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

)
)
)
)
)
)
)
)

Docket No. 10-2257
Issued: June 28, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On September 4, 2010 appellant filed an application for review of an August 27, 2010
Office of Workers’ Compensation Programs’ decision, claim number xxxxxx657, which
affirmed the denial of his occupational disease claim.1 The appeal was docketed as No. 10-2257.
The August 27, 2010 decision referenced other back injury claims filed by appellant;
claim number xxxxxx361,2 for a traumatic injury which occurred on January 26, 1988; and claim
number xxxxxx401,3 for an occupational disease filed on November 25, 1997. The August 27,
2010 decision also referenced the Board’s May 18, 2010 order that remanded the case to the
Office to combine case file numbers xxxxxx657, xxxxxx361 and xxxxxx401.4 In its August 27,
2010 decision, the Office stated that all the files were combined.
1

On February 14, 2007 appellant filed an occupational disease claim alleging that his work duties caused his back
condition. He noted a date of injury of November 13, 1997.
2

The Office accepted the claim for low back strain, subluxation of the L4 vertebrae and aggravation of lumbar
disc disease.
3

The claim was denied by the Office on August 3, 1998.

4

Docket No. 09-2010 (issued May 18, 2010).

The Board has duly considered the matter and notes that, in its May 18, 2010 order, the
Board directed that, for a full and fair adjudication, the Office must combine claim numbers
xxxxxx657, xxxxxx361 and xxxxxx401. However, the record before the Board does not contain
the complete record for claim number xxxxxx401.5 In the August 27, 2010 decision, the Office
noted the history of claim number xxxxxx401 and noted the January 7, 1998 and August 3, 1998
decisions in claim number xxxxxx401.6 It noted that claim number xxxxxx657 was an exact
duplicate of claim number xxxxxx401. The Office noted reviewing all of appellant’s prior
claims of xxxxxx657, xxxxxx361 and xxxxxx401 in order to obtain a complete history of
appellant’s claims for a work-related back injury.
The Board has duly considered the matter and notes that the case is not in posture for a
decision. The claims before the Board, numbers xxxxxx657, xxxxxx361 and xxxxxx401 involve
appellant’s claims for back injuries. In the August 27, 2010 decision, the Office noted reviewing
evidence and findings made in claim number xxxxxx401 in reaching its decision. The evidence
indicates that file number xxxxxx401 has evidence germane to the Office’s decision in claim
number xxxxxx657. However, the record before the Board does not contain the complete case
record for claim number xxxxxx401. Pursuant to Office procedures, the Office has determined
that cases should be combined where correct adjudication depends on cross-referencing between
files. In the instant appeal, it appears that, for a full and fair adjudication, the Office claims
pertaining to appellant’s lumbar conditions should be combined pursuant to Office procedures.7
This will allow the Office to consider all relevant claim files in developing appellant’s claim.
Moreover, to consider appellant’s appeal at this stage would involve a piecemeal adjudication of
the issues in this case and raise the possibility of inconsistent results. It is the Board’s policy to
avoid such an outcome.8
The case will be remanded to the Office to combine the complete record for claim
number xxxxxx401 with records for claim numbers xxxxxx657 and xxxxxx361. Following this
and such other development as deemed necessary, the Office shall issue an appropriate merit
decision on appellant’s claim.

5

The only documents in claim number xxxxxx401 are a January 5, 2009 letter from appellant to the Office
requesting a copy of his case file, a February 6, 2009 Office letter to appellant regarding his request and a
February 13, 2009 telephone call memorandum regarding appellant’s request for a copy of the file.
6

On January 7, 1998 the Office denied appellant’s claim for an occupational disease and on August 3, 1998, the
Office denied modification of this decision.
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
8

See William T. McCracken, 33 ECAB 1197 (1982).

2

IT IS HEREBY ORDERED THAT the August 27, 2010 decision of the Office of
Workers’ Compensation Programs be set aside and the matter remanded to the Office for further
proceedings consistent with this order of the Board.
Issued: June 28, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Merrick, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0389
Issued: May 8, 2017

Case Submitted on the Record

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

JURISDICTION
On December 9, 2016 appellant filed a timely appeal from a November 8, 2016 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(d), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained a recurrence of disability
on March 11 and 12, 2016 causally related to accepted sacroiliitis.
FACTUAL HISTORY
OWCP accepted that on October 30, 2013 appellant, then a 45-year-old city carrier, was
kicked in the low back by a coworker and sustained sacroiliitis.2 Dr. Alexandre B. DeMoura, an

1

5 U.S.C. § 8101 et seq.

2

October 30, 2013 x-rays taken at a hospital emergency room were negative for acute fracture or subluxation.

attending Board-certified orthopedic surgeon, diagnosed sacroiliac joint syndrome.3 He held
appellant off work through December 20, 2013. Appellant participated in physical therapy.
On December 21, 2013 appellant accepted the employing establishment’s offer of fulltime, limited-duty assignment as a modified city carrier, lifting up to 50 pounds intermittently,
walking up to four hours, and reaching above the shoulder for up to eight hours.
Dr. DeMoura submitted periodic reports through March 3, 2014 diagnosing sacroiliac
joint syndrome, right-sided lumbar radiculitis, an L3 hemangioma, and a herniated L5-S1 disc.
Appellant continued working as a modified city carrier. OWCP paid compensation for
intermittent work absences due to medical appointments and physical therapy.4
In a January 7, 2016 report, Dr. DeMoura diagnosed lumbar radiculopathy, lumbar disc
displacement, and myofascial pain syndrome.5 On January 28, 2016 he diagnosed sciatica.
In a March 10, 2016 duty status report (Form CA-17), Dr. DeMoura diagnosed paraspinal
lumbar spasms. He released appellant to work on March 14, 2016.
On March 15, 2016 appellant claimed a recurrence of disability (Form CA-2a) on
March 11 and 12, 2016 due to an increase in lumbar spasms and pain. He was working full-time
modified duty at the time of the claimed recurrence. Appellant returned to limited-duty work on
March 15, 2016.
In a May 23, 2016 letter, OWCP advised appellant of the additional evidence needed to
establish his claim, including medical evidence establishing a spontaneous worsening of the
accepted condition, or withdrawal of his modified-duty position. It afforded him 30 days to
submit such evidence. Appellant responded by undated letter that he did not sustain a recurrence
of disability. He provided a June 6, 2016 duty status report (Form CA-17) from Dr. DeMoura,
finding appellant able to work eight hours a day modified duty as of March 14, 2016.
On June 16, 2016 appellant claimed an unspecified occupational disease (Form CA-2)
commencing October 30, 2013. He continued to work full-time modified duty with intermittent
absences.
On October 25, 2016 appellant telephoned OWCP, asserting that he had not intended to
claim a recurrence of disability or occupational disease. He acknowledged signing the forms, but
that his supervisor submitted them.

3

November 4, 2013 lumbar x-rays showed straightening of the lumbar lordosis indicative of muscle spasm. A
February 7, 2014 lumbar magnetic resonance imaging (MRI) scan showed a small L4-5 disc bulge, and a “small
central L5-S1 disc protrusion with proximal S1 nerve encroachment.”
4

Dr. Debora Mottahedeh, an attending osteopath Board-certified in physiatry, administered a series of sacroiliac
and lumbar injections from March 25, 2014 through September 29, 2015.
5

A January 21, 2016 lumbar MRI scan showed a persistent L4-5 disc bulge, and a small central L5-S1 disc
herniation without nerve root encroachment.

2

By decision dated November 8, 2016, OWCP denied appellant’s claim for a recurrence of
disability as he had not established that the accepted sacroiliitis spontaneously worsened or that
his modified-duty position was altered or withdrawn.
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as “an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.”6
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative, and substantial evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.7 This includes the necessity of
furnishing medical evidence from a physician who, on the basis of a complete and accurate
factual and medical history, concludes that the disabling condition is causally related to
employment factors and supports that conclusion with sound medical reasoning.8 An award of
compensation may not be made on the basis of surmise, conjecture, speculation or on appellant’s
unsupported belief of causal relation.9
ANALYSIS
OWCP accepted that appellant sustained sacroiliitis when kicked by a coworker.
Appellant returned to full-time modified duty work with intermittent absences. He claimed that
he sustained a recurrence of disability on March 11 and 12, 2014, at which time he was
performing modified duty. Appellant asserted that the accepted sacroiliitis condition became
painful spontaneously, such that he was disabled from his modified-duty position. He thus has
the burden of proof to provide sufficient evidence, including rationalized medical evidence, to
establish the causal relationship asserted.10
In support of his claim, appellant provided a March 10, 2016 duty status report (Form
CA-17) from Dr. DeMoura, an attending Board-certified orthopedic surgeon, diagnosing
paraspinal lumbar spasms. Dr. DeMoura held appellant off work through March 13, 2016. He
also submitted a June 6, 2016 duty status report, finding appellant able to perform full-time
modified duty as of March 14, 2016. However, Dr. DeMoura did not opine that the accepted
6

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2.b
(June 2013). See also Philip L. Barnes, 55 ECAB 426 (2004).
7

Albert C. Brown, 52 ECAB 152 (2000); see also Terry R. Hedman, 38 ECAB 222 (1986).

8

Ronald A. Eldridge, 53 ECAB 218 (2001); see Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

9

Patricia J. Glenn, 53 ECAB 159 (2001); Ausberto Guzman, 25 ECAB 362 (1974).

10

Ricky S. Storms, 52 ECAB 349 (2001).

3

sacroiliitis worsened spontaneously, such that appellant was disabled from performing his
modified-duty position. In this absence of such rationale, his opinion is of diminished probative
value and is insufficient to meet appellant’s burden of proof.11 Appellant did not submit
additional medical evidence addressing his condition on March 11 and 12, 2016.
OWCP advised appellant by May 23, 2016 letter to submit rationalized medical evidence
regarding whether the accepted conditions had worsened on and after March 11, 2016 as
claimed. Appellant did not submit such evidence. The Board notes that appellant contended in
an undated response and on October 5, 2016 that he did not intend to claim a recurrence of
disability. Therefore, appellant did not meet his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he sustained a recurrence of
disability on March 11 and 12, 2016 causally related to accepted sacroiliitis.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 8, 2016 is affirmed.
Issued: May 8, 2017
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
11

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
DEPARTMENT OF JUSTICE,
DRUG ENFORCEMENT AGENCY,
St. Louis, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 06-1914
Issued: January 9, 2007

Case Submitted on the Record

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

JURISDICTION
On August 14, 2006 appellant filed a timely appeal of the June 14, 2006 decision of the
Office of Workers’ Compensation Programs which denied merit review. Because more than one
year has elapsed between the most recent merit decision dated May 13, 2005 and the filing of
this appeal, the Board lacks jurisdiction to review the merits of the claim pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
On January 20, 2003 appellant, then a 69-year-old budget analyst, filed an occupational
disease claim alleging that she developed a back condition while in the performance of duty.

In support of her claim, appellant submitted reports from Dr. Michael F. Burns, a Boardcertified orthopedic surgeon, dated March 23 and June 8, 2000. Dr. Burns treated her for right
wrist carpal tunnel and a right shoulder rotator cuff tear. He advised that appellant’s work
activities included repetitively opening doors and lifting files and had aggravated her condition.
Reports from Dr. George A. Paletta, Jr., a Board-certified orthopedist, from April 18, 2000 to
August 21, 2001, noted treating appellant for bilateral knee pain and left shoulder pain. He
diagnosed exacerbation of chronic rotator cuff tendinitis and impingement syndrome related to
her job activities. In a report dated November 20, 2002, Dr. Patrick A. Hogan, a Board-certified
psychiatrist and neurologist, treated appellant for chronic low back pain. He diagnosed low back
pain without a radicular component. A magnetic resonance imaging (MRI) scan of the lumbar
spine dated November 23, 2002 revealed levoscoliosis, spurring, disc desiccation from L1 to L5,
a disc bulge at L3-4 and osteoarthritis changes in the apopyseal joints at L4-5. In a January 2,
2003 report, Dr. David G. Kennedy, a Board-certified neurosurgeon, noted that appellant’s work
duties included moving file cabinets and lifting files which caused a severe onset of low back
pain. He diagnosed sacroiliac dysfunction and recommended trigger point injections.
On July 2, 2003 the Office accepted appellant’s claim for sacroiliac dysfunction.
On April 28, 2004 appellant filed a claim for a schedule award. She submitted reports
from Dr. Rachel Feinberg, a family practitioner, dated October 23, 2003 to February 5, 2004.
Dr. Feinberg treated appellant for hip and low back pain. On January 29 and February 5, 2004
she performed sacroiliac joint injections and recommended physical therapy. On January 15,
2004 Dr. Barry I. Feinberg, a family practitioner, noted appellant’s complaints of mid and low
back pain with bending and noted improvement with trigger point injections.
In a May 4, 2004 letter, the Office advised appellant of the evidence needed to establish
her claim for a schedule award. It requested that she submit a report from her physician with
regard to any impairment in accordance with the American Medical Association, Guides to the
Evaluation of Permanent Impairment,1 (A.M.A., Guides).
An April 22, 2004 report from Dr. Kennedy noted treating appellant since January 2,
2003 and diagnosed sacroiliac joint dysfunction, left shoulder impingement and cervical and
lumbar spondylosis. He advised that she has received treatment from Dr. Barry Feinberg and
made gradual improvement; however, appellant would require future medical treatment. In a
January 5, 2005 report, Dr. Robert P. Poetz, an osteopath, noted appellant’s history and
treatment. He diagnosed osteoporosis and lumbar degenerative disc preexisting and lumbar
strain with exacerbation of osteoporosis and degenerative disc disease. Dr. Poetz opined that
appellant sustained 15 percent preexisting impairment of the whole person due to her lumbar
spine and 20 percent impairment of the whole person due to her work-related injury of
April 3, 2001.
On March 30, 2005 the Office referred the medical file to an Office medical adviser. In a
report dated April 20, 2005, the Office medical adviser noted that appellant’s condition was
accepted for sacroiliac dysfunction. He stated that Dr. Poetz’s January 5, 2005 report provided a
disability rating for conditions affecting the lumbar spine; however, these conditions were not
1

A.M.A., Guides (5th ed. 2001).

2

accepted by the Office as work related. The Office medical adviser further indicated that
disability ratings for the lumbar spine could not be derived using the A.M.A., Guides. He
concluded that there was no basis for a schedule award due to the conditions accepted by the
Office.
By decision dated May 13, 2005, the Office denied appellant’s claim for a schedule
award.
In a letter dated May 2, 2006, appellant requested reconsideration. She submitted a
November 22, 2005 letter she wrote to her representative asserting that her other conditions
should have been accepted by the Office. Appellant believed that “the conditions omitted from
the approval of the claim resulted in the denial of my claim for compensation” and requested that
the claim be expanded to include the omitted conditions. She submitted a duplicate copy of the
November 22, 2002 MRI scan of the lumbar spine and duplicate copies of reports from
Dr. Kennedy dated April 22, 2004 and Dr. Poetz dated January 5, 2005. In a treatment note
prepared by Dr. Rachel Feinberg on November 11, 2003, she noted appellant’s complaints for
sacral pain. She advised that since appellant’s last visit the pain had been isolated to a smaller
size and findings upon examination revealed smaller internal rotation of the right hip and
sacrum. Dr. Rachel Feinberg performed a trigger point injection which decreased the pain and
rotation.
By a decision dated June 14, 2006, the Office denied appellant’s reconsideration request
on the grounds that it neither raised substantive legal questions, nor included new and relevant
evidence and was, therefore, insufficient to warrant review of the prior decision.
LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act,2 the Office has the
discretion to reopen a case for review on the merits. It must exercise this discretion in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations,3 which provides that a claimant may obtain review of the merits of his or her written
application for reconsideration, including all supporting documents, sets forth arguments and
contain evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
(ii) Advances a relevant legal argument not previously considered by the (Office);
or
(iii) Constitutes relevant and pertinent new evidence not previously considered by
[the Office].”

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b).

3

Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.4
ANALYSIS
Appellant requested reconsideration of a May 13, 2005 Office decision that denied her
claim for a schedule award. However, her May 2, 2006 request for reconsideration neither
alleged, nor demonstrated that the Office erroneously applied or interpreted a specific point of
law. Additionally, appellant did not advance a relevant legal argument not previously considered
by the Office.
Appellant’s request for reconsideration referenced a letter she sent to her representative
dated November 22, 2005, in which she contended that her claim should have been accepted for
other conditions. She noted MRI scan findings and diagnoses by Dr. Kennedy and Dr. Poetz to
support her contention. Appellant believed that these conditions should have been accepted by
the Office as work related and this lack of acceptance resulted in the denial of her schedule
award claim. However, her letter did not show how the Office erroneously applied or interpreted
a point of law, nor did it advance a point of law or fact not previously considered by the Office.
The Office had previously considered the MRI scan and the reports of Dr. Kennedy and
Dr. Poetz’s in relation appellant’s claim. Appellant did not set forth a particular point of law or
fact that the Office had not considered or establish that it had erroneously interpreted a point of
law with regard to the medical evidence of record. Consequently, she is not entitled to a review
of the merits of her claim based on the first and second above-noted requirements under section
10.606(b)(2).
With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered by the Office, appellant submitted medical reports from Dr. Kennedy
dated April 22, 2004 and Dr. Poetz dated January 5, 2005 and an MRI scan of the lumbar spine
dated November 23, 2002. However, this evidence is duplicative of evidence already of record5
and previously considered by the Office in its May 13, 2005 decision. Therefore, the Office
properly determined that this evidence did not constitute a basis for reopening the case for a
merit review.
Appellant submitted a new report from Dr. Rachel Feinberg dated November 11, 2003
which noted her complaints of sacral pain. Dr. Rachel Feinberg noted findings upon physical
examination and her opinion on appellant’s status. However, this report is duplicative to
Dr. Rachel Feinberg’s previously submitted reports dated October 23, 2003, January 29 and
February 5, 2005 which were considered by the Office in its May 13, 2005 decision and found
insufficient.6 This report is also not relevant as it fails to address appellant’s claim for a schedule
4

20 C.F.R. § 10.608(b).

5

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case; see Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393,
398 (1984); Bruce E. Martin, 35 ECAB 1090, 1093-94 (1984).
6

Id.

4

award or otherwise address how any employment-related condition may have caused impairment
to a scheduled member of the body. Therefore, the Office properly determined that this evidence
did not constitute a basis for reopening the case for a merit review.
Because appellant did not show that the Office erroneously applied or interpreted a point
of law, advance a point of law or fact not previously considered by the Office, submit relevant
and pertinent evidence not previously considered by the Office, the Office properly determined
that she was not entitled to a review of the merits of her claim.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.7
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 14, 2006 is affirmed.
Issued: January 9, 2007
Washington, DC

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

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

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

7

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, METROPOLITAN
DETENTION CENTER, Brooklyn, NY,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 21-1265
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On August 19, 2021 appellant, through counsel, filed a timely appeal from a July 2, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than eight
percent permanent impairment of his left small finger for which he previously received a schedule
award.
FACTUAL HISTORY
On March 7, 2017 appellant, then a 47-year-old material handler supervisor, filed a
traumatic injury claim (Form CA-1) alleging that on February 26, 2017 he injured the left side of
his body and broke his left small finger when attempting to move a loaded laundry cart which
tipped over causing him to fall while in the performance of duty. He stopped work on February 26,
2017 and returned to work on March 7, 2017. On October 15, 2018 OWCP accepted the claim for
nondisplaced closed fracture of the distal phalanx of the left little finger and mallet finger of the
left little finger.
On July 13, 2017 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In support of his claim, appellant provided an August 3, 2017 report from Dr. John C.
L’Insalata, a Board-certified orthopedic surgeon. Dr. L’Insalata described his history of injury on
February 26, 2017 and diagnosed fracture of the distal phalanx of the left small finger with a bony
mallet component. On physical examination he found prominence over the dorsal aspect of the
distal interphalangeal (DIP) joint of the left small finger, lacking about two degrees of full
extension of the DIP joint, and 75 degrees of flexion with full strength, and intact sensory and
motor examination.
Dr. L’Insalata referred to the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides)3 and utilized the diagnosis-based
impairment (DBI) rating method to find that, under Table 15-2 (Digit Regional Grid), page 392,
the class of diagnosis (CDX) for mallet injury including avulsion fracture was a class 1 impairment,
grade C, with a default value of six percent for the digit. He assigned a grade modifier for
functional history (GMFH) of 2 based on pain symptoms with daily activities per Table 15-7, page
406. Dr. L’Insalata assigned a grade modifier for physical examination (GMPE) of 1 due to mild
decreased range of motion (ROM) of the DIP joint, pursuant to Table 15-8, page 408. He assigned
a grade modifier for clinical studies (GMCS) of 2 for associated intra-articular fracture of the distal
phalanx, which healed with prominence and gapping at the articular surface pursuant to Table 159, page 410. Dr. L’Insalata utilized the net adjustment formula (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX) = (2-1) + (1-1) + (2-1) = +2, which resulted in a grade E or eight percent permanent
impairment of the left small finger, which he converted to one percent permanent impairment of
the left hand and one percent impairment of the left upper extremity, pursuant to Table 15-12, page
421.
On July 12, 2019 Dr. Nathan Hammel, a Board-certified orthopedic surgeon, serving as a
district medical adviser (DMA), reviewed a statement of accepted facts (SOAF) and the medical
3

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

2

record, including Dr. L’Insalata’s August 3, 2017 findings. He concurred with Dr. L’Insalata’s
findings. Dr. Hammel indicated that the ROM method result could not be applied due to the lack
of triplicate measurements provided by Dr. L’Insalata. He found that the date of MMI was
August 3, 2017, the evaluation date by Dr. L’Insalata.
On October 28, 2020 OWCP requested that the DMA clarify whether the impairment rating
should be for the digit itself or extend into the adjoining area of the member, the hand or upper
extremity. In a November 17, 2020 report, the DMA found that appellant was entitled to eight
percent permanent impairment of his left small finger. He noted that consistent with OWCP
procedures the general loss of less than one digit should be computed in terms of impairments to
the digit itself and that the loss of two or more digits should be computed in terms of impairment
to the whole hand. 4 The DMA found as only one finger was involved the impairment was best
expressed as eight percent impairment of the left small finger.
By decision dated December 11, 2020, OWCP granted appellant a schedule award for eight
percent permanent impairment of his left small finger. The award ran for 1.2 weeks during the
period August 3 to 11, 2017.
On January 4, 2021 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which took place on April 21, 2021.
By decision dated July 2, 2021, the hearing representative affirmed OWCP’s December 11,
2020 decision. She found that the weight of the medical evidence established that appellant had
no greater than eight percent permanent impairment of his left finger for which he previously
received a schedule award.
LEGAL PRECEDENT
The schedule award provisions of FECA 5 and its implementing regulations 6 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.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses. 7 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).8 The Board has approved the use
4

Federal (FECA) Procedure Manual, Part 2--Claims, Schedule Award and Permanent Disability Claims, Chapter
2.808.5.e (March 2017); B.H., Docket No. 16-0252 (issued October 7, 2016); Charles B. Carey, 49 ECAB 528 (1998).
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. See also B.B., Docket No. 20-1187 (issued November 18, 2021); Ronald R. Kraynak, 53 ECAB 130 (2001).

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); id. at Chapter 2.808.5a. (March 2017).

3

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. 9
In addressing upper extremity impairments, the sixth edition requires that the evaluator
identify the impairment CDX, which is then adjusted by a GMFH, GMPE, and GMCS. 10 The net
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).11
The A.M.A., Guides also provide that ROM impairment methodology is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
DBI sections are applicable. 12 If ROM is used as a stand-alone approach, the total of motion
impairment for all units of function must be calculated. All values for the joint are measured and
added.13 Adjustments for functional history may be made if the evaluator determines that the
resulting impairment does not adequately reflect functional loss and functional reports are
determined to be reliable. 14
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments.15 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluatio n, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM); and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing th e higher
rating should be used.” (Emphasis in the original.)16

9

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

10

A.M.A., Guides 383-492.

11

Id. at 411.

12

Id. at 461.

13

Id. at 473.

14

Id. at 474.

15

FECA Bulletin No. 17-06 (May 8, 2017).

16

A.M.A., Guides 477.

4

The Bulletin further advises: “If the rating physician provided an assessment using the
ROM method and the [A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the
DMA should independently calculate impairment using both the ROM and DBI methods and
identify the higher rating for the CE [clams examiner].”17
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing
rationale for the percentage of impairment specified.18
ANALYSIS
The Board finds that this case is not in posture for decision.
In his August 3, 2017 report, Dr. L’Insalata provided one set of passive ROM
measurements for the left small finger. OWCP referred Dr. L’Insalata’s report to Dr. Hammel, its
DMA, who found that appellant had eight percent permanent impairment of the left small finger
under the DBI methodology. Dr. Hammel advised that Dr. L’Insalata’s report did not contain three
complete ROM measurements for the left small finger.
Pursuant to FECA Bulletin No. 17-06, if the ROM method of rating permanent impairment
is allowed, after review of the DBI rating, and the ROM findings are incomplete, the DMA should
advise as to the medical evidence necessary to complete the ROM method of rating if the medical
evidence of record is insufficient to rate appellant’s impairment using ROM. 19
Herein, OWCP did not follow the procedures outlined in FECA Bulletin No. 17-06 after
the DMA advised that the measurements for the left finger were incomplete and there was no
documentation to rate appellant’s permanent impairment utilizing the ROM methodology. 20
On remand OWCP shall obtain the necessary evidence as required under FECA Bulletin
No. 17-06 from Dr. L’Insalata.21 After it obtains the evidence necessary to complete the rating as
described above, the case shall be referred to a DMA to independently calculate impairment to the
left small finger using both ROM and DBI methods and identify the higher rating. 22 If
Dr. L’Insalata does not fully comply with the A.M.A., Guides, OWCP shall refer appellant to a
17

FECA Bulletin No. 17-06 (issued May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018); A.G.,
Docket No. 18-0329 (issued July 26, 2018).
18

See supra note 8 at Chapter 2.808.6f. (March 2017); see D.J., Docket No. 19-0352 (issued July 24, 2020).

19

J.L., Docket No. 19-1684 (issued November 20, 2020); R.L., Docket No. 19-1793 (issued August 7, 2020); E.P.,
Docket No. 19-1708 (issued April 15, 2020).
20

C.H., Docket No. 20-0529 (issued June 16, 2021); J.L., R.L., id.; C.T., Docket No. 18-1716 (issued
May 16, 2019).
21

J.L., id.; J.S., Docket No. 19-0483 (issued October 10, 2019).

22

See J.L., id.; J.V., Docket No. 18-1052 (issued November 8, 2018); M.C., Docket No. 18-0526 (issued
September 11, 2018).

5

specialist in the appropriate field of medicine for a second opinion evaluation. Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 2, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: March 23, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Marianna, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-1041
Issued: October 22, 2012

Case Submitted on the Record

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

JURISDICTION
On April 18, 2012 appellant filed a timely appeal from a December 5, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his 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 schedule award decision.
ISSUE
The issue is whether appellant is entitled to a schedule award for a permanent impairment
of the left lower extremity.
FACTUAL HISTORY
On January 4, 2010 appellant, then a 45-year-old correctional officer, filed a traumatic
injury claim alleging that on December 31, 2009 he injured his left leg in the performance of
duty. OWCP accepted the claim for a sprain of the left knee and leg and a rupture of the left
1

5 U.S.C. § 8101 et seq.

quadriceps tendon. On January 11, 2010 Dr. Patrick Guin, a Board-certified orthopedic surgeon,
performed a surgical repair of the left quadriceps tendon rupture.
On August 10, 2010 Adam Lee Borcik, a physical therapist, performed an impairment
evaluation at the request of Dr. Guin. He noted that appellant was currently at maximum
medical improvement following a work injury on December 31, 2009 resulting in a left knee
quadriceps tendon tear and surgery. Mr. Borcik measured range of motion of the left knee as 0
degrees extension to 135 degrees flexion on the left and 0 degrees extension and 132 degrees
extension on the right. He found full manual muscle strength of 5/5, intact sensation and a loss
of two millimeters of girth on the left side. Mr. Borcik further found mild tenderness at the
“tibial tubercle in the distal patellar tendon.” He noted that appellant had returned to his regular
work but had some “pain with running and deep squatting.” Using the American Medical
Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides),
Mr. Borcik identified the relevant diagnosis as a strain, tendinitis or ruptured tendon using the
Knee Regional Grid at Table 16-3 on page 509. He assigned appellant class 0 on the grid as he
had no “significant objective or abnormal findings of muscle or tendon injury” at the time that he
reached maximum medical improvement. Mr. Borcik further determined that appellant
experienced no deficit in motor function and could perform all daily and work-related activities
with “only reports of some difficulty with deep squatting and running.” Consequently, he found
that grade modifiers did not alter the class 0 diagnosis class and concluded that appellant had no
impairment of the lower extremity or whole person.
On August 19, 2010 Dr. Guin concurred with the findings of Mr. Borcik.
On March 9, 2011 appellant filed a claim for a schedule award. On April 5, 2011
OWCP’s medical adviser noted that appellant had excellent results following his quadriceps
tendon repair with “some residual pain on running and deep squatting.” He found that appellant
had range of motion from 0 to 135 degrees, full strength, good sensation and only a two
millimeter difference in circumference of his knees. The medical adviser determined that
Dr. Guin appropriately used the diagnosis-based impairment rating set forth in the sixth edition
of the A.M.A., Guides to find that appellant had no impairment of the left lower extremity.
By decision dated April 25, 2011, OWCP denied appellant’s claim for a schedule award
on the grounds that the medical evidence did not show that he sustained a ratable impairment of
the left lower extremity.
On May 10, 2011 appellant requested a telephone hearing before an OWCP hearing
representative. At the telephonic hearing, held on September 13, 2011, he related that he had
good range of motion but had a knot on his knee that makes kneeling difficult. Appellant further
experienced weakness walking up and down stairs and pain going down stairs. He could no
longer run because of his knee pain.
By decision dated December 5, 2011, OWCP’s hearing representative affirmed the
April 25, 2011 decision. She found that appellant had not submitted any medical evidence
showing that he had a permanent impairment.

2

On appeal, appellant related that he had a knot on his knee and that when he kneeled and
it felt like he was “kneeling on a pencil.” The knot limited his kneeling and crawling. Appellant
questioned why a reduction in mobility did not constitute a permanent impairment.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing federal regulations3 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 for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.4 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.5
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).6 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
ANALYSIS
OWCP accepted that on December 31, 2009 appellant sustained a left knee and leg sprain
and a rupture of the left quadriceps tendon. On January 11, 2010 Dr. Guin performed a surgical
repair of the left quadriceps tendon rupture.
On August 10, 2010 Mr. Borcik, a physical therapist, performed an impairment
evaluation at the request of Dr. Guin, who found that appellant had good muscle strength,
sensation and range of motion, which he measured as 0 degrees extension to 135 degrees flexion
on the left and 0 degree extension. He indicated that appellant had a two millimeter loss of girth
on the left and mild tenderness at the distal patellar tendon. Mr. Borcik noted that appellant had
resumed his regular work but experienced pain with deep squats and running. He identified the
diagnosis as a class 0 ruptured tendon under the Knee Regulation Grid set forth in Table 16-3 of
the A.M.A., Guides. Mr. Borcik assigned appellant class 0 as he had reached maximum medical
improvement without significant abnormal findings following his injury. He further found that
he had full motor function and could perform his work and daily activities with only some
limitations with deep squatting and running. Mr. Borcik determined that appellant had no
impairment of the left lower extremity. Dr. Guin and OWCP’s medical adviser reviewed and
2

Id. at § 8107.

3

20 C.F.R. § 10.404.

4

Id. at § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
6

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

3

concurred with Mr. Borcik’s findings. There is no medical evidence supporting that appellant
has a ratable impairment of the left knee under the sixth edition of the A.M.A., Guides.
On appeal, appellant argues that his mobility is affected by the knot on his knee and
asserts that he can no longer run or kneel. Factors such as limitations on daily activities,
however, have no bearing on the calculation of a schedule award.7
Appellant further questioned why OWCP found that he had no impairment. It is his
burden, however, to submit medical evidence supporting a permanent impairment.8 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 is not entitled to a schedule award for a permanent
impairment of the left lower extremity.

7

Kimberly M. Held, 56 ECAB 670 (2005).

8

See D.H., 58 ECAB 358 (2007); Annette M. Dent, 44 ECAB 403 (1993).

4

ORDER
IT IS HEREBY ORDERED THAT the December 5, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 22, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Carol Stream, IL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-1573
Issued: March 21, 2011

Case Submitted on the Record

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

JURISDICTION
On May 25, 2010 appellant timely appealed the April 20, 2010 merit decision of the
Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
January 27, 2005.
FACTUAL HISTORY
This case was previously on appeal.1 On January 29, 2005 appellant, then a 48-year-old
mail processing clerk, filed a claim (Form CA-1) for injury to her head and right shoulder that
allegedly occurred on January 27, 2005. She claimed that she was using the restroom at work
1

Docket No. 09-1916 (issued June 19, 2009).

when a defective toilet paper holder fell and struck the right side of her head and her right
shoulder. Appellant’s supervisor, Jimella Wright, stated that upon investigation she found the
door to the toilet tissue dispenser still intact. She stated that she peeled four pieces of tape off the
door, which was hard to peel off. Ms. Wright also indicated that the holder was below
appellant’s head and shoulders.2 Several photographs of a bathroom stall depicting a toilet and a
toilet paper dispenser were submitted into the record. Appellant also submitted the
manufacturer’s description of the toilet paper dispenser allegedly involved.
Mary Hughes, the employer’s injury compensation specialist, inspected the bathroom
stall where the incident allegedly occurred. She noted that appellant stood 5’7” tall, and the
toilet paper holder cover was anchored below her elbows. Ms. Hughes, who is 5’4” tall, stated
that, when she sat on the toilet, the toilet paper dispenser was below her own shoulders. She
questioned how a toilet paper dispenser that low could have hit appellant up high, at the head and
shoulder level.
Appellant stated that a coworker, Cassandra Ellis, was in an adjacent bathroom stall at the
time of the alleged incident. Ms. Ellis reportedly remained in the bathroom after appellant left to
go report the alleged incident. The record, however, does not include a statement from Ms. Ellis
who reportedly refused to provide one.3
On the afternoon of January 27, 2005, appellant was seen in the employing establishment
health unit. She complained of pain on the right side of the head and the right shoulder.
Appellant reportedly stated that at 3:10 p.m. while in the women’s washroom, she used the toilet
paper and the cover fell off and hit her on the right side of the head and right shoulder. She did
not want to be checked at the hospital or the clinic. It was approaching the end of appellant’s
shift and all she wanted was some aspirin so that she could go home. She reportedly did not
want to file a claim. The treatment notes reported no broken skin, no bump on the head, no
dizziness, no nausea and a strong right-hand grip. Appellant, however, complained of slight pain
on the head and right shoulder. She reportedly described the pain as bearable. The treatment
consisted of an ice pack applied to right side of the head and the right shoulder for approximately
10 minutes. Appellant also received 325 milligrams of Acetaminophen. She was released at
approximately 3:30 p.m.
Appellant returned to the health unit on January 28, 2005 complaining of annoying head
pain on the left side and slight pain in the right shoulder. Dr. Eva T. Ostrowski, a Board-certified
internist, examined appellant. She reportedly told Dr. Ostrowski that the previous afternoon she
was sitting on the toilet pulling toilet paper out when the plastic toilet paper cover popped open,
2

In addition to her remarks on Form CA-1, Ms. Wright provided a March 4, 2005 statement. In her subsequent
statement, she indicated that on January 27, 2005 appellant told her she had an accident in the ladies room.
Appellant reportedly stated that the toilet tissue dispenser’s door fell on her head. Ms. Wright indicated that she
investigated the accident 5 to 10 minutes later and found the dispenser door still intact. She stated that she peeled
four pieces of tape off the dispenser and it did not seem to have fallen. Ms. Wright further indicated that the door
did not just drop. It was still attached to the rest of the dispenser.
3

Appellant attributed the absent statement to a number of reasons, including a less than thorough investigation,
employer intimidation and harassment and a fear of retaliation. She would later accuse Ms. Ellis of tampering with
the toilet paper dispenser so as to make it seem that nothing happened.

2

striking her on the right side of her head and right shoulder. Although reportedly hit on the right
side of her head, appellant now complained of left-sided headache, with numbness in the ear and
a dull ache over the left side migrating to the back of her head. Dr. Ostrowski reported no
blurring of vision or pain elsewhere. She also noted a prior medical history of discoid lupus on
appellant’s scalp. On physical examination of the scalp, there was no edema on the side of the
reported injury. There was also no tenderness to palpation. Examination of the right shoulder
also revealed no edema. There was mild tenderness to palpation, which was generalized.
Dr. Ostrowski reported full range of motion with minimal discomfort. The January 28, 2005
report also noted that the plastic toilet paper cover weighed less than 10 pounds. Dr. Ostrowski
stated that appellant’s headache was not related to the initial minor injury reported. She advised
that appellant could return to her previous work.
On January 28, 2005 appellant also saw Dr. Jacob Salomon, a Board-certified surgeon,
who provided her with a disability certificate indicating she was totally incapacitated from
January 29 to 30, 2005 due to head and shoulder injury. Dr. Salomon’s February 2, 2005 followup treatment notes indicated that appellant was pulling toilet tissue out of a container on
January 27, 2005 when the container broke off hitting her in the head and right shoulder. He
diagnosed minor head trauma and right shoulder contusion. Dr. Salomon also advised that
appellant was totally incapacitated from January 29 through February 15, 2005.
He
recommended, inter alia, a magnetic resonance imaging (MRI) scan of the brain to rule out
hematoma.4
At the employer’s request, Dr. Ostrowski reexamined appellant on February 4, 2005. She
noted complaints of ongoing headaches and right shoulder pain from getting hit by a plastic toilet
paper cover -- lightweight plastic -- on the right side of her head and right shoulder. Appellant’s
headache reportedly improved with Aleve, but returned when the medication wore off.
Additionally, she advised Dr. Ostrowski that she was unable to do anything due to headaches and
depression and was unable to drive due to anxiety. Appellant reportedly spent her time at home
resting. Dr. Ostrowski diagnosed nonspecific headaches unrelated to the minor trauma reported.
She also noted that appellant could return to work in her previous position.
The Postal Inspection Service interviewed appellant on March 4, 2005 and submitted a
March 18, 2005 investigative memorandum. Appellant reportedly stated that on January 27,
2005 around 3:10 p.m. she was using the restroom and entered the handicapped stall. She
noticed the toilet paper dispenser cover had tape on it, and may have pulled the toilet paper too
hard, because when she leaned over, it popped open and hit her on the right side of her head.
Appellant reported having just had a biopsy on the same side of her head. She stated she had
seen the tape on the dispenser “every day.” When asked how heavy the dispenser cover was, she
replied “It’s pretty thick. The clear part hit me.” After the January 27, 2005 incident, appellant
started to get headaches on the opposite (left) side of her head. She also stated that she injured
her right shoulder on January 27, 2005.
In a March 20, 2005 statement, appellant indicated that when she saw Dr. Ostrowski on
February 4, 2005, she told the doctor that a defective taped-up solid plastic toilet paper dispenser
4

Appellant’s February 16, 2005 brain MRI scan was “unremarkable.”

3

door fell open as she was pulling paper from a double dispenser. It hit the right side of her head,
where she had a biopsy procedure, and also hit her shoulder.5
In a March 28, 2005 report, Dr. Salomon indicated that when he saw appellant on
January 28, 2005 she complained that a day earlier she was struck on the right side of the head
and right shoulder while on the toilet at work. The toilet paper holder had fallen off the wall
striking appellant. Appellant complained of right-sided headache as well as right shoulder pain.
Dr. Salomon’s January 28, 2005 examination reportedly revealed spasm and pain in the trapezius
muscle in the right shoulder area, as well as right-sided temporal headache. He stated there were
no definite neurological signs to indicate any loss of brain function or vision. Dr. Salomon
treated appellant symptomatically with pain medicine and steroid injections in the spastic right
trapezius muscle. When appellant continued to complain of pain, he requested a brain MRI scan
to rule out possible subdural hematoma. The MRI scan was normal. Dr. Salomon further stated
that appellant was again treated symptomatically due to the trauma, which was the result of the
toilet paper holder striking her on the right side of the head and right shoulder. Appellant
returned for several follow-up visits complaining of the same symptoms. Because these
symptoms had caused her multiple episodes of anxiety and depression with inability to go to
work, she was eventually placed on antidepressant medication (Paxil) in hopes of relieving her
symptoms. Dr. Salomon stated that appellant was subsequently referred to a neurologist. Due to
persistent symptoms she continued to receive treatment and was totally incapacitated and unable
to work.
The Office denied the claim on April 21, 2005 because appellant failed to establish that
the injury occurred as alleged. By decision dated May 8, 2006, the Branch of Hearings and
Review affirmed the Office’s April 21, 2005 decision.
Appellant requested reconsideration on June 20, 2006. The request was accompanied by
an April 6, 2005 notice of removal for engaging in activities inconsistent with her claim of total
disability. The Office also received a May 24, 2006 report from Dr. Salomon regarding
appellant’s disability status between January 29 and February 15, 2005.
After an unexplained delay of almost three years, the Office issued a June 19, 2009
decision denying reconsideration. On appeal, the Board set aside the June 19, 2009 decision and
remanded the case to the Office with instructions to undertake a merit review of the claim.6 The
Board’s March 12, 2010 decision is incorporated herein by reference.
On remand, the Office reviewed appellant’s claim on the merits and denied modification
by decision dated April 20, 2010.

5

The biopsy reportedly occurred in September or October 2004.

6

The Board explained that because of the lengthy delay in processing appellant’s June 20, 2006 request for
reconsideration, the Office should have conducted a merit review of the claim so as to preserve the full extent of her
appeal rights.

4

LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act7 has the
burden of establishing the essential elements of her claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.8
To determine if an employee sustained a traumatic injury in the performance of duty, the
Office begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that
is alleged to have occurred.9 The second component is whether the employment incident caused
a personal injury.10
It is the employee’s burden to establish that his or her injury occurred at the time, place
and in the manner alleged.11 An injury does not have to be confirmed by an eyewitness to
establish that it occurred in the performance of duty.12 An employee’s statement regarding the
circumstances surrounding an injury is of great probative value and will be accepted unless
refuted by persuasive evidence.13 The employee’s statement must be consistent with the
surrounding facts and circumstances as well as the employee’s subsequent course of action.14
An employee has not met her burden of proof where there are inconsistencies in the record that
cast serious doubt on the validity of the claim.15 Such circumstances as late notification of
injury, lack of confirmation of injury, continuing to work without apparent difficulty following
the alleged injury and failure to obtain medical treatment may, if not otherwise explained, cast
doubt on an employee’s statements.16

7

5 U.S.C. §§ 8101-8193 (2006).

8

20 C.F.R. § 10.115(e), (f) (2010); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

9

Elaine Pendleton, 40 ECAB 1143 (1989).

10

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question, which generally requires
rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996).
11

H.G., 59 ECAB 552, 560 (2008); Delphyne L. Glover, 51 ECAB 146, 147-48 (1999).

12

H.G., supra note 11.

13

Michelle Kunzwiler, 51 ECAB 334, 335 (2000).

14

Id.

15

Id.

16

S.P., 59 ECAB 184, 188 (2007).

5

ANALYSIS
Appellant claimed to have been struck on the right side of her head and right shoulder by
a defective toilet paper holder. The plastic dispenser cover reportedly “fell” or “popped open”
and struck appellant as she was sitting on the toilet. There is no dispute that the toilet paper
dispenser had been taped up. In her March 4, 2005 statement to the postal inspector, appellant
indicated that dispenser cover had tape on it and she may have pulled the toilet paper too hard.
She further indicated that as she leaned forward to wipe, the “thing” popped open and hit her.
However, in a March 20, 2005 statement, appellant indicated that the dispenser door fell open as
she was pulling paper out. She did not claim to have been struck while leaning forward wiping.
This discrepancy is particularly relevant because both Ms. Wright and Ms. Hughes visited the
bathroom stall where the incident allegedly occurred and they each noted that the toilet paper
dispenser was positioned below shoulder level. At a reported 5’7” tall, it is possible appellant
could have been struck in the head and shoulder area while leaning forward wiping. However,
based on information provided by Ms. Wright and Ms. Hughes it seems unlikely that appellant
could have been struck in the manner alleged while sitting upright.
Apart from the discrepancy regarding appellant’s position relative to the dispenser, there
is another question as to whether the dispenser “fell” or “popped open” as alleged. Ms. Wright
investigated the incident within 5 to 10 minutes after appellant reported it. At that time, the toilet
paper dispenser was reportedly intact. Ms. Wright indicated on both the claims form and in her
March 4, 2005 statement that she peeled four pieces of tape from the dispenser. The tape was
reportedly “hard” to remove. In her March 4, 2005 statement, Ms. Wright elaborated that, after
removing the tape, the dispenser door did not seem to have fallen. She further commented that
the door did not just drop, but remained attached to the rest of the dispenser.
At her March 30, 2006 hearing, appellant did not question what Ms. Wright reported
seeing when she investigated the alleged toilet paper dispenser incident on January 27, 2005. In
fact, she testified that her supervisor was “not a liar.” Appellant speculated that from time the
incident occurred and when Ms. Wright went to investigate it, someone replaced the dispenser
cover. She would later accuse Ms. Ellis of tampering with the toilet paper dispenser so as to
make it seem that nothing happened. Ms. Ellis was reportedly in the restroom when the incident
allegedly occurred. However, the record does not include a statement from her. The absence of
a statement from a coworker who reportedly was in earshot at the time of the alleged incident
gives one pause for concern. It does not by itself substantiate appellant’s allegation that either
Ms. Ellis or someone else tampered with the toilet paper dispenser.
Appellant’s alleged January 27, 2005 head and shoulder injury is also inconsistent with
the contemporaneous medical evidence. Shortly after the alleged incident she was seen at the
employer’s health unit. The January 27, 2005 treatment notes reported no broken skin, no bump
on the head, no dizziness, no nausea and a strong right-hand grip. When Dr. Ostrowski saw
appellant the following day, she noted that on physical examination of the scalp there was no
edema on the side of the reported injury. There was also no tenderness to palpation. With
respect to appellant’s right shoulder, there was similarly no evidence of edema, and only mild
tenderness to palpation, which was generalized. Dr. Ostrowski also noted full range of motion
with minimal discomfort. Dr. Salomon reportedly examined appellant on January 28, 2005, but
no treatment notes from that examination have been provided. His January 28, 2005 disability

6

certificate merely noted that appellant was unable to work “due to head and shoulder injury.”
Dr. Salomon’s February 2, 2005 follow-up treatment records do not include any physical
findings indicative of a diagnosis of minor head trauma and right shoulder contusion. He did not
mention any bumps, bruises, or an incision from a prior biopsy. In his March 28, 2005 report,
Dr. Salomon stated that when he saw appellant on January 28, 2005 she complained of rightsided headache as well as right shoulder pain. His examination reportedly revealed spasm and
pain in the trapezius muscle in the right shoulder area, as well as right-sided temporal headache.
It is not readily apparent how these reported findings justified Dr. Salomon’s diagnosis of minor
head trauma and right shoulder contusion.
The Board finds that appellant did not meet her burden of proof in establishing that on
January 27, 2005, a defective toilet paper dispenser struck her on the right side of the head and
right shoulder. As noted above, the first element of “fact of injury” requires that appellant
submit evidence establishing that an incident occurred at the time, place and in the manner
alleged.17 There are unresolved discrepancies regarding the condition of the toilet paper
dispenser at the time of the alleged incident. Appellant claimed it “fell” or “popped open” and
struck her. However, shortly after the alleged incident, Ms. Wright examined the dispenser and
found it intact. Appellant claimed that someone tampered with the dispenser prior to
Ms. Wright’s examination, however, this allegation is not supported by the record. There is also
some question as to whether appellant’s size and position in relation to the dispenser would
permit an injury above shoulder level. Both Ms. Hughes and Ms. Wright indicated that the
dispenser was positioned below shoulder level. It is also unclear from the record whether
appellant was seated upright pulling paper from the dispenser when the alleged incident occurred
or leaning forward wiping. Lastly, the contemporaneous medical evidence does not substantiate
appellant’s claim that she was struck on the right side of her head and right shoulder. There were
no reported signs of trauma to the head and/or right shoulder when appellant was seen on
January 27 and 28 and February 2, 2005. The evidence submitted contains such inconsistencies
as to cast doubt on the validity of appellant’s claim. Accordingly, the Board finds that appellant
has not met her burden of proof in establishing that she experienced an employment-related
incident at the time, place and in the manner alleged.18
CONCLUSION
Appellant has not established that she sustained an injury in the performance of duty on
January 27, 2005.

17

See supra note 9.

18

Given that appellant did not establish an employment incident, further consideration of the medical evidence is
unnecessary. Bonnie A. Contreras, 57 ECAB 364, 368 n.10 (2006).

7

ORDER
IT IS HEREBY ORDERED THAT the April 20, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 21, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF JUSTICE, EXECUTIVE
OFFICE FOR IMMIGRATION REVIEW,
IMMIGRATION COURT, Orlando, FL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 10-435
Issued: January 14, 2011

Case Submitted on the Record

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

JURISDICTION
On December 7, 2009 appellant, through her attorney, filed a timely appeal from a
November 3, 2009 decision of the Office of Workers’ Compensation Programs that denied her
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
appellant’s claim.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
August 7, 2008.
On appeal appellant, through her attorney, contends that the Office decisions are contrary
to fact and law.

FACTUAL HISTORY
On August 8, 2008 appellant, then a 53-year-old supervisory legal clerk and technician,
filed a traumatic claim alleging injury to her head, back, hip, shoulder and side when she fell
from a chair on August 7, 2008. She had a severe anxiety attack after receiving an upsetting
e-mail. Rhonda Simmons, a witness, noted seeing appellant slumped over her computer and
called 911. Appellant was transported to the hospital and was admitted. In an October 9, 2008
statement, she explained that she received an e-mail from a judge informing her that she was not
hired for the court administrator position for which she applied. The e-mail was not as respectful
as appellant deserved and forwarded it to an Equal Employment Opportunity (EEO) Commission
specialist. Appellant called for help and told Ms. Simmons that she thought she was having a
heart attack and to call 911. She stated that she remembered nothing further. Appellant alleged
generally that she was overworked and was essentially doing a court administrator’s job. She
provided a copy of the e-mail.
The employing establishment submitted a number of witness statements. Ms. Simmons
stated that at approximately 9:00 a.m. she received a call from appellant asking for help and upon
arriving at her office found her slumped over her computer. Appellant stated that she thought
she was having a heart attack and to call 911. Ms. Simmons left to call 911 and when she
returned, appellant was on the floor, not responsive to questions, not moving and her breathing
was heavy and raspy. Carrie Sutherland, a coworker, stated that, when Ms. Simmons left
appellant’s office, appellant called to her to help. When she entered the office appellant was
slumped at her desk. Appellant informed Ms. Sutherland of her belief. Ms. Sutherland left but,
returned to find Ms. Simmons and Ruth Osborne, a coworker, with appellant who was on the
floor, apparently passed out. Ms. Osborne stated that, when she entered the office, appellant was
leaning over her keyboard, she went to comfort her but appellant did not respond and started
sliding off her chair. She tried to stop the fall but was unsuccessful. Appellant struck the floor
on the left side of her body. Kevin Chapman, a judge, then entered the room and helped turn her
on her back. Appellant was initially unconscious and appeared confused when she regained
consciousness. The paramedics arrived within 15 to 20 minutes and transported her.
Mr. Chapman noted that, when he entered appellant’s office, she was slumped over her desk and,
after a minute or two, slid from her desk to the floor. Appellant appeared to be in and out of
consciousness.
An August 7, 2008 paramedics report noted that appellant was found lying supine on the
floor with a complaint of chest pain of acute onset. She related a past medical history of severe
anxiety, hypertension, myocardial infarct, a percutaneous transluminal angioplasty. Appellant
had self-administered a baby aspirin and her nitroglycerine prescription had expired. She was
then transported to a local hospital. In an emergency room report, Dr. James D. Tesar, Boardcertified in emergency medicine, diagnosed acute chest pain and appellant was admitted.1 On
August 7, 2008 James P. Brown, a physician’s assistant, noted the history of appellant’s
complaint of chronic low back and right leg pain, exacerbated by the fall at work. He noted that
she experienced multiple episodes of syncope that day with no clear-cut seizure activity and
provided findings on physical examination. An August 7, 2008 chest x-ray demonstrated no
1

Parts of the report are illegible.

2

abnormality and a computerized tomography (CT) scan of the head was normal. An August 8,
2008 cardiac stress test was negative.
In an August 9, 2009 report, Dr. Sanjeev K. Singh, a Board-certified psychiatrist, noted
that appellant provided a history of work-related stress. He conducted a mental status
examination, diagnosed adjustment disorder with anxiety and advised that she needed outpatient
counseling.
On August 9, 2009 Dr. Bakkian Subbiah, a Board-certified neurologist, noted the history
of injury and a past medical history of anxiety, dyslipidemia, asthma, hypertension,
nonmalignant abdominal and breast tumors, previous abdominal and back surgeries and breast
cyst removal. On physical examination, appellant was able to stand and walk across the room
without difficulty, Romberg’s test was negative, alternating motion movements were full, fingerto-nose and heel-to-shin testing was normal and motor strength was normal in upper and lower
extremities. All reflexes were symmetric and sensory testing was grossly normal. Dr. Subbiah
advised that appellant’s symptoms did not represent a neurologic syndrome but most likely were
due to considerable stress. An August 10, 2008 magnetic resonance imaging (MRI) scan study
of the lumbar spine demonstrated mild degenerative disc disease with no stenosis.
Appellant was discharged from the hospital on August 11, 2008. Dr. Simon L. Condron,
a Board-certified internist, reported final diagnoses of atypical chest pain, syncopal event,
hypertension, asthma, chronic pain and anxiety. He noted that all studies were negative and, that
from a clinical standpoint, appellant had an entirely uneventful stay.
Appellant followed up with Dr. Chad E. Frank, an attending Board-certified osteopath
specializing in family practice. In an August 1, 2008 report, Dr. Frank noted her complaint of
mid and low back pain, neck pain, bilateral shoulder pain and bilateral lower extremity pain. He
provided examination findings and diagnosed cervicalgia, low back pain, somatic dysfunction
and muscle spasm. In August 13, 2008 reports, Dr. Frank reported that appellant had a history of
chronic neck and lower back pain with generalized anxiety that had markedly increased over the
past five years. He described the fall at work and noted that she was hospitalized. Dr. Frank
described appellant’s past medical and surgical history, provided findings on examination, and
diagnosed low back pain, migraine headaches, somatic dysfunction, severe anxiety and neck
pain. He checked an Office form box “yes,” indicating that the diagnosed conditions were
caused by the fall at work, stating “anxiety, panic attack, collapse, fell on back, head, temple and
pulmonary.” Dr. Frank advised that appellant was totally disabled.
On August 22, 2008 Dr. Frank reported that appellant’s low back, lower extremity and
neck pain, anxiety and migraines had not abated a history of Epstein-Barr virus and chronic
fatigue syndrome, diagnosed seven years previously. His subsequent treatment notes reiterated
his conclusions.
By decision dated April 29, 2009, the Office denied the claim on the grounds that the
evidence did not establish that appellant sustained an injury in the performance of duty. While
the August 7, 2008 fall from the chair was in the performance of duty, no secure diagnosis of a
medical condition had been provided.

3

Appellant, through her attorney, timely requested a hearing. In a June 23, 2009 report,
Dr. Frank noted appellant’s complaints of low back, neck and hip pain, migraine headaches and
severe anxiety. On examination, he found spasm and tenderness in the cervical, thoracic and
lumbar paraspinal muscles and diagnosed cervicalgia, low back pain, migraine headaches and
anxiety. Dr. Frank advised that appellant’s condition was related to work injuries, due to severe
stress and physical requirements of the job.
At the August 10, 2009 hearing, appellant’s attorney advised that she was not claiming an
employment-related emotional condition but a physical injury as a result of the August 7, 2008
fall. Appellant stated that on August 7, 2008 she was sitting at her desk performing daily routine
duties when she received a very upsetting e-mail regarding being turned down for a transfer
promotion. After contacting an EEO specialist, she began experiencing chest and back pain and
told coworkers that she thought she was having a heart attack. Appellant remembered little after
that. She stated that when discharged she was upset and in pain. Appellant noted a prior
employment injury for cervical and lumbosacral strain in 1998 and that she hurt her neck at work
in 2005. She was treated by Dr. Frank after that time and since the 2005 injury, she had hip and
low back problems. Appellant was off work for about 12 weeks following the August 2008
employment injury.
By decision dated November 3, 2009, an Office hearing representative found that
appellant’s fall on August 7, 2008 was caused by a nonoccupational, preexisting physical
condition of syncope resulting from an anxiety reaction of chest pain and was idiopathic. She
further found that the medical evidence did not provide a firm medical diagnosis related to the
fall or that appellant struck a surface other than the floor.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury. Regardless of
whether the asserted claim involves traumatic injury or occupational disease, an employee must
satisfy this burden of proof.3
Office regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.4 To determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must determine whether “fact of injury” is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place and in
2

5 U.S.C. §§ 8101-8193.

3

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

4

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

4

the manner alleged, by a preponderance of the reliable, probative and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.5
It is a well-settled principle of workers’ compensation law that an injury resulting from
an idiopathic fall -- where a personal, nonoccupational pathology causes an employee to collapse
and to suffer injury upon striking the immediate supporting surface, and there is no intervention
or contribution by any hazard or special condition of employment -- is not within coverage of the
Act. Such an injury does not arise out of a risk connected with the employment and is, therefore,
not compensable. However, the fact that the cause of a particular fall cannot be ascertained or
that the reason it occurred cannot be explained, does not establish that it was due to an idiopathic
condition. If the record does not establish that the particular fall was due to an idiopathic
condition, it must be considered as merely an unexplained fall, one which is distinguishable from
a fall in which it is definitely proved that a physical condition preexisted and caused the fall.6 To
properly apply the idiopathic fall exception to the premises rule, there must be two elements
present: a fall resulting from a personal, nonoccupational pathology and no contribution from
the employment.7 This follows from the general rule that an injury occurring on the industrial
premises during working hours is compensable unless the injury is established to be within an
exception to such general rule.8
ANALYSIS
The Board finds that appellant’s fall on August 7, 2008 occurred in the performance of
duty. An injury resulting from an idiopathic fall is not compensable but if the cause of a
particular fall cannot be ascertained, the fall is considered an unexplained fall. While it is clear
from the record that appellant was anxious and had chest pain at the time she slid from her chair
to the floor on August 7, 2008, the medical evidence does not establish that the fall was
idiopathic, i.e., due to a personal nonoccupational pathology. The hospital reports that day do
not provide clear support that the fall was idiopathic. Dr. Tesar merely advised that appellant
was admitted for acute chest pain. A cardiac stress test and CT scan of the head were negative.
While there is evidence of record to suggest that appellant has several preexisting medical
conditions, it does not establish that these caused her fall at work. Dr. Singh noted work-related
stress but did not discuss the fall. Dr. Subbiah advised that appellant’s symptoms did not
represent a neurologic syndrome but were most likely due to stress. Dr. Condron reported
diagnoses of atypical chest pain, syncopal event, hypertension, asthma, chronic pain and anxiety
and noted that, from a clinical standpoint, appellant had an uneventful hospital stay. Based on
5

Gary J. Watling, supra note 3.

6

M.M., 60 ECAB ___ (Docket No. 08-1510, issued November 25, 2008).

7

N.P., 60 ECAB ___ (Docket No. 08-1202, issued May 8, 2009).

8

Steven S. Saleh, 55 ECAB 169 (2003).

5

the contemporaneous medical evidence, the Board finds there is no conclusive evidence as to the
cause of the fall. Therefore it is an unexplained fall that occurred in the performance of duty.9
The Board finds that the medical evidence does not establish that appellant sustained an
injury or medical condition as a result of the fall. As noted, the discharge diagnoses were
atypical chest pain, syncopal event, hypertension, asthma, chronic pain and anxiety and
Dr. Condron noted that appellant had an uneventful hospital stay. Appellant testified at the
hearing that she did not claim any emotional condition rather that she sustained a physical injury
on August 7, 2008. Dr. Frank provided the diagnoses of cervicalgia, low back pain, somatic
dysfunction and muscle spasm. He checked an Office form “yes,” generally indicating that
appellant’s condition was employment related. Dr. Frank also described the events of the fall in
general terms without providing further explanation. It is well established that when a
physician’s opinion on causal relationship consists only of checking “yes” to a form question,
without explanation or rationale it is of diminished probative value.10 Dr. Frank also noted a
history of Epstein-Barr virus and chronic fatigue syndrome diagnosed seven years prior and that
appellant was first injured at work on December 1, 1998 when she picked up heavy cases and
had chronic pain since that time. He did not provide a firm medical diagnosis related to the
August 7, 2008 fall or adequately explain how the fall contributed to any condition for which he
treated appellant.
The weight of the 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.11 The factors that comprise the evaluation of medical
evidence include the opportunity for and the thoroughness of physical examination, the accuracy
and completeness of the physician’s knowledge of the facts and medical history, the care of
analysis manifested and the medical rationale expressed in support of the physician’s opinion.
The opinion of a physician must be of reasonable medical certainty and must be supported by
medical rationale explaining causal relationship.12 The evidence of record is not sufficient to
establish that appellant sustained injury causally related to the August 7, 2008 fall.13
The Board finds that the issue of reimbursement of appellant’s medical expenses is not in
posture for decision. The Board has noted that the Office procedures provide that when an
employee sustains a job-related injury that may require medical treatment, the designated
employing establishment official shall promptly authorize such treatment by giving the employee
a properly executed (Form CA-16) with four hours.14 Cases of doubtful nature so far as
compensability is concerned, may also be referred using a Form CA-16 for medical services and,
in cases involving unusual circumstances, the Office may, in the exercise of its discretion,
9

Id.

10

Sedi L. Graham, 57 ECAB 494 (2006).

11

C.B., 60 ECAB ___ (Docket No. 08-1583, issued December 9, 2008).

12

K.W., 59 ECAB 271 (2007).

13

Gary J. Watling, supra note 3.

14

Val D. Wynn, 40 ECAB 666 (1989).

6

authorize treatment or approve payment for medical expenses incurred, other than by a Form
CA-16.15
The record contains witness statements from coworkers pertaining to the August 7, 2008
fall and appellant’s belief of having a heart attack. A 911 call was placed and she was
transported to the hospital where she was admitted. No Form CA-16 is of record. Although the
Office adjudicated and denied appellant’s claim of injury, it did not adjudicate the issue of
whether she should be reimbursed for medical expenses incurred. The case will be remanded for
further development of this issue.16
CONCLUSION
The Board finds that appellant failed to establish that she sustained an injury causally
related to the August 7, 2008 fall at work and that the case is not in posture as to whether her
medical expenses should be reimbursed.
ORDER
IT IS HEREBY ORDERED THAT the November 3, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified, in part and set aside in part. The
case remanded for further action on the issue of reimbursement of medical expenses.
Issued: January 14, 2011
Washington, DC

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

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
15

Id.; 20 C.F.R. § 10.304.

16

E.K., 61 ECAB __ Docket No. 09-1827 (issued April 21, 2010).

7