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

)
)
)
)
)
)
)
)

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

Docket No. 15-1633
Issued: October 27, 2015

Case Submitted on the Record

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

JURISDICTION
On August 17, 2014 appellant filed a timely appeal from the July 8, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than 24 percent impairment of his right upper
extremity.
FACTUAL HISTORY
On May 11, 2006 appellant, a 52-year-old postal driver, sustained a traumatic injury in
the performance of duty while forcefully pulling the stuck door of a general purpose container.
OWCP accepted his claim for bilateral complete rotator cuff rupture. Appellant received a
1

5 U.S.C. § 8101 et seq.

schedule award for 16 percent impairment of his right upper extremity and 9 percent impairment
of his left upper extremity.
On June 11, 2013 appellant underwent a right reverse total shoulder arthroplasty and
tenodesis of the biceps tendon. On February 6, 2014 Dr. Daniel P. Dare, the attending Boardcertified orthopedic surgeon, reported that the arthroplasty was “doing actually quite well.”
Range of motion was approximately 65 to 70 percent of normal. Pain was in the functional
range with average strength. Appellant filed a claim for an increased schedule award.
In a decision dated November 19, 2014, OWCP denied an additional schedule award. It
noted that Dr. Dare did not respond to a request for an impairment rating. Appellant
acknowledged that his physician was not responding to the request for an impairment rating on
his total right shoulder replacement. He therefore requested that OWCP refer him for a second
opinion or to the district medical adviser.
OWCP referred appellant’s case to a medical adviser, who noted that the results of the
June 11, 2013 surgery were satisfactory. Referring to Table 15-5, page 405, of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009), the
medical adviser noted that appellant’s right shoulder arthroplasty represented 24 percent
permanent impairment of the upper extremity. As appellant had already received a schedule
award for 16 percent impairment of his right upper extremity, he was entitled to an award for an
additional 8 percent.
In March 2015 OWCP received a report from Dr. Dare, who apologized for the long
delay, explaining the chart and associated documents were misplaced. Dr. Dare reviewed
appellant’s history and found that he had done reasonably well following the arthroplasty. It was
his opinion that appellant’s impairment was 24 percent of the right upper extremity.
Given the opinions of OWCP’s medical adviser and Dr. Dare, an OWCP hearing
representative, reversed the November 19, 2014 denial of an increased schedule award and
directed OWCP to pay additional benefits.
In a decision dated July 8, 2015, OWCP issued a schedule award for an additional eight
percent impairment of appellant’s right upper extremity.
LEGAL PRECEDENT
The schedule award provision of FECA2 and the implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.4
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

2

For consistent results and to ensure equal justice under the law to all claimants, good
administrative practice necessitates the use of a single set of tables so that there may be uniform
standards applicable to all claimants. OWCP has adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.5 As of May 1, 2009, the sixth edition of the A.M.A.,
Guides is used to calculate schedule awards.6
ANALYSIS
Under the A.M.A., Guides, diagnosis-based impairment is the primary method of
evaluation for the upper extremities. The first step is to choose the diagnosis that is most
applicable for the region being assessed.7 Specific criteria for that diagnosis determine which
class is appropriate: no objective problem, mild problem, moderate problem, severe problem,
very severe problem approaching total function loss. The A.M.A., Guides assigns a default
impairment rating for each diagnosis by class. This default impairment rating may then be
adjusted using such grade modifiers as functional history, physical examination and clinical
studies.8
Table 15-5, page 405, of the A.M.A., Guides shows that a shoulder arthroplasty implant
represents a moderate impairment of the upper extremity ranging from 20 to 25 percent. The
default impairment rating is 24 percent. Procedures require that the grade modifiers associated
with functional history, physical examination, and clinical studies will be used to calculate a net
adjustment that permits modification of the default value.9 In other words, once the impairment
class is determined according to diagnostic criteria, the final impairment grade within a particular
class is determined by the grade modifiers.10
Both, Dr. Dare, the attending surgeon, and OWCP’s medical adviser ignored appellant’s
functional history, physical examination, and clinical findings. They simply found the default
impairment value for a shoulder arthroplasty implant and stopped there. They did not follow the
procedures for determining appellant’s final impairment.
The Board will therefore set aside OWCP’s July 8, 2014 decision and remand the case for
further development of the medical evidence. OWCP shall obtain a supplemental report from its
medical adviser that follows the impairment calculation methodology set forth in the A.M.A.,
Guides. The medical adviser shall address each grade modifier and identify the findings that
justify each modification of grade. After such further development of the evidence as may

5

20 C.F.R. § 10.404; Ronald R. Kraynak, 53 ECAB 130 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010).
7

A.M.A., Guides 387, 389 (6th ed. 2009).

8

Id. at 497.

9

Id. at 405.

10

Id. at 409.

3

become necessary, OWCP shall issue a de novo decision on appellant’s claim for an additional
schedule award.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of the
medical evidence is warranted. The A.M.A., Guides requires the proper consideration of grade
modifiers to determine appellant’s final impairment.
ORDER
IT IS HEREBY ORDERED THAT the July 8, 2014 decision of the Office of Workers’
Compensation Programs is set aside and the case remanded for further action.
Issued: October 27, 2015
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION,
Madisonville, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-1034
Issued: November 24, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 1, 2014 appellant, through his representative, filed a timely appeal from the
February 4, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied his claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the advanced degenerative arthritis in appellant’s right knee, for
which he underwent a total right knee replacement in 2007, was causally related to the accepted
work injury on September 18, 1987.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 18, 1987 appellant, a 38-year-old coal mine inspector (electrical),
sustained a traumatic right knee injury in the performance of duty while crawling during an
electrical inspection. Dr. James M. Donley, a Board-certified orthopedic surgeon, evaluated him
on September 23, 1987. He diagnosed tendinitis in the anterior aspect of the right knee.
Dr. Donley noted preexisting degenerative arthritis in the right knee and unstable knee ligaments.
He advised that appellant needed no further medical treatment and added that appellant had
maintained his regular work activities. OWCP accepted appellant’s claim for tendinitis of the
right knee.
In 2002 x-rays showed significant degenerative arthritis of the right knee with cystic
changes in the osseous structure with what appeared to be multiple spurs and possible loose
bodies. In 2003 Dr. Donley diagnosed osteoarthritis and administered regular injections of
viscosupplementation.
In 2007 appellant underwent a total right knee replacement. Indications for surgery
included advanced degenerative arthritis and failed conservative treatment.
On October 5, 2011 appellant filed a claim for a schedule award. In support thereof, he
submitted a September 20, 2011 impairment evaluation performed by Joseph D. Chenger, MD,
finding his good result following total knee replacement represented a 37 percent impairment of
the right lower extremity.
In a decision dated May 23, 2013, OWCP found that the medical evidence did not
establish that appellant required additional medical treatment due to a worsening of the accepted
work injury and the resulting right knee tendinitis without intervening cause.
Dr. David W. Gaw, a Board-certified orthopedic surgeon, examined appellant on
May 21, 2013. With respect to any preexisting problems, he noted that appellant was involved in
a motorcycle accident in 1975, at which time he bruised the right knee “but there was no surgery
involved following that accident although he apparently had a fracture of his right leg at that
time.” Dr. Gaw described the physical demands of appellant’s job as an underground coal miner
since 1969. Appellant began to have bilateral knee problems soon thereafter, including soreness
and swelling that would come and go. In September 1987, after he became an electrical
inspector, the pain and swelling became worse, so he sought medical attention. Appellant
continued to do his job but with increasing bilateral knee pain, more on the right, the severity of
which waxed and waned. In 2007 he had a total right knee replacement.
Dr. Gaw examined appellant and offered the following opinion on causal relationship:
“Based upon the history as given by the patient and the type of work that he
describes doing, it is more likely than not that the underground coal mining-type
work activities for 25 plus years, prior to the knee replacement, is the cause of his
need for the knee replacement surgery. These work activities were either the
significant factor in the development of arthritis involving the knee or it

2

aggravated an arthritic condition but his work activities are the most likely major
factor in his need for the total knee replacement.”
Dr. Gaw determined that appellant’s good result following surgery represented a 25
percent impairment of the right lower extremity under the American Medical Association,
Guides to the Evaluation of Permanent Impairment (6th ed. 2009). He stated that he had
reviewed the notes and operative reports of Dr. Chenger and Dr. Donley.
In a decision dated February 4, 2014, an OWCP hearing representative noted that
appellant had testified that his condition continued to worsen over the years, and he continued to
work underground, which aggravated his right knee symptoms. Therefore, appellant appeared to
be alleging a new injury for which he should pursue an occupational disease claim. The hearing
representative also noted that Dr. Gaw attributed appellant’s right knee surgery to ongoing
employment exposure, which implicated a new injury. She found that the medical evidence
failed to establish a recurrence of a medical condition causally related to the September 18, 1987
work injury.
Appellant’s representative argues that the finding that appellant’s accepted employment
has not remained active is not supported by the evidence.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his or her duty.2 A claimant seeking benefits under
FECA has the burden of proof to establish the essential elements of his or her claim by the weight
of the evidence,3 including that he or she sustained an injury in the performance of duty and that
any specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4
The evidence generally required to establish causal relationship is rationalized medical
opinion evidence. The claimant must submit a rationalized medical opinion that supports a causal
connection between his or her claimed condition and the employment injury. The medical opinion
must be based on a complete factual and medical background with an accurate history of the
claimant’s employment injury, and must explain from a medical perspective how the claimed
condition is related to the injury.5

2

Id. at § 8102(a).

3

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

4

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

5

John A. Ceresoli, Sr., 40 ECAB 305 (1988).

3

When an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.6
ANALYSIS
OWCP accepts that appellant sustained a traumatic injury in the performance duty on
September 18, 1987 while crawling during an electrical inspection. Dr. Donley, an orthopedic
surgeon, saw him five days later and diagnosed tendinitis in the anterior aspect of the right knee.
OWCP accepted appellant’s traumatic injury claim for tendinitis.
In 2007 appellant underwent a total right knee replacement, for which he filed a schedule
award claim.
The question that arises is relationship of the knee replacement surgery to the accepted
work injury on September 18, 1987. The record indicates that the work injury was not severe
enough to prevent appellant from performing his usual duties as a mine inspector. It appears the
only medical attention he required was an appointment with Dr. Donley on September 23, 1987.
Dr. Donley examined him and found that no further medical attention was necessary.
Dr. Gaw, an orthopedic surgeon, did not offer a rationalized opinion on causal
relationship. He did not address what happened on September 18, 1987 or otherwise
acknowledge the traumatic nature of appellant’s accepted tendinitis injury. Instead, Dr. Gaw
stated that appellant had developed an occupational disease over the course of his career. He
mentioned that appellant’s pain and swelling had become worse in September 1987, but he did
not discuss Dr. Donley’s diagnosis of tendinitis or appellant’s discharge from further care
following the September 18, 1987 work injury, or OWCP’s acceptance of tendinitis. Medical
conclusions based on inaccurate or incomplete histories are of diminished probative value.7
It was Dr. Gaw’s opinion that underground coal mining activities over 25-plus years
more likely than not caused the need for appellant’s knee replacement surgery. Such work
activities were either the significant factor in the development of arthritis or had aggravated
appellant’s arthritic condition, but Dr. Gaw did not explain from an orthopedic or physiological
point of view how underground coal mining activities over many years caused or aggravated
degenerative arthritis. He did not adequately address what evidence demonstrated to him that
appellant’s degenerative arthritis was materially affected by coal mine work in federal
employment, as opposed to the natural progression of a preexisting condition. Dr. Gaw gave no
indication how he distinguished the two. The mere fact that a condition manifests itself or
worsens during a period of federal employment raises no inference of causal relationship.8
6

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

7

James A. Wyrick, 31 ECAB 1805 (1980) (the physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).
8

Steven R. Piper, 39 ECAB 312 (1987).

4

Temporal relationships are thus distinguished from causal relationships, the former being necessary
but not sufficient to establish the latter. Medical conclusions unsupported by rationale are of
diminished probative value.9
The Board finds that the medical evidence of record does not support that the need for
surgery arose from the injury of September 18, 1987. The medical evidence tends to support, but
does not establish, that the need for surgery arose from a different injury, namely, degenerative
arthritis developed over the course of appellant’s career. As noted by the hearing representative,
appellant may pursue an occupational disease claim.
Given the record presented on appeal, the Board finds that appellant has not met his
burden to establish the degenerative arthritis in his right knee, for which he underwent a total
right knee replacement in 2007, was causally related to the September 18, 1987 work injury.
Dr. Gaw based his opinion on an incomplete history and did not offer medical rationale to
establish the critical element of causal relationship. The Board will therefore affirm OWCP’s
February 4, 2014 decision.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden to establish that the advanced
degenerative arthritis in his right knee, for which he underwent a total right knee replacement in
2007, was causally related to the accepted work injury on September 18, 1987.

9

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

5

ORDER
IT IS HEREBY ORDERED THAT the February 4, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 24, 2014
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS BENEFITS ADMINISTRATION,
Winston Salem, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-1596
Issued: July 10, 2015

Case Submitted on the Record

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

JURISDICTION
On July 16, 2014 appellant filed a timely appeal of a July 2, 2014 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 an emotional
condition or a consequential physical condition while in the performance of duty.
On appeal appellant contends that she has submitted ample proof to establish that she
sustained an emotional condition while in the performance of duty and not an emotional reaction
to an administrative or a personnel action. She states that although her complaint filed with the

1

5 U.S.C. § 8101 et seq.

Equal Employment Opportunity Commission (EEOC) was settled, the evidence of record shows
that the incidents which served as a basis for her complaint occurred.
FACTUAL HISTORY
On July 24, 2012 appellant, then a 44-year-old veteran claims examiner, filed an
occupational disease claim alleging that on November 18, 2011 she first became aware of her
panic attacks, chronic anxieties, migraine headaches, esophageal spasms, and high neurological
reflexes. She alleged that on July 18, 2012 she first realized that her conditions were due to a
hostile and offensive work environment, and continuous discrimination.
By letter dated August 15, 2012, OWCP requested that appellant submit factual and
medical evidence to establish her claim. It also requested that the employing establishment
respond to her allegations.
In a July 26, 2012 memorandum, appellant alleged that she was subjected to a hostile and
offensive work environment. She was also subjected to discrimination based on her race,
gender, and disability. Due to her medical conditions appellant stepped down from a GS-12 to a
GS-11 position in March 2012 and was placed on an individual progress review for the first time.
While working as a training instructor in October and November 2008 another instructor directed
demeaning and belittling comments towards appellant in front of her students. Appellant
reported this incident to her supervisor and in February 2009 a manager ordered her and the
instructor to work out their problem. The instructor allegedly responded in a derogatory,
intimidating, and demeaning tone of voice that he could not work with appellant. He also
questioned her ability to perform her job.
In July 2011 appellant was reassigned to a position as a quality review specialist on a
development team. She alleged that her team supervisor communicated with her and other team
members in an intimidating and derogatory tone.
In early November 2011 appellant was reassigned to an appeals team. Appellant’s
supervisor had denied her request to be exempt from this assignment. He interrupted a workrelated discussion appellant was having with a veteran’s service representative by stating that her
discussion was not permitted in that area and he ordered her back to work. In a separate incident,
appellant’s supervisor bullied and threatened her by slapping her desk twice and telling her not to
be late for a meeting. He directed offensive ethnic and sexual jokes and statements towards
appellant and a female employee while in the presence of her team members. Appellant’s
supervisor also made derogatory comments on his Facebook page about employees.
Appellant also alleged that her September 26, 2011 request to participate in challenge
training sessions was denied on October 6, 2011. On May 11, 2012 her request to participate in
the same training was again denied because an assistant director believed that her medical
condition prevented her from being ready for the training. Appellant filed a grievance alleging
discrimination based on her disability regarding the denial of her training requests. On
January 4, 2012 she was removed from the leave transfer program because she had been released
by her physician, but stated that her physician did not release her until May 3, 2012. On
February 29, 2012 appellant applied for the leave donation program which was approved for

2

only a few days. On April 23, 2012 her request for 44 hours of advanced sick leave for a period
of leave without pay (LWOP) in April 2012 was denied as she had excessive LWOP leave and
no accrued leave. Appellant’s request for reconsideration regarding this matter of work was
denied without explanation. Her January 2012 request for reasonable accommodation to work
from home due to her panic attacks was denied, but her office work hours were temporarily
changed to four hours a day in March 2012 and six hours a day on April 6, 2012. On May 22
and August 22, 2012 appellant filed a grievance regarding the above-noted alleged incidents. On
June 13, 2012 her request for leave under the Family and Medical Leave Act (FMLA) was
denied because she had not worked enough hours. On June 28, 2012 appellant’s June 14, 2012
request for FMLA leave was approved, but only for two days a week. Following a meeting with
upper management and a union representative on July 24, 2012 her request for FMLA leave was
approved and backdated to May 23, 2012.
In a July 26, 2012 witness statement, C.F., a coworker, related that both she and appellant
were intimidated by their supervisor. She described her own experiences with her supervisor and
a coworker. Regarding appellant’s experiences, C.F. stated that the supervisor hit appellant’s
desk twice and told her not to be late for a meeting. During a team huddle the supervisor did not
explain that appellant’s decision to leave one team for another team was her choice which
appeared to be a purposeful slight towards her. He interrupted appellant’s discussion with a
veteran’s service representative by stating that the discussion was not permitted in that particular
area.
In an August 6, 2012 letter, B.M., another coworker, related that during training from
October 2008 to February 2009, she witnessed numerous occasions where an instructor
interrupted appellant while she was conducting a training class. The instructor either disagreed
with appellant or corrected her. B.M. and her classmates believed that his behavior was
unprofessional.
In an August 6, 2012 letter, M.R.G., a coworker, described an uncomfortable experience
she had with a team supervisor.
In an August 14, 2012 letter, S.W., a coworker, stated that, while appellant was
conducting a training class, she was interrupted by another instructor who disagreed with her or
corrected her. She related that the instructor was condescending and unprofessional. In an
undated witness statement, S.W. related that she donated leave to appellant, but was
subsequently notified by a human resources representative that her donation would not be
processed because appellant no longer qualified for the leave donation program.
In a letter dated August 22, 2012, appellant’s husband related that appellant told him
about being verbally attacked by a coworker and later being reassigned to the same team as this
coworker, and the sexual comments her boss made to her. He described her emotional and
physical reaction to these incidents.
In an August 27, 2012 letter, G.M., a union vice president, stated that appellant informed
her that during the week prior to February 17, 2009 she and a male employee were ordered by a
manager to resolve their conflicts. Appellant felt bullied and threatened by the employee who
told her that she did not know how to do her job. G.M. stated that appellant refused to file a

3

complaint regarding the February 17, 2009 incident because doing so would result in more
mental distress. Prior to this incident appellant claims her work ethic was outstanding, but it
declined drastically following this incident. G.M. related that in late August or early
September 2011 a human resources representative tried to persuade her not to donate leave to
appellant.
In a September 21, 2012 witness statement, J.R.A., a coworker, related that he was not
coerced into donating 10 hours of leave to appellant.
In an undated narrative statement, S.C., a coworker, stated that he was in a meeting on or
about June 13, 2012 when Mrs. M., a human resources liaison, asked appellant if she had
answered all of her questions regarding the period of her FMLA leave since appellant was her
number one critic.
Appellant submitted numerous medical records dated June 4, 2010 to August 28, 2012
which addressed her emotional and physical conditions, disability status and work capacity. In
reports dated August 28, 2012, Dr. Christopher B. Aiken, a Board-certified psychiatrist, found
that appellant had panic disorder caused by a colleague’s harassment and bullying behaviors.
On August 23, 2012 the employing establishment challenged appellant’s claim. It stated
that it was unable to provide a thorough response to appellant’s allegations because she did not
identify the people involved and there was no information regarding her allegations in her file.
Management had no record of a complaint received. The employing establishment had
submitted appellant’s name to serve as an instructor, but there were concerns about her ability to
maintain a regular work schedule while on travel. However, appellant had been released to full
duty by her medical provider, but she was not selected for the training. She had applied for leave
under FMLA multiple times and had been approved. However, the employing establishment had
requested clarification regarding the frequency and duration of episodes associated with her
FMLA condition. Appellant’s physician indicated that the frequency occurred one to two times
every one to two weeks and lasted no more than one to two days. The information provided by
the medical provider did not support the amount of appellant’s absence. Appellant had applied
for the voluntary leave transfer program several times and was approved. She had been told not
to solicit for leave donations. Employees complained to the human resources office about her
solicitation for donated leave. The employing establishment noted that donations were supposed
to be anonymous. An employee made an attempt to donate, but did not have annual leave hours,
and had been under the mistaken impression that sick leave could be donated. Appellant applied
for reasonable accommodation to work at home, but her position was not one that could be
performed as telework. She was provided an accommodation of mutual agreement which
allowed her to work half days for the next two months as tolerated until she received further
documentation of her improvement. Appellant’s May 22, 2012 grievance was rescinded as the
employing establishment granted her request for the donated leave program.
In an October 18, 2012 decision, OWCP denied appellant’s claim. It found that she had
failed to provide sufficient evidence to establish a compensable factor of employment.
By letter dated November 7, 2012, appellant requested an oral hearing before an OWCP
hearing representative. In a letter dated January 4, 2013, counsel requested that witness

4

subpoenas be issued to the coworkers who had observed appellant being verbally abused by her
coworkers. He also requested a subpoena for records pertaining to disciplinary actions and
investigations involving appellant, and her request for reasonable accommodation.
During the March 5, 2013 telephone hearing, appellant made several allegations which
reiterated her prior assertions regarding the actions of an instructor and her supervisor who she
identified as J.T. and V.H., respectively. She also alleged that his supervisor had declined her
request to remove a mirror outside his office which reflected women from the chest down.
Appellant realized that her panic attacks were related to her employment after J.T. walked by her
while she was attending a training class. She contended that around June 14, 2012, J.T. posted a
comment on Facebook stating that he could not determine who the “hoes” were because so many
women had tattoos on their lower backs.
Following the March 5, 2013 hearing, appellant submitted a memorandum dated April 4,
2013 in which she contended that several work incidents, as supported by witness statements,
constituted compensable employment factors. The allegations included that J.T. repeatedly
belittled appellant in front of other coworkers; that in 2011 her supervisor committed error when
he assigned her to work with the belittling coworker, J.T., despite the 2009 incident; and that the
employing establishment further committed error in denying appellant’s request for training
outside the office, leave transfer, and FMLA leave. Counsel contended that the medical
evidence established that she sustained an emotional condition due to J.T.’s actions.
In a March 7, 2013 letter, S.W. clarified her August 14, 2012 statement, claiming that, on
a weekly basis, she witnessed an instructor treat appellant in a condescending manner by
interrupting, disagreeing, and correcting her as she taught and conducted general reviews of
previously taught subjects.
In another letter dated March 7, 2013, B.M. referenced her prior August 6, 2012 letter
and reiterated that she witnessed unprofessional behavior of two instructors that was directed
towards appellant while she was teaching a training class from October 2008 to February 2009.
It was evident that appellant was nervous and often flustered when interrupted or corrected by
one of these instructors.
In a March 11, 2013 letter, the union vice president further described the February 17,
2009 incident. Appellant told her that J.T. had demeaned her in front of students. She reported
this incident on several occasions to her immediate supervisor, and her supervisor’s manager,
called a meeting between appellant and J.T. to work out their problem. When the manager left
the room, J.T. immediately started to degrade appellant by telling her she did not know how to
do her job. Appellant told the union vice president that she felt bullied, fearful, and intimated by
this incident. When the manager returned to the room, appellant broke down and cried. She
stated that the manager apologized for making a bad management decision. The union vice
president stated that appellant was emotionally distraught over this situation as she was shaking
and crying. Appellant became very withdrawn during late 2011 and early 2012. She also lost an
extreme amount of weight in a short period of time and a lot of time from work due to panic
attacks and other medical issues. Appellant filed an EEO complaint regarding the 2009 incident
and her continuous hostile work environment.

5

In a letter also dated March 11, 2013, C.F. described inappropriate actions of supervisors
directed at her and other employees.
By decision dated May 1, 2013, an OWCP hearing representative affirmed the
October 18, 2012 decision, finding that appellant had not established a compensable factor of
employment. The hearing representative also denied her subpoena requests.
In a July 2, 2013 letter, appellant requested reconsideration and submitted additional
evidence. In affidavits dated March 20 and April 8, 2013, G.M. and C.F., respectively,
addressed appellant’s EEO claim which alleged that she was subjected to a hostile work
environment from February 2009 to July 2012.
In a June 11, 2013 statement, D.W., a coworker, related that during his training class
from the fall of 2008 to early 2009, he noticed a tense and somewhat adversarial interaction
between appellant and J.T. Oftentimes the alleged coinstructor demonstrated a demeaning and
negative attitude towards appellant. The coworker did not recall a specific instance or specific
times when this occurred. Midway through the course appellant left the classroom and returned
visibly upset and appeared to have been crying. She gathered her things and left for the
remainder of the day. D.W. stated that no real explanation was given and the matter was
dismissed as being a personal matter.
In an October 7, 2013 decision, OWCP denied modification of the May 1, 2013 decision,
finding that appellant had not established a compensable factor of employment.
By letter dated April 10, 2014, appellant requested reconsideration and submitted
additional evidence and a March 25, 2014 EEO settlement agreement which indicated that
appellant had cancelled and withdrawn her complaint against the employing establishment with
prejudice and that the employing establishment would pay her a lump-sum payment of
$20,000.00 as full and complete resolution of all claims. The agreement stated that it did not
constitute an admission of guilt, fault, or wrongdoing by either party. In addition, the agreement
was not considered a finding of discrimination against the employing establishment or its
employees.
In a March 11, 2014 witness statement, C.F. related her experiences of harassment by the
supervisor V.H. She claimed that he bullied appellant. C.F. stated that she was present when he
ignored appellant as appellant explained a fundraiser to him. When appellant finished speaking
V.H. scheduled her for work along with challenge training knowing that she did not do well in
the training area. C.F. stated that appellant was displeased and upset by the actions and comment
of an unidentified employee directed towards her. She asserted that appellant was discriminated
against based on her gender and disability which included panic attacks and a back condition.
In an undated statement, S.W. reiterated her observations of J.T.’s inappropriate actions
directed towards appellant during training class and her attempt to donate 20 hours of leave to
appellant.
In a May 23, 2014 memorandum, a human resources liaison contended that appellant was
not entitled to a merit review as the documents submitted did not support her allegations. She
further contended that, among other things, the EEO settlement agreement did not constitute an
6

admission of any wrongdoing and all parties agreed that it was not considered a finding of
discrimination. The human resources liaison asserted that C.F.’s witness statement was not an
official court record or reported document and was not transcribed by the employing
establishment’s attorney. The substance of her statement was hearsay, and contained
contradictions. C.F. had never verbally or formally complained to management about any of her
allegations. The human resources liaison contended that S.W.’s statement did not establish that
she or appellant had been discriminated against based on gender by J.T. She further contended
that the statements of C.F. and S.W. were based on notes taken by unidentified union stewards
that were not signed by the witnesses.
In a July 2, 2014 decision, OWCP denied modification of the October 7, 2013 decision,
finding that the evidence submitted failed to establish a compensable factor of employment.
LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by factors of his or her federal employment.2 To establish that he or she
sustained an emotional condition in the performance of duty, a claimant must submit: (1) factual
evidence identifying employment factors or incidents alleged to have caused or contributed to his
or her condition; (2) medical evidence establishing that he or she has an emotional or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that the identified
compensable employment factors are causally related to his or her emotional condition.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but, nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.4 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.5
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA6 However, the Board
2

Pamela R. Rice, 38 ECAB 838 (1987).

3

See Donna Faye Cardwell, 41 ECAB 730 (1990).

4

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

5

Gregorio E. Conde, 52 ECAB 410 (2001).

6

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).

7

has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.7
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.8
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.9 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.10
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish an emotional
or a physical condition causally related to factors of her federal employment.
In the present case, appellant has not attributed her emotional condition to the
performance of her regular duties as a claims examiner under Cutler.11
Appellant contended that she was a victim of harassment, discrimination and verbal
abuse by her supervisors and J.T., a fellow training instructor, based on her race, gender, and
disability which she alleged created a hostile work environment. Mere perceptions of
harassment or discrimination are not compensable under FECA.12 Unsubstantiated allegations of
harassment or discrimination are not determinative of whether such harassment or discrimination
occurred. A claimant must establish a factual basis for her allegations with probative and
reliable evidence.13 Witness statements from C.F., B.M., S.W., G.M., and D.W. indicated that
appellant’s supervisor hit appellant’s desk twice, told her not to be late for a meeting, and to end
a conversation she was having with an employee. Their statements also indicated that instructors
interrupted, disagreed with, and corrected her in a condescending and an unprofessional manner
7

See William H. Fortner, 49 ECAB 324 (1998).

8

Ruth S. Johnson, 46 ECAB 237 (1994).

9

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

10

Id.

11

Supra note 4.

12

James E. Norris, 52 ECAB 93 (2000).

13

Id.

8

while she was conducting a training class. They related that appellant felt bullied by the other
instructors who believed she was incapable of performing her job.
The Board finds that C.F., B.M., and S.W. failed to either provide any specific details of
dates of these incidents or the identity of the individuals who they believed had harassed
appellant. The Board finds that their general statements do not constitute sufficient evidence of
harassment, discrimination, or verbal abuse on the part of employing establishment personnel.
Similarly, the statements of C.F. and D.W., that they witnessed supervisors V.H. and J.T.
ignore and demean appellant, and knowingly assign her work that she could not perform are of a
general, unspecific nature and, therefore, are also insufficient to establish harassment,
discrimination, or verbal abuse on the part of the employing establishment. D.W. stated that he
could not remember specific instances or times when supervisor J.T. displayed the stated
behavior. The descriptions provided by C.F. and M.R.G. of their own personal experiences
involving inappropriate and uncomfortable actions of their supervisors are not relevant to
appellant’s claim.
G.M. related that she was told by appellant that supervisor J.T. had demeaned her in front
of her students on February 17, 2009, and appellant described her emotional and physical
reaction to this incident. Appellant’s husband stated that she told him that she was verbally
attacked by a coworker and was later reassigned to work with this same coworker and that her
boss made sexual comments to her. As neither G.M. nor appellant’s husband actually witnessed
these incidents, their statements are of limited probative value. Appellant did not submit any
witness statements to support her contentions that there was a mirror hanging outside her
supervisor’s office or that she asked that it be removed and there is no evidence that supervisor
J.T. posted derogatory sexual comments on Facebook. The Board finds that the factual evidence
fails to support appellant’s allegations of harassment, discrimination, and verbal abuse by the
employing establishment. Therefore, appellant has not established a compensable employment
factor.
Appellant’s remaining allegations regarding the assignment and monitoring of work,14
denial of requests to attend training,15 denial of request for telework,16 denial of leave requests,17
and filing of an EEO complaint alleging discrimination,18 are administrative matters. These are
not compensable without a showing of error or abuse by the employing establishment. Appellant
contended that her requests for a reasonable accommodation and leave under FMLA were denied
and that she was removed from the leave transfer program. She also stated that the employing
establishment temporarily changed her work hours to accommodate her panic attacks and it
14

Donney T. Drennon-Gala, 56 ECAB 469, 475 (2005); Beverly R. Jones, 55 ECAB 411, 416 (2004); Charles D.
Edwards, 55 ECAB 258, 270 (2004).
15

R.H., Docket No. 13-1193 (issued May 29, 2014); C.B., Docket No. 11-1457 (issued February 10, 2012); see
Lorraine E. Schroeder, 44 ECAB 323, 330 (1992).
16

Ernest J. Malagrida, 51 ECAB 287 (2000).

17

J.C., 58 ECAB 594 (2007).

18

Michael A. Salvato, 53 ECB 666, 668 (2002).

9

approved her request to be reinstated in the leave donation program and approved her request for
leave under FMLA. Regarding the denial of appellant’s request to attend training the employing
establishment stated that it was concerned about appellant’s ability to work a regular schedule
while on travel due to her medical condition.
Regarding the denial of her request for telework, the employing establishment determined
that her position could not be performed remotely.
The record contains a March 25, 2014 EEO complaint settlement agreement concerning
appellant’s allegation of discrimination, but the agreement explicitly indicated that there was no
finding of wrongdoing by either party or that a finding of discrimination against the employing
establishment or its employees was considered.19
Regarding the denial of appellant’s request for leave under FMLA and participation in
the leave transfer program, the employing establishment related that it had approved her requests
many times. S.C. witnessed Mrs. M. answer appellant’s questions concerning the period of her
FMLA leave. While J.R.A. stated that he was not coerced into donating 10 hours of leave to
appellant, the employing establishment noted that employees had complained that appellant had
improperly solicited them to donate leave in violation of its anonymous leave donation policy.
G.M.’s statement that a human resources representative tried to persuade her not to donate leave
to appellant failed to either provide any specific details of dates of this incident or the identity of
the individual who tried to prevent the leave donation. There was no credible evidence of error
or abuse by the employing establishment in handling the above-stated administrative matters.
Mere disagreement or dislike of a supervisory or managerial action will not be compensable
absent evidence of error or abuse.20 The Board finds that appellant has not established any error
or abuse related to these administrative matters.
As appellant has not established a compensable work factor, the Board will not address
the medical evidence.21
On appeal, appellant contended that she has submitted ample proof to establish an
emotional condition while in the performance of duty. She stated that, although her EEO
complaint was settled, the evidence of record showed that the incidents which served as a basis
for her complaint occurred. After its review of the case, the Board finds no probative evidence
of error or abuse based on the evidence of record.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition while in the performance of duty or a physical condition resulting therefrom.

19

Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

20

A.K., Docket No. 14-437 (issued June 9, 2014).

21

Karen K. Levene, 54 ECAB 671 (2003).

10

ORDER
IT IS HEREBY ORDERED THAT the July 2, 2014 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 10, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.D., Appellant
and
U.S. POSTAL SERVICE, OKLAHOMA
PERFORMANCE CLUSTER,
Oklahoma City, OK, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-249
Issued: June 12, 2012

Case Submitted on the Record

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

JURISDICTION
On November 12, 2011 appellant filed a timely appeal from the May 17, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) granting 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 met his burden of proof to establish that he has more than
a six percent impairment of his left and right arms, for which he received schedule awards.
FACTUAL HISTORY
In June 2007, OWCP accepted that appellant, then a 62-year-old letter carrier, sustained
bilateral carpal tunnel syndrome, cervical spondylosis without myelopathy and spinal stenosis of
1

5 U.S.C. §§ 8101-8193.

the lumbar region due to his repetitive work duties over time. On October 18, 2007 he
underwent cervical spine surgery, including fusion between C3 and C7. On March 23, 2009
appellant underwent left carpal tunnel release surgery. The procedures were authorized by
OWCP.
In a February 4, 2010 report, Dr. Harvey Drapkin, an attending osteopath and Boardcertified neurologist, noted that appellant denied major weakness in his arms. He indicated that
motor examination of the arms revealed a mild restriction of shoulder motion bilaterally but no
major weakness. Sensory testing revealed vibratory and light touch sensation to be preserved
over all four limbs and deep tendon reflexes were 1-1/2+ and symmetrical in both upper and
lower extremities. Dr. Drapkin stated that on the date of examination, February 4, 2010, he
performed electromyography (EMG) testing of the dermatomes from C4 to T1 on the left and
found no evidence of active denervation such as fibrillations or positive sharp waves. He
indicated that the study was normal.
In an August 13, 2010 report, Dr. Michael Hebrard, an attending physical medicine and
rehabilitation physician, noted that appellant had undergone cervical surgery from C3 to C7 and
had ongoing complaints. Upon examination, appellant had 3+/5 motor strength in elbow flexion
and extension bilaterally and 3+/5 grip strength bilaterally. Using the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed.
2009), Dr. Hebrard rated appellant under Table 15-20 on page 434 for peripheral nerve root
impairment of the upper extremities affecting the brachial plexus, C5 through C8 and T1. He
calculated for the left arm a 43 percent impairment due to moderate sensory deficit and a 38
percent impairment due to moderate motor deficit resulting in a 65 percent impairment of the left
arm after use of the Combined Values Chart on page 604. With respect to the right arm,
Dr. Hebrard determined that appellant had a 23 percent impairment due to sensory deficit and a
38 percent impairment due to motor deficit resulting in a 52 percent impairment of the right arm
after using the Combined Values Chart.
In an October 28, 2010 report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon
and OWCP’s medical adviser, stated that the medical evidence did not appear to support that
appellant had a work-related peripheral nerve injury extending from the cervical region into the
arms. He recommended that appellant be referred to a second opinion physician for further
evaluation of any permanent impairment.
In a March 2, 2011 report, Dr. Michael S. Smith, Board-certified in physical medicine
and rehabilitation, served as the second opinion referral physician. He reported appellant’s
medical history and the findings on physical examination and diagnostic testing. Upon
examination, appellant had a general absence of two-point discrimination in both median nerves
and that he had a negative Tinel’s sign at both elbows and wrists. The results of February 4,
2010 EMG testing showed normal ulnar nerve conduction on the left and normal findings of C4
through T1 on the left. Dr. Smith stated that appellant reached maximum medical improvement
by March 23, 2010 and diagnosed several conditions, including bilateral carpal tunnel syndrome
status post release on the left with median nerve dysesthesias, cervical spondylosis and spinal
stenosis without myelopathy or radiculopathy, status post cervical spine fusion with limited
range of motion and persistent pain, and lumbar spinal stenosis and intermittent back pain
without myelopathy or radiculopathy. He determined that, under Table 15-23 on page 449 of the

2

sixth edition of the A.M.A., Guides, appellant had EMG test findings consistent with grade
modifier 1, history consistent with grade modifier 3 and physical findings consistent with grade
modifier 3. Adding these values yielded an average of 2.33 which rounded down to grade
modifier 2. Dr. Smith indicated that, when considering that appellant’s disabilities of the arm,
shoulder and hand (QuickDASH) score fell under the severe range, his condition in each arm fell
under a six percent impairment under Table 15-23. He noted that the current examination and
most recent EMG test findings did not support an ulnar neuropathy. Dr. Smith further found
that, with respect to his cervical and lumbar spondylosis, appellant did not have any findings of
spinal nerve injury or myelopathy that could be supported by the spinal nerve tables of the
A.M.A., Guides. He stated, “As a result, unfortunately, no impairment can be provided for the
cervical or lumbar spine.” Dr. Smith concluded that appellant had a six percent permanent
impairment of his left arm and a six percent permanent impairment of his right arm due to
neuropathy associated with the median nerves.
In a March 31, 2011 report, Dr. Ronald H. Blum, a Board-certified orthopedic surgeon
serving as an OWCP medical adviser, reviewed the medical evidence. He provided an
assessment of appellant’s arm impairment, under Table 15-23 of the sixth edition of the A.M.A.,
Guides, that was in accordance with the evaluation of Dr. Smith and agreed that appellant had a
six percent permanent impairment of his left arm and a six percent permanent impairment of his
right arm. Dr. Blum noted that Dr. Smith found no evidence for myelopathy or radiculopathy in
the upper and lower extremities resulting from the accepted spinal conditions and posited that,
therefore, appellant had no permanent impairment resulting from the accepted spinal conditions.
In a May 17, 2011 decision, OWCP granted appellant schedule awards for a six percent
permanent impairment of his left arm and a six percent permanent impairment of his right arm.
The awards ran for 37.44 weeks March 22 to December 22, 2010 and were based on the opinions
of Dr. Smith and Dr. Blum.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.4 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.5 It is well established that in determining the amount of a

2

Id. at § 8107.

3

20 C.F.R. § 10.404 (1999).

4

Id.

5

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

3

schedule award for a member of the body that sustained an employment-related permanent
impairment, preexisting impairments of the body are to be included.6
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.7 In
Table 15-23, grade modifier levels (ranging from zero to four) are described for the categories
test findings, history and physical findings. The grade modifier levels are averaged to arrive at
the appropriate overall grade modifier level and to identify a default rating value. The default
rating value may be modified up or down by one percent based on functional scale, an
assessment of impact on daily living activities.8
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome, cervical
spondylosis without myelopathy and spinal stenosis of the lumbar region due to his repetitive
work duties overtime. On October 18, 2007 appellant underwent cervical spine surgery,
including fusion between C3 and C7. On March 23, 2009 he underwent left carpal tunnel release
surgery.
OWCP granted appellant a schedule ward for a six percent permanent impairment of both
arms. The Board finds that it properly granted appellant this award based on the opinion of
Dr. Smith, Board-certified in physical medicine and rehabilitation physician serving as an
OWCP referral physician and the opinion of Dr. Blum, a Board-certified orthopedic surgeon
serving as an OWCP medical adviser.
In a March 2, 2011 report, Dr. Smith discussed his findings and provided an opinion that
appellant had a six percent permanent impairment in his left arm and a six percent permanent
impairment in his right arm under the standards of the sixth edition of the A.M.A., Guides.9 He
properly applied these standards to reach his conclusion about appellant’s permanent arm
impairment.
Dr. Smith properly made reference to Table 15-23 (Entrapment/Compression Neuropathy
Impairment) on page 449 of the sixth edition of the A.M.A., Guides.10 He chose grade modifiers
6

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3.b. (June 1993). This portion of OWCP procedure provides that the impairment rating of a
given scheduled member should include “any preexisting permanent impairment of the same member or function.”
7

See A.M.A., Guides 449, Table 15-23.

8

A survey completed by a given claimant, known by the name QuickDASH, may be used to determine the
Function Scale score. Id. at 448-49.
9

On appeal, appellant alleged that, because his claim was accepted in 2007, his impairment should have been
evaluated under the fifth edition of the A.M.A., Guides. However, OWCP’s decision regarding impairment was not
issued until after May 1, 2009 and therefore evaluation of appellant’s impairment under the sixth edition of the
A.M.A., Guides was appropriate. See supra note 5.
10

Supra note 7.

4

in each arm from the table for the various categories, including test findings (grade modifier 1),
history (grade modifier 3) and physical findings (grade modifier), based on the findings of
record. Dr. Smith then correctly averaged the grade modifiers to find that appellant’s condition
fell under grade modifier 2 and he considered appellant’s functional scale (per the QuickDASH
score) to conclude that he had a six percent impairment in each arm under Table 15-23.11 The
evidence of record did not show that appellant had ulnar neuropathy that warranted an
impairment rating. Dr. Smith also properly found that appellant did not have any findings of
spinal nerve injury or myelopathy that could be supported with the modified spinal nerve tables
of the A.M.A., Guides, such that he would have an impairment rating on such a basis. Therefore,
he correctly concluded that appellant had a six percent permanent impairment of his left arm and
a six percent permanent impairment of his right arm due to neuropathy associated with the
median nerves.
Dr. Smith’s assessment of appellant’s arm impairment was also supported by the opinion
of Dr. Blum. In a March 31, 2011 report, Dr. Blum provided an opinion that Dr. Smith’s
calculation of appellant’s arm impairment was correct under the relevant standards of the
A.M.A., Guides.
The record contains an August 13, 2010 report in which Dr. Hebrard, an attending
physical medicine and rehabilitation physician, elected to rate appellant under Table 15-20 on
page 434 of the A.M.A., Guides for peripheral nerve root impairment of the upper extremities
affecting the brachial plexus, C5 through C8 and T1. He concluded that appellant had a 65
percent impairment of the left arm and a 52 percent impairment of the right arm. The Board
finds that this opinion on permanent impairment is not supported by the evidence of record as
there is no evidence that appellant has peripheral nerve root impairment of the upper extremities
affecting the brachial plexus, either in the form of a preexisting injury or a work-related injury.
Appellant’s claim was accepted for cervical spondylosis without myelopathy and the physical
findings and diagnostic testing results do not support that he had a cervical myelopathy or
radiculopathy.
The Board notes that there is no medical evidence of record showing that appellant has
more than a six percent permanent impairment of his left arm and a six percent permanent
impairment of his right arm, for which he already received schedule awards. For these reasons,
OWCP properly declined to award appellant schedule award compensation for a greater
impairment.
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.

11

Id. On appeal, appellant alleged that Dr. Smith’s evaluation was invalid because he performed a cursory
physical examination. The Board finds, however, that Dr. Smith performed a comprehensive physical examination
and provided an extensive evaluation of appellant’s impairment under the relevant standards.

5

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a six percent permanent impairment of his left arm and a six percent permanent
impairment of his right arm, for which he received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the May 17, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 12, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION
MEDICAL CENTER, Topeka, KS, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-1658
Issued: December 4, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 25, 2014 appellant filed a timely appeal from an April 28, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of
error.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, and because more than 180 days elapsed between the last OWCP merit
decision dated April 16, 2013 to the filing of this appeal, the Board lacks jurisdiction to review
the merits of this case.3
1

On appeal, appellant submitted new evidence. The Board notes that it may not consider new evidence on
appeal, as its jurisdiction is limited to evidence that was in the case record at the time OWCP rendered its decision.
See 20 C.F.R. § 501.2(c)(1).
2
3

5 U.S.C. § 8101 et seq.

For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of
OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

ISSUE
The issue is whether OWCP properly determined that appellant’s reconsideration request
was not timely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
On November 16, 2012 appellant, then a 49-year-old pharmacy technician, filed a
traumatic injury claim alleging that on November 14, 2012 her right thumb got stuck between the
totes she was stacking. She returned to modified duty, with no use of her right hand, on
December 7, 2012.
In a March 11, 2013 letter, OWCP noted that when appellant’s claim was received, it
appeared to be a minor injury that resulted in minimal or no lost time from work and payment of
a limited amount of medical expenses was administratively approved as the employing
establishment did not controvert continuation of pay or challenge the case. As appellant’s
medical bills exceeded $1,500.00, it reopened her claim to formally consider the merits of the
case. OWCP stated that the evidence received in support of appellant’s claim was insufficient to
support her claim. Appellant had failed to provide a physician’s opinion explaining how the
work incident resulted in the diagnosed right hand condition. OWCP requested that she submit a
well-rationalized medical opinion on how the osteoarthritis right hand was caused or aggravated
by the work incident. Appellant was provided 30 days to submit the requested information.
Appellant submitted requests for authorization, copies of physical therapy notes and a
March 11, 2013 report from Dr. Brodie E. McKoy, a Board-certified orthopedic surgeon, who
diagnosed osteoarthrosis involving the hand.
By decision dated April 16, 2013, OWCP denied the claim on the basis that causal
relationship of the diagnosed right thumb/hand osteoarthritis had not been established.
On an OWCP form report dated April 10, 2014, which OWCP received on
April 18, 2014, appellant requested reconsideration. In support of her reconsideration request,
she submitted an authorization request, work status reports, and several medical reports from
Dr. McKoy and other physicians dated January 20, 2014, November 26, May 30, and April 22,
2013, December 8, 6, and November 19, 2012, which noted the status of appellant’s right
thumb/hand.
By decision dated April 28, 2014, OWCP found that appellant’s request for
reconsideration was untimely filed and failed to present clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.4
Section 10.607(a) of the implementing regulations provide that an application for reconsideration
4

20 C.F.R. § 10.607(a).

2

must be received within one year of the date of OWCP’s decision for which review is sought.5
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.6
OWCP will reopen a case for merit review, notwithstanding the one-year filing
limitation, if the application for review shows clear evidence of error on the part of OWCP in its
most recent merit decision. To establish clear evidence of error, a claimant must submit
evidence relevant to the issue decided by OWCP. The evidence must be positive, precise and
explicit and it must manifest, on its face, that OWCP committed an error.7
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to establish clear evidence of error.8 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.9 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.10 The Board makes an independent
determination as to whether a claimant has submitted clear evidence of error on the part of
OWCP.11
ANALYSIS
In its April 16, 2013 decision, OWCP denied appellant’s claim as causal relationship had
not been established. Appellant requested reconsideration of this decision on a form letter dated
April 10, 2014, which it received on April 18, 2014. In an April 28, 2014 decision, OWCP
denied her request for further review of the merits of her claim on the grounds that her request
was untimely filed and failed to demonstrate clear evidence of error.
OWCP properly determined that appellant failed to file a timely application for review.
Its procedures provide that the one-year time limitation period for requesting reconsideration
begins on the date of the original OWCP decision.12 A right to reconsideration within one year
also accompanies any subsequent merit decision on the issues.13 The Board notes that, for merit
decisions issued prior to August 29, 2011, OWCP’s procedures provided that the timeliness for a
reconsideration request was determined not by the date OWCP received the request, but by the
5

Id.

6

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

7

20 C.F.R. § 10.607(b); Annie L. Billingsley, 50 ECAB 210 (1998); Fidel E. Perez, 48 ECAB 663, 665 (1997).

8

Jimmy L. Day, 48 ECAB 652 (1997).

9

Id.

10

Id.

11

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

12

Supra note 5.

13

Robert F. Stone, 57 ECAB 393 (2005).

3

postmark on the envelope.14 OWCP’s new procedures as of August 29, 2011 require that, for all
merit decisions issued on and after August 29, 2011, the timeliness of a reconsideration request
is determined by the date the request is received by OWCP.15 As appellant’s April 10, 2014
request for reconsideration was received by OWCP on April 18, 2014, more than one year after
the last merit decision of April 16, 2013, it was untimely. Consequently, she must demonstrate
clear evidence of error by OWCP in denying her claim for compensation.16
Appellant’s claim was denied because she had not established causal relationship. The
evidence submitted by her in support of her April 10, 2014 request for reconsideration does not
raise a substantial question as to the correctness of OWCP’s decision denying compensation or
shift the weight of the evidence of record in her favor. The term clear evidence of error is
intended to represent a difficult standard. The claimant must present evidence which, on its face,
shows that OWCP made an error (for example, proof of a miscalculation in a schedule award).
Evidence such as a detailed, well-rationalized report, which if submitted prior to OWCP’s denial,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error and would not require a review of a case.17 While the submitted evidence
could possibly be construed to produce a contrary conclusion, it does not present clear evidence
of error in OWCP’s decision.
The Board finds that this evidence is insufficient to shift the weight of the evidence in
favor of appellant’s claim or raise a substantial question that OWCP erred in denying her claim.
Therefore, the Board finds that she has not presented clear evidence of error.
On appeal, appellant contends that the staff of Southern Orthopedics (Dr. Brodie) has
stated, “my thumb was not symptomatic until I jammed it. The swelling pain and limited motion
are all findings of degenerative changes in the carpometacarpal joint.” Appellant stated that her
hand injury makes the smallest task nearly impossible for her and that she has little motion and
the swelling pain has become unbearable. She also advised that she was developing carpal
tunnel syndrome. As noted, none of the evidence submitted on reconsideration raises a
substantial question concerning the correctness of OWCP’s decision; therefore appellant has
failed to establish clear error on the part of OWCP in denying further merit review.18
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and failed
to present clear evidence of error.

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b)(1)
(January 2004).
15

Id. at Chapter 2.1602.4(e) (August 29, 2011).

16

See supra note 13; see D.G., 59 ECAB 455 (2008); Debra McDavid, 57 ECAB 149 (2005).

17

Annie L. Billingsley, 50 ECAB 210 (1998).

18

A.S., Docket No. 11-356 (issued September 16, 2011).

4

ORDER
IT IS HEREBY ORDERED THAT the April 28, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 4, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Rolla, MO,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-0484
Issued: September 2, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 2, 2020 appellant filed a timely appeal from a December 23, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 23, 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 appellant has met her burden of proof to establish a left wrist condition
causally related to the accepted November 7, 2019 employment incident.
FACTUAL HISTORY
On November 7, 2019 appellant, then a 46-year-old contact representative, filed a
traumatic injury claim (Form CA-1) alleging that on that day she sustained a small wrist fracture
and swelling when an opened metal security gate recoiled and struck her wrist while in the
performance of duty. She stopped work on November 7, 2019 and returned to work on
November 9, 2019.
In a development letter dated November 18, 2019, OWCP informed appellant of the
deficiencies in her claim and the type of evidence needed to establish her claim. It afforded her
30 days to submit the requested evidence.
Dr. Alexander S. Myong, an emergency medicine specialist, noted in a November 7, 2019
emergency room medical report that appellant was seen for upper extremity pain after a security
gate at work hit her left wrist. He found no significant abnormalities on physical examination, but
observed ecchymosis to the ulnar side of the left wrist and edema. Dr. Myong advised appellant
to keep her wrist elevated and in a splint to aid with swelling and pain control.
A November 7, 2019 left wrist x-ray revealed fusion of the lunate and triquetrum, but no
acute fracture or dislocation.
In a November 8, 2019 duty status report (Form CA-17), Dr. Jim J. Hong, a family
medicine specialist, indicated that appellant injured her left wrist, hand, and fingers while entering
a gate at work and was unable to resume regular work at that time.
Appellant noted her history of injury in a November 27, 2019 patient intake form. In a
medical note and attendance card of even date, Dr. Hong diagnosed a left wrist sprain.
OWCP also received November 27 and December 3, 2019 physical therapy reports. In a
November 27, 2019 report, Cynthia L. Glaenzer, a physical therapist, noted appellant’s history of
injury and indicated that she had been wearing a splint during the day and taking it off at night.
Appellant reported experiencing pain on the outside of her wrist and tingling from the outside of
her hand to her elbow. Ms. Glaenzer diagnosed a left wrist sprain.
In a December 3, 2019 attending physician’s report (Form CA-20), Dr. Hong noted
findings that included fusion of the lunate and triquetrum. He diagnosed wrist pain and checked a
box marked “Yes” indicating that appellant’s diagnosed condition was caused or aggravated by
the claimed November 7, 2019 employment incident.
By decision dated December 23, 2019, OWCP accepted that the November 7, 2019
employment incident occurred, as alleged. However, it denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish that her diagnosed left wrist sprain was

2

causally related to the accepted November 7, 2019 employment incident. OWCP concluded,
therefore, that the requirements had not been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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,4 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.5 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.6
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, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.8 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.9
Pursuant to OWCP’s procedures, no development of a claim is necessary when the
condition reported is a minor one which can be identified on visual inspection by a lay person (e.g.,

3

Supra note 2.

4

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).
5
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).
6

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).
7

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).
8

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).
9
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

burn, laceration, insect sting, or animal bite).10 No medical report is required to establish a minor
condition such as a laceration.11
ANALYSIS
The Board finds that appellant has met her burden of proof to establish a left wrist condition
causally related to the accepted November 7, 2019 employment incident.
OWCP found that the November 7, 2019 employment incident, in which an opened
security gate recoiled and struck appellant on her left wrist, had occurred as alleged. The
contemporaneous medical records provided a consistent history of injury and Dr. Myong noted, in
his November 7, 2019 emergency room medical report, that he observed ecchymosis to the ulnar
side of appellant’s left wrist, as well as edema, resulting from the security gate hitting her wrist
while at work. As the evidence of record establishes that appellant’s employment incident resulted
in a visible injury, the Board finds that appellant has met her burden of proof to establish
ecchymosis to the ulnar side of the left wrist and edema causally related to the accepted
November 7, 2019 employment incident.12
The Board further finds, however, that the medical evidence of record does not support a
finding that appellant sustained any other left wrist conditions, including a left wrist sprain, due to
the accepted employment incident.
In his November 7, 2019 medical report, Dr. Myong noted appellant’s history of injury and
physical examination findings. He did not, however, provide a specific diagnosis of an injury or
medical condition, nor did he provide an opinion as to causal relationship. Similarly, in a
November 8, 2019 Form CA-17 report, Dr. Hong noted appellant’s history of injury, but did not
provide a specific diagnosis. The Board has held that a medical report lacking a firm diagnosis
and a rationalized medical opinion regarding causal relationship is of no probative value.13 As
such, Dr. Myong’s November 7, 2019 report and Dr. Hong’s November 8, 2019 report are
insufficient to establish the claim for additional left wrist conditions.
In a November 27, 2019 medical note and attendance card, Dr. Hong diagnosed a left wrist
sprain. However, he did not offer an opinion regarding the cause of appellant’s diagnosed
condition. As previously noted, reports that do not provide an opinion on causal relationship are
of no probative value.14 Therefore, this evidence is also insufficient to establish a left wrist sprain
causally related to the accepted November 7, 2019 employment incident.

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a)
(June 2011). See also S.K., Docket No. 18-1411 (issued July 22, 2020).
11

Id.

12

Id.

13

L.P., Docket No. 19-1812 (issued April 16, 2020); S.J., Docket No. 20-0157 (issued April 1, 2020); P.C., Docket
No. 18-0167 (issued May 7, 2019).
14

C.K., Docket No. 19-1549 (issued June 30, 2020).

4

In a December 3, 2019 Form CA-20 report, Dr. Hong checked a box marked “Yes,”
indicating that appellant’s diagnosed wrist pain was caused or aggravated by the accepted
November 7, 2019 employment incident. When a physician’s opinion on causal relationship
consists only of checking a box marked “Yes” in response to a form question, without explanation
or rationale, that opinion has limited probative value and is insufficient to establish a claim.15
Moreover, the Board has consistently held that pain is a description of a symptom and not, in itself,
considered a firm medical diagnosis.16 Thus, Dr. Hong’s December 3, 2019 report is also
insufficient to establish additional left wrist conditions.
Appellant also submitted a November 27, 2019 treatment note from Ms. Glaenzer, a
physical therapist. The Board has held that treatment notes signed by a physical therapist are not
considered medical evidence as these providers are not considered “physician[s]” as defined under
FECA.17 Therefore, this note lacks probative value and is insufficient to establish additional left
wrist conditions.
Finally, appellant submitted a November 7, 2019 left wrist x-ray. The Board has held,
however, that diagnostic studies, standing alone, lack probative value on the issue of causal
relationship as they do not address whether the employment factors caused the diagnosed
conditions.18
The Board therefore finds that appellant has submitted insufficient medical evidence to
establish additional left wrist conditions, including a left wrist sprain, causally related to the
accepted employment incident.
As appellant has established ecchymosis to the ulnar side of the left wrist and edema as
accepted employment-related conditions, the Board will reverse, in part, the December 23, 2019
decision and remand the case for payment of medical costs and wage-loss compensation for
disability, if any.
CONCLUSION
The Board finds that appellant has met her burden of proof to establish ecchymosis and
edema of the left wrist causally related to the accepted November 7, 2019 employment incident.

15

V.W., Docket No. 19-1537 (issued May 13, 2020); K.R., Docket No. 19-0375 (issued July 3, 2019).

16
See I.M., Docket No. 19-1038 (issued January 23, 2020); B.P., Docket No. 12-1345 (issued November 13, 2012);
C.F., Docket No. 08-1102 (issued October 10, 2008). Findings of pain or discomfort alone do not satisfy the medical
aspect of the fact of injury medical determination. Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury,
Chapter 2.803.4a(6) (August 2012).
17
5 U.S.C. § 8101(2) (this subsection defines a “physician” as surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law).
See 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); see also D.J., Docket No. 18-0593
(issued February 24, 2020) (physical therapists are not physicians under FECA).
18

J.P., Docket No. 19-0216 (issued December 13, 2019).

5

The Board further finds, however, that appellant has not met her burden of proof to establish other
left wrist conditions causally related to the accepted November 7, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the December 23, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part and the case is remanded
for further proceedings consistent with this decision of the Board.
Issued: September 2, 2020
Washington, DC

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

Christopher J. Godfrey, Deputy Chief Judge
Employees' Compensation Appeals Board

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

6