United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
ALCOHOL, TOBACCO & FIREARMS,
Mount Laurel, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-806
Issued: January 25, 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 February 11, 2011 appellant, through his representative, filed a timely appeal from the
November 10, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which affirmed the pay rate used for his 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 OWCP properly changed the pay rate of appellant’s schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 5, 1996 appellant, a 32-year-old criminal investigator/special agent, injured his
right knee in the performance of duty during training. He underwent surgery in April 1996.
OWCP accepted appellant’s claim for a torn medial meniscus.2
On September 22, 1997 appellant filed an occupational disease claim alleging that on
September 2, 1997 he felt severe pain in the immediate area of the right medial meniscus. His
physician attributed the patellofemoral malalignment to undertaking a rigorous exercise program
before his quadriceps muscles were fully rehabilitated after surgery. OWCP accepted appellant’s
claim for right knee malalignment.3
Appellant alleged that he sustained a recurrence of disability on January 13, 2004 when a
treadmill belt slipped momentarily and his right knee locked. He did not feel pain immediately
but since that time experienced intermittent pain. OWCP advised that it was creating a new file
for the claimed injury. It combined the claim files for appellant’s 1996 and 1997 employment
injuries.
A February 18, 2010 statement of accepted facts listed that appellant sustained an
additional injury on January 13, 2004 while running on a treadmill. “The belt slipped causing his
right knee to lock which caused injury.”
On April 8, 2010 OWCP issued a schedule award using appellant’s January 13, 2004 pay
rate. On April 16, 2010 it amended the award to reflect his pay rate on March 5, 1996.
In a November 10, 2010 decision, OWCP’s hearing representative affirmed the March 5,
1996 pay rate. He found that the January 13, 2004 injury was accepted as a minor, no-time-lost
injury that was not formally adjudicated but administratively closed allowing medical payments.
The hearing representative noted that the physician who rated impairment did not describe the
January 13, 2004 injury or any associated findings or treatment. Further, he did not explain how
the January 13, 2004 injury materially contributed to appellant’s permanent impairment.
On appeal, appellant’s representative argues that OWCP acknowledged a right knee
employment injury on January 13, 2004 and therefore should apply the pay rate in existence at
that time.
LEGAL PRECEDENT
Compensation for a schedule award is paid as a percentage of monthly pay.4 “Monthly
pay” means the monthly pay at the time of injury, or the monthly pay at the time disability
begins, or the monthly pay at the time compensable disability recurs if the recurrence begins

2

Appellant filed a claim for the same injury with the district OWCP in Philadelphia. OWCP File No. xxxxxx857.

3

OWCP File No. xxxxxx056.

4

5 U.S.C. § 8017(a).

2

more than six months after the injured employee resumes regular full-time employment with the
United States, whichever is greater.5
OWCP may review an award for or against payment of compensation at any time on its
own motion or on application.6 The Board has upheld OWCP’s authority to reopen a claim at
any time on its own motion and, where supported by the evidence, to set aside or modify a prior
decision and issue a new decision.7 The Board has noted, however, that the power to annul an
award is not an arbitrary one and that an award for compensation can be set aside only in the
manner provided by the compensation statute.8
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory
provisions, where there is good cause for so doing, such as mistake or fraud. It is well
established that once OWCP accepts a claim, it has the burden of justifying the termination or
modification of compensation benefits. In establishing that its prior acceptance was erroneous,
OWCP is required to provide a clear explanation of the rationale for rescission.9
ANALYSIS
On April 8, 2010 OWCP issued a schedule award based on the pay rate effective
January 13, 2004, the date appellant injured his right knee on a treadmill in the course of his
employment. On April 16, 2010, however, it reopened the claim on its own motion and modified
its decision. OWCP issued a new schedule award based on the pay rate effective March 5, 1996,
when appellant injured his right knee during training. It thereby rescinded the prior schedule
award.
OWCP carries the burden of proof to justify the rescission. The new schedule award
stated that the January 13, 2004 pay rate was incorrect, but it did not adequately explain why.10
Section 8101(4) of FECA provides that “monthly pay” is the greater of monthly pay (1) at the
time of injury, (2) at the time disability begins or (3) at the time compensable disability recurs
(with some qualification). OWCP later explained the earlier pay rate was appropriate because
the January 13, 2004 injury was minor, a no-time-lost injury, and there was no indication that it
materially contributed to impairment. The Board does not find such an exception in FECA and

5

Id. at § 8101(4); John D. Williamson, 40 ECAB 1179 (1989).

6

Id. § 8128(a).

7

Eli Jacobs, 32 ECAB 1147 (1981).

8

Doris J. Wright, 49 ECAB 230 (1997); Shelby J. Rycroft, 44 ECAB 795 (1993).

9

Walter L. Jordan, 57 ECAB 218 (2005).

10

See 20 C.F.R. § 10.126 (a decision must contain findings of fact and a statement of reasons).

3

the hearing representative cited no regulation, procedure or case precedent to support the change
of pay rate.11
Accordingly, the Board finds that OWCP did not meet its burden of proof to justify the
rescission of appellant’s April 8, 2010 schedule award. The Board will reverse OWCP’s
November 10, 2010 decision.12
CONCLUSION
The Board finds that OWCP improperly changed the pay rate of appellant’s schedule
award.

11

OWCP procedures suggest that a minor, no-time-lost case might still warrant a schedule award for permanent
impairment. Federal (FECA) Procedure Manual, Part 2 -- Claims, Automated System Support for Case Actions,
Chapter 2.401.8.a(4) (September 2009) (noncontroverted no-time-lost cases will be closed without adjudication as
soon as they are created and will not subsequently require OWCP’s attention unless any of the following apply:
(c) evidence is received to show that a schedule award may be payable for permanent impairment).
12

This case is to be distinguished from Barbara A. Dunnavant, 48 ECAB 517 (1997), in which the Board held
that the proper pay rate for the claimant’s schedule award was the pay rate on the date of maximum medical
improvement. Dunnavant involved continuing exposure to injurious work factors; therefore, the date of injury was
the date of last exposure, which was, for purposes of the schedule award issued, the date she was found to have
reached maximum medical improvement. Here, appellant’s March 5, 1996 and January 13, 2004 injuries were
traumatic and involved no continuing exposure. His September 22, 1997 injury was occupational, provoked by
participating too early in a strenuous agency-approved health improvement plan, but there is no evidence that he
continued that participation beyond September or October 1997.

4

ORDER
IT IS HEREBY ORDERED THAT the November 10, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: January 25, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Dallas, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-0350
Issued: October 22, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 3, 2018 appellant filed a timely appeal from an October 24, 2018 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
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that the
acceptance of her claim should be expanded to include additional conditions of lumbar
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the October 24, 2018 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.

radiculopathy, lumbar spinal stenosis, right rotator cuff tear, and right shoulder and left hip
osteoarthritis; (2) whether appellant has met her burden of proof to establish intermittent disability
during the period March 6, 2016 to November 30, 2017 causally related to her accepted lumbar
spine ligament sprain.
FACTUAL HISTORY
On July 1, 2016 appellant, then a 68-year-old customer service representative, filed an
occupational disease claim (Form CA-2) alleging that she sustained a low back injury due to
prolonged sitting while in the performance of duty. She noted that she first became aware of her
condition on January 25, 2016 and realized its relation to her federal employment on
February 29, 2016. The claim form did not indicate that appellant had stopped work. On June 28,
2017 OWCP accepted the claim for lumbar spine ligament sprain.
Appellant was initially treated by Dr. Ronnie Shade, a Board-certified orthopedic surgeon.
On April 20, 2016 Dr. Shade diagnosed chronic lumbosacral strain, bilateral lower extremity
lumbar radiculitis, and thoracolumbar scoliosis. He continued to submit progress reports which
provided diagnoses, but did not address appellant’s work status.
In a report dated May 8, 2017, Dr. Shade related that appellant was currently working
limited duty and noted that her job required prolonged sitting, which she could not tolerate. He
noted physical examination findings, and diagnosed lumbosacral strain, lumbar ligament sprain,
lumbar radiculitis, thoracolumbar scoliosis, and lumbar disc protrusion. Dr. Shade related that
appellant had been released to return to light-duty work on October 31, 2016, and that she returned
to light-duty work on November 14, 2016. He indicated that appellant was off work from
October 31 through November 13, 2016 due to lumbar pain and spasms; was off work October 1
to 31, 2016, August 26 to September 30, 2016, August 11 to 25, 2016 due to persistent pain, was
off work July 27 to August 10, 2016 due to persistent low back pain, stiffness and spasms; and
was off work from June 15 to 29, 2016.
Dr. Shade, in a July 7, 2017 duty status form (Form CA-17), diagnosed lumbar sprain and
released appellant to return to modified full-time work on July 11, 2017.
In an October 2, 2017 report, Dr. Francisco J. Battle, a neurosurgeon, noted that appellant
had been examined for a January 25, 2016 employment injury. He related appellant’s medical
history, provided examination findings, and diagnosed lumbar radiculitis, L3-4, L4-5, and L5-S1
herniated nucleus pulposus, L3-4, L-5, and L5-S1 lumbar mechanical/discogenic pain, L3-4 and
L4-5 lumbar stenosis, L5-S1 lumbar spondylolisthesis, and lumbago.
OWCP continued to receive reports from Dr. Shade which provided examination findings
and noted subjective complaints. On October 18, 2017 Dr. Shade diagnosed chronic lumbosacral
strain, lumbar ligament sprain, lumbar radiculitis, thoracolumbar scoliosis, lumbar disc protrusion,
right rotator cuff tear and biceps tendon rupture, right shoulder and right hip osteoarthritis, and
severe L3-5 lumbar spine stenosis.
In a report dated December 21, 2017, Dr. Jamie Spicer, Board-certified in family practice,
diagnosed lumbosacral radiculopathy and sacroiliitis.

2

In a report dated January 10, 2018, Dr. Shade noted that appellant was seen that day and
was currently not working. He recommended that she continue with therapy and rehabilitation.
Diagnoses were unchanged from prior reports. Dr. Shade noted that appellant had been released
to return to light-duty work on October 31, 2016 and that she returned to light-duty work on
November 14, 2016. He listed the periods of time she was placed off work. Dr. Shade gave no
reason for appellant’s disability for the periods June 15 to 29, August 26 to September 30 and
October 1 through 31, 2016. For the period July 27 to August 10, 2016, he found her unable to
work due to stiffness, sharp spasms, and persistent low back pain. Regarding the period August 11
to 25, 2016, Dr. Shade placed appellant off work due to persistent pain complaints. As to the
period October 31 to November 13, 2016, appellant was placed off work due to lumbar pain and
spasms. Dr. Shade also indicated that appellant was disabled from work due to difficulty standing
and walking for the period October 13, 2017 to January 20, 2018.
On January 11, 2018 appellant filed claims for intermittent wage-loss compensation (Form
CA-7), including loss of night differential, for the periods March 6 to August 6, 2016, August 7,
2016 to January 7, 2017, January 8 to August 5, 2017, and August 20 to November 30, 2017. She
also completed time analysis forms (Form CA-7a) for the periods in question. For the period
March 6 to August 6, 2016 appellant indicated that she used a total of 688.00 hours of leave
without pay (LWOP), with 466.00 of those hours designated as due to “disable -- therapy” and
222.00 hours designated as due to “disable”;3 for the period August 7, 2016 to January 7, 2017 she
indicated that she used a total of 505.54 hours of LWOP due to “disable”;5 for the period January 8
to August 5, 2017 she indicated that she used a total of 198.5 hours of LWOP due to “disable”;
and for the period August 20 to November 30, 2017 she indicated that she used a total of 416.00
hours of LWOP due to “disable.”
In a development letter dated January 18, 2018, OWCP informed appellant that the medical
evidence received was insufficient to establish her wage-loss claim. It advised her of the type of
evidence required and afforded her 30 days to provide the necessary evidence.
In a March 12, 2018 report, Dr. Shade noted that OWCP had accepted the condition of
lumbar ligament sprain and requested expansion of the acceptance of her claim to include lumbar
radiculopathy, complete right rotator cuff tear, severe lumbar spinal stenosis, and right shoulder
and left hip osteoarthritis.
By decision dated March 19, 2018, OWCP denied appellant’s claim for wage-loss
compensation for intermittent disability during the period March 6, 2016 to November 30, 2017.
It found that the medical evidence submitted was insufficient to establish that her claim for
disability was causally related to her accepted employment injury.

3

Under type of leave used, she noted annual leave while the number of hours claimed were list ed under the LWOP
column.
4

While appellant’s Form CA-7a notes a total of 505.5 hours of LWOP, the Board notes that the total number
appears to be 585.5.
5
The Board notes that, under type of leave used, appellant noted annual leave for the period August 2 to 20, 2016
while reporting the number of hours claimed under the LWOP column.

3

In a June 4, 2018 report, Dr. Shade provided examination findings and diagnoses of chronic
lumbosacral strain, lumbar ligaments sprain, bilateral lower extremities lumbar radiculitis ,
thoracolumbar scoliosis, lumbar disc protrusion, right shoulder rotator cuff tear, right shoulder
biceps tendon rupture, right shoulder and left hip osteoarthritis, lateral recess stenosis, and severe
L3 to L5 lumbar spinal stenosis. He reported that he found appellant disabled from work from
June 15 to 29 and July 27 to November 14, 2016 due to her accepted employment injury because
she was unable to perform the duties of her position. Dr. Shade noted that she had difficulty
walking to and from her job after parking her vehicle, and that on January 12, 2018 she applied for
medical disability because her coworkers would be at risk if she were released to return to work.
On July 27, 2018 appellant requested reconsideration.
submitted medical evidence.

In support of her request, she

In a May 3, 2016 report, Dr. Shade diagnosed lumbar disc protrusion, chronic lumbosacral
strain, lumbar spine ligament sprain, thoracolumbar scoliosis, and bilateral lower extremities
lumbar radiculitis. He detailed appellant’s employment duties, provided examination finding, and
reviewed diagnostic studies. Dr. Shade opined that her lower back conditions were directly caused
by the accepted January 25, 2016 employment injury.
Dr. Shade, in a June 20, 2018 report, summarized appellant’s treatment including
diagnostic testing reviewed since April 20, 2016 for the accepted January 25, 2016 employment
injury. He reported that appellant’s initial diagnoses due to the employment injury included
chronic lumbosacral strain, lumbar ligaments sprain, thoracolumbar scoliosis, lumbar disc
protrusion, and bilateral lower extremities lumbar radiculitis. Dr. Shade opined that appellant was
incapable of working for the periods June 15 to 29 and July 27 to November 14, 2016 due to her
inability to perform the duties of her position. In support of this opinion, he noted her difficulty
walking to and from her job after parking her vehicle. Dr. Shade reiterated his opinion that
appellant, the employing establishment, and coworkers would be at risk if he were to release her
to return to work.
By decision dated October 24, 2018, OWCP denied modification finding that the medical
evidence of record was insufficient to establish that appellant’s claimed disability was causally
related to the accepted employment injury. It also denied her request to expand the acceptance of
her claim to include additional conditions as causally related to the accepted January 25, 2016
employment injury.
LEGAL PRECEDENT -- ISSUE 1
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

6

R.J., Docket No. 17-1365 (issued May 8, 2019); Jaja K. Asaramo, 55 ECAB 200 (2004).

4

Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background. Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s). 8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish that acceptance
of her claim should be expanded to include the additional conditions of lumbar radiculopathy ,
lumbar spinal stenosis, right rotator cuff tear, and right shoulder and left hip osteoarthritis.
In a March 12, 2018 report, Dr. Shade requested expansion of the acceptance of appellant’s
claim to include lumbar radiculopathy, severe lumbar spinal stenosis, complete right rotator cuff
tear, and right shoulder and left hip osteoarthritis; however, he offered no opinion as to how these
diagnoses were causally related to the accepted employment injury. Medical evidence that does
not offer an opinion regarding the cause of an employee’s condition is of no probative value on
the issue of causal relationship.9 Previously, in a May 3, 2016 report, Dr. Shade had diagnosed
lumbar disc protrusion, chronic lumbosacral strain, thoracolumbar scoliosis, and lumbar
radiculitis, and he opined that these conditions were directly related to appellant’s accepted
January 25, 2016 employment injury. The Board has held that a mere conclusion without the
necessary rationale explaining how the accepted work activities could result in the diagnosed
conditions is insufficient to meet appellant’s burden of proof. 10 Dr. Shade’s reports are therefore
insufficient to establish expansion of the acceptance of her claim.
While Dr. Battle also noted a number of additional lumbar diagnoses in his October 2, 2017
report, as did Dr. Spicer in his December 21, 2017 report, these physicians also offered no opinion
regarding causal relationship. Their reports are of no probative value and are, therefore,
insufficient to establish appellant’s claim.11
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

7

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

H.A., Docket No. 18-1466 (issued August 23, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
10

See D.P., Docket No. 19-0394 (issued August 2, 2019).

11

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

5

LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA 12 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence. 13 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled from work
as a result of the accepted employment injury. 14 Whether a particular injury causes an employee
to become disabled from work, and the duration of that disability, are medical issues that must be
proven by a preponderance of probative and reliable medical opinion evidence. 15
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury. Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA. 16 Furthermore, whether a particular injury
causes an employee to be disabled from employment and the duration of that disability are medical
issues which must be proved by a preponderance of the reliable, probative, and substantial medical
evidence.17
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation. 18
OWCP’s procedures provide that wages lost for compensable medical examinations or
treatment may be reimbursed. 19 A claimant who has returned to work following an accepted injury
or illness may need to undergo examination or treatment and such employee may be paid
compensation for wage loss while obtaining medical services and for a reasonable time spent
traveling to and from the medical provider’s location.20 Wage loss is payable only if the
examination, testing, or treatment is provided on a day which is a scheduled workday and during
12

Supra note 1.

13

B.O., Docket No. 19-0392 (issued July 12, 2019); D.W., Docket No. 18-0644 (issued December 6, 2018);
Amelia S. Jefferson, 57 ECAB 183 (2005).
14

J.L., Docket No. 19-0040 (issued May 21, 2019); Amelia S. Jefferson, id.

15

See 20 C.F.R. § 10.10.5(f); J.L., id.; N.M., Docket No. 18-0939 (issued December 6, 2018).

16

B.O., supra note 13; T.O., Docket No. 17-1177 (issued November 2, 2018).

17

Supra note 6.

18

A.W., Docket No. 18-0589 (issued May 14, 2019); Fereidoon Kharabi, 52 ECAB 291 (2001).

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Wages Lost for Medical Examination or Treatment, Chapter
2.901.19 (February 2013).
20

Id. at Chapter 2.901.19.a; see E.W., Docket No. 17-1988 (issued January 28, 2019).

6

a scheduled tour of duty. Wage-loss compensation for medical treatment received during off-duty
hours is not reimbursable. 21 The evidence should establish that a claimant attended an examination
or treatment for the accepted work injury on the dates claimed in order for compensation to be
payable.22 For a routine medical appointment, a maximum of four hours of compensation may be
allowed. The claims for wage loss should be considered on a case-by-case basis.23
ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for decision.
On January 11, 2018 appellant filed Form CA-7 claims for wage-loss compensation (Form
CA-7), including loss of night differential, for the intermittent periods of March 6 to August 6,
2016, August 7, 2016 to January 7, 2017, January 8 to August 5, 2017, and August 20 to
November 30, 2017. The accompanying CA-7a time analysis forms for the periods in question
indicated that the claimed wage loss was either due to disability and/or therapy. The record also
contains evidence documenting that she was examined and treated by Dr. Shade and Dr. Battle
during the time periods alleged. By decision dated October 24, 2018, OWCP denied appellant’s
claims for compensation for intermittent periods of disability without addressing whether she was
entitled to wage-loss compensation for medical examination or treatment.
Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact
and make an award for or against payment of compensation. 24 Section 10.126 of Title 20 of the
Code of Federal Regulations provides that a decision shall contain findings of fact and a statement
of reasons. The Board has held that the reasoning behind OWCP’s evaluation should be clear
enough for the reader to understand the precise defect of the claim and the kind of evidence which
would overcome it. 25 Although OWCP’s October 24, 2018 decision made findings regarding
appellant’s claimed periods of disability, it did not determine whether appellant was entitled to
compensation for any wage loss due to medical examinations or treatment. To avoid piecemeal
adjudication, the Board shall therefore set aside the October 24, 2018 decision with regard to this
issue. On remand, OWCP shall conduct any necessary development to be followed by a de novo
decision as to whether appellant was entitled to any wage-loss compensation.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that acceptance
of her claim should be expanded to include lumbar radiculopathy, lumbar spinal stenosis, right
21

Id. at Chapter 2.901.19.a(2).

22

Id. at Chapter 2.901.19.a(3).

23

Id. at Chapter 2.901.19.c.

24

5 U.S.C. § 8124(a).

25

See R.M., Docket No. 19-0163 (issued July 17, 2019); Federal (FECA) Procedure Manual Part 2 -- Claims,
Disallowances, Chapter 2.1400.5 (February 2013) (all decisions should contain findings of fact sufficient to identify
the benefit being denied and the reason for the disallowance).

7

rotator cuff tear, and right shoulder and left hip osteoarthritis. The Board further finds that the
case is not in posture for decision regarding appellant’s claimed disability.
ORDER
IT IS HEREBY ORDERED THAT the October 24, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: October 22, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WESTOVER AIR FORCE BASE, Chicopee, MA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-397
Issued: August 25, 2009

Case Submitted on the Record

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

JURISDICTION
On November 24, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ decisions dated June 23 and August 19, 2008 denying his claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained a
traumatic injury on April 29, 2008 in the performance of duty.
FACTUAL HISTORY
On April 30, 2008 appellant, then a 48-year-old aircraft electrician, filed a traumatic
injury claim alleging that on the previous day he injured his lower back after tripping over armor
at the entry of a flight deck. He did not stop work.

On May 20, 2008 the Office advised appellant of the factual and medical evidence
necessary to establish his claim and allowed him 30 days to submit such evidence. In particular,
it requested a physician’s report with an opinion on how his injury resulted in the condition
diagnosed.
Appellant submitted an attending physician’s report dated May 1, 2008 from Dr. T.H.
Kankanam-Gamage, a Board-certified internist, diagnosing right lumbar strain. The report noted
that appellant had pain in his lower back after he tripped. Dr. Kankanam-Gamage checked a box
“yes” indicating a history of preexisting injury and explained that appellant had previously
injured his back at work in a similar area. He also checked a box “yes” indicating his belief that
appellant’s condition was causally related to his work activity. Dr. Kankanam-Gamage advised
that appellant could work with restrictions on lifting for one week.
In a decision dated June 23, 2008, the Office denied appellant’s claim for compensation
finding there was no medical evidence providing a diagnosis which could be connected to the
claimed event.
Appellant requested reconsideration on July 30, 2008. In support of his claim, he
submitted a May 1, 2008 treatment note from Denise Finn-Rizzo, a nurse practitioner, indicating
that appellant was working on a plane and tripped. Ms. Finn-Rizzo diagnosed right lumbar
muscular strain. Appellant also submitted the May 1, 2008 attending physician’s report already
of record.
In an August 19, 2008 decision, the Office denied modification of its June 23, 2008
decision finding that appellant did not provide medical evidence from a qualified physician to
substantiate that he sustained an injury causally related to an established work incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an “employee of the United States” within the meaning of the Act; that the claim was filed
within the applicable time limitation; that an injury was sustained while in the performance of
duty as alleged and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury. These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
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. Second, the

1

5 U.S.C. §§ 8101-8193.

2

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

2

employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.3
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.4
ANALYSIS
The record reflects that appellant tripped over armor at the entry of a flight deck at work
on April 29, 2008. However, the medical evidence is not sufficient in establishing that tripping
over the armor caused or aggravated his claimed lower back condition.
In a May 1, 2008 attending physician’s report, Dr. Kankanam-Gamage noted that
appellant had pain in his lower back after he tripped. He also checked a box “yes” indicating
that appellant’s condition was caused or aggravated by an employment activity.
Dr. Kankanam-Gamage also indicated that appellant had a preexisting back injury that he
sustained at work in a similar area. Although the checkmark “yes” indicates support for causal
relationship, without medical rationale, this opinion has little probative value and is insufficient
Medical rationale is particularly important as
to establish a causal relationship.5
Dr. Kankanam-Gamage noted that appellant had previously sustained a back injury at work. He
did not address the reasons the April 29, 2008 incident specifically caused or aggravated
appellant’s diagnosed lower back condition.
Appellant also submitted a May 1, 2008 treatment note from Ms. Finn-Rizzo who noted
that appellant tripped while working on a plane. Ms. Finn-Rizzo also diagnosed right lumbar
muscular strain. However, nurses are not “physicians” as defined under the Act. Their opinions
are of no probative value.6

3

Id.

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
5

See Lucrecia Nielsen, 42 ECAB 583 (1991); Lillian Jones, 34 ECAB 379 (1982) (an opinion on causal
relationship which consists only of a physician checking “yes” to a medical form report question on whether the
claimant’s disability was related to the history given is of little probative value).
6

Roy L. Humphrey, 57 ECAB 238 (2005); see 5 U.S.C. § 8101(2) (defining the term “physician”); see also
Charley V.B. Harley, 2 ECAB 208 (1949) (the Board held that medical opinion, in general, can only be given by a
qualified physician).

3

Appellant did not submit any other evidence from a physician that addresses the issue of
causal relationship. Consequently, he has not established that tripping over armor on April 29,
2008 caused or aggravated his claimed lower back condition.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
sustained a traumatic injury on April 29, 2008 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated August 19 and June 23, 2008 are affirmed.
Issued: August 25, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
BROADVIEW HEIGHTS VETERANS
MEDICAL CENTER, Brecksville, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 09-1120
Issued: January 12, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 16, 2009 appellant filed a timely appeal from the February 25, 2009 merit
decision of the Office of Workers’ Compensation Programs, which affirmed as modified the
termination of appellant’s compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective July 31, 2008.
FACTUAL HISTORY
The Office accepted that on November 15, 2005 appellant, then a 44-year-old practical
nurse, sustained a neck strain and a right shoulder strain while she was turning a patient.

Appellant lost intermittent time from work until she returned to full-time light duties on
June 26, 2006. The Office paid compensation for all appropriate time periods.
In a February 21, 2006 report, Dr. Morris W. Pulliam, a Board-certified neurosurgeon,
noted the history of injury and indicated that appellant had intermittent pain since the injury. He
advised that electrodiagnostic testing was “very nondiagnostic.” Magnetic resonance imaging
(MRI) scan and x-rays showed some cervical spondylosis at C5-6 and C6-7. There was no
evidence of an acute herniated disc and paresthesias in the last two digits of her right hand did
not fit with diagnostic testing. Dr. Pulliam advised that he did not see an immediate need for
surgery and opined that the “odds of surgery helping her would be low.” In an April 21, 2006
report, he advised appellant’s attending physician, Dr. Ruth F. Quarles, a Board-certified family
practitioner, that appellant’s cervical spondylosis at C5-6 and C6-7 was supported by MRI scan
findings. Dr. Pulliam recommended physical therapy and possibly surgery at those two levels.
Appellant stopped work on May 19, 2006 and returned to full-time light duty with restrictions on
June 26, 2006.
As neither Dr. Quarles nor Dr. Pulliam discussed how the cervical spondylosis at C5-6
and C6-7 conditions were caused or aggravated by the November 15, 2005 work injury, the
Office scheduled a second opinion examination with Dr. Sheldon Kaffen, a Board-certified
orthopedic surgeon. In his September 26, 2006 report, Dr. Kaffen noted appellant’s history of
injury and medical course, set forth his review of the medical records and noted his examination
findings. He diagnosed: cervical sprain/strain, resolved; sprain/strain right shoulder;
degenerative disc disease of the cervical spine; osteoarthritis of the cervical spine; and spinal
stenosis cervical spine. Dr. Kaffen opined that there were no objective findings to indicate that
appellant has residuals of the accepted conditions of neck and shoulder sprains/strains. He noted
that those were soft tissue injuries, which should have resolved since the date of injury.
Dr. Kaffen stated that appellant’s current findings were related to the other conditions involving
the cervical spine and underlying degenerative process in the right rotator cuff.
In a November 16, 2006 letter, the Office requested that Dr. Pulliam comment regarding
Dr. Kaffen’s findings and opinion. No response was provided. In a March 8, 2007 letter, the
Office requested that Dr. Quarles provide a detailed and rationalized report responsive to specific
questions regarding continuing injury-related medical residuals and disability. A statement of
accepted facts was provided.
In a March 12, 2007 report, Dr. Quarles opined that appellant’s chronic pain with right
arm radiculopathy, neck pain and headaches resulted from the November 15, 2005 work injury.
She explained that prior to the work injury appellant did not have the symptoms of right arm
pain, numbness and weakness. Dr. Quarles also stated that while appellant may have had some
cervical degenerative changes related to osteoarthritis, she was fully functional and did her job
on a daily basis prior to the work injury.
On March 21, 2007 appellant underwent a cervical discectomy at C5-6, C6-7, that was
performed by Dr. Pulliam, who diagnosed cervical spondylosis C5-6, C6-7, with radiculitis. The
Office did not authorize the surgery.

2

On March 26, 2008 the Office found a conflict of medical opinion between Dr. Quarles
and Dr. Kaffen as to whether appellant’s current conditions were related to the November 15,
2005 work injury. To resolve the conflict, it referred her, a statement of accepted facts and the
medical record to Dr. James D. Brodell, a Board-certified orthopedic surgeon, for an impartial
medical examination.
In an April 14, 2008 report, Dr. Brodell reviewed the medical record, statement of
accepted facts and diagnostic studies and noted his findings on examination. He diagnosed:
resolved cervical strain/sprain; advanced cervical spondylosis, status post two level anterior
discectomy and instrumented fusion; resolved right shoulder sprain/strain; and resolved right
shoulder impingement syndrome. Dr. Brodell stated that the sprains/strains appellant received in
her neck and right shoulder as a result of the work injury were soft-tissue injuries, which
resolved long before Dr. Kaffen and Dr. Quarles wrote their opinions in September 2006 and
March 2007, respectively. He explained that generally such soft tissue trauma of that type heals
within a time frame of four to six weeks. Dr. Brodell indicated that when other conditions are
present, such as advanced age, obesity, deconditioned state and underlying arthritis, it could take
two to three months to heal. Thus, as he stated that, the accepted conditions healed long ago, he
opined that appellant had been and continued to be capable of working as a full-duty practical
nurse without restriction based on the accepted conditions. Dr. Brodell further found that there
was no reasonable medical indication for future diagnostic studies or treatment related to the
accepted conditions. He noted that, while Dr. Quarles believed that appellant suffered from
long-term neck pain, right arm radiculopathy and headaches as a result of the November 15,
2005 work injury, those were symptoms and not diagnoses. Dr. Brodell explained that her
cervical sprain/strain of November 15, 2005 was superimposed on preexisting spondylosis. He
opined that the arthritic changes in appellant’s neck were already severe at the time of the
November 15, 2005 work injury and her cervical spondylosis and radiculopathy were not
causally related to the employment injury. Dr. Brodell explained it took years of the aging
process to create the chemical compensation changes in the intervertebral jelly discs of the spine
and connective tissue coverings and disc space narrowing to cause the spondylosis and
secondary symptoms of myelopathy and/or radiculopathy. He further stated that Dr. Quarles’
argument that the cervical degenerative disc and joint disease was aggravated by the employment
incident, was a purely subjective theory and could not be objectively verified. Dr. Brodell
opined that appellant’s March 21, 2007 surgery addressed the severe, preexisting arthritic
changes and would have been required regardless of the employment injury. He stated that her
current work restrictions were not related to the November 15, 2005 employment injury.
By notice dated June 26, 2008, the Office advised appellant that it proposed to terminate
her wage-loss compensation and medical benefits as the weight of the medical evidence
established that the accepted condition had ceased without residuals. Appellant was accorded 30
days within which to submit additional evidence and argument. No response was received from
appellant.
By decision dated July 31, 2008, the Office terminated appellant’s wage-loss
compensation and medical benefits that day. It accorded determinative weight to Dr. Brodell’s
impartial medical opinion that all work-related residuals and disability had ceased.

3

In an August 6, 2008 letter, appellant’s attorney disagreed with the Office’s decision and
requested an oral hearing, which was held on December 9, 2008. Appellant’s attorney argued
that while appellant no longer suffered from active residuals of the accepted conditions of
cervical strain and right shoulder strain, the Office did not state that evidence failed to
substantiate a relationship between her current conditions and the employment injury. No
additional evidence or comments were submitted.
By decision dated February 25, 2009, the Office hearing representative affirmed as
modified the previous decision. It affirmed that the weight of the medical evidence rested with
the impartial report of Dr. Brodell and modified its earlier decision to reflect there was no basis
for termination of wage-loss compensation benefits since appellant was not in receipt of wageloss compensation. The Office hearing representative noted that its proposal to terminate
benefits explained that her current conditions were not accepted as injury related.
LEGAL PRECEDENT
Once the Office has accepted a claim and pays compensation, it bears the burden to
justify modification or termination of benefits.1 Having determined that an employee has a
disability causally related to his or her federal employment, the Office may not terminate
compensation without establishing either that the disability has ceased or that it is no longer
related to the employment.2 The right to medical benefits for an accepted condition is not
limited to the period of entitlement for disability compensation.3 To terminate authorization for
medical treatment, the Office must establish that appellant no longer has residuals of an
employment-related condition, which require further medical treatment.4
Section 8123(a) of the Federal Employees’ Compensation Act provides that, if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician who shall make an
examination.5 In situations where there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.6
ANALYSIS
In developing the medical evidence, the Office properly determined that a medical
conflict existed regarding whether appellant’s current conditions and cervical spine surgery were
1

Bernadine P. Taylor, 54 ECAB 342 (2003).

2

Id.

3

Roger G. Payne, 55 ECAB 535 (2004).

4

Pamela K. Guesford, 53 ECAB 726 (2002).

5

5 U.S.C. § 8123(a).

6

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

4

related to the November 15, 2005 work injury between Dr. Quarles, appellant’s attending
neurosurgeon, and Dr. Kaffen, the second opinion physician.7 It referred appellant to Dr. Brodell
for an impartial medical examination.
In his April 14, 2008 report, Dr. Brodell advised that the accepted conditions of neck and
right shoulder strain/sprains had previously resolved. Thus, he opined that appellant was capable
of working full duty as a practical nurse without restrictions and there was no need for further
medical treatment with regard to the accepted conditions. Dr. Brodell explained that the
accepted conditions were soft-tissue injuries which generally heal within four to six weeks or, in
the case of advancing age, obesity, deconditioned state and underlying arthritis, heal within two
to three months. He further opined that appellant’s current cervical condition and work
restrictions were not related to the November 15, 2005 employment injury. Dr. Brodell opined
that the arthritic changes in her neck were already severe at the time of the November 15, 2005
work injury and her cervical spondylosis and radiculopathy were not causally related to the work
injury. He explained that appellant had preexisting spondylosis and it took years of the aging
process to cause the spondylosis and secondary symptoms of myelopathy and/or radiculopathy.
Dr. Brodell further stated that there was no objective evidence to verify that the November 15,
2005 work injury aggravated her preexisting cervical degenerative disc and joint disease and that
she would have required surgery regardless of the work injury. The Office relied on
Dr. Brodell’s opinion to find that appellant had no continuing residuals of her November 15,
2005 work injury and, therefore, was not entitled to medical benefits.8
The Board finds that Dr. Brodell’s referee opinion constitutes the weight of the medical
evidence. Dr. Brodell’s report was based on a thorough history of appellant’s condition and a
review of the medical evidence and diagnostic studies. On examination, he found that appellant
no longer had any disabling residuals from her accepted November 15, 2005 work injury as such
strains/sprains were soft-tissue injuries which would have resolved no later than two to three
months after the injury. Dr. Brodell further found that the arthritic changes in her neck were
severe at the time of the work injury and the work injury did not aggravate her underlying
condition as it takes years for the aging process to cause spondylosis and secondary symptoms of
myelopathy and/or radiculopathy, for which appellant underwent surgery. His opinion is
probative, rationalized and based upon a proper factual background and establishes that the
accepted injuries had resolved and that appellant’s degenerative conditions were not caused or
aggravated by the accepted work injury.9 Therefore, the Office properly accorded his opinion
the special weight of an impartial medical examiner.10

7

See Geraldine Foster, 54 ECAB 435 (2003).

8

The Office’s hearing representative properly found in the February 25, 2009 decision that entitlement to wageloss compensation benefits was not an issue as appellant was not in receipt of wage-loss compensation.
9

Where an employee claims that a condition not accepted or approved by the Office 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. Jaja K. Asaramo, 55 ECAB 200 (2004).
10

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

5

CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s medical
benefits on July 31, 2008.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated February 25, 2009 is affirmed.
Issued: January 12, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Batavia, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-0888
Issued: November 29, 2018

Case Submitted on the Record

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

JURISDICTION
On March 20, 2018 appellant filed a timely appeal from a December 19, 2017 merit
decision and a February 27, 2018 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish more than
10 percent permanent impairment of her left lower extremity for which she previously received
schedule award compensation; and (2) whether OWCP properly denied appellant’s request for a
review of the written record by an OWCP hearing representative as untimely filed, pursuant to 5
U.S.C. § 8124.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 4, 2014 appellant, then a 55-year-old boilerplate operator, filed a notice of
recurrence (Form CA-2a) alleging that she developed dizziness on July 9, 2014, while in the
performance of her federal employment duties. She explained that, after her original May 18, 2014
employment injury, she was able to return to limited-duty work.2 OWCP converted the recurrence
claim to a claim for new injury and assigned OWCP File No. xxxxxx709.
By decision dated September 17, 2014, OWCP accepted appellant’s claim for tear of the
left medial meniscus.
On October 28, 2014 appellant underwent arthroscopic subtotal medial and lateral
meniscectomy and chondroplasty of the trochlear groove and medial femoral condyle of the left
knee. She returned to full-time light-duty work on February 20, 2015.
On October 7, 2016 appellant filed a schedule award claim (Form CA-7).
By development letter dated October 21, 2016, OWCP requested that appellant submit
additional medical evidence including a report from her attending physician which addressed her
work-related condition, the date of maximum medical improvement (MMI), objective findings,
subjective complaints, and an impairment rating in accordance with the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).3 OWCP afforded appellant 30 days to respond.
By decision dated November 23, 2016, OWCP denied appellant’s schedule award claim.
It found that she had not submitted medical evidence establishing permanent impairment of her
left lower extremity.
Appellant thereafter submitted additional medical evidence. In a report dated August 17,
2016, Dr. Richard K. Hoy, a Board-certified orthopedic surgeon, evaluated appellant’s permanent
impairment based on the sixth edition of the A.M.A., Guides. He found that appellant had reached
MMI and required no further treatment for her left knee. Dr. Hoy opined that he estimated that
appellant had four percent permanent impairment of the left lower extremity due to partial medial
and lateral meniscectomies. In a report dated September 28, 2016, he examined appellant due to
right hip pain. Dr. Hoy noted that appellant reported to her that a left knee injury caused her knee
to buckle resulting in a fall from her porch in March. He diagnosed primary osteoarthritis of the
pelvic region and thigh, tear of the lateral cartilage of the knee. Dr. Hoy found that appellant had
six percent permanent impairment of the left knee due to medial and lateral meniscectomies, four
percent permanent impairment due to patella femoral arthritis, and eight percent impairment due
to osteoarthritis in the weight-bearing portion of the joint. He concluded that appellant had a total
of 18 percent permanent impairment of her left lower extremity.
2

The statement of accepted facts (SOAF) reflects that, on May 17, 2014, appellant was descending stairs when she
felt a snap behind her left knee. OWCP assigned that claim OWCP File No. xxxxxx216 and accepted it for left calf
strain. OWCP File No. xxxxxx216 has not been administratively combined with the present claim.
3

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

2

On April 24, 2017 OWCP referred appellant, a SOAF, and list of questions to Dr. Kevin
Scott, a Board-certified orthopedic surgeon, for a second opinion evaluation regarding her
permanent impairment of the left knee for schedule award purposes. In his May 11, 2017 report,
Dr. Scott noted appellant’s history of injury in May 2014. He reported that appellant had a limp,
that she had 120 degrees of flexion and 0 degrees of extension. Dr. Scott also reported anterior
knee pain, and positive patellar grind test. He found that appellant had reached MMI for her left
knee and diagnosed partial medial and lateral meniscectomy with chondroplasty of the medial
femoral condyle, and trochlear groove of the left knee. Dr. Scott utilized Table 16-3 of the A.M.A.,
Guides,4 and found appellant had a class 1 impairment due to the partial medial and lateral
meniscectomies. He determined that she had a functional history grade modifier of 1 based on her
limp.5 Dr. Scott further found physical examination grade modifier of 1 based on her palpable
tenderness around the anterior prior of her knee and positive patella grind.6 He applied grade
modifier 1 for clinical studies based on her knee arthritis.7 Dr. Scott utilized the net adjustment
formula and reached zero for a grade C default value of 10 percent permanent impairment of the
left lower extremity.8
On October 24, 2017 OWCP’s medical adviser, Dr. Arthur A. Harris, a Board-certified
orthopedic surgeon, reviewed the medical record to determine appellant’s permanent impairment.
He found that appellant had 10 percent permanent impairment of the left lower extremity based on
the sixth edition of the A.M.A., Guides and that appellant reached MMI on May 11, 2017.
By decision dated December 19, 2017, OWCP granted appellant a schedule award for 10
percent permanent impairment of her left lower extremity. In a December 19, 2017 form,
postmarked February 5, 2018, appellant requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review.
By decision dated February 27, 2018, a representative of OWCP’s Branch of Hearings and
Review denied appellant’s request for a review of the written record, finding that her request was
untimely. OWCP’s hearing representative noted that OWCP issued its decision on December 19,
2017 and appellant’s request for a review of the written record was postmarked on February 5,
2018, more than 30 days after OWCP’s December 19, 2017 decision. She noted that, as appellant’s
request was untimely, appellant was not entitled to a review of the written record as a matter of
right. The hearing representative then exercised her discretion and found that the issue in the case
could equally well be addressed by requesting reconsideration and submitting evidence not
previously considered.

4

Id. at 509, Table 16-3.

5

Id. at 516, Table 16-6.

6

Id. at 517, Table 16-7.

7

Id. at 519, Table 16-8.

8

Supra note 4.

3

LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA9 and its implementing regulations10 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for loss
or loss of use, of scheduled members or functions 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 determination is a matter which rests in the 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. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides, published in 2009.11 The Board has approved the use by OWCP of the A.M.A., Guides
for the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.12 It is well established that in determining the amount of a schedule award for a
member of the body that sustained an employment-related impairment, preexisting impairments
are to be included.13
The A.M.A., Guides provide a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF).
For lower extremity impairments, the evaluator identifies the impairment class of diagnosis (CDX)
condition, which is then adjusted by grade modifiers based on functional history (GMFH), physical
examination (GMPE), and clinical studies (GMCS).14 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).15 Evaluators are directed to provide reasons for their
impairment rating choices, including choices of diagnoses from regional grids, and calculations of
modifier scores.16
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established more than 10 percent permanent
impairment of her left lower extremity for which she previously received schedule award
compensation.

9

5 U.S.C. §§ 8101-8193, 8107.

10

20 C.F.R. § 10.404.

11

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides. A.M.A.,
Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability
Claims, Chapter 2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010).
12

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

13

P.R., id.; Carol A. Smart, 57 ECAB 340 (2006).

14

A.M.A., Guides 493-531 (6th ed. 2009).

15

Id. at 521.

16

B.R., Docket No. 18-0277 (issued August 27, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

4

OWCP accepted that appellant sustained tear of the left medial meniscus and authorized
surgery. On October 28, 2014 appellant underwent arthroscopic partial medial and lateral
meniscectomies. In his August 17, 2016 report, Dr. Hoy opined that appellant had four percent
permanent impairment of the left lower extremity due to partial medial and lateral meniscectomies.
On September 28, 2016 he found that appellant had six percent permanent impairment of the left
knee due to medial and lateral meniscectomies, four percent permanent impairment due to patella
femoral arthritis, and eight percent impairment for osteoarthritis. Without explanation Dr. Hoy
concluded that appellant had 18 percent permanent impairment of her left lower extremity. The
Board finds that Dr. Hoy’s reports failed to provide the medical findings in support of his
impairment rating and failed to correlate and clearly explain his impairment calculations under the
sixth edition of the A.M.A., Guides.17 The Board has held that when the attending physician fails
to provide a rating of impairment in accordance with the A.M.A., Guides or does not discuss how
he or she arrives at the degree of impairment based on physical findings, the opinion is of
diminished probative value in establishing the degree of permanent impairment.18
OWCP referred appellant for a second opinion evaluation with Dr. Scott. In his May 11,
2017 report, Dr. Scott noted that appellant had a limp, that she had 120 degrees of flexion, and 0
degrees of extension. He also reported anterior knee pain, and positive patellar grind test.
Dr. Scott found that appellant had reached MMI for her left knee and diagnosed partial medial and
lateral meniscectomies. He utilized the appropriate tables of the A.M.A., Guides,19 determined
her grade modifiers of functional history, physical examination, and clinical studies, and applied
the net adjustment formula20 to reach a grade C default value of 10 percent permanent impairment
of the left lower extremity.21
In accordance with its procedures, OWCP properly referred the evidence of record to its
OWCP medical adviser, Dr. Harris. In his October 24, 2017 review, Dr. Harris found that
appellant had reached MMI and concurred with Dr. Scott’s impairment rating, applying the sixth
edition of the A.M.A., Guides to the physical findings of record.
The Board thus finds that OWCP properly accorded the weight of the medical evidence to
the reports of Dr. Scott and OWCP’s medical adviser, Dr. Harris as they correctly calculated that
appellant had 10 percent permanent impairment of her left lower extremity under the sixth edition
of the A.M.A., Guides.22 As there is no evidence of record establishing greater impairment than
the 10 percent previously awarded, appellant has failed to meet her burden of proof.

17

Id.

18

L.M., Docket No. 12-0868 (issued September 4, 2012); John L. McClanic, 48 ECAB 552 (1997).

19

A.M.A., Guides 509, Table 16-3; 516, Table 16-6; 517, Table 16-7; 519, Table 16-8.

20

Id. at 521.

21

Id. at 509, Table 16-3.

22

R.A., Docket No. 18-0499 (issued July 20, 2018).

5

Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary 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.23 Sections
10.617 and 10.618 of the federal regulations implementing this section of FECA provide that a
claimant shall be afforded a choice of an oral hearing or a review of the written record by a
representative of the Secretary.24 A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking and before the claimant has requested reconsideration.25
Although there is no right to a review of the written record or an oral hearing if not requested
within the 30-day time period, OWCP may within its discretionary powers grant or deny his or her
request and must exercise its discretion.26 Its procedures require that it exercise its discretion to
grant or deny a hearing when the request is untimely or made after reconsideration under section
8128(a).27
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant’s request for a review of
the written record was untimely filed.
The December 19, 2017 appeal form on which appellant requested review of the written
record was postmarked February 5, 2018. The time limitation to request a review of the written
record from OWCP’s Branch of Hearings and Review expired on January 18, 2018, 30 days after
OWCP’s December 19, 2017 decision.28 As appellant’s request was postmarked February 5, 2018,
it was therefore untimely filed. Section 8124(b)(1) sets an unequivocal time limitation for
requesting a review of the written record.29 Because the request was untimely filed, appellant was
not entitled to a review of the written record as a matter of right under section 8124(b)(1) of FECA.
Although appellant’s request for a review of the written record was untimely filed, OWCP
has the discretionary authority to grant the request and it must exercise such discretion. In its
23

5 U.S.C. § 8124(b)(1).

24

20 C.F.R. §§ 10.616, 10.617.

25

Id. at § 10.616(a).

26

B.R., supra note 16; Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

27

B.R., supra note 16; R.T., Docket No. 08-0408 (issued December 16, 2008).

28

Id.

29

Id.; William F. Osborne, 46 ECAB 198 (1994).

6

February 27, 2018 decision, it properly exercised its discretion by notifying appellant that it had
considered the matter in relation to the issue involved and that additional argument and evidence
could be submitted with a request for reconsideration. The Board has held that the only limitation
on OWCP’s authority is reasonableness. An abuse of discretion is generally shown through proof
of manifest error, a clearly unreasonable exercise of judgment, or actions taken which are contrary
to both logic and probable deductions from established facts.30 Accordingly, the Board finds that
OWCP properly denied appellant’s February 5, 2018 request for a review of the written record as
untimely filed, pursuant to 5 U.S.C. § 8124.
CONCLUSION
The Board finds that appellant has not established more than 10 percent permanent
impairment of her left lower extremity for which she previously received schedule award
compensation. The Board further finds that OWCP properly denied appellant’s request for a
review of the written record as untimely filed, pursuant to 5 U.S.C. § 8124.
ORDER
IT IS HEREBY ORDERED THAT the February 27, 2018 and December 19, 2017
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 29, 2018
Washington, DC

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

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

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

30

B.R., supra note 16; Samuel R. Johnson, 51 ECAB 612 (2000).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.O., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
WARFARE CENTER, China Lake, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-635
Issued: June 5, 2015

Case Submitted on the Record

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

JURISDICTION
On January 27, 2015 appellant filed a timely appeal from the September 3, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Since more than 180 days
has elapsed between the last merit decision on February 11, 2014 and 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 the claim.
ISSUE
The issue is whether OWCP properly declined to reopen appellant’s case, pursuant to 5
U.S.C. § 8128(a), for further consideration of the merits of his claim.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 3, 2009 appellant, a 41-year-old computer scientist, sustained an injury in the
performance of duty when his vehicle slid and rolled over. OWCP accepted his claim for lumbar
sprain and multiple contusions. It also accepted a sprain of the shoulder and upper arm, and a
rotator cuff and other unspecified conditions of the shoulder region.
In a decision dated February 11, 2014, OWCP denied appellant’s claim for
reimbursement for mileage in excess of 100 miles and for wage-loss compensation in excess of
four hours a day to attend medical appointments. It explained that reimbursement of reasonable
and necessary expenses, including transportation needed to obtain authorized medical services is
established at 50 miles (one way) to obtain such services and four hours as the standard for
reimbursement for wage loss due to medical appointments.
On July 28, 2014 OWCP received appellant’s July 22, 2014 appeal request form
indicating, with a mark, that he was requesting reconsideration of the February 11, 2014
decision.
The record contains reports of various diagnostic tests, medical examinations, and
treatment plans from the following medical providers: Southern Sierra Medical Clinic,
Ridgecrest, CA; The Hand and Wrist Institute of Beverly Hills, CA; AVORS Medical Group,
Lancaster, CA; and Dr. Eric S. Millstein, a Board-certified orthopedic surgeon and sports injury
specialist.
In a decision dated September 3, 2014, OWCP denied appellant’s reconsideration
request. It found that because he did not submit any additional evidence with his appeal request
form, it was insufficient to warrant a review of the February 11, 2014 decision. OWCP added
that although it had received various medical reports since February 11, 2014, they did not
address the issue of reimbursement for excess travel and wage loss to attend medical
appointments.
On appeal, appellant offers a letter and documentation to explain his reason for receiving
physical therapy more than 50 miles from his residence and his argument that he is entitled to
mileage reimbursement for that travel.
LEGAL PRECEDENT
OWCP may review an award for or against payment of compensation at any time on its
own motion or upon application.2 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
decision. The request for reconsideration, including all supporting documents, must be in
writing and must set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument

2

Id. at § 8128(a).

2

not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.3
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.4 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or argument that meets at
least one of these standards. If reconsideration is granted, the case is reopened and the case is
reviewed on its merits. Where the request is timely but fails to meet at least one of these
standards, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.5
ANALYSIS
OWCP received appellant’s reconsideration request within one year of its February 11,
2014 decision. Appellant’s request is therefore timely. The question for determination is
whether that request met at least one of the three standards for reopening his case.
Appellant’s request did not show that OWCP erroneously applied or interpreted a specific
point of law. The request did not advance a relevant legal argument not previously considered
by OWCP. Also the request did not contain relevant and pertinent new evidence not previously
considered by OWCP. Indeed, appellant submitted no argument or evidence to support his
reconsideration request. Appellant did nothing more than indicate his appeal preference. Such a
bare request is insufficient, on its face, to warrant a reopening of his case.6
The medical evidence received by OWCP since February 11, 2014 is irrelevant to the
issue decided on that date. OWCP denied reimbursement because it had exercised its discretion
to place some limit, applicable to all claimants, on the reimbursable distance one may travel to
receive medical services and the number of reimbursable hours one may claim for a medical
appointment. The Board has held that evidence which does not address the particular issue
involved also does not constitute a basis for reopening a case.7
Accordingly, as appellant’s reconsideration request did not meet at least one of the three
standards for reopening his case, the Board finds that OWCP properly denied a merit review.
The Board will affirm OWCP’s September 3, 2014 decision.8

3

20 C.F.R. § 10.606.

4

Id. at § 10.607(a).

5

Id. at § 10.608.

6

J.A., Docket No. 14-1447 (issued October 21, 2014).

7

See Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

8

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).

3

CONCLUSION
The Board finds that appellant is not entitled to a merit review. Appellant’s
reconsideration request did not meet at least one of the three standards for reopening his case.
ORDER
IT IS HEREBY ORDERED THAT the September 3, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 5, 2015
Washington, DC

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

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

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

4


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

)
)
)
)
)
)
)
)

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

Docket No. 09-2108
Issued: August 5, 2010

Case Submitted on the Record

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

JURISDICTION
On August 24, 2009 appellant filed a timely appeal from the April 22, 2009 merit
decision of the Office of Workers’ Compensation Programs denying his traumatic injury claim
and a July 24, 2009 nonmerit decision denying his request for an oral hearing. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained a traumatic injury while in the
performance of duty on March 12, 2009; and (2) whether the Office properly denied his request
for an oral hearing.
FACTUAL HISTORY
On July 16, 2006 appellant, then a 54-year-old rehabilitation clerk, filed a traumatic
injury claim (Form CA-1) alleging that on March 12, 2009 he sustained a back injury when he
lifted a ream of paper from a box. He felt pain in his lower back and legs and his back stiffened
up.

Appellant submitted March 12, 2009 statements from Training Manager Tracie Graham
and Coworker Yvette Williams. Two minutes after Ms. Graham observed him bending over a
box of copy paper on the day in question, she witnessed appellant walking slowly back to his
desk. Appellant stated that he felt something tear in his back. Ms. Williams stated that appellant
cursed and stated that he heard something tear in his back shortly after the alleged incident.
The employing establishment controverted the claim. It contended that lifting a ream of
paper weighing less than 20 pounds fell within appellant’s work restrictions and he failed to
provide medical documentation establishing a causal relationship between his claimed condition
and the alleged incident.
The record contains a job offer for a modified sales services position, which appellant
accepted on February 27, 2008 pursuant to restrictions related to a 1989 injury. Duties of the
position were considered clerical and included opening, date-stamping and organizing mail,
sending out mail and making photocopies.
By letter dated March 23, 2009, the Office informed appellant that the evidence
submitted was insufficient to establish that the incident occurred as alleged or that he had
sustained an injury as a result of the alleged incident. Appellant was advised to submit
additional information and evidence, including witness statements and a physician’s report,
which contained a diagnosis and explanation as to how his diagnosed condition resulted from the
claimed employment event.
Appellant submitted a March 18, 2009 report from Dr. Jeffrey A. Baum, a Boardcertified orthopedic surgeon, who stated that, while working a few days earlier, appellant felt a
burning pain in his back after lifting a ream of paper. Since then he experienced low back pain,
burning and intermittent pain in his left leg. Dr. Baum noted that appellant had a history of
multiple back surgeries. On examination, appellant had no tension signs with either leg out to 90
degrees. Reflexes were decreased 1+ and symmetric in knees and ankles. There was no pain
with range of motion of either hip or either knee; however, left hip motion caused low back pain.
Dr. Baum restricted appellant from working pending a magnetic resonance imaging (MRI) scan.
The record contains a March 12, 2009 report from an emergency medical service
reflecting that appellant was transported to St. Margaret Hospital on that date after lifting a ream
of paper at work.
A March 23, 2009 MRI scan of the lumbar spine reflected a diminutive spinal canal;
foraminal narrowing bilaterally at L4-5; and central protrusion causing bilateral recess and
central canal narrowing. There was moderate L3-4 and mild L2-3 foraminal encroachment
mostly by facet hypertrophy. The record contains disability slips from Dr. Baum dated March 18
and 26, 2009; a request for physical therapy dated April 1, 2009; and a physical therapy
rehabilitation plan dated March 31, 2009. The record also contains a March 27, 2009 note from
Dr. Erica Bial, a Board-certified internist, reflecting that appellant received a nerve root injection
at L3-4, L4-5 and L5-S1.

2

On March 26, 2009 Dr. Baum noted that appellant’s MRI scan showed more concentric
narrowing from a congenital basis, as well as a protruding disc at L4-5. He advised that
appellant’s back condition had worsened since October 2006, noting significant left leg pain.
Appellant submitted a March 12, 2009 emergency room report from the University of
Pittsburgh Medical Center. He was examined by Dr. David R. Deitz, Board-certified in the field
of family medicine. Appellant reported that he had been performing “laboring work” at the
employing establishment. While lifting at work that day, he experienced low back pain, which
radiated down to both extremities. Appellant noted that he had five previous lumbar surgeries.
On examination, Dr. Deitz found diffuse lumbar tenderness at the L3-4 area and no mid-line
tenderness. Straight leg raise test was negative. X-rays showed degenerative joint disease. He
diagnosed acute lumbar sprain. The record contains a March 12, 2009 report of an x-ray of the
lumbar spine.
In a decision dated April 22, 2009, the Office denied appellant’s claim. It accepted that
appellant lifted a ream of paper on March 12, 2009. It found that the medical evidence was
insufficient to establish that the accepted incident caused his claimed back condition.
On June 23, 2009 appellant requested an oral hearing. In support of his request, he
submitted physician’s reports, reports of MRIs and x-rays and hospital records from March 12
through June 16, 2009.
By decision dated July 24, 2009, the Office denied appellant’s request for a hearing as
untimely. It determined that the issue involved could be addressed equally well on
reconsideration, by submitting evidence establishing that his claimed medical condition was
caused by the accepted employment incident.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides for payment of compensation for
disability or death of an employee, resulting from personal injury sustained while in the
performance of duty.1 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
“arising out of and in the course of employment.”2
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his 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 disability or specific condition for which compensation is claimed is

1

5 U.S.C. § 8102(a).

2

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).

3

causally related to the employment injury.3 When an employee claims that he sustained a
traumatic injury in the performance of duty, he must establish the “fact of injury,” consisting of
two components which must be considered in conjunction with one another. The first is whether
the employee actually experienced the incident that is alleged to have occurred at the time, place
and in the manner alleged. The second is whether the employment incident caused a personal
injury and generally this can be established only by medical evidence.4
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.5 An award of
compensation may not be based on appellant’s belief of causal relationship.6 Neither the mere
fact that a disease or condition manifests itself during a period of employment, nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents, is
sufficient to establish a causal relationship.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.8
However, it is well established that proceedings under the Act are not adversarial in
nature and while the claimant has the burden of establishing entitlement to compensation, the
Office shares responsibility in the development of the evidence to see that justice is done.9
ANALYSIS
The Board finds that this case is not in posture for decision regarding whether appellant
sustained an injury in the performance of duty.
3

Robert Broome, 55 ECAB 339 (2004).

4

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term “injury” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101 (5). See 20 C.F.R. § 10.5(q), (ee).
5

Katherine J. Friday, 47 ECAB 591, 594 (1996).

6

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

7

Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

8

John W. Montoya, 54 ECAB 306 (2003).

9

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, claiming as executrix of the estate of
Lionel F. Richard, 53 ECAB 430 (2002); Dorothy L. Sidwell, 36 ECAB 699 (1985); William J. Cantrell, 34 ECAB
1233 (1993).

4

The Office accepted that the March 12, 2009 lifting incident occurred as alleged, but
found that there was insufficient medical evidence to establish that appellant’s back condition
was caused by the lifting of a ream of paper at work. The Board finds, however, that the medical
evidence of record generally supports that appellant sustained an injury on March 12, 2009.
On March 12, 2009 Dr. Deitz stated that appellant had sustained an acute lumbar sprain
while lifting at work that day. His report reflects an understanding of appellant’s preexisting
lumbar condition, which included five surgeries. It contains a factual and medical history,
examination findings and a specific diagnosis. Although Dr. Deitz did not fully explain the
process whereby appellant’s diagnosed acute lumbar sprain resulted from lifting a ream of paper,
his report generally supports appellant’s claim that his diagnosed condition was caused or
aggravated by the accepted incident.
On March 18, 2009 Dr. Baum stated that, while working a few days earlier, appellant
experienced a burning pain in his low back after lifting a ream of paper and since then, he had
experienced lower back pain, burning and intermittent pain in his left leg. He provided a medical
history and detailed examination findings including low back pain with left hip motion, and
restricted appellant from working pending an MRI scan. On March 26, 2009 Dr. Baum noted
that appellant’s MRI scan showed more concentric narrowing from a congenital basis, as well as
a protruding disc at L4-5. He advised that appellant’s condition had worsened since October
2006, noting that he had significant left leg pain due to his back condition. Dr. Baum’s reports
do not provide a definitive diagnosis or an opinion as to the cause of appellant’s condition, but
they are factually consistent with his treatment for a lumbar condition which began or was
exacerbated on March 12, 2009.
The March 12, 2009 report from an emergency medical service does not constitute
probative medical evidence, as it was not prepared by a physician as defined by the Act.10
However, it supports that appellant sought immediate emergency treatment after the lifting
incident at work. The x-ray reports and MRI scan document that appellant suffered from, and
was treated for, a lumbar condition following the accepted March 12, 2009 incident.
While none of the reports of appellant’s attending physicians is completely rationalized,
they are consistent in indicating that he sustained an employment-related lumbar injury on
March 12, 2009 and are not contradicted by any substantial medical or factual evidence of
record. While the reports are not sufficient to meet his burden of proof to establish his claim,
they raise an uncontroverted inference between appellant’s claimed condition and the accepted
employment injury, and are sufficient to require the Office to further develop the medical
evidence and the case record.11 The case will be remanded to the Office to obtain a rationalized
opinion from a qualified physician as to whether appellant’s back condition is causally related to
10

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as a physician under section 8101(2) of the Act, which provides: “(2) ‘physician’
includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law.” See Merton J. Sills, 39 ECAB 572,
575 (1988).
11

See Virginia Richard, supra note 9; see also Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41
ECAB 354 (1989).

5

the accepted incident. After such development as necessary, it should issue an appropriate
decision in order to protect appellant’s rights of appeal.
CONCLUSION
The Board finds that this case is not in posture for decision on whether appellant
sustained an injury in the performance of duty.12
ORDER
IT IS HEREBY ORDERED THAT the April 22, 2009 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded for action consistent with
the terms of this decision.
Issued: August 5, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

12

In light of the Board’s ruling on the first issue, the second issue is moot.

6