United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Buffalo, NY, Employer
__________________________________________

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

Docket No. 09-311
Issued: July 24, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 13, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ April 28 and October 14, 2008 merit decisions, denying her recurrence
of disability claim. 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 met her burden of proof to establish that she sustained a
recurrence of total disability on or after February 21, 2008 due to her December 26, 2000
employment injury.
FACTUAL HISTORY
The Office accepted that on December 26, 2000 appellant, then a 49-year-old nurse,
sustained a lumbosacral sprain and herniated lumbar disc due to lifting a patient at work. She
stopped worked for various periods and received compensation from the Office for periods of

partial and total disability. On October 7, 2003 appellant underwent decompression and fusion
surgery between L3 and L5 with hardware and on December 7, 2003 she had additional
discectomy and fusion surgery between L4 and S1.1 The surgeries were authorized by the
Office.
On June 28, 2007 Dr. Arlen K. Snyder, a Board-certified orthopedic surgeon who served
as an Office referral physician, stated that appellant had some mild-to-moderate subjective
complaints related to her employment injury but did not have objective physical examination
findings to support her complaint of severe disabling pain. She indicated that the only real
positive finding was some decreased range of flexion, which in part was secondary to her
exogenous obesity. The rest of her examination was completely normal including straight leg
raising, lateral bends, hyperextension, muscle strength testing, pin prick sensation and ability to
ambulate without difficulty. Dr. Snyder stated that appellant could not return to her preinjury job
but was able to return to light-duty work that allowed her to sit and stand as necessary and did
not require her to lift more than 20 pounds. She indicated that since appellant had not been back
to work in some time it was appropriate for her to start out working four hours per day and
gradually increase to eight hours a day. Dr. Snyder completed a form with more detailed work
restrictions.
On February 4, 2008 appellant returned to work for the employing establishment as a
modified nurse for four hours per day. The job duties were within the work restrictions
recommended by Dr. Snyder. Appellant stopped work on February 21, 2008 and on March 6,
2008 she filed a claim alleging that she sustained a recurrence of total disability on February 21,
2008 due to her December 26, 2000 employment injury. She indicated that her back pain had
increased and asserted that she had pain in her right sciatic nerve and foot, which was related to
the surgery necessitated by her employment injury.
On March 31, 2008 Dr. James G. Egnatchik, an attending Board-certified neurosurgeon,
stated that appellant reported leaving her work due to severe pain in the lower back radiating
down the right leg. He stated that she was taken out of work by Ellen Battista, her pain
management physician.2 Dr. Egnatchik indicated that on examination appellant ambulated with
a forward-bent gait while using a cane and could not stand for any length of time, but noted that
straight leg raising was negative and motor strength was 5/5 in her lower extremities. He stated,
“I am going to keep [appellant] out of work until her next appointment, which will be [in] three
months. Once again, I highly doubt that [she] will ever be able to return to her work as a
registered nurse.”
On March 28, 2008 Dr. Robert J. Plunkett, an attending Board-certified neurosurgeon,
stated that appellant was an appropriate candidate for a spinal cord stimulator. On March 21,
2008 Dr. Susan S. Krasner, an attending clinical psychologist, discussed her interview and
1

Appellant’s surgical hardware was removed in February 2007.

2

Dr. Egnatchik asserted that appellant was taken off work by Ms. Battista, an attending medical physician, but
she actually was a nurse. Appellant received pain management services from Ms. Battista and other nurses. The
Board has held that a nurse is not a “physician” as defined under the Federal Employees’ Compensation Act and
cannot render a medical opinion on the causal relationship between a given physical condition and implicated
employment factors. See 5 U.S.C. § 8101(2); Bertha L. Arnold, 38 ECAB 282, 285 (1986).

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psychological testing sessions with appellant and indicated that she would be a good candidate
for a spinal cord stimulator.
In an April 28, 2008 decision, the Office denied appellant’s recurrence of disability
claim. It found that she did not submit sufficient medical evidence to establish that she sustained
a recurrence of total disability on or after February 21, 2008 due to her December 26, 2000
employment injury.
On July 2, 2008 Dr. Egnatchik stated that appellant reported back pain and right foot pain
and numbness. On examination of her right foot appellant exhibited tenderness on palpation and
hypersensitivity but she did not have any significant demonstrable weakness of her right foot.
Dr. Egnatchik stated that she remained temporarily totally disabled.3 In reports dated between
August and October 2008, Dr. Krasner addressed appellant’s pain complaints and noted that she
reported that appellant was not able to work.
Appellant requested a hearing before an Office hearing representative. At the August 12,
2008 hearing, she testified that she continued to have disabling residuals of her December 26,
2000 employment injury and related surgeries. In an October 14, 2008 decision, the Office
hearing representative affirmed the Office’s April 28, 2008 decision.4
LEGAL PRECEDENT
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that she can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that she cannot perform such light duty. As part of this burden the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty job requirements.5
ANALYSIS
The Office accepted that on December 26, 2000 appellant sustained a lumbosacral sprain
and herniated lumbar disc due to lifting a patient at work. It approved surgery at the L3 through
S1 disc levels. On February 4, 2008 appellant returned to work for the employing establishment
as a modified nurse for four hours per day. The job restricted activities such as lifting and
walking. Appellant stopped work on February 21, 2008 and on March 6, 2008 she filed a claim
alleging that she sustained a recurrence of total disability on February 21, 2008 due to her
December 26, 2000 employment injury.

3

Appellant submitted additional reports of attending nurses.

4

Appellant submitted additional evidence after the Office’s October 14, 2008 decision, but the Board cannot
consider such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).
5

Cynthia M. Judd, 42 ECAB 246, 250 (1990); Terry R. Hedman, 38 ECAB 222, 227 (1986).

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The Board finds that appellant did not submit sufficient medical evidence to establish that
she sustained a recurrence of total disability on or after February 21, 2008 due to her
December 26, 2000 employment injury.
Appellant submitted a March 31, 2008 report in which Dr. Egnatchik, stated that she
reported leaving her work due to severe pain in the lower back radiating down the right leg. He
indicated that on examination appellant ambulated with a forward-bent gait while using a cane
and could not stand for any length of time, but noted that straight leg raising was negative and
motor strength was 5/5 in her lower extremities. Dr. Egnatchik stated that appellant should stay
off work until her next appointment in three months. On July 2, 2008 he noted that appellant
reported back pain and right foot pain and numbness. On examination of her right foot appellant
exhibited tenderness on palpation and hypersensitivity but she did not have any significant
demonstrable weakness of her right foot. Dr. Egnatchik stated that she remained temporarily
totally disabled.
The reports of Dr. Egnatchik do not establish appellant’s claim because he provided no
indication that she sustained a recurrence of total disability on or after February 21, 2008 due to
her December 26, 2000 employment injury.6 Although he found total disability, he did not
discuss the cause of this disability. Dr. Egnatchik did not provide any notable discussion of
appellant’s December 26, 2000 employment injury and related surgeries and did not explain how
they would have caused total disability from appellant’s light-duty work on or after
February 21, 2008.
On March 28, 2008 Dr. Plunkett, an attending Board-certified neurosurgeon, stated that
appellant was an appropriate candidate for a spinal cord stimulator. However, he did not indicate
that she was disabled due her December 26, 2000 employment injury. In several reports dated
between March and October 2008, Dr. Krasner, an attending clinical psychologist, discussed her
interview and psychological testing sessions with appellant and detailed her reported pain
complaints. She did not provide any opinion that appellant had employment-related disability.7
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a recurrence of total disability on or after February 21, 2008 due to her December 26,
2000 employment injury.

6

See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding that medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
7

Dr. Krasner also recommended a spinal cord stimulator. It should be noted that it has not been accepted that
appellant has any employment-related emotional condition. Appellant submitted reports of attending nurses, but
these would not constitute probative medical evidence. See supra note 2.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
October 14 and April 28, 2008 decisions are affirmed.
Issued: July 24, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, 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
__________________________________________
J.H., Appellant
and
DEPARTMENT OF JUSTICE, PAROLE
COMMISSION, Chevy Chase, MD, Employer
__________________________________________

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

Docket No. 10-1075
Issued: January 19, 2011

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 March 10, 2010 appellant, through counsel, filed a timely appeal of the February 17,
2010 merit decision of the Office of Workers’ Compensation Programs affirming the termination
of his compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits
effective September 4, 2009 on the grounds that he no longer had any residuals or disability
causally related to his February 6, 1989 employment-related injury.
On appeal, appellant’s attorney contends that the Office’s decision is contrary to fact and
law.
FACTUAL HISTORY
On May 3, 1989 appellant, then a 33-year-old motor vehicle operator, filed a traumatic
injury claim alleging that on February 6, 1989 he sustained a herniated disc in his back as a result

of lying in a gutter while lifting and changing a flat tire on his vehicle. He stopped work on
February 13, 1989. Following the injury, appellant worked five hours a day on March 21
and 22, 1989.
By decision dated June 7, 1990, the Office accepted appellant’s claim for aggravation of
recurrent lumbar radiculoneuropathy. It paid wage-loss compensation for temporary total
disability commencing March 22, 1989.
In medical reports dated March 22, 2006 to March 10, 2009, Dr. Jonathan S. Staub, an
attending Board-certified internist, advised that appellant was totally disabled for work due to his
February 6, 1989 employment injury.
On June 1, 2009 the Office referred appellant, together with a statement of accepted facts
and medical record, to Dr. James A. Maultsby, a Board-certified orthopedic surgeon, for a
second opinion on the nature and extent of his employment-related residuals and disability. In a
June 16, 2009 report, Dr. Maultsby reviewed a history of appellant’s February 6, 1989
employment injury, medical treatment and background. He listed complaints of pain. On
physical examination, Dr. Maultsby reported essentially normal findings with limited range of
motion of the lumbar spine. He diagnosed degenerative disc disease of the thoracic and lumbar
spine and failed surgical back with continued chronic pain. Dr. Maultsby found no evidence of
symptom magnification. He advised that appellant’s greatest pain was in the upper thoracic
spine which was not related to the February 6, 1989 injury. Dr. Maultsby also had controlled
hypertension and diabetes mellitus. He stated that he would address the Office’s questions
regarding appellant’s continuing residuals and disability after obtaining diagnostic studies and a
functional capacity evaluation (FCE).
In a June 17, 2009 report, Dr. Maultsby advised that a June 16, 2009 FCE determined that
appellant was unable to return to work as a driver due to weakness, noting that the position
required him to lift heavy objects. Appellant could not engage in repetitive bending and lifting.
Dr. Maultsby found, however, that appellant could work eight hours a day in a sedentary position
in the business management field in which he was trained and educated. A June 16, 2009
electromyogram (EMG) study failed to reveal any evidence of radiculopathy or radiculitis. A
topographical pain drawing indicated that appellant’s path was primarily in the thoracic spine
and not in the lumbar spine, which established that his current complaints were not related to his
low back conditions. Dr. Maultsby noted that the statement of accepted facts did not provide that
appellant’s thoracic spine, was an accepted condition. He advised that appellant had reached
maximum medical improvement regarding his lumbar spine. Appellant did not have chronic
pain syndrome.
In a June 22, 2009 report, Dr. Maultsby noted that the June 16, 2009 EMG study also
revealed severe chronic diffuse axonal polyneuropathy which could be associated with diabetes
mellitus, thyroid dysfunction, myeloma, nutritional deficit, alcohol or heavy metals. The
diagnosed condition was not produced by an acute injury. The EMG of the biceps femoral
muscles showed myopathic rather than neuropathic features. Dr. Maultsby stated that the EMG
findings documented that appellant’s symptoms were not related to the accepted low back
condition or continued radiculitis. Chronic bilateral L4-5 radiculopathy was noted which
suggested radiculopathy from a spinal stenosis but that the February 6, 1989 injury had resolved

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as confirmed by the EMG studies. Dr. Maultsby further advised that appellant’s subjective
complaints did not outweigh the objective evidence and none of his current conditions were
causally related to the February 6, 1989 employment injury. The cause of appellant’s ongoing
symptoms primarily involved pain in the thoracic spine for which he was currently being treated.
He had no residuals of the accepted condition. Appellant had permanent restrictions, but could
perform sedentary work and undergo restaurant or office management training.
On August 3, 2009 the Office issued a proposed termination of appellant’s wage-loss
compensation and medical benefits based on Dr. Maultsby’s medical opinion.
In an August 13, 2009 letter, appellant disagreed with the Office’s proposed action. He
contended that Dr. Maultsby was biased. Appellant contended that, after undergoing physical
therapy that was ordered by the Office, he was bedridden for three weeks. He sought medical
treatment to control residual pain from his surgeries and argued that the EMG test results were
inconsistent.
In a September 4, 2009 decision, the Office terminated appellant’s wage-loss
compensation and medical benefits effective that date. It found that the opinion of Dr. Maultsby
reported the weight of medical evidence.
On September 16, 2009 appellant, through his attorney, requested a telephonic oral
hearing with an Office hearing representative.
In an August 13, 2009 report, Ken Barrow, a physician’s assistant, stated that he had
treated appellant since September 2007 for pain management. He noted that appellant was
injured in 1989 and had undergone multiple back surgeries. Mr. Barrow related that a recent
EMG study confirmed the diagnosis of chronic lumbar radiculopathy at L4-5 and that an FCE
found that appellant could perform sedentary work with frequent repositioning. He was unsure
as to how appellant would be able to maintain gainful employment in light of the frequent
repositioning requirement. Mr. Barrow opined that appellant remained totally disabled.
In an August 28, 2009 report, Dr. Staub noted appellant’s February 1989 employment
injury and subsequent back pain following surgical treatment. He advised him to avoid any
lateral movements due to risk of reinjury and chronic pain. Physical therapy provided limited
results and appellant required chronic pain management. Dr. Staub advised that appellant had
significant depression that seemed to be secondary to the February 1989 injury and chronic pain.
Noting that appellant had been on disability for 20 years, he opined that it would be extremely
difficult if not impossible to find any kind of occupation for him.
In an October 6, 2009 report, Dr. Mark A. Pithan, a Board-certified neurologist, noted
appellant’s long-standing history of back problems, six back surgeries and multilevel
radiculopathies of the legs. He stated that a recent EMG study raised the possibility of
myopathy. Dr. Pithan listed essentially normal findings on physical examination and diagnosed
lumbago (back pain). In an October 27, 2009 report, he advised that appellant’s “CK” level was
normal which made a diagnosis of myopathy less likely. Dr. Pithan again listed essentially
normal findings on physical examination and diagnosed polyneuropathy secondary to diabetes.

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In a December 1, 2009 report, Dr. Staub reiterated his diagnosis of polyneuropathy secondary to
diabetes.
In a February 17, 2010 decision, an Office hearing representative affirmed the
September 4, 2009 termination decision. The medical evidence was found to be insufficient to
establish that appellant had any continuing employment-related residuals or disability.
LEGAL PRECEDENT
Once the Office 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, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.1
The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.2 Furthermore, the right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability. To
terminate authorization for medical treatment, the Office must establish that a claimant no longer
has residuals of an employment-related condition that requires further medical treatment.3
ANALYSIS
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits as of September 4, 2009. The Office accepted that he sustained an
aggravation of recurrent lumbar radiculoneuropathy while in the performance of duty on
February 6, 1989. It referred appellant to Dr. Maultsby for a second opinion evaluation.
Dr. Maultsby’s June 16, 2009 report reviewed a history of appellant’s February 6, 1989
employment-related injury and medical treatment. He found that appellant had, among other
things, degenerative disc disease of the thoracic and lumbar spine and failed surgical back with
continued chronic pain. Dr. Maultsby advised that he experienced greater pain in the thoracic
spine which was not related to the accepted condition. His physical examination revealed
essentially normal findings related to the lumbar spine with the exception of limited range of
motion. Dr. Maultsby stated that additional diagnostic testing and an FCE were necessary before
he could determine whether appellant had any continuing residuals or disability causally related
to the February 6, 1989 injury. In a June 17, 2009 report, he reviewed the results of the June 16,
2009 FCE and EMG study. Dr. Maultsby found that, based on the FCE, appellant could not
return to work as a driver due to weakness and inability to engage in repetitive bending and
lifting as the position required him to lift heavy objects. He further found that his lumbar
problems were not causally related to the accepted condition based on the EMG study.
Dr. Maultsby stated that the EMG study did not reveal any evidence of radiculopathy or
radiculitis. He advised that a topographical drawing showed that appellant’s primary pain path
1

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

2

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

3

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

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was in the thoracic spine and not in the lumbar spine and thus not related to his low back
condition. Dr. Maultsby further advised that appellant did not have chronic pain syndrome. His
June 22, 2009 report found that appellant had no residuals of the February 6, 1989 condition
which had resolved and he could perform sedentary work eight hours a day with restrictions in a
management position for which he would receive training. Dr. Maultsby advised that his
subjective complaints of pain did not outweigh the objective evidence, based on the EMG
findings of severe chronic diffuse axonal polyneuropathy which may be associated with his
nonemployment-related conditions and not the February 6, 1989 employment injury. He further
advised that appellant’s biceps femoral muscles showed myopathic rather than neuropathic
features. Dr. Maultsby stated that his symptoms primarily involved pain in the thoracic spine.
The Board finds that Dr. Maultsby’s reports represent the weight of the medical evidence
and that the Office properly relied on his reports in terminating appellant’s compensation
benefits on September 4, 2009. Dr. Maultsby’s opinion is based on proper factual and medical
history as he reviewed a statement of accepted facts and appellant’s prior medical treatment and
test results. He also related his comprehensive examination findings in support of his opinion
that the accepted work-related condition had resolved and that appellant could perform sedentary
work eight hours a day with restrictions.
Dr. Staub’s August 28, 2009 opinion that appellant’s significant depression “seemed” to
be secondary to the February 6, 1989 employment injury is speculative and unsupported by
rationalized medical evidence explaining the nature of the relationship between his emotional
condition and the accepted employment condition.4 Moreover, he did not provide any medical
rationale explaining how appellant’s continued disability for work after 20 years was causally
related to the accepted condition. Further, Dr. Staub’s restriction focuses on a concern that
performing a certain move will lead to aggravation of the accepted condition. The Board has
consistently held that fear of future injury is not compensable.5 Dr. Staub’s concerns of future
exacerbation do not establish that appellant is currently disabled. For the stated reasons, the
Board finds that his report is of limited probative value in establishing that appellant has any
residuals or disability causally related to the February 6, 1989 injury.
None of the medical evidence from Dr. Pithan provides any opinion addressing the causal
relationship between the February 6, 1989 injury and appellant’s current back condition and
disability for work. The Board notes that his diagnosis of lumbago (back pain) is a symptom, not
a compensable medical diagnosis.6
The August 13, 2009 report from Mr. Barrow, a physician’s assistant, is of no probative
value in establishing appellant’s claim. A physician’s assistant is not considered to be a
“physician” as defined under the Act.7 The Board finds, therefore, that Mr. Barrow’s report does
not constitute competent medical evidence to support appellant’s claim.
4

Leslie C. Moore, 52 ECAB 132 (2000).

5

See Calvin E. King, 51 ECAB 394 (2000).

6

C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008); Robert Broome, 55 ECAB 339 (2004).

7

Roy L. Humphrey, 57 ECAB 238, 242 (2005); 5 U.S.C. § 8101(2).

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There is no other medical evidence contemporaneous with the termination of appellant’s
benefits which supports that he has any continuing employment-related residuals or disability.
The Office, therefore, met its burden of proof to terminate.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
September 4, 2009 on the grounds that he no longer had any residuals or disability causally
related to his accepted employment-related aggravation of recurrent lumbar radiculoneuropathy.
ORDER
IT IS HEREBY ORDERED THAT the February 17, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 19, 2011
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
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Royal Oak, MI, Employer
__________________________________________

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

Docket No. 16-0286
Issued: May 11, 2016

Case Submitted on the Record

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

JURISDICTION
On December 2, 2015 appellant, through counsel, filed a timely appeal from a July 2,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a head injury on
August 11, 2014 while in the performance of duty.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 13, 2014 appellant, then a 45-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on August 11, 2014 she sustained a head injury at work when
she hit her head on her vehicle as water threw her around.
On the Form CA-1 signed by Michael Quire, a supervisor, and by letter dated August 20,
2014 and signed by Gail Hawkins, an employing establishment human resources manager,
controverted the claim, contending that appellant did not submit any medical evidence to
establish that her claimed injury was caused or aggravated by specific employment factors. They
also contended that she did not previously mention her injury.
The employing establishment provided a timeline of events that occurred on
August 11, 2014. At 3:30 p.m. appellant called the station and stated that she needed lunch and
had six loops to finish. At 5:20 p.m. she reported to Demaris C. McCants, a closing supervisor,
that, she had to finish two loops. At 5:30 p.m. appellant went to get mail, but advised that it was
getting flooded and that “11 mile was flooded.” Between 6:30 p.m. and 8:00 p.m. she called
Mr. Quire. At 6:00 p.m. Mr. Quire followed appellant out to her route which was not flooded.
At 6:30 p.m. appellant’s loop was completed. Mr. Quire told her that she had approximately
30 minutes to deliver and she should return to the station at approximately 7:30 p.m. At 6:34
p.m. he told appellant to call Mr. McCants if she had any further problems. At 6:45 p.m.
Mr. McCants started calling her to come back to the office. Appellant did not respond.
Mr. McCants attempted to call her at least three times until 7:00 p.m. Between 7:15 p.m. and
7:30 p.m. appellant called back to the office, relating that her vehicle would not start and that a
customer was trying to help her. She did not mention that the vehicle was flooded.
Mr. McCants then called the vehicle maintenance facility (VMF). Between 7:30 p.m. and
8:30 p.m. he continued to call appellant for updates and to let her know that an employee from
VMF was on the way to help. A VMF employee picked up appellant. Mr. McCants called
appellant and instructed her to bring the mail back to the office. Appellant responded that she
could not do so and sent a picture of her vehicle submersed in water. Mr. McCants heard the
VMF employee say that if appellant opened the door then water would rush into the vehicle.
Appellant returned to the office at 9:06 p.m. Mr. McCants asked her a few questions and she did
not respond. Appellant did not state at any time that she had an accident or was injured. On
August 12, 2014 she called in sick. Appellant did not report any injury until August 13, 2014
after carrying out her entire route. She requested a Form CA-1 and was instructed to write a
statement.
The employing establishment provided appellant with an authorization for examination
and/or treatment (Form CA-16) on August 13, 2014 which was signed by Mr. Quire.
By letter dated August 22, 2014, OWCP notified appellant of the deficiencies of her
claim and afforded her 30 days to submit medical evidence and additional factual evidence.
In an undated narrative statement, appellant described the alleged August 11, 2014
incident. She related that at approximately 4:00 p.m. she called Mr. McCants to explain that she
did not feel safe to continue delivering mail under the weather conditions at that time. It was
thundering and lighting and appellant was standing in one foot of water. Mr. McCants instructed

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her to deliver all of her mail. Appellant was told to get off the street by a police officer due to a
flash flood warning advisory. She completed her loop and returned to her van. Appellant
attempted to deliver her next loop, but was prevented from doing so by the rain storm. She
returned to her van and drove back to the station. Appellant arrived at the station at
approximately 5:15 p.m. and Mr. McCants ordered her to deliver her remaining two and one-half
loops. She refused for safety reasons. Pam Rambo, an employee, related that she did not believe
appellant’s story so she sent Mr. Quire out with appellant to verify her story and to access the
situation. Mr. Quire watched appellant wade through knee high water as she delivered her loop.
He gave her a map and told her to deliver the other two loops and not return to the station until
she was finished. Mr. Quire told appellant that she should be done by 7:30 p.m. and then he
drove away. Appellant delivered the two loops, but around 7:15 p.m. she still had packages to
deliver. She could not drive to the address because water was up to her thighs. Appellant was
walking to deliver the packages when she saw an employee wading down the street towards her.
He told her to come back in and apologized because she should not have been sent back out.
Appellant returned to her van and tried to drive away, but the water rose so high and fast that the
vehicle stalled and filled up fast with water. She used a tub to push open the van door and as
water rushed into the van she lost her balance and fell underneath the water. Appellant hit her
head against the van while flinging her arms to regain her balance. She also hit her wrist against
something hard.
In an August 14, 2014 medical report, Dr. Ashok K. Gupta, a Board-certified internist,
opined that appellant should be excused from work through August 18, 2014. He advised that
she could return to work on August 19, 2014.
An August 13, 2014 report from Henry Ford Farlane Emergency Department,
Dr. Christopher D’Angelo, a Board-certified internist, noted diagnoses of headache, cervical
strain, and wrist strain. The report also addressed appellant’s medications.
In an August 18, 2014 report, Dr. Saima Khan, a Board-certified internist, evaluated
appellant for a headache. He provided care instructions for her postconcussion syndrome. In an
August 18, 2014 letter, Dr. Khan opined that appellant should be off work through
September 1, 2014. Appellant could return to work on September 2, 2014 with no restrictions.
A September 3, 2014 duty status report (Form CA-17) from Dr. Khan provided a history of
injury that on August 11, 2014 she bumped the back of her head on a vehicle. He reiterated his
diagnosis of headache (postconcussion syndrome). Dr. Khan advised that appellant could not
work at that time.
In an August 26, 2014 letter, Anthony Redmond, a licensed master social worker, and
Roshundra Graham, a licensed social worker and a counsel, noted that appellant was under their
care for post-traumatic stress disorder (PTSD) and major depressive disorder. Mr. Redmond and
Ms. Graham provided appellant’s reactions to being trapped in a storm and flood, which caused
major problems with her ability to function and make sound decisions during her daily routine.
Appellant was found to be unable to return to work until further evaluation.
By decision dated September 23, 2014, OWCP accepted that the August 11, 2014
incident occurred as alleged. However, it denied appellant’s traumatic injury claim as it did not

3

receive medical evidence from a physician that contained a medical diagnosis causally related to
the accepted employment incident.
Appellant submitted an illegible statement regarding the alleged August 11, 2014
incident.
In a September 25, 2014 letter, Dr. Leon M. Rubenfaer, a Board-certified psychiatrist,
noted that appellant had been under his care for a serious medical condition. He further noted
that she had been totally disabled since August 11, 2014. Dr. Rubenfaer advised that appellant
could return to work on November 3, 2014 with no restrictions. In an October 1, 2014 attending
physician’s report (Form CA-20), he provided a history that on August 11, 2014 her mail truck
was caught in a flood and she was almost killed. Dr. Rubenfaer provided findings and diagnosed
PTSD. He indicated with a checkmark “yes” that the diagnosed condition was caused or
aggravated by work activity. Dr. Rubenfaer opinioned that appellant was injured while on the
job. He advised that she had been totally disabled from August 11, 2014 through the date of his
examination. Dr. Rubenfaer concluded that appellant could return to work on November 3, 2014
without restrictions.
In an October 8, 2014 Form CA-20 report, Dr. Khan provided a history that on
August 11, 2014 appellant sustained a head injury when her van flooded and she slipped and hit
her head. He provided examination findings and diagnosed PTSD, mixed headache with
components of occipital neuralgia, and rebound headache. Dr. Khan also provided an illegible
diagnosis. He indicated with a checkmark “yes” that the diagnosed conditions were caused or
aggravated by an employment activity, noting appellant’s slip and fall in a van on
August 11, 2014. Dr. Khan advised that she was totally disabled from August 13 to
September 1, 2014. Appellant could return to work on September 2, 2014.
On October 13, 2014 appellant requested an oral hearing held before an OWCP hearing
representative regarding OWCP’s September 23, 2014 decision.
In letters dated September 22 and November 25, 2014, Dr. Rubenfaer again noted that
appellant was under his care for a serious medical condition and that she had been totally
disabled since August 11, 2014. He released her to return work on November 3, 2014 and
February 1, 2015 without restrictions.
In an undated narrative statement, Mr. McCants responded to appellant’s account of the
injury. He related that she called the office at 3:30 p.m. and stated that she had loops to deliver
and lunch to take. Mr. McCants told appellant to take lunch. Appellant did not mention that the
weather was affecting her job or that she felt unsafe. She returned to the office between
5:20 p.m. and 5:30 p.m. and related that she had two more loops to deliver. Mr. McCants
responded that appellant may have to return to her route. Appellant became angry and stated that
it was raining. Mr. McCants asked Mr. Quire to go with her to complete the loops. They left at
5:50 p.m. At 6:45 p.m. Mr. McCants was instructed to call appellant to tell her to return to the
station. He called her three times, but she did not answer. Mr. McCants left appellant a message
on the third attempt. Appellant returned Mr. McCants’ call at 7:15 p.m. and related that her
vehicle would not start and that customers tried to start it. Mr. McCants dispatched assistance
from the VMF. He asked appellant if she was okay and she did not indicate that she was in

4

danger. Mr. McCants heard customers in the background talking and laughing. At 8:30 p.m.
appellant was picked up by a VMF employee. Mr. McCants asked her to retrieve the mail from
the van. Appellant responded that she could not get the mail because water would rush into the
vehicle. She sent Mr. McCants a picture of the vehicle in water. Appellant returned to the office
at 9:00 p.m. She was dry and talking on her cellphone. Mr. McCants took appellant’s keys and
said good night. Appellant did not inform him that she had been in any trouble or felt unsafe.
In a December 23, 2014 letter, the employing establishment removed appellant from
employment, effective January 23, 2015 for failure to adhere to attendance regulations.
Appellant was absent without official leave from October 27 to November 13, 2014.
During a telephone hearing held on April 28, 2014, appellant again described the
August 11, 2014 incident. She related that she feared for her physical safety when water was up
to her hips and over the door of her van. Appellant stated that the VMF employee was not
present at the time of her injury, but many customers were present as their basements and houses
had flooded. She indicated that she would obtain a statement from them regarding the incident.
Appellant maintained that she hit the back of her head when she went under water. She tried to
drive her vehicle past water, but it stalled and filled with water. Appellant tried to exit the
vehicle, but the power doors locked, the windows would not come down, and water quickly
filled the vehicle. She feared not being able to see her daughters graduate from school.
Appellant advised that she used a tub to push the van door open. Water rushed into the vehicle
and she lost her balance while getting out of it. She floated down the street when two men pulled
her out of the water. Counsel stated that appellant reported that a customer took her in and gave
her a set of dry clothes while she waited for help.
In a July 2, 2015 decision, an OWCP hearing representative affirmed the September 23,
2014 decision as modified, finding that the August 11, 2014 incident did not occur as alleged.
She found that appellant provided an inconsistent history of injury and failed to submit any
objective evidence of trauma such as, witness statements.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within 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.2 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.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

5

submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.4
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.5
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his subsequent
course of action. An employee has not met his or her burden in establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim. Circumstances such as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury and failure to
obtain medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement
in determining whether a prima facie case has been established.6
ANALYSIS
Appellant alleged that on August 11, 2014 she sustained a head injury as she fell while
escaping her water-filled van while in the performance of duty. However, the Board finds that
there are inconsistencies in the evidence which cast serious doubt upon the validity of the claim,
and thus, the claimed employment incident did not occur as alleged.
The case record contains differing statements regarding how appellant’s alleged head
injury occurred. Appellant claimed that she was instructed to return to her route to finish
delivering mail on her loops by Mr. McCants despite a rainstorm that included thunder and
lighting. She further claimed that Mr. Quire watched her wade through knee-high water as she
delivered her loop. Appellant maintained that after delivering her loops and being advised by a
coworker to return to the station due to the rain, she returned to her van and attempted to drive
back to the station. She contended that her vehicle stalled and filled up fast with water.
Appellant further contended that she had to use a tub to open a van door to escape because the
power doors locked and the windows would not roll down. She related that water rushed into the
van and she lost her balance and fell underneath the water, causing her to hit her head and wrist.
Appellant claimed that two men pulled her out of the water and that a customer gave her dry
clothes to change into while she waited for help to arrive.
However, Mr. McCants maintained that appellant told him that she was fine and did not
indicate that she was in any danger when she called him stating that her vehicle would not start
and that customers unsuccessfully tried to start it. He further maintained that he heard customers
in the background talking and laughing. Mr. McCants noted that after a VMF employee had
picked up appellant from her loop, he asked her to retrieve the mail from the van. He related that
she responded no. Mr. McCants heard the VMF employee state that water would rush into the
4

T.H., 59 ECAB 388 (2008).

5

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

6

Betty J. Smith, 54 ECAB 174 (2002).

6

vehicle if appellant retrieved the mail. He noted that when she returned to the station, she was
dry and talking on her cellphone. Appellant did not inform Mr. McCants that she had been in
any trouble or felt unsafe on her route. Mr. Quire maintained that her route was not flooded on
August 11, 2014. The Board finds that the statements of Mr. McCants and Mr. Quire are
contrary to appellant’s allegation that she was overcome with water inside her flooded van on
August 11, 2014.
There also are no contemporaneous statements from witnesses present on appellant’s
route supporting that the August 11, 2014 incident occurred as alleged. While an injury does not
have to be confirmed by eyewitnesses to establish that an employee sustained an injury in the
performance of duty, the employee’s statement must be consistent with the surrounding facts and
circumstances and his subsequent course of action. Appellant claimed that customers witnessed
the August 11, 2014 incident, but she did not submit any statements from these witnesses.
Further, she did not submit any witness statements from the men who pulled her out of the water.
For these reasons, the Board finds that appellant has not established that the incident
occurred as alleged. Because appellant has not established that the August 11, 2014 incident
occurred, it is not necessary for the Board to consider the medical evidence.7
On appeal, counsel contends that OWCP’s decision is contrary to fact and law. For the
reasons stated above, the Board finds counsel’s arguments are not substantiated.
The Board notes that OWCP has not adjudicated the issue of her possible entitlement to
incurred medical expenses. The employing establishment provided appellant with a Form CA16 on August 13, 2014 that was signed by Mr. Quire. Ordinarily, the employing establishment
will authorize treatment of a job-related injury by providing him or her, a properly executed
Form CA-16 within four hours.8 Under section 8103 of FECA, OWCP has broad discretionary
authority to approve unauthorized medical care which it finds necessary and reasonable in cases
of emergency or other unusual circumstances, to be determined on a case-by-case basis.9 In
denying appellant’s claim for a traumatic injury, OWCP did not consider whether emergency
circumstances or unusual circumstances were present or whether this was a situation in which
reimbursement of medical expenses was appropriate.10
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.

7

B.W., Docket No. 13-244 (issued May 13, 2013).

8

See Val D. Wynn, 40 ECAB 666 (1989); see also Federal (FECA) Procedure Manual, Part 3 -- Medical,
Authorizing Examination and Treatment, Chapter 3.300.3(a)(3) (February 2012).
9

5 U.S.C. § 8103; 20 C.F.R. § 10.304. See L.B., Docket No. 10-469 (issued June 2, 2010); see also Federal
(FECA) Procedure Manual, id. at Chapter 3.300.3(a)(3).
10

K.G., Docket No. 10-1806 (issued April 5, 2011).

7

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a head injury
on August 11, 2014 while in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the July 2, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 11, 2016
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.Z., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Lauderdale, FL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 17-1455
Issued: February 15, 2019

Case Submitted on the Record

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

On June 16, 2017 appellant filed a timely appeal from a June 7, 2017 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The appeal was docketed as number
17-1455.
On May 31, 2005 appellant, then a 46-year-old mail processor, filed an occupational
disease claim (Form CA-2) alleging that repetitive lifting caused an injury to his lower back and
left side in the performance of duty beginning May 17, 2005. On August 3, 2005 OWCP accepted
the claim for sprain/strain of the lumbar region and paid compensation. On September 23, 2008 it
expanded acceptance of the claim to include herniated nucleus pulposus (HNP) at L2-3 and L4-5.
Appellant stopped work and received appropriate wage-loss compensation on the periodic rolls
beginning June 6, 2010.1
Appellant was unable to return to his date-of-injury position as a mail processing clerk as
the employing establishment was unable to accommodate his restrictions. He sought treatment
with his attending physician, Dr. Lance Lehmann, a Board-certified anesthesiologist, who reported
1

On November 5, 2012 appellant filed another Form CA-2 alleging that he suffered from hip, back, and leg pain
as a result of his federal employment duties beginning July 7, 2010 under OWCP File No. xxxxxx776. That claim
remains in denied status. See Docket No. 13-1911 (issued September 15, 2014).

that he was capable of performing sedentary work with restrictions of no lifting over 25 pounds
and no climbing. Appellant was referred to vocational rehabilitation services and was advised that
the position of data entry clerk was vocationally and medically suitable and considered sedentary
by the Department of Labor, Dictionary of Occupational Titles.
On January 9, 2014 OWCP proposed to reduce appellant’s compensation benefits based
on his capacity to earn wages of $390.00 per week as a data entry clerk.2 It found that wage-loss
compensation should be reduced as he was no longer totally disabled and the position of data entry
clerk was medically and vocationally suitable, and fairly and reasonably represented his wageearning capacity. Appellant was provided 30 days to submit evidence and argument challenging
the proposed action.
By decision dated February 25, 2014, OWCP finalized the reduction of appellant’s wageloss compensation, effective March 9, 2014, based on the constructed position of data entry clerk
with the ability to earn $390.00 a week. It noted that his hip injury occurred subsequent to his
work-related injury and need not be considered in determining the medical suitability of the
selected position.
On March 1, 2014 appellant requested an oral hearing before an OWCP hearing
representative and submitted additional medical evidence in support of his claim. By decision
dated January 2, 2015, an OWCP hearing representative denied modification of its February 25,
2014 loss of wage-earning capacity (LWEC) determination.
Appellant thereafter continued to request modification of the LWEC determination by
filing requests for reconsideration.3
On March 10, 2017 appellant, through his representative, again requested reconsideration.
Appellant’s representative argued that OWCP should have considered his consequential hip
diagnosis in its suitable work determination by referring him to a district medical adviser or second
opinion physician.
Numerous new medical reports dated from June 7, 2016 through April 14, 2017 were
submitted to OWCP in support of the March 10, 2017 reconsideration request.
By decision dated June 7, 2017, OWCP reviewed the merits of the case, but denied
modification of the March 10, 2016 decision.

2

5 U.S.C. § 8115.

3
On December 21, 2015 appellant, through his representative, requested reconsideration of the January 2, 2015
hearing representative’s decision. By decision dated March 10, 2016, OWCP denied modification. On April 1, 2016
appellant again requested reconsideration. By decision dated June 14, 2016, OWCP denied appellant’s request for
reconsideration, finding that the evidence submitted on reconsideration was insufficient to warrant a merit review of
the case.

2

The Board, having duly considered the matter, concludes that the case is not in posture for
decision.4
On February 25, 2014 OWCP finalized the reduction of appellant’s wage-loss
compensation, effective March 9, 2014, based on the constructed position of data entry clerk with
the ability to earn $390.00 a week.
It is well established that a claimant may establish that a modification of a wage-earning
capacity is warranted if there is a material change in the nature and extent of an injury-related
condition, or a showing that the original determination was, in fact, erroneous.5 Although
appellant used the term reconsideration in his March 10, 2017 correspondence, he contended that
OWCP committed error in its wage-earning capacity because he was incapacitated at the time the
determination was issued and requested a resumption of compensation for total wage loss.6
The Board finds that the March 10, 2017 letter from appellant’s representative constituted
a request for modification of the February 24, 2015 LWEC determination.7 The Board has held
that, when an LWEC determination has been issued and appellant submits evidence with respect
to one of the criteria for modification, OWCP must evaluate the evidence to determine if
modification of wage-earning capacity is warranted.8
In the June 7, 2017 decision, OWCP improperly reviewed the case under the standard for
reconsideration requests.9 The case must therefore be remanded to OWCP for a proper decision
which includes findings of fact and a clear and precise statement regarding whether appellant has
met his burden of proof to establish modification of his wage-earning capacity determination. The
Board consequently remands the case to OWCP for proper adjudication, to be followed by a
de novo decision.10

4

N.M., Docket No. 17-0262 (issued July 3, 2017).

5

20 C.F.R. § 10.511; see P.C., 58 ECAB 405 (2007).

6

J.J., Docket No. 11-1958 (issued June 27, 2012).

7

See E.L., Docket No. 14-1434 (issued March 18, 2015); M.N., Docket No. 10-0051 (issued July 8, 2010).

8

See W.W., Docket No. 09-1934 (issued February 24, 2010).

9

A.C., Docket No. 15-0710 (issued June 5, 2015). See also K.J., Docket No. 14-1874 (issued February 26, 2015).

10

W.R., Docket No. 16-0098 (issued May 26, 2016).

3

IT IS HEREBY ORDERED THAT the June 7, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this order.
Issued: February 15, 2019
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
DEPARTMENT OF THE INTERIOR,
ASSATEAGUE ISLAND NATIONAL
SEASHORE, Berlin, MD, Employer
__________________________________________

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

Docket No. 16-0446
Issued: April 14, 2016

Case Submitted on the Record

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

JURISDICTION
On January 11, 2016 appellant filed a timely appeal from September 8 and December 22,
2015 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a left knee injury
causally related to a July 10, 2015 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 22, 2015 appellant, then a 71-year-old motor vehicle operator, filed a traumatic
injury claim (Form CA-1) alleging that on July 10, 2015 he twisted his left knee as he exited a
tall trash truck at work. He stopped work on July 13, 2015.
By letter dated August 4, 2015, OWCP notified appellant of the deficiencies of his claim
and afforded him 30 days to submit factual and medical evidence. It also requested that the
employing establishment submit medical evidence if appellant had been treated at its medical
facility.
OWCP received an August 7, 2015 letter in which Kathleen Herath, a registered nurse,
requested that Dr. Edward J. McGinnis, appellant’s attending Board-certified orthopedic
surgeon, complete several attached medical form reports. In an August 10, 2015 continuation of
pay (COP) nurse report, Ms. Herath indicated that appellant stopped work on July 13, 2015
pending irrigation and debridement of his left knee on July 15, 2015. She noted that he was
currently on a six-week course of antibiotics due to a severe left knee infection and admitted to a
rehabilitation center.
In a September 8, 2015 decision, OWCP denied appellant’s claim, finding that he had not
provided a factual basis for his claim and that there was no medical evidence to establish that a
diagnosed medical condition was causally related to the July 10, 2015 incident.
On October 2, 2015 appellant requested reconsideration. In an August 14, 2015 response
to OWCP’s August 4, 2015 developmental letter and a September 29, 2015 statement, appellant
further described the July 10, 2015 incident. He stated that, while collecting trash at work, his
foot slipped and he stumbled as he entered a tall trash truck, twisting his left knee. Appellant
continued to drive the truck with a painful knee. When he arrived home that same day, he put
ice on his swollen knee. During the weekend of July 10, 2015, appellant treated his increased
swelling with ice. On Monday, July 13, 2015 his left knee locked and he was unable to get down
from a trash truck without help. A park emergency medical technician evaluated appellant’s
knee and recommended that he go to a hospital. Appellant was taken to Atlantic General
Hospital by a coworker and was later transported to Peninsula Regional Medical Center. He
underwent surgery and blood test results revealed a serious infection in his left knee. As of
August 14, 2015, appellant was in a rehabilitation facility. He noted that his current injured knee
was replaced in early 2015, but he was cleared for work by an attending physician.
In an undated letter, a coworker stated that on July 10, 2015 he witnessed appellant
wincing in pain each time he used what appellant previously referred to as his bad knee, as they
worked alongside each other while performing refuse collection in a trash truck. He related that
appellant must have reinjured his knee by twisting it the wrong way.
An unsigned discharge summary report dated July 18, 2015 from Peninsula Regional
Medical Center contained the printed name of Robert S. Becker, a certified physician assistant,
dictating for Dr. Florian G. Huber, a Board-certified orthopedic surgeon. The report noted that it
was a draft until authenticated by Mr. Becker and Dr. Huber. The report revealed that appellant
underwent a left total knee replacement in March 2015. On July 14, 2015 an incision,

2

debridement irrigation, and a poly exchange of the left total knee were performed by
Dr. McGinnis. Laboratory test results revealed a staph epidermatitis culture. Appellant’s
discharge condition was stable.
In a decision dated December 22, 2015, OWCP affirmed the September 8, 2015 decision,
as modified. It found that appellant had established that the July 10, 2015 incident occurred as
alleged, but he had not established that a medical condition was diagnosed in connection with the
established employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment incident is insufficient to establish a causal relationship.9

2

Supra note 1.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

7

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

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

3

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he
sustained a traumatic injury caused by the July 10, 2015 employment incident. Appellant failed
to submit sufficient medical evidence to establish that he had a left knee injury causally related to
the accepted employment incident.
The unsigned July 18, 2015 discharge summary report which contained the printed name
of Mr. Becker, a certified physician assistant, who was dictating for Dr. Huber, has no probative
medical value in establishing that appellant sustained a left knee injury causally related to the
accepted July 10, 2015 employment incident. The report indicated that it was a draft until
authenticated by Mr. Becker and Dr. Huber. There is no evidence, however, that Dr. Huber
signed or authenticated the July 18, 2015 report. The Board has also held that physician
assistants are not considered physicians as defined under FECA.10 Therefore, the medical
treatment note of Mr. Becker lacks probative value on the issue of causation.
Similarly, the August 7, 2015 letter and August 10, 2015 COP nurse report from
Ms. Herath, a registered nurse, are insufficient to establish appellant’s claim. This evidence is of
no probative value as registered nurses are not considered physicians as defined under FECA.11
Appellant has not submitted medical evidence from a physician explaining how the
July 10, 2015 work incident caused or contributed to a left knee injury. Therefore, the Board
finds that there is insufficient medical evidence to establish that appellant sustained a left knee
injury causally related to the accepted July 10, 2015 employment incident.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish a left
knee injury causally related to a July 10, 2015 employment incident.

10

Under FECA, the term “physician” includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. See 5 U.S.C.
§ 8101(2); see B.B., Docket No. 09-1858 (issued April 16, 2010); Roy L. Humphrey, 57 ECAB 238 (2005).
11

5 U.S.C. § 8101(2); see G.A., Docket No. 09-2153 (issued June 10, 2010) (evidence from a registered nurse had
no probative medical value as a nurse is not a physician as defined under FECA).

4

ORDER
IT IS HEREBY ORDERED THAT the December 22 and September 8, 2015 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 14, 2016
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.C., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 12-1718
Issued: April 11, 2013

Case Submitted on the Record

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

JURISDICTION
On August 14, 2012 appellant, through her attorney, filed a timely appeal from a May 14,
2012 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), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that her disability
for the period May 7, 2008 through May 10, 2009 was causally related to her employment injury.
On appeal, counsel contends that Dr. Sanford Davne, a Board-certified orthopedic
surgeon, was not properly selected as the impartial medical examiner and, therefore, OWCP
improperly relied on his report in its decision.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 6, 2007 appellant, then a 56-year-old associate advocate, filed a traumatic
injury claim (Form CA-1) alleging that she had a seizure and sustained injuries to her forehead
and nose as a result of falling off her chair in the performance of duty that same day. OWCP
accepted the claim for contusion of the forehead and nose and closed fracture of first cervical
vertebra. It noted that appellant’s syncope episode had not been accepted as employment related
because OWCP had not received any rationalized medical evidence addressing causal
relationship.
Appellant, through her attorney, filed compensation claims for the period May 7, 2008
through May 10, 2009.2 She also submitted a series of reports from Dr. Joseph E. Kepko, an
osteopath specializing in family medicine, who indicated that she suffered from chronic posttraumatic cervical and lumbosacral facet joint syndrome and aggravation of preexisting
osteoarthritis of the cervical and lumbar spine caused by her fall on November 6, 2007.
Dr. Kepko opined that appellant was totally disabled for the period November 4, 2007 through
January 2, 2009 and February 9 through May 1, 2009. On October 8, 2008 he opined that she
was capable of returning to work part time for four hours a day with no limitations for the period
October 14 through December 14, 2008.
On September 10, 2008 Dr. Christopher M. Schulze, an osteopath Board-certified in
cardiology, opined that appellant’s symptoms and syncopal events were inconsistent with a
cardiac cause of syncope. He found that she did not have symptoms suggestive of
neurocardiogenic or vasovagal syndrome. Based on his examination and a review of two
neurology consultations from hospitalizations in 2005 and 2008, Dr. Schulze opined that
appellant’s events sounded like a seizure disorder, perhaps provoked by medication.
OWCP referred appellant to Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon,
for a second opinion evaluation. In an October 3, 2008 report, Dr. Hanley found that the
accepted injuries had resolved and opined that appellant was able to return to full duty.
In a May 27, 2008 report, Dr. Yong I. Park, a Board-certified physicist, diagnosed
chronic neck and low back pain secondary to osteoarthritis of the facet joints. He indicated that
appellant complained of back and neck pain since November 6, 2007 after she fainted at work.
On March 23, 2009 Dr. Schulze found that appellant had a negative head up tilt table
testing with sublingual nitroglycerin.

2

Appellant filed a claim for disability compensation for the period March 16 through May 10, 2008. By decision
dated June 24, 2008, OWCP denied the claim on the basis that the medical evidence submitted was not sufficient to
support disability for the period claimed. On July 7, 2008 appellant, through counsel, requested an oral hearing,
which was held before an OWCP hearing representative on November 20, 2008. By decision dated February 17,
2009, the hearing representative set aside and remanded the case for further development finding that the impartial
medical examiner, Dr. David Bosacco, a Board-certified orthopedic surgeon, did not have all of the pertinent facts in
the statement of accepted facts. Subsequently, OWCP granted compensation for the period March 16 through
May 6, 2008 by decision dated July 1, 2009.

2

OWCP referred appellant to Dr. Thomas DiBenedetto, a Board-certified orthopedic
surgeon, for an impartial medical examination. In an April 21, 2009 report, Dr. DiBenedetto
found that appellant’s accepted injuries had resolved and opined that she could perform her
regular job without restrictions. The record contains an April 9, 2009 Form MEO23 Integrated
Federal Employees’ Compensation System (iFECS) report, which states that appellant’s referee
appointment was scheduled with Dr. DiBenedetto. The record also contains bypass screen shots
for other Board-certified orthopedic surgeons, such as Dr. Richard G. Schmidt, Board-certified in
oncology and Dr. Donald Leatherwood, Board-certified in hand surgery, who were bypassed
because they would only handle one of the issues in the case and Dr. Robert Good, a Boardcertified orthopedic surgeon and Dr. Michael Gratch, a Board-certified orthopedic surgeon, who
were bypassed because they did not accept Department of Labor (DOL) patients.
In a May 21, 2009 addendum report, Dr. DiBenedetto opined that appellant was totally
disabled for the period November 3, 2007 through February 3, 2008 and was partially disabled
for the period February 3 through May 3, 2008 due to her accepted injuries.
By decision dated July 1, 2009, OWCP denied compensation for the period May 7, 2008
through May 10, 2009 on the basis that the medical evidence submitted was not sufficient to
support disability due to the employment injury.
On July 6, 2009 appellant, through counsel, requested a hearing before an OWCP hearing
representative. By decision dated September 1, 2009, the hearing representative determined that
the case was not in posture for a hearing and set aside and remanded the July 1, 2009 decision for
further development.
Subsequently, the employing establishment submitted appellant’s position description
and a November 17, 2009 statement indicating that her work was mostly sedentary, working for
long periods of time at a computer terminal, using a desktop telephone and processing case files.
Appellant’s duties included lifting case files and copy paper, getting up from her workstation to
retrieve printer documents and performing other commonly performed tasks within an office
environment.
On April 13, 2010 Dr. DiBenedetto indicated that he had reviewed a November 7, 2007
computerized tomography (CT) scan of the cervical spine which revealed minimally displaced
C1 ring fracture and CT scans of the cervical spine, brain and facial bones dated November 6,
2007 which revealed possible nondisplaced fracture of the nasal bone. He explained that both of
these fractures could be caused by blunt trauma to the face and neck, which was the described
mechanism of injury that appellant had either passed out or had a seizure while at work and
struck her face. By the time of his evaluation, Dr. DiBenedetto found no residuals of the injury.
Appellant’s follow-up diagnostic testing, which included magnetic resonance imaging (MRI)
scan of the cervical spine, showed that the fracture had healed and made no comment on any C1
fracture by May 7, 2008. Dr. DiBenedetto indicated that there were no follow-up CT scans of
the nasal bone and there were no complaints on examination.
By decision dated May 3, 2010, OWCP denied compensation for the period May 7, 2008
through May 10, 2009, and the period June 22 through August 30, 2009 as there were no
residuals from the employment injury.

3

On May 14, 2010 appellant, through counsel, requested a hearing which was held before
an OWCP hearing representative on September 15, 2010. Subsequently, she submitted a
December 6, 2010 report from Dr. Kepko, who opined that she suffered residuals from the
employment injury and was totally disabled for the period November 6, 2007 through
October 14, 2008 and partially disabled for the period October 15, 2008 through
February 9, 2009.
By decision dated June 7, 2011, OWCP’s hearing representative vacated the May 3, 2010
decision and remanded the case for further development.
On June 30, 2011 OWCP found a conflict in medical opinion between Dr. Hanley and
Dr. Kepko and referred appellant to Dr. Sandford Davne, a Board-certified orthopedic surgeon,
for an impartial medical examination. The record contains an August 18, 2011 Form MEO23
iFECS report, which states that appellant’s referee appointment was scheduled with Dr. Davne.
The record also contains bypass screen shots for other Board-certified orthopedic surgeons, such
as Dr. William Kirkpatrick, Board-certified in hand surgery, who was bypassed under Code S
because he only specialized in hand injuries, Dr. William D. Emper, a Board-certified orthopedic
surgeon, and Dr. Richard Mandel, Board-certified in hand surgery, who were bypassed under
code S because they did not specialize in face, neck and scalp injuries and Dr. Ronald N.
Rosenfeld, a Board-certified orthopedic surgeon, who was bypassed under code O because his
office was not scheduling any appointments at that time.
In his September 24, 2011 report, Dr. Davne reviewed appellant’s medical history and
conducted a physical examination. Appellant reported that she had been working full-time for
the past two years. Dr. Davne found that her extreme limitation of active motion on examination
was a reflection of symptom magnification as during the examination when distracted she moved
her neck and lower back through a greater degree of motion. He concluded that the November 6,
2007 work injury had resolved and there were no residuals of the accepted condition.
Dr. Davne found that appellant’s complaints in her cervical spine were not related to her
C1 fracture but rather to her preexisting multiple-level severe degenerative disc disease. There
were no findings of acute injury in the cervical spine other than the fracture of C1. Dr. Davne
opined that appellant did not sustain an aggravation of her underlying and preexisting cervical
degenerative disc disease at the time of the fall on November 6, 2007. Appellant did not have
cervical radiculopathy and she had a normal neurological examination. Dr. Davne opined that
her lower back complaints were not part of the accepted injury, were not present initially
following the fall and were not related to the employment injury but rather to her preexisting
degenerative disc disease. There were no findings of acute injury in the lumbar spine on the
MRI scan. Appellant had no radicular complaints. She had some thigh numbness which,
according to Dr. Davne, was not radicular. Appellant’s electromyogram (EMG) findings could
have been consistent with lumbar radiculopathy, however, he explained that in the absence of
radicular complaints it did not correlate with radiculopathy. Dr. Davne concluded that she did
not sustain an aggravation of her underlying and preexisting lumbar degenerative disc disease
and did not experience lumbar radiculopathy as a result of the November 6, 2007 employment
injury.

4

Dr. Davne found that appellant had reached maximum medical improvement. He agreed
with Dr. DiBenedetto’s opinion that appellant was disabled for the period November 6, 2007
through February 3, 2008. Dr. Davne also concurred that there would be an approximately threemonth period of partial disability until May 3, 2008. He opined that appellant was not disabled
for the period May 7, 2008 through May 10, 2009 and was capable of working full duty at that
time.
By decision dated October 6, 2011, OWCP denied compensation for the period May 7,
2008 through May 10, 2009, and the period June 22 through August 30, 2009 as there were no
residuals from the employment injury.
On October 19, 2011 appellant, through counsel, request a hearing which was held before
an OWCP hearing representative on February 28, 2012.
By decision dated May 14, 2012, OWCP’s hearing representative affirmed the October 6,
2011 decision.
LEGAL PRECEDENT
Section 8102(a) of FECA3 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”4 This meaning, for brevity, is expressed as disability for work.5
For each period of disability claimed, the employee has the burden of proving that he or she was
disabled for work as a result of the accepted employment injury.6 Whether a particular injury
caused an employee to be disabled for employment and the duration of that disability are medical
issues which must be proved by the preponderance of the reliable probative and substantial
medical evidence.7
Disability is not synonymous with physical impairment, which may or may not result in
an incapacity to earn wages. An employee who has a physical impairment causally related to his
or her federal employment, but who nonetheless has the capacity to earn the wages he or she was
receiving at the time of injury, has no disability as that term is used under FECA and is not
entitled to compensation for loss of wage-earning capacity. The Board will not require OWCP to
pay compensation for disability in the absence of any medical evidence directly addressing the
3

5 U.S.C. § 8102(a).

4

20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548
(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
5

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

6

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

7

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

5

particular period of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.8
Under FECA, Congress has provided that when there is disagreement between the
physician on the part of the United States and that of the employee, the Secretary shall appoint a
third physician who shall make an examination.9 The Board has noted that the appointment of a
referee physician under this section is mandatory in cases where there is such disagreement and
that failure of OWCP to properly appoint a medical referee may constitute reversible error.10
In cases arising under section 8123(a), the Board has long recognized the discretion of
the Director to appoint physicians to examine claimants under FECA in the adjudication of
claims.11 FECA does not specify how the appointment of a medical referee is to be
accomplished. Moreover, it is silent as to the qualifications of the physicians to be considered.12
The implementing federal regulations, citing to the Board’s decision in James P. Roberts,
provide that development of the claim is appropriate when a conflict arises between medical
opinions of virtually equal weight.13 The regulations state:
“If a conflict exists between the medical opinion of the employee’s physician and
the medical opinion of either a second opinion physician or OWCP’s medical
adviser or consultant, OWCP shall appoint a third physician to make an
examination (see § 10.502). This is called a referee examination. OWCP will
select a physician who is qualified in the appropriate specialty and who has had
no prior connection with the case.”14

8

Id.

9

5 U.S.C. § 8123(a). In Melvina Jackson, 38 ECAB 443 (1987), the Board addressed the legislative history of
section 8123 in terms of a challenge to whether an OWCP medical adviser’s opinion could create a conflict in
medical evidence. The Board noted that all provisions of section 8123(a) had been contained in FECA since its
original enactment in 1916. See FECA of September 7, 1916, 39 Stat. 743. However, the last sentence of section
8123(a) pertaining to appointment of a third physician where disagreement exists between the employee’s physician
and the physician for the United States was found in a separate section of FECA, originally, section 22, later
codified unchanged as 5 U.S.C. § 771. This section was incorporated into the current section 8123(a) as part of the
general codification of Title 5 of the United States Codes in 1966. See FECA of September 6, 1966, 80 Stat. 378.
The legislative intent in enacting the codification of Title 5 was to restate, without substantive change, the laws
replaced by the codification. See Melvina Jackson, id. at 447.
10

See Tony F. Chilefone, 3 ECAB 67 (1949).

11

See William C. Gregory, 4 ECAB 6 (1950).

12

The legislative history on the enactment of FECA in 1916 and on the subsequent amendments contains no
discussion and thus no guidance on the meaning or intended operation of the medical referee provision. See Melvina
Jackson, supra note 9.
13

20 C.F.R. § 10.321(a); James P. Roberts, 31 ECAB 1010 (1980).

14

Id. at § 10.321(b). OWCP will pay for second opinion and referee medical examinations, reimbursing the
employee all necessary and reasonable expenses incidental to such examination. 20 C.F.R. § 10.322.

6

Congress did not address the manner by which an impartial medical referee is to be
selected.15 Rather, this was left to the expertise of the Director in administering the
compensation program created under FECA.16 It is an established principle, however, that
FECA is a remedial statute and should be broadly construed in favor of the employee to
effectuate its purpose and not in derogation of an employee’s rights.17 The primary rule of
statutory construction is to give effect to legislative intent and, in arriving at intent; it is well
settled that the words in a statute should be construed according to their common usage.18 The
Board notes that the Director has been delegated authority under FECA in the selection of a
medical referee physician through section 8123(a).
Under the Federal (FECA) Procedure Manual, the Director has exercised discretion to
implement practices pertaining to the selection of the impartial medical referee. Unlike second
opinion physicians, the selection of referee physicians is made from a strict rotational system.19
OWCP will select a physician who is qualified in the appropriate medical specialty and who has
no prior connection with the case.20 Physicians who may not serve as impartial specialists
include those employed by, under contract to or regularly associated with federal agencies;21
physicians previously connected with the claim or claimant or physicians in partnership with
those already so connected22 and physicians who have acted as a medical consultant to OWCP.23
The fact that a physician has conducted second opinion examinations in connection with FECA
claims does not eliminate that individual from serving as an impartial referee in a case in which
he or she has no prior involvement.24
In turn, the Director has delegated authority to each district OWCP for selection of the
referee physician by use of the Medical Management Application (MMA) within iFECS.25 This
15

The Board has noted that the terms of section 8123(a) are not clear and unambiguous. Melvina Jackson, supra
note 9. The Board found that the definition of the term examination under FECA was sufficiently broad in scope as
to encompass the interpretation of an examination by OWCP’s medical adviser. Id. at 448. To effectuate the
purpose of the medical referee provision, the Board found that a medical adviser who did not physically examine the
employee may, in appropriate circumstances, create a conflict in medical opinion. Id. at 449.
16

See, e.g., Harry D. Butler, 43 ECAB 859, 866 (1992) (the Director delegated discretion in determining the
manner by which permanent impairment is evaluated for schedule award purposes).
17

See Stephen R. Lubin, 43 ECAB 564, 569 (1992); Samuel Berlin, 4 ECAB 39 (1950).

18

See Erin J. Belue, 13 ECAB 88 (1961). See also Sutherland Stat. Const. § 65.03, 239-40 (4th ed. 1986).

19

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b) (July 2011).

20

Id. at Chapter 3.500.4(b)(1).

21

Id. at Chapter 3.500.4(b)(3)(a).

22

Id. at Chapter 3.500.4(b)(3)(b).

23

Id. at Chapter 3.500.4(b)(3)(c).

24

Id.

25

Id. at Chapter 3.500.4(b)(6) (July 2011).

7

application contains the names of physicians who are Board-certified in over 30 medical
specialties for use as referees within appropriate geographical areas.26 MMA in iFECS replaces
the prior physician directory system method of appointment.27 It provides for a rotation among
physicians from the American Board of Medical Specialties, including the medical boards of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter
A.M.A., Guides) and those physicians Board-certified with the American Osteopathic
Association.28
Selection of the referee physician is made through use of the application by a medical
scheduler. The claims examiner may not dictate the physician to serve as the referee examiner.29
The medical scheduler inputs the claim number into the application, from which the claimant’s
home zip code is loaded.30 The scheduler chooses the type of examination to be performed
(second opinion or impartial referee) and the applicable medical specialty. The next physician in
the roster appears on the screen and remains until an appointment is scheduled or the physician is
bypassed.31 If the physician agrees to the appointment, the date and time are entered into the
application. Upon entry of the appointment information, the application prompts the medical
scheduler to prepare a Form ME023, appointment notification report for imaging into the case
file.32 Once an appointment with a medical referee is scheduled the claimant and any authorized
representative is to be notified.33
Under the procedure manual, a claimant may request to participate in the selection of the
referee physician or may object to the physician selected under the MMA. In such instances, the
claimant must provide valid reasons for any request or objection to the claims examiner.34 The
right of the claimant to participate in the selection of the medical referee is not unqualified. He
or she must provide a valid reason, not limited to: (a) documented bias by the selected
physician; (b) documented unprofessional conduct by the selected physician; (c) a female
claimant who requests a female physician when gynecological examination is required; or (d) a
26

Id. at Chapter 3.500.4(b)(6)(a).

27

Id. at Chapter 3.500.5.

28

Id. at Chapter 3.500.5(a).

29

Id. at Chapter 3.500.5(b).

30

Id. at Chapter 3.500.5(c).

31

Id. The roster of physicians is not made visible to the medical scheduler under the application. The medical
scheduler may update information pertaining to whether the selected physician can schedule an appointment in a
timely manner and, if not, will enter an appropriate bypass code. Id. at Chapter 3.500.5(e-f). Upon entry of a
bypass code, the MMA will present the next physician based on specialty and zip code.
32

Id. at Chapter 3.500.5(g). The Form ME023 serves as documentary evidence that the referee appointment was
scheduled through the MMA may be reproduced and copied for the case record.
33

Id. at Chapter 3.500.4(d). Notice should include the existence of a conflict in the medical evidence under
section 8123; the name and address of the referee physician with date and time of appointment; a warning of
suspension of benefits under section 8123(d) and information on how to claim travel expenses.
34

Id. at Chapter 3.500.4(f).

8

claimant with a medically documented inability to travel to the arranged appointment when an
appropriate specialist may be located closer.35 When the reasons are considered acceptable, the
claimant will be provided with a list of three specialists available through the MMA.36 If the
reason offered is determined to be invalid, a formal denial will issue if requested.37
ANALYSIS
The Board finds that appellant has not established that she was disabled for the period
May 7, 2008 through May 10, 2009 as a result of her employment injury. While OWCP
accepted that she sustained an employment injury, appellant bears the burden to establish
through medical evidence that she was disabled during the claimed time periods and that her
disability was causally related to her accepted injury.38 The Board finds that she did not submit
sufficient rationalized medical opinion evidence explaining how the employment injury
materially worsened or aggravated her contusions and C1 fracture and caused her to be disabled
for work for the period May 7, 2008 through May 10, 2009.
On June 30, 2011 OWCP found a conflict in medical opinion between Dr. Hanley, who
found that the accepted conditions had resolved, and Dr. Kepko, who opined that appellant was
disabled and suffered residuals from the employment injury. It referred appellant to Dr. Davne, a
Board-certified orthopedic surgeon, for an impartial medical examination.
On appeal, counsel contends that Dr. Davne was not properly selected as the impartial
medical examiner and, therefore, OWCP improperly relied on his report in its decision. OWCP
has an obligation to verify that it selected Dr. Davne in a fair and unbiased manner. It maintains
records for this very purpose.39 The record contains an August 18, 2011 Form MEO23 iFECS
report stating that an impartial medical examination was scheduled with Dr. Davne. The record
also contains bypass screen shots for other Board-certified orthopedic surgeons, such as
Dr. Kirkpatrick who was bypassed under code S because he only specialized in hand injuries,
Dr. Emper and Dr. Mandel, who were bypassed under code S because they did not specialize in
face, neck and scalp injuries and Dr. Rosenfeld who was bypassed under code O because his
office was not scheduling any appointments at that time.40 The Board finds that OWCP provided
documentation and properly utilized its MMA system in selecting Dr. Davne as the impartial
medical examiner. The Board has placed great importance on the appearance as well as the fact
of impartiality and only if the selection procedures which were designed to achieve this result are
35

Id. at Chapter 3.500.4(f)(1).

36

Id. at Chapter 3.500.4(f)(1)(e)(2).

37

Id. at Chapter 3.500.4(f)(1)(e)(3).

38

See supra notes 7 to 8. See also V.P., Docket No. 09-337 (issued August 4, 2009).

39

See M.A., Docket No. 07-1344 (issued February 19, 2008).

40

Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 3.500.6
(July 2011). See also, e.g., P.M., Docket No. 12-283 (issued September 4, 2012) (where the Board found that
OWCP properly utilized its MMA system in selecting the impartial medical examiner and bypassed a physician
under code D because he did not accept DOL patients).

9

scrupulously followed may the selected physician carry the special weight accorded to an
impartial specialist. As OWCP has met its affirmative obligation to establish that it properly
followed its selection procedures, the Board finds that counsel’s argument is not substantiated.41
In his September 24, 2011 report, Dr. Davne found that appellant’s extreme limitation of
active motion on examination was a reflection of symptom magnification as during the
examination when distracted she moved her neck and lower back through a greater degree of
motion. He concluded that the November 6, 2007 injury had resolved and there were no
residuals of the accepted condition. Regarding her cervical spine, Dr. Davne found that
appellant’s complaints were not related to her C1 fracture but rather to her preexisting multiplelevel severe degenerative disc disease and opined that she did not sustain an aggravation of her
underlying and preexisting cervical degenerative disc disease at the time of the fall on
November 6, 2007. Regarding the lumbar spine, he opined that her lower back complaints were
not part of the accepted injury, were not present initially following the fall and were not related
to the employment injury but rather to her preexisting degenerative disc disease. Appellant had
no radicular complaints and there were no findings of acute injury in the lumbar spine on MRI
scan. She had some thigh numbness which, according to Dr. Davne, was not radicular.
Appellant’s EMG findings could have been consistent with lumbar radiculopathy, but he
explained that in the absence of radicular complaints it did not correlate with radiculopathy.
Dr. Davne opined that appellant did not sustain an aggravation of her underlying and preexisting
lumbar degenerative disc disease and did not experience lumbar radiculopathy as a result of the
November 6, 2007 employment injury. Although Dr. Davne found that appellant was partially
and totally disabled for periods of time, he concluded that she was not disabled for the period
May 7, 2008 through May 10, 2009.
In his reports, Dr. Kepko diagnosed chronic post-traumatic cervical and lumbosacral
facet joint syndrome and aggravation of preexisting osteoarthritis of the cervical and lumbar
spine caused by her fall on November 6, 2007. On December 6, 2010 he opined that appellant
suffered residuals from the employment injury and was totally disabled for the period
November 6, 2007 through October 14, 2008 and partially disabled for the period October 15,
2008 through February 9, 2009. Although he opined that appellant was disabled, Dr. Kepko
failed to provide a rationalized medical explanation as to why she had employment-related
residuals and how the residuals of the employment injury prevented her from continuing in her
federal employment. Thus, the Board finds that appellant has not met her burden of proof to
establish that she was disabled for work due to the employment injury.
On May 27, 2008 Dr. Park diagnosed chronic neck and low back pain secondary to
osteoarthritis of the facet joints. He indicated that appellant complained of back and neck pain
since November 6, 2007 after she fainted at work. Dr. Park failed to provide a rationalized
medical explanation as to why she had employment-related residuals and how the residuals of
the employment injury prevented her from continuing in her federal employment. Thus, the
Board finds that his report is not sufficient to establish appellant’s claim.
41

Cf. H.W., Docket No. 10-404 (issued September 28, 2011) (where the Form MEO23 IFECS report was the only
documentation of the scheduled impartial medical specialist examination. There were no screen shots substantiating
the selection of the impartial medical specialist. The Board remanded the case by an order for selection of another
impartial medical specialist and the issuance of an appropriate decision following any further development).

10

In support of her claim, appellant submitted reports from Dr. Schulze, who failed to offer
any probative medical opinion on whether she was disabled on the dates at issue due to her
accepted conditions, his reports are of diminished probative value.42
Appellant has not submitted any rationalized medical evidence establishing that she was
disabled during the period May 7, 2008 through May 10, 2009 causally related to the
employment injury. Thus, she has not met her burden of proof to establish that she is entitled to
compensation for any disability.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
disability for the period May 7, 2008 through May 10, 2009 was causally related to her
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 14, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 11, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
42

See Sandra D. Pruitt, 57 ECAB 126 (2005). See also V.P., supra note 38.

11