United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wausau, WI, Employer
__________________________________________

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

Docket No. 08-1660
Issued: January 8, 2009

Case Submitted on the Record

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

JURISDICTION
On May 27, 2008 appellant filed a timely appeal from a May 15, 2008 merit decision of
the Office of Workers’ Compensation Programs finding that she did not establish a recurrence of
disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether the Office properly framed the issue as to whether appellant
sustained a recurrence of disability beginning August 31, 2006 causally related to her accepted
employment injury and, if so, (2) whether the Office properly found that she did not establish an
employment-related recurrence of disability.
FACTUAL HISTORY
This case is before the Board for the second time. By decision dated April 15, 2008, the
Board set aside a September 18, 2007 decision finding that appellant had not established that she
was disabled beginning August 31, 2006 due to her accepted work injury and a September 20,

2007 decision finding that her actual earnings effective February 23, 2006 fairly and reasonably
represented her wage-earning capacity.1 The Board noted that appellant attributed her recurrence
of disability to new work factors and that her claim was thus for an occupational disease. The
Board found that the opinion of Dr. Stephen F. Weiss, a Board-certified orthopedic surgeon and
impartial medical examiner, was insufficiently rationalized to establish that appellant could work
full time as of August 31, 2006. The Board further noted that he did not adequately address
whether appellant sustained cervicobrachial syndrome. The Board noted that Dr. Weiss
diagnosed possible cervical degenerative disc disease or carpal tunnel syndrome or Guyon canal
syndrome but indicated that he required further objective testing to make an accurate diagnosis.
The Board remanded the case for the Office to obtain a supplemental report from Dr. Weiss
sufficient to resolve the pertinent issues in the case.2 The findings of fact and conclusions of law
from the prior decision are hereby incorporated by reference.
A computerized tomography angiography of appellant’s chest, obtained on January 31,
2008, revealed “significant impingement of the subclavian artery on the right side following
Adson’s maneuver consistent with thoracic outlet.” On April 9, 2008 the Office authorized a
resection of the first cervical rib to treat her thoracic outlet syndrome.
On April 25, 2008 the Office requested that Dr. Weiss provide a supplemental opinion
explaining why he believed that appellant could work full time beginning August 31, 2006. It
specifically requested that he identify findings on examination that supported his conclusion that
she was not disabled from her limited-duty employment. The Office enclosed a statement of
accepted facts, the March 4, 2006 job offer and medical evidence obtained subsequent to his
examination.
In a supplemental report dated May 14, 2008, Dr. Weiss stated:
“I have reviewed the additional records provided, as well as my previous report of
September 13, 2007. Basically, I am indicating that in view of her diagnoses and
physical findings, [appellant] could perform light work activities as light work
activities would neither progress nor aggravate any of her possible diagnoses.
Specifically, performing light-duty work activities would not aggravate a thoracic
outlet syndrome or cervical degenerative disc disease nor would it aggravate her
carpal tunnel or Guyon canal syndromes. In summary, I believe, given all the
information available to me, that [appellant] could have worked full time with
light-duty restrictions (no lifting more than 10 pounds frequently or more than 20
pounds occasionally) from August 31, 2006 onward.”

1

Docket No. 07-2419 (issued September 20, 2007). The Office accepted that appellant, then a 31-year-old
automation clerk, sustained cervical strain, thoracic outlet syndrome and hypermobility syndrome causally related to
factors of her federal employment. Appellant worked in a limited-duty capacity beginning March 21, 2002. On
March 4, 2006 she began performing a limited-duty position which required no lifting over 10 pounds and no
overhead work with the right arm. Appellant stopped work after two hours on August 31, 2006. She returned to
part-time limited-duty employment on October 11, 2006.
2

The Board determined that it was premature to address the issue of whether appellant’s actual earnings effective
February 23, 2006 fairly and reasonably represented her wage-earning capacity.

2

By decision dated May 15, 2008, the Office found that appellant did not establish that she
sustained an employment-related recurrence of disability beginning August 31, 2006.3
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.5 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.6
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.7 The implementing regulation states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.8
When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.9 In situations where the Office secures an opinion
from an impartial medical specialist for the purpose of resolving a conflict in the medical
evidence and the opinion from such specialist requires clarification or elaboration, the Office has
the responsibility to secure a supplemental report from the specialist for the purpose of correcting
the defect in the original opinion. If the specialist is unwilling or unable to clarify and elaborate

3

The Office noted that appellant stopped work on May 12, 2008 for an authorized rib resection.

4

5 U.S.C. §§ 8101-8193.

5

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

6

See Ellen L. Noble, 55 ECAB 530 (2004).

7

5 U.S.C. § 8123(a).

8

20 C.F.R. § 10.321.

9

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

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on his or her opinion, the case should be referred to another appropriate impartial medical
specialist.10
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for cervical strain and thoracic outlet syndrome.
She worked limited-duty beginning February 27, 2002. On September 1, 2006 appellant filed a
notice of recurrence of disability beginning August 31, 2006. She attributed her condition in part
to work duties performed after her return to work on February 27, 2002. The Office determined
that a conflict in medical opinion existed on the extent of her disability and referred her to
Dr. Weiss to resolve a conflict in medical opinion. It instructed Dr. Weiss to ascertain whether
she sustained cervicobrachial syndrome.
On prior appeal the Board determined that appellant’s claim was for a new occupational
disease rather than a recurrence of disability. The Board found that Dr. Weiss did not provide
any opinion regarding whether she sustained cervicobrachial syndrome due to factors of her
employment duties as requested by the Office. The Board further found that he did not bolster
his opinion that appellant was not disabled from her limited-duty employment with any medical
reasoning. The Board remanded the case for the Office to secure a supplemental report from
Dr. Weiss on the relevant issues.
On remand the Office requested that Dr. Weiss explain why he believed that appellant
could work full-time light duty beginning August 31, 2006. It asked that he specify the physical
findings he relied upon to support that she was not disabled from her limited-duty employment.
In a supplemental report dated May 14, 2008, Dr. Weiss concluded that appellant’s light-duty
work would not aggravate thoracic outlet syndrome, cervical degenerative disc disease, carpal
tunnel syndrome or Guyon canal syndrome. He asserted that she could have performed her
limited-duty employment from August 31, 2006.
The Office did not, as instructed by the Board on prior appeal, develop the issue of
whether appellant sustained cervicobrachial syndrome due to employment factors and did not
adjudicate the claim as one for an occupational disease rather than a recurrence of disability.
Additionally, it relied upon Dr. Weiss to find that appellant was not disabled from her limitedduty employment even though he did not sufficiently explain his finding. Dr. Weiss concluded
that appellant’s duties would not aggravate her condition but did not provide any rationale for his
finding.11 In situations where the Office secures an opinion from an impartial medical specialist
for the purpose of resolving a conflict in the medical evidence and the opinion from such
specialist requires clarification or elaboration, the Office has the responsibility to secure a
supplemental report from the specialist for the purpose of correcting the defect in the original

10

See Phillip H. Conte, 56 ECAB 213 (2004); Guiseppe Aversa, 55 ECAB 164 (2003); Talmadge Miller, 47
ECAB 673 (1996).
11

See Willa M. Frazier, 55 ECAB 379 (2004).

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opinion. If the specialist is unwilling or unable to clarify and elaborate on his or her opinion, the
case should be referred to another appropriate impartial medical specialist.12
On remand the Office should develop whether appellant sustained an occupational
disease due to work duties performed after February 27, 2002 and whether she sustained
cervicobrachial syndrome due to her federal employment. It should refer her to a second
impartial medical examiner to resolve the extent of her disability beginning August 31, 2006.
Following this and such development as it deems necessary, the Office should issue an
appropriate de novo decision.13
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 15, 2008 is set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: January 8, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

See Phillip H. Conte, Guiseppe Aversa, supra note 10.

13

In view of the Board’s disposition of the first issue, the issue of whether appellant sustained a recurrence of
disability on August 31, 2006, is moot.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Berkeley Heights, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1263
Issued: September 14, 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 June 8, 2020 appellant, through counsel, filed a timely appeal from a February 7, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to modify OWCP’s March 18,
2016 loss of wage-earning capacity (LWEC) determination.
FACTUAL HISTORY
This case has previously been before the Board on a different issue.3 The facts and
circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The
relevant facts are set forth below.
On September 17, 2007 appellant, then a 43-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained left ankle and knee, right knee, and low back injuries
on that date when he stepped in a hole and fell in the performance of duty. He initially did not
stop work.
OWCP accepted the claim for lumbosacral spondylosis without myelopathy, right knee
sprain, sprain of the right knee medial collateral ligament, right knee tear of the medial meniscus,
and right ankle sprain.4 On March 7, 2008 appellant underwent a partial medial meniscectomy of
the right knee. He received wage-loss compensation on the supplemental rolls as of March 31,
2008, and on the periodic compensation rolls commencing August 3, 2008.
In a report dated August 27, 2014, Dr. Scott Naftulin, an osteopath Board-certified in
physical medicine and rehabilitation, noted appellant’s diagnoses of multilevel lumbar
degenerative disc disease/internal disc disruption, right knee osteoarthritis -- post meniscal repair,
and right L5-S1 radicular pain. On that same day he completed a work capacity evaluation form
(OWCP-5c) in which he related that appellant could return to work for four hours a day.
Dr. Naftulin noted that appellant could only tolerate sitting, standing, or walking for 15 minutes at
a time and therefore required a position in which he could move about freely as required. He also
noted that appellant could twist, bend, stoop, squat, kneel, climb for up to one hour each day, and
that appellant could operate a motor vehicle for up to two hours a day.
In a report dated February 5, 2015, a vocational rehabilitation counselor noted that he had
reviewed Dr. Naftulin’s August 27, 2014 report which related that appellant could only return to
work for four hours a day. He explained that he had notified the employing establishment
regarding appellant’s restrictions and had received notice that the proposed position could only be
performed for eight hours a day. The counselor related that he had forwarded the eight-hour-aday position description to Dr. Naftulin, who thereafter related that appellant could perform the
position on a trial basis for eight hours a day.

3

Docket No. 10-0554 (issued November 3, 2010).

4
The record reflects that appellant has a history of back symptoms, episodic over many years, and he had sustained
a back injury due to a motor vehicle accident over 20 years prior.

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In a May 6, 2015 report, Dr. Naftulin related that he had initially suggested that appellant
return to work for four hours a day, but that he had also signed off on a position description for
work eight hours a day, stating that it was “trial only.”
On December 14, 2015 OWCP offered appellant a position as a customer care agent, for
eight hours a day. The duties required that appellant lift up to 10 pounds; squat, kneel, climb,
twist, bend, and stoop for one hour per day; and be able to alternate sitting and standing. The
physical requirements included sitting in an office chair with a supportive back or standing at a
workstation, as needed for comfort, regular simple grasping of a mouse, regular pushing, pulling ,
using a computer mouse, interchangeable to right/left side as needed for comfort, and regular fine
manipulation or use of single finger when using a key board. The workstation was noted to be
ergonomically adjustable, and the employee could work at his own speed.
On January 11, 2016 appellant accepted the position as a customer care agent which
accommodated his work restrictions.
By decision dated March 18, 2016, OWCP found that the actual wages of the customer
care position fairly and reasonably represented his wage-earning capacity. It noted that, “Your
actual earnings meet or exceed the current wages of the job held when injured.” OWCP explained
that appellant was reemployed with no loss in earning capacity and it terminated wage-loss
compensation payments as of the date of reemployment, according to the provisions of 5 U.S.C.
§ 8106 and 8115.
On April 16, 2019 appellant filed a notice of recurrence (Form CA-2a), alleging a
recurrence of disability as of February 2, 2019 due to worsening of his accepted work-related
conditions.
OWCP also received Form CA-7 claims for wage-loss compensation dated from April 8 to
June 7, 2019.
In a development letter dated May 14, 2019, OWCP advised appellant of the deficiencies
in his claim and explained the need to submit additional medical evidence to substantiate a material
worsening of his accepted conditions. It afforded him 30 days to provide evidence substantiating
any of the criteria.
In a March 25, 2019 report, Dr. Naftulin noted that appellant “describes progressively
disabling symptoms that started about 6 months ago.” He noted that appellant was having
“increasing difficulty working due to his symptoms.” Dr. Naftulin noted that appellant reported
having imaging studies, abdominal causes were ruled out, it was suggested to be a musculoskeletal
problem, however, treatment had been difficult due to lack of transportation. He examined
appellant and found that appellant did not appear to be in acute distress, had normal gait and
station, and could heel and toe walk without weakness. Dr. Naftulin found painful limitations with
lumbosacral flexion and extension, tenderness in the right thoracic and lumbar paraspinals,
strength, reflex, and sensory testing without focal deficit, skin without rashes, and intact peripheral
pulses, which appeared neurologically stable and without evidence of infection. He diagnosed low
back pain, other intervertebral disc displacement, lumbosacral region, and muscle spasm of back.

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Dr. Naftulin also completed a form indicating that appellant was disabled for work from March 18
to 29, 2019.
In a March 29, 2019 report, Dr. Naftulin noted that appellant’s chief complaint was mid to
low back pain. He examined appellant and assessed low back pain, recommended dietary
counseling and surveillance, exercise counseling, and chiropractic treatment, and advised that
appellant remain off work for the next two weeks.
OWCP received an April 6, 2019 magnetic resonance imaging (MRI) scan of the lumbar
spine. The scan related findings of no significant central canal stenosis throughout the lumbar
region, mild right foraminal stenosis at L5-S1, mild broad-based central disc protrusion at L5-S1,
significant facet arthropathy diffusely, most prominent at L4-5 and L5-S1.
In an April 12, 2019 report, Dr. Naftulin noted that appellant complained primarily of right
lower back pain that radiated into the mid thoracic spine and around the flank and occasionally
into the back of the right leg. He also noted that appellant related that he was unable to tolerate
prolonged periods of sitting or standing and was disabled from work since symptom onset.
Dr. Naftulin advised that appellant recently underwent an MRI scan of the lumbar spine without
evidence of acute disc herniation or stenosis and a remote lumbar provocation discography was
consistent with L4-5 discogenic pain. He assessed other vertebral disc displacement, lumbosacral
region, and indicated that appellant remained disabled from work.
In a May 24, 2019 report, Dr. Naftulin noted that appellant continued to have disabling
right mid and lower back pain radiating to the right posterior thigh. He also noted that appellant
described a limited sitting, standing, and walking tolerance of 10 to 15 minutes at a time, and that
appellant’s job primarily involved sitting for 8 hours a day which appellant felt incapable of
performing. Dr. Naftulin noted that appellant was seeing a chiropractor and walking for exercise,
and that he reported persistent right knee pain “which he feels has worsened again recently.” He
noted appellant’s physical examination findings included tenderness throughout the mid-thoracic
and lumbar paraspinals, severe limitations in lumbosacral flexion and extension, otherwise
neurologically stable. Dr. Naftulin diagnosed other intervertebral disc displacement, lumbosacral
region, low back pain, and muscle spasm of back, and recommended that appellant remain off
work.
By decision dated July 19, 2019, OWCP denied modification of the LWEC determination.
It found that the medical evidence did not establish a worsening of the accepted conditions, and
that it had not received evidence that the March 18, 2016 decision was in error, or that appellant
was vocationally rehabilitated.
OWCP subsequently received additional evidence. In a July 2, 2019 report, Dr. Phillip F.
Acevedo, a physiatrist, diagnosed other intervertebral disc displacement, lumbosacral region, and
low back pain. He performed a right L5 transforaminal epidural.

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OWCP received chiropractic reports dating from April 25 to May 6, 2019, from Dr. Glenn
Clearie.5
In reports dated July 24 and August 7, 2019, Dr. Naftulin repeated his prior stated findings
and opinion that appellant remained disabled from work.
On August 9, 2019 appellant, through counsel, requested a hearing before a representative
of OWCP’s Branch of Hearings and Review, which was held on December 3, 2019. Appellant
discussed the modiﬁed position he accepted on January 11, 2016, and indicated that as time
progressed, his condition slowly worsened, and that eventually he had to ask his supervisor for
permission to lie down on the ﬂoor in the conference room during his one-hour lunch break to try
to get his back spasms to stop. He also indicated that during his 1 hour and 15-minute commute
to work, his coworker had to pull over to let him out to stand for a minute. Appellant confirmed
that there was no changes in the job with the exception of working overtime in December, that he
had no injuries, and that his activities outside work were minimal. Counsel for appellant argued
that appellant’s muscle spasms were a material change. He also indicated that he would obtain
additional medical evidence from Dr. Naftulin. No additional medical evidence was submitted
after the hearing.
By decision dated February 7, 2020, an OWCP hearing representative affirmed the July 19,
2019 decision, finding that the evidence of record was insufficient to establish a change in the
customer care representative position, a material worsening of appellant’s work-related conditions,
that the March 18, 2016 LWEC determination was issued in error, or that appellant was
vocationally rehabilitated.
LEGAL PRECEDENT
A wage-earning capacity determination is a finding that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.6 Generally, wages actually earned are the best measure of 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, must be accepted as such measure. 7 A determination regarding
whether actual earnings fairly and reasonably represent one’s wage-earning capacity should be
made only after an employee has worked in a given position for at least 60 days. 8 Compensation
payments are based on the wage-earning capacity determination, which remains undisturbed until
properly modified.9
5

No subluxation on x-ray was noted.

6
5 U.S.C. § 8115(a); see K.B., Docket No. 20-0358 (issued December 10, 2020); O.S., Docket No. 19-1149 (issued
February 21, 2020); Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).
7

See J.A., Docket No. 18-1586 (issued April 9, 2019).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Wages, Chapter 2.815.5 (June 2013).
9

See M.F., Docket No. 18-0323 (issued June 25, 2019).

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OWCP’s procedures provide guidelines for determining wage-earning capacity based on
actual earnings. Reemployment may not be considered representative of the injured employee’s
wage-earning capacity when an injured employee who has been released to full-time work is
working less than full-time hours, the job is temporary where the employee’s job when injured
was permanent, and the job represents permanent seasonal employment in an area where yearround employment is available (unless the employee was a career seasonal or temporary employee
when injured).10 In addition, it is well established that a position that is considered an odd-lot or
makeshift position designed for a claimant’s particular needs is not appropriate for a wage-earning
capacity determination. 11
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous. 12 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination. 13
ANALYSIS
The Board finds that appellant has not met his burden of proof to modify OWCP’s
March 18, 2016 LWEC determination.
Appellant has not submitted any evidence or argument to establish that OWCP’s March 18,
2016 LWEC determination was erroneous. Appellant has not argued that the customer care
position was a part-time, temporary, seasonal, or odd-lot or makeshift position. The record reflects
that the position was within appellant’s work restrictions and he worked in the position for more
than 60 days prior to the issuance of the March 18, 2016 LWEC determination.14 For these
reasons, the Board finds that appellant has not established that OWCP’s March 18, 2016 LWEC
determination, based on his actual earnings, was erroneous.
Since OWCP found that appellant could perform the duties of a customer care
representative, the issue is whether there has been a material change in his work-related condition
that would render him unable to perform those prescribed duties. 15 This is primarily a medical

10

Supra note 8.

11

See A.J., Docket No. 10-0619 (issued June 29, 2010).

12

J.A., Docket No. 17-0236 (issued July 17, 2018); Katherine T. Kreger, 55 ECAB 633 (2004); Sue A. Sedgwick,
45 ECAB 211 (1993). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of WageEarning Capacity Decisions, Chapter 2.1501.3a (June 2013).
13

O.H., Docket No. 17-0255 (issued January 23, 2018); Selden H. Swartz, 55 ECAB 272, 278 (2004).

14

Supra note 8; see M.S., Docket No. 19-0692 (issued November 18, 2019); James D. Champlain, 44 ECAB 438,
440-41 (1993).
15

D.Q., Docket No. 17-1220 (issued May 18, 2018); Phillip S. Deering, 47 ECAB 692 (1996).

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question.16 In reviewing the medical evidence of record, the Board finds that appellant has failed
to provide sufficient evidence to establish that a modification of the March 18, 2016 LWEC
determination is warranted based on a worsening of his injury-related condition.
OWCP accepted the claim for lumbosacral spondylosis without myelopathy, right knee
sprain, sprain of the right knee medial collateral ligament, right knee tear of the medial meniscus,
and right ankle sprain. With respect to whether modification of OWCP’s March 18, 2016 LWEC
determination was warranted, the Board finds that appellant’s treating physicians did not provide
probative opinion that these employment-related medical conditions had materially worsened or
that appellant could no longer perform the duties of the position.
Dr. Naftulin provided reports dated March 25 to August 7, 2019. In a March 25, 2019
report, he noted that appellant “describes progressively disabling symptoms that started about 6
months ago” and that appellant was having “increasing difficulty working due to his symptoms. ”
Dr. Naftulin examined appellant and found that appellant did not appear to be in acute distress,
had normal gait and station, and could heel and toe walk without weakness. He diagnosed low
back pain, other intervertebral disc displacement, lumbosacral region, and muscle spasm of back,
and provided appellant a note indicating that appellant was disabled from work. Dr. Naftulin saw
appellant on March 29, 2019, and recommended chiropractic treatment and that appellant remain
off work for the next two weeks. In an April 12, 2019 report, he assessed other vertebral disc
displacement, lumbosacral region, and advised that appellant remained disabled from work. In a
May 24, 2019 report, Dr. Naftulin indicated that appellant continued to have disabling right mid
and lower back pain radiating to the right posterior thigh, that appellant described limited sitting,
standing and walking tolerance of 10 to 15 minutes at a time, and that appellant’s job primarily
involved sitting 8 hours a day which appellant felt incapable of performing. He continued to advise
that appellant remained disabled from work. Dr. Naftulin, repeated his findings and opinions in
his July 24 and August 7, 2019 reports. OWCP also received a July 2, 2019 report from
Dr. Acevedo who diagnosed other intervertebral disc displacement, lumbosacral region, and low
back pain.
The Board finds that the reports from Dr. Naftulin and Dr. Acevedo are of limited probative
value as the physicians did not offer a rationalized opinion, based upon objective medical evidence,
that appellant was unable to perform the customer care position on which the March 18, 2016
LWEC decision was based. Dr. Naftulin noted that appellant felt incapable of performing the
work; however, neither Dr. Naftulin nor Dr. Acevedo provided a rationalized medical opinion
explaining why appellant was unable to perform the customer care position, due to the accepted
conditions. They also failed to provide any opinion that appellant’s employment-related medical
conditions had materially worsened. As neither Dr. Naftulin nor Dr. Acevedo explained why
appellant’ s accepted medical conditions after February 2, 2019 had worsened such that he could
not perform the duties of the customer care position, these reports are insufficient to warrant
modification of the March 18, 2016 LWEC determination. 17

16

M.G., Docket No. 19-1659 (issued August 18, 2020); R.S., Docket No. 15-1229 (issued October 2, 2015).

17

See D.T., Docket No. 18-0174 (issued August 23, 2019).

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The record also contains chiropractic notes dating from April 25 to May 6, 2019.
However, a chiropractor is only considered a physician for purposes of FECA if he or she
diagnoses subluxation based upon x-ray evidence.18 As the chiropractor did not diagnose a spinal
subluxation based upon x-ray evidence, these reports do not constitute competent medical
evidence.19
The record also contains an April 6, 2019 MRI scan of the lumbar spine. The Board has
long held that diagnostic studies, standing alone, lack probative value on the issue of causal
relationship as they do not address whether the accepted employment injury caused the diagnosed
conditions.20
During the hearing, appellant noted that his co-worker had to pull over to allow him to
stand for a minute during his work commute. If a claimant’s accepted condition worsens such that
he can no longer commute to work, this would constitute a recurrence of disability; however, if
the commute itself caused an increase in disability, this would not be compensable as driving to
and from work is not a work factor under FECA. 21 The Board has explained that to be of probative
value the medical evidence of record must explain whether a claimant is disabled and unable to
commute, or disabled due to the commute. 22 Appellant did not submit any medical evidence in
relation to the commute, and therefore the hearing testimony lacks probative value.
The Board also finds that there is no evidence of record to show that appellant has been
retrained or otherwise vocationally rehabilitated such that modification of OWCP ’s March 18,
2016 LWEC determination is warranted. 23
For these reasons, the Board finds that appellant has not met his burden of proof to modify
OWCP’s March 18, 2016 LWEC determination.
Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not met his burden of proof to modify OWCP ’s
March 18, 2016 LWEC determination.
18

Section 8101(2) of FECA provides that the term physician includes chiropractors only if the treatment consists
of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist. 5 U.S.C. § 8101(2).
See T.T., Docket No. 18-0838 (issued September 19, 2019); Thomas W. Stevens, 50 ECAB 288 (1999); George E.
Williams, 44 ECAB 530 (1993).
19

C.S., Docket No. 19-1279 (issued December 30, 2019).

20

J.P., Docket No. 19-0216 (issued December 13, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).

21

See R.L., Docket No. 15-1337 (issued January 27, 2016); K.E., Docket No. 13-0296 (issued June 6, 2013).

22

See generally Betty S. Thompson, Docket No. 01-2039 (issued July 2, 2002).

23

See A.J., supra note 11.

8

ORDER
IT IS HEREBY ORDERED THAT the February 7, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 14, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Palatine, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-2346
Issued: September 7, 2010

Case Submitted on the Record

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

JURISDICTION
On September 25, 2009 appellant filed a timely appeal from an April 29, 2009 merit
decision of the Office of Workers’ Compensation Programs concerning her entitlement to
schedule award compensation and the July 1, 2009 decision denying her request for further
review of the merits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she has
more than a two percent permanent impairment of her right upper extremity, for which she
received a schedule award; and (2) whether the Office properly refused to reopen appellant’s
case for further review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 2, 2002 appellant, a 47-year-old city letter carrier, filed a traumatic injury
claim alleging that she sustained injuries to her right hand while casing mail. Her claim was

initially accepted for right hand sprain and sprain of the right third finger and was later modified
to include right carpal tunnel syndrome (CTS), right tenosynovitis and bilateral hand arthritis.
Appellant underwent the following authorized surgeries: right thumb carpal metacarpal (CMC)
interpositional arthroplasty with metatarsophalangeal (MP) joint capsulodesis on November 5,
2005; right thumb revision with CMC arthroplasty with ligament reconstruction and extensor
pollicis brevis tendon transfer on April 6, 2006; and right thumb deep hardware removal,
irrigation and debridement of the pin site wounds on June 27, 2006.
On March 7, 2007 appellant’s treating physician, Dr. Sanjay K. Patari, a Board-certified
orthopedic surgeon, opined that appellant was capable of performing sedentary work and placed
her on permanent restrictions based on the results of a February 26, 2007 functional capacity
evaluation. He stated that she had reached maximum medical improvement (MMI) and
discharged her from his care.
On June 20, 2007 the Office referred appellant to Dr. Hythem P. Shadid, a Boardcertified orthopedic surgeon, for a second opinion examination and an opinion as to whether her
accepted conditions had resolved and whether she was able to return to work. In a report dated
August 1, 2007, Dr. Shadid noted definite grasp weakness in the right hand with a fused MP joint
in the right thumb. Pinch strength was at 3/5. Motor and sensory responses were otherwise fully
intact in both hands. There was no evidence of any swelling or pain with passive or active range
of motion to either wrist and any digit. There was evidence of a significant laxity in the left
thumb at the first metacarpophalangeal (MCP) joint with 50 degrees of laxity to radial deviation
of the left thumb at the first MCP joint. There was no evidence of any carpal instability and no
unusual tenderness exhibited over the extensor compartments of the wrist on either side. Overall
musculature in both hands appeared symmetrical with no evidence of any significant atrophy of
either the thenar or hypothenar eminences.
Dr. Shadid diagnosed arthritis of the right hand, as documented by x-ray. He opined that
while arthritis involving the second and third fingers may have been aggravated by the initial
injury in 2002, there was no connection between the diagnosis of arthritis in appellant’s right
thumb and the 2002 injury, as the thumb was not involved in that injury at all. Dr. Shadid opined
that none of the current diagnoses continued to be medically connected with her accepted
conditions. The diagnosis of sprain had resolved within three months. Any aggravation of a
preexisting condition of arthritis would have been considered a temporary aggravation only and
appellant should have reached MMI within three months of the injury. Dr. Shadid noted that the
condition of arthritis in both hands could have been accelerated by the repetitive activities
involved in being a mail carrier. He concluded that appellant had reached MMI from all
conditions attributed to her work-related activities and that her residuals included loss of range of
motion and weakness in her right thumb. Dr. Shadid opined that she was able to work at a
sedentary level with permanent weight restrictions.
In an August 9, 2007 work capacity evaluation, Dr. Shadid stated that appellant lacked
the hand strength to perform the duties of her usual job and should be restricted to lifting no
more than 15 pounds, pushing no more than 35 pounds and pulling no more than 20 pounds.
On October 25, 2007 appellant returned to work as a modified carrier. On April 22, 2008
the Office found that the modified carrier position fairly and reasonably represented her wage-

2

earning capacity and reduced her compensation benefits to zero, as her actual earnings exceeded
the current wages of the job held when injured.
On October 8, 2008 Dr. Patari found appellant’s condition to be stable following her
CMC interpositional arthroplasty. He diagnosed CMC arthritis of the right thumb. Examination
revealed abduction -- 50 degrees; palmar abduction -- 45 degrees; and flexion to the distal
palmar crease over the fifth finger with one centimeter (cm) tip-to-palm. Dr. Patari opined that
appellant was able to work full time with permanent restrictions, which included lifting and
carrying no more than 15 pounds and no driving.
On December 15, 2008 appellant requested a schedule award. In a letter dated
December 24, 2008, the Office advised her to submit a detailed report from her treating
physicians regarding the degree of permanent impairment resulting from her accepted injury,
including an opinion as to impairment related to CTS. On January 9, 2009 Dr. Pantini stated that
he was unable to provide an assessment on impairment related to CTS, as he had not treated
appellant for that condition.
On March 27, 2009 the Office forwarded the case record to the district medical adviser
(DMA) for review and an opinion as to the degree of permanent impairment to appellant’s right
upper extremity. In a report dated March 31, 2009, the DMA reviewed the statement of accepted
facts and the medical evidence of record, including reports from Dr. Patari and Dr. Shadid. He
noted Dr. Shadid’s August 1, 2007 findings of decreased pinch strength in the right hand, but no
neurologic deficit. The DMA referred to Dr. Patari’s October 8, 2008 report, which found right
thumb abduction and palmar adduction to be within normal limits. He inferred from the medical
narrative that the thumb MP joint was fused in a position of function. Referencing the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides), the DMA opined that appellant had a two percent permanent
impairment of the right upper extremity as a result of her accepted conditions. Based on range of
motion measurements, he concluded that she had a five percent impairment for MCP fusion
(20 degrees) pursuant to Figure 16-15 on page 457, a zero percent impairment for abduction
(50 degrees) pursuant to Table 16-8a on page 459 and a zero percent impairment for adduction
pursuant to Table 16-8b on page 459, for a total right thumb impairment of five percent.
Applying Table 16-1 on page 438 of the A.M.A., Guides, the DMA determined that appellant
had a two percent impairment of the hand, which converted to a two percent impairment of the
right upper extremity under Table 16-2 on page 439.1 He stated that the date of MMI was
August 1, 2007. The DMA noted that, according to page 508 of the A.M.A., Guides, decreased
strength cannot be rated in the presence of decreased motion, painful conditions, deformities or
absence of parts that prevent effective application of maximal force in the region being
evaluated.
On April 29, 2009 the Office granted appellant a schedule award for a two percent
impairment of her right upper extremity. The period of the award ran from August 1 to
September 13, 2007. The Office determined that the date of MMI was August 1, 2007.
1

Table 16-1 provides for the conversion of impairment of the digits to impairment of the hand. Table 16-2
provides for the conversion of impairment of the hand to impairment of the upper extremity. A.M.A., Guides (5th
ed. 2001) at 438, 439, Table 16-1 and 16-2.

3

On May 23, 2009 appellant requested reconsideration. She contended that the two
percent schedule award did not adequately represent her impairment due to the accepted injury
and that her involuntary reassignment, which was based on her inability to perform her preinjury
job, was evidence of a greater impairment. Appellant also noted that she did not receive a copy
of the medical adviser’s calculations.
In a July 1, 2009 decision, the Office denied appellant’s request for further review of the
merits of her claim.
On appeal, appellant reiterated her belief that her right upper extremity impairment was
greater than two percent, as evidenced by her involuntary reassignment due to her inability to
perform her date-of-injury job duties.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.4
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.5
ANALYSIS -- ISSUE 1
Based on the medical evidence of record, the Office granted appellant a schedule award
for a two percent right upper extremity impairment resulting from her accepted conditions. The
Board finds that she has failed to meet her burden of proof to establish that she has more than a
two percent right upper extremity impairment.
In support of her request for a schedule award, appellant submitted reports from her
treating physician, Dr. Patari. On March 7, 2007 Dr. Patari opined that she was capable of
performing sedentary work and placed her on permanent restrictions, based on the results of a
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

4

Id.

5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

4

February 26, 2007 functional capacity evaluation. He stated that appellant had reached MMI and
discharged her from his care. Dr. Patari did not, however, provide examination findings or offer
an opinion as to the degree of permanent impairment. Therefore, his report is of limited
probative value on the schedule award issue.
Dr. Patari’s October 8, 2008 report does not support an additional schedule award. He
found appellant’s condition to be stable following her CMC interpositional arthroplasty;
diagnosed CMC arthritis of the right thumb and opined that she was able to work full time with
permanent restrictions. Examination revealed abduction -- 50 degrees; palmar abduction -- 45
degrees and flexion to the distal palmar crease over the fifth finger with one cm tip-to-palm.
While Dr. Patari provided examination findings, he did not offer any opinion on permanent
impairment. The Board notes that the DMA utilized Dr. Patari’s measurements in calculating his
impairment rating.
In his June 20, 2007 second opinion report, Dr. Shadid opined that appellant had reached
MMI and that her residuals included loss of range of motion and weakness in her right thumb.
He did not provide an impairment rating; he did, however, opine that the only residuals
remaining due to her accepted injury were loss of range of motion and weakness in her right
thumb. Nothing in the report supports the conclusion that appellant had more than a two percent
impairment of her right upper extremity. Dr. Shadid noted definite grasp weakness in the right
hand with a fused MP joint in the right thumb. Although pinch strength was at 3/5, motor and
sensory responses were otherwise fully intact in both hands. Dr. Shadid found no evidence of
any swelling or pain with passive or active range of motion to either wrist or any digit; no
evidence of any carpal instability and no unusual tenderness over the extensor compartments of
the wrist on either side. Overall musculature in both hands appeared symmetrical with no
evidence of any significant atrophy of either the thenar or hypothenar eminences. Dr. Shadid
opined that there was no connection between the diagnosis of arthritis in appellant’s right thumb
and the 2002 injury, as the thumb was not involved in that injury at all and that none of the
current diagnoses continued to be medically connected with her accepted conditions.
The Office properly referred the case file to the DMA for an impairment rating in
accordance with the A.M.A., Guides.6 In a report dated March 31, 2009, the DMA reviewed the
statement of accepted facts and the medical evidence of record, including reports from Dr. Patari
and Dr. Shadid. He noted Dr. Shadid’s August 1, 2007 findings of decreased pinch strength in
the right hand but no neurologic deficit. The DMA referred to Dr. Patari’s October 8, 2008
report, which found right thumb abduction and palmar adduction to be within normal limits. He
inferred from the medical narrative that the thumb MP joint was fused in a position of function.
Referencing the fifth edition of the A.M.A., Guides, the DMA opined that appellant had a two
percent permanent impairment of the right upper extremity as a result of her accepted conditions.
Based on range of motion measurements, he concluded that she had a five percent impairment
for MCP fusion (20 degrees) pursuant to Figure 16-15 on page 457, a zero percent impairment
for abduction (50 degrees) pursuant to Table 16-8a on page 459 and a zero percent impairment
for adduction pursuant to Table 16-8b on page 459, for a total right thumb impairment of five
percent. Applying Table 16-1 on page 438 of the A.M.A., Guides, the DMA determined that
6

See supra note 5 and accompanying text.

5

appellant had a two percent impairment of the hand, which converted to a two percent
impairment of the right upper extremity under Table 16-2 on page 439.7 He did not include an
impairment rating for decreased strength, which he explained cannot be rated in the presence of
decreased motion that prevents effective application of maximal force in the region being
evaluated.8
It is well established that, when the treating physician fails to provide an estimate of
impairment conforming to the A.M.A., Guides, his opinion is of diminished probative value in
establishing the degree of any permanent impairment. The Office may then rely on the opinion
of its medical adviser to apply the A.M.A., Guides to the findings reported by the treating
physician.9 The Board finds that the DMA correctly applied the A.M.A., Guides to the findings
of Dr. Patari and Dr. Shadid in determining his impairment rating. The Office properly relied on
his opinion in granting appellant a schedule award for a two percent impairment of her right
upper extremity.
The Board finds that the Office medical adviser properly determined appellant’s
permanent impairment. There is no other medical evidence of record, consistent with the
A.M.A., Guides, showing that she has greater than two percent impairment of the right upper
extremity. Accordingly, the medical evidence establishes that appellant has no more than two
percent right upper extremity impairment.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, the Office regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.11 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his or her application for review within one year of the date of that decision.12 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.13
10

7

See supra note 1.

8

Id. at 508.

9

Linda Beale, 57 ECAB 429 (2006).

10

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
11

20 C.F.R. § 10.606(b)(2).

12

Id. at § 10.607(a).

13

Id. at § 10.608(b).

6

ANALYSIS -- ISSUE 2
Appellant’s January 5, 2009 request for reconsideration consisted of a letter contending
that the two percent schedule award did not adequately represent her impairment due to the
accepted injury. She argued that her involuntary reassignment, which was based on her inability
to perform her preinjury job, was evidence of a greater impairment. Appellant’s assertion,
however, does not establish that the Office erroneously applied or interpreted a specific point of
law or constitute a relevant legal argument not previously considered by the Office.
Consequently, she is not entitled to a review of the merits of her claim based on the first and
second above-noted requirements under section 10.606(b)(2).14
Appellant did not submit relevant and pertinent new evidence not previously considered
by the Office.15 In fact, she submitted no additional evidence in support of her request for
reconsideration. Therefore, appellant is not entitled to a review of the merits based on the third
above-noted requirement under section 10.606(b)(2). The Board notes that she indicated that she
was enclosing a copy of an involuntary reassignment and a recent copy of “Claimant[’s] eligible
conditions” together with her letter requesting reconsideration; however, the record does not
contain either of those documents.16
The Board finds that the Office properly determined that appellant was not entitled to
further review of the merits pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her request for reconsideration.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that she
has more than a two percent right upper extremity impairment. The Board further finds that the
Office properly refused to reopen her case for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).

14

Appellant stated that she did not receive a copy of the medical adviser’s calculations and contends that the
April 29, 2009 decision did not adequately inform her as to how the schedule award was determined. The Board
notes that the Office provided her with a copy of the medical adviser’s calculations subsequent to its April 29, 2009
decision. Further, there is no evidence to rebut the presumption that the calculations were not attached to the
April 29, 2009 schedule award, as indicated in the decision. See Kenneth E. Harris, 54 ECAB 502, 505 (2003). (In
the absence of evidence to the contrary, it is presumed that a notice mailed in the ordinary course of business was
received in due course by the intended recipient). Additionally, the decision advised appellant that the award was
calculated according to the fifth edition of the A.M.A., Guides, based upon the medical findings provided by the
examining physician. As indicated, appellant provided no medical evidence establishing any permanent impairment
to the right upper extremity greater than two percent.
15

Supra note 11.

16

The Board notes that neither a notice of reassignment nor a statement of eligible conditions would be relevant
to the issue at hand, which is medical in nature. See E.M., 60 ECAB ___ (Docket No. 09-39, issued March 3, 2009)
(where the Board held that new evidence submitted upon a reconsideration request that does not address the
pertinent issue is not relevant evidence); Freddie Mosley, 54 ECAB 255 (2002).

7

ORDER
IT IS HEREBY ORDERED THAT the July 1 and April 29, 2009 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: September 7, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.I., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bethpage, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-575
Issued: September 29, 2011

Case Submitted on the Record

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

JURISDICTION
On January 6, 2011 appellant filed a timely appeal from a December 8, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation for wage-loss and medical benefits as of December 8, 2010 for the accepted right
knee sprain.
FACTUAL HISTORY
On July 14, 2010 appellant, then a 37-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on that date she injured her right knee when it was struck by a
1

5 U.S.C. § 8101 et seq.

wire cage. OWCP accepted the claim for a right knee sprain. Appellant stopped working and
received compensation for wage loss.
In a report dated September 22, 2010, Dr. Eric Senat, an orthopedic surgeon, provided a
history and noted that appellant was seen for right knee pain. He indicated that she had fallen
sometime in May 2010, with x-rays on May 3, 2010 and at the time of the July 14, 2010 injury.
Dr. Senat advised that a magnetic resonance imaging (MRI) scan on September 10, 2010 found a
torn anterior medial meniscus, partial tear of the medial collateral ligament (MCL), lateral
patellar subluxation with patellofemoral chondromalacia. He requested authorization for right
knee arthroscopic surgery.
In an attending physician’s report (Form CA-20) dated
September 20, 2010, Dr. Senat diagnosed a meniscal tear with MCL sprain and checked a box
“yes” that the conditions were causally related to employment.
OWCP referred appellant for a second opinion evaluation by Dr. Robert Orlandi, an
orthopedic surgeon. In a report dated October 28, 2010, Dr. Orlandi reviewed the history of
injury and results on examination. He stated that the MRI scan was equivocal in its findings as
there was no increased T2 uptake and the size of the tear was not described. Dr. Orlandi
diagnosed a resolved right knee strain. According to him, examination of the knee examination
was normal, with no effusion or ligament instability or quadriceps atrophy. Dr. Orlandi stated,
“The McMurray maneuvers for meniscal tears are negative and tears at the anterior horn of a
meniscus are almost always associated with at least mild osteoarthritis of the knee (posterior
horn tears are traumatic).” He described the MRI scan interpretation as unacceptable and stated
that appellant could work without restrictions.
On November 1, 2010 appellant submitted an August 4, 2010 report from Dr. Vladimir
Shur, an orthopedic surgeon, who noted that she was injured at work a few weeks earlier.
Dr. Shur provided results on examination and stated that she had a work-related injury consistent
with an anterior cruciate ligament and medical meniscal tear at the very least.
By letter dated November 3, 2010, OWCP advised appellant that it proposed to terminate
her compensation for wage-loss and medical benefits. It found the weight of the medical
evidence was represented by Dr. Orlandi.
Appellant submitted additional medical evidence. In a CA-20 form report dated
October 26, 2010, Dr. Senat provided a history of injury and diagnosed a right medial meniscus
tear with MCL sprain. He checked a box “yes” that the condition was caused or aggravated by
employment. Dr. Senat provided a similar CA-20 form dated November 23, 2010.
In a treatment note dated November 11, 2010, Dr. Leonard Bleicher, a physiatrist, noted
that appellant continued to have intermittent pain in the right knee. He indicated that he had
reviewed Dr. Orlandi’s report and opined that the second opinion physician had “misrepresented
clinical information” in her chart and disregarded clinical recommendations and the presence of
right calf muscular atrophy. Dr. Bleicher stated that appellant continued to be totally disabled.
By decision dated December 8, 2010, OWCP terminated compensation for wage-loss and
medical benefits.

2

LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his employment, OWCP may not terminate compensation without establishing that the disability
had ceased or that it was no longer related to the employment.2
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. 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 is support of the physician’s
opinion.3
ANALYSIS
The accepted condition in this case was a right knee sprain. With respect to this
condition, it is OWCP’s burden of proof to terminate compensation. The second opinion
physician, Dr. Orlandi, found that the accepted sprain had resolved. He provided a complete
report with an unequivocal medical opinion on the issue. None of appellant’s attending
physicians offered a medical opinion regarding a continuing employment-related right knee
sprain or provide a diagnosis of a right knee sprain. The Board finds the weight of the evidence,
with respect to the accepted injury, rested with Dr. Orlandi. Therefore, OWCP met its burden of
proof to terminate compensation for the accepted right knee sprain.
There remains an issue as to whether appellant has established any additional conditions
causally related to the employment injury.4 In this regard the report from the second opinion
physician indicated that he was not convinced that the interpretation of a meniscal tear, as shown
by a September 10, 2010 MRI scan, was substantiated. Dr. Orlandi also indicated that an
anterior meniscal tear was more likely associated with osteoarthritis, rather than a traumatic
injury.
Dr. Orlandi provided a factual and medical background and offered a rationalized opinion
indicating that appellant did not have any additional employment-related knee conditions. On
the other hand her physicians did not provide a medical opinion with supporting rationale that
was based on a complete background. Dr. Shur did not provide a history or other background,
other than to note appellant had hurt her knee a few weeks earlier. Dr. Senat provides only a
checkmark “yes” as to causal relationship, which is of little probative value. The checking of a
box “yes” in a form report, without additional explanation or rationale, is not sufficient to establish
causal relationship.5 Dr. Bleicher stated that he disagreed with Dr. Orlandi and felt that the
2

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503.

3

Gary R. Sieber, 46 ECAB 215 (1994).

4

It is appellant’s burden or proof to establish a particular condition is employment related. See James P. Bailey,
53 ECAB 494 (2002).
5

See Barbara J. Williams, 40 ECAB 649, 656 (1989).

3

second opinion physician had “misrepresented clinical information.” He did not discuss the
specific diagnosed conditions he felt were causally related to the July 14, 2010 injury and
support such an opinion with medical rationale. Dr. Bleicher did not provide a factual and
medical history or explain specifically how and why he disagreed with Dr. Orlandi. Appellant
did not submit a rationalized medical opinion, based on an accurate factual and medical
background, with respect to causal relationship between a meniscal tear or other diagnosed
condition and the employment injury.
On appeal, appellant contended that there was no referral to a third physician since
Dr. Bleicher disagreed with Dr. Orlandi. To create a conflict under 5 U.S.C. § 8123(a),6 the
reports in disagreement must be of virtually equal weight and rationale.7 As noted Dr. Bleicher
did not provide a rationalized opinion based on a complete background, as to the specific
diagnosed conditions he felt were causally related to the employment injury. His treatment note
was not of virtually equal weight and rationale with Dr. Orlandi and is not sufficient to create a
conflict under 5 U.S.C. § 8123(a). Appellant also discussed a nurse assigned to her case and
suspension by the employing establishment. These issues are not before the Board with respect
to the December 8, 2010 termination of compensation decision. Appellant may submit new
evidence or argument with a written request for reconsideration to OWCP within one year of this
merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate compensation for the
accepted right knee sprain. Appellant did not establish a meniscal tear or other injury as causally
related to the July 14, 2010 employment injury.

6

FECA provides that, if there is a disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall make the
examination. 5 U.S.C. § 8123(a).
7

Richard R. LeMay, 56 ECAB 341, 346 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 8, 2010 is affirmed.
Issued: September 29, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF COMMERCE, REGIONAL
CENSUS CENTER, Seattle, WA, Employer
__________________________________________

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

Docket No. 11-1536
Issued: February 27, 2012

Case Submitted on the Record

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

JURISDICTION
On June 17, 2011 appellant filed a timely appeal from the May 16, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP), which affirmed the termination of her
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated disability compensation effective
January 24, 2010 and medical benefits effective February 1, 2011.
FACTUAL HISTORY
On April 20, 2009 appellant, then a 54-year-old census enumerator, sustained an injury in
the performance of duty when she tripped over a raised walkway. OWCP accepted her claim for
enthesopathy of the left hip region, neck sprain and unspecified sprains of the right knee and leg.
Appellant received disability compensation through January 23, 2010.
1

5 U.S.C. § 8101 et seq.

On July 12, 2009 Dr. Haritha Vankireddy, the attending Board-certified family physician
specializing in geriatric medicine, released appellant to return to work with no restrictions. She
also released appellant from periodic medical care to return as needed. On July 16, 2009
however, Dr. Vankireddy imposed physical restrictions. Dr. Robert B. Handel, a Board-certified
physiatrist, took over appellant’s treatment, also imposed restrictions. Dr. Ruth M Baer, a
consulting osteopath specializing in occupational medicine, imposed restrictions as well.
In June 2010, OWCP’s hearing representative noted a discrepancy in the medical
evidence. Dr. Vankireddy found that appellant’s cervical condition had resolved and that her
knee condition was 90 percent better. All physicians reported improvement. Dr. Handel
described appellant’s pain as zero to one in September 2009, indicated that her neck was
dramatically better and on December 30, 2009 described her improvement as a “miracle.” Yet,
both he and Dr. Baer continued to support the need for work limitations. The hearing
representative remanded the case for a second-opinion evaluation.
OWCP referred appellant, together with her medical record and a statement of accepted
facts, to Dr. Timothy P. Daly, a Board-certified orthopedic surgeon, for an evaluation of whether
the accepted conditions had resolved. On September 30, 2010 Dr. Daly related her history and
symptoms. He reviewed appellant’s medical record, including the reports of Dr. Vankireddy and
Dr. Handel. Dr. Daly described his findings on physical examination.
Responding to questions posed by OWCP, Dr. Daly indicated that the accepted medical
conditions had resolved by the time Dr. Vankireddy released appellant to full duty without
restrictions on July 12, 2009. This was confirmed by the lack of objective findings on
examination. Dr. Daly recommended no additional treatment. He stated that restrictions later
imposed on appellant seemed excessive, as there were no objective findings to support the need
for limitations. After reviewing the physical requirements of her position as an enumerator,
Dr. Daly recommended no physical restrictions. He noted that appellant continued to run her
own business and had taken temporary part-time work, limiting her hours and duties to a library
assistant. In Dr. Daly opinion, appellant was capable of gainful employment without restrictions
based on the current absence of objective findings.
On October 7, 2010 Dr. Handel imposed continuing restrictions.
In a decision dated November 12, 2010, OWCP terminated appellant’s disability
compensation effective January 24, 2010. It gave weight of the medical evidence to Dr. Daly’s
opinion and noted that the restrictions imposed by Dr. Handel and Dr. Baer were within
appellant’s regular duties as an enumerator. Based on Dr. Daly’s opinion, OWCP expanded its
acceptance of appellant’s claim to include contusion/strain of the left knee.
OWCP proposed to terminate all benefits for the accepted conditions. It noted that
appellant’s recent chart showed limited physical examinations for several months and a lack of
focus on objective findings. OWCP found that Dr. Daly’s opinion represented the weight of the
medical evidence and established that the conditions of left hip enthesopathy, bilateral knee
strain and neck strain had resolved.
In a decision dated February 1, 2011, OWCP terminated all benefits for the accepted
medical conditions. It noted that medical evidence recently submitted showed subjective
complaints only.
2

On May 16, 2011 OWCP’s hearing representative affirmed the November 12, 2010 and
February 1, 2011 decisions. The hearing representative found that Dr. Daly’s opinion
represented the weight of the medical evidence. Dr. Daly discussed appellant’s condition in
some detail and explained that there was no evidence of any residual of the work injury.
Although Dr. Handel continued to assert that she required restrictions, he provided no rationale
to support the opinion that she remained symptomatic and disabled by her work injury.
On appeal, appellant explained that she is seeking wage-loss compensation from
January 24, 2010 through January 22, 2011, for which she continued to submit biweekly claims.
OWCP’s termination, she notes, was effective February 1, 2011. Appellant expresses concern
that OWCP appeared to show bias in favor of Dr. Daly and apparently dismissed without regards
the opinions of the doctors who followed her throughout. She states that there continues to be no
day since the fall that she has not experienced pain in her knees, hip or neck. Appellant notes
that she did not complain about knee or hip problems until the injury. She adds that her
physicians suggested that the trauma could have activated a previously unknown arthritic
condition. Appellant states: “I am owed nearly 12 months of back pay.”
LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.2 Once OWCP accepts a claim,
it has the burden of proof to justify termination or modification of compensation benefits.3 After
it has determined that an employee has disability causally related to federal employment, OWCP
may not terminate compensation without establishing that the disability has ceased or that it is no
longer related to the employment.4 Having accepted a claim and initiated payments, OWCP may
not terminate compensation without a positive demonstration by the weight of evidence that
entitlement to benefits has ceased.5
ANALYSIS
OWCP accepted that appellant sustained enthesopathy of the left hip region, neck sprain
and unspecified sprains of the right knee and leg as a result of her April 20, 2009 employment
injury. It terminated wage-loss compensation effective January 24, 2010 and medical benefits
effective February 1, 2011. OWCP therefore has the burden to justify the termination of benefits
for the accepted medical conditions.
OWCP did not accept appellant’s claim for right patella chondral fracture or arthritis or
any other medical condition. It did not pay compensation on the basis of those medical
conditions, and it carries no burden of proof with respect to those medical conditions. To justify
its termination of compensation, OWCP must show by the weight of the medical evidence that
2

Id. at § 8102(a).

3

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

4

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability Cases, Chapter 2.812.3
(March 2010).

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disability caused by enthesopathy of the left hip region, neck sprain and unspecified sprains of
the right knee and leg ceased by January 24, 2010 and that residuals of those specific conditions
ceased by February 1, 2011.
As an OWCP hearing representative noted in June 2010, there seemed to be a
discrepancy in the medical evidence. Appellant’s doctors had reported that her conditions had
either resolved or were 90 percent better or were dramatically better, that her improvement was a
“miracle.” Yet, they still imposed work limitations. It was for that reason a second opinion
evaluation was sought.
Dr. Daly, a Board-certified orthopedic surgeon, reviewed appellant’s medical record and
a statement of accepted facts. He based his opinion on an accurate medical and factual history.
Dr. Daly reviewed the reports of Dr. Vankireddy, Dr. Handel and Dr. Baer, and concluded that
the accepted strains had resolved. He supported his opinion with sound medical rationale.
Dr. Daly relied primarily on the lack of any objective findings, in the examinations conducted by
appellant’s physicians or in his own. He noted that Dr. Vankireddy had released appellant to full
duty without restrictions on July 12, 2009, and that later restrictions seemed excessive given the
lack of objective findings. Further, Dr. Daly reviewed the physical requirements of appellant’s
date-of-injury position.
The Board finds that Dr. Daly’s opinion directly addressed the issues to be resolved and
is sufficiently rationalized that it constitutes the weight of the medical opinion evidence. There
is no true conflict in the medical evidence. Although Dr. Handel, the attending physiatrist,
continued to impose restrictions, he did not review Dr. Daly’s report or attempt to rebut his
findings or opinion. He did not explain how the restrictions he imposed after January 24, 2010
were inconsistent with the physical requirements of appellant’s date-of-injury position or what
objective findings showed that residuals of the accepted sprains continued beyond
February 1, 2011. As the weight of the medical opinion evidence establishes that disability and
residuals of the accepted strains had ceased, the Board finds that OWCP has met its burden to
justify the termination of compensation benefits for the accepted medical conditions. The Board
will affirm OWCP’s May 16, 2011 decision.
Appellant seeks wage-loss compensation from January 24, 2010 through
January 22, 2011. She bears the burden of proof to establish that any disability after January 23,
2010 is causally related to the April 20, 2009 work incident.6 OWCP did not show bias toward
Dr. Daly, nor did it dismiss without regard the physicians who had treated her. It gave due
regard to their reports and found that the weight of the medical evidence rested with Dr. Daly,
who provided a sound opinion based on a review of all the medical evidence and his findings on
examination.
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.
6

Maurice E. King, 6 ECAB 35 (1953); Wentworth M. Murray, 7 ECAB 570 (1955) (after a termination of
compensation payments, warranted on the basis of the medical evidence, the burden shifts to the claimant to show
by the weight of the reliable, probative and substantial evidence that, for the period for which he claims
compensation, he had a disability causally related to the employment resulting in a loss of wage-earning capacity).

4

CONCLUSION
The Board finds that OWCP has met its burden to justify the termination of disability
compensation effective January 24, 2010 and the termination of medical benefits effective
February 1, 2011.
ORDER
IT IS HEREBY ORDERED THAT the May 16, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 27, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
U.S. POSTAL SERVICE, CAPITAL
PERFORMANCE CLUSTER, Washington, DC,
Employer
__________________________________________

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

Docket No. 10-9
Issued: September 20, 2010

Case Submitted on the Record

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

JURISDICTION
On September 30, 2009 appellant filed an application for review of a July 30, 2009
decision of the Office of Workers’ Compensation Programs which denied her claim for wageloss compensation. 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 was disabled from June 1 to 17, 2009 causally related to
her May 3, 1997 employment injury.
FACTUAL HISTORY
On May 3, 1997 appellant, then a 32-year-old mail carrier, sustained an injury to her right
ankle and leg while walking her route. She did not stop work at that time.1 The Office accepted
appellant’s claim for right ankle sprain, nonunion of a fracture and authorized a right ankle
1

The record reflects that appellant has a September 18, 1990 claim for an injury to her right foot and leg.
No. xxxxxx742. On November 30, 1998 the Office doubled this claim with the present claim.

arthroscopy on August 11, 2000. Appellant underwent an arthroscopic synovectomy of the right
ankle on April 2, 2008. She received wage-loss compensation benefits.2
Dr. J. Michael Joly, an attending Board-certified orthopedic surgeon, released appellant
to light duty on May 13, 2008. He submitted follow-up reports noting that, while the April 2,
2008 surgery did not resolve appellant’s symptoms, she was able to work within restrictions.
Dr. Joly also recommended weight reduction and physical therapy.
In a March 12, 2009 duty status report, Dr. Joly listed work restrictions that were
consistent with the job activities provided by the employing establishment. In a May 7, 2009
report, he noted appellant’s status and recommended continued light duty.
On June 17, 2009 appellant filed a Form CA-7 for wage-loss compensation from June 1
to 17, 2009.
In a report dated June 18, 2009, Dr. Joly reviewed the history of the May 7, 1997 injury
and appellant’s subsequent symptoms. He diagnosed recurrent lateral right ankle pain due to
synovitis, traumatic arthropathy and scar tissue. Dr. Joly noted administering an injection to
treat appellant’s symptoms and advised that she should follow-up as needed. He advised that
appellant could continue working within her physical restrictions.
By letter dated June 29, 2009, the Office informed appellant of the evidence needed to
support her claim and requested that she submit evidence within 30 days.
In an undated statement, appellant attributed her condition and disability to her 1997
work injury. She contended that she was disabled commencing June 1, 2009 due to her
medication, which made her drowsy and unable to work. Appellant noted that she was sent
home.
In a July 23, 2009 report, Dr. Joly noted that appellant had chronic, recurrent pain and
swelling as a result of a work-related injury to the right ankle 12 years earlier. He determined
that her current examination was consistent with recurrent pain and swelling in the right ankle
due to chronic tendinitis. Dr. Joly recommended that appellant maintain a normal body weight,
low impact exercise and permanent light duty with sedentary work only and no driving.
By decision dated July 30, 2009, the Office denied appellant’s claim for disability for the
period June 1 to 17, 2009. It determined that the medical evidence of record failed to establish
her disability for the claimed period.
LEGAL PRECEDENT
The term disability as used in the Federal Employees Compensation Act3 means the
incapacity because of an employment injury to earn the wages that the employee was receiving

2

In a June 14, 2007 decision, the Office found that appellant’s reemployment as a modified carrier fairly and
reasonably represented her wage-earning capacity effective March 13, 2007.
3

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

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at the time of injury.4 For each period of disability claimed, the employee has the burden of
establishing that he or she was disabled for work as a result of the accepted employment injury.5
Whether a particular injury caused an employee disability for employment is a medical issue
which must be resolved by competent medical evidence.6 The fact that a condition manifests
itself during a period of employment does not raise an inference that there is a causal relationship
between the two.7
The Board will not require the Office to pay compensation for disability in the absence of
any 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.8
The Office is not precluded from adjudicating a limited period of employment-related
disability when a formal wage-earning capacity determination has been issued.9
ANALYSIS
The Office accepted appellant’s right ankle condition and authorized surgery performed
on August 11, 2000 and April 2, 2008. Appellant filed a Form CA-7 claim for compensation for
the period June 1 to 17, 2009. On June 29, 2009 the Office requested that she provide medical
evidence that would establish a causal relationship between her accepted conditions and her
present disability. Appellant did not submit sufficient medical evidence to establish that her
claimed disability was due to her 1997 employment injury.
The medical evidence most contemporaneous with the claimed dates of disability are
Dr. Joly’s June 18 and 23, 2009 treatment records. Dr. Joly noted appellant’s May 7, 1997 injury
and advised that she complained of increased symptoms. He administered an injection and
advised that she could continue working within her restrictions. Dr. Joly did not address whether
appellant was disabled from her light-duty work from June 1 to 17, 2009. He stated generally
that she had chronic, recurrent pain and swelling as a result of her work-related injury but could
work at sedentary duty with no driving. In neither report did he support that appellant was
totally disabled due to residuals of the accepted employment injury. Rather, Dr. Joly advised
that she could continue work within restrictions. As noted, the Board will not require the Office
to pay compensation for disability in the absence of any medical evidence directly addressing the
specific dates of disability for which compensation is claimed.10 The medical evidence of record
does not establish appellant’s claim of disability for the period claimed.
4

Paul E. Thams, 56 ECAB 503 (2005).

5

Sandra D. Pruitt, 57 ECAB 126 (2005); Dennis J. Balogh, 52 ECAB 232 (2001).

6

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Gary J. Watling, 52 ECAB 278 (2001).

7

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007).

8
9

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001)
Sandra D. Pruitt, 57 ECAB 126 (2005).

10

See supra note 8.

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The Board finds that appellant has not met her burden of proof to establish disability
from June 1 to 17, 2009 causally related to her accepted right ankle condition.
On appeal, appellant generally disagreed with the denial of her claim. She indicated that
she was sent home during the aforementioned period because she was on medication. As noted,
she did not submit sufficient medical evidence to establish disability due to her accepted right
ankle condition.
CONCLUSION
The Board finds that appellant did not establish disability from June 1 to 17, 2009 due to
her May 3, 1997 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 30, 2009 is affirmed.
Issued: September 20, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, FEDERAL AIR
MARSHAL SERVICE HOUSTON FIELD
OFFICE, Houston, TX, Employer
__________________________________________

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

Docket No. 20-0016
Issued: July 12, 2021

Case Submitted on the Record

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

JURISDICTION
On October 2, 2019 appellant filed a timely appeal from a May 29, 2019 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 that an injury
occurred in the performance of duty, as alleged.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 24, 2019 appellant, then a 52-year-old federal air marshal, filed an occupational
disease claim (Form CA-2) alleging that he sustained an injury to his right knee causally related
to factors of his federal employment, including participating in the quarterly mandatory Health
and Fitness Assessment on April 24, 2019. He indicated that he first became aware of his right
knee condition on January 11, 2019, when he sustained an earlier documented right knee injury2
and attributed it to factors of his federal employment on April 24, 2019. Appellant did not stop
work.
In an April 25, 2019 development letter, OWCP informed appellant that additional
evidence was required to establish his claim. It advised him of the type of factual and medical
evidence necessary and attached a questionnaire for his completion. OWCP asked that appellant
clarify whether he was claiming an occupational disease or a traumatic injury. It afforded him 30
days to submit the requested evidence.
In a separate development letter to the employing establishment of the same date, OWCP
indicated that it required additional information to determine whether appellant was eligible for
compensation benefits. It listed the information needed with respect to the January 11, 2019
employment incident and the April 24, 2019 activity. OWCP afforded the employing
establishment 30 days to submit the requested evidence.
In response, OWCP received a May 2, 2019 employing establishment investigation report.
The report indicated that on April 24, 2019 appellant participated in the semi-annual Health Fitness
Assessment on an elliptical training machine and strained his right knee. A copy of practical
exercise performance requirements for law enforcement/federal air marshal service was also
submitted.
In a May 3, 2019 attending physician’s report (Form CA-20), Kaylee Nemeth, a physician
assistant, indicated that appellant sustained a twisting injury to his right knee on April 24, 2019
while walking down a wheelchair ramp. A magnetic resonance imaging (MRI) scan was ordered.
A May 5, 2019 MRI scan of appellant’s right knee indicated a complex medial meniscus
tear.
In a May 8, 2019 Form CA-20 report, Ms. Nemeth reported an April 24, 2019 twisting
injury to appellant’s right knee while walking down a wheelchair ramp. She diagnosed a medial
meniscal tear, right knee. Ms. Nemeth released appellant to full-duty work status effective
May 8, 2019. A copy of Ms. Nemeth’s May 8, 2019 duty status report (Form CA-17) was also
provided, which noted an April 24, 2019 date of injury.
By decision dated May 29, 2019, OWCP denied appellant’s occupational disease claim. It
found that appellant had not met his burden of proof to establish that an injury occurred due to the
alleged factors of his federal employment. OWCP noted that appellant had not completed and
2
The record reflects that under OWCP File No. xxxxxx131, appellant filed a traumatic injury claim (Form CA-1)
alleging a January 11, 2019 right knee twisting injury when he slipped on a wet, sloped walkway. OWCP denied this
claim on April 18, 2019.

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returned its factual questionnaire. It concluded, therefore, that the requirements had not been met
to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.4 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.6
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that an injury
occurred in the performance of duty, as alleged.
On his claim form, appellant asserted that he injured his right knee due to factors of his
federal employment, including participating in a mandatory Health Fitness Assessment on
April 24, 2019. However, appellant did not provide further information regarding the claimed
factors of employment. OWCP requested that appellant clarify his claim and complete a factual
questionnaire, however, appellant did not respond to the request for clarification of the alleged
injury. To establish a claim for compensation in an occupational disease claim, an employee must
submit a statement, which identifies the factors of employment believed to have caused his
condition.7 Appellant did not respond to OWCP’s April 25, 2019 development letter, requesting

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

See A.S., Docket No. 19-1766 (issued March 26, 2020); R.G., Docket No. 19-0233 (issued July 16, 2019). See
also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41
ECAB 345 (1989).
7

E.V., Docket No. 19-0447 (issued June 25, 2019); H.O., Docket No. 17-1176 (issued November 27, 2018).

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that he provide detailed information concerning the employment factors he believed contributed
to his claimed conditions and its accompanying questionnaire.8
OWCP received a May 2, 2019 employing establishment investigation report which
indicated that on April 24, 2019 appellant had strained his right knee while on the elliptical
machine and that first aid was administered. However, as previously noted, appellant has not
alleged or clarified that his alleged knee injury occurred due to his training activities on an elliptical
machine or due to any other identified federal employment factors.
Given appellant’s lack of response to OWCP’s development letter, the Board finds that he
has not met his burden of proof to establish that an injury occurred in the performance of duty, as
alleged.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that an injury
occurred in the performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the May 29, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 12, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8

L.T, Docket No. 19-1902 (issued April 8, 2020); A.H., Docket No. 19-0566 (issued August 22, 2019); D.C.,
Docket No. 18-0082 (issued July 12, 2018).

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