United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
AMPHIBIOUS BASE, Little Creek, VA,
Employer
__________________________________________

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

Docket No. 11-1513
Issued: April 16, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 14, 2011 appellant, through his attorney, filed a timely appeal from an April 26,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
claim for compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he was injured in
the performance of duty on October 5, 2010, as alleged.
On appeal appellant, through his attorney, argues that OWCP’s decision is contrary to
fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 5, 2010 appellant, then a 52-year-old supervisory fire protection specialist,
filed a traumatic injury claim alleging that, on October 5, 2010, while exiting Engine 16 with full
protective gear, he twisted his back, walked it off, then took a five-gallon water container to the
ship deck by stairs and further pulled his back. He also had trouble catching his breath as a result
of the exertion. The employing establishment controverted the claim.
In a statement dated October 14, 2010, Michael T. Pope, a district fire chief stated that on
October 5, 2010 he responded to a working ship fire aboard the USS Whidbey Island. He stated
that, after the fire was out, he was exiting the ship for a meeting when he saw appellant standing
at the rear of Squad 11 fire apparatus. Chief Pope noted that appellant stated that he hurt himself
when he fell out of the fire truck on arrival and hurt his back and then “really did myself in”
trying to carry a water cooler up onto the ship. He stated that appellant needed to be checked,
but appellant responded that it was not that bad and that he would be okay. Chief Pope then
informed Chief George W. Ridgwell, III and Chief Douglas R. VonWald that appellant stated
that he hurt his back and Chief VonWald stated that there was more to it than Chief Pope was
aware as appellant had left his company upon arrival and had never reported a back injury to
him.
In an October 14, 2010 witness statement, Assistant Fire Chief Ridgwell stated that
Chief VonWald approached him on October 5, 2010 and gave him details of the fire ground
situation and also informed him that appellant stated that he twisted his back while exiting the
engine. He noted that he was told that appellant was resting at the engine and appellant stated
that he did not need medical treatment. Chief Ridgwell noted that they progressed through the
incident and that appellant came over to the command post and stated that he felt alright but also
noted that “he couldn’t do this anymore.” He had a medic evaluate appellant, who noted that
appellant had an elevated blood pressure with no other complaints. Chief Ridgwell stated that
appellant told him that he was going to his primary physician to be evaluated and departed at
0800 hours.
In October 20, 2010 statements, Chief VonWald stated that it was unusual to him that
appellant, a supervisor, did not report his injury once it occurred. He was in contact with five
supervisors that morning and it was not until after everything was done three hours later that the
initial supervisor was notified that an employee had been injured performing his duties.
Chief VonWald noted that he did not receive the paperwork from appellant’s doctor until
October 11, 2010. He noted that appellant claimed a severe sprained back but it was not reported
until three hours after it occurred and then he drove over four hours to seek medical treatment.
In a separate statement concerning the events of October 5, 2010, Chief VonWald stated that
upon arrival he assumed incident command and set up the command post and appellant came
walking towards his vehicle in full protective gear and that he instructed appellant to report to
Supervisory Captain Michael D. Scott. He noted that later he saw appellant and asked him what
he was doing, and appellant told him that he really did not have an assignment, so he told
appellant to assist the firefighters that were coming out from the fire space and assist with
making sure the firefighters had fluids for replenishment available to them. Chief VonWald
stated that, after several hours, the fire was declared out and the control scene was returned to the

2

ship’s forces and that he exited the ship. He stated that Chief Ridgwell asked him to have R-15
personnel prepare a Prehospital Patient Care Report on appellant and record that he was provided
medical treatment on the scene and that he refused transport to a medical facility for further
evaluation. Chief VonWald indicated that appellant stated that he had to go to Maryland for
treatment because it was the only place that his insurance would cover.
In an October 14, 2010 statement, Captain Jimmy French stated that on October 4, 2010
he was assigned to operations chief on the main deck of the ship. He stated that he needed
equipment moved up from the staging area and saw appellant walk around the fire apparatus.
Captain French called down directing appellant to bring water and cups up to the area for
rehabilitation. He noted that appellant showed no problems nor stated whether he could perform
the task or not, but that once appellant arrived on the main deck after walking up a flight of
stairs, he noticed him holding the railing bent over and holding his chest. Captain French stated
that he asked appellant if he was okay and appellant stated that he was okay and just needed a
minute. He stated that appellant looked like he was having problems breathing and he asked
appellant to sit down on the quarter deck while he got someone to attend to him. Captain French
noted that Rescue 11 was up on the main deck dropping off equipment, so he had
Firefighter Roberson escort appellant down to rehabilitation to be checked out and that from this
point he had no more contact with appellant.
In an October 14, 2010 statement, Supervisory Captain Scott noted that, on October 5,
2010, he was walking with appellant to quarter deck par 3 and that when he took a personal par
count he realized that appellant was no longer with him, and when he looked over the port side
of the ship he observed appellant walking in full turn out gear and SCBA towards the command
post. He noted that he called command and asked him to redirect appellant back to his company
and that, when he did not get a reply, he continued the job and had no other communications
with appellant until the incident was secured. Captain Scott indicated that he was at the
command post gathering passports which appellant approached him and stated that he was sorry
for letting the company down. He noted that appellant then stated that he hurt his back getting
off the apparatus upon arrival. Captain Scott stated that at no time during the incident did
appellant advise him of the injury.
In an October 5, 2010 workers’ compensation form, appellant noted that he was exiting
Engine 16 in full protective gear when he twisted back. He noted that he refused transport to the
hospital.
Appellant was seen by Dr. Thomas M. Walsh, a Board-certified family practitioner, on
October 5, 2010, for pain in his low back. Dr. Walsh advised that appellant was to be off work
for a week and then be rechecked before return to full-work duty. He listed the context of the
injury as fell off fire truck, he noted the pain had gradual onset. In an October 11, 2010 report,
Dr. Walsh noted that appellant had generalized anxiety and low back pain. In an October 25,
2010 report, he noted pain in the low back and shortness of breath.
In a November 19, 2010 decision, OWCP denied appellant’s claim finding that the
traumatic incident did not occur. It noted that he failed to respond to written questions and that
the statements of several witnesses cast doubt on the validity of his claim.

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An October 28, 2010 magnetic resonance imaging (MRI) scan was interpreted by
Dr. George W. Adams, a Board-certified radiologist, as showing right paracentral/intraforaminal
disc herniation at L5-S1 superimposed on a broad bulge; bulging discs elsewhere from L2-S2
through L4-5; and large Schmorl’s node in the superior end plate of L5.
In a November 9, 2010 attending physician’s report, Dr. Walsh obtained a history that
appellant fell off a truck and sustained an injury to his back. He listed the diagnosis as lumbago,
and indicated that this condition was caused or aggravated by the employment activity because
the symptoms were consistent with injury he described. Dr. Walsh noted that appellant was
originally seen on October 5, 2010 and was advised to take a week off from work. Appellant
returned to work on October 11, 2010 with continued symptoms and on October 25, 2010 had
new symptoms at work of exertional dyspnea and radiating pain to the left leg. Dr. Walsh
referred appellant to a cardiologist. In a November 15, 2010 attending physician’s report form,
he indicated that, while the initial findings were subjective, eventually it was determined that
appellant had a herniated lumbar disc. Dr. Walsh also noted that appellant had coronary artery
disease. He indicated that these conditions were caused or aggravated by activity and explained
“consistent with injury.” Dr. Walsh noted that appellant would be admitted on November 18,
2010 for coronary artery bypass surgery, so treatment of the herniated disc had been postponed.
Dr. Dennis Hall, a Board-certified internist in cardiovascular disease, first saw appellant
on November 2, 2010 for dyspnea on exertion. He noted that appellant’s risk factors for
coronary artery disease include a very long history of smoking and some degree of emphysema
which may be contributing to his symptom complex. Dr. Hall conducted various tests. On
November 8, 2010 an abnormal Dipyridamole myocardial perfusion examination showed a
moderate-sized perfusion defect in the inferior and apical segments with a mild reversibility.
Dr. Hall noted an inferior wall was akinetic with an estimate EF of 55 percent. He recommended
a coronary angiography. On November 18, 2010 appellant underwent bypass surgery. In a
report dated December 9, 2010, Dr. Hall noted that appellant was stable.
On December 18, 2010 appellant requested review of the written record by an OWCP
hearing representative. He stated that he never received a request for further information.
Appellant noted that on October 5, 2010 at approximately 0400 hours a box alarm was struck
coming from a ship. He was riding in the right jump seat of the first engine, Engine 16, and had
all of his personal protective equipment (PPE) on which weighed approximately 30 pounds and
an air pack that weighed about 30 pounds. Appellant stated that, while exiting the apparatus, he
lost his footing and to avoid falling he grabbed a pull bar and twisted his back. He stated that the
remaining crew was already enroute to the ship and had no idea what had happened. Appellant
walked the pain off but after about 5 minutes it was still there but not as severe as the initial pain.
He noted that he was instructed by Captain French to take a five-gallon water cooler which
weighed approximately 40 pounds to the ship’s deck for the firefighters, and that while walking
up the ship’s narrow steps he hit a step that wobbled and once again pulled his back. Appellant
stated that, when he made it to the deck, he could not catch his breath and took 15 to 20 minutes
to breath normally again. He indicated that Captain French did ask if he was okay and he
thought at the time that he needed just a few minutes to catch his breath but that this was not the
case as it took 15 to 20 minutes to breath normally again. Appellant stated that he sat on the rear
step and that, once the fire was under control, he made his way to the command post and spoke

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to District Chief Pope and Incident Commander Chief Ridgwell and explained that he had
injured himself and that Chief Ridgwell sent him to the ambulance crew for evaluation. He
stated that he subsequently refused transport because he wanted to see his primary care physician
and not an emergency room doctor. Appellant stated that he has been an incident commander for
over 20 years and due to the amount of fire upon arrival, he knew the incident commander was
very busy with the operation of the fire ground and opted to wait until the fire was under control
to make the notifications.
In a December 14, 2010 report, Dr. Hall summarized his treatment of appellant, noting
that he first saw him on November 2, 2010 for evaluation of dyspnea on exertion, noting that
appellant first experienced severe shortness of breath while walking a flight of stairs and carrying
a pail of water. He noted that appellant had coronary artery bypass surgery on November 18,
2010 and was recovering well.
In a December 17, 2010 note, Dr. Walsh stated that appellant suffered a work injury on
October 5, 2010 and was seen in his office the same day with back pain consistent with the story
of his injury. He noted that an MRI scan of appellant’s lumbosacral spine was eventually done
which showed a herniated L5-S1 disc consistent with his symptoms. Dr. Walsh indicated that
unfortunately, in the process of this work up appellant developed symptoms of dyspnea and was
referred to a cardiologist, and was admitted to the hospital for urgent coronary artery bypass
surgery and that he was currently recovering from that surgery. He noted that appellant still has
back pain and right leg radiculopathy but that whole issue has taken a back seat to more pressing
cardiac issues. Dr. Walsh stated that once appellant had recovered from the heart issues the back
and leg issues will need to be addressed. He stated, “It is nearly impossible to prognosticate the
back problem until [appellant] is adequately evaluated.”
In a March 21, 2011 statement, Assistant Chief VonWald indicated that he was the shift
supervisor for the 24-hour shift that started 0700 on October 4, 2010. He noted that appellant
was assigned to the right jump seat on Engine 16 at JEB Little Creek same day. Chief VonWald
stated that appellant’s PPE and SCBA pack combined weighed less than 50 pounds. He stated
that appellant never mentioned to Captain Scott that he injured his back while exiting the
apparatus, and that appellant is a supervisor and knew to report injuries immediately and that
appellant conducted annual training for his employees each year on this topic. Chief VonWald
stated that appellant was in face-to-face communication with three other supervisors from the
time he alleged he hurt his back to when he actually reported the injury to Chief Ridgwell, and
that, if he was injured and did not report it, this could have placed the lives of his fellow
firefighters at risk. He indicated that, after the injury was reported, appellant stated that he was
going to see his doctor in Maryland because that is where his insurance was and that the doctor
had already been called. Chief VonWald contended that the congestive heart failure was not
related to the alleged incident. He stated that appellant’s back injury prevented him from
returning to work for one week. Chief VonWald stated that appellant did not submit supporting
medical documentation to the employing establishment until a week after he was injured and was
not in contact with his supervisor.
By decision dated April 26, 2011, the hearing representative affirmed OWCP’s decision
of November 19, 2010, as modified. The hearing representative found that appellant did not

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meet his burden of proof to establish the occurrence of the claimed twisting incident while
exiting the vehicle or that he injured his back while carrying a water cooler onto the ship. With
regard to the claimed difficulty breathing following exertion, the hearing representative
determined that the medical evidence failed to establish that the diagnosed coronary artery
disease was causally related to any factors of employment.
LEGAL PRECEDENT
OWCP’s regulations define a traumatic injury as a condition of the body caused by a
specific event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain, which is identifiable as to
time and place of occurrence and member or function of the body affected.2 An employee
seeking benefits under FECA3 has the burden of establishing the essential elements of his or her
claim, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged and that any disability
and/or specific condition for which compensation is claimed are causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
The employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place and in the manner alleged. An employee has the
burden of establishing the occurrence of an injury at the time, place and in the manner alleged,
by the preponderance of the reliable, probative and substantial evidence. An injury does not
have to be confirmed by eyewitnesses in order to establish the fact that the employee sustained
an injury in the performance of duty, but the employee’s statements must be consistent with the
surrounding facts and circumstances and his subsequent course of action. An employee has not
met his burden of proof where there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim.5
The employee must also submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury. The medical
evidence required to establish causal relationship is usually rationalized medical evidence.
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
2

20 C.F.R. § 10.5(e).

3

5 U.S.C. §§ 8101-8193.

4

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

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Id.

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reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.6
ANALYSIS
Appellant filed a claim for compensation alleging that, on October 5, 2010, while exiting
Engine 16 with full protective gear, he twisted his back. He noted that his back injury was
further aggravated when he took a 5-gallon water container to ship deck. Appellant further noted
that he had trouble catching his breath because of the exertion.
With regard to the alleged back injury, OWCP determined that appellant had not met the
initial criterion of proving that the incident occurred as alleged. Appellant’s statement, although
entitled to great weight, is contradicted by numerous statements from his supervisors. He alleged
that he sustained his back injuries while reporting to fight a fire aboard the USS Whidbey Island.
Appellant noted that he was first injured while getting out of the fire truck upon arrival and
further injured as a result of carrying a water cooler onto the ship. However, he delayed several
hours before reporting the alleged back injury to a supervisor. Appellant alleged that the delay
was due to the fact that supervisors were busy fighting the fire. Although his explanation does
merit some consideration, the Board notes that appellant was a fire chief. Appellant had
supervisory duties and pursuant to the statement by Chief VonWald, he conducted annual
training with regard to reporting injuries promptly. Chief VonWald stated that appellant was
aware that failure to promptly report injuries could result in a situation where he placed the lives
of his fellow firefighters at risk. He stated that appellant did not report the injury until three
hours after it occurred. Chief VonWald also indicated that appellant elected to drive four hours
to see his doctor in Maryland instead of seeing a local doctor. Other fire chiefs also noted that
appellant did not make a prompt report of injury. Chief Pope indicated that, after the fire was
out, he saw appellant who at that time stated that he hurt his back by falling out of the fire truck
when responding to the fire. Chief Ridgwell noted that he had a medic evaluate appellant and
that he noted elevated blood pressure but no other complaints. Captain French indicated that he
was assigned to operations chief on the main deck of the ship and that he called to appellant to
bring water and cups to the area, and that appellant showed no problems with his back nor did he
state that he could not perform the task when asked. Captain Scott also noted appellant’s
untimely reporting of the injury.
When treated by Dr. Walsh on the date of the alleged injury, appellant reported that he
injured his back when he fell off of a truck. Dr. Walsh reiterated this history in his November 9,
2010 report. This history of injury contradicts or is inconsistent with that reported on the claim
form.
The Board finds that, as appellant was a fire chief and knew the requirements for the
prompt reporting of the injury, as appellant did not promptly report the injury and as he provided
an inconsistent history of his alleged back injury, there is sufficient doubt as to whether appellant

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Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

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actually sustained a back injury as alleged. Accordingly, appellant has not met his burden of
proof to show that the work incident with regard to the injury to his back occurred as alleged.
The Board further finds that there is evidence that appellant had breathing issues while
working the fire on October 5, 2010. Appellant noted on his claim form that he had trouble
catching his breath on that date as a result of exertion. In a subsequent statement, he indicated
that after carrying a five-gallon water cooler that weighed approximately 40 pounds up the steps
he could not catch his breath and it took 15 to 20 minutes to breath normally again. The
statement of Captain French supports appellant’s assertion. He noted that, after appellant walked
up a flight of steps, he noticed appellant bent over a railing and holding his chest. Captain
French noted that it appeared that appellant was having problems breathing, and that he told
appellant to sit while he got someone to attend to him. Accordingly, appellant established that
the work incident occurred.
Appellant has not met his burden of proof to establish that he sustained an injury as a
result of the work-related breathing issue. To meet his burden of proof, appellant must submit
rationalized medical opinion evidence based on a complete factual and medical background
supporting such a causal relationship.7 Appellant’s treating cardiologist, Dr. Hall, noted that he
initially saw appellant for dyspnea on exertion, and noted that appellant first experienced severe
shortness of breath while walking a flight of stairs and carrying a pail of water. Appellant
underwent coronary artery bypass surgery on November 18, 2010. However, when discussing
risk factors, Dr. Hall noted appellant’s very long history of smoking. He never indicated that
appellant’s heart condition was caused or aggravated by his federal duties. Although Dr. Walsh
notes appellant’s heart condition, his reports largely address appellant’s back injury and he does
not discuss the cause of appellant’s coronary artery disease. Accordingly, appellant has not
submitted medical evidence sufficient to establish that his work activities on October 5, 2010
caused his coronary artery disease, and therefore he has not met his burden of proof to establish
an injury sustained in the performance of duty.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he was
injured in the performance of duty on October 5, 2010, as alleged.

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J.G., Docket No. 11-875 (issued January 13, 2012).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 26, 2011 is affirmed as modified.
Issued: April 16, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.U., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
El Paso, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 15-1349
Issued: December 22, 2015

Case Submitted on the Record

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

On June 2, 2015 appellant filed a timely appeal from a January 23, 2015 decision of the
Office of Workers’ Compensation Programs (OWCP) denying his claim for a recurrence of
disability due to his accepted left shoulder condition. The appeal was docketed as 15-1349.
The Board has duly considered the matter and concludes that this case is not in posture
for decision. The record forwarded to the Board includes evidence that appellant has two claims
for left shoulder injuries, one that occurred on August 28, 1998 due to participating in defense
tactics training at work (OWCP file number xxxxxx354), and one that occurred on February 11,
2001 due to a fall at work (OWCP file number xxxxxx127).1 Appellant filed a claim
(Form CA-2a) on May 29, 2014 alleging that he sustained a recurrence of disability on
December 16, 2013 due to his August 28, 1998 and February 11, 2001 work injuries. On
December 17, 2013 he underwent surgical repair of the rotator cuff of his left shoulder. In
support of his recurrence of disability claim, appellant submitted a December 27, 2013 report in
which Dr. Thomas Butler, an attending Board-certified internist, provided an opinion that
1

File number xxxxxx354 is the claim that is presently before the Board. File number xxxxxx127 is not fully
accessible. OWCP accepted that on August 28, 1998 appellant sustained a strain of the rotator cuff of his left
shoulder. On his claim form for the February 11, 2001 injury, appellant indicated that he extended his left arm to
brace his fall and felt a “pop” in his left shoulder upon landing. OWCP administratively accepted his February 11,
2001 injury without formally identifying the specific accepted left shoulder condition.

appellant’s surgery was necessitated by the 1998 and 2001 work injuries. By decision dated
January 23, 2015, OWCP issued a decision, under file number xxxxxx354, denying his claim
because he did not submit sufficient medical evidence to establish that he sustained a
work-related recurrence of disability due to the August 28, 1998 work injury.
As the two claims referenced above both relate to appellant’s left shoulder condition and
he is claiming that he sustained a recurrence of disability due to his August 28, 1998 and
February 11, 2001 work injuries, it is unclear whether the record before the Board, OWCP file
number xxxxxx354, contains all the evidence that would be relevant to his recurrence of
disability claim. Its procedures provide that cases should be combined where correct
adjudication depends on cross-referencing between them.2 Hence, the Board finds that the case
is not in posture for decision as the record before the Board is incomplete and would not permit
an informed adjudication of the case by the Board. The case must therefore be remanded to
OWCP to obtain its file number xxxxxx127, to be combined with OWCP file number
xxxxxx354. After carrying out this case record reconstruction, OWCP shall issue an appropriate
merit decision regarding appellant’s claim that he sustained a recurrence of disability on
December 16, 2013 due to his August 28, 1998 and February 11, 2001 work injuries.
IT IS HEREBY ORDERED THAT the January 23, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: December 22, 2015
Washington, DC

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

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

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

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c
(February 2000).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Reading, MA, Employer
__________________________________________

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

Docket No. 08-1348
Issued: July 6, 2009

Case Submitted on the Record

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

JURISDICTION
On April 7, 2008 appellant filed a timely appeal from a January 30, 2008 decision of the
Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the schedule award determination in this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she has more
than 5 percent impairment of the right upper extremity and 15 percent impairment of the left
upper extremity, for which she received schedule awards.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated October 29, 2004,
the Board found that an overpayment in compensation was created but that the Office did not
fully explain how the amount of the overpayment was determined and improperly found
appellant to be at fault. The Board remanded the case to the Office to determine the amount of

the overpayment and whether appellant was entitled to waiver.1 The law and the facts of the
previous Board decision are incorporated herein by reference. In a March 9, 2005 decision, the
Office found appellant without fault in the creation of an overpayment in compensation in the
amount of $2,122.62 and waived recovery of the overpayment.
Appellant has accepted upper extremity conditions of tendinitis of the right hand, left
ulnar nerve entrapment, and right lateral epicondylitis.2 He was granted a schedule award on
June 12, 1993 for 10 percent permanent impairment of the left arm. A June 8, 2004
electromyography (EMG) evaluation was interpreted as demonstrating a mild, right ulnar
mononeuropathy at the ulnar groove (cubital tunnel) with no electrophysiologic evidence of right
cervical radiculopathy. On June 25 and November 30, 2004 appellant filed schedule award
claims. In reports dated February 19, April 1 and June 10, 2004, Dr. Mark A. Lapp, a Boardcertified orthopedic surgeon, discussed appellant’s cervical spine and bilateral arm conditions.
On July 8, 2004 Dr. Steven Alter, Board-certified in orthopedic and hand surgery and an
associate of Dr. Lapp, reviewed appellant’s EMG findings and discussed treatment options.
By letter dated August 5, 2004, the Office requested that appellant have her attending
physician provide an impairment analysis in accordance with the fifth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A.,
Guides).3 By report dated September 24, 2004, Dr. Charles Cassidy, Board-certified in
orthopedic and hand surgery, noted his review of medical records. He provided physical
examination findings and diagnosed bilateral cubital tunnel syndrome and bilateral lateral
epicondylitis. Dr. Cassidy reported having a long discussion with appellant regarding her
impairment and recommended right ulnar nerve transposition surgery. A form report dated
September 29, 2004 with an illegible signature, advised that appellant had normal upper
extremity range of motion and 15 percent impairment of each arm due to weakness, atrophy or
pain.4
In a January 2, 2005 report, Dr. David I. Krohn, a district medical adviser Board-certified
in internal medicine, reviewed the evidence of record. He recommended referral for an
impairment evaluation in accordance with the A.M.A., Guides. By report dated January 31,
2005, Dr. Samuel D. Gerber, a Board-certified orthopedic surgeon, noted that he last saw
appellant on August 30, 2004 with complaints of permanent numbness in the middle, ring and
pinky fingers, sore and tender forearm muscles, and continual finger and joint pain. He advised
that appellant “feels as though she has 15 percent impairment” of both upper extremities due to
left and right nerve entrapment and epicondylitis. By report dated June 6, 2005, Dr. Gerber
noted that appellant had continued symptoms of little and ring finger paresthesias in her right
upper extremity and positive Tinel’s signs at both cubital tunnels. He opined that she had 15
percent impairment on both sides and had reached a medical end point. On July 26, 2005
1

Docket No. 04-1379 (issued October 29, 2004).

2

These claims were adjudicated by the Office under file numbers xxxxxx000, xxxxxx004 and xxxxxx024
respectively. The latter two cases were doubled, with xxxxxx004 becoming the master file.
3

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

4

The signature does not appear to be that of Dr. Cassidy.

2

Dr. Krohn reviewed Dr. Gerber’s report. Although Dr. Gerber had provided an impairment
rating, he did not provide an analysis in accordance with the A.M.A., Guides. Dr. Krohn
recommended that appellant be referred for an examination to determine the extent of
impairment in accordance with the A.M.A., Guides.
The Office determined that a conflict in medical evidence had been created between the
opinions of Dr. Gerber and the Office medical adviser regarding appellant’s impairment. On
July 28, 2006 it referred appellant to Dr. William C. Walsh, a Board-certified orthopedic
surgeon, for an impartial medical evaluation. In a report dated August 15, 2006, Dr. Walsh
noted his review of the medical record, statement of accepted facts and appellant’s complaints of
third, fourth and fifth volar digit numbness with radiating pain into the ring and middle fingers of
both hands and intermittent discomfort of both elbows. He provided examination findings,
noting normal neck, shoulder, elbow, wrist and digital range of motion, no loss of strength,
wasting or atrophy, and a mild to moderate sensory loss to light touch at the hypothenar
eminence and palmar aspect of the long, ring and small fingers of both hands and mild
tenderness over the lateral epicondyle of both elbows. Dr. Walsh diagnosed mild lateral
epicondylitis of both elbows and moderate isolated ulnar sensory neuropathy of both arms. He
advised that, in accordance with the fifth edition of the A.M.A., Guides, under section 16.7d,
appellant would not be entitled to an impairment rating for lateral epicondylitis because there
was no objective evidence of strength deficit since her Jaymar Dynamometer values were well
within the expected guidelines found in Table 16-32 for her age. Under Table 16-15, Dr. Walsh
found that ulnar neuropathy below the midforearm yielded a maximum seven percent upper
extremity deficit. He found a Grade 3 sensory deficit under Table 16-10, and concluded that
appellant had three percent impairment.
On September 18, 2006 Dr. Gerber noted appellant’s continued complaints of elbow pain
and hand numbness. He diagnosed bilateral hand paresthesias, ulnar mononeuropathy, and a disc
herniation at C5-6. In an October 29, 2006 report, Dr. Krohn reviewed the medical record,
including Dr. Walsh’s report. He agreed that, under Table 16-15, an ulnar nerve impairment
below the midforearm yielded a seven percent impairment. Dr. Krohn assigned a Grade 2 or 70
percent impairment under Table 16-10, stating that appellant’s condition prevented her from
keyboarding, and concluded that 7 percent times 70 percent yielded 4.9 percent impairment
which, when round up, yielded 5 percent impairment of each upper extremity.
By decision dated December 4, 2006, appellant was granted a schedule award for five
percent impairment of each upper extremity, or 31.20 weeks of compensation. The award ran
from June 14, 2004, the date of maximum medical improvement, to January 25, 2005.
On November 6, 2007 appellant requested reconsideration and submitted reports dated
May 7, 2007 to January 24, 2008 from Dr. Gerber who noted appellant’s complaint of increased
pain in her forearms and reiterated his previous diagnostic conclusions. Dr. Gerber reported that
appellant was to have cervical spine surgery in February.
By report dated January 7, 2008, Dr. George L. Cohen, a district medical adviser and
Board-certified internist, reviewed the evidence of record and determined that, in accordance
with Table 16-15 of the fifth edition of the A.M.A., Guides, appellant had an impairment for pain
and sensory deficit of 7 percent, and determined that she had a Grade 3 impairment, for pain that

3

interfered with some activities, under Table 16-10, or 60 percent impairment. He found that 60
percent of 7 percent yielded 4 percent impairment of each upper extremity. The Office medical
adviser further found that, under section 16.7d of the A.M.A., Guides, appellant was not entitled
to an additional impairment for lateral epicondylitis as the condition was relatively mild with no
weakness, and no surgery had been performed.
In a merit decision dated January 30, 2008, the Office modified the December 4, 2006
schedule award decision to reflect that appellant was entitled to four percent impairment of each
upper extremity. It found that the prior decision was issued in error because, following
Dr. Walsh’s referee examination, the Office referred the case back to Dr. Krohn for review of the
file. However, since Dr. Krohn created a conflict, the Office should have referred the file to a
different medical adviser. The Office reopened the case for further consideration and referred
Dr. Walsh’s report to Dr. Cohen. It found that Dr. Cohen explained his findings in accordance
with the A.M.A., Guides. The Office further noted that it also erred in issuing an award of
compensation for five percent impairment of each upper extremity because it did not take into
consideration the June 2, 1993 schedule award and that appellant was receiving compensation for
loss of wage-earning capacity under file number xxxxxx004. It concluded that the decision
dated December 4, 2006 should be modified and that an amended schedule award was to be
issued for four percent permanent impairment of each upper extremity. The Office further noted
that it would take into consideration the previously issued schedule awards as well as
compensation paid under file number xxxxxx004 in determining the amount of an overpayment
incurred in this case.5
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act6 and its
implementing regulations7 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. The Act, however, does not specify the manner in which the percentage of loss shall
be determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be

5

The record before the Board does not contain an amended schedule award decision or a preliminary or final
overpayment decision. The Board also notes that under file number xxxxxx004 appellant filed a recurrence claim
on January 23, 2008 alleging that on that day she stopped work because her job duties exacerbated her accepted
bilateral ulnar nerve and epicondylitis conditions. Her supervisor noted that on January 11, 2008 appellant had filed
a claim for neck pain, adjudicated under Office file number xxxxxx584. By decision dated April 1, 2008, the Office
denied the recurrence claim, and in a February 6, 2009 decision, an Office hearing representative affirmed the
April 1, 2008 decision, noting that the appellant’s neck claim had been accepted for cervical myelopathy and disc
herniation at C5-6 and she had been compensated for wage loss under that claim beginning on January 23, 2008
when she stopped work. Appellant has not filed an appeal with the Board regarding the April 1, 2008 or February 6,
2009 decisions.
6

5 U.S.C. §§ 8101-8193.

7

20 C.F.R. § 10.404.

4

uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.8
Chapter 16 of the fifth edition of the A.M.A., Guides provides the framework for
assessing upper extremity impairments.9 Section 16.5b of the A.M.A., Guides describes the
methods for evaluating upper extremity impairments due to peripheral nerve disorders and
provides that the severity of the sensory or pain deficit and motor deficit should be classified
according to Tables 16-10a and 16-11a respectively. The impairment is evaluated by
multiplying the grade of severity of the sensory or motor deficit by the respective maximum
upper extremity value resulting from sensory or motor deficits of each nerve structure involved.
When both sensory and motor functions are involved, the impairment values derived for each are
combined.10
Office procedures contemplate that, after obtaining all necessary medical evidence, the
file should be routed to an Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified, especially when there is more
than one evaluation of the impairment present.11
ANALYSIS
The Board finds this case is not in posture for decision. The record reflects that appellant
received a schedule award for 10 percent impairment of the left upper extremity on June 12,
1993 and a schedule award for 5 percent impairment of each upper extremity on
December 4, 2006.
The Office determined that a conflict in medical evidence was created between
Dr. Gerber, an attending orthopedic surgeon, and Dr. Krohn, an Office medical adviser,
regarding the degree of appellant’s upper extremity impairments and referred appellant to
Dr. Walsh for an impartial evaluation. Section 8123(a) of the Act provides that, if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician who shall make an
examination.12 The Board, however, finds that there was no disagreement between Dr. Gerber
and Dr. Krohn. The only medical reports that discussed a specific impairment rating prior to the
referral to Dr. Walsh in July 2006 were the September 29, 2004 form report with an illegible
signature that concluded that appellant had bilateral upper extremity impairments of 15 percent
and Dr. Gerber’s June 6, 2005 conclusory opinion that appellant had 15 percent bilateral upper
8

Ronald R. Kraynak, 53 ECAB 130 (2001).

9

A.M.A., Guides, supra note 3 at 433-521.

10

Id. at 481; Kimberly M. Held, 56 ECAB 670 (2005).

11

Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002); Frantz Ghassan, 57 ECAB 349 (2006).
12

5 U.S.C. § 8123(a).

5

extremity impairments. The 2004 report is insufficient to establish that appellant was entitled to
an increased schedule award as reports with illegible signatures do not constitute competent
medical evidence.13 Similarly, Dr. Gerber’s June 6, 2005 report is of little probative value
because he provided no analysis in accordance with the A.M.A., Guides.14 Thus, there was no
conflict in the medical evidence as contemplated under section 8123(a) requiring a referee
examination.15 The referral to Dr. Walsh was for a second opinion examination.16
In an August 15, 2006 report, Dr. Walsh referenced the fifth edition of the A.M.A.,
Guides, and properly advised that, under section 16.7d, appellant was not entitled to an
impairment rating for her accepted lateral epicondylitis because there was no objective evidence
of a strength deficit.17 He advised that, under Table 16-15,18 ulnar neuropathy below the
midforearm was allowed a maximum 7 percent sensory impairment and found a Grade 3 deficit
under Table 16-10.19 Dr. Walsh concluded that appellant had three percent bilateral upper
extremity impairments.20
In an October 29, 2006 report, Dr. Krohn reviewed the medical record. He agreed that,
under Table 16-15, an ulnar nerve impairment below the midforearm was a maximum 7 percent
impairment. Dr. Krohn assigned a Grade 2 or 70 percent deficit under Table 16-10, stating that
appellant’s condition prevented her from keyboarding. He utilized Table 16-10 by multiplying
the 7 percent found in Table 16-15 by the 70 percent Grade 2 impairment to yield a 4.9 percent
impairment which, when round up, yielded a 5 percent impairment of each upper extremity. The
Office used Dr. Krohn’s report as the basis of the December 4, 2006 schedule award.
On reconsideration the Office referred Dr. Walsh’s report to Dr. Cohen, a second Office
medical adviser, for review. On January 7, 2008 Dr. Cohen found that, in accordance with Table
16-15, appellant had an impairment for pain and sensory deficit of seven percent. He determined
that under Table 16-10 she had a Grade 3 or 60 percent deficit for pain that interfered with some
activities. Dr. Cohen properly multiplied the 60 percent by the maximum 7 percent to yield a 4
percent impairment of each upper extremity. He further found that, under section 16.7d of the
A.M.A., Guides, appellant was not entitled to an additional impairment for lateral epicondylitis
as the condition was relatively mild with no weakness and no surgery had been performed.

13

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

14

Richard A. Neidert, 57 ECAB 474 (2006).

15

Id.

16

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

17

A.M.A., Guides, supra note 3 at 507.

18

Id. at 492.

19

Id. at 482.

20

The Board notes that in his report Dr. Walsh did not provide a percentage of impairment under Table 16-10
which provides that a Grade 3 impairment can have a range of between 26 and 60 percent. Id. It would, however,
appear, that he rated appellant’s impairment in the 42 to 43 percent range.

6

Office procedures indicate that referral to an Office medical adviser is appropriate when a
detailed description of the impairment from the attending physician is obtained.21 In this case,
there are various medical opinions among the three physicians representing the government.
Dr. Walsh, who provided a second opinion evaluation for the Office, determined that appellant
had a Grade 3 bilateral upper extremity deficit. Drs. Krohn and Cohen, Office medical advisers,
found Grade 2 and Grade 3 deficits in rendering their impairment estimates. The case will be
remanded to the Office for clarification.22 Following such development, as the Office deems
necessary, it shall issue an appropriate merit decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 30, 2008 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for proceedings consistent
with this opinion of the Board.
Issued: July 6, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Evaluation of Schedule Awards, Chapter 2.808.6(d)
(August 2002).
22

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Woodbridge, NJ, Employer
__________________________________________

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

Docket No. 13-2081
Issued: March 7, 2014

Case Submitted on the Record

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

JURISDICTION
On September 11, 2013 appellant, through his attorney, filed a timely appeal from a
June 20, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined appellant’s pay rate for compensation
purposes.
FACTUAL HISTORY
This case was previously before the Board. In a decision dated November 21, 2008, the
Board noted that OWCP accepted that appellant sustained a right ankle and foot sprains in the

1

5 U.S.C. § 8101 et seq.

performance of duty on January 9, 1999.2 OWCP issued a July 20, 2005 schedule award
decision for a 53 percent right leg permanent impairment. The pay rate for compensation
purposes was $340.25 a week, based on an hourly wage of $13.61 at 25 hours per week.
Appellant argued that his pay rate was incorrectly determined. The Board remanded the case for
further development, noting that OWCP had not explained how it had applied 5 U.S.C. § 8114(d)
in determining his pay rate.
By order dated December 22, 2010, the Board remanded the case for further development
on the pay rate issue.3 The evidence required clarification as to appellant’s pay. The employing
establishment stated that appellant was a probationary employee who worked only 35 days and
averaged 25 hours a week. Appellant contended that he worked more than 35 days and generally
worked 40 hours per week. The history of the case as provided in the Board’s prior decision and
order are incorporated herein by reference.
In a letter dated April 18, 2011, OWCP requested additional information from the
employing establishment as to appellant’s rate of pay on January 9, 1999. An employing
establishment human resources employee completed a form dated April 21, 2011, stating that
appellant was a part-time flexible employee that worked 35 days and averaged 25 hours a week.
By decision dated August 24, 2011, OWCP denied appellant’s claim for an increased pay
rate.
Appellant requested a hearing before an OWCP hearing representative, which was held
on January 4, 2012. By decision dated March 28, 2012, the hearing representative vacated the
August 24, 2011 decision. The hearing representative found that the evidence remained
insufficient to properly determine the pay rate and the employing establishment was requested to
provide additional information.
In a letter dated October 17, 2012, an employing establishment human resources
specialist stated that appellant had been hired on December 19, 1998 as a part-time flexible
carrier at $13.61 per hour. From December 19, 1998 to January 8, 1999, appellant had worked
75.16 hours at an average of 25 hours per week. According to the employing establishment, he
was hired as a 90-day probationary employee and his employment was terminated during the
probationary period. In addition, the employing establishment noted that appellant had worked
462.71 hours from August 15 to November 6, 1998 as a part-time flexible carrier, averaging
37.73 hours per week. It stated that this probationary employment was terminated on
November 6, 1998.
By decision dated January 3, 2013, OWCP denied appellant’s claim for an increased pay
rate. It found that the employing establishment had previously indicated that it did not have
information regarding any similarly situated employees from 10 years earlier.

2

Docket No. 08-1296 (issued November 21, 2008).

3

Docket No. 10-547 (issued December 22, 2010).

2

Appellant requested a review of the written record. On April 9, 2013 OWCP received a
W2 form (wage and tax statement) for 1998 from the employing establishment showing
appellant’s earnings of $7,642.32.
By decision dated June 20, 2013, an OWCP hearing representative found that the
evidence did not support a higher pay rate. He determined that 5 U.S.C. § 8114(d)(3) was
applicable in this case, as appellant was not employed in the date-of-injury job for substantially
the year preceding the January 9, 1999 injury, nor would the position have afforded employment
for substantially the whole year. Applying 5 U.S.C. § 8114(d)(3), the hearing representative
found that the total earnings for the year prior to January 9, 1999 was $7,982.57 ($7,642.35 +
$340.25) in 104 days of work, for an average daily wage of $76.76. This represented a pay rate
of $221.42 per week using the 150 times the daily wage calculation.
LEGAL PRECEDENT
Section 8114(d) of FECA provides:
Average annual earnings are determined as follows:
“(1) If the employee worked in the employment in which he was employed at the
time of his injury during substantially the whole year immediately preceding the
injury and the employment was in a position for which an annual rate of pay-(A) was fixed, the average annual earnings are the annual rate of pay; or
(B) was not fixed, the average annual earnings are the product obtained by
multiplying his daily wage for particular employment, or the average
thereof if the daily wage has fluctuated, by 300 if he was employed on the
basis of a 6-day workweek, 280 if employed on the basis of a 5 1/2-day
week, and 260 if employed on the basis of a 5-day week.
“(2) If the employee did not work in employment in which he was employed at
the time of his injury during substantially the whole year immediately preceding
the injury, but the position was one which would have afforded employment for
substantially a whole year, the average annual earnings are a sum equal to the
average annual earnings of an employee of the same class working substantially
the whole immediately preceding year in the same or similar employment by the
United States in the same or neighboring place, as determined under paragraph
(1) of this subsection.
“(3) If either of the foregoing methods of determining the average annual earnings
cannot be applied reasonably and fairly, the average annual earnings are a sum
that reasonably represents the annual earning capacity of the injured employee in
the employment in which he was working at the time of the injury having regard
to the previous earnings of the employee in federal employment, and of other
employees of the United States in the same or most similar employment in the
same or neighboring location, other previous employment of the employee, or

3

other relevant factors. However, the average annual earnings may not be less than
150 times the average daily wage the employee earned in the employment during
the days employed within one year immediately preceding his injury.”
ANALYSIS
The case has undergone development with respect to the pay rate issue. OWCP has
secured additional evidence on the issue, and the hearing representative of the provisions of 5
U.S.C. § 8114(d) in the June 20, 2013 decision. There remains an additional issue with respect
to pay rate that requires additional findings.
The record supports that the date-of-injury job did not provide employment for
substantially the whole year prior to January 9, 1999. It is well established that an employee
must work at least 11 months before the injury to establish “substantially the whole year”
preceding the injury.4 As to whether the job would have provided employment for substantially
the whole year, the Board noted in its November 21, 2008 decision that the employing
establishment had indicated the job would not meet this requirement. There was no evidence
then of record that the job would have afforded employment for substantially the whole year
prior to the injury. Therefore the evidence indicates that 5 U.S.C. § 8114(d)(3) would be
appropriate to determine appellant’s pay rate, as neither of the prior methods are applicable. As
noted, this section provides that average annual earnings is based on a review of any relevant
factors regarding employment, including previous employment or employment of other similarly
situated employees. Average annual earnings cannot be less than 150 times the average daily
wage during the year preceding the injury. Appellant was a part-time flexible employee who
was hired on a probationary basis.
The hearing representative attempted to use the available evidence as to appellant’s
earnings from the employing establishment and his 1998 tax form. He calculated that appellant
earned $7,982.57 in the year prior to January 9, 1999. The hearing representative found that
appellant worked 104 days, which represented 83 days for the period August 15 to November 6,
1998, and 21 days from December 19 to January 8, 1999. This appears to represent the total
number of calendar days for the periods worked, not the actual days worked. The “average daily
wage” is the daily wage for employment “during the days employed,” not the total calendar days
of employment.5 There is no evidence presented that appellant worked seven days per week.
The period August 15 to November 6, 1998 is approximately 12 weeks and from December 19 to
January 8, 1999 approximately 3 weeks. If appellant worked 5 days a week, this would result in
only 75 days (60 + 15) of work. If he worked 4 days a week, this is only 60 days of work, and
consequently a higher daily wage. The evidence of record is not clear on this point. The CA-1
claim form listed the work schedule as flexible and work hours from two to four hours a day.

4

See S.H., Docket No. 10-106 (issued July 8, 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Determining Pay Rates, Chapter 2.900.4 (August 2012).
5

See, e.g., Eric B. Petersen, 57 ECAB 680 (2006) (OWCP must determine average daily wage for the actual days
worked).

4

The case will be remanded to OWCP for proper clarification of its findings as to the
average daily wage. After such further development as OWCP deems necessary, it should issue
an appropriate decision.
CONCLUSION
The Board finds the case requires additional development and proper findings on the pay
rate issue.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 20, 2013 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: March 7, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Newark, NJ, Employer
__________________________________________

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

Docket No. 15-0556
Issued: August 18, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 12, 2015 appellant filed a timely appeal from a December 2, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish more than 13 percent
impairment of the left leg for which he received schedule awards.
On appeal appellant maintains that the Board found that the opinion of an OWCP referral
physician established that he had a 26 percent left lower extremity impairment.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board. In an April 16, 2014 decision, the Board
found the case was not in posture for decision regarding whether appellant had more than 10
percent permanent impairment of the left leg. The Board noted that the accepted conditions were
left medial and lateral meniscal tears. The Board noted that in a March 11, 2013 report,
Dr. Emily Hoff-Sullivan, a Board-certified orthopedic surgeon and OWCP referral physician,
indicated that a February 5, 2013 left knee x-ray demonstrated severe degenerative changes and a
one-millimeter joint interval of the medial and patellofemoral compartments. She advised that
appellant’s left knee arthritis had advanced since the 2008 injury and concluded that he had 26
percent left leg impairment based on a diagnosis of class 3 primary knee joint arthritis. The
Board remanded the case to OWCP, as the record clearly established that appellant had
preexisting left knee joint arthritis, which should have been considered in determining the extent
of impairment. On remand OWCP was to obtain a supplemental report from its medical adviser,
Dr. Arnold T. Berman, a Board-certified orthopedist, who had previously found only 10 percent
left leg impairment because it was inappropriate to rate impairment for arthritis if it was not an
accepted condition.2
Following remand, OWCP forwarded the Board’s decision to Dr. Berman for review. In
an April 25, 2014 report, Dr. Berman noted his review of the medical record, including Dr. HoffSullivan’s report. He conceded that she had correctly found 26 percent impairment based on a
one millimeter cartilage interval found on the February 5, 2013 x-ray. He, however, stated:
“Dr. Hoff-Sullivan stated that the arthritis had advanced since 2008. This could
be the case. However, it is not well documented and the degree of advancement
is highly questionable. Therefore, this requires apportionment. Apportionment is
described and defined by the [American Medical Association], Guides to the
Evaluation of Permanent Impairment, sixth edition, page 609 as follows: ‘The
extent to which each of two or more probable causes are found responsible for an
effect (injury, disease, impairment, etc.), only probable causes (at least more
probable than not) are included. Hence, the first step in apportionment is
scientifically-based causation analysis. Second, one must allocate responsibility
among the probable causes and select apportionment percentages consistent with
the medical literature and facts of the case in question. Arbitrary, merely opinion
based unscientific apportionment estimates which are nothing more than
speculations, must be avoided.
Apportionment impairment can also be
apportioned to more than one cause.’”
The medical adviser indicated that, based on this definition and the medical facts available,
appellant should receive a 50 percent apportionment which would result in 13 percent left lower
extremity impairment.
In a June 4, 2014 decision, appellant was granted a schedule award for an additional three
percent impairment of the left leg, for a total impairment of 13 percent. He timely requested a
2

Docket No. 14-76 (issued April 16, 2014).

2

hearing which was held on September 19, 2014. At the hearing, appellant testified that his
condition had worsened since the 2008 injury. He stated that he was also receiving Department
of Veterans Affairs (VA) disability for his left knee, described a 1990 ankle injury, and
maintained that the opinion of OWCP referral physician should be credited.
By decision dated December 2, 2014, an OWCP hearing representative affirmed the
June 4, 2014 schedule award decision.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing federal regulations4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the second printing of the American Medical Association, Guides to the Evaluation of
Permanent Impairment5 (hereinafter A.M.A., Guides) as the uniform standard applicable to all
claimants.6 For decisions after May 1, 2009, the sixth edition of the A.M.A., Guides will be
used.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the Class of Diagnosis (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE), and
Clinical Studies (GMCS).9 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX).10 Under Chapter 2.3, evaluators are directed to provide reasons for their
impairment rating choices, including choices of diagnoses from regional grids and calculations
of modifier scores.11
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

A.M.A., Guides (6th ed. 2008).

6

20 C.F.R. § 10.404(a).

7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); see also Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a
(February 2013).
8

A.M.A., Guides, supra note 5 at 4, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
9

Id. at 494-531.

10

Id. at 521.

11

Id. at 23-28.

3

OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.12
It is well established that in determining entitlement to a schedule award, preexisting
impairment to the scheduled member is to be included. There are no provisions for
apportionment under FECA.13 Rated impairment should reflect the total loss as evaluated for the
scheduled member at the time of the rating examination.14
ANALYSIS
The Board finds this case is not in posture for decision. In its April 16, 2014 decision,
the Board remanded the case for a supplemental report from Dr. Berman, its medical adviser,
after reviewing Dr. Hoff-Sullivan’s March 11, 2013 report.15 She had found 26 percent
impairment due to class 3 primary knee joint arthritis.
In his April 25, 2014 report, Dr. Berman apportioned the arthritis rating found by
Dr. Hoff-Sullivan. He indicated that appellant should receive a 50 percent apportionment or 13
percent left lower extremity impairment due to arthritis.
As noted in the Board’s April 16, 2014 decision and explained above, there are no
provisions for apportionment under FECA,16 and rated impairment should reflect the total loss as
evaluated for the scheduled member at the time of the rating examination.17 As Dr. Berman’s
April 25, 2014 report did not cure the deficiencies noted previously by the Board, the case must
again be remanded for OWCP to obtain a supplemental report from OWCP medical adviser
regarding the degree of appellant’s left lower extremity impairment.18
The Board also notes that appellant testified at the September 19, 2014 hearing that he
was receiving VA benefits for his left knee. Section 8116(a) of FECA provides that while an
employee is receiving workers’ compensation benefits, he or she may not receive salary, pay, or
remuneration of any type from the United States, except in return for services actually performed
or for certain payments related to service in the armed forces, including benefits administered by
the VA, unless such benefits are payable for the same injury or the same death being

12

See supra note 7 at Chapter 2.808.6(f) (February 2013).

13

Peter C. Belkind, 56 ECAB 580 (2005).

14

Supra note 7 at Chapter 2.808.5d (February 2013).

15

Supra note 2.

16

Supra note 13.

17

Supra note 14.

18

Id.; see also C.W., Docket No. 09-290 (issued January 28, 2010).

4

compensated for under FECA.19 Thus, there is a prohibition against an employee receiving
benefits under both FECA and VA for the same injury, including any increase in a serviceconnected disability.20 The accepted conditions in this case include aggravation of preexisting
tear of the medial meniscus of the left knee and derangement of left lateral meniscus. On remand
OWCP should secure information from the VA regarding appellant’s left knee disability to
determine if his VA benefits would preclude entitlement under FECA.
After this and such further development deemed necessary, OWCP shall issue an
appropriate merit decision.
CONCLUSION
The Board finds this case is not in posture for decision regarding the degree of
appellant’s left lower extremity impairment.
ORDER
IT IS HEREBY ORDERED THAT the December 2, 2014 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded to OWCP for proceedings
consistent with this opinion of the Board.
Issued: August 18, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

19

5 U.S.C. § 8116(a).

20

Kelvin L. Davis, 56 ECAB 404 (2005).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Queens Village, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0285
Issued: May 25, 2018

Case Submitted on the Record

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

JURISDICTION
On November 21, 2016 appellant, through counsel, filed a timely appeal from a
September 28, 2016 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 claim.

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 his burden of proof to establish an injury causally
related to the accepted October 8, 2015 employment incident.
FACTUAL HISTORY
On October 8, 2015 appellant, then a 39-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that, while in the performance of duty on that date, she missed
a step which caused her to step down on her left ankle and fall down. She claimed injury to her
left ankle, left knee, left hand, and right hip. On the reverse side of the claim form, the employing
establishment indicated that appellant had related that she sprained her right ankle, but later
claimed that her left ankle was injured. It further noted that appellant had a brace on her right
ankle. Appellant stopped work on October 8, 2015.
In an October 8, 2015 statement, appellant indicated “when I turned there was no step and
I stepped down on my left ankle and fell to the ground on my hands and knees.”
In the October 8, 2015 authorization for examination and/or treatment (Form CA-16), the
injury was described as “tripped on steps, abrasion on right knee, twisted right ankle.” In the
attending physician’s portion of the October 8, 2015 Form CA-16, Dr. Sudhir Kathuria, an
internist and Board-certified radiologist, indicated that appellant fell off an uneven step. He
diagnosed right ankle and heel strains and placed appellant on sedentary work. In an October 12,
2015 duty status report (Form CA-17), Dr. Kathuria indicated that on October 8, 2015 appellant
had tripped on step, fell, and twisted her right ankle. A diagnosis of anterior talofibular ligament
(ATFL) tear and right knee trauma was provided.
In a development letter dated October 28, 2015, OWCP notified appellant of the type of
factual and medical evidence needed to substantiate her claim. It afforded appellant 30 days to
submit the necessary evidence.
OWCP thereafter received an October 8, 2015 duty status report (Form CA-17) from
Dr. Kathuria. Appellant’s history of injury was noted as tripped on a step, fell, twisted right ankle.
A right ankle sprain was diagnosed.
By decision dated December 2, 2015, OWCP denied the claim, finding that fact of injury
had not been established. Specifically, it found that the history reported by appellant of a left ankle
injury was inconsistent with the medical records which contained right ankle and knee diagnoses.
On December 28, 2015 OWCP received appellant’s December 18, 2015 request for a
telephonic hearing before OWCP’s hearing representative. A telephonic hearing was held on
August 10, 2016. During the hearing, appellant denied any problems with her ankles, knees,
hands, and hip prior to working for the employing establishment. She testified that, on October 8,
2015, she went to place a package in the mailbox by a house and her foot slipped on the gravel,
turning her right foot over, and she fell to her hands and knees. Appellant stated that she reported
the incident to her supervisor while she was still on the ground and had filled out the CA-1 form
at the employing establishment before seeing the doctor.

2

Medical records were received prior to and after the hearing. Several diagnostic tests were
received. These included: an August 21, 2015 lumbar magnetic resonance imaging (MRI) scan
report, which noted disc herniation at L5-S1 encroaching the right S1 nerve without compression
or central stenosis; a September 1, 2015 MRI scan of the bony pelvis, which noted moderate
bilateral gluteal tendinopathy and bursitis at both greater trochanters left greater than right; an
October 8, 2015 right ankle x-ray, which found no evidence of an acute fracture, dislocation, or
subluxation;3 and a December 11, 2015 right wrist MRI scan, which noted subcortical cysts, bone
spurs, and scarring related to prior carpal tunnel surgery involving the flexor retinaculum.
In an October 23, 2015 report, Dr. Delys St. Hill, a physiatrist, reported a history of
appellant stepping off a stoop while delivering mail, twisting her right ankle, and falling to the
ground. He noted that a soft cast had been placed on appellant’s right ankle on the date of injury.
He noted that she could not stand up because she could not put weight on her right foot. Dr. St. Hill
diagnosed lumbar myofascitis, lumbar radiculopathy, right ankle sprain, and right wrist contusion.
In a December 12, 2015 report, Dr. Alfred F. Faust, an orthopedic surgeon, noted that
appellant fell at work on October 8, 2015. Her past medical history included ankle swelling and
carpal tunnel release. Dr. Faust diagnosed gluteal tendinitis and lumbar radiculopathy. He noted
that physical therapy and injections for the hips/gluteal tendinitis had not responded long term and
a lumbar MRI scan was pending.
In a December 15, 2015 report, Dr. Shyam K. Vekaria, an orthopedic surgeon, noted that
Dr. Faust had referred appellant for consultation regarding her left hip. A history of a slip and fall
on October 18, 2015 with injuries to the ankle, hands, and knees was provided. Dr. Vekaria noted
a past history of ankle swelling and carpal tunnel release. She also noted results of a left hip MRI
scan, which contained impressions of gluteal tendinopathy and bursitis. Dr. Vekaria provided an
assessment of left hip abductor tendinitis and left greater trochanteric bursitis.
In a December 11, 2015 report, Dr. Joshua Mitgang, an orthopedic surgeon, noted a history
of a fall on October 8, 2015. He reported that appellant slipped on loose gravel, twisting her right
ankle and landing on both hands and both knees. Dr. Mitgang explained that appellant reinjured
her right hand which was status post March 2015 carpal tunnel release. An assessment of closed
right scaphoid fracture, right ankle sprain, and left knee medial collateral ligament sprain was
provided.
Physical therapy reports were also submitted.
By decision dated September 28, 2016, an OWCP hearing representative modified
OWCP’s December 2, 2015 decision to accept fact of injury, but affirmed the denial of the claim
as causal relationship was not established. He accepted that appellant’s right foot slipped on gravel
and she fell on her hands and knees based upon her testimony at the hearing. The hearing
representative related that the employing establishment had not contested this description of the
October 8, 2015 incident.

3
A January 13, 2016 obstetric ultrasound was also of record. The record reflects appellant was treated on
January 13, 2016 at North Shore Hospital for pregnancy and low back pain.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA4 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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.7 In order to determine whether an
employee actually sustained an injury in the performance of duty, OWCP begins with an analysis
of whether fact of injury has been established. Generally, fact of injury consists of two components
which must be considered in conjunction with one another. The first component to be established
is that the employee actually experienced the employment incident which is alleged to have
occurred.8 The second component is whether the employment incident caused a personal injury
and generally can be established only by medical evidence.9
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The opinion
of the physician must be based on a complete factual and medical background of the claimant,
must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.10
Where there is medical evidence of a preexisting condition involving the same part of the
body as the claimed employment injury, the issue of causal relationship invariably requires inquiry
into whether there was employment-related aggravation, acceleration, or precipitation of the
underlying condition.11 Accordingly, the physician must provide a rationalized medical opinion
which differentiates between the effects of the work-related injury or disease and the preexisting
4

Supra note 2.

5

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

6

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

7

See S.P., 59 ECAB 184, 188 (2007).

8

D.H., Docket No. 17-0520 (issued April 23, 2018); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

9

Id.

10

Solomon Polen, 51 ECAB 341 (2000).

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

4

condition.12 Such evidence will permit the proper kind of acceptance, such as whether the
employment-related aggravation was temporary or permanent.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury on October 8, 2015 causally related to the accepted employment incident.
OWCP accepted that on October 8, 2015 appellant’s right foot slipped on loose gravel and
she fell to her hands and knees and that medical diagnoses have been provided for right ankle,
wrist, back, and knee conditions, as well as a left hip condition. It denied the claim, however, as
the medical evidence of record failed to establish causal relationship between the accepted
employment incident and the diagnosed medical conditions.
While Dr. Kathuria diagnosed right ankle conditions, his form reports contain an inaccurate
history of injury and medical history. He reported that the injury resulted from a trip and fall from
a step. However, OWCP has not accepted that appellant fell from a step on October 8, 2015. The
Board has held that medical reports must be based on a complete and accurate factual and medical
background. Medical opinions based on an incomplete or inaccurate history are of limited
probative value.14 Moreover, Dr. Kathuria did not provide a well-rationalized medical opinion
explaining how appellant’s right ankle condition was causally related to her accepted employment
incident of slipping on loose gravel and falling. As his description of the October 8, 2015 incident
is inaccurate, his opinion pertaining to causal relationship of appellant’s right ankle condition is of
little probative value.15 Therefore, Dr. Kathuria’s reports are insufficient to establish causal
relationship.
Dr. St. Hill diagnosed lumbar myofascitis, lumbar radiculopathy, right ankle sprain, and
right wrist contusion. However, she reported an inaccurate history of injury of appellant stepping
off a stoop and offered no explanation as to how the accepted October 8, 2015 work incident
caused or contributed to the diagnosed conditions.16 Furthermore, as the back condition appears
to be a preexisting condition affecting the same part of the body where a work injury or illness is
claimed, Dr. St. Hill failed to provide a rationalized medical opinion which differentiates between
the effects of the employment-related injury or disease and the preexisting back condition.17 She
did not provide a medically sound explanation of how the accepted October 8, 2015 work incident
caused or aggravated her conditions. This is especially important because appellant had evidence

12

Id.

13

Id.

14
C.L., Docket No. 14-1585 (issued December 16, 2014); J.R., Docket No. 12-1099 (issued November 7, 2012);
Douglas M. McQuaid, 52 ECAB 382 (2001).
15

See F.H., Docket No. 16-0204 (issued April 8, 2016).

16

Id.

17

See M.W., Docket No. 15-0082 (issued March 9, 2015).

5

of a preexisting condition.18 Therefore, Dr. St. Hill’s report is insufficient to establish appellant’s
claim.
Dr. Faust noted that appellant fell at work on October 8, 2015. While he diagnosed gluteal
tendinitis and lumbar radiculopathy, he provided no rationalized explanation supported by
objective findings to establish how the diagnosed conditions were caused or aggravated by the
October 8, 2015 work incident.19 Dr. Faust also does not distinguish the effects of appellant’s
preexisting back conditions from the October 8, 2015 work incident.20 His report therefore is
insufficient to establish that appellant’s diagnosed conditions are causally related to the October 8,
2015 work incident.21
Dr. Vekaria provided an accurate history of a slip and fall on October 18, 2015 and also
noted a history of carpal tunnel release. She discussed the results of a left hip MRI scan and
provided an assessment of left hip abductor tendinitis and left greater trochanteric bursitis.
However, Dr. Vekaria failed to explain how left hip tendinitis was causally related to the
October 8, 2015 work incident. A medical opinion should reflect a correct history and offer a
medically sound explanation by the physician of how the specific employment incident
physiologically caused or aggravated the diagnosed conditions.22 Accordingly, Dr. Vekaria’s
report is insufficient to establish appellant’s claim.
In a December 11, 2015 report, Dr. Mitgang noted an accurate history of a fall on
October 8, 2015. He reported that appellant slipped on loose gravel, twisting her right ankle, and
landing on both hands and both knees. Dr. Mitgang indicated that she reinjured her right hand
which was status post March 2015 carpal tunnel release. He provided an assessment of closed
right scaphoid fracture, right ankle sprain, and left knee medial collateral ligament sprain.
Dr. Mitgang, however, failed to explain how the diagnosed conditions resulted from the October 8,
2015 work incident. Absent an explanation, Dr. Mitgang’s report is insufficient to establish causal
relationship.23
Also of record are reports and records from physical therapists. However, physical
therapists are not considered physicians under FECA and are not competent to render a medical
opinion.24 Thus, these reports are insufficient to establish appellant’s claim.

18

See S.D., Docket No. 16-0999 (issued October 16, 2017).

19

See supra note 11.

20

Id.

21

T.W., Docket No. 15-1603 (issued October 20, 2015).

22

See J.M., Docket No. 17-1002 (issued August 22, 2017).

23

Id.

24

See David P. Sawchuk , 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection 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).

6

The diagnostic testing of record is also of diminished probative value and is insufficient to
establish appellant’s claim as diagnostic testing does not provide an opinion on the cause of the
diagnosed conditions.25
Accordingly, the medical evidence of record is without a well-rationalized medical opinion
establishing that the diagnosed conditions are causally related to the accepted October 8, 2015
employment incident. OWCP advised appellant that it was her responsibility to provide a
comprehensive medical report explaining how the diagnosed medical condition was caused by the
accepted employment incident. Appellant failed to submit appropriate medical documentation in
response to OWCP’s request.26
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.27 An award of compensation may not
be based on surmise, conjecture, speculation, or upon appellant’s own belief that there was a causal
relationship between his or her condition and his or her employment.28 Causal relationship must
be based on rationalized medical opinion evidence.29 As appellant has not submitted a rationalized
medical opinion supporting that her diagnosed conditions were causally related to the accepted
October 8, 2015 employment incident, she did not meet her burden of proof to establish an
employment-related traumatic injury.
On appeal counsel argues that OWCP’s decision is boilerplate and contains no analysis or
rationalization. Based on the findings and reasons stated above, the Board finds that counsel’s
arguments are not substantiated.30
Finally, the Board notes that the employing establishment executed a Form CA-16 on
October 8, 2015 authorizing medical treatment. The Board has held that where an employing
establishment properly executes a Form CA-16, which authorizes medical treatment as a result of
an employee’s claim for an employment-related injury, it creates a contractual obligation, which
does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim.31 Although OWCP denied appellant’s claim for an injury, it did

25

See C.P., Docket No. 15-0600 (issued June 2, 2015).

26

See D.B., Docket No. 16-1219 (issued November 8, 2016); see also T.H., Docket No. 15-0772 (issued
May 12, 2016).
27

L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB
559 (2006).
28

Patricia J. Glenn, 53 ECAB 159, 160 (2001).

29

M.E., Docket No. 14-1064 (issued September 29, 2014).

30

See E.L., Docket No. 16-0635 (issued November 7, 2016).

31
See R.B., Docket No. 16-0885 (issued November 25, 2016); D.M., Docket No. 13-0535 (issued June 6, 2013).
See also 20 C.F.R. §§ 10.300 and 10.304.

7

not address whether she is entitled to reimbursement of medical expenses pursuant to the Form
CA-16. The Board finds that, upon return of the case record, this matter should be addressed.32
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established an injury causally related to the accepted
October 8, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated September 28, 2016 is affirmed.
Issued: May 25, 2018
Washington, DC

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

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

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

32

See R.B., id.; see also T.K., Docket No. 16-0813 (issued July 20, 2016).

8