United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Colorado Springs, CO, Employer
__________________________________________

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

Docket No. 16-0752
Issued: April 19, 2017

Case Submitted on the Record

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

JURISDICTION
On March 4, 2016 appellant filed a timely appeal from a November 13, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $10,736.75 for the period May 29 to September 15, 2010; and (2) whether OWCP
properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On May 22, 2009 appellant, then a 48-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that on October 6, 2000 she first became aware of a right
1

5 U.S.C. § 8101 et seq.

shoulder condition. However, it was not until May 19, 2009 that she realized that it had been
caused or aggravated by her federal employment duties of casing and carrying mail. OWCP
accepted the claim for right shoulder impingement, which subsequently was expanded to include
the conditions of right brachial lesions, right complete rotator cuff rupture, and right bicipital
tenosynovitis.
On February 8, 2010 appellant filed a claim for a schedule award (Form CA-7).
In support of her claim, appellant submitted a January 20, 2010 impairment rating by
Dr. John Ogrodnick, a physician Board-certified in family medicine and occupational medicine.
In this report, Dr. Ogrodnick determined that appellant had six percent permanent impairment of
the right upper extremity pursuant to the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). He diagnosed right
shoulder strain and provided physical examination findings. Dr. Ogrodnick calculated
appellant’s permanent impairment rating using the range of motion (ROM) method and, based on
Table 15-35 and Table 15-36, page 477. He determined the date of maximum medical
improvement to be December 4, 2009.
On April 5, 2010 OWCP referred Dr. Ogrodnick’s January 10, 2010 impairment rating to
a district medical adviser (DMA) for review. In a report dated April 9, 2010, Dr. Ronald J.
Swarsen, an occupational medicine specialist Board-certified in family medicine and the
designated DMA, reviewed Dr. Ogrodnick’s report and concluded that appellant had 12 percent
permanent impairment of the right upper extremity using the ROM method and basing his
findings on Dr. Ogrodnick’s ROM measurements. Dr. Swarsen requested OWCP contact
Dr. Ogrodnick to provide an addendum report to clarify his impairment rating.
Dr. Ogrodnick, in an April 20, 2010 addendum, assigned a grade modifier of 1 for
appellant’s ROM using Table 15-35, page 477 and a grade modifier of 1 for functional history
using Table 15-36, page 477. Next, Dr. Ogrodnick reported the functional history adjustment
was a grade higher than the modifier for ROM. He then multiplied 6 percent by 5 percent, which
resulted in a 0.30 percent additional impairment. The 0.30 percent was rounded to zero or no
adjustment. Dr. Ogrodnick determined that appellant had a total six percent permanent
impairment of the right upper extremity.
In a May 7, 2010 report, Dr. Swarsen reviewed Dr. Ogrodnick’s April 20, 2010
addendum. He noted the accepted conditions were right shoulder impingement and arthroscopic
subacromial decompression and determined that appellant had 13 percent right upper extremity
permanent impairment. Using Table 15-36, page 477, Dr. Swarsen assigned a grade modifier of
2 for the 12 percent impairment due to ROM deficits. Next, using Table 15-36, page 477, he
adjusted the impairment rating using functional history total ROM by 10 percent (12 percent x
10 percent or 1.2 percent adjustment), which resulted in 12 percent + 1.2 percent or 13.2 percent
right upper extremity impairment. Dr. Swarsen rounded the number down to 13 percent.
By decision dated May 26, 2010, OWCP granted appellant a schedule award for 13
percent permanent impairment of the right upper extremity based on Dr. Swarsen’s May 7, 2010
report. The award was for 40.56 weeks and ran from December 6, 2009 to September 15, 2010.

2

In a report dated June 24, 2013, Dr. Jack L. Rook, a Board-certified physiatrist, noted
appellant’s medical history, provided examination findings, and diagnosed chronic right shoulder
pain, diminished right shoulder ROM, and status post right subacromial decompression surgery
with rotator cuff and biceps tendon repairs. ROM findings for appellant’s right shoulder were
provided. Dr. Rook noted that appellant’s 22 percent right upper extremity impairment placed
into a grade modifier of 2 and no change in her impairment rating using Table 15-35 and Table
15-35, page 477. Using the sixth edition of the A.M.A., Guides, Dr. Rook determined that
appellant had 22 percent right upper extremity impairment.
On July 24, 2013 appellant filed a claim for an additional schedule award.
On December 12, 2013 OWCP referred Dr. Rook’s June 24, 2013 impairment rating to a
DMA for review. In a report dated December 14, 2013, Dr. Morley Slutsky, a Board-certified
occupational medicine specialist and the designated DMA, determined that a diagnosis-based
impairment (DBI) was more appropriate than ROM in calculating appellant’s impairment rating.2
He used the diagnosis of partial right shoulder rotator cuff tear and determined that appellant had
five percent right upper extremity impairment using Table 15-5, pages 401-05. Dr. Slutsky
assigned a grade modifier of 1 for diagnosis, a grade modifier of 2 for functional history using
Table 15-7, page 406; a grade modifier of 2 for physical examination findings using Table 15-8,
page 408; and a grade modifier of 2 for clinical studies using Table 15-9, pages 410-11. Using
the net adjustment formula resulted in a net adjustment of 2, which moved the default grade of C
to E and a final impairment rating of five percent.
By decision dated December 19, 2013, OWCP denied appellant’s request for an
additional schedule award. It found Dr. Slutsky’s December 14, 2013 report constituted the
weight of the evidence in establishing that appellant was not entitled to an increased schedule
award.
Dr. Rook, in a January 30, 2014 supplemental report, noted that appellant underwent a
subacromial decompression with rotator cuff repair on October 20, 2010 and underwent another
surgery for rotator cuff tear in March 2013. He explained that the original impairment rating of
13 percent for the right upper extremity was made following appellant’s October 2010 shoulder
surgery. Dr. Rook noted that her condition had deteriorated, such that she was no longer at
maximum medical improvement and had required additional surgery, which occurred in
March 2013. He explained that the earlier impairment rating was based on the ROM method as
her motion had significantly deteriorated from her prior date of maximum medical improvement.
Dr. Rook disagreed with the Dr. Slutsky’s impairment rating using DBI instead of the ROM
method.
On November 25, 2014 appellant requested reconsideration of the denial of her request
for an additional schedule award.
On February 9, 2015 OWCP referred appellant and the medical record to Dr. Hendrick J.
Arnold, III, a Board-certified orthopedic surgeon, to resolve the conflict in the medical opinion

2

Dr. Slutsky is Board-certified in occupational medicine.

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evidence between the Dr. Slutsky, the DMA, and Dr. Rook, appellant’s physician, regarding the
degree of right upper extremity permanent impairment.
In a March 12, 2015 report, Dr. Arnold, based upon a review of the medical evidence,
statement of accepted facts, and physical examination, determined that appellant had eight
percent permanent impairment of the right upper extremity using ROM findings. He noted that
the accepted conditions as partial right shoulder rotator cuff tear, bicipital tenosynovitis, and
brachial plexus lesion. Dr. Arnold accepted the date of maximum medical improvement to be
June 24, 2013. Using the ROM method and Table 15-35 and Table 15-36 at page 477, he
assigned a grade modifier of 1 or eight percent upper extremity impairment. Dr. Arnold found a
grade modifier of 2 for functional history based on a QuickDASH score of 57, a grade modifier
of 1 for physical examination. Using the net adjustment formula resulted in no net adjustment.
On April 13, 2015 OWCP referred Dr. Arnold’s March 12, 2015 impairment rating to a
DMA for review. In an April 24, 2015 report, Dr. Daniel D. Zimmerman, a Board-certified
internist and DMA, reviewed Dr. Arnold’s report and concurred with the right upper extremity
permanent impairment rating of eight percent.3 He noted that as appellant had previously
received a schedule award for 13 percent permanent right upper extremity impairment that she
was not entitled to an additional schedule award.
In an April 30, 2015 decision, OWCP found the evidence did not support an increased
impairment over the previous schedule award. It further advised appellant that a separate
decision was forthcoming addressing any overpayment.
On May 5, 2015 OWCP issued a preliminary finding that appellant had received an
overpayment of compensation in the amount of $10,736.75 for the period May 29 to
September 15, 2010. It explained the overpayment was the result of Dr. Arnold’s finding that
appellant currently had an eight percent impairment of the right upper extremity, which was a
lesser rating than the May 26, 2010 schedule award of 13 percent. OWCP further advised that
appellant was not at fault in the creation of the overpayment.
Appellant requested a pre-recoupment hearing before an OWCP hearing representative.
She also submitted a September 7, 2015 overpayment recovery questionnaire (OWCP-20) and
supporting financial documentation.
By decision dated November 13, 2015, an OWCP hearing representative finalized the
May 5, 2015 preliminary determination regarding fact and amount of the overpayment including
OWCP’s finding that appellant was not at fault in the creation of the overpayment. As to the
issue of wavier of recovery, the hearing representative denied appellant’s request as the evidence
established that appellant was capable of repaying the overpayment and it would not be against
equity and good conscience.

3

Dr. Zimmerman is a Board-certified internist.

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LEGAL PRECEDENT -- ISSUE 1
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.4 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.5 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.6
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).7 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.8
If a claimant who has received a schedule award calculated under a previous edition of
the A.M.A., Guides is entitled to additional benefits, the increased award will be calculated
according to the current, sixth edition.9 Should the subsequent calculation result in a percentage
of impairment lower than the original award, as sometimes occurs, a finding should be made that
the claimant has no more than the percentage of impairment originally awarded, that the
evidence does not establish an increased impairment, and that OWCP has no basis for declaring
an overpayment.10 However, where both the prior and subsequent ratings were calculated under

4

See 20 C.F.R. §§ 1.1-1.4.

5

For a complete loss of use of an arm, an employee shall receive 312 weeks of compensation. 5 U.S.C.
§ 8107(c)(1).
6

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

7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5(a) (February 2013).
8

Isidoro Rivera, 12 ECAB 348 (1961).

9

Supra note 7 at Chapter 2.808.9(d).

10

Id.

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the sixth edition of the A.M.A., Guides, a subsequent determination that there is a lesser degree
of impairment than previously awarded may support a finding of overpayment.11
ANALYSIS -- ISSUE 1
The issue on appeal is whether appellant received an overpayment of compensation in the
amount of $10,736.75 due to an adjustment in her schedule award determination based on new
medical evidence.
The Board finds that this case is not in posture for decision as the underlying schedule
award determination is not in posture for decision and, thus, the issues of fact of overpayment
and waiver are premature.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.12
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.13 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.14
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the November 13, 2015
decision. Following OWCP’s development of a consistent method for calculating permanent
impairment for upper extremities to be applied uniformly, and such other development as may be
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.

11

Id. at Chapter 2.808.9(e).

12

T.H., Docket No. 14-0943 (issued November 25, 2016).

13

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

14

Supra note 12.

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CONCLUSION
The Board finds this case not in posture for decision as to whether appellant received an
overpayment of compensation in the amount of $10,736.75 for the period May 29 to
September 15, 2010. In view of the Board’s decision regarding appellant’s schedule award, the
issues of whether there is an overpayment and waiver are premature.
ORDER
IT IS HEREBY ORDERED THAT the decision of the November 13, 2015 Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: April 19, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 15-0878
Issued: September 28, 2016

Case Submitted on the Record

ORDER REMANDING CASE
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On March 13, 2015 appellant filed a timely appeal from October 21, 2014 and
November 21, 2014 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
The appeal was docketed as No. 15-0878.
The Board has reviewed the record and finds that the case is not in posture for decision
and must be remanded to OWCP. The record indicates that by decision dated October 21, 2014,
OWCP found appellant forfeited compensation as he had pled guilty to making false statements
to obtain compensation benefits under 18 U.S.C. § 1920. It referred to appellant filing CA-7
forms in six different OWCP claim numbers. In a separate decision dated October 21, 2014,
OWCP found appellant was not entitled to compensation after March 24, 2014, due to his guilty
plea. On October 21, 2014 it issued a preliminary determination that an overpayment of
$47,841.70 was created. OWCP referred to five different OWCP claims for which appellant had
received compensation in determining the amount of the overpayment. The basis for the
overpayment of compensation was a finding that appellant had pled guilty to violating 18 U.S.C.
§ 1920 and that the plea had been accepted on March 21, 2014. By decision dated November 21,
2014, OWCP finalized a finding that an overpayment of $47,841.70 was created, and appellant
was at fault in creating the overpayment.

While the current OWCP file is a master file with some subsidiary files, not all of the
different claim files identified by OWCP had been properly combined under a master file. The
record before the Board is incomplete and would not permit an informed adjudication of the case
by the Board. It is necessary to review all of the identified claims in order to properly adjudicate
the forfeiture and overpayment issues. The Board also notes that while OWCP found the court
had accepted the guilty plea, the March 21, 2014 document in the record is a recommendation to
accept the plea. On appeal, appellant has indicated that additional action has occurred with
respect to legal proceedings.
The case will be remanded to OWCP. On return of the case record, OWCP should
administratively combine all of the claims identified in the forfeiture and overpayment decisions.
It should consider all of the relevant current evidence, and issue appropriate decisions that
protect appellant’s appeal rights with respect to forfeiture, termination of compensation,
overpayment, and finding of fault.
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 21 and October 21, 2014 are set aside and the case
remanded to OWCP for further action consistent with this order of the Board.
Issued: September 28, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 12-1356
Issued: December 12, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 12, 2012 appellant, through her attorney, filed a timely appeal from a March 20,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) affirming the
denial of her schedule award claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained
impairment of either upper extremity.
On appeal, appellant’s attorney contends that there is a conflict in the medical opinion
between an OWCP medical adviser and the attending physician regarding appellant’s
impairment to the upper extremities. OWCP should have referred the case to a referee physician
to resolve the conflict pursuant to 5 U.S.C. § 8123(a).
1

20 C.F.R. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on August 26, 2001 appellant, then a 39-year-old mail handler,
sustained a cervical strain/sprain while pulling trays in the performance of duty. On March 5,
2002 appellant accepted a limited-duty assignment offer as a modified mail handler.2
On October 19, 2010 appellant, through her attorney, filed a claim for a schedule award.
In an April 13, 2010 report, Dr. David Weiss, an osteopath specializing in family
practice, reviewed the medical evidence of record and noted that surgery was performed on
November 20, 2006. A follow-up magnetic resonance imaging (MRI) scan on April 15, 2009
revealed C5-7 fusion with small protrusion at C3-4 and C4-5. On May 20, 2009 an upper
extremity electromyogram (EMG) study showed mild right carpal tunnel syndrome. A right
shoulder MRI scan dated May 21, 2009 revealed distal supraspinatus tendinopathy and small
bursa fluid with questionable labral tear. Upon physical examination of the right and left
shoulders, Dr. Weiss found focal acromioclavicular (AC) joint tenderness, anterior cuff
tenderness and tenderness over the proximal third of the long head of the biceps. The right
shoulder had a positive Yergason sign. Semmes-Weinstein monofilament testing revealed
diminished sensibility at 2.83 milligrams involving the C7 dermatome on the right and on the
left.
Utilizing Table 15-21,3 on page 441, of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (hereinafter, A.M.A., Guides),
Dr. Weiss assigned appellant to class 1 for sensory deficit right C7 nerve root (radial) and found
that she had a one percent permanent impairment of the right upper extremity. Utilizing Table
15-5,4 he assigned her to class 1 for right shoulder rotator cuff tendinitis with residual loss and
found that she had a four percent permanent impairment of the right upper extremity. Dr. Weiss
concluded that appellant had a total combined five percent permanent impairment of the right
upper extremity. Utilizing Table 15-21, he assigned her to class 1 for sensory deficit left C7
nerve root (radial) and found that she had a one percent permanent impairment of the left upper
extremity. Utilizing Table 15-5, Dr. Weiss assigned appellant to class 1 for left shoulder rotator
cuff tendinitis with residual loss and found that she had a two percent permanent impairment of
the left upper extremity. He concluded that she had a total combined three percent permanent
impairment of the left upper extremity. Dr. Weiss determined that appellant reached maximum
medical improvement on April 13, 2010.
On September 25, 2011 Dr. Morley Slutsky, a medical adviser, reviewed Dr. Weiss’
April 13, 2010 report and concluded that appellant had no ratable impairment to the upper
extremities based on the accepted condition of neck strain under the sixth edition of the A.M.A.,
2

On March 22, 2006 appellant, through her attorney, filed a notice of recurrence (Form CA-2a). By decisions
dated July 26 and November 1, 2006, OWCP denied the claim for a recurrence of disability.
3

Table 15-21, pages 436-44, of the sixth edition of the A.M.A., Guides is entitled Peripheral Nerve Impairment
-- Upper Extremity Impairments.
4

Table 15-5, pages 401-05, of the sixth edition of the A.M.A., Guides is entitled Shoulder Regional Grid -Upper Extremity Impairments.

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Guides. He concurred with Dr. Weiss that maximum medical improvement was achieved on
April 13, 2010. Dr. Slutsky noted that Dr. Weiss premised his impairment ratings on
nonemployment-related conditions of right and left C7 nerve root deficits and right and left
rotator cuff tendinitis.
By decision dated October 4, 2011, OWCP denied appellant’s schedule award claim on
the basis that the medical evidence did not establish a ratable impairment of a scheduled
member. It relied upon its medical adviser’s September 25, 2011 report.
On October 6, 2011 appellant, through her attorney, requested an oral hearing before an
OWCP hearing representative, which was held on January 5, 2012. She provided testimony and
the hearing representative held the case open for 30 days for the submission of additional
evidence.
By decision dated March 20, 2012, OWCP’s hearing representative affirmed the
October 4, 2011 decision denying appellant’s claim for a schedule award. He found that
Dr. Weiss’ April 13, 2010 report was of diminished probative value.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.8 It is well established that in determining the amount of a
schedule award for a member of the body that sustained an employment-related permanent
impairment, preexisting impairments of the body are to be included.9 A schedule award is not
payable under section 8107 of FECA for an impairment of the whole person.10

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id.

8

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

9

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3(a)(3) (September 1995). This portion of OWCP procedures provide that the impairment
rating of a given scheduled member should include any preexisting permanent impairment of the same member or
function.
10

See Gordon G. McNeill, 42 ECAB 140, 145 (1990).

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A schedule award is not payable for a member, function or organ of the body not
specified in FECA or in the implementing regulations.11 As neither FECA nor the regulations
provide for the payment of a schedule award for the permanent loss of use of the back or spine,
no claimant is entitled to such an award.12 However, as FECA makes provision for the
extremities, a claimant may be entitled to a schedule award for permanent impairment to an
extremity even though the cause of the impairment originates in the spine, if the medical
evidence establishes impairment as a result of the employment injury.13
The medical evidence required to establish a 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 a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.14
ANALYSIS
The Board finds that the medical evidence fails to establish that appellant sustained
permanent impairment to a scheduled member of the body. OWCP accepted her claim for
cervical strain/sprain. Although appellant may not receive a schedule award for permanent
impairment to her back or spine,15 she may be entitled to a schedule award for any permanent
impairment to her upper extremities, provided the medical evidence establishes such
impairment.16 The Board finds the medical evidence of record does not establish that she
sustained permanent impairment to her upper extremities due to the accepted cervical condition.
The Board finds that OWCP properly relied on a September 25, 2011 report from its
medical adviser, Dr. Slutsky, who concluded that appellant had no ratable impairment of a
scheduled member under the sixth edition of the A.M.A., Guides based on the accepted strain.
OWCP’s medical adviser reviewed the medical record and found no basis for rating impairment
to a scheduled member of the body.17 He reviewed the April 13, 2010 assessment of Dr. Weiss,
11

See Tania R. Keka, 55 ECAB 354 (2004).

12

See id. FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

13

See George E. Williams, 44 ECAB 530 (1993). In 1966, amendments to FECA modified the schedule award
provision to provide for an award for permanent impairment to a member of the body covered by the schedule
regardless of whether the cause of the impairment originated in a scheduled or nonscheduled member.
14

See Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

15

5 U.S.C. § 8101(19); Patricia J. Horney, 56 ECAB 256 (2005).

16

See George E. Williams, supra note 13.

17

The Board notes that it is appropriate for OWCP’s medical adviser to review the clinical findings of the treating
physician to determine the permanent impairment. See Federal (FECA) Procedure Manual, Part 3 -- Medical,
Medical Examinations, Chapter 3.500.5(c) (September 1995); Richard R. LeMay, 56 ECAB 341 (2006).

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who based his impairment ratings on the nonemployment-related conditions of right and left C7
nerve root deficits and right and left rotator cuff tendinitis. As there conditions were not
accepted, Dr. Slutsky concluded that there was no medical evidence of impairment to the upper
extremities resulting from the accepted cervical strain. Therefore, there was no ratable
impairment of a scheduled member under the sixth edition of the A.M.A., Guides. Moreover,
the July 9, 2002 report of a Dr. Adrian S. Prawak obtained a history that appellant did not have
any radiating symptoms into her upper extremities or arms. This evidence speaks against any
preexisting conditions of the cervical spine.
Appellant did not submit sufficient medical evidence to establish that she sustained a
permanent impairment to a specified member, organ or function of the body listed in FECA or its
implementing regulations. The Board finds that she is not entitled to a schedule award as a result
of her accepted employment-related cervical strain.
On appeal appellant’s attorney asserted that the opinion of Dr. Slutsky is in conflict with
the opinion of Dr. Weiss. Although Dr. Weiss found a five percent permanent impairment of the
right upper extremity and a three percent permanent impairment of the left upper extremity under
the sixth edition of the A.M.A., Guides, the ratings were based on conditions not accepted by
OWCP as employment related, i.e., right and left C7 nerve root deficits and right and left rotator
cuff tendinitis. Appellant has not submitted medical evidence to establish permanent impairment
due to her accepted employment injury.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she is
entitled to a schedule award for an employment-related upper extremity, impairment.

5

ORDER
IT IS HEREBY ORDERED THAT the March 20, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 12, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 17-1299
Issued: October 10, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 25, 2017 appellant filed a timely appeal from a January 27, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish total disability for
the period November 28, 2016 and continuing, causally related to his accepted March 5, 2015
employment injury.

1

In his request for appeal, appellant also referred to a May 3, 2017 OWCP decision. However, the May 3, 2017
document is an OWCP informational letter referring to the January 27, 2017 merit decision.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on March 5, 2015 appellant, then a 37-year-old letter carrier,
suffered a neck sprain, thoracic sprain, lumbar sprain, lumbosacral radiculitis, and a displaced
lumbar disc when stepping out of his delivery vehicle while lifting a package. Appellant
received continuation of pay from March 6 to April 19, 2015.
Dr. J. Arden Blough, an attending Board-certified family practitioner, provided reports
from March 6 to April 6, 2015 describing the history of injury and diagnosed acute thoracic and
lumbar strains, lumbar radiculopathy, and displacement of a lumbar disc. He held appellant off
work. Dr. Blough ordered an April 1, 2015 lumbar imaging study which demonstrated disc
protrusions at L1-2 and L4-5, and annular disc bulges at L2-3 and L3-4.
Dr. Troy W. Jackson, a chiropractor, diagnosed multiple cervical, thoracic, and lumbar
subluxations based on April 6, 2015 x-rays. He provided manual manipulation therapy through
May 7, 2015.
An April 15, 2015 MRI scan study of the cervical spine demonstrated C5-6 and C6-7 disc
protrusions, foraminal stenosis at C3-4 and C7-T1, and loss of cervical lordosis consistent the
paraspinal muscle spasm.
Following continuation of pay, OWCP paid compensation for intermittent work absences
from April 20 to July 24, 2015. Appellant worked light duty for four hours a day during this
period.
Appellant was followed by Dr. Christopher Shane Hume, an attending Board-certified
orthopedic surgeon, who provided reports from April 21 to July 29, 2015 diagnosing a
lumbosacral strain, C6-7 disc herniation, cervical stenosis, cervical radicular syndrome, and
lumbar radiculopathy. Dr. Hume released appellant to full duty as of July 29, 2015.
Appellant was also followed from May 18, 2015 to August 25, 2016 by Dr. Jeffrey P.
Meyer, an attending Board-certified anesthesiologist, who diagnosed cervical radiculopathy,
cervical degenerative disc disease, brachial neuritis, and lumbosacral disc degeneration.
Dr. Meyer performed a series of epidural steroid injections, and prescribed medication and
physical therapy.3
OWCP paid wage-loss compensation from November 17 to 21, 2015. Appellant returned
to full duty on November 23, 2015.4
On April 21, 2016 Dr. Michael Reed, Jr., an attending osteopathic physician Boardcertified in family practice, diagnosed cervical degenerative disc disease, cervical radiculopathy,
and cervical neuritis.
3

Appellant participated in physical therapy from April to June 2015.

4

On June 12, 2015 appellant filed a claim for a schedule award (Form CA-7). By decision dated December 11,
2015, OWCP denied appellant’s schedule award claim, finding that the medical evidence did not establish a
permanent impairment of a scheduled member.

2

Appellant sought pain management from Dr. Terrell Phillips, an attending osteopathic
physician Board-certified in anesthesiology, who submitted an April 27, 2016 drug screening
policy and November 21, 2016 laboratory reports.
On December 6, 2016 appellant filed a claim for compensation (Form CA-7) for the
period November 28 to December 9, 2016, while working six hours a day with restrictions, and
absences on December 1, 7, and 9, 2016.
In a December 14, 2016 letter, OWCP notified appellant of the additional evidence
needed to establish his claim, including a report from his attending physician explaining how and
why the accepted conditions would disable him from work from November 28, 2016 onward. It
afforded appellant 30 days to submit such evidence.
In response, appellant provided a November 21, 2016 report from Erin Rowland-Brooks,
a physician assistant. He also submitted a November 24, 2016 report from Dr. Phillips,
restricting him to working limited duty for six hours a day “until released.”
Appellant worked six hours a day from December 1 to 9 and December 20, 2016,
December 27, 2016 to January 6, 2017, and two hours a day from January 9 to 13, 2017. He
continued to file claims for compensation (Form CA-7) for work absences.
By decision dated January 2, 2017, OWCP denied appellant’s claim for wage-loss
compensation for total disability beginning November 28, 2016. It found that he submitted no
medical evidence directly addressing total or partial disability for the claimed period. OWCP
noted that the November 21, 2016 report from the physician assistant was not medical evidence
as physician assistants are not considered physicians under FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.5 Under FECA, the term
“disability” is defined as an inability, due to an employment injury, to earn the wages the
employee was receiving at the time of the injury, i.e., an impairment resulting in loss of wageearning capacity.6 For each period of disability claimed, the employee has the burden of
establishing that he was disabled for work as a result of the accepted employment injury.7
Whether a particular injury causes an employee to become disabled for work and the duration of
that disability are medical issues that must be proved by a preponderance of probative and
reliable medical opinion evidence.8

5

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

6

See Prince E. Wallace, 52 ECAB 357 (2001).

7

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

8

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

3

The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his disability and
entitlement to compensation.9
ANALYSIS
OWCP accepted a neck sprain, thoracic sprain, lumbar sprain, lumbosacral radiculitis,
and a displaced lumbar disc due to the March 5, 2015 injury. Appellant received wage-loss
compensation for intermittent work periods through November 21, 2015. He remained under
medical care.
Appellant filed claims for compensation (Form CA-7) for the period November 28, 2016
and continuing. He has the burden of establishing, by the weight of the substantial, reliable, and
probative evidence, that he was disabled for work for the claimed period due to the accepted
injuries.10
In support of his claim, appellant submitted a November 21, 2016 report from a physician
assistant. Physician assistants are not considered physicians as defined by section 8101(2) of
FECA.11 Therefore, this report is of no probative value for the purposes of this case.12
Appellant also provided a November 24, 2016 report from Dr. Phillips, an attending
Board-certified anesthesiologist, restricting appellant to working no more than six hours a day
limited duty for an indefinite period of time. Dr. Phillips did not specify if these restrictions
were still in effect as of November 28, 2016. As Dr. Phillips did not opine that the accepted
injuries disabled appellant from work beginning on November 28, 2016, his opinion is
insufficient to meet appellant’s burden of proof.13
The Board notes that OWCP advised appellant by December 14, 2016 letter of the type of
evidence needed to establish his claim, including a physician’s well-reasoned explanation of how
the accepted injuries disabled him for work for the dates claimed. However, appellant failed to
submit such evidence. Therefore, the Board finds that appellant failed to meet his burden of
proof to establish total disability from November 28, 2016 forward due to his accepted
employment injury.
On appeal appellant contends that OWCP wrongfully denied compensation for work
absences mandated by his physician. He notes that he remains under medical treatment for
9

Fereidoon Kharabi, 52 ECAB 291 (2001).

10

Alfredo Rodriguez, 47 ECAB 437 (1996).

11

5 U.S.C. § 8101(2).

12

J.M., 58 ECAB 303 (2007). See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician
assistants, nurses and physical therapists are not competent to render a medical opinion under FECA).
13

Supra note 9.

4

cervical spine conditions. As noted above, appellant failed to submit sufficient rationalized
evidence to establish disability for the claimed period due to his accepted conditions.
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 total disability
for the period November 28, 2016 and continuing, causally related to his accepted March 5, 2015
injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 27, 2017 is affirmed.
Issued: October 10, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 08-495
Issued: August 4, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 10, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ April 9 and November 11, 2007 merit decisions concerning the
termination of her compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation effective
April 9, 2007 on the grounds that she abandoned suitable work.
FACTUAL HISTORY
The Office accepted that on November 4, 1999 appellant, then a 37-year-old food service
worker,1 sustained a right shoulder sprain, bilateral rotator cuff tears and left shoulder
impingement when she was pinned between a cart and a door at work. She underwent right
1

Appellant worked for four hours per day.

shoulder surgeries in March and December 2000 and September 2004. The procedures were
authorized by the Office.
Appellant had intermittent periods of partial and total disability and received appropriate
disability compensation from the Office.2 By 2004 she received her primary medical care for her
upper extremity conditions from Dr. Brian S. Cohen, a Board-certified orthopedic surgeon. In an
April 3, 2006 report, Dr. James Rutherford, a Board-certified orthopedic surgeon, indicated that
appellant had some residuals of her employment injuries, which prevented her from performing
her date-of-injury job. He determined that she could perform limited-duty work. Dr. Rutherford
indicated that appellant could lift, push or pull up to 10 pounds for up to two and one-half hours
per day and reach for up to two and one-half hours per day. He stated that she could not reach
above her shoulders.
On July 10, 2007 Dr. Cohen performed left shoulder surgery, including an arthroscopic
subacromial decompression, distal clavicle resection and debridement of a partial thickness
rotator cuff tear. In a September 1, 2006 report, he stated that appellant could lift, push or pull
up to 10 pounds for up to two hours per day and reach for up to two and one-half hours per day.
Dr. Cohen indicated that she could sit, walk, reach, twist, operate a vehicle, squat, kneel and
engage in repetitive wrist motions for eight hours per day. He noted that appellant could not
climb, engage in repetitive elbow motions or reach above her shoulders. Dr. Cohen indicated
that appellant could work for eight hours per day.
On October 20, 2006 the employing establishment offered appellant a limited-duty
position as a food service worker for four hours per day. The position involved assembling
meals for food service and performing inventory tasks. It required lifting, pushing or pulling up
to 10 pounds for up to two hours per day, but did not require climbing, engaging in repetitive
elbow motions or reaching above the shoulders. Appellant accepted the position and began
performing it on November 13, 2006. She last worked in the position on November 28, 2006
and indicated that she could not return to work because she was having car trouble.
In a January 31, 2007 letter, the Office advised appellant of its determination that the
food service position that she stopped performing after November 28, 2006 constituted suitable
work. It indicated that there was no medical evidence to support that appellant was physically
unable to work the job or that there had been a change in her medical condition. The Office
stated that car trouble was not a valid excuse for failure to return to work. It indicated that it had
confirmed that the position was still available.3 The Office informed appellant that her
compensation would be terminated if she did not return to the food service worker position or
provide good cause for not doing so within 30 days of the date of the letter.4

2

In a September 3, 2002 decision, the Office determined that appellant’s actual wages as a modified food service
worker fairly and reasonably represented her wage-earning capacity effective December 30, 2001.
3

The Office contacted the employing establishment by telephone on January 31, 2007 and confirmed that the
position was still available.
4

The Office asked Dr. Cohen to provide another opinion regarding appellant’s ability to perform the food service
worker position but it does not appear that Dr. Cohen responded to this request.

2

Appellant did not respond to the Office’s January 31, 2007 letter. In a March 14, 2007
letter, the Office advised appellant that there was no medical evidence to support that she was
physically unable to work the job or that there had been a change in her medical condition. It
advised appellant that her compensation would be terminated if she did return to the position
within 15 days of the date of the letter. The Office contacted the employing establishment by
telephone on April 6, 2007 and determined that the food service worker position remained open
but that appellant had not returned to work.
In an April 9, 2007 decision, the Office terminated appellant’s compensation effective
that day on the grounds that she abandoned suitable work. It indicated that the September 1,
2007 report of Dr. Cohen, showed that appellant could perform the duties of the food service
worker position. The Office indicated that there was no medical evidence to support that
appellant was physically unable to work the job or that there had been a change in her medical
condition. It stated that car trouble was not a valid excuse for failure to return to work.
Appellant submitted a January 10, 2007 report in which Dr. Cohen stated, “She has no
use of the right shoulder at or above shoulder level and limited use below shoulder level. With
regards to the left shoulder, she has very little use at or above shoulder level, but better use below
shoulder level.” She also submitted reports of Dr. Cohen dated between May 2004 and
September 2006 and physical therapy notes dated between March and September 2006.
Appellant requested a hearing before an Office hearing representative in connection with
the Office’s April 9, 2007 termination decision. At the September 19, 2007 hearing, she, argued
that the food service worker position was not suitable because it was a part-time position.
Appellant also argued that having car trouble was a valid reason for not returning to the position.
In a November 2, 2007 decision, the Office hearing representative affirmed the April 9,
2007 decision. He found that appellant had not submitted medical evidence or argument
justifying her failure to return to work in the food service worker position.
LEGAL PRECEDENT
Section 8106(c)(2) of the Federal Employees’ Compensation Act provides in pertinent
part, “A partially disabled employee who ... (2) refuses or neglects to work after suitable work is
offered ... is not entitled to compensation.”5 However, to justify such termination, the Office
must show that the work offered was suitable.6 An employee who refuses or neglects to work
after suitable work has been offered to her has the burden of showing that such refusal to work
was justified.7

5

5 U.S.C. § 8106(c)(2).

6

David P. Camacho, 40 ECAB 267, 275 (1988); Harry B. Topping, Jr., 33 ECAB 341, 345 (1981).

7

20 C.F.R. § 10.124; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

3

ANALYSIS
The Office accepted that on November 4, 1999 appellant sustained a right shoulder
sprain, bilateral rotator cuff tears and left shoulder impingement due to an incident when she was
pinned between a cart and a door at work. Appellant underwent right shoulder surgeries in
March and December 2000 and September 2004 and left shoulder surgery in July 2007. On
November 13, 2006 she began working in a limited-duty position for the employing
establishment as a food service worker for four hours per day. The position required lifting,
pushing or pulling up to 10 pounds for up to two hours per day, but did not require climbing,
engaging in repetitive elbow motions or reaching above the shoulders. Appellant last worked in
the position on November 28, 2006 and indicated that she could not return to work because she
was having car trouble. The Office terminated appellant’s compensation effective April 9, 2007
on the grounds that she abandoned suitable work.
The evidence of record shows that appellant was capable of performing the food service
worker position to which she started performing on November 13, 2006 and which the Office
determined to constitute suitable work. In a September 1, 2006 report, Dr. Cohen, an attending
Board-certified orthopedic surgeon, stated that appellant could lift, push or pull up to 10 pounds
for up to two hours per day and reach for up to two and one-half hours per day. He noted that
appellant could not climb, engage in repetitive elbow motions or reach above her shoulders.8
Dr. Cohen indicated that appellant could work for eight hours per day. The Board notes that the
duties of the food service worker position are well within the work restrictions recommended by
Dr. Cohen. There is no medical evidence of record showing that appellant’s medical condition
worsened between September 1 and November 28, 2006, the date she last worked after only
working in the position for about two weeks.
The Board finds that the Office established that the food service worker position that
appellant began performing on November 13, 2006 constituted suitable work. As noted, once
the Office has established that a particular position is suitable, an employee who abandons
suitable work or otherwise neglects to work after suitable work has been offered to her has the
burden of showing that such abandonment or neglect was justified. The Board has carefully
reviewed the evidence and argument submitted by appellant in support of her work stoppage in
the food service worker position and notes that it is not sufficient to justify her abandonment of
the position.
Appellant submitted a January 10, 2007 report in which Dr. Cohen stated, “She has no
use of the right shoulder at or above shoulder level and limited use below shoulder level. With
regards to the left shoulder, she has very little use at or above shoulder level, but better use below
shoulder level.” However, Dr. Cohen did not address whether appellant could not perform the
food service worker position around the time she stopped work in late November 2007.9
Appellant also submitted reports of Dr. Cohen dated between May 2004 and September 2006,
but these reports provide no opinion on her medical condition around the time she stopped
8

Dr. Cohen stated that appellant could sit, walk, reach, twist, operate a vehicle, squat, kneel and engage in
repetitive wrist motions for eight hours per day.
9

The Board notes that the position did not require reaching above the shoulders.

4

work.10 She argued that the food service worker position was not suitable because it was a
part-time position. Appellant also claimed that having car trouble was a valid reason for not
returning to the position. However, her contentions are not supported by Board precedent. For
these reasons, the Office properly terminated appellant compensation effective April 9, 1997 on
the grounds that she abandoned suitable work.11
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
April 9, 1997 on the grounds that she abandoned suitable work.

10

Appellant submitted physical therapy notes but physical therapists are not physicians under the Act and are not
qualified to provide the necessary medical evidence to meet a claimant’s burden of proof on a medical question.
Jane A. White, 34 ECAB 515, 518-19 (1983).
11

The Board notes that the Office complied with its procedural requirements prior to terminating appellant’s
compensation, including providing her with an opportunity to return to the food service worker position after
informing her that her reasons for abandoning the position were not valid; see generally Maggie L. Moore,
42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992). The Office properly developed the case as an
instance of abandonment of suitable work, particularly given her very brief time working in the food service worker
position. Appellant did not claim that she sustained a recurrence of disability due to her employment injuries or
changes in the duties of the food service worker position. Nor did she claim that her wage-earning capacity
determination should have been modified due to a change in her medical condition. See generally William M.
Bailey, 51 ECAB 197 (1999).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
November 11 and April 9, 2007 decisions are affirmed.
Issued: August 4, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.I., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Biloxi, MS, Employer
__________________________________________

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

Docket No. 12-1945
Issued: February 11, 2013

Case Submitted on the Record

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

JURISDICTION
On September 24, 2012 appellant filed a timely appeal from an April 12 and June 26,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted a timely request for oral argument before the Board pursuant to 20 C.F.R. § 501.5(b).
Pursuant to 20 C.F.R. § 501.5(a), oral argument may be held in the discretion of the Board. By letter dated
September 27, 2012, the Board advised appellant that, if she still desired an oral argument, to submit in writing the
issues to be argued and the need for oral argument. Appellant was asked to confirm that she would attend an oral
argument in Washington, DC. She did not respond. The Board in exercising its discretion has determined that there
is not a sufficient need for the oral argument in this case. Oral argument in this case would delay issuance of a
Board decision and would not serve a useful purpose. Furthermore, the appeal can adequately be addressed in a
decision based on the case record submitted. For these reasons, oral argument is denied.

ISSUE
The issue is whether appellant met her burden of proof to establish that she developed
respiratory conditions in the performance of duty as a Veterans Affairs (VA) nurse.
FACTUAL HISTORY
On February 24, 2012 appellant, then a 62-year-old nurse, filed an occupational disease
claim (Form CA-2) alleging that she developed respiratory illness from her employment as a VA
nurse by working in a room where the ceiling tiles were stained with mold. She first became
aware of her condition and of its relationship to her employment on January 17, 2012 when air
conditioning personnel moved ceiling tile and exposed the mold. Appellant notified her
supervisor on February 8, 2012.
By letter dated March 5, 2012, OWCP informed appellant that the evidence of record was
insufficient to support her claim because she had only submitted a Form CA-2. Appellant was
advised of the medical and factual evidence needed and asked that she respond to the provided
questions within 30 days. In another March 5, 2012 letter, OWCP requested that the employing
establishment provide information regarding appellant’s employment duties and any possible
exposure to harmful substances.
By letter dated March 20, 2012, the employing establishment stated that it was not
disputing appellant’s January 17, 2012 date of injury as failing to establish performance of duty,
fact of injury and causal relationship. It noted that it was submitting a statement from appellant’s
supervisor, appellant’s statement with photographs attached, medical reports, an e-mail from a
safety specialist regarding the pollen count in January 2012 and an air quality sampling report.
In medical reports dated June 12, 2009 to January 27, 2010, Dr. C.E. Guice, a Boardcertified otolaryngologist and surgeon, reported that appellant complained of mid-facial pressure,
discomfort, thick postnasal drainage, phlegm and sore throat. Upon physical examination, he
diagnosed chronic persistent maxillary sinusitis, allergic and inflammatory sinusitis, allergic
rhinitis and nasal congestion. Dr. Guice noted that appellant submitted for allergy testing which
revealed multiple positives. He recommended intranasal sprays and allergy shots which were
unsuccessful and opined that she could consider evaluation for hormone replacement as an
alternative option.
In medical reports dated December 31, 2007 to February 17, 2012, Dr. Stephen L.
Harless, Board-certified in family medicine, reported that appellant complained of laryngitis,
fever, drainage and congestion. In a November 21, 2011 medical report, he stated that physical
examination revealed allergic rhinitis and decreased range of motion in the neck and shoulder.
Dr. Harless diagnosed epistaxis and chronic pain in relation to C7 disc and shoulder injury from
an October 10, 2006 workers’ compensation claim. In a January 19, 2012 report, he diagnosed
sinus bronchitis after complaints of sinus, sore throat, cough, cold congestion, hurting and
aching. In a February 17, 2012 medical report, Dr. Harless noted that appellant complained of
sinus, sore throat, cough, cold, congestion and crud. Appellant reported that there was mold at
her workplace which she had been exposed to, noting that the employing establishment was not

2

taking action to remove the mold. Dr. Harless diagnosed allergic rhinitis, allergic bronchitis and
mold exposure.
In a February 26, 2012 field report, Micro-Methods Lab performed indoor air quality
sampling for airborne mold in Rooms 2021 and 2022 of Building 2 at the Biloxi VA Medical
facility. The report found that air sampling for total mold spores did not indicate an elevated
mold status in any of the areas sampled at the time of the assessment.
In a March 5, 2012 memo, Murphy J. Dore, a VA safety specialist, reported that during
the time frame in question of January 12 to 21, 2012, the Biloxi Pollen Count ranged from 7.1 to
6.7. Thus, he advised that the pollen count during the week of January 17, 2012 was in the
medium category.
In a March 13, 2012 narrative statement, appellant reported that, around February 2012,
mold was visually verified on insulated pipes, pink insulation and ceiling tiles by VA
maintenance staff. She reported that she had been working in Building 2, Room 2022 since
May 2011 for five days a week, eight hours a day. Appellant stated that, beginning in May 2011,
she developed on and off mild sinus and upper respiratory symptoms. On January 17, 2012 her
symptoms exacerbated with severe coughing, sneezing, throat burning and upper airway
constriction. Appellant noted that, despite having received medication from her physician, her
cough and chest congestion persisted. The employing establishment moved her to a different
office in February 2012. Appellant further stated that she smoked about ½ to 1 packet of
cigarettes a day for approximately 20 years but quit on March 3, 2010. In support of her
statements, she submitted photographs of her office in Room 2022 including pictures of the
ceiling and pipes.
In a March 16, 2012 narrative statement, Mary Lee, appellant’s supervisor, stated that
appellant worked in Building 2 Room 2022 area for five days a week, eight hours a day from
May 1, 2011 to March 15, 2012. She noted that she was not aware of any definitive evidence of
exposure to harmful substances and the VA maintenance staff had not visually verified any mold
on insulated pipes, pink insulation or ceiling tiles. Ms. Lee reported that appellant was moved to
another office as soon as the employing establishment was notified of any potential problem.
She further stated that appellant only used 16 hours of sick leave during the time she was
working in the office she alleged contained mold. Ms. Lee concluded that the ventilation and air
circulation of the room appellant worked in was comparable to any patient bedroom in the
medical facility. An official position description for a VA staff nurse was submitted along with
appellant’s leave pattern.
By decision dated April 12, 2012, OWCP denied appellant’s claim finding that the
evidence did not establish that the occupational exposure occurred as alleged. It also noted that
she failed to establish that she sustained an injury.
On April 20, 2010 appellant requested reconsideration of OWCP’s decision. In support
of her claim, she submitted a March 21, 2012 pulmonary function analysis and an April 16, 2012
medical report from Dr. Andrew H. Rogness, Board-certified in pulmonary disease, who
reported that she had a history of Chronic Obstructive Pulmonary Disease (COPD) and had been
exposed to mold at work from ceilings and pipes. Appellant reported problems with dyspnea on

3

exertion, sneezing and cough despite her recent prescriptions. Dr. Rogness also noted rhinitis
type symptoms and a history of myocardial bridging. He noted that pulmonary function testing
revealed mild obstruction to the airflow and normal lung volumes by plethysmography.
Dr. Rogness diagnosed COPD, asthma, mold exposure, rhinitis symptoms, myocardial bridging,
hypertension and cervical spine disease. He noted that, because of appellant’s obstructive lung
disease, mold exposure should be avoided which could exacerbate her asthma.
By decision dated June 26, 2012, OWCP affirmed the April 12, 2012 decision finding
that the evidence of record failed to establish that the occupational exposure occurred as alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
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 every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.4
In order to determine whether an employee actually sustained an 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 which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.7 The opinion of the physician must be one of reasonable medical certainty
3

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

4

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

5

Elaine Pendleton, supra note 3.

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

4

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. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested and
the medical rationale expressed in support of the physician’s opinion.8
ANALYSIS
The Board finds that appellant failed to establish that she developed respiratory
conditions in the performance of duty as a VA nurse.
Appellant must establish all of the elements of her claim in order to prevail. She must
prove her employment, time, place and manner of injury, a resulting personal injury and that her
injury arose in the performance of duty. Appellant alleged that she developed respiratory illness
as a result of exposure to mold while performing her duties as a VA nurse.
Appellant has not provided sufficient detail to establish that an occupational exposure
occurred as alleged.9 She stated that she developed respiratory problems as a result of working
in Room 2202 where she was exposed to mold that was attached to the ceilings and pipes.
Appellant and her supervisor reported that she worked in Room 2022 for five days a week, eight
hours a day since May 2011. She further alleged that her respiratory symptoms began in
May 2011 and progressively worsened as a result of the mold exposure. Appellant, however, has
failed to establish that she was exposed to mold when working as a VA nurse. A February 26,
2012 Micro-Methods Lab indoor air quality sampling for airborne mold spores in Rooms 2021
and 2022 of Building 2 at the Biloxi VA Medical facility did not indicate an elevated mold status
in any of the areas sampled at the time of the assessment. Appellant’s supervisor further stated
that the VA maintenance staff had not visually verified any mold on insulated pipes, pink
insulation or ceiling times.
While appellant claims that her respiratory problems were caused by mold, there is no
factual evidence establishing that she was actually exposed to mold in the workplace. Although
medical reports from Dr. Harless and Dr. Rogness note mold exposure at work from ceilings and
pipes, this information was related to the physicians by appellant. Thus, the information
documented in these medical reports were based on appellant’s allegations rather than factual
evidence establishing mold spores in the workplace.
The medical evidence of record further fails to substantiate her claim as appellant’s
allegation is inconsistent with surrounding facts and circumstances. In her March 13, 2011
narrative statement, appellant reported that her symptoms and respiratory problems began in
May 2011 when she began working in Room 2202 and became progressively worse as she
continued to work there. The medical reports of record, however, contradict these allegations as
it appears that appellant had preexisting respiratory conditions prior to May 2011. Medical
8

James Mack, 43 ECAB 321 (1991).

9

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

5

reports submitted from Dr. Guice note appellant’s preexisting respiratory conditions and
symptoms prior to the alleged exposure in May 2011. In reports dated June 12, 2009 to
January 27, 2010, Dr. Guice stated that appellant complained of mid-facial pressure, discomfort,
thick postnasal drainage, phlegm and sore throat. Allergy testing revealed multiple positives and
he diagnosed chronic persistent maxillary sinusitis, allergic and inflammatory sinusitis, allergic
rhinitis and nasal congestion. Dr. Guice further noted that various treatments, including
intranasal sprays and allergy shots, were unsuccessful. Dr. Rogness’ April 16, 2012 medical
report also noted a preexisting condition as appellant had a history of COPD. Because of
appellant’s obstructive lung disease, he stated that mold exposure should be avoided which could
exacerbate her asthma. Dr. Rogness, however, never opined that appellant’s conditions were
caused by mold exposure as her obstructive lung disease and asthma were preexisting.
While appellant claims that her respiratory problems were caused by mold exposure in
the workplace in May 2011, Drs. Guice’s and Rogness’ medical reports contradict these
allegations. Appellant had a history of sinusitis, allergic rhinitis, nasal congestion and COPD
long before May 2011 when her alleged symptoms began. She further stated in her March 13,
2012 narrative statement that she smoked ½ to 1 pack of cigarettes a day for approximately 20
years until she quit on March 3, 2010. The March 5, 2012 memorandum from VA Safety
Specialist Mr. Dore noted that the pollen count during the week of January 17, 2012 was in the
medium category. Thus, based on appellant’s preexisting conditions, there are multiple factors
that could account for her symptoms including resilient allergies which were unsuccessfully
treated, the pollen count, COPD and her 20-year smoking history. Coupled with the fact that
mold testing revealed negative in Room 2202, she has failed to establish that she was exposed to
mold in the time, place and manner alleged.10
As appellant has failed to establish exposure to mold, she has also failed to establish a
firm medical diagnosis which could be connected to her federal employment duties. Though the
medical reports of record provide varying diagnoses, none of these conditions can be connected
to an alleged occupational exposure in the workplace as the physicians failed to provide an
opinion on the cause of appellant’s respiratory problems.11 Thus, the medical evidence of record
fails to support the surrounding facts and circumstances or establish a firm medical diagnosis
connected to appellant’s federal employment duties.12
On appeal, appellant argues that VA maintenance removed the majority of the mold prior
to the air quality study that was performed which found no mold spores in Room 2202. She,
however, failed to submit any persuasive evidence substantiating her allegations. In the instant
case, the record lacks evidence establishing the factual element of appellant’s claim, namely, that
any specific occupational exposure might have caused her injury or disease. The record also
lacks medical evidence to establish an injury caused by her employment as a VA nurse. The
Board has held that the mere fact that a condition manifests itself during a period of employment
10

Id.

11

C.f. S.A., Docket No. 10-1786 (issued May 4, 2011) (where the Board found that appellant established that the
incident occurred as alleged, as there were no inconsistent statements from her or other evidence refuting the
occurrence of the alleged incident).
12

R.M., Docket No. 11-1921 (issued April 10, 2012).

6

does not raise an inference of causal relation.13 An award of compensation may not be based on
surmise, conjecture or speculation. Because appellant did not submit sufficient evidence
demonstrating the alleged occupational exposure actually occurred as alleged, OWCP properly
denied her claim.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
developed respiratory conditions in the performance of duty as a VA nurse.
ORDER
IT IS HEREBY ORDERED THAT the June 26 and April 12, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.

Issued: February 11, 2013
Washington, DC

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

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

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

13

Daniel O. Vasquez, 57 ECAB 559 (2006).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Jacksonville, FL, Employer
__________________________________________
Appearances:
Leslie Nitsch, for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1242
Issued: March 17, 2022

Case Submitted on the Record

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

On August 17, 2021 appellant sought an appeal from a purported July 14, 2021 decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-1242.2
The Board, having duly considered the matter, notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 3
This jurisdiction encompasses any final decision issued by OWCP within 180 days of the date
appellant filed his appeal. 4
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

This case has previously been before the Board. Docket No. 14-557 (issued April 6, 2015).

3

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
4

The Board notes that the case record does not contain a final adverse decision of OWCP
dated July 14, 2021. The case record does contain a letter from OWCP dated July 14, 2021 to
appellant; however, it merely apprised appellant of the appeal rights accompanying the previously
issued decisions and that no further action would be taken until he specified w hat avenue of appeal
he wished to pursue..5 The most recent final adverse decision of OWCP was dated August 30,
2017, more than 180 days before appellant’s current August 17, 2021 appeal and is not subject to
review by this Board.6 As there is no final adverse decision of OWCP over which the Board may
properly exercise jurisdiction, the Board concludes that the appeal docketed as No. 21-1242 must
be dismissed. 7 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1242 is dismissed.
Issued: March 17, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5

See Order Dismissing Appeal, K.S., Docket No. 20-1401 (issued March 17, 2021); Order Dismissing Appeal,
S.U., Docket No. 20-0636 (issued December 3, 2020) (correspondence that is purely informational in nature does not
constitute a final adverse decision of OWCP from which appellant may properly appeal).
6

See supra note 4.

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
7

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
PREUSS STATION, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 12-980
Issued: October 16, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 30, 2012 appellant filed an appeal from an October 6, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he was entitled to
disability compensation for intermittent periods from November 24, 2007 to March 15, 2008,
July 26 to November 15, 2008 and February 17 to 22, 2009.

1

5 U.S.C. §§ 8101-8193.

On appeal appellant generally asserts that the medical evidence establishes his claim.2
FACTUAL HISTORY
On October 24, 2008 appellant, then a 57-year-old city carrier, filed an occupational
disease claim alleging that standing and walking while delivering mail caused left heel pain. He
had stopped work on October 7, 2008. The employing establishment indicated that appellant had
worked modified duty from May 28 to June 3, 2008. On January 27, 2009 OWCP accepted the
condition of left plantar fibromatosis and advised him that, if he had lost time from work, to file
a Form CA-7, claims for compensation. Appellant submitted CA-7 claims for the periods
November 24, 2007 to March 15, 2008, July 15 to November 15, 2008, and February 17 to 22,
2009 and time analysis forms showing intermittent periods of disability.
In letters dated March 16, June 29 and October 9, 2009 and July 30, 2010, OWCP
informed appellant of the type of medical evidence needed to establish his claim to support wage
loss. He submitted medical reports from Kaiser Permanente dated January 8, 2008 to
February 17, 2009. These consisted of treatment notes completed by nurse practitioners,
podiatrists and physicians and disability slips dated from January 8, 2008 to February 23, 2009.
On March 10, 2008 Dr. Enna Roa Serina, a Board-certified family physician, noted that
appellant was a letter carrier and that he complained of left heel pain that had occurred since
December 2007. She provided physical examination findings and diagnosed plantar fasciitis and
essential hypertension. In an attached disability slip, the physical examination advised that
appellant could not work from March 10 through 16, 2008.
On July 21, 2008 Dr. Chwi-Young Yang, Board-certified in family medicine, noted that
appellant walked a lot at work and complained of left heel pain. He diagnosed plantar fasciitis.
In an October 2, 2008 treatment note, Dr. Robert Afshin, Board-certified in family medicine,
noted appellant’s history of plantar fasciitis and complaint of recurrent foot pain. He stated that
he suspected a recurrence of plantar fasciitis and advised that appellant should avoid pressure to
the foot.
In an attached disability slip, Dr. Afshin indicated that appellant could not work from
October 2 through 6, 2008. On October 7, 2008 Dr. Lisa Carole Andelin, a Board-certified
family physician, noted appellant’s complaint of heel pain. She provided a history that appellant
had essential hypertension that was inadequately controlled and recommended that he return in
seven days for a blood pressure check.
In a disability slip dated October 7, 2008, Dr. Andelin advised that appellant should not
work from October 7 through 28, 2008. On a treatment note dated November 4, 2008, she
advised that he was seen for blood pressure follow-up and diagnosed essentially hypertension
and plantar fasciitis. On a disability slip, Dr. Andelin advised that appellant was unable to work
2

Appellant also submitted medical evidence with his appeal to the Board. The Board cannot consider this
evidence, however, as its review of the case is limited to the evidence reviewed by OWCP at the time it issued its
final decision. 20 C.F.R. § 10.501.2(c)(1); J.T., 59 ECAB 293 (2008).

2

on November 4 and 5, 2008 and could return to modified duty on November 6, 2008 through
February 5, 2009 with a restriction that he could walk 50 minutes per hour and rest 10 minutes
each hour, and could only work 8 hours a day. In a November 19, 2009 report, she noted that he
had complained of left heel pain since November 2007, and that the symptoms were worse with
walking and prolonged standing on a hard surface. Dr. Andelin provided examination findings
of tenderness over the plantar insertion and diagnosed plantar fasciitis. She advised that
appellant’s foot condition was caused by recurrent prolonged walking and standing in his federal
employment.
On February 17, 2009 Dr. Henry M. Chai, Board-certified in family medicine, noted
appellant’s history of plantar fasciitis and advised that his foot pain had gotten worse recently
due to walking, carrying mail. He diagnosed plantar fasciitis. In a disability slip, Dr. Chai
advised that appellant should be off work from February 17 through 22, 2009.
By decision dated October 6, 2011, OWCP denied appellant’s claim for compensation on
the grounds that the medical evidence was insufficient to establish that his absence from work
was caused by the accepted condition.
LEGAL PRECEDENT
Under FECA, the term “disability” is defined as incapacity, because of employment
injury, to earn the wages that the employee was receiving at the time of injury.3 Disability is
thus not synonymous with physical impairment which may or may not result in an incapacity to
earn the wages. An employee who has a physical impairment causally related to a federal
employment injury but who nonetheless has the capacity to earn wages he or she was receiving
at the time of injury has no disability as that term is used in FECA,4 and whether a particular
injury causes an employee disability for employment is a medical issue which must be resolved
by competent medical evidence.5 Whether a particular injury causes an employee to be disabled
for work and the duration of that disability, are medical issues that must be proved by a
preponderance of the reliable, probative and substantial medical evidence.6
The Board will not require OWCP to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.7 Furthermore, it is well established that medical conclusions
unsupported by rationale are of diminished probative value.8

3

See Prince E. Wallace, 52 ECAB 357 (2001).

4

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

5

Donald E. Ewals, 51 ECAB 428 (2000).

6

Tammy L. Medley, 55 ECAB 182 (2003); see Donald E. Ewals, id.

7

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

8

Jacquelyn L. Oliver, 48 ECAB 232 (1996).

3

Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.9 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.10 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.11
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that he was
totally disabled for the periods November 24, 2007 to March 15, 2008, July 26 to November 15,
2008, and February 17 to 22, 2009 due to the accepted left plantar fibromatosis.
Appellant submitted a number of treatment notes and reports completed by nurse
practitioners. These reports, however, are of no probative value as nurse practitioners are not
“physicians” as defined under FECA.12 Dr. Yang did not provide an opinion regarding
appellant’s ability to work.
Appellant also submitted a number of reports from Drs. Serina, Afshin, Andelin and
Chai, all attending family physicians. Each physician provided a disability slip indicating that
appellant could not work, covering the periods March 10 through 16, 2008 (Dr. Serina),
October 2 through 6, 2008 (Dr. Afshin), October 7 through November 5, 2008 (Dr. Andelin) and
February 17 through 22, 2009 (Dr. Chai). While each physician diagnosed plantar fasciitis in
accompanying treatment notes in which they noted appellant’s complaints of heel pain and
provided physical examination finding, none of the physicians provided an explanation as to why
appellant could not work.
When a physician’s statements regarding an employee’s ability to work consist only of
repetition of the employee’s complaints that he or she hurt too much to work, without objective
findings of disability being shown, the physician has not presented a medical opinion on the
issue of disability or a basis for payment of compensation,13 and the Board has long held that
medical conclusions unsupported by rationale are of diminished probative value and insufficient
to establish causal relationship.14 These reports are therefore insufficient to establish that
appellant was totally disabled for the claimed periods. The Board will not require OWCP to pay
compensation for disability in the absence of any medical evidence directly addressing the
9

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

11

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

12

Section 8101(2) of FECA provides that “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); see S.E., Docket No. 08-2214 (issued May 6, 2009).
13

G.T., 59 ECAB 447 (2008).

14

See Albert C. Brown, 52 ECAB 152 (2000).

4

specific dates of disability for which compensation is claimed. To do so would essentially allow
employees to self-certify their disability and entitlement to compensation.15 As there is no
rationalized medical evidence contemporaneous with the period of claimed disability, appellant
failed to establish entitlement to wage-loss compensation for the periods.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he was entitled to total disability
compensation for the periods November 24, 2007 to March 15, 2008, July 26 to November 15,
2008, and February 17 to 22, 2009 due to the accepted left plantar fibromatosis. The Board
further finds this case is not in posture for decision regarding whether he would be entitled to
compensation for lost wages incidental to appropriate medical treatment.
ORDER
IT IS HEREBY ORDERED THAT the October 6, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 16, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

15

William A. Archer, supra note 7.

5