United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.N., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Florence, SC, Employer
__________________________________________

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

Docket No. 18-0646
Issued: January 28, 2019

Case Submitted on the Record

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

JURISDICTION
On February 5, 2018 appellant filed a timely appeal from a January 2, 2018 nonmerit
decision1 of the Office of Workers’ Compensation Programs (OWCP).2 As more than 180 days
elapsed from the last merit decision, dated July 6, 2017, to the filing of this appeal, pursuant to the

1
The Board notes on the AB-1 form that appellant filed with the Board that he also sought to appeal from a July 6,
2017 merit decision. However, the appeal was filed more than 180 days from the date of this decision. Therefore, the
Board lacks jurisdiction to review the merits of the claim as asserted by appellant.
2

Appellant filed a timely request for oral argument. After exercising its discretion, by order dated July 20, 2018,
the Board denied his request, finding that the issue on appeal could adequately be addressed in a decision based on a
review of the case record. Order Denying Request for Oral Argument, Docket No. 18-0646 (issued July 20, 2018).

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of this case.4
ISSUE
The issue is whether OWCP has abused its discretion when it denied appellant’s August 14,
2017 request for a hearing as untimely filed under 5 U.S.C. § 8124(b).
FACTUAL HISTORY
This case has previously been before the Board.5 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On April 21, 1993 appellant, then a 56-year-old electronics technician, filed a traumatic
injury claim (Form CA-1) alleging that he sustained a hernia and lumbar strain while climbing an
80-foot tower to perform an annual antenna check on April 2, 1993. He stopped work that day.
OWCP initially accepted appellant’s claim for a lumbosacral strain and aggravation of an
inguinal hernia.6 In December 1993, it expanded his accepted conditions to include an L4-5
herniated nucleus pulposus. OWCP also authorized appellant’s December 8, 1993 lumbar surgery.
Effective June 1, 1994, appellant retired due to disability. In March 1995, OWCP placed him on
the periodic compensation rolls.
In January 2017, appellant contacted OWCP regarding his eligibility to receive attendant
services. In a January 25, 2017 development letter, it informed him of the requirement(s) for
attendant services and requested additional information from both him and his treating physician.
In an April 10, 2017 report, Dr. Jeffrey S. Lindaberry, a family practitioner, advised that
appellant’s chronic back pain was due to his work injury and subsequent lumbar surgery.7 He
opined that appellant’s current findings included chronic back pain and mild dementia which
would require “lifelong” assistance with activities of daily living and his medications.

3

5 U.S.C. § 8101 et seq.

4

The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.
5

Docket No. 05-0954 (issued August 15, 2005).

6

On August 11, 1993 appellant underwent surgery to repair his hernia.

7
The report was initially submitted on February 7, 2017 by Jessica Thasitis, a family nurse practitioner.
Dr. Lindaberry subsequently reviewed the report and countersigned it on April 10, 2017.

2

OWCP’s district medical adviser (DMA) reviewed the request for attendant services and,
in a May 25, 2017 report, advised that an attendant was not medically necessary to assist with daily
personal needs. He noted that with respect to appellant’s accepted lumbar conditions, the attendant
was not medically necessary, but that he may need the services of an attendant due to his mental
conditions. The DMA noted that there was no objective evidence that appellant’s accepted
condition would require a specific attendant to be paid for on a work-related basis. He
recommended against approving appellant’s request for an attendant because the medical problems
creating any such need for an attendant were not work related.
By decision dated July 6, 2017, OWCP denied authorization for attendant services. It noted
that the DMA report of May 25, 2017 concluded that appellant had multiple nonwork-related
medical problems and that these problems were more likely to be the cause of his need for an
attendant, and that, as such, the DMA recommended against approval of attendant services.
OWCP found that the evidence of record was insufficient to establish that the services of an
attendant were necessary within the meaning of FECA.
By form dated July 17, 2017, appellant requested an oral hearing before an OWCP hearing
representative. The envelope containing the form was postmarked August 14, 2017.
By decision dated January 2, 2018, OWCP’s Branch of Hearings and Review denied
appellant’s hearing request as untimely filed. The hearing representative noted that OWCP had
issued its decision on July 6, 2017, while appellant’s hearing request was postmarked August 14,
2017, more than 30 days after OWCP’s decision. He found that appellant was not entitled to a
hearing as a matter of right. The hearing representative also considered whether to grant appellant
a discretionary hearing, but determined that the issue in this case could equally well be addressed
by a requesting reconsideration before OWCP.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides: “Before review under section 8128(a) of this title
[relating to reconsideration], a claimant for compensation not satisfied with a decision of the
Secretary under subsection (a) of this section is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on his [or her] claim before a representative of
the Secretary.”8
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.”9 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 the hearing is sought.10 However, OWCP has discretion to grant or

8

5 U.S.C. § 8124(b)(1).

9

20 C.F.R. § 10.615.

10

Id. at § 10.616(a).

3

deny a request that is made after this 30-day period.11 In such a case, it will determine whether to
grant a discretionary hearing and, if not, will so advise the claimant with reasons.12
ANALYSIS
The Board finds that OWCP did not abuse its discretion by denying appellant’s August 14,
2017 request for a hearing as untimely filed under 5 U.S.C. § 8124(b).
Appellant had 30 days from OWCP’s July 6, 2017 merit decision to request a hearing
before the Branch of Hearings and Review. He requested an oral hearing by appeal request form
dated July 17, 2017 and postmarked August 14, 2017. As the postmark date was more than 30
days after OWCP’s July 6, 2017 decision, appellant was not entitled to an oral hearing as a matter
of right.13 Section 8124(b)(1) is unequivocal on the time limitation for requesting a hearing.14
Although appellant was not entitled to an oral hearing as a matter of right, OWCP’s Branch
of Hearings and Review exercised its discretion in determining whether to grant his request,
despite its untimely nature. In denying a discretionary hearing, the hearing representative found
that the issue in the case could equally well be addressed by requesting reconsideration before
OWCP and submitting new evidence. Because reconsideration exists as an alternative appeal right
to address the issue raised by OWCP’s July 6, 2017 decision, the Board finds that OWCP did not
abuse its discretion in denying appellant’s untimely hearing request.15
CONCLUSION
The Board finds that OWCP has not abused its discretion when it denied appellant’s
August 14, 2017 hearing request as untimely filed pursuant to 5 U.S.C. § 8124(b).

11

G.W., Docket No. 10-0782 (issued April 23, 2010); James Smith, 53 ECAB 188, 191-92 (2001).

12

James Smith, id.

13

Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis
of the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings
and Reviews of the Written Record, Chapter 2.1601.4a (October 2011).
14

Supra note 8; see William F. Osborne, 46 ECAB 198 (1994).

15

See Gerard F. Workinger, 56 ECAB 259 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the January 2, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 28, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION
NORTHWEST MOUNTAIN REGION,
Renton, WA, Employer
__________________________________________

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

Docket No. 20-0755
Issued: January 4, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On February 18, 2020, appellant filed a timely appeal from an August 30, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated May 23, 2018, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of this claim.2

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the August 30, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 16, 2018 appellant, then a 57-year-old air traffic control specialist, filed an
occupational disease claim (Form CA-2) alleging that she sustained toxic encephalopathy causally
related to chemical and electromagnetic exposure due to factors of her federal employment. She
noted that she first became aware of her condition on January 9, 2017 and of its relationship to her
federal employment on March 17, 2017. On the reverse side of the claim form, a supervisor noted
that appellant had last been exposed to conditions alleged to have caused disease or illness on
January 1, 1995, had voluntarily resigned in 1996, and had first reported the condition to a
supervisor on April 10, 2018.3
In support of her claim, appellant submitted a scientific paper dated April 9, 1981 by
Dr. Jeremy K. Raines, Ph.D., on the subject of electromagnetic field interactions with the human
body.
In a magnetic resonance imaging (MRI) scan of appellant’s brain dated December 8, 2015,
Dr. Omid J. Jafari, a Board-certified radiologist, observed scattered areas of T2 fluid-attenuated
inversion recovery (FLAIR) hyperintensity in the supratentorial white matter, predominantly in a
subcortical distribution. He noted that this finding was nonspecific and could be related to trauma,
prior insult, chronic migraines, or chronic small vessel ischemic disease.
Appellant submitted a log of exposure to suspected sources of electromagnetic radiation
from February 22 through May 1, 2017.
In a letter dated March 14, 2017, Dr. Gunnar Heuser, an internal medicine and neurology
specialist, related that he had initially treated appellant on December 8, 2015 for complaints of
intermittent headaches, cognitive and memory problems, dizziness and nausea, numbness and
tingling, palpitations, and fatigue, which he attributed to electromagnetic field exposure. He
explained that her complaints were characteristic of exposure to electromagnetic fields including
cell phones, cell phone towers, smart meters, and electrical appliances, which occurred in her
employment as an air traffic controller. Without elaboration, Dr. Heuser explained that differential
diagnosis had ruled out other causes for her multi-system complaints. He noted that appellant’s
brain scan was abnormal and that a review of published data demonstrated that neurotoxic
exposure to pesticides, mold, and a variety of chemicals can render a patient vulnerable to
sensitivity to electromagnetic fields. Dr. Heuser diagnosed toxic encephalopathy and stated that
appellant was totally disabled.
In a physical functional evaluation form dated May 31, 2017, Dr. Heuser diagnosed toxic
encephalopathy secondary to chemical and electromagnetic field exposures. He assessed appellant
3
The supervisor also reported, without explanation, that appellant stopped work on January 9, 2017. The supervisor
added a comment “the agency would have to know the specific dates and specific exposures to respond to [injured
workers’] allegations. More information will be forthcoming as so much time has elapsed since [injured worker] was
employed.”

2

as totally disabled from work. Dr. Heuser noted that appellant’s exposure to electromagnetic fields
began in 1996 and that her exposure to toxic chemicals began in childhood.
Appellant submitted a scientific paper dated July 5, 2017 by Dr. Heuser on the subject of
functional brain MRI scan in patients complaining of electrohypersensitivity after long-term
exposure to electromagnetic fields. A case study referenced appellant’s medical history.
In a physician’s certification form dated October 16, 2017, Dr. Heuser diagnosed toxic
encephalopathy and indicated that appellant had significant impairment of cognitive, memory, and
physical functions.
In a letter dated March 6, 2018, Dr. Heuser noted that appellant’s case, along with nine
others, had been published in a scientific journal, and that all cases had significant
electrohypersensitivity and abnormal functional brain scans. He diagnosed toxic encephalopathy,
secondary to chemical and electromagnetic field exposure, and stated that no treatment other than
avoidance was available for her permanent disability. Dr. Heuser opined that appellant’s condition
was caused by her employment.
In an April 16, 2018 development letter, OWCP informed appellant that additional medical
evidence was needed to establish her claim. It advised her of the type of factual and medical
evidence needed, including medical evidence from a qualified physician which provided a
diagnosis and a rationalized explanation as to how the employment incident caused the diagnosed
condition. Appellant was provided a questionnaire to complete regarding the factual elements of
her claim. OWCP afforded appellant 30 days to submit the necessary evidence.
In a separate letter dated April 16, 2018, OWCP requested that the employing
establishment provide comments from a knowledgeable supervisor regarding the accuracy of
appellant’s statements, what tasks she performed, what precautions were taken to minimize
exposure and a copy of appellant’s position description. The employing establishment was
afforded 30 days to respond.
In a statement dated March 29, 2018, appellant attributed her diagnosed toxic
encephalopathy to exposure to toxic chemical agents including jet fumes and exposure to
electromagnetic radiation in the course of her employment as an air traffic controller beginning in
1981, as well as exposure during her employment by the military. She noted that prior to her
resignation as an air traffic controller in 1996, she had experienced high levels of stress and
problems with memory, decision-making, and concentration, which were of such severity that she
was placed on part-time administrative duties in 1995. Appellant became aware of her condition
on January 9, 2017 when Dr. Heuser diagnosed toxic encephalopathy secondary to chemical and
electromagnetic field exposure.
Appellant submitted a position description for an air traffic control specialist dated
October 1, 2000.
In airman medical certificates dated December 10, 1993; December 9, 1994; and
December 11, 1995, Dr. Eric S. Smith, Board-certified in occupational medicine, conducted
physical examinations, observing no abnormal physical findings.

3

In a medical note dated March 15, 1995, Katie Walther, a registered nurse, noted that
appellant had been diagnosed with gestational diabetes and that she recommended work
restrictions.
By letter dated May 10, 2018, the employing establishment challenged appellant’s claim.
It objected to the contention that electromagnetic exposure could result in toxic encephalopathy.
The employing establishment denied the allegation that appellant’s federal employment involved
hazardous chemical exposure, noting that appellant had only vaguely referenced exposure to jet
fuel, over 20 years after her employment ended, without any specific date or incident alleged. It
noted that in her position as air traffic controller, appellant was subject to agency medical
oversight, and that review of the detailed medical files from this medical oversight found no
complaints by appellant of alleged chemical exposure during her employment. The employing
establishment claimed that Dr. Heuser had ignored the general proliferation of electronic
technology over the past 22 years in rendering his conclusion that appellant’s exposure to
electromagnetism in federal employment had caused her condition, arguing that it was impossible
that his diagnostic study could accurately pinpoint an exposure alleged to have occurred decades
prior. It noted that, contrary to appellant’s statement that she had been placed on administrative
duty prior to 1996 due to stress and difficulty with memory, decision-making, and concentration,
agency medical records demonstrated that she was placed on modified duty due to gestational
diabetes. The employing establishment enclosed appellant’s notification of personnel action
(Form SF-50), which recorded her resignation in lieu of involuntary action effective August 1,
1996, and her stated reason that she was “uncomfortable returning to a work environment that has
proven to be hostile and harassing.” It argued that Dr. Heuser’s medical opinion appeared to be
exclusively based on his research study, in which appellant was one of the small sample size of 10
subjects involved, half of which had previously suffered head injuries, and which did not render
any conclusion about a causal relationship between appellant’s claimed exposure and her
diagnosed condition.
By decision dated May 23, 2018, OWCP denied the claim, finding that appellant had not
established that her diagnosis of toxic encephalopathy was causally related to the accepted
employment exposure.
On August 27, 2019 OWCP received appellant’s May 20, 2019 request for reconsideration
of its May 23, 2018 decision. Appellant related that she had submitted two packages of 54 pages
of content to the employing establishment. She argued that OWCP’s decision was in error as it
did not note that appellant was a study participant in Dr. Heuser’s July 2017 publication.4
Appellant submitted attachments to her reconsideration request.
By decision dated August 30, 2019, OWCP denied appellant’s request for reconsideration
of the merits of the claim.

4

With her request for reconsideration appellant submitted USPS tracking receipts which documented that an item
had been received by the Department of Labor in London, KY on May 23, 2019, and a second tracking receipt which
indicated that an item was delivered to the Department of Labor in London, KY on August 19, 2019. Appellant also
submitted an August 9, 2019 letter, wherein appellant noted that she was resubmitting 49 pages of content, as she had
been advised the prior package had not been received. Submitted with this letter was a USPS tracking receipt dated
May 22, 2019 which indicated that an item had arrived at the London, KY post office on May 22, 2019 and was ready
for pick-up. OWCP did not receive 49 pages of attachment with this letter.

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LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.5 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.6 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.7
OWCP procedures require a review of the file to determine whether the application for
reconsideration was received within one year of a merit decision. The one-year period begins on
the date of the original decision. However, a right to reconsideration within one year accompanies
any subsequent merit decision on the issues. This includes any hearing or review of the written
record decision, any denial of modification following reconsideration, any merit decision by the
Board, and any merit decision following action by the Board, but does not include prerecoupment
hearing decisions.8 Timeliness is determined by the document receipt date of the reconsideration
request (the received date in the Integrated Federal Employees Compensation System (iFECS)).
If the request for reconsideration has a document received date greater than one year, the request
must be considered untimely.9
OWCP will consider an untimely application only if the application demonstrates clear
evidence of error on the part of it in its most recent merit decision. The application must establish,
on its face, that such decision was erroneous.10 The term clear evidence of error is intended to
represent a difficult standard. If clear evidence of error has not been presented, OWCP should
deny the application by letter decision, which includes a brief evaluation of the evidence submitted
and a finding made that clear evidence of error has not been shown.11
ANALYSIS
The Board finds that the case is not in posture for decision.
The most recent merit decision of OWCP was the May 23, 2018 decision. One year from
May 23, 2018 elapsed on May 23, 2019. OWCP received into iFECS appellant’s request for
reconsideration on August 27, 2019, more than one year after the May 23, 2018 merit decision.
5
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [his] own motion or on application.” 5 U.S.C. § 8128(a).
6

20 C.F.R. § 10.607.

7

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal
Employees Compensation System. Id. at Chapter 2.1602.4b.
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4.a (February 2016).

9
Id. at Chapter 2.1602.4b (February 2016); see also S.J., Docket No. 19-1864 (issued August 12, 2020); W.A.,
Docket No. 17-0225 (issued May 16, 2017).
10

W.A., id.; D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005).

11

Supra note 7 at Chapter 2.1602.5(a) (October 2011).

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Pursuant to OWCP’s procedures appellant’s request was therefore untimely filed. OWCP’s
procedures provide that timeliness is determined by the date that the request is received into iFECS
and that if the request for reconsideration has a document received date greater than one year, the
request must be considered untimely.12 The proper standard of review for an untimely
reconsideration request is the clear evidence of error standard.13 In denying her request, OWCP,
however, applied the standard of review for timely requests for reconsideration.14 The Board will,
consequently, remand the case for application of the proper standard for untimely reconsideration
requests,15 to be followed by the issuance of an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 30, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: January 4, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

12

Supra note 9.

13
See 20 C.F.R. § 10.607(b); see also P.H., Docket No. 19-1354 (issued March 13, 2020); M.H., Docket No.
18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).
14

P.H., id.

15

Supra note 13 at § 10.607(b).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, FERRY ANNEX,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 08-2217
Issued: June 16, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 12, 2008 appellant filed a timely appeal from a June 27, 2008 merit decision
of the Office of Workers’ Compensation Programs granting him a schedule award. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award decision.
ISSUE
The issue is whether appellant has more than 50 percent permanent impairment of the left
lower extremity for which he received schedule awards.
FACTUAL HISTORY
On January 23, 1970 appellant, then a 20-year-old mail handler, filed a claim alleging
that on that date he injured his left leg backing into a loading belt.1 The Office accepted his
1

This case has previously been before the Board on a nonmerit issue. By decision dated February 24, 1993, the
Board affirmed a March 11, 1991 Office decision denying appellant’s request to reopen his case for further merit
review of its finding that he received an overpayment of compensation and its determination of his wage-earning
capacity. Docket No. 92-948 (issued February 24, 1993).

claim for left knee strain and a torn lateral meniscus. Appellant underwent knee surgery to repair
a torn meniscus on May 19, 1970. He had repeat surgery on February 7, 1978, October 18, 1984
and July 5, 1990.
By decision dated April 12, 1971, the Office granted appellant a schedule award for 15
percent permanent impairment of the left lower extremity. On December 20, 1971 a hearing
representative granted him an award for an additional five percent lower extremity impairment.
In a decision dated October 22, 1985, the Office granted appellant a schedule award for
an additional 21 percent permanent impairment of the left leg, for a total lower extremity
impairment of 41 percent.
Appellant returned to work for four hours per day with restrictions on March 30, 1997.2
He retired on December 31, 2007. On March 12, 2008 the Office accepted that appellant
sustained a recurrence of disability on November 24, 2007. On March 31, 2008 appellant filed a
claim for a schedule award.
In a report dated March 28, 2008, Dr. George A. Pugh, a Board-certified orthopedic
surgeon, noted that appellant had a history of medial and lateral meniscectomies. He found full
knee extension, flexion of 112 to 120 degrees, one-quarter inch of quadriceps atrophy and seveneighths of an inch of calf atrophy. Dr. Pugh related that x-rays of the knee showed that appellant
was “entirely bone on bone in the lateral compartment of the knee.” Applying the American
Medical Association, Guides to the Evaluation of Permanent Impairment, (5th ed. 2001)
(A.M.A., Guides), he stated:
“Obviously the most accurate way to rate his knee would be related to the arthritis
table which is found on page 544. This is [T]able 17-31. Since he is utterly bone
on bone in the lateral compartment, this is considered a 20 percent whole person
impairment, by looking under knee in the left hand column and going all the way
to the right hand column under zero [millimeters]. I would then turn to [T]able
17-2 and note that the arthritis cannot be combined with muscle atrophy or range
of motion. Hence, his loss of flexion and his thigh and calf atrophy become not
relevant.
“Therefore, I would consider him to have a 20 percent whole person impairment
of his left knee, related to his having gone on to develop severe symptomatic
arthritis.”
On April 21, 2008 the Office referred appellant to Dr. Aubrey A. Swartz, a Boardcertified orthopedic surgeon, for a second opinion examination regarding the extent of his
employment-related impairment. In a report dated May 19, 2008, Dr. Swartz measured thigh
circumference as 54 centimeters on the right and 52 centimeters on the left and calf
circumference as 38 centimeters on the right and 36.5 centimeters on the left. He measured
2

In decisions dated August 7, 2003 and August 10, 2004, the Office found that appellant had not established that
he sustained a recurrence of disability beginning June 11, 2003. By decision dated November 3, 2004, it denied his
request for further merit review under section 8128.

2

range of motion of the left knee as 0 to 125 degrees with quadriceps strength of 5/5. Dr. Swartz
found no tenderness, swelling or effusion or instability of the left knee. He diagnosed posttraumatic left knee arthritis due to appellant’s October 23, 1970 employment injury. Dr. Swartz
found that x-rays showed advanced osteoarthritis. In an attached form, he noted that appellant
complained of knee pain in the uncomfortable range, had a history of a meniscectomy and had
bone on bone loss of shock absorption of the left knee.
On June 14, 2008 an Office medical adviser reviewed the March 28, 2008 report from
Dr. Pugh and the May 19, 2008 report from Dr. Swartz. He found that appellant had eight
percent impairment due to left thigh atrophy of 2 centimeters and six percent impairment due to
left calf atrophy of 1.5 centimeters according to Table 17-6 on page 530 of the A.M.A., Guides.
The Office medical adviser recommended, however, evaluating the impairment using Table
17-31 on page 544 of the A.M.A., Guides, relevant to determining impairments due to arthritis,
as that yielded the greater award. He stated, “Dr. Pugh’s report does document bone-on-bone
contact involving the lateral compartment of the left knee, and this would be assessed a 50
percent lower extremity impairment (which is equivalent to 20 percent whole person
impairment). No other value would be combined with this.” The Office medical adviser found
that appellant reached maximum medical improvement on March 28, 2008.
By decision dated June 27, 2008, the Office determined that appellant was entitled to a
schedule award for additional 15 percent permanent impairment of the left lower extremity. It
determined that his total left lower extremity impairment was 50 percent. The Office subtracted
35 percent, the amount it found previously paid, in finding that he was entitled to an award for an
additional 15 percent.3 The period of the award ran for 43.20 weeks from March 28, 2008 to
January 24, 2009.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,4 and its
implementing federal regulations,5 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides (5th ed. 2001) as the uniform standard
applicable to all claimants.6 Office procedures direct the use of the fifth edition of the A.M.A.,
Guides, issued in 2001, for all decisions made after February 1, 2001.7

3

The Board notes that it appears from the record that appellant previously received prior schedule award for a 41
percent permanent impairment rather than a 35 percent permanent impairment of the left lower extremity.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

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

3

Where a claimant has previously received a schedule award and subsequently claims an
additional schedule award due to a worsening of his or her condition, the claimant bears the
burden of proof to establish a greater impairment causally related to the employment injury.8
ANALYSIS
The Office accepted that appellant sustained a left knee strain and a torn lateral meniscus
due to a January 23, 1970 employment injury. Appellant underwent multiple knee surgeries
knee surgeries on May 19, 1970, February 7, 1978, October 18, 1984 and July 5, 1990. By
decision dated April 12, 1971, the Office granted him a schedule award for a 15 percent
permanent impairment of the left lower extremity. On December 20, 1971 it increased the
schedule award by five percent. In a decision dated October 22, 1985, the Office granted
appellant a schedule award for an additional 21 percent left lower extremity impairment, for a
total impairment of 41 percent.
On March 31, 2008 appellant filed a claim for an increased schedule award. In a
March 28, 2008 impairment evaluation, Dr. Pugh discussed his history of medial and lateral
meniscectomies. He measured flexion of 112 to 120 degrees and found quadriceps atrophy of
one-quarter inch and calf atrophy of seven-eighths of an inch. Dr. Pugh determined that x-rays
revealed zero millimeters of cartilage interval in appellant’s knee. Utilizing Table 17-31 on page
544 of the A.M.A., Guides, he found that zero millimeters of cartilage interval by x-rays
constituted 20 percent whole person impairment due to knee arthritis. The Act, however, does
not provide for impairment of the whole person.9
The Office referred appellant to Dr. Swartz for a second opinion evaluation. In a report
dated May 19, 2008, Dr. Swartz diagnosed post-traumatic left knee arthritis causally related to
the January 23, 1970 work injury. He found that appellant had two centimeters less of thigh
circumference and one and a half centimeters less of calf circumference on the left side.
Dr. Swartz found quadriceps strength of 5/5 and range of motion from 0 to 125 degrees. He
noted that x-rays revealed advanced osteoarthritis, and listed impairment factors of knee pain, a
history of a meniscectomy and bone-on-bone loss of shock absorption of the left knee.
An Office medical adviser reviewed the reports of Dr. Pugh and Dr. Swartz. He
determined that appellant’s impairment should be evaluated under Table 17-31 relevant to
arthritis as that would yield the greatest award. The medical adviser concurred with Dr. Pugh’s
finding of bone-on-bone contact in the lateral left knee, which he found constituted 50 percent
lower extremity impairment.10 The Office determined that appellant’s impairment due to
arthritis could not be combined with any other impairment and thus concluded that he had a total
lower extremity impairment of 50 percent.

8

Edward W. Spohr, 54 ECAB 806 (2003).

9

5 U.S.C. § 8107(c); Tania R. Keka, 55 ECAB 354 (2004).

10

A.M.A., Guides 544, Table 17-31.

4

The A.M.A., Guides lists 13 methods to assess lower extremity impairment. These
methods fall into three basic categories: (1) anatomic impairment, including atrophy, arthritis
and nerve injury; (2) functional impairment, including range of motion and muscle strength; and
(3) diagnosis-based impairment, including fractures and meniscectomies.11 Many of these
methods, however, may not be used together for evaluating a single impairment. The A.M.A.,
Guides provides a cross-usage chart at Table 17-2 showing which combinations are allowed and
which are prohibited.12 Table 17-2 prohibits the combination of an impairment due to arthritis
with gait derangement, muscle atrophy, strength and range of motion/ankylosis. An impairment
due to arthritis, however, may be combined with impairments due to diagnosis-based
impairments, including meniscectomies.13 Appellant underwent multiple left knee surgeries,
including lateral and medial meniscectomies. The Office medical adviser did not include an
impairment due to his meniscectomies as he found that no impairment could be combined with
an impairment due to arthritis. The case, therefore, will be remanded for the Office to include
any impairment due to appellant’s meniscectomies in calculating his total left knee impairment.
The Office should then subtract the amount it has previously awarded appellant from his total
left knee impairment to determine the amount of any additional award.
CONCLUSION
The Board finds that the case is not in posture for decision.

11

Id. at 525, Table 17-1.

12

Id. at 526, Table 17-2.

13

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 27, 2008 is set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: June 16, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Q.D., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 14-1139
Issued: September 19, 2014

Case Submitted on the Record

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

JURISDICTION
On April 14, 2014 appellant, through her attorney, filed a timely appeal from a
November 27, 2013 decision of the Office of Workers’ Compensation Programs (OWCP)
regarding 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 this case.
ISSUE
The issue is whether appellant established that she sustained more than a three percent
permanent impairment of the right leg, for which she received a schedule award.
On appeal, counsel contends that OWCP failed to properly consider the evidence of
record, specifically the records appellant provided to assess her preexisting condition under the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) and requests that the Board direct OWCP to adjudicate the
preexisting impairment.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that appellant, then a 38-year-old correctional officer, sustained a medial
meniscus tear of the right knee as a result of striking it on the floor while escorting a disruptive
inmate on April 21, 2012. It authorized surgery for an arthroscopic partial medial meniscectomy
with abrasion chondroplasty of the medial femoral condyle which she underwent on
June 26, 2012. Appellant was subsequently placed on the periodic rolls. She returned to fullduty work effective December 21, 2012.
On April 19, 2013 appellant, through counsel, filed a claim for a schedule award. In a
February 12, 2013 report from Dr. Arthur Becan, an orthopedic surgeon, who diagnosed chronic
post-traumatic lumbosacral strain/sprain, herniated L5-S1 disc, right L5 radiculopathy and torn
medial meniscus right knee. Upon examination, appellant complained of right knee and low
back pain and stiffness which was constant and daily, radiating pain to her right lower extremity,
numbness and tingling in her right lower extremity below the knee, coughing and sneezing that
increased her low back pain and right knee pain increased by changes in the weather. Dr. Becan
found that examination of her right knee revealed a mild effusion. He noted tenderness over the
medial joint line and femoral condyle. A McMurray’s test was positive for medial knee pain and
range of motion of the right knee performed three times was restricted on flexion-extension.
Dr. Becan placed appellant in class 1 based on his diagnosis of right knee partial medial
meniscectomy according to Table 16-3,2 page 509, of the A.M.A., Guides. He assigned grade
modifiers of 2 for Functional History (GMFE), Physical Examination (GMPE) and Clinical
Studies (GMCS). Using the net adjustment formula of (GMFH - diagnosed condition (CDX)) +
(GMPE - CDX) + (GMCS - CDX), Dr. Becan found that (2-1) + (2-1) + (2-1) resulted in a net
grade modifier of 3, equaling a three percent impairment of the right leg. He further found that
appellant had an eight percent impairment based on his diagnosis of class 1 very severe sensory
deficit right L5 nerve root and a five percent impairment based on his diagnosis of class 1 very
severe sensory deficit right S1 nerve root, resulting in a 16 percent combined impairment of the
right leg. Dr. Becan determined that she had reached maximum medical improvement as of
February 12, 2013.
On July 27, 2013 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and
OWCP medical adviser, reviewed the medical record. He determined that the date of maximum
medical improvement was February 12, 2013. On review of Dr. Becan’s February 12, 2013
report, Dr. Berman erroneously recommended a 16 percent combined impairment rating for the
right lower extremity based on a lumbar spine disability involving the L5 and S1 nerve root. He
stated that appellant did not have an accepted lumbar spine condition and, therefore, Dr. Becan’s
impairment ratings for L5 and S1 nerve root diagnoses could not be accepted. Dr. Berman
agreed with Dr. Becan’s assessment of appellant’s impairment due to her meniscal injury and
that his grade modifiers were acceptable. Using the net adjustment formula of (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX), he found that (2-1) + (2-1) + (2-1) resulted in a net grade

2

Table 16-3, pages 509-11 of the sixth edition of the A.M.A., Guides is entitled Knee Regional Grid -- Lower
Extremity Impairments.

2

modifier of 3, resulting in an impairment class 1, grade E, equaling a three percent permanent
impairment of the right lower extremity under Table 16-3,3 page 509, of the A.M.A., Guides.
By decision dated August 27, 2013, OWCP granted appellant a schedule award for three
percent permanent impairment of the right leg. The award ran for 8.64 weeks for the period
February 12 through April 13, 2013.
On August 29, 2013 appellant, through counsel, requested reconsideration.
In a November 15, 2013 memorandum, OWCP requested an evaluation of appellant’s
impairment rating, including any preexisting conditions that affected the right lower extremity.
On November 19, 2013 Dr. Morley Slutsky, a Board-certified orthopedic surgeon and OWCP
medical adviser, reviewed the medical record and a statement of accepted facts. He stated that
“Dr. Becan apparently found decreased sensation in the right L5 and S1 distribution with
Semmes Weinstein Testing, however, he did not document testing for sharp dull sensation and
protective sensibility (as outlined in Table 16-11,4 page 533 of A.M.A., Guides.” Dr. Slutsky
found that the sensory deficient impairment Dr. Becan rated could not be used. He further
indicated that Dr. Becan used the Pain Disability Questionnaire (PDQ) and sixth edition of the
A.MA., Guides to rate the lower extremities for right L5 and S1 nerve root deficits, although the
correct methodology was to use The Guides Newsletter (July/August 2009).
By decision dated November 27, 2013, OWCP denied modification of its
August 27, 2013 schedule award decision.
LEGAL PRECEDENT
The schedule award provisions of FECA5 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a mater which rests in the
sound discretion of OWCP. For consistent results and to ensure equal justice, the Board has
authorized the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by OWCP as a standard for evaluation of
schedule losses and the Board has concurred in such adoption.6 For schedule awards after
May 1, 2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides,
published in 2009.7

3

Id.

4

Table 16-11, pages 533 of the sixth edition of the A.M.A., Guides is entitled Sensory and Motor Severity.

5

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

6

See Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).

3

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, the evaluator identifies the impairment class for the
CDX, which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS.9 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX). Evaluators are
directed to provide reasons for their impairment rating choices, including the choices of
diagnoses from regional grids and calculations of modifier scores.10
Chapter 16 of the sixth edition of the A.M.A., Guides, pertaining to the lower extremities,
provides that diagnosis-based impairment is “the primary method of calculation for the lower
limb” and that most impairments are based on the diagnosis-based impairment where impairment
class is determined by the diagnosis and specific criteria as adjusted by the grade modifiers for
functional history, physical examination and clinical studies. Chapter 16 further provides:
“Alternative approaches are also provided for calculating impairment for
peripheral nerve deficits, complex regional pain syndrome, amputation and range
of motion. Range of motion is primarily used as a physical examination
adjustment factor and is only used to determine actual impairment values when it
is not possible to otherwise define impairment.”11
ANALYSIS
OWCP accepted that on April 21, 2012 appellant sustained a medial meniscus tear of the
right knee. On June 26, 2012 appellant underwent authorized surgery. In an August 27, 2013
decision, OWCP granted her a schedule award for three percent permanent impairment of the
right lower extremity. The award was based on the February 12, 2013 report of Dr. Becan and
the July 27, 2013 report of Dr. Berman, a Board-certified orthopedic surgeon serving as an
OWCP medical adviser. It is appellant’s burden to submit sufficient evidence to establish the
extent of permanent impairment.12
In his February 12, 2013 report, Dr. Becan diagnosed a torn medial meniscus right knee
and found that examination of appellant’s right knee revealed a mild effusion. He noted
tenderness over the medial joint line and femoral condyle. A McMurray’s test was positive for
medial knee pain and range of motion of the right knee performed three times was restricted on
flexion-extension. Dr. Becan placed appellant in class 1 based on his diagnosis of right knee
partial medial meniscectomy according to Table 16-3,13 page 509, of the A.MA., Guides. He
8

A.M.A., Guides page 3, section 1.3, The ICF: A Contemporary Model of Disablement.

9

Id. at 494-531.

10

See R.V., Docket No. 10-1827 (issued April 1, 2011).

11

A.M.A., Guides 497, 544-53.

12

See Annette M. Dent, 44 ECAB 403 (1993).

13

Table 16-3, pages 509-11 of the sixth edition of the A.M.A., Guides is entitled Knee Regional Grid -- Lower
Extremity Impairments.

4

assigned grade modifiers of 2 for functional history, physical examination and clinical studies.
Using the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX),
Dr. Becan found that (2-1) + (2-1) + (2-1) resulted in a net grade modifier of 3, equaling a three
percent permanent impairment of the right lower extremity. He further rated an 8 percent
impairment based on his diagnosis of class 1 very severe sensory deficit right L5 nerve root and
a 5 percent impairment based on his diagnosis of class 1 very severe sensory deficit right S1
nerve root, resulting in a 16 percent combined permanent impairment of the right lower
extremity. Dr. Becan determined that appellant had reached maximum medical improvement as
of February 12, 2013.
In accordance with its procedures, OWCP properly referred the evidence to Dr. Berman
for review. Dr. Berman explained that Dr. Becan erroneously recommended a 16 percent
impairment rating for the right lower extremity based in part on a lumbar spine disability
calculation involving the L5 and S1 nerve root. He noted that appellant did not have an accepted
lumbar spine condition therefore the ratings for L5 and S1 nerve root diagnoses were incorrect
and could not be accepted. Dr. Berman concurred with Dr. Becan’s assessment of appellant’s
impairment due to her meniscal injury and agreed that his grade modifiers were acceptable.
Using the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), he
found that (2-1) + (2-1) + (2-1) resulted in a net grade modifier of 3, resulting in an impairment
class 1, grade E, equaling a three percent permanent impairment of the right lower extremity
under Table 16-3,14 page 509, of the A.M.A., Guides.
The Board finds that Dr. Berman applied the appropriate tables and grading schemes of
the sixth edition of the A.M.A., Guides to Dr. Becan’s clinical findings. The rating of three
percent impairment based on the accepted meniscus injury is proper. There is no medical
evidence of record utilizing the appropriate tables of the sixth edition of the A.M.A., Guides
demonstrating a greater percentage of permanent impairment. Dr. Berman excluded Dr. Becan’s
ratings of impairment based on the L5 and S1 sensory deficits because OWCP has not accepted a
spinal condition in this case. Therefore, OWCP properly relied on the medical adviser’s
assessment of a three percent permanent impairment of the right lower extremity.
On appeal, counsel contends that OWCP failed to properly consider the evidence of
record, as it failed to consider preexisting conditions and requests that the Board direct OWCP to
adjudicate the preexisting impairment. In a November 15, 2013 memorandum, OWCP requested
an evaluation of appellant’s impairment rating, including any “preexisting conditions that affect
the right lower extremity.” On November 19, 2013 Dr. Slutsky, a Board-certified orthopedic
surgeon and OWCP medical adviser, reviewed the medical record and a statement of accepted
facts. He indicated that “Dr. Becan apparently found decreased sensation in the right L5 and S1
distribution with Semmes-Weinstein Testing, however, he did not document testing for sharp
dull sensation and protective sensibility (as outlined in Table 16-11,15 page 533 of A.M.A.,
Guides).” Dr. Slutsky found that the impairment rating Dr. Becan made could not be justified.
He further indicated that Dr. Becan used the PDQ and sixth edition of the A.M.A., Guides to rate
the lower extremities for right L5 and S1 nerve root deficits, although the correct methodology
14

Id.

15

Table 16-11, pages 533 of the sixth edition of the A.M.A., Guides is entitled Sensory and Motor Severity.

5

was to use The Guides Newsletter (July/August 2009). The Board notes further that the medical
record does not clearly establish any lumbar sensory loss as a preexisting condition. The Board
finds that there is no probative medical evidence of record, in conformance with the sixth edition
of the A.M.A., Guides, establishing that appellant has more than a three percent permanent
impairment of the right lower extremity. Accordingly, appellant has not established that she has
greater impairment.16
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 not established that she sustained more than a three
percent permanent impairment of the right lower extremity, for which she received a schedule
award.

16

FECA provides for reduction of compensation for subsequent injury to the same body member. It provides that
schedule award compensation is reduced by the compensation paid for an earlier injury where the compensation in
both cases are for impairment of the same member or function and where it is determined that the compensation for
the later disability in whole or part would duplicate the compensation payable for the preexisting disability.
5 U.S.C. § 8108; 20 C.F.R. § 10.404(c).

6

ORDER
IT IS HEREBY ORDERED THAT the November 27, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 19, 2014
Washington, DC

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

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

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

7


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

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

Docket No. 10-1882
Issued: April 19, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 9, 2010 appellant filed a timely appeal from a June 17, 2010 merit decision of the
Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’ Compensation
Act1 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 met her burden of proof to establish that she sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On April 26, 2010 appellant, then a 48-year-old automation mail processing clerk, filed
an occupational disease claim alleging that she sustained bilateral carpal tunnel syndrome as a

1

5 U.S.C. § 8101 et seq.

result of repetitious grasping for eight hours and occasional heavy lifting and pushing.2 She
explained that her right wrist, in particular, was continuously numb. Appellant became aware of
her condition on August 29, 2009. She did not stop work.
An undated duty status report signed by Dr. Manohar P. Rao, a plastic surgeon,
diagnosed bilateral carpal tunnel syndrome due to “grasping” at work and listed January 27,
2010 as the date of injury. Dr. Rao pointed out that appellant’s right wrist was more
symptomatic and placed her on limited duty. In a January 27, 2010 report from Dr. Rao,
appellant complained of persistent, worsening pain and numbness in her right hand that was
pronounced in her middle finger. Dr. Rao noted that she had a longstanding history of carpal
tunnel syndrome since 2000. He examined her, observed positive Tinel’s sign and Phalen’s
maneuver and diagnosed “long-standing neglected” right carpal tunnel syndrome. In a
March 25, 2010 report, Dr. Rao commented that a March 16, 2010 electromyogram (EMG)
revealed mild right carpal tunnel syndrome with no denervation. Appellant opted for surgery
pending Office authorization. Dr. Rao stated that going through “workmen’s comp[ensation]”
was “quite appropriate for the work that she does.
The Office informed appellant on May 11, 2010 that the evidence submitted was
insufficient and advised her of the evidence needed to establish her claim.
Appellant submitted a March 16, 2010 EMG report from Dr. Mae C. Louie, a Boardcertified neurologist, which exhibited prolongation of the right median sensory distal latency and
a reduction in amplitude. Dr. Louie diagnosed mild right median mononeuropathy at or distal to
the wrist without denervation.
In a May 23, 2010 statement, appellant detailed that she handled a continuous flow of
mail from automation machinery since 1996, which involved constant grasping, aligning and
sorting of mail and lifting of trays between 10 and 30 pounds. She added that she had sustained
carpel tunnel syndrome in 2000 and thereafter wore hand and wrist splints.
By decision dated June 17, 2010, the Office denied appellant’s claim, finding the medical
evidence insufficient to demonstrate that her employment activity caused or aggravated a carpal
tunnel condition.
LEGAL PRECEDENT
An employee seeking benefits under the Act has the burden of establishing the essential
elements of 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 timely filed within the applicable time
limitation period of the Act, that an injury was sustained in the performance of duty as alleged
and that any disabilities and/or specific conditions for which compensation is claimed are
2

Appellant filed a previous claim that was accepted for bilateral carpal tunnel syndrome that resolved effective
March 14, 2001. She filed a notice of recurrence of medical treatment on January 28, 2010. In an April 20, 2010
letter, the Office notified her that the evidence was insufficient to establish causal relationship between the alleged
recurrence and the original work injury and that her claim may be better characterized as a new occupational
disease. The prior claim is not before the Board on the present appeal.

2

causally related to the employment injury.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.5 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s 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, 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
ANALYSIS
The evidence supported that appellant routinely grasped mail and lifted trays weighing up
to 30 pounds during her eight-hour shifts at the employing establishment. The medical evidence
showed that she was diagnosed with mild right carpal tunnel syndrome. The Board finds that
appellant failed to furnish medical evidence that sufficiently demonstrated that her work duties
caused or aggravated this condition.
In a duty status report identifying January 27, 2010 as the date of injury, Dr. Rao opined
that appellant’s carpal tunnel syndrome resulted from “grasping” on the job. In a March 25,
2010 report, Dr. Rao stated that going through “workmen’s comp[ensation]” was “quite
appropriate for the work that she does.” However, he did not offer any medical reasoning in
these reports explaining how grasping or other work factors caused or aggravated appellant’s
carpal tunnel syndrome. A medical opinion not fortified by medical rationale is of little probative
value.8
3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

See S.P., 59 ECAB 184, 188 (2007).

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); R.R., Docket No. 08-2010 (issued April 3, 2009).

7

I.J., 59 ECAB 408, 415 (2008); supra note 4 at 352.

8

George Randolph Taylor, 6 ECAB 986, 988 (1954).

3

Dr. Rao’s January 27, 2010 report as well as Dr. Louie’s March 16, 2010 EMG report are
of limited probative value since they did not provide any opinion regarding cause of injury.9
Appellant argues on appeal that the medical evidence of record was sufficient to establish
causation. As discussed, none of the reports contained a well-rationalized medical opinion
explaining the causal relationship between her employment factors and carpal tunnel condition.
Therefore, appellant failed to meet her burden of proof.
CONCLUSION
The Board finds that appellant did not establish that she sustained an occupational disease
in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the June 17, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 19, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

See J.F., Docket No. 09-1061 (issued November 17, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).
Furthermore, these reports failed to discuss the contributing employment factors described by appellant. See
John W. Montoya, 54 ECAB 306, 309 (2003).

4


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

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

Docket No. 21-0666
Issued: December 28, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On March 15, 2021 appellant filed a timely appeal from a January 26, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted August 27, 2020 employment incident.
FACTUAL HISTORY
On September 2, 2020 appellant, then a 52-year-old postal distributor, filed a traumatic
injury claim (Form CA-1) alleging that on August 27, 2020 she sustained a right ankle injury when

1

5 U.S.C. § 8101 et seq.

cleaning up an area for maintenance while in the performance of duty. She stopped work on that
date.
In an undated report of work status (Form CA-3), the employing establishment advised
OWCP that appellant returned to full-time work without restrictions effective September 2, 2020.
In a September 11, 2020 development letter, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence needed to establish her
claim. OWCP afforded appellant 30 days to submit the necessary evidence.
OWCP received an August 28, 2020 medical record from Marissa Edwards, a physician
assistant, noting that appellant related complaints of right ankle pain since August 27, 2020, and
that she denied any trauma or injury to the ankle. Ms. Edwards diagnosed a right ankle sprain and
ankle pain. OWCP also received a work status note from Ms. Edwards, holding appellant off work
on August 28, 2020.
A September 10, 2020 patient portal healthcare summary documented that appellant saw
Ms. Edwards on August 28, 2020 for a sprain of the right ankle, ankle pain, and chronic back pain;
and that appellant had been referred for x-rays of the ankle due to swelling, which occurred after
injuring her ankle at work on August 27, 2020.
In a return to work note dated September 10, 2020, Angela Johnson, a certified registered
nurse practitioner, released appellant to return to work effective September 12, 2020.
On September 24, 2020 Ms. Edwards noted that appellant was seen for chronic ankle pain
due to an injury, which occurred on August 27, 2020. In an accompanying work excuse note also
dated September 24, 2020, she indicated that appellant was seen on that date and requested that
appellant be excused from work on the night of September 23, 2020.
In a consultation report dated September 29, 2020, Dr. Christopher Schank, a Boardcertified podiatric surgeon, noted that appellant had an injury to the right ankle on August 27, 2020
and that she could return to work without restrictions. In a patient therapy order of even date, he
noted a diagnosis of right foot pain.
By decision dated October 15, 2020, OWCP denied the claim, finding that the evidence of
record was insufficient to establish that appellant had sustained an injury in the performance of
duty, as alleged.
OWCP continued to receive evidence, including a witness statement by E.C., appellant’s
coworker, who indicated that on August 27, 2020 he observed her wince and limp as she carried
supplies.
OWCP also received physical therapy notes for dates of service from October 2
through 19, 2020.
On October 28, 2020 appellant requested reconsideration of OWCP’s October 5, 2020
decision and resubmitted evidence previously of record.

2

By decision dated January 26, 2021, OWCP accepted that the August 27, 2020
employment incident occurred, as alleged. However, it denied appellant’s traumatic injury claim,
finding that she had not submitted evidence containing a medical diagnosis in connection with the
injury and/or events. Consequently, OWCP found that she had not met the requirements to
establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 3 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. The second component is whether the employment
incident caused a personal injury. 6
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 7 The opinion of
the physician must be based on a complete factual and medical background of the employee, 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 specific employment factors
identified by the employee. 8

2

Supra note 1.

3

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
7

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
8

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted August 27, 2020 employment incident.
In support of her claim, appellant submitted a consultation report dated September 29,
2020, wherein Dr. Schank, noted that appellant had an injury to the right ankle on August 27, 2020
and that she could return to work without restrictions. A therapy order also dated September 29,
2020 by Dr. Schank contained a diagnosis of right foot pain. The Board has held that pain is a
description of a symptom, not a firm diagnosis of a medical condition. 9 A medical report lacking
a firm diagnosis is of no probative value. 10 As such, this evidence is insufficient to meet
appellant’s burden of proof.
OWCP also received various notes signed by Ms. Edwards, a physician assistant, and
Ms. Johnson, a certified registered nurse practitioner, including a September 10, 2020 patient
portal healthcare summary, which documented a diagnosis of sprain of the right ankle and ankle
pain. The Board has long held that certain healthcare providers such as physician assistants, nurse
practitioners, and physical therapists are not considered qualified physicians as defined under
FECA.11 Their medical findings, reports and/or opinions, unless cosigned by a qualified physician,
will not suffice for purposes of establishing entitlement to FECA benefits. 12 Consequently, the
notes of Ms. Edwards and Ms. Johnson are insufficient to meet her burden of proof.
The remainder of the medical evidence includes physical therapy reports dated
October 2 through 19, 2020. As noted above, these reports have no probative value, because
physical therapists are not considered physicians as defined under FECA. 13
As the evidence of record is insufficient to establish a medical condition causally related
to the accepted employment incident, the Board finds that appellant has not met her burden of
proof.
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.

9

D.R., Docket No. 18-1408 (issued March 1, 2019); D.A., Docket No. 18-0783 (issued November 8, 2018).

10

J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

11

Section 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion
under FECA); E.W., Docket No. 20-0338 (issued October 9, 2020).
12

Id.; K.A., Docket No. 18-0999 (issued October 4, 2019); K.W., 59 ECAB 271, 279 (2007).

13

Supra note 11.

4

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted August 27, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the January 26, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 28, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-1196
Issued: March 16, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On August 2, 2021 appellant, through counsel, filed a timely appeal from a June 22, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted September 18, 2020 employment incident.
FACTUAL HISTORY
On November 23, 2020 appellant, then a 40-year-old assistant rural carrier, filed a
traumatic injury claim (Form CA-1) alleging that on September 18, 2020 she sustained a lower
back injury when a chair she was sitting in suddenly dropped down while in the performance of
duty.3
In a November 11, 2020 statement, appellant indicated that on September 18, 2020 she was
assigned to answer telephones. She explained that the chair that she initially sat on was very
uncomfortable and, as she was trying to get comfortable in it, the chair suddenly moved back and
she felt a disc in her back move. Appellant noted that she switched to sit in a different chair when
the chair slowly started dropping down and she felt a disc in her back move again. She indicated
that she stopped work and sought medical treatment on the alleged date of injury.
In a November 27, 2020 letter, the employing establishment controverted appellant’s
claim. It contended that the current claim was not a new injury, but was related to appellant’s
previous back injuries sustained on June 23, 2019 and April 19, 2020.
In a November 30, 2020 development letter, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the type of factual and medical
evidence necessary to establish her claim and provided a questionnaire for completion. OWCP
afforded appellant 30 days to respond.
OWCP subsequently received a September 18, 2020 emergency room report, Dr. Anitricia
Lumpkin, an osteopath, Board-certified in emergency and internal medicine, recounted that on
September 18, 2020 appellant “tweaked” her back when she sat on a low chair at work. She noted
that appellant had a history of back injury and described the June 23, 2019 and April 19, 2020
work incidents. Dr. Lumpkin reported physical examination findings of normal range of motion
and no tenderness. She indicated that a lumbar spine magnetic resonance imaging (MRI) scan
showed degenerative disc disease at L5-S1 and no suspicious osseous lesion. Dr. Lumpkin
assessed degenerative disc disease at L5-S1. Emergency room discharge instructions noted
diagnoses of back pain and lumbar degenerative disc disease.

3

OWCP assigned the present claim OWCP File No. xxxxxx425. Appellant has a previously accepted traumatic
injury claim related to a June 23, 2019 employment incident. OWCP assigned that claim OWCP File No. xxxxxx684
and accepted it for lumbar back strain. Appellant also previously filed a traumatic injury claim under OWCP File No.
xxxxxx088 for a back injury related to an April 19, 2020 employment incident. Appellant stopped work on that date
and accepted a full-time, limited-duty position on September 17, 2020. By decisions dated July 20 and November 24,
2020, and June 22, 2021, OWCP denied the claim.

2

In a September 21, 2020 after visit summary note, Dr. Shabnam Guard, Board-certified in
family medicine, noted the appellant was seen for back pain, unsteady gait, muscle weakness, and
numbness/tingling sensation of the skin.
In a September 21, 2020 return to work note, Dr. George Thomas, a family medicine
specialist, reported that appellant was seen in his office on that date and advised that she could
return to work on September 28, 2020.
OWCP also received a letter from Dr. Thomas dated July 2, 2020 who described
appellant’s June 23, 2019 and April 19, 2020 back injuries and the medical treatment that she had
received. He explained that a lumbar spine MRI scan demonstrated increased loss in disc height
in L5-S1, a mild broad-based disc bulge, and mild left foraminal narrowing. Dr. Thomas
recommended that appellant’s activities be limited to sitting and lifting up to 10 pounds.
In an epidural steroid injection procedure note dated October 1, 2020, Dr. Jacob Vella,
Board-certified in pain management and anesthesiology, noted a diagnosis of lumbar radiculitis.
An October 19, 2020 lumbar spine MRI scan report demonstrated minimal right and mild
left facet disease with minimal disc bulge at L4-5 and mild diffuse disc bulge and facet disease
without significant central foraminal canal stenosis or focal disc protrusion and a tiny old
Schmorl’s node inferior endplate of L5 with minimal diffuse posterior disc bulge at L5 -S1.
In a November 2, 2020 letter, Dr. Thomas recounted appellant’s April 19, 2020 back injury
and the medical treatment that she had received. He indicated that appellant was again seen on
September 18, 2020 and had informed him that she had injured her back again. Dr. Thomas
reported that appellant was referred to the hospital for evaluation and advised to follow-up with
physical therapy and pain management.
On December 15, 2020 OWCP received appellant’s completed development questionnaire.
Appellant indicated that she notified her supervisors, R.W. and G.T., of her injury that same day.
She also alleged that she had “agitated” her previous injury.
By decision dated January 5, 2021, OWCP accepted that the September 18, 2020 incident
occurred as alleged and that a medical condition was diagnosed ; however, it denied her claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between her diagnosed condition and the accepted employment incident.
On January 14, 2021 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review, which was held on April 12, 2021. She testified that
she had previous problems with her back, however, her symptoms were different after the
September 18, 2020 work incident. Appellant noted that she felt something in her lower back shift
and she was unable to walk due to pain.
Appellant submitted an emergency room registration form, a triage intake form, lab results,
and a healthcare consent transfer form dated September 18, 2020.
OWCP also received a lumber spine computerized tomography scan dated September 18,
2020, which noted findings of degenerative disc disease at L5-S1.
3

A duty status report (Form CA-17) dated January 12, 2021, containing an illegible
signature, indicated that appellant could work part-time, limited-duty for 4.75 hours per day. It
described the mechanism of injury as “uncomfortable chair injured employee’s back” and noted a
diagnosis of lumbar spondylosis.
In a report dated January 27, 2021, Dr. Timothy Holt, an orthopedic surgeon, indicated that
appellant was evaluated for low back pain that radiated down his bilateral legs. He reported that
appellant sustained back injuries on June 23, 2019 and April 19, 2020 and described how the
injuries had occurred. Dr. Holt also recounted that on September 18, 2020 appellant was
answering telephones and trying to get comfortable in a chair when she felt something move in
her back. Appellant noted that she changed chairs and the chair suddenly dropped do wn. On
physical examination of appellant’s back, Dr. Holt observed positive straight leg raise, cram, and
Laseague testing bilaterally. Sensory examination was intact. Dr. Holt reported that a lumbar
spine MRI scan demonstrated degenerative disc disease at L4-5 and L5-S1. He assessed lumbar
radiculopathy, cervicalgia, lumbar spine instabilities, and intervertebral disc displacement of the
lumbar region.
In a procedure note dated February 3, 2021, Dr. Vella noted that appellant underwent a
lumbar discogram, which showed findings of lumbar pain and degenerative disc disease.
Dr. Holt also provided examination notes dated February 4 through April 21, 2021. He
reported examination findings of limited range of motion and a shuffling gait. Dr. Holt assessed
lumbar radiculopathy and other intervertebral disc degeneration of the lumbar region.
In a February 10, 2021 addendum note, Dr. Thomas described the June 23, 2019 and
April 19, 2020 back injuries and the medical treatment that appellant had received. He noted that
appellant worked for the employing establishment as an assistant rural carrier and was diagnosed
with lumbar degenerative disc disease at L4-5 and L5-S1 according to an October 19, 2020 MRI
scan and February 3, 2021 lumbar discogram. Dr. Thomas reported that “the injuries suffered as
described in the note above can cause the disc disease diagnosed by the MRI and discogram. ”
A March 15, 2021 lumbar spine MRI scan demonstrated chronically degenerated discs at
L4-5 with minimal bulge, chronically degenerated disc protruding centrally at L5 -S1, and endplate
degeneration at L5-S1.
On April 21, 2021 appellant underwent anterior lumbar interbody fusio n at L5-S1 and
discectomy. OWCP received several documents related to the surgery, including lab results, preoperative test results, an operative report, and a hospital discharge instruction sheet.
In a May 26, 2021 letter, Dr. Holt recounted that appellant was originally diagnosed with
lumbar radiculopathy at L5-S1 with disc degeneration after a June 23, 2019 work injury. He also
described that appellant “felt something twist in her lower back” when she bent down to organize
packages and climbed three flights of stairs. Dr. Holt noted that a lumbar discogram reproduced
her typical pain level at the L5-S1 level. He reported that appellant tried all conservative measures
without success and eventually underwent an anterior interbody lumbar fusion. Dr. Holt opined:
“I think that her injury is related to the September 18 th incident.” He explained that appellant “may
have been at more risk secondary to the previous injuries, but the 20 th is the straw that broke the
4

camel’s back” after a sudden jolt from a chair. Dr. Holt reported that it was “most likely” an
aggravation of the preexisting injury. He noted diagnoses of lumbar radiculopathy, other spinal
instabilities of the lumbar region, other intervertebral disc displacement in the lumbar region, and
other disc degeneration in the lumbar spine.
In a May 27, 2021 report, Dr. Holt indicated that appellant was seen for post-operation
follow-up evaluation. He recounted that appellant was walking better since the surgery , but still
had some occasional burning sensation in her lower back. On physical examination, Dr. Holt
reported limited range of motion and no clonus. Neurological examination was positive for
numbness and weakness in the bilateral arms and legs. Dr. Holt diagnosed primary arthrodesis
and recommended that appellant remain off work for another six weeks.
In a June 22, 2021 decision, OWCP’s hearing representative affirmed the January 5, 2021
decision.4
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 6 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.9 There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the

The hearing representative noted that given the injury in the present claim appellant ’s claim should be
administratively combined. The Board notes that OWCP subsequently administratively combined OWCP File Nos.
xxxxxx088, xxxxxx425, and xxxxxx684, with the latter claim designated as the master file. The Board notes that
appellant has another appeal pending under OWCP File No. xxxxxx088. That appeal will proceed under Docket No.
21-1195.
4

5

Supra note 1.

6

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
7

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

8

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

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

5

time and place, and in the manner alleged. 10 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment incident
caused a personal injury. 11
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence. 12 The opinion of the physician must be based on a complete factual and medical
background of the employee, 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 factor(s) identified by the employee. 13 The weight of the medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
analysis manifested, and the medical rationale expressed in support of the physician’s opinion.14
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 15
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted September 18, 2020 employment incident.
Appellant received medical treatment from Dr. Holt. In reports dated January 27 through
May 26, 2021, he described that on September 18, 2020 appellant felt something move in her back
when she tried to get comfortable in a chair at work. Dr. Holt discussed appellant’s previous back
injuries and provided current examination findings. In a May 26, 2021 letter, he indicated that he
thought appellant’s injury was related to the September 18, 2020 employment incident. Dr. Holt
explained that appellant “may have been at more risk” after the previous injuries. He noted
diagnoses of lumbar radiculopathy, other spinal instabilities of the lumbar region, other
intervertebral disc displacement in the lumbar region, and other disc degeneration in the lumbar
spine. Dr. Holt concluded that it was “most likely” an aggravation of the preexisting injury. The
Board has held, however, that medical opinions that are speculative or equivocal in character are

10

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

11

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

12

See S.A., Docket No. 18-0399 (issued October 16, 2018); see also Robert G. Morris, 48 ECAB 238 (1996).

13

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).
14

James Mack, 43 ECAB 321 (1991).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

6

of limited probative value. 16 Accordingly, these reports are insufficient to establish appellant’s
claim.
In a September 18, 2020 emergency room report, Dr. Lumpkin described that appellant
“tweaked” her back at work. She reviewed appellant’s history of back injuries and provided
examination findings. Dr. Lumpkin assessed degenerative disc disease. Likewise, the
examination notes by Dr. Vella and Dr. Guard reported diagnoses of lumbar radiculopathy and
low back pain. However, these physicians did not provide an opinion on causal relationship. The
Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition or disability is of no probative value on the issue of causal relationship. 17
These reports, therefore, are insufficient to establish appellant’s claim.
Appellant was also treated by Dr. Thomas. In a July 2, 2020 letter, Dr. Thomas described
appellant’s previous June 23, 2019 and April 19, 2020 back injuries and reviewed the medical
treatment that she had received. In a November 2, 2020 letter, he indicated that he treated appellant
on September 18, 2020 because she had injured her back again. In a February 10, 2021 addendum,
Dr. Thomas reported that “the injuries suffered as described in the note above can cause th e disc
disease diagnosed by the MRI and discogram.” While he provided an opinion on causal
relationship, Dr. Thomas did not definitively relate appellant’s current lumbar condition to the
September 18, 2020 employment incident. He did not describe the accepted September 18, 2020
employment incident, nor provide any explanation of how the specific incident caused or
contributed to appellant’s current lumbar condition. The Board has held that medical opinion
evidence should reflect a correct history and of fer a medically sound explanation of how the
specific employment incident or work factors, physiologically caused injury. 18 These reports,
therefore, are insufficient to establish appellant’s claim.
OWCP also received a series of diagnostic tests. The Board has held, however, that
diagnostic tests, standing alone, lack probative value on the issue of causal relationship as they do
not address whether the employment incident caused a diagnosed condition. 19

16

J.W., Docket No. 18-0678 (issued March 3, 2020); D.B., Docket No. 18-1359 (issued May 14, 2019); Ricky S.
Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not be one of
absolute medical certainty, the opinion must not be speculative or equivocal. The opinion sho uld be expressed in
terms of a reasonable degree of medical certainty).
17

V.L., Docket No. 20-0884 (issued February 12, 2021); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
18

K.J., Docket No. 21-0020 (issued October 22, 2021); L.R., Docket No. 16-0736 (issued September 2, 2016); J.R.,
Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).
19

V.Y., Docket No. 18-0610 (issued March 6, 2020); G.S., Docket No. 18-1696 (issued March 26, 2019); A.B.,
Docket No. 17-0301 (issued May 19, 2017).

7

Appellant also submitted a Form CA-17 dated January 12, 2021 containing an illegible
signature. However, this report is of no probative value since reports lacking proper identification
do not constitute probative medical evidence.20
As there is no medical evidence of record establishing that appellant’s lumbar condition
was causally related to the accepted employment incident, the Board finds that appellant has not
met her burden of proof to establish a diagnosed medical condition causally related to the accepted
September 18, 2020 employment incident.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted September 18, 2020 employment incident.

20

A.W., Docket No. 21-0298 (issued August 26, 2021); C.B., Docket No. 09-2027 (issued May 12, 2010); Merton J.
Sills, 39 ECAB 572, 575 (1988).

8

ORDER
IT IS HEREBY ORDERED THAT the June 22, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 16, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9