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

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

Docket No. 19-0135
Issued: April 25, 2019

Case Submitted on the Record

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

JURISDICTION
On October 24, 2018 appellant, through counsel, filed a timely appeal from an August 13,
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
The Board notes that following the August 13, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “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 additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to the accepted June 8, 2017 employment incident.
FACTUAL HISTORY
On June 12, 2017 appellant, then a 50-year-old carrier technician, filed a traumatic injury
claim (Form CA-1) for a right shoulder injury that he attributed to a June 8, 2017 work-related
motor vehicle accident (MVA). He indicated that a tractor-trailer backed into his work van while
in the performance of duty. The employing establishment did not contest the June 8, 2017 incident
or whether appellant was in the performance of duty at the time of the MVA. It also completed an
authorization for examination and/or treatment (Form CA-16) following his reported June 8, 2017
MVA.
In a June 12, 2017 work activity status report, Dr. Christine E. Jones, whose specialty is
unknown, diagnosed cervicalgia, right shoulder pain, and low back pain. She stated that appellant
could return to work on June 12, 2017 with restrictions.
By development letter dated June 15, 2018, OWCP informed appellant that he had not
submitted sufficient evidence to establish his claim. It advised him of the type of factual and
medical evidence needed and provided a questionnaire for his completion. OWCP afforded him
30 days to submit additional evidence and respond to its inquiries.
OWCP subsequently received June 8, 2017 emergency department discharge instructions
for a diagnosis of lumbosacral strain. The instructions noted that appellant had been treated by
Matthew R. Peterson, a physician assistant.
In a report dated June 12, 2017, Dr. Jones examined appellant for complaints of a back
injury. She noted that he stated while his postal vehicle was still, an 18-wheeler truck backed into
his vehicle. Although he felt a little sore at the time, he was able to complete his regular route
driving and delivering mail. However, the next morning appellant experienced discomfort in his
lower back, right shoulder, and neck. He then went to the emergency department, where he was
evaluated and given medication. Appellant was off work for three days. On examination of
appellant’s lumbar spine, Dr. Jones noted tenderness to palpation. She assessed acute bilateral low
back pain without sciatica, right shoulder pain, and neck pain. Dr. Jones recommended physical
therapy and provided work restrictions of lifting up to 20 pounds frequently, bending occasionally,
changing positions periodically to relieve discomfort, and no reaching above the head with his
affected extremities.
On June 15, 2017 Denise Jordan, a family nurse practitioner, referred appellant for physical
therapy. In a June 29, 2017 work excuse note, she opined that he should remain off work until
reevaluated on July 28, 2017. OWCP also received a July 10, 2017 initial physical therapy
evaluation report from Jenna Mueth, a physical therapist.
By decision dated July 26, 2017, OWCP denied appellant’s claim, finding that he had not
submitted medical evidence containing a medical diagnosis in connection with the accepted
employment incident of June 8, 2017.

2

In a prescription dated July 27, 2017, Dr. Bassam Albarcha, a Board-certified internist,
noted that appellant had been injured in a motor vehicle incident, providing an ICD-10 diagnosis
code corresponding to an assessment of a person injured in an unspecified motor vehicle incident,
subsequent encounter. He prescribed appellant physical therapy two to three times per week for
six weeks.
Appellant resubmitted the physical therapy evaluation report dated July 10, 2017,
countersigned by Dr. Albarcha on July 31, 2017. The report noted that he had been diagnosed
with lumbar sprain at the emergency department and that he was in constant pain, which was only
relieved by pain medication. On examination, appellant was noted to have discomfort to the
paraspinal lumbar area, mild tightness bilaterally, and reduced range of motion. His plan of care
was a home exercise program of core and hip strengthening and stretching as tolerated to assist
with activities of daily living, and techniques that the physical therapy saw fit for pain relief.
By letter dated August 1, 2017 from a nurse practitioner, countersigned by Dr. Albarcha,
it was noted that appellant was involved in a motor vehicle incident in June 2017 and as a result,
suffered a back injury, back pain, neck injury, neck pain, muscle and shoulder pain, and a pinsand-needles sensation in the arms and hands. The letter stated that a reduced work duty was
required due to these assessments and that he would return to duty with limitations.
On August 7, 2017 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
Appellant submitted records of physical therapy from July 10 through August 1, 2017,
which were unsigned. He also submitted reports signed by a nurse practitioner dated from June 15
through August 29, 2017.
The hearing was held on January 16, 2018. During the hearing, appellant described the
circumstances of a motor vehicle incident on June 8, 2017, and noted that he went to the emergency
room on the date of the incident. The hearing representative noted that the record did not contain
reports from individuals that could be accepted as physicians rendering concrete diagnoses. He
kept the record open for 30 days for the submission of additional evidence.
By decision dated March 7, 2018, OWCP’s hearing representative affirmed the July 26,
2017 decision, finding that the medical evidence of record was insufficient to establish a diagnosed
condition causally related to the accepted June 8, 2017 employment incident.
On April 5, 2018 appellant, through counsel, requested reconsideration of the decision of
March 7, 2018 and submitted a March 2, 2018 letter from a nurse practitioner, which had been
countersigned by Dr. Albarcha. The letter stated that appellant was involved in a motor vehicle
incident in June 2017 while delivering mail in a postal truck. Appellant was treated in the
emergency room on the date of the incident. The letter noted that he sustained a neck injury,
shoulder injury, upper back injury, lower back injury, and a pins-and-needles sensation in the arms
and hands. Over the months following the incident, appellant experienced numerous episodes of
pain with activity, and he was later diagnosed with cervical spondylosis and cervical
spondylolisthesis. He received physical therapy and remained on reduced work duty.
By decision dated August 13, 2018, OWCP denied modification of its March 7, 2018
decision. It found that the March 2, 2018 note failed to provide a rationalized explanation of how
3

the cervical spondylosis and cervical spondylolisthesis resulted from the accepted June 8, 2017
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 timely filed within the applicable
time limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.8 Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.9 The second component is whether the employment incident caused a personal
injury.10 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.11
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.12 A physician’s opinion on whether there is causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.13 Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty, and must be supported by

4

Supra note 2.

5
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

10

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

11

Shirley A. Temple, 48 ECAB 404, 407 (1997).

12

T.H., supra note 8; Robert G. Morris, 48 ECAB 238 (1996).

13

M.V., Docket No. 18-0884 (issued December 28, 2018).

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medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted June 8, 2017 employment incident.
In support of his claim, appellant submitted numerous notes and reports that were authored
by a nurse practitioner and/or a physician assistant. Because these reports were not prepared by
or countersigned by a qualified physician as defined under FECA, the evidence will not suffice for
purposes of establishing entitlement to FECA benefits.15
Appellant submitted a physical therapy evaluation report dated July 10, 2017,
countersigned by Dr. Albarcha on July 31, 2017. The Board finds that, as Dr. Albarcha has
countersigned this report, it constitutes medical evidence.16 The report noted that appellant had
been diagnosed with lumbar sprain at the emergency department and that he was in constant pain.17
The Board has held that medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of no probative value.18 As such, this report, which did not contain
any opinion on the cause of appellant’s condition, is of no probative value on the issue of causal
relationship.19
On June 12, 2017 Dr. Jones assessed appellant with acute bilateral low back pain without
sciatica, right shoulder pain, and neck pain. In a prescription dated July 27, 2017, Dr. Albarcha
noted that appellant had been injured in a motor vehicle incident. By letter dated August 1, 2017
from a nurse practitioner, countersigned by Dr. Albarcha, it was noted that appellant had been
involved in a motor vehicle incident and suffered a back injury, back pain, neck injury, neck pain,
muscle and shoulder pain, and a pins-and-needles sensation in the arms and hands. The Board has
held that a medical report is of no probative value if it does not provide an opinion on causal
relationship.20 As such, these notes, letters, and reports are insufficient to establish the claim.
In a letter dated March 2, 2018 from a nurse practitioner, which was countersigned by
Dr. Albarcha, it was noted that appellant was involved in a motor vehicle incident in June 2017
while delivering mail in a postal truck. Appellant was treated in the emergency room on the date
of the incident. The letter noted that he sustained a neck injury, shoulder injury, upper back injury,
14

Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

15
See 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316,
320 n.11 (2006). A report from a physician assistant or certified nurse practitioner will be considered medical evidence
if countersigned by a qualified physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship,
Chapter 2.805.3a(1).
16

K.W., id.; David P. Sawchuk, id. Federal (FECA) Procedure Manual, id.

17

See T.G., Docket No. 13-0076 (issued March 22, 2013).

18

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

19

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

20

Id.

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lower back injury, and a pins-and-needles sensation in the arms and hands. Over the months
following the incident, appellant experienced numerous episodes of pain with activity, and he was
later diagnosed with cervical spondylosis and cervical spondylolisthesis. The letter of March 2,
2018 did not contain a clear rationale as to how his cervical conditions were related to the incident
of June 8, 2017; rather, the opinion was conclusory in nature.21 A mere conclusory opinion
provided by a physician without the necessary rationale explaining how and why the incident was
sufficient to result in the diagnosed medical condition is not sufficient to meet a claimant’s burden
of proof to establish a claim.22 As such, the letter dated March 2, 2018 is insufficient to establish
causal relationship between the incident of June 8, 2017 and appellant’s diagnosed cervical
conditions.
As the medical evidence of record does not contain a rationalized explanation sufficient to
establish causal relationship, the Board finds that appellant has not met his burden of proof.23
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 to establish an injury
causally related to the accepted June 8, 2017 employment incident.

21

See D.O., Docket No. 18-0086 (issued March 28, 2018).

22

J.D., Docket No. 14-2061 (issued February 27, 2015).

23

The Board notes that the employing establishment issued appellant a signed Form CA-16 authorizing treatment
for her June 12, 2016 right shoulder injury. The Board has held that where an employing establishment properly
executes a CA-16 form, which authorizes medical treatment as a result of an employee s claim for an employmentrelated injury, it creates a contractual obligation which does not involve the employee directly to pay the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. §§ 10.300, 10.304; R.W., Docket
No. 18-0894 (issued December 4, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the August 13, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 25, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York City, NY, Employer
__________________________________________

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

Docket No. 15-455
Issued: April 20, 2015

Case Submitted on the Record

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

JURISDICTION
On December 24, 2014 appellant filed a timely appeal from a June 30, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a traumatic injury in
the performance of duty on April 11, 2013.
FACTUAL HISTORY
On April 19, 2013 appellant, then a 52-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on April 11, 2013 she injured her right knee when she slipped
down the steps of a residence after making a delivery. A supervisor stated that appellant was not
1

5 U.S.C. § 8101 et seq.

injured in the performance of duty, as she had stated that she fell down on her way home several
weeks beforehand. She noted that her knowledge of the facts about this injury did not agree with
appellant’s statements, as the injury could have been caused by the earlier fall. The employing
establishment controverted continuation of pay.
By letter dated May 6, 2013, OWCP informed appellant of the evidence necessary to
establish her claim. It noted that she had not submitted any medical evidence in her case.
OWCP afforded appellant 30 days to submit additional evidence and to respond to its inquiries.
In a note dated April 15, 2013, Dr. David Pichkadze, a Board-certified internist, stated
that appellant presented with right knee pain and difficulty walking. He advised her to keep her
leg elevated and to work light duty. On the same date, Dr. Pichkadze wrote that appellant had a
right knee injury with difficulty ambulating, and that she was unable to perform her duties. In a
note dated April 17, 2013, he stated that appellant was still under his care for a knee injury, and
that her date of return to work was uncertain.
On April 23, 2013 Dr. David Inslicht, Board-certified in internal medicine and physical
medicine and rehabilitation, stated that appellant was tentatively diagnosed with sciatica
resulting from a work-related injury on April 11, 2013. He noted that appellant was unable to
return to work as a letter carrier at that time.
In a diagnostic report dated April 30, 2013, Dr. Inslicht examined the results of x-rays of
appellant’s right hip. He noted that appellant had a hip prosthesis, which appeared to be in
adequate alignment. Dr. Inslicht further noted no acute displaced fractures or malalignment, but
positive presence of degenerative changes of the right superior acetabulum and patchy sclerotic
changes of the inferior pubic ramus, which could be postsurgical in nature. In another diagnostic
report of the same date, he examined the results of an x-ray of appellant’s right knee.
Dr. Inslicht stated impressions of no acute fractures of malalignment and tricompartmental
osteoarthritic changes, most severe in the patellofemoral joint.
In a note dated May 2, 2013, Dr. Pichkadze stated that appellant fell and was unable to
walk. He noted that x-rays revealed tricompartmental osteoarthritis, and that she could perform
only limited duty on the job until further notice.
On May 15, 2013 Dr. Pichkadze noted that appellant slipped and fell on April 11, 2013,
which resulted in significant knee pain. He stated that appellant could return to work on May 21,
2013, with a work restriction of standing no more than four hours per day.
In an undated attending physician’s report, Dr. Pichkadze diagnosed appellant with a
traumatic injury to the right knee after a fall and osteoarthritis. He checked a box stating that he
did not believe the condition was caused or aggravated by an employment activity, but listed the
date of injury as April 11, 2013.
Appellant submitted
November 22, 2013.

physical

therapy

notes

dated

from

April 24

through

In a statement dated May 14, 2013, appellant explained that on April 11, 2013 she was
delivering mail to a residence when she slipped down three steps, hurting her knee. She stated
2

that she had reported her injury on April 11, 2013 to a supervisor and that she had not sustained
any other injuries from April 11 to 19, 2013. Appellant noted that she had fallen prior to the date
of injury, on or about March 19, 2013, but that this incident had resulted in no pain or reason to
seek medical attention.
By decision dated June 7, 2013, OWCP denied appellant’s claim for compensation. It
found that she had not submitted sufficient evidence to establish that her right knee condition
was caused or aggravated by an incident on April 11, 2013. OWCP accepted that appellant was
a federal civilian employee who filed a timely claim; that the incident occurred; that a medical
condition had been diagnosed; and that she was within the performance of duty.
By form letter received on April 3, 2014, appellant requested reconsideration of OWCP’s
June 7, 2013 decision.
In a report dated April 23, 2013, Dr. Inslicht stated that appellant fell on stairs while at
work on April 11, 2013. He assessed appellant with acute right hip pain; acute knee pain; and
right-sided sciatica. Dr. Inslicht noted that appellant refused to allow a measurement of her right
hip due to anticipated pain.
On June 18, 2013 Dr. Inslicht noted that appellant had a prior history of a total hip
replacement in 2008 and that she had significant osteoarthritis in her right knee. However, he
stated that before falling on April 11, 2013 appellant was in the habit of taking brisk walks over a
distance of two miles several times per week, and did not experience any pain in her right lower
extremity before the fall. Dr. Inslicht noted that, since the fall, she was limping and had
difficulty sleeping due to pain in her right thigh, knee, and calf. He stated, “Although the
osteoarthritis was most likely present prior to the work-related injury of April 11, 2013, it was
not causing any symptoms. In my medical opinion, it is the injury of April 11, 2013 which has
exacerbated [appellant’s] condition and is directly responsible for her pain and disability at this
time.” Dr. Inslicht submitted substantially the same report on July 30, 2013, adding that “A
[computerized tomography] CT scan of the right knee showed a tear of the medial meniscus.”
He submitted substantially the same report again on March 11, 2014, adding that “An [magnetic
resonance imaging] MRI [scan] of the right knee performed on November 7, 2013 demonstrated
a full-thickness radial tear of the medial meniscus, in addition to osteoarthritis.”
In a diagnostic report dated June 20, 2013, Dr. Pichkadze examined the results of a CT
scan of appellant’s right knee. He stated findings of tricompartmental osteoarthritis, most severe
in the patellofemoral ligament; and a radial tear at the free edge of the body of the medial
meniscus.
In a diagnostic report dated July 5, 2013, Dr. Michael Greene, a Board-certified
radiologist, examined the results of an x-ray of appellant’s lumbar spine. He stated impressions
of degenerative spondylosis and facet arthropathy in the lumbar spine, most prominently
inferiorly; and grade 1 spondylolisthesis of L5 on S1.
In a diagnostic report dated November 13, 2013, Dr. Pichkadze examined the results of
an MRI scan study of appellant’s right knee. He stated an impression of prominent
tricompartmental osteoarthritis throughout the right knee with little remaining cartilage; joint

3

effusion; a full-thickness radial tear at the posterior horn and root junction of the medial
meniscus; a grade 1 sprain of the medial collateral ligament; a previous injury to the proximal
origin of the posterior cruciate ligament near the femur; and a subcutaneous edema overlying the
anterior patellar tendon.
On March 26, 2014 Dr. Pichkadze stated that before falling on April 11, 2013 appellant
was able to walk about two miles a few times per week, and did not have pain in the right knee
and leg before the fall. He noted that, since she fell, she was limping and had difficulty walking
due to pain in her right knee. Dr. Pichkadze stated, “In my opinion, injury of April 11, 2013 is
directly responsible for [appellant’s] pain and disability.”
By decision dated June 30, 2014, OWCP reviewed the merits of appellant’s claim and
denied modification of its decision dated June 7, 2013. It found that Dr. Inslicht’s report of
July 30, 2013 was not sufficient to establish a causal relationship between appellant’s condition
and the incident of April 11, 2013 because it diagnosed her with a medial meniscus tear, but
failed to provide MRI scan findings to support this diagnosis. OWCP noted, “Meniscal tears are
generally diagnosed based on MRI scan findings but there is no indication that you underwent an
MRI scan.” OWCP further noted that the remainder of Dr. Inslicht’s reports did not address the
issue of causal relationship, and that the reports of physical therapists did not constitute probative
medical evidence.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 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.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.5
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.6 Second, the

2

Supra note 1.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364, 366 (2006).

4

S.P., 59 ECAB 184, 188 (2007); Joe D. Cameron, 41 ECAB 153, 157 (1989).

5

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 3.

6

D.B., 58 ECAB 464, 466 (2007); David Apgar, 57 ECAB 137, 140 (2005).

4

employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7
The claimant has the burden of establishing by the weight of reliable, probative, and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.8 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.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 a causal relationship between the employee’s diagnosed condition and
compensable employment factors.11 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.12
ANALYSIS
OWCP accepted the April 11, 2013 incident involving a slip on steps while delivering a
package. The Board finds, however, that the medical evidence submitted by appellant is
insufficient to establish that this incident caused a medical condition.
On June 18, 2013 Dr. Inslicht noted that appellant had a prior history of a total hip
replacement in 2008 and that she had significant osteoarthritis in her right knee. However, he
stated that before falling on April 11, 2013 appellant was in the habit of taking brisk walks over a
distance of two miles several times per week, and did not experience any pain in her right lower
extremity before the fall. Dr. Inslicht noted that, since the fall, she was limping and had
difficulty sleeping due to pain in her right thigh, knee, and calf. He stated, “Although the
osteoarthritis was most likely present prior to the work-related injury of April 11, 2013, it was
not causing any symptoms. In my medical opinion, it is the injury of April 11, 2013 which has
exacerbated [appellant’s] condition and is directly responsible for her pain and disability at this
7

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734, 737 (2008); Bonnie A. Contreras,
supra note 3.
8

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

9

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

10

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).
11

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

12

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

5

time.” Dr. Inslicht submitted substantially the same report on July 30, 2013, adding that “A CT
scan of the right knee showed a tear of the medial meniscus.” He submitted substantially the
same report again on March 11, 2014, adding that “An MRI [scan] of the right knee performed
on November 7, 2013 demonstrated a full-thickness radial tear of the medial meniscus, in
addition to osteoarthritis.”
The Board notes that OWCP incorrectly stated that there was no indication that appellant
underwent an MRI scan diagnosing her with a meniscal tear. In a diagnostic report dated
November 13, 2013, Dr. Pichkadze examined the results of an MRI scan study of appellant’s
right knee. He stated an impression of a full-thickness radial tear at the posterior horn and root
junction of the medial meniscus. As such, appellant’s meniscal tear was diagnosed by MRI scan.
However, Dr. Inslicht’s June 18 and July 30, 2013; and March 11, 2014 reports do not
contain a medically sound explanation of how the April 11, 2013 event caused or aggravated
appellant’s diagnosed conditions, nor do they contain a sufficient explanation of why he ruled
out the possibility of appellant’s preexisting conditions contributing to or causing her condition
without the intervention of a work-related event. Instead, his reports contain his opinion on
causal relationship without a well-rationalized explanation of how he arrived at that conclusion.
Medical evidence submitted to support a claim for compensation should reflect a correct history,
and the physician should offer a medically sound explanation of how the claimed work event
caused or aggravated the claimed condition.13 Lacking such an explanation, these reports are not
sufficient to establish a causal relationship between the event of April 11, 2013 and appellant’s
diagnosed conditions. As such, OWCP’s incorrect statement regarding her diagnosis of a
meniscal tear constituted harmless error, because the report of Dr. Inslicht was insufficient to
establish causal relationship regardless of how the meniscal tear was diagnosed.
Appellant submitted various diagnostic reports and notes from Drs. Inslicht and
Pichkadze which did not contain a clear statement of opinion as to the causation of her
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.14 Hence, these reports are not sufficient to establish appellant’s claim. Appellant
also submitted physical therapy notes dating from April 24 through November 22, 2013, none of
which were countersigned by a physician. Reports from physical therapists do not constitute
probative medical evidence.15 As such, these physical therapy notes do not establish appellant’s
claim for compensation.
As appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained an injury causally related to an April 11, 2013 employment incident,
she has not met her burden of proof to establish a claim.

13

D.D., Docket No. 13-1517 (issued April 14, 2014).

14

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

15

See Vickey C. Randall, 51 ECAB 357, 360 n.4 (2000).

6

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 traumatic
injury in the performance of duty on April 11, 2013.
ORDER
IT IS HEREBY ORDERED THAT the June 30, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 20, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.A., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Covington, KY, Employer
__________________________________________

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

Docket No. 17-0231
Issued: July 10, 2017

Case Submitted on the Record

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

JURISDICTION
On November 9, 2016 appellant, through counsel, filed a timely appeal from an
October 13, 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.

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

20 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish an employmentrelated injury in the performance of duty on November 2, 2015.
FACTUAL HISTORY
On November 4, 2015 appellant, then a 41-year-old information technology specialist,
filed a traumatic injury claim (Form CA-1) alleging that on November 2, 2015 at 4:20 p.m., he
sustained shattered bones in his left wrist, a fracture of the right fibula below the knee, and
possible damage of the lateral collateral ligament. He noted that he had gone into the office to
retrieve case work and to meet with a grievant and, on his return home to finish his day with
telework, his vehicle was struck by another vehicle while traveling through a green light. A
supervisor checked a box indicating that appellant was not injured in the performance of duty,
noting that he was traveling from one duty station to another. The supervisor requested further
development on the issue of performance of duty for this reason.
By letter dated November 17, 2015, OWCP requested that appellant submit additional
factual and medical evidence in support of his claim. It noted that the employing establishment
had indicated that he was not in the performance of duty at the time of the motor vehicle incident
because he was traveling from one duty station to another. OWCP requested that appellant
provide a detailed description of the incident, a report from law enforcement, any statements
from witnesses, and provide further information as to whether he was performing regularly
assigned duties at the time of the incident.
In a traffic collision report dated November 2, 2015, a law enforcement officer noted that
appellant’s vehicle had been struck by another vehicle that failed to stop at a red traffic signal at
an intersection onto Interstate 75.
In an e-mail dated December 3, 2015, a union officer noted that appellant was on a
motorcycle when he was struck. The union officer further noted that appellant had visited the
union office, worked on some cases, and then waited for an appointment with an employee. The
employee with an appointment did not show up, and appellant left at around 4:00 p.m. to return
home to continue work. The union officer noted that appellant was still in duty status when the
incident occurred, using “bank time.”
In an e-mail dated December 17, 2015, a manager at the employing establishment noted
that appellant was performing union duties on November 2, 2015 and had asked for “reasonable
travel time if possible for travel coverage” between the office and appellant’s home.
By decision dated December 21, 2015, OWCP denied appellant’s claim. It found that he
was not within the performance of duty at the time of the motor vehicle incident because he was
commuting between work and home at the time of the incident, despite the fact that he was in
duty status for that time period.
On January 12, 2016 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.

2

The hearing was held on August 30, 2016. At the hearing, counsel argued that the
incident of November 2, 2015 did not fall within the “coming and going” rule. He asserted that
appellant’s travel time was compensated and appellant regularly worked from home. Appellant
noted that if he were called into the office on a day he was regularly scheduled to telecommute,
he would be afforded travel time in order to have an in-person meeting. Counsel argued that
travel was an essential element of appellant’s job.
By decision dated October 13, 2016, the hearing representative affirmed OWCP’s
December 21, 2015 decision. The hearing representative found that because appellant was not
going to continue working in a representative capacity when he returned home, when he left the
union office to return home, it was an act of personal convenience undertaken for his personal
benefit rather than in fulfillment of his representative function.
LEGAL PRECEDENT
In providing for a compensation program for federal employees, Congress did not
contemplate an insurance program against any and every injury, illness, or mishap that might
befall an employee contemporaneous or coincidental with his or her employment. Liability does
not attach merely upon the existence of an employee-employer relation. Instead, Congress
provided for the payment of compensation for disability or death of an employee resulting from
personal injury sustained while in the performance of duty.3
The Board has interpreted the phrase while in the performance of duty to be the
equivalent of the commonly found requisite in workers’ compensation law of arising out of and
in the course of employment. In the course of employment deals with the work setting, the
locale and time of injury, whereas arising out of the employment encompasses not only the work
setting, but also a causal concept, the requirement being that an employment factor caused the
injury. In addressing this issue, the Board has held that in the compensation field, to occur in the
course of employment, in general, an injury must occur: (1) at a time when the employee may
reasonably be said to be engaged in his or her master’s business; (2) at a place where he or she
may reasonably be expected to be in connection with the employment; and (3) while he or she
was reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.4
The Board has recognized as a general rule that off-premises injuries sustained by
employees having fixed hours and place of work while going to or coming from work, are not
compensable.5 An exception to this rule applies where the employee uses the highway to do
something incident to his employment, with the knowledge and approval of the employer.6

3

See 5 U.S.C. § 8102(a).

4

Kathryn S. Graham Wilburn, 49 ECAB 458 (1998).

5

Phyllis A. Sjoberg, 57 ECAB 409 (2006).

6

Dennis L. Forsgren (Linda N. Forsgren) 53 ECAB 174, 180 (2001); Mary Margaret Grant, 48 ECAB 696,
703 (1997).

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In determining whether an injury occurs in a place where the employee may reasonably
be or constitutes a deviation from the course of employment, the Board will focus on the nature
of the activity in which the employee was engaged and whether it is reasonably incidental to the
employee’s work assignment or represented such a departure from the work assignment that the
employee becomes engaged in personal activities unrelated to his or her employment.7
With respect to whether injuries arising in the course of union activities are related to the
employment, the general rule is that union activities are personal, that attendance at a union
meeting, for example, is exclusively for the personal benefit of the employee and devoid of any
mutual employer-employee benefit.8 Under the procedure manual, OWCP has recognized that
certain representational functions performed by employee representatives benefit both the
employee and the employing establishment.9 With regard to representational functions and when
a person is considered to be on official time, OWCP’s procedure manual provides:
“When an employee claims to have been injured while performing
representational functions, an inquiry should be made to the official superior to
determine whether the employee had been granted official time or in emergency
cases, would have been granted official time if there had been time to request it.
If so, the claimant should be considered to have been in the performance of
duty.”10
ANALYSIS
Appellant is an employee with fixed hours and a telework arrangement with the
employing establishment. At the time of the motor vehicle incident, he was in transit returning
to his home after completing certain representational functions on the premises of the employing
establishment. As the incident occurred off-premises, it did not occur at a place appellant could
be reasonably expected to be in connection with his employment. However, counsel argued
before OWCP’s hearing representative that as travel was an essential element of appellant’s job,
this journey occurred within the performance of duty.
The Board finds that appellant was no longer engaging in a representational function at
the time of the incident. Appellant completed his representational function when he left the
premises of the employing establishment at 4:00 p.m. As such, the procedure manual’s guidance
regarding performance of duty during periods when an employee is engaging in a representative
function is inapposite to this case. Furthermore, appellant has claimed that he was on “official
time” during his journey from the office to home, and submitted a statement from a union
official and an e-mail requesting such time from a supervisor. However, he did not submit a
leave analysis that demonstrates he was actually afforded any “official time” for the period of the
7

Supra note 5.

8

Kelly Y. Simpson, 57 ECAB 197 (2005).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.16 (July 1997); see
K.L., Docket No. 06-2154 (issued February 8, 2007).
10

Id.

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journey. As such, there is no evidence of record actually proving the assertion appellant was on
“official time” at the time of the motor vehicle incident.
In M.T., Docket No. 16-0927 (issued February 13, 2017), appellant filed a claim for neck,
shoulder, and right leg injuries as a result of falling on a stairway while relocating his telework
items from his home to a commissary at the employing establishment. A supervisor stated that
he had not approved this task, and that appellant did not have permission to travel back and forth
between his home and his duty station during the workday without prior approval. The Board
found that because appellant was not performing official duties, he was not within the
performance of duty at the time of injury. In this case, as in M.T., appellant was not performing
official or representational duties at the time of the incident. Furthermore, he has not provided
evidence that he was afforded “official time” for the duration of the journey. Therefore,
appellant’s journey home must be considered a personal activity unrelated to his employment.
He was not in a place he could reasonably be expected to be in furtherance of the employing
establishment’s interests. Appellant has not established that he was performing a task incidental
to the employing establishment’s interests, or that he was performing a task pursuant to his
representational status. The Board further notes that a telecommuting work arrangement does
not, by itself, render travel between the site of telecommute and the premises of the employing
establishment within the performance of duty.11
The Board therefore finds that appellant did not establish an employment-related injury in
the performance of duty on November 2, 2015.
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 failed to establish an employment-related injury in the
performance of duty on November 2, 2015.

11

See Mona M. Tates, 55 ECAB 128 (2003); John B. Shutack, 54 ECAB 336 (2003); Julietta M. Reynolds, 50
ECAB 529 (1999).

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ORDER
IT IS HEREBY ORDERED THAT the October 13, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 10, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lacey, WA, Employer
__________________________________________

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

Docket No. 19-1233
Issued: November 19, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 14, 2019 appellant filed a timely appeal from an April 10, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a left hand injury
in the performance of duty, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the April 10, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “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.

FACTUAL HISTORY
On February 28, 2019 appellant, then a 35-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) for a left hand injury she allegedly sustained while in the performance
of duty. She did not identify a specific date of injury or cause of injury, but noted that her hand
became numb and stiff on the morning of February 19, 2019. Appellant described her injury as
left hand pain and swelling, and noted that she was unable to use that hand thereafter. On the
reverse side of the claim form, the employing establishment indicated that she stopped working on
February 23, 2019 and resumed work on March 1, 2019. Additionally, it controverted the claim
noting this was not a traumatic injury, and appellant had not worked there long enough to have
developed carpal tunnel syndrome.3 No additional factual or medical evidence accompanied her
Form CA-1.
In a March 8, 2019 development letter, OWCP requested that appellant submit additional
evidence in support of her claim. It noted that the evidence provided was insufficient to establish
the incident alleged to have caused her injury. OWCP advised appellant of the type of factual and
medical evidence needed and provided a questionnaire for her completion, which it noted was
needed to substantiate the factual elements of her claim. The questionnaire inquired as to the
circumstances of appellant’s injury, whether she had sustained prior similar injuries, whether there
were witnesses who could confirm her injury, and whether she was alleging a traumatic injury or
an occupational disease. OWCP afforded appellant 30 days to submit the requested evidence.
On February 19, 2019 appellant was seen at an urgent care facility by Cynthia Mosebach,
an advanced registered nurse practitioner. Ms. Mosebach noted that appellant complained of
bilateral hand pain and stiffness for the past three days, and currently her left hand symptoms were
more severe than her right hand. Appellant’s reported symptoms included burning, numbness and
tingling in fingers up to the left elbow area. Ms. Mosebach also noted that appellant reported
having slipped and fell on ice Sunday, but did not believe the fall had anything to do with her
bilateral upper extremity complaints. She further noted that appellant worked as a mail carrier,
which duties included repetitive movements with her hand and wrist. Lastly, Ms. Mosebach noted
that her right hand pain and stiffness had mostly resolved. She examined appellant and obtained
an x-ray of her left upper extremity, which revealed no fracture/dislocations of the left hand, wrist
or elbow. Ms. Mosebach diagnosed left wrist carpal tunnel syndrome, provided a wrist splint, and
advised that appellant could return to work on February 20, 2019. February 23, 2019 progress
notes from Ms. Mosebach related that appellant presented with increased pain, swelling, and
popping in her left hand. She diagnosed possible left-sided carpal tunnel syndrome and advised
appellant to follow-up with her primary care physician.
February 25, 2019 progress notes by Dr. Nhu Hang, a family practitioner, indicated that
appellant presented with numbness, burning pain, and tingling in her left hand. He noted there
was no specific injury appellant could recall. Dr. Hang diagnosed left hand paresthesias and
restricted appellant to working no more than eight hours per day.
On February 28, 2019 the employing establishment offered appellant a limited-duty
assignment, which appellant accepted.
3

Personnel records indicated appellant’s entrance on duty (EOD) date was October 6, 2018.

2

In a March 11, 2019 attending physician’s report (Form CA-20), Dr. Hang indicated that
appellant denied a specific injury. He diagnosed left hand paresthesias and noted that appellant’s
condition was caused or aggravated by an employment activity because she used her hands
frequently at work. Dr. Hang also provided follow-up progress notes of the same date.
A March 15, 2019 medical report from Dr. Charles Bender, an orthopedic surgeon,
indicated that appellant presented with left hand pain and tingling and noted that no specific injury
precipitated her symptoms. He diagnosed left carpal tunnel syndrome that “may be aggravated by
her job as a letter carrier.”
By decision dated April 10, 2019, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish that appellant sustained an injury
in the performance of duty, as alleged, because no description of how appellant’s injury occurred
had been provided.
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 timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
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.8 Fact
of injury consists of two components that must be considered in conjunction with one another.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time and place, and in the manner alleged.9 Second, the employee
must submit sufficient evidence to establish that the employment incident caused a personal
injury.10

4

Supra note 1.

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

10

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

3

An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his subsequent course of action.11
The employee has not met his or her burden of proof of establishing the occurrence of an injury
when there are such inconsistencies in the evidence as to cast serious doubt upon the validity of
the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established. An employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left hand
injury in the performance of duty, as alleged.
Appellant has not established the factual component of her claim, as she has not sufficiently
explained how and when her alleged injury occurred. In her Form CA-1, she alleged that she
sustained a left hand injury in the performance of duty, which consisted of numbness, stiffness,
pain and swelling. However, appellant did not specify in the area provided a date of injury, or
otherwise indicate how her job duties either caused or contributed to her left hand complaints. On
the claim form she merely noted that her hand became numb and stiff on the morning of
February 19, 2019 and that she was unable to use her left hand thereafter. The employing
establishment controverted appellant’s claim, noting this was not a traumatic injury and she had
not worked there long enough to have developed carpal tunnel syndrome.
Appellant presented no evidence regarding the specific mechanism of injury, as required
in a claim for traumatic injury, nor did she allege that she experienced a specific event, incident,
or exposure at a definite time, place, and manner.13 As well, she did not describe the exact and
immediate consequences of the injury. Appellant’s vague recitation of the facts does not support
her allegation that a specific incident occurred which caused a work-related injury.14
In a March 8, 2019 development letter, OWCP requested that appellant submit clarifying
information describing how and when her claimed injury occurred and whether she was alleging
a traumatic injury or an occupational disease. It provided a factual development questionnaire for
her completion, which OWCP noted was needed to substantiate the factual elements of her claim.
However, appellant did not complete and return the questionnaire, and there is no statement in the
record describing a specific alleged employment-related incident and the time it occurred.15 As
11

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

12

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

13

See E.C., Docket No. 19-0943 (issued September 23, 2019).

14

Id.

15

See M.S., Docket No. 18-0059 (issued June 12, 2019).

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appellant did not timely respond to OWCP’s request for factual information, the Board finds that
the record lacks sufficient factual evidence to establish specific details of how the claimed injury
occurred.16
The Board further finds that because appellant failed to establish the first component of
fact of injury, it is unnecessary to discuss whether she submitted medical evidence sufficient to
establish that a medical condition existed and whether the condition was causally related to her
employment.17
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 left hand
injury in the performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the April 10, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 19, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

16

Id.

17

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Baton Rouge, LA,
Employer
__________________________________________

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

Docket No. 09-1943
Issued: June 24, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 27, 2009 appellant filed a timely appeal of a May 20, 2009 decision of the Office
of Workers’ Compensation Programs affirming the October 17, 2008 denial of her recurrence of
disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability beginning on June 6,
2008 causally related to her accepted employment injury.
FACTUAL HISTORY
On March 23, 2006 appellant, then a 37-year-old transportation security screener, filed a
traumatic injury claim alleging that on that date she sustained muscle strain in her upper back
after pulling luggage through an x-ray machine. She did not initially stop work, but she returned

to light duty on March 24, 2006. Initial medical reports indicated that cervical spine x-rays
revealed no fractures, subluxation, spondylosis or spondylolisthesis. Left shoulder x-rays
showed concentric reduction of the left glenohumeral joint with no bone lesions or fractures and
no obvious degenerative changes. The Office accepted appellant’s claim for cervical
sprain/strain and left shoulder and arm sprain/strain.
In reports dated May 24, 2006 to February 6, 2007, Dr. David Muldowny, a Boardcertified orthopedic surgeon, diagnosed subacromial bursitis and degenerative disc disease of the
cervical spine. He advised that appellant could work with restrictions.
The Office paid appellant intermittent wage-loss compensation between January 9 and
April 9, 2007 for attending medical appointments. Appellant stopped work on April 15, 2007.
She received disability compensation beginning April 15, 2007. Reports from Dr. Muldowny
dated between June 7 and November 13, 2007 advised that appellant was unable to return to
work. Reports dated December 3, 2007 and January 14, 2008 from Dr. Daniel Hodges, a Boardcertified physiatrist and associate of Dr. Muldowny, indicated that she was unable to work.
On January 10, 2008 the Office referred appellant with a statement of accepted facts to
Dr. Raymond Fletcher, a Board-certified orthopedic surgeon, for a second opinion. In a
February 12, 2008 report, Dr. Fletcher diagnosed permanent aggravated cervical spondylosis
with residual impairment resulting from appellant’s work injury. He opined that appellant was
able to work full-time light duty.
In reports dated January 27 and March 31, 2008, Dr. Hodges diagnosed neck and left
shoulder sprain, displacement of cervical intervertebral disc and left C6-7 radiculopathy. He
advised that appellant was unable to work for an undetermined period of time.
On March 12, 2008 the Office referred appellant to Dr. Gordon Nutik, a Board-certified
orthopedic surgeon, for a referee evaluation to resolve the conflict in medical opinion between
Drs. Fletcher and Hodges. In an April 2, 2008 report, Dr. Nutik opined that her condition was
consistent with chronic strain and underlying aggravated cervical degenerative disease. He noted
some evidence of exaggeration. Dr. Nutik advised that appellant’s low back condition was not a
work-related condition. He noted that residuals of her work injury did not cease and that she was
able to work full time with permanent restrictions. In a work capacity evaluation form dated
April 2, 2008, Dr. Nutik indicated that appellant could not perform her usual job but could work
eight hours per day with permanent restrictions including sitting up to six hours per day. He also
restricted standing, reaching and repetitive wrist and elbow movements up to two hours per day.
Dr. Nutik also noted that appellant had low back pain that was unrelated to the accepted
conditions.
On May 15, 2008 the employing establishment offered appellant a limited-duty position
as a ticket document checker1 based on Dr. Nutik’s work restrictions. Appellant accepted this
position and returned to work on June 2, 2008.
1

The job description for a ticket document checker indicates that appellant is “[r]esponsible for ensuring that no
individuals are able to circumvent the travel document checking area or enter the screening checkpoint without
having their travel documents and ID’s checked. Standing or sitting and minimal use of wrist.”

2

In a June 3, 2008 statement, appellant requested that the Office expand her claim to
accept her low back condition as a result of the March 23, 2006 work injury.
On June 12, 2008 appellant filed a recurrence of disability claim beginning June 6, 2008.
She stopped work on June 6, 2008 and did not return. Appellant’s claim form stated that the
recurrence was caused by repetitive motion to the neck and arm which triggered upper back
spasms and arm numbness. She also indicated that she had more pain in her upper back, elbow
and head after returning to work. Appellant also alleged that her duties were inconsistent with
her work restrictions, as she had to constantly lift her arm while standing and repeatedly looking
down for eight hours per day. The employing establishment advised that appellant’s limitedduty consisted of sitting at a podium checking travel documents with an option of sitting or
standing. It noted that she viewed about 1,000 documents in an eight-hour shift, that documents
were placed on podium and that appellant’s duties involved slight arm movement to return
documents to passengers.
Appellant submitted a March 27, 2006 nurse’s note and a May 4, 2006 physical therapy
report. In a June 23, 2008 report, Dr. Hodges noted her complaint of continued neck and back
pain as well as pain of the left shoulder, arm, elbow, wrist and bilateral hip. He indicated that
appellant’s pain was aggravated by walking, bending, sitting, standing and lifting. Examination
revealed limited cervical range of motion, some tenderness in the trapezial levator groups
particularly into the rhomboid musculature, low back pain on hypertension and pain radiating
into the right lower extremity. Dr. Hodges diagnosed an on-the-job injury with multilevel
cervical changes, left medial nerve entrapment neuropathy and induced progressive mechanical
low back pain. He advised that appellant remain off work. In reports dated August 6, 2008,
Dr. Hodges noted diminished lumbar range of motion and the need to rule out occult right knee
pathology. He also reiterated that appellant was unable to work.
On September 4, 2008 the Office advised appellant of the factual and medical evidence
necessary to establish his recurrence claim and allowed her 30 days to submit such evidence.
In a September 10, 2008 report, Dr. Hodges reiterated his diagnosis of an on-the-job
injury with multilevel cervical changes, progressive mechanical low back pain, persistent right
knee pain and possible meniscal tear. Appellant also submitted physical therapy documents.
In an October 17, 2008 decision, the Office denied appellant’s recurrence of disability
claim finding the evidence insufficient to establish that her current medical condition and
disability were due to the accepted work injury. It also noted that she was still entitled to
medical treatment.
In an undated statement, appellant asserted that she had been denied medical treatment as
the Office had not accepted that her lower back condition was caused by the accepted traumatic
injury. She also submitted statements that predated the claimed recurrence of disability.
On October 26, 2008 appellant, through her representative, requested a telephone hearing
which was held on February 24, 2009. In a December 11, 2008 letter to her representative, she
asserted that her low back condition related to her March 23, 2006 work injury and should be an
accepted condition. In a September 10, 2008 work status report, Dr. Hodges advised that

3

appellant was unable to work pending treatment. In reports dated December 10, 2008 and
March 18, 2009, he diagnosed on-the-job injury with multiple cervical and progressive back
complaints, persistent right knee pain and possible meniscal tear and left median nerve
entrapment neuropathy. In a March 18, 2009 status report, Dr. Hodges noted that appellant had a
work injury, indicated that her condition had not changed and advised that she was unable to
work.
On January 27, 2009 Dr. F. Allen Johnston, a Board-certified orthopedic surgeon, noted
that appellant sustained a work-related injury on March 23, 2006. He advised that she
complained of low back and right thigh symptoms. Dr. Johnston indicated that appellant injured
her low back in an initial work injury but that her upper back and neck area were more
symptomatic early on with more low back problems presently. He also indicated that her
symptoms worsened with walking, bending and lifting. Examination revealed fairly good range
of motion and minimal left-sided paraspinous muscles and buttock tenderness. Dr. Johnston
noted that x-rays of the lumbar spine revealed facet arthropathy mostly at L4-5 and L5-S1 and
disc space narrowing at L5-S1. X-rays of the right hip revealed some mild spurring off the
acetabular lips and x-rays of the knee were unremarkable. Pelvic x-rays were unremarkable
other than small osteophytes on right acetabular lips. Dr. Johnston found chronic low back pain
with right trochanteric bursitis, L4-5 annular tear with mild to moderate hypertonic facet joint
arthropathy and bilateral L4-5 foraminal narrowing more on the left with L5-S1 disc protrusion
with substantial dehydration and disc space narrowing.
In a March 27, 2009 letter, appellant asserted that the Office did not properly handle her
claim and ignored her back condition which should be accepted. She also indicated that she
received improper medical treatment.
In an April 6, 2009 statement, the employing establishment indicated that appellant was
given a limited-duty assignment based on her work restrictions that should not have exacerbated
her accepted conditions. The employing establishment disputed her assertion that she was
required to perform repetitive movements all day, constantly standing for eight hours per day
while repeatedly looking down and lifting her arm to check documents. Instead, it noted that
appellant could either sit or stand during her shift and that she only had one peak time lasting one
hour and a half with the remainder of her eight-hour shift consisting of a small and intermittent
flow of passengers. The employing establishment also noted that she was allowed a 30-minute
lunch break and a 15-minute break every 2 hours with the option of additional breaks if needed.
On April 28, 2009 Dr. Muldowny diagnosed cervical spondylosis and herniated disc of
the cervical spine.
In a May 20, 2009 decision, an Office hearing representative affirmed the October 17,
2008 decision finding that appellant failed to establish a recurrence of disability as the medical
evidence only supported that she suffered from residuals of unrelated and unaccepted conditions.
She also advised that the medical evidence did not support that appellant’s lumbar complaints
were due to the March 23, 2006 work injury.

4

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 has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”2
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that she can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that she cannot perform such light duty. As part of this burden the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty job requirements.3 To establish a change in the nature and extent of
the injury-related condition, there must be probative medical evidence of record. The evidence
must include a medical opinion, based on a complete and accurate factual and medical history
and supported by sound medical reasoning, that the disabling condition is causally related to
employment factors.4
ANALYSIS
Appellant returned to work in a limited-duty assignment as a ticket document checker on
June 2, 2008. She claims a recurrence of disability beginning June 6, 2008 due to her March 23,
2006 employment injury. Appellant therefore has the burden of proof to show a change in the
nature and extent of her injury-related condition or a change in the nature and extent of her
limited-duty job requirements.
In his January 27, 2009 report, Dr. Johnston stated that appellant injured her low back in
a work injury where her upper back and neck were more symptomatic early on. He diagnosed
chronic low back pain with right trochanteric bursitis, L4-5 annular tear with mild to moderate
hypertonic facet joint arthropathy and bilateral L4-5 foraminal narrowing more on the left with
L5-S1 disc protrusion with substantial dehydration and disc space narrowing. However,
Dr. Johnston does not clearly indicate that appellant is disabled from working her modified
position nor did he otherwise address why disability beginning June 6, 2008 was due to a
spontaneous change in a medical condition that resulted from her prior work injury without an
intervening injury or new exposure to the work environment that caused the illness.5 Moreover,
he does not indicate an accurate understanding of her original March 23, 2006 injury as did not
note a familiarity with how the original injury occurred or that her low back condition is not an

2

R.S., 58 ECAB 362 (2007); see 20 C.F.R. § 10.5 (x).

3

K.S., 60 ECAB ___ (Docket No. 08-2105, issued February 11, 2009).

4

K.C., 60 ECAB ___ (Docket No. 08-2222, issued July 23, 2009).

5

See R.S., supra note 2 (where establishing a recurrence of disability claim requires an inability to work due to a
spontaneous change in a medical condition which has resulted from a previous injury).

5

accepted condition in the present claim.6 Likewise, Dr. Johnston did not provide any medical
rationale to explain the reasons why any low back condition, which was not diagnosed
contemporaneously with the March 23, 2006 work injury, would be due to the work injury.7
Dr. Hodges’ reports dated June 23 and August 6, 2008 advised that appellant was
disabled from work after diagnosing an “on[-]the[-]job injury” with multilevel cervical changes,
left medial nerve entrapment neuropathy, induced progressive low back pain and diminished
lumbar range of motion. However, neither of these reports provided medical reasoning to
support that her back condition was a spontaneous change in a medical condition related to the
accepted neck, left shoulder and left arm conditions. Dr. Hodges also failed to provide any
evidence of bridging symptoms.8 He provided other reports, as noted, that also noted that
appellant had an “on[-]the[-]job injury” but he did not relate that disability beginning June 6,
2008 was due to a spontaneous change attributable to the March 23, 2006 work injury.
Dr. Hodges also did not provide any medical rationale to explain the reasons why any low back
condition would have been due to the March 23, 2006 work injury.
Dr. Muldowny’s April 28, 2009 report merely diagnosed cervical spondylosis and
herniated disc of the cervical spine. He did not indicate that appellant was disabled from work
due to this condition and he did not address whether this condition was caused or aggravated by
the accepted work injury. As noted, medical evidence without an opinion on causal relationship
is of little probative value. Other medical reports submitted by appellant do not support that
disability beginning June 6, 2008 was due to the March 23, 2006 work injury
Appellant also submitted reports from a nurse and physical therapy. However, neither
are considered a physician under the Federal Employees’ Compensation Act and therefore
neither are competent to provide a medical opinion.9
Consequently, the medical evidence is insufficient to establish that appellant sustained
recurrence of disability on June 6, 2008 due to her March 23, 2006 work injury.
Appellant may also establish a recurrence of disability by showing a disabling change in
the nature and extent of her limited-duty job requirements. On June 22, 2008 she accepted a
limited-duty assignment as a ticket document checker based on her current medical limitations.
Appellant argues that this job aggravated her neck condition, as it required her to constantly
6

See M.W., 57 ECAB 710 (2006) (medical conclusions based on an inaccurate or incomplete factual history are
of diminished probative value).
7

Where a claimant claims that a condition not accepted or approved by the Office was due to an employment
injury, the claimant bears the burden of proof to establish that the condition is causally related to the employment
injury through the submission of rationalized medical evidence. T.M., 60 ECAB ___ (Docket No. 08-975, issued
February 6, 2009).
8

See Mary A. Ceglia, 55 ECAB 626 (2004) (to establish that the claimed recurrence of the condition was caused
by the accepted injury, medical evidence of bridging symptoms between appellant’s present condition and the
accepted injury must support the physician’s conclusion of a causal relationship).
9

See 5 U.S.C. §8101(2) (defining the term “physician”); see also Charley V.B. Harley, 2 ECAB 208 (1949) (the
Board held that medical opinion, in general, can only be given by a qualified physician).

6

stand and look down to check passenger documents. She also argues that this position required
constant repetitive arm lifting for eight hours per day. However, the evidence does not support
appellant’s account of the requirements for her limited-duty assignment. For example, on the
recurrence claim, the employing establishment advised that her job was flexible and required
only minimal arm movement. After the hearing, the employing establishment provided a
detailed description of appellant’s duties explaining that the position did not require constant
repetitive movements for eight hours per day as the peak time for checking documents only
lasted one and a half hours and that this duration of time fell within Dr. Nutick’s restrictions for
sitting, standing and repetitive movement. Also, as the remaining six and a half hours of her
shift had a light and intermittent flow of passengers, she was not constantly looking down and
repeatedly lifting her arm to check documents. Moreover, the nature of appellant’s job gave her
the option to sit or stand during her shift. She could also alternate use of her left and right arm so
that neither required repetitive movement. Additionally, the employing establishment indicated
that appellant was allowed breaks every two hours and could have additional breaks as needed.
Appellant also did not submit any evidence to support her assertions regarding the movement
required by the light-duty job. As a result, the factual evidence does not establish a disabling
change in the nature and extent of appellant’s limited-duty job requirements.
For these reasons, appellant has not met her burden of proof to establish that she
sustained a recurrence of disability on June 6, 2008 due to a disabling change in the nature and
extent of her injury-related condition or a disabling change in the nature and extent of her
limited-duty job requirements.
CONCLUSION
The Board finds that appellant has not sustained a recurrence of disability beginning on
June 6, 2008 causally related to her accepted employment injury.10

10

The Board notes that appellant submitted new evidence after the Office issued its decision. However, the
Board may only review evidence that was in the record at the time the Office issued its final decision. See 20 C.F.R.
§ 501.2(c).

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated May 20, 2009 and October 17, 2008 are affirmed.
Issued: June 24, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
AGENCY, Albany, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-983
Issued: August 4, 2009

Case Submitted on the Record

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

JURISDICTION
On February 19, 2008 appellant, through counsel, filed a timely appeal from the
January 18, 2008 decision of an Office of Workers’ Compensation Programs’ hearing
representative who affirmed an April 30, 2007 wage-earning capacity decision. Pursuant to
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 the Office used the correct rate of pay for compensation
purposes in determining her loss of wage-earning capacity effective March 24, 2003; and
(2) whether the Office properly reduced appellant’s compensation benefits to zero on the
grounds that her actual earnings as a modified core-disaster operations and recovery specialist
fairly and reasonably represented her wage-earning capacity. On appeal, counsel contends that
her pay rate should be determined by comparing wage information for an employee working the
greatest number of hours in similar employment in all 10 nationwide regions of the employing
establishment.

FACTUAL HISTORY
This case has previously been before the Board. In an August 25, 2006 decision, the
Board found that the Office improperly calculated appellant’s pay rate and remanded the case for
further development.1 The facts of the case as set forth in the Board’s prior decision are
incorporated herein by reference.2
On remand, the Office conducted additional development to verify the rate of pay for a
similarly situated employee in a neighboring region. On March 1, 2007 Shirley Kuhn, a human
resources assistant at the employing establishment, advised that, at the time of injury, appellant
was a temporary, intermittent employee in Region 2, located in New York. Appellant’s gross
pay, without overtime, for the year prior to her February 2, 1998 injury was $23,161.00 for 935
hours worked. As her work schedule was other than full time, the employing establishment
provided the actual annual earnings for another employee with the same kind of appointment and
working in a job with similar duties. Ms. Kuhn noted that the earnings of the employee working
the greatest number of hours in similar work were those of a disaster employee in Region 2 who
earned $40,021.12 for 1,936.50 hours. She advised that her office also provided support for
Regions 6 through 10.
In an April 30, 2007 decision, the Office reduced appellant’s compensation to zero based
on her actual wages as a modified core-disaster operations and recovery specialist. It found that,
at the time of injury, she was employed as an on-call disaster assistance employee with a weekly
pay rate of $769.66. The current pay rate for the position held when injured was $1,141.45
effective March 24, 2003 and that appellant presently earned $1,271.60. As she had earned only
$22,141.07 or $425.79 a week, during the one year preceding her February 2, 1998 injury, it used
the average annual salary for a similarly situated employee of $40,022.10 or $769.66 per week.
On May 14, 2007 appellant’s counsel requested an oral hearing before an Office hearing
representative, which was held on October 30, 2007. At the hearing, appellant’s counsel noted
that the region appellant worked in at the time of her injury also provided support for Regions 6
to 10. Therefore, the Office should have considered the pay rate for a similarly situated
employee located in one of the 10 regions rather than the region she worked in or a neighboring
region.
Subsequent to her request for an oral hearing, appellant submitted factual evidence
including her July 13, 2007 information regarding the disaster assistance employee program and
copies of some of her pay stubs from 1997, 1998, 2005 and 2006. She contended that the Office

1

Docket No. 06-357 (issued August 25, 2006).

2

On February 2, 1998 appellant injured her neck, shoulder and chest in a motor vehicle accident. Her duty
station was listed in Albany, New York. A June 17, 1998 letter from the employing establishment advised that
appellant was located in Region 2. On April 27, 1999 the Office was informed that appellant was currently an
employee in Region 3. Appellant’s claim was accepted for cervical sprain and postconcussive syndrome. In a
November 9, 2001 decision, the Office determined that her actual earnings as a core-disaster operations and
recovery specialist represented her wage-earning capacity effective March 15, 1999. Appellant’s wage-loss benefits
were reduced to zero as her actual wages met or exceeded the wages of her date-of-injury position.

2

should have computed her pay rate based upon an employee working the greatest number of
hours in all 10 regions of the employing establishment.
By decision dated January 18, 2008, the Office affirmed the Office’s March 30, 2007 loss
of wage-earning capacity decision. The hearing representative rejected appellant’s argument that
the Office should have calculated her pay rate information based upon the wages of a similarly
situated employee working the greatest number of hours among all 10 regions. She found that
the Office correctly calculated appellant’s pay rate using a similarly situated employee in
Region 2.
LEGAL PRECEDENT -- ISSUE 1
Sections 8114(d)(1) and (2) of the Federal Employees’ Compensation Act3 provide
methodology for computation of pay rate for compensation purposes, by determination of
average annual earnings at the time of injury. Sections 8114(d)(1) and (2) of the Act specify
methods of computation of pay for employees who worked in the employment for substantially
the whole year prior to the date of injury and for employees who did not work the majority of the
preceding year, but for whom the position would have afforded employment for substantially the
whole year if the employee had not been injured.
Section 8114(d)(3) provides:
“If either of the foregoing methods of the average annual earnings cannot be
applied reasonably and fairly, the average annual earnings are a sum that
reasonably represents the annual earning capacity of the injured employee in the
employment in which he was working at the time of injury having regard to the
previous earnings of the employee in federal employment and of other employees
of the United States in the same or most similar class working in the same or most
similar employment in the same or neighboring location, other previous
employment of the employee or other relevant factors. However, the average
annual earnings may not be less than 150 times the average daily wage the
employee earned in the employment during the days employed within one year
immediately preceding his injury.”
For employees paid under section 8114(d)(3), the Office’s procedure manual provides
that the Office should determine earnings by taking the highest of: (1) the earnings of the
employee in the year prior to the injury; (2) the earnings of a similarly situated employee; or
(3) the pay rate determined by the 150 times formula. In considering the earnings of a similarly
situated employee, the procedure manual notes:
“The earnings of another [f]ederal employee working the greatest number of
hours during the year prior to the injury in the same or most similar class, in the
same or neighboring locality, as obtained from the employing agency or another
[f]ederal agency in the same or neighboring locality.

3

5 U.S.C. § 8114(d)(1) and (2).

3

“‘Same or similar class’ refers both to the kind of work performed and the kind of
appointment held....
“If the ‘same or most similar class’ contains more than one employee, the
employing agency should be asked to state the earnings of the employee who
worked the ‘greatest number of hours’ and therefore had the highest earnings.”4
ANALYSIS -- ISSUE 1
In the prior appeal, the Board noted that the Office properly applied section 8114(d)(3) to
determine appellant’s pay rate for her loss of wage-earning capacity given the inapplicability of
sections 8114(d)(1) and (2) of the Act. However, the Office did not adequately consider the
factors delineated under subsection (d)(3) with regard to the earnings of other federal employees
in the same or similar class working in the same or neighboring location working the greatest
number of hours.5
On remand, the Office obtained supplemental information from the employer regarding
an employee “in the same or neighboring location.” The evidence submitted showed that
$40,022.10 was the salary for the federal employee working the greatest number of hours in the
same or similar class as appellant. The employing establishment advised the Office that this
employee was a disaster employee who was based in Region 2. On appeal, counsel for appellant
contends that this was too small a sampling and that the case should be remanded to expand the
comparison of wage rate information to an employee with the greatest number of hours in all
10 regions of the employing establishment.
The procedure manual provides that in determining pay rate under section
8114(d)(3) comparison is made to that of a similarly situated employee in the same or
neighboring locale. Appellant at the time of her injury was based in Region 2. The information
provided by the employing establishment was for a disaster worker located in Region 2. Office
procedures provide that the earnings of a similar federal employee from the same or neighboring
locale may be used.6 The Board finds that it was appropriate for the Office to use the earnings
for the disaster worker with the greatest number of hours whose appointment was similar to that
of appellant working in Region 2, the region were she was employed at the time of injury. There
is no showing that the information provided by the employer as to the federal employee with a
similar appointment and working similar duties was inadequate for comparison purposes.7
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.4(c)(3)
(March 1996).
5

Dale Mackelprang, 57 ECAB 168 (2005); Aquilline Braselman, 49 ECAB 547 (1998).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.4(c)(3)
(March 1996). When collecting information about an employee’s prior federal and nonfederal employment wages
and the wages of other employees of the United States in the same or most similar class and working in the same or
most similar employment in the same or neighboring location, the wage information is generally collected for the
year prior to the employee’s employment injury. See Ricardo Hall, 49 ECAB 390, 394-95 (1998); Billy Douglas
McClellan, 46 ECAB 208, 212-13 (1994); Wendell Alan Jackson, 37 ECAB 118, 121-22 (1985).
7

See L.C., 60 ECAB ___ (Docket No. 08-224, issued December 23, 2008).

4

Considering the factors delineated in section 8114(d)(3), the Office properly found that the
amount of $40,022.10 being the highest, represented the average yearly earnings to be derived
from this portion of section 8114(d)(3).8
The Office complied with its procedure by comparing the amount for average annual
earnings to that which would be obtained from the formula delineated in the last sentence of
section 8114(d)(3). It determined that the figure derived from the formula delineated in the last
sentence of section 8114(d)(3) was greater and therefore was the appropriate figure for pay rate
for compensation purposes. The Office correctly applied the formula from the last sentence of
section 8114(d)(3) to find that appellant had a weekly pay rate of $793.49, a figure which was
derived by dividing the average salary of a similarly situated employee in 1999 of $40,022.10
“by the 1998 hourly rate of $24.22 times by the 1999 hourly rate of $24.97” and then divided by
52 weeks. The Board finds that the Office properly determined that appellant’s pay rate for
compensation purposes was $793.49 per week.
The terms of the Act are specific as to the method and amount of payment of
compensation; neither the Office nor the Board has the authority to enlarge the terms of the Act
nor to make an award of benefits under any terms other than those specified in the statute. The
applicable provisions of the Act specify that compensation for disability shall be computed on
the basis of the employee’s monthly pay as defined in the Act.9 For the reasons detailed above,
the Office used the correct pay rate to calculate appellant’s benefits.
LEGAL PRECEDENT -- ISSUE 2
Once the Office has made a determination that a claimant is totally disabled as a result of
an employment injury and pays compensation benefits, it has the burden of justifying a
subsequent reduction-in-benefits.10 Under section 8115(a) of the Act, wage-earning capacity is
determined by the actual wages received by an employee if such earnings fairly and reasonably
represent her wage-earning capacity.11 Generally, wages actually earned are the best measure of
a wage-earning capacity and, in the absence of evidence showing that they do not fairly and
reasonably represent the injured employee’s wage-earning capacity, will be accepted as such
measure.12
When an employee cannot return to the date-of-injury job because of disability due to
work-related injury or disease, but does return to alternative employment with an actual wage
loss, the Office must determine whether the earnings in the alternative employment fairly and
8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.3
(December 1995) for a discussion of different kinds of appointment and tour-of-duty classifications for nonpostal
workers. See also FECA Bulletin No. 04-05 (May 2004).
9

Gerald A. Karth, 48 ECAB 194, 197 (1996).

10

A.W., 59 ECAB ___(Docket No. 08-306, issued July 1, 2008).

11

M.A., 59 ECAB ___ (Docket No. 07-349, issued July 10, 2008); Sherman Preston, 56 ECAB 607 (2005). See
5 U.S.C. § 8115(a).
12

S.B., 59 ECAB ___ (Docket No. 07-346, issued April 23, 2008); Lottie M. Williams, 56 ECAB 302 (2005).

5

reasonably represent the employee’s wage-earning capacity.13 The procedure manual notes that
reemployment may not be suitable if the job is part time, seasonal or of a temporary nature.14
After the employee has worked for 60 days, the Office will determine whether her actual
earnings represent her wage-earning capacity. In so doing, it will apply the Shadrick formula in
determining the claimant’s monetary entitlement.15
ANALYSIS -- ISSUE 2
Appellant was employed as a disaster assistance employee at the time of her injury. The
Office reduced her compensation effective March 24, 2004 based on her actual earnings as a
modified core-disaster operations and recovery specialist. Appellant performed the position for
two months. There is no evidence of record that she required special assistance to perform the
tasks of the job as listed in the detailed position description provided.16 There is no evidence of
record, and appellant does not contend, that the duties listed on the position description were not
within her medical restrictions at the time the offer was made. The Board finds that her actual
earnings in the modified core-disaster operations and recovery specialist job properly represented
her wage-earning capacity. The Office’s reduction of appellant’s wage-loss compensation based
on her actual earnings was proper and supported by the evidence of record.
CONCLUSION
The Board finds that the Office correctly calculated appellant’s rate of pay in determining
her loss of wage-earning capacity. The Board further finds that her actual earnings as a modified
core-disaster operations and recovery specialist represent her wage-earning capacity.

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Capacity, Chapter 2.814.7(a) (May 1997).

Determining Wage-Earning

14

Id. See Connie L. Potratz-Watson, 56 ECAB 316 (2005).

15

Id. See Albert C. Shadrick, 5 ECAB 376 (1953). This has been codified by regulation at 20 C.F.R. § 10.403.

16

Selden H. Swartz, 55 ECAB 272 (2004). See also James D. Champlain, 44 ECAB 438 (1993), where the
Board noted that the record contained a position description which included the physical requirements of the
position, indicating that it was not a makeshift position.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 18, 2008 is affirmed.
Issued: August 4, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7