United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Augusta, SC, Employer
__________________________________________

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

Docket No. 13-402
Issued: August 23, 2013

Case Submitted on the Record

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

JURISDICTION
On December 10, 2012 appellant filed a timely appeal from an October 17, 2012 decision
of the Office of Workers’ Compensation Programs (OWCP) denying a schedule award. 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 the case.
ISSUE
The issue is whether appellant has established permanent impairment due to her workrelated injuries.
On appeal, appellant contends that the medical evidence is sufficient to establish
entitlement to a schedule award. She contends that she has cervical spondylosis with
radiculopathy and partial loss of use of the right arm.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 30, 2008 appellant, then a 53-year-old rural carrier, filed a traumatic injury
claim alleging that, while she was delivering mail, her motor vehicle was struck by a passing
18-wheeler. She alleged injury to her chest and right shoulder bruising. OWCP accepted
appellant’s claim for sprain of the neck, right shoulder and upper arm and other specified sites, a
single episode of depression, post-traumatic stress disorder, adhesive capsulitis of the right
shoulder, aggravation of cervical spondylosis with myelopathy, other syndromes affecting the
cervical region, brachial neuritis or radiculitis not otherwise specified, and unspecified
mechanical complication of internal orthopedic device, implant and graft. It paid wage-loss
compensation and medical benefits.
On January 21, 2010 appellant underwent a C5-6, C6-7 anterior cervical discectomy,
fusion with allograft and plating. On February 10, 2010 she underwent an anterior cervical
fusion with Medtronic stackable age, also with autograft and allograft bone. On February 12,
2010 appellant underwent a C5 to C7 posterior cervical fixation with vertex infusion with
somatosensory motor-evoked potential monitoring.
On July 28, 2010 OWCP referred appellant for a second opinion. In an August 13, 2010
report, Dr. James Bethea, a Board-certified orthopedic surgeon, noted that she had neck pain
status post three surgical procedures and adhesive capsulitis of the right shoulder. He found that
appellant had no neurological deficit in the upper extremities or abnormalities in the lower
extremities on neurological examination. Appellant’s right shoulder adhesive capsulitis had not
resolved and she had some restriction of right shoulder movement. Dr. Bethea also noted that
the cervical spondylosis with myelopathy had not resolved. He stated that appellant’s neck
sprain and shoulder sprain were not active problems and that there was no evidence of brachial
neuritis or radiculitis. Dr. Bethea noted no other residuals from her 2008 employment injury.
He stated that continued pain was to be expected but that no further treatment was needed for
appellant’s cervical spine, but she needed further treatment for her right shoulder.
In a June 5, 2011 note, Dr. Gregory Oetting, a treating Board-certified neurosurgeon,
stated that appellant reached maximum medical improvement on August 20, 2010. He noted that
she described significant neck pain and spasms that were chronic in nature, as well as decreased
range of motion and significant numbness and tingling and lack of coordination in the right hand
with decreased grip strength. Dr. Oetting stated that this was not unexpected with significant
radiculopathies she was having prior to surgery. He did not believe that appellant could engage
in her previous employment.
In a November 1, 2011 report, a physician’s assistant advised that appellant had reached
maximum medical improvement in February 2011 and her radicular issues had resolved. He
indicated that she was not going to be able to work at her previous place of employment. A duty
status report diagnosed cervical spondylosis and cervical radiculopathy. The signature on this
form is not very legible, but appears to be that of the physician’s assistant.
On February 6, 2012 appellant filed a claim for a schedule award. She did not submit
any supporting documentation for the schedule award.

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On April 13, 2012 OWCP referred the case record to Dr. H.P. Hogshead, a medical
adviser, for a determination as to any permanent impairment. On April 16, 2012 Dr. Hogshead
listed the date of maximum medical improvement as February 2011. He noted that appellant had
three surgical procedures on the cervical spine with good results. Dr. Hogshead noted that
Dr. Bethea did not find evidence of a cervical nerve root deficit and the attending physician’s
examination of November 1, 2011 was in agreement that there were no radicular issues. He
noted that OWCP recognized only extremity impairment resulting from spinal nerve root deficit.
In the absence of demonstrated radiculopathy, there was no impairment to the upper extremities.
Appellant had no impairment of the right or left arm.
On May 8, 2012 OWCP denied appellant’s claim for a schedule award.
On June 5, 2012 appellant requested review of the written record by OWCP’s hearing
representative.
By decision dated October 17, 2012, OWCP’s hearing representative affirmed the May 8,
2012 decision denying a schedule award.
LEGAL PRECEDENT
FECA provides that, if there is permanent disability involving the loss or loss of use of a
member or function of the body, the claimant is entitled to a schedule award for the permanent
impairment of the scheduled member or function.2 Neither FECA nor the regulations specify the
manner in which the percentage of impairment for a schedule award shall be determined. For
consistent results and to ensure equal justice for all claimants OWCP has adopted the A.M.A.,
Guides as the uniform standard applicable to all claimants.3 For schedule awards after May 1,
2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides.4
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the implementing regulations.5 As neither FECA nor its regulations provide for
the payment of a schedule award for the permanent loss of use of the body or back as a whole, no
The Board notes that section
claimant is entitled to such a schedule award.6
8101(19) specifically excludes the back from the definition of organ.7 However, a claimant may
be entitled to a schedule award for permanent impairment to an upper or lower extremity even

2

5 U.S.C. § 8107. The section enumerates specific members or functions of the body for which a schedule award
is payable and the maximum number of weeks of compensation to be paid; additional members of the body are
found at 20 C.F.R. § 10.404(a).
3

A. George Lampo, 45 ECAB 441 (1994).

4

FECA Bulletin No. 09-03 (issued March 15, 2009).

5

D.N., Docket No. 11-906 (issued January 23, 2012); Thomas J. Englehart, 50 ECAB 319 (1999).

6

See D.N.¸ 59 ECAB 576 (2008); Jay K. Tomokiyo, 51 ECAB 361 (2000).

7

5 U.S.C. § 8101(19).

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though the cause of impairment originated in the neck, shoulders or spine.8 A schedule award is
not payable for an impairment of the whole body.9
Before the A.M.A., Guides can be utilized, a description of appellant’s impairment must
be obtained from his physician. In obtaining medical evidence required for a schedule award,
the evaluation made by the attending physician must include a description of the impairment
including, where applicable, the loss in degrees of active and passive motion of the affected
member or function, the amount of any atrophy or deformity, decrease in strength or disturbance
of sensation or other pertinent descriptions of the impairment. This description must be in
sufficient detail so that the claims examiner and others reviewing the file will be able to clearly
visualize the impairment with its resulting restrictions and limitations.10
ANALYSIS
OWCP accepted appellant’s claim sprains of the neck, right shoulder and upper arm and
other specified sites, adhesive capsulitis of the right shoulder, an aggravation cervical
spondylosis with myelopathy, and other syndromes affecting cervical region, brachial neuritis or
radiculitis not otherwise specified, and unspecified mechanical complications of the internal
orthopedic device, implant and graft. Appellant underwent three surgeries on her cervical spine.
She claimed a schedule award, which was denied in decisions dated May 8 and
October 17, 2012.
The Board finds that appellant has not submitted sufficient medical evidence to establish
that she sustained permanent impairment of a scheduled body member causally related to the
accepted cervical conditions. FECA does not authorize schedule awards for permanent
impairment of the spine or whole person.11 Dr. Bethea noted some restriction in appellant’s right
shoulder movement, but did not address whether this resulted in any permanent impairment. He
noted that he did not find evidence of cervical radiculopathy. Dr. Oetting noted decreased range
of motion and significant numbness and tingling and lack of coordination in the right hand with
decreased grip strength. He stated that this was not unexpected with the significant
radiculopathies appellant was having prior to surgery. Dr. Oetting did not provide support for
permanent impairment to either upper extremity or address any radicular symptoms following
surgery. OWCP’s medical adviser found that there were no radicular issues. In the absence of
radiculopathy, there was no upper extremity impairment resulting from cervical nerve root
deficit. Appellant has the burden to submit medical evidence establishing permanent impairment
of a scheduled member. OWCP properly denied her claim for a schedule award.

8

J.Q., 59 ECAB 366 (2008); Thomas J. Engelhart, supra note 5.

9

N.M., 58 ECAB 273 (2007); Marilyn S. Freeland, 57 ECAB 607 (2006).

10

D.M., Docket No. 11-775 (issued October 11, 2011); Peter C. Belkind, 56 ECAB 580 (2005); Vanessa Young,
55 ECAB 575 (2004).
11

A.S., Docket No. 11-2097 (issued May 10, 2012).

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Appellant may request a schedule award or an increased schedule award based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established entitlement to a schedule award due to
her work-related injuries.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 17, 2012 is affirmed.
Issued: August 23, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 12-196
Issued: May 24, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 9, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) June 7, 2011 decision denying her emotional condition claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she developed an
emotional condition in the performance of duty.
On appeal, appellant alleges that OWCP did not request additional medical evidence in
the processing of her claim. She also contends that the medical evidence of record establishes
that she sustained an emotional condition in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 26, 2008 appellant, a 49-year-old mail processing clerk, filed an occupational
disease claim alleging that she sustained an emotional condition due to factors of her federal
employment. This case is before the Board for the second time. In its October 1, 2010 decision,
the Board found that appellant had established compensable factors of employment, in that she
was required to work overtime in order to complete assignments, performed tasks which
overlapped and required her to move quickly from one task to another and was required to use
inadequate equipment. Accordingly, the Board remanded the case to OWCP for analysis and
development of the medical evidence.2 The findings of fact and conclusions of law from the
prior decision are hereby incorporated by reference.
Relevant medical evidence of record included disability slips and notes dated
September 11, 2008 to February 26, 2009 from Dr. Andrea Pedano, a Board-certified osteopath
specializing in family medicine. In a September 11, 2008 disability slip, Dr. Pedano stated that
she had been treating appellant for an acute stress reaction since August 22, 2008.3 She
recommended that appellant stay out of work until she was evaluated by an occupational
medicine network and had received counseling. On January 19, 2009 Dr. Pedano stated that
appellant, who was under her care for post-traumatic stress disorder (PTSD) and “corruption in
the U.S.P.S,” would be able to return to work full duty on January 21, 2009. On February 3,
2009 she restricted appellant to working only in her assigned installation. In a February 26, 2009
disability slip, Dr. Pedano stated that appellant would be out of work indefinitely for PTSD and
workplace harassment.
Appellant submitted reports from Danielle Schur, a licensed social worker. In a
December 4, 2008 report, Ms. Schur stated that she had been treating appellant since
September 22, 2008 for anxiety related to work stressors and symptoms of anxiety, which
manifested in insomnia, hives, skin rashes, headaches, difficulty breathing, stomach issues and
an overall mistrust of others. She stated:
“[Appellant] is a very intelligent, highly motivated and insightful woman. [She]
has been enduring significant workplace stress induced by harassment/
intimidation and unethical/fraudulent practices. [Appellant] has been pressured to
engage in these activities despite repeated refusal.”
Ms. Schur indicated that the employing establishment had blatantly ignored appellant’s
concerns, thereby exacerbating her anxiety levels. She recommended that appellant remain out
of work until her concerns were addressed.

2

Docket No. 10-181 (issued October 1, 2010).

3

The record contains a September 4, 2008 hospital discharge instructions relating to the condition of stress
reaction.

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In a note dated February 3, 2009, Ms. Schur indicated that appellant had experienced a
recurrence of PTSD symptoms and recommended that she return to work only in the 19050
installation.
By decision dated November 3, 2010, OWCP denied appellant’s claim on the grounds
that the medical evidence did not demonstrate that her emotional condition was causally related
to the established factors of employment.
On November 8, 2010 appellant requested a telephone conference, which was later
changed to a request for a decision on the written record. On March 22, 2011 her representative
requested that appellant be granted a 30-day period to submit additional medical evidence. No
additional evidence was submitted by appellant.
By decision dated June 7, 2011, an OWCP hearing representative affirmed the
November 3, 2010 decision. He found that the evidence was insufficient to establish that
appellant sustained an emotional condition as a result of established compensable factors of
employment.
LEGAL PRECEDENT
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.4 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.5
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.6 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.7 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
4

Dennis J. Balogh, 52 ECAB 232 (2001).

5

Id.

6

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

7

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

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disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.8
ANALYSIS
In its October 1, 2010 decision, the Board determined that appellant established
compensable employment factors with respect to her position, which required her to work
overtime in order to complete assignments, perform tasks which overlapped and to move quickly
from one task to another and to use inadequate equipment. Appellant’s burden of proof is not
discharged, however, by the fact that she has established an employment factor which may give
rise to a compensable disability under FECA. She must also submit rationalized medical
evidence establishing that her claimed condition is causally related to the accepted compensable
employment factors.9 The Board finds that appellant did not submit sufficient medical evidence
to establish that she sustained an emotional condition due to the accepted employment factors.
Appellant submitted disability slips and notes from her treating physician, Dr. Pedano,
who diagnosed PTSD. To the extent that Dr. Pedano’s reports failed to express an opinion on
the issue of causal relationship, they lack probative value. The Board has long held 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.10 In January 19, 2009 notes,
Dr. Pedano attributed appellant’s PTSD to “corruption in the U.S.P.S.” In a February 26, 2009
disability slip, she stated that appellant would be out of work indefinitely for PTSD and
workplace harassment. Neither report, however, contained a rationalized medical opinion
explaining how appellant’s PTSD was caused or exacerbated by the established employment
factors, namely working overtime; performing overlapping tasks; and using inadequate
equipment.11 Therefore, they are of limited probative value and insufficient to establish her
claim.
Appellant submitted reports from Danielle Schur, a licensed social worker. On
December 4, 2008 Ms. Schur stated that she had been treating appellant since September 22,
2008 for anxiety related to work stressors and symptoms of anxiety, induced by
“harassment/intimidation and unethical/fraudulent practices.” She indicated that the employing
establishment had blatantly ignored appellant’s concerns, thereby exacerbating her anxiety
levels. On February 3, 2009 Ms. Schur indicated that appellant had experienced a recurrence of
PTSD symptoms and recommended that she return to work only in the 19050 installation.
Although she suggested an employment-related cause of appellant’s diagnosed condition, her
reports did not provide a clear opinion that appellant’s stress condition was related to the specific

8

Dennis M. Mascarenas, 49 ECAB 215 (1997).

9

George H. Clark, 56 ECAB 162 (2004).

10

Dennis M. Mascarenas, supra note 8.

11

In its October 1, 2010 decision, the Board found that appellant had not established a compensable factor of
employment with regard to harassment or abusive conduct on the part of the employing establishment.

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accepted employment factors, rather than to general perceptions of harassment or other perceived
abuse.12
OWCP advised appellant that it was her responsibility to provide a comprehensive
medical report which described her symptoms, test results, diagnosis, treatment and doctor’s
opinion, with medical reasons, on the cause of his condition. Appellant failed to submit
appropriate medical documentation in response to OWCP’s request. As there is no probative,
rationalized medical evidence addressing how appellant’s claimed condition was caused or
aggravated by accepted factors of her employment, appellant has not met her burden of proof to
establish that she sustained an emotional condition in the performance of duty causally related to
factors of employment. The Board, therefore, affirms OWCP’s June 7, 2011 decision.
On appeal, appellant alleges that OWCP did not request additional medical evidence in
the processing of her claim. As noted in the Board’s October 1, 2010 decision, however, in a
letter dated November 6, 2008, OWCP requested additional factual and medical evidence from
appellant, including a physician’s report containing a diagnosis and an opinion explaining how
the diagnosed condition was causally related to the identified employment factors.
Appellant also contends that the medical evidence of record establishes that she sustained
an emotional condition in the performance of duty. For reasons stated, the Board finds that she
has failed to meet her burden of proof to establish that she developed an emotional condition in
the performance of duty.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition causally related to compensable factors of her federal employment.

12

A social worker is not a physician under FECA. 5 U.S.C. § 8101(2); see Earnest St. Pierre, 51 ECAB 623, 626
(200) (reports of a social worker do not constitute competent medical evidence as a social worker is not a physician
as defined by 5 U.S.C. § 8101(2).

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ORDER
IT IS HEREBY ORDERED THAT the June 7, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 24, 2012
Washington, DC

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

Alec J. Koromilas, 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
__________________________________________
G.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
TENNESSEE VALLEY HEALTH CARE
SYSTEM, Nashville, TN, Employer
__________________________________________

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

Docket No. 12-269
Issued: June 21, 2012

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 November 26, 2011 appellant filed a timely appeal of an August 30, 2011 schedule
award 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 schedule award case.
ISSUE
The issue is whether appellant has more than three percent impairment of the left arm, for
which he received a schedule award.
On appeal, appellant contends that the medical evidence of record is sufficient to
establish greater than three percent impairment. He further contends that the medical opinion of
an OWCP medical adviser is not entitled to be the weight of medical evidence since he was
neither examined nor treated by the physician.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 In a January 12, 2012 decision, the
Board affirmed an OWCP March 9, 2011 decision which found that appellant failed to establish
that he was entitled to 16 hours of wage-loss compensation on January 7, 10, 12 and 21, 2011
due to home physical therapy causally related to his accepted employment injury. The facts of
the case as set forth in the Board’s prior decision are incorporated herein by reference. The facts
and the history relevant to the present appeal are hereafter set forth.
OWCP accepted that on March 4, 2010 appellant, then a 39-year-old police officer
instructor, sustained an acromioclavicular (ACL) sprain of the left shoulder while training at the
employing establishment’s law enforcement training center. It authorized left shoulder
arthroscopic release surgeries on August 4 and December 22, 2010 by Dr. J. Michael Kioschos,
an attending Board-certified orthopedic surgeon.
On June 16, 2011 appellant filed a claim for a schedule award.
In a June 9, 2011 medical report, Dr. Kioschos stated that appellant was six months post
left shoulder arthroscopic intracapsular and extracapsular release and debridement. Appellant
was a little stronger than his last visit but still had limitations. He had successfully handcuffed
an individual the prior day at the employing establishment but experienced pain. On physical
examination, Dr. Kioschos reported near symmetric cuff strength. Active elevation was variable
depending on the plane of elevation. External rotation was also variable. Dr. Kioschos advised
that appellant was status post left subacromial decompression, distal clavicle excision and
superior labrum anterior and posterior (SLAP) repair. He reached maximum medical
improvement on the date of examination. Appellant could return to his regular work duties
without restrictions. Dr. Kioschos determined that he had five percent impairment of the left arm
or three percent impairment of the whole person based on the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
On June 22, 2011 Dr. Howard P. Hogshead, an OWCP medical adviser Board-certified in
orthopedic surgery, reviewed the medical record and appellant’s August and December 2010 left
shoulder surgeries. He advised that appellant reached maximum medical improvement on
June 9, 2011. Dr. Hogshead stated that Dr. Kioschos failed to provide an explanation for his
opinion that appellant had five percent impairment of the left upper extremity. He noted that the
sixth edition of the A.M.A., Guides recommended that only one condition in a region could be
used for impairment. This would clearly be the ACL strain which would be used in appellant’s
best interest. Dr. Hogshead utilized the Shoulder Regional Grid, Table 15-5, A.M.A., Guides
403 and determined that appellant had a class 1 impairment with a grade C default value of three
percent. He assessed a grade 1 modifier each for Functional History (GMFH)3 and Physical
Examination (GMPE).4 Dr. Hogshead noted that a grade modifier for Clinical Studies (GMCS)
was not applicable based on appellant’s surgeries. He determined that the net adjustment for the

2

Docket No. 11-1159 (issued January 12, 2012).

3

A.M.A., Guides 406, Table 15-7.

4

Id. at 408, Table 15-8.

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above modifiers equaled zero. Dr. Hogshead concluded that appellant had three percent
impairment of the left upper extremity.
By letter dated July 25, 2011, OWCP requested that Dr. Kioschos submit a report as to
when appellant attained maximum medical improvement and a detailed description of the
impairment and a schedule award rating according to the sixth edition of the A.M.A., Guides.
OWCP received duplicate copies of Dr. Kioschos’ December 22, 2010 and June 9, 2011
reports.
In an August 30, 2011 decision, OWCP granted appellant a schedule award for three
percent impairment of the left upper extremity. The award ran for the period June 10 to
August 4, 2011.
LEGAL PRECEDENT
The schedule award provision of FECA,5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members, functions and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.7 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.8 For decisions issued after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.9
For decisions issued after May 1, 2009, the sixth edition will be used.10
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS.11 The
net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).12
ANALYSIS
OWCP accepted appellant’s claim for a left shoulder sprain. On August 30, 2011
appellant received a schedule award for three percent impairment of the left upper extremity.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

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

8

Supra note 6.

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

10

Id. at Chapter 3.700, Exhibit 1 (January 2010).

11

A.M.A., Guides 494-531.

12

Id. at 521.

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The Board finds that he did not meet his burden of proof to establish that he sustained greater
impairment.
On June 9, 2011 appellant’s attending physician, Dr. Kioschos, opined that appellant had
reached maximum medical improvement. He based his opinion on findings of near symmetric
cuff strength and variable active elevation and external rotation. Dr. Kioschos determined that
appellant had five percent impairment of the left upper extremity and three percent impairment
of the whole person under the sixth edition of the A.M.A., Guides. He concluded that appellant
could return to his regular work duties with no restrictions. The Board finds that this report is
not sufficient to constitute the weight of the medical opinion evidence for schedule award
purposes as Dr. Kioschos did not explain his finding with reference to tables in the sixth edition
of the A.M.A., Guides. Further, the Board notes that FECA does not authorize schedule awards
for loss of use of the body as a whole.13
It is well established that, when the attending physician fails to provide an estimate of
impairment conforming to the A.M.A., Guides, his or her opinion is of diminished probative
value in establishing the degree of permanent impairment and OWCP may rely on the opinion of
its OWCP medical adviser to apply the A.M.A., Guides to the findings of the attending
physician.14 Dr. Hogshead, the medical adviser, reviewed the medical record and found that
appellant had three percent impairment of the left upper extremity.15 He also found that
appellant reached maximum medical improvement on June 9, 2011. Dr. Hogshead correctly
stated that Dr. Kioschos failed to provide an explanation for his opinion that appellant had five
percent impairment of the left upper extremity. He utilized the Shoulder Regional Grid, Table
15-5, A.M.A., Guides 403 and determined that appellant had a class 1 impairment with a grade C
default value of three percent. Dr. Hogshead found a grade 1 modifier for functional history and
physical examination. He stated that a grade modifier for clinical studies was not applicable.
Utilizing the net adjustment formula discussed above, Dr. Hogshead found that GMFH-CDX +
GMPE-CDX or (1-1) + (1-1) = zero. As there was no net adjustment he opined that appellant
had three percent impairment of the left upper extremity.
The Board finds that Dr. Hogshead properly applied the sixth edition of the A.M.A.,
Guides to the clinical findings of Dr. Kioschos, to rate impairment of appellant’s left upper
extremity. The weight of medical evidence rests with his opinion and establishes the extent of
permanent impairment in this case.
On appeal, appellant asserted that he had more than three percent impairment of his left
upper extremity. The issue in this claim is medical in nature and must be resolved by the
submission of probative medical evidence.16 Appellant did not submit sufficiently rationalized
medical evidence addressing the extent of his permanent impairment. Dr. Kioschos’ report
failed to provide an explanation for his five percent left upper extremity impairment rating under
13

D.A., Docket No. 10-2172 (issued August 3, 2011); J.Q., 59 ECAB 366 (2008).

14

J.B., Docket No. 09-2191 (issued May 14, 2010); see also A.M.A., Guides 521.

15

The Board notes that it is appropriate for an OWCP medical adviser to review the clinical findings of the
treating physician to determine the permanent impairment. See Federal (FECA) Procedure Manual, supra note 7,
Chapter 3.700.3 (January 2010).
16

See Jaja K. Asaramo, 55 ECAB 200, 206 (2004).

4

the sixth edition of the A.M.A., Guides. As stated, the whole person impairment rating is not
allowed for a schedule award under FECA.17 Dr. Hogshead provided a left upper extremity
impairment rating in conformance with the A.M.A., Guides and based on Dr. Kioschos’ findings.
His report is sufficient to establish that appellant had no more than three percent impairment of
the left upper extremity.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has failed to establish that he has more than three percent
impairment of the left upper extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the August 30, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 21, 2012
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

17

See cases cited, supra note 11.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
TENNESSEE VALLEY AUTHORITY,
COLBERT FOSSIL PLANT,
Tuscumbia, AL, Employer
__________________________________________

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

Docket No. 08-1109
Issued: January 15, 2009

Case Submitted on the Record

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

JURISDICTION
On March 4, 2008 appellant filed an appeal of a decision of the Office of Workers’
Compensation Programs dated November 2, 2007 denying his occupational disease claim and a
December 21, 2007 nonmerit decision denying his request for a merit review. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the claim and the
nonmerit denial of a merit review.
ISSUES
The issues are: (1) whether appellant established that he sustained a right shoulder
condition in the performance of duty; and (2) whether the Office properly denied his
November 28, 2007 request for a merit review.
FACTUAL HISTORY
On July 16, 2007 appellant, then a 51-year-old assistant unit operator, filed an
occupational disease claim for a torn right rotator cuff with related conditions sustained on or

before March 3, 1989.1 He underwent right shoulder arthroscopy in January 1991. Appellant’s
position required lifting, pulling and pushing from 60 to 75 pounds, working above shoulder
height and exerting pressure to turn large valves.
In an August 7, 2007 letter, the Office advised appellant of the medical and factual
evidence needed to establish his claim. It requested that he submit a rationalized report from his
attending physician explaining how and why work factors would cause the claimed condition.
In July 3, 1996 and March 1, 2007 reports, Dr. Charles Howell, an employing
establishment physician, diagnosed C4-5 spondylosis and prescribed light duty.2 Dr. John
Murphy, an attending Board-certified orthopedic surgeon, submitted reports from May 31, 2006
to January 21, 2007 noting a history of right shoulder arthroscopy with pain on reaching and
pulling at work. Appellant’s symptoms improved with conservative treatment.
By November 2, 2007 decision, the Office denied the claim on the grounds that causal
relationship was not established. It found that appellant submitted insufficient medical evidence
explaining how and why the identified work factors would cause the claimed right shoulder
condition.
In a November 28, 2007 form, appellant requested reconsideration. He did not submit
any additional evidence.
By decision dated December 21, 2007, the Office denied merit review on the grounds
that appellant’s November 23, 2007 letter did not raise substantive legal questions or include
new, relevant evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.4 These are the essential

1

The Office assigned the July 16, 2007 claim File No. xxxxxx051. It accepted a right shoulder condition
sustained on or before March 3, 1989 under File No. xxxxxx775. File No. xxxxxx775 is not before the Board on the
present appeal. As of August 3, 2007, appellant also claimed a recurrence of disability under File No. xxxxxx398,
regarding a neck injury.
2

Appellant also submitted occupational health clinic nurse’s notes dated from June 1994 to September 1999.

3

5 U.S.C. §§ 8101-8193.

4

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

2

elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medial certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6
ANALYSIS -- ISSUE 1
Appellant claimed that he sustained a right shoulder condition due to work factors on or
before March 3, 1989. He submitted medical reports indicating a history of right shoulder
arthroscopy. Appellant’s job entailed heavy lifting and overhead reaching. However, he did not
submit sufficient rationalized medical evidence explaining how and why work factors would
cause or contribute to his right shoulder condition.
Dr. Howell, an employing establishment physician, did not discuss appellant’s right
shoulder. Dr. Murphy, an attending Board-certified orthopedic surgeon, related appellant’s
account of right shoulder pain while reaching and pulling at work. However, he did not address
how work factors caused or aggravated the claimed right shoulder condition. Dr. Murphy’s
opinion is insufficiently rationalized to establish causal relationship.7 The Board notes that pain
is considered a symptom, not a diagnosis and does not constitute a basis for payment of
compensation.8
The Board notes that appellant was advised by the August 7, 2007 Office letter of the
necessity of submitting medical evidence explaining how and why work factors would cause or

5

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

6

Solomon Polen, 51 ECAB 341 (2000).

7

Deborah L. Beatty, 54 ECAB 340 (2003) (medical reports not containing rationale on causal relationship are
entitled to little probative value).
8

See Robert Broome, 55 ECAB 339 (2004).

3

contribute to the claimed shoulder condition. Appellant did not submit such evidence.
Therefore, he failed to meet his burden of proof in establishing causal relationship.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,9
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.10 Section
10.608(b) provides that when an application for review of the merits of a claim does not meet at
least one of the three requirements enumerated under section 10.606(b)(2), the Office will deny
the application for reconsideration without reopening the case for a review on the merits.11
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.12 Appellant need only
submit relevant, pertinent evidence not previously considered by the Office.13 When reviewing
an Office decision denying a merit review, the function of the Board is to determine whether the
Office properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.14
ANALYSIS -- ISSUE 2
The Office denied appellant’s occupational disease claim by November 2, 2007
decision. Appellant requested reconsideration by November 28, 2007 form. He did not submit
additional evidence or argument. Appellant merely checked a box on the form indicating that he
requested reconsideration.
Appellant’s November 28, 2007 form, the only evidence submitted in support of his
request for reconsideration, does not establish that the Office improperly refused to reopen his
claim for a review of the merits under section 8128(a) of the Act. He did not show that the
Office erroneously applied or interpreted a specific point of law, advance a relevant legal
argument not previously considered by the Office or constitute relevant and pertinent evidence
not previously considered by the Office. Therefore, the Office properly denied appellant’s
request for a merit review.

9

5 U.S.C. § 8128(a).

10

20 C.F.R. § 10.606(b)(2).

11

20 C.F.R. § 10.608(b). See also T.E.., 59 ECAB ___ (Docket No. 07-2227, issued March 19, 2008).

12

Helen E. Tschantz, 39 ECAB 1382 (1988).

13

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

14

Annette Louise, 54 ECAB 783 (2003).

4

CONCLUSION
The Board finds that appellant has not established that he sustained a right shoulder
condition in the performance of duty. The Board further finds that the Office properly denied
appellant’s November 28, 2007 request for a merit review.
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 21 and November 2, 2007 are affirmed.
Issued: January 15, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Tucson, AZ,
Employer
__________________________________________

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

Docket No. 06-1721
Issued: March 5, 2007

Case Submitted on the Record

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

JURISDICTION
On July 21, 2006 appellant filed a timely appeal of the April 25, 2006 merit decision of
the Office of Workers’ Compensation Programs, which denied her claim for a consequential
injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the
merits of appellant’s claim.1
ISSUE
The issue is whether appellant developed carpal tunnel syndrome as a consequence of her
employment-related right shoulder injury and approved surgery.

1

The record also includes a February 14, 2006 schedule award for an additional nine percent impairment of the
right upper extremity. In her appeal to the Board, appellant identified the April 25, 2006 decision as the subject of
her appeal, but she made no mention of the February 14, 2006 schedule award. Therefore, the Board will limit its
review to the Office’s April 25, 2006 decision.

FACTUAL HISTORY
Appellant, a 52-year-old modified mail processing clerk, has an accepted claim for a
March 27, 2000 right rotator cuff strain (file number 13-1213615). The Office authorized two
right shoulder arthroscopic procedures, which were performed on October 3, 2000 and
September 13, 2001. Appellant returned to limited-duty work on October 11, 2001. She
sustained another employment-related injury on December 15, 2002, which the Office accepted
for left shoulder acromioclavicular strain (file number 13-2068598). Appellant underwent
arthroscopic surgery for the left shoulder on June 17, 2003 and returned to limited duty on
August 27, 2003.
On July 24, 2004 appellant filed an occupational disease claim for right carpal tunnel
syndrome.2 She attributed her condition to her employment duties and to the surgeries
associated with her right shoulder injury. The Office denied the claim (file number 13-2109885)
by decision dated September 22, 2004 and a hearing representative affirmed the denial on
March 4, 2005. The Office found that appellant had not established that her right carpal tunnel
syndrome was causally related to the implicated employment factors. On appeal, the Board
affirmed the denial by decision dated August 5, 2005.3 The Board found that the medical
evidence, particularly Dr. Butler’s September 13, 2004 opinion, did not attribute appellant’s right
carpal tunnel syndrome to a repetitive work injury, but instead to her previous shoulder
surgeries.4
Appellant did not subsequently pursue file number 13-2109885. She instead filed a
September 2, 2005 claim for a consequential injury associated with the March 27, 2000 right
shoulder injury. Appellant also claimed wage-loss compensation from the time of her
December 30, 2004 carpal tunnel release until she returned to work on January 26, 2005.
The Office referred appellant to Dr. Jon T. Abbott, a Board-certified orthopedic surgeon.
Regarding the cause of appellant’s carpal tunnel syndrome, Dr. Abbott reported on
November 21, 2005 that he could not attribute her symptoms and the need for a carpal tunnel
release to her right shoulder surgeries. He explained that acutely after shoulder surgery it was
certainly possible that increased edema could contribute to carpal tunnel syndrome. However, in
this instance, appellant’s first complaint of symptoms postdated her September 13, 2001 surgery
2

She would later undergo a right carpal tunnel release on December 30, 2004. Dr. Thomas E. Butler, Jr., a
Board-certified orthopedic surgeon, performed all four surgical procedures involving appellant’s left and right upper
extremities.
3

Docket No. 05-1096 (issued August 5, 2005). The Board’s August 5, 2005 decision is incorporated herein by
reference.
4

Dr. Butler initially diagnosed right carpal tunnel syndrome on July 19, 2004. At that time, he noted that
appellant had undergone several shoulder surgeries, which could certainly exacerbate or worsen carpal tunnel
syndrome. Dr. Butler further stated that he would relate appellant’s carpal tunnel syndrome to her shoulder surgery
as opposed to her occupation as a mail carrier. In his September 13, 2004 report, Dr. Butler elaborated on the issue
of causal relationship noting that shoulder surgery produces bleeding, which in turn produces swelling in the upper
extremity. He explained that it was quite common to see carpal tunnel syndrome worsen following arm swelling,
whether it be related to trauma, pregnancy, bleeding, hypothyroidism, fluid retention, rapid weight gain or hormonal
fluctuations. Dr. Butler was of the opinion that appellant’s shoulder surgeries worsened her carpal tunnel syndrome.

2

by more than two years.5 Dr. Abbott also noted that appellant’s treating physician, Dr. Butler,
did not mention carpal tunnel syndrome in his charts until after appellant had undergone an
electromyography and nerve conduction study in July 2004. Dr. Abbott stated that appellant had
multiple predisposing factors to the development of carpal tunnel syndrome, including gender,
age and a history of hypothyroidism.6
In a decision dated December 6, 2005, the Office denied appellant’s claim for a
consequential injury. The Office hearing representative subsequently reviewed the written
record and affirmed the prior denial by decision dated April 25, 2006.
LEGAL PRECEDENT
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment unless it is the result of an independent
intervening cause attributable to one’s intentional misconduct.7 Thus, a subsequent injury, be it
an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct
and natural result of a compensable primary injury.8
ANALYSIS
The medical evidence is insufficient to establish that appellant’s right carpal tunnel
syndrome and subsequent surgery are causally related to the accepted March 27, 2000 right
shoulder injury. Appellant claimed that she sustained a consequential injury as a result of the
Office approved surgeries performed on October 3, 2000 and September 13, 2001. While
Dr. Butler supported this position, the Board finds that his opinion, as reflected in the July 19 and
September 13, 2004 reports, is not rationalized.9 He did not identify any specific postsurgical
findings to support his position that bleeding and swelling in the right upper extremity worsened
appellant’s carpal tunnel syndrome. Dr. Butler also failed to explain the almost three-year lapse
between appellant’s September 13, 2001 surgery and his diagnosis of right carpal tunnel
syndrome in July 2004. While he mentioned that hypothyroidism was a potential causative
factor in the development of carpal tunnel syndrome, he did not specifically comment on what
5

Dr. Abbott noted that appellant first reported numbness in the hands “maybe two years ago.” However, her
husband, who accompanied appellant to the examination, commented that she could “possibly even [have] had some
numbness since 2001.”
6

The record indicates that appellant was treated for Grave’s disease (hyperthyroidism) in February 2002, and she
was advised at that time that there was a high likelihood of developing hypothyroidism as a result of the
recommended iodine therapy. Dr. Abbott noted in his report that appellant’s past medical history was significant for
hypothyroidism and that she was previously hyperthyroid and had undergone chemical ablation several years prior.
7

Mary Poller, 55 ECAB 483, 487 (2004).

8

Id.; Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

9

Causal relationship is a medical question that can generally be resolved only by rationalized medical opinion
evidence. See Robert G. Morris, 48 ECAB 238 (1996). In order to be considered rationalized, a physician’s opinion
on causal relationship must be expressed in terms of a reasonable degree of medical certainty and must be supported
by medical rationale. Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

affect, if any, appellant’s thyroid condition had in the development or worsening of her carpal
tunnel syndrome.
In contrast, Dr. Abbott, the Office referral physician, provided a well-reasoned opinion
negating a causal relationship between appellant’s carpal tunnel syndrome and her right shoulder
injury and subsequent surgeries. He was unconvinced of there being a causal relationship
because of the two-year lapse of time between the September 2001 surgery and when appellant
first experienced numbness in her hands. Dr. Abbott also noted that Dr. Butler had not
documented any evidence of carpal tunnel syndrome until July 2004, when he obtained positive
electrodiagnostic studies. Lastly, he reasonably questioned any relationship between the prior
surgeries and carpal tunnel syndrome because of appellant’s multiple predisposing factors, which
included her prior history of hypothyroidism.
In view of Dr. Abbott’s November 21, 2005 findings and the noted deficiencies in
Dr. Butler’s July 19 and September 13, 2004 reports, the Board finds the medical evidence
insufficient to establish a consequential injury related to the March 27, 2000 accepted
employment injury.
CONCLUSION
Appellant has not established that her carpal tunnel syndrome and resultant surgery were
a consequence of her March 27, 2000 employment injury and authorized shoulder surgeries.
ORDER
IT IS HEREBY ORDERED THAT the April 25, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 5, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Nashville, TN, Employer
__________________________________________

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

Docket No. 16-0453
Issued: April 21, 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 January 11, 2016 appellant, through counsel, filed a timely appeal of an October 6,
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 to consider the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury on
February 18, 2015 in the performance of duty.
FACTUAL HISTORY
On May 5, 2015 appellant, then a 46-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that he slipped while descending steps and injured his shoulder on
February 18, 2015. On the reverse of the claim form, appellant’s supervisor initially indicated
1

5 U.S.C. § 8101 et seq.

that he received notice of appellant’s injury on February 19, 2015. However, he struck through
that date, and entered the date of May 7, 2015. Appellant’s supervisor further indicated that
appellant was injured in the performance of duty. The employing establishment also provided
appellant with an authorization for examination or treatment (Form CA-16) on May 7, 2015.
In a letter dated May 7, 2015, the employing establishment requested that OWCP deny
appellant’s claim for continuation of pay (COP) on the basis that appellant failed to meet the 30day written reporting requirement.
Dr. Charles Kaelin, an orthopedic surgeon, completed a form report on May 8, 2015 and
diagnosed rotator cuff tear of the right shoulder. He reported that appellant fell on icy steps and
tried to break his fall with his arm. Dr. Kaelin indicated with a checkmark “yes” that appellant’s
condition was caused or aggravated by his employment activity. He provided a treatment note
dated May 7, 2015 and repeated the history of injury. Dr. Kaelin reported that appellant sought
treatment from an emergency room due to right shoulder dislocation, and that his pain and loss
of range of motion had progressed since the fall at work two months prior to the examination.
He diagnosed rotator cuff tear and recommended a magnetic resonance imaging (MRI) scan.
Appellant underwent an MRI scan on May 11, 2015 which demonstrated severe
supraspinatus and anterior infraspinatus tendinosis, moderate acromioclavicular degenerative
changes, and minimal subacromial/subdeltoid bursitis. On May 15, 2015 Dr. Kaelin reviewed
appellant’s MRI scan and diagnosed right shoulder tendinosis. He provided work restrictions.
In a letter dated May 29, 2015, OWCP requested that appellant provide additional factual
and medical evidence in support of his traumatic injury claim. It asked that appellant provide
additional factual evidence supporting that his shoulder injury occurred at the time, place, and in
the manner alleged. OWCP allowed 30 days for a response.
By letter dated June 20, 2015, appellant responded to OWCP’s request for information.
He indicated that he did not file a claim immediately following his incident because he thought
his shoulder would heal. Appellant asserted that he informed his supervisor of his incident and
shoulder injury the day after it occurred, but was instructed to work through the pain. He noted
that there were no witnesses to the incident, but that he told a coworker that his shoulder was
hurting the following day.
By decision dated June 29, 2015, OWCP denied appellant’s traumatic injury claim on the
basis that he failed to submit sufficient factual evidence to support that the incident occurred as
alleged. It found that appellant failed to explain the delay in filing his claim, the immediate
effects of the injury, and whether he had sustained any additional injuries before seeking medical
treatment. OWCP noted that Dr. Kaelin’s reports were not based on the history of injury
described by appellant.
Appellant requested reconsideration and submitted additional evidence on July 7, 2015.
In a note dated July 1, 2015, Dr. Kaelin disputed OWCP’s interpretation of his reports. He
alleged, “His date of injury is February 18, 2015. On the date of his visit of May 7, 2015, it was
noted that he was making a delivery about two months ago. This in no way places the injury in

2

March and actually is two months and two weeks.” Dr. Kaelin attributed appellant’s condition to
a fall on February 18, 2015.
Dr. Kaelin examined appellant on June 4, 2015 and diagnosed right shoulder tendinosis.
He again reported that appellant’s pain occurred following a fall on icy steps when attempting to
brace himself with his arm.
By decision dated October 6, 2015, OWCP denied modification of its prior decision. It
found that Dr. Kaelin’s July 1, 2015 report was irrelevant as the issue in the case was whether
appellant had established the factual aspect of his claim. OWCP requested a statement from
appellant’s supervisor confirming that appellant reported the injury to him on February 19, 2015.
LEGAL PRECEDENT
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”2 In order to
determine whether an employee actually sustained an injury in the performance of duty, OWCP
begins with an analysis of whether fact of injury has been established. Generally, fact of injury
consists of two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred.3 The second component is whether the employment incident
caused a personal injury and generally can be established only by medical evidence.
With respect to the first component of fact of injury, the employee has the burden of
establishing the occurrence of an injury at the time, place, and in the manner alleged, by a
preponderance of the reliable, probative, and substantial evidence. An injury does not have to be
confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury in
the performance of duty, but the employee’s statements must be consistent with the surrounding
facts and circumstances and his subsequent course of action. An employee has not met his or her
burden of proof of 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. Such circumstances 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 sufficient doubt on an employee’s statements in determining whether a prima
facie case has been established. However, an employee’s statement alleging 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.4

2

20 C.F.R. § 10.5(ee).

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

D.B., 58 ECAB 464, 466-67 (2007). Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury,
Chapter 2.803.3 (August 2012).

3

ANALYSIS
The Board finds this case not in posture for a decision.
Appellant alleged that he injured his right shoulder on February 18, 2015 when he slipped
while descending steps. On the reverse of the form, appellant’s supervisor initially indicated that
he received notice of appellant’s injury on February 19, 2015 in keeping with appellant’s
statement. He later redacted this date. Furthermore, while the employing establishment
controverted appellant’s claim for continuation of pay, on the basis that he had not provided
written notice within 30 days, appellant’s supervisor supported that appellant’s injury occurred in
the performance of duty.
OWCP denied appellant’s claim on the basis that he failed to provide sufficient factual
evidence to substantiate that his employment incident occurred as alleged. In its October 6, 2015
decision, OWCP specifically requested a statement from appellant’s supervisor supporting that
appellant had informed him of the February 18, 2015 employment incident on
February 19, 2015. Proceedings under FECA are not adversarial in nature, nor is OWCP a
disinterested arbiter. While the claimant has the burden to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence particularly when such evidence
is of the character normally obtained from the employing establishment or other government
source.5 The Board has stated that once the OWCP has begun investigation of a claim, it must
pursue the evidence as far as reasonably possible. OWCP should undertake additional
development of the factual evidence to obtain the requested statement from appellant’s
supervisor confirming or denying knowledge of appellant’s employment incident of February 18,
2015 on February 19, 2015 as reported by appellant and as initially listed on the reverse of
appellant’s Form CA-1. After this and such other development as OWCP deems necessary it
should issue a de novo decision.
The Board further notes that the record contains a Form CA-16 dated May 7, 2015. If an
employing establishment properly executes a Form CA-16, which authorizes medical treatment
as a result of an employee’s claim for an employment-related injury, the Form CA-16 creates a
contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim.6 The record is silent as to
whether OWCP paid for the cost of appellant’s examination or treatment for the period noted on
the form.
CONCLUSION
The Board finds that this case is not in posture for a decision and remands the case to
OWCP for further development consistent with this opinion of the Board.

5

See Richard Kendall, 43 ECAB 790 (1992).

6

See Tracy P. Spillane, 54 ECAB 608 (2003).

4

ORDER
IT IS HEREBY ORDERED THAT the October 6, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development.
Issued: April 21, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, BARNUM STATION,
Bridgeport, CT, Employer
__________________________________________

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

Docket No. 07-1716
Issued: February 6, 2008

Case Submitted on the Record

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

JURISDICTION
On June 13, 2007 appellant filed a timely appeal from a December 15, 2006 merit
decision of the Office of Workers’ Compensation Programs finding that he did not establish a
recurrence of disability and a February 22, 2007 nonmerit decision denying his request for a
review of the written record. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case and over the February 22, 2007 nonmerit decision.
ISSUES
The issues are: (1) whether appellant has established that he sustained a recurrence of
disability beginning July 20, 2005 causally related to his February 3, 2005 employment injury;
and (2) whether the Office properly denied his request for a review of the written record as
untimely under 5 U.S.C. § 8124.
FACTUAL HISTORY
On February 3, 2005 appellant, then a 42-year-old letter carrier, filed a claim for an injury
to his knees, back and shoulders occurring on that date when he fell down stairs after a stair

broke. He stopped work on February 7, 2005. The Office accepted appellant’s claim for
contusions of the knees and hands, a sprain/strain of the right shoulder and upper arm and a
sprain/strain of the back and paid him compensation beginning March 24, 2005.
Dr. Herbert Hermele, a Board-certified orthopedic surgeon, treated appellant subsequent
to his employment injury. On May 23, 2005 he found that appellant was disabled from
employment due to a herniated lumbar disc at L4-5 and right shoulder pathology. In a progress
report dated July 11, 2005, Dr. Hermele diagnosed an L4-5 herniated disc, rotator cuff tendinosis
and mild arthropathy of the acromioclavicular (AC) joint of the right shoulder. In an
accompanying duty status report, he opined that appellant could work with restrictions of no
reaching over the right shoulder, twisting, stooping, operating a motor vehicle, squatting,
kneeling, climbing and no lifting over 20 pounds.
The employing establishment offered appellant a job offer effective July 15, 2005
consistent with Dr. Hermele’s work restrictions. In a form report dated July 18, 2005,
Dr. Hermele diagnosed a central herniated disc at L4-5 and right shoulder tendinosis and mild
AC arthropathy. He checked “yes” that the condition was caused by the February 3, 2005
employment incident of appellant falling onto his hands and knees when a step “failed.”
Dr. Hermele found that he was totally disabled from February 7 to July 18, 2005 and could
return to sedentary work with no lifting, pushing, pulling or overhead work with the right arm as
of that date.
Appellant returned to work on July 20, 2005. The employing establishment placed him
on administrative leave effective July 21, 2005. A nurse assigned to appellant’s case related that
on July 20, 2005 appellant told her that he was told that he would need to work in the lobby
which required constant standing. She spoke with the Office and the employing establishment.
The employing establishment stated that appellant would be required to work in the lobby but
would be given a chair. The Office told the nurse that the additional job duty should be added to
the offer and again sent. On July 21, 2005 appellant called the nurse and stated that he “was
walked out of the building and is on administrative leave for 30 days. Claimant stated, ‘I can
thank you for this.’ Claimant informed that [nurse] knows nothing about administrative leave
and that it was his [doctor] who determined that he had work tolerances….”
In progress reports dated July 26, 2005, Dr. Hermele diagnosed a herniated lumbar disc,
rotator cuff tendinosis and AC arthopathy. In the July 26, 2005 progress report received by the
Office on August 1, 2005, he opined that appellant’s work capacity was unchanged. In the
July 26, 2005 progress report received by the Office on June 29, 2006, Dr. Hermele indicated
that appellant should not work pending a surgical consultation. On August 15, 2005 he
diagnosed low back pain syndrome and an L4-5 herniated disc and right shoulder rotator cuff
tendinosis and AC arthropathy. Dr. Hermele recommended consultations for appellant regarding
his shoulder and back and found that he should remain off work pending the consultations.
In an August 18, 2005 electronic mail message, the nurse recommended a second opinion
examination. She noted that appellant returned to work with restrictions on July 20, 2005 and
“then, reportedly, was put on administrative leave for 30 days.”

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In a work restriction evaluation dated August 23, 2005, Dr. Hermele found that appellant
was totally disabled and recommended surgery. In a form report of the same date, he diagnosed
a herniated disc at L4-5, right shoulder rotator cuff tendinosis and right shoulder AC joint
arthropathy. Dr. Hermele checked “yes” that the condition was caused or aggravated by his
employment.
On August 25, 2005 appellant filed a claim for compensation from July 21 to
August 25, 2005. On August 29, 2005 the Office received his rejection of the July 15, 2005
modified job offer from the employing establishment. Appellant explained that he returned to
work on July 20, 2005 and a manager told him that he would work standing in the lobby. The
manager then had him work in an office sitting for hours and, when he got up and stretched,
moved him to another office with only a stool to sit on and no desk on which he could perform
his assignment. Appellant stated, “I was completely hunched over trying to read and write; after
six hours of this abuse, I was in so much pain I had to leave. I called my physician and he
advised me to stay out of work until he saw me again on July 26, 2005.”
In a report dated September 27, 2005, Dr. Dante A. Brittis, a Board-certified orthopedic
surgeon, diagnosed tendinosis with AC joint overgrowth by magnetic resonance imaging (MRI)
scan study and recommended a subacromial decompression and AC resection. He found that
appellant could perform light duty pending surgery. Dr. Brittis indicated that appellant returned
to work in July but was “subsequently suspended for unknown reasons.” In a form report dated
October 24, 2005, he diagnosed a central herniated disc and right rotator cuff tendinosis and AC
arthropathy. Dr. Brittis opined that appellant was totally disabled from February 12, 2005 to the
present and was awaiting surgery. He checked “yes” that the condition was caused or aggravated
by employment.
By letter dated November 16, 2005, the employing establishment informed the Office
that it had terminated appellant effective October 5, 2005 “because of his failure to be regular in
attendance [and] not because of any disability causally related to his accepted employment
condition.”
The Office paid appellant compensation from October 5 to December 24, 2005. On
November 23, 2005 the Office notified him that it proposed to terminate his compensation as he
had been terminated from the employing establishment for cause.
On December 15, 2005 appellant asserted that the employing establishment terminated
him because of his work injury. He argued that his attendance only became an issue after his
employment injury and noted that “three weeks had gone by since the last time I called in sick
and the day of my injury.” When appellant resumed work on July 20, 2005, a manager told him
to work sitting down in a room with air condition and told him not to move “even to get up to
stretch.” Coworkers brought him water and a fan. Appellant stated,
“When Mr. Hudson came in to check on me a[n] hour or so later he was outraged
and decided to move me again. He moved me this time to a corner on a stool with
no back support and expected me to continue to read and fill out the safety
questionnaire without even a desk, so now I was completely hunched over trying
to complete this assignment and was in excruciating pain. I contacted my doctor

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who advised me to come see him and at the same time I received an emergency
[tele]phone call from my wife who was involved in an automobile accident on
Interstate 95 with my [two] month old son and my two year old son[.] I went
looking for Mr. Hudson and the supervisor to inform them that I had an
emergency and neither one of them were there so I filled out a leave slip and left
it on their desk.”
Appellant asserted that the employing establishment terminated him for irregular
attendance “six months after the fact.” He argued that the employing establishment terminated
his employment due to his work injury.
By decision dated January 25, 2006, the Office terminated appellant’s compensation on
the grounds that the employing establishment removed him from employment for administrative
reasons. The Office indicated that it would pay compensation through February 18, 2006.
On February 16, 2006 appellant requested a review of the written record; on March 27,
2006 he requested an oral hearing instead of a review of the written record. In a decision dated
April 25, 2006, an Office hearing representative found that the case was not in posture for a
hearing and set aside the January 25, 2006 decision. He determined that as appellant was
terminated for irregular attendance and there was no evidence he was not capable of performing
his work duties, he was not disabled beginning July 21, 2005. The hearing representative noted,
however, that appellant had submitted evidence showing that he was totally disabled from
employment beginning August 14, 2005. He remanded the case for further development,
including a comprehensive medical report from Dr. Hermele addressing the extent of appellant’s
disability and whether he sustained a low back condition due to his employment injury. The
hearing representative further instructed the Office to obtain a report from Dr. Brittis explaining
whether the employment injury caused a right shoulder condition.
In an April 10, 2006 form report, Dr. Hermele diagnosed chronic rotator cuff tear, AC
arthropathy and a herniated L4-5 lumbar disc. He checked “yes” that the condition was
aggravated by employment and noted that appellant was “out of work until further notice.” In a
progress report dated April 20, 2006, Dr. Hermele diagnosed chronic rotator cuff tendinosis, AC
arthropathy and a herniated L4-5 lumbar disc. He noted that appellant was currently between
jobs. On January 23, 2006 Dr. Hermele listed unchanged findings and noted that he was going to
have surgery on his shoulder.1
On June 20, 2006 appellant filed a notice of recurrence of disability on June 20, 2005
causally related to his February 3, 2005 employment injury. He noted that he worked only six
hours on July 26, 2005. On October 5, 2005 appellant informed the Office that his attendance
only became an issue after his February 3, 2005 employment injury.
In a report dated October 20, 2006, Dr. Hermele diagnosed a herniated lumbar disc by
MRI scan study and low back syndrome. He stated that appellant could no longer perform the
limited-duty assigned to him. An MRI scan documented a herniated lumbar disc and chronic
low back pain syndrome. He also had a chronic rotator cuff tendinosis of the right shoulder.
1

The record contains additional progress and form reports dated 2005 and 2006 from Dr. Hermele.

4

Dr. Hermele referred to his progress notes for further information. He found that appellant’s
February 2005 employment injury caused his low back strain. Dr. Hermele opined that the disc
herniation preexisted his work injury but that the work injury aggravated his low back pain. He
also attributed his rotator cuff tendinosis, which currently required surgery, to his February 2005
injury.
On October 20, 2006 appellant noted that he worked only one day and “was assigned
duties that were not agreed upon in the revised light-duty work assignment.” He maintained that
management assigned him to work on a stool without back support.
By decision dated December 15, 2006, the Office found that the evidence failed to
establish that appellant sustained a recurrence of disability on July 20, 2005. The Office found
that there was no evidence that he stopped work on that date due to his physical condition.
In a letter dated January 17, 2007, appellant requested a review of the written record. On
February 22, 2007 the Office denied his request under 5 U.S.C. § 8124 as untimely.
LEGAL PRECEDENT -- ISSUE 1
Where an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee 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 to show that he or 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.2
Office regulations provide that a recurrence of disability means an inability to work after
an employee has returned to work, caused by a spontaneous change in a medical condition which
had resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment that caused the illness.3 This term also means an inability to work that
takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn, (except when
such withdrawal occurs for reasons of misconduct, nonperformance of job duties or a reductionin-force) or when the physical requirements of such an assignment are altered so that they exceed
his or her established physical limitations.4
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained contusions of his knees and hands and
sprains/strains of the right shoulder, upper arm and back due to a February 3, 2005 employment
injury. He returned to a full-time limited-duty position with the employing establishment on
2

Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

3

20 C.F.R. § 10.5(x).

4

Id.

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July 20, 2005. Appellant stopped work after six hours on July 20, 2005. He maintained that the
employment establishment assigned him work that differed from the duties in the limited-duty
job offer and asserted that after working six hours he was unable to continue. Appellant further
noted, however, that his wife telephoned him on July 20, 2005 to say that she had been in an
automobile accident. He looked for a manager to request leave to attend to the emergency.
Appellant additionally told a nurse assigned to the case that on July 21, 2005 the employing
establishment “walked him out of the building” and put him on administrative leave. It thus
appears that he stopped work because he was placed on administrative leave rather than because
of the effects of his employment injury. Under Hedman, the burden of proof thus shifts to
appellant as the evidence indicates that he could perform the position and the stoppage of work
was not related to the employment injury.5
The medical evidence is insufficient to establish that appellant sustained an increase in
disability such that he was unable to perform his limited-duty position. In a progress report
dated July 26, 2005, Dr. Hermele diagnosed a herniated lumbar disc, rotator cuff tendinosis and
AC joint arthopathy but found that appellant’s work capacity was unchanged. In another
July 26, 2005 progress report, he indicated that appellant should not work pending a surgical
consultation.
As Dr. Hermele did not explain the inconsistencies in his progress reports
regarding disability from employment, these reports are insufficient to show that appellant was
disabled from employment due to residuals of the accepted injury.
On August 15, 2005 Dr. Hermele diagnosed low back pain syndrome and an L4-5
herniated disc and right shoulder rotator cuff tendinosis and AC arthropathy. He recommended
consultations for appellant regarding his shoulder and back and found that he should remain off
work pending the consultations. Dr. Hermele, however, did not address the cause of appellant’s
condition and disability. The Board has held that medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of diminished probative value on the
issue of causal relationship.6
On September 27, 2005 Dr. Brittis diagnosed tendinosis with AC joint overgrowth and
recommended a subacromial decompression and AC resection. He found that appellant could
perform light duty pending the surgery. Dr. Brittis noted that appellant had returned to work but
then was “suspended for unknown reasons.” As he did not find appellant disabled from his
limited-duty employment, his report is of diminished probative value and does not support
appellant’s claim.
In a form report dated October 24, 2005, Dr. Brittis diagnosed a central herniated disc
and right rotator cuff tendinosis and AC arthropathy. He opined that appellant was totally
disabled from February 12, 2005 to the present and was awaiting surgery. Dr. Brittis checked
“yes” that the condition was caused or aggravated by employment. The Board has held,
however, that when a physician’s opinion on causal relationship consists only of checking “yes”

5

Cf. Janice F. Migut, 50 ECAB 166 (1998) (where appellant returned to work for two days and there was no
probative evidence that the stoppage of work was unrelated to the employment injury).
6

Conrad Hightower, 54 ECAB 796 (2003).

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to a form question, without explanation or rationale, that opinion has little probative value and is
insufficient to establish a claim.7
In an April 10, 2006 form report, Dr. Hermele diagnosed chronic rotator cuff tear, AC
arthropathy and a herniated L4-5 lumbar disc. He checked “yes” that the condition was
aggravated by employment and noted that appellant was “out of work until further notice.” As
noted, an opinion on causal relationship that consists of a checkmark, without any explanation or
rationale for the conclusion reached, such report is insufficient to establish causal relationship.8
In a report dated October 20, 2006, Dr. Hermele diagnosed a herniated lumbar disc, low
back syndrome and rotator cuff tendinosis. He indicated that appellant “could no longer perform
the limited duty assigned to him.” Dr. Hermele attributed his low back pain and rotator cuff
tendinosis to his February 2005 employment injury. He indicated that appellant’s herniated
lumbar disc preexisted the work injury. As Dr. Hermele did not provide any rationale for his
opinion that appellant was unable to work in his limited-duty employment or specifically related
the disability to the February 2005 employment injury, his report is insufficient to meet
appellant’s burden of proof.9
As appellant has not submitted rationalized medical evidence supporting that he was
disabled from his limited-duty position beginning July 20, 2005, the Office properly denied his
claim for compensation.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b) of the Act, concerning a claimant’s entitlement to a hearing, states:
“Before review under section 8128(a) of this title, a claimant for compensation not satisfied with
a decision of the Secretary ... is entitled, on request made within 30 days after the date of
issuance of the decision, to a hearing on his claim before a representative of the Secretary.”10 As
section 8124(b)(1) is unequivocal in setting forth the time limitation for requesting a hearing, a
claimant is not entitled to a hearing as a matter of right unless the request is made within the
requisite 30 days.11
Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: An oral hearing or a review of the written record.”12

7

Deborah L. Beatty, 54 ECAB 340 (2003).

8

Id.

9

See Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002) (medical reports not containing rationale on causal
relation are entitled to little probative value and are generally insufficient to meet a claimant’s burden of proof).
10

5 U.S.C. § 8124(b)(1).

11

Frederick D. Richardson, 45 ECAB 454 (1994).

12

20 C.F.R. § 10.615.

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Section 10.616(a) further provides, “A claimant injured on or after July 4, 1966, who had
received a final adverse decision by the district Office may obtain a hearing by writing to the
address specified in the decision. The hearing request must be sent within 30 days (as
determined by postmark or other carrier’s date marking) of the date of the decision for which a
hearing is sought.”13
The Office, in its broad discretionary authority in the administration of the Act, has the
power to hold hearings in certain circumstances where no legal provision was made for such
hearings, and the Office must exercise this discretionary authority in deciding whether to grant a
hearing. Specifically, the Board has held that the Office has the discretion to grant or deny a
hearing request on a claim involving an injury sustained prior to the enactment of the 1966
amendments to the Act which provided the right to a hearing, when the request is made after the
30-day period established for requesting a hearing, or when the request is for a second hearing on
the same issue.14 The Office’s procedures, which require the Office to exercise its discretion to
grant or deny a hearing when a hearing request is untimely or made after reconsideration under
section 8128(a), are a proper interpretation of the Act and Board precedent.15
ANALYSIS -- ISSUE 2
The Office issued a decision on December 15, 2006 finding that appellant did not
establish a recurrence of disability.
He sought a review of the written record on
January 17, 2007. The Office denied appellant’s hearing request as untimely by decision dated
February 22, 2007. As his request for a review of the written record was dated January 17, 2007,
more than 30 days after the Office issued its December 15, 2006 decision, he was not entitled to
a hearing as a matter of right.
The Office has the discretionary power to grant a hearing or review of the written record
when a claimant is not entitled to a hearing or review as a matter or right.16 The Office properly
exercised its discretion by stating that it had considered the matter in relation to the issue
involved and denied appellant’s request for an oral hearing on the basis that the case could be
resolved by submitting additional evidence to the Office in a reconsideration request. The Board
has held that the only limitation on the Office’s discretionary authority is reasonableness. An
abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deduction
from established facts.17 In this case, the evidence of record does not establish that the Office
committed any action in connection with its denial of appellant’s request for an oral hearing
which could be found to be an abuse of discretion. For these reasons, the Office properly denied
her/his request for an oral hearing as untimely under section 8124 of the Act.
13

20 C.F.R. § 10.616(a).

14

See André Thyratron, 54 ECAB 257 (2002).

15

Sandra F. Powell, 45 ECAB 877 (1994).

16

Afegalai L. Boone, 53 ECAB 533 (2002).

17

See André Thyratron, supra note 14.

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CONCLUSION
The Board finds that appellant has not established that he sustained a recurrence of
disability beginning July 20, 2005 causally related to his February 3, 2005 employment injury.
The Board further finds that the Office properly denied his request for a review of the written
record as untimely under 5 U.S.C. § 8124.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 22, 2007 and December 15, 2006 are affirmed.
Issued: February 6, 2008
Washington, DC

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

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

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

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