United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
OFFICE OF RESOLUTION MANAGEMENT,
Little Rock, AR, Employer
__________________________________________

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

Docket No. 07-1693
Issued: December 26, 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 June 11, 2007 appellant filed a timely appeal from the March 7, 2007 decision of the
Office of Workers’ Compensation Programs denying further review of the merits of his claim on
the grounds that it was untimely filed and failed to demonstrate clear evidence of error. The
latest merit decision in the case is dated January 19, 2006. Because appellant filed his appeal
more than a year after the last merit decision, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has no jurisdiction over the merits of this case. The only decision properly before the
Board is the Office’s March 7, 2007 decision denying reconsideration.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and failed to present clear evidence of error. On appeal,
appellant argued that he mailed his request for reconsideration within one year of the January 19,
2006 merit decision.1
1

Along with his notice of appeal, appellant submitted new factual evidence related to both the merits of his claim
and the timeliness of his request for reconsideration. As these documents were not a part of the record at the time
the Office made its final decision, the Board is precluded from reviewing the evidence. 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On March 3, 2004 appellant, then a 47-year-old equal employment opportunity (EEO)
counselor, filed an occupational disease claim, Form CA-2, alleging that he developed primary
hypertension as a result of his working conditions, responsibilities and relationships.
Appellant stated that his work environment was too noisy because it contained two
copiers, a fax machine, paper punches, a cutting board and a heavy duty stapler, which were used
by more than 18 employees. He was subjected to inflexible work locations and poor
maintenance, as evidenced by asbestos in the building. Appellant had an excessive workload,
long hours, too much critical work, too much boring and repetitive work and deadline pressures.
He experienced a lack of training and support, organizational change, confusion over priorities,
unequal procedures and standards and heavy emotional demands. Appellant also faced bullying,
harassment, discrimination, client hostility, conflicts with supervisors and managers and a
negative work culture. All of these factors led to high blood pressure. When appellant returned
to his employing establishment office in September 2003 after several months of working from
home, his blood pressure symptoms, which had been under control, began to reemerge.
The employing establishment controverted appellant’s claim. It noted that he had an
office with a door to block noise from the hallway and that all asbestos had been removed from
the building. Appellant was approved to work from home from March to September 2003, but
was removed from the flexi-place program because he did not meet his performance standards.
His position did not require overtime work. The employing establishment had no complaints
from appellant on file alleging bullying or harassment. It was unaware of any poor working
relationships between appellant and any coworkers or managers. The employing establishment
submitted his position description, performance standards, and various documents related to his
employment in 2002 and 2003.
On April 5 and May 7, 2004 the Office requested additional medical and factual
information about appellant’s claim. In an undated letter received on June 16, 2004, appellant
stated that his workload had increased in part because he was required to use a time-consuming
new web-based case tracking and scanning system. He noted that the case processing standards
had been increased from 7 cases to 12 cases for an outstanding rating. Staff meetings were rife
with confrontation, complaining, and personal attacks, which caused him stress and anxiety.
Managers at the employing establishment classified appellant’s family care leave and other
medical leave as leave without pay, which caused financial hardship. He was being treated with
medication and counseling for his blood pressure and emotional condition.
By decision dated June 18, 2004, the Office denied appellant’s claim on the grounds that
he had not established any compensable factors of employment.
On July 16, 2004 appellant requested an oral hearing, which was held on
October 26, 2005. In addition to testifying about the work environment and his workload,
appellant submitted medical records from October 2003 to April 2004. In October 2003
appellant sought treatment from Dr. Phillip Monroe, a family practitioner, for mold allergies and
a sprained right ankle. On February 25, 2004 Dr. Monroe reported that appellant had recently
experienced an episode of extreme tiredness and sweating while driving and that hospitalization
had been recommended. Appellant was certain that his high blood pressure was related to
workplace stress. He told Dr. Monroe that his stress came from the work environment, not the
2

job itself. Appellant requested a note to allow him to work from home, and indicated that he did
not want to take blood pressure medication. Dr. Monroe diagnosed elevated blood pressure. He
noted that he did not believe that all of appellant’s stress was work-environment related and
encouraged him to take medication. On April 30, 2004 Dr. Monroe diagnosed appellant with
benign essential hypertension and noted that appellant had been referred to a specialist for
treatment of his depression.
By decision dated January 19, 2006, the Office hearing representative modified and
affirmed the June 18, 2004 decision. He found that appellant’s allegations of harassment by
superiors and coworkers had not been established, as factual, by probative and reliable evidence.
The Office hearing representative stated that the employing establishment’s management style
and his interaction with managers over administrative matters were not compensable factors of
employment because appellant had not established error or abuse. However, he found that
appellant did establish a compensable employment factor related to his inability to complete his
work in a timely manner. The Office hearing representative found that the medical evidence of
record did not establish a causal relationship between appellant’s condition and the compensable
employment factor.
In an undated letter, received by the Office on January 24, 2007, appellant requested
reconsideration. He submitted a December 14, 2005 report from Dr. James Sims, a psychiatrist,
who opined that various work incidents contributed to appellant’s depression. Dr. Sims stated
that appellant began feeling overworked in May 2001 because of the imbalances between the
work assigned to him and his coworkers. The employing establishment did not assist him in
resolving this situation. From September 2003 to September 2004 appellant was required to
commute eight hours per day from Springfield, Missouri to Little Rock, Arkansas in order to
have time at home to help his wife with their sick child. The combination of his workload and
the commute adversely affected his emotional condition. Appellant was also threatened with
termination, which was rescinded at the last moment. He reported that he was under constant
scrutiny following this incident and feared being terminated again. Dr. Sims stated that this
continual stress was detrimental to appellant’s mental health. He opined that appellant’s job
stress was a major contributing factor to his depression and anxiety because he had no similar
psychiatric symptoms prior to May 2001. Appellant submitted the statement of a coworker and
administrative records related to his requests for alternative work arrangements in 2003 and 2005
and a termination action that was initiated and then rescinded in 2005.
On February 27, 2007 the employing establishment submitted a response to the evidence
supplied by appellant.
By decision dated March 7, 2007, the Office denied further review of the merits of the
claim on the grounds that the request was filed more than one year after the January 19, 2006
decision and appellant had not presented clear evidence of error on the part of the Office. The
Office found that Dr. Sims’ report did not establish that appellant’s condition was related to the
compensable factor of his employment.

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LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act2 does not entitle a claimant
to a review of an Office decision as a matter of right.3 This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.4 The Office, through its regulations, has imposed limitations on the exercise of
its discretionary authority.5 One such limitation is that the Office will not review a decision
denying or terminating a benefit unless the application for reconsideration is filed within one
year of the date of that decision.6 If submitted by mail, the application will be deemed timely if
postmarked by the U.S. Postal Service within the time period allowed. If there is no such
postmark, or it is not legible, other evidence such as (but not limited to) certified mail receipts,
certificate of service, and affidavits, may be used to establish the mailing date.7 In the absence of
this evidence, the Office procedures state that date of the reconsideration request letter should be
used to determine timeliness.8 The Board has found that the imposition of this one-year time
limitation does not constitute an abuse of the discretionary authority granted the Office under
5 U.S.C. § 8128(a).9
In those cases where requests for reconsideration are not timely filed, the Office must
nevertheless undertake a limited review of the application for reconsideration to determine
whether there is clear evidence of error in accordance with section 10.607(b) of its regulations.10
The Office’s regulations provide that the application must establish, on its face, that the appealed
decision was erroneous.11
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.12 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.13 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish

2

5 U.S.C. §§ 8101-8193.

3

Thankamma Mathews, 44 ECAB 765, 658 (1993).

4

Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

5

The Board has concurred in the Office’s limitation of its discretionary authority. See Gregory Griffin, 41 ECAB
186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
6

20 C.F.R. §§ 10.607; 10.608(b).

7

Id.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b)(1) (January 2004).

9

20 C.F.R. § 10.607(b); Thankamma Mathews, supra note 3 at 769; Jesus D. Sanchez, supra note 4 at 967.

10

Thankamma Mathews, supra note 3 at 770.

11

20 C.F.R. § 10.607(b).

12

Id.

13

Leona N. Travis, 43 ECAB 227, 241 (1991).

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clear evidence of error.14 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.15 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.16 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision.17
ANALYSIS
The Board finds that appellant’s request for reconsideration was untimely. As noted
above, a request for reconsideration must be filed within one year from the date of the Office
decision for which review is sought. The one-year time limitation began to run the day
following the issuance of the last merit decision, dated January 19, 2006.18 The regulations
provide that, if the request is submitted by mail, the application will be deemed timely if
postmarked within the time period allowed.19 The Office received appellant’s undated request
for reconsideration on January 24, 2007. The record does not include a copy of the envelope in
which appellant’s request was delivered or any other evidence of mailing or receipt that would
establish a timely filing. As the request was undated and the record is devoid of any additional
information that would render appellant’s request timely, the Board finds that the Office properly
relied on the January 24, 2007 date of receipt, rendering the request untimely. Consequently, to
have his claim reopened on the merits, appellant must show clear evidence of error by the Office
hearing representative in his January 19, 2006 decision.
The Board finds that appellant did not present evidence establishing that the Office’s
decision was erroneous or raising a substantial question as to the correctness of the Office’s
decision. The Board finds that the coworker statement and the administrative records appellant
submitted do not clearly establish any new compensable factors of employment or establish the
allegations that appellant previously advanced. Specifically, they do not on their face prove any
incidents of harassment or discrimination directed at appellant or error or abuse on the part of the
employing establishment in its administrative decisions. Therefore this evidence is not sufficient
to establish that the January 19, 2006 decision was clearly erroneous.
The Board also finds that report of Dr. Sims is insufficient to establish clear error in the
January 19, 2006 decision, which found that the medical evidence did not show a causal
relationship between appellant’s emotional condition and the accepted employment factor.
14

Jesus D. Sanchez, supra note 4 at 968.

15

Leona N. Travis, supra note 13.

16

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

17

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

18

See Angel M. Lebron, Jr., 51 ECAB 488, 490 (2000) (explaining that the date the decision is issued is not
included in the year limit).
19

20 C.F.R. § 10.607(a).

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Although Dr. Sims’ report discusses the accepted factor of being unable to complete his assigned
work, it also includes discussions of several other employment-related issues that were not
accepted by the Office. Dr. Sims addresses all of these issues together and does not explain how
appellant’s emotional condition was caused by the accepted factor as opposed to the other factors
he discussed. Because the report does not contain a properly rationalized opinion as related to
the accepted factor, the Board finds that Dr. Sims’ opinion does not establish clear evidence of
error on the part of the Office hearing representative.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and failed to present clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 7, 2007 is affirmed.
Issued: December 26, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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Appearances:
Joyce Fuller, Esq., for the appellant
No appearance, for the Director

Docket No. 08-271
Issued: June 20, 2008

Oral Argument May 7, 2008

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
Appellant filed a timely appeal of an October 12, 2007 decision of the Office of Workers’
Compensation Programs, finding that his request for reconsideration was untimely and failed to
show clear evidence of error. Pursuant to 20 C.F.R. § 501.3, the Board’s jurisdiction is limited
to decisions issued within one year of the filing of the appeal. Since the last merit decision was
issued April 22, 2002, the Board does not have jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly denied merit review on the grounds that
appellant’s application for reconsideration was untimely and failed to show clear evidence of
error.
FACTUAL HISTORY
The case was previously before the Board. By decision dated December 21, 2005, the
Board affirmed an August 27, 2004 Office decision finding that appellant’s request for

reconsideration was untimely filed and failed to show clear evidence of error.1 In a decision
dated August 17, 2007, the Board dismissed appellant’s appeal as there was no final decision
issued within one year of the filing of the appeal.2 The history of the case contained in the
Board’s prior decision and order and is incorporated herein by reference.
To summarize the procedural history of the case, appellant filed a claim in January 1992
for a left arm injury.3 He also had a claim for a left wrist injury on March 2, 1992 and an
occupational claim for a left wrist injury in June 1992. These claims were combined under
OWCP File No. 16201559. On May 16, 2000 appellant filed a traumatic injury claim for a right
shoulder injury. This claim was also developed under OWCP File No. 16201559. A statement
of accepted facts dated July 8, 2004 reported the following as accepted conditions: left
tenosynovitis of the hand and wrist, left lateral epicondylitis, left shoulder adhesive capsulitis,
left brachial plexus lesions and sprain/strain of the right shoulder, upper arm and
acromioclavicular joint. Appellant received a schedule award for a 10 percent left arm
permanent impairment on July 23, 1996 and a 21 percent right arm impairment on
August 16, 2005.
On August 10, 2000 appellant filed a traumatic injury claim alleging that he sustained a
right shoulder injury on August 9, 2000 when a coworker tapped on his shoulder. This claim
was developed under the OWCP File No. 162003381. In May 2003, the Office combined the
case files, with File No. 16201559 as the master file and 162003381 as the subsidiary file.
As noted in the December 21, 2005 Board decision, the claim for an August 9, 2000 right
shoulder injury was denied by merit decisions dated November 22, 2000, May 21, 2001 and
April 22, 2002. By decision dated October 1, 2002, the Office denied merit review of the claim.
In a decision dated August 27, 2004, the Office denied merit review on the grounds that
appellant’s request for reconsideration was untimely and failed to show clear evidence of error
and the Board affirmed this decision.
In a letter dated September 21, 2006, appellant requested reconsideration. He reported
the date of injury as August 9, 2000, but did not identify an Office decision. On December 6,
2006 the Office received a request for reconsideration stating that the November 22, 2000 and
April 22, 2002 decision developed the claim without all the factual and medical evidence. The
Office advised appellant by letter dated December 29, 2006, he needed to identify an Office
decision. On January 25, 2007 appellant requested reconsideration of the August 27, 2004
decision. He resubmitted a September 18, 2000 report from Dr. Gary Gartsman, an orthopedic
surgeon. Appellant also submitted a May 10, 2006 from Dr. Andrew Kant, an orthopedic
surgeon, who reported that appellant was injured on September 10, 1991 and May 3, 2000.
Dr. Kant provided results on examination and diagnosed cervical strain, post carpal and cubital
tunnel release and shoulder bursitis.
1

Docket No. 04-2283 (issued December 21, 2005).

2

Docket No. 07-978 (issued August 17, 2007). Appellant had requested an appeal of a decision dated
December 29, 2006, but the Board found this was an informational letter and not a final decision with appeal rights.
3

Appellant indicated that he was aware of the injury on September 11, 1991.

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By decision dated October 12, 2007, the Office determined that appellant’s applications
for reconsideration were untimely. The Office denied merit review on the grounds that appellant
had not shown clear evidence of error.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision.4 The employee shall exercise this right through a request to
the district Office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”5
Section 8128(a) of the Act6 does not entitle a claimant to a review of an Office decision
as a matter of right.7 This section vests the Office with discretionary authority to determine
whether it will review an award for or against compensation.8 The Office, through regulations,
has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a).9
As one such limitation, the Office has stated that it will not review a decision denying or
terminating a benefit unless the application for reconsideration is filed within one year of the
date of that decision.10 The Board has found that the imposition of this one-year limitation does
not constitute an abuse of the discretionary authority granted the Office under 5 U.S.C.
§ 8128(a).11
The Board has held, however, that a claimant has a right under 5 U.S.C. § 8128(a) to
secure review of an Office decision upon presentation of new evidence that the decision was
erroneous.12 In accordance with this holding the Office has stated in its procedure manual that it
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.605 (1999).

6

5 U.S.C. § 8128(a).

7

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

8

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”
9

Thus, although it is a matter of discretion on the part of the Office whether to review an award for or against
payment of compensation, the Office has stated that a claimant may obtain review of the merits of a claim by:
(1) showing that the Office erroneously applied or interpreted a specific point of law; (2) advancing a relevant legal
argument not previously considered by the Office, or (3) constituting relevant and pertinent evidence not previously
considered by the Office; see 20 C.F.R. § 10.606(b).
10

20 C.F.R. § 10.607(a).

11

See Leon D. Faidley, Jr., supra note 7.

12

Leonard E. Redway, 28 ECAB 242 (1977).

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forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of
error” on the part of the Office.13
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.14 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.15 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.16 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.17 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.18 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office decision.19 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.20
ANALYSIS
Appellant submitted a number of letters requesting reconsideration, beginning on a
September 21, 2006. He indicated that the date of the injury was August 9, 2000 and he noted
that the Office decisions dated November 22, 2000, April 22, 2002 and August 27, 2004. These
decisions relate to the claim of a right shoulder injury on August 9, 2000. Since the last decision
on the merits of this claim was the April 22, 2002 decision, the application for reconsideration
was untimely filed.
To require the Office to reopen the case for merit review, appellant must establish “clear
evidence of error” by the Office. Appellant contends that the claim was not properly developed
and the evidence not properly considered, without providing support for her contention. He
argued, for example, that the traumatic injury claim for August 9, 2000 was a duplicate of the
claim for a May 3, 2000. As the Board explained in its prior decision, appellant was alleging a
13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (May 1996).

14

See Dean D. Beets, 43 ECAB 1153 (1992).

15

See Leona N. Travis, 43 ECAB 227 (1991).

16

See Jesus D. Sanchez, 41 ECAB 964 (1990).

17

See Leona N. Travis, supra note 15.

18

See Nelson T. Thompson, 43 ECAB 919 (1992).

19

Leon D. Faidley, Jr., supra note 7.

20

Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

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new employment incident on August 9, 2000 and therefore it was a new claim for compensation,
not a duplicate of a prior claim. Appellant submitted the September 18, 2000 report from
Dr. Gartsman and stated that it was not considered by the Office. The May 21, 2001 decision
from the Office hearing representative specifically discussed the report and found that it was not
sufficient to establish the claim. She submitted a May 10, 2006 report from Dr. Kant, who did
not discuss an August 9, 2000 injury.
The Board finds that appellant has not established clear evidence of error by the Office.
While the May 3, 2000 right shoulder injury and the August 9, 2000 claim have separate OWCP
file numbers, the cases have been combined under a master file and associated subsidiary file. If
appellant has a claim based on any accepted right or left arm condition, then he may pursue such
a claim and receive a final decision. With respect to the denial of the claim for a right shoulder
injury on August 9, 2000, appellant has not established clear evidence of error and the Office
properly denied merit review.
CONCLUSION
The application for reconsideration was untimely and failed to show clear evidence of
error by the Office.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 12, 2007 is affirmed.
Issued: June 20, 2008
Washington, DC

Alec J. Koromilas, Chief 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
__________________________________________
A.C., Appellant
and
DEPARTMENT OF LABOR, BUREAU OF
LABOR STATISTICS, Mountainside, NJ,
Employer
__________________________________________

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

Docket No. 08-1453
Issued: November 18, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 21, 2008 appellant, through her attorney, filed a timely appeal from the
November 20, 2007 and March 26, 2008 decisions of the Office of Workers’ Compensation
Programs which denied her claim of a left ankle injury. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the appeal.
ISSUE
The issue is whether appellant’s preexisting left ankle condition was aggravated by her
federal employment and whether she sustained a back condition due to factors of her federal
employment.
FACTUAL HISTORY
On August 20, 2007 appellant, a 42-year-old economic assistant, filed an occupational
disease claim alleging injury to her left ankle and low back. She advised that she had a
preexisting left ankle condition and that the long walking and standing required by work in the

field caused swelling and pain and aggravated arthritis in her ankle. Appellant also noted that
she had degenerative disease of the lumbar spine. She stated that her left ankle condition
developed 14 years prior following an injury and, in November 2006, she noticed increased
swelling while working.1 On January 17, 2007 appellant underwent arthroscopic treatment and
received physical therapy and acupuncture treatments. Following her most recent surgery, she
returned to work on April 25, 2007 at light duty; however, the increased sitting required in her
job caused increased back pain.
In an October 12, 2007 letter, the Office requested that appellant submit additional
evidence in support of her claim. It advised her to submit a report from an attending physician
which listed a diagnosis of her medical condition and provided an opinion on how her condition
was caused by her federal employment. No evidence was received within the 30 days allotted.
In a November 20, 2007 decision, the Office denied appellant’s claim. It accepted that
her work required long periods of walking and standing but found that no medical evidence had
been received in support of her claim.
On December 18, 2007 appellant requested a review of the written record by an Office
hearing representative. She submitted medical records from Dr. Pushp R. Bhansali, an
orthopedic surgeon, who noted a history of a severe left ankle injury several years prior for
which appellant underwent an open reduction and internal fixation. Subsequently, appellant
developed post-traumatic osteoarthritis of the left ankle. Dr. Bhansali advised that appellant
returned for treatment on October 17, 2006 due to progressive pain in her left ankle. Physical
examination revealed a marked reduction in range of motion with crepitus in the ankle joint.
Appellant advised Dr. Bhansali that she did field work and had experienced swelling in the left
ankle joint. After a period of conservative treatment, Dr. Bhansali performed arthroscopic
surgery on January 17, 2007, which revealed cartilage damage to the tibial plafond,
chondromalacia and chronic synovitis with loose ankle fragments. When last examined on
November 15, 2007 appellant had persistent pain in the left ankle. Dr. Bhansali stated that
appellant’s condition would get worse if she continued in work requiring long standing and
walking. He advised that she was capable of sedentary work.2
In a March 26, 2008 decision, an Office hearing representative affirmed the denial of
appellant’s claim. She found that the medical evidence from Dr. Bhansali was not sufficient to
establish that appellant’s work duties caused or aggravated her left ankle condition. It was also
found that appellant submitted no medical evidence in support of her claim of an employmentrelated back condition.

1

Appellant noted that, for the prior five years, her work required increasing field work with a computer. She also
stated that on July 27, 2006 after attending a meeting at her office, a chair came out from under her as she was
attempting to sit down and she fell on the floor. Due to increasing left ankle and back pain, she sought medical
treatment in October 2006.
2

Appellant submitted reports of her physical therapy treatment following surgery.

2

LEGAL PRECEDENT
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.3
Whether an employee sustained an injury in the performance of duty and has disability
for employment is a medical issue to be resolved by medical evidence.4 Rationalized medical
opinion evidence is medical evidence which includes a physician’s opinion on whether there is a
causal relationship between the employee’s diagnosed condition and the implicated work
factors.5 In assessing the probative value of a physician’s opinion, factors include a complete
factual and medical background of the claimant; an opinion expressed in terms of a reasonable
degree of medical certainty and rationale explaining the nature of the relationship between the
diagnosed condition and the implicated employment factors.6
It is well established that where employment factors cause an aggravation of an
underlying physical condition, the employee is entitled to compensation for periods of disability
related to the aggravation.7 Where the medical evidence supports an aggravation or acceleration
of an underlying condition precipitated by working conditions or injuries, such disability is
compensable.8 However, the normal progression of untreated disease cannot be said to
constitute “aggravation” of a condition merely because the performance of normal work duties
reveal the underlying condition.9 For the conditions of employment to bring about an
aggravation of preexisting disease, the employment must be such as to cause acceleration of the
disease or to precipitate disability.10
ANALYSIS
Appellant contends that the walking and standing required during field work as an
economic assistant aggravated the preexisting osteoarthritis of her left ankle. The Office
3

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

4

See Paul E. Thams, 56 ECAB 503 (2005).

5

See Donald W. Wenzel, 56 ECAB 390 (2005); Victor J. Woodhams, 41 ECAB 345 (1989).

6

See Larry D. Dunkin, 56 ECAB 220 (2004).

7

See Thomas N. Martinez, 41 ECAB 1006 (1990); William D. Bryson, 32 ECAB 860 (1981).

8

See Grace K. Johnson, 8 ECAB 547 (1956).

9

See Glenn C. Chasteen, 42 ECAB 493 (1991); Sylvia E. Loomis, 1 ECAB 18 (1947).

10

Compare John Watkins, 47 ECAB 597 (1996); Helen Morgan (Willis R. Morgan), 6 ECAB 633 (1954); Jerry
Hall, 6 ECAB 522 (1954).

3

accepted that her federal employment required extensive walking and standing, as alleged. The
issue is whether the medical evidence establishes that appellant’s federal employment aggravated
her preexisting left ankle condition.
Dr. Bhansali, appellant’s attending orthopedic surgeon, provided a report addressing the
preexisting injury to her left ankle and subsequent development of post-traumatic osteoarthritis
of the joint. He advised that she sought treatment on October 17, 2006 for increasing pain in the
left ankle and physical examination revealed limitation of motion and crepitus. Although
appellant provided a description of doing field work in which she experienced stiffness and
swelling of the ankle, Dr. Bhansali did not address whether her work duties had aggravated or
contributed to her osteoarthritis condition or to her disability for work. He did not explain how
prolonged standing or walking in her employment would contribute to or accelerate the
osteoarthritis of her left ankle joint. Dr. Bhansali noted that arthroscopic surgery was performed
on January 17, 2007 but did not explain how her work activities caused or accelerated her
condition and the need for surgery. He merely noted, post surgery, that her condition could get
worse if she continued in her job. It is well established that the mere fact that a condition
manifests itself during a period of employment does not raise an inference of causal relation.11
Neither the fact that a condition became apparent during a period of employment nor the belief
of the claimant that the condition was caused or aggravated by employment factors is sufficient
to establish causal relation.12 As noted, the aggravation of an underlying physical condition by
employment factors must be established by probative medical opinion evidence. The Board
finds that Dr. Bhansali did not provide a probative medical opinion on this issue. For this reason,
appellant has not established that her federal employment aggravated her left ankle
osteoarthritis.13
To the extent that appellant attributes her low back condition to factors of federal
employment, the Board notes that she did not submit any medical evidence to support this aspect
of her claim. In this respect, she has failed to establish a prima facie claim that her sedentary
work caused or aggravated her lumbar spine condition.14 Although appellant submitted a
statement contending that sitting at sedentary duty caused back pain, she did not submit any
rationalized medical evidence addressing this issue. On October 12, 2007, the Office informed
her of the additional evidence needed to support her claim; however, the record before the Board
contains no medical evidence. Therefore, appellant failed to provide the factual and medical
evidence required to establish a prima facie claim.15

11

See Roy L. Humphrey 57 ECAB 238 (2005).

12

Id.

13

The records from appellant’s physical therapist do not constitute competent medical opinion in support of
causal relation as a physical therapist is not a physician as defined under the Act. See 5 U.S.C. § 8101(2); David P.
Sawchuk, 57 ECAB 316 (2005); Jerre R. Rinehart, 45 ECAB 518 (1994).
14

See Donald W. Wenzel, 56 ECAB 390 (2005).

15

See also Richard H. Weiss, 47 ECAB 182 (1995).

4

CONCLUSION
The Board finds that appellant has not established that factors of her federal employment
aggravated her preexisting left ankle condition. Moreover, appellant did not establish a low back
condition due to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the March 26, 2008 and November 20, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 18, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.T., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION,
Barbourville, KY, Employer
__________________________________________

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

Docket No. 13-200
Issued: April 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 5, 2012 appellant filed a timely appeal from an October 24, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his
occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained hearing loss causally related
to factors of his federal employment.
On appeal, appellant contends that he sustained work-related hearing loss for which he
required hearing aids.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 27, 2012 appellant, then a 56-year-old coal mine safety and health inspector,
filed an occupational disease claim (Form CA-2) under OWCP File No. xxxxxx050. On
April 10, 2010 he first realized that his hearing loss in both ears was caused by noise exposure
from mining equipment at the employing establishment.2
In an undated statement, appellant related that during 70 percent to 90 percent of his
career he was exposed to noise 8 to 10 hours a week. His current job duties required him to be
around loud equipment noise approximately 40 hours a week, 8 to 6 hours a day. Appellant
wore hearing protection. He had difficulty hearing conversations with his family and coworkers
and had ringing in both ears. Appellant had no prior complications or complaints related to
hearing loss and received no treatment for this condition.
Appellant submitted hearing conversation annual audiograms from September 6, 2000 to
March 12, 2012 which showed hearing loss and recommended continued annual testing. He also
submitted documents related to his prior hearing loss claim under OWCP File No. xxxxxx716,
including Dr. Arnold’s October 18, 2010 report.
In a March 28, 2012 memorandum, the employing establishment stated that commencing
in 1988 appellant was exposed to excessive hazardous equipment noise while performing his
work duties based on noise survey results.
By letter dated June 28, 2012, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It requested that he submit additional factual and medical
evidence to establish that his hearing loss was due to exposure to hazardous noise after
October 18, 2010, the date of Dr. Arnold’s evaluation. On June 28, 2012 OWCP also requested
that the employing establishment respond to appellant’s allegations and provide a copy of all
medical examinations pertaining to his hearing or ear problems, including any preemployment
examinations and audiograms.
In a July 9, 2012 statement, appellant described the development of his hearing loss
beginning on April 10, 2010, which he attributed to noise exposure at the employing
establishment. He contended that his condition continued to worsen due to the exposure.
Earmuffs and earplugs were provided, but were not sufficient when noise levels exceeded certain
decimals.
In e-mails dated August 6 and 8, 2012, the employing establishment stated that from
March 2008 to March 2012 appellant worked as a mine safety and health specialist until he
moved to its ventilation group as a ventilation specialist. Both positions had the same
2

On April 12, 2010 appellant filed a Form CA-2 under OWCP File No. xxxxxx716 alleging that on April 8, 2010
he realized that his hearing loss in both ears was caused by noise exposure from mining equipment at the employing
establishment. In a November 17, 2010 decision, OWCP denied his claim. It relied on an October 18, 2010 medical
report of Dr. Henry G. Arnold, Jr., a Board-certified otolaryngologist and OWCP referral physician, who found that
appellant’s bilateral high frequency sensorineural hearing loss was not causally related to his federal employment.
In a December 23, 2010 decision, OWCP denied appellant’s request for further merit review of his claim pursuant to
5 U.S.C. § 8128(a).

2

descriptions and functional job requirements as appellant’s prior coal mine inspector position.
While working as a ventilation specialist, appellant was exposed to various mine machinery at
83.8 decibels (dBAs) to 115.5 dBAs four hours a day, approximately three days a week. He was
exposed to noise from underground mining equipment 28 to 30 hours a week while working as a
mine safety and health specialist. The employing establishment submitted a copy of this
position.
On August 22, 2012 OWCP referred appellant to Dr. Frank B. Little, Jr., a Boardcertified otolaryngologist, for a second opinion evaluation. It prepared a statement of accepted
facts (SOAF) which noted that he was exposed to noise from mining equipment from
October 2000 to the present and in his nonfederal employment from 1980 to 1998. OWCP also
noted the noise level information provided by the employing establishment.
In a September 18, 2012 form report, Dr. Little stated that an audiogram was completed
on September 4, 2012 which revealed the following dBA losses at 500, 1,000, 2,000 and 3,000
hertz: 25, 45, 70 and 70 for the right ear and 25, 40, 70 and 75 for the left ear. Speech
discrimination thresholds were 25 dBAs bilaterally and the auditory discrimination score was 92
percent for the right ear and 88 percent for the left ear. Dr. Little also reported that appellant’s
physical examination findings were within normal limits. He diagnosed sensory hearing loss,
stating that there was no significant change since 2010. Dr. Little advised that appellant’s
workplace exposure was of sufficient intensity and duration to have caused the hearing loss in
question. He recommended noise protection and hearing aids. Dr. Little listed that the statement
requiring him to provide an opinion as to whether the diagnosed condition was or was not due to
noise exposure encountered in appellant’s federal employment was not applicable.
On September 18, 2012 OWCP’s medical adviser reviewed the medical record. He
advised that appellant did not have any hearing loss due to noise exposure in his federal
employment based on Dr. Arnold’s October 18, 2010 report and the September 4, 2012
audiogram. The medical adviser concluded that a Form CA-51 report could not be prepared.
In an October 24, 2012 decision, OWCP denied appellant’s hearing loss claim. It found
that the weight of the medical opinion, as represented by Dr. Little’s September 18, 2012 report,
did not establish that his hearing loss was caused by noise exposure in his federal employment.
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 reliable, probative and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).

3

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.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7 The mere fact that work activities may produce symptoms
revelatory of an underlying condition does not raise an inference of an employment relation.
Such a relationship must be shown by rationalized medical evidence of a causal relation based
upon a specific and accurate history of employment conditions which are alleged to have caused
or exacerbated a disabling condition.8
ANALYSIS
There is no dispute that appellant was exposed to loud noise while working at the
employing establishment. The issue is whether such exposure caused his diagnosed hearing loss.
The Board finds that this case is not in posture for decision.
OWCP relied on the report of Dr. Little, a Board-certified otolaryngologist and an OWCP
referral physician, to deny appellant’s hearing loss claim. In his September 18, 2012 form
report, Dr. Little presents internally inconsistent findings. He diagnosed sensory hearing loss
and stated that there was no significant change since 2010. Dr. Little also stated that appellant’s
workplace exposure was sufficient in intensity and duration to have caused his hearing loss. He
noted that the statement requiring him to provide an opinion as to whether appellant’s hearing
loss was or was not due to noise exposure encountered in his federal employment was not
applicable.
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden to establish entitlement to compensation, OWCP shares the
responsibility in the development of the evidence.9 When OWCP selects a physician for an
opinion on causal relationship, it has an obligation to secure, if necessary, clarification of the

5

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB
623 (2000).
6

I.R., Docket No. 09-1229 (issued February 24, 2010); W.D., Docket No. 09-658 (issued October 22, 2009); D.I.,
59 ECAB 158 (2007).
7

D.S., Docket No. 09-860 (issued November 2, 2009); B.B., 59 ECAB 234 (2007); Solomon Polen, 51 ECAB
341 (2000).
8

Patricia J. Bolleter, 40 ECAB 373 (1988).

9

P.K., Docket No. 08-2551 (issued June 2, 2009).

4

physician’s report and to have a proper evaluation made.10 OWCP referred appellant to
Dr. Little for examination and opinion on causal relation. It has the responsibility to obtain a
report that will resolve the issue of whether his hearing loss was caused by his federal
employment.11 Dr. Little’s opinion on causal relation is equivocal. He did not provide a
rationalized opinion on the cause of appellant’s hearing loss.12
The Board will remand the case to obtain a supplemental report from Dr. Little clarifying
whether appellant sustained hearing loss causally related to his workplace noise exposure.
OWCP should combine the case records of appellant’s hearing loss claims and refer the evidence
to Dr. Little for review. After such other development as OWCP deems necessary, it should
issue a de novo decision.13
CONCLUSION
The Board finds that this case is not in posture for a decision.

10

Alva L. Brothers, Jr., 32 ECAB 812 (1981).

11

See Ramon K. Farrin, Jr., 39 ECAB 736 (1988).

12

See Roy L. Humphrey, 57 ECAB 238 (2005) (to be probative, the medical opinion must be of reasonable
medical certainty and supported by medical rationale).
13

On appeal, appellant contended that he sustained an employment-related hearing loss for which he required
hearing aids. In view of the Board’s disposition of the case, it need not address his contention.

5

ORDER
IT IS HEREBY ORDERED THAT the October 24, 2012 decision of the Office of
Workers’ Compensation is set aside and remanded for further action consistent with this decision
of the Board.
Issued: April 12, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
U.S. POSTAL SERVICE, SOUTH ARLINGTON
STATION, Akron, OH, Employer
__________________________________________

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

Docket No. 16-1882
Issued: March 22, 2017

Case Submitted on the Record

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

JURISDICTION
On September 23, 2016 appellant, through counsel, filed a timely appeal from an
August 1, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant has established more than five percent permanent
impairment of the right lower extremity, for which she previously received a schedule award.
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.

On appeal, counsel argues that the decision is contrary to fact and law.
FACTUAL HISTORY
On December 16, 2013 appellant, then a 40-year-old city carrier assistant, filed a
traumatic injury claim (Form CA-1) alleging that on December 14, 2013 she sustained a right
ankle fracture when she slipped and fell on a snowy day while delivering mail. She stopped
work on the day of the injury. OWCP accepted the claim for right closed lateral malleolus ankle
fracture and right distal tibiofibular ligament ankle sprain and authorized ankle surgery, which
occurred on December 15, 2013. It paid appellant wage-loss compensation on the supplemental
rolls for the period January to July 26, 2014.
On June 9, 2014 appellant accepted a modified letter carrier job offer working for two
and one-half hours per day. She returned to work on June 23, 2014, and to full-time full-duty
work on July 28, 2014.
In a December 19, 2014 note, Dr. Eric T. Miller, a treating Board-certified orthopedic
surgeon, indicated that appellant reached maximum medical improvement (MMI) as of
December 11, 2014.
On January 6, 2015 appellant filed a claim for a schedule award (Form CA-7).
In an April 9, 2015 report, Dr. Catherine Watkins Campbell, a physician Board-certified
in family practice and occupational medicine, provided a permanent impairment rating using the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides).3 She observed that:
“Appellant ambulated with a moderately antalgic gait more pronounced without
shoes. She was unable to toe walk on the left. There was mild swelling of the
ankle but no temperature changes. The right ankle mortise measured 29.7
centimeters (cm) and the left 27.5 cm. There was asymmetric mild lateral laxity
of the right ankle. There was a 12 cm lateral scar that ran to the dorsum of the
mid foot. There was mild diffuse extensor tendon tenderness across the dorsum
of the foot and ankle. Normal strength noted. ‘Both calves measured 47.5 cm.
Range of motion of the right ankle measured 40, 38, 32 degrees of dorsiflexion,
24, 24, 24 degrees of plantar flexion, 14 122m 14 degrees of eversion, 20, 18.’
*** There was no significant varus or valgus deformity at the ankle.”
Dr. Watkins Campbell assigned class 1 for mild motion deficits using Table 16-2. She assigned
a grade modifier of two for functional history, one for physical examination modifier, and zero
for clinical studies modifier. Using the net adjustment formula, Dr. Watkins Campbell
determined that appellant had 10 percent right lower extremity permanent impairment. The date
of MMI was determined to be December 12, 2014, based on Dr. Miller’s opinion.

3

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

2

On May 22, 2015 OWCP’s medical adviser reviewed Dr. Watkins Campbell’s
impairment rating and determined that appellant had five percent right lower extremity
permanent impairment. He observed that the findings of 40 degrees right ankle dorsiflexion
appeared to be a typographical error as 20 degrees was the maximum for dorsiflexion. The
medical adviser also noted the two numbers for right ankle eversion probably were attributable to
right ankle inversion. He recommended that OWCP obtain clarification from Dr. Watkins
Campbell on the range of motion as a key factor. In reaching his impairment rating, the medical
adviser assigned class 1 for the diagnosis of bi-malleolar fracture with range of motion within
normal ranges. He assigned a grade modifier of one for functional history using Table 16-6,
page 516 and a grade modifier of one for physical examination using Table 16-7, page 517.
Using Table 16-6, page 516, the medical adviser explained that he assigned a grade modifier of
one instead of two for functional history adjustment as there was no documentation of an
antalgic gait requiring the use of a cane, crutch, or external orthotic device, or positive
Trendelenburg test. He assigned a grade modifier of one for physical examination findings of
mild swelling using Table 16-7, page 517. The medical adviser noted that no modifier was
assigned for clinical studies using Table 16-8, page 519. Using the net adjustment formula, he
found the final grade to be C with a permanent impairment rating of five percent.
On July 9, 2015 OWCP requested that Dr. Watkins Campbell clarify her report. In a
letter dated July 20, 2015, counsel informed OWCP that there would be no response forthcoming
from Dr. Watkins Campbell.
By decision dated September 10, 2015, OWCP granted appellant a schedule award for
five percent right lower extremity permanent impairment. The period of the award was from
January 23 to May 3, 2015.
In a letter dated September 21, 2015, counsel requested a telephonic hearing before an
OWCP hearing representative. The hearing was held on May 17, 2016.
By decision dated August 1, 2016, OWCP’s hearing representative affirmed the
September 10, 2015 schedule award determination. She found OWCP’s medical adviser
constituted the weight of the evidence as he properly applied the A.M.A., Guides when
determining permanent impairment.
LEGAL PRECEDENT
Under section 8107 of FECA4 and section 10.404 of the implementing federal
regulations,5 schedule awards are payable for permanent impairment of specified body members,
functions, or organs. FECA, however, does not specify the manner in which the percentage of
impairment shall be determined. For consistent results and to ensure equal justice under the law
for 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

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404

3

adopted by the implementing regulations as the appropriate standard for evaluating schedule
losses.6
The sixth edition of the A.M.A., Guides provides a diagnosis-based impairment method
of evaluation utilizing the World Health Organization’s International Classification of
Functioning, Disability and Health (ICF).7 Under the sixth edition, the evaluator identifies the
impairment Class of Diagnosis (CDX) condition, which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies
(GMCS).8 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).9
In determining impairment for the lower extremities, an evaluator must establish the
appropriate diagnosis for each part of the lower extremity to be rated. With respect to the ankle,
the relevant portion of the leg (foot) for the present case, reference is made to Table 16-2 (Foot
and Ankle Regional Grid) beginning on page 501.10 After the class of diagnosis is determined
from the Foot and Ankle Regional Grid (including identification of a default grade value), the net
adjustment formula is applied using the grade modifier for functional history, grade modifier for
physical examination, and grade modifier for clinical studies.11
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
extent of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser
providing rationale for the percentage of impairment specified.12
ANALYSIS
OWCP accepted the claim for right closed lateral malleolus ankle fracture and right distal
tibiofibular ligament ankle sprain.
It authorized ankle surgery, which occurred on
December 15, 2013. Appellant filed a claim for a schedule award on January 6, 2015. By
decision dated September 10, 2015, OWCP granted her a schedule award for five percent right
lower extremity permanent impairment, which was affirmed by an OWCP hearing representative
by decision dated August 1, 2016.

6

D.J., 59 ECAB 620 (2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

7

A.M.A., Guides 3 (6th ed. 2009), section 1.3, The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.
8

A.M.A., Guides 494-99 (6th ed. 2009).

9

Id. at 497.

10

Id. at 501-07.

11

Id. at 515-22.

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013). See C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57
ECAB 349 (2006).

4

In support of her claim for an additional schedule award, appellant submitted an April 9,
2015 impairment rating by Dr. Watkins Campbell. Dr. Watkins Campbell reviewed medical
records and the history of the employment injury. She provided examination findings and
diagnosed right ankle closed lateral malleolus fracture and right ankle sprain distal tibiofibular
ligament. Dr. Watkins Campbell noted that Dr. Miller found that appellant had reached MMI on
December 12, 2014. She referenced Table 16-2 of the A.M.A., Guides and classified appellant’s
impairment as a class 1 for mild right ankle motion deficits. Dr. Watkins Campbell assigned a
grade modifier of 2 for functional history, 1 for physical examination, and 0 for clinical studies.
Applying the net adjustment formula, she calculated an adjustment of 0, which resulted in a
permanent impairment rating of 10 percent for the right lower extremity.
OWCP’s medical adviser reviewed Dr. Watkins Campbell’s impairment rating and
disagreed with her assessment. He explained that the record did not support Dr. Watkins
Campbell’s assigning a grade modifier of 2 for functional history. According to Table 16-6,
page 516 a grade modifier of 2 is warranted for moderate problems based on the documentation
of an antalgic gait requiring a cane or crutch, no external orthotic device was required and there
was no positive Trendelenburg test. On July 9, 2015 OWCP requested that Dr. Watkins
Campbell clarify her report, but on July 20, 2015 counsel advised that no further report would be
provided.
OWCP’s medical adviser reviewed the medical record and opined that appellant had five
percent permanent impairment of her right lower extremity. He utilized Table 16-2, page 503,
and assigned class 1 impairment for bi-malleolar fracture with range of motion within normal
ranges, with a default value of five percent for grade C. The medical adviser reported a grade
modifier of 1 for functional history due to continued ankle symptoms. He also assigned grade
modifiers of 1 for physical examination due to mild swelling and 0 for clinical studies. After
applying these grade modifiers to the net adjustment formula, the medical adviser concluded that
appellant had five percent right lower extremity permanent impairment.
The Board finds that the weight of the medical evidence rests with the opinion of
OWCP’s medical adviser as he provided the only impairment rating that properly applied the
sixth edition of the A.M.A., Guides.13 The Board notes that the medical adviser properly
reviewed the medical record and evaluated appellant’s right lower extremity in accordance with
the A.M.A., Guides. The medical adviser appropriately applied the sixth edition of the A.M.A.,
Guides in determining that appellant had five percent permanent impairment of the right lower
extremity. Dr. Watkins Campbell’s impairment rating failed to establish that appellant sustained
permanent impairment greater than five percent for the right lower extremity.14 The record does
not contain any other current medical evidence in conformance with the A.M.A., Guides that
shows greater impairment.

13

M.C., Docket No. 15-1757 (issued March 17, 2016). The only medical evidence that demonstrated a proper
application of the A.M.A., Guides was the report of the medical adviser).
14

A.M.A., Guides 516.

5

On appeal, counsel contends that OWCP’s decision was contrary to fact and law. Based
on the findings and reasons stated above, the Board finds that counsel’s arguments are not
substantiated.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant failed to establish more than five percent permanent
impairment of the right lower extremity, for which she previously received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 1, 2016 is affirmed.
Issued: March 22, 2017
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
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and
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DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS MEDICAL CENTER, Portland, OR, )
Employer
)
__________________________________________ )
L.C., Appellant

Appearances:
John E. Goodwin, Esq., for the appellant
No appearance, for the Director

Docket No. 12-978
Issued: October 26, 2012

Oral Argument August 2, 2012

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 20, 2012 appellant, through her attorney, filed a timely appeal from the
November 22, 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 OWCP properly determined appellant’s wage-earning capacity.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, who worked in a temporary position as a part-time nurse, sustained a thumb
injury on August 24, 2003. OWCP accepted her claim for right thumb sprain and joint
derangement of the right hand and approved surgery.2
Appellant accepted a modified, temporary position as a nurse in the compliance office
effective January 6, 2009. The position was described as sedentary. Appellant was to assist the
compliance officer in ensuring that the medical center exercised due diligence with respect to
business operations and compliance with applicable laws, regulations and policies. Work
assignments were to include conducting physical and record audits of part-time physicians and
the part-time physician program; collaborating with services and human resources/payroll
regarding part-time physician time and attendance; making phone calls, facilitating meetings for
managers and timekeepers; conducting seated review of physician log sheets for their scheduled
tours; comparing paper documents to electronic records; aggregating part-time physician monitor
reports; reviewing paper or electronic spreadsheets sent from the medical center services and
entering the results via computer into Excel spreadsheets; performing resident supervision
documentation audits; reviewing electronic patient lists; assisting with preparation of routine
compliance reports; maintaining program records; collaborating with managers, supervisors and
front line staff as needed; assisting with compliance program development by attending
committee meetings involving planning, education and training programs; and completing
miscellaneous web-based or onsite training as required for understanding of the compliance
program.
Appellant worked in the modified position until April 5, 2009, when the assignment
expired. On May 11, 2009 OWCP issued a formal loss of wage-earning capacity (LWEC)
decision reducing her compensation benefits based on actual wages earned in her modified
position. The May 11, 2009 decision was subsequently set aside and remanded on the issue of
pay rate.3

2

This case was previously before the Board. On August 30, 2005 the Board set aside a November 16, 2004
OWCP decision reducing appellant’s compensation benefits for failing to cooperate with vocational rehabilitation.
Docket No. 05-433 (issued August 30, 2005). In a December 23, 2008 decision, the Board set aside August 21,
2006 and May 3, 2007 decisions and remanded the case for further development to determine the correct pay rate for
purposes of establishing wage-earning capacity. Docket No. 08-224 (issued December 23, 2008). On March 8,
2010 the Board affirmed May 20 and November 17, 2008 decisions denying appellant’s compensation claim.
Docket No. 09-1173 (issued March 8, 2010). In a March 17, 2010 decision, the Board remanded the case for a
proper determination of the pay rate to be used in determining wage-earning capacity. Docket No. 09-1816 (issued
March 17, 2010). On October 26 and 29, 2010 the Board dismissed appellant’s appeals for lack of jurisdiction in
Docket No. 10-531 (issued October 26, 2010) and Docket No. 10-260 (issued October 29, 2010). On January 20,
2012 the Board dismissed her appeal of a July 13, 2010 wage-earning capacity decision on the grounds that the case
was in an interlocutory posture. Docket No. 11-554 (issued January 20, 2012). The facts and law contained in those
decisions and orders are incorporated herein by reference.
3

In a decision dated March 17, 2010, the Board set aside the May 11, 2009 decision and remanded the case to
OWCP for a proper calculation of appellant’s pay rate. Docket No. 09-1816 (issued March 17, 2010).

2

In a May 20, 2011 decision, OWCP issued a formal LWEC decision reducing appellant’s
compensation based on the actual wages earned in the modified nurse position in which she
worked from January 6 to April 4, 2009.
Appellant, through her representative, requested an oral hearing, which was held on
September 28, 2011, contending that the position on which the LWEC decision was based was
makeshift in nature. Yvonne Carson, a registered nurse and Injury Management Program
Manager, attended the hearing on behalf of the employing establishment. In his opening
statement, counsel requested that he be permitted to question Ms. Carson. Noting that
Ms. Carson had been responsible for structuring and presenting to appellant the modified nurse
position, he contended that she would be able to testify as to how the specific duties of the
position were determined, whether other individuals had performed such duties before, whether
they were in compliance with appellant’s physical restrictions and whether they had been
selected specifically for her. OWCP’s hearing representative denied counsel’s request to
question Ms. Carson. He stated:
“As I indicated in our conversation about this issue before the hearing, there [is]
no prior request for a subpoena or any indication that there is going to need to be
agency testimony. The [employing establishment] can certainly address those
questions in response to the transcript, and I [am] not going to have them sworn or
be party to the hearing at this point.”
Appellant testified that she never performed the duties outlined in her modified position
description. Rather, she went into work and “essentially did nothing.” Appellant sat at her desk
and watched the clock, took long lunches, made telephone calls, went to Starbucks, helped her
daughter with her homework, watched television, surfed the internet and listened to her iPod.
In a letter dated October 18, 2011, Ms. Carson stated that the employing establishment
had very carefully designed the modified position to comply with appellant’s physical
restrictions. She was not aware that appellant was not performing duties in accordance with the
job description.
In a letter dated October 30, 2011, counsel objected to OWCP’s hearing representative’s
denial of his request to question Ms. Carson at the September 28, 2011 hearing. He reiterated his
intent to solicit testimony to the effect that the temporary assignment was created to fit
appellant’s physical requirements and was noncompetitive employment. Counsel contended that
appellant would have testified that the position did not have an official title or a formal position
description; there was no Form 50 issued regarding the limited-duty position; the strict
limitations precluded the performance of many nursing duties; and there was no evidence that
she would have been able to secure a position in the community at large that required such
limited duties. He noted that Ms. Carson would testify that appellant spent the bulk of her time
in nonproductive activities. Counsel argued that the restricted duties of the modified position did
not constitute a bona fide job that would have been available to appellant in the community at
large. Therefore, the position did not fairly and reasonably represent appellant’s wage-earning
capacity and the original LWEC determination was erroneous.

3

By decision dated November 22, 2011, OWCP’s hearing representative affirmed the
May 20, 2011 decision. He found that the modified position fairly and reasonably represented
her wage-earning capacity and was not makeshift in nature. The hearing representative
acknowledged counsel’s attempt to obtain Ms. Carson’s testimony at the September 28, 2011
hearing regarding the makeshift nature of the modified position. He stated that Ms. Carson made
it clear that the position was designed to accommodate appellant’s restrictions, but that appellant
was performing duties that were also performed by others in administrative nursing positions.
The hearing representative also noted that appellant was observed to be working.
LEGAL PRECEDENT
Section 10.621 of the Code of Federal Regulations provide that when an oral hearing has
been requested:
“(a) The employer may send one (or more, where appropriate) representative(s) to
observe the proceeding, but the agency representative cannot give testimony or
argument or otherwise participate in the hearing, except where the claimant or the
hearing representative specifically asks the agency representative to testify.4
(b) The hearing representative may deny a request by the claimant that the agency
representative testify where the claimant cannot show that the testimony would be
relevant or where the agency representative does not have the appropriate level of
knowledge to provide such evidence at the hearing. The employer may also
comment on the hearing transcript, as described in § 10.617(e).”5
OWCP’s procedure manual requires that any decision issued must be well-written, use
appropriate language to clearly communicate information and address all the facets of the
evidence that led to the conclusion, including evidence the claimant submitted.6
OWCP is required to make findings of fact and a statement of reasons regarding the
material facts of the case.7 Its findings should be sufficiently detailed so that the claimant can
understand the reasoning behind the decision.8
ANALYSIS
On November 22, 2011 OWCP’s hearing representative affirmed the May 20, 2011
decision reducing appellant’s compensation based on the actual wages earned in the modified
4

See also Federal (FECA) Procedure Manual, Chapter 2 -- Claims, Review Process, Chapter 2.1601(6)(c)
(October 2011).
5

20 C.F.R. § 10.621.

6

Federal (FECA) Procedure Manual, Chapter 2 -- Claims, Recommended Decisions, Chapter 2.1400(5)
(March 1997).
7

20 C.F.R. § 10.126; Beverly Dukes, 46 ECAB 1014 (1995).

8

Paul M. Colosi, 56 ECAB 294 (2005).

4

nurse position. Appellant contended that the original LWEC decision was erroneous because the
modified position on which it was based was makeshift in nature. She also contends that the
hearing representative improperly denied counsel’s request to question the employing
establishment representative at the September 28, 2011 hearing. The Board finds that the case is
not in posture for a decision due to a procedural error on the part of the hearing representative.
The record reflects that, in accordance with federal regulations, the employing
establishment sent Ms. Carson to observe the September 28, 2011 hearing. The record further
reflects that counsel requested that he be permitted to question Ms. Carson, noting that she had
been responsible for structuring and presenting to appellant the modified nurse position. Counsel
contended that Ms. Carson would be able to testify as to how the specific duties of the position
were determined, whether other individuals had ever performed those duties before, whether they
were in compliance with appellant’s physical restrictions and whether they had been selected
specifically for appellant. OWCP’s hearing representative denied counsel’s request, noting that
Ms. Carson had not been subpoenaed to testify and he saw no indication that there was going to
be a need for agency testimony.
As noted, OWCP’s hearing representative may deny a request by a claimant that an
agency representative testify where the claimant cannot show that the testimony would be
relevant or where the agency representative does not have the appropriate level of knowledge to
provide such evidence at the hearing.9 In this case, however, there was no claim or evidence
presented that Ms. Carson did not have the expertise to address the issues at hand or that her
testimony would not be relevant. The evidence reflects that she participated in formulating the
modified position in question and possessed the requisite information.
The hearing
representative’s decision was made without proper regards to FECA’s implementing regulations.
The Board further finds that OWCP’s hearing representative’s November 22, 2011
decision was deficient, as it did not contain findings of fact and a statement of reasons regarding
his denial of counsel’s request to question Ms. Carson.10 Although he acknowledged counsel’s
attempt to obtain Ms. Carson’s testimony and suggested that her written representations were
sufficient to establish that the position was not makeshift, the hearing representative failed to
adequately explain the reasoning behind his decision to deny counsel’s request to have the
agency representative testify.11
For the foregoing reasons, the Board finds that this case is not in posture for decision.
The case will be remanded for further action consistent with this decision.

9

See supra note 5. The provisions concerning a claimant’s right to question an agency representative, who
appears voluntarily at a hearing, are not to be confused with the procedures governing the right to subpoena
witnesses to testify at oral hearings. See 20 C.F.R. § 619. See also Federal (FECA) Procedure Manual, Chapter 2 -Claims, Review Process, Chapter 2.1601(6)(h) (October 2011).
10

Supra note 7.

11

Paul M. Colosi, supra note 8.

5

CONCLUSION
The Board finds that this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the November 22, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: October 26, 2012
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 10-41
Issued: December 10, 2010

Oral Argument May 19, 2010

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

JURISDICTION
On September 25, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 26, 2008 and a nonmerit decision
dated July 2, 2009. Under 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 sustained a consequential injury on July 9, 2007 due to her
accepted bilateral knee conditions.
FACTUAL HISTORY
This case was previously before the Board. The Office accepted appellant’s occupational
disease claim for aggravation of degenerative joint disease of both knees and for a Bakers’ cyst
and synovitis of the left knee. Appellant underwent surgery on November 18, 1998 and
April 21, 1999. She received compensation for total disability. In a September 25, 2001
decision, the Office terminated appellant’s compensation on the grounds that she refused an offer
of suitable work. This was affirmed in a September 12, 2002 decision of an Office hearing

representative. The Office subsequently denied modification in decisions dated January 30
and May 14, 2003 and April 23, 2004. In a September 13, 2005 decision, the Board affirmed the
termination of benefits.1 The facts of the case as set forth in the Board’s prior decision are
incorporated by reference.
On October 15, 2007 appellant requested that the Office accept consequential injuries to
her left elbow, forearm and shoulder. In statements to the record, she advised that her knee
buckled on July 9, 2007 while she was at home, causing her to fall. Appellant stated that she was
walking into her kitchen when she fell, striking her left elbow against a counter. Thereafter, the
pain progressed from her left forearm to her left shoulder. As her knee was painful, appellant
used her arms for support.
Appellant submitted a July 31, 2007 magnetic resonance imaging (MRI) scan of her left
elbow. It noted swelling with extensive edema within the proximal radius and a large joint
effusion with a signal consistent with synovitis. There was tendinopathy with a partial tear of the
common extensor tendons, specifically involving the extensor carpi radialis brevis. The
proximal attachment to the radial collateral ligament also appeared torn and there was a partial
tear at its distal attachment upon the sublime tubercle.
By letter dated October 25, 2007, the Office requested that appellant submit additional
factual and medical evidence in support of her claim. It asked for a detailed description regarding
how her injury occurred and what she was doing at the time. The Office inquired as to any
witnesses to the injury. It also asked appellant to submit a comprehensive medical report from a
treating physician describing her symptoms, a diagnosis and an opinion as to how her condition
was causally related to her federal employment.
On November 24, 2007 appellant reiterated that her injury occurred while she was
entering her kitchen. Her knee buckled and, to keep from falling to the floor, she fell toward a
kitchen counter and landed on her left elbow. Appellant stated that, due to ongoing left knee
pain, she frequently leaned on her arms and body for support, which exacerbated her left
shoulder and forearm pain. She submitted a handwritten July 17, 2007 treatment note from
Dr. Carter P. Fenton, an osteopath, who listed that she fell on July 9, 2007 and was seen for
complaints involving her left elbow and upper extremity.
In a December 22, 2007 report, Dr. Fenton stated that appellant had ongoing problems
with her left shoulder, elbow, wrist and hand due to the stress she applied to the upper extremity
while balancing or lifting herself from chairs and using walkers and canes. He noted that she fell
on July 9, 2007 when her leg gave out and she landed on her left arm and shoulder. Dr. Fenton
related that appellant experienced swelling and loss of motion in her left elbow, in addition to
pain and loss of function in her left shoulder. He reviewed the left shoulder MRI scan of July 12,
2007, which showed no full thickness rotator cuff tear; moderate tendinopathy of the
supraspinatus and subscapularis and trace subacromial-subdeltoidal bursitis. Dr. Fenton
reviewed a July 31, 2007 left elbow MRI scan. He concluded that appellant’s injuries were a
consequence of her original knee injury. Dr. Fenton noted that she was undergoing ongoing
treatment and surgical intervention was likely.
1

Docket No. 04-1852 (issued September 13, 2005).

2

In a July 10, 2007 report, Dr. Emil A. DiFilippo advised that appellant recently
experienced pain in the area of her left elbow; he noted that she had been having pain in the
elbow for the past month. He indicated in a July 30, 2007 report, that she also had some lesser
pain about the deltoid area and the left shoulder, with some paresthesias down her left arm and
the area of the second, third and fifth fingers. Dr. DiFilippo advised that appellant had limited
flexibility in her left elbow. He diagnosed rheumatoid arthritis with limited flexibility of the left
elbow and possible synovitis of left elbow, in addition to possible rotator cuff tendinitis.
Dr. DiFilippo scheduled appellant for an MRI scan of the left elbow and an MRI scan of her left
shoulder. He advised that she had rotator cuff tendinitis of the left shoulder and prescribed a
course of physical therapy. Dr. DiFilippo noted on examination that appellant still had limited
flexibility of the left elbow, with flexion measured at only 45 to 50 degrees. He administered a
cortisone injection in the left elbow.
In a decision dated February 21, 2008, the Office denied a claim based on consequential
injuries to appellant’s left arm and left shoulder on July 9, 2007, finding that she failed to establish
fact of injury. It stated that she did not provide a date when the incident allegedly occurred or
identify which knee gave out. The Office noted that none of the factual and medical evidence of
record beginning July 9, 2007 mentioned that appellant sustained a fall at her home until her
October 15, 2007 statement. It further found that she did not submit a medical report establishing
that she sustained an injury due to the fall at her home until December 22, 2007, the date of
Dr. Fenton’s report.
On June 27, 2008 appellant requested reconsideration. In an August 27, 2007 report,
Dr. Heidi Prather, an osteopath, stated that appellant had recently fallen and injured her left
elbow. Appellant had a possible fracture or ligamentous injury. Dr. Prather advised that x-rays
of the left elbow showed a possible left radial head fracture.
In an October 25, 2007 report, Dr. Leo A. Whiteside, a Board-certified orthopedic
surgeon, stated that, at the time of appellant’s left knee surgery, her knee had worn down to the
subchondral bone in all weight-bearing areas. He advised that all joint surfaces in the knee
except for that of the patella were removed with one quarter to three quarter inch bone thickness
and were replaced with metal components and screws. Dr. Whiteside reasserted that restrictions
for appellant’s left knee were still in force and were considered permanent postoperative
restrictions.
By decision dated September 26, 2008, the Office denied modification of the
February 21, 2008 decision.
On May 21, 2009 appellant requested reconsideration of the September 26, 2008
decision.
In a May 4, 2009 report, Dr. Prather stated that she had treated appellant for multiple
complaints of left lower extremity and knee pain related to a complex regional pain syndrome
following left knee arthroplasty. She opined that appellant’s left shoulder and left elbow pain
were related to overuse injuries because she had to use crutches, canes or a wheelchair for
ambulation due to left lower extremity disorder. Dr. Prather advised that appellant’s problems
were linked because of the disability of her left lower extremity.

3

Appellant submitted handwritten notes from Dr. Whiteside dated February 2 and May 13,
2009, which summarized medical treatment. In the February 2, 2009 report, Dr. Whiteside
stated that she tripped and bumped her left elbow on a kitchen counter in July 2007. Appellant
also submitted a laboratory report of March 3, 2009.
In a July 2, 2009 decision, the Office denied appellant’s application for review on the
grounds that it neither raised substantive legal questions nor included new and relevant evidence
sufficient to require the Office to review its prior decision.2
LEGAL PRECEDENT
It is an accepted principle of workers’ compensation law and the Board has so recognized
that, when the primary injury is shown to have arisen out of and in the course of employment,
every natural consequence that flows from the injury is deemed to arise out of the employment
unless it is the result of an independent intervening cause.3 A second, nonindustrial injury is
compensable if it is the direct and natural result of an earlier compensable injury. Where an
accident is sustained as a consequence of a disabling residual of a previous industrial injury, it is
compensable because of the chain of causation.4
The Board has held that a claimant is not entitled to further compensation benefits for a
consequential injury if the Office has terminated her compensation benefits for the original
injury due to the claimant’s failure to accept suitable work.5 However, section 8106(c) does not
serve as a bar to receipt of further medical benefits.6
ANALYSIS
The Board finds that appellant did not establish that she sustained a consequential injury to
her left arm on July 9, 2007.
The Office accepted appellant’s occupational disease claim for aggravation of degenerative
joint disease to both knees and a Bakers’ cyst and synovitis of the left knee. The Board previously
affirmed the termination of her monetary compensation benefits based on a refusal of suitable
work.
On October 15, 2007 appellant requested that the Office accept injuries to her left elbow,
forearm and shoulder. She related that on July 9, 2007 while at home, her knee buckled and she
2

The Board notes that the decision actually conducted a merit review as the evidence from Dr. Prather was
addressed on the merits with regard to whether it established that the fall at home caused injury to appellant’s left
arm.
3

John R. Knox, 42 ECAB 193 (1990).

4

S.M., 58 ECAB 166 (2006).

5

Armando D. Rodriguez, 46 ECAB 721 (1995); see also Merlind K. Cannon, 46 ECAB 581 (1995).

6

See Stephen R. Lubin, 43 ECAB 564, (1992); see also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment, Chapter 2.814.9(b)(2) (December 1993).

4

fell while walking to her kitchen. In the fall, appellant’s left elbow struck a kitchen counter. While
she did not originally identify which knee buckled while she was at home, a fact on which the
Office denied her claim on February 21, 2008; the Board notes that she subsequently clarified that
it was her left knee, for which she underwent several surgical procedures. The Board finds that
appellant’s allegation is not refuted by any strong or persuasive evidence.7 The Board will modify
the Office’s determination that she did not establish the incident at home on July 9, 2007.
The medical evidence of record is not sufficient to establish that the fall at home caused
injury to appellant’s left upper extremity. The Board notes that she was seen on July 10, 2007 by
Dr. DiFilippo. Rather than, addressing the July 9, 2007 incident, his contemporaneous treatment
note related a history that appellant had recently experienced pain in her left elbow for the prior
month. Dr. DiFilippo found good range of motion of the left shoulder and limited flexibility of the
left elbow. He advised that x-rays were negative. Dr. DiFilippo diagnosed known rheumatoid
arthritis with limited flexibility of the left elbow, possible synovitis and rotator cuff tendinitis and
prescribed physical therapy. He obtained diagnostic studies.
On July 19, 2007 Dr. DiFilippo advised that an MRI scan of the left shoulder was obtained
that showed some wear of the rotator cuff, without evidence of tear. On July 30, 2007 he
diagnosed rotator cuff tendinitis, administered an injection and prescribed physical therapy.
Dr. DiFilippo noted that an MRI scan of the elbow would be obtained. The subsequent July 31,
2007 scan of the elbow showed swelling and extensive edema, reactive or possible stress related.
There was joint effusion consistent with synovitis. Several tendon and ligaments tears were also
diagnosed. The reports of Dr. DiFilippo addressed his medical treatment of appellant’s left upper
extremity without adequate documentation of the July 9, 2007 incident at home. Rather, he
attributed a month-long history of left elbow complaints and he attributed his findings on
diagnostic testing to her known rheumatoid arthritis. Dr. DiFilippo’s reports are not sufficient to
establish that appellant sustained injury to her left elbow or shoulder due to the fall at home.
An August 27, 2007 report from Dr. Prather noted that appellant had recently fallen and
had sustained a possible fracture, which was not supported by the diagnostic studies obtained by
Dr. DiFilippo. Further, Dr. Prather attributed the left upper extremity complaints to overuse due to
appellant supporting her weight while using crutches, canes or a wheelchair. These reports are not
sufficient to establish that the July 9, 2007 incident caused or contributed to her left upper
extremity condition. Similarly, Dr. Whiteside noted a history in 2009 that appellant had bumped
her left elbow on a kitchen counter in July 2007; but he did not attribute any findings related to her
left arm to that incident. He failed to provide a rationalized medical opinion addressing how
bumping her left elbow caused or contributed to the conditions found on diagnostic study. Rather,
Dr. Whiteside primarily addressed appellant’s left knee condition, for which she underwent
surgery. Dr. Fenton provided a partially legible handwritten treatment note of July 17, 2007,
which listed that she had fallen on July 9, 2007. He treated appellant’s left elbow but did not
address the issue of causal relation. Dr. Fenton’s December 22, 2007 report did not explain how
the incident at home would cause or contribute to her left upper arm conditions. He stated that
appellant’s injuries “would be considered a consequence of her original knee injury and are part of
7

An employee’s statement alleging that an injury occurred at a given time and in a given manner is of probative
value and will stand unless refuted by strong evidence to the contrary. See Constance G. Patterson, 41 ECAB 206
(1989); Thelma S. Buffington, 34 ECAB 104 (1982).

5

its sequaelae”; however, this opinion lacks an adequate review of her medical history or
explanation as to how the conditions present on diagnostic study were caused or contributed to by
the fall at home. Dr. Fenton reviewed the MRI scans, which listed tendinopathy and bursitis of the
shoulder and edema, tendinopathy and synovitis of the left elbow. He did not provide an
explanation as to how these conditions would be precipitated by appellant bumping her left elbow
against a counter in the incident at home. The medical evidence of record is not sufficient to
establish that she sustained a consequential injury to her left upper extremity.
CONCLUSION
The Board finds that appellant did not establish that she sustained injuries to her left
upper extremity on July 9, 2007, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the September 26, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.8
Issued: December 10, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8

In light of the Board’s decision to remand the September 26, 2008 decision to remand for further development,
the Office’s July 2, 2009 nonmerit decision need not be considered.

6