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

)
)
)
)
)
)
)
)

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

Docket Nos. 13-2120 &
14-33
Issued: September 4, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On September 16, 2013 appellant, through her attorney, filed a timely appeal from merit
decisions of the Office of Workers’ Compensation Programs’ (OWCP) dated May 14, 2013
terminating her compensation benefits and March 27 and July 9, 2013 denying her occupational
disease claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation
benefits effective July 9, 2012 on the grounds that she no longer had any residuals or disability
causally related to her accepted employment-related injury in OWCP File No. xxxxxx957;
(2) whether appellant had any continuing employment-related residuals or disability after
July 9, 2012 in OWCP File No. xxxxxx957; and (3) whether she established a left ankle injury
causally related to factors of her federal employment in OWCP File No. xxxxxx886.
On appeal, counsel contended that appellant’s claims under OWCP File Nos. xxxxxx957
and xxxxxx886 be consolidated as they were duplicate claims. He asserted that they have the
1

5 U.S.C. § 8101 et seq.

same date of awareness of the injury and factors of employment. Counsel further asserted that
appellant filed the second claim because her work factors continued and she experienced pain
and required additional surgery.
FACTUAL HISTORY

On January 8, 2010 appellant, then a 51-year-old regular rural carrier, filed an
occupational disease claim (Form CA-2) under OWCP File No. xxxxxx957 alleging that she first
became aware of her bilateral foot condition on January 1, 2007. She alleged that on
September 6, 2009 she first realized that her condition was caused by her work duties, which
included standing three to five hours a day and hopping out of a long-life vehicle (LLV) 30 times
a day while delivering mail. Appellant’s regular work schedule was from 7:30 a.m. to 3:30
p.m., Monday through Saturday.
By letter dated April 21, 2010, OWCP accepted appellant’s claim for traumatic bilateral
plantar fasciitis. It paid her total disability compensation benefits.
On May 28, 2010 appellant stopped work. On June 2, 2010 she returned to full-duty
work. Appellant again stopped work on July 3, 2010. On August 17, 2010 she underwent
authorized partial release of the medical band of the plantar fascia of the left foot. On
November 18, 2010 appellant returned to part-time limited-duty work, four hours a day. Her
work hours increased to seven hours every other day commencing January 6, 2011. On
February 10, 2011 appellant began performing limited-duty work eight hours a day every other
day.
By letter dated March 24, 2011, OWCP referred appellant, together with a statement of
accepted facts and the medical record, to Dr. Robert A. Smith, a Board-certified orthopedic
surgeon, for a second opinion to determine whether she had any employment-related residuals or
disability. In an April 18, 2011 medical report, Dr. Smith diagnosed traumatic bilateral plantar
fasciitis. He advised that, although appellant had pain in her feet, there were no objective test
results to indicate that she had any ongoing plantar fascial problems and she had a good result
from her left foot surgery. Dr. Smith concluded that appellant could continue performing fulltime regular-duty work.
In an April 8, 2011 duty status report, Dr. Timothy Chen, a podiatrist, released appellant
to return to full-time, full-duty work on that date. In reports dated May 18 and October 12, 2011,
he diagnosed plantar fasciitis.
An unsigned report dated February 22, 2012 contained the printed name of Dr. Andre O.
Williams, a Board-certified anesthesiologist. The report noted appellant’s left ankle pain and
provided essentially normal findings on physical examination with the exception of definite soft
swelling along the tendon sheath inferior to the lateral mallalus which was only mildly tender to
palpation.
In a March 26, 2012 report, Dr. Scott M. Reich, a podiatrist, stated that on February 10,
2012 appellant presented with bilateral left greater than right ankle pain. Appellant reported to
Dr. Reich that her condition was caused by her mail carrier job which required her to

2

continuously hop in and out of a truck. She further reported that the continuous physical aspects
of her job exacerbated these symptoms. Dr. Reich noted that appellant currently presented with
significant pain on palpation along her peroneal tendon, left greater than the right. He advised
that a magnetic resonance imaging (MRI) scan showed tendinosis of the peroneus longus tendon
with peritendinosis of the common peroneus tendon sheath of the left ankle. Dr. Reich
recommended peroneal tendon debridement and repair. He concluded that the surgery would
prevent appellant from working approximately six to eight weeks since she had physical work
activities.
By letter dated April 9, 2012, OWCP referred appellant, along with a statement of
accepted facts and a list of questions, to Dr. Steven J. Valentino, a Board-certified orthopedic
surgeon, for another second opinion.2 The statement of accepted facts and list of questions noted
the accepted condition of bilateral plantar fasciitis. Dr. Valentino was asked to address whether
appellant continued to have residuals of this employment-related condition and to determine her
work restrictions.
In an April 17, 2012 report, Dr. Valentino reviewed a history of the accepted
employment-related bilateral foot condition, and appellant’s medical treatment and work
capacity. He also reviewed her medical records which included a February 13, 2012 MRI scan
of the left ankle that showed tendinosis in the common peroneal tendon sheath without a tear,
stress about the anterior aspect of the calcaneus and a normal image of the plantar fascia.
Dr. Valentino noted appellant’s complaint of heel pain, worse on the left than on the right. On
examination, he reported that she was able to walk normally. Appellant could heel/toe and squat
and return without postural difficulty. She had a well-healed small scar consistent with her
surgery and Dr. Valentino’s review of her records. On examination of the spine, Dr. Valentino
reported full range of motion with all motion segments. Classic modified Spurling’s maneuvers,
sitting spine, straight leg raising and prone stretch sitting were negative. On neurologic
examination, Dr. Valentino found intact deep tendon reflexes, normal motor and sensory
examinations, and no pathologic reflexes. On examination of the hips, knees, ankles and feet he
found full range of motion. A Faber test was negative. On examination of the knees and ankles,
Dr. Valentino found no synovitis, effusion or internal derangement. There was no tenderness
with palpation of the peroneal tendon. Dr. Valentino reported a normal plantar examination as
there was no tenderness over the incision site which was well healed and no abnormal findings
on stretching of the plantar fascia bilaterally. The ankle had good stability and intact medial
deltoid and lateral ligaments. An anterior drawers’ sign and stress testing were negative.
Dr. Valentino diagnosed resolved plantar fasciitis. Upon his extensive evaluation and review of
records, he agreed with the treatment of appellant’s work-related plantar fasciitis, including her
surgery which resolved her plantar fasciitis symptoms. He advised that MRI scan findings of
peroneal tendinosis were not related to either the work-related plantar fasciitis injury or resolved
bilateral plantar fasciitis. Dr. Valentino opined that given this finding was not present early on
and that appellant’s work-related bilateral plantar fasciitis had completely resolved, she had no
complaints compatible with residuals of the condition. He concluded that she could perform
full-time, full-duty work with no restrictions. Dr. Valentino further concluded that treatment
related to appellant’s peroneal tendinitis was not related to her work injury or work duties.
2

In a May 5, 2011 e-mail, OWCP advised an OWCP nurse that it was trying to obtain appellant’s release to fullduty, full-time work.

3

In a May 14, 2012 report, Dr. Frank B. Sarlo, a Board-certified physiatrist, stated that the
results of electromyogram and nerve conduction studies (EMG/NCS) were normal.
On May 30, 2012 OWCP issued a notice of proposed termination of appellant’s wageloss compensation and medical benefits based on Dr. Valentino’s medical opinion. Appellant
was advised that she had 30 days to submit additional evidence in response to the proposed
termination.
In a May 25, 2012 note, Dr. Reich advised that appellant could return to full-duty work as
of May 21, 2012. He noted that she was tentatively scheduled to undergo left ankle surgery. In
an attending physician’s report (Form CA-20) dated June 8, 2012, he diagnosed left peroneal
tendinitis. Dr. Reich indicated with a checkmark that the diagnosed condition was caused or
aggravated by an employment activity. He again noted appellant’s scheduled surgery and
advised that she would be totally disabled from June 27 to August 27, 2012. She could resume
work on August 27, 2012.
On June 12, 2012 appellant filed a Form CA-2 and an undated narrative statement under
OWCP File No. xxxxxx886. She first became aware of her peritendinosis on January 1, 2007.
Appellant alleged that on September 6, 2009 she realized that her condition was caused or
aggravated by essentially the same accepted factors of employment under OWCP File No.
xxxxxx957. The record in OWCP File No. xxxxxx957 contained copies of Dr. Reich’s
March 26, 2012 report, Dr. Valentino’s April 17, 2012 report and hospital records regarding the
June 27, 2012 left ankle surgery.
Hospital records indicate that on June 27, 2012 appellant was scheduled to undergo
debridement of the peroneal tendon with exploration and topaz of the left foot.
In a July 9, 2012 decision, under OWCP File No. xxxxxx957, OWCP terminated
appellant’s wage-loss compensation and medical benefits effective that date. It found that the
medical evidence submitted was insufficient to outweigh the weight accorded to Dr. Valentino’s
opinion.
By letter dated July 11, 2012, under OWCP File No. xxxxxx886, OWCP advised
appellant that the evidence submitted was insufficient to establish her June 12, 2012 claim. It
requested additional factual and medical evidence. OWCP also requested additional factual and
medical evidence from the employing establishment regarding appellant’s allegations, a
description of the physical requirements for her rural carrier position and her treatment at its
medical facility.
By letter dated April 10, 2013, appellant, through her attorney, requested reconsideration
of the July 9, 2012 decision contending that an accompanying March 14, 2013 report from
Dr. D. Scot Malay, a podiatrist, was supportive of her claim of residuals. Counsel requested that
OWCP combine File Nos. xxxxxx957 and xxxxxx886 into one claim as they were duplicative
and both cited January 1, 2007 as the date of awareness of the injury and September 6, 2009 as
the date she related her condition to work. Appellant filed the second claim because the work
factors continued and she had pain and was scheduled to undergo additional surgery.
In the March 14, 2013 report, Dr. Malay obtained a history of the work-related bilateral
foot condition and appellant’s medical treatment. He stated that as a mail carrier she had to stand
4

and walk up to 10 hours a day. Appellant rated her pain as 5 to 7 on a 10-point scale. On
physical examination, Dr. Malay reported normal findings. On neurological examination, he
reported essentially normal findings with the exception of a faintly present bilateral Tinel’s sign
posterior to the medial malleolus at the tibial nerve to percussion which radiated to the sole but
not fully to the toes and without proximal radiation. Appellant’s stance and gait displayed a
smooth, comfortable and self-selected cadence without early heel off and with normal appearing
propulsion bilaterally with the exception of flexor stabilization digital contractures (hammering
of the toes). In the open kinetic chain, the digits were fully relocating with push-up loading of
the metatarsus bilaterally. Appellant reported pain in her tarsal tunnel and metatarsal ball in
stance. Palpation and moderate deep pressure revealed tenderness in both tarsal tunnels and
there was palpable and boggy edema localized to the peroneal tendon sheath as it coursed
posterior and distal to the lateral malleolus only in the left leg and ankle.
Dr. Malay assessed bilateral tarsal tunnel syndrome and metatarsalgia. He advised that
appellant’s peroneal tendinitis appeared to be quiescent as it had evidently responded to therapy.
Appellant did not have complex regional pain syndrome (CRPS), reflex sympathetic dystrophy
(RSDS), (CRPS Type I) or causalgia (CRPS Type II) as she readily allowed examination and
manipulation of her feet, showed no gross evidence of vasomotor instability (despite cigarette
smoking) and did not display allodynia (pain due to nonnoxious stimuli) or hyperpathia (pain out
of proportion to a stimulus) in either foot. Moreover, appellant did not appear to have
rheumatoid arthritis or any other systemic arthropathy of an inflammatory nature even though a
blood test displayed a low level rheumatoid factor.
Dr. Malay suspected that this could be aggravating to appellant’s pedal and ankle
conditions as it may have contributed to a low level of inflammation in her connective tissues
(tendons, ligaments, bones and joints) that were slow to heal as compared to an individual
without the presence of this autoantibody. He stated that cigarette smoking byproducts were also
known to upregulate certain proinflammatory cytokines in patients with the rheumatoid factor
present in their serum which could contribute to appellant’s foot and ankle pain. Furthermore,
there was no objective evidence of tremor or muscle spasm during examination. Dr. Malay
advised that appellant’s current pain and disability were the result of years of prolonged weightbearing work requirements, in particular long hours carrying mail and performing other standing
work duties. The hyperpronating mechanics of her feet led to the development of chronic plantar
fasciitis, followed by compensatory peroneal tendinitis as the peroneal tendon attempted to
plantarflex the first ray to resist the progressive valgus deformation. Despite focal therapies
aimed at resisting the hyperpronation-induced pes valgoplanus deformation (hindfoot pronation
leading to flattening of her pedal arch), including foot orthoses and physical therapy, alteration of
activities, anti-inflammatory and analgesic medications, and surgery, every time appellant
resumed her weight-bearing duties she relapsed into the same foot and ankle pain, which was
indicative of an inability of her tissues to stand up to the demands of her job despite her efforts to
carry them out. Dr. Malay stated that the duration of time dedicated to recovery following her
surgical treatments was appropriate since six weeks was typically enough time for soft tissue
healing and the gradual resumption of physical activities. He concluded that appellant should
satisfactorily improve within 6 to 12 more months of supportive therapy and sedentary duties
that did not require more than one hour of continuous weight-bearing activity.
In an undated report, Dr. Chen provided a history of his treatment of the accepted
employment injury and appellant’s medical treatment and work capacity. He advised that she
5

was currently able to work full time, five days a week with Monday and Sunday off for rest. The
days off restriction would allow appellant’s foot and heel to recover. Appellant still required
chronic pain control medication. Dr. Chen advised that the symptoms related to her heel would
be recurrent and episodic in nature. From time to time, appellant would require time and days
off as needed due to her level of discomfort. Resting her foot periodically was important to
reduce pain and inflammation, thereby preventing her acute symptoms from progressing and
lingering.
In a July 19, 2012 report, Dr. Damian M. Andrisani, a Board-certified orthopedic
surgeon, obtained a history of appellant’s bilateral lower extremities conditions. On physical
examination, he reported essentially normal findings with the exception of pain over the anterior
border of the tibia. Dr. Andrisani reviewed x-rays of the knees and legs which were normal. He
noted that a May 11, 2012 bone scan demonstrated no abnormalities consistent with CRPS, but
there was a suggestion of degenerative changes of the proximal tibula and fibular articulation.
Dr. Andrisani further noted that the May 14, 2012 EMG/NCS were negative for any
abnormalities of bilateral lower extremities. He diagnosed bilateral lower extremity leg pain and
stated that appellant was three weeks status post left ankle surgery. Dr. Andrisani advised that
the pain about the anterior aspect of her leg may be secondary to compensation of chronic
peroneal tendinosis. He did not expect any improvement for at least several months following
appellant’s surgery.
An unsigned report dated July 27, 2012 contained the printed name of “Dr. Williams.” It
stated that since appellant’s last visit on May 4, 2012 she had undergone surgery at the lateral
malleolus on the left. Three to four weeks since the surgery she had made an excellent recovery
and was satisfied with the outcome. Appellant continued to experience burning pain in the soles
of both feet which she believed was due to ongoing plantar fasciitis.
In a September 6, 2012 decision, under OWCP File No. xxxxxx886, OWCP denied
appellant’s occupational disease claim. It found that Dr. Andrisani’s report was insufficient to
establish that her current left ankle condition was causally related to her prior claim or that her
regular carrier position caused peroneal tendinitis of the left ankle. OWCP further noted that
Dr. Valentino’s report found no causal relationship between appellant’s accepted condition and
peroneal tendinitis for which she underwent surgery on June 27, 2012 and her employment. On
September 24, 2012 appellant requested an oral hearing before an OWCP hearing representative.
By letter dated March 3, 2013, appellant’s attorney, again requested that OWCP combine
appellant’s claims under File Nos. xxxxxx957 and xxxxxx886.
In a March 27, 2013 decision, under OWCP File No. xxxxxx886, an OWCP hearing
representative affirmed the September 6, 2012 decision. He found that OWCP properly
adjudicated the claim as a new occupational disease. The factual and medical evidence
supported the filing of a new occupational disease claim based on appellant’s renewed exposure
to previously injurious work factors. The hearing representative found that she failed to submit
rationalized medical evidence sufficient to establish that her left peroneal tendon condition was
causally related to the established employment factors. In an April 10, 2013 letter, appellant’s
attorney requested reconsideration and submitted Dr. Malay’s March 14, 2013 report.

6

In an April 11, 2013 letter, OWCP denied appellant’s request to combine File Nos.
xxxxxx957 and xxxxxx886. It noted that this request was previously addressed by the hearing
representative’s March 27, 2013 decision under File No. xxxxxx886. The hearing representative
stated that the factual and medical evidence supported that a new claim for an occupational
condition should be filed based upon appellant’s renewed exposure to potentially injurious work
factors. He also stated that the claim under File No. xxxxxx957 was accepted for traumatic
bilateral plantar fasciitis while the claim under File No. xxxxxx886 sought compensation for left
peroneal tendon.
In a May 14, 2013 decision, OWCP denied modification of its termination decision. It
found that the medical evidence submitted was insufficient to outweigh the weight accorded to
Dr. Valentino’s April 17, 2012 report.
In a July 9, 2013 decision, under OWCP File No. xxxxxx886, OWCP denied
modification of the March 27, 2013 decision. It found that Dr. Malay’s report did not provide a
sufficiently rationalized medical opinion based on an accurate factual background and objective
test results to support his physical examination findings.
LEGAL PRECEDENT -- ISSUE 1
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.3 Once OWCP accepts a claim,
it has the burden of proof to justify termination or modification of compensation benefits.4 After
it has determined that an employee has disability causally related to federal employment, OWCP
may not terminate compensation without establishing that the disability has ceased or that it is no
longer related to the employment.5
ANALYSIS – ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits as of July 9, 2012. OWCP accepted that appellant sustained
traumatic bilateral plantar fasciitis while in the performance of duty. As of February 10, 2011,
appellant worked in a limited-duty position eight hours a day every other day. OWCP obtained a
second opinion from Dr. Smith, a Board-certified orthopedic surgeon, who opined on April 18,
2011 that appellant had no residuals of her accepted traumatic bilateral plantar fasciitis and that
she could continue to perform her regular full-time work duties.
OWCP found that another second opinion was necessary and referred appellant to
Dr. Valentino to determine whether she could perform full-time, full-duty work with no
restrictions. Dr. Valentino’s April 17, 2012 report reviewed a history of the accepted
employment injury and appellant’s medical treatment which included her authorized
August 2010 plantar surgery. He provided normal examination findings. Dr. Valentino found
3

5 U.S.C. § 8102(a).

4

Harold S. McGough, 36 ECAB 332 (1984).

5

Jason C. Armstrong, 40 ECAB 907 (1989).

7

that appellant could work normally and perform heel and toe squats and return without postural
difficulty. He further found that she had a well-healed small scar consistent with her surgery and
his review of her records. On examination of the spine, Dr. Valentino reported full range of
motion and negative classic modified Spurling’s maneuvers, sitting spine, straight leg raising and
prone stretch sitting. On neurologic examination, he reported intact deep tendon reflexes, normal
motor and sensory examination and no pathologic reflexes. Regarding the hips, knees, ankle and
feet, Dr. Valentino found no synovitis, effusion or internal derangement or tenderness with
palpation of the peroneal tendon. He also found that the ankle had good stability and intact
medial deltoid and lateral ligaments. Dr. Valentino further found that a plantar examination
revealed no tenderness over the incision site which was well healed and no abnormal findings on
stretching of the plantar fascia bilaterally. He reported that an anterior drawer sign and stress
testing were negative. Dr. Valentino diagnosed resolved plantar fasciitis.
Based upon his extensive evaluation and review of records, Dr. Valentino opined that
surgery resolved appellant’s work-related plantar fasciitis symptoms. While he found that an
MRI scan revealed peroneal tendinosis, he opined that this condition was not related to the
accepted plantar fasciitis or resolved plantar fasciitis and that any treatment for the diagnosed
condition was not related to her work injury or work duties. Dr. Valentino explained that, since
this finding was not present early on and appellant’s work-related condition had completely
resolved, she had no complaints compatible with residuals of the accepted condition. He
concluded that she could perform full-time, full-duty work with no restrictions.
The Board finds that Dr. Valentino’s report represents the weight of the medical evidence
and that OWCP properly relied on his report in terminating appellant’s wage-loss compensation
and medical benefits for the accepted condition on July 9, 2012. Dr. Valentino’s opinion is
based on a proper factual and medical history as he reviewed the statements of accepted facts and
appellant’s prior medical treatment. He also related his comprehensive examination findings in
support of his opinion that appellant no longer had any residuals or disability causally related to
the accepted traumatic bilateral plantar fasciitis.
The remaining evidence submitted prior to the termination of compensation is
insufficient to show that appellant had any remaining work-related residuals or disability.
Dr. Chen’s April 8, 2011 duty status report found that appellant could return to full-time, fullduty work on that date. His subsequent reports addressed her plantar fasciitis and pain in her left
heel and peroneal brevis tendon and disability for work on certain dates. The Board has
generally held that pain is a symptom, rather than a firm medical diagnosis.6 Moreover,
Dr. Chen did not provide any opinion addressing whether appellant’s conditions and disability
for work were causally related to the accepted employment injury. The Board has held that
medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.7
Dr. Reich’s March 26, 2012 report noted that when appellant was seen on February 10,
2012 she reported that her job as a mail carrier which required her to continuously hop in and out
6

C.F., Docket No. 08-1102 (issued October 10, 2008).

7

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004);
Michael E. Smith, 50 ECAB 313 (1999).

8

of her truck caused and exacerbated her bilateral left greater than right ankle pain. He diagnosed
her current condition as tendinosis of the peroneus longus tendon with peritendinosis of the
common peroneus tendon sheath of the left ankle based on an MRI scan. Dr. Reich
recommended surgery to treat the diagnosed condition and advised that appellant would be
unable to work approximately six to eight weeks following surgery due to her physical work
activities. He merely repeated the history of injury as reported by appellant without providing
his own opinion on whether her condition was work related. Dr. Reich failed to provide a
rationalized opinion regarding the causal relationship between her left ankle condition and the
factors of employment believed to have caused or contributed to such condition.8
In a June 8, 2012 Form CA-20, Dr. Reich indicated with a checkmark that appellant’s left
peroneal tendinitis was caused or aggravated by an employment activity. He advised that she
was scheduled to undergo left ankle surgery and would be totally disabled from June 27 to
August 27, 2012. The Board has held that an opinion consisting of a physician’s checkmark is of
diminished probative value without any explanation or rationale for the conclusion reached.9
Dr. Reich did not adequately explain how the diagnosed condition or total disability was caused
or contributed to by the accepted employment-related injury. In a May 25, 2012 note, he found
that appellant could return to full-duty work as of May 21, 2012. Dr. Reich did not provide an
opinion of whether appellant’s disability was related to the accepted work injury.
Neither Dr. Sarlo’s EMG/NCS nor the hospital records related to appellant’s June 27,
2012 left ankle surgery provided an opinion addressing whether she had any continuing residuals
or disability due to the accepted work injury.10
The Board finds that Dr. Valentino’s opinion that appellant had recovered from the
employment injury represents the weight of the medical evidence and the additional medical
evidence submitted is insufficient to create a conflict in opinion regarding whether she had
continuing residuals or disability related to the accepted injury. Therefore, OWCP properly
terminated appellant’s compensation effective July 9, 2012 based on Dr. Valentine’s opinion.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP properly terminates appellant’s compensation benefits, the burden shifts to
appellant to establish that she has continuing disability after that date related to her accepted
injury.11 To establish a causal relationship between the condition as well as any attendant
disability claimed and the employment injury, an employee must submit rationalized medical
evidence based on a complete medical and factual background, supporting such a causal

8

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
9

D.D., 57 ECAB 734 (2006); Sedi L. Graham, 57 ECAB 494 (2006).

10

See cases cited, supra note 7.

11

See I.J., 59 ECAB 408 (2008); Franklin D. Haislah, supra note 8.

9

relationship.12 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.13
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that she has any continuing residuals or
disability causally related to her work-related traumatic bilateral plantar fasciitis after
July 9, 2012.
After the termination of her wage-loss compensation and medical benefits on July 9,
2012, appellant submitted a March 14, 2013 report from Dr. Malay. He found that appellant’s
peroneal tendinitis appeared to be quiescent as it had responded to therapy. Dr. Malay further
found that her bilateral tarsal tunnel syndrome, metatarsalgia and disability were causally related
to factors of her employment. However, he did not find that appellant was disabled for work due
to objective residuals of the accepted traumatic bilateral plantar fasciitis. Instead, Dr. Malay
attributed her inability to work to bilateral tarsal tunnel syndrome and metatarsalgia, conditions
not accepted as work related by OWCP. Further, he did not provide an opinion addressing
whether appellant’s resolved peroneal tendinitis resulted from the accepted employment injury.14
Moreover, Dr. Malay’s opinion on causal relationship is based on an inaccurate history of
appellant’s established work factors. He stated that her job as a mail carrier required her to,
among other things, walk up to 10 hours a day to deliver mail. OWCP, however, accepted that
appellant’s work duties involved hopping out of a LLV 30 times a day to deliver mail. The
Board notes that medical opinions must be based on a complete and accurate factual and medical
background and medical opinions based on an incomplete or inaccurate history are of limited
probative value.15 While Dr. Malay provides an opinion on causal relationship, he relates
appellant’s injuries and disability to walking long hours, not driving and dismounting her LLV.
For the stated reasons, the Board finds that his report is insufficient to meet appellant’s burden of
proof.
Dr. Andrisani’s July 19, 2012 report found that appellant had bilateral lower extremity
leg pain and that she was status post left ankle surgery. He advised that the pain about the
anterior aspect of her leg may be secondary to compensation of chronic peroneal tendinosis. As
stated, pain is not a compensable medical diagnosis.16 Further, Dr. Andrisani did not provide
any opinion addressing the causal relationship between appellant’s bilateral leg condition and the
established work factors.17 The Board finds that his report is insufficient to establish appellant’s
burden of proof.

12

Id.

13

See Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

14

See cases cited, supra note 7.

15

J.R., Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).

16

C.F., supra note 6.

17

See cases cited, supra note 7.

10

Dr. Chen’s undated report provided a history of his treatment of the accepted
employment injury and appellant’s medical treatment and noted her left heel pain. He advised
that she could work full time, five days a week with two days off for rest and to allow for
recovery of her left foot and heel condition, but did not explain how her condition and inability
to work her regular schedule of six days a week were causally related to the accepted work
injury. The Board again notes that pain is not a compensable medical diagnosis.18 Moreover,
Dr. Chen’s opinion that appellant would require time and days off work in the future due to her
recurrent and episodic heel symptoms to prevent the progression and lingering of her acute
symptoms of pain and inflammation is based on a fear of future injury. It is well established that
the possibility of future injury or disability is not a basis for payment of compensation.19 For the
stated reasons, the Board finds that Dr. Chen’s report is insufficient to satisfy appellant’s burden
of proof.
None of the reports submitted by appellant after the termination of benefits included a
rationalized opinion regarding the causal relationship between her current foot condition and
disability and her accepted work-related condition. Consequently, appellant did not establish
that she had any employment-related residuals or disability after July 9, 2012.
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.
LEGAL PRECEDENT -- ISSUE 3 -- OWCP FILE NO. xxxxxx886
An employee seeking benefits under FECA20 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 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.21 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.22
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
18

See C.F., supra note 6.

19

I.J., supra note 11; Gaeten F. Valenza, 39 ECAB 1349, 1356 (1988).

20

5 U.S.C. §§ 8101-8193.

21

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

22

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB
153 (1989).

11

which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
medial rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.23 Neither the fact that appellant’s
condition became apparent during a period of employment nor, his or her belief that the
condition was caused by his or her employment is sufficient to establish a causal relationship.24
Proceedings under FECA are not adversarial in nature nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish his or her claim, OWCP also has a
responsibility in the development of the evidence.25
ANALYSIS -- ISSUE 3 -- OWCP FILE NO. xxxxxx957
The Board finds that this case is not in posture for decision as to whether appellant
sustained a left ankle peritendinosis causally related to her federal employment.
OWCP accepted appellant’s factors of federal employment as a rural letter carrier. It
denied her occupational disease claim for a left ankle injury, however, finding that the weight of
the medical evidence rested with Dr. Valentino, OWCP’s referral physician, who found that
appellant’s left ankle condition was not causally related to the accepted employment factors.
In the April 17, 2012 report, Dr. Valentino found that left ankle MRI scan findings of
peroneal tendinosis were not related to either the work-related plantar fasciitis injury or resolved
bilateral plantar fasciitis. He further found that appellant could perform full-duty work on a fulltime basis with no restrictions and that any treatment for her peroneal tendinitis was not related
to her work injury or duties. The Board notes that the statement of accepted facts and list of
questions forwarded to Dr. Valentino in OWCP File No. xxxxxx957 addressed the accepted
bilateral plantar fasciitis condition. He was asked to provide an opinion on whether appellant
continued to have residuals of this employment-related injury and identify her work restrictions.
In the claim under OWCP File No. xxxxxx886, OWCP did not ask Dr. Valentino to address
whether appellant’s peroneal tendinosis was causally related to her federal employment.26 His
report only noted that this condition was not causally related to the accepted bilateral plantar
fasciitis injury for which appellant filed a claim on January 8, 2010 and the work duties claimed
to have caused this accepted injury. Dr. Valentino did not provide any medical opinion
addressing the causal relationship between appellant’s peroneal tendinosis and the work duties
she performed after her authorized August 17, 2010 left foot surgery, recovery and return to
limited-duty work on February 10, 2011 through June 27, 2012, the date of her left ankle
23

I.J., supra note 11; Victor J. Woodhams, id. at 351-52.

24

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

25

See Claudia A. Dixon, 47 ECAB 168, 170 (1995).

26

The Board notes the case record in OWCP File No. xxxxxx886 does not contain the statement of accepted facts
and list of questions forwarded to Dr. Valentino in OWCP File No. xxxxxx957.

12

surgery. The Board finds, therefore, that Dr. Valentino’s report is not dispositive on the issue of
causal relationship.
Once OWCP undertakes development of the record it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.27 When it selects a
physician for an opinion on causal relationship, it has an obligation to secure, if necessary,
clarification of the physician’s report and to have a proper evaluation made.28 Because it
referred appellant to a second opinion physician, it has the responsibility to obtain a report that
will resolve the issue of whether her left ankle condition was caused by her federal
employment.29 Dr. Valentino did not provide a rationalized opinion on the cause of appellant’s
left ankle condition.
The case will be remanded to OWCP for further development of the medical evidence.30
On remand, OWCP should prepare a new statement of accepted facts regarding appellant’s
claimed work exposure through June 2012 and refer her to a physician in the appropriate field of
medicine for a rationalized opinion on the causal relationship between her diagnosed left ankle
condition and her employment duties.31 Following this and any other further development as it
deems necessary, OWCP shall issue a de novo decision on appellant’s occupational disease
claim.32
Counsel requested before OWCP and on appeal consolidation of the instant claim under
File No. xxxxxx957 and appellant’s claim under File No. xxxxxx886 because they are duplicate
claims due to the same date of awareness of the injury and factors of employment. Counsel
further asserted that appellant filed the second claim because her work factors continued and she
experienced pain and required more surgery. While OWCP procedures provide that cases should
be doubled when a new injury case is reported for an employee who previously filed an injury
claim for a similar condition or the same part of the body,33 appellant has identified a different
foot injury in File No. xxxxxx957. As noted, the Board has directed separate further
development of the medical record in File No. xxxxxx957. While the claims may be
substantially similar in some respects, they do not appear to be identical. For the stated reasons,
the Board finds that counsel’s arguments have not been established.

27

Phillip L. Barnes, 55 ECAB 426, 441 (2004); see also Virginia Richard (Lionel F. Richard), 53 ECAB 430,
433 (2002); Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1993).
28

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

29

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

30

S.E., Docket 08-2243 (issued July 20, 2009).

31

When a medical evaluation is made at its request, OWCP has the responsibility of obtaining a proper
evaluation. Leonard Gray, 25 ECAB 147, 151 (1974).
32

See P.K., Docket No. 08-2551 (issued June 2, 2009); see also Horace Langhorne, 29 ECAB 820, 822 (1978).

33

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter
2.400.8(c)(1) (February 2000).

13

CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation benefits
effective July 9, 2012 on the grounds that she no longer had any residuals or disability causally
related to her accepted employment-related injury. The Board further finds that appellant failed
to establish that she had any continuing employment-related residuals or disability after
July 9, 2012. Lastly, the Board finds that the case is not in posture for a decision as to whether
appellant sustained a left ankle injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
May 14, 2013 decision is affirmed and July 9 and March 27, 2013 decisions are set aside and the
case is remanded for further consideration consistent with this decision.
Issued: September 4, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

14


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Crivitz, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0677
Issued: August 16, 2019

Case Submitted on the Record

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

JURISDICTION
On February 5, 2019 appellant, through counsel, filed a timely appeal from a November 28,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish left arm thoracic
outlet syndrome causally related to the accepted October 16, 2010 employment incident.
FACTUAL HISTORY
On October 22, 2010 appellant, then a 43-year-old rural carrier associate, filed an
occupational disease claim (Form CA-2) alleging that she developed a left shoulder and neck
condition due to factors of her federal employment including the use of her left arm to drive and
her right arm to deliver mail. She first realized that her condition was caused or aggravated by
factors of her federal employment on October 16, 2010.
Appellant sought medical treatment on October 21, 2010. On October 22, 2010
Dr. Harold J. Schock, a Board-certified orthopedic surgeon, examined appellant and diagnosed left
shoulder pain. On October 22, 2010 appellant returned to light-duty work.
In a November 1, 2010 development letter, OWCP advised appellant of the deficiencies of
her claim. It requested additional factual and medical evidence from appellant, and provided a
questionnaire for her completion. OWCP afforded her 30 days to respond.
Appellant submitted an October 21, 2010 note in which Dr. Schock related that he had
examined appellant due to left arm pain and discomfort. Dr. Schock noted that appellant had
shoulder surgery in 2006 and had received a diagnosis at the time of shoulder joint arthritis. He
indicated that appellant was driving with her arm out the window and noticed a significant increase
in pain. Dr. Schock diagnosed possible left shoulder rotator cuff injury versus chondromalacia
flare. He also indicated that appellant had a neck condition, which was contributing to her shoulder
discomfort and loss of range of motion (ROM).
On October 27, 2010 appellant underwent a cervical magnetic resonance imaging (MRI)
scan which demonstrated C6-7 anterior spinal fusion, C5-6 disc bulge, and joint hypertrophy with
mild bilateral neural foraminal stenosis. On the same date she also underwent a left shoulder MRI
scan, which demonstrated mild supraspinatus tendinopathy.
Dr. Andrew R. Greene, an osteopath, examined appellant on October 11, November 1, 22,
and 29, 2010 and diagnosed herniated cervical disc and cervical spinal stenosis. On December 7,
2010 he performed appellant’s left C5-6 posterior cervical foraminotomy. Appellant also provided
notes from Jill Hietpas, a physician assistant.
By decision dated January 26, 2011, OWCP denied appellant’s occupational disease claim
finding that she had not established causal relationship between her diagnosed medical condition
and her accepted employment factors. On February 8, 2011 appellant, through counsel, requested
an oral hearing before an OWCP hearing representative.
Dr. Schock examined appellant on November 18, 2010 and January 27, 2011 and noted
that she continued to report pain and discomfort in the left upper extremity. He diagnosed possible
thoracic outlet syndrome, continued radicular symptoms, and rotator cuff tendinitis.

2

In a report dated March 16, 2011, Dr. Boyd C. Lumsden, a Board-certified orthopedic
surgeon, described appellant’s 2006 left shoulder arthroscopy with decompression. He noted that
at the time of surgery appellant’s findings included early degenerative changes in the glenohumeral
joint. Dr. Lumsden indicated that appellant reported developing left shoulder symptoms while
driving on her mail route on October 10, 2010. He diagnosed left shoulder pain, left upper
extremity paresthesias, and history of chronic left neck conditions resulting in two previous
operations. Dr. Lumsden indicated that appellant’s shoulder pain could possibly be attributed to
preexisting arthritis, ongoing cervical conditions, peripheral nerve compression, or neurogenic
thoracic outlet syndrome. He opined that none of these possible underlying causes were related to
appellant’s work. Dr. Lumsden explained that “driving a mail truck and holding her arm on the
steering wheel or opening a mailbox with her left arm” would not cause arthritic problems, thoracic
outlet problems, or cervical spine issues. He further noted that, after stopping work, appellant’s
symptoms had persisted and that this fact would argue against work being a major causative factor.
On May 9, 2011 appellant testified at a telephonic hearing before an OWCP hearing
representative. She clarified the nature of her claim and alleged a traumatic injury, while in the
performance of duty on October 16, 2010. Appellant noted that she had been driving her left-sided
steering vehicle while sitting on the right with her left arm extended for four to five hours when
she began experiencing severe pain and losing strength in her left arm. She sought medical
treatment at the emergency room on October 16, 2010.
Following the oral hearing, appellant submitted additional notes from Dr. Greene. On
January 27, 2011 Dr. Greene found that appellant had slightly improved following her C5-6
posterior cervical foraminotomy. In a March 21, 2011 note, he reported that appellant was
experiencing persistent left arm pain and attributed this to shoulder pathology. Dr. Greene
diagnosed possible thoracic outlet syndrome. On May 27, 2011 he noted that appellant’s sensory
and motor nerve studies were normal.
In a May 23, 2011 note, Dr. Steward Gifford, a Board-certified surgeon, diagnosed thoracic
outlet syndrome with occlusion occurring with hyperabduction of the left shoulder.
By decision dated July 29, 2011, OWCP’s hearing representative affirmed the January 26,
2011 decision. She found that the medical evidence did not establish a causal relationship between
appellant’s diagnosed left shoulder and neck conditions and her accepted employment incident on
October 16, 2010.
On October 13, 2011 appellant, through counsel, requested reconsideration of the July 29,
2011 decision. Additional medical records were submitted in support of her request.
On July 28, 2011 Dr. Robert B. Ballard, a Board-certified vascular surgeon, diagnosed left
arm thoracic outlet syndrome due to left hand weakness and numbness associated with
compression of the brachial plexus. He performed appellant’s left upper extremity scalenectomy
and left first rib resection on that date. In an August 13, 2011 note, Dr. Ballard reported that
appellant’s job duties included steering the vehicle as well as grabbing mail from the back seat
area with her left hand and placing mail into mailboxes with her right hand out of the window. He
opined that, based on appellant’s job description, her thoracic outlet syndrome was “in part” related
to her job duties.

3

On March 1, 2013 counsel requested a decision from OWCP on appellant’s October 13,
2011 request for reconsideration, noting that more than one year had passed since the request was
filed. He included a copy of appellant’s initial request for reconsideration. On July 3, 2013
counsel again requested a decision from OWCP on appellant’s requests for reconsideration. On
October 9, 2018 appellant, through counsel, noted that the original request for reconsideration was
dated October 13, 2011 and that she submitted repeated requests on March 1 and July 3, 2013.
By decision dated November 28, 2018, OWCP denied modification of its prior decisions.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.6 The second component is whether the employment incident caused a personal injury.7
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence. Rationalized medical opinion evidence is
medical evidence which includes a physician’s detailed opinion on whether there is causal
relationship between the employee’s diagnosed condition and the accepted employment incident.8
The opinion of the physician must be based on a complete factual and medical background, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the

3

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

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.M., Docket No. 19-0380 (issued June 26, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

7

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

8
C.B., Docket No. 18-0071 (issued May 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

4

nature of the relationship between the diagnosed condition and the specific employment incident.9
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish left arm thoracic
outlet syndrome causally related to the accepted October 16, 2010 employment incident.
On October 21, 2010 Dr. Schock examined appellant due to left arm pain and discomfort
and diagnosed possible left shoulder rotator cuff injury versus chondromalacia flare. He did not
provide a clear diagnosis. In a March 21, 2011 note, Dr. Greene diagnosed possible thoracic outlet
syndrome. He also failed to provide a definitive diagnosis. The Board has previously explained
that it is not possible to establish causal relationship if a medical condition has not been
diagnosed.11
Appellant provided an October 22, 2010 report from Dr. Schock diagnosing left shoulder
pain. The Board has held that pain is a symptom not a valid diagnosis.12 Thus, this report lacks
probative value.
In notes dated October 11, November 1, 22, and 29, 2010, Dr. Greene diagnosed herniated
cervical disc and cervical spinal stenosis. On November 18, 2010 and January 27, 2011
Dr. Schock diagnosed rotator cuff tendinitis. In a May 23, 2011 note, Dr. Gifford diagnosed
thoracic outlet syndrome with occlusion occurring with hyperabduction of the left shoulder. These
physicians did not provide an opinion relative to the cause of the diagnosed conditions. The Board
has held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.13 These reports, therefore,
are insufficient to establish appellant’s claim.
On July 28, 2011 Dr. Ballard diagnosed left arm thoracic outlet syndrome and, in an
August 13, 2011 note, opined that based on appellant’s job description, her thoracic outlet
syndrome was, “in part,” related to her job duties. He noted that appellant used her right hand to
deliver mail out of the window and used her left hand for grabbing mail from the back seat and
steering. However, the mere recitation of a claimant’s history does not suffice for purposes of
establishing causal relationship between a diagnosed condition and the employment incident.14
9

S.S., Docket No. 18-1488 (issued March 11, 2019).

10

J.L., Docket No. 18-1804 (issued April 12, 2019).

11

M.K., Docket No. 19-0428 (issued July 15, 2019).

12

R.C., Docket No. 19-0376 (issued July 15, 2019); Robert Broome, 55 ECAB 339 (2004).

13

R.W., Docket No. 19-0010 (issued June 18, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
14

N.S., Docket No. 19-0167 (issued June 21, 2019); J.G., Docket No. 17-1382 (issued October 18, 2017).

5

Without explaining physiologically how the accepted employment incident caused or contributed
to the diagnosed conditions, the physician’s report is of limited probative value.15 Therefore,
Dr. Ballard’s reports are insufficient to meet appellant’s burden of proof.
The Board further notes that on March 16, 2011 Dr. Lumsden indicated that appellant’s
shoulder pain could possibly be attributed to preexisting arthritis, ongoing cervical conditions,
peripheral nerve compression or neurogenic thoracic outlet syndrome. Dr. Lumsden opined that
none of these possible underlying causes were related to appellant’s work. He explained that
driving a mail truck and holding her arm on the steering wheel or opening a mailbox with her left
arm would not cause arthritic problems, thoracic outlet problems, or cervical spine issues.
Dr. Lumsden’s report directly negates causal relationship between appellant’s diagnosed thoracic
outlet syndrome and her employment duties. It does not support appellant’s claim.
In support of her traumatic injury claim, appellant also submitted a series of notes signed
solely by a physician assistant. These notes are insufficient to satisfy appellant’s burden of proof
as a physician assistant is not considered a “physician” as defined under FECA.16
Appellant also submitted diagnostic imaging studies in the form of a cervical spine MRI
scan in support of her claim. The Board has explained that diagnostic studies lack probative value
as they do not address whether the employment incident caused any of the diagnosed conditions.17
These reports are therefore also insufficient to establish appellant’s claim.
Causal relationship is a medical question that must be established by probative medical
opinion from a physician.18 As appellant has not submitted such medical evidence, she has not
met her burden of proof to establish her left arm thoracic outlet syndrome claim.19

15

A.B., Docket No. 16-1163 (issued September 8, 2017).

16

5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See id. at § 8102(2); M.M., Docket No. 16-1617 (issued January 24, 2017); David P. Sawchuk, 57 ECAB 316, 320
n.11 (2006) (lay individuals such as nurses, physician assistants, and physical therapists are not competent to render
a medical opinion under FECA). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley v. B. Harley, 2 ECAB
208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of probative
medical evidence from a physician).
17

R.C., Docket No. 19-0376 (issued July 15, 2019).

18

T.K., Docket No. 18-1239 (issued May 29, 2019).

19

A properly completed CA-16 form authorization may constitute a contract for payment of medical expenses to a
medical facility or physician, when properly executed. The form creates a contractual obligation, which does not
involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the
claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance,
unless terminated earlier by OWCP. 20 C.F.R. § 10.300(c); P.R., Docket No. 18-0737 (issued November 2, 2018);
N.M., Docket No. 17-1655 (issued January 24, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

6

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish left arm thoracic
outlet syndrome causally related to the accepted October 16, 2010 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the November 28, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 16, 2019
Washington, DC

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

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

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 16-1721
Issued: February 14, 2017

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 August 24, 2016 appellant filed a timely application for review from an August 3,
2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from September 25, 2015, the date of the most recent merit decision, to
the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of appellant’s
claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 13, 2014 appellant, then a 52-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed bilateral patellar tendinitis as a result of her
federal employment.
By letter dated May 19, 2014, OWCP advised appellant that further factual and medical
evidence was necessary to establish her claim. Appellant was afforded 30 days to submit this
additional evidence. No response was received.
By decision dated July 10, 2014, OWCP denied appellant’s claim, finding that she had
not established the factual elements of her claim.
In a report dated October 20, 2014, Dr. Larry R. Stayner, Board-certified in orthopedic
surgery, noted that appellant developed pain with repetitive motion of both knees while driving
her mail delivery route. He noted appellant’s diagnosis as patellar tendinitis, on the left side
from operating the gas and brake pedals repetitively, and on the right side from repeated bracing
of the leg during frequent stops and starts while driving. Dr. Stayner concluded that appellant’s
bilateral knee condition was causally related to her employment as this was what caused the pain
and there was nothing else that initiated this pain.
By letter dated June 8, 2015, Dr. Stayner again noted that appellant developed patellar
tendinitis in both knees as a result of the repetitive physical mechanical motion of both knees
while performing the driving portion of her work as a rural carrier associate. He again noted that
appellant’s left patellar tendinitis was related to operating the gas and brake pedals repetitively,
while her right-sided patellar tendinitis was from repeated bracing of the leg during frequent
stops and starts while driving and delivering mail. Dr. Stayner again concluded that nothing else
caused appellant’s pain.
Appellant requested reconsideration on July 7, 2015.
By decision dated September 25, 2015, OWCP accepted that appellant had established
the factual elements of her claim, but denied modification of the denial of the claim as appellant
failed to submit rationalized medical evidence sufficient to establish that her condition had been
caused or aggravated by factors of her federal employment.
Appellant again requested reconsideration on May 18, 2016. With her request, she
submitted a report dated April 25, 2016 from Dr. Stayner. Dr. Stayner reiterated that appellant
developed patellar tendinitis in both knees due to an occupational disease resulting from
repetitive physical mechanical motion of both knees while performing the driving portion of her
employment as a rural carrier associate. He again noted that the left patellar tendinitis was from
operating the gas and brake pedals repetitively over a long period of time and the right patellar
tendinitis was from repeated bracing of the leg, due to frequent stops and starting while driving
and delivering mail. Dr. Stayner again opined that appellant’s condition was 100 percent
causally related to her job duties as her duties caused pain and nothing else initiated this pain.
He concluded: “This job and occupational exposure was 100 percent cause of her knee pain.”

2

By decision dated August 3, 2016, OWCP denied appellant’s request for reconsideration.
It found that Dr. Stayner’s April 25, 2016 report was cumulative evidence that had previously
been considered, as it was substantially similar to his October 20, 2014 and June 8, 2015 reports.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.2 Section 10.608(b) of OWCP’s regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.3
ANALYSIS
OWCP issued a September 25, 2015 decision, finding that appellant failed to submit
sufficient medical evidence to establish causal relationship between specific employment factors
and appellant’s diagnosed bilateral patellar tendinitis. On May 18, 2016 appellant requested
reconsideration. With her request, she submitted a letter from Dr. Stayner dated April 25, 2016.
OWCP denied her request for reconsideration by decision dated August 3, 2016.
The Board finds that appellant did not show that OWCP erroneously applied or
interpreted a specific point of law, or advance a new and relevant legal argument not previously
considered. Thus, appellant is not entitled to a review of the merits of her claim based on the
first and second above-noted requirements under section 10.606(b)(3).
The underlying issue is whether appellant has submitted sufficient evidence to establish
causal relationship between specific factors of her federal employment and her diagnosed
bilateral patellar tendinitis. A claimant may be entitled to a merit review by submitting relevant
and pertinent new evidence, but appellant failed to submit any relevant and pertinent new
evidence with her request for reconsideration. The only evidence submitted by appellant on
reconsideration of the September 25, 2015 decision was Dr. Stayner’s April 25, 2016 report.
This report was an almost exact duplicate of Dr. Stayner’s October 20, 2014 and June 8, 2015
reports, with the addition of a sentence stating a degree of confidence, rather than providing
additional explanation. He did not provide any further opinions as to how or why appellant’s
work duties caused or aggravated her bilateral knee condition. As the April 25, 2016 report was
cumulative of the October 20, 2014 and June 8, 2015 reports, which had previously been
reviewed by OWCP on September 25, 2015 appellant submitted no relevant and pertinent new
evidence on reconsideration, not previously considered by OWCP.

2

20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

3

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

3

The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP,
or constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 3, 2016 is affirmed.
Issued: February 14, 2017
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq. for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket Nos. 21-1248 and 220171
Issued: March 11, 2022

Case Submitted on the Record

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

On August 17, 2021 appellant, through counsel, filed a timely appeal from a July 26, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx905. The Clerk of the Appellate Boards docketed the appeal as No. 21-1248. On
November 15, 2021 appellant, through counsel, filed a timely appeal from an October 5, 2021
merit decision of OWCP under OWCP File No. xxxxxx284. The Clerk of the Appellate Boards
docketed the appeal as No. 22-0171.
On July 20, 2020 appellant, then a 44-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on July 9, 2020 she experienced a left shoulder muscle strain when
attempting to stop the contents from falling out of a broken 50-pound package while in the
performance of duty. She stopped work on July 10, 2020. OWCP assigned that claim OWCP File
No. xxxxxx905.

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.

Appellant had previously filed an October 10, 2019 notice of recurrence (Form CA-2a)
alleging that on August 15, 2019 she sustained a recurrence of her previously accepted medical
conditions when she injured her left shoulder lifting a heavy package while in the performance of
duty.2 She asserted that, upon returning to work following her previously accepted February 22,
2010 employment injury, she continued to work with ongoing back and shoulder pain related to
her accepted medical conditions and that on August 15, 2019 she experienced a sharp shooting
pain in her left shoulder radiating into her neck when she picked up a heavy package. OWCP
subsequently converted appellant’s recurrence claim under OWCP File No. xxxxxx560 to a new
traumatic injury claim for a left shoulder condition assigned OWCP File No. xxxxxx284.
Appellant did not stop work.
By decisions dated December 3, 2019, March 18 and September 16, 2020, and October 5,
2021, OWCP denied appellant’s October 10, 2019 traumatic injury claim under OWCP File No.
xxxxxx284, finding that the evidence of record was insufficient to establish causal relationship
between her diagnosed left shoulder condition and the accepted August 15, 2019 employment
incident.
By decision dated January 12, 2021, OWCP denied appellant’s traumatic injury claim
under OWCP File No. xxxxxx905, finding that the medical evidence of record was insufficient to
establish that her left shoulder condition was causally related to the accepted July 9, 2020
employment incident. It found, therefore, that she had not met the requirements to establish an
injury or medical condition causally related to the accepted employment incident.
On January 26, 2021 appellant, through counsel, timely requested a telephonic hearing
before a representative of OWCP’s Branch of Hearings and Review with regard to the denial of
her claim under OWCP File No. xxxxxx905.
By decision dated July 26, 2021, OWCP’s hearing representative affirmed the January 12,
2021 decision, noting that appellant had another traumatic injury claim under OWCP File No.
xxxxxx284 and referenced a January 22, 2021 medical report from Dr. Sami E. Moufawad, a spine
and pain medicine and physical medicine and rehabilitation specialist, that was submitted in
support of that other claim.
The Board, having duly considered this matter, finds that this case is not in posture for
decision.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files. For example, if a
new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required. has filed separate traumatic injury
claims for left shoulder conditions under OWCP File Nos. xxxxxx905 and xxxxxx284. The Board
further notes that, in OWCP’s July 20, 2021 decision in OWCP File No. xxxxxx905, the hearing
representative referenced her claim under OWCP File No. xxxxxx284 . Therefore, for full and
fair adjudication, the cases must be remanded to OWCP to administratively combine OWCP File
2

Appellant’s recurrence claim was filed in relation to OWCP File No. xxxxxx560, which was a prior claim for a
February 22, 2020 traumatic injury accepted for a contusion of chest and cervical strain.

2

Nos. xxxxxx905 and xxxxxx284, along with any other of appellant’s relevant claim files, so that
it can consider all relevant claim files and accompanying evidence in adjudicating appellant’s
traumatic injury claims.
Following this and other such further development as deemed necessary, OWCP shall
issue a de novo decision.
IT IS HEREBY ORDERED THAT the July 26 and October 5, 2021 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this order of the Board.
Issued: March 11, 2022
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
J.K., Appellant
And
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTIC AGENCY, Fort Belvoir, VA,
Employer
_________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-1759
Issued: February 21, 2012

Case Submitted on the Record

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

JURISDICTION
On July 26, 2011 appellant, through his attorney, filed a timely appeal from a June 17,
2011 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
request for further merit review of his claim. As more than 180 days elapsed from the last merit
decision of May 3, 2010 to the filing of this appeal, pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board only has jurisdiction
over the nonmerit decision.
ISSUE
The issue is whether OWCP properly denied appellant’s request for merit review under
5 U.S.C. § 8128(a).
On appeal appellant, through counsel, contends that OWCP’s decision is contrary to fact
and law.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 15, 2008 appellant, then a 55-year-old laborer, filed a traumatic injury claim
alleging that while walking up stairs carrying a 20-pound tub he misstepped and twisted his right
knee and thereby suffered a right medial collateral ligament sprain. OWCP accepted his claim
for right knee strain/tear. On March 27, 2009 appellant underwent an authorized arthroscopy and
partial lateral meniscectomy and chondroplasty of the right knee. On May 3, 2010 OWCP issued
a schedule award for a two percent permanent loss of use of the right lower extremity.
On February 15, 2011 appellant requested reconsideration of his schedule award. He
stated that his treating physician had submitted a recent report on the status of his injury.
Although appellant submitted no new report with his request, Dr. Kuldeep S. Sidhu, appellant’s
treating Board-certified orthopedic surgeon, continued to submit progress reports. In a
February 14, 2011 progress report, Dr. Sidhu noted that appellant had a torn lateral meniscus and
degenerative joint disease in his right knee and was to remain off work permanently.
By decision dated June 17, 2011, OWCP denied appellant’s request for reconsideration
without reviewing the merits of the case.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.4 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.5
ANALYSIS
OWCP issued a schedule award for a two percent impairment of appellant’s right lower
extremity on May 3, 2010. As the Board does not have jurisdiction to review the merits of the
case, the sole issue on appeal is whether OWCP properly denied his timely filed reconsideration
request.

2

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

2

In requesting reconsideration, appellant did not argue that OWCP erroneously interpreted
a specific point of law nor did he advance a relevant legal argument not previously considered.
He did not submit any pertinent new and relevant medical evidence with his reconsideration
request, but contended that his physician had submitted recent reports. Although Dr. Sidhu
continued to submit progress reports, including a February 14, 2011 report wherein he indicated
that appellant had a torn lateral meniscus and degenerative joint disease in his right knee and was
to remain off work permanently, he did not submit any new reports indicating that appellant was
entitled to a greater schedule award. The Board has held that the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.6 Accordingly, appellant has not submitted evidence sufficient to require
OWCP to reopen the case for further merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for merit review under
5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 17, 2011 is affirmed.
Issued: February 21, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6

Edward Mathew Diekemper, 31 ECAB 224 (225 (1979); D.B., Docket No. 10-2036 (issued May 13, 2011).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL, El Paso, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-0320
Issued: July 10, 2017

Case Submitted on the Record

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

JURISDICTION
On November 28, 2016 appellant filed a timely appeal from an August 17, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish more than five
percent permanent impairment of his right upper extremity for which he previously received a
schedule award.
On appeal appellant disagrees with his impairment rating as he feels that his right arm is
significantly weaker than his left. He notes that he was required to pass a yearly physical fitness

1

5 U.S.C. § 8101 et seq.

test in his position which necessitated daily exercise. Appellant contends that his strength and
endurance has been significantly reduced due to his employment injury.
FACTUAL HISTORY
On November 27, 2013 appellant, then a 34-year-old BORSTAR operator, filed a
traumatic injury claim (Form CA-1) alleging that on November 5, 2013, while loading a plastic
case containing equipment into the back of his service vehicle, he felt and heard a loud pop and
experienced severe pain in his right elbow. He alleged that he sustained pain and sensitivity to
touch in his right elbow as well as pain and weakness during flexion and extension. Appellant
also alleged right shoulder pain and weakness. He returned to full duty with no restrictions on
December 9, 2013.
On February 21, 2014 OWCP accepted appellant’s claim for sprain of the right elbow
and forearm.
Appellant underwent a magnetic resonance imaging (MRI) scan of his right elbow on
February 26, 2014. This scan demonstrated olecranon bone contusion or stress reaction and
partial thickness tear of the triceps tendon without full-thickness tear or tendon retraction. A
second MRI scan on November 26, 2014 showed intact common flexor and extensor tendons,
normal biceps and triceps tendon attachments, and a normal marrow signal.
Dr. Andrew J. Palafox, a Board-certified orthopedic surgeon, examined appellant on
December 22, 2014 and reviewed the November 26, 2014 MRI scan. He disagreed with the
findings of the MRI scan noting that appellant had “a very significant palpable defect in the
triceps tendon.” Dr. Palafox noted appellant’s continued difficulty with push-ups overhead
activities, and bench press. He diagnosed triceps tendon tear and recommended that appellant’s
MRI scan be reread. On March 2, 2015 Dr. Palafox reported that appellant’s November 26, 2014
MRI scan was reread to reveal a partial thickness tear of the triceps tendon. He recommended an
open surgical repair with debridement of the osteophyte on the olecranon and augmented repair
of the tendon.
In a report dated February 24, 2016, Dr. Palafox opined that appellant injured his
dominant right elbow at work resulting in a partial triceps tendon rupture that did not require
surgery. He reported that appellant returned to regular full-duty work with residual symptoms
including stiffness, pain, and swelling in his elbow as well as weakness compared to his left arm.
Dr. Palafox performed a physical examination and found full range of motion (ROM) with
crepitus and point tenderness. He applied the American Medical Association, Guides to the
Evaluation of Permanent Impairment,2 (A.M.A., Guides) and noted that there was no diagnosisbased impairment (DBI) for triceps tendon. Dr. Palafox opined that a triceps tendon rupture
would be similar to a biceps tendon rupture and applied Table 15-4.3 He utilized the net
2

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

A.M.A., Guides 399, Table 15-4.

2

adjustment formula of the A.M.A., Guides4 and determined that appellant had a class 1 injury,
with grade modifier Functional History (GMFH) of 1, grade modifier Physical Examination
(GMPE) of 1, and grade modifier Clinical Studies (GMCS) of 1 based on partial tear of the
triceps tendon as seen on MRI scan. Dr. Palafox determined that appellant had default grade C
or five percent permanent arm impairment. He advised that appellant had reached maximum
medical improvement.
Appellant filed a schedule award claim (Form CA-7) on June 15, 2016.
OWCP’s medical adviser reviewed Dr. Palafox’s report on June 27, 2016. Dr. Palafox
noted appellant’s diagnosed condition of triceps tendon tear and agreed to the method of using
the DBI method for biceps tendon rupture as appropriate for determining appellant’s impairment
rating. He determined that appellant had GMFH of 15 as his elbow was still symptomatic, that
he had a GMPE of 16 as there was tenderness to palpation, and that the GMCS7 was not
applicable as it was used to place appellant in the correct diagnostic category. The medical
adviser applied the net adjustment formula and determined that appellant’s grade of impairment
was the default C with five percent permanent impairment of the right upper extremity.8
By decision dated August 17, 2016, OWCP granted appellant a schedule award for five
percent permanent impairment of his right upper extremity.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.9 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.10 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing

4

Id. at 411.

5

Id. at 406, Table 15-7.

6

Id. at 408, Table 15-8.

7

Id. at 411. “If a particular criterion, … was used to determine the impairment class, it may not be used again to
determine the grade and is disregarded in the impairment calculation.”
8

Id. at 399, Table 15-4.

9

See 20 C.F.R. §§ 1.1-1.4.

10

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).

3

regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.11
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).12 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.13
ANALYSIS
The issue is whether appellant has met his burden of proof to establish more than five
percent permanent impairment of his right upper extremity for which he received a schedule
award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation had been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.14
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.15 In T.H., the Board concluded that OWCP physicians
were at odds over the proper methodology for rating upper extremity impairment, having
observed attending physicians, evaluating physicians, second opinion physicians, impartial
medical examiners, and district medical advisers use both DBI and ROM methodologies
interchangeably without any consistent basis. Furthermore, the Board observed that physicians
interchangeably cited to language in the first printing or the second printing when justifying use
of either ROM or DBI methodology. Because OWCP’s own physicians were inconsistent in the

11

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

12

Federal (FECA) Procedure Manual, supra note 2.

13

Isidoro Rivera, 12 ECAB 348 (1961).

14

T.H., Docket No. 14-0943 (issued November 25, 2016).

15

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

4

application of the A.M.A., Guides, the Board found that OWCP could no longer ensure
consistent results and equal justice under the law for all claimants.16
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the August 17, 2016 decision. Utilizing a
consistent method for calculating permanent impairment for upper extremities to be applied
uniformly, and such other development as may be deemed necessary, OWCP shall issue a de
novo decision on appellant’s claim for an upper extremity schedule award.
CONCLUSION
The Board finds the case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 17, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: July 10, 2017
Washington, DC

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

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

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

16

Supra note 14.

5