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

)
)
)
)
)
)
)
)

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

Docket No. 10-1216
Issued: March 2, 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 March 30, 2010 appellant, through her attorney, filed a timely appeal from
February 16, 2010 merit decisions of the Office of Workers’ Compensation Programs granting
her an increased schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 23 percent permanent impairment of the
right upper extremity and a 7 percent permanent impairment of the left upper extremity.
FACTUAL HISTORY
This case has previously been before the Board. On February 27, 2003 the Board
affirmed a May 1, 2001 decision finding that appellant did not establish an employment-related
recurrence of disability on December 8, 2000. The Board set aside an August 22, 2001 nonmerit

decision after finding that she timely filed a request for reconsideration.1 By decision dated
October 17, 2006, the Board set aside a February 22, 2006 decision denying appellant’s claim for
an increased schedule award. The Board remanded the case for the Office to refer her for a
second opinion examination.2 On January 29, 2008 the Board set aside a June 14, 2007 decision
denying appellant’s claim for an increased schedule award. The Board found that both the
physician who provided a second opinion and the Office medical adviser failed to properly apply
the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (5th ed. 2001).3 The Board instructed the Office to further
development the medical evidence. On August 18, 2009 the Board set aside September 24 and
May 21, 2008 decisions denying appellant’s claim for an increased schedule award.4 The Board
noted that the Office had referred her for an impartial medical examiner rather than for a second
opinion examination. The Board found that the Office improperly found a conflict existed given
that neither the Office medical adviser nor the second opinion physician provided a probative
opinion in accordance with the A.M.A., Guides. Therefore, the physician identified by the
Office as an impartial medical examiner constituted a second opinion physician.5 Moreover, the
physician addressed only whether appellant had an impairment due to AC joint arthritis instead
of her entire right upper extremity impairment. The Board remanded the case for further
development. The findings of fact and conclusions of law from the prior decisions are hereby
incorporated by reference.
On October 6, 2009 the Office referred appellant to Dr. Visespong Punyanitya, a Boardcertified orthopedic surgeon, for an impairment evaluation. On October 20, 2009 Dr. Punyanitya
reviewed her history of a subacrdomial decompression of the right shoulder on June 30, 1998
and noted that a September 25, 2003 electromyogram (EMG) of the right upper extremity was
normal. He determined that electrodiagnostic studies showed severe right carpal tunnel
syndrome and mild left carpal tunnel syndrome. Dr. Punyanitya discussed appellant’s
complaints of right shoulder pain, bilateral elbow pain and bilateral pain and numbness from
carpal tunnel syndrome. On examination, he found mild atrophy of the deltoid muscle of the
right shoulder with mild to moderate tenderness at the AC joint with no instability and mild
crepitance. Dr. Punyanitya listed range of motion of the right shoulder as 100 degrees flexion,
60 degrees extension, 100 degrees adduction, 80 degrees external rotation and 30 degrees
internal rotation. For the right wrist, he found a positive Tinel’s sign and negative Phalen’s test,
mild atrophy of the thenar muscles and mild hypesthesia of the volar aspect of the thumb and
1

Docket No. 02-273 (issued February 27, 2003). The Office accepted that appellant sustained bilateral
epicondylitis, fibromyalgia, bilateral carpal tunnel syndrome, acromioclavicular (AC) joint arthritis, rotator cuff
tendinisis and right shoulder impingement syndrome due to factors of her federal employment. By decision dated
March 6, 1995, it granted her a schedule award for an 11 percent impairment of the right upper extremity and a 6
percent impairment of the left upper extremity. On March 7, 2000 the Office granted appellant a schedule award for
an additional 12 percent impairment of the right upper extremity.
2

Docket No. 06-879 (issued October 17, 2006).

3

Docket No. 07-1880 (issued January 29, 2008).

4

Docket No. 09-310 (issued August 18, 2009).

5

The Board further noted that the physician identified as the impartial medical examiner addressed only whether
appellant had an impairment due to AC joint arthritis instead of her entire right upper extremity impairment.

2

index fingers. Dr. Punyanitya also found a positive Tinel’s sign of the left wrist and a 20 percent
loss of grip strength. He diagnosed AC joint arthritis and rotator cuff tendinitis of the right
shoulder, bilateral lateral epicondylitis, bilateral carpal tunnel syndrome and fibromyalgia.
Applying the sixth edition of the A.M.A., Guides, Dr. Punyanitya determined that, for the
right shoulder, appellant had a Class 1 impairment due to her rotator cuff tear under Table 15-5
on page 403. He found grade modifiers for functional history of two, physical examination of
two and clinical studies of zero, for a Grade B or four percent upper extremity impairment.
Dr. Punyanitya further found a one percent impairment for AC joint arthritis of the shoulder
under Table 15-5 and a one percent impairment for epicondylitis of the elbow using Table 15-4
on page 399, which he added to find an upper extremity impairment of six. For right carpal
tunnel syndrome, he determined that, under Table 14-23 on page 449, he had a grade modifier of
one for testing, two for history, two for physical examination and a QuickDASH (QD) score of
32, which yielded a four percent impairment. Dr. Punyanitya next determined that appellant had
a Class 1 impairment for her right ganglion cyst according to Table 15-3 on page 395. He
applied grade modifiers for functional history of two, physical examination of one and clinical
studies of one, to find a Grade D or two percent impairment of the right upper extremity. For the
left arm, Dr. Punyanitya found that appellant had Class 1 epicondylitis of the elbow according to
Table 15-4. He applied grade modifiers for functional history of zero, physical examination of
one and clinical studies of minus one to find a Grade B or one percent left upper extremity
impairment. For left carpal tunnel syndrome, Dr. Punyanitya found grade modifiers of one for
testing, two for history, two for physical examination for an average of 2 and a QD score of 41,
which he found yielded a five percent upper extremity impairment.6 He added the impairment
scores for both upper extremities to find a bilateral total impairment of 18 percent.
Dr. Punyanitya opined that appellant reached maximum medical improvement on
December 31, 2005.
On December 5, 2009 an Office medical adviser determined that, based on
Dr. Punyanitya’s report, 100 degrees of right shoulder flexion constituted a 3 percent
impairment, 100 degrees adduction constituted a 3 percent impairment and 30 degrees internal
rotation constituted a 4 percent impairment, for a total impairment of the right shoulder due to
loss of range of motion of 10 percent. He concurred with Dr. Punyanitya’s finding of a one
percent impairment due to bilateral epicondylitis. The Office medical adviser disagreed with the
four percent rating for carpal tunnel syndrome and found that it should be six percent based on
the findings on examination. The medical adviser stated, “It is noted that studies in
September 2003 showed prolonged bilateral median nerve sensory studies and prolonged right
median motor study. There was a normal EMG of the [right upper extremity]. I feel that the
impairment for carpal tunnel syndrome should include impairment for mild motor deficit and
mild sensory deficit….” The Office medical adviser found that appellant had a six percent
impairment due to carpal tunnel syndrome of each upper extremity. He added the impairment
findings and concluded that appellant had a 17 percent permanent impairment of the right upper
extremity and a 7 percent permanent impairment of the left upper extremity. The Office medical
adviser found that she reached maximum medical improvement on December 31, 2005, one year
after her last shoulder surgery.
6

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

3

By decision dated February 16, 2010, the Office granted a schedule award for an
additional one percent impairment of the left arm. The period of the award ran for 3.12 weeks
from December 31, 2005 to January 21, 2006.
In another decision dated February 16, 2010, the Office found that appellant was not
entitled to an additional schedule award for the right arm as the evidence established that she had
a 17 percent impairment, less than the 23 percent previously awarded.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act7 and its
implementing federal regulations,8 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.9 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate
schedule awards.10
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on functional history (GMFH), physical
examination (GMPE) and clinical studies (GMCS).11 The net adjustment formula is (GMFHCDX) + (GMPE-CDX) + (GMCS-CDX).
ANALYSIS
The Office accepted that appellant sustained bilateral epicondylitis, fibromyalgia,
bilateral carpal tunnel syndrome, AC joint arthritis, rotator cuff tendinisis and right shoulder
impingement syndrome due to factors of her federal employment. In a decision dated March 6,
1995, it granted her a schedule award for an 11 percent permanent impairment of the right upper
extremity and a 6 percent impairment of the left upper extremity. By decision dated March 7,
2000, the Office granted appellant an additional schedule award for the right upper extremity of
12 percent.
Appellant requested an increased schedule award. In accordance with the Board’s
instructions, on October 6, 2009 the Office referred her to Dr. Punyanitya for an impairment
evaluation. Dr. Punyanitya reviewed the medical evidence of record and measured range of
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
11

A.M.A., Guides 494-531.

4

motion of the upper extremities. He determined that appellant had decreased motion in the right
shoulder and elbow, a bilateral loss of grip strength, positive findings of carpal tunnel syndrome,
decreased sensation of the right hand and atrophy of the right deltoid and right thenar eminence.
For the right side, Dr. Punyanitya found that she had a Class 1 impairment due to her rotator cuff
tear, which has a default impairment value of five.12 He adjusted the impairment value using
grade modifiers for functional history of two, physical examination of two and clinical findings
of zero. Applying the net adjustment formula described above, Dr. Punyanitya found a Grade B
or four percent right shoulder impairment.13 He further found a one percent impairment of the
right shoulder due to AC joint arthritis; however, in most cases only one diagnosis in a region
will be appropriate.14 The shoulder impairment due to the right rotator cuff tear yields the higher
impairment rating and thus is the applicable diagnosis.15 For the right elbow, Dr. Punyanitya
determined that appellant had a Class 1 impairment due to epicondylitis of the elbow, which has
a default value of one. After adjusting for grade modifiers for functional history of zero,
physical examination of one, clinical studies of negative one, he found a Grade B or one percent
impairment.16 Regarding the right ganglion cyst, Dr. Punyanitya found a Class 1 impairment.
He applied grade modifiers for functional history of two, physical examination of one and
clinical studies of one, to find a Grade D or two percent impairment of the right upper
extremity.17 Dr. Punyanitya further found that appellant had carpal tunnel syndrome based on
the results of diagnostic studies. Using Table 15-23, he determined the grade of her impairment
by averaging the severity levels for test findings of one, history of two and physical findings of
two, to find an average of two. Dr. Punyanitya also used the QD score of 32 to further modify
the grade, which he found to be a Grade 2 or four percent impairment.18 He found a total right
upper extremity impairment of 12 percent, less than that previously awarded appellant. The
Board notes that Dr. Punyanitya’s ratings conforms to the sixth edition of the A.M.A., Guides.
An Office medical adviser reviewed Dr. Punyanitya’s report. He determined appellant’s
right shoulder impairment using range of motion measurements rather than the diagnosis-based
method.19 The Office medical adviser found that 100 degrees flexion yielded a 3 percent
impairment, 100 degrees abduction yielded a 3 percent impairment and 30 degrees internal
rotation yielded a 4 percent impairment, for a total impairment of the right shoulder due to loss
12

Id. at 403, Table 15-5.

13

Applying the net adjustment formula would yield (2-1) + (2-1) + (0-1) =1 or a Class 1, Grade D impairment of
four percent. Id. at 403, Table 15-5.
14

Id. at 497; H.P., 62 ECAB ___ (Docket No. 10-962, issued November 10, 2010).

15

Id.

16

Id. at 399, Table 15-4. The Board notes that applying the net adjustment formula would yield (0-1) + (1-1) +
0-1) = -2, which is less than that found by Dr. Punyanitya.
17

Id. at 395, Table 15-3. Applying the net adjustment formula yields (2-1) + (1-1) + (1-1) +1 or a Class 1,
Grade D impairment of two percent.
18

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

19

The sixth edition of the A.M.A., Guides provides that if motion loss is present, a shoulder impairment may
alternatively be assessed using range of motion. A.M.A., Guides 403, 405, Table 15-5.

5

of range of motion of 10 percent.20 He concurred with Dr. Punyanitya’s finding of a one percent
impairment for epicondylitis on the right side. The Office medical adviser determined, however,
that appellant had a 6 percent impairment due to carpal tunnel syndrome, for a total right upper
arm impairment of 17 percent. There is no evidence that appellant has more than a 17 percent
impairment of the right arm. As this is less than the 23 percent impairment previously awarded,
she is not entitled to an increased schedule award.
For the left side, Dr. Punyanitya found that appellant had a one percent impairment due to
epicondylitis of the elbow. For left carpal tunnel syndrome, he averaged grade modifiers of one
for testing, two for history, two for physical examination and a QD score of 41, to find a five
percent upper extremity impairment. The Office medical adviser concurred with his finding of a
one percent impairment due to epicondylitis but modified the impairment due to carpal tunnel
syndrome to six percent, to find a total left arm impairment of seven percent. The Board finds
there is no evidence supporting that appellant has more than a seven percent left arm impairment.
CONCLUSION
The Board finds that appellant has no more than a 23 percent permanent impairment of
the right upper extremity and a 7 percent permanent impairment of the left upper extremity.

20

Id. at 475, Table 15-34. The Office medical adviser indicated that the impairment was for adduction rather than
abduction; however, it appears this is a typographical error.

6

ORDER
IT IS HEREBY ORDERED THAT the February 16, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 2, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-621
Issued: July 22, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 24, 2013 appellant filed a timely appeal of a December 11, 2012 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 the case.
ISSUE
The issue is whether appellant sustained an additional permanent impairment of the right
lower extremity.
FACTUAL HISTORY
On April 11, 2007 appellant, then a 53-year-old letter carrier, injured his right knee while
in the performance of duty. OWCP accepted his traumatic injury claim for joint effusion and
subsequently expanded it to include torn medial meniscus and authorized several surgeries.
1

5 U.S.C. § 8101 et seq.

Appellant underwent right partial medial and lateral meniscectomy and chondroplasty on
July 18, 2007. By decision dated November 16, 2007, OWCP granted a schedule award for 10
percent permanent impairment of the right lower extremity for the period September 24, 2007 to
April 12, 2008. Following repeat surgery on March 3, 2009, it expanded appellant’s claim to
include osteoarthritis.
Appellant underwent a right total knee replacement on July 28, 2009.2 By decision dated
June 16, 2010, OWCP granted an additional schedule award for 21 percent permanent
impairment of the right lower extremity for the period June 12, 2010 to August 9, 2011.3
Appellant was discharged to limited duty on September 24, 2010 but did not return to work.4
In a February 14, 2011 report, Dr. Howard B. Krone, a Board-certified orthopedic
surgeon, examined appellant’s right knee and observed mild swelling. X-rays showed excellent
implant placement with no signs of loosening or abnormality. Citing the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter
A.M.A., Guides),5 Dr. Krone stated that appellant sustained 37 percent permanent impairment of
the right knee and reached maximum medical improvement. In a September 26, 2012 report, he
reexamined appellant’s right knee and observed mild swelling and instability during flexion.
X-rays exhibited mild varus deformity of the tibial component. Regarding appellant’s
impairment rating, Dr. Krone commented that the determination was “subjective” to a degree.
Appellant filed a claim for an additional schedule award on October 3, 2012.
In an October 11, 2012 letter, OWCP asked Dr. Krone to render an impairment rating
based on the sixth edition of the A.M.A., Guides.6 In an October 24, 2012 report and
November 21, 2012 addendum, Dr. Krone remarked that appellant sustained 15 percent
permanent impairment of the right knee.7 He cited “Example 16-11: [Status Post] Total Knee
Replacement, With Apportionment” of the sixth edition.8

2

The case record also indicates that appellant underwent closed manipulation of the right knee on
December 1, 2009.
3

OWCP noted that appellant sustained 31 percent permanent impairment of the right leg overall.

4

Information was incorporated into the January 20, 2010 statement of accepted facts and March 23, 2011
addendum.
5

See infra note 6.

6

A.M.A., Guides (6th ed. 2008).

7

Dr. Krone restated the objective findings contained in his earlier February 14, 2011 report.

8

Example16-11 presents an anonymous 60-year-old female subject and, using her medical history, objective
findings, and diagnosis, calculates a 15 percent impairment rating by identifying the appropriate impairment class
(CDX) and modifying for Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS). The A.M.A., Guides does not indicate whether this data is fabricated or based on an actual patient. See
supra note 6 at 527.

2

On November 21, 2012 Dr. Howard P. Hogshead, an OWCP medical adviser and Boardcertified orthopedic surgeon, reviewed the medical file and disagreed with Dr. Krone’s opinion.
He specified that Dr. Krone did not provide sufficient rationale to support additional impairment.
By decision dated December 11, 2012, OWCP denied appellant’s claim for an additional
schedule award, finding the medical evidence insufficient to establish that he sustained more
than 31 percent permanent impairment of the right leg.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss of or loss of use of scheduled members or functions of the body.9 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.10
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).
For lower extremity impairments, the evaluator identifies the impairment class for the diagnosed
condition, which is then adjusted by grade modifiers based on functional history, physical
examination and clinical studies. The net adjustment formula is (GMFH - CDX) + (GMPE CDX) + (GMCS - CDX). Evaluators are directed to provide reasons for their impairment rating
choices, including the choices of diagnoses from regional grids and calculations of modifier
scores.11
ANALYSIS
OWCP accepted that appellant sustained right knee joint effusion, torn medial meniscus,
and osteoarthritis while in the performance of duty and granted schedule awards for 31 percent
permanent impairment of the right lower extremity. Appellant filed a claim for an additional
schedule award on October 3, 2012 and submitted a February 14, 2011 report from Dr. Krone,
whose original impairment rating was erroneously based on the fifth edition of the A.M.A.,
Guides. OWCP subsequently directed Dr. Krone to apply the sixth edition.12 In an October 24,
9

5 U.S.C. § 8107; 20 C.F.R. § 10.404. No schedule award is payable for a member, function or organ of the
body not specified under FECA or the implementing regulations. J.Q., 59 ECAB 366 (2008).
10

K.H., Docket No. 09-341 (issued December 30, 2011). For impairment ratings calculated on and after May 1,
2009, the sixth edition will be applied. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards &
Permanent Disability Claims, Chapter 2.808.5(a) (February 2013). See also B.M., Docket No. 09-2231 (issued
May 14, 2010).
11

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

12

See supra note 10. An impairment rating that does not utilize the proper edition of the A.M.A., Guides is of
diminished probative value. A.B., Docket No. 10-2124 (issued August 10, 2011).

3

2012 report and a November 21, 2012 addendum, Dr. Krone concluded that appellant sustained
15 percent permanent impairment of the right knee. He referred to “Example 16-11: [Status
Post] Total Knee Replacement, With Apportionment” on page 527 of the sixth edition.
Dr. Hogshead, the medical adviser, disagreed with the new rating on the grounds that Dr. Krone
did not provide sufficient rationale to support additional impairment.
The Board finds that appellant did not sustain an additional permanent impairment of the
right lower extremity. According to OWCP procedures, an attending physician’s impairment
rating report must include a detailed description of the impairment and a rationalized opinion as
to the percentage of permanent impairment under the A.M.A., Guides.13 When the attending
physician fails to provide a rating that conforms to the A.M.A., Guides, his or her opinion is of
diminished probative value in establishing the degree of permanent impairment.14 In this case,
Dr. Krone did not utilize tables or grids to identify the impairment class for appellant’s
diagnosed condition and any relevant grade modifiers. In fact, he did not calculate an
impairment rating. Instead, Dr. Krone adopted the rating found in the A.M.A., Guides’ Example
16-11, the purpose of which is to illustrate the proper use of the diagnosis-based method of
evaluation if a patient is status post total knee replacement. At no point did he relate the facts
and circumstances of appellant’s specific situation with the process described in Example 16-11.
Thus, the rating that Dr. Krone derived cannot constitute a rationalized opinion as to the
percentage of appellant’s right lower extremity permanent impairment under the A.M.A.,
Guides.15
In the absence of other impairment rating reports that conform to the A.M.A., Guides and
demonstrate greater impairment, the Board finds that appellant did not sustain more than 31
percent permanent impairment of the right leg overall. Appellant may request an increased
schedule award based on evidence of a new exposure or medical evidence showing progression
of an employment-related condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not sustain an additional permanent impairment of the
right lower extremity.

13

Federal (FECA) Procedure Manual, supra note 10 at Chapter 2.808.5(b).

14

Linda Beale, 57 ECAB 429, 434 (2006). See also James Kennedy, Jr., 40 ECAB 620, 627 (1989).

15

The Board further adds that Dr. Krone’s own findings, namely mild right knee symptoms and normal x-rays,
seemingly undermined his opinion in support of additional impairment. See Robert P. Bourgeois, 45 ECAB 745
(1994); Kenneth J. Deerman, 34 ECAB 641 (1983) (medical evidence must necessarily convince the adjudicator that
the conclusion drawn is rational, sound and logical).

4

ORDER
IT IS HEREBY ORDERED THAT the December 11, 2012 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: July 22, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.N., Appellant
and
U.S. POSTAL SERVICE, DOWNTOWN POST
OFFICE, Wichita, KS, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0070
Issued: March 9, 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 October 22, 2020 appellant, through counsel, filed a timely appeal from an August 21,
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.3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the August 21, 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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for authorization of
additional surgery.
FACTUAL HISTORY
On October 25, 2014 appellant, then a 36-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on that date she twisted her left ankle when she stepped
off of a porch onto grass while in the performance of duty. 4 OWCP accepted the claim for left
ankle sprain. Appellant returned to limited duty and, as of May 12, 2015, worked full-time regular
duty. On June 18, 2015 OWCP accepted an additional condition of left tarsal syndrome. On
June 23, 2015 appellant underwent an OWCP-authorized left tarsal tunnel release with neurolysis
and an additional nonauthorized left partial plantar fascia release which were performed by
Dr. Shawn Morrow, a Board-certified orthopedic foot and ankle surgeon. OWCP paid appropriate
benefits and she returned to full-time work in a limited-duty capacity on August 10, 2015.
On October 27, 2015 appellant saw Dr. Steven Howell, a Board-certified orthopedic
surgeon, specializing in ankle and foot surgery. On November 20, 2015 Dr. Howell requested
authorization for additional surgery involving incision of left foot fascia, decompression of tibial
nerve, partial removal of ankle/heel, and partial removal of foot bone. Additional requests were
submitted on January 5, March 9, and June 15, 2016.
On September 16, 2016 OWCP forwarded appellant’s medical record and a statement of
accepted facts (SOAF) to Dr. William Tontz, a Board-certified orthopedic surgeon serving as a
district medical adviser (DMA), to determine whether her requested surgery was medically
necessary and causally related to her accepted left ankle sprain and left tarsal tunnel syndrome. In
a September 20, 2016 report, Dr. Tontz opined that there was evidence of a temporal relationship
between the October 25, 2014 employment injury and the proposed incision of foot fascia,
decompression of tibia nerve, partial removal of ankle/heel and partial removal of foot bone, but
there was insufficient evidence in the case record of failed conservative management to support
plantar fascia release. He thereafter concluded that the proposed incision of foot fascia,
decompression of tibia nerve, partial removal of ankle/heel, and partial removal of foot bone were
not medically necessary.
On November 17, 2016 OWCP referred appellant, along with the medical record and a
SOAF, to Dr. Michael J. Johnson, a Board-certified orthopedic surgeon, for a second opinion
evaluation. In a November 22, 2016 report, Dr. Johnson reviewed the medical record and the
SOAF and indicated that appellant had received appropriate conservative treatment since her last
surgical procedure, which had not improved enough to allow her to return to full duty. He opined
that only the decompression of tibia nerve (tarsal tunnel release revision) was medically necessary
and causally related to the accepted left tarsal tunnel syndrome. Dr. Johnson opined that the other
4
At the time of injury, appellant was working with medical restrictions under a traumatic injury under OWCP File
No. xxxxxx267. In that claim, OWCP accepted that her fall on August 13, 2016 resulted in right hand contusion, head
contusion, chondromalacia patellae, right knee, nondisplaced fracture of base of fifth metacarpal bone, right hand, and
carpal tunnel syndrome, right upper limb. It has administratively combined these claims, with OWCP File No.
xxxxxx493 serving as the master file.

2

proposed procedures were not causally related to the employment injury or the accepted
conditions. He indicated that the proposed incision of plantar fascia/plantar fascia release was not
related to the accepted diagnosis or secondary to mechanism of injury, the removal of bone
spur/partial removal of ankle/heel was due degenerative/arthritis and not traumatic injury, and the
partial resection of bone/ossicia excision/partial removal of foot bone was a
congenital/developmental deformity to navicular bone which preexisted the employment injury.
On January 17, 2017 OWCP provided Dr. Morrow a copy of Dr. Johnson’s second opinion
report and requested whether he agreed that only the decompression of tibia nerve surgery was
causally related to the October 25, 2014 employment injury and the accepted left tarsal tunnel
syndrome condition. On February 10, 2017 Dr. Morrow concurred with Dr. Johnson’s opinion.
On March 7, 2017 Dr. Howell disagreed with Dr. Johnson’s opinion on causal relation. He
opined that the increased dorsal impingement of the navicular was due to some loss of arch
secondary to the plantar fascial release, which was secondary to employment-related plantar
fasciitis. In a March 21, 2017 report, Dr. Howell also opined that appellant’s talonavicular
spurring was causally related to the accepted conditions. He explained that she had no pain prior
to her injury which worsened after her surgery, consistent with an os naviculare secundum that
loosened up with her original injury and the subsequent spurring was impinging more following
the slight loss of the arch support after the plantar fascial release. Dr. Howell indicated that this
preexisting condition was worsened by the employment injury.
On March 27, 2017 OWCP found a conflict in medical opinion between Dr. Howell and
Dr. Johnson regarding causal relationship and the medical necessity of the specific proposed
surgical procedures. It referred appellant to Dr. Sami Framjee, a Board-certified orthopedic
surgeon, for an impartial medical evaluation.
However, OWCP found that Dr. Framjee had not answered the questions submitted. On
May 18, 2018 it related that appellant would be referred for a new impartial medical evaluation.
On September 13, 2018 OWCP referred appellant, an updated SOAF and a series of
questions, to Dr. Dale D. Dalenberg, a Board-certified orthopedic surgeon, for an impartial
medical evaluation. The SOAF noted that the accepted conditions were a left ankle sprain and left
tarsal tunnel syndrome, and that on June 23, 2015 appellant underwent a left tarsal tunnel release
with neurolysis and left partial plantar fascia release. In its series of questions, OWCP specifically
inquired as to whether the recommended incision of foot fascia, decompression of tibia nerve,
partial removal of ankle/heel, and partial removal of foot bone were medically necessary for, and
causally related to, the accepted conditions of the accepted left ankle sprain and left tarsal tunnel
syndrome.
In a December 21, 2018 report, Dr. Dalenberg noted that appellant was examined on
October 4, 2018. He advised that the proposed procedures were unlikely to improve her condition
and that failure to address her dorsal foot pain and popping by not addressing the talonavicular
joint problem would leave ongoing complaints. Dr. Dalenberg explained that there was no
evidence that performing another tarsal tunnel release would make any difference and the areas of
numbness did not support that it was just tarsal tunnel syndrome. He opined that the proposed
decompression of the tibial nerve was not medically necessary as it had already been performed,
it did not help or had worsened appellant’s symptoms, and it would not fully address her
3

objectively demonstrated numbness. Dr. Dalenberg explained that the proposed excision of the
plantar fascia was not for an accepted condition and was not medically necessary with a
predominant complaint of dorsal pain and foot/ankle popping and pain. He further opined that the
proposed bone removal, particularly removal of the plantar calcaneal spur, was not related to the
accepted conditions and, while it was usually done in conjunction with plantar fascia release, he
opined that it would not appreciably improve appellant’s symptoms. Dr. Dalenberg also advised
that the proposed partial resection of bone/ossicle excision/partial removal of foot bone was not
medically necessary or causally related to the accepted left ankle sprain and left tarsal tunnel
syndrome. He explained that there was evidence of an old dorsal lip avulsion fracture, which was
akin to an ankle sprain, but was never diagnosed or treated. This condition was probably subtly
unstable given her popping complaint, and management was usually c onservative treatment.
Dr. Dalenberg also advised that late surgical treatment was not standard and may be considered
controversial.
By decision dated February 19, 2019, OWCP denied authorization of the requested surgical
procedures. The special weight of the medical evidence was accorded to th e opinion of
Dr. Dalenberg, the impartial medical examiner (IME).
On February 25, 2019 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held telephonically on
June 7, 2019.
OWCP received additional evidence, including x-rays of appellant’s left foot dated
October 4, 2018, which noted small plantar spur and mild degenerative spurring along the dorsal
midfoot.
In an April 2, 2019 report, Dr. Howell indicated that the x-rays taken that day of appellant’s
left foot showed prominent spurring with a very small surface area for weight bearing on the
plantar aspect of her heel directly where she was tender on examination. Appellant also had
numbness and tingling on the bottom of her foot consistent with tarsal tunnel syndrome, which he
believed that had not been completely decompressed, and spurring at the dorsum of the
talonavicular joint. Dr. Howell opined that he could help her with the surgery he previously
offered and outlined his proposed approach. He noted that appellant had been evaluated by an
orthopedist who was not a foot/ankle expert. Dr. Howell questioned the opinion that her condition
would not improve as it was not certain that her tarsal tunnel condition had been adequately
released. He noted that appellant would also benefit by a simple removal of the spurring from the
talonavicular joint and disagreed with Dr. Dalenberg that the talonavicular ligaments would be
involved.
By decision dated June 18, 2019, an Office hearing representative set aside OWCP’s
February 19, 2019 decision and remanded the case to OWCP for further development and a de
novo decision. The hearing representative directed OWCP to have Dr. Dalenberg review
Dr. Howell’s April 2, 2019 report.
In a July 1, 2019 letter, OWCP requested that Dr. Dalenberg review Dr. Howell’s April 2,
2019 report and issue a supplemental report.

4

In a November 20, 2019 addendum, Dr. Dalenberg reviewed Dr. Howell’s April 2, 2019
report and indicated that his concern was that the results of the tarsal tunnel release were uncertain.
He noted that literature documented worse results with revision release, and that results could be
compromised by adhesive neuritis and intraneural damage, which could be the reason for
appellant’s ongoing symptoms. Dr. Dalenberg explained that appellant had a predominance of
dorsal foot pain and popping during his examination, which was not anatomically related to a tarsal
tunnel syndrome diagnosis, and he believed that performing the same surgery would not be
warranted, as the prior procedure had not been successful, and her current symptoms were not due
to tarsal tunnel syndrome. He noted that he had performed various procedures about the foot and
ankle and indicated that he had similar credentials to Dr. Howell. Dr. Dalenberg also noted that
he was called upon by OWCP to weigh in on whether the proposed surgery was for conditions
specified in the SOAF and whether such treatments were likely to be successful. He reiterated his
concern that, while distal release was an indication for revision tarsal tunnel release, it may not be
successful. Dr. Dalenberg also explained that the basis of his medical opinion was the fact that a
large part of appellant’s symptomatology (dorsal foot pain and popping) had nothing to do with
the accepted tarsal tunnel syndrome. He agreed with Dr. Howell that ligament reconstruction
around the talonavicular joint or fusion was not standard with this clinical presentation and
explained that this was mentioned in his prior report as ideas on how to address the dorsal foot
pain and popping. Dr. Dalenberg agreed with dorsal fragment excision but explained that the
procedure was unrelated to the accepted ankle sprain, and tarsal tunnel syndrome.
By decision dated February 25, 2020, OWCP again denied authorization of the requested
surgical procedures. It accorded the special weight of the medical to the opinion of Dr. Dalenberg,
the IME.
On March 4, 2020 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held telephonically on
June 11, 2020.
In a July 2, 2020 report, Dr. Howell indicated that he did not understand Dr. Dalenberg’s
opinion that appellant’s symptoms on the dorsum of the foot were unsubstantiated by her other
complaints. He explained that her dorsal foot pain was consistent with talonavicular spurring and
the numbness on the bottom of her foot was consistent with an incompletely released tarsal tunnel.
Dr. Howell opined that appellant had a reasonable chance of responding satisfactorily to the
proposed surgical procedure.
By decision dated August 21, 2020, OWCP’s hearing representative affirmed the
February 25, 2020 decision.
LEGAL PRECEDENT
Section 8103 of FECA 5 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

5

Supra note 2 at § 8103.

5

the degree, or the period of disability, or aid in lessening the amount of monthly compensation. 6
In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad discretion
in approving services provided, with the only limitation on OWCP’s authority being that of
reasonableness. 7
While OWCP is obligated to pay for treatment of employment-related conditions, appellant
has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition. 8 Proof of causal relationship in a case such as this
must include supporting rationalized medical evidence. 9 In order to prove that the procedure is
warranted, appellant must establish that the procedure was for a condition causally related to the
employment injury and that the procedure was medically warranted. Both of these criteria must
be met in order for OWCP to authorize payment. 10
FECA provides that, if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination. 11
For a conflict to arise the opposing physicians’ viewpoints must be of virtually equal weight and
rationale.12 Where OWCP has referred the case to an IME to resolve a conflict in the medical
evidence, the opinion of such a specialist, if sufficiently well-reasoned and based upon a proper
factual background, must be given special weight. 13 If the IME is unable to clarify or elaborate on
his original report, or if his supplemental report is vague, speculative, or lacking in rationale,
OWCP shall refer appellant to a new IME.14
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for authorization of
additional surgery.
OWCP properly found that a conflict in medical opinion existed between Dr. Howell,
appellant’s attending physician, who recommended incision of foot fascia, decompression of tibia
nerve, partial removal of ankle/heel and partial removal of foot bone, and Dr. Johnson, the second
6

Id., see also N.G., Docket No. 18-1340 (issued March 6, 2019).

7

D.S., Docket No. 19-1698 (issued June 18, 2020); D.W., Docket No. 19-0402 (issued November 13, 2019); see
also Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that 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).
8

See R.M., Docket No. 19-1319 (issued December 10, 2019); Debra S. King, 44 ECAB 203, 209 (1992).

9

Id.; see also K.W., Docket No. 18-1523 (issued May 22, 2019); Bertha L. Arnold, 38 ECAB 282 (1986).

10

See T.A., Docket No. 19-1030 (issued November 22, 2019); Cathy B. Millin, 51 ECAB 331, 333 (2000).

11

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; K.C., Docket No. 18-0378 (issued June 18, 2019).

12

Id.

13

J.H., Docket No. 19-0513 (issued September 24, 2019).

14

See C.E., Docket No. 19-1923 (issued March 30, 2021); M.S., Docket No. 18-1228 (issued March 8, 2019); R.H.,
Docket No. 17-1903 (issued July 5, 2018).

6

opinion physician, who opined that only the recommended decompression of the tibia nerve was
medically necessary and causally related to the accepted left tarsal tunnel syndrome.
Consequently, it referred her to Dr. Framjee, an IME, to resolve the conflict in medical opinion
pursuant to 5 U.S.C. § 8123(a). However, Dr. Framjee was unable to clarify or elaborate on his
original report in response to OWCP’s questions and it was unlikely that he would respond to an
additional request for clarification. OWCP, therefore, properly referred appellant to a new IME.15
It referred her to Dr. Dalenberg, serving as the new IME, to resolve the conflict in medical opinion.
The Board finds that the special weight of the medical evidence rests with the opinion of
Dr. Dalenberg, who examined appellant, reviewed the medical evidence, and found that the
authorization of additional surgery regarding decompression of tibial nerve was not medically
necessary and additional surgery involving incision of lef t foot fascia, partial removal of
ankle/heel, and partial removal of foot bone were not medically necessary, or causally related to,
the accepted left ankle sprain and left tarsal tunnel syndrome.
The record reflects that Dr. Dalenberg was provided with a SOAF, which listed the
accepted conditions and noted appellant’s June 23, 2015 surgery involved a left tarsal tunnel
release with neurolysis and left partial plantar fascia release. The left partial plantar fascia release
was not authorized by OWCP and was for a condition which OWCP had not accepted. 16
Dr. Dalenberg also provided a series of questions which specifically requested that he provide
medical rationale to support his opinion on the medical necessity for the proposed surgery
involving incision of foot fascia, decompression of tibia nerve, partial removal of ankle/heel, and
partial removal of foot bone.
In his December 21, 2018 report, Dr. Dalenberg opined that the proposed decompression
of the tibial nerve was not medically necessary as it had already been performed, it did not help or
had worsened appellant’s symptoms, and it would not fully address her objectively demonstrated
numbness. He opined, however, that the proposed incision of the plantar fascia, and the partial
removal of ankle/heel, and foot bone were not medically necessary or causally related to the
accepted left ankle sprain and left tarsal tunnel syndrome. Dr. Dalenberg explained that incision
of the plantar fascia was not medically necessary for a predominant complaint of dorsal pain and
foot/ankle popping and pain and, while removal of plantar calcaneal spurs was usually done in
conjunction with plantar fascia release, it would not appreciably improve appellant’s symptoms.
With regard to the proposed partial resection of bone/ossicle excision/partial removal of foot bone,
he explained that it was not medically necessary as appellant had a dorsal foot sprain which was
probably subtly unstable given her popping complaint and management was usually closed.
In response to Dr. Howell’s April 2, 2019 report, Dr. Dalenberg, in his November 21, 2019
report, reiterated that it was not medically warranted to repeat the tarsal tunnel release. He
explained that the results of the tarsal tunnel release was uncertain, noting literature documented
worse results with revision release, that the original surgery had not been successful, and that the
15

Id.

16

When an employee claims that, a condition not accepted or approved by OWCP was due to an employment
injury, he or she bears the burden of proof to establish that the condition is causally related to the employment injury.
See T.E., Docket No. 18-1595 (issued March 13, 2019); T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K.
Asaramo, 55 ECAB 200 (2004).

7

results could be compromised by adhesive neuritis and intraneural damage. Dr. Dalenberg further
indicated that appellant’s symptomatology (dorsal foot pain and popping) were from something
other than tarsal tunnel syndrome and was not anatomically related to the accepted tarsal tunnel
syndrome. The Board further notes that, while he agreed with the dorsal fragment excision and
that such removal was usually done in conjunction with plantar fascia release, he opined that the
procedure was not for a diagnosis in the SOAF and was unrelated to the accepted ankle sprain and
tarsal tunnel syndrome. As previously discussed, OWCP has not accepted an employment-related
plantar fasciitis condition and appellant has failed to meet her burden of proof to establish her
burden of proof.
In situations where the case is referred to an IME for the purpose of resolving a medical
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight. 17 The Board finds that Dr. Dalenberg provided
a well-rationalized opinion based on a complete background, his review of the SOAF, the medical
record, and his examination findings. Thus, Dr. Dalenberg’s opinion that the requested procedures
were not medically warranted for the accepted conditions is entitled to the special weight of the
evidence.18
The Board further finds that Dr. Howell’s reports, are insufficient to overcome the special
weight accorded to Dr. Dalenberg because reports from a physician who was on one side of a
medical conflict resolved by an IME are insufficient to overcome the special weight accorded the
report of the IME or create a new conflict. 19
The only limitation on OWCP’s authority in approving or denying service under FECA is
one of reasonableness. 20 OWCP obtained an impartial medical examination by Dr. Dalenberg who
opined that the requested surgical procedures were not med ically warranted for the accepted
conditions. It, therefore, had sufficient evidence upon to deny surgery and did not abuse its
discretion.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for authorization of
additional surgery.

17

See D.S., Docket No. 19-1698 (issued June 18, 2020); C.W., Docket No. 17-0918 (issued January 5, 2018);
Patricia J. Glenn, 53 ECAB 159 (2001).
18

See D.S., id., P.F., Docket No. 16-0693 (issued October 24, 2016).

19

J.M., Docket No. 18-1387 (issued February 1, 2019); D.M., Docket No. 17-1992 (issued September 12, 2018);
S.F., Docket No. 17-1427 (issued May 16, 2018).
20

See T.A., Docket No. 19-1030 (issued November 22, 2019); Cathy B. Millin, 51 ECAB 331, 333 (2000).

8

ORDER
IT IS HEREBY ORDERED THAT the August 21, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 9, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF AGRICULTURE, ANIMAL
& PLANT HEALTH INSPECTION SERVICE
(APHIS), Mayaguez, PR, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Stephanie Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0276
Issued: April 20, 2020

Case Submitted on the Record

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

JURISDICTION
On November 19, 2018 appellant, through counsel, filed a timely appeal from an
October 29, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the October 29, 2018 decision, additional evidence was submitted to OWCP and
on appeal. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the
evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will
not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded
from reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that an injury
occurred in the performance of duty, as alleged.
FACTUAL HISTORY
On March 21, 2014 appellant, then a 59-year-old entomologist, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome and right
lateral epicondylitis when moving household items in preparation for her job-related relocation
from Louisiana to Puerto Rico. She reported that she was unable to finish packing in order to
relocate by August 26, 2013 due to “pain in both hands, numbness, and the inability to appreciate
or grasp objects.” Appellant noted that she first became aware of her condition on January 27,
2005 and of its relationship to her federal employment on August 20, 2013. On the reverse side
of the claim form, appellant’s supervisor, A.B. challenged appellant’s occupational disease claim
indicating that appellant never reported to duty, that she had a prior claim alleging the same
issues/conditions for which she filed a Form CA-2a under OWCP File No. xxxxxx935,4 and that
appellant had submitted a retirement application.
By development letter dated March 28, 2014, OWCP advised appellant of the type of
factual and medical evidence needed to establish her claim. It provided a questionnaire for her
completion and afforded her 30 days to provide the necessary evidence. In a separate development
letter of even date, OWCP requested that the employing establishment address appellant’s
allegations pertaining to her occupational disease claim.
OWCP subsequently received a January 24, 2014 narrative statement, wherein appellant’s
supervisor, A.R., related that on June 9, 2013 appellant accepted a full-time entomologist
(identifier) position in Puerto Rico and that she was to report to the Plant Protection and Quarantine
(PPQ) Office there on Monday, August 5, 2013. A.R. indicated that he had been attentively
working with appellant in many aspects, particularly providing her abundant leave time, in order
for her to conclude her arrangements and report to the Puerto Rico duty station. He noted that
because of her failure to report to duty, she was placed in an absent without leave (AWOL) status
and her pay was stopped on February 10, 2014.
By letter dated March 19, 2014, the employing establishment controverted the claim
contending that the alleged injury did not occur in the performance of duty. It reported that
appellant had received an Equal Employment Opportunity Commission (EEOC) default judgment
in a lawsuit against the employing establishment in which it was ordered to “instate” her to the
position of entomologist in Puerto Rico, and provide her with benefits and leave retroactive to
March 14, 2005. Back pay was awarded for two months in 2005 and then resumed in March 2013.
On June 9, 2013 appellant accepted the offer of reinstatement, and agreed to report for duty in
Puerto Rico on August 5, 2013. The employing establishment related that, instead of reporting to
work, appellant requested leave without pay through September 4, 2013, and then subsequently
requested sick leave through January 2, 2014. Most recently by letter dated January 24, 2014, it
4

Appellant has a January 27, 2005 occupational disease claim which was accepted for bilateral carpal tunnel
syndrome, right ring finger trigger (acquired), lesion of right ulnar nerve, right lateral epicondylitis, and sprain of
elbow and forearm radial collateral ligament under OWCP File No. xxxxxx935. Appellant’s claims have not been
administratively combined.

2

again instructed appellant to report to her duty station in Puerto Rico on February 10, 2014, but
appellant had failed to report to duty. The employing establishment concluded that because
appellant never reported for duty, the alleged injury did not occur within the performance of duty.
On April 2, 2014 appellant responded to OWCP’s development questionnaire noting that
she had previously sustained a work-related injury on January 27, 2005 under OWCP File No.
xxxxxx935 which was accepted for bilateral carpal tunnel syndrome, bilateral cubital tunnel
syndrome, right ring finger trigger (acquired), lesion of right ulnar nerve, and right lateral
epicondylitis. She reported that the employing establishment “instated” her as a result of an EEOC
award to entomologist (nonselection in 2005) and had not offered her relocation assistance, which
would have relieved her of the tasks of packing her household for relocation. Instead, the
employing establishment “demanded” that appellant sell her home in Louisiana and move in 90
days, causing her extreme stress, anxiety, and a flare up of her carpal tunnel symptoms. Appellant
reported experiencing pain and numbness in her hands after packing, lifting, and moving
household packing boxes. She described the exposure which specifically caused her condition,
reporting that she packed household items from May through August 2013 at an average of 15
hours a week, and the packing involved pulling, pushing, and lifting boxes weighing 10 to 20
pounds. By the end of August, appellant’s carpal tunnel syndrome symptoms had returned and
she could no longer grasp objects. In support of her claim, she submitted medical reports
documenting treatment for her condition.
By decision dated May 12, 2014, OWCP denied appellant’s claim finding that she had not
established the medical component of fact of injury.
On March 28, 2016 appellant requested reconsideration of OWCP’s decision. She argued
that the employing establishment was negligent by not offering her relocation services, light duty
and accommodation with her reinstatement, and by challenging the merits of her claim. Appellant
submitted factual and medical evidence in support of her claim.
By decision dated May 4, 2016, OWCP denied appellant’s reconsideration request, finding
that it was untimely filed and failed to establish clear evidence of error.
On April 21, 2017 appellant, through counsel, again requested reconsideration. In an
accompanying appeal brief, counsel reported that, on June 9, 2013, appellant accepted an offer as
a full-time entomologist in Puerto Rico. On August 26, 2013 appellant exacerbated her preexisting
bilateral carpal tunnel syndrome and right lateral epicondylitis while packing her household items
for her relocation to Puerto Rico. Counsel argued that because appellant’s preexisting injury was
exacerbated by a condition of her federal employment, namely her relocation to Puerto Rico, her
disability was compensable as having resulted from an employment injury.
By decision dated September 18, 2017, OWCP modified the May 4, 2016 decision. It
determined that medical evidence submitted in support of appellant’s claim was found in OWCP
File No. xxxxxx935 prior to the May 12, 2014 decision. Therefore, OWCP conducted a merit
review and found that the medical component of fact of injury had been established. However, it
denied the claim, finding that appellant had not established that the injury occurred in the
performance of duty, as appellant had not yet begun to work when she was packing at home to
relocate to Puerto Rico for her employment as an entomologist.

3

On September 5, 2018 appellant, through counsel, requested reconsideration. Counsel
submitted a brief in support of appellant’s claim arguing that her injury occurred in the
performance of duty when appellant was packing her work materials for relocation to Puerto Rico.
She contended that on August 26, 2013, as appellant was preparing for her transfer to Puerto Rico,
she exacerbated her preexisting bilateral carpal tunnel syndrome and right lateral epicondylit is
while she was packing her work material for the relocation.
With the request for reconsideration, appellant submitted a May 1, 2018 affidavit which
provided a history of her injury and employment issues. She recounted that the March 27, 2013
EEOC decision found that she was discriminated against when she was not hired for employment
in Puerto Rico and found that she suffered from bilateral carpal tunnel syndrome due to use of
heavy equipment while performing her employment duties. Appellant reported that the decision
ordered that she be instated to the position of entomologist in Puerto Rico through an unconditiona l
offer. She argued that she was instated on March 13, 2013 and requested accommodation to be
reassigned based on her physician’s report, but the employing establishment determined that
reassignment was not necessary because there were no medical restrictions which kept appellant
from performing her critical duties. Appellant referenced documentation from the employing
establishment which she argued established that she was an employee from the date of the June 9,
2013 acceptance. On the date of the alleged injury, she explained that she was at home packing
materials she needed as an entomologist in Puerto Rico. The packing included boxes of reference
materials and research materials from personal archives needed for difficult taxonomic
identiﬁcations and research. Appellant reported that the duties of her position required that she be
“instated” and report to headquarters by September 1, 2013. Thus, she was on the job and at work
performing the duties tasked. Appellant reported that her injury was cumulative from packing
beginning on the date of “instatement.” She explained that the various boxes she packed contained
research materials and books that she alleged were critical for her employment.
Appellant submitted numerous documents in support of her claim including partial pages
of a March 14, 2014 agency certification of reassignment and accommodation efforts from D.W.,
the reasonable accommodations program coordinator. In this document, the employing
establishment reported that it made every effort to accommodate appellant’s carpal tunnel
syndrome by agreeing to purchase a $90,000.00 microscope and ergonomic office furniture.
Further, appellant’s supervisor eliminated all nonessential job functions.
Appellant provided an acceptance form for a full-time entomologist GS-12 position in
Puerto Rico which she had signed on May 14, 2013. The form does not contain any other
signatures. E-mail correspondence dated July 29 to August 23, 2013 was also submitted, including
a partial July 29, 2013 e-mail from another employing establishment employee, M.G., with the
subject line addressed “RE: Site Visit.” M.G. replied to appellant by stating that he was not certain
why she was addressing her questions to him or why she was confused over her employment status.
He noted that she had accepted her position on June 9, 2013 with the understanding that she would
report for duty in Puerto Rico on August 5, 2013. M.G. further stated that her instatement as an
employee of the employing establishment occurred when she accepted the position on June 9, 2013
and from that moment on, she had been an employee of the agency and subject to the rules of
responsibilities and conduct obligations just the same as every other USDA employee. He reported
that further employment questions should be directed to her supervisor and human resources.
A July 30, 2013 e-mail from L.W., the employing establishment’s State Plant Health
Director for Puerto Rico, reported that a conference call took place on that same date with herself,
4

appellant, and A.R., appellant’s supervisor. L.W. provided a summary of the conversation which
addressed appellant’s concerns, start date, and accommodations for relocation to Puerto Rico.
Appellant reported that she would not be reporting to work until September 3, 2013, if she was
able to find an airline ticket for that date, as she had two upcoming medical appointments in
August. She further indicated that she needed time to pack and move out of her house. L.W. made
appellant aware that there were no relocation benefits approved and that as a regular employee, if
she was not working as scheduled, she must request some sort of approved leave. Appellant
acknowledged that she was aware that relocation expenses were not part of the agreement. She
reported that she would be requesting leave without pay as she was not sure how much leave she
had. Appellant reported that she was restricted to light-duty work and that she would bring and
use her props to make sure the working conditions would not impact her medically. L.W. informed
her that if she needed any props they would be procured by the employing establishment.
By decision dated October 29, 2018, OWCP denied modification of the September 18,
2017 decision finding that appellant had not established that the injury occurred in the performance
of her federal employment duties, as alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 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
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”8 For
purposes of awarding compensation benefits under FECA, section 8101(1) defines employee, in
relevant part, as a civil officer or employee in any branch of the Government of the United States
or as an individual rendering personal service to the United States similar to the service of a civ il
officer or employee of the United States. 9 In determining whether a claimant is an employee for
purposes of compensation, the Board will consider the particular facts and circumstances
surrounding his or her employment. 10

5
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

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).
8

5 U.S.C. § 8102(a).

9

Id. at § 8101(1).

10

Wendy S. Warner, 38 ECAB 103 (1986).

5

The phrase “sustained while in the performance of duty” has been interpreted by the Board
to be the equivalent of the commonly found prerequisite in workers’ compensation law of “arising
out of and in the course of employment.”11 The phrase “in the course of employment” is
recognized as relating to the work situation, and more particularly, relating to elements of time,
place, and circumstance. To arise in the course of employment, an injury must occur at a time
when the employee may reasonably be stated to be engaged in the master’s business, at a place
where the employee may reasonably be expected to be in connection with the employment, and
while he or she was reasonably fulfilling the duties of his employment or engaged in doing
something incidental thereto. 12 This alone is insufficient to establish entitlement to benefits for
compensability. The concomitant requirement of an injury “arising out of the employment” must
be shown, and this encompasses not only the work setting, but also a causal concept, the
requirement being that the employment caused the injury. 13
As has been explained by A. Larson, in his treatise, The Law of Workers’ Compensation,
in addressing an injury which occurs between hiring and the start of work: “When, as often
happens in these cases, there is a substantial interval between the time when the employee receives
notice to report for work later and the later time at which the employee’s active service begins, an
injury in the meantime, even on the premises, is covered only if there is a relation between the
claimant’s activity when injured and the employment.”14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that an injury
occurred in the performance of duty, as alleged.
As previously noted, to arise in the course of employment, an injury must occur at a time
when the employee may reasonably be stated to be engaged in the master’s business, at a place
where the employee may reasonably be expected to be in connection with the employment, and
while she was reasonably fulfilling the duties of her employment or engaged in doing something
incidental thereto.15
While appellant had accepted the offer for the entomologist position on June 9, 2013, she
never reported to work in Puerto Rico to perform any of her employment duties.16 The record
reflects that while appellant was expected to report to her new assignment on August 5, 2013, she
instead requested leave and remained in leave status as she continued packing in preparation of
her job-related relocation to Puerto Rico.

11

See M.T., Docket No. 17-1695 (issued May 15, 2018); S.F., Docket No. 09-2172 (issued August 23, 2010);
Charles Crawford, 40 ECAB 474, 476-77 (1989).
12

See M.T., id.; Mary Keszler, 38 ECAB 735, 739 (1987).

13

See M.T., supra note 11; Eugene G. Chin, 39 ECAB 598, 602 (1988).

14

A. Larson, The Law of Workers’ Compensation § 26.02 (5) (June 2016).

15

See M.T., supra note 11; Mary Keszler, supra note 12.

16

Id.

6

The Board has previously considered factually similar cases wherein an injury was alleged
while the claimant was packing items at home in anticipation of a job-related relocation, and the
Board has found that injuries sustained under such circumstances are not sustained in the
performance of duty.
In Zahra Musa Anise-Levine,17 the claimant alleged that she sustained injury while packing
items at home during a day off in anticipation of a relocation move. The Board found that
appellant’s injury was sustained outside of regular work hours preparing for a move related to a
job change. Even though the employing establishment had authorized payment of moving
expense, and claimant had been directed by the employing establishment to pack certain personal
effects, these circumstances did not indicate that the injury occurred while appellant was in the
performance of duty.
In Mary Patania,18 the claimant alleged that she sustained injury while packing personal
belongings at home related to her employing establishment transfer from Japan to Alaska. The
employing establishment had provided moving services and appellant was not actually required to
pack any work-related or personnel belongings. The Board concluded that injuries sustained by
employees outside of their regular work hours while at home preparing for a move due to a job
change are not sustained in the performance of duty.
In the present case, as in the prior cited cases, appellant was in leave status and was packing
at her home in preparation of a job-related relocation at the time of her alleged injury. Thus, the
Board finds that appellant was not injured in the performance of duty, as alleged.
As appellant has not established that she was in the performance of duty at the time of her
alleged injury, 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.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that an injury
occurred in the performance of duty, as alleged.

17

34 ECAB 716 (1983).

18

Docket No. 93-0349 (issued January 7, 1994).

7

ORDER
IT IS HEREBY ORDERED THAT the October 29, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 20, 2020
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-1075
Issued: March 18, 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 July 7, 2021 appellant filed a timely appeal from a June 17, 2021 nonmerit decision of
the Office of Workers’ Compensation Program (OWCP). As more than 180 days elapsed from
OWCP’s last merit decision, dated May 11, 2020, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On February 27, 2020 appellant, then a 79-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed actinic keratosis and basal cell carcinoma
1

5 U.S.C. § 8101 et seq.

due to factors of his federal employment, including exposure to the ultraviolet rays from the sun.
He noted that he first became aware of the condition on September 26, 2007 and realized its
relationship to his federal employment on February 18, 2020. In an attached February 28, 2020
statement, appellant detailed his exposure to the sun, both on and off the job . He also cited to prior
Board decision pertaining to causal relationship.
In a February 23, 2020 report, Dr. Suzette Sanchez, an osteopath specializing in
dermatology, noted that appellant had worked for the employing establishment for over 30 years
and had spent most of his eight-hour workday outside delivering mail. She reported that appellant
had previously been treated for actinic keratosis and basal cell carcinoma on his upper mid
forehead in 2017 and was seen on February 18, 2020 for recurring actinic keratosis on his right
forehead. Dr. Sanchez indicated that actinic keratosis and basal cell carcinoma is a skin cancer,
which directly correlates with high amounts of past sun exposure. She noted that appellant had a
lifetime of sun exposure and opined, with a reasonable degree of medical certainty, that his
extensive time spent outside in the sun delivering mail contribu ted to the development of actinic
keratosis and basal cell carcinoma. An April 28, 2017 dermatopathology laboratory report was
attached, which identified appellant’s biopsied specimen as basal cell carcinoma.
In an April 2, 2020 development letter, OWCP informed appellant of the deficiencies of
his claim. It advised him of the type of evidence needed to establish his claim and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to respond.
In an April 6, 2020 letter, appellant responded to OWCP’s April 2, 2020 development
letter. He also resubmitted his previous correspondence and evidence.
By decision dated May 11, 2020, OWCP denied the claim, finding that the medical
evidence of record was insufficient to establish that the claimed medical conditions were causally
related to the accepted work events.
On June 1, 2021 appellant requested reconsideration an appeal request form. In an
accompanying May 27, 2021 letter, he argued that OWCP never mentioned nor considered his
April 6, 2020 submission, which contained relevant information. Appellant further argued that
Dr. Sanchez was not required to delineate the percent of non-federal or federal exposure
contribution to his skin cancer, only that his federal employment contributed to the development
of his skin cancer. In support of his argument, he again cited to the same Board precedent as cited
in his February 28, 2020 statement.
By decision dated June 17, 2021, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.2 This discretionary authority, however, is subject to certain restrictions. For
2

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).

2

instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 3 Timeliness is determined by the document receipt date, i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS). 4
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 5
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 6 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of
OWCP.7 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record. 8
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP. 9 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence, which does not raise a
substantial question concerning the correctness of OWCP’s decision, is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.10
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence, which on its face demonstrates that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report, which if submitted before the denial was issued, would
have created a conflict in medical opinion requiring further development, is not clear evidence of

3

20 C.F.R. § 10.607(a).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 September 2020).

5

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
6

See 20 C.F.R. § 10.607(b); D.M., Docket No. 21-0261 (issued September 29, 2021); M.H., Docket No. 18-0623
(issued October 4, 2018); Charles J. Prudencio, 41 ECAB 499 (1990).
7

D.M., id.; L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued
April 15, 2010). See also 20 C.F.R. § 10.607(b).
8

J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

9

See D.M., supra note 6; S.C., Docket No. 18-0126 (issued May 14, 2016).

10

C.M., Docket No. 19-1211 (issued August 5, 2020).

3

error.11 The Board makes an independent determination of whether a claimant has demo nstrated
clear evidence of error on the part of OWCP. 12
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
On June 1, 2021 appellant filed a request for reconsideration. As this request was received
more than one year after the latest merit decision, dated May 11, 2020, the request for
reconsideration was untimely filed pursuant to 20 C.F.R. § 10.607(a). 13 As such, appellant must
demonstrate clear evidence of error with respect to OWCP’s last merit decision. 14
In support of his untimely reconsideration request, appellant argued that OWCP did not
review all the documents he submitted. He also argued that Dr. Sanchez was not required to
delineate the percent of non-federal or federal exposure contribution to his skin cancer, but that
she need only to opine that his federal employment contributed to the development of his skin
cancer. In support of his argument, appellant cited to Board precedent for the proposition that it
is not necessary to show a significant contribution of employment factors to a diagnosed condition
to establish causal relationship.15 His argument, however, failed to sufficiently explain how this
legal precedent in conjunction with Dr. Sanchez February 23, 2020 report raises a substantial
question as to the correctness of OWCP’s May 11, 2020 merit decision.16
The Board, thus, finds that appellant has not raised an argument or submitted an y evidence
that manifests on its face that OWCP committed an error in denying his occupational claim.17 As
such, his untimely request for reconsideration failed to demonstrate clear evidence of error.18

11

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 4 at Chapter 2.1602.5(a) (September 2020).

12

D.S., Docket No. 17-0407 (issued May 24, 2017).

13

20 C.F.R. § 10.607(a).

14

20 C.F.R. § 10.607(b); see D.M., Docket No. 21-0261 (issued September 29, 2021); R.T., Docket No. 19-0604
(issued September 13, 2019); see Debra McDavid, 57 ECAB 149 (2005).
15

C.H., Docket No. 20-0194 (issued August 26, 2021); F.K., Docket No. 19-1804 (issued April 27, 2020; J.B.,
Docket No. 17-2021 (issued August 8, 2018); G.G., Docket No. 17-0504 (issued August 8, 2017); Beth C. Chaput, 37
ECAB 158 (1985) (it is not necessary to show a significant contribution of employment factors to a diagnosed
condition to establish causal relationship).
16

See O.K., Docket No. 21-0708 (issued September 29, 2021); T.C., Docket No. 19-1709 (issued June 5, 2020);
B.W., Docket No. 19-0626 (issued March 4, 2020).
17

O.K., id., S.C., Docket No. 19-1424 (issued September 15, 2020).

18

Id.

4

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration, finding
that it was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the June 17, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 18, 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

5


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

)
)
)
)
)
)
)
)
)

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

Docket No. 17-1895
Issued: March 6, 2018

Case Submitted on the Record

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

JURISDICTION
On September 7, 2017 appellant filed a timely appeal from an August 3, 2017 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 the claim.
ISSUE
The issue is whether appellant has met his burden of proof to establish an acute
respiratory episode causally related to an accepted June 8, 2017 employment incident of
chemical exposure.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 23, 2017 appellant, then a 56-year-old medical support assistant, filed a
traumatic injury claim (Form CA-1) alleging that exposure to fumes from floor cleaning
chemicals on June 8, 2017 caused him difficulty breathing and sinus congestion. He alleged that
the treated floor was in a “closed down area with poor ventilation.” Appellant stopped work on
June 10, 2017 and was hospitalized from June 11 to 14, 2017. He returned to full-duty work on
June 19, 2017. On the reverse of the claim form, appellant’s supervisor confirmed that, on
June 8, 2017, a private maintenance company had stripped and cleaned an office floor in an area
adjacent to appellant’s workstation. The supervisor requested that the maintenance workers
close the office door to avoid spreading the odor.
In a June 23, 2017 form, appellant noted that he currently received military disability
benefits for service-connected asthma.
In a June 28, 2017 letter, OWCP notified appellant of the type of additional evidence
needed to establish his claim, including a diagnosis of a condition resulting from the alleged
chemical exposure, and his physician’s explanation as to how that exposure would have caused
the diagnosed condition. It afforded him 30 days to submit the requested evidence.
Appellant responded by June 26, 2017 letter, in which he contended that Team
Leader G.E. would testify that, on June 8, 2017, appellant reported feeling ill due to exposure to
the “cleaning of an office.” He submitted June 26, 2017 statements from coworkers C.R. and
V.M. which corroborated that there was a strong odor from floor cleaner chemicals in appellant’s
work area on June 8, 2017.
In a June 26, 2017 employing establishment incident report, appellant alleged that, at
7:00 a.m. on June 8, 2017, he experienced shortness of breath which he attributed to floor
stripping and waxing in the secretary’s office. Appellant asserted that the area was poorly
ventilated. He called in sick on June 9, 2017 due to shortness of breath affecting his preexisting
asthma. Appellant took asthma medication. As his symptoms did not improve, he sought
treatment at a hospital emergency room on June 10, 2017, where he was treated and released.
Appellant continued to experience symptoms of choking and again reported to the emergency
room. He was hospitalized from June 11 to 14, 2017. Appellant returned to full-duty work on
June 19, 2017, but had lingering symptoms through June 28, 2017 and continuing.
The employing establishment provided June 23 and July 17, 2017 supervisory statements,
which corroborated that, from 7:00 a.m. to 9:30 a.m. on June 8, 2017, there was a strong odor in
appellant’s work area from chemicals used to clean, strip, and wax a nearby office floor. At the
supervisor’s request, the workers closed the office door. The supervisor alleged that appellant
did not complain of any symptoms on June 8, 2017.
Appellant also submitted medical reports from his hospitalization.
Dr. Sony J.
Rodriguez-Hernandez, a Board-certified internist, noted in a June 11, 2017 report that appellant
had presented for the second consecutive day due to progressive shortness of breath and a
productive cough. He diagnosed an asthma exacerbation and acute bronchitis with hypoxemia.
In a June 12, 2017 report, Dr. Jesus M. Villafane-Moral, a resident physician, noted a history of

2

shortness of breath that appellant attributed to exposure to fumes from floor cleaning chemicals
at work. In a June 14, 2017 discharge summary report, Dr. Jossette M. Axtmayer-Tolosa, a
resident physician, noted that appellant was admitted on June 11, 2017 due to an “asthma
exacerbation secondary to acute bronchitis.” Appellant attributed his shortness of breath to
exposure to “floor cleaning fumes” at work.2
Following his hospitalization, appellant was initially followed by Dr. Angel Green, an
attending Board-certified internist. In a June 19, 2017 report, Dr. Green noted appellant’s
June 10, 2017 account of dyspnea and nasal congestion after he was exposed to floor cleaning
chemicals at work. He summarized the treatment appellant received from June 10 to 14, 2017.
In a June 28, 2017 report, Dr. Mary Ann Sanchez-Casiano, an attending internist, diagnosed
“asthma/bronchitis,” treated with steroids and bronchodilators.
By decision dated August 3, 2017, OWCP accepted that on June 8, 2017, appellant was
exposed to fumes when floors were waxed and stripped adjacent to his work area, but denied the
claim as the medical evidence of record was insufficient to establish causal relationship between
that exposure and diagnosed asthma and acute bronchitis.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden 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 determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components that must be considered conjunctively. First, the
employee must submit sufficient evidence to establish that he actually experienced the
employment incident that is alleged to have occurred.5 Second, the employee must submit
sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.6

2

Appellant also submitted a June 10, 2017 chest x-ray which was negative for abnormalities and June 12, 2017
nurse’s notes.
3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

5

Gary J. Watling, 52 ECAB 278 (2001).

6

Deborah L. Beatty, 54 ECAB 340 (2003).

3

Generally, the medical evidence required to establish causal relationship is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
Appellant claimed that he sustained an acute respiratory episode caused by exposure to
fumes from floor cleaning and waxing chemicals on June 8, 2017. OWCP accepted that this
exposure occurred at the time, place, and in the manner alleged, but denied the claim as the
medical evidence was insufficient to establish causal relationship.
Appellant submitted medical evidence in support of his claim. In a June 11, 2017 report,
Dr. Rodriguez-Hernandez, a Board-certified internist, diagnosed an asthma exacerbation with
acute bronchitis.
Dr. Sanchez-Casiano, an internist, diagnosed “asthma/bronchitis” on
June 28, 2017. Neither physician mentioned the accepted June 8, 2017 employment incident of
exposure nor provided an etiology of the diagnosed conditions. A well-rationalized opinion is
particularly warranted in this case due to appellant’s history of preexisting asthma connected to
his military service.8 Therefore, the opinions of Dr. Rodriguez-Hernandez and Dr. SanchezCasiano are insufficient to meet appellant’s burden of proof.9
Three of appellant’s treating physicians reiterated his assertion that the accepted exposure
caused a respiratory episode.
In June 12 and 14, 2017 reports, resident physicians
Drs. Villafane-Moral and Axtmayer-Tolosa noted that appellant attributed shortness of breath to
fumes from floor cleaning chemicals at work. Dr. Green, a Board-certified internist, related in a
June 19, 2017 report that appellant experienced shortness of breath following the accepted
June 8, 2017 employment incident of exposure. However, these physicians did not support a
pathophysiologic causal relationship between the accepted incident and the onset of shortness of
breath.10 Drs. Green, Axtmayer-Tolosa, and Villafane-Moral merely repeated appellant’s
allegation that the accepted June 8, 2017 employment incident of exposure caused the claimed
respiratory condition.
An award of compensation may not be based on surmise, conjecture, speculation, or on
the employee’s own belief of causal relationship.11 Appellant’s honest belief that the June 8,
7

Solomon Polen, 51 ECAB 341 (2000).

8

K.P., Docket No. 14-1330 (issued October 17, 2014).

9

Supra note 7.

10

Id.

11

D.D., 57 ECAB 734 (2006).

4

2017 employment incident caused a respiratory episode, however sincerely held, does not
constitute medical evidence necessary to establish causal relationship.12 As he has failed to
provide a rationalized medical opinion sufficient to establish causal relationship between the
claimed injury and the accepted June 8, 2017 employment incident, he has failed to meet his
burden of proof.13
Appellant may submit additional evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an acute
respiratory episode causally related to an accepted June 8, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 3, 2017 is affirmed.
Issued: March 6, 2018
Washington, DC

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

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

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

12

H.H., Docket No. 16-0897 (issued September 21, 2016).

13

Supra note 6.

5