United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Manchester, NH, Employer
__________________________________________

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Appearances:
Bradley M. Lown, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-500
Issued: January 19, 2011

Case Submitted on the Record

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

JURISDICTION
On December 16, 2009 appellant, through his attorney, filed a timely appeal from the
Office of Workers’ Compensation Programs’ merit decision dated November 16, 2009 which
denied his traumatic injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
right leg or buttocks injury on March 5, 2009, as alleged.
FACTUAL HISTORY
On March 12, 2009 appellant, then a 49-year-old mail carrier, filed a traumatic injury
claim alleging that on March 5, 2009 he bent over to empty mailboxes on his route and
experienced pain in his upper right leg and buttocks. He did not stop work. Rhonda Knapp, the
postmaster, controverted the claim noting that appellant delayed five days in reporting his injury
and had a history of reporting injuries which occurred at home.

In a March 9, 2009 report, Dr. Mark J. Geppert, a Board-certified orthopedic surgeon,
treated appellant for left knee pain and right ankle pain. He noted that appellant was status post
intrameduallary (IM) rodding with removal of the rod and status post arthroscopy. Dr. Geppert
diagnosed status post ankle sprain and tibula/fibula fracture. Appellant reported working 40
hours a week and having ankle discomfort when he worked overtime. Dr. Geppert restricted
appellant to work 40 hours a week. In a March 11, 2009 duty status report, Dr. Geoffrey Stein,
Board-certified in emergency medicine, noted findings of tenderness in the mid section of
appellant’s back and recommended that he return to work with restrictions. In a March 11, 2009
New Hampshire workers’ compensation form, he diagnosed low back and right hip strain.
Appellant reported injuring his right buttock and hip at work on March 5, 2009 when he was
retrieving mail from mailboxes. Dr. Stein noted with a checkmark “yes” that appellant’s injury
and disability were a result of the described injury. Appellant returned to work on March 12,
2009 with restrictions.
In a letter dated March 23, 2009, the Office advised appellant of the type of factual
evidence needed to establish his claim. It requested that he submit such evidence within 30 days.
In an undated statement, appellant noted that his duties included emptying a number of
mailboxes at the end of the day. On March 5, 2009 snow was piled on the sidewalks and
mailboxes were difficult to access. Appellant felt a twinge in his right hip and buttock while
emptying mailboxes. He did not immediately report his injury because it did not seem bad and
he thought it would heal without treatment. After four days appellant reported the injury and
sought treatment.
In a March 9, 2009 workers’ compensation form, Dr. Geppert diagnosed ankle pain,
status post left fibula fracture and noted that appellant could continue to work up to 40 hours a
week, with no overtime. He checked a box “yes” that appellant’s injury and disability were the
result of the injury described. In a March 11, 2009 report, Dr. Stein diagnosed strain of the low
back and right hip. Appellant reported that, while he was collecting mail from mailboxes on
March 5, 2009, he bent over to retrieve mail and felt a twinge in the right buttock and hip region.
He stated that his condition was not improving. On March 18, 2009 Dr. Stein noted a history of
injury and diagnosed resolving low back and right hip sprain and advised that appellant work
light duty.
Appellant was also treated by Dr. William Brewster, a Board-certified internist. In state
workers’ compensation forms dated March 23 to April 13, 2009, Dr. Brewster diagnosed lumbar
and hip strain. Appellant reported that on March 5, 2009 he bent over to collect mail and injured
his back and buttocks. Dr. Brewster checked a box “yes” that appellant’s injury and disability
were the result of the injury described by him. On April 7, 2009 he noted that appellant
presented on March 11, 2009 and described an injury to his right buttock and hip when he bent
over a snow bank to retrieve mail from a mailbox. Dr. Brewster diagnosed possible piriformis
strain and opined that appellant sustained a work-related injury.
On April 2, 2009 Dr. Peter J. Dirksmeier, a Board-certified orthopedist, treated appellant
for right buttock pain after a work injury of March 5, 2009. Appellant reported retrieving mail
from a mailbox and felt a twinge in his buttocks that developed into groin and thigh pain the next
day. Dr. Dirksmeier noted that appellant had a history of intermittent back pain for years but no

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buttock pain until his injury. He advised that a lumbar spine x-ray showed mild narrowing at L5S1, but was otherwise normal. Dr. Dirksmeier diagnosed piriformis strain and recommended
physical therapy. In an April 2, 2009 state workers’ compensation form, he diagnosed right hip
external rotator strain. Appellant noted that on March 5, 2009 he was emptying a mailbox and
twisted injuring his buttocks. Dr. Dirksmeier checked a box “yes” that appellant’s injury and
disability were work related.
In an April 27, 2009 decision, the Office denied appellant’s claim, finding that the
evidence was not sufficient to establish that he sustained the March 5, 2009 incident as alleged.
Further the medical evidence was not sufficient to establish an injury.
Appellant requested an oral hearing that was held on August 14, 2009. He submitted
reports from Dr. Brewster dated April 13 to 27, 2009. Dr. Brewster diagnosed piriformis strain
and noted improvement in appellant’s condition. He checked a box “yes” that appellant’s injury
and disability were employment related. Dr. Brewster continued appellant’s work restrictions.
In a May 15, 2009 report, Dr. Dirksmeier noted treating appellant for right buttock pain,
following the work-related injury of March 5, 2009. He diagnosed piriformis strain. Appellant
reported that his ability to walk his mail route was severely compromised and Dr. Dirksmeier
opined that his disability was predominately due to the left knee and right ankle pain. On
June 12, 2009 Dr. Dirksmeier noted appellant’s complaints of back and right buttock pain
subsequent to March 5, 2009 and opined his assessment was unchanged. In May 15 and June 12,
2009 state workers’ compensation form reports, he diagnosed degenerative disease and checked
a box “yes” that appellant’s condition was work related. On the June 12, 2009 form report,
Dr. Dirksmeier noted that appellant’s condition was improving.
In a May 19, 2009 workers’ compensation form, Dr. Ira M. Parsons, a Board-certified
orthopedic surgeon, noted treating appellant for a December 7, 2005 injury and diagnosed left
knee degenerative disease. He found that appellant was disabled from work. Dr. Parsons
checked a box “yes” that appellant’s condition was work related. In a July 13, 2009 workers’
compensation form, Dr. Geppert reiterated his prior opinion.
On July 29, 2009 appellant was treated by Dr. Bruce C. Gendron, an osteopath, who
diagnosed right proximal hamstring partial tear and ischial bursitis. Dr. Gendron noted within a
degree of medical certainty that appellant’s injury was likely related to the incident while
working as a mail carrier on March 5, 2009. He noted that mechanism of appellant’s injury was
stepping forward with his right foot and twisting in an awkward position to reach into a mailbox.
This resulted in right buttock pain. Dr. Gendron noted that appellant was not at maximum
medical improvement but could return to modified duty with restrictions.
By decision dated November 16, 2009, the hearing representative affirmed the April 27,
2009 decision of the Office, finding factual discrepancies concerning the March 5, 2009 incident.

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LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was filed within the applicable time limitation of the Act, that an injury was sustained 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
upon a traumatic injury or occupational disease.2
To determine whether an employee actually sustained an injury in the performance of
duty, the Office begins with an analysis of whether fact of injury has been established.
Generally, fact of injury consists of two components which must be considered in conjunction
with one another. The first component to be established is that the employee actually
experienced the employment incident which is alleged to have occurred.3 An injury does not
have to be confirmed by eyewitnesses in order to establish the fact that an employee sustained an
injury while in the performance of duty. However, the employee’s statements must be consistent
with the surrounding facts and circumstances and his or her subsequent course of action.4 Such
circumstances as late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty following the alleged injury and failure to obtain medical treatment
may cast doubt on an employee’s statements in determining whether he or she has established a
prima facie claim for compensation. However, an employee’s statement alleging that an injury
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong and persuasive evidence.5
The second component of fact of injury is whether the employment incident caused a
personal injury and generally can be established only by medical evidence. To establish a causal
relationship between the condition, as well as any attendant disability, claimed and the
employment event or incident, the employee must submit rationalized medical opinion evidence,
based on a complete factual and medical background, supporting such a causal relationship.6
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
1

Id.

2

Gary J. Watling, 52 ECAB 357 (2001).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

See Mary Jo Coppolino, 43 ECAB 988 (1992).

5

Allen C. Hundley, 53 ECAB 551 (2002); Earl David Seal, 49 ECAB 152 (1997).

6

Id.

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of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.7 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.8
ANALYSIS
The Office denied appellant’s claim on the grounds that he failed to establish that he
sustained the injury as alleged on March 5, 2009. The Board finds that the evidence supports
that on March 5, 2009 appellant was emptying mailboxes on his route and bent over to retrieve
the mail from a mailbox. Appellant provided a consistent history of the injury as reported on his
CA-1, medical reports and in his testimony. In March 11 and 18, 2009 workers’ compensation
forms and other progress notes prepared by Dr. Stein, who noted appellant’s treatment for a low
back and right hip strain which occurred on March 5, 2009 when he bent over to collect mail out
from mailboxes. Similarly, Dr. Brewster noted in workers’ compensation forms dated March 23
to April 27, 2009, noted that appellant reported sustaining a lumbar and hip strain on March 5,
2009 when he bent over to collect mail. On April 2, 2009 Dr. Dirksmeier treated appellant for
right buttock pain occurring after a March 5, 2009 work-related injury. Appellant’s testimony at
the August 14, 2009 hearing further supports his claim, noting that on March 5, 2009 he was
emptying mailboxes and placing mail in a white bucket in an area covered in snow when he bent
over and felt a twinge in his right buttocks. He further explained that he did not file a claim until
March 12, 2009 because at the time of the incident the injury did not seem bad enough to warrant
a report and he thought it would heal without treatment. Appellant indicated that after four days
of pain in the right hip and buttock he realized that he would have to report the injury and seek
treatment. The Board finds that appellant’s statements are consistent with the surrounding facts
and circumstances and thus has established that the employment incident, bending over to empty
mailboxes, occurred as alleged on March 5, 2009.
The Board finds, however, that the medical evidence is insufficient to establish that
appellant sustained a right hip and buttock injury on March 5, 2009 causally related to bending
over to empty mailboxes.
A July 29, 2009 report from Dr. Gendron diagnosed right proximal hamstring partial tear
and ischial bursitis. Dr. Gendron opined that the mechanism of appellant’s injury was stepping
forward with the right foot, reaching into a mailbox and opined that within a degree of medical
certainty appellant’s injury was “likely” related to the incident of March 5, 2009. The Board
notes that Dr. Gendron’s report provides some support for causal relationship but is insufficient
to establish the claimed low back and buttocks injuries were causally related to his employment
duties. Dr. Gendron couches his opinion in speculative terms noting that appellant’s condition
was “likely” related to the incident of March 5, 2009.9 He also provided insufficient medical
7

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

8

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
9

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions which are
speculative or equivocal in character have little probative value).

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reasoning to support his opinion on causal relationship. Dr. Gendron did not explain the process
by which reaching into a mailbox would cause or aggravate the diagnosed condition nor did he
address the relevance of appellant’s prior history of back pain in his opinion. Therefore, his
report is insufficient to meet appellant’s burden of proof.
On April 7, 2009 Dr. Brewster noted that appellant presented on March 11, 2009 and
described an injury to his right buttock and hip while retrieving mail from a mailbox. He
diagnosed acute low back and right hip strain with possible piriformis strain and opined that
appellant sustained a work-related injury. Although Dr. Brewster provides some support for
causal relationship his statements are conclusory. He did not provide medical rationale in which
he explained the reasons behind his conclusion, particularly explaining how any particular duties
performed during a particular period would cause or aggravate appellant’s claimed condition. In
workers’ compensation forms dated March 23 to April 27, 2009, Dr. Brewster diagnosed
piriformis strain and checked a box “yes” that appellant’s condition was employment related.
However, the Board has held that, when a physician’s opinion on causal relationship consists
only of checking “yes” to a form question, without explanation or rationale, that opinion is of
diminished probative value and is insufficient to establish a claim.10 Dr. Brewster did not
otherwise explain the reasons why the March 5, 2009 incident caused or aggravated the
diagnosed condition. These reports are insufficient to establish appellant’s burden of proof.
Appellant submitted an April 2, 2009 report from Dr. Dirksmeier who treated appellant
for right buttock pain following a work-related injury of March 5, 2009 and diagnosed piriformis
strain. Similarly, in May 15 and June 12, 2009 reports, Dr. Dirksmeier noted appellant’s
complaints and diagnosis and referenced a work-related injury of March 5, 2009. He opined that
appellant’s ability to walk his mail route was compromised predominately due to knee and ankle
pain. However, these notes fail to provide a rationalized opinion on how appellant’s
employment could have caused or aggravated his claimed condition.11 Dr. Dirksmeier failed to
explain how bending over to empty mailboxes would cause the piriformis strain and why it
would not be caused by nonemployment factors. In workers’ compensation forms dated April 2
to June 12, 2009, he diagnosed degenerative disease and checked a box “yes” that appellant’s
injury and disability were employment related. As noted, a physician’s opinion on causal
relationship that consists of checking “yes” to a form question is of diminished probative value.
These reports are insufficient to establish the claim.
Appellant also submitted March 11 and 18, 2009 workers’ compensation forms and
progress notes from Dr. Stein, who diagnosed low back and right hip strain which appellant
reported occurred on March 5, 2009 after bending over to collect mail from mailboxes. Dr. Stein
checked a box “yes” that appellant’s condition was employment related but he did not provide
any explanation or rationale in support of his opinion on causal relationship. Consequently these
reports are of diminished probative value and do not establish appellant’s traumatic injury claim.

10

Sedi L. Graham, 57 ECAB 494 (2006); D.D., 57 ECAB 734 (2006).

11

See Jimmie H. Duckett, supra note 8.

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Appellant also submitted reports beginning March 9, 2009 from Dr. Geppert who
diagnosed status post ankle sprain and tibular fracture. Although Dr. Geppert indicated that
appellant’s condition was work related, he did not provide a history of an injury occurring on
March 5, 2009.12 Rather he addressed another injury to appellant’s ankle and left knee which is
not before the Board on the present appeal. Other medical reports provided by appellant do not
specifically address how the March 5, 2009 work incident caused a right hip and buttock injury.
On appeal, appellant’s attorney, asserts that the evidence is undisputed that appellant
sustained an injury on March 5, 2009 at the time, place and in the manner alleged and that the
hearing representative improperly denied his claim. The Board notes that the evidence supports
that on March 5, 2009 appellant was emptying mailboxes on his route and bent over to remove
mail from a mailbox. However, as explained, appellant did not submit a rationalized medical
report which establishes that he sustained a right hip and buttock injury on March 5, 2009
causally related to his employment duties.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a right leg and buttocks injury causally related to his March 5, 2009 employment
incident.13

12

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little
probative value).
13

With his request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence on appeal; see 20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the November 16, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: January 19, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, St. Louis, MO, Employer
__________________________________________

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

Docket No. 17-0528
Issued: June 6, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 10, 2017 appellant, through counsel, filed a timely appeal from a
December 7, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty on February 21, 2014, as alleged.
FACTUAL HISTORY
The case has previously been before the Board.3 The facts and the circumstances
outlined in the Board’s prior decision are incorporated herein by reference. The relevant facts
are set forth below.
On February 21, 2014 appellant, then a 55-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that at 5:55 a.m. on that date she tripped and fell on uneven sidewalk in
front of the employing establishment’s building, injuring her right wrist and knee. The
employing establishment challenged the claim as she was going to work and thus not in the
performance of duty. It provided appellant work hours as 6:00 a.m. until 2:30 p.m.
Appellant, in a statement received May 23, 2014, advised that she tripped and fell on a
sidewalk while walking to the employing establishment. She submitted medical evidence in
support of her claim.
In a decision dated June 4, 2014, OWCP denied appellant’s claim after finding that the
medical evidence was insufficient to establish a diagnosed condition as a result of the accepted
February 21, 2014 employment incident.
On June 27, 2014 appellant requested reconsideration and submitted additional medical
evidence. OWCP, by decision dated September 29, 2014, denied modification of its June 4,
2014 decision. It determined that appellant had not submitted a reasoned medical opinion
attributing a diagnosed condition to the accepted work incident.
Appellant, through counsel, requested reconsideration on December 30, 2014 and
submitted supporting medical evidence.
In a decision dated March 26, 2015, OWCP again denied modification of the June 4,
2014 decision after finding that appellant had not submitted sufficient medical evidence to show
that she sustained an injury on February 21, 2014.
Appellant appealed to the Board. In a decision dated October 2, 2015, the Board set
aside the March 26, 2015 decision. The Board found that OWCP had not developed the issue of
whether appellant was on the premises of the employing establishment at the time of her
February 21, 2014 fall. The Board remanded the case for OWCP to determine whether she was
in the performance of duty at the time of the February 21, 2014 incident.

3

Docket No. 15-1172 (issued October 2, 2015).

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OWCP, in letters dated October 21 and December 14, 2015, requested that the employing
establishment provide information as to whether appellant was on its premises at the time of her
fall and provide a diagram of the boundaries of the premises.
In a February 1, 2016 response, a representative of the employing establishment advised
that appellant was not on its premises, but instead “on property owned by the State of Missouri.”
She advised that the employing establishment did not own, control, or operate the property, that
appellant was injured at 5:55 a.m., that her duty hours began between 6:00 a.m. and 6:30 a.m.,
and that she was “close to walking on [employing establishment] property in order to enter the
[employing establishment] building.”
By decision dated February 2, 2016, OWCP again denied appellant’s claim. It found that
she was not in the performance of duty at the time of her fall as she was not on the premises of
the employing establishment.
On February 8, 2016 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative. Appellant submitted computer search results showing that the
Federal Government owned her work building.
At the telephone hearing, held on October 11, 2016, appellant related that at the time of
her injury she was walking from public transportation to her work building. She advised that she
was “crossing the street and walking on the opposite side of the street to get into the building.”
Appellant related that she was heading to the employing establishment’s main building entrance.
There was another entrance on the side of the building. Appellant asserted that she was five to
seven steps from the front door when she fell on an uneven sidewalk. Counsel noted that the
employing establishment was the only building tenant.
In a decision dated December 7, 2016, an OWCP hearing representative affirmed the
February 2, 2016 decision. She found that appellant was not on the premises of the employing
establishment at the time of her fall and there was no evidence supporting the premises should
constructively extend to the sidewalk.
On appeal counsel asserts that the evidence conflicts regarding ownership of the property.
LEGAL PRECEDENT
FECA provides for the payment of compensation for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.4 The phrase
sustained while in the performance of duty in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of arising out of and in the course of
employment.5

4

5 U.S.C. § 8102(a).

5

See Valerie C. Boward, 50 ECAB 126 (1998).

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In order to be covered under FECA, an injury must occur at a time when the employee
may reasonably be said to be engaged in her master’s business, at a place where she may
reasonably be expected to be in connection with her employment, and while she was reasonably
fulfilling the duties of employment, or engaged in something incidental thereto.6
The Board has recognized a general principle, called the premises doctrine, that offpremises injuries sustained by employees having fixed hours and places of work while going to
or coming from work or during a lunch period, are not compensable, as they do not arise out of
and in the course of employment. Rather, such injuries are merely the ordinary, nonemployment
hazards of the journey itself, which are shared by all travelers, subject to certain exceptions.7
Exceptions to the premises doctrine have been made to protect activities that are so
closely related to the employment itself as to be incidental thereto,8 or which are in the nature of
necessary personal comfort or ministration.9 The Board has also found that the course of
employment should extend to any injury that occurred at a point where the employee was within
the range of dangers associated with the employment.10 This exception has two components.
The first is the presence of a special hazard at the particular off-premises point. The second is
the close association of the access route with the premises, so far as going and coming are
concerned.11 The main consideration in applying this rule is whether the conditions giving rise
to the injury are causally connected to the employment.12
ANALYSIS
Appellant alleged that she injured her right knee and right wrist when she fell on a
sidewalk in front of the employing establishment’s building, while walking from public
transportation to work. OWCP denied her claim, finding that she was not in the performance of
duty at the time of her fall.
The facts considered in determining whether an employee arriving at work is in the
performance of duty are whether the injury occurred on the premises of the employing
establishment, the time interval before the work shift, and the activity at the time of injury.13 The

6

B.P., Docket No. 14-0411 (issued July 17, 2014); David P. Sawchuck, 57 ECAB 316 (2006).

7

V.P., Docket No. 13-74 (issued July 1, 2013); M.L., Docket No. 12-286 (issued June 4, 2012); John M. Byrd, 53
ECAB 684 (2002).
8

See Maryann Battista, 50 ECAB 343 (1999) (activities such as delivering a bad check list and checking on a
customer’s telephone were incidental to employee’s listed duties).
9

See J.L., Docket No. 14-368 (issued August 22, 2014).

10

R.O. Docket No. 08-2088 (issued February 18, 2011).

11

See C.B., Docket No. 15-1881 (issued October 7, 2016).

12

See Shirley Borgos, 31 ECAB 222 (1979).

13

See E.V., Docket No. 16-1356 (issued December 6, 2016); George E. Franks, 52 ECAB 474 (2001).

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Board finds that appellant was not in the performance of duty as she was not on the employing
establishment’s premises at the time of the claimed fall on February 21, 2014.
Appellant related that she tripped on an uneven sidewalk at 5:55 a.m. five to seven steps
from the front of the employing establishment’s building. The employing establishment
provided that her duty shift began between 6:00 a.m. and 6:30 a.m. The employing
establishment indicated that it did not own, operate, or control the sidewalk on which appellant
fell. It advised that the State of Missouri owned the property.
In Idalaine L. Hollins-Williamson,14 the employee fell and injured her left side while
walking from a parking lot to the employing establishment building on a snow-covered public
sidewalk. The Board found that the employee had not shown that the sidewalk on which she fell
was used exclusively or principally by employees of the employing establishment for the
convenience of the employer. The evidence of record supported that the sidewalk where the
incident occurred was not owned, operated or maintained by the employing establishment and
was open to the public. The Board found that the employee’s injury was not in the performance
of duty. In M.L.,15 the employee fell while walking across the street from a train station to work.
The Board found that the employee fell while commuting to work on a public sidewalk and was
not in the performance of duty.
Even if a public sidewalk is the customary means of access to the employing
establishment for its employees, this does not alter the public nature of the sidewalk or render it a
part of the employing establishment’s premises.16 There is no evidence that the sidewalk on
which appellant fell was restricted to the employees of the employing establishment or that it
owned, operated, or maintained the area where the incident occurred. The area was open to the
general public. Appellant, consequently, was not on the premises of the employing
establishment at the time of her fall.
As noted above, off-premises injuries that occur while an employee is going to or coming
from work or during a lunch period, are generally not compensable.17 The Board finds that the
exceptions to the rule are not applicable in this case. Appellant was not engaged on any special
errand when she left her home to commute to her place of employment and was not exposed to a
special hazard that became a hazard of employment. Rather, her travel on that date conformed to
her regular work schedule and her normal morning commute in going to work. While appellant
maintained that the sidewalk on which she fell was uneven, this was not a special hazard of the
route but a hazard shared by all commuters.18 The Board finds that she was not in the
14

55 ECAB 655 (2004).

15

Docket No. 12-0286 (issued June 4, 2012).

16

Supra note 10.

17

See J.K., Docket No. 15-0198 (issued March 10, 2015); J.E., Docket No. 59 ECAB 119 (2007).

18

See M.L., supra note 15; R.O., supra note 10. In M.L., the Board found that a rock on a sidewalk where the
employee fell was a hazard commonly faced by pedestrians and thus not a special hazard at the off-premises point.
In R.O., the Board found that the employee’s off-premises slip and fall on an icy public sidewalk did not arise in the
performance of duty as it was not a special hazard of the route but a hazard shared by all commuters.

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performance of duty on February 21, 2014 as the injury occurred while she was exposed to an
ordinary, off-premises nonemployment hazard of the journey shared by all travelers.19
While appellant’s employment gave rise to her journey between home and the employing
establishment, workers’ compensation was not intended to protect her from all the perils of such
journey.20 The Board finds that the established exceptions mentioned above do not apply to her
case. Appellant was not reasonably fulfilling the duties of her employment or doing something
incidental to the fulfillment of her job duties. She had not yet begun her tour of duty and was
walking on a public sidewalk going to her building. As appellant was not in the course of
employment at the time of the February 21, 2014 incident, she has failed to meet her burden of
proof.
On appeal counsel contends that there is conflicting evidence regarding who owns the
property. The employing establishment, however, provided that the sidewalk was owned by the
State of Missouri and that it did not own, operate, or control the area.
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury in the
performance of duty on February 21, 2014, as alleged.

19

See supra note 7.

20

See Asia Lynn Doster, 50 ECAB 351 (1999).

6

ORDER
IT IS HEREBY ORDERED THAT the December 7, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 6, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.G., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
CORPS OF ENGINGEERS, Shorterville, AL,
Employer
__________________________________________

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

Docket No. 12-431
Issued: July 6, 2011

Case Submitted on the Record

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

JURISDICTION
On December 19, 2011 appellant, through his attorney, filed a timely appeal from a
September 16, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant established that he sustained hearing loss causally related
to factors of his federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 17, 2011 appellant, then a 54-year-old power plant mechanic, filed an
occupational disease claim alleging hearing loss due to noise exposure in the course of his
federal employment. He maintained that he was exposed to noise from “four units rated at 42
mega watts el during peak generation.” Appellant did not stop work.
Appellant submitted the results of audiometric testing by the employing establishment
dated 1987 to 2010. In a letter dated July 20, 2010, a nurse advised him that his most recent
audiogram revealed a threshold shift. An audiogram dated August 26, 2010 revealed moderate
bilateral hearing loss. On September 1, 2010 the employing establishment noted that the retest
audiogram confirmed a standard threshold shift.
In an October 25, 2010 memorandum, the employing establishment related that a noise
dosimetry survey revealed exposures that averaged up to 85.9 decibels (dB) over eight hours
with maximum levels of up to 140.3 dB.
By letter dated July 25, 2011, the employing establishment related:
“The power plant can be a very noisy environment at times if the generators are
running and some areas are marked as being over the 85 db threshold. Employees
are required to enter those areas to perform visual inspection and check equipment
status on occasion, but not usually on long durations. There can be exception to
this at times depending on unexpected maintenance issues.”
OWCP prepared a statement of accepted facts (SOAF) that appellant was exposed to
noise by “[f]our units rated at 42 megawatts during peak generation” for 8 to 10 hours a day from
March 1978 to the present. It noted that he used hearing protection. On August 22, 2011 OWCP
referred appellant to Dr. Phillip G. Allen, a Board-certified otolaryngologist, for a second
opinion examination.
On September 8, 2011 Dr. Allen performed audiometric testing which revealed flat
mild-to-moderate sensorineural hearing loss bilaterally. He diagnosed sensorineural hearing loss
which was “[m]ost likely presbycusis….” Dr. Allen noted that appellant’s sensorineural hearing
loss was somewhat flat with no “noise notch and only mild progression from [the] baseline
audio[gram].” In an accompanying form report, he related that audiograms from 2004 and 2005
showed sensorineural hearing loss with mild progression since that time. Dr. Allen asserted that
audiometric findings did not show hearing loss beyond that expected based on presbycusis,
noting that there was no characteristic noise notch and a mostly flat sensorineural hearing loss.
Regarding whether workplace exposure was of sufficient intensity to cause the loss in question,
he stated, “Possible. But at least as likely not possible.” Dr. Allen concluded that the hearing
loss was not due to noise exposure in the course of appellant’s federal employment as he had
mild-to-moderate flat sensorineural hearing loss with only mild changes the past seven years.
On September 13, 2011 OWCP’s medical adviser reviewed the medical evidence and
advised that hearing aids should not be authorized as Dr. Allen found that the hearing loss was
not employment related.

2

By decision dated September 16, 2011, OWCP denied appellant’s claim after finding that
the medical evidence was insufficient to establish that he sustained hearing loss causally related
to factors of his federal employment.
On appeal, appellant’s attorney argues that Dr. Allen’s report was equivocal and
unsupported by medical rationale. He also argued that the form report provided by OWCP to
Dr. Allen contained leading questions and that he, in reviewing the audiograms of record, did not
distinguish between the different calibrations of the testing equipment.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was filed within 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.3 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.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;5 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;6 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.7
ANALYSIS
Appellant filed a claim alleging that he sustained hearing loss due to noise exposure from
4 units rated at 42 mega watts in the course of his federal employment. He submitted
audiograms from the employing establishment, including an August 26, 2010 audiogram
showing moderate hearing loss bilaterally and a threshold shift. The employing establishment
submitted a noise dosimetry survey conducted on selected employees that revealed exposures
averaging up to 85.9 dB with maximum levels up to 140.3 dB. In a letter dated July 25, 2011, it
indicated that some areas where appellant worked were over the 85 dB threshold.
2

Id.

3

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Ellen L. Noble, 55 ECAB 530 (2004).

5

Michael R. Shaffer, 55 ECAB 386 (2004).

6

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

7

Beverly A. Spencer, 55 ECAB 501 (2004).

3

OWCP referred appellant to Dr. Allen for a second opinion examination. It prepared a
SOAF indicating that he was exposed to noise in the course of his federal employment 8 to 10
hours a day from 4 units rated at 42 mega watts. OWCP did not include the noise level
information provided by the employing establishment. OWCP’s procedure manual provides that
when possible work factors including the dB levels of noise exposure should be quantified “so
the physician can correlate the exposure with medical or scientific data on causality.”8 As
Dr. Allen relied upon a SOAF that did not adequately set forth appellant’s noise exposure, his
opinion is of diminished probative value. A medical opinion based on an inaccurate or
incomplete SOAF is of diminished probative value.9
Additionally, Dr. Allen did not provide a fully rationalized medical opinion explaining
his conclusion that appellant’s hearing loss was most likely due to presbycusis rather than noise
exposure. He found that the audiometric results did not show a noise notch but instead revealed
mostly flat sensorineural hearing loss. In response to the question of whether appellant’s
workplace exposure was sufficient to cause the hearing loss, Dr. Allen responded that it was
possible, but just as likely not possible. While it appears that he attributed appellant’s hearing
loss solely to presbycusis, his opinion was equivocal and is of diminished probative value.10
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden to establish entitlement to compensation, OWCP shares the
responsibility in the development of the evidence.11 Once OWCP undertook development of the
evidence by referring appellant to a second opinion physician, it had the duty to secure an
appropriate report addressing the relevant issues.12 As Dr. Allen did not base his report on an
accurate factual history and failed to provide a rationalized medical opinion to support his
findings, the case will be remanded to OWCP for further development of the medical evidence.
On remand, OWCP should prepare an SOAF that includes appellant’s exposure to noise
at the employing establishment and the length and period of such exposures. It should then
obtain a rationalized opinion regarding whether his hearing loss was causally related to factors of
his federal employment.13
CONCLUSION
The Board finds that the case is not in posture for decision.
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.4(a)(4)
(September 2009).
9

Id.; see also Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3 (October 1990).

10

See D.D., 57 ECAB 734 (2006); Michael R. Shaffer, 55 ECAB 386 (2004).

11

See Vanessa Young, 55 ECAB 575 (2004).

12

See Peter C. Belkind, 56 ECAB 580 (2005); Ayanle A. Hashi, 56 ECAB 234 (2004).

13

Regarding counsel’s argument that the form provided to Dr. Allen for completion contained leading questions,
the Board finds that the questions posed were not leading as they did not suggest an answer to the questions posed.
See C.F., Docket No. 10-1461 (issued March 18, 2011).

4

ORDER
IT IS HEREBY ORDERED THAT the September 16, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: July 6, 2011
Washington, DC

Richard J. Daschbach, Chief 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
__________________________________________
G.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boston, MA, Employer
__________________________________________

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Appearances:
Daniel B. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0525
Issued: August 2, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 27, 2016 appellant, through counsel, filed a timely appeal from a
December 8, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

Appellant, through counsel, filed a timely request for oral argument, pursuant to 20 C.F.R. § 501.5(b). After
exercising its discretion, the Board, by an August 10, 2016 order, denied appellant’s request for an oral argument,
noting that counsel’s arguments on appeal could be adequately addressed in a Board decision based on a review of
the case record as submitted. Order Denying Request for Oral Argument, Docket No. 16-0525 (issued
August 10, 2016).

ISSUE
The issue is whether appellant met his burden of proof to establish more than 23 percent
permanent impairment of his left lower extremity and more than 8 percent permanent
impairment of his right lower extremity, for which he previously received schedule awards.
FACTUAL HISTORY
On April 23, 2013 appellant, then a 64-year-old retired letter carrier, filed an occupational
disease claim (Form CA-2) for bilateral hip and knee conditions, which allegedly arose in the
performance of duty on or about January 31, 2010.4 In August 2013, OWCP accepted his claim
for aggravation of preexisting bilateral hip and knee osteoarthritis.5
On September 13, 2013 appellant filed a claim for a schedule award (Form CA-7).
In a January 31, 2013 report, Dr. David C. Morley, Jr., a Board-certified orthopedic
surgeon, discussed appellant’s factual and medical history and reported the findings of his
physical examination on that date. He noted that the findings of June 1, 2012 left knee x-ray
testing revealed no evidence of significant arthritic changes with four millimeters of medial
compartment joint space.6 The findings of June 1, 2012 right knee x-ray testing showed early
marginal osteophytes in the medial femoral condyle, but no evidence of osteophyte formation in
the lateral and patellofemoral joint spaces. Dr. Morley posited that appellant’s bilateral knee and
hip conditions had been aggravated by his work as a letter carrier.
In another January 31, 2013 report, Dr. Morley discussed his calculation of the permanent
impairment of appellant’s lower extremities under the standards of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed.
2009) (A.M.A., Guides). He determined that appellant had 37 percent permanent impairment of
his left lower extremity due to his left hip condition, 7 percent permanent impairment of his left
lower extremity due to his left knee condition, 18 percent permanent impairment of his right
lower extremity due to his right hip condition, and 20 percent permanent impairment of his right
lower extremity due to his right knee condition. Under Table 16-4 (Hip Regional Grid)
beginning on page 512, Dr. Morley applied the diagnosis-based impairment (DBI) method of
rating appellant’s lower extremity permanent impairment due to his hip conditions and found a
class 3 condition of his left hip (due to total hip replacement) and a class 2 condition of his right
hip (due to arthritis). Under Table 16-3 (Knee Regional Grid) beginning on page 509, he used
the DBI rating method for appellant’s lower extremity permanent impairment to find a class 1
condition of his left knee (due to primary knee joint arthritis) and a class 2 condition of his right
knee (due to primary knee joint arthritis).
4

Appellant retired effective December 31, 2010.

5

Appellant also has a previously accepted traumatic injury claim for right medial meniscus tear, which occurred
on May 28, 2003 (OWCP File No. xxxxxx835). On November 25, 2003 he had undergone a right knee partial
lateral meniscectomy and medial femoral condyle chondroplasty. On January 26, 2006 appellant had undergone a
left total hip arthroplasty.
6

The record includes a report of the June 1, 2012 left knee x-ray testing which contains an impression of apparent
mild degenerative changes with no acute abnormality identified.

2

In a September 3, 2013 report, Dr. Morley determined that appellant had 37 percent
permanent impairment of his left lower extremity due to his left hip condition, 10 percent
permanent impairment of his left lower extremity due to his left knee condition, 20 percent
permanent impairment of his right lower extremity due to his right hip condition, and 18 percent
permanent impairment of his right lower extremity due to his right knee condition. He again
applied the DBI impairment rating method under Table 16-3 and Table 16-4 to evaluate
appellant’s left and right hip conditions and his right knee condition. Dr. Morley used the range
of motion (ROM) impairment rating method under Table 16-23 on page 549 to evaluate his left
knee condition. He used the Combined Values Chart beginning on page 604 to combine the
various impairment ratings and to find a total permanent impairment of 43 percent for the left
lower extremity and a total permanent impairment of 34 percent for the right lower extremity.
In April 2014 OWCP referred appellant for a second opinion examination with
Dr. Frank A. Graf, a Board-certified orthopedic surgeon. It requested that Dr. Graf provide
opinions regarding appellant’s current diagnoses, causal relationship of his medical conditions to
work factors, disability from work, and work-related permanent impairment of his lower
extremities.
In a May 6, 2014 report, Dr. Graf reported physical examination findings of that date and
indicated that appellant’s current symptoms were in his right hip and both knees. He noted that
appellant was able to slowly squat to 93 degrees of knee flexion in both knees, that there was
tenderness to palpation along the medial compartment joint lines of both knees, and that there
was no instability in either knee. Dr. Graf indicated that appellant had disability due to the
residuals of the accepted work injuries, but he did not specify the level of disability. He noted
that appellant had reached maximum medical improvement (MMI) in his left hip and both knees,
but that appellant was considering total right hip replacement due to increasing pain and should
not be considered at MMI for the right hip. Dr. Graf attached a worksheet in which he provided
permanent impairment calculations under the standards of the sixth edition of the A.M.A.,
Guides. He determined that, under Table 16-4, appellant had 31 percent permanent impairment
of his left lower extremity due to a class 3 left hip condition (total hip replacement) and that,
under Table 16-3, he had 10 percent permanent impairment of his left lower extremity due to a
class 1 left knee condition (arthritis). Dr. Graf also found that, under Table 16-4, appellant had
20 percent permanent impairment of his right lower extremity due to a class 2 right hip condition
(arthritis) and that, under Table 16-3, he had 20 percent permanent impairment of his right lower
extremity due to a class 2 right knee condition (arthritis).
OWCP requested that Dr. Graf produce a supplemental report regarding his rating of the
permanent impairment of appellant’s lower extremities, to include clarification regarding
whether appellant’s right hip condition had reached MMI. In a supplemental June 3, 2014 report
and worksheet, Dr. Graf determined that appellant had 38 percent permanent impairment of his
left lower extremity and 20 percent permanent impairment of his right lower extremity under the
standards of the sixth edition of the A.M.A., Guides. He found that, under Table 16-4, appellant
had 31 percent permanent impairment of his left lower extremity due to a class 3 left hip
condition (total hip replacement) and that, under Table 16-3, he had 10 percent permanent
impairment of his left lower extremity due to a class 1 left hip condition (arthritis). Dr. Graf
indicated that the 20 percent permanent impairment of appellant’s right lower extremity was due
to a class 2 condition of his right knee (arthritis) as calculated under Table 16-3. He did not

3

provide a permanent impairment rating for appellant’s right hip and noted that appellant should
not be considered at MMI for the right hip.
In a June 20, 2014 letter, OWCP requested that Dr. Morley Slutsky, a Board-certified
occupational medicine physician, evaluate appellant’s permanent impairment in his capacity as
an OWCP medical adviser. It advised Dr. Slutsky that he should only consider the permanent
impairment rating provided by Dr. Morley and that he should provide permanent impairment
ratings for appellant’s lower extremities under the standards of the sixth edition of the A.M.A.,
Guides.7 OWCP asked Dr. Slutsky to discuss any disagreement with Dr. Morley’s impairment
rating and requested that he determine the date of MMI based on the medical evidence of record.
In a June 20, 2014 report, Dr. Slutsky found that appellant had 32 percent permanent
impairment of his left lower extremity and 11 percent permanent impairment of his right lower
extremity under the standards of the sixth edition of the A.M.A., Guides. He noted that, under
Table 16-4, appellant had 31 percent permanent impairment of his left lower extremity due to a
class 3 left hip condition (total hip replacement) and that, under Table 16-3, he had 2 percent
permanent impairment of his left lower extremity due to a class 1 left knee condition (soft tissue
lesion with consistent motion deficits). Dr. Slutsky also found that, under Table 16-4, appellant
had nine percent permanent impairment of his right lower extremity due to a class 1 right hip
condition (arthritis) and that, under Table 16-3, he had two percent permanent impairment of his
right lower extremity due to a class 1 right knee condition (partial lateral meniscectomy).8 He
used the Combined Values Chart to combine the various impairment ratings and to find total
permanent impairment of 32 percent for the left lower extremity and total permanent impairment
of 11 percent for the right lower extremity. Dr. Slutsky found that appellant had reached MMI
for both knees and hips by January 31, 2013 because these conditions had stabilized by that date.
In a January 20, 2015 letter, OWCP provided Dr. Morley 30 days to provide additional
comments regarding appellant’s permanent impairment. In a February 9, 2015 report,
Dr. Morley indicated that he had reviewed Dr. Slutsky’s June 20, 2014 report and discussed how
his impairment rating differed from that of Dr. Slutsky. He noted that he believed that, with
respect to appellant’s left hip, the grade modifier for physical examination was “not applicable,”
whereas Dr. Slutsky had assigned the value of “zero” for this modifier. Dr. Morley indicated
that, therefore, the “proper left impairment is 37 [percent].” With respect to appellant’s left
knee, he expressed his disagreement with Dr. Slutsky’s use of the DBI rating method and
indicated that appellant’s impairment was best calculated under the ROM impairment rating
method. Under Table 16-23 on page 549 of the sixth edition of the A.M.A., Guides, appellant
had 10 percent permanent impairment of his left lower extremity due to mild limitation of left
knee motion. Dr. Morley indicated that, with respect to appellant’s right lower extremity, he
disagreed with Dr. Slutsky’s class designations for the right hip and knee conditions, and he
7

OWCP indicated that it referred appellant for a second opinion medical examination with Dr. Graf and
requested an opinion on permanent impairment, but noted that this was done in error as the case file was not in
posture for a second opinion regarding permanent impairment at the time of the examination. It did not provide any
further explanation of why it felt that the referral to Dr. Graf was in error.
8

Dr. Slutsky calculated various grade modifiers for appellant’s bilateral hip and knee conditions. For the left hip,
he determined that appellant had a functional history grade modifier of 3 and a physical examination grade modifier
of 0. Dr. Slutsky found that the grade modifier for clinical studies was not applicable because clinical studies were
used to place appellant in the correct diagnostic class. See A.M.A., Guides 215-21.

4

reported that his assessment of the permanent impairment of the right lower extremity due to
these conditions remained the same as noted in his earlier report.
OWCP determined that there was a conflict in the medical opinion evidence between
Dr. Morley, the attending physician, and Dr. Slutsky, OWCP’s medical adviser, and referred
appellant to Dr. Robert R. Pennell, a Board-certified orthopedic surgeon, for an impartial
medical examination and opinion on permanent impairment.
In a May 28, 2015 report, Dr. Pennell discussed appellant’s factual and medical history
and reported findings of his examination on May 28, 2015. He noted that, upon examination,
appellant complained of very minor tenderness on palpation of his right hip but that he had no
tenderness on palpation of his left hip. Appellant reported mild tenderness on palpation of his
right knee lateral joint line, but no tenderness on palpation of his left knee. Dr. Pennell provided
findings of ROM testing for both hips, knees, and ankles. He opined that appellant had 22
percent permanent impairment of his left lower extremity and 15 percent permanent impairment
of his right lower extremity under the sixth edition of the A.M.A., Guides.9 Dr. Pennell indicated
that, under Table 16-4 beginning on page 512, appellant had class 2 impairment as a result of a
left total hip joint replacement with a good result which resulted in 21 percent permanent
impairment of his left lower extremity.10 He noted that, under Table 16-3 beginning on page
509, appellant had one percent permanent impairment of his left lower extremity as the result of
his left knee condition (other soft tissue lesion with significant palpatory and/or radiographic
findings).11 Dr. Pennell used the Combined Values Chart to combine these impairment ratings to
conclude that appellant’s total permanent impairment of the left lower extremity was 22 percent.
He noted that, under Table 16-4, appellant had class 1 impairment as a result of his right hip
arthritis which resulted in six percent permanent impairment of his right lower extremity.12
Dr. Pennell indicated that, under Table 16-23 on page 549, appellant had 10 percent permanent
impairment of his right lower extremity as a result of the loss of motion of the right knee joint.
He used the Combined Values Chart to combine these impairment ratings and conclude that
appellant’s total permanent impairment of the right lower extremity was 15 percent.
OWCP referred the case to Dr. David I. Krohn, a Board-certified internist serving as an
OWCP medical adviser, for an opinion on appellant’s permanent impairment under the sixth
edition of the A.M.A., Guides. In a report dated November 23, 2015, Dr. Krohn concluded that
appellant had 23 percent permanent impairment of his left lower extremity and 8 percent
permanent impairment of his right lower extremity under the sixth edition of the A.M.A.,
9

Dr. Pennell indicated that appellant was at MMI for his right hip and left knee on December 31, 2010 (his
retirement date), for his right knee on November 25, 2004 (one year following the November 25, 2003 right knee
operation), and for his left hip on January 26, 2007 (one year following the January 26, 2006 total left hip
replacement).
10

Dr. Pennell determined that, for his left hip, appellant had a functional history grade modifier of 0 and a
physical examination grade modifier of 1. He found that the clinical studies grade modifier was not applicable.
Dr. Pennell used the grade modifiers to calculate the net adjustment formula. See A.M.A., Guides 515-22.
11

Dr. Pennell reported that, for his left knee, appellant had a functional history grade modifier of 1, a physical
examination grade modifier of 1, and a clinical studies grade modifier of 1.
12

Dr. Pennell determined that, for his right hip, appellant had a functional history grade modifier of 1 and a
physical examination grade modifier of 0. He found that the clinical studies grade modifier was not applicable.

5

Guides. He derived his impairment ratings based on the examination findings of Dr. Pennell.
With regard to the left lower extremity, Dr. Krohn found that appellant had 21 percent permanent
impairment of the left lower extremity due to left hip arthritis (derived under Table 16-4). With
respect to the left hip, he calculated the grade modifiers and applied the net adjustment formula
in the same manner as Dr. Pennell to find 21 percent permanent impairment of the left lower
extremity. With respect to appellant’s left knee, Dr. Krohn determined that the correct diagnosis
was other soft tissue lesion, versus Dr. Pennell’s diagnosis of arthritis, because there was no
evidence of left knee arthritis qualifying for a DBI impairment rating under Table 16-3 in the
case file. He derived a two percent left lower extremity rating due to appellant’s soft tissue
lesion (under Table 16-3). Dr. Krohn used the Combined Values Chart to combine these values
and to find that appellant had a total impairment rating of 23 percent for his left lower extremity.
He found that appellant had six percent impairment of the right lower extremity due to right hip
arthritis (derived under Table 16-4 (Hip Regional Grid) beginning on page 512). With respect to
the right hip, Dr. Krohn calculated the grade modifiers and applied the net adjustment formula in
the same manner as Dr. Pennell to find six percent permanent impairment of the right lower
extremity. He opined that the most appropriate diagnosis for appellant’s right knee was a class 1
lateral meniscal injury with a rating of two percent rating for the right lower extremity (derived
under Table 16-3 (Knee Regional Grid) beginning on page 509). Dr. Krohn used the Combined
Values Chart to combine these ratings and to find that appellant had a permanent impairment
rating of eight percent for his right lower extremity.
In a December 8, 2015 decision, OWCP granted appellant schedule awards for 23 percent
permanent impairment of his left lower extremity and 8 percent permanent impairment of his
right lower extremity. The awards ran for a total of 89.28 weeks and was based on Dr. Krohn’s
impairment rating which evaluated the examination findings obtained by Dr. Pennell.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.13 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the American Medical Association, Guides to the
Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule
losses.14 Effective May 1, 2009, schedule awards are determined in accordance with the sixth
edition of the A.M.A., Guides (2009).15
FECA provides that, if there is disagreement between an OWCP-designated physician
and the employee’s physician, OWCP shall appoint a third physician who shall make an
13

5 U.S.C. § 8107(c). For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks’
compensation. 5 U.S.C. § 8107(c)(2).
14

20 C.F.R. § 10.404.

15

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).

6

examination.16 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually
equal weight and rationale.”17 Where OWCP has referred the case to an impartial medical
examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well-reasoned and based upon a proper factual background, must be given special
weight.18
The Board has long held that an OWCP medical adviser may create a conflict in medical
opinion with an examining physician.19 OWCP’s procedures provide that cases returned from a
referee medical examiner should not routinely be sent to an OWCP DMA for review unless a
schedule award is at issue.20 Where a referee examination was arranged to resolve a conflict
created by a DMA with respect to a schedule award issue, the same DMA should not review the
referee specialist’s report.21 Instead, another DMA or OWCP medical consultant should review
the file.22
When a case has been referred for a referee evaluation to resolve the issue of permanent
impairment, it is appropriate for the DMA to review the calculations to ensure the referee
physician appropriately used the A.M.A., Guides.23
ANALYSIS
OWCP accepted appellant’s claim for aggravation of preexisting osteoarthritis of both
hips and aggravation of preexisting osteoarthritis of both knees.24 On September 13, 2013
appellant filed a Form CA-7 claiming a schedule award due to his accepted work injuries. By
decision dated December 8, 2015, OWCP granted appellant schedule awards for 23 percent
permanent impairment of his left lower extremity and 8 percent permanent impairment of his
right lower extremity. The awards were based on the impairment rating of Dr. Krohn, an OWCP
medical adviser, who had evaluated the findings of Dr. Pennell, the impartial medical specialist.

16

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994). The district medical
adviser (DMA), acting on behalf of OWCP, may create a conflict in medical opinion. 20 C.F.R. § 10.321(b).
17

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

18

Gary R. Sieber, 46 ECAB 215, 225 (1994).

19

See Harold Travis, 30 ECAB 1071 (1979); see 20 C.F.R. § 10.321(b).

20

Supra note 15 at Chapter 2.810.11f (September 2010).

21

Id.

22

Id.

23

Id. at Chapter 2.810.8k (September 2010). Although the DMA may review the opinion of a referee specialist in
a schedule award case, the resolution of the conflict is the specialist’s responsibility. Id. The DMA cannot resolve a
conflict in medical opinion. Id.
24

On November 25, 2003 appellant had undergone a right knee partial lateral meniscectomy and medial femoral
condyle chondroplasty. On January 26, 2006 he had undergone a left total hip arthroplasty.

7

The Board finds that appellant did not meet his burden of proof to establish more than 23
percent permanent impairment of his left lower extremity and more than 8 percent permanent
impairment of his right lower extremity, for which he received schedule awards.
The Board notes that OWCP properly found that there was a conflict in the medical
opinion evidence regarding the extent of appellant’s permanent impairment between Dr. Morley,
an attending physician, and Dr. Slutsky, OWCP’s DMA, and referred appellant to Dr. Pennell for
an impartial medical examination and opinion on permanent impairment.25
On appeal, counsel argues that OWCP improperly found a conflict in the medical opinion
evidence between Dr. Morley and Dr. Slutsky because Dr. Morley examined appellant, but
Dr. Slutsky did not examine him. OWCP regulations, Board precedent, and OWCP’s procedures
each recognize that an OWCP medical adviser, without having conducted a physical
examination, can create a conflict in medical opinion evidence.26
In a May 28, 2015 report, Dr. Pennell opined that appellant had 22 percent permanent
impairment of his left lower extremity and 15 percent permanent impairment of his right lower
extremity under the sixth edition of the A.M.A., Guides. He indicated that, under Table 16-4
beginning on page 512, appellant had a class 2 impairment as a result of a left total hip joint
replacement with a good result which represented 21 percent impairment of his left lower
extremity. Dr. Pennell noted that, under Table 16-3 beginning on page 509, appellant had one
percent permanent impairment of his left lower extremity as the result of his left knee condition
(other soft tissue lesion with significant palpatory and/or radiographic findings). He used the
Combined Values Chart to combine these impairment ratings and conclude that appellant’s total
permanent impairment of his left lower extremity was 22 percent. Dr. Pennell noted that, under
Table 16-4, appellant had a class 1 impairment as a result of his right hip arthritis which resulted
in six percent permanent impairment of his right lower extremity.27 He indicated that, under
Table 16-23 on page 549, appellant had 10 percent permanent impairment of his right lower
extremity as a result of the loss of motion of the right knee joint. Dr. Pennell used the Combined
Values Chart to combine these impairment ratings and conclude that appellant’s total permanent
impairment of his right lower extremity was 15 percent.
In a report dated November 23, 2015, Dr. Krohn, OWCP’s medical adviser, derived an
impairment rating under the sixth edition of the A.M.A., Guides, based on the examination
findings of Dr. Pennell. It was proper for OWCP to refer the case to Dr. Krohn in his capacity as
an OWCP medical adviser because OWCP procedures provide for such referrals in schedule
award cases.28 The Board finds that Dr. Krohn properly provided an opinion that appellant has
25

In his most recent September 3, 2013 impairment rating, Dr. Morley found a combined 43 percent left lower
extremity permanent impairment and 34 percent right lower extremity permanent impairment. Dr. Slutsky, the
initial DMA, reviewed the record, including Dr. Morley’s findings, and in a report dated June 20, 2014 found 32
percent left lower extremity permanent impairment and 11 percent permanent impairment of the right lower
extremity. OWCP afforded Dr. Morley an opportunity to review Dr. Slutsky’s impairment rating, and in a report
dated February 9, 2015, appellant’s physician disagreed with the DMA’s impairment rating.
26

See supra notes 16, 19, and 20.

27

Dr. Pennell determined that, for his right hip, appellant had a functional history grade modifier of 1 and a
physical examination grade modifier of 0. He found that the clinical studies grade modifier was not applicable.
28

See supra notes 20 and 23.

8

23 percent permanent impairment of his left lower extremity and 8 percent permanent
impairment of his right lower extremity. His report constitutes the weight of the medical
evidence with respect to appellant’s permanent impairment because he corrected errors in
Dr. Pennell’s application of the standards of the A.M.A., Guides.29
Dr. Krohn properly concluded that appellant had 23 percent permanent impairment of his
left lower extremity and 8 percent permanent impairment of his right lower extremity under the
sixth edition of the A.M.A., Guides. In his rating report, he found that Dr. Pennell had not
properly applied the standards of the sixth edition of the A.M.A., Guides. For example,
Dr. Krohn properly opined that the most appropriate method to rate appellant’s right knee
condition was to apply the DBI rating method under Table 16-3 for his right partial lateral
meniscectomy. He correctly calculated that appellant had a two percent permanent impairment
of his right lower extremity due to this condition. The Board notes that Dr. Pennell applied the
ROM method under Table 16-3 to rate appellant’s right lower extremity impairment due to his
right knee condition, but that Table 16-3 does not provide for use of this method to rate
appellant’s right knee condition and Dr. Pennell did not otherwise adequately explain why it was
appropriate to use the ROM method.30 With respect to appellant’s left knee, Dr. Krohn
determined that the correct diagnosis was other soft tissue lesion, rather than arthritis, because
there was no evidence in the case file of left knee arthritis which qualified appellant for an
impairment rating under Table 16-3.31 He then properly derived a two percent left lower
extremity rating due to appellant’s soft tissue lesion under Table 16-3.32 The Board notes that
Dr. Krohn properly derived the same permanent impairment ratings for appellant’s left and right
hips as Dr. Pennell. He then properly used the Combined Values Chart beginning on page 604 to
combine the relevant impairment ratings and concluded that appellant had 23 percent permanent
impairment of his left lower extremity and 8 percent permanent impairment of his right lower
extremity. The Board has carefully reviewed Dr. Krohn’s rating report and finds that he has
adequately explained how it comports with the standards of the sixth edition of the A.M.A.,
Guides.
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 employmentrelated condition resulting in permanent impairment or increased impairment.

29

See supra note 23.

30

See A.M.A., Guides 509-11. The A.M.A., Guides provides that the DBI method is the primary method of
evaluating lower extremity permanent impairment. The ROM method is used to determine actual impairment values
of the lower extremities only when it is not possible to otherwise define impairment. Id. at 497. See also E.M.,
Docket No. 14-0311 (issued July 8, 2014).
31

The Board notes that the record contains the findings of June 1, 2012 left knee x-ray testing which reveal no
evidence of significant arthritis changes with four millimeters of medial compartment joint space. A claimant must
have three millimeters of cartilage interval or full-thickness articular cartilage defect to qualify for a DBI rating
under Table 16-3 and there is no evidence that appellant has either of these conditions. See A.M.A., Guides 511.
32

The Board notes that Dr. Krohn’s left lower extremity impairment rating due to appellant’s left knee condition
was actually higher than the one percent impairment rating provided by Dr. Pennell.

9

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish more than 23
percent permanent impairment of his left lower extremity and more than 8 percent permanent
impairment of his right lower extremity, for which he previously received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the December 8, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 2, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF THE ARMY, MEDICAL
COMMAND CPAC, Fort Carson, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0888
Issued: August 4, 2016

Case Submitted on the Record

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

JURISDICTION
On March 29, 2016 appellant filed a timely appeal from a March 21, 2016 merit decision
of the Office of Workers’ Compensation Programs. 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
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty on February 3, 2016.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its March 21, 2016 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1); Dennis E. Maddy,
47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence to
OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).

FACTUAL HISTORY
On February 3, 2016 appellant, then a 36-year-old sterile processing technician, filed a
traumatic injury claim (Form CA-1) alleging that on that day she slipped on a patch of ice on a
sidewalk outside of the employing establishment resulting in a broken ankle. The injury
occurred at approximately 6:30 a.m. On the reverse side of the form, appellant’s regular work
hours were recorded as Monday through Friday, 7:00 a.m. to 3:00 p.m. She notified her
supervisor, first received medical care, and stopped work on the date of injury. Appellant’s
supervisor checked the box marked “yes” when asked if his knowledge of the facts about the
injury agreed with statements of the employee and/or witness.
By letter dated February 18, 2016, OWCP notified appellant that her claim was initially
administratively handled to allow medical payments, as her claim appeared to involve a minor
injury resulting in minimal or no lost time from work. However, the merits of her claim had not
been formally considered and her claim had been reopened because she had not returned to work
in a full-time capacity and a nurse had been assigned to her case. Appellant was advised that the
evidence of record was insufficient to establish her traumatic injury claim.
OWCP requested that appellant submit a response to a form questionnaire in order to
substantiate the factual basis of her claim and a medical report from her attending physician
including a diagnosis, history of the injury, and a physician’s opinion on causal relationship
supported by medical rationale. The questionnaire requested that she describe the nature of her
injury, how the injury occurred, witness statements, the immediate effects of her injury, any
other injuries sustained as a result of the incident, any prior similar injuries, the time of injury,
whether she was on the employing establishment’s premises when the injury occurred, whether
she was performing her regularly assigned duties, and the activities she was engaged in at the
time of injury. Appellant was afforded 30 days to provide the requested information.
The only evidence received in response to OWCP’s development letter was a
February 10, 2016 Penrose Hospital diagnostic report from Dr. Farrel Keith VanWagenen, a
Board-certified diagnostic radiologist. Dr. VanWagenen reported that an x-ray of the right ankle
revealed intraoperative views of the ankle, demonstrated screw and plate fixation of a
trimalleolar ankle fracture with near anatomic alignment achieved.
By decision dated March 21, 2016, OWCP denied appellant’s claim, finding that the
evidence of record failed to establish that the February 3, 2016 employment incident occurred as
alleged, in the performance of duty. It explained that she failed to establish fact of injury
because she did not respond to the questionnaire that was sent with the February 18, 2016
development letter. OWCP further noted that the evidence of record failed to establish a firm
medical diagnosis which could be reasonably attributed to the alleged February 3, 2016
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
2

limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
The Board has interpreted the phrase while in the performance of duty to be the
equivalent of the commonly found requisite in workers’ compensation law of arising out of and
in the course of employment. In the course of employment deals with the work setting, the
locale and time of injury whereas, arising out of the employment, encompasses not only the work
setting but also a causal concept, the requirement being that an employment factor caused the
injury. In addressing this issue, the Board has stated that in the compensation field, to occur in
the course of employment, in general, an injury must occur: (1) at a time when the employee
may reasonably be said to be engaged in his or her master’s business; (2) at a place where he or
she may reasonably be expected to be in connection with the employment; and (3) while he or
she was reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.5
The Board has included within the performance of duty a reasonable time before and
after work to allow for coming and going, as well as personal ministrations, such as lunch or
bathroom breaks, engaged in for the benefit of the employer. If the injury does not take place
during those periods or on employing establishment premises, the Board will place special
emphasis on whether the employee was engaged in an activity related to fulfilling the duties of
her employment.6
ANALYSIS
The Board finds that appellant failed to establish that she sustained a traumatic injury in
the performance of duty on February 3, 2016.7
Appellant alleged that on February 3, 2016 she slipped on a patch of ice on a sidewalk
outside of the employing establishment at 6:30 a.m. and sustained a broken ankle. Her
Form CA-1 lacks sufficient information to establish that the alleged incident occurred in the
performance of duty.8
With regard to employees with fixed hours and a fixed place of work, the Board has
accepted the general rule of workers’ compensation law that injuries occurring on the premises

3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Kathryn S. Graham Wilburn, 49 ECAB 458 (1998).

6

See Venicee Howell, 48 ECAB 414 (1997); Narbik A. Karamian, 40 ECAB 617 (1989).

7

T.V., Docket No. 15-1336 (issued October 8, 2015).

8

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

3

of the employing establishment, while the employees are going to and from work before or after
working hours or at lunchtime, are compensable.9
By letter dated February 18, 2015, OWCP requested that appellant describe the factual
circumstances of her injury and provided her with a questionnaire for completion. Appellant did
not respond. The only explanation provided pertaining to the February 3, 2016 incident was the
generalized and vague statement noted in her Form CA-1. Appellant’s Form CA-1 lacks further
insight to establish fact of injury and performance of duty.10 By failing to describe the
employment incident and circumstances surrounding her alleged injury, appellant has not
established that the injury occurred in a time and place, where she was expected to be to fulfill
her employment.
Appellant has therefore failed to provide an adequate description of the February 3, 2016
employment incident which she believed caused or aggravated her condition to establish that an
injury occurred in the performance of duty.11 Thus, she did not meet her burden of proof.12
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty on February 3, 2016.

9

See R.H., Docket No. 15-1339 (issued June 13, 2014).

10

Supra note 7.

11

The only medical report received was Dr. VanWagenen’s February 10, 2016 diagnostic report pertaining to the
right ankle. Given that appellant did not establish an employment incident, further consideration of the medical
evidence is unnecessary. See Bonnie A. Contreas, 57 ECAB 364, 368 n.10 (2006).
12

The Board notes that not only must appellant establish that an injury occurred in the performance of duty as
alleged, but she must also establish that her disability and/or specific condition for which compensation is claimed
are causally related to her injury by submitting rationalized medical opinion evidence. Marie St. Clair, Docket No.
03-1688 (issued September 10, 2003). Any medical opinion evidence appellant may submit to support her claim
should reflect a correct history and offer a medically sound explanation by her physician of how the specific
employment incident, in particular physiologically, caused or aggravated her ankle injury. T.G., Docket No. 14-751
(issued October 20, 2014).

4

ORDER
IT IS HEREBY ORDERED THAT the March 21, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 4, 2016
Washington, DC

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

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

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

5