021. OWCP paid appellant wage-loss compensation for the time she
lost from work to receive the hip injection on March 4, 2021; however, it denied her claim for
wage-loss compensation commencing March 5, 2021 as Mr. Eyler’s opinion regarding appellant’s
disability status was of no probative value. 13 On March 24, 2021 Mr. Eyler restricted her to work
four to six hours per day, three to four hour days per week, due to flare -ups of pain and other
symptoms effective March 3, 2021. The Board has held that the reports of a physician assistant
are of no probative value as a physician assistant is not considered a physician as defined under
FECA and, therefore, is not competent to provide a medical opinion. The reports from Mr. Eyler

9

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

10

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

11

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 2.901.19(c)
(February 2013); see also K.A., Docket No. 19-0679 (issued April 6, 2020).
13

D.B., Docket No. 20-0192 (issued November 2, 2020); S.K., Docket No. 19-0272 (issued July 21, 2020).

5

are, therefore, insufficient to establish appellant’s claim, except to establish that appellant received
treatment on the dates he provided authorized medical treatment.14
OWCP also received reports from Dr. Hashemi. In a report dated May 10, 2021,
Dr. Hashemi placed appellant off work for one month commencing April 29, 2021. He noted her
history of injury and diagnosed injury of cutaneous sensory nerve at the hip and thigh level of left
leg and causalgia of the left lower limb. However, Dr. Hashemi did not explain, with rationale,
how or why appellant was unable to perform her regular work on the claimed dates of disability
due to the effects of her accepted conditions. His other May 14, 2021 report also did not address
the relevant period of claimed disability. The Board has held that a report is of limited probative
value regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition/period of disability has an employment-related cause.15 For these reasons, the
Board finds that Dr. Hashemi’s reports are insufficient to establish appellant’s disability claim.
Appellant also submitted a May 6, 2021 report from Dr. Parekh. Dr. Parekh noted a history
of the April 30, 2018 employment injury. He diagnosed, inter alia, left hip chronic pain syndrome
and left hip labral tear. Dr. Parekh opined that appellant’s hip pain caused her disability from
work. However, he did not offer an opinion as to whether her disability on the claimed dates were
causally related to the accepted condition. The Board has held that medical evidence that does not
offer an opinion regarding the cause of an employee’s condition or disability is of no probative
value on the issue of causal relationship. 16 Therefore, this evidence is insufficient to establish
appellant’s disability claim.
Likewise, Dr. Kim’s April 3, 2020 procedure note is insufficient to establish appellant’s
disability claim. In his April 3, 2020 note, he advised that a left hip arthrogram was successful
and uncomplicated. However, Dr. Kim did not provide an opinion addressing whether appellant
had disability on the claimed dates causally related to an accepted condition and, as such, his note
is of no probative value.17
Appellant submitted left hip MRI arthrogram reports from Dr. Kim and Dr. Filigenzi. The
Board has held, however, that diagnostic studies, standing alone, lack probative value on the issue

14

Section 8101(2) of FECA provides that medical opinions can only be given by a qualified physician. This section
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law. 5 U.S.C. § 8101(2); 20 C.F.R.
§ 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013); M.M., Docket No. 20-0019 (issued May 6, 2020); K.W., 59 ECAB 271, 279 (2007); David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006); see also D.B., id.; E.T., Docket No. 17-0265 (issued May 25, 2018)
(physician assistants are not considered physicians under FECA).
15

See T.S., Docket No. 20-1229 (issued August 6, 2021); S.K., Docket No. 19-0272 (issued July 21, 2020);
T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).
16

See T.S., id.; J.M., Docket No. 19-1169 (issued February 7, 2020); A.L., 19-0285 (issued September 24, 2019);
L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
17

Id.

6

of causal relationship as they do not address whether the accepted employment injuries resulted in
appellant’s period of disability on specific dates. 18
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work during the claimed period as a result of the accepted
employment injury. 19 Because appellant has not submitted rationalized medical opinion evidence
sufficient to establish employment-related disability during the claimed period due to her accepted
conditions, the Board finds that she has not met her burden of proof to establish h er 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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish her remaining
claims for intermittent disability from work for the period March 5 through April 9, 2021, causally
related to her accepted April 30, 2018 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 21, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

18

See T.S., id.; D.M., Docket No. 20-0548 (issued November 25, 2020); O.C., Docket No. 20-0514 (issued
October 8, 2020); R.J., Docket No. 19-0179 (issued May 26, 2020).
19

Supra note 6.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lynchburg, VA, Employer
__________________________________________

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

Docket No. 19-0563
Issued: August 1, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 16, 2019 appellant filed a timely appeal from a November 15, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP has abused its discretion by denying appellant’s request for
authorization for right knee arthroscopy.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the November 15, 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.

FACTUAL HISTORY
On January 23, 2018 appellant, then a 24-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 20, 2018 she slipped and fell down a hill injuring her
right ankle and knee while in the performance of duty.
In a report dated January 23, 2018, Dr. David Engel, an osteopath Board-certified in family
medicine, described appellant’s history of injury as slipping and falling down a hill with pain in
her right knee and ankle. He diagnosed a strain of the right knee medial collateral ligament versus
possible medial meniscus injury as well as right ankle strain. On January 30, 2018 Dr. Engel
diagnosed knee and ankle strain.
On March 6, 2018 OWCP accepted appellant’s claim for sprain of the medial collateral
ligament of the right knee and right ankle sprain.
On March 20, 2018 appellant underwent a right knee magnetic resonance imaging (MRI)
scan which demonstrated a tear of the medial meniscus. In a note dated May 17, 2018, Dr. Eric
Carson, a Board-certified orthopedic surgeon, described appellant’s history of injury on
January 20, 2018 and listed her physical findings of constant medial right knee pain, as well as
mechanical symptoms of locking and giving way. He reviewed appellant’s March 20, 2018 right
knee MRI scan and diagnosed tear of the medial meniscus of the right knee. Dr. Carson
recommended a partial medial meniscectomy as she had failed conservative treatments including
steroid injection and physical therapy.
In a May 30, 2018 development letter, OWCP advised appellant that her claim was
accepted for sprain of the medial collateral ligament and surgery did not appear medically
necessary for the accepted condition. It requested rationalized medical opinion evidence
establishing a causal relationship between appellant’s currently diagnosed medial meniscus tear
and her accepted January 20, 2018 employment injury.
On October 3, 2018 Dr. Carson opined that appellant was in need of a partial medial
meniscectomy for a meniscal tear of the right knee which occurred at work.
By decision dated November 15, 2018, OWCP denied authorization for right knee
arthroscopy. It found that there was no rationalized medical opinion evidence explaining how the
diagnosis of medial meniscus tear was caused by her accepted January 20, 2018 employment
injury.
LEGAL PRECEDENT
Section 8103(a) of FECA states in pertinent part: “The United States shall furnish to an
employee who is injured while in the performance of duty, the services, appliances, and supplies
prescribed or recommended by a qualified physician, which the Secretary of Labor considers likely

2

to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of
the monthly compensation.”3
The Board has found that OWCP has great discretion in determining whether a particular
type of treatment is likely to cure or give relief.4 The only limitation on OWCP’s authority is that
of reasonableness.5 Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from established facts. It is not enough to merely show that the evidence could be
construed so as to produce a contrary factual conclusion.6 In order to be entitled to reimbursement
of medical expenses, it must be shown that the expenditures were incurred for treatment of the
effects of an employment-related injury or condition.7 Proof of causal relationship in a case such
as this must include supporting rationalized medical evidence.8
In order for a surgical procedure to be authorized, a claimant must submit evidence to show
that the surgery is for a condition causally related to an employment injury and that it is medically
warranted. Both of these criteria must be met in order for OWCP to authorize payment.9
ANALYSIS
The Board finds that OWCP has not abused its discretion by denying authorization for right
knee surgery.
OWCP accepted appellant’s traumatic injury claim for right knee sprain of the medial
collateral ligament. In a May 1, 2018 examination report, Dr. Carson described appellant’s history
of injury on January 20, 2018 and reported her symptoms of constant medial right knee pain, as
well as mechanical locking and giving way. He reviewed appellant’s March 20, 2018 right knee
MRI scan and diagnosed a tear of the medial meniscus of the right knee. Dr. Carson recommended
a partial medial meniscectomy as she had failed conservative treatments. The Board finds that
Dr. Carson’s reports do not include clear rationale, which explains the need for surgery in order to
treat appellant’s right knee condition due to the accepted condition of right knee strain.10
Furthermore, he did not explain how and why the January 20, 2018 employment incident had
resulted in the additional diagnosed condition of right medial meniscal tear and the subsequent
need for knee surgery. As Dr. Carson failed to provide medical rationale explaining how the
3

5 U.S.C. § 8103.

4

R.C., Docket No. 18-0612 (issued October 19, 2018).

5

Id.; J.C., Docket No. 19-0182 (issued May 13, 2019).

6

G.B., Docket No. 18-1478 (issued October 18, 2018).

7

J.R., Docket No. 17-1523 (issued April 3, 2018); Bertha L. Arnold, 38 ECAB 282, 284 (1986).

8

S.W., Docket No. 17-1319 (issued December 7, 2017); John E. Benton, 15 ECAB 49 (1963).

9

See C.L., Docket No. 17-0230 (issued April 24, 2018); D.K., 59 ECAB 141 (2007).

10

N.G., Docket No. 18-1340 (issued March 6, 2019); V.S., Docket No. 17-0874 (issued December 6, 2017).

3

requested surgery was necessary to treat appellant’s work-related right knee sprain or how the
additional condition of medial meniscal tear is causally related to her accepted January 20, 2018
employment incident, his reports is of diminished probative value.11 OWCP, therefore, did not
abuse its discretion in denying authorization for left knee surgery.
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 OWCP has not abused its discretion by denying authorization for right
knee surgery.
ORDER
IT IS HEREBY ORDERED THAT the November 15, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 1, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

11

N.G., id.; J.R., Docket No. 18-0603 (issued November 13, 2018).

4