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

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

Docket No. 14-83
Issued: June 17, 2014

Case Submitted on the Record

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

JURISDICTION
On October 15, 2013 appellant filed a timely appeal from an August 13, 2013 merit
schedule award decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained permanent impairment of her lower extremities,
warranting a schedule award.
On appeal, appellant contends that an OWCP referral physician did not perform a
thorough medical examination as he spent a good deal of the time talking to her and had her
completing forms.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board with respect to appellant’s schedule
award claim for her upper extremities under File No. xxxxxx415.2 In a June 22, 2006 decision,
the Board affirmed OWCP’s January 12, 2006 decision, finding that appellant did not establish
permanent impairment to her arms. The facts and circumstances as set forth in the Board’s prior
decision are hereby incorporated by reference.3
In the instant claim, adjudicated under File No. xxxxxx411, OWCP accepted appellant’s
claim for aggravation of left tarsal tunnel syndrome due to her repetitive work duties as a mail
handler. It authorized a left tarsal tunnel release which was performed on January 11, 2011 by
Dr. William G. Gerlach, an attending podiatrist. By letter dated February 16, 2011, OWCP
expanded its acceptance of appellant’s claim to include aggravation of bilateral tarsal tunnel
syndrome.
On March 12, 2011 appellant returned to light-duty work. OWCP authorized her right
tarsal tunnel release which was performed on May 17, 2011 by Dr. Gerlach. On August 9, 2011
appellant returned to light-duty work. On August 22, 2011 she returned to regular-duty work.
On January 3, 2013 appellant filed a claim for a schedule award.
In a January 18, 2013 medical report, Dr. Gerlach noted appellant’s complaints of pain,
tingling, numbness and cramping in her right and left foot. On physical examination, he reported
minimal scar formation from appellant’s previous surgery. There was no erythema, edema or
evidence of infection. Dr. Gerlach advised that there was no change in appellant’s neurovascular
status from her previous visit. In a February 15, 2013 report, he indicated that appellant
presented to have new orthotics made. Dr. Gerlach advised that her diagnosis was pronation
secondary to a decompensated foot varus deformity. On examination, he again found no change
in appellant’s neurovascular status from her previous visits. There was mid-stance pronation
with resupination at the toe off and the feet abducted approximately five degrees. No early heel
off was noted.
On April 1, 2013 Dr. Daniel O. Zimmerman, a Board-certified internist and an OWCP
medical adviser, reviewed the medical record. He advised that there was no medical
documentation after the operative interventions that allowed for any impairment rating to be
processed using the instructions in chapter 6 of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
Appellant was referred to Dr. Richard T. Katz, a Board-certified physiatrist, for a second
opinion.

2

Docket No. 06-858 (issued June 22, 2006).

3

In File No. xxxxxx415 OWCP accepted that appellant, a mail handler, sustained employment-related right mild
carpal tunnel syndrome and bilateral tendinitis of the wrists.

2

In a July 17, 2013 report, Dr. Katz reviewed the medical record, and a history of
appellant’s medical treatment, family and occupational background. He noted that she was
cantankerous and belligerent when he asked her to complete a lower limb questionnaire.
Dr. Katz also noted that nerve conduction studies performed before and after appellant’s
surgeries were not included in the materials sent to him. According to appellant they were lost.
Dr. Katz noted her complaint of daily pain which she rated between 3 and 10 in severity and
numbness and tingling in the entire foot bilaterally, including all toes. On neurological
examination, he reported normal muscle strength in the hip flexors, abductors and adductors,
knee extensors, tibialis anterior, extensor hallucis longus, peroneus longus and gluteus medius.
Muscle stretch reflexes were 1+ and symmetrical at the biceps, triceps, brachioradialis, pronator
teres, knee, ankle and hamstrings. Plantar responses were down-going bilaterally. A sensory
examination was normal in the lower extremities to pinprick, vibration and position sense.
Semmes Weinstein monofilaments on the noncalloused soles of the feet were 4.31. Gait and
station were intact. Romberg and sharpened Romberg were negative. There was pronator drift.
There were no movement abnormalities. Skilled motor activity was normal. Cerebellar function
was intact. On examination of the foot and ankle, Dr. Katz reported bilateral tarsal tunnel scars.
There was no swelling, warmth or redness. Range of motion measurements included 20 degrees
of dorsiflexion, 50 degrees of plantar flexion, 30 degrees of inversion and 20 degrees of eversion.
Anterior drawer and varus stress tests and heel alignment were normal. There were two toes
visible from behind. The Achilles insertion was normal without swelling or tenderness. There
was a normal longitudinal arch bilaterally. Palpation of the metatarsal heads and interdigital
nerves was not painful. Dr. Katz determined that appellant reached maximum medical
improvement on August 22, 2011, the date she returned to full-duty work. He advised that his
clinical examination revealed no motor or sensory deficit on either side. Dr. Katz noted the
reported diagnosis of exacerbation of bilateral tarsal tunnel syndrome. Appellant was also
diagnosed with left plantar fasciitis which was not an OWCP claim. Regarding the rating of
tarsal tunnel syndrome, Dr. Katz stated that nerve conduction studies were required to complete
his impairment ratings and requested that they be forwarded to him for review, particularly since
appellant had other nerve pain-related claims. She had neck, arm, hand, back and lower
extremity pain in addition to her foot pain and numbness. On July 28, 2013 Dr. Katz stated that
he was asked to rate appellant’s tarsal tunnel syndrome even though the nerve conduction studies
were lost.4 He rated the condition under Table 16-12 on page 536 of the sixth edition of the
A.M.A., Guides and found that she had no impairment as she had no objective sensory or motor
deficits.
On August 6, 2013 Dr. Zimmerman reviewed the medical record and Dr. Katz’s reports.
He found that appellant reached maximum medical improvement on July 17, 2013.
Dr. Zimmerman further found that Dr. Katz’s zero percent impairment rating for each leg was
acceptable based on the A.M.A., Guides.
In an August 13, 2013 decision, OWCP denied appellant’s schedule award claim. It
found that the weight of medical opinion from Drs. Katz and Zimmerman did not establish any
employment-related impairment of a scheduled member.
4

On July 18, 2013 OWCP stated that it found one electromyogram study referenced in Dr. Gerlach’s May 21,
2010 report, but that it could not locate the actual test.

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LEGAL PRECEDENT
The schedule award provision of FECA,5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.7 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.8 Effective May 1, 2009,
FECA adopted the sixth edition of the A.M.A., Guides9 as the appropriate edition for all awards
issued after that date.10
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).11 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12
ANALYSIS
The Board finds this case is not in posture for decision regarding appellant’s bilateral
lower extremity impairment.
OWCP accepted that appellant sustained aggravation of bilateral tarsal tunnel syndrome
while in the performance of duty. On January 11 and May 17, 2011 Dr. Gerlach, an attending
physician, performed surgery for left and right tarsal tunnel release. Appellant claimed a
schedule award due to her accepted condition. In an August 13, 2013 decision, OWCP denied
her claim for a schedule award as the evidence was insufficient to establish that she sustained
permanent impairment to a scheduled member.
In reports dated January 18 and February 15, 2013, Dr. Gerlach found that appellant had
pronation secondary to decompensated foot varus deformity and that there was no change in her
neurovascular status from her previous visits. However, he did not provide an impairment rating
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

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

8

20 C.F.R. § 10.404; Mark A. Holloway, 55 ECAB 321, 325 (2004).

9

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

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
11

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

12

Id. at 521.

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under the sixth edition of the A.M.A., Guides. Dr. Katz, an OWCP referral physician, reviewed
the medical record and Dr. Gerlach’s findings on July 17, 2013. He listed normal findings on
neurological, sensory and physical examination of appellant’s bilateral lower extremities and
noted the accepted employment-related aggravation of bilateral tarsal tunnel syndrome. Dr. Katz
also noted the reported diagnosis of left plantar fasciitis which was not part of an OWCP claim.
He stated that nerve conduction studies missing from the record were necessary to complete his
impairment rating evaluation. On July 28, 2013 Dr. Katz determined that appellant had no
impairment to either lower extremity under Table 16-12 on page 536 of the sixth edition of the
A.M.A., Guides because she had no objective sensory or motor deficits. He noted, however, that
he rated her impairment without reviewing nerve conduction studies which he requested. The
Board finds that Dr. Katz’s impairment rating was not based on a complete record. The Board
has held that medical reports must be based on a complete and accurate factual and medical
background. Medical opinions based on an incomplete or inaccurate history are of limited
probative value.13 Absent the relevant diagnostic testing pertaining to appellant’s bilateral lower
extremity condition, which was acknowledged by OWCP on July 18, 2013, Dr. Katz’s July 28,
2013 impairment rating is of diminished probative value.
The Board finds that further development of the medical evidence is warranted. Having
undertaken development of the medical opinion evidence by referring appellant to a second
opinion physician, OWCP had an obligation to do a complete job and obtain an evaluation that
would resolve the issue involved in this case.14 The Board will set aside OWCP’s August 13,
2013 decision and remand the case for OWCP to request submission of the missing nerve
conduction studies or obtain new studies from Dr. Katz. OWCP shall request that Dr. Katz
determine the extent of any bilateral lower extremity impairment under the sixth edition of the
A.M.A., Guides. After such further development as deemed necessary, it shall issue a de novo
decision on appellant’s claim for a schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision regarding appellant’s
entitlement to a schedule award for her bilateral lower extremities.

13

J.R., Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).

14

See Mae Z. Hackett, 34 ECAB 1421 (1983).

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ORDER
IT IS HEREBY ORDERED THAT the August 13, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.15
Issued: June 17, 2014
Washington, DC

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

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

15

Richard J. Daschbach participated in the preparation of the decision but was no longer a member of the Board
after May 16, 2014.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
U.S. POSTAL SERVICE, NETWORK
DISTRIBUTION CENTER, Jersey City, NJ,
Employer
__________________________________________

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

Docket No. 19-0414
Issued: August 19, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On December 18, 2018 appellant, through counsel, filed a timely appeal from an
October 26, 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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than three
percent permanent impairment of the right lower extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
On December 17, 2013 appellant, then a 58-year-old plumber, filed a traumatic injury
claim (Form CA-1) alleging that on December 6, 2013 he strained his right knee while working
under a sink while in the performance of duty. He stopped work on December 20, 2013. On
February 18, 2014 OWCP accepted appellant’s claim for sprain of the right knee. On July 29,
2014 it expanded acceptance of the claim to include a right knee medial meniscus tear.
On October 10, 2014 appellant underwent authorized right knee arthroscopy, partial medial
meniscectomy, loose body removal, and chondroplasty of the patellofemoral joint. In an operative
report of the same date, Dr. Louis Rizio, a Board-certified orthopedic surgeon, noted preoperative
and postoperative diagnoses of right knee medial meniscus tear, loose body, and chondromalacia
of the patellofemoral joint. Appellant returned to full-time modified work as a customer care agent
on March 20, 2017. In a letter dated March 21, 2017, OWCP notified him that it had therefore
terminated his periodic wage-loss compensation payments, effective March 20, 2017.
On May 17, 2017 appellant filed a claim for a schedule award (Form CA-7).
In a development letter dated May 19, 2017, OWCP requested that appellant submit an
impairment evaluation from his attending physician addressing the extent of his employmentrelated permanent impairment, if any, in accordance with the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3
By decision dated July 19, 2017, OWCP denied appellant’s claim for a schedule award,
finding that the evidence submitted was insufficient to establish permanent impairment to a
scheduled member or function of the body due to his accepted employment injury as defined by
FECA.
On July 25, 2017 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
In a report dated November 29, 2017, Dr. Harvey R. Manes, a Board-certified orthopedic
surgeon, performed a physical examination for evaluation of appellant’s permanent impairment
pursuant to the A.M.A., Guides. He indicated that appellant had full range of motion (ROM) and
normal muscle strength of the right knee, and the only positive finding was crepitation. Dr. Manes
noted that appellant’s ROM was 150 degrees of flexion and 0 degrees of extension. He diagnosed
arthritis and related that this condition was from his 2013 injury. Dr. Manes indicated that
appellant had reached maximum medical improvement (MMI) on April 5, 2017. He further noted
that, according to Table 16-3, Knee Regional Grid, of the A.M.A., Guides, page 511, appellant’s
3

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

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primary knee arthritis would be placed in class 1 with a default impairment of seven percent.
Dr. Manes assigned a grade modifier of 1 for functional history (GMFH) under Table 16-6, page
516, for pain, stiffness, and weakness, and a grade modifier for physical examination (GMPE)
from Table 16-7, page 517 of 1 for pain with crepitation and ROM. No grade modification was
made for clinical study (GMCS) findings. He explained that, pursuant to the net adjustment
formula on page 521, appellant would receive a net adjustment of zero, which would then result
in the default rating of seven percent permanent impairment of the right lower extremity.
On January 16, 2018 a telephonic hearing with an OWCP hearing representative was held.
At the hearing, the hearing representative noted that appellant had now submitted an impairment
evaluation. By decision dated January 26, 2018, she remanded the case to OWCP for further
medical development, noting that she had made a summary decision, which was outlined in the
hearing transcript.
On February 12, 2018 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving
as a district medical adviser (DMA), reviewed the SOAF, medical records, and Dr. Manes’
permanent impairment evaluation. Upon review of the record, he diagnosed status post right knee
arthroscopic partial medial meniscectomy, loose body removal, and chondroplasty. Using the
diagnosis-based impairment method, the DMA indicated that appellant had three percent
permanent impairment of the right lower extremity as he had undergone a partial medial
meniscectomy, under Table 16-3, page 509 of the A.M.A., Guides.
The DMA also related that the A.M.A., Guides did not allow for impairment ratings to be
calculated using the ROM method for appellant’s diagnosis. He noted that Dr. Manes’ impairment
evaluation was based on the Knee Regional Grid for arthritis and, while the operative report and
MRI scan showed arthritic changes in appellant’s knee, the Knee Regional Grid, Table 16-3 at
page 511, calculated permanent impairment for arthritis based on radiographic evidence of a three
millimeter cartilage interval, full thickness articular cartilage defects, and/or ununited
osteochondral fractures. The DMA indicated that none of appellant’s medical records contained
the required findings of retained joint space. He related that the date of MMI was November 29,
2017, the date of Dr. Manes’ physical examination, because an April 5, 2017 date of MMI was not
supported by the medical evidence.
By decision dated April 26, 2018, OWCP granted appellant a schedule award for three
percent permanent impairment of the right lower extremity. The period of award ran for 8.64
weeks from November 29, 2017 to January 28, 2018.
On May 2, 2018 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.4 The hearing was held on September 19, 2018.
By decision dated October 26, 2018, OWCP’s hearing representative affirmed the
April 26, 2018 decision, finding that the evidence of record failed to establish that appellant had

4
Appellant submitted additional evidence with the request. However, this evidence pertained to an unrelated
hearing loss claim.

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more than three percent permanent impairment of his right lower extremity, for which he
previously received a schedule award.
LEGAL PRECEDENT
The schedule award provisions of FECA,5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the knee, the relevant portion of the leg for the present case, reference
is made to Table 16-3 (Knee Regional Grid) beginning on page 509.9 After the class of diagnosis
(CDX) is determined from the Knee Regional Grid (including identification of a default grade
value), the net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).10 Under Chapter 2.3,
evaluators are directed to provide reasons for their impairment rating choices, including choices
of diagnoses from regional grids and calculations of modifier scores.11
In some instances, a DMA’s opinion can constitute the weight of the medical evidence.12
This occurs in schedule award cases where an opinion on the percentage of permanent impairment
and a description of physical findings is on file from an examining physician, but the percentage
estimate by this physician is not based on the A.M.A., Guides.13 In this instance, a detailed opinion
by a DMA may constitute the weight of the medical evidence as long as he or she explains his or
her opinion, shows values and computation of impairment based on the A.M.A., Guides, and

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
9

See A.M.A., Guides 509-11 (6th ed. 2009).

10

Id. at 515-22.

11

Id. at 23-28.

12

J.H., Docket No. 18-1207 (issued June 20, 2019); M.P., Docket No. 14-1602 (issued January 13, 2015); supra
note 8 at Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.8(j) (September 2010).
13

Id.

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considers each of the reported findings of impairment.14 If the attending physician misapplied the
A.M.A., Guides, no conflict would exist because the attending physician’s report would have
diminished probative value and the opinion of the DMA would constitute the weight of medical
opinion.15
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish greater than
three percent permanent impairment of the right lower extremity, for which he previously received
a schedule award.
In support of his schedule award claim, appellant submitted an impairment evaluation
report from Dr. Manes dated November 29, 2017. Based on physical examination and the Knee
Regional Grid for arthritis in the A.M.A., Guides, Table 16-3, Dr. Manes calculated a permanent
impairment rating of seven percent of appellant’s right lower extremity.
OWCP referred Dr. Manes’ report to Dr. Harris, its DMA for review. The DMA explained
that Dr. Manes’ impairment evaluation was based on the Knee Regional Grid, Table 16-3 for
arthritis, which was inappropriate as appellant’s examination did not include findings of three
millimeter cartilage interval, full thickness articular cartilage defect, or ununited osteochondral
fracture.
The DMA found that appellant had a three percent permanent impairment of the right lower
extremity based upon his partial medial meniscectomy. The Board has held that, when an
attending physician’s report gives an estimate of permanent impairment, but it is not based on
proper application of the A.M.A., Guides, OWCP may follow the advice of its medical adviser if
he has properly used the A.M.A., Guides.16 The Board, thus, finds that OWCP properly found the
impairment rating by the DMA constituted the weight of the medical evidence. The DMA’s
opinion was based on an accurate SOAF and the complete medical record. He provided a thorough
impairment rating, utilizing the appropriate portions of the A.M.A., Guides for appellant’s partial
medial meniscectomy under Table 16-3, page 509. The DMA described how appellant’s objective
findings and physical examination warranted the specified percentage of impairment.
There is no additional evidence of record which provides for a higher rating of permanent
impairment. Therefore, the Board finds that appellant has not met his burden of proof to establish
greater than the three percent permanent impairment of the right lower extremity previously
awarded.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
14

Id.

15

Id.

16

See P.L., Docket No. 17-0355 (issued June 27, 2018); see also Ronald J. Pavlik, 33 ECAB 1596 (1982).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish greater than
three percent permanent impairment of the right lower extremity, for which he previously received
a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the October 26, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 19, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, DETROIT
PERFORMANCE CLUSTER, Detroit, MI,
Employer
__________________________________________

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Appearances:
Steve Burt, for the appellant
Office of Solicitor, for the Director

Docket No. 11-1961
Issued: April 23, 2012

Case Submitted on the Record

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

JURISDICTION
On August 31, 2011 appellant, through her representative, filed a timely appeal from the
May 24, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her schedule award claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant is entitled to schedule award compensation based on his
right foot condition.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On October 23, 2003 appellant, then a 53-year-old mail carrier, filed an occupational
disease claim alleging that she sustained bunions, neuroma and dislocation of her right foot due
to her job duties including standing and walking for extended periods.
On January 28, 2003 Dr. Tameka Lee, an attending podiatrist, performed right foot
surgery including a bunionectomy, open reduction and internal fixation of the second
metatarsophalangeal (MTP) joint dislocation and excision of neuroma of interspaces two and
three.2 On May 5, 2006 OWCP accepted appellant’s claim for aggravation of a closed
dislocation of the second MTP joint of the right foot. On November 14, 2006 appellant filed a
claim for a schedule award due to her work injury.
In a March 29, 2007 report, Dr. Marc Richter, an attending Board-certified family
practitioner, advised that appellant’s January 2003 surgery caused pain along the extensor
tendons of the second and third toes and second and third metatarsal heads as well as a fixed
deformity of the second and third toes such that she could not bend the second and third toes at
the interphalangeal (IP) joint.
On October 23, 2007 a person with an illegible signature completed a worksheet based on
Figure 17-10 of the fifth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides) (5th ed. 2001). The worksheet diagnosed
“metatarsalgia; lack of (illegible) right 2nd and 3rd digits.” Appellant had 80 percent weakness
and 80 percent range of motion of the right second and third digits.
In a November 14, 2007 report, Dr. Nabil Angley, a Board-certified orthopedic surgeon,
serving as an OWCP medical adviser, noted that the October 23, 2007 worksheet was illegible
and had not been properly completed. He recommended that OWCP obtain a through report
concerning appellant’s right foot condition and possible permanent impairment.
In April 2008, OWCP referred appellant to Dr. Jeffrey Lawley, a Board-certified
orthopedic surgeon, for an examination and impairment rating.
In a May 30, 2008 report, Dr. Lawley stated that appellant complained of frequent pain in
her right foot which she rated at 6 to 7 on a scale of 1 to 10. Physical examination of her right
foot showed well-healed surgical scars and slight decreased planar flexion of the great toe at the
IP joint with full extension of 25 degrees. Appellant reported diminished sharp pinprick
sensation in the second web space and second and third toes. Dr. Lawley stated that she had full
active and painless range of motion of the ipsilateral ankle with plantar flexion and dorsiflexion.
Appellant had full subtalar joint motion with inversion and eversion and her gait was normal.
Dr. Lawley diagnosed status post bunionectomy with corrective surgery with osteotomies
proximal phalanx and first metatarsal, status post open reduction and internal fixation, dorsal
dislocation of the second MTP joint and status post excision neuroma right foot. He stated, “Per
Table 17-14 in the fifth edition of the [A.M.A.,] Guides, there is no impairment for the great toe

2

OWCP later accepted that this surgery was necessitated by a work injury.

2

IP joint flexion at 25 degrees; there needs to be less than 20 degrees to have impairment,
therefore, this is [zero percent].”
In an August 1, 2008 report, Dr. Anthony Skalak, a Board-certified orthopedic surgeon
serving as an OWCP medical adviser, found that appellant had a zero percent permanent
impairment of her right foot based on normal range of motion of the MTP and IP joints of her
toes.
In an October 22, 2008 decision, OWCP denied a schedule award on the grounds that the
medical evidence did not establish permanent impairment of appellant’s right foot. In reaching
this determination, it relied on the opinions of Dr. Lawley and Dr. Skalak. In a March 17, 2009
decision, an OWCP hearing representative affirmed the October 22, 2008 decision.
Appellant submitted a handwritten note dated March 9, 2009 of Dr. Kathleen Duzak, an
attending podiatrist, who indicated that there was a problem with the impairment ratings of
record, noting the range of motion in the second and third toes of appellant’s right foot had not
been measured. Dr. Duzak stated that a February 19, 2009 examination revealed a weakness of
60 to 80 percent in appellant’s right second and third toes and range of motion of 60 to 80
percent in her right second and third toes.
In a July 2, 2009 report, Dr. Murray Kahn, an attending podiatrist, noted that appellant
had last been examined in March 2009 by Dr. Marc Chicorel, an attending podiatrist. X-rays
performed on March 5, 2009 demonstrated arthrosis of her right foot. Dr. Kahn provided a copy
of Table 17-14 of the fifth edition of the A.M.A., Guides on which he rated a seven percent
impairment of the right great toe based on less than 15 degrees of MTP joint extension and IP
joint flexion. He also noted a seven percent impairment on MTP joint extension of the lesser
toes, including the first and second digits of the right foot.
On a copy of Table 17-14 of the fifth edition of the A.M.A., Guides, Dr. Chicorel
provided a notation, on an unspecified date, that the second digit of appellant’s right foot had 60
percent dorsiflexion.
In a March 25, 2010 report, Dr. Angley reviewed Dr. Kahn’s report, but was unable to
determine appellant’s impairment due to incomplete information. He recommended referring her
to an orthopedic surgeon for additional examination and impairment evaluation. In a
supplemental May 17, 2010 report, Dr. Angley explained that the document from Dr. Chicorel
was not a true worksheet and stated, “It is a copy of the A.M.A.[,] Guides, [fifth] edition and,
therefore, is useless.” He continued to recommend referral to an orthopedic surgeon to obtain an
accurate calculation of impairment.
In a May 19, 2010 decision, OWCP denied appellant’s claim for a schedule award of her
right foot. It found that the new evidence submitted by her did not include a proper impairment
rating under the relevant edition of the A.M.A., Guides.
Appellant submitted a document in which Dr. Kahn provided notations, made on
October 25, 2010 on a copy of Figure 16-12 on page 551 of the sixth edition of the A.M.A.,
Guides. Dr. Kahn wrote the number four in the line pertaining to the right third toe and the
number five and the phrase “mid foot” on the line pertaining to the right ankle and hindfoot.
3

In a May 19, 2011 report, Dr. Angley indicated that the report of Dr. Kahn on
October 25, 2010 did not have any meaning and that other tables concerning impairment rating
methods needed to be referenced. There were no modifiers or adjustments discussed and the
rating was unacceptable. Dr. Angley again recommend that appellant be referred to an
orthopedic surgeon to obtain an accurate calculation of impairment.
In a May 24, 2011 decision, OWCP affirmed its May 19, 2010 decision finding no
permanent impairment of appellant’s right foot.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.6
OWCP is not a disinterested arbiter but rather performs the role of adjudicator on the one
hand and gatherer of the relevant facts and protector of the compensation fund on the other, a
role that imposes an obligation on OWCP to see that its administrative processes are impartially
and fairly conducted.7 Although the claimant has the burden of establishing entitlement to
compensation, OWCP shares responsibility in the development of the evidence.8 Once OWCP
starts to procure medical opinion, it must do a complete job.9
ANALYSIS
OWCP accepted that appellant sustained an occupational disease in the form of
aggravation of a closed dislocation of the second MTP joint of her right foot. On January 28,
2003 appellant underwent right foot surgery including a bunionectomy, open reduction and
internal fixation of the second MTP joint dislocation and excision of neuroma of interspaces two
and three. OWCP accepted that this surgery was necessitated by appellant’s work-related
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

6

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

7

Thomas M. Lee, 10 ECAB 175 (1958).

8

William J. Cantrell, 34 ECAB 1233 (1983); Gertrude E. Evans, 26 ECAB 195 (1974).

9

William N. Saathoff, 8 ECAB 769 (1956).

4

condition. Appellant claimed entitlement to schedule award compensation for permanent
impairment of her right foot, but OWCP found that she had not established entitlement to such
compensation.
In April 2008, OWCP referred appellant to Dr. Lawley, a Board-certified orthopedic
surgeon, for an examination and impairment rating. In a May 30, 2008 report, Dr. Lawley
indicated that physical examination of her right foot showed slight decreased planar flexion of
the great toe at the IP joint with full extension of 25 degrees. He stated, “Per Table 17-14 in the
[fifth] edition of the [A.M.A.,] Guides, there is no impairment for the great toe IP joint flexion at
25 degrees; there needs to be less than 20 degrees to have impairment, therefore, this is [zero
percent].” In reports dated March 25 and May 17, 2010 and May 19, 2011, Dr. Angley, a Boardcertified orthopedic surgeon serving as an OWCP medical adviser, recommended that appellant
be referred to another orthopedic surgeon for additional examination and impairment evaluation.
The Board notes that OWCP referred appellant to Dr. Lawley for further evaluation of
her claimed right foot impairment, but that he did not conduct a complete assessment of her right
foot condition. Dr. Lawley did not provide the range of motion in the second and third toes of
her right foot. These are the area’s most affected by the accepted work condition and the
January 2003 surgery necessitated by the accepted work condition.10 OWCP did not address the
deficiencies in the second opinion referral. It shares responsibility in the development of the
evidence, particularly when it initiates such development.11
The case will be remanded to OWCP for proper development of the medical evidence to
include referral of appellant to an appropriate medical specialist for examination and evaluation
of her right foot impairment. After such development as it deems necessary, OWCP shall issue
an appropriate decision on this matter.
CONCLUSION
The Board finds that the case is not in posture regarding whether OWCP properly
determined that appellant is not entitled to schedule award compensation. The case is remanded
to OWCP for further development.

10

The Board notes that, under both the fifth and sixth editions of the A.M.A., Guides, assessment of toe motion is
an integral element of evaluating foot impairment. See A.M.A., Guides 549, Table 16-18 and Table 16-19 (6th ed.
2009); A.M.A., Guides 537, Table 17-14 (5th ed. 2001). The record contains a July 2, 2009 report, in which Dr. Kahn
provided an impairment rating due to limited toe motion under the standards of the fifth edition of the A.M.A.,
Guides. However, this impairment rating was made when the standards of the sixth edition of the A.M.A., Guides
were in effect. See supra note 6. Other physicians evaluated appellant’s foot impairment, but they did not provide a
complete evaluation and impairment rating under the relevant edition of the A.M.A., Guides.
11

See supra notes 7 through 9.

5

ORDER
IT IS HEREBY ORDERED THAT the May 24, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: April 23, 2012
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
FINANCE & ACCOUNTING SERVICES,
Norfolk, VA, Employer
__________________________________________

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Appearances:
Karen M. Rye, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1836
Issued: March 22, 2007

Oral Argument February 27, 2007

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 7, 2006 appellant filed a timely appeal of a May 9, 2006 decision of the
Office of Workers’ Compensation Programs, denying her application for reconsideration without
merit review of the claim. Pursuant to 20 C.F.R. § 501.3, the Board’s jurisdiction is limited to
final decisions issued within one year of the filing of the appeal. The Board does not have
jurisdiction over a September 16, 2002 merit decision denying her claim for compensation.
ISSUE
The issue is whether the Office properly refused to reopen the case for merit review
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
The case was before the Board on a prior appeal.1 Appellant filed an occupational claim
alleging that she sustained an emotional condition causally related to her federal employment.
1

Docket No. 04-673 (issued October 12, 2005).

She alleged that she was subject to harassment and a hostile work environment and she alleged a
number of incidents of administrative error. The claim was denied by decisions dated
August 14, 1996, November 23, 1998 and September 16, 2002. The Office found that appellant
did not allege and substantiate any compensable work factors. The Board set aside an
October 21, 2003 Office decision finding that appellant’s request for reconsideration was
untimely. The case was remanded to the Office for appropriate consideration of a timely
reconsideration request.
The application for reconsideration was dated September 15, 2003. Appellant argued that
there was error or abuse by the employing establishment with regard to disclosure of medical
information. She stated that the employing establishment was required by 5 U.S.C. § 6311 to
inform the claimant when information collected will be used for purposes other than those stated
in section 6311. In addition, appellant argued that disclosure of medical information without her
consent was prohibited. She also stated that she was entitled to sick leave as she had submitted a
July 22, 1987 request for sick leave with a medical report dated July 22, 1987 from
Dr. Suzanne Dundon. Appellant submitted copies of the leave request and the medical report.
Dr. Dundon stated that appellant would be disabled for three weeks. She referred to a
September 20, 1995 letter from a former supervisor, Alton R. Lassiter. According to appellant,
at the time of the letter, medical information had not been released by her to Mr. Lassiter. She
resubmitted a copy of the September 20, 1995 letter. Mr. Lassiter indicated that he had retired in
1992, but he recalled at least two occasions where appellant requested either advanced sick leave
or leave without pay. He stated that one request was substantiated by a physician stating that
appellant’s symptoms were indicative of a person who had suffered child abuse, rape or a
traumatic incident of some type. Mr. Lassiter also stated that he recalled the leave request was
approved. With respect to medical evidence, appellant submitted a September 10, 2003 report
from Dr. Udaya Shetty, a psychiatrist.
By decision dated May 9, 2006, the Office determined that the request for reconsideration
was not sufficient to warrant further merit review of the claim.

2

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office with
discretionary authority to determine whether it will review an award for or against compensation:
“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, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
Under 20 C.F.R. § 10.606(b)(2), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law, by
advancing a relevant legal argument not previously considered by the Office or by submitting
relevant and pertinent new evidence not previously considered by the Office. Section 10.608(b)
provides that when an application for review of the merits of a claim does not meet at least one
of these three requirements the Office will deny the application for review without reviewing the
merits of the claim. Evidence that repeats or duplicates evidence already in the case record has
no evidentiary value and does not constitute a basis for reopening a case.2
ANALYSIS
The Office did not accept that appellant established any compensable work factors with
respect to her claim for compensation. On reconsideration, appellant argued that she had a right
to use sick leave and this was a compensable factor of employment. She did not clearly explain
how a right to sick leave resulted in a compensable work factor. To the extent appellant was
arguing that the employing establishment erroneously denied her sick leave request from July 22,
1987, there was no relevant evidence submitted. The July 22, 1987 request for advanced sick
leave was previously submitted prior to the November 23, 1998 merit decision. The brief
July 22, 1987 report from Dr. Dundon appears to be new evidence, but it is not relevant to the
establishing of a compensable work factor regarding sick leave or other factual allegation. It is
also of no relevance regarding a medical issue. The Office had not accepted any compensable
work factors and appellant must first establish a compensable work factor before the medical
evidence is relevant.3
The reconsideration request also argued the employing establishment erred in disclosing
medical information. Appellant refers to 5 U.S.C. § 6311, without providing relevant
explanation.4 The Board finds that appellant’s arguments have no reasonable color of validity.
2

Eugene F. Butler, 36 ECAB 393 (1984).

3

See James W. Scott, 55 ECAB 606 (2004).

4

5 U.S.C. § 6311 provides only that the Office of Personnel Management may prescribe regulations regarding
leave as necessary. It does not discuss disclosure of medical information. Appellant also referred to 42 C.F.R. Part
2, without providing a more specific citation.

3

Where the legal argument presented has no reasonable color of validity, the Office is not
required to reopen the case for merit review.5 The Board notes that appellant submitted a
September 20, 1995 letter from a former supervisor, Mr. Lassiter. This letter had been submitted
prior to the November 23, 1998 Office decision and was considered by the hearing representative
in that decision. It does not constitute new evidence, nor does it support a new and relevant legal
argument.
Appellant did submit a new medical report from Dr. Shetty. As noted, the underlying
merit issue was not a medical issue as the Office had not accepted any compensable work
factors. Appellant did not submit new and relevant evidence on reconsideration.
The Board accordingly finds that appellant did not meet any of the requirements of
section 606(b)(2). Appellant did not show that the Office erroneously applied or interpreted a
point of law or advance a new and relevant legal argument. The legal arguments raised were not
supported by the evidence of record and had no reasonable color of validity. Moreover,
appellant did not submit any new and relevant evidence. The only new evidence submitted were
medical reports that were not relevant to the issue of compensable work factors. Since appellant
did not meet the requirements of section 606(b)(2), the Office properly refused to reopen the
claim for merit review.
CONCLUSION
Appellant did not show that the Office erroneously applied or interpreted a point of law,
advance a new and relevant legal argument or submit new and relevant evidence.

5

See Norman W. Hanson, 40 ECAB 1160 (1989).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 9, 2006 is affirmed.
Issued: March 22, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.T., Appellant
and
DEPARTMENT OF THE ARMY, MADIGAN
ARMY MEDICAL CENTER, JOINT BASE
LEWIS-McCHORD, WA, Employer
__________________________________________

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Appearances:
Howard L. Graham, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1302
Issued: October 22, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On June 18, 2018 appellant, through counsel, filed a timely appeal from a May 23, 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.
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective October 2, 2017, as she no longer had
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.

residuals or disability causally related to her accepted employment injuries; and (2) whether
appellant has met her burden of proof to establish residuals or disability causally related to her
accepted employment injuries after October 2, 2017.
FACTUAL HISTORY
On April 13, 2011 appellant, then a 41-year-old assistant program manager, filed an
occupational disease claim (Form CA-2) alleging that she sustained injuries to her upper
extremities and neck due to her federal employment duties including typing on a computer and a
hand-held device. She indicated that she first became aware of her alleged injury on June 1, 2008
and first realized its relation to her federal employment on September 1, 2010. Appellant stopped
work on April 15, 2011.3
In July 2011 OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome and
enthesopathy of the right wrist/carpus. On September 26, 2011 appellant underwent right carpal
tunnel release surgery and, on January 16, 2012, she underwent left carpal tunnel release surgery.
OWCP authorized both surgeries. 4
Between 2012 and 2014 OWCP developed the medical evidence by referring appellant for
multiple second opinion evaluations. Based on this development, it expanded the accepted
conditions to include bilateral cubital tunnel syndrome, bilateral de Quervain’s tenosynovitis, and
a single episode of major depression (moderate-to-severe).5
In July 2016 OWCP referred appellant to Dr. Aaron Hunt, a Board-certified psychiatrist,
for a second opinion examination and requested that Dr. Hunt provide an opinion regarding
whether appellant continued to have residuals of her accepted employment-related emotional
condition, a single episode of major depression (moderate-to-severe).6
In an August 23, 2016 report, Dr. Hunt discussed appellant’s history of emotional problems
and reported the findings of his psychological evaluation. He indicated that, during the evaluation,
appellant related her emotional problems to her belief that she had worked in a hostile work
environment at the employing establishment. Dr. Hunt reported that her speech demonstrated
normal rate, volume, and articulation, and that her cognitive presentation was intact. He noted that
appellant briefly exhibited tearfulness when discussing issues during the evaluation, but that she
otherwise maintained a fairly neutral mood. Dr. Hunt advised that appellant was a poor historian

3

Appellant retired from federal service effective February 23, 2012.

4

OWCP paid appellant wage-loss compensation on the daily rolls commencing April 15, 2011 and on the periodic
rolls commencing January 15, 2012.
5

As part of a second opinion examination in mid-2013, OWCP provided the OWCP referral physician with a copy
of a surveillance video, obtained by the employment establishment on June 24, 2013, which showed appellant holding
a mobile phone and typing on it. Counsel, on behalf of appellant, requested a copy of the surveillance video and, in
January 2014, counsel received a copy for inspection.
OWCP provided Dr. Hunt with a document entitled, “questions to the second opinion examiner,” which posed 13
questions for him to answer regarding appellant’s emotional condition.
6

2

regarding her psychological condition and he indicated that her conversation was driven by her
own concerns.
Under the Axis I category, Dr. Hunt diagnosed a single episode of major depressive
disorder (moderate-to-severe, administratively accepted), which had resolved with regard to the
industrial injury; adjustment disorder with depressed and anxious mood, unrelated, primarily
related to occupational factors; pain disorder, associated with psychological factors, unrelated; and
rule out factitious disorder versus malingering. Under the Axis II category, he noted that he was
deferring a diagnosis and indicated, “Though I would recommend that [sic] either the MMPI
(Minnesota Multiphasic Personality Inventory) [or] Millon testing to address underlying
psychological dysfunction. Clarification would be related, because it would help clarify Axis I
diagnoses.” Dr. Hunt indicated that the only way to relate appellant’s major depression to the
accepted employment injuries would be to relate it to an actual existing physical injury, and he
advised that the evidence of record no longer showed that such an injury existed.7 He determined
that appellant could return to her regular work from a psychiatric standpoint and advised that any
depression or psychiatric dysfunction she was experiencing was not due to the accepted industrial
injury.
In a September 8, 2016 work capacity form (Form OWCP-5c), Dr. Hunt checked a box
marked “Yes” indicating that appellant could perform her usual job, and he added the notation,
“Psychiatrically, related to the injury, yes.”
In a September 13, 2016 letter to Dr. Hunt, OWCP noted that he had indicated in his
August 23, 2016 report that he was deferring an Axis II diagnosis and was recommending that
either MMPI or Millon testing be performed in order to address appellant’s underlying
psychological dysfunctions. It requested that Dr. Hunt proceed with such testing and, after
completion of the testing, to “revisit your responses to the 13 questions posed in this case and
please revise any response as needed.”
The findings of October 5, 2016 upper extremity electromyogram and nerve conduction
velocity (EMG/NCV) testing contained an impression of mild residual bilateral carpal tunnel
syndrome (median nerve entrapment at the wrists) affecting sensory components and no
electrodiagnostic evidence of bilateral cubital tunnel syndrome.
In April 2017 OWCP referred appellant to Dr. Eric Rudd, a Board-certified orthopedic
surgeon, for a second opinion examination and requested that Dr. Rudd provide an opinion
regarding whether appellant continued to have residuals or disability causally related to her
accepted upper extremity injuries.8
In a May 22, 2017 report, Dr. Rudd discussed appellant’s factual and medical history and
noted that she complained of pain in her neck and multiple locations in her upper and lower

7

Dr. Hunt indicated that appellant’s belief that she had adversarial relationships with supervisors appeared to be
the primary reason she “sustained depressive illness over time.”
8

OWCP provided Dr. Rudd with a copy of June 2013 surveillance video.

3

extremities.9 He reported physical examination findings and indicated that appellant’s shoulder
regions could barely be palpated due to exquisite trigger-point tenderness (right greater than left),
particularly in the trapezial areas. Dr. Rudd characterized appellant’s pain responses to testing as
being more globally myofascial in origin than mechanical. Appellant could barely be palpated in
any area of her upper extremities due to exquisite pain responses which were immediate in nature.
Dr. Rudd could not identify true dermatomal or myotomal deficits in connection with these pain
responses.10 He reported that appellant exhibited diffuse tenderness in both elbows and forearms,
and that she complained of diffuse right thumb pain extending into the first web space/thenar
eminence which was not well localized in an anatomic structure.
Dr. Rudd concluded that appellant’s employment-related bilateral carpal tunnel syndrome
had resolved. He opined that appellant did not then have bilateral cubital syndrome because the
most recent EMG/NCV testing had not shown the presence of the condition and the Tinel’s sign
testing he carried out produced pain, but no paresthesias. Dr. Rudd further found that appellant
did not then have bilateral de Quervain’s tenosynovitis because Finkelstein’s sign testing yielded
negative results and she exhibited tenderness in multiple soft tissue zones of the wrists rather than
only in the first dorsal compartments. He also diagnosed fibromyalgia which he identified as the
source of appellant’s diffuse pain complaints, but he indicated that he did not believe this condition
was related to her accepted employment injuries. Dr. Rudd noted that it was difficult to relate a
widespread myofascial pain syndrome, such as fibromyalgia, to appellant’s “structural
injury/overuse on the job.” He determined that, based on objective orthopedic findings, she could
return to her regular duties as an assistant program manager without restrictions. 11 In a June 8,
2017 work capacity form (Form OWCP-5c), Dr. Rudd checked a box marked “Yes” indicating
that appellant could perform her usual job without restrictions.
In a July 19, 2017 letter, OWCP advised appellant that it proposed to terminate her wageloss compensation and medical benefits because she ceased to have residuals and disability
causally related to her accepted employment injuries. It informed appellant that the proposed
termination action was based on the opinions of Dr. Rudd and Dr. Hunt, OWCP’s referral
physicians. OWCP afforded appellant 30 days to submit evidence and argument challenging the
proposed termination action.
In response, counsel argued in an August 14, 2017 document that Dr. Rudd and Dr. Hunt
had not provided adequate medical rationale in their reports to explain why appellant ceased to
have residuals or disability due to her accepted employment injuries.
By decision dated October 2, 2017, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective October 2, 2017, as she no longer had residuals or disability
causally related to her accepted employment injuries. It found that the weight of the medical

9

Dr. Rudd indicated that the June 2013 surveillance video showed appellant using a mobile phone and typing on
it. He provided a summary of the medical evidence in the case record and noted that October 5, 2016 EMG/NCV
testing contained an impression of mild residual bilateral carpal tunnel syndrome affecting sensory components.
10

Dr. Rudd advised that Finkelstein’s sign testing of appellant’s wrists yielded negative results.

Dr. Rudd also noted, “Based on her subjective complaints with widespread pains reaching 10/10, work will be
problematic.”
11

4

evidence with respect to employment-related residuals/disability rested with the well-rationalized
opinions of Dr. Rudd and Dr. Hunt.
On October 23, 2017 appellant, through counsel, requested an oral hearing with a
representative of OWCP’s Branch of Hearings and Review.
During the hearing, held on February 14, 2018, counsel argued that the opinions of the
OWCP referral physicians did not contain adequate medical rationale to support the termination
of appellant’s wage-loss compensation and medical benefits. Appellant testified that she continued
to experience pain and weakness in her upper extremities and that she struggled with depression
and anxiety.
Appellant subsequently submitted a February 6, 2018 report from Dr. Stephen Langer, a
Board-certified psychiatrist, who opined that appellant continued to have residuals and disability
causally related to her accepted employment-related single episode of major depression.
By decision dated May 23, 2018, OWCP’s hearing representative affirmed the October 2,
2017 decision. She found that OWCP’s October 2, 2017 termination action was proper and further
found that, after that proper termination action, appellant had not met her burden of proof to
establish entitlement to wage-loss compensation or medical benefits on or after October 2, 2017.
LEGAL PRECEDENT -- ISSUE 1
Under FECA, once OWCP has accepted a claim it has the burden of justifying termination
or modification of compensation benefits. 12 OWCP may not terminate compensation without
establishing that the disability ceased or that it was no longer related to the employment. 13
OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background. 14
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”15 In situations where
there exist 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

12

L.L., Docket No. 18-1426 (issued April 5, 2019); C.C., Docket No. 17-1158 (issued November 20, 2018); I.J.,
59 ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541 (1986).
13

A.D., Docket No. 18-0497 (issued July 25, 2018). In general, the term disability under FECA means incapacity
because of injury in employment to earn the wages which the employee was receiving at the time of such injury. See
20 C.F.R. § 10.5(f).
14

See R.P., Docket No. 17-1133 (issued January 18, 2018).

15

5 U.S.C. § 8123(a).

5

specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight. 16
ANALYSIS -- ISSUE 1
The Board first finds that OWCP has met its burden of proof to terminate appellant’s
medical benefits, effective October 2, 2017, with respect to her accepted bilateral cubital tunnel
syndrome and bilateral de Quervain’s tenosynovitis, but has not met its burden of proof terminate
her medical benefits, effective the same date, with respect to her accepted bilateral carpal tunnel
syndrome and enthesopathy of the right wrist/carpus.
In his May 22, 2017 report, Dr. Rudd, an OWCP referral physician, provided an opinion
that the accepted condition of bilateral cubital syndrome had resolved. He supported this opinion
by explaining that October 5, 2016 EMG/NCV testing confirmed that appellant did not have such
a condition and that his examination did not reveal objective signs of its existence. Dr. Rudd also
explained that appellant no longer had bilateral de Quervain’s tenosynovitis because the medical
evidence of record did not contain objective findings confirming the existence of this condition. 17
Therefore, the Board finds that, with respect to continuing residuals of these conditions, the weight
of the medical evidence is represented by the opinion of Dr. Rudd. Dr. Rudd provided a thorough
factual and medical history, accurately summarized the relevant medical evidence, and provided
medical rationale for his opinion that appellant had no continuing residuals of the accepted bilateral
cubital tunnel syndrome and bilateral de Quervain’s tenosynovitis.18
In addition, Dr. Rudd opined, without elaboration, that appellant’s accepted condition of
bilateral carpal tunnel syndrome had resolved. The Board finds, however, that he did not provide
a clear explanation for this conclusion. Dr. Rudd acknowledged that the October 5, 2016
EMG/NCV testing contained an impression of bilateral carpal tunnel syndrome affecting sensory
components, but he did not indicate when appellant’s carpal tunnel condition had resolved or
otherwise explain how these diagnostic findings comported with his opinion that the condition had
resolved.19 The Board further notes that Dr. Rudd did not provide an opinion regarding whether
appellant continued to have residuals of the accepted enthesopathy of the right wrist/carpus and,
therefore, OWCP has not presented a basis for its determination that appellant ceased to have
residuals of this condition. For these reasons, the Board finds that OWCP has not met its burden
of proof to terminate appellant’s medical benefits with respect to her accepted bilateral carpal
16

D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB
1010 (1980).
17

Dr. Rudd indicated that appellant’s Finkelstein’s sign testing yielded negative results and that she exhibited
tenderness in multiple soft tissue zones of the wrists rather than only in the first dorsal compartments.
18
See W.C., Docket No. 18-1386 (issued January 22, 2019); Melvina Jackson, 38 ECAB 443 (1987) (regarding the
importance, when assessing medical evidence, of such factors as a physician’s knowledge of the facts and medical
history, and the care of the analysis manifested and the medical rationale expressed in support of the physician’s
opinion).
19
In the physical findings portion of his May 22, 2017 report, Dr. Rudd indicated that bilateral Tinel’s sign testing
produced exquisite pain without a physiologic paresthesia response which would suggest active carpal tunnel
syndrome, but he also noted that bilateral Phalen’s sign testing was equivocal at best with respect to the presence of a
carpal tunnel condition.

6

tunnel syndrome and enthesopathy of the right wrist/carpus, and she would be entitled to receive
continuing medical benefits related to these conditions.
The Board further finds that OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation, effective October 2, 2017, with respect to her accepted upper extremity
injuries. In his May 22, 2017 report, Dr. Rudd provided a comprehensive description of the
symptoms related to appellant’s upper extremities. He concluded that there were no objective
medical findings in her upper extremities that would prevent her from returning to her regular work
as an assistant program manager. Dr. Rudd explained that appellant’s widespread upper extremity
symptoms were subjective in nature and were related to the nonwork-related condition of
fibromyalgia.20 In his May 22, 2017 report, he provided a thorough factual and medical history,
accurately summarized the relevant medical evidence, and provided medical rationale for his
opinion that appellant had no continuing disability causally related to her accepted upper extremity
injuries.21
On appeal counsel argues that Dr. Rudd did not provide adequate medical rationale to
explain why appellant ceased to have residuals or disability on or after of October 2, 2017 due to
her accepted upper extremity injuries. However, as detailed above, he provided a rationalized
medical opinion supporting the termination of wage-loss compensation related to appellant’s
accepted upper extremity injuries and the termination of medical benefits related to her accepted
bilateral cubital tunnel syndrome and bilateral de Quervain’s tenosynovitis.
On appeal counsel also argues that the provision of June 2013 video surveillance to
Dr. Rudd tainted his opinion on continuing employment-related residuals and disability. OWCP
procedures provide that, once a surveillance video is provided to OWCP with a request that it be
used in the management of the case, it becomes part of the official case record and a copy will be
released to the claimant, if he or she requests it, just like any other portion of the case record. Its
procedures make reference to J.M.,22 a case in which the Board held that, if the claimant requests
a copy of surveillance video, one should be made available and the claimant given a reasonable
opportunity to comment regarding the accuracy of the recording. 23 The Board notes that, in the
present case, appellant was provided an opportunity to view the June 2013 surveillance video and
comment on it prior to the May 22, 2017 referral examination of Dr. Rudd. Counsel did, in fact,
request a copy of the June 2013 surveillance video on behalf of appellant and, in January 2014,
counsel received a copy for inspection.

20

The Board notes that OWCP has not accepted appellant’s claim for fibromyalgia or a chronic pain condition, and
the case record does not contain a rationalized medical opinion establishing the existence of such an employmentrelated condition. Although Dr. Rudd indicated that “work will be problematic” with appellant’s widespread pain
complaints related to fibromyalgia, he emphasized that these complaints were entirely subjective in nature.
21

See Melvina Jackson, supra note 18. In addition, in a June 8, 2017 Form OWCP-5c, Dr. Rudd provided an
opinion that appellant could perform her usual job without restrictions.
22

58 ECAB 478 (2007).

23
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.9g (September 2010). See also R.B., Docket No. 15-0420 (issued August 10, 2015) (citing the principle that,
upon request, a claimant should be provided a reasonable opportunity to respond to the accuracy of video surveillance
materials provided to a physician).

7

The Board further finds that OWCP has not met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective October 2, 2017, with respect to her
accepted single episode of major depression.
In his August 23, 2016 report, Dr. Hunt discussed appellant’s history of emotional
problems and reported the findings of his psychological evaluation. Under the Axis I category, he
diagnosed a single episode of major depressive disorder (moderate-to-severe, administrative ly
accepted), which had resolved with regard to the industrial injury; adjustment disorder with
depressed and anxious mood, unrelated, primarily related to occupational factors; pain disorder,
associated with psychological factors, unrelated; and rule out factitious disorder versus
malingering. Under the Axis II category, Dr. Rudd noted that he was deferring a diagnosis and
recommended that appellant undergo MMPI or Millon testing to address her underlying
psychological dysfunction. He indicated, “Clarification would be related, because it would help
clarify Axis I diagnoses.”24
In September 2016 OWCP determined that additional development of the medical
evidence was necessary with respect to appellant’s emotional condition. It requested that Dr. Hunt
proceed with the psychological testing he recommended in his August 23, 2016 report. OWCP
further requested that, after completion of the testing, he revisit his responses to the questions it
posed when it initially referred the case to him in July 2016.
However, Dr. Hunt did not provide a supplemental report per OWCP’s development letter
and there is no evidence in the case record that he conducted additional psychological testing. The
Board finds that the further development of the medical evidence commenced by OWCP was
necessary to clarify Dr. Hunt’s August 23, 2016 report, particularly given his own indication that
clarification was needed regarding appellant’s Axis I diagnoses. The Board has previously
indicated that OWCP shares responsibility in the development of the evidence. 25 Accordingly,
once OWCP undertakes to develop the medical evidence further, it has the responsibility to do so
in the proper manner. 26 Given the lack of completion of the above-described necessary
development, the Board finds that OWCP has not met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective October 2, 2017, with respect to her
accepted single episode of major depression.27

24

In his August 23, 2016 report, Dr. Hunt determined that appellant could return to her regular work from a
psychiatric standpoint and advised that any depression or psychiatric dysfunction she was experiencing was not due
to the accepted industrial injury. In a September 8, 2016 Form OWCP-5c, Dr. Hunt checked a box marked “Yes”
indicating that appellant could perform her usual job, and he added the notation, “Psychiatrically, related to the injury,
yes.”
25

See D.V., Docket No. 17-1590 (issued December 12, 2018); Russell F. Polhemus, 32 ECAB 1066 (1981).

26

See A.K., Docket No. 18-0462 (issued June 19, 2018); Robert F. Hart, 36 ECAB 186 (1984).

After OWCP’s October 2, 2017 determination, appellant submitted a medical report relating to her emotional
condition and, by decision dated May 23, 2018, OWCP found that she did not meet her burden of proof to receive
wage-loss compensation or medical benefits on or after October 2, 2017. Given the Board’s reversal of OWCP’s
termination action with respect to the accepted single episode of major depression, the second issue of the case is
moot.
27

8

CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s medical
benefits, effective October 2, 2017, with respect to her accepted bilateral cubital tunnel syndrome
and bilateral de Quervain’s tenosynovitis, but not with respect to her accepted bilateral carpal
tunnel syndrome and enthesopathy of the right wrist/carpus. The Board further finds that OWCP
has met its burden of proof to terminate appellant’s wage-loss compensation, effective the same
date, with respect to her accepted upper extremity injuries, but has not met its burden of proof to
terminate her wage-loss compensation and medical benefits with respect to her accepted single
episode of major depression.
ORDER
IT IS HEREBY ORDERED THAT the May 23, 2018 decision of the Office of Workers’
Compensation Programs is affirmed in part and reversed in part.
Issued: October 22, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
)
)
)
and
)
)
DEPARTMENT OF HOMELAND SECURITY,
)
U.S. CUSTOMS & BORDER PROTECTION,
)
Laredo, TX, Employer
)
___________________________________________ )
S.W., Appellant

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

Docket No. 14-585
Issued: June 23, 2014

Case Submitted on the Record

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

JURISDICTION
On January 23, 2014 appellant filed a timely appeal from a September 20, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) that denied his emotional
condition claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue on appeal is whether appellant met his burden of proof to establish that he
sustained an emotional condition in the performance of duty.
FACTUAL HISTORY
On June 11, 2013 appellant, then a 30-year-old border patrol agent, filed an occupational
disease claim alleging that he sustained an aggravation of his post-traumatic stress disorder
1

5 U.S.C. § 8101 et seq.

(PTSD) in the performance of his duties as a border patrol agent. He became aware of his illness
on April 17, 2012 and realized that it was caused or aggravated by his employment on
April 30, 2013.2 The employing establishment noted that appellant was working light duty or
administrative duty since July 25, 2012. It noted that he requested and was approved for a
nonper-diem detail to Sandusky Bay, Ohio starting September 9, 2012. The employing
establishment advised that appellant was temporarily assigned to that station and performing
administrative duties.
In letters dated June 20, 2013, OWCP requested additional factual and medical evidence
from appellant and the employing establishment. It asked that he describe in detail the workrelated conditions or incidents that he believed contributed to his condition. OWCP asked that
appellant provide relevant dates, locations, coworkers and duties related to his allegations. It
also requested witness statements from anyone who could verify his allegations.
OWCP received an April 18, 2012 disability certificate from an individual whose
signature is illegible advising that appellant could return to full duty on that date. It also received
treatment notes dated from November 15 to 29, 2012 from a Veterans Affairs Hospital related to
appellant’s treatment for panic attacks.
In a March 9, 2013 report, Dr. Craig Lemmen, a Board-certified psychiatrist and
neurologist, evaluated appellant in a fitness-for-duty examination and found that he was not fit
for duty. Appellant related that his veterans’ 30 percent disability rating for PTSD was increased
to 70 percent. Dr. Lemmen diagnosed PTSD and panic attacks. In an April 6, 2013 report,
Dr. Paul Prunier, a Board-certified psychiatrist and neurologist, evaluated appellant and
concurred with Dr. Lemmen. He advised that appellant was not fit for duty.
In a letter dated April 30, 2013, the employing establishment informed appellant
regarding his request for an extension to his Sandusky Bay, Ohio detail. Appellant’s position
required that he be available for duty on a regular full-time basis and able to perform the full
range of duties of the position. It referred to reports of Dr. Lemmen, who concluded that
appellant was psychiatrically unfit for duty and medically unable to perform the duties of a
border patrol agent. The employing establishment offered appellant the opportunity to apply for
a disability retirement with the Office of Personnel Management, update his skills and search for
a new job within his physical qualification requirements or resign from his position and apply for
disability within one year of the date of his resignation.
In a report dated May 15, 2013, Dr. Eric T. Ricchetti, a Board-certified orthopedic
surgeon, noted treating appellant for a right scapulothoracic bursectomy with lysis of adhesions
and excision of the superior medial angle of the scapula performed on April 5, 2013. He advised
that appellant could return to work with restrictions to include a one- or two-pound lifting
restriction and no repetitive overhead. Dr. Ricchetti noted that, three months after surgery,
appellant could lift up to 10 pounds and at six months postoperative, appellant should be released
from his restrictions.
2

Appellant also filed a traumatic injury claim, file number xxxxxx033, for an April 17, 2012 incident in which he
claimed that he got light-headed, had chest tightening and had difficulty breathing during weapons training. This
claim was doubled with the present claim.

2

In a June 25, 2013 statement, appellant identified that the employment conditions that
aggravated this PTSD included: shift muster meeting; postacademy training formations;
postacademy class leader position that he occupied for most of class 985’s postacademy training;
working at night alone against superior forces in numbers; working for numerous hours in
extreme heat; and speaking with upper management.
OWCP received a description about chest pain, a prescription history, part of an unsigned
PTSD evaluation, and a December 4, 2012 report from a social worker requesting a
compassionate transfer.
On July 2, 2013 OWCP received a statement from Don Dunahue, a veteran service
officer, who explained that appellant had several claims with the Veterans Administration which
resulted in his current disability. Mr. Dunahue noted that appellant was accepting a 100 percent
disability grant and his presence in Ohio was necessary due to the forthcoming medical
examinations.
In a February 4, 2013 report, Dr. Anne S. Davidson, a Board-certified psychiatrist, noted
that she was treating appellant for PTSD. She advised that his assignment in Laredo, TX, was
more difficult for him due to the confrontational nature of the work and risks involved as a
border patrol agent. Mr. Dunahue stated that his job placed him in positions which triggered his
PTSD. She noted that appellant believed another assignment of a different nature or light duty
would be desirable.
By decision dated September 20, 2013, OWCP denied appellant’s claim.3 It found that
the evidence failed to establish an emotional condition in the performance of duty. OWCP found
that appellant had not established any compensable factors of employment.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every illness that is somehow
related to an employee’s employment. There are situations where an injury or illness has some
connection with the employment but nevertheless does not come within the concept or coverage
of workers’ compensation. Where the disability results from an employee’s emotional reaction
to his or her regular or specifically assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.4 On the other hand the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.5
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition, for which he claims compensation was caused or
3

This decision superseded a September 11, 2013 decision.

4

5 U.S.C. §§ 8101-8193.

5

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 126 (1976).

3

adversely affected by employment factors.6 This burden includes the submission of a detailed
description of the employment factors or conditions, which he believes caused or adversely
affected the condition or conditions, for which compensation is claimed.7
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP as part of its
adjudicatory function, must make findings of fact regarding, which working conditions are
deemed compensable factors of employment and are to be considered by the physician when
providing an opinion on causal relationship and, which working conditions are not deemed
factors of employment and may not be considered.8 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of the
matter establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.9
ANALYSIS
Appellant alleged an emotional condition in the performance of his duties as a border
patrol agent. The Board must thus, initially review whether these alleged incidents and
conditions of employment are covered employment factors under the terms of FECA. Appellant
has attributed his emotional condition to the regular or specially assigned duties of his position as
a border patrol agent. Therefore, the Board must evaluate whether he has established a
compensable factor under Cutler.10
Appellant alleged that his PTSD was aggravated by his duties as a border patrol agent.
On June 20, 2013 OWCP requested that he provide specific details about the work factors that
contributed to his condition. Appellant submitted a general statement in which he identified:
shift muster meeting; postacademy training formations; a postacademy class leader position that
he occupied for most of class 985’s postacademy training; working at night alone against
superior forces in numbers; working for numerous hours in extreme heat; and speaking with
upper management. He did not offer any other details. Appellant did not describe any particular
incidents in detail or provide the specific dates of work or duties which he felt aggravated his
preexisting PTSD condition. The evidence of record does not establish that he sustained a
compensable factor under Cutler. Thus, appellant’s general allegations are insufficient to
establish any compensable work factors.

6

Pamela R. Rice, 38 ECAB 838, 841 (1987).

7

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

8

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

9

Id.

10

See supra note 4.

4

To establish entitlement to benefits, a claimant must establish a factual basis for the claim
by supporting his or her allegations with probative and reliable evidence.11 In this case,
appellant did not provide a detailed factual statement outlining specific work factors or incidents
at particular times and places. He did not provide any corroborating evidence, such as witness
statements, to support his claim. Without such evidence appellant failed to provide a factual
basis to support his emotional condition claim.12
As appellant has not established a compensable employment factor, it is not necessary to
address the medical evidence.13
On appeal, appellant argued that he had submitted the requisite evidence to describe his
performance duties that aggravated his condition. However, as noted above, the evidence
submitted was vague and nonspecific and therefore insufficient to meet his burden.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
sustained an emotional condition in the performance of duty.

11

See Frank A. McDowell, 44 ECAB 522 (1993); Ruthie M. Evans, 41 ECAB 416 (1990).

12

See B.H., Docket No. 12-1851 (issued February 20, 2013).

13

Garry M. Carlo, 47 ECAB 299 (1996). See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

5

ORDER
IT IS HEREBY ORDERED THAT the September 20, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 23, 2014
Washington, DC

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

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

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

6