United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.F., Appellant
and
DEPARTMENT OF THE AIR FORCE,
ROBINS AIR FORCE BASE, GA, Employer
__________________________________________

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

Docket No. 16-0107
Issued: December 13, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On October 19, 2015 appellant filed a timely appeal from two September 16, 2015 merit
decisions 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.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish more than
two percent permanent impairment of the right lower extremity and two percent permanent
impairment of the left lower extremity, for which he had received a schedule award; and
(2) whether OWCP properly exercised its discretion in denying appellant’s requests for travel
reimbursement.
FACTUAL HISTORY
OWCP accepted that on August 2, 2012 appellant, then a 30-year-old aircraft mechanic,
who resided in Chester, GA, sustained a lumbosacral sprain when moving an aircraft stand. It
later expanded the claim to include L3-4 and L4-5 disc disorders with myelopathy. On
1

5 U.S.C. § 8101 et seq.

February 26, 2013 appellant underwent an L3-4 discectomy and L4-5 decompression, approved
by OWCP. He returned to full duty on April 26, 2013 with no loss of wages. Appellant
remained under medical care for degenerative lumbar disc disease.2
A March 3, 2014 electromyogram (EMG) of both lower extremities was normal, without
evidence of radiculopathy. In a May 17, 2014 report, Dr. George S. Stefanis, an attending
Board-certified neurosurgeon, noted positive straight raising tests bilaterally, with no weakness,
and a normal sensory examination of the lower extremities. He diagnosed multilevel lumbar
degenerative disc disease.
In an August 19, 2014 telephone memorandum, OWCP noted that appellant had called to
request approval to attend a medical appointment in Oklahoma on September 15, 2014. It
advised him to “file for reimbursement via travel claim after he has attended the appointment.”
Dr. John W. Ellis, a Board-certified family practitioner located in Oklahoma City,
Oklahoma, provided a September 15, 2014 impairment rating. He reviewed medical records and
related appellant’s symptoms of genitourinary dysfunction. On examination, Dr. Ellis observed
limited lumbar motion, weakness in plantar flexion of both feet, weakness in flexion and
extension of the left knee, decreased sensation to light touch, pinprick, two-point discrimination,
and monofilament testing in the right L5 and S1 dermatomes and the left L4, L5, and S1
dermatomes. He observed that in the right L4 nerve, appellant could “barely feel a 4.56
monofilament” and could not discriminate a 20-millimeter (mm) interval on two-point
discrimination. “Along the left L4, bilateral L5 and right S1 spinal nerves, [appellant could]
barely feel a 6.65 monofilament and [could not] discriminate 25 mm two-point discrimination.”
Also, appellant could not feel a 6.56 monofilament or perform two-point discrimination at 25
mm in the left S1 spinal nerve.
Dr. Ellis diagnosed a lumbosacral sprain, lumbar disc disease with myelopathy,
neurogenic sexual dysfunction, and neurogenic bladder dysfunction. He opined that the accepted
lumbar injury and surgery continued to cause the diagnosed conditions. Dr. Ellis found that
appellant had reached maximum medical improvement. Referring to Table 16-123 of the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter, A.M.A., Guides), he found 10 percent permanent impairment of the
right leg due to 6 percent impairment of the L5 spinal nerve, and 4 percent impairment of the S1
spinal nerve. Dr. Ellis also found 29 percent permanent impairment of the left leg due to 6
percent impairment of the L4 spinal nerve, 16 percent impairment of the L5 nerve, and 10
percent impairment of the S1 nerve.
In a September 15, 2014 memorandum, OWCP’s medical biller (ACS) approved
reimbursement of Dr. Ellis’ medical services performed that same day. OWCP also issued
2

On October 30, 2013 Dr. James G. Shields, Jr., an attending Board-certified anesthesiologist, diagnosed
postlaminectomy syndrome with radicular pain. He provided pain management services from October 2013 through
August 2015. On February 10, 2014 a physical therapist performed an impairment rating, finding one percent
impairment of the right leg and nine percent impairment of the left leg due to “soft findings” of bilateral S1
radiculopathy. He also provided a March 10, 2014 impairment rating finding one percent impairment of each leg for
possible muscle weakness. Neither rating was signed or reviewed by a physician.
3

Table 16-12, page 535 of the sixth edition of the A.M.A., Guides is entitled “Peripheral Nerve Impairment -Lower Extremity Impairments.”

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wage-loss compensation to appellant for his work absence on September 15, 2014 to see
Dr. Ellis.
After he returned from his appointment with Dr. Ellis in Oklahoma City, Oklahoma,4
appellant claimed a total of $1,378.44 in expenses related to his travel to see Dr. Ellis including:
$154.00 for lodging on September 14 and 15, 2014; $199.00 for meals; $552.72 mileage
reimbursement for the 987-mile drive from his home in Chester, Georgia, to Dr. Ellis’ office in
Oklahoma City, Oklahoma; $552.72 in mileage reimbursement for the return drive.5
On October 21, 2014 appellant filed a claim for a schedule award. In an October 27,
2014 letter, OWCP advised him of the evidence needed to establish his claim, including an
impairment rating according to the sixth edition of the A.M.A., Guides.
November 13 and December 4, 2014 OWCP billing memoranda demonstrates that its
billing service denied reimbursement of appellant’s claim for a mileage allowance, meals, and
lodging from September 14 to 16, 2015.
On December 3, 2014 an OWCP medical adviser reviewed Dr. Ellis’ impairment rating
and disagreed with the percentages offered, as he based his assessment on “more
subjective/empirical evidence rather than hard objective evidence.” He found that appellant had
one percent impairment of each lower extremity for “mild bilateral S1 sensory deficit.”
In a February 23, 2015 letter to his elected congressional representative, appellant
explained that he had obtained an impairment rating from Dr. Ellis because he was the best
qualified physician to perform the examination. He was unable to locate a physician in his
immediate area willing to perform the impairment rating.
On March 27, 2015 OWCP sought to refer appellant for a second opinion examination
regarding the appropriate percentage of permanent impairment. It noted in an April 28, 2015
memorandum that it was temporarily closing the second opinion referral as “there is n[o]t a
provider within 100 miles that would accept the case.”
OWCP advised appellant by March 27, 2015 letter that “the number of miles requested
for reimbursement exceed[ed] the 100 miles maximum allowable.” Also, its authorization of
medical services by Dr. Ellis did “not automatically authorize travel to that provider.” OWCP
afforded appellant 30 days to submit evidence that it had authorized appellant’s travel
reimbursement request.
On July 13, 2015 OWCP referred appellant, the medical record, and a statement of
accepted facts to Dr. Harry J. Lenaburg, Jr., a Board-certified orthopedic surgeon located in
Dublin, Georgia, to obtain a second opinion regarding the percentage of permanent impairment
to the lower extremities caused by the accepted lumbar conditions. Dr. Lenaburg provided an
4

The record contains a fragment of a request for travel reimbursement (Form OWCP-957), imaged into the case
record on February 25, 2015. However, the date the form was originally submitted is not of record.
5

In an October 24, 2014 letter, the employing establishment requested that OWCP deny appellant’s request for
travel reimbursement as Dr. Ellis allegedly was “known to overinflate impairment ratings and has submitted
questionable medical documentation in the past.”

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August 7, 2015 report, which reviewed the medical record and statement of accepted facts. On
examination, he found diminished touch sensation over the medial aspect of both legs, and
bilaterally absent patellar reflexes. Appellant had no objective signs of lumbar radiculopathy.
Dr. Lenaburg diagnosed post-laminectomy syndrome. He opined that appellant had reached
maximum medical improvement and that the accepted conditions had resolved with no residuals.
Referring to Table 16-12 of the A.M.A., Guides, Dr. Lenaburg found two percent permanent
impairment of each lower extremity for a class 1, grade A mild sensory deficit in the L4
dermatome.
An OWCP medical adviser reviewed Dr. Lenaburg’s impairment rating on August 18,
2015 and concurred with his findings and calculations.
By decision dated September 16, 2015, OWCP issued a schedule award for two percent
permanent impairment of each leg, based on Dr. Lenaburg’s opinion. It noted that it did not rely
on Dr. Ellis’ opinion as he had utilized subjective findings to calculate impairment.
In a second September 16, 2015 decision, OWCP denied reimbursement for mileage,
meals, and lodging in the amount of $1,378.44 from September 14 to 16, 2014. It found that he
had not provided adequate reasons for his travel to Oklahoma City, Oklahoma for an impairment
rating, nor had he established sufficient evidence of a valid preauthorization to consult Dr. Ellis.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA6 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
American Medical Association, Guides to the Evaluation of Permanent Impairment has been
adopted by OWCP as a standard for evaluation of schedule losses and the Board has concurred in
such adoption.7 For schedule awards after May 1, 2009, the impairment is evaluated under the
sixth edition of the A.M.A., Guides, published in 2008.8
No schedule award is payable for a member, function, or organ of the body not specified
in FECA or in the regulations.9 Because neither FECA nor the regulations provide for the
payment of a schedule award for the permanent loss of use of the back,10 no claimant is entitled

6

5 U.S.C. § 8107.

7

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

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
9

Henry B. Floyd, III, 52 ECAB 220 (2001).

10

FECA specifically excludes the back from the definition of “organ.” 5 U.S.C. § 8101(19).

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to such an award.11 However, in 1966, amendments to FECA modified the schedule award
provision to provide for an award for permanent impairment to a member of the body covered by
the schedule regardless of whether the cause of the impairment originated in a scheduled or
nonscheduled member. As the schedule award provision of FECA includes the extremities, a
claimant may be entitled to a schedule award for permanent impairment to an extremity even
though the cause of the impairment originated in the spine.12
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).13 Under the sixth edition, the evaluator identifies the impairment Class of
Diagnosis (CDX), 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).
Section 8123(a) of FECA provides that when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.15 When there
are opposing medical reports of virtually equal weight and rationale, the case must be referred to
an impartial medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical
evidence.16 In situations where there are 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 on a proper
factual background, must be given special weight.17
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a lumbosacral strain, and L3-4 and L4-5 disc
disorders with myelopathy. It authorized an L3-4 discectomy and L4-5 decompression
performed on February 26, 2013.
Appellant had claimed schedule award on October 21, 2014. In support of his claim, he
had provided a September 15, 2014 impairment rating from Dr. Ellis. Dr. Ellis observed sensory
deficits in the L4, L5, and S1 spinal nerves. Referring to Table 16-12 of the A.M.A., Guides, he
found 10 percent permanent impairment of the right leg due to 6 percent impairment of the L5
spinal nerve, and 4 percent impairment of the S1 nerve. For the left leg, Dr. Ellis calculated a
combined 29 percent permanent impairment due to 6 percent impairment of the L4 spinal nerve,
11

Thomas Martinez, 54 ECAB 623 (2003).

12

See Thomas J. Engelhart, 50 ECAB 319 (1999).

13

A.M.A., Guides (6th ed. 2008), page 3, section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”
14

A.M.A., Guides 494-531 (6th ed. 2008).

15

5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

16

Delphia Y. Jackson, 55 ECAB 373 (2004).

17

Anna M. Delaney, 53 ECAB 384 (2002).

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16 percent impairment of the L5 spinal nerve, and 10 percent impairment of the S1 spinal nerve.
He provided detailed measurement of the clinical tests used to establish each of these
impairments.
The second opinion physician Dr. Lenaburg found two percent permanent impairment of
each lower extremity due to a mild sensory deficit in the L4 dermatome bilaterally according to
Table 16-12. OWCP’s medical adviser reviewed and concurred with Dr. Lenaburg’s assessment.
On September 16, 2015 OWCP issued its schedule award for two percent permanent
impairment of each lower extremity, based on Dr. Lenaburg’s opinion. However, the Board
finds that the case is not in posture for a decision due to a conflict in the medical evidence.
Dr. Ellis provided extensive clinical findings documenting sensory impairment in the L4,
L5, and S1 spinal nerves. He explained the tests used to determine that appellant had 29 percent
permanent impairment of the left leg and 10 percent impairment of the right leg due to sensory
deficits. In contrast, Dr. Lenaburg found a “mild” sensory deficit in the L4 dermatome only.
Both physicians thus reached different conclusions about the nature and extent of appellant’s
lower extremity impairment. This conflict of medical opinion requires resolution by an impartial
medical specialist.18 The case will be remanded to OWCP to refer appellant, the medical record,
and a statement of accepted facts to an appropriate specialist, to obtain an impartial opinion
regarding the appropriate percentage of permanent impairment. Following this and all other
development deemed necessary, OWCP shall issue a de novo decision in the case.
LEGAL PRECEDENT -- ISSUE 2
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree of the period of disability or aid in lessening the amount of monthly compensation.19
An injured employee may be entitled to compensation for lost wages incurred while
obtaining authorized medical services.20 This includes the actual time spent obtaining the
medical services and a reasonable time spent traveling to and from the medical provider’s
location.21 As a matter of practice, OWCP generally limits the amount of compensation to four
hours with respect to routine medical appointments.22 However, longer periods of time may be
allowed when required by the nature of the medical procedure and/or the need to travel a
substantial distance to obtain the medical care.23
18

5 U.S.C. § 8123(a).

19

Id. at § 8103.

20

See id. at § 8103(a); Gayle L. Jackson, 57 ECAB 546-48 (2006).

21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation of Claims, Chapter 2.901.19(a)(1)
(February 2013).
22

Id. at Chapter 2.901c.

23

Id.

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OWCP regulations provide that the employee is entitled to reimbursement of reasonable
and necessary expenses, including transportation needed to obtain authorized medical services,
appliances, or supplies.24 To determine a reasonable distance, it will consider the availability of
services, the employee’s condition, and the means of transportation. Effective August 29, 2011,
OWCP regulations provide that a round-trip distance of up to 100 miles is considered a
reasonable distance to travel.25 If round-trip travel of more than 100 miles is contemplated, or air
transportation or overnight accommodations will be needed, the employee must submit a written
request to OWCP for prior authorization with information describing the circumstances and
necessity for such travel expenses. OWCP will approve the request if it determines that the
travel expenses are reasonable and necessary and are incident to obtaining authorized medical
services, appliances or supplies.26
Pursuant to FECA Bulletin No. 14-02, issued January 29, 2014, when a claimant submits
a travel reimbursement in excess of 100 miles for a single date of service, the bill will
automatically be suspended and the Central Bill Processing provider will send notification to
OWCP claims examiner.27 FECA Bulletin No. 14-02 notes that in some limited circumstances it
may be necessary for a claimant to travel more than 100 miles on a regular basis, such as when
the claimant lives in a remote area.28
In interpreting this section, the Board has recognized that OWCP has broad discretion in
approving series under FECA. The only limitation on OWCP’s authority is that of
reasonableness.29 OWCP may authorize medical treatment but determine that the travel expense
incurred for such authorized treatment was unreasonable or unnecessary.30
ANALYSIS -- ISSUE 2
The Board finds that OWCP did not abuse its discretion in denying appellant’s requests
for travel reimbursement over 100 miles roundtrip. It is noted that issues of authorization for
medical treatment and reimbursement of travel expenses for medical treatment are separate and
distinct. OWCP may authorize medical treatment but determine that the travel expense incurred
for such authorized treatment was unreasonable or unnecessary, as in this case.31

24

20 C.F.R. § 10.315(a).

25

Id.

26

Id. at § 10.315(b).

27

FECA Bulletin No. 14-02 (issued January 29, 2014).

28

Id.

29

M.M., Docket No. 15-1724 (issued February 16, 2016); A.O., Docket No. 08-580 (issued January 28, 2009);
see also Marjorie S. Geer, 39 ECAB 1099 (1988) (OWCP has broad discretionary authority in the administration of
FECA and must exercise that discretion to achieve the objectives of section 8103).
30

M.M., id.; W.M., 59 ECAB 132 (2007); Mira R. Adams, 48 ECAB 504 (1997).

31

M.M., supra note 29; W.M., id.

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Appellant claimed a total of $1,378.44 in travel expenses related to his September 15,
2014 appointment with Dr. Ellis. He listed a total $154.00 for lodging on September 14 and 15,
2014, $199.00 for meals, $552.72 mileage reimbursement for the 987-mile drive from his
residence in Chester, Georgia, to Dr. Ellis’ office in Oklahoma City, OK, and $552.72 in mileage
reimbursement for the return drive. OWCP has administrative discretion with respect to
authorization of travel reimbursement.32
OWCP denied appellant’s claim for travel expenses, in part, because he failed to submit a
written request for preauthorization. As noted above, a written request for prior authorization
must be submitted to OWCP describing the circumstances and necessity for such travel
expenses.33 Appellant telephoned OWCP on August 19, 2014 seeking preapproval for travel
expenses for his planned travel to Dr. Ellis in Oklahoma City, Oklahoma on September 15, 2014.
OWCP instructed appellant to file a claim for reimbursement after he attending the appointment.
There is no evidence that OWCP waived the requirement that all prior authorization requests be
in writing. No request for preapproved authorization was received.
Additionally, OWCP found that appellant had not demonstrated that there were
inadequate medical services in his area, such that he could not obtain an impairment rating
within 100 miles of his residence. As noted above, OWCP regulations provide that, generally, a
round trip of up to 100 miles is a reasonable distance to travel.34 There may be circumstances
where travel reimbursement of more than 100 miles is appropriate. An example of those
circumstances might be where a claimant lives in a remote area with limited medical services
and physicians of an appropriate specialty. To establish that a travel reimbursement of more than
100 miles is warranted, OWCP regulations indicate that the claimant must provide information
describing the circumstances and necessity for such travel expenses. The Board notes that
OWCP was successful in locating a second opinion physician in Dublin, Georgia, within 100
miles of appellant’s home. As there were sufficient practitioners nearby, appellant clearly did
not have to travel to Oklahoma City to be evaluated. Appellant provided no evidence to support
that there was a lack of available medical services within a 100 mile round trip distance.
The Board finds that OWCP did not abuse its discretion in denying appellant’s travel
reimbursement request.35 No probative evidence was presented with respect to the necessity of
travel beyond the 100-mile standard set forth in OWCP’s regulations or that OWCP abused its
direction in denying reimbursement for travel expenses. It has administrative discretion with
respect to authorization of travel reimbursement.36

32

Daniel J. Perea, 42 ECAB 214 (1990).

33

20 C.F.R. § 10.315(b).

34

Id. at § 10.315(a).

35

M.M., supra note 29. See also V.K., Docket No. 12-1103 (issued October 12, 2012).

36

Daniel J. Perea, 42 ECAB 214 (1990)(abuse of discretion by OWCP is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment, or administrative actions which are contrary to both logic
and probable deductions from established facts).

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On appeal, appellant asserts that OWCP authorized his appointment with Dr. Ellis and
indicated its approval of his travel expenses. As set forth above, however, OWCP properly
exercised its discretion in denying appellant’s claim for travel reimbursement.
Appellant may submit new evidence or argument regarding this issue 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 the case is not in posture for a decision regarding the schedule
award due to a conflict of medical evidence. The Board further finds that OWCP properly
exercised its discretion in denying appellant’s requests for travel reimbursement.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 16, 2015 regarding the schedule award is set aside,
and the case remanded for additional development consistent with this opinion. The decision of
OWCP dated September 16, 2015 regarding the denial of travel expenses is affirmed.
Issued: December 13, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Walton, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0014
Issued: May 20, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 6, 2020 appellant, through counsel, filed a timely appeal from an April 22,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a low back condition
causally related to the accepted July 28, 2020 employment incident.
FACTUAL HISTORY
On August 2, 2018 appellant, then a 57-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on July 28, 2018, she sustained a lower back injury when the door of
her long life vehicle (LLV) became stuck as she was closing it while in the performance of duty.
On the reverse side of the claim form C.F., an employing establishment supervisor, controverted
the claim, asserting that the LLV door had been opened and closed numerous times without
sticking. Appellant stopped working on August 2, 2018.
In a letter of controversion dated August 9, 2018, the employing establishment alleged that
appellant did not report the injury on the day that it occurred and that the medical evidence it had
received failed to establish causal relationship or ongoing disability.
In an August 1, 2018 emergency room note, Paul Downton, a physician assistant, noted
that appellant was experiencing acute back pain, which she attributed to an incident at work five
days prior when she was sliding her vehicle door, and it jammed. He performed a physical
examination, which revealed painful range of motion of the lumbar spine, and ordered x-rays,
which were normal. Mr. Downton diagnosed acute low back pain and recommended that appellant
remain out of work until August 8, 2018.
In an August 13, 2018 development letter, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the factual and medical evidence
necessary and also provided a questionnaire for completion. OWCP afforded appellant 30 days to
respond. In the same letter, it also informed the employing establishment that, if appellant was
treated at an employing establishment medical facility for the alleged injury, it must provide
treatment notes.
In an August 21, 2018 response to OWCP’s development questionnaire, appellant
indicated that she wrenched her back while on her mail route delivering parcels. She tried to
continue working for three days after the injury, but the pain worsened so she sought treatment at
the emergency room.
OWCP received various notes and forms signed by Christina Wightman, a physician
assistant, for dates of service on August 9 and 16, 2018. Ms. Wightman documented her physical
examination findings and diagnosed appellant with lower back pain, muscle spasm of the back,
and a back sprain and strain due to pulling down the rear door of her vehicle which jammed, jarring
her low back. She recommended that appellant remain out of work until evaluation by a spine
specialist.
By decision dated September 13, 2018, OWCP accepted that the incident occurred as
alleged, but denied appellant’s claim, finding that the medical evidence of record was insufficient
to establish a medical diagnosis in connection with the accepted July 28, 2018 employment

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incident. It concluded, therefore, that the requirements had not been met to establish an injury as
defined by FECA.
OWCP continued to receive evidence. On August 21, 2018 Ms. Wightman referred
appellant for physical therapy. A doctor’s initial report, dated September 21, 2018 bearing
Ms. Wightman’s signature and that of Dr. Scott Treatman, an osteopath, noted that appellant was
prescribed ongoing physical therapy and medication and was to remain out of work due to
persistent back pain and spasm.
On September 24, 2018 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
In a report dated October 9, 2018, Dr. Franklin Wetzel, an orthopedic surgeon, noted that
appellant related a history of experiencing spine pain on July 28, 2018 after closing the door of her
mail truck with force. He indicated that she appeared toxic, sickly, and distressed and, during
physical examination, he found tenderness, pain, and reduced range of motion of the thoracic back.
Dr. Wetzel opined that appellant was totally disabled and referred her for a magnetic resonance
imaging (MRI) scan of her back. He diagnosed low back pain and spondylosis of the lumbar
region without myelopathy or radiculopathy. In a letter of even date, Dr. Wetzel indicated that
appellant was suffering from thoracolumbar back pain of unclear etiology.
Lumbar spine x-rays dated October 9, 2018 demonstrated scattered mild degenerative
changes, but revealed no malalignment or abnormal motion.
In a progress note dated November 16, 2018, Dr. Wetzel noted that he reviewed appellant’s
MRI scan personally and found central prolapse of L4-5 on the left, but that appellant’s subjective
complaints and physical examination findings had improved. He diagnosed resolving lumbar
strain. In a separate letter of even date, Dr. Wetzel opined that appellant remained totally disabled.
In a letter of controversion dated October 16, 2018, A.L., a health and resource manager
for the employing establishment, noted that she had received Dr. Wetzel’s October 9, 2018 letter
and, on that basis, requested that OWCP continue to deny appellant’s claim based upon causal
relationship.
At a telephonic hearing held on January 8, 2019, appellant recounted the history of the
July 28, 2018 employment incident, as well as her subsequent medical treatment for her lower
back. The hearing representative explained that additional medical evidence addressing causal
relationship was needed and held the case record open for 30 days.
OWCP subsequently received a January 22, 2019 letter by Dr. Wetzel, indicating that
appellant continued to suffer from left-sided back pain without radiation following a work injury
on July 28, 2018. Dr. Wetzel noted that an MRI scan had revealed age-appropriate degenerative
disc disease without a focal lesion and opined that she continued to be totally disabled on the basis
of disc disease, characterized by a post-traumatic exacerbation of a preexisting degenerative
condition. He recommended additional physical therapy and pain management, but no surgery.
By decision dated February 13, 2019, OWCP’s hearing representative modified the
September 13, 2018 decision, finding that appellant had established valid medical diagnoses of
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lumbar strain/sprain and degenerative disc disease in connection with the accepted July 28, 2018
employment incident. The claim remained denied, however, as she found that the medical
evidence of record was insufficient to establish these conditions were causally related to the
accepted July 28, 2018 employment incident.
OWCP continued to receive evidence. In an April 5, 2019 progress report, Dr. Wetzel
noted that appellant wished to return to work.
On February 6, 2020 appellant requested reconsideration of the February 13, 2019
decision.
By decision dated April 22, 2020, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.7
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
3

Supra note 1.

4
F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8
S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).

4

be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a low back
condition causally related to the accepted July 28, 2018 employment incident.
In his January 22, 2019 letter, Dr. Wetzel noted the history of appellant’s accepted July 28,
2018 employment incident and opined that she was disabled due to disc disease, characterized by
a post-traumatic exacerbation of a preexisting degenerative condition. However, he did not offer
any rationale to explain how the accepted employment incident would have caused appellant’s
diagnosed conditions. The Board has held that a medical opinion should offer a medically-sound
explanation of how the specific employment incident physiologically caused the injury.11 As noted
above, a well-rationalized opinion is particularly important when there is a preexisting condition
involving the same body part.12 The Board has required medical rationale differentiating between
the effects of the work-related injury and the preexisting condition in such cases.13 Lacking a
rationalized explanation, Dr. Wetzel’s January 22, 2019 letter is insufficient to meet appellant’s
burden of proof.
In his October 9, 2018 report, Dr. Wetzel provided diagnoses of low back pain and
spondylosis of the lumbar region without myelopathy or radiculopathy. In a November 16, 2018
follow-up visit, he diagnosed a lumbar sprain and, in a letter of even date, noted that appellant
remained disabled. Thereafter, on April 5, 2019 Dr. Wetzel diagnosed lumbar disc disease. These
reports, however, do not contain an opinion on causal relationship. The Board has held that a
report that does not offer an opinion regarding the cause of an employee’s condition is of no

9
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
M.B., Docket No. 20-1275 (issued January 29, 2021).
11

C.D., Docket No. 20-0762 (issued January 13, 2021).

12

K.R., Docket No. 18-1388 (issued January 9, 2019).

13

See, e.g., A.J., Docket No. 18-1116 (issued January 23, 2019); M.F., Docket No. 17-1973 (issued December 31,
2018); J.B., Docket No. 17-1870 (issued April 11, 2018); E.D., Docket No. 16-1854 (issued March 3, 2017);
P.O., Docket No. 14-1675 (issued December 3, 2015).

5

probative value.14 Further, in his letter dated October 9, 2018, Dr. Wetzel noted that appellant’s
thoracolumbar pain was of unknown etiology. The Board has held that medical evidence that
negates causal relationship is of no probative value.15 Thus, this letter likewise does not support
appellant’s claim.
Dr. Treatman prescribed ongoing physical therapy and medication and indicated that
appellant was to remain out of work. As he did not offer an opinion on causal relationship, his
report is of no probative value.16
The evidence of record also consists of reports from Mr. Downton, physician assistants.
Certain healthcare providers such as physician assistants, nurse practitioners, and physical
therapists are not are not considered qualified physicians as defined under FECA.17 Their medical
findings, reports and/or opinions, unless cosigned by a qualified physician, will not suffice for
purposes of establishing entitlement to FECA benefits.18
The remainder of the evidence of record consists of diagnostic study reports. The Board
has held that diagnostic studies, standing alone, lack probative value on the issue of causal
relationship as they do not address whether the accepted employment injury caused any of the
additional diagnosed conditions.19
As appellant has not submitted rationalized medical evidence establishing that her low back
condition is causally related to the accepted July 28, 2018 employment incident, the Board finds
that she has not met her burden of proof to establish her claim.
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 10.607.15.

14
S.J., Docket No. 19-0696 (issued August 23, 2019); M.C., Docket No. 18-0951 (issued January 7, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
15

C.M., Docket No. 19-1211 (issued August 5, 2020); M.C., Docket No. 19-1074 (issued June 12, 2020); T.W.,
Docket No. 19-0677 (issued August 16, 2019).
16

Supra note 14.

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); K.A., Docket No. 18-0999 (issued October 4, 2019); David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists
are not competent to render a medical opinion under FECA).
17

18

K.A., id.; K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, id.

19

F.D., Docket No. 19-0932 (issued October 3, 2019); J.S., Docket No. 17-1039 (issued October 6, 2017).

6

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a low back
condition causally related to the accepted July 28, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the April 22, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 20, 2021
Washington, DC

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

Janice B. Askin, 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

R.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SHERIDAN VETERANS AFFAIRS MEDICAL
CENTER, Sheridan WY, Employer
__________________________________________

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

Docket No. 21-1382
Issued: March 7, 2022

Case Submitted on the Record

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

JURISDICTION
On May 15, 2020 1 appellant filed a timely appeal from a February 5, 2020 merit decision
and an April 29, 2020 nonmerit decision of the Office of Workers’ Compensation Programs

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from February 5, 2020, the date of OWCP’s last decision, was
August 3, 2020. Because using September 9, 2021, the date the appeal was received by the Clerk of the Appellate
Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filin g. The date of
the U.S. Postal Service postmark is May 15, 2020, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

(OWCP).2 Pursuant to the Federal Employee’s Compensation Act3 (FECA) and 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 has met his burden of proof to establish a diagnosed
medical condition causally related to the accepted August 28, 2019 employment incident; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 2, 2019 appellant, then a 54-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging on August 28, 2019 he injured his lower back and was exposed to
blood when escorting and controlling a patient while in the performance of duty. He stopped work
on August 30, 2019. On the reverse of the claim form, appellant’s supervisor acknowledged that
appellant was in the performance of duty.
On August 30, 2019 Melanie Kawalok, a family nurse practitioner, opined that appellant
was partially disabled from work and recommended light duty with lifting restrictions.
In a development letter dated September 18, 2019, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of additional factual and medical evidence
needed and provided a questionnaire for his completion. OWCP afforded appellant 30 days to
submit the necessary evidence. Appellant did not respond.
By decision dated October 21, 2019, OWCP accepted that the August 18, 2019 incident
occurred as alleged, but denied appellant’s traumatic injury claim, finding that he had not
submitted evidence containing a medical diagnosis in connection with the injury. Consequently,
it found that he had not met the requirements to establish an injury as defined by FECA.
On November 8, 2019 appellant requested reconsideration of the October 21, 2019
decision. He provided the completed September 18, 2019 development questionnaire and asserted
that he did not initially experience low back pain and was more concerned about the blood
exposure that had occurred on the date of injury. Appellant noted that he first sought medical
treatment on September 9, 2019.
Appellant resubmitted the August 30, 2019 note from Ms. Kawalok and provided an
additional September 7, 2019 note that she completed. On September 11, 2019 Sean Schoonover,

2
The Board notes that, following the April 29, 2020 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.
3

5 U.S.C. § 8101et seq.

2

a physician assistant, completed a form report and a work release note. He also complete d form
reports on November 7, 2019.
On February 5, 2020 OWCP denied modification of its October 21, 2019 decision.
OWCP continued to receive evidence. Appellant submitted September 25 and October 28,
2019 notes from Mr. Schoonover who noted that he presented with continued complaints of low
back pain. He also resubmitted copies of Mr. Schoonover’s September 11 and November 7, 2019
notes.
On April 3, 2020 appellant requested reconsideration of OWCP’s February 5, 2020
decision.
By decision dated April 29, 2020, OWCP denied reconsideration of the merits of
appellant’s claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.8

4

Id.

5

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

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

3

The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted August 28, 2019 employment incident.
In support of his claim, appellant submitted an August 30, 2019 note from Ms. Kawalok,
a family nurse practitioner, as well as September 11 and November 7, 2019 notes from
Mr. Schoonover, a physician assistant. The Board has long held that certain healthcare providers
such as physician assistants and nurse practitioners are not considered qualified physicians as
defined under FECA. 11 Their medical findings, reports and/or opinions, unless cosigned by a
qualified physician, will not suffice for purposes of establishing entitlement to FECA benefits.12
Consequently, the notes from Ms. Kawalok and Mr. Schoonover are insufficient to meet his burden
of proof.13
As the evidence of record is insufficient to establish a diagnosed medical condition causally
related to the accepted August 28, 2019 employment incident, the Board finds that appellant has
not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

O.P., Docket No. 19-0445 (issued July 24, 2019); L.H., Docket No. 18-1217 (issued May 3, 2019); S.C., Docket
No. 16-0293 (issued May 10, 2016); A.C., Docket No. 08-1453 (issued November 18, 2008) (as there was no medical
evidence diagnosing an emotional condition, appellant failed to establish a prima facie claim).
Section 8102(2) of FECA provides as follows: “(2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as d efined
by State law.” 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion
under FECA); see also E.W., Docket No. 20-0338 (issued October 9, 2020).
11

12

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

13

S.E., Docket No. 21-0666 (issued December 28, 2021).

4

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 14
To require OWCP to reopen a case for merit review, pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.15
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 16 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 17 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s timely request for reconsideration on November 8, 2019 neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law. Additionally,
the Board finds that he did not advance a relevant legal argument not previously considered by
OWCP. Consequently, appellant is not entitled to further review of the merits of his claim based
on either the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP. OWCP previously denied his claim because there was no
medical evidence of record establishing a diagnosed medical condition causally related to the
accepted August 28, 2019 employment incident. In support of his reconsideration request,
14

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
15

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
16

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of the merit decision for which review is sought. Supra note 11 at Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
17

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

18

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

5

appellant submitted September 25 and October 28, 2019 notes from Mr. Schoonover. The Board
finds that submission of these notes did not require reopening appellant’s case for merit review
because they have no probative value on the underlying issue on reconsideration. These reports
do not constitute competent medical evidence because physician assistants are not considered
physicians as defined under FECA. 19 Therefore, this evidence is not relevant and is insufficient to
require a merit review. 20
The Board, accordingly, finds that appellant did not meet any of the requireme nts of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 21
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted August 28, 2019 employment incident. The
Board further finds that OWCP properly denied his request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).

19

Supra note 11.

20

Id.; see R.G., Docket No. 19-1889 (issued April 14, 2021).

21

R.G., id.; D.G., Docket No. 19-1348 (issued December 2, 2019).

6

ORDER
IT IS HEREBY ORDERED THAT the February 5 and April 29, 2020 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 7, 2022
Washington, DC

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

Patricia H. Fitzgerald, Alternate 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
__________________________________________
B.S., Appellant
and
U.S. POSTAL SERVICE, AIRMAIL CENTER,
Seattle, WA, Employer
__________________________________________

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

Docket No. 11-2001
Issued March 27, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 22, 2011 appellant filed a timely appeal of the February 23, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration. Because more than one year elapsed between the most recent merit decision
dated March 28, 2007 to the filing of this appeal, the Board lacks jurisdiction to review the
merits of the case pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

For adverse OWCP decisions issued prior to November 19, 2008, a claimant has up to one year to file a Board
appeal. See 20 C.F.R. § 501.3(d)(2). For adverse OWCP decisions issued on or after November 19, 2008, a
claimant has 180 days to file a Board appeal. See 20 C.F.R. § 501.3(e).

On appeal, appellant contends that OWCP failed to respond to her request for an
extension to submit evidence in support of her recurrence of disability claim as directed and for
copies of its telephone logs to prepare for the instant appeal.
FACTUAL HISTORY
This case was previously on appeal before the Board with respect to the termination of
appellant’s compensation benefits. In an August 4, 2006 decision,3 the Board affirmed an
OWCP decision dated November 17, 2005 which terminated appellant’s wage-loss
compensation and medical benefits effective October 6, 2003 on the grounds that she no longer
had any residuals or disability causally related to her December 10, 2002 employment injury.4
The Board accorded weight to the medical opinion of Dr. Patrick N. Bays, a Board-certified
osteopath and an OWCP referral physician, who found that appellant no longer had any residuals
of her accepted condition. The Board further held that the medical evidence submitted by
appellant was insufficient to establish that she had any work-related residuals or disability after
October 6, 2003. In a February 13, 2009 decision, the Board affirmed OWCP’s May 8, 2008
decision which denied appellant’s request for reconsideration of the termination decision.5 The
facts and history relevant to the present appeal are hereafter set forth.
On June 20, 2009 appellant filed a claim alleging a recurrence of disability on
June 1, 2009.
By letter dated October 23, 2009, OWCP addressed the factual and medical evidence
appellant needed to submit to establish her recurrence claim. Appellant was afforded 30 days to
submit the requested evidence.
In a November 24, 2009 decision, OWCP denied appellant’s claim, finding that she had
not submitted the necessary factual or medical evidence to establish a recurrence of disability
commencing June 1, 2009 causally related to her accepted December 10, 2002 work injury.
On June 23, 2010 appellant requested reconsideration.
In an August 16, 2010 decision, OWCP denied appellant’s request for reconsideration,
finding that the evidence submitted was repetitious and insufficient to warrant a merit review of
her claim.
On November 24, 2010 appellant requested reconsideration. She contended that OWCP
erred by only performing a limited review of her case as the medical evidence of record
established that she sustained a recurrence of disability causally related to her December 10,
2002 employment injury. Appellant stated that her recent diagnosis which included narrowing of
3

Docket No. 06-729 (issued August 4, 2006).

4

OWCP accepted that on December 10, 2002 appellant, then a 45-year-old mail handler dock technician,
sustained a thoracic strain as a result of pushing a mail hamper. Appellant retired on disability from the employing
establishment in September 2004.
5

Docket No. 08-2168 (issued February 13, 2009).

2

the spine and a herniated disc were not present at the time she was hired by the employing
establishment. She had been on disability retirement for several years and had not worked in any
other capacity that would cause her disability.
In a February 23, 2011 decision, OWCP denied appellant’s request for reconsideration,
finding that she did not submit any new and relevant evidence or legal argument warranting a
merit review of her claim.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128 of FECA,6
OWCP’s regulation provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.7 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.8 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review of the merits.
ANALYSIS
On November 24, 2010 appellant disagreed with OWCP’s August 16, 2010 decision
which denied her request for reconsideration of its finding that she did not sustain a recurrence of
disability commencing June 1, 2009 due to the accepted December 10, 2002 work injury. The
relevant issue is whether her disability during the claimed period was causally related to the
accepted employment injury. The Board notes that this issue is medical in nature.
On reconsideration, appellant contended that OWCP erred in only conducting a limited
review of her case as the medical evidence of record established that she sustained a recurrence
of disability causally related to the accepted work injury. She stated that her recent diagnosis of
narrowing of the spine and a herniated disc did not exist prior to working at the employing
establishment. Appellant further stated that, since her disability retirement, she had not worked
in any other capacity that would cause her current disability. The arguments raised by her
addressed the relative merits of the medical evidence of record, suggesting that it was supportive
of her recurrence claim. OWCP previously weighed this evidence, however, and found it
insufficient to establish that appellant sustained a recurrence of disability commencing June 1,
2009 causally related to the accepted employment injury. Further, appellant did not submit any
additional relevant and pertinent new medical evidence not previously considered by OWCP in
support of her contentions. The Board finds that her contentions are insufficient to reopen her
claim for further merit review.
6

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
7

20 C.F.R. § 10.606(b)(1)-(2).

8

Id. at § 10.607(a).

3

The Board finds that OWCP properly determined that appellant was not entitled to
further review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her November 24, 2010 request for reconsideration.9
Appellant’s contentions on appeal that OWCP failed to respond to her request for an
extension to submit evidence in support of her recurrence claim as directed and for copies of its
telephone logs to prepare for the instant appeal are not pertinent to the underlying issue in this
appeal, which is medical in nature, whether she has established an employment-related disability
commencing June 1, 2009.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 23, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 27, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

9

M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without
reopening the case for a review on the merits).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Clearwater, FL, Employer
__________________________________________

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

Docket No. 19-1643
Issued: July 20, 2020

Case Submitted on the Record

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

JURISDICTION
On July 30, 2019 appellant filed a timely appeal from a July 18, 2019 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained a
bilateral upper extremity condition in the performance of duty.
FACTUAL HISTORY
On May 7, 2019 appellant, then a 43-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that he sustained bilateral carpal tunnel syndrome as a result of his
job duties including repetitive use of his hands when “sorting mail, casing mail by placing it into
1

5 U.S.C. § 8101 et seq.

the letter case, and fingering through the mail while carrying and delivering mail/packages.” He
indicated that he first became aware of his claimed condition and its relationship to his federal
employment on January 11, 2019. On the reverse side of the claim form, K.H., a customer service
manager, noted that appellant had been on extended leave since November 24, 2018 due to an
unrelated injury.
In a development letter dated May 22, 2019, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence needed and provided a
questionnaire for his completion. In a separate development letter of even date, OWCP requested
that the employing establishment provide comments from a knowledgeable supervisor on the
accuracy of statements made by appellant in support of his claim. This was to include commentary
on the tasks he performed involving repetitive hand and wrist movements, and other details
regarding the employment-related exposures alleged to have contributed to his claimed condition.
OWCP afforded both parties 30 days to respond.
OWCP subsequently received an April 29, 2019 letter from Dr. Angelo M. Alves, a Boardcertified neurologist, who diagnosed significant bilateral carpal tunnel syndrome. He opined that
the condition was due to or associated with duties of appellant’s federal employment consisting of
sorting mail on a daily basis and for long periods of time. Dr. Alves attached the results of a
January 11, 2019 electromyography and nerve conduction velocity study of the upper extremities
and neck, which demonstrated results consistent with mild bilateral carpal tunnel syndrome and
mild entrapment neuropathy of the ulnar nerve at the wrist level, worse on the left than the right.
In a statement dated June 14, 2019, K.H., on behalf of the employing establishment,
responded to OWCP’s inquiries. She indicated that, as a letter carrier, appellant was required to
sort mail into a case for approximately one and a half to two hours per day while standing, and for
approximately the remaining six hours, he would sort mail intermittently between addresses and
drive. K.H. maintained that no repetitive hand or wrist movements were performed at that time.
She also listed specific periods of time when appellant had not performed his duties on a long-term
basis. K.H. reported that, for the past two years, he had only performed repetitive hand and wrist
motions intermittently for a span of two months and then a span of three months, and that from
August 25 through November 20, 2018 he was given assistance with his street duties for one to
two hours daily. She asserted that appellant’s carpal tunnel syndrome was not caused by these
repetitive motions due to the infrequency of his delivery duties, especially over the last two years.
K.H. attached a job description for appellant’s city carrier position. The duties listed
included, inter alia, casing classes of mail in sequence of delivery along an established route;
withdrawing mail from a distribution case and preparing it in sequence for efficient delivery;
preparing and separating all classes of mail to be carried; and becoming proficient, when assigned
to a route, in the casing of mail on other routes as assigned. Additionally, K.H. indicated that from
August 25 through November 20, 2018 appellant was given assistance on a daily basis between
one hour and two hours of his street duties. Also attached was an undated, unsigned duty status
report (Form CA-17). Only the supervisor’s portion of the form was completed, and this included
appellant’s name with daily work requirements including fine manipulation and simple grasping
for eight hours intermittently and pushing and pulling for one hour intermittently.

2

By decision dated July 18, 2019, OWCP denied appellant’s claim, finding that he had not
submitted sufficient evidence to support that the injury or event(s) occurred as described. It noted
that he had not responded to the May 22, 2019 development letter and had not provided a full
description of the repetitive motions that he believed lead to his carpal tunnel syndrome. OWCP
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish 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 or specific condition for which compensation is claimed is 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) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.5
ANALYSIS
The Board finds that this case is not in posture for decision.
On his May 7, 2019 occupational disease claim form, appellant alleged that he sustained
bilateral carpal tunnel syndrome due to his duties as a city carrier which required repetitive use of
his hands to sort, case, and finger mail.
By letter dated June 14, 2019, K.H. explained that, as a letter carrier, appellant was required
to sort mail into a case for approximately one and a half to two hours per day while standing. For
approximately the next six hours, appellant would sort mail intermittently between addresses and
drive.
In a job description for the position of city carrier, duties included casing classes of mail in
sequence of delivery along an established route; withdrawing mail from a distribution case and
2

Id.

3

C.K., Docket No. 18-1286 (issued April 20, 2020); A.F., Docket No. 18-1154 (issued January 17, 2019); C.S.,
Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).
4

Id.

5

See L.C., Docket No. 19-1301 (issued January 29, 2010). M.S., Docket No. 18-1554 (issued February 8, 2019).

3

preparing it in sequence for efficient delivery; preparing and separating all classes of mail to be
carried; and becoming proficient, when assigned to a route, in the casing of mail on other routes
as assigned. Also, the supervisor’s portion of a Form CA-17 listed appellant’s work requirements
as including fine manipulation and simple grasping for eight hours per day intermittently.
As the record contains sufficient evidence to establish that appellant performed repetitive
tasks of sorting, casing, and fingering mail while in the performance of duty, the Board finds that
he has established that the alleged occupational exposure occurred as alleged.6
As appellant has established that the claimed occupational exposures occurred as alleged,
the question becomes whether these exposures caused an injury.7 Thus, the Board will set aside
OWCP’s July 18, 2019 decision and remand the case for consideration of the medical evidence of
record with regard to the issue of causal relationship.8 After any further development as deemed
necessary, OWCP shall issue a de novo decision addressing whether appellant has met his burden
of proof to establish a medical condition causally related to the accepted federal employment
factors.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 18, 2019 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 20, 2020
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
6

See M.D., Docket No. 18-1365 (issued March 12, 2019).

7

See S.A., Docket No. 19-1221 (issued June 9, 2020).

8

Id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SAN JUAN VETERANS MEDICAL CENTER,
San Juan, PR, Employer
__________________________________________

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

Docket No. 19-1188
Issued: November 6, 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 May 6, 2019 appellant filed a timely appeal from an April 24, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a cervical spine
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On March 15, 2019 appellant, then a 40-year-old social worker, filed an occupational
disease claim (Form CA-2) alleging that she developed pain in her neck, arm, and back, as well as
1

5 U.S.C. § 8101 et seq.

a severe headache as a result of her federal employment. She explained that “daily I have to load
a gate to get out of the VA official car and to enter the car too.” Appellant noted that she first
became aware of her claimed condition and realized that it was caused or aggravated by factors of
her federal employment on February 12, 2019. She did not stop work.
In an accompanying narrative statement, appellant provided that she began working at her
current position during the last week of September and again described her mechanism of alleged
injury. She noted that she had been experiencing symptoms of her condition as early as
January 2019, but did not realize her federal employment was causing her injury at that time.
Appellant explained that, after a February 2019 visit with her primary care provider, she realized
that the lifting of the “clinic gate” was the only repetitive lifting of a heavy object that she
performed daily. She also provided two photographs of the clinic gate.
Appellant submitted a February 19, 2019 magnetic resonance imaging (MRI) scan of
appellant’s cervical spine performed by Dr. Ana Maria Gomez, a Board-certified radiologist,
revealed straightening of the normal cervical lordosis, mild multilevel spondylotic changes of the
cervical spine and mild left neural foraminal narrowing at C5-6.
In a March 12, 2019 medical report, Dr. Juan Valentin Carro, a Board-certified physiatrist,
noted appellant’s history of cervical pain and stiffness related to lifting a heavy object at work. He
diagnosed cervical facet arthropathy, spondylosis, and myositis. Dr. Carro also opined that the
lifting appellant performed as a part of her employment duties may have been a cause of her
symptoms.
By development letter dated March 18, 2019, OWCP advised appellant that it required
additional factual and medical evidence to determine whether she was eligible for FECA benefits.
It requested that she respond to its questionnaire and submit medical evidence which contained a
physician’s opinion supported by a medical explanation as to how work activities in her federal
employment caused, contributed to or aggravated her medical condition. OWCP afforded
appellant 30 days to submit the requested evidence.
In a separate development letter of even date, OWCP requested that the employing
establishment provide additional information regarding appellant’s occupational disease claim,
including comments from a knowledgeable supervisor regarding the accuracy of appellant’s
statements, and a copy of her position description and physical requirements of her position. It
afforded the employing establishment 30 days to submit the necessary evidence.
In an April 12, 2019 response to OWCP’s questionnaire, appellant described her
employment-related activities as lifting a gate twice daily since October 2018 whenever she had
to leave to visit her patients. She also explained that the pain she has experienced in her neck,
back, and arm as a result has caused her a lot of anxiety.
In a partially illegible April 22, 2019 medical note, Dr. Carro provided that appellant’s
symptoms were related to her lifting heavy objects at work. He also advised that she avoid lifting
the gate to the parking lot.
By decision dated April 24, 2019, OWCP denied appellant’s occupational disease claim.
It accepted her duties as a social worker as described, but denied her claim because the medical
2

evidence of record was insufficient to establish causal relationship between her diagnosed cervical
conditions and the accepted factors of her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
In an occupational disease claim, appellant’s burden requires submission of the following:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.7 The opinion of the physician must be based
on a complete factual and medical background of the employee, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a cervical spine
condition causally related to factors of her federal employment.
In his March 12, 2019 medical report, Dr. Carro diagnosed cervical facet arthropathy,
spondylosis and myositis and opined that the lifting she performed as a part of her employment
2

Id.

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

7

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

3

duties may have been a cause of her symptoms. Dr. Carro’s opinion that the repetitive lifting of
the gate “may” have been a cause of her symptoms is speculative in nature. The Board has held
that medical opinions that are speculative or equivocal in character are of diminished probative
value.9 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).10 For these
reasons, Dr. Carro’s March 12, 2019 report is insufficient to establish appellant’s burden of proof.
Dr. Carro’s April 22, 2019 medical note provided that appellant’s symptoms were related
to her lifting of heavy objects at work. He also advised that she avoid lifting the gate for the
parking lot at work. Although his opinion generally supported causal relationship between the
accepted employment factors and appellant’s diagnosed conditions, Dr. Carro’s medical note did
not offer rationale sufficient to explain how or why he believed appellant’s work activities resulted
in or contributed to the diagnosed conditions.11 For this reason, Dr. Carro’s April 22, 2019 medical
note is also insufficient to establish appellant’s burden of proof.
Additionally, appellant submitted a February 19, 2019 cervical spine MRI scan conducted
by Dr. Gomez. The Board has held that diagnostic tests lack probative value as they do not provide
an opinion on causal relationship between appellant’s employment duties and the diagnosed
conditions.12 Accordingly, the February 19, 2019 MRI scan is also insufficient to establish causal
relationship.
As there is no rationalized medical evidence of record explaining how appellant’s
employment duties caused or aggravated her conditions, appellant has not met her burden of proof
to establish her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a cervical spine
condition causally related to the accepted factors of her federal employment.

9

H.A., Docket No. 18-1466 (issued August 23, 2019).

10

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, supra note 8.

11

Id.

12

See J.M., Docket No. 17-1688 (issued December 13, 2018).

4

ORDER
IT IS HEREBY ORDERED THAT the April 24, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 6, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.F., Appellant
and
U.S. POSTAL SERVICE, LAMAR STATION,
Corpus Christi, TX, Employer
__________________________________________

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

Docket No. 10-2065
Issued: July 12, 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 August 10, 2010 appellant filed a timely appeal of the February 8, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for a
schedule award. Pursuant to the Federal Employees’ Compensation Act (FECA)1 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 is entitled to a schedule award for her right arm resulting
from her October 29, 2007 employment injuries.
On appeal, appellant contends that she is entitled to a schedule award because she has
pain and limitations due to her accepted employment injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on October 29, 2007 appellant, then a 22-year-old letter carrier
sustained an open wound without complications and a contusion of the right arm when she was
bitten by a dog while delivering mail on her route. She stopped work on October 29, 2007 and
returned to light-duty work on November 26, 2007. Appellant returned to her regular work
duties on October 19, 2008.
On February 4, 2008 appellant filed a CA-7 form for a schedule award.
In medical reports dated December 6, 2007, Dr. Guy J. Racette, an attending Boardcertified family practitioner, noted that appellant did not complain about any pain. He listed his
normal findings on physical examination and diagnosed dog bite and complicated laceration of
the right upper arm and elbow, and resolved cellulitis of the right elbow. Dr. Racette advised
that appellant had reached maximum medical improvement and could return to work with no
physical restrictions as of the date of his examination. He determined that she had no permanent
impairment of the right upper extremity causally related to the October 29, 2007 employment
injury under the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides). Dr. Racette concluded that no further medical
treatment was necessary.
On April 30, 2009 Dr. R. Meador, OWCP’s medical adviser, reviewed the medical record
including Dr. Racette’s December 6, 2007 findings. He concluded that appellant did not sustain
any permanent impairment of the right upper extremity based on the fifth edition of the A.M.A.,
Guides.
In a February 8, 2010 decision, OWCP denied appellant’s claim for a schedule award.
The medical evidence established that she did not sustain any permanent impairment of the right
upper extremity based on the fifth edition of the A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation to be paid for permanent loss, or loss of use of the members
of the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of
compensation is paid in proportion to the percentage of loss of use.4 However, neither FECA nor
the regulations specify the manner in which the percentage of impairment shall be determined.
For consistent results and to ensure equal justice for all claimants, OWCP adopted the A.M.A.,
Guides as a standard for determining the percentage of impairment5 and the Board has concurred

2

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

3

20 C.F.R. § 10.404.

4

5 U.S.C. § 8107(c)(19).

5

Supra note 3.

2

in such adoption.6 For decisions issued after February 1, 2001, the fifth edition of the A.M.A.,
Guides is used to calculate schedule awards.7 For decisions issued after May 1, 2009, the sixth
edition of the A.M.A., Guides will be used.8
A claimant seeking schedule award compensation under FECA has the burden of
establishing the claim by the weight of the reliable, probative and substantial evidence.9 The
degree of any functional impairment is a medical question that can be established by medical
evidence from a physician.10
ANALYSIS
OWCP accepted that appellant sustained an open wound without complications and a
contusion of the right arm while in the performance of duty on October 29, 2007. Appellant
claimed a schedule award for permanent impairment to her right arm.
The Board finds that there is no medical evidence to establish permanent impairment
based on the accepted open wound without complications and contusion of the right arm.
Dr. Racette, the attending Board-certified family practitioner, conducted a completely normal
examination of the right arm on December 6, 2007. He released appellant to return work stating
that, she had no physical restrictions or impairment rating. Dr. Racette advised that no further
medical treatment was necessary. On April 30, 2009 Dr. Meador, OWCP’s medical adviser,
properly reviewed Dr. Racette’s findings to conclude that appellant had no impairment under the
fifth edition of the A.M.A., Guides.11
OWCP, however, erred in determining that appellant had no ratable impairment pursuant
to the fifth edition of the A.M.A., Guides because the sixth edition of the A.M.A., Guides
became effective May 1, 2009. FECA Bulletin No. 09-03 issued on March 15, 2009 provides
that any initial schedule award decision issued by OWCP on or after May 1, 2009 will be based
on the sixth edition of the A.M.A., Guides, even if the amount of the award was calculated prior
to that date.12 Therefore, OWCP should have used the sixth edition of the A.M.A., Guides in
determining appellant’s entitlement to a schedule award. However, this error is harmless
6

See Tommy R. Martin, 56 ECAB 273 at 275-76 (2005).

7

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

8

FECA Bulletin No. 09-03 (issued March 15, 2009, expired May 1, 2010); see also id. at Chapter 3.700,
Exhibit 1 (January 2010).
9

See D.H., 58 ECAB 358 (2007); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB
55 (1968) and cases cited therein.
10

See R.S., 58 ECAB 362 (2007).

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002); L.H., 58 ECAB 561 (2007) (FECA’s procedures contemplate that, after obtaining
all necessary medical evidence, the file should be routed to OWCP’s medical adviser for an opinion concerning the
nature and percentage of impairment in accordance with the A.M.A., Guides).
12

Supra note 8.

3

because appellant’s lack of right upper extremity impairment, as reported by appellant’s
attending physician, Dr. Racette, and concurred by OWCP’s medical adviser, Dr. Meador, would
have been the same if calculated under the sixth edition of the A.M.A., Guides, i.e., no
impairment.
The Board finds that appellant has no impairment entitling her to a schedule award. The
Board will therefore affirm OWCP’s February 8, 2010 decision.
CONCLUSION
The Board finds that appellant is not entitled to a schedule award for her right arm
resulting from her October 29, 2007 employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the February 8, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 12, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Harrisburg, PA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1147
Issued: August 20, 2021

Case Submitted on the Record

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

On July 21, 2021 appellant filed a timely appeal from a June 24, 2021 decision of the Office
of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned
Docket No. 21-1147.
In a letter received August 2, 2021, appellant requested that the appeal be dismissed.
The Board has duly considered the matter and concludes that appellant’s request for the
dismissal of the appeal should be granted. Accordingly,

IT IS HEREBY ORDERED THAT appellant’s request for the dismissal of the appeal is
granted. The appeal docketed as No. 21-1147 is dismissed.
Issued: August 20, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

2