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

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0962
Issued: August 27, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 25, 2015 appellant, through counsel, filed a timely appeal from a January 20,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP made a proper determination that appellant did not have a
ratable permanent impairment of the left leg or the right leg as a result of his accepted accident of
March 10, 2010.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on March 10, 2010 appellant, then a 43-year-old correctional
officer, sustained bilateral ankle sprains when he was guiding a bus down a ramp at work.2 A
grate gave away causing him to turn his left ankle and hop on his right ankle.3
On September 17, 2010 appellant filed a claim for a schedule award due to his accepted
work injuries. He submitted a September 17, 2010 report of Dr. Arthur Becan, an attending
Board-certified orthopedic surgeon, who stated that appellant reached maximum medical
improvement on September 17, 2010, i.e., the date of his examination. Dr. Becan found that,
under the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009) (A.M.A., Guides), appellant sustained four percent
permanent impairment of his right leg due to a class 1 right ankle strain with mild motion deficit.
He also found that appellant sustained a four percent permanent impairment of his left leg due to
a class 1 left ankle strain with mild motion deficit. Dr. Becan also found two percent right leg
impairment and three percent left leg impairment due to his prior work-related knee injuries. He
calculated a combined six percent impairment for the right leg and a combined seven percent
impairment for the left leg.
On December 16, 2010 Dr. Henry Magliato, a Board-certified orthopedic surgeon serving
as an OWCP medical adviser, stated that appellant reached maximum medical improvement on
September 17, 2010, the date of Dr. Becan’s examination. He calculated that appellant sustained
a four percent permanent impairment of each leg due to bilateral ankle deficits. Dr. Magliato did
not include ratings for appellant’s accepted knee conditions.
On February 13, 2012 OWCP determined that a conflict in medical opinion evidence
existed between Dr. Becan and Dr. Magliato regarding the ratable diagnoses and extent of
permanent impairment. It referred appellant to Dr. George Glenn, Jr., a Board-certified
orthopedic surgeon, for an impartial medical examination and opinion on the extent of his leg
impairment. In a March 29, 2012 report, Dr. Glenn stated that appellant denied that he had any
residual complaints in his ankles. His examination of the ankles showed that they were
symmetrical without any evidence of swelling, discoloration, or mottling. The ranges of ankle
motion in dorsiflexion and plantarflexion were symmetrical and normal. Dr. Glenn did not,
however, provide any range of motion measurements for appellant’s ankles. He noted that
appellant did not have any palpable tenderness about either ankle. Dr. Glenn concluded that
there was no ratable permanent impairment for either the right or left ankle. He indicated that
appellant had some limitation of bilateral knee motion, but he did not provide specific knee
motion measurements. Dr. Glenn found no permanent left leg impairment due to a left knee
condition, but he found one percent right leg impairment related to a meniscus diagnosis. He
2

By decision dated May 20, 2010, OWCP accepted appellant’s claim for: “Sprain of ankle, other specified sites,
bilateral.”
3

Appellant sustained prior work-related injuries to his legs. On April 3, 1997 he sustained a work-related injury
to his right knee for which he received a schedule award for a four percent permanent impairment of his right leg.
On October 16, 2002 he sustained a work-related injury to his left knee for which he received a schedule award for a
two percent permanent impairment of his left leg.

2

derived this diagnosis-based rating from Table 16-3 of the sixth edition of the A.M.A., Guides.
In calculating this impairment rating, Dr. Glenn derived grade modifiers under the relevant tables
and applied the net adjustment formula.4
On June 24 and September 10, 2012 Dr. Andrew Merola, a Board-certified orthopedic
surgeon serving as an OWCP medical adviser, reviewed Dr. Glenn’s report and determined that
appellant sustained no ratable permanent impairment for either ankle. He did find that Dr. Glenn
substantiated one percent right leg permanent impairment due to a right knee condition.
Dr. Merola stated that appellant reached maximum medical improvement on March 29, 2012, the
date of Dr. Glenn’s examination.
By decision dated October 1, 2012, OWCP granted appellant a schedule award for one
percent permanent impairment of his right leg. The award ran for 2.88 weeks from March 29 to
April 18, 2012 and was based on Dr. Glenn’s permanent impairment rating as reviewed by
Dr. Merola. It does not appear that OWCP considered appellant’s prior schedule awards in
granting this schedule award compensation.
On October 31, 2013 and June 17, 2014 appellant’s counsel at the time requested a
formal decision regarding a schedule award for appellant’s leg impairment. By decision dated
June 20, 2014, OWCP denied any increase in schedule award payment for the left leg. Appellant
disagreed and, through counsel, requested a hearing with an OWCP hearing representative.
During the oral hearing held on November 19, 2014, appellant’s counsel at the time
argued that Dr. Glenn’s impairment rating did not constitute the weight of the medical evidence.
She stated that appellant told her that Dr. Glenn did not examine his ankles; and he did not tell
Dr. Glenn that his ankles were fine. Counsel argued that Dr. Glenn’s examination was
insufficient to represent the weight of medical opinion in this case, as Dr. Glenn did not provide
his range of motion measurements for the ankles, and compared two injured ankles to each other
for symmetry. She also argued that Dr. Glenn did not provide his measurements for range of
motion of appellant’s knees.
Subsequent to the hearing, the claimant provided a supplemental opinion from Dr. Becan
dated November 14, 2014. Dr. Becan explained that his 2010 examination was consistent with
prior findings. He stated that the left knee condition documented continued clinical findings, and
that magnetic resonance imaging (MRI) scan test showed multiple left knee objective findings.
Dr. Becan indicated that he completely disagreed with Dr. Glenn’s use of grade modifiers for the
right knee and provided his calculations instead. He again concluded that appellant sustained a
total right leg permanent impairment of six percent and total left leg permanent impairment of
seven percent, with four percent for each extremity represented by the work-related ankle
injuries.
In a January 20, 2015 decision, an OWCP hearing representative modified OWCP’s
June 20, 2014 decision to find that appellant did not have any permanent impairment of either
leg due to his ankle conditions. He noted that he was not considering appellant’s previously
accepted knee conditions in rendering this decision. The hearing representative found that the
4

See A.M.A., Guides 515-22 (6th ed. 2009).

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weight of the medical opinion evidence rested with the opinion of Dr. Glenn, but that he actually
served as an OWCP referral physician rather than an impartial medical specialist. He stated:
“In the instant case, first, I find that [OWCP] improperly determined that a
conflict in medical opinion existed between Dr. Becan and [OWCP medical
adviser] Dr. Magliato. Dr. Becan and Dr. Magliato agreed, at the time in 2010,
that the claimant sustained four percent bilateral lower extremity permanent
impairment due to the claimant’s ankle conditions. The only difference between
the two ratings is that Dr. Becan rated the claimant’s preexisting bilateral knee
conditions, and Dr. Magliato did not, nor was he asked to rate these conditions.
Therefore, there was no conflict in medical opinion when the referral was made to
Dr. Glenn for a referee examination. Dr. Glenn cannot be given special weight as
a referee physician, but must be considered a second opinion physician.
However, I find that, even though Dr. Glenn is not given special statutory weight,
his opinion carries the current weight of the medical opinion, on its own merits,
regarding the claimant’s permanent impairment causally related to the March 10,
2010 work injury.”
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 For OWCP decisions issued on or after
May 1, 2009, the sixth edition of the A.M.A., Guides (6th ed. 2009) is used for evaluating
permanent impairment.8
In determining impairment for the lower extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the lower
extremity to be rated. With respect to the ankles and knees, the relevant portions of the legs for
the present case, reference is made to Tables 16-2 (Foot and Ankle Regional Grid) and Table 16-3
(Knee Regional Grid), beginning on page 501.9 After the Class of Diagnosis (CDX) is
determined from each Regional Grid (including identification of a default grade value), the net
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

7

Id.

8

See FECA Bulletin No. 9-03 (issued March 15, 2009). For OWCP decisions issued before May 1, 2009, the
fifth edition of the A.M.A., Guides (5th ed. 2001) is used.
9

See A.M.A., Guides 501-11 (6th ed. 2009).

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adjustment formula is applied using the grade modifier for Functional History (GMFH), grade
modifier for Physical Examination (GMPE) and grade modifier for Clinical Studies (GMCS).
The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10 Under
Chapter 2.3, evaluators are directed to provide reasons for their impairment rating choices,
including choices of diagnoses from regional grids and calculations of modifier scores.11
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”12 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.13 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.14
In a situation where OWCP secures an opinion from an impartial medical examiner for
the purpose of resolving a conflict in the medical evidence and the opinion from such examiner
requires clarification or elaboration, OWCP has the responsibility to secure a supplemental
report from the examiner for the purpose of correcting the defect in the original opinion.15
OWCP procedures provide:
“Impairment ratings for schedule awards include those conditions accepted by the
OWCP as job related, and any preexisting permanent impairment of the same
member or function. If the work-related injury has affected any residual
usefulness in whole or in part, a schedule award may be appropriate. There are no
provisions for apportionment under FECA. Rated impairment should reflect the
total loss as evaluated for the schedule member at the time of the rating
exam[ination].”16

10

Id. at 515-22.

11

Id. at 23-28.

12

5 U.S.C. § 8123(a).

13

William C. Bush, 40 ECAB 1064, 1075 (1989).

14

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

15

Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(d) (February 2013).

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ANALYSIS
The Board finds that the case is not in posture for decision regarding the permanent
impairment of appellant’s legs because the opinion of the impartial medical specialist is in need
of clarification.
OWCP properly found that there was conflict in the medical opinion evidence regarding
the permanent impairment of appellant’s legs. In a September 17, 2010 report, Dr. Becan, an
attending Board-certified orthopedic surgeon, calculated six percent impairment for the right leg
and seven percent impairment for the left leg due to deficits caused by work-related ankle and
knee conditions. In contrast, Dr. Magliato, a Board-certified orthopedic surgeon serving as an
OWCP medical adviser, found on December 16, 2010 that appellant sustained a four percent
permanent impairment of each leg due to bilateral ankle deficits.17
OWCP properly referred appellant to Dr. Glenn, a Board-certified orthopedic surgeon,
for an impartial medical examination and opinion on the extent of his leg impairment.18 In his
March 29, 2012 report, Dr. Glenn concluded that there was no ratable permanent impairment for
either the right or left ankle. He found no permanent left leg impairment due to a left knee
condition, but he found a one percent right leg impairment related to a meniscus diagnosis.
Dr. Glenn indicated that the ranges of ankle motion in dorsiflexion and plantarflexion were
symmetrical and normal. He did not, however, provide any range of motion measurements for
appellant’s ankles. Dr. Glenn concluded that there was no ratable permanent impairment for
either the right or left ankle. He indicated that appellant had some limitation of bilateral knee
motion, but he did not provide specific knee motion measurements.
As Dr. Glenn incorporated his range of motion findings in determining appellant’s grade
modifiers for impairment rating purposes, his evaluation of appellant’s leg impairment would not
be complete without providing specific range of motion measurements for the ankles and
knees.19 Appellant sustained work-related ankle injuries on March 10, 2010, but it was also
accepted that he had prior work-related knee conditions. All work-related injuries (and
preexisting injuries) to a given leg are to be considered in evaluating leg impairment.20 The
record, as presently constituted, contains limited evidence regarding appellant’s prior work-

17

See supra notes 10 and 11. In his January 20, 2015 decision, the hearing representative asserted that there was
no conflict in the medical opinion evidence regarding appellant’s leg impairment and that, therefore, Dr. Glenn
served as an OWCP referral physician rather than an impartial medical specialist. However, the above-described
reports show that, contrary to the hearing representative’s decision, there was a conflict in the medical opinion
evidence regarding appellant’s leg impairment.
18

See supra note 13.

19

See A.M.A., Guides 515-22 (6th ed. 2009).

20

See supra note 15.

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related knee conditions and it remains unclear whether the possible contribution of these
conditions to appellant’s leg impairment has been adequately considered.21
For the above-described reasons, the opinion of Dr. Glenn is in need of clarification and
elaboration.22 Therefore, in order to resolve the continuing conflict in the medical opinion, the
case will be remanded to OWCP for referral of the case record, a statement of accepted facts,
and, if necessary, appellant, to Dr. Glenn for a supplemental report regarding the permanent
impairment of appellant’s legs. If Dr. Glenn is unable to clarify or elaborate on his original report
or if his supplemental report is also vague, speculative, or lacking in rationale, OWCP must submit
the case record and a detailed statement of accepted facts to a second impartial specialist for the
purpose of obtaining his rationalized medical opinion on the issue.23 After carrying out this
development, an appropriate decision should be issued regarding the permanent impairment of
appellant’s legs.
Appellant, through counsel, filed a brief with the Board. The brief argues first that
appellant is entitled to an award of four percent to each ankle because Dr. Becan and
Dr. Magliato agreed in that impairment. The brief also argues that the report of Dr. Glenn should
not be considered most probative. The Board’s opinion adequately addressed each contention.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether OWCP
made a proper determination regarding the extent of the permanent impairment of appellant’s
legs. The case is remanded to OWCP for further development.

21

S.B., Docket No. 11-403 (issued September 20, 2011). In his January 20, 2015 decision, OWCP’s hearing
representative indicated that he was not considering appellant’s previously accepted knee conditions in rendering his
decision. The Board notes, however, that a complete assessment of appellant’s leg impairment would include an
evaluation of any contribution of accepted or preexisting knee conditions to the leg impairment.
22

See supra note 14.

23

Harold Travis, 30 ECAB 1071, 1078 (1979).

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ORDER
IT IS HEREBY ORDERED THAT the January 20, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: August 27, 2015
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Edison, NJ, Employer
__________________________________________
Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-0341
Issued: June 15, 2021

Case Submitted on the Record

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

On December 2, 2019 appellant, through counsel, filed an appeal from a January 2, 2019
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards assigned Docket No. 20-0341.
The Board, having duly considered the matter, notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act
(FECA).2 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s
review authority is limited to appeals which are filed within 180 days from the date of issuance of
OWCP’s decision.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.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

3

Id. at § 501.3(e) (2009).

One hundred and eighty days following the January 2, 2019 decision was July 1, 2019. As
appellant did not file an appeal with the Board until December 2, 2019, more than 180 days after
the January 2, 2019 OWCP decision, the Board finds that the appeal docketed as No. 20-0341 is
untimely filed. On appeal, counsel asserts that he filed an appeal on behalf of appellant on
March 20, 2019. He submitted an appeal brief dated March 20, 2019 and a copy of a USPS
certified mail receipt. The Board finds, however, that appellant has not provided supporting
documentation sufficient to establish that he filed an appeal on March 20, 2019. The USPS mail
receipt does not contain a postmark date nor has he provided a return receipt acknowledging receipt
by the Board. As there is no evidence in the record to demonstrate that appellant filed an appeal
with the Board on March 20, 2019 the evidence of record establishes that he did not file an appeal
of the January 2, 2019 OWCP decision until December 2, 2019. The Board, therefore, is without
jurisdiction to review the appeal and the appeal docketed as No. 20-0341 must be dismissed.4
Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 20-0341 is dismissed.
Issued: June 15, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4
The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” Id. at
§ 501.6(d).

2


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

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1172
Issued: February 16, 2012

Case Submitted on the Record

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

JURISDICTION
On April 13, 2011 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) merit decision dated December 21, 2010. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability as of June 29 or
July 15, 2005 causally related to his accepted cervical and thoracic injuries.
FACTUAL HISTORY
This is the fourth appeal before the Board. Appellant, a 30-year-old letter carrier, injured
his neck and back on September 18, 2001 while trying to avoid an aggressive dog. OWCP
accepted his claim for neck sprain, thoracic sprain and degeneration of a cervical intervertebral
disc.
1

5 U.S.C. § 8101 et seq.

OWCP referred appellant for a second opinion examination by Dr. Anthony W. Salem,
Board-certified in orthopedic surgery. In a report dated March 19, 2002, Dr. Salem noted that
appellant had multiple levels of chronic, longstanding degenerative changes in his cervical,
thoracic and lumbar spine. He opined, however, that the changes were unrelated to the
September 18, 2001 work injury and that appellant’s subjective complaints far outweighed the
objective findings. Dr. Salem found that appellant’s diagnosed conditions were not related to
employment factors and that his injury-related disability should have lasted for a very short
period of time.
On April 10, 2002 appellant underwent an anterior cervical discectomy and cervical
fusion procedure at C6-7. The procedure was performed by Dr. Todd J. Albert, Board-certified
in orthopedic surgery and appellant’s treating physician.
In order to determine appellant’s current condition, OWCP referred appellant to
Dr. Donald F. Leatherwood, Board-certified in orthopedic surgery. In a January 28, 2003 report,
Dr. Leatherwood advised that appellant had originally injured his neck and right shoulder on
January 8, 1999 when he slipped and fell on a sidewalk while carrying about a heavy mailbag.
He noted that appellant underwent a prior acromioplasty procedure in 1999 which improved his
condition and significantly increased his range of motion. Dr. Leatherwood noted, however, that
the surgery did not entirely eliminate appellant’s symptoms. He stated that appellant had not
fully recovered as of September 18, 2001, when his work-related injury substantially increased
his neck and shoulder symptoms. Dr. Leatherwood noted that Dr. Albert’s April 2002 cervical
fusion procedure was successful and had relieved about 30 percent of appellant’s problem,
though he continued to experience neck pain. Based on appellant’s history, examination and
available data, he had achieved a good result from both the 1999 right shoulder acromioplasty
and his 2002 cervical fusion procedure. Dr. Leatherwood stated that both surgeries were work
related.
On February 17, 2004 Dr. Ashrawi Sharan, Board-certified in orthopedic surgery,
performed surgery on appellant to implant a spinal cord stimulator.
In a report dated March 25, 2004, Dr. Shailen Jalali, Board-certified in orthopedic
surgery, stated that appellant had responded well to the spinal cord stimulator. He noted that the
stimulator, which appellant used nearly 24 hours per day, had reduced pain by 50 percent.
Dr. Jalali advised that appellant continued to have some neck pain, which he rated as being a
5 on a scale of 1 to 10. He also noted that appellant continued to experience brachioplexopathy
with its associated and neuropathic and myofascial pain presentation.
In a June 1, 2004 report, Dr. Leatherwood noted that the spinal cord stimulator operation
was somewhat successful and had ameliorated the pain in appellant’s neck and back. He stated,
however, that the stimulator had not relieved the problem entirely. After reviewing the history,
examination, and the available data, appellant’s current status was post work-related injury.
Dr. Leatherwood stated that appellant had reached a state of maximum medical improvement in
regard to his overall condition.
Dr. Leatherwood recommended that appellant continue to use the spinal stimulator given
its effectiveness. He opined that he could perform full-time sedentary work and completed a
work capacity evaluation in which he outlined work restrictions of no climbing; no repetitive,
2

simple grasping, pushing/pulling or fine manipulation with the upper extremities; no lifting
exceeding 30 pounds; and occasional driving, bending at the waist, reaching above the shoulder,
kneeling, crawling for more than one-third of the workday.
On March 4, 2005 the employing establishment offered appellant a job as a modified
mail clerk, for eight hours per day, based on the restrictions outlined by Dr. Leatherwood.
By letter dated April 20, 2005, OWCP advised appellant that a suitable position was
available and that, pursuant to section 8106(c)(2), he had 30 days to either accept the job or
provide a reasonable, acceptable explanation for refusing the offer. It advised him that it would
be terminating his compensation based on his refusal to accept the position. OWCP stated that,
if appellant refused the job or failed to report to work within 30 days without reasonable cause, it
would terminate his compensation pursuant to 5 U.S.C. § 8106(c)(2).2
In a disability slip dated May 2, 2005, Dr. Sharan stated that appellant would be able to
return to full-time sedentary work as of May 23, 2005. In response to a March 31, 2005 OWCP
query, received by OWCP on May 6, 2005, Dr. Leatherwood advised that the employing
establishment’s modified job offer was within appellant’s work restrictions and that he was
capable of performing the duties of the position.
In an April 5, 2005 report, received by OWCP on May 6, 2005, Dr. Adam Sobel, Boardcertified in orthopedic surgeon, indicated that appellant would be undergoing surgery for spinal
cord stimulator revision on April 7, 2005. In a report dated April 15, 2005, received by OWCP
on May 12, 2005, Dr. Sharan advised that he had performed the remedial spinal cord stimulator
surgery on April 7, 2005.
By letter dated May 16, 2005, OWCP advised appellant that he had 15 days in which to
accept the position, or it would terminate his compensation.
On May 17, 2005 appellant rejected the job offer. He stated that his treating physician,
Dr. Jalali, wanted to ensure that his spinal stimulator was working properly in light of his recent
surgery. Appellant contended that the duties of the modified position were unclear and advised
that Dr. Jalali would be submitting a report addressing why he needed additional time before
returning to work.
By decision dated June 2, 2005, OWCP terminated appellant’s compensation benefits on
the grounds that he refused an offer of suitable work.

2

5 U.S.C. § 8106(c)(2).

3

By letter dated June 6, 2005, appellant requested an oral hearing. On June 25, 2005 he
returned to work at the modified clerk position, for eight hours per day.3
In a disability slip dated June 30, 2005, Dr. Jalali stated: “[Appellant] has restriction to
part-time four hours per day, sedentary job, 10[-]pound weight restriction.”
On July 5, 2005 the employing establishment advised that, pursuant to Dr. Jalali’s
June 30, 2005 note and in accordance with his restrictions, it was placing appellant on a fourhour-per-day work schedule, from 2:00 p.m. to 6:00 p.m., as of July 6, 2005.
On July 19, 2005 appellant filed a Form CA-2a claim for benefits, alleging that he
sustained a recurrence of disability on June 29, 2005 which was causally related to his accepted
cervical and thoracic conditions.4
On August 1, 2005 appellant filed a Form CA-2a claim for benefits, alleging that he
sustained a recurrence of disability on July 15, 2005 which was causally related to his accepted
cervical and thoracic conditions.5
By letter to appellant dated September 13, 2005, OWCP requested additional factual and
medical information in support of his recurrence of disability claim.
By decision dated November 2, 2005, an OWCP hearing representative set aside the
June 7, 2005 termination decision finding that OWCP prematurely invoked the penalty
provisions of section 8106. The hearing representative found that OWCP failed to give appellant
a reasonable opportunity after issuing its notice of April 20, 2005 to accept or refuse the job
offer.
By decision dated December 12, 2005, OWCP vacated the November 2, 2005 decision
and reinstated the June 2, 2005 termination decision. The director found that OWCP met its
statutory obligation on May 16, 2005 when it provided appellant with 15 days to accept the
offered position. The case would proceed to adjudication at an upcoming hearing, which was
held on December 20, 2005.

3

By letter dated July 25, 2005, the employing establishment stated that appellant initially returned to work on
June 25, 2005 for eight hours per day. It asserted that he expressed a great deal of resistance against returning to the
workplace and filed a Form CA-2a claim for recurrence of disability four days after his return. The employing
establishment stated that all of its supervisors were aware of appellant’s work restrictions and all of them adhered to
these restrictions.
4

On the form, appellant stated that the injury occurred when he reached up to grab some certified letters on a high
shelf. The employing establishment stated, however, that he acted of his own volition in reaching for the letters. It
stated that management was on notice to ensure that appellant would do no work which exceeded his work
restrictions and was therefore not responsible for his alleged injury on the date in question.
5

By letter dated August 18, 2005, the employing establishment stated that it had received a Form CA-2a from
appellant’s attorney for an injury that allegedly occurred on July 15, 2005. It noted that it had not received any
medical evidence to support any such alleged incident. The employing establishment further noted that, although
appellant’s attorney requested a full recurrence as of July 15, 2005, its records indicated that appellant worked until
July 27, 2005, when his treating physician placed him on disability.

4

By decision dated January 12, 2006, OWCP denied appellant’s recurrence of disability
claims, finding that he failed to submit sufficient medical evidence to establish that his disability
for work of June 29 or July 15, 2005 was caused or aggravated by the September 18, 2001
employment injury.
By letter dated January 20, 2006, appellant requested an oral hearing, which was held on
May 10, 2006.
By decision dated March 1, 2006, OWCP affirmed the June 2, 2005 termination decision.
By decision dated July 31, 2006, an OWCP hearing representative affirmed the
January 12, 2006 decision denying the recurrence of disability claims.
In an order dated June 14, 2007, the Board reversed the March 1, 2006 termination
decision.6 The Board found that OWCP’s May 16, 2005 letter giving appellant an additional 15
days to accept or reject the employing establishment’s job offer was issued only 26 days after
OWCP’s April 20, 2005 letter giving him 30 days to accept or reject the position; therefore, the
May 16, 2005 letter violated 20 C.F.R. § 10.516 of OWCP’s regulations.7
In a report dated February 9, 2007, received by OWCP on July 27, 2007, Dr. Kimmel, an
osteopath, recommended that appellant discontinue his work activities at the employing
establishment on July 27, 2005 due to complaints of severe pain in his neck, upper and lower
back pain, right shoulder and right hand. He stated:
“This recommendation occurred following [appellant] having reported severe pain
[due to his] return to work. In fact, he was already decreased to a four[-]hour
workday by his pain management physician, Dr. Jalali, after being placed in an
eight[-]hour workday which severely aggravated his preexisting musculoskeletal
problems. Appellant reported that even working the four[-]hour day, he
developed a severe, debilitating flare up. The examination on that day
demonstrated muscle spasm, tenderness, and restricted range of motions. At that
point, he restarted physical therapy and followed up with [Dr. Jalali and
Dr. Sharan].”
In a September 12, 2007 order,8 the Board set aside the January 12 and July 31, 2006
OWCP decisions denying the recurrence of disability claims. Due to the June 14, 2007 order
reversing OWCP’s March 1, 2006 termination decision, that decision no longer provided an
adequate basis for denying appellant’s claims of disability as of June 29 and July 27, 2005. On
remand OWCP was to consider all the medical evidence relevant to the recurrence claim.

6

Docket No. 06-1901 (issued June 14, 2007).

7

By letter dated June 26, 2007, OWCP advised appellant that, pursuant to the Board’s June 14, 2007 order, he
would be paid compensation for the period June 12 to June 24, 2005, based on his return to work at the employing
establishment as of June 25, 2005.
8

Docket No. 07-1052 (issued September 12, 2007).

5

By decision dated October 23, 2007, OWCP denied modification of its previous decisions
denying appellant’s recurrence of disability claims.
By letter dated October 26, 2007, appellant’s attorney requested an oral hearing, which
was held on February 26, 2008.
By decision dated May 15, 2008, OWCP set aside the October 23, 2007 decision to
determine whether the April 5, 2005 surgery was authorized.
By decision dated July 1, 2008, OWCP accepted the April 7, 2005 surgery as work
related. It denied appellant’s claims for a recurrence of disability, finding that he failed to submit
sufficient medical evidence to establish that his disability was caused or aggravated by the
September 18, 2001 employment injury.
By letter dated July 8, 2008, appellant’s attorney requested an oral hearing, which was
held on November 20, 2008.
In an April 18, 2008 report, received by OWCP on September 10, 2008, Dr. Jalali
summarized his treatment of appellant since before 2003, at which time he diagnosed brachial
plexopathy. He found that appellant was a candidate for spinal cord stimulation therapy due to
the chronic nature of his neck and thoracic conditions. Appellant was referred to Dr. Sharan for
permanent implantation of the spinal cord stimulator system, which he underwent on
February 17, 2004. Following this procedure, he experienced a 50 percent reduction in his pain,
which enabled him to discontinue treatment with prescription drugs. When Dr. Jalali examined
appellant in February 2005, he noted that the stimulator apparently was no longer working.
Appellant was scheduled for a spinal cord stimulator revision procedure on April 7, 2005.
During Dr. Jalali’s examination on May 5, 2005 appellant was not able to achieve his previous
level of pain relief. On May 20, 2005 appellant informed Dr. Jalali that he was being asked to
return to work; and the physician released appellant to return to work on light duty, which he
began on June 25, 2005.
Appellant related that, on June 29, 2005, while casing mail, he felt pain in his neck and
shoulder area. He was then asked by his employer to handle different types of mail, which
would require him to reach over his head. Appellant asserted that this activity caused him to
experience sharp pain in his right arm, back and neck. Due to this incident, his work hours were
reduced to four hours a day. From July 6, 2005 appellant worked light duty for four hours a day
until July 15, 2005, when he stepped off of a stool and felt pain through his entire thoracic
region, extending up into the back of his head. He went home that day but returned to work the
following day. Appellant continued to work light duty until July 27, 2005, at which time he
stopped work and his physician placed him on disability. Dr. Jalali stated that appellant had been
unable to return to work due to increased complaints of upper back and neck pain.
Dr. Jalali opined that the June 29 and July 15, 2005 incidents worsened appellant’s pain
condition. He advised that the activities appellant was performing at work placed his body in
positions which exacerbated his condition and worsened his pain symptoms. Dr. Jalali stated
that appellant’s subsequent period of disability was directly related to these two incidents. He
advised that appellant continued to experience brachial plexopathy with associated neuropathic
and myofascial pain symptoms, in addition to cervical facet disease, disc degeneration and spinal

6

stenosis in the cervical region. Dr. Jalali concluded that appellant was completely disabled, with
ongoing pain complaints, and would not be able to return to any type of gainful employment.
By decision dated February 17, 2009, an OWCP hearing representative affirmed the July 1,
2008 decision.
In an order dated April 28, 2010,9 the Board set aside OWCP’s July 1, 2008 and
February 17, 2009 decision. The Board noted that OWCP had stated that it had reviewed several
reports issued in May and June 2005 from Dr. Jalali, but the record did not include the reports.
The Board remanded for reconstruction of the record and a de novo decision.
In the May 5, 2005 report, Dr. Jalali stated that, despite the recent battery revision,
appellant continued to experience neck, upper back and shoulder pain rated as a 7 on a scale of 1
to 10. He still had symptoms of brachial plexopathy with significant myofascial pain and trigger
point sites. Dr. Jalali also stated that appellant’s spinal cord stimulator might require slight
reprogramming.
In the May 17, 2005 report, Dr. Jalali administered trigger point injections to appellant,
which seemed to ameliorate his condition. Appellant was scheduled for a spinal cord stimulator
reprogramming session with Dr. Sharan within a day or two, because it was not covering all
painful areas. Dr. Jalali advised that appellant experienced muscle spasms in his neck and
shoulder areas, primarily the latissimus dors trapezius and thoracic paravertebral muscles.
By decision dated July 21, 2010, OWCP denied modification of its previous decisions
denying appellant’s recurrence of disability claims.
By letter dated July 27, 2010, appellant’s attorney requested an oral hearing, which was
held on November 4, 2010. Counsel contended that, although Dr. Sharan released appellant to
return to work in May 2005, appellant in fact was not capable of performing full-time limitedduty work. Dr. Jalali stated on June 30, 2005 that appellant could only do sedentary work for
four hours a day, with no lifting exceeding 10 pounds. Counsel noted that appellant was
ultimately taken off work at the end of July due to his worsening condition, and noted that
Dr. Jalali stated in an April 18, 2008 report that appellant continued to experience difficulties
even after his final stimulator revision. Dr. Kimmel placed him on disability on July 27, 2007
due to the worsening of his condition.
By decision dated December 21, 2010, an OWCP hearing representative affirmed the
July 21, 2010 decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a

9

Docket No. 09-1300 (issued April 28, 2010).

7

previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.10
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position, or the medical evidence of record
establishes that he can perform the light-duty position, the employee has the burden of
establishing by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he cannot perform such light duty. As part of this burden, the employee
must show a change in the nature and extent of the employment-related condition or a change in
the nature and extent of the light-duty job requirements.11
ANALYSIS
The Board finds that appellant failed to submit sufficient medical opinion which relates
his condition or disability as of June 29 or July 15, 2005 to his accepted cervical and thoracic
conditions. For this reason, appellant has not discharged his burden of proof to establish his
claim that he sustained a recurrence of disability as a result of his accepted employment
conditions.
In an April 20, 2005 report, Dr. Sharan, who performed the April 7, 2005 procedure
implanting appellant’s spinal cord stimulator, stated that he was getting good relief. On May 2,
2005 he noted that the stimulator was working properly, that appellant was getting good relief, and
that he would be able to return to full-time sedentary work as of May 23, 2005. On appeal,
however, appellant’s attorney argues that Dr. Jalali’s May 2005 and April 18, 2008 reports
presented medical evidence sufficient to establish that appellant sustained a recurrence of
disability as of June 29 and July 15, 2005. Counsel notes that Dr. Jalali indicated in his April 18,
2008 report that the spinal cord stimulator did not work appropriately in May 2005. He asserts
that Dr. Jalali, in his May 5, 17 and 20, 2005 reports, stated that he would check with Dr. Sharan
to determine if reprogramming should be done, that he believed a reprogramming was required,
that an examination was scheduled on June 4, 2005 and that appellant should only return to work
when the stimulator was functioning properly. In Dr. Jalali’s May 20, 2005 report, he noted that
appellant would shortly be returning to work but cautioned that his return to work should be
delayed until the stimulator was optimally programmed. Counsel noted that in Dr. Jalali’s
June 30, 2005 report, issued the day after appellant returned to work, he advised that appellant
had significant pain, was experiencing muscle spasms, and reduced his work hours from eight to
four. Appellant eventually stopped working on July 27, 2005, asserting that he was unable to
perform the modified job.
Dr. Sharan and Dr. Jalali’s April and May 2005 reports provided findings on examination
and a diagnosis of appellant’s condition from April through June 2005 but did not provide a
probative, rationalized medical opinion sufficient to establish that his claimed disability as of
June 29 and July 15, 2005 was causally related to his accepted cervical and thoracic conditions.
Dr. Jalali stated that, while appellant could not return to his usual work as a letter carrier, he could
do sedentary work; Dr. Sharan had opined that appellant was able to perform sedentary work,
10

20 C.F.R. § 10.5(x).

11

Barry C. Peterson, 52 ECAB 120, 125 (2000); Terry R. Hedman, 38 ECAB 222 (1986).

8

which he was working when he accepted the employing establishment’s modified job, within the
work restrictions imposed by Dr. Leatherwood and Dr. Sharan. Therefore, based upon a review of
the contemporaneous medical reports from appellant’s treating physicians, the evidence is
insufficient to establish that appellant sustained a recurrence of disability on June 29 and
July15, 2005.
Dr. Jalali submitted a report dated April 18, 2008 in which he reviewed his treatment of
appellant during May and June 2005. He noted that on May 5, 2005 appellant was not able to
achieve his previous level of pain relief. On May 20, 2005 Dr. Jalali released appellant to return
to work on light duty. While appellant returned to work on June 25, 2005, he asserted that he felt
pain in his neck and shoulder area while casing mail and reaching above his head to grab mail on
June 29, 2005. As a result the employing establishment reduced his work hours to four hours a
day and reassigned him to less demanding duties, as of July 6, 2005. Appellant continued to
work light duty for four hours per day until July 15, 2005, when he got off of a stool and felt
excruciating pain in his entire thoracic back area, extending up into the back of his head. He
went home that day but returned to work until July 27, 2005, at which time he was unable to
continue working and Dr. Kimmel placed him on disability. Dr. Jalali stated that the June 29 and
July 15, 2005 incidents worsened appellant’s pain condition. He advised that the activities
appellant was performing at work placed his body in positions which exacerbated his condition
and worsened his pain symptoms. Dr. Jalali opined that appellant’s subsequent period of
disability was directly related to these two incidents. However, this report failed to establish that
appellant’s work duties caused a worsening of his condition, and therefore did not constitute
probative, rationalized evidence demonstrating that a change occurred in the nature and extent of
the injury-related condition.12
Dr. Jalali’s opinion on causal relationship is of limited probative value in that he did not
provide adequate medical rationale in support of his conclusions.13 He did not describe
appellant’s work duties in any detail or they would have been competent to cause an aggravation
of the claimed cervical and thoracic conditions as of June 29 and July 15, 2005. In addition,
appellant’s attorney acknowledges that Dr. Jalali’s April 18, 2008 report, summarizing the events
which occurred when appellant returned to work in June 2005 describes a new injury, not a
recurrence of disability. Therefore Dr. Jalali’s reports do not constitute sufficient medical
evidence demonstrating a causal connection between appellant’s employment-related conditions
and his alleged recurrence of disability.
The record also contains a February 9, 2007 report from Dr. Kimmel, who recommended
that appellant stop working on July 27, 2005 due to complaints of severe neck, right shoulder,
and upper and lower back pain. Dr. Kimmel noted that, although appellant had already reduced
his work hours from eight to four, he subsequently developed a severe, debilitating flare up of
symptoms, including muscle spasm, tenderness and restricted range of motion. However,
appellant stated in his August 1, 2005 claim that his recurrence of disability began on
July 15, 2005. Thus it was unclear as to whether Dr. Kimmel had an accurate history of
appellant’s condition. His report was therefore of limited probative value for the reason that it is
generalized in nature and equivocal in that it only noted summarily that appellant’s conditions
12

William C. Thomas, 45 ECAB 591 (1994).

13

Id.

9

were causally related to his accepted cervical and thoracic conditions. Finally, Dr. Kimmel’s
report, like Dr. Jalali’s April 18, 2008 report, appears to describe a new injury, not a recurrence
of disability. Causal relationship must be established by rationalized medical opinion evidence.
The reports submitted by appellant failed to provide an explanation in support of his claim that
he was partially disabled as of June 29, 2005 and totally disabled due to his accepted cervical and
thoracic conditions as of July 15, 2005. Thus, these reports did not establish a worsening of
appellant’s condition, and therefore do not constitute probative, rationalized evidence
demonstrating that a change occurred in the nature and extent of the injury-related condition.14
The Board finds that appellant failed to submit evidence showing that there was a change
in the nature and extent of appellant’s limited-duty assignment such that he no longer was
physically able to perform the requirements of his light-duty job. The record demonstrates that
appellant returned to work on June 25, 2005 on light duty. Although the employing
establishment reduced his work hours from eight to four per day on July 6, 2005, and he stopped
working as of July 27, 2005, appellant has not submitted sufficient factual evidence to support a
claim that a change occurred in the nature and extent of his limited-duty assignment during the
periods claimed. The record demonstrates that appellant accepted a light-duty position within
the restrictions outlined by Drs. Leatherwood and Sharan, for eight hours per day, on
June 25, 2005. In its July 25, 2005 letter, the employing establishment stated that he was
reluctant to return to the workplace and filed a Form CA-2a claim for recurrence of disability
four days after his return. Notwithstanding his apparent reluctance, the record indicates that
appellant was able to work at this position until June 29, 2005, when he alleged that he had to
leave work due to neck, back and right shoulder pain. The employing establishment stated that
all of its supervisors were aware of his work restrictions and that all of them adhered to these
restrictions. In his July 19, 2005 claim for a recurrence of disability, appellant stated on the form
that the injury occurred when he reached up to grab some certified letters on a high shelf. The
employing establishment stated, however, that he acted of his own volition in reaching for the
letters. It stated that management was on notice to ensure that appellant would do no work
which exceeded his work restrictions and was therefore not responsible for his alleged injury on
the date in question.15 In addition, as noted above, appellant appears to be describing a new
injury in this incident, rather than a recurrence of disability.
The employing establishment made accommodations for this injury, reduced appellant’s
work hours from eight to four at this sedentary position on July 6, 2005. Although appellant
alleged in his claims for recurrence and at the hearing that his accepted cervical and thoracic
conditions were aggravated by the duties of this job, he submitted no documentation to support
this assertion. In its August 18, 2005 letter, the employing establishment noted that appellant
filed another Form CA-2a claim on August 1, 2005 for a recurrence of disability, which
allegedly occurred on July 15, 2005. It stated, however, that its records indicated that he actually
worked until July 27, 2005, when his treating physician placed him on disability.16 This
14

Id.

15

The evidence submitted by an employing establishment on the basis of their records will prevail over the
assertions from the claimant unless such assertions are supported by documentary evidence. See generally Sue A.
Sedgwick, 45 ECAB 211, 218 n.4 (1993); Federal (FECA) Procedure Manual, Part 2 -- Claims, Computation of
Compensation, Chapter 2.900(b)(3) (September 1990).
16

Id.

10

assertion is corroborated by Dr. Kimmel’s February 9, 2007 report, in which he indicated that he
took appellant off work on July 27, 2005. Based on the above evidence of record, therefore,
appellant has failed to meet his burden to establish that there was a change in the nature and
extent of his limited-duty assignment such that he no longer was physically able to perform the
requirements of his light-duty job.
Appellant failed to submit sufficient evidence to meet his burden of proof in establishing
that he sustained a recurrence of his employment-related disability as of June 29 and
July 15, 2005. OWCP properly found that appellant was not entitled to compensation based on a
recurrence of disability. The Board will affirm the December 21, 2010 OWCP decision.
CONCLUSION
The Board finds that appellant has not met his burden to establish that he was entitled to
compensation for a recurrence of disability as of June 29 and July 15, 2005 causally related to his
accepted cervical and thoracic conditions.
ORDER
IT IS HEREBY ORDERED THAT the December 21, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: February 16, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cincinnati, OH, Employer
__________________________________________

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

Docket No. 17-1489
Issued: June 13, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 26, 2017 appellant filed a timely appeal from an April 21, 2017 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 his burden of proof to establish a recurrence of
disability commencing January 23, 2017, causally related to his accepted December 14, 2013
employment injury.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence with his appeal following the April 21, 2017 decision. However, since the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board is
precluded from considering this additional evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1);
Sandra D. Pruitt, 57 ECAB 126 (2005).

FACTUAL HISTORY
On February 17, 2014 appellant, then a 50-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained “compartment syndrome,” which he
attributed to walking on a daily basis. He identified December 14, 2013 as the date he first became
aware of his condition and its relation to his federal employment. It was also the date that appellant
stopped work.
On March 18, 2014 Dr. Ronald G. Hess, a Board-certified orthopedic surgeon, performed
a right lower extremity fasciotomy.
On April 11, 2014 OWCP accepted appellant’s occupational disease claim for unspecified
right leg and knee sprain and right lower extremity traumatic compartment syndrome. It also
retroactively authorized appellant’s March 18, 2014 surgery. Appellant received wage-loss
compensation for temporary total disability, and OWCP placed him on the periodic compensation
rolls, effective June 1, 2014.
Dr. Durbin released appellant to resume his regular duties, effective November 1, 2014.
On January 25, 2017 appellant filed a notice of recurrence (Form CA-2a) alleging that, on
January 23, 2017, he sustained a recurrence of disability of his December 14, 2013 occupational
injury. He alleged that his current condition was caused by repetitive motion and that his legs got
inflamed by stressful walking. On the reverse side of the claim form the employing establishment
confirmed that, following the original injury, appellant returned to full duty on November 1, 2014.
By development letter dated February 3, 2017, OWCP advised appellant that, to establish
his recurrence claim, he must show a worsening of his original injury without an intervening injury
or new exposure such that he was no longer able to work. It requested that he respond to specific
questions regarding the January 23, 2017 date of alleged recurrence and submit medical evidence,
which established how he was unable to work during his claimed period as a result of his accepted
injury. Appellant was afforded 30 days to submit additional evidence.
In a February 2, 2017 report, Dr. Hess related that appellant was examined for swelling in
his right lower extremity. He indicated that a Doppler study showed a “partially occluded gastroc
vein.” Dr. Hess reviewed appellant’s history and noted that appellant underwent right lower leg
compartment release surgery. Upon physical examination of appellant’s right leg, he observed no
tenderness, instability, or deformity. Range of motion was unremarkable. Dr. Hess diagnosed
partially occluded vein in the gastrocnemius.
By decision dated April 21, 2017, OWCP denied appellant’s claim for a recurrence of
disability. It found that the medical evidence submitted failed to establish that appellant’s accepted
right leg condition had worsened to the extent that he was disabled from work beginning
January 23, 2017.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence.4 For each period of disability claimed, an employee has the burden of proof to establish
a causal relationship between his or her recurrence of disability and his or her accepted
employment injury.5
OWCP’s implementing regulations define a recurrence of disability as an inability to work
after an employee has returned to work, caused by a spontaneous change in a medical condition,
which resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment.6 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties, or a reduction-in-force) or when the physical
requirements of such an assignment are altered such that they exceed the employee’s physical
limitations.7
Whether a particular injury causes an employee to become disabled from work and the
duration of that disability are medical issues that must be proven by a preponderance of reliable,
probative, and substantial medical opinion evidence.8 Findings on examination and a physician’s
opinion, supported by medical rationale, are needed to show how the injury caused the employee’s
disability from his or her particular work.9 For each period of disability claimed, the employee
must establish that he or she was disabled from work as a result of the accepted employment injury.
The Board will not require OWCP to pay compensation for disability in the absence of medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow an employee to self-certify his or her disability and entitlement
to compensation.10

3

Supra note 1.

4

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

5

Dominic M. Descaled, 37 ECAB 369, 372 (1986); Bobby Melton, 33 ECAB 1305, 1308-09 (1982).

6

20 C.F.R. § 10.5(x).

7

Id.

8

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

9

Dean E. Pierce, 40 ECAB 1249 (1989).

10

Amelia S. Jefferson, supra note 8.

3

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability commencing January 23, 2017 as a result of a spontaneous change or worsening of his
accepted right leg condition.
The only medical evidence submitted in support of appellant’s recurrence claim was a
February 2, 2017 report by Dr. Hess. Dr. Hess related appellant’s complaints of right lower
extremity swelling and indicated that a Doppler study showed a “partially occluded gastroc vein.”
He provided physical examination findings and diagnosed partially occluded vein in the
gastrocnemius. Dr. Hess did not, however, provide any opinion on the cause of appellant’s current
right leg condition nor on appellant’s inability to work. As he did not address the relevant issue
of disability from employment, Dr. Hess’ report is of diminished probative value and is insufficient
to establish appellant’s recurrence claim.11
The Board finds that the medical evidence submitted is insufficient to establish that
appellant was unable to work beginning on January 23, 2017 due to a spontaneous change or
worsening of his accepted right lower extremity condition.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability commencing January 23, 2017, causally related to his December 14, 2013 employment
injury.

11
See William A. Archer, supra note 8 (the Board will not require OWCP to pay compensation for disability in the
absence of medical evidence directly addressing the specific dates of claimed disability).

4

ORDER
IT IS HEREBY ORDERED THAT the April 21, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 13, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boston, MA, Employer
__________________________________________

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

Docket No. 21-1194
Issued: March 18, 2022

Case Submitted on the Record

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

JURISDICTION
On August 2, 2021 appellant filed a timely appeal from a March 17, 2021 merit decision
and a July 7, 2021 nonmerit 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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 17, 2021 merit decision, appellant submitted additional evidence to
OWCP. 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.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish disability
from work for the period December 27, 2020 3 through January 29, 2021 causally related to the
accepted November 10, 2020 employment injury; and (2) whether OWCP properly determined
that appellant abandoned her request for an oral hearing.
FACTUAL HISTORY
On November 18, 2020 appellant, then a 29-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 10, 2020 she sustained an injury when she
accidently closed her right hand in the door jam of the driver door while in the performance of
duty. She stopped work on November 11, 2020. By decision dated December 14, 2020, OWCP
accepted appellant’s claim for crushing injury of the right hand.
OWCP received a December 9, 2020 report by Dr. George S.M. Dyer, a Board-certified
orthopedic hand surgeon, who opined that appellant should be off due to a work-related injury.
Dr. Dyer described that on November 10, 2020 she closed her right hand in a mail truck and she
experienced pain and swelling. He recounted that appellant tried to return to work on
November 28, 2020, but she experienced significant pain. On physical examination of her right
upper extremity, Dr. Dyer observed some tenderness to palpation along the long finger and ring
finger dorsal metacarpals, thumb base and radial wrist and some pain with Tinel’s and Durkin’s
tests. Dr. Dyer diagnosed right hand arthralgia and right-hand crush injury.
On January 1, 2021 appellant filed a claim for compensation (Form CA-7) for disability
from work for the period December 26, 2020 through January 1, 2021. On the reverse side of the
claim form the employing establishment indicated that she received continuation of pay (COP)
from November 11 through December 26, 2020 and noted that her disability should begin on
December 27, 2020. Appellant thereafter filed additional CA-7 forms requesting wage-loss
compensation for continued disability through January 29, 2021.
In an attending physician’s report (Form CA-20) and a letter, both dated January 6, 2021,
Dr. Dyer noted that on November 10, 2020 appellant crushed her hand in a mail truck door at
work. He reported that she was totally disabled from work from November 10, 2020 through
January 10, 2021. Dr. Dyer indicated that appellant could return to part-time, modified-duty work.
On January 19, 2021 appellant accepted a part-time, limited-duty position as a modified
city carrier.
In a January 25, 2021 letter, Dr. Dyer recommended that appellant remain off work until
February 3, 2021. He explained that she attempted to return to work on January 21, 2021, but had
a severe exacerbation of pain.

3

The Board notes that the March 17, 2021 OWCP decision notes the beginning date of the claimed period as
December 27, 2021. However, this appears to be a typographical error as appellant’s claim form notes the beginning
date as December 27, 2020.

2

In a February 4, 2021 letter by Mallory K. Pingeton, a physician assistant, who explained
that appellant was seen by Dr. Dyer on February 3, 2021 and was found to have right intersection
syndrome. She opined that this was likely a complication from appellant’s November 2020 hand
crush injury. Ms. Pingeton recommended that appellant remain off work until March 17, 2021.
In a February 11, 2021 development letter, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of additional evidence required and afforded her 30 days
to submit the requested evidence.
Appellant subsequently resubmitted the February 4, 2021 letter by Ms. Pingeton.
By decision dated March 17, 2021, OWCP denied appellant’s wage-loss compensation
claims, finding that she had not established disability from work causally related to the accepted
November 10, 2020 employment injury.
On April 6, 2021 appellant timely requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review and submitted additional medical evidence.
In a letter dated May 21, 2021, OWCP’s hearing representative advised appellant that a
telephonic hearing would be held on June 24, 2021 at 2:30 p.m. Eastern Standard Time (EST). 4
The hearing representative also provided appellant with the toll-free telephone number and
passcode to access the hearing. Appellant did not appear for the hearing by telephone at the
appointed time.
By decision dated July 7, 2021, OWCP found that appellant failed to appear at the oral
hearing and abandoned her request. It noted that an oral hearing was scheduled to be conducted
by telephone on June 24, 2021 and that appellant received written notification of the hearing 30
days in advance of the hearing. Next, OWCP indicated that appellant failed to appear for the
hearing and there was no indication in the file that she contacted it either prior to or subsequent to
the scheduled hearing to request a postponement or explain her failure to appear.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury. 6 The term disability is
defined as the incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of the injury. 7 For each period of disability claimed, the employee has the
4

The hearing notice was addressed to appellant at her last known address,

5

Supra note 1.

6

D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
7

20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB
397 (1999).

3

burden of proof to establish that he or she was disabled from work as a result of the accepted
employment injury.8
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence. 9 The opinion of the physician must be
based on a complete factual and medical background, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
claimed disability and the accepted employment injury.10
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self -certify his or her disability and
entitlement to compensation. 11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish disability for
the period December 27, 2020 through January 29, 2021 causally related to the accepted
November 10, 2020 employment injury.
In support of her claim for compensation, appellant submitted medical reports from
Dr. Dyer. In a December 9, 2020 report, Dr. Dyer described the November 10, 2020 employment
injury and conducted an examination. He noted that appellant tried to return to work on
November 28, 2020, but experienced significant pain. Dr. Dyer opined that she should remain off
work. In a January 6, 2021 CA-20 form, he further indicated that appellant was totally disabled
from work from November 10, 2020 through January 10, 2021. Furthermore, in a January 25,
2021 letter, Dr. Dyer recommended that she remain off work until February 3, 2021. He explained
that appellant attempted to return to work on January 21, 2021, but had a severe exacerbation of
pain. Although he opined that she was unable to work during the claimed period of disability, Dr.
Dyer did not provide any medical reasoning to support his opinion on disability. 12 He merely
referenced that appellant experienced a severe exacerbation of pain when she attempted to return
to work. The Board has found that, when a physician’s statements regarding an employee’s ability
to work consist only of repetition of the employee’s complaints that he or she hurt too much to
work, without objective findings of disability being shown, the physician has not provided a

8

B.O., Docket No. 19-0392 (issued July 12, 2019); D.G., Docket No. 18-0597 (issued October 3, 2018); Amelia S.
Jefferson, 57 ECAB 183 (2005).
9

L.O., Docket No. 20-0170 (issued August 13, 2021); S.J., Docket No. 17-0828 (issued December 20, 2017);
Kathryn E. DeMarsh, 56 ECAB 677 (2005).
10

V.A., Docket No. 19-1123 (issued October 29, 2019); C.B., Docket No. 18-0633 (issued November 16, 2018).

11

See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, 55 ECAB 674 (2004); Fereidoon
Kharabi, 52 ECAB 291 (2001).
12

R.C., Docket No. 17-0748 (issued July 10, 2018); Dean E. Pierce, 40 ECAB 1249 (1989).

4

rationalized medical opinion on the issue of disability. 13 For these reasons, the Board finds that
Dr. Dyer’s reports lack sufficient medical reasoning to establish that appellant was unable to work
during the claimed period.
The report from the physician assistant is also of no probative value to establish appellant’s
wage-loss compensation claim because physician assistants are not considered physicians as
defined under FECA. 14
As the medical evidence of record lacks rationalized medical evidence establishing that
appellant was disabled from work for the period December 27, 2020 through January 29, 2021 due
to the accepted November 10, 2020 employment injury, the Board finds that she has not met her
burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Under FECA and its implementing regulations, a claimant who has received a final adverse
decision by OWCP is entitled to receive a hearing by writing to the address specified in the
decision within 30 days of the date of the decision for which a hearing is sought. 15 Unless
otherwise directed in writing by the claimant, OWCP’s hearing representative will mail a notice
of the time and place of the hearing to the claimant and any representative at least 30 days before
the scheduled date.16 OWCP has the burden of proving that it properly mailed to a claimant and
any representative of record. 17
A claimant who fails to appear at a scheduled hearing may request in writing, within 10
days after the date set for the hearing, that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference. 18
13

B.F., Docket No. 19-0123 (issued May 13, 2019); P.D., Docket No. 14-744 (issued August 6, 2014); G.T., 59
ECAB 447 (2008).
14

Section 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical o pinion
under FECA). See also S.A., Docket No. 21-0813 (issued December 27, 2021); George H. Clark, 56 ECAB 162
(2004) (physician assistants are not considered physicians under FECA).
15

20 C.F.R. § 10.616(a).

16

Id. at § 10.617(b).

17

V.C., Docket No. 20-0798 (issued November 16, 2020); M.R., Docket No. 18-1643 (issued March 1, 2019); T.P.,
Docket No. 15-0806 (issued September 11, 2015); Michelle R. Littlejohn, 42 ECAB 463 (1991).
18

20 C.F.R. § 10.622(f).

5

The failure of the claimant to request another hearing within 10 days, or the failure of the claimant
to appear at the second scheduled hearing without good cause shown, shall constitute abandonment
of the request for a hearing. 19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant abandoned her request for
an oral hearing.
Following OWCP’s March 17, 2021 decision denying appellant’s wage-loss compensation
claim, she filed a timely request for an oral hearing before a representative of OWCP’s Branch of
Hearings and Review. In a May 21, 2021 letter, OWCP’s Branch of Hearings and Review notified
her that it had scheduled a telephonic hearing for June 24, 2021 at 2:30 p.m. EST. OWCP mailed
the notice to appellant’s last known address of record. The Board has held that absent evidence to
the contrary, a letter properly addressed and mailed in the ordinary course of business is presumed
to have been received. This is called the mailbox rule. 20 Appellant failed to call in for the
scheduled hearing using the provided telephone number. She did not request a postponement or
provide an explanation to OWCP for failure to appear for the hearing within 10 days of the
scheduled hearing. As appellant failed to call in to the scheduled hearing or provide notification
to OWCP’s Branch of Hearings and Review within 10 days of the scheduled hearing explaining
failure to appear, the Board finds that OWCP properly determined that she abandoned her request
for an oral hearing. 21
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period December 27, 2020 through January 29, 2021 causally related to the accepted
November 10, 2020 employment injury. The Board further finds that OWCP properly determined
that appellant abandoned her request for an oral hearing.

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (September 2020); see also K.H., Docket No. 20-1198 (issued February 8, 2021); A.J., Docket No. 180830 (issued January 10, 2019).
20

See V.C., supra note 17; C.Y., Docket No. 18-0263 (issued September 14, 2018).

21

See L.T., Docket No. 20-1539 (issued August 2, 2021).

6

ORDER
IT IS HEREBY ORDERED THAT the March 17 and July 7, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 18, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
U.S. POSTAL SERVICE, SPRINGFIELDGREISEMER CARRIER ANNEX,
Springfield, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-1837
Issued: July 28, 2014

Case Submitted on the Record

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

JURISDICTION
On August 5, 2013 appellant filed a timely appeal from an April 22, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) which denied her claim. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on December 4, 2012, as alleged.
On appeal, appellant contended that there were no witnesses to her injury. She waited to
see a doctor because she was leaving in four days and did not see the sense of seeing a doctor
before she left. Appellant saw a doctor the first day she had off after her return to work. She
alleged that she had no symptoms before the injury but has continued to work in pain.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 7, 2013 appellant, then a 46-year-old city carrier, filed a traumatic injury
claim alleging that on December 4, 2012 she sustained a right third metatarsal fracture at the site
of a prior stress fracture. On December 4, 2012 she was walking on her route delivering mail
and around 1:00 p.m. her foot started hurting. Appellant continued to work every day “hoping it
would get better.” On January 16, 2013 she put on cleats because of ice and the pain became
worse. Appellant made an appointment with her physician, on January 17, 2013, who diagnosed
a stress fracture. Her physician excused her from work.
By letter dated February 22, 2013, the employing establishment controverted the claim.
On February 27, 2013 it contended that appellant did not establish fact of injury. The employing
establishment noted that she did not immediately report the injury to her manager at the time it
occurred and there were no witnesses to the incident. Appellant was able to perform her normal
job duties from December 4, 2012 through January 17, 2013. The employing establishment
further noted that her physician had treated her based on subjective complaints of pain and failed
to submit any medical documentation or test results. Appellant was advised to remain off work
from January 18 through April 17, 2013 but the physician failed to provide medical evidence or
rationale addressing why she was incapacitated. The employing establishment further contended
that there was insufficient evidence on causal relationship.
Appellant submitted an attending physician’s report form dated January 18, 2013 from
Dr. Joseph Yao, a Board-certified orthopedic surgeon, who diagnosed a probable right third
metatarsal stress fracture, and indicated that it was caused or aggravated by walking while
delivering mail. Dr. Yao listed the date of injury as December 4, 2012. In a January 17, 2013
work status report, he advised that appellant would need sick leave until April 17, 2013 due to
the right third metatarsal stress fracture.
By letter dated March 19, 2013, OWCP advised appellant that her claim appeared to be a
minor injury that resulted in minimal or no lost time from work. Therefore, payment of a limited
amount of medical expenses was administratively approved, but the merits of the claim had not
been adjudicated. It requested additional information in support of her claim, including evidence
that she experienced the incident on December 4, 2012 and supportive medical evidence.
In response, appellant submitted a March 15, 2013 magnetic resonance imaging (MRI)
scan of her right foot interpreted by Dr. James Dunne, a Board-certified surgeon. The right
second cuneiform bone had changes that suggested avascular necrosis, but he could not
completely exclude the possibility of it being due to a stress fracture. Dr. Dunne noted that the
right third metatarsal bone had a slight marrow edema, which probably represented a stress
fracture. Appellant also submitted a March 19, 2013 report from Dr. Yao, who diagnosed a
closed fracture of the metatarsal bones, probably third metatarsal stress fracture. Dr. Yao noted
that appellant stated that the date of the onset of pain was December 4, 2012 and had occurred
while walking.
By decision dated April 22, 2013, OWCP denied appellant’s claim. It found that she did
not establish that the December 4, 2012 incident occurred as alleged and that the medical
evidence did not establish that the right metatarsal fracture was causally related to the incident.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA 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 timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. 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.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.3
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.4 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, 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 claimant.5
An employee’s statement 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.6
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and her subsequent
course of action. An employee has not met his or her burden in 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. Circumstances such 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 doubt on an employee’s statement
in determining whether a prima facie case has been established.7
2

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

3

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

4

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

5

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

6

Gregory J. Reser, 57 ECAB 277 (2005); R.T., Docket No. 08-408 (issued December 16, 2008).

7

Betty J. Smith, 54 ECAB 174 (2002).

3

ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an employment-related injury on December 4, 2012, as alleged. The evidence of
record does not support that the incident occurred as claimed.8 On her claim form, appellant
indicated that she used cleats on January 16, 2013, which aggravated a prior stress fracture
injury, and resulted in fractures to the top of her right foot. She did not list a specific date of her
prior injury or submit any information about the prior injury. The record also does not contain
any specific description of trauma on December 4, 2012. There are no witnesses that can attest
to the injury. Appellant continued to work from December 4, 2012 through January 17, 2013.
During this time, she did not report the December 4, 2012 incident to her supervisor nor is there
any record that she sought medical attention until January 18, 2013. The Board finds that the
evidence of record casts doubt on whether the incident occurred as alleged. An employee has
not met his or her burden of proof when there are such inconsistencies in the evidence to
question the validity of the claim.9 Therefore, appellant has not established an employment
incident occurred as alleged.10
The Board notes that appellant submitted new evidence after the issuance of the April 22,
2013 decision. The Board lacks jurisdiction to review evidence for the first time on appeal.11
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 that she
sustained an injury in the performance of duty on December 4, 2012, as alleged.12

8

Paul Foster, 56 ECAB 208 (2004).

9

G.D., Docket No. 13-1358 (issued November 14, 2013).

10

As appellant has not established the factual component of her claim, the medical evidence need not be
considered.
11

See 20 C.F.R. § 501.2(c)(1).

12

Appellant described employment factors occurring over more than one workday or shift. She may consider
filing an occupational disease claim. See 20 C.F.R. § 10.5(q).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 22, 2013 is affirmed.
Issued: July 28, 2014
Washington, DC

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

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

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

5