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

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Appearances:
David A. Testone, for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0550
Issued: October 1, 2018

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 January 19, 2018 appellant, through his representative, filed a timely appeal from a
September 1, 2017 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 met his burden of proof to establish a back condition
causally related to the accepted January 23, 2016 employment incident.

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.

FACTUAL HISTORY
On February 18, 2016 appellant, then a 63-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that, on January 23, 2016, he sustained a compression fracture of his lumbar
spine after lifting equipment at work. He did not stop work.
In support of his claim, appellant submitted duty status reports (CA-17 forms) dated
February 3 and 17 and March 15, 2016 from Dr. Ronald R. Bernardini, a chiropractor. On the CA17 forms Dr. Bernardini noted a January 23, 2016 injury date, provided work restrictions, and
diagnosed spinal dislocation. Physical findings included severe lower spinal compression factures
and neck pain. Dr. Bernardini also noted discal disease under the section titled, “other disabling
conditions.”
A March 10, 2016 magnetic resonance imaging (MRI) scan of the lumbar spine revealed
upper lumbar dextroscoliosis and disc bulges at L1-2, L2-3, L3-4, L4-5, and L5-S1.
A cervical MRI scan performed on March 10, 2016 revealed cervical lordosis, a disc bulge
at C6-7, and disc herniations at C3-4, C4-5, and C5-6.
In a March 23, 2016 attending physician’s report (Form CA-20), Dr. Bernardini noted an
injury date of January 23, 2016 and diagnosed lumbar subluxation dysfunction compression
fracture, cervical segmental dysfunction, and thoracic dysfunction. Physical findings included
neurological issues and acute compression fracture with discal trauma. Dr. Bernardini opined that
the twisting and lifting 250 pounds caused the diagnosed medical conditions.
In a development letter dated April 6, 2016, OWCP advised appellant of the type of factual
and medical evidence needed to establish his claim. It noted that under FECA, a chiropractor
would only be considered a “physician” if he diagnosed a subluxation based upon x-ray evidence.
OWCP afforded appellant 30 days to submit the necessary evidence.
Dr. Bernardini, in a February 3, 2015 case history form, noted that appellant was seen for
complaints of neck and back pain. Appellant stated that the pain had been present for a week and
that he had backaches, neck pain, and sinus trouble. He also related that he had been involved in
a minor automobile accident in the past five years.
A February 3, 2016 lumbar x-ray interpretation revealed multilevel discogenic
degenerative disease, facet arthrosis, demineralized bones with dextrocurvature, mild L2 endplate
depression, which might be indicative of a mild compression fracture of indeterminate age.
In patient care reexamination and clinical guideline form reports dated February 19,
March 14, and April 5, 2016, Dr. Bernardini detailed treatment provided for appellant’s
complaints of neck, mid back, and lower back pain.
In a February 3, 2016 report, Dr. Bernardini diagnosed discal lesions, soft tissue trauma,
neurological impairment, sciatic neuritis, intersegmental dysfunction along with arthritic, and
calcific arthritic degeneration which he attributed to the accepted January 23, 2016 work incident.
Physical findings were provided. Dr. Bernardini reported that no diagnostic testing had been
performed, but testing would follow. He advised that appellant was totally disabled.
2

In an April 5, 2016 Form CA-17, Dr. Bernardini provided work restrictions and reiterated
diagnoses and findings from prior reports.
In an April 25, 2016 Form CA-17, Dr. Bernardini noted an injury date of January 23, 2016
and listed work restrictions.
By decisions dated May 17 and 18, 2016, OWCP denied appellant’s claim. It found that
the medical evidence submitted was insufficient to establish a diagnosed medical condition
causally related to the accepted January 23, 2016 work incident.
On a form dated May 27, 2016, appellant requested both an oral hearing and review of the
written record by an OWCP hearing representative.
In a June 13, 2016 Form CA-17 duty status report, Dr. Bernardini diagnosed spinal
subluxation, which he attributed to the claimed January 23, 2016 work injury. Other disabling
conditions included discal issues. Dr. Bernardini indicated that appellant was capable of working
with restrictions.
On July 12, 2016 appellant requested reconsideration and submitted a June 22, 2016 report
by Dr. Bernardini in support thereof. He withdrew his request for an oral hearing.
In a June 22, 2016 report, Dr. Bernardini noted that appellant denied any preexisting back
condition. He observed the lack of any evidence of a preexisting back condition in appellant’s
medical history. Thus, Dr. Bernardini opined that the diagnosed condition had been caused by the
accepted January 23, 2016 work incident. He explained that the diagnosed subluxation was
supported by lumbar spinal rotation and compression fractures and nerve compression found by
diagnostic testing.
By decision dated November 18, 2016, OWCP denied modification of the May 18, 2016
decision, finding that the medical evidence of record was insufficient to establish a diagnosed
condition causally related to the accepted January 23, 2016 employment incident.
In a January 4, 2017 report, Dr. Thomas J. Dowling, an examining Board-certified
orthopedic surgeon, diagnosed low back discogenic pain, L3-4 and L4-5 herniated nucleus
pulposus, and lumbar spinal stenosis. He noted appellant’s history of a lifting injury at work with
no abatement in pain following the incident.3 Dr. Dowling noted no history of back issue, noted a
March 10, 2016 MRI scan, and provided examination findings. He concluded further review was
required to determine the etiology of appellant’s symptoms and appropriate type of treatment.
On January 24, 2017 appellant, through his representative, requested reconsideration. The
representative asserted that OWCP incorrectly found that appellant had a preexisting back
condition.
By decision dated April 13, 2017, OWCP denied modification of its prior decision.

3
The report notes January 23, 2016 under “D/A,” but in the narrative history of injury the date is noted as
January 26, 2016.

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On June 7, 2017 appellant requested reconsideration. His representative asserted that
OWCP failed to follow mandated OWCP procedure and improperly denied the claim.
On August 9, 2017 OWCP received progress notes dated February 28 and June 27, 2013,
March 10 and, May 16, 2014, November 5, 2015, and May 9, 2016. The signature on the forms
is illegible and there is no diagnosis noted on any of the forms.
By decision dated September 1, 2017, OWCP denied modification of its April 13, 2017
decision, finding that appellant had not established that his diagnosed medical condition was
causally related to the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established.7 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.8 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.10 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is causal relationship between the employee’s diagnosed condition and the
compensable employment factors.11 The opinion of the physician must be based on a complete
4

Supra note 2.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

6

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

7

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 5.

8

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

9

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 5.
10

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
11

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

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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.12
Where there is medical evidence of a preexisting condition involving the same part of the
body as the claimed employment injury, the issue of causal relationship invariably requires inquiry
into whether there was employment-related aggravation, acceleration, or precipitation of the
underlying condition.13 Accordingly, the physician must provide a rationalized medical opinion
which differentiates between the effects of the work-related injury or disease and the preexisting
condition.14 Such evidence will permit the proper kind of acceptance, such as whether the
employment-related aggravation was temporary or permanent.15
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a back condition
causally related to the accepted January 23, 2016 employment incident.
Dr. Dowling, in a January 4, 2017 report, diagnosed low back discogenic pain, L3-4 and
L4-5 herniated nucleus pulposus, and lumbar spinal stenosis. He opined that further review was
required to determine the cause of the diagnosed conditions. The Board has held that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.16 As Dr. Dowling offered no opinion
as to the cause of the diagnosed conditions, his opinion is insufficient to support appellant’s
burden.
Appellant also submitted reports and CA-17 forms from Dr. Bernardini, a chiropractor. In
his April 5, 2016 report, Dr. Bernardini specifically noted that no diagnostic testing had been
performed. He did not provide explanation in any of his reports that a subluxation had been
diagnosed based upon x-ray evidence. Dr. Bernardini’s reports therefore are of diminished
probative medical value as he is not considered a physician under FECA due to his failure to
diagnose spinal subluxation based upon x-ray evidence.17

12

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

13
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(e)
(January 2013). See A.W., Docket No. 17-285 (issued May 25, 2018)
14

Id.

15

Id.

16

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

17

Section 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. The term physician includes chiropractors only to the extent that their reimbursable services are limited
to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist
and subject to regulations by the secretary. R.M., 59 ECAB 690 (2008); Pamela K. Guesford, 53 ECAB 726
(2002); see Merton J. Sills, 39 ECAB 572, 575 (1988).

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The remaining medical evidence of record, including diagnostic test reports, is of limited
probative value and insufficient to establish the claim as this evidence does not specifically address
whether appellant’s diagnosed conditions are causally related to the accepted January 23, 2016
work incident.18
The record before the Board is without rationalized medical evidence establishing that
appellant sustained a back condition causally related to the accepted January 23, 2016 employment
incident. OWCP advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, history of treatment, and the
physician’s opinion, with medical reasons, on the cause of his conditions. Appellant has failed to
submit appropriate medical documentation in response to OWCP’s request. The Board has held
that the mere fact that a condition manifests itself during a period of employment does not raise an
inference of causal relation.19 An award of compensation may not be based on surmise, conjecture,
speculation, or on the employee’s own belief of causal relation.20
The Board thus finds that the medical evidence of record is insufficient to establish that
appellant sustained a back condition causally related to the accepted January 23, 2016 employment
incident.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a back condition
causally related to the accepted January 23, 2016 work incident.

18

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997) (medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative value
on the issue of causal relationship).
19

L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB
559 (2006).
20

S.S., 59 ECAB 315 (2008); J.M., 58 ECAB 303 (2007); Donald W. Long, 41 ECAB 142 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated September 1, 2017 is affirmed.
Issued: October 1, 2018
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

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

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Appearances:
Victor A. Walker, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1719
Issued: April 26, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 24, 2016 appellant, through her representative, filed a timely appeal from a
July 27, 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 over the merits of this case.
ISSUE
The issue is whether appellant has established permanent impairment of the bilateral
lower extremities warranting 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.

FACTUAL HISTORY
On March 21, 2006 appellant, then a 57-year-old manual distribution clerk, filed an
occupational disease claim (Form CA-2) alleging that she experienced neck pain, a tingling
sensation down her left arm, and pressure in her chest as a result of repetitive neck movement
while casing mail. She did not stop work.
On March 7, 2007 OWCP accepted appellant’s claim for aggravation of cervical
spondylosis without myelopathy. It subsequently expanded her claim to include other specified
disorder of bursae and tendons in the bilateral shoulder region, cervical disc syndrome, extrinsic
asthma with acute exacerbation, lumbar sprain/strain, adjustment disorder with depressed mood,
chronic pain syndrome, right shoulder keloid scar, lesion of the ulnar nerve of the right elbow,
lumbar radiculitis, and displacement of lumbar intervertebral disc without myelopathy.
Appellant stopped work on January 27, 2008 and returned to work on February 11, 2008.
OWCP paid appellant wage-loss compensation. On March 28, 2008 appellant began light duty
as a modified mail processor working five hours a day. OWCP continued to pay appellant wageloss compensation until February 12, 2010.
On March 2, 2010 and April 21, 2011 appellant received a schedule award for seven
percent permanent impairment of the right upper extremity3 and eight percent permanent
impairment of the left upper extremity4 as a result of her accepted bilateral shoulder conditions.
OWCP granted an additional 21 percent permanent impairment of the right upper extremity5 on
November 7, 2011 and additional permanent impairment of 26 percent to the left upper
extremity6 on January 22, 2014.
On April 16, 2013 appellant underwent an electromyogram and nerve conduction
velocity (EMG/NCV) testing of the lower extremities by Dr. Jairo D. Libreros-Cupido, a
neurologist. Dr. Libreros-Cupido noted that the EMG/NCV revealed bilateral L4-5, L5-S1
radiculopathy and prolonged left H reflex compatible with L5-S1 radiculopathy.

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The award was based on the January 12, 2010 medical report of Dr. Raul F. Nodal, a Board-certified
neurologist, and the February 10, 2010 report of Dr. Howard P. Hogshead, a Board-certified orthopedic surgeon
serving as OWCP’s medical adviser.
4

The award was based on the February 28, 2011 medical report of Dr. Samy F. Bishai, an orthopedic surgeon,
and the April 6, 2011 report of Dr. Hogshead, OWCP’s medical adviser.
5

The award was based on the October 12, 2011 medical report of Dr. Bishai and the November 1, 2011 report of
OWCP’s medical adviser. He determined that appellant had 28 percent permanent impairment of the right upper
extremity, but due to her previous award of 7 percent impairment, she was awarded 21 percent impairment. The
award ran from August 22, 2011 to November 22, 2012.
6

The award was based on the July 8, 2013 medical report of Dr. Bishai and the December 13, 2013 and
January 22, 2014 reports of OWCP’s medical adviser. He determined that appellant had 34 percent impairment of
the left upper extremity, but due to her previous award of 8 percent permanent impairment, she was granted an
additional 26 percent permanent impairment. The award ran from July 8 to December 14, 2013.

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Appellant received medical treatment from Dr. Bishai, an orthopedic surgeon. In a
February 19, 2015 narrative report, Dr. Bishai related her complaints of back pain with radiation
down the lower extremities, neck pain radiating down the upper extremity, and right and
shoulder left shoulder joint pain. On examination he related that appellant’s straight leg raise
testing was 60 degrees on both sides and sciatic nerve stretching test was positive at 60 degrees
on both sides. Dr. Bishai indicated that neurological examination of the lower extremities
showed motor deficit of moderate intensity affecting the extensor hallicus longus and moderate
sensory deficit of diminished sensation bilaterally on the lateral aspect of the thigh. He also
noted that an April 16, 2013 EMG/NCV testing of the lower extremities showed bilateral L4-5
and L5-S1 radiculopathy. Dr. Bishai opined that appellant had bilateral radiculopathy of the L5
nerve root and signs and symptoms of radiculopathy of the S1 nerve root bilaterally.
Dr. Bishai referenced the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides)7 and the July/August 2009 edition of
The Guides Newsletter. He determined that, according to Table 17.4 on page 570 of the Lumbar
Spine Regional Grid for Spinal Nerves, she had a class 2 diagnosis for sensory and motor deficits
of the L5 nerve root. Dr. Bishai assigned grade modifiers of 2 for Functional History (GMFH)
and Clinical Studies (GMCS) and 3 for Physical Examination (GMPE). He calculated that
according to the net adjust formula appellant had a net adjustment of +1 or grade D. Dr. Bishai
applied the proposed Table 2 for Spinal Nerve Impairments of the Lower Extremities in the
July/August 2009 The Guides Newsletter and determined that she had 16 percent permanent
impairment of the bilateral lower extremities due to moderate sensory and motor deficits of the
L5 nerve root.
Dr. Bishai reported that appellant also had S1 nerve root radiculopathy. He indicated that
according to Table 2 of the July/August 2009 The Guides Newsletter she had 12 percent
permanent impairment of the lower extremities due to moderate sensory and motor deficits of the
S1 nerve root. Dr. Bishai combined the impairment ratings for the conditions of L5
radiculopathy and S1 radiculopathy for a combined rating of 26 percent permanent impairment
of each lower extremity. He reported that appellant had reached maximum medical
improvement (MMI) as of that date.
On April 27, 2015 appellant submitted a claim for a schedule award (Form CA-7).
In a May 8, 2015 report, Dr. James Dyer, a Board-certified orthopedic surgeon and
OWCP medical adviser, noted appellant’s accepted conditions and objective findings of chronic
lower back and leg pain. He related that an April 16, 2013 electrodiagnostic study confirmed
mild bilateral radiculopathy at L4-5 and L5-S1 and that imaging demonstrated lumbar
degenerative disc disease at L4-5 and L5-S1 with stenosis. Dr. Dyer indicated that according to
the July/August 2009 The Guides Newsletter for spinal nerve root extremity impairment,
appellant had two percent permanent impairment for mild sensory deficit and seven percent
impairment for mild motor deficit of the L5 nerve root for a total of nine percent permanent
impairment. He reported that she had one percent permanent impairment for mild sensory deficit
and four percent permanent impairment for mild motor deficit at the S1 nerve root for a total of
7

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

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five percent permanent impairment. Dr. Dyer calculated that appellant had total permanent
impairment of 14 percent impairment for each lower extremity. He noted that Dr. Bishai
assigned rating for moderate sensory motor deficit of the L5 and S1 nerve roots, instead of mild
deficit.
By letter dated May 15, 2015, OWCP requested that Dr. Bishai review Dr. Dyer’s May 8,
2015 report and provide comments on Dr. Dyer’s impairment rating.
Dr. Bishai responded to OWCP’s May 15, 2015 letter and provided a June 2, 2015 report.
He explained that although Dr. Dyer believed that appellant had a mild case of radiculopathy, he
found that she had moderate radiculopathy based on the electrodiagnostic studies and his clinical
examination. Dr. Bishai indicated that appellant continued to complain of pain in her lower back
with radiation down the legs. He noted that her condition had not changed a great deal since her
last visit and provided examination findings similar to the February 19, 2015 report. Dr. Bishai
recommended another electrodiagnostic study in order to clarify her condition.
In a June 10, 2015 report, Dr. Libreros-Cupido related appellant’s complaints of low back
pain and keloid scar in the right shoulder. Another electrodiagnostic study of the lower
extremities was performed and he reported bilateral L4-5, L5-S1 radiculopathy and prolonged
left H reflex compatible with left S1 radiculopathy unchanged from the April 16, 2013
electrodiagnostic study.
Dr. Bishai reviewed Dr. Libreros-Cupido’s electrodiagnostic study and, in a report dated
June 11, 2015, related that he maintained his initial impairment rating on February 19, 2015. He
reported that his opinion stood that appellant had reached MMI as of February 19, 2015.
In a July 28, 2015 report, OWCP’s medical adviser Dr. Hogshead related that, upon
review of the medical evidence of record, the evidence of a lower extremity radiculopathy was
questionable. He recommended a competent second opinion and a repeat electrodiagnostic
study.
OWCP referred appellant, along with a statement of accepted facts and the medical
record, to Dr. William Dinenberg, a Board-certified orthopedic surgeon, for a second opinion
examination in order to conduct an electrodiagnostic study of appellant’s bilateral lower
extremities and provide an opinion regarding her entitlement to a schedule award.
In a September 2, 2015 report, Dr. Dinenberg described appellant’s work injury and
noted her accepted conditions. He related her current complaints of back pain radiating down the
bilateral lower extremities and of weakness in the bilateral lower extremity. Dr. Dinenberg
discussed appellant’s medical records. Upon examination, he observed 5/5 strength of the hip
flexors, quadriceps, hamstrings, gastroc soleus, tibialis anterior, and extensor halluces longus
bilateral. Dr. Dinenberg also reported decreased sensation to light touch and insensate to light
touch beginning several centimeters above the knee joint and extending to include appellant’s
foot bilateral in a stocking distribution. Straight leg raise testing was negative bilaterally.
Dr. Dinenberg reported that lumbar flexion was to 30 degrees and extension to 10 degrees. He
also noted tenderness on lumbosacral spine to palpation in the paraspinous region both on the

4

left, right, and midline. Dr. Dinenberg diagnosed lumbar sprain and strain without evidence of
radiculopathy.
Dr. Dinenberg reported that appellant’s objective findings included diminished range of
motion of the lumbar spine and tenderness of the lumbar spine to palpation. He also noted that
the sensory examination was nonanatomic with decreased sensation in the stocking distribution.
Dr. Dinenberg indicated that appellant could perform the job of modified mail processor with
restrictions.
He recommended a functional capacity evaluation and noted that an
electrodiagnostic study would be performed. Dr. Dinenberg reported that appellant had reached
MMI on February 19, 2015, as previously noted by Dr. Bishai.
In a September 16, 2015 report, Dr. Thomas Newman, a Board-certified neurologist,
noted that he conducted EMG/NCV testing of appellant’s lower extremities and lumbar
paraspinal muscles that day. He related that she had a history of lower back pain with pain in
both lower extremities. Dr. Newman indicated that, on brief examination, he observed no
intrinsic atrophy. He reported that the EMG/NCV study was normal. Dr. Newman indicated
that there was no electrical evidence of nerve entrapment, peripheral neuropathy, or lumbar
radiculopathy present.
Dr. Dinenberg reviewed Dr. Newman’s September 16, 2015 electrodiagnostic study and
related, in a September 23, 2015 addendum report, that the results demonstrated a normal
electrodiagnostic study of both lower extremities with no electrodiagnostic evidence of nerve
entrapment or generalized peripheral neuropathy. He reiterated that after his physical
examination of appellant, his impression was that she had a lumbar sprain without evidence of
radiculopathy on examination. Dr. Dinenberg explained that given the normal results of the
September 16, 2015 EMG/NCV study and no evidence of radiculopathy during his examination
on August 21, 2015, she had no permanent impairment of her bilateral lower extremities. He
completed a work capacity evaluation form, which indicated that appellant was capable of
working full time with restrictions.
In an October 19, 2015 report, OWCP’s medical adviser, Dr. Hogshead, again reviewed
appellant’s records, including Dr. Dinenberg’s September 2 and 23, 2015 reports, and noted that
there had been no evidence of radiculopathy of the bilateral lower extremities during the physical
examination and electrodiagnostic study. He agreed with Dr. Dinenberg’s conclusion that she
had no permanent impairment of the bilateral lower extremities due to her accepted lumbar
condition.
OWCP denied appellant’s claim for schedule award in a decision dated
December 9, 2015. It determined that the medical evidence of record was insufficient to
establish permanent impairment of the bilateral lumbar extremities due to her accepted lumbar
condition. OWCP noted that, according to Dr. Dinenberg’s August 21, 2015 second opinion
report, Dr. Newman’s September 16, 2015 EMG/NCV study report, and the October 19, 2015
report of OWCP’s medical adviser, there was no evidence of nerve entrapment, peripheral
neuropathy, or lumbar radiculopathy.
On June 8, 2016 appellant, through her representative, requested reconsideration. In an
attached statement, the representative reviewed her history of injury and how OWCP had

5

handled her schedule award claim. He alleged that the medical reports and opinions of OWCP’s
referral physicians were not thorough and were not more probative than the reports of appellant’s
treating physicians. The representative further asserted that EMG/NCV testing may be normal in
patients who had radiculopathy. He explained that the main reason to perform the EMG/NCV
study was to rule out any other conditions that may mimic radiculopathy. The representative
further noted that Dr. Dyer, an OWCP medical adviser, did not dispute appellant’s diagnosis of
radiculopathy, but merely found a lesser degree of impairment. He noted that he was enclosing
medical reports, which clearly showed that appellant’s condition had not changed and that she
still suffered a permanent impairment to her lower extremities.
In reports dated December 9, 2015 to May 31, 2016, Dr. Bishai indicated that appellant
continued to complain of severe pain in her lower back with radiation down the legs and pain in
her neck with radiation to the upper extremities. He reported that neurological examination of
the lower extremities showed motor deficit of moderate intensity affecting the extensor hallicus
longus and moderate sensory deficit of diminished sensation bilaterally on the lateral aspect of
the thigh. Dr. Bishai opined that based on his examination and Dr. Libreros-Cupido’s
electrodiagnostic study, appellant had bilateral radiculopathy of the L5 nerve root and signs and
symptoms of radiculopathy of the ankle plantar flexors and moderate sensory deficit affecting
the posterior aspect of the leg and the lateral aspect of the foot on both sides. He indicated that
he disagreed with Dr. Dinenberg’s conclusions and noted that Dr. Dinenberg spent only 10
minutes doing an examination of a very complicated case. Dr. Bishai opined that appellant’s
condition had not changed since the last examination and asserted that he continued to stand
behind his initial impairment rating.
In a July 22, 2016 report, Dr. Jovito Estaris, Board-certified in occupational and
preventive medicine and an OWCP medical adviser, reviewed the record and discussed
appellant’s medical reports. He indicated that, although Dr. Bishai mentioned moderate sensory
deficits and moderate motor deficits of appellant’s bilateral lower extremities, there had been no
new objective examination testing performed to support those findings. Dr. Estaris further noted
that Dr. Dinenberg had not noted the “stocking glove” decrease sensation over appellant’s lower
extremities on his examination and that Dr. Newman’s EMG/NCV study was normal. He
reported that he agreed with Dr. Dinenberg that she had no ratable impairment of the lower
extremities secondary to her accepted lumbar condition. Dr. Estaris concluded that, since there
was no radiculopathy by medical examination or clinical studies, there was no impairment
pursuant to the July/August 2009 edition of The Guides Newsletter.
By decision dated July 27, 2016, OWCP denied modification of its December 9, 2015
denial decision. It found that the weight of the medical evidence rested with the July 22, 2016
report of Dr. Estaris, OWCP’s medical adviser, who determined that appellant had no ratable
impairment of the lower extremities secondary to her lumbar condition.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from

6

loss or loss of use, of scheduled members or functions of the body.8 FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by OWCP as the appropriate standards for evaluating schedule
losses.9 The effective date of the sixth edition of the A.M.A., Guides is May 1, 2009.10
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, under FECA a schedule award is not payable for injury to the spine.11 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.12
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment.13 For peripheral nerve impairments to the upper
or lower extremities resulting from spinal injuries, OWCP procedures indicate that The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment (July/August 2009 edition) of the sixth
edition is to be applied.14 The Board has long recognized the discretion of OWCP to adopt and
utilize various editions of the A.M.A., Guides for assessing permanent impairment.15 In
particular, the Board has recognized the adoption of this methodology for rating extremity
impairment, including the use of The Guides Newsletter, as proper in order to provide a uniform
standard applicable to each claimant for a schedule award for extremity impairment originating

8

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

9

20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002). For decisions issued after
May 1, 2009, the sixth edition will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700, Exhibit 1 (January 2010).
11

Pamela J. Darling, 49 ECAB 286 (1998).

12

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

13

Supra note 10 at Chapter 3.700, Exhibit 4 (January 2010).

14

Supra note 10 at Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is included as
Exhibit 4.
15

D.S., Docket No. 14-0012 (issued March 18, 2014).

7

in the spine.16 FECA approved methodology is premised on evidence of radiculopathy affecting
the upper and/or lower extremities.17
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary
shall appoint a third physician (known as a referee physician or impartial medical specialist) who
shall make an examination.18 This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.19 When there exists opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.20
ANALYSIS
OWCP accepted appellant’s March 21, 2006 occupational disease claim for various
conditions, including lumbar radiculitis, lumbar strain/sprain, and displacement of lumbar
intervertebral disc without myelopathy. On April 27, 2015 appellant filed a claim for a schedule
award based on the February 19, 2015 report of Dr. Bishai, her treating physician, who opined
that she had 26 percent permanent impairment of each lower extremity for bilateral
radiculopathy of the lower extremities secondary to her lumbar condition. OWCP denied her
schedule award claim and determined that the weight of the medical evidence rested with the
July 22, 2016 report of Dr. Estaris, OWCP’s medical adviser, who determined that she had no
ratable impairment of the lower extremities secondary to her lumbar condition.
The Board finds that this case is not in posture for decision as there is an unresolved
conflict in medical opinion.
In support of her schedule award claim, appellant submitted the February 19, 2015 report
of Dr. Bishai, who found that she had 26 percent permanent impairment of each lower extremity
pursuant to the A.M.A., Guides. Dr. Bishai utilized Table 2 of the July/August 2009 edition of
The Guides Newsletter and based his conclusions on findings of moderate sensory and motor
deficit of the L5 and S1 nerve roots. In a May 8, 2015 report, Dr. Dyer, an OWCP medical
adviser, reviewed Dr. Bishai’s February 19, 2015 impairment rating and determined that
appellant had 14 percent permanent impairment of each lower extremity based on findings of
mild sensory and motor deficits. In a June 11, 2015 report, Dr. Bishai disagreed with Dr. Dyer’s
impairment rating. He noted that a June 10, 2015 EMG/NCV study of the lower extremities
16

See E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).

17

See supra note 10 at Chapter 2.808.5(c)(3) (February 2013).

18

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
19

20 C.F.R. § 10.321.

20

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

8

confirmed his initial February 19, 2015 impairment rating. Dr. Hogshead, a second OWCP
medical adviser, reviewed the record and recommended a second opinion examination with an
electrodiagnostic study.
Dr. Dinenberg, a second opinion physician, in reports dated September 2 and 23, 2015
found that the sensory examination was nonanatomic with decreased sensation in the stocking
distribution. He also noted that a September 16, 2015 EMG/NCV study was normal with no
electrical evidence of nerve entrapment, peripheral neuropathy, or lumbar radiculopathy. A third
medical adviser, Dr. Estaris, reviewed Dr. Dinenberg’s second opinion reports and, the medical
record and, in a July 22, 2016 report, agreed with Dr. Dinenberg that appellant had no ratable
permanent impairment of the bilateral lower extremities secondary to her accepted lumbar
condition. He explained that since there was insufficient evidence of radiculopathy in her
bilateral lower extremities she had no ratable impairment of the bilateral lower extremities
pursuant to the July/August 2009 edition of The Guides Newsletter.
The Board finds that there is an unresolved conflict in the medical evidence between
appellant’s treating physicians and OWCP’s referral physicians regarding permanent impairment
of the bilateral lower extremities. Appellant’s treating physician, Dr. Bishai opined that
appellant had 26 percent permanent impairment of each lower extremity due to findings of
moderate sensory and motor deficit. He based his opinion on examination findings and
electrodiagnostic studies by Dr. Libreros-Cupido dated August 16, 2013 and June 10, 2015.
Dr. Dyer, an OWCP medical adviser, found a 14 percent permanent impairment of each
lower extremity due to mild sensory and motor deficit in her lower extremities. OWCP’s second
opinion physician, Dr. Dinenberg, and medical adviser, Dr. Estaris, however, determined that
appellant had no ratable impairment of the lower extremities secondary to her accepted lumbar
conditions, based on physical examination and the September 16, 2015 electrodiagnostic testing.
Accordingly, the Board finds a conflict in medical evidence as to whether appellant has
any permanent impairment in her lower extremities after applying the A.M.A., Guides.
As noted above, if there is disagreement between a claimant’s physician and OWCP’s
referral physician, OWCP will appoint a referee physician or impartial medical specialist who
shall make an examination.21 As there is an unresolved conflict in the medical evidence, the case
must be remanded to OWCP for referral to an impartial medical specialist for resolution of the
conflict in the medical opinion evidence in accordance with 5 U.S.C. § 8123(a). After such
further development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

21

Supra note 18.

9

ORDER
IT IS HEREBY ORDERED THAT the July 27, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this opinion.
Issued: April 26, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10


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

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

Docket No. 11-1355 &
11-1389
Issued: May 18, 2012

Case Submitted on the Record

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

JURISDICTION
On May 13 and 25, 2011 appellant filed timely appeals from Office of Workers’
Compensation Programs’ (OWCP) decisions dated December 17, 2010 and April 15, 2011 which
denied his reconsideration requests on the grounds that they were untimely filed and failed to
establish clear evidence of error. Because more than one year has elapsed between the most
recent merit decision dated August 9, 1989 to the filing of these appeals on May 13 and 25,
2011, the Board lacks jurisdiction to review the merits of his claim pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant requested oral argument on May 25, 2011. However, as he is merely raising the
same contentions which the Board and OWCP have rejected on numerous contentions, the Board in its discretion
denies oral argument. The case can equally well be handled with a review of the record and will not unduly delay
the issuing of the decision.

ISSUE
The issue is whether OWCP properly determined that appellant’s requests for
reconsideration were untimely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board. On March 23, 1989 appellant, then a
23-year-old mail clerk, filed a claim for traumatic injury to his low back on March 20, 1989
when a coworker pushed him backward into a mail container. By decisions dated May 19 and
August 9, 1989, OWCP denied his traumatic injury claim on the grounds that he did not establish
that the March 20, 1989 incident occurred as alleged. By decision dated January 3, 2005, it
denied appellant’s request for reconsideration as untimely and insufficient to show clear
evidence of error. In a May 12, 2006 decision, the Board affirmed OWCP’s January 3, 2005
decision.3 By nonmerit decision dated August 10, 2006, OWCP denied appellant’s request for
reconsideration as untimely and insufficient to show clear evidence of error. In a February 7,
2007 decision, the Board affirmed OWCP’s January 3, 2005 nonmerit decision.4 By decision
dated February 24, 2009, OWCP denied appellant’s request for reconsideration without a merit
review, finding the request was untimely and that appellant had not established clear evidence of
error. In a decision dated February 23, 2010, the Board affirmed OWCP’s February 24, 2009
nonmerit decision.5 The facts of this case as set forth in the Board’s prior decisions are
incorporated by reference.
In a December 10, 2010 request for reconsideration, appellant stated that he was
submitting new and relevant medical evidence in support of his claim, including a November 19,
2010 report from Dr. Christopher T. Plastaras, a specialist in physical medicine and
rehabilitation, a second “corrected” report from Dr. Plastaras, and a report from Dr. Aron Jeffrey,
an osteopath. In a February 22, 2011 request for reconsideration, appellant stated that OWCP
erred by ignoring several procedural errors by his employer, which failed to fulfill its statutory
obligation to assist him in developing the evidence and in obtaining an attending physician’s
report. He alleged that the employing establishment ignored a March 21, 1989 medical opinion
from his treating physician, Dr. Gunnar Ek, and failed to request a medical report in accordance
with 20 C.F.R. §§ 10.330 and 10.331; the employing establishment failed to provide him with a
Form CA-1 in a timely fashion; the employing establishment failed to ensure that he received
CA-16 or CA-20 forms as a follow up to his submission of his completed Form CA-1; the
employing establishment’s physician issued a report without examining or treating him and
failed to order any diagnostic tests regarding his work-related injuries; although his supervisor
initially supported appellant’s assertion that his injury was work related, she subsequently
changed her mind and controverted the claim, which diminished her credibility and that of the
witnesses who provided statements in support of the controversion; the employing
establishment’s witness statements lack credibility because these witnesses were friends of
3

Docket No. 05-967 (issued May 12, 2006).

4

Docket No. 06-2139 (issued February 7, 2007).

5

Docket No. 09-1556 (issued February 23, 2010).

2

appellant’s alleged assailant and were prejudiced against him for additional reasons; while all of
the witnesses indicated an altercation had occurred, they falsely stated that he was not attacked
by a coworker on March 20, 1989 due to their personal animus and jealousy toward him; the
employing establishment coerced the witnesses into making statements against him and
improperly influenced these statements by telling them what to say; and OWCP did not exercise
due diligence in trying to contact him while it was developing the claim.
Appellant submitted numerous medical reports from December 2008 through
November 2010 in support of his requests. These included: a December 2, 2008 report from
Dr. Jeffrey; reports dated April 19, August 30 and November 2010 from Dr. Plastaras; and
reports dated June 14 and July 23, 2010 from Dr. Anand Joshi, Board-certified in physical
medicine and rehabilitation. These reports related complaints of chronic back pain, presented
several diagnoses of appellant’s condition and generally attributed appellant’s low back
condition to the alleged March 20, 1989 work incident.
By decisions dated December 17, 2010 and April 15, 2011, OWCP denied appellant’s
request for reconsideration without a merit review, finding the requests untimely requested
reconsideration and that appellant had not established clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA6 does not entitle an employee to a review of an OWCP decision
as a matter of right.7 This section, vesting OWCP with discretionary authority to determine
whether it will review an award for or against compensation, provides:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may-(1) end, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).8 As one such limitation, it has stated that it
will not review a decision denying or terminating a benefit unless the application for review is
filed within one year of the date of that decision.9 The Board has found that the imposition of

6

5 U.S.C. § 8128(a).

7

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989), petition for recon. denied,
41 ECAB 458 (1990).
8

See 20 C.F.R. § 10.606(b).

9

Id. at § 10.607(b).

3

this one-year time limitation does not constitute an abuse of the discretionary authority granted
by OWCP under 5 U.S.C. § 8128(a).10
In cases where a request for reconsideration is not timely filed, OWCP must nevertheless
undertake a limited review of the case to determine whether there is clear evidence of error
pursuant to the untimely request.11 Its procedures state that it will reopen a case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(b), if the
application for review shows clear evidence of error on the part of OWCP.12
To establish clear evidence of error, an appellant must submit evidence relevant to the
issue which was decided by OWCP.13 The evidence must be positive, precise and explicit and
must be manifested on its face that OWCP committed an error.14 Evidence which does not raise
a substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.15 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.16 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.17 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 OWCP’s decision.18 The Board makes an
independent determination of whether an appellant has submitted clear evidence of error on the
part of OWCP such that it abused its discretion in denying merit review.19
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
It issued its most recent merit decision in this case on August 9, 1989. Appellant requested
reconsideration on December 10, 2010 and February 22, 2011; thus, the requests are untimely as
they were outside the one-year time limit.
10

See cases cited supra note 7.

11

Rex L. Weaver, 44 ECAB 535 (1993).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (May 1991).

13

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

14

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

15

See Jesus D. Sanchez, supra note 7.

16

See Leona N. Travis, supra note 14.

17

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

18

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

19

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

4

The Board finds that appellant’s December 10, 2010 and February 22, 2011 requests for
reconsideration failed to show clear evidence of error. As the Board noted in its prior decisions,
the issue in this case is whether the March 20, 1989 employment incident occurred at the time,
place and in the manner alleged. This question is factual in nature. The medical evidence
submitted by appellant does not address the pertinent issue of whether he established the
occurrence of the March 20, 1989 employment incident. Appellant did not submit any new
factual evidence with his request for reconsideration which was relevant to this issue upon which
his claim was denied. The evidence submitted therefore does not establish clear evidence of
error in the denial of his claim.
The Board also finds that appellant’s December 10, 2010 and February 22, 2011 requests
for reconsideration merely restate arguments previously rejected by the Board and OWCP. The
Board also finds that his contention that prescription drugs prevented him from filing a timely
claim is not a valid reason for failing to file a timely request for reconsideration. Therefore,
appellant has failed to demonstrate clear evidence of error on the part of OWCP such that OWCP
abused its discretion in denying merit review.
CONCLUSION
The Board finds that appellant has failed to submit evidence establishing clear error on
the part of OWCP in his reconsideration requests dated December 10, 2010 and
February 22, 2011. Inasmuch as appellant’s reconsideration requests were untimely filed and
failed to establish clear evidence of error, OWCP properly denied further review in its
December 17, 2010 and April 15, 2011 decisions.

5

ORDER
IT IS HEREBY ORDERED THAT the April 15, 2011 and December 17, 2010
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 18, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Elk Grove Village, IL, Employer
__________________________________________

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

Docket No. 19-0691
Issued: August 23, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 11, 2019 appellant, through counsel, filed a timely appeal from a
December 28, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

1

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

5 U.S.C. § 8101 et seq.

3
Appellant submitted additional evidence following the December 28, 2018 decision. However, “The Board’s
review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision.
Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1).
Thus, the Board is precluded from reviewing this evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of total
disability commencing May 11, 2017 due to her accepted December 3, 2014 employment injury.
FACTUAL HISTORY
On November 3, 2014 appellant, then a 44-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 3, 2014 she sustained right hand, knee, and ankle
injuries due to a fall which occurred while she was in the performance of duty. She stopped work
on November 4, 2014. OWCP accepted appellant’s claim for right ankle sprain, abrasion or
friction burn of right hand without infection, and abrasion or friction burn of right leg (except the
foot) with infection. On January 28, 2016 appellant underwent OWCP-authorized right ankle
surgery, including lateral ankle stabilization with repair of the right anterior talofibular ligament.
She stopped work due to the surgery and, in November 2016, she returned to regular-duty work
for the employing establishment on a full-time basis.4
On January 31, 2017 appellant advised OWCP by telephone that the employing
establishment removed her from work on January 27, 2017 and placed her on emergency leave
without pay (LWOP) status pending termination from employment. She filed claims for
compensation (Form CA-7) for wage loss beginning January 27, 2017 due to her December 3,
2014 employment injury. By decision dated March 22, 2017, OWCP denied appellant’s claims
for wage-loss compensation beginning January 27, 2017, noting that the evidence of record was
insufficient to establish that she was off work due to the December 3, 2014 employment injury.5
On April 19, 2017 OWCP advised appellant that it was referring her for an impartial
medical examination regarding her ongoing medical conditions and disability due to her
December 3, 2014 employment injury.
Appellant subsequently submitted an April 11, 2017 report from Dr. Syed Hussain, a
Board-certified internist, who indicated that appellant presented on that date with complaints of
right ankle and left heel pain. Dr. Hussain diagnosed plantar fascial fibromatosis and prescribed
compounding cream. The findings of an April 11, 2017 venous duplex scan of the right lower
extremity showed no evidence of deep vein thrombosis.
In April 2018, appellant returned to full-time work in a limited-duty capacity which
required her to lift up to 50 pounds and which did not require squatting all the way down. She
stopped work on May 11, 2017.
On May 12, 2017 appellant filed a notice of recurrence (Form CA-2a) alleging that she
sustained a recurrence of disability on May 11, 2017 due to her December 3, 2014 employment
injury. She asserted that she had disability due to muscle spasms which first occurred in 2016 with
physical therapy and noted that she had experienced three more muscle spasm episodes since that
time.
4

OWCP paid appellant appropriate compensation for disability related to the surgery.

5

The Board notes that appellant’s claim for wage-loss compensation between January and March 2017 is not
currently before the Board.

2

Appellant subsequently submitted documents from her May 11, 2017 visit to an emergency
room for complaints of right calf spasms. She was seen by Dr. Arnold Bennett, a Board-certified
radiologist, who diagnosed right calf muscle spasms and indicated that a May 11, 2017 venous
duplex scan of the right lower extremity showed normal Doppler flow.6 On May 15, 2017
Dr. Hussain diagnosed plantar fascial fibromatosis and injury of nerves at the right foot/ankle
level. He recommended that appellant avoid any activity which aggravated her ankles. In a
May 15, 2017 note, Dr. Hussain indicated that appellant was still suffering from lower extremity
pain and recommended that she limit her standing.7
A report of June 15, 2017 electromyogram and nerve conduction velocity (EMG/NCV)
studies of appellant’s right lower extremity contained an impression of normal study with no
evidence of an acute or chronic lumbar radiculopathy, generalized large ﬁber neuropathy,
lumbosacral plexopathy, or entrapment neuropathy/myopathy. In a June 19, 2017 report,
Dr. Rajeev Garapati, a Board-certified orthopedic surgeon, advised that he was not sure about the
exact etiology of appellant’s right calf pain or why she would have had atrophy of her right calf
after the January 28, 2016 surgery.
Appellant then attended a rescheduled impartial medical examination with Dr. Kenneth
Sanders, a Board-certified orthopedic surgeon. In a January 31, 2018 report, Dr. Sanders reported
the findings of his physical examination, noting that appellant had no atrophy, swelling, or
tenderness upon palpation of her right calf. He diagnosed status postoperative lateral
reconstruction of the lateral ligaments of the right ankle. Dr. Sanders opined that appellant had no
disabling residuals of her December 3, 2014 employment injury and could perform her regular
work duties.
In a March 2, 2018 report, Dr. Garapati diagnosed status post right ankle ligamentous
reconstruction with peroneal tendon transfer to the ﬁbula, neuritis in right lower extremity, and
right calf pain and atrophy in right lower extremity.8 In an April 2, 2018 report, he diagnosed right
ankle ligamentous reconstruction with peroneal tendon transfer, right ankle stiffness, right calf
atrophy, and right lower extremity neuritis. Dr. Garapati indicated that he was giving appellant
restrictions of lifting no more than 50 pounds and avoiding deep squatting positions.
By decision dated May 14, 2018, OWCP denied appellant’s recurrence claim, noting that
the medical evidence of record did not establish a recurrence of disability on or after May 11, 2017
due to the December 3, 2014 employment injury.9

6

Dr. Bennett also noted that May 11, 2017 x-rays of appellant’s right ankle showed no metallic hardware in the
projection of the right ankle, and intact ankle mortise. He indicated that a defect within the distal fibula might reflect
the prior location of a screw.
7

By decision dated June 12, 2017, OWCP suspended appellant’s benefits in the present claim for failing to
cooperate with the scheduled impartial medical examination. On June 20, 2017 appellant, through counsel, requested
a hearing with a representative of OWCP’s Branch of Hearings and Review. By decision dated January 29, 2018,
OWCP’s hearing representative affirmed the June 12, 2017 decision.
8

In a March 2, 2018 duty status report (Form CA-17), Dr. Garapati indicated that appellant was limited to lifting
no more than 50 pounds.
9

OWCP later expanded the accepted conditions to include a rupture of the right tibiofibular ligament.

3

Appellant, through counsel, requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review. During the hearing held on October 17, 2018, she
testified that she filed the recurrence claim because of muscle spasms in her right calf. Appellant
asserted that she was being worked outside her limitations. She claimed that she developed atrophy
in her right calf due to the January 28, 2016 surgery. Appellant indicated that she was currently
off work due to a disciplinary issue.
By decision dated December 28, 2018, OWCP’s hearing representative affirmed the
May 14, 2018 decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.10 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations, and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties, or a reduction-in-force.11
OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.12
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning.13 Where no such rationale is present,
the medical evidence is of diminished probative value.14

10

20 C.F.R. § 10.5(x); see J.D., Docket No. 18-1533 (issued February 27, 2019).

11

Id.

12
Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2b (June 2013); L.B., Docket
No. 18-0533 (issued August 27, 2018).
13

J.D., Docket No. 18-0616 (issued January 11, 2019); see C.C., Docket No. 18-0719 (issued November 9, 2018).

14

H.T., Docket No. 17-0209 (issued February 8, 2018).

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability on or after May 11, 2017 due to her accepted December 3, 2014 employment injury.
Appellant submitted documents from her May 11, 2017 visit to an emergency room for
complaints of right calf spasms, as well as several follow-up reports regarding these complaints.
On May 11, 2017 Dr. Bennett diagnosed right calf muscle spasms and indicated that a May 11,
2017 venous duplex scan of the right lower extremity showed normal Doppler flow. He also noted
that May 11, 2017 x-rays of appellant’s right ankle showed no metallic hardware in the projection
of the right ankle, and intact ankle mortise. Dr. Bennett indicated that a defect within the distal
fibula might reflect the prior location of a screw. On May 15, 2017 Dr. Hussain diagnosed plantar
fascial fibromatosis and injury of nerves at right foot/ankle level. He recommended that appellant
avoid any activity that aggravated her ankles and indicated that appellant was still suffering from
lower extremity pain and recommended that she limit her standing. In an April 2, 2018 report,
Dr. Garapati diagnosed right ankle ligamentous reconstruction with peroneal tendon transfer, right
ankle stiffness, right calf atrophy, and right lower extremity neuritis. He indicated that he was
giving appellant permanent restrictions of lifting no more than 50 pounds and avoiding deep
squatting positions.
The Board notes that Drs. Bennett, Hussain, and Garapati did not provide an opinion that
the observed symptoms/conditions or recommended restrictions were related to appellant’s
December 3, 2014 employment injury or the OWCP-authorized January 28, 2016 right ankle
surgery undertaken to treat the injury. The Board has held that medical evidence that does not
offer an opinion regarding the cause of an employee’s disability/condition is of no probative value
on the issue of causal relationship.15 These reports submitted by appellant do not provide an
opinion on causal relationship between the accepted December 3, 2014 employment injury and
any period of disability. As such, they are of no probative value.16
Appellant has not shown that her employment-related condition worsened to the extent that
she could no longer work on or after May 11, 2017.17 As the record does not contain a rationalized
opinion on causal relationship, the Board finds that appellant has not met her burden of proof to
establish a recurrence of total disability commencing May 11, 2017 due to her accepted
December 3, 2014 employment injury.

15

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

16
Id. Moreover, Dr. Sanders, an OWCP referral physician, indicated in a January 31, 2018 report that appellant
had no disabling residuals of her December 3, 2014 employment injury and could perform her regular work duties.
Although OWCP referred to Dr. Sanders as an impartial medical specialist, he actually served as an OWCP referral
physician because there was no conflict in the medical evidence at the time of the referral. See R.H., Docket No. 171477 (issued March 14, 2018) (finding that, due to the lack of a conflict in the medical evidence at the time of the
referral to the putative impartial medical specialist, the physician actually served as an OWCP referral physician rather
than an impartial medical specialist).
17

See supra note 9. Appellant asserted that she had to perform duties outside her limited-duty restrictions, but she
did not submit any evidence in support of this claim. See supra note 10.

5

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability commencing May 11, 2017 due to her accepted December 3, 2014 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the December 28, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 23, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF THE ARMY, ANNISTON
ARMY DEPOT, Anniston, AL, Employer
__________________________________________

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

Docket No. 07-1378
Issued: November 8, 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 April 25, 2007 appellant filed a timely appeal from the April 5, 2007 merit decision of
the Office of Workers’ Compensation Programs finalizing the termination of her wage-loss
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
the merits of this termination.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s wage-loss
compensation effective April 14, 2007 on the grounds that she was no longer disabled for work.
FACTUAL HISTORY
On July 26, 2005 appellant, then a 45-year-old compensation program specialist, filed a
claim for a recurrence of disability beginning on March 28, 2005 due to her May 4, 2001
employment injury. The Office determined that she sustained a new injury and developed the
case as an occupational disease claim. It accepted a bulging C5 cervical disc without herniation
and authorized anterior cervical discetomy with fusion surgery, which was performed on

September 28, 2006. By letter dated October 12, 2006, the Office placed appellant on the
periodic rolls for temporary total disability.
In a December 5, 2006 report, Robert G. Summerlin, Ph.D., a clinical psychologist,
diagnosed major depressive disorder, pain disorder, generalized anxiety disorder and personality
disorder. He recommended against appellant’s return to work at the employing establishment
and supported her application for medical retirement.1
In a December 11, 2006 report, Dr. James G. White, III, a treating Board-certified
neurosurgeon, released appellant to return to work with restrictions. He noted that she has no
intention and has no plans of going back to work.” Dr. White noted that appellant’s
psychologist, Dr. Summerlin, recommended that she stay away from the employing
establishment and that she was applying for disability retirement. He stated that “[c]ertainly,
other than any psychological or psychiatric problems that appellant may have physically, we
would allow her to return to work with these restrictions.”
On December 20, 2006 the employing establishment offered appellant the position of a
modified compensation program specialist, which she refused.
In a letter dated January 8, 2007, appellant refused the job offered by the employing
establishment based upon the opinions of Drs. Chindalore and Summerlin. She noted that, while
Dr. White had released her to her date-of-injury job as a compensation specialist, Dr. Summerlin
recommended against returning to the position.
On February 12, 2007 Dr. White reiterated that appellant had been released to full duty
with restrictions, as noted in his December 11, 2006 report.
On February 20, 2007 the Office received a January 26, 2007 report by Dr. Summerlin,
the supervisor’s portion of appellant’s disability retirement application and a February 13, 2007
report by Dr. Christopher S. Randolph, a treating psychiatrist, who noted that appellant had been
referred for her depression and reported that she “had recurrent conflicts with her supervisor at
work.” Dr. Randolph opined that, due to her continued complaints and the chronicity of her
mood disorder, appellant “is permanently psychiatrically disabled.” Dr. Summerlin concluded
that appellant was totally disabled due to her psychiatric condition. In a January 5, 2007 report,
Dr. Vishala L. Chindalore, a rheumatologist and treating physician, diagnosed fibromyalgia and
opined that appellant was totally disabled due to this condition.
On March 1, 2007 the Office issued a notice of proposed termination of wage-loss
compensation. It determined that the weight of the evidence rested with Dr. White’s opinion that
appellant was physically able of returning to work. With respect to Dr. Summerlin’s opinion that
appellant was totally disabled due to her psychiatric condition, the Office concluded that this was
not relevant as no psychiatric condition had been accepted.
In a letter dated March 23, 2007, appellant noted that, while Dr. White released her to
work from a physical standpoint, he noted psychiatric conditions which might preclude her from
1

In a letter dated December 11, 2006, Dr. Summerlin stated that appellant was applying for disability retirement.

2

returning to work. She alleged that she was permanently and totally disabled from performing
any type of work due to her physical and psychiatric conditions. Appellant also stated that she
had applied for disability retirement.
By decision dated April 5, 2007, the Office finalized the termination of appellant’s wageloss compensation.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.2 After it has determined that an
employee has disability causally related to her federal employment, the Office may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.3 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.4
ANALYSIS
The Office accepted that appellant sustained bulging C5 cervical disc without herniation
and authorized anterior cervical discetomy with fusion surgery, which was performed on
September 28, 2006. It based its decision to terminate appellant’s wage-loss compensation
benefits upon medical evidence from Dr. White, a treating physician.
The Board finds that the medical evidence of record supports the termination of
appellant’s wage-loss compensation benefits. The relevant medical evidence consists of reports
from Dr. White, an attending physician, who found that appellant was capable of working with
restrictions, suggesting that a psychological component precluded her from returning to work.
The Board finds that Dr. White’s opinion establishes that appellant has no continuing disability
due to her accepted bulging C5 cervical disc without herniation. The record is devoid of any
medical evidence supporting that appellant is totally disabled due to her accepted cervical
condition.
The record also contains reports from Drs. Randolph and Summerlin diagnosing
depression and Dr. Chindalore diagnosing fibromyalgia. Dr. Randolph stated that appellant “had
recurrent conflicts with her supervisor at work” and concluded that she was permanently
disabled due to “continued complaints and chronicity mood disorder.” Dr. Summerlin also
concluded that appellant was totally disabled due to a psychiatric condition. Dr. Chindalore
opined that appellant was totally disabled due to her fibromyalgia, but offered no opinion as to
the cause of the fibromyalgia.
Drs. Randolph and Summerlin diagnosed a psychiatric condition, which they opined was
totally disabling. The Board notes that the Office has not accepted a work-related psychiatric
2

Paul L. Stewart, 54 ECAB 824 (2003).

3

Elsie L. Price, 54 ECAB 734 (2003).

4

See Del K. Rykert, 40 ECAB 284 (1988).

3

condition. None of the reports by Drs. Randolph or Summerlin contain sufficient medical
reasoning explaining how appellant’s psychiatric condition was caused or aggravated by the
accepted employment injury. The Board has held that a medical opinion not fortified by medical
rationale is of diminished probative value.5 The opinions of Drs. Randolph or Summerlin are
insufficient to support any continuing disability from appellant’s accepted bulging C5 cervical
disc without herniation injury.
Dr. Chindalore opined that appellant was totally disabled, but attributed her disability to
her fibromyalgia. However, the Office has not accepted fibromyalgia as a work-related
condition. Moreover, Dr. Chindalore provided no opinion as to the cause of appellant’s
fibromyalgia. Medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.6 Thus,
Dr. Chindalore’s report is insufficient to establish that appellant has any disability due to her
accepted employment injury.
The Board finds that Dr. White’s opinion that appellant’s employment-related conditions
had resolved constitutes the weight of the medical evidence. Accordingly, the Office met its
burden of proof to justify termination of wage-loss compensation benefits.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s wage-loss
compensation benefits.

5

Cecelia M. Corley, 56 ECAB ___ (Docket No. 05-324, issued August 16, 2005).

6

J.M., 58 ECAB ___ (Docket No. 06-2094, issued January 30, 2007).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 5, 2007 is affirmed.
Issued: November 8, 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
__________________________________________
A.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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Appearances:
Norman McNulty, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-798
Issued: October 27, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 30, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated November 10, 2008. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
February 27, 2008.
FACTUAL HISTORY
On February 27, 2008 appellant, then a 47-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained injuries on that date from a motor vehicle accident
while in the performance of duty. She indicated the time of the incident was 11:30 a.m. The
supervisor’s report on the reverse of the claim form stated that appellant was on lunch break and
in her own personal vehicle. The report also stated that James Gillispie, a supervisor, did not
send appellant to pick up his lunch as alleged.

In a statement dated March 21, 2008, appellant alleged that she was instructed by Diane
Turner, a supervisor, to get lunches at Red Lobster in her own vehicle because there were no
employing establishment vehicles available. She indicated the motor vehicle accident occurred
as she was waiting to turn into the Red Lobster parking lot. Appellant also submitted a
March 17, 2008 statement indicating she was filing a grievance against Ms. Turner and
Mr. Gillispie for making false statements. She stated that she was instructed by Ms. Turner at
11:00 a.m. to pick up lunch for Mr. Gillispie and Ms. Turner. Appellant alleged that Ms. Turner
had already placed the order for lunch under Mr. Gillispie’s name and she gave appellant $35.00
to pay for the order. She noted that her clock rings show that she normally took lunch at 1:30 or
2:00 p.m.
In an undated statement, Ms. Turner denied telling appellant to get lunch. She stated that
there were employing establishment vehicles available if she would have been instructed to get
the supervisor’s lunch.
By decision dated April 24, 2008, the Office denied the claim for compensation. It found
appellant was not in the performance of duty at the time of the incident.
Appellant requested a hearing before an Office hearing representative and submitted
additional evidence. A hearing was held on August 20, 2008. In a statement dated July 17, 2008,
a coworker, Ms. Chaney, stated that on February 27, 2008 she heard Ms. Turner, after speaking
to appellant on the telephone and learning of the accident, tell another supervisor that appellant
had an accident going to Red Lobster “for her (Diane Turner).” In a July 21, 2008 statement, a
coworker, Ms. Rodriguez, stated that on February 27, 2008 she heard Ms. Turner tell a coworker
“I sent [appellant] to get my lunch from Red Lobster and on the way she got hit by a car.”
The record contains an October 6, 2008 arbitrator’s decision in a grievance filed by
appellant. The arbitrator stated that the evidence did not support Ms. Turner’s denial of
instructing appellant to leave the premises to get lunch for the supervisors. According to the
arbitrator appellant’s testimony was detailed and credible regarding the incident, and “it is clear
that Ms. Turner did instruct [appellant] to pick up lunch at Red Lobster.”
In a statement dated October 16, 2008, Mr. Gillispie stated that the witnesses did not hear
Ms. Turner instruct appellant to get lunch. He stated that there were employing establishment
vehicles available, but appellant used her own vehicle.
By decision dated November 10, 2008, the hearing representative affirmed the denial of
the claim. The hearing representative accepted that appellant was instructed to get lunch at Red
Lobster, but found that she was not in the performance of duty as there was no substantial
employer benefit or employment requirement that gave rise to the injury.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides for the payment of compensation
for “the disability or death of an employee resulting from personal injury sustained while in the
performance of duty.”1 The phrase “sustained while in the performance of duty” in the Act is
1

5 U.S.C. § 8102(a).

2

regarded as the equivalent of the commonly found requisite in workers’ compensation law of
“arising out of and in the course of employment.”2
To arise in the course of employment, an injury must occur at a time when the employee
may reasonably be said to be engaged in the master’s business, at a place where he may
reasonably be expected to be in connection with the employment and while he was reasonably
fulfilling the duties of his employment or engaged in doing something incidental thereto.3
It is well established that for employees having fixed hours and a place of work, injuries
occurring off premises while coming and going to and from work before or after work hours, or
at lunch time, are not compensable, subject to several exceptions.4 In addressing one exception
to the coming and going rule, Larson describes the special errand rule as “When an employee,
having identifiable time and space limits on the employment, makes an off-premises journey
which would normally not be covered under the usual going and coming rule, the journey may
be brought within the course of employment by the fact that the trouble and time of making the
journey; or the special inconvenience, hazard; or urgency of making it in the particular
circumstances, is itself sufficiently substantial to be viewed as an integral part of the service
itself.”5
ANALYSIS
The record indicates that in this case appellant was an employee with fixed hours and
place of work. On February 27, 2008 she left the employing establishment premises during work
hours to travel to a Red Lobster restaurant. The hearing representative accepted that appellant
was directed by her supervisor, Ms. Turner, to retrieve lunch for her supervisors. This factual
finding is supported by the evidence of record. While Ms. Turner denied instructing appellant to
go to Red Lobster, there were witnesses who heard Ms. Turner state to others that she had sent
appellant to the restaurant. Appellant herself provided a detailed statement regarding the
incident, and an arbitrator reviewed evidence and testimony and concluded that appellant had
been instructed by Ms. Turner to leave the premises to get lunch for the supervisors.
An employee who leaves the employing establishment premises in her personal vehicle to
travel to a restaurant during a lunch hour would normally be outside of coverage under the Act,
pursuant to the coming and going rule. In this case, however, the employee was not on her lunch
hour, going to a restaurant to eat lunch. Appellant was directed by her supervisor to procure
lunch for her supervisors. She was specifically given a task by her supervisor that required her to
leave the premises. Pursuant to a special errand, appellant’s travel to and from the special errand
brings her in the course of employment. As the Board has noted, “the essence of the [special

2

Valerie C. Boward, 50 ECAB 126 (1998).

3

R.A., 59 ECAB ___ (Docket No. 07-1814, issued June 19, 2008); Mary Keszler, 38 ECAB 735 (1987).

4

A. Larson, The Law of Workers’ Compensation § 13.00 (2007).

5

Id. at § 14.05.

3

errand] exception is not found in the fact that a greater or different hazard is encountered, but in
the agreement to undertake a special task.”6
Appellant undertook a special task as directed by her supervisor and she is covered while
coming and going to perform the task. There was no evidence presented that she had deviated
from her special errand. Appellant was waiting to turn into the parking lot at Red Lobster when
the motor vehicle accident occurred on February 27, 2008.
In her November 10, 2008 decision, the hearing representative refers to a lack of a
substantial employer benefit or employment requirement. This language was initially used in a
case involving an employee who arrived an hour and half prior to her starting time to eat
breakfast at an employing establishment sponsored club on the premises.7 As Larson explains,
certain employee sponsored recreational or social activities, such as a company picnic, may be in
the course of employment if held on the premises, the employer requires participation or derives
substantial direct benefit from the activity.8 The present case involves an employee who was
directed to undertake a special task that required her to leave the premises. The Board finds
appellant is within the special errand exception to the coming and going rule. The case will be
accordingly be remanded to the Office to consider the medical evidence.
CONCLUSION
The Board finds that appellant was performing a special errand on February 27, 2008
when she was involved in a motor vehicle accident, and the case will be remanded to determine
if the medical evidence establishes an injury causally related to the incident.

6

Asia Lynn Doster, 50 ECAB 351 (1999); Elmer L. Cooke, 16 ECAB 163 (1964).

7

Nona J. Noel, 36 ECAB 329, 331 (1984).

8

A. Larson, The Law of Workers’ Compensation § 22.00 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 10 and April 24, 2008 are set aside and the case
remanded for further action consistent with this decision of the Board.
Issued: October 27, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5