United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, EAST/LAMAR
CARRIER ANNEX POST OFFICE,
Memphis, TN, Employer
__________________________________________

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

Docket No. 21-0063
Issued: November 8, 2021

Case Submitted on the Record

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

JURISDICTION
On October 14, 2020 appellant filed a timely appeal from an April 21, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 21, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish disability from work
for the period November 9, 2019 through January 3, 2020 causally related to his accepted
September 22, 2014 employment injury.
FACTUAL HISTORY
On October 30, 2014 appellant, then a 45-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on September 22, 2014 he felt a sharp pain in his lower back,
which radiated down his right leg while climbing steep stairs in the performance of duty. He
stopped work that day and returned on October 30, 2014. OWCP initially accepted the claim for
lumbar sprain. It subsequently expanded the acceptance of the claim to include aggravation of
degeneration of lumbar or lumbosacral intervertebral disc at L5 -S1 and aggravation and
displacement of lumbar intervertebral disc without myelopathy at L5-S1. OWCP paid appellant
intermittent wage-loss compensation on the supplemental rolls as of September 23, 2014.3
On November 26, 2019 appellant filed a claim for compensation (Form CA-7) requesting
wage-loss compensation for disability from work for the period November 9 through 22, 2019.
On December 6, 2019 he filed a Form CA-7 requesting wage-loss compensation for disability from
work for the period November 23 through December 6, 2019. In the accompanying Time Analysis
Form (Form CA-7a), appellant claimed, and the employing establishment verified, 72 hours leave
without pay (LWOP) used for the period November 9 through 22, 2019, and 72 hours LWOP used
for the period November 23 through December 6, 2019 as “under doctor’s care.” The leave taken
was continuous.
In November 11 and 21, and December 5, 2019 duty status reports (Form CA-17),
Dr. Rommel G. Childress, a Board-certified orthopedic surgeon, diagnosed lumbar spasms. He
indicated that appellant had been totally disabled from work since November 6, 2019 because of
severe lumbar spasm and pain. Dr. Childress noted that appellant was waiting for a neurosurgical
consult.
In development letters dated December 2 and 12, 2019, OWCP noted that appellant was
claiming disability from work due to a worsening of his accepted work-related condition,
commencing November 9, 2019. It noted the deficiencies in the evidence received and indicated
that his physician must submit a complete and comprehensive narrative report, which included a
history of his injury and a thorough explanation with objective findings as to how his accepted
work-related condition worsened such that he was no longer able to perform the duties of his
position on November 9, 2019 and continuing. OWCP also advised appellant that a medical slip

3

The present claim was assigned OWCP File No. xxxxxx067 by OWCP. Under OWCP File No. xxxxxx669,
appellant has an accepted claim for left shoulder girdle sprain and unspecified injury of muscle and tendon of the left
rotator cuff due to a February 13, 2017 traumatic injury when he pulled down the rear door of his vehicle while in the
performance of duty. Appellant returned to full-time limited-duty work on January 20, 2018. Under OWCP file
number xxxxxx914, OWCP accepted a left muscle strain at thigh level when appellant tripped over a branch while in
the performance of duty on November 21, 2018. Appellant’s claims have not been administratively combined.

2

disabling him from work or a Form CA-17 was insufficient to establish disability without a medical
explanation and objective findings. It afforded appellant 30 days to submit the requested evidence.
In a November 11, 2019 report, Dr. Childress noted that appellant reported missing a few
days of work because of severe pain and spasms. Appellant had related that he developed severe
pain in the right leg after walking a couple of hours. Dr. Childress indicated that review of
appellant’s magnetic resonance imaging (MRI) scan indicated that his symptoms were consistent
with his disc pathology and prior lumbar laminectomy at L5-S1. He advised that appellant has
documented right-sided disc bulge, with a slight impression on the L5 nerve and with slight
foraminal compromise at that level. Dr. Childress also has documented hypertrophic facts at L45 and L5-S1. He noted examination findings of 40 degrees forward flexion with straight leg raising
of 40 degrees on the right and 55 degrees on the left. Appellant had difficulty bending beyond 40
degrees and had right radicular pain and numbness and tingling, but was intact neurologically.
Dr. Childress related that he may request lumbar facet blocks or an updated MRI scan since the
latest one was almost two years old. He placed appellant off work. Dr. Childress indicated that
appellant would be seen in follow up in one week.
In a November 21, 2019 medical report, Dr. Childress indicated that appellant’s episodes
of the right leg giving out predisposed him to falls. He noted that appellant had been at home and
had one fall since he was last seen. Dr. Childress indicated that appellant had major back pain and
spams and radicular difficulty with no improvement with medication. He indicated that appellant
had difficulty with straight leg raising on the right, limited lumbar mobility of forward flexion and
significant right lumbar paraspinal spams. Dr. Childress opined that appellant was totally disabled
from work. He prescribed bed rest with restricted activities at home.
In a December 5, 2019 report, Dr. Childress indicated that appellant’s increasing pain and
difficulty with his right leg has extended into his left buttock. He reported that appellant had
limited mobility of his lumbar spine to 40 degrees, with palpable right and left lumbar paraspinal
spasm and positive straight leg raising on the right at 30 degrees and on the left at 5 5 degrees.
There was also diminished sensation to light touch in the right leg, laterally and on the foot.
Dorsiflexion was 4/5 on the right. Dr. Childress continued appellant on bed rest and restricted
activities. He noted that appellant was still awaiting neurosurgical consultation.
Appellant continued to submit Form CA-7 claims for wage-loss compensation for the
periods December 7 through 29, 2019, and December 21, 2019 through January 3, 2020. In the
accompanying Form CA-7a, he claimed and the employing establishment verified 80 hours LWOP
used for December 7 through 20, 2019, 64 hours LWOP used for on December 21 through
January 3, 2020 as “under doctor’s care.” The leave taken was continuous.
In a December 19, 2019 report, Dr. Childress reported that appellant had recently fallen
when walking. A foot dropped on appellant’s right side, causing him to trip. He hit his left
shoulder, causing a bruise. Dr. Childress indicated that appellant could lift pretty well and it was
no more than a possible strain. He indicated that appellant was still having spasms and difficulty
functioning at home, with minor activities, and with his legs giving way with his back issue.
Dr. Childress continued appellant with rest and restricted activities at home for his lumbar disc
pathologies and spasms. He noted that appellant was still awaiting a neurosurgical consultation.
In a December 19, 2019 Form CA-17, Dr. Childress opined that appellant was totally disabled

3

from work because of severe lumbar pain/spasms. He noted that appellant was awaiting a
neurosurgical consultation.
By decision dated January 16, 2020, OWCP denied appellant’s claim for disability from
work for the period November 9, 2019 through January 3, 2020. It found that the medical evidence
did not establish that he was disabled as a result of the accepted work-related medical conditions.
In a January 9, 2020 report, Dr. Childress reported that appellant was still at home and his
back and leg pain and radicular symptoms had slightly improved. He indicated that appellant had
limited lumbar mobility to approximately 55 degrees of forward flexion with some spasms and
bilateral straight leg raising at 45 to 50 degrees. Dr. Childress indicated that he would see appellant
back in a week to see if he could tolerate return to work on a part-time basis. He also noted that
appellant still had been unable to see a neurosurgeon.
In a January 16, 2020 letter, Dr. Childress indicated that appellant had a work-related
lumbar spine condition for which he was actively being treated. He advised that appellant has
been totally incapacitated and unable to work because of severe lumbar pain, spasms, and
instability. Due to the September 22, 2014 work-related injury, Dr. Childress indicated that
appellant had been experiencing severe lumbar pain, spasms, and radicular leg pain and, because
of this, he also sustained a fall. He explained that the fall was a direct result of the September 22,
2014 work-related injury and no additional injuries were sustained as a result of the fall.
Dr. Childress continued to opine that appellant was totally incapacitated and unable to perform
any and all work duties. He additionally noted that they were still awaiting authorization for a
neurosurgeon.
On January 22, 2020 appellant requested a review of the written record before a
representative of OWCP’s Branch of Hearings and Review. On January 27, 2020 he withdrew his
request for a review of the written record by an OWCP hearing representative and instead
requested reconsideration.
By decision dated April 21, 2020, OWCP denied modification of its prior decision. 4
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that disability or a specific condition for which
compensation is claimed is causally related to the employment injury. 6 For each period of

4

The record reflects that OWCP paid appellant’s disability claim for the period November 6 through 8, 2019.

5

Supra note 1.

6

K.A., Docket No. 19-1564 (issued June 3, 2020); T.H., Docket No. 19-0436 (issued August 13, 2019); see B.K.,
Docket No. 18-0386 (issued September 14, 2018); see also Amelia S. Jefferson, 57 ECAB 183 (2005); Nathaniel
Milton, 37 ECAB 712 (1986).

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disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury. 7
The term disability is defined as the incapacity, because of an employment injury, to earn
the wages the employee was receiving at the time of the injury. 8 Disability is, thus, not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages.9 An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he o r she was receiving at the time
of injury, has no disability as that term is used in FECA. 10
Whether a particular injury causes an employee to become disabled from work, and the
duration of that disability, are medical issues that must be proven by a prepo nderance of reliable,
probative, and substantial medical evidence. 11 Findings on examination are generally needed to
support a physician’s opinion that an employee is disabled for work. 12 The physician’s opinion
must be based on the facts of the case and the complete medical background of the employee, must
be one of reasonable medical certainty, and must include objective findings in support of its
conclusions. 13
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific date of disability for which compensation is
claimed. To do so would essentially allow an employee to self -certify his or her disability and
entitlement to compensation. 14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish disability from
work for the period November 9, 2019 through January 3, 2020 causally related to his accepted
September 22, 2014 employment injury.
Appellant submitted reports from Dr. Childress in support of his disability claim. In a
November 11, 2019 report, Dr. Childress advised that appellant had documented right-sided disc
bulge, with a slight impression on the L5 nerve and with slight foraminal compromise at that level.
He also had documented hypertrophic facets at L4-5 and L5-S1. Dr. Childress reported that
7

K.A., id.; T.H., id.; see D.G., Docket No. 18-0597 (issued October 3, 2018); Amelia S. Jefferson, id.

8

20 C.F.R. § 10.5(f); E.P., Docket No. 20-0655 (issued March 17, 2021); T.H., supra note 6; S.T., Docket No.
18-0412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB 397 (1999).
9

E.P., id.; G.T., Docket No. 18-1369 (issued March 13, 2019); Robert L. Kaaumoana, 54 ECAB 150 (2002).

10

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

11

J.A., Docket No. 18-1304 (issued May 1, 2019); William A. Archer, 55 ECAB 674 (2004).

12

B.W., Docket No. 19-0049 (issued April 25, 2019); Dean E. Pierce, 40 ECAB 1249 (1989).

13

V.A., Docket No. 19-1123 (issued October 29, 2019); C.B., Docket No. 18-0633 (issued November 16, 2018).

14

M.J., Docket No. 19-1287 (issued January 13, 2020); J.B., Docket No. 19-0715 (issued September 12, 2019).

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appellant had missed a few days of work because of severe pain and spasms in the right leg after
walking a couple of hours, which was consistent with appellant’s disc pathology and prior lumbar
laminectomy at L5-S1. He reported detailed objective findings and took appellant off work.
However, Dr. Childress also qualified his opinion by noting that appellant’s last MRI scan was
almost two years old and that appellant should obtain a new MRI scan if his symptoms continued.
His opinion regarding appellant’s current objective findings was, therefore, based upon stale
medical evidence. 15 Dr. Childress did not provide a reasoned medical opinion, which explained
why appellant’s current objective findings rendered him unable to perform his limited work duties
from November 9, 2019 and how appellant’s current objective findings were causally related to
his accepted September 22, 2014 employment injuries. 16
In his November 21 and December 5, 2019 reports, Dr. Childress indicated that appellant’s
right leg gave out and caused him to fall. He noted increased symptomology, provided detailed
examination findings, and continued to opine that appellant was totally disabled from work. In a
December 19, 2019 report, Dr. Childress indicated that appellant was still having back spasms and
difficulty functioning at home and with his legs giving way. He also reported that appellant
recently had another fall, during which he bruised his left shoulder. However, Dr. Childress did
not offer a rationalized medical opinion, which explained why appellant’s falls were causally
related to his accepted employment injury. 17
In a January 16, 2020 letter, Dr. Childress noted that appellant has been totally
incapacitated from work because of severe lumbar pain, spasms, and instability from the
September 22, 2014 work-related injury. He opined that, as a direct result of the September 22,
2014 work-related injury, appellant sustained a fall from which no additional injuries were
sustained. The Board has held that an opinion is of limited probative value regarding causal
relationship if it does not contain medical rationale explaining how a given medical
condition/period of disability has an employment-related cause.18 Thus, the Board finds that as
Dr. Childress failed to provide sufficient rationale, his opinion is of limited probative value and
insufficient to establish appellant’s disability claim.
Appellant also submitted CA-17 form reports from Dr. Childress dated November 11 and
21, and December 5 and 19, 2019. However, these reports are of no probative value regarding the
underlying issue of the present case because they do not contain an opinion regarding causal
relationship. The Board has held that medical evidence that does not offer an opinion regard ing

15

See G.F., Docket No. 20-1031 (issued December 3, 2020); M.P., Docket No. 18-0094 (issued June 26, 2018).

16

See L.T., Docket No. 19-1794 (issued October 2, 2020); T.T., Docket No. 18-1054 (issued April 8, 2020); A.S.,
Docket No. 17-2010 (issued October 12, 2018); S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004);
20 C.F.R. § 10.5(f).
17

See L.T., id.

18

See T.T., supra note 16.

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the cause of an employee’s condition or disability is of no probative value on the issue of causal
relationship.19 Therefore, these reports are insufficient to establish appellant’s claim.
As noted, appellant must submit reasoned medical evidence directly addressing the specific
dates of disability for work for which he claims compensation.20 He did not provide medical
evidence containing a rationalized opinion establishing that he was disabled from work from
November 9, 2019 through January 3, 2020 causally related to his accepted September 22, 2014
employment injuries, and thus he has not met his burden of proof.21
On appeal appellant contends that he was working six hours a day and in receipt of wageloss compensation before Dr. Childress took him off work beginning of November 2019. He also
noted that OWCP previously paid his claims before November 2019 and paid his claims after he
returned to work in January 2020. For the reasons noted above, the Board finds that Dr. Childress’
reports are insufficient to establish appellant’s claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish disability from
work for the period November 9, 2019 through January 3, 2020 causally related to his accepted
September 22, 2014 employment injury.

19

See C.M., Docket No. 20-1077 (issued December 18 2020); L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).
20

See L.T., supra note 16; K.A., Docket No. 16-0592 (issued October 26, 2016).

21

See supra note 17.

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ORDER
IT IS HEREBY ORDERED THAT the April 21, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 8, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE-CASUAL FIREFIGHTERS,
Sundance, WY, Employer
__________________________________________

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

Docket No. 18-1330
Issued: March 11, 2019

Case Submitted on the Record

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

JURISDICTION
On June 22, 2018 appellant filed a timely appeal from an April 13, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to the accepted factors of his federal employment.
FACTUAL HISTORY
On June 24, 2017 appellant, then a 25-year-old forestry technician, filed an occupational
disease claim (Form CA-2) alleging that he sustained tenderness, swelling, and pain in his right
1

5 U.S.C. § 8101 et seq.

big toe while in the performance of duty. He explained that the alleged injury occurred while he
was engaged in “hiking and mop-up on Bonita fire.” Appellant indicated that he first became
aware of his claimed condition and related it to factors of his federal employment on June 23, 2017.
He stopped work on June 24, 2017.
By development letter dated July 3, 2017, OWCP informed appellant of the type of factual
and medical evidence needed to support his claim. By separate letter of the same date, it also
requested additional factual information from the employing establishment. Both appellant and
the employing establishment were afforded 30 days to respond.
In a response dated July 7, 2017, appellant indicated that, while fighting the Bonita fire, he
had been working in steep terrain over the course of several days. He explained that he was
assigned to “brush out” the area in preparation for a “burn out.” Appellant indicated that over a
period of several days, he had to climb up and down hills while removing brush, limbs, and small
trees from the area. He explained that his toes were jammed against the toe of his boot, which
caused an abrasion.
In emergency room notes dated June 24, 2017, Amy K. Montoya, a registered nurse,
indicated that appellant was seen for complaints of redness, swelling, and drainage to the right
great toe. Appellant was also seen on that date by Leora Ellen Shein, a certified family nurse
practitioner, who explained that appellant was working as a firefighter in the mountains and “had
to hike miles daily in heavy boots.” Ms. Shein noted that he reported pain around the lateral side
of the right toenail, and had a collection of pus around the nail. She diagnosed cellulitis of the
right toe.
By decision dated August 10, 2017, OWCP accepted that the alleged employment factors
occurred while in the performance of duty as alleged. However, it denied appellant’s claim,
finding that he had not submitted probative medical evidence establishing a diagnosis causally
related to the accepted employment factors. OWCP explained that nurses and nurse practitioners
are not considered qualified physicians under FECA, and their reports have no probative value
unless they are countersigned by a physician.
On August 17, 2017 appellant requested a telephonic hearing before an OWCP hearing
representative, which was held on February 8, 2018. During the hearing, he indicated that his
standard firefighting shift was 16 hours a day. Appellant confirmed that for the period from
June 18 to 28, 2017 he only had two days’ rest, and worked 16 hours per day on the remaining
days.
On March 2, 2018 OWCP received a response from the employing establishment
concurring with appellant’s allegations and confirming appellant’s duties as a firefighter. It also
received a position description.
On March 6, 2018 OWCP received the previously submitted June 24, 2017 nurses’ notes
countersigned by a physician with an illegible signature.
By decision dated April 13, 2018, OWCP’s hearing representative affirmed the August 10,
2017 decision.

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LEGAL PRECEDENT
An employee seeking benefits under FECA2 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, that an injury was sustained in the performance of duty as alleged, and that
any disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
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 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 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
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.5
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted factors of his federal employment.
The evidence submitted by appellant included emergency room notes from July 24, 2017.
The notes from a nurse practitioner diagnosed cellulitis of right toe. Certain healthcare providers
such as nurses and nurse practitioners, however, are not considered “physician[s]” as defined under
FECA.6 Consequently, their medical findings and/or opinions will not suffice for purposes of

2

Id.

3

See A.M., Docket No. 17-0741 (issued April 5, 2018); Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton,
40 ECAB 1143, 1145 (1989).
4

See A.M., id.; Victor J. Woodhams, 41 ECAB 345 (1989).

5

P.S., Docket No. 18-1222 (issued January 8, 2019).

6

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). 5 U.S.C. § 8102(2) of FECA provides that the term physician includes
surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within
the scope of their practice as defined by State law. See also Roy L. Humphrey, 57 ECAB 238 (2005).

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establishing entitlement to FECA benefits.7 If their findings and opinions are counter-signed by a
physician, they can be considered probative evidence.8 The nursing notes were in fact
subsequently counter-signed by a physician; however, the physician’s signature is illegible. The
Board has held that a report that bears an illegible signature cannot be considered probative
medical evidence because it lacks proper identification.9 Thus, these reports remain of no
probative value.
On appeal appellant contends that he should not be held financially responsible for injuries
sustained on the job. However, as found above, there is no rationalized medical evidence of record
explaining how appellant’s employment duties caused or aggravated a medical condition.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted factors of his federal employment.

7

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician
assistant or certified nurse practitioner will be considered medical evidence only if countersigned by a qualified
physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013).
8

Id.

9

See R.M., 59 ECAB 690 (2008); D.D., 57 ECAB 734 (2006); Richard J. Charot, 43 ECAB 357 (1991).

4

ORDER
IT IS HEREBY ORDERED THAT the April 13, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 11, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINSTRATION MEDICAL
CENTER, Iowa City, IA, Employer
__________________________________________

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

Docket No. 10-193
Issued: October 13, 2010

Case Submitted on the Record

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

JURISDICTION
On October 26, 2009 appellant, through his attorney, filed a timely appeal from the
May 23 and September 24, 2009 merit decisions of the Office of Workers’ Compensation
Programs reducing his wage-loss benefits based on his actual earnings. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly determined that appellant’s actual earnings as an
electrician fairly and reasonably represented his wage-earning capacity as of January 17, 2009.
FACTUAL HISTORY
This case has previously been before the Board. In a January 29, 2008 decision, the
Board reversed a May 16, 2007 Office hearing representative’s decision terminating wage-loss
compensation.1 The Board found that the reports of Frank S. Gersh, Ph.D., a treating clinical
1

Docket No. 07-1743 (issued January 29, 2008).

psychologist, and Dr. Charles Carroll, an attending family practitioner, were insufficient to
establish that appellant’s disability causally related to the accepted conditions of depressive
reactive anxiety had ceased. The facts and history contained in the prior decision are
incorporated by reference.2
The evidence of record contains W2 forms for the year 2007, pay stubs from 2008, a
March 25, 2008 statement regarding dates of employment from May 2006 to March 2008, an
undated statement detailing the dates and amount of leave without pay and a form noting
separation effective February 1, 2008.3 Appellant stated that he worked as a police officer for
the employing establishment from December 30, 2001 to June 25, 2006 and as a housekeeping
aide for the period June 26, 2006 to February 1, 2008; as an ore apprentice millwright for ST
Cotter Turbine Services, Inc. for the period June 4, to July 15, 2007; as a pre-apprentice
millwright for Millwright Services, Inc. for July 7, 2007; as a pre-apprentice millwright for
Newell Machinery Co., Inc. for the period August 8 to 12, 2007 and as an operator for BFC
Electric Company, LLC for the period August 13, 2007 to March 25, 2008, the date of the
statement. The W2 forms reflect that appellant earned $904.64 working for the employing
establishment; $13,334.67 working for BFC Electric Company, LLC; $4,043.90 working for ST
Cotter Turbine Service, Inc.; $441.23 working for Newell Machine Co., Inc. and $242.00
working for Millwright Service, Inc. Pay stubs reflect employment with Olney Electric, LLC
from June 8 to November 22, 2008 and BFC Electric for the period December 17, 2007 to
June 1, 2008. In an undated statement, appellant reported intermittent use of leave without pay
for the period May 23, 2006 through November 23, 2008 as well as a quarter hour of being
absent without leave on May 17, 2006 for the employing establishment.4
In an April 26, 2008 report, Dr. Kishore J. Thampy, a second opinion physician Boardcertified in psychiatry and forensic psychiatry, diagnosed major depression with paranoid
features and mild attention deficit disorder. He opined that appellant continued to have residuals
of his accepted employment psychiatric condition. In a May 29, 2008 work capacity evaluation
for psychiatric/psychological conditions, Dr. Thampy indicated appellant was not capable of
working an eight-hour day due to issues of anger, paranoia and anxiety.
On October 6, 2008 the Office referred appellant to Dr. James L. Gallagher, a physician
Board-certified in psychiatry and forensic psychiatry, to resolve the conflict in the medical
opinion evidence between Dr. Gersh and Dr. Thampy, a second opinion Board-certified
psychiatrist with a subspecialty certification in forensic psychiatry, regarding appellant’s
2

On June 13, 2006 appellant, then a 40-year-old police officer, filed an occupational disease claim alleging that
on May 23, 2006 he first realized his stress was due to harassment and retaliation at work and his being a
whistleblower. He noted he was first aware of his condition on May 24, 2004. May 23, 2006 was the date appellant
noted when he first realized his condition had been caused or aggravated by his employment. By decision dated
October 12, 2006, the Office accepted appellant’s claim for depressive reaction and anxiety reaction, not to exceed
May 16, 2006. The compensable factor was appellant’s reaction to the termination of his employment by the
employing establishment effective April 11, 2005.
3

Appellant submitted evidence from Iowa Workforce Development and a bank statement reflecting
unemployment payments for December 17, 19 and 26, 2008 and January 2, 9 and 16, 2009.
4

Appellant submitted claims for wage-loss compensation for the period May 5, 2006 through
November 23, 2008.

2

treatment. In a November 6, 2008 report, Dr. Gallagher agreed with Dr. Thampy’s diagnoses of
major depression with paranoid features and attention deficit disorder and that appellant was not
capable of working an eight-hour day due to his anxiety, diminished concentration and
depression.
By decision dated March 23, 2009, the Office reduced appellant’s compensation by 73
percent based on his actual earnings as an electrician in the private sector effective
January 17, 2009. It noted that appellant’s employment with BFC was from August 14, 2007 to
May 6, 2008 and from June 1 to November 22, 2008 for Olney Electric, which was more than 60
days. The Office found that his actual earnings were $593.06 a week and that the current weekly
pay rate for his date-of-injury job was $813.38. It noted that appellant’s medical compensation
benefits continued.
In a March 23, 2009 report, Dr. Gersh noted diagnoses of generalized anxiety disorder,
major depressive disorder and hyperactivity/attention deficit disorder. He reported appellant’s
symptoms were consistent with the diagnosis of post-traumatic stress disorder (PTSD) although
this was not one of the diagnoses made by him. Dr. Gersh reported that appellant had “difficulty
with sleeping, anger and poor concentration” and the belief “that he may not be able to have a
career.”
On July 1, 2009 Dr. Robert B. Wesner, a treating Board-certified psychiatrist, noted he
has been treating appellant for his PTSD since December 29, 2008. He reported that appellant
attempted a return to work on three separate occasions when his PTSD symptoms “became a
major impediment to continuing the employment in each case.”
On April 6, 2009 appellant’s counsel requested a telephonic hearing before an Office
hearing representative, which was held on July 7, 2009.
By decision dated September 24, 2009, the Office hearing representative affirmed the
Office’s March 23, 2009 loss of wage-earning capacity decision. He found that appellant
worked full time for more than 60 days from August 14, 2007 to May 6, 2008 for BFC as an
operator and from June 1 to November 22, 2008 for Olney Electric as an electrician and that the
Office correctly calculated his pay rate. The hearing representative found that appellant
submitted no evidence or argument to establish that the position was not suitable work. Further,
he found the opinions of Drs. Gallagher, Gersh, Thampy and Wesner were insufficient to
establish that he was unfit for the positions at BFC and Olney due to his accepted employment
injury.
LEGAL PRECEDENT
Once the Office has made a determination that a claimant is totally disabled as a result of
an employment injury and pays compensation benefits, it has the burden of justifying a
subsequent reduction in benefits.5 Under section 8115(a) of the Federal Employees’
Compensation Act, wage-earning capacity is determined by the actual wages received by an

5

A.W., 59 ECAB ___ (Docket No. 08-306, issued July 1, 2008).

3

employee if such earnings fairly and reasonably represent his wage-earning capacity.6
Generally, wages actually earned are the best measure of a wage-earning capacity and, in the
absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, will be accepted as such measure.7
When an employee cannot return to the date-of-injury job because of disability due to
work-related injury or disease, but does return to alternative employment with an actual wage
loss, the Office must determine whether the earnings in the alternative employment fairly and
reasonably represent the employee’s wage-earning capacity.8 The procedure manual notes that
reemployment may not be suitable if the job is part time, seasonal or of a temporary nature.9
After the employee has worked for 60 days, the Office will determine whether his actual
earnings represent his wage-earning capacity. In doing so, it will apply the Shadrick formula in
determining the claimant’s monetary entitlement.10
The Federal (FECA) Procedure Manual provides that the Office can make a retroactive
wage-earning capacity determination if appellant worked in the position for at least 60 days, the
position fairly and reasonably represented his wage-earning capacity and the work stoppage did
not occur because of any change in the injury-related condition affecting the ability to work.11
ANALYSIS
The Board finds that the Office did not properly determine appellant’s wage-earning
capacity. When the Office learns that an employee has returned to alternative work more than 60
days after the fact, the claims examiner may consider a retroactive loss of wage-earning
determination. Such a determination is generally to be considered appropriate where an
investigation reveals that appellant held private employment and had substantial earnings, which
were not reported to the Office or were otherwise not used in adjusting compensation
entitlement.12
The March 23, 2009 decision constitutes a retroactive wage-earning capacity
determination. Appellant worked on BFC Electric Company LLC beginning August 13, 2007
and worked in this position until May 6, 2008 and worked for Olney Electric LLC beginning
June 1, 2008 and worked in this position until November 22, 2008. He informed the Office of
6

M.A., 59 ECAB ___ (Docket No. 07-349, issued July 10, 2008); Sherman Preston, 56 ECAB 607 (2005). See 5
U.S.C. § 8115(a).
7

S.B., 59 ECAB ___ (Docket No. 07-346, issued April 23, 2008); Lottie M. Williams, 56 ECAB 302 (2005).

8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(a) (May 1997).
9

Id. See Connie L. Potratz-Watson, 56 ECAB 316 (2005).

10

Id. See Albert C. Shadrick, 5 ECAB 376 (1953). This has been codified by regulation at 20 C.F.R. § 10.403.

11

Id. at Chapter 2.814.7 (October 2009). See also K.S., 60 ECAB ___ (Docket No. 08-2105, issued February 11,
2009); Selden H. Swartz, 55 ECAB 272 (2004).
12

Id. at Chapter 2.814.7(e).

4

his employment for 2006 through 2008 in statements dated March 25 and December 8, 2008.
The Office reduced appellant’s compensation in its March 23, 2009 decision finding that his
actual earnings for BFC Electric Company LLC and Olney Electric LLC represented his wageearning capacity as he held a position in each company for more than 60 days. It found only that
these positions were suitable because he had demonstrated his ability to perform the duties for
two months. The Office did not address how such employment fairly or reasonably represented
appellant’s wage-earning capacity or whether his subsequent work stoppage was due to his
injury-related condition, as required by its procedures.13 It based its wage-earning capacity on
appellant’s job at two different companies. The procedure manual specifically states that “[o]nly
one job may ultimately form the basis of a wage-earning capacity determination.”14 The Office
did not address appellant’s employment with multiple employers during 2007 and 2008 or the
positions at BFC Electric Company LLC and Olney Electric LLC as part of its adjudication.
Accordingly, it did not fully consider all criteria for making a retroactive wage-earning capacity
determination.15
CONCLUSION
The Board finds that the Office improperly determined appellant’s wage-earning
capacity. The Office did not follow its procedures in making a retroactive loss of wage-earning
capacity decision.

13

Id. See also Ronald Litzler, 51 ECAB 588 (2000) (Office procedures provide that a retroactive determination
may be made where the claimant has worked in the position for at least 60 days, the employment fairly and
reasonably represents wage-earning capacity and the work stoppage did not occur because of any change in the
claimant’s injury-related condition affecting his or her ability to work); William M. Bailey, 51 ECAB 197 (1999)
(The claims examiner must ask the claimant for his reasons for ceasing work).
14

Id. at Chapter 2.814.7(c)(1).

15

Id. at Chapter 2.814.7(e); see also Selden H. Swartz, supra note 11.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 24 and May 23, 2009 are reversed.
Issued: October 13, 2010
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.W., Appellant
and
FEDERAL DEPOSIT INSURANCE
CORPORATION, Dallas, TX, Employer
__________________________________________

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Appearances:
Lonnie Boylan, for the appellant
Office of Solicitor, for the Director

Docket No. 16-0068
Issued: May 4, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 15, 2015 appellant, through her representative, filed a timely appeal from a
September 9, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established disability for the period April 8 through
June 27, 2013 as a result of her November 14, 2012 work injury.
FACTUAL HISTORY
On December 6, 2012 appellant, then a 36-year-old legal technician, filed a traumatic
injury claim (Form CA-1) alleging that on November 14, 2012 she sustained multiple injuries in
a motor vehicle accident while traveling to an authorized training class. She stopped work on
1

5 U.S.C. § 8101 et seq.

November 15, 2012 and returned to work on December 3, 2012. On January 2, 2013 OWCP
accepted the claim for lumbosacral sprain, head contusion, abdominal sprain, bilateral arm
sprain, cervical sprain, and thoracic sprain.
The record reflects that appellant telecommuted, working three hours a day, as of
March 18, 2013.
On April 22, 2013 appellant filed a Form CA-7 claim for compensation for the period
April 8 to June 27, 2013.
In an April 4, 2013 report, Dr. Louis D. Zegarelli, an osteopathic family practitioner,
provided an assessment of chronic mechanical lumbosacral dorsal sprain/pain syndrome,
resolved cervicothoracic sprain, resolved head contusion with post-traumatic cephalgia/
concussion syndrome, resolved abdominal wall contusion, resolved right/left shoulder strain, and
resolved right/led eustachian tube dysfunction associated with head trauma. He noted that the
magnetic resonance imaging (MRI) scans of the lumbar spine did not show significant
abnormality. Dr. Zegarelli related that he had a lengthy discussion with appellant regarding
possible pain generators that could be causing her persistent refractory lumbosacral pain. He
reported that appellant appeared to experience increased frustration over her work situation and
recommended placing her in an off-work status with an estimated four to six weeks return to
regular work activities.
In an April 25, 2013 report, Dr. Zegarelli noted that appellant’s refractory lumbosacral
dysfunction was unchanged and she continued to suffer chronic persistent mechanical
lumbosacral pain/sprain syndrome with multiple undetermined pain generators, including
noxious stimuli and emotional responses. He recommended that appellant be placed into offwork status to minimize stressors, improve her functional capability and direct her attention
solely to her rehabilitation. A consultation with a clinical psychologist to assess psychological
response to her injury was recommended.
In a May 10, 2013 report, Dr. James Stanley, a Board-certified orthopedic surgeon, noted
the history of injury and appellant’s medical course. An impression of resolving cervical strain
with intermittent occipital headaches, resolving lumbar strain, possible facet and/or disc injury in
the thoracic spine with incomplete thoracic spine workup, and lower extremity pain and
subjective weakness on the right side was provided. Dr. Stanley recommended additional MRI
scan studies of the thoracic and lumbar spine and continued her on Dr. Zegarelli’s work
restrictions. In a May 15, 2013 report, he noted that appellant had been off work per
Dr. Zegarelli because the employing establishment would not accommodate her attempts to work
from home by computer and telephone and she was unable to tolerate the pain of the drive to the
office and sitting in her office all day. Dr. Stanley noted the MRI scan showed no obvious disc
injury and provided an impression of status post motor vehicle accident with soft tissue injuries
with resolved cervical sprain and persistent pain likely due to thoracic sprain and facet
syndrome. He noted that appellant was not a surgical candidate but she had definite pain that
needed treatment. Dr. Stanley advised appellant would remain off work pending Dr. Zegarelli’s
instruction.

2

In a May 20, 2013 report, Jessie C. Ingram, Ph.D., a clinical psychologist, noted the
history of injury and OWCP’s accepted conditions. An impression of pain disorder associated
with both psychological factors and chronic medical condition and moderate to severe anxiety
disorder was provided.
In June 3 and 26, 2013 reports, Dr. Ingram discussed the
interdisciplinary chronic pain management program and requested that OWCP authorize such for
appellant.
In May 21 and 31, 2013 reports, Dr. Zegarelli provided an assessment of chronic
mechanical thoracolumbar sacral dorsal sprain/pain syndrome, chronic mechanical thoracic
somatic dysfunction/myositis, chronic mechanical lumbosacral somatic dysfunction/myositis,
and anxiety/depression associated with chronic persistent pain and “work issues.” He indicated
that appellant was off work as her functional capabilities did not meet her employer’s work
requirements and the work environment was significantly stressful to appellant which hampered
her ability to heal.
In a June 4, 2013 report from Dr. Christina Bartis, a Board-certified anesthesiologist,
provided a medical plan for appellant’s pain. Physical therapy reports dated June 7, 8, 18, 19,
21, 27, and 28, 2013 were provided along with a July 8, 2013 operative report for an L4-5
lumbar epidural injection.
On June 13, 2013 Dr. Zegarelli provided an assessment of chronic mechanical
lumbosacral dorsal myofibrositis, thoracic myofibrositis, and thoracolumbar myositis. As
appellant was changing treating physicians, he released her from care, but noted that she should
continue psychosocial therapy and pain management/injection therapy.
In a June 13, 2013 report, Dr. Ed Wolski, a specialist in pain medicine, indicated
appellant was being treated for thoracic sprain, lumbar sprain, muscle spasms, sciatica, lumbar
disc displacement and thoracombular radiculitis. He opined that she was totally disabled from
work from June 7 through August 7, 2013, at which time she would be reevaluated. Dr. Wolski
indicated that she could not accomplish her required job duties, but could work up to two hours a
day from home if telework was available.
In a June 25, 2013 report, Dr. Robert Holladay, IV, a Board-certified orthopedic surgeon
and OWCP referral physician, noted the history of injury, reviewed the medical record and
statement of accepted facts, and presented examination findings. A clinical impression of
cervical and thoracic spine strain/sprain, shoulder strain/sprain, lumbar spine strain/sprain and
contusion to face and scalp were provided. Based upon his clinical examination and review of
the medical records and history, Dr. Holladay opined that appellant was physically capable of
working. He indicated there was no evidence of objective acute structural change as a result of
the November 14, 2012 work injury and at most she sustained contusions and soft tissue
strain/sprain. Dr. Holladay noted that appellant was over six months past the motor vehicle
accident and there were no objectively identifiable conditions which would result in functional
limitations as the result of the mechanism of injury. He opined that appellant was physically
capable of returning to her full job activities effective April 8, 2013 to the present. Dr. Holladay
reported that, while appellant reported a moderate degree of subjective complaints, there were no
objective findings on clinical examination or diagnostic testing that would support those ongoing

3

subjective complaints. Thus, he recommended appellant return to full-time unrestricted work
activities. Dr. Holladay advised there was no need to do work from home by use of a computer.
OWCP informed appellant on June 25, 2013 that the claim had been expanded to include
contusion of the face, scalp, and neck.
On July 1, 2013 an OWCP medical adviser opined that the diagnosis of chronic pain and
anxiety were justified in response to the traumatic episode.
By decision dated July 17, 2013, OWCP denied appellant’s claim for wage-loss
compensation from April 8 through June 27, 2013 as the medical evidence of file was not
sufficient to establish disability for work.
On July 23, 2013 appellant’s counsel requested a telephonic hearing, which was held
before an OWCP hearing representative on December 23, 2013.
The record reflects on December18, 2013, OWCP accepted the additional condition of
chronic pain syndrome and, on March 7, 2014, it accepted the conditions of generalized anxiety
disorder and thoracic or lumbosacral neuritis or radiculitis.
By decision dated March 27, 2014, an OWCP hearing representative affirmed the
July 17, 2013 denial. He found that when the July 17, 2013 decision was rendered, the record
supported that the accepted employment-related conditions had resolved and supported her
ability to return to her full-time regular duties during the period at issue. Determinative weight
was accorded to Dr. Holladay’s second opinion evaluation. The hearing representative, however,
remanded the case for a de novo decision as to whether the subsequently accepted condition of
chronic pain syndrome caused disability from April 8 through June 27, 2013.
On April 22, 2014 OWCP issued an addendum to the statement of accepted facts which
noted that appellant’s claim was upgraded to include the conditions of chronic pain syndrome,
generalized anxiety disorder, and thoracic or lumbosacral neuritis or radiculitis. The second
opinion examiner was asked to respond to the question of whether the accepted employmentrelated condition of chronic pain syndrome caused disability from April 8 to June 27, 2013.2
On May 1, 2014 appellant was advised that the second opinion examination would be
performed by Dr. Marvin E. Van Hal, a Board-certified orthopedic surgeon.
In a June 19, 2014 report, Dr. Van Hal noted the history of injury, appellant’s medical
course, reviewed the record and the statement of accepted facts, and presented examination
findings. He noted that appellant had anxiety, and that anxiety disorder had been accepted as
causally related to the accepted injury. In response to OWCP’s question of whether the accepted
employment-related chronic pain syndrome was present and prevented appellant from
performing regular duties during the period of disability claimed from April 8 to June 27, 2013,
2

In May 2014, under OWCP File No. xxxxxx074, date of injury January 7, 2014, OWCP accepted conditions of
right knee cruciate ligament derangement of medial and lateral meniscus, bilateral knee strain, bilateral plantar
fibromatosis, bilateral wrist sprain, bilateral ankle sprain, and right carpal tunnel. The current case and file number
xxxxxx074 were eventually combined, with the current claim serving as the master claim number.

4

Dr. Van Hal noted that appellant’s doctor took appellant off work due to administrative issues.
Apparently, appellant’s supervisor would not allow her to do telework. She wanted to return to
work in February 2013 and telework for approximately one month. However, the supervisor
gave her such limited hours that appellant could not continue with that regimen. Dr. Van Hal
advised that given the clinical examination and MRI scan results, there was no basis to conclude
that the chronic pain disorder was the issue. Rather, it appeared that it was more the
psychosocial issues at work that would preclude appellant from being able to return to regularduty work. By appellant’s own report, her work was not heavy and she indicated that she wanted
to return to work and was going to utilize the telework situation to facilitate that. Dr. Van Hal
indicated that there appeared to be psychosocial issues and litigation pending which may have a
significant impact in her recovery. Thus, he opined that there was no basis for appellant’s
disability from April 8 through June 27, 2013 related to the motor vehicle accident or the alleged
chronic pain disorder. In a July 7, 2014 addendum, Dr. Van Hal reported on appellant’s June 20,
2014 functional capacity evaluation (FCE) analysis. He opined that appellant was able to do
seven to eight hours of sitting, four hours of walking, standing and reaching above the shoulder.
Dr. Van Hal found no restrictions for operating motor vehicles, unrestricted repetitive use of
hands and wrists, and pushing and pulling restricted to 35 pounds and lifting restricted to 20
pounds.
By decision dated October 30, 2014, OWCP denied appellant’s claim for wage loss due
to disability during the period April 8 through June 27, 2013 and continuing.
On November 4, 2014 an OWCP medical adviser reviewed the medical record and found
that the medical condition of thoracic or lumbosacral neuritis or radiculitis should not be
accepted. He noted that the electromylogram (EMG) did not support the presence or
radiculopathy in the lumbar region and clinical findings of Dr. Holladay and Dr. Van Hal also
did not support the presence of radiculopathy.
On November 10, 2014 appellant’s representative requested a telephonic hearing, which
was held June 18, 2015. He argued that the probative value of Dr. Van Hal’s June 19, 2014
report should be limited as Dr. Van Hal was not advised that appellant had an accepted
occupational disease claim on May 9, 2014 under OWCP File No. xxxxxx074, which was
accepted for both bilateral upper and lower extremity conditions. Appellant’s representative
indicated that OWCP doubled the claim in October 2014, but it was reasonable to assume the
conditions had been present in 2012 and could reasonably be expected to impact the FCE.
Appellant testified that she returned to work in October 2013 and worked until June 2014. She
filed her occupational disease claim in January 2014 and it was accepted in May 2014 and
expanded to include additional conditions October 2014. Appellant indicated that she was
currently in receipt of compensation for disability as a result of approved knee surgery.
In a June 30, 2015 letter, appellant’s representative submitted a follow-up brief outlining
his hearing arguments and questioning whether Dr. Van Hal was a second opinion or referee
examiner. Ongoing treatment records were also received into the record.
By decision dated September 9, 2015, an OWCP hearing representative affirmed
OWCP’s October 30, 2014 decision regarding the denial of the compensation period April 8 to
June 27, 2013. However, as the current claim has been combined with claim number

5

xxxxxx074, she recommended that OWCP consider further medical development of the workrelated conditions that have been allowed under claim number xxxxxx074.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of her claim by the weight of the evidence.4 For each period of disability
claimed, the employee has the burden of establishing that she was disabled for work as a result of
the accepted employment injury.5 Whether a particular injury causes an employee to become
disabled for work, and the duration of that disability, are medical issues that must be proved by a
preponderance of probative and reliable medical opinion evidence.6
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.7 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.8 An employee who has a physical impairment causally related to her federal
employment, but who nonetheless has the capacity to earn the wages she was receiving at the
time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.9 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in her employment, she is entitled to compensation for any loss of wages.
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.10
ANALYSIS
On November 14, 2012 appellant was involved in a motor vehicle accident while in the
performance of duty. She stopped work on November 15, 2012 and returned to work on
3

5 U.S.C. §§ 8101-8193.

4

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel A. Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
5

See Amelia S. Jefferson, id; see also David H. Goss, 32 ECAB 24 (1980).

6

See Edward H. Horton, 41 ECAB 301 (1989).

7

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
8

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

9

Merle J. Marceau, 53 ECAB 197 (2001).

10

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

6

December 3, 2012. OWCP accepted the claim for a lumbosacral sprain, head contusion,
abdominal sprain, bilateral arm sprain, cervical sprain, thoracic sprain. It subsequently expanded
the claim to include anxiety condition and chronic pain. Appellant filed a claim for wage-loss
compensation for the period April 8 to June 27, 2013 as a result of her November 14, 2012 work
injury.
While the April 22, 2014 amended statement of accepted facts properly noted that
appellant’s claim was upgraded to include the conditions of chronic pain syndrome, generalized
anxiety disorder and thoracic or lumbosacral neuritis or radiculitis, the only question posed to the
second opinion examiner, Dr. Van Hal, was whether appellant was disabled due to the accepted
employment-related chronic pain syndrome during the period of disability claimed. No mention
was made of the additional accepted conditions of generalized anxiety disorder and thoracic or
lumbosacral neuritis or radiculitis. In his June 19, 2014 report, Dr. Van Hal found that given
appellant’s clinical examination and MRI scan results, there was no basis to conclude that the
chronic pain disorder was the cause of disability during the period in question. Rather, he
advised that it appeared that psychosocial issues at work and pending litigation may have a
significant impact in her recovery. Thus, Dr. Van Hal opined that he was unable to determine
whether appellant was disabled from April 8 through June 27, 2013.
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.11 Given that a
generalized anxiety disorder condition was accepted, but not addressed by a second opinion
specialist, the Board will remand the case for further development on the emotional aspects of
this claim during the period of disability claimed. After such further development as necessary,
OWCP shall issue a de novo decision.
CONCLUSION
The case is not in posture for decision as to whether appellant’s accepted conditions,
including anxiety disorder, caused disability during the period April 8 through June 27, 2013,
resulting from the November 14, 2012 work injury.

11

See Richard F. Williams, 55 ECAB 343, 346 (2004).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 9, 2015 is set aside and remanded for further
proceedings consistent with this opinion.
Issued: May 4, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., (claiming as Executrix of the estate of H.M.,
Appellant
and
TENNESSEE VALLEY AUTHORITY,
PARADISE FOSSIL PLANT, Drakesboro, KY,
Employer
__________________________________________

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

Docket No. 08-1175
Issued: March 12, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 12, 2008 appellant, through counsel, filed a timely appeal of the Office of
Workers’ Compensation Programs’ merit decisions dated April 20, 2007 and January 15, 2008,
finding that the employee did not sustain an injury while in the performance of duty. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that the employee sustained an injury
while in the performance of duty.
FACTUAL HISTORY
On August 16, 2005 the employee, then a 78-year-old retired machinist, filed an
occupational disease claim alleging that on May 19, 2005 he became aware of his
pneumoconiosis after Dr. William C. Houser, an attending Board-certified pulmonary disease
specialist, reviewed a chest x-ray. He realized that his condition was caused by his federal

employment. The employing establishment stated that appellant was last exposed to any alleged
working conditions on December 18, 1980.
By letter dated July 12, 2006, the Office advised the employee that the evidence
submitted was insufficient to establish his claim. It addressed the additional factual and medical
evidence he needed to submit including, a rationalized medical report from an attending
physician which described his symptoms, results of examination and tests, diagnosis, treatment
provided, the effect of treatment and opinion with medical reasons on whether exposure or
incidents in his federal employment contributed to his condition. The Office also requested that
the employing establishment respond to the employee’s claim, provide exposure data including,
air sample surveys or statements of asbestos exposure, frequency, degree and duration for each
job held, the employee’s last exposure to asbestos, pertinent dispensary records and safety
regulations and protective devices used by the employee with the period and frequency of use.
In an undated statement, the employee related that he began working at the employing
establishment’s Shawnee Steam Plant in 1965 as a laborer. He worked in this position for six
months and was exposed to dust while sanding a turbine. The employee subsequently worked at
the Paradise Steam Plant as a machinist until 1979. In this position, he handled coal on a daily
basis except for two months. The employee coughed up and blew dust out of his nose. Dust was
on his skin and clothing daily. The employee occasionally wore a mask. He could see dust on
equipment and in the air. The employee was exposed to asbestos for one month when it was
being torn off the pipes in his work area. He worked five to seven days per week, eight or more
hours per day. The employee’s employment history included exposure to coal and rock dust
while driving a truck, five days per week, eight hours per day, for coal and trucking companies.
He did not wear a mask while performing his work duties at these companies. The employee
also worked on a farm where he was exposed to dust from dirt. He experienced breathing
problems for approximately 25 to 30 years and suffered from a cough and shortness of breath
that gradually worsened over time. The employee smoked 1½ to 2 packs of cigarettes per day
for 45 to 50 years. He stopped smoking approximately 10 to 15 years ago. The employee
developed pneumonia twice in the last year for which he was hospitalized.
In a July 12, 2005 medical report, Dr. Houser noted the employee’s breathing problems
and use of home oxygen. He reviewed appellant’s medical, smoking, family and work history.
On physical examination, Dr. Houser reported essentially normal findings with the exception of
diminished breath sounds and heart tones. He stated that pulmonary function studies revealed
moderate restrictive and obstructive ventilatory impairment. Dr. Houser related that the
restrictive changes were most likely secondary to pneumoconiosis, noting that obesity could be a
contributing factor. He further noted P-type opacities in all lung zones and Category 1/1
pneumoconiosis. Dr. Houser diagnosed Category 1 coal workers’ pneumoconiosis, chronic
bronchitis and moderately severe chronic obstructive pulmonary disease (COPD). He opined
that the employee’s Category 1/1 coal workers’ pneumoconiosis was based on sufficient
occupational exposure to coal and rock dust, asbestos and welding fumes for approximately 20
years, and chest x-ray findings. Dr. Houser further opined that the employee’s COPD and
bronchitis were secondary to cigarette smoking and exposure to respirable dust including, coal
and rock dust, asbestos and welding fumes. He restricted the employee from additional exposure
to these elements due to the diagnosed conditions. Dr. Houser found that he was physically
unable to perform his machinist duties.

2

By letter dated November 8, 2006, the employing establishment contended that the
medical evidence failed to establish that the employee’s pneumoconiosis was caused by his
federal employment. It stated that he was not exposed to asbestos in the workplace or in a
monitoring program. The employing establishment submitted the employee’s employment and
medical records, noting his coal and lime dust and glue gas exposure from 1964 to 1977 and coal
dust exposure outside the employing establishment from 1959 to 1961. The medical records,
dated May 3, 1976 through August 18, 1980, noted a history of pleurisy in 1968, wheezing and
emphysema in 1977, cigarette smoking which consisted of 1½ to 2½ packs per day and a chronic
cough with mucus production.
On January 17, 2007 the Office referred the employee, together with a statement of
accepted facts, the case record and a list of questions to be addressed, to Dr. Kenneth C.
Anderson, a Board-certified pulmonary disease specialist, for a second opinion medical
examination. By letters dated January 23 and 30, 2007, Dr. W. Kelly Vincent, an attending
Board-certified family practitioner, and the employee’s attorney, each advised the Office that the
employee was bedridden and receiving hospice care. The employee died on March 8, 2007.
By letter dated March 22, 2007, the Office requested that Dr. Isabella K. Sharpe, a Boardcertified internist, review the employee’s medical records and statement of accepted facts and
provide a second medical opinion.
In a March 26, 2007 report, Dr. Sharpe reviewed the employee’s medical records and his
history of occupational exposure to asbestos and coal dust and cigarette smoking. She stated that
Dr. Houser was not a B-reader and the roentgenographic interpretation film was not the best
quality. Dr. Sharpe noted that the profusion of small round P-type opacities was 1/1, the
minimum for diagnosis on an ideal film. The employee had bronchitis which complicated the
reading. Dr. Sharpe advised that the 2006 pulmonary function study included curves and was an
excellent example of partially reversible obstruction typical of bronchospastic chronic bronchitis.
She opined that the employee sustained spastic chronic bronchitis. Dr. Sharpe stated that he may
have had pulmonary emphysema but it could not be formally diagnosed with the given records.
There were incidental small round opacities with minimal profusion which had no clinical
significance. Dr. Sharpe stated that the employee’s lung disease could be fully explained by his
smoking history which continued long after he left the employing establishment. She concluded
that his lung disease was not work related.
By decision dated April 20, 2007, the Office denied the employee’s claim, finding that
the evidence failed to establish that he sustained a lung condition causally related to his
employment-related coal dust exposure.
On April 17, 2007 appellant submitted a copy of the employee’s death certificate which
was signed by Dr. Vincent. He stated that the cause of death was COPD.
By letter dated April 26, 2007, appellant, through counsel, requested an oral hearing
before an Office hearing representative regarding the April 20, 2007 decision.

3

In a November 16, 2007 report, Dr. Vincent stated that the employee suffered from
COPD and had a history of pneumoconiosis. He opined that the employee’s COPD was due to a
combination of his tobacco usage and coal dust exposure over a prolonged period of years.
By decision dated January 15, 2008, an Office hearing representative affirmed the
April 20, 2007 decision. The hearing representative accorded determinative weight to
Dr. Sharpe’s March 26, 2007 report in finding that the employee did not sustain a pulmonary
condition causally related to his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.3
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
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. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4 Neither the fact that the employee’s condition became apparent
during a period of employment nor his belief that the condition was caused by his employment is
sufficient to establish a causal relationship.5
1

5 U.S.C. §§ 8101-8193.

2

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

3

See Delores C. Ellyett, 41 ECAB 992, 994 (1990); Ruthie M. Evans, 41 ECAB 416, 423-25 (1990).

4

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

5

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

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ANALYSIS
The Board finds that appellant has failed to establish a causal relationship between the
employee’s pulmonary conditions and his accepted employment-related coal dust exposure.
The employing establishment’s medical records revealed a history of the employee’s
pleurisy in 1968, wheezing and emphysema in 1977, cigarette smoking which consisted of 1½ to
2½ packs per day and chronic cough with mucus production. This evidence, however, failed to
address whether the noted pulmonary conditions were causally related to the accepted
employment-related exposure to coal dust.6 Therefore, the records from the employing
establishment are not probative of the issue on appeal.
Dr. Houser’s July 12, 2005 report stated that the employee sustained a moderate
restrictive and obstructive ventilatory impairment based on pulmonary function studies. He
opined that the employee’s coal workers’ pneumoconiosis was based on sufficient occupational
exposure to coal and rock dust, asbestos and welding fumes for approximately 20 years and chest
x-ray findings. Dr. Houser advised that his COPD and chronic bronchitis were secondary to
cigarette smoking and exposure to respirable dust including, coal and rock dust, asbestos and
welding fumes. Dr. Vincent’s November 16, 2007 report stated that the employee’s COPD was
due to a combination of his tobacco usage and coal dust exposure over a prolonged period of
years. However, neither Dr. Houser nor Dr. Vincent provided medical rationale explaining how
the accepted employment exposures caused the diagnosed conditions. The Board has held that a
medical opinion not supported by medical rationale is of little probative value.7 The Board finds
that Dr. Houser’s and Dr. Vincent’s reports are insufficient to establish appellant’s burden of
proof.
Dr. Sharpe, an Office referral physician, opined that the employee’s lung disease was not
work related. She reviewed his medical records and stated that Dr. Houser was not qualified as a
B-reader and the roentgenographic interpretation film was not the best quality. Dr. Sharpe
further stated that the profusion of small round P-type opacities was 1/1, the minimum for
diagnosis on an ideal film. She related that the employee suffered from bronchitis which
complicated the reading. Dr. Sharpe also related that the 2006 pulmonary function study
included curves and was an excellent example of partially reversible obstruction typical of
bronchospastic chronic bronchitis. She diagnosed spastic chronic bronchitis. Dr. Sharpe
indicated that the employee may have suffered pulmonary emphysema but it could not be
formally diagnosed with the given data. She explained that the incidental small round opacities
with minimal profusion had no clinical significance. Dr. Sharpe stated that the employee’s
smokers’ lung disease could be fully explained by his smoking history which continued long
after he left the employing establishment.
The Board finds that Dr. Sharpe’s opinion is sufficiently well rationalized and based upon
a proper factual background such that it is the weight of the evidence on the issue of whether the
6

See Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
7

Caroline Thomas, 51 ECAB 451 (2000).

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employee sustained a lung condition causally related to his federal employment. The Board has
noted that in assessing medical evidence the weight of such evidence is determined by its
reliability, its probative value and its convincing quality and the factors which enter in such an
evaluation include the opportunity for and thoroughness of examination, the accuracy and
completeness of the physician’s knowledge of the facts and medical history, the care of the
analysis manifested and the medical rationale expressed in support of the physician’s opinion.8
The Board has carefully reviewed Dr. Sharpe’s March 26, 2007 report and notes that it has such
reliability, probative value and convincing quality. Prior to reaching her conclusions, Dr. Sharpe
extensively detailed the employee’s factual and medical history and reported the findings based
on her review of the employee’s medical records. Although the employee predeceased
Dr. Sharpe’s medical evaluation, she had the benefit of a statement of accepted facts which
delineated his employment-related coal dust exposure and smoking history. Moreover, she
provided a proper analysis of the factual and medical history and objective test findings of
record, and reached conclusions regarding the employee’s condition which comported with this
analysis.
The Board finds that appellant has not submitted rationalized medical evidence
establishing that the employee’s claimed lung conditions were causally related to his coal dust
exposure. Appellant did not meet her burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that the employee sustained an
injury while in the performance of duty.

8

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1959).

6

ORDER
IT IS HEREBY ORDERED THAT the January 15, 2008 decision of the Office of
Workers’ Compensation Programs’ hearing representative and the April 20, 2007 decision of the
Office are affirmed.
Issued: March 12, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Marlton, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 13-684
Issued: June 25, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On February 1, 2013 appellant, through his attorney, filed an application for review of a
September 26, 2012 decision of the Office of Workers’ Compensation Programs (OWCP), claim
number xxxxxx584, which affirmed a April 30, 2012 decision granting appellant a schedule for
five percent left upper extremity impairment.1 The Board docketed the appeal as Docket No.
13-684.
In the September 26, 2012 decision, an OWCP hearing representative noted that appellant
had prior claims for his upper extremities including a claim for right ulnar neuropathy, with a
date of injury of November 3, 2001, case file number xxxxxx465. The hearing representative
noted that in case file number xxxxxx465, OWCP granted appellant a schedule award for 14
percent impairment of the right upper extremity. In addition, appellant had a claim which was
accepted for left medial epicondylitis, with a date of injury of February 7, 2005, case file number
1

On January 2, 2008 appellant, then a 55-year-old mail carrier, filed an occupational disease claim alleging that
he developed bilateral hand conditions due to performing repetitive work tasks. OWCP accepted the claim for
bilateral carpal tunnel syndrome and bilateral hand osteoarthritis. On April 30, 2012 OWCP granted appellant a
schedule award for 5 percent impairment of the left upper extremity and 6 percent impairment for the right upper
extremity; however, it noted that since appellant already received a schedule award for 14 percent impairment for
the right upper extremity under file number xxxxxx465 he was not entitled to an additional right upper extremity
award.

xxxxxx258. The hearing representative noted reviewing the other claim files and medical
evidence, specifically stating “on April 30, 2012 [OWCP] notified the claimant that he was
awarded a schedule award for five percent permanent impairment of the left upper extremity.
[OWCP] stated that there was no additional award for the right upper extremity as the current
impairment, six percent, was less than the amount previously awarded” in case file number
xxxxxx465 which was accepted for right ulnar neuropathy.2 In the September 26, 2012 decision
the hearing representative further noted that “the evidence of record does not support any
preexisting left elbow condition and, moreover, [OWCP] determined in a separate decision that
there was no ratable impairment referable to the left medial epicondylitis” and referenced “[f]ile
n[umber] xxxxxx258, [OWCP] decision dated May 4, 2010, affirmed by the Branch and
Hearings and Review November 10, 2010.”3 He further indicated that “[OWCP] did not accept
left de Quervain’s tenosynovitis in connection with any of the claimant’s accepted injuries.”
The Board has duly considered the matter and concludes that the case is not in posture for
a decision. The claim before the Board, case file number xxxxxx584, involves appellant’s claim
for a schedule award for his upper extremities for the accepted bilateral carpal tunnel syndrome
and hand osteoarthritis. In this claim appellant was granted 5 percent impairment for the left
upper extremity but denied an additional 6 percent impairment for the right upper extremity
because he already received a schedule award for 14 percent for the right upper extremity under
claim case file number xxxxxx465, accepted for right ulnar neuropathy. In the September 26,
2012 decision, the hearing representative noted reviewing evidence and findings made in case
file numbers xxxxxx465 and xxxxxx258. The evidence also indicates that case file numbers
xxxxxx465 and xxxxxx258 may have evidence germane to the schedule award determination for
the bilateral upper extremities in case file number xxxxxx584.
Pursuant to its procedures, OWCP has determined that cases should be combined where
correct adjudication depends on cross-referencing between files. In the instant appeal, it appears
that, for a full and fair adjudication, OWCP claims pertaining to appellant’s bilateral upper
extremity conditions should be combined pursuant to OWCP procedures.4 This will allow
OWCP to consider all relevant claim files in developing appellant’s claim. Moreover, to
consider appellant’s appeal at this stage would involve a piecemeal adjudication of the issues in
this case and raise the possibility of inconsistent results. It is the Board’s policy to avoid such an
outcome.5
The case will be remanded to OWCP to combine case file numbers xxxxxx584,
xxxxxx465 and xxxxxx258. Following this and such other development as deemed necessary,
OWCP shall issue a de novo decision on appellant’s claim.

2

The medical records, factual information and OWCP decisions in case file number xxxxxx465, are not in the
current record before the Board.
3

These records are not before the Board.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
5

See William T. McCracken, 33 ECAB 1197 (1982).

2

IT IS HEREBY ORDERED THAT the September 26, 2012 decision be set aside and
the matter remanded to OWCP for further proceedings consistent with this order of the Board.
Issued: June 25, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Butler, PA, Employer
__________________________________________

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

Docket No. 15-0722
Issued: June 19, 2015

Case Submitted on the Record

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

JURISDICTION
On February 2, 2015 appellant, through counsel, filed a timely appeal of a December 31,
2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The last
OWCP merit decision in this matter was issued on October 30, 2013. Since more than 180 days
elapsed since October 30, 2013 and 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
over the merits of this case.2
ISSUE
The issue is whether OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review of the claim pursuant to 5 U.S.C.
§ 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that the last merit decision issued by OWCP, dated October 30, 2013, was reviewed by the
Board in a decision dated July 9, 2014 (Docket No. 14-673).

FACTUAL HISTORY
The case was before the Board on two prior appeals with respect to the merits of the
claim. To review the relevant factual history, on May 30, 2012 appellant, then a 55-year-old
motor vehicle operator, filed a traumatic injury claim (Form CA-1) alleging that he sustained low
back and neck injuries in the performance of duty on May 17, 2012. He stated that he was
driving a small bus on a bumpy road with his seat back against the wall of the cabin of the
vehicle.
In a decision dated July 12, 2012, OWCP denied the claim for compensation as the
medical evidence was insufficient to establish the claim. An OWCP hearing representative
affirmed the denial of the claim in a decision dated January 31, 2013.
By decision dated August 1, 2013, the Board affirmed the January 31, 2013 hearing
representative decision.3 The Board noted that appellant had submitted a September 21, 2012
report from Dr. John Steele, a Board-certified orthopedic surgeon, who provided a history that
appellant was driving a bus on May 17, 2012 for nearly three hours and the bumps in the road
“beat his back” during that time. Dr. Steele stated that appellant was injured on May 17, 2012
while driving a bus. Based on appellant’s injury description of being “jolted” for three hours, he
stated that he believed appellant’s cervical sprain/strain and lumbar sprain/strain were directly
related to his work injury on May 17, 2012. Dr. Steele also stated that appellant’s preexisting
spinal stenosis was aggravated by the injury. The Board found that OWCP properly denied
appellant’s claim as Dr. Steele had not provided a complete medical history or supported his
opinion with medical rationale.
Appellant requested reconsideration and submitted a March 14, 2013 report from
Dr. Steele. In this report Dr. Steele stated, “The mechanism of injury was the result of
[appellant] hitting the retaining wall and him being ‘jolted up and down’ in his seat for several
hours.” He noted there was a June 25, 2012 magnetic resonance imaging (MRI) scan showing
moderately severe spinal stenosis at L5-S1 that was not previously found on a 1994 MRI scan.4
Dr. Steele opined that there was a causal relationship between the mechanism of injury and the
diagnosed cervical and lumbar sprain/strains. He also opined that the spinal stenosis was
aggravated by the employment incident.
OWCP reviewed the merits of the claim and denied modification by decision dated
October 30, 2013. The Board affirmed OWCP’s decision in a decision dated July 9, 2014.5
With respect to Dr. Steele’s report, the Board found it was not sufficient to establish the claim
for compensation. The Board noted that Dr. Steele did not provide a complete history and he
again provided opinions without supporting medical rationale and explanation.
In a letter dated October 10, 2014, appellant, through counsel, requested reconsideration
with OWCP. He submitted an August 23, 2014 report from Dr. Steele. The report consists
3

Docket No. 13-901 (issued August 1, 2013)

4

Dr. Steele also referred to a cervical MRI scan showing a C7-T1 protruding disc that was not present in 1990.

5

Docket No. 14-673 (issued July 9, 2014).

2

primarily of handwritten responses to questions on a form. Dr. Steele states that the mechanism
of injury was appellant hitting a retaining wall while being jolted up and down for three hours
while driving. He provided results on examination and diagnosed cervical and lumbar
sprain/strain. Dr. Steele stated that appellant’s diagnosed conditions were causally related to the
facts of injury.
By decision dated December 31, 2014, OWCP denied merit review of the claim.6 It
found the medical evidence from Dr. Steele was cumulative of prior reports.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,7
OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either “(i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent evidence not previously considered by OWCP.”8
20 C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the
merits of the claim.9
ANALYSIS
In the present case, appellant filed a claim alleging that he sustained injuries in the
performance of duty on May 17, 2012 while driving a small bus on a bumpy road. The claim
was denied by three OWCP decisions dated July 12, 2012, and January 31 and October 30, 2013.
The issue is whether appellant’s application for reconsideration dated October 10, 2014 was
sufficient to require OWCP to review the merits of the claim for compensation.
At issue is the sufficiency of appellant’s latest reconsideration request to OWCP. The
October 10, 2014 application for reconsideration did not attempt to show that OWCP
erroneously applied or interpreted a specific point of law, or advance a relevant legal argument
not previously considered by OWCP. Rather, appellant submitted the latest report dated
August 23, 2014 from Dr. Steele, the attending physician. The issue is whether this evidence
was relevant and pertinent evidence not previously considered by OWCP.
Prior to the last merit decision on October 30, 2013, Dr. Steele had submitted a series of
reports stating that appellant had sustained cervical and lumbar sprain/strains as a result of the
May 17, 2012 employment incident. He also opined that appellant had aggravated a preexisting
6

Although the memorandum accompanying the decision refers to “modification” in the conclusion, the decision
clearly states that a merit review was not performed and the evidence submitted was cumulative in nature.
7

5 U.S.C. § 8128(a), (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).
8

20 C.F.R. § 10.606(b)(3).

9

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

3

spinal stenosis. The August 23, 2014 report does not provide any new, relevant, and pertinent
evidence on the issue of whether appellant sustained an injury causally related to the May 17,
2012 incident. Dr. Steele reported the mechanism of injury was being jolted up and down for
three hours while driving and sitting against the cabin wall. He had provided a similar statement
in his March 14, 2013 report. In the most recent August 23, 2014 report, Dr. Steele diagnosed
cervical and lumbar/sprains, and provided a general statement that the diagnosed conditions were
causally related to employment. He had previously provided the diagnoses and an opinion on
causal relationship in his September 21, 2012 and March 14, 2013 reports.
The Board accordingly finds that the evidence submitted on reconsideration does not
constitute the submission of relevant and pertinent evidence not previously considered by
OWCP. Appellant therefore did not meet any of the requirements of 20 C.F.R. § 10.606(b)(3).
He 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 by OWCP. Pursuant to 20 C.F.R. § 10.608, OWCP properly
declined to review the merits of the claim for compensation.
CONCLUSION
The Board finds OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review of the claim.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 31, 2014 is affirmed.
Issued: June 19, 2015
Washington, DC

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

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

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

4