United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
U.S. POSTAL SERVICE, PALATINE P & DC,
Palatine, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-705
Issued: October 21, 2010

Oral Argument May 15, 2010

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

JURISDICTION
On January 12, 2010 appellant filed a timely appeal from a December 9, 2009 decision of
the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she is entitled to a
schedule award greater than one percent for each upper extremity previously awarded.
FACTUAL HISTORY
On October 1, 1986 appellant, then a 41-year-old distribution clerk, filed an occupational
disease claim for an upper extremity condition. The Office accepted that appellant sustained
employment-related bilateral/lateral epicondylitis and later expanded the claim to include
myofascial pain syndrome of both upper extremities. On March 11, 2003 appellant filed a

schedule award claim,1 and by decision dated April 26, 2004, was granted a schedule award for
one percent permanent impairment of the right upper extremity and a one percent permanent
impairment on the left. She timely requested a hearing, held on March 15, 2005 and submitted a
May 31, 2004 report in which Dr. S.A. Ansari advised that she had impairments of 13 percent on
the right and 6 percent on the left.2 By decision dated June 16, 2005, an Office hearing
representative found the case not in posture for decision and remanded the case for the Office to
refer Dr. Ansari’s report to an Office medical adviser for review and assessment in accordance
with the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (hereinafter A.M.A., Guides),3 to be followed by an appropriate decision.
In an August 2, 2005 report, Dr. Ravi K. Ponnappan, a Board-certified orthopedic
surgeon and Office medical adviser reviewed the medical record including Dr. Ansari’s report.
He noted that Dr. Ansari had based his impairment rating on subjective pain complaints and
advised that there were no valid objective criteria to support Dr. Ansari’s conclusion.
Dr. Ponnappan found that appellant had a one percent impairment of each upper extremity. In a
September 7, 2005 decision, the Office found that appellant was not entitled to an additional
schedule award. On September 16, 2005 appellant requested a hearing and submitted reports
dated January 25 and 27, 2006 from Dr. Jacob Salomon, Board-certified in general surgery, who
advised that appellant had a 21 percent right upper extremity impairment and a 19 percent left
upper extremity impairment.
On January 31, 2006 appellant filed an occupational disease claim, alleging that she had
pain in both arms.4 She submitted medical evidence including an October 15, 2005
electromyography (EMG) and nerve conduction study (NCS) that was interpreted as consistent
with bilateral median mononeuropathies at the wrist consistent with moderate bilateral carpal
tunnel syndrome. Appellant retired effective February 6, 2006.
By decision dated May 8, 2006, an Office hearing representative found that a conflict in
medical evidence had been created between the opinions of Dr. Ponnappan, the Office medical
adviser, and Dr. Salomon regarding the degree of upper extremity impairment and remanded the
case to the Office for an impartial medical evaluation.
On June 26, 2006 the Office referred appellant to Dr. Kevin F. Walsh, a Board-certified
orthopedic surgeon, for an impartial evaluation regarding the degree of impairment of the
bilateral upper extremities. By report dated August 8, 2006, Dr. Walsh noted his review of the
medical records and a statement of accepted facts that listed the accepted conditions of bilateral
epicondylitis and myofascial pain syndrome. He reported appellant’s complaint of bilateral
shoulder and provided findings on physical examination of the upper extremities including
1

Appellant initially filed a schedule award claim in 1992. By decision dated April 10, 1995, the Office denied
the claim on the grounds that the medical evidence did not establish a permanent impairment. On February 13, 1996
an Office hearing representative affirmed the April 10, 1995 decision.
2

Dr. Ansari’s credentials could not be ascertained.

3

A.M.A., Guides (5th ed. 2001).

4

The claims were initially adjudicated separately.

2

shoulders, elbows, wrists and hands. Dr. Walsh noted that, although appellant had EMG
evidence of carpal tunnel syndrome, the records did not indicate that this was causally related to
her employment injury. He concluded that, as she had an objectively normal physical
examination with no findings to support a permanent impairment rating, her impairment rating
under the A.M.A., Guides would be zero percent.
In a September 5, 2006 decision, the Office found that appellant was not entitled to an
additional schedule award. Following appellant’s timely request, a hearing was held on
February 28, 2007 regarding her original injury and claim for an increased schedule award. By
decision dated April 30, 2007, an Office hearing representative affirmed the September 5, 2006
decision.
In the interim, on June 15, 2006, the Office denied appellant’s claim for carpal tunnel
syndrome. By decision dated January 25, 2007, an Office hearing representative reversed the
June 15, 2006 decision denying appellant’s carpal tunnel claim, and the Office accepted that she
sustained employment-related bilateral carpal tunnel syndrome. She filed a schedule award
claim on March 2, 2007, and submitted reports dated April 23 and 24, 2007 in which
Dr. Mitchell L. Goldflies, an attending Board-certified orthopedic surgeon, advised that appellant
had a right upper extremity whole person impairment of 28 percent and a left upper extremity
whole person impairment of 7 percent, which combined for a 33 percent whole person
impairment. On July 9, 2007 the Office referred the medical records of both claims to
Dr. Robert W. Wysocki, an Office medical adviser, for review regarding appellant’s degree of
upper extremity impairment. In a July 20, 2007 report, Dr. Wysocki stated that, based on the
large discrepancy between the examinations of Dr. Walsh and Dr. Goldflies, an impartial
examination was warranted.
On August 15, 2007 the Office referred appellant to Dr. Martin L. Saltzman, a Boardcertified orthopedic surgeon, for an impartial evaluation regarding the degree of upper extremity
impairment. In a September 5, 2007 report, Dr. Saltzman noted her complaints of bilateral upper
extremity pain and that her hands would swell. He reviewed the medical record, noting the
positive EMG study done on October 15, 2005. Examination findings included some edema in
both hands and no evidence of swelling in the carpal or cubital tunnel areas in either arm, and no
evidence of significant thenar or hypothenar atrophy. Tinel’s and Phalen’s tests were negative
bilaterally. Sensory and motor examination of both upper extremities revealed some slight
generalized weakness in both upper extremities with no weakness directly related to carpal
tunnel syndrome. Dr. Saltzman opined that appellant had no evidence of carpal tunnel syndrome
on physical examination, stating that although an EMG was positive for moderate carpal tunnel
syndrome, as documented in the literature, there is no direct relationship between the severity of
the patient’s subjective complaints, objective findings, and the severity of the EMG study. The
physician quoted page 493 of the A.M.A., Guides, stating “the diagnosis is made not only on
believable symptoms, but more importantly on a presence of positive clinical findings and loss of
function.” He concluded that in the absence of objective findings relating to carpal tunnel
syndrome, appellant had no permanent impairment.

3

On December 18, 2007 the Office referred the medical records for both accepted claims
to Dr. Wysocki, the Office medical adviser, for review. In a December 26, 2007 report,
Dr. Wysocki noted his review of the records. He advised that maximum medical improvement
was achieved on January 10, 1995 and that, in accordance with the fifth edition of the A.M.A.,
Guides, under Tables 16-10 and 16-15 appellant was entitled to a five percent impairment rating
for Grade 4 pain in the right median nerve distribution in each upper extremity. On March 6,
2008 the two claims were administratively combined and by decision dated October 6, 2008
appellant was granted a schedule award for an additional four percent impairment of each upper
extremity.
Appellant timely requested a hearing, and in a December 18, 2008 decision, an Office
hearing representative set aside the October 6, 2008 decision, noting that in granting the
additional schedule award, the Office relied on the opinion of an Office medical adviser rather
than the opinion of Dr. Saltzman who had been selected to resolve a conflict in medical
evidence. On remand the Office was to refer the case to an Office medical adviser to fully
explain his reasons for awarding a total five percent impairment of each upper extremity and, if
Dr. Saltzman’s report was found to be deficient, to secure a supplementary report from him.
The Office referred the record to a different Office medical adviser, Dr. Amon Ferry. In
a March 31, 2009 report, Dr. Ferry reviewed the medical record, including Dr. Saltzman’s report,
and concluded that appellant was not entitled to a schedule award greater than one percent for
each upper extremity because Dr. Saltzman found no objective findings to suggest carpal tunnel
syndrome. By decision dated May 27, 2009, the Office found that appellant was not entitled to a
schedule award greater than one percent for each upper extremity. In a December 9, 2009
decision, an Office hearing representative affirmed the May 27, 2009 decision. On May 28,
2009 appellant again requested a hearing that was held on September 17, 2009. He testified that
neither Dr. Walsh nor Dr. Saltzman examined her but only looked at files. By decision dated
December 9, 2009, an Office hearing representative affirmed the May 27, 2009 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,5 and its
implementing federal regulations,6 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.7 For decisions after February 1, 2001, the fifth edition of the A.M.A., Guides is used

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

4

to calculate schedule awards.8 For decisions issued after May 1, 2009, the sixth edition will be
used.9
It is the claimant’s burden to establish that he or she sustained a permanent impairment of
a scheduled member or function as a result of an employment injury.10 Office procedures
provide that to support a schedule award, the file must contain competent medical evidence
which shows that the impairment has reached a permanent and fixed state and indicates the date
on which this occurred (“date of maximum medical improvement”), describes the impairment in
sufficient detail to include, where applicable, the loss in degrees of active and passive motion of
the affected member or function, the amount of any atrophy or deformity, decreases in strength
or disturbance of sensation, or other pertinent description of the impairment, and the percentage
of impairment should be computed in accordance with the fifth edition of the A.M.A., Guides.
The procedures further provide that, after obtaining all necessary medical evidence, the file
should be routed to the Office medical adviser for opinion concerning the nature and percentage
of impairment, and the Office medical adviser should provide rationale for the percentage of
impairment specified.11
Chapter 16 of the fifth edition of the A.M.A., Guides provides the framework for
assessing upper extremity impairments.12 Regarding carpal tunnel syndrome, the A.M.A.,
Guides provide:
“If, after an optimal recovery time following surgical decompression, an
individual continues to complain of pain, paresthesias, and/or difficulties in
performing certain activities, three possible scenarios can be present:
1. Positive clinical findings of median nerve dysfunction and electrical
conduction delay(s): the impairment due to residual CTSE is rated
according to the sensory and/or motor deficits as described earlier.13
2. Normal sensibility and opposition strength with abnormal sensory
and/or motor latencies or abnormal EMG testing of the thenar muscles: a
8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

9

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

10

Tammy L. Meehan, 53 ECAB 229 (2001).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Evaluation of Schedule Awards, Chapter 2.808.6(d)
(August 2002).
12

A.M.A., Guides, supra note 3 at 433-521.

13

Section 16.5b of the A.M.A., Guides describes the methods for evaluating upper extremity impairments due to
peripheral nerve disorders and provides that the severity of the sensory or pain deficit and motor deficit should be
classified according to Tables 16-10a and 16-11a respectively. The impairment is evaluated by multiplying the
grade of severity of the sensory or motor deficit by the respective maximum upper extremity value resulting from
sensory or motor deficits of each nerve structure involved. When both sensory and motor functions are involved,
the impairment values derived for each are combined. Id. at 481; Kimberly M. Held, 56 ECAB 670 (2005).

5

residual CTSS is still present, and an impairment rating not to exceed five
percent of the upper extremity may be justified.
3. Normal sensibility (two-point discrimination and Semmes-Weinstein
monofilament testing), opposition strength, and nerve conduction studies:
there is no objective basis for an impairment rating.”14
Section 16.5d of the A.M.A., Guides provide that, in compression neuropathies,
additional impairment values are not given for decreased grip strength. Carpal tunnel syndrome
is an entrapment/compression neuropathy of the median nerve, and the A.M.A., Guides provides
that impairment for carpal tunnel syndrome be rated on motor and sensory deficits only and that
in the absence of a complex regional pain syndrome, additional impairment values are not given
for decreased motion.15
Section 8123(a) of the Act provides that, 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.16 When 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 on a proper factual background, must be
given special weight.17
When the Office secures an opinion from an impartial medical specialist for the purpose
of resolving a conflict in the medical evidence and the opinion from the specialist requires
clarification or elaboration, it has the responsibility to secure a supplemental report from the
specialist for the purpose of correcting a defect in the original report. When the impartial
medical specialist’s statement of clarification or elaboration is not forthcoming, or if the
specialist is unable to clarify or elaborate on the original report or if the specialist’s supplemental
report is also vague, speculative or lacks rationale, the Office must submit the case record
together with a detailed statement of accepted facts to a second impartial specialist for a
rationalized medical opinion on the issue in question.18 Unless this procedure is carried out by
the Office, the intent of section 8123(a) of the Act will be circumvented when the impartial
specialist’s medical report is insufficient to resolve the conflict of medical evidence.19
ANALYSIS
The Board finds that this case is not in posture for decision. As noted above, the fifth
edition of the A.M.A., Guides, which was in effect at the time of Dr. Saltzman’s September 5,
14

A.M.A., Guides, supra note 3 at 495.

15

Id. at 494; Kimberly M. Held, supra note 13.

16

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

17

Manuel Gill, 52 ECAB 282 (2001).

18

I.H., 60 ECAB ____ (Docket No. 08-1352, issued December 24, 2008).

19

Id.

6

2007 report, provides three scenarios for determining impairment due to carpal tunnel
syndrome.20 The second scenario advises that in cases with normal sensibility and opposition
strength and abnormal sensory and/or motor latencies or abnormal EMG testing of the thenar
muscles, residual carpal tunnel syndrome is still present, and an impairment rating not to exceed
five percent of the upper extremity may be justified. In this case, appellant had an October 15,
2005 EMG/NCS that was interpreted as consistent with bilateral median mononeuropathies at the
wrist consistent with moderate bilateral carpal tunnel syndrome. While Dr. Saltzman noted the
positive EMG findings in his report, he did not adequately explain his conclusion that appellant
had no impairment in accordance with the relevant standard mentioned above of the A.M.A.,
Guides, merely stating that in the absence of objective findings, appellant had no impairment.21
Because Dr. Saltzman did not adequately explain how his impairment rating conforms to
the A.M.A., Guides, his opinion is not sufficiently rationalized and does not resolve the conflict
in medical opinion and is not entitled to the special weight accorded a referee opinion. In a
March 31, 2009 report, Dr. Ferry, an Office medical adviser, reviewed the medical record
including Dr. Saltzman’s report and concluded that appellant was not entitled to a schedule
award greater than one percent for each upper extremity because Dr. Saltzman found no
objective findings to suggest carpal tunnel syndrome. The Board also notes that the record does
not contain a copy of the statement of accepted facts forwarded to Dr. Saltzman. The Board will
set aside the Office’s December 9, 2009 decision and remand the case, along with an updated
statement of accepted facts listing all accepted conditions, to Dr. Saltzman for clarification
regarding appellant’s bilateral upper extremity impairments, utilizing the proper edition of the
A.M.A., Guides. If he is unable to clarify his opinion, the Office shall refer appellant to another
impartial medical specialist to resolve the issue of the extent of permanent impairment.22
CONCLUSION
The Board finds that the conflict in the medical evidence was not properly resolved and
the case requires further development.

20

Supra note 15.

21

See V.G., 59 ECAB ____ (Docket No. 07-2179, issued July 14, 2008).

22

To properly resolve a medical conflict, it is the impartial medical specialist who should provide a reasoned
opinion as to the extent of permanent impairment in accordance with the A.M.A., Guides. An Office medical
adviser may review the opinion, but the resolution of the conflict is the responsibility of the impartial medical
specialist. Richard R. LeMay, 56 ECAB 341 (2005).

7

ORDER
IT IS HEREBY ORDERED THAT the December 9, 2009 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded to the Office for
proceedings consistent with this decision of the Board.
Issued: October 21, 2010
Washington, DC

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
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, GREENSBORO
POSTAL & DISTRIBUTION CENTER,
Greensboro, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-841
Issued: July 16, 2007

Case Submitted on the Record

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

JURISDICTION
On February 6, 2007 appellant filed a timely appeal from a January 17, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs that denied his request for a review
of the written record and a July 5, 2006 merit decision that denied his traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merit and
nonmerit decisions.
ISSUES
The issues are: (1) whether appellant met his burden of proof in establishing that he
sustained a traumatic injury in the performance of duty; and (2) whether the Office properly
denied appellant’s request for a review of the written record as untimely filed.

FACTUAL HISTORY
On May 14, 2006 appellant, then a 41-year-old maintenance mechanic, filed a traumatic
injury claim alleging that he injured his left knee on May 8, 2006 when a machine door hit him.
He stopped work on May 8, 2006 and returned on May 14, 2006.
On May 11, 2006 the employing establishment issued appellant a Form CA-16
authorizing treatment by Dr. Michael E. King, an orthopedic surgeon, for the claimed May 8,
2006 injury for up to 60 days.
Appellant provided a May 11, 2006 report from Jill A. Payne, a physician’s assistant,
who noted the history of appellant’s injury and complaints of left knee pain. Ms. Payne noted
that x-rays taken on that day revealed evidence of “a questionable loose body along the inferior
aspect of the patellar tendon” and also indicated that appellant had preexisting OsgoodSchlatter’s disease, which his May 8, 2006 injury may have exacerbated.
On May 11, 2006 Dr. King diagnosed “pain in joint, lower leg/knee” and noted that
appellant could return to work with limitations on bending, lifting and ladder climbing. In a
May 22, 2006 disability statement, he recommended “computer work only; no walking, standing
or squatting for one month.” Dr. King did not provide a diagnosis. In a May 24, 2006 attending
physician’s report, he diagnosed “pain in joint/leg.” Dr. King noted that he provided appellant
with a knee immobilizer. In a May 24, 2006 duty status report, he again diagnosed “pain in
joint” and recommended work restrictions of no bending, ladder climbing or lifting.
On May 30, 2006 appellant accepted a limited-duty job offer from the employing
establishment.
On May 30, 2006 the Office requested additional information concerning appellant’s
claim. The letter was addressed to appellant’s address of record.
In a May 16, 2006 report, Dr. Warren Stacks, a Board-certified family practitioner,
stated: “At this time I am recommending that you be absent from work from May 16 to 30, 2006
due to illness.”
In a June 12, 2006 disability form report, Dr. King reiterated his recommendations that
appellant perform computer work only and refrain from walking, standing or squatting for
another three weeks. In a narrative report of the same day, he stated: “The left knee is
improving. [Appellant] has not been using it enough. The injury was reviewed today as a small
steel door hitting the lateral side of the knee, just at Osgood-Schlatter’s tubercle. [Appellant] is
tender at that site, of course, and has a normal enlargement there.”
By decision dated July 5, 2006, the Office denied appellant’s traumatic injury claim on
the grounds that the medical evidence of record did not establish a firm diagnosis that could be
connected to the established employment incident. The Office advised that all prior medical
authorization was terminated.
In a July 13, 2006 telephone memorandum, the Office advised that appellant telephoned
to inquire about the denial of his claim and asserted that he did not receive the Office’s May 30,
2

2006 letter requesting additional information. The Office noted that the type of evidence needed
to establish the claim and the appeal process was explained to appellant. The Office also
indicated that it would send appellant another copy of the May 30, 2006 development letter.
Appellant subsequently provided medical evidence.
In an undated appeal request form received by the Office on September 11, 2006,
appellant requested both reconsideration and a review of the written record. On October 4, 2006
the Office requested that appellant specify which appellate review he wished. On December 13,
2006 appellant requested a review of the written record.
By decision dated January 17, 2007, the Office denied appellant’s request for a review of
the written record on the grounds that it was untimely filed. The Office also considered the
request in view of the issue involved but found that appellant could have his claim equally well
addressed by requesting reconsideration from the Office and submitting new evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 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 the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged, and that any disabilities and/or specific
conditions for which compensation is claimed are causally related to the employment injury.2
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.3
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.
First, the employee must submit sufficient evidence to establish that he actually experienced the
employment incident at the time, place and in the manner alleged.4 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.5 As part of this burden, the claimant must present
rationalized medical evidence based upon a complete factual and medical background showing
causal relationship.6

1

5 U.S.C. §§ 8101-8193.

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

John J. Carlone, 41 ECAB 354 (1989).

5

Id.

6

Joseph T. Gulla, 36 ECAB 516 (1985).

3

ANALYSIS -- ISSUE 1
The Board finds that appellant did not meet his burden of proof in establishing that he
sustained a traumatic injury in the performance of duty. The record reflects that the claimed
employment incident occurred as alleged when appellant was struck on the left knee by the door
of a machine on May 8, 2006. However, the medical evidence does not provide a clear diagnosis
and does not provide a physician’s opinion that the accepted incident caused or aggravated a
diagnosed condition.
Appellant submitted several medical reports in support of his claim, including a May 11,
2006 treatment note from Ms. Payne, a physician’s assistant. This report is not probative on the
issue of causal relationship, as it was not authored by a physician.7 Dr. Stacks May 16, 2006
report noted appellant’s disability status but did not address whether the May 8, 2006
employment incident caused an injury. No firm diagnosis was provided by the physician.
Appellant also provided two May 24, 2006 form reports from Dr. King who diagnosed
“pain in joint,” and noted that appellant’s joint pain was specific to the leg. However, the Board
notes that “pain” is not a compensable diagnosis under the Act.8 Neither form report addressed
or established a causal relationship between the employment incident and a diagnosed condition.
The Board has held that a physician’s report that provides no opinion on the cause of a condition
is not probative on the issue of causal relationship.9 As noted, part of appellant’s burden of proof
includes the submission of rationalized medical evidence showing a causal relationship between
a diagnosed condition and his employment activity on the date in question. Dr. King’s May 11
and 22, 2006 disability statements similarly diagnosed pain and did not address causal
relationship. On May 22, 2006 he diagnosed “contusion left knee, Osgood-Schlatter’s tubercle,
and bursitis in the pretibial area.” However, Dr. King did not provide sufficient explanation or
rationale to connect this diagnosis to the accepted employment incident.10 His June 12, 2006
disability statement neither provided a diagnosis nor addressed causal relationship. A June 12,
2006 narrative report, noted only that a small steel door hit the left lateral side of appellant’s
knee at the site of the Osgood-Schlatter’s tubercle and indicated that appellant experienced
tenderness and “normal enlargement” at that site. However, Dr. King did not provide a firm
diagnosis or give any explanation or rationale linking the employment incident to the diagnosed
condition. The Board finds that appellant did not meet his burden of proof in establishing that he
7

See 5 U.S.C. § 8101(2). This subsection defines the term “physician.” See also Charley V.B. Harley, 2 ECAB
208, 211 (1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician).
8

Robert Broome, 55 ECAB 493 (2004), citing John L. Clark, 32 ECAB 1618 (1981).

9

See, e.g., Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (medical evidence which does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
10

In order to be considered rationalized medical evidence, a physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the claimant’s specific employment factors. Victor J. Woodhams,
41 ECAB 345, 352 (1989); Steven S. Saleh, 55 ECAB 169, 172 (2003). The Board has held that a medical opinion
not fortified by medical rationale is of limited probative value. Caroline Thomas, 51 ECAB 451, 456 n.10 (2000);
Brenda L. Dubuque, 55 ECAB 212, 217 (2004).

4

sustained a traumatic injury in the performance of duty because the medical evidence of record
does not establish a causal relationship between the employment incident and a diagnosed
condition.
On appeal, appellant contends that the Office did not send its May 30, 2006 claim
development letter until July 14, 2006 and that he did not receive it until July 16, 2006. While
the Office’s July 13, 2006 telephone memorandum supports that the Office sent appellant
another copy of the letter on July 14, 2006, there is no evidence that the original letter was not
sent to appellant’s address of record in the ordinary course of business on May 30, 2006. The
record contains a properly addressed May 30, 2006 letter from the Office to appellant requesting
additional evidence in support of his claim. The Board has held that, under the mailbox rule, in
the absence of evidence to the contrary, it is presumed that a notice properly addressed and
mailed to an individual in the ordinary course of business was received by that individual.11
There is no evidence to rebut that the Office sent appellant the May 30, 2006 letter in the
ordinary course of business on that date and that the letter was received.12
Notwithstanding the Board’s affirmance of the Office’s July 5, 2006 decision denying
appellant’s claim, the Board finds that appellant is still entitled to reimbursement for payment of
expenses incurred for medical treatment for the period May 11, 2006, the date the employing
establishment official signed the Form CA-16, to July 5, 2006, the date the Office denied the
claim and terminated authorization of medical treatment at its expense. By Form CA-16, signed
by an employing establishment official on May 11, 2006, treatment was authorized for
Dr. King’s office to provide medical care for a period of up to 60 days from that date. The
employing establishment’s authorization for appellant to obtain medical examination and/or
treatment created a contractual obligation to pay for the cost of necessary medical treatment
regardless of the action taken on the claim.13
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his
claim before a representative of the Secretary.14 Section 10.615 of the federal regulations
implementing this section of the Act provides that a claimant shall be afforded a choice of an
oral hearing or a review of the written record.15 The Office’s regulations provide that the request
must be sent within 30 days of the date of the decision for which a hearing is sought and also that
11

See Larry L. Hill, 42 EAB 598 (1991); George F. Gidicsin, 36 ECAB 175 (1984).

12

Following the Office’s July 5, 2006 decision, appellant submitted additional evidence. However, as this
evidence was not considered by the Office in reaching a decision, the Board may not consider this evidence for the
first time on appeal. See 20 C.F.R. § 501.2(c). This decision of the Board does not preclude appellant from
submitting such evidence to the Office as part of a reconsideration request before the Office.
13

See Robert F. Hamilton, 41 ECAB 431 (1990); 20 C.F.R. § 10.300.

14

5 U.S.C. § 8124(b)(1).

15

20 C.F.R. § 10.615.

5

the claimant must not have previously submitted a reconsideration request (whether or not it was
granted) on the same decision.16
Additionally, the Board has held that the Office, in its broad discretionary authority in the
administration of the Act,17 has the power to hold hearings in certain circumstances where no
legal provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing.18 The Office’s procedures, which require the
Office to exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of Board precedent.19
ANALYSIS -- ISSUE 2
The Board finds that the Office properly denied appellant’s request for a review of the
written record as untimely filed. Appellant requested a review of the written record in response
to the Office’s decision issued on July 5, 2006. Initially, in an undated letter received by the
Office on September 11, 2006, appellant requested both a review of the written record and
reconsideration. After the Office asked that appellant clarify his request, he submitted a
December 13, 2006 request for a review of the written record. Both requests were made more
than 30 days after the July 5, 2006 decision was issued.
Although the Office determined that appellant’s request was untimely, it nevertheless
exercised its discretion by examining appellant’s request for an appeal. The Office determined
that appellant’s case would be best served by his submission of a request for reconsideration
along with new supporting evidence. Accordingly, the Board finds that the Office acted within
its discretion in denying appellant’s hearing request as untimely, because he failed to file the
request within the statutory time requirements.
CONCLUSION
The Board concludes that appellant did not meet his burden of proof in establishing that
he sustained a traumatic injury in the performance of duty and that the Office properly denied his
request for a review of the written record as untimely filed.

16

20 C.F.R. § 10.616(a).

17

5 U.S.C. §§ 8101-8193.

18

Marilyn F. Wilson, 52 ECAB 347 (2001).

19

Teresa M. Valle, 57 ECAB __ (Docket No. 06-438, issued April 19, 2006). See Federal (FECA) Procedure
Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).

6

ORDER
IT IS HEREBY ORDERED THAT the January 17, 2007 and July 5, 2006 decisions of
the Office of Workers’ Compensation Programs are affirmed, as modified.
Issued: July 16, 2007
Washington, DC

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

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

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

7


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

)
)
)
)
)
)
)
)

Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1063
Issued: July 20, 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 April 6, 2015 appellant, through counsel, filed a timely appeal from a March 3, 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 appellant sustained a recurrence of disability beginning April 23,
2012 causally related to her accepted employment injury.
FACTUAL HISTORY
On November 15, 2011 appellant, then a 53-year-old letter carrier, filed an occupational
disease claim alleging that on October 21, 2011 she experienced pain in the right side of her neck
while reaching toward the right side of her letter case. She did not stop work. On January 19,
1

5 U.S.C. § 8101 et seq.

2012 the employing establishment indicated that when it questioned appellant why she did not
immediately report the incident, she related that the pain occurred gradually.
In decisions dated March 30 and October 19, 2012, OWCP denied appellant’s claim as
the medical evidence was insufficient to establish that she sustained a diagnosed condition
causally related to the identified work factors. Appellant requested reconsideration. On
March 15, 2013 OWCP vacated its October 19, 2012 decision and accepted appellant’s
occupational disease claim. It determined that the medical evidence from Dr. Ranga C. Krishna,
an attending Board-certified neurologist, established that appellant sustained right C5-6
radiculopathy and bilateral carpal tunnel syndrome due to the October 21, 2011 work injury.
In a report dated June 21, 2012, Dr. Krishna diagnosed a right radiculopathy from a
cervical disc protrusion and bilateral carpal tunnel syndrome. He also noted that appellant had
experienced pain in her lower back beginning in 2008. Dr. Krishna advised that she was totally
disabled from her usual employment. He attributed appellant’s condition to her work injury.
The record contains similar progress reports from Dr. Krishna dated October 3, 2012 through
August 27, 2013 diagnosing right cervical radiculopathy and bilateral carpal tunnel syndrome
due to repetitive work duties and finding that she was disabled from work.
On August 20, 2013 appellant filed claims for compensation (CA-7 forms) beginning
April 21 to May 4, 2012.
In a report of telephone call dated August 27, 2013, OWCP noted that appellant received
compensation for four hours per day under another file number.
On September 9, 2013 appellant submitted chiropractic reports from Dr. Theodore Xenos
dated 2012 and 2013.
Appellant underwent a functional capacity evaluation dated November 14, 2013 that
showed that she was unable to perform sedentary employment.
In a progress report dated January 14, 2014, Dr. Krishna discussed appellant’s history of
neck pain on October 21, 2011 while processing mail. Her pain increased over time.
Dr. Krishna stated, “[Appellant] stopped working on April 19, 2012 secondary to worsening
symptoms resulting from repetitive movements such as overhead reaching and lifting which were
her general duties as a letter carrier. She is unable to go back to work until further notice.” He
related, “There was no prior or new diagnostic testing to compare from testing mentioned above
to confirm worsening symptoms. [Appellant’s] subjective complaints and neurological
examination correlate with symptomatology with worsening symptoms compared from initial
examination and follow-up consultation that concluded for [her] to stop working as of
April 19, 2012.” Dr. Krishna submitted a similar progress report on February 18, 2014.
In a statement dated February 20, 2014, appellant indicated that her symptoms
spontaneously increased. She worked limited duty until she sustained a recurrence of disability.

2

On February 20, 2014 appellant’s counsel maintained that the employing establishment
failed to submit her August 1, 2012 notice of recurrence of disability (Form CA-2a).2 He
submitted the first page of an August 1, 2012 notice of recurrence of disability alleging that she
was unable to work beginning April 23, 2012 due to her accepted employment injury.3
In a progress reports dated June 24 and September 9, 2014, Dr. Krishna diagnosed right
cervical radiculopathy and bilateral carpal tunnel syndrome.4 He related that appellant stopped
work on April 19, 2012 due to increased symptoms as a result of repetitive motion at work.
Dr. Krishan opined that she was totally disabled.5
On January 29, 2015 OWCP advised appellant that the evidence of record was currently
insufficient to show that she sustained a recurrence of disability as the majority of the evidence
was from a chiropractor and a chiropractic condition had not been accepted as employment
related. It informed her of the limitations on chiropractors under FECA and requested a detailed
report from a physician explaining the relationship between her disability and the accepted work
injury.
Appellant submitted reports from Dr. Xenos dated December 29, 2014 and January 7 and
21 and February 4, 2015. Based on paraspinal studies he diagnosed, among other things,
multiple vertebral subluxation complex cervical, lumbar and thoracic spines, and cervical
ligament instability. Dr. Xenos concluded that appellant was totally disabled for work.
By decision dated March 3, 2015, OWCP found that appellant had not established that
she sustained an employment-related recurrence of disability beginning April 23, 2012. It noted
that she worked limited duty after her injury. OWCP determined that appellant had not
established an increase in disability “because the medical evidence is from a chiropractor and we
did not accept any chiropractic conditions arising out of the October 21, 2011 injury.” It further
found that she did not submit a factual response to its January 29, 2015 development letter.
On appeal counsel argues that OWCP did not consider her factual statements or the
January 14, 2014 report from Dr. Krishna. He asserts that after three years OWCP has still not
properly adjudicated the claim.

2

By letter dated March 20, 2014, counsel again noted that the employing establishment had not submitted her
notice of a recurrence of disability.
3

The Board notes that appellant’s Form CA-7 claims for compensation and her Form CA-7 claim for a recurrence
note different periods of disability.
4

On June 25, 2014 counsel again requested that OWCP adjudicate her claimed recurrence of disability on
April 19, 2012.
5

An April 19, 2014 magnetic resonance imaging scan study revealed a central disc herniation at C5-6 and a disc
bulge at C6-7 without stenosis. A September 22, 2014 nerve conduction study showed bilateral carpal tunnel
syndrome and right C5-6 radiculopathy.

3

LEGAL PRECEDENT
Where an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee 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 to show that he or 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.6
In determining whether a claimant has discharged his or her burden of proof and is
entitled to compensation benefits, OWCP is required by its statute and regulation to make
findings of fact. 5 U.S.C. § 8124(a) provides: “[OWCP] shall determine and make a finding of
facts and make an award for or against payment of compensation.” OWCP regulations provide
that its decision “shall contain findings of fact and a statement of reasons.”7 The decision should
contain a discussion of the issues, requirements for entitlement, a background framework so that
the reader can understand the issues at hand, a discussion of the relevant evidence, a basis for the
decision, and a conclusion.8 OWCP procedures further specify that a final decision must provide
clear reasoning which allows the claimant to “understand the precise defect of the claim and the
kind of evidence which would overcome it.”9 Thus, a final decision must include findings of fact
and a description of the basis for the findings so that the parties of interest will have a clear
understanding of the reasoning behind the decision.10
ANALYSIS
The Board finds that the case is not in posture for decision. OWCP accepted that
appellant sustained right radiculopathy at C5-6 and bilateral carpal tunnel syndrome due to
factors of her federal employment. It is unclear, however, whether OWCP accepted a traumatic
injury or an occupational disease.11 Appellant filed an occupational disease claim, but attributed
her condition to events occurring on October 21, 2011. In its March 15, 2013 acceptance,
OWCP specified that the medical evidence showed that she sustained a diagnosed condition as a
result of the October 21, 2011 work incident. It also indicated, however, that it was accepting an

6

Richard A. Neidert, 57 ECAB 474 (2006); Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB
222 (1986).
7

20 C.F.R. § 10.126.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5(c) (February 2013).

9

Id.

10

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

11

A traumatic injury is defined as a “condition of the body caused by a specific event or incident, or series of
events or incidents, within a single workday or shift.” 20 C.F.R. § 10.5(ee). An occupational disease is defined as a
condition produced by the work environment over a period longer than a single workday or shift.” 20 C.F.R.
§ 10.5(q).

4

occupational disease claim. On remand, OWCP should specify whether it accepted an
occupational disease or traumatic injury.
Appellant worked limited duty until April 23, 2012, when she stopped work and did not
return. She filed claims for compensation and a notice of recurrence of disability beginning
April 2012 causally related to her accepted employment injury.
In its March 3, 2015 decision, OWCP found that the medical evidence was insufficient to
show that appellant sustained an employment-related recurrence of disability. It determined that
she had submitted evidence from a chiropractor in support of her alleged recurrence of
disability.12 Appellant, however, submitted numerous reports from Dr. Krishna dated June 2012
through September 2014 diagnosing employment-related radiculitis and bilateral carpal tunnel
syndrome and finding that she was disabled from work. OWCP did not consider any of the
medical reports from Dr. Krishna in reaching its March 3, 2015 decision.
It is a well-established principal that OWCP must make findings of fact and offer a
statement of reasons in its final decisions.13 Section 8124(a) of FECA provides: OWCP shall
determine and make a finding of fact and make an award for or against payment of
compensation.14 Section 10.126 of Title 20 of the Code of Federal Regulations provide: The
decision shall contain findings of fact and a statement of reasons.15 The reasoning behind
OWCP’s evaluation of the evidence should be clear enough for the reader to understand the
precise defect of the claim and the kind of evidence which would overcome it.16
Because OWCP failed to discuss or weigh the medical evidence from Dr. Krishna, it did
not discharge its responsibility to provide appellant with a statement explaining the basis of the
decision, and identify the evidence necessary to overcome the denial of her claim. The case,
therefore, is returned to OWCP for a decision with findings of fact and an analysis of the existing
medical evidence. OWCP should demonstrate from the record whether an employment-related
recurrence of disability beginning April 23, 2012 was established.17 Following this and such
other development as OWCP deems necessary, it should issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
12

The Board notes that Dr. Xenos is not considered a physician under FECA as he did not diagnose spinal
subluxations as demonstrated by x-rays to exist. See 5 U.S.C. § 8101(2) which defines physicians.
13

20 C.F.R. § 10.126; see also Z.B., Docket No. 12-1164 (issued December 14, 2012).

14

5 U.S.C. § 8124(a).

15

20 C.F.R. § 10.126; see M.M., Docket No. 14-1166 (issued December 1, 2014); Beverly Dukes, 46 ECAB
1014 (1995).
16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5(c) (February 2013); see
also G.S., Docket No. 14-1933 (issued November 7, 2014).
17

See L.C., Docket No. 15-437 (issued April 23, 2015); B.G., Docket No. 14-439 (issued August 7, 2014).

5

ORDER
IT IS HEREBY ORDERED THAT the March 3, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: July 20, 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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 09-315
Issued: September 1, 2009

Case Submitted on the Record

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

JURISDICTION
On November 13, 2008 appellant file a timely appeal of the Office of Workers’
Compensation Programs’ decisions dated March 13 and October 27, 2008, denying his claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this claim.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained a
traumatic injury in the performance of duty.
FACTUAL HISTORY
On December 11, 2007 appellant, then a 49-year-old casual mail handler, filed a
traumatic injury claim alleging that he sustained injury to his lower back and dislocated discs on
his right side between September 2 through 7, 2007 after lifting heavy sacks of mail and
throwing them on a conveyor belt. He noted that he continued working until September 8, 2007
when he could not get out of bed. Appellant stopped work on September 9, 2007 and returned

on September 14, 2007. Appellant’s supervisor, Robert Hoffarth, received notice of the injury
on January 25, 2008. He checked a box “no” indicating that appellant was not injured in the
performance of duty.
Appellant submitted work restriction forms from his treating physician, Dr. Geoffrey
Markowski, Board-certified in family medicine. On September 10, 2007 Dr. Markowski
indicated that appellant had missed work between September 9 and 11, 2007 “due to illness.”
On September 20, 2007 he noted that appellant was unable to work due to back pain from
September 8 to 24, 2007. Dr. Markowski advised that he could return to work on September 24,
2007 but could not lift over 30 pounds, bend or twist for 30 days.
In a letter dated February 1, 2008, Cathy Taylor-Schultz, an employing establishment
health and resource employee, controverted the claim. She stated that appellant was out of work
from September 8 to 13, 2007. Upon returning to work on September 14, 2007, appellant
informed Mr. Hoffarth that he missed work because of a back strain that occurred at home.
Ms. Taylor-Schultz stated that Mr. Hoffarth sent appellant to the employing establishment’s
health unit to give the nurse his medical documentation. She also indicated that the employing
establishment did not receive appellant’s Form CA-1 until January 15, 2008. Ms. Taylor-Schultz
further indicated that the supervisor’s portion of the form was blank. She also noted that
appellant’s CA-1 form did not provide a specific date of injury, but instead indicated that the
incident occurred sometime between September 2 through 7, 2007. An undated statement from
Mr. Hoffarth noted that appellant reported for work on September 14, 2007. He stated that
appellant informed him that he missed several days of work because of a back strain acquired
doing chores on his day off. Mr. Hoffarth noted that appellant had medical documentation
excusing his absence and releasing him back to work. He also noticed the medical
documentation mentioned restrictions. Mr. Hoffarth further noted that appellant appeared to be
in pain. He stated that appellant told him he had to return to work because he needed the money.
Mr. Hoffarth advised that appellant go to the medical unit at the employing establishment.
Following his appointment, appellant informed Mr. Hoffarth that he was being sent home as he
needed additional paperwork from his physician.
A September 14, 2007 nurse’s note from the employing establishment’s medical unit,
with an illegible signature, noted that appellant was brought in by his supervisor. It also noted
that appellant stated that he had to come back to work because he had no medical insurance. The
note indicated that he had low back pain and right leg pain. It also noted that appellant did not
state that this was a work-related condition. The note indicated that his medical documentation
was not adequate as no nature of illness was listed. It advised that appellant see his own
physician for better medical documentation.
On February 5, 2008 the Office advised appellant of the factual and medical evidence
necessary to establish his claim. In particular, it requested a detailed description of how the
injury occurred and statements from any witnesses of the incident.
Appellant submitted a February 8, 2008 statement. He contended that he never stated his
injury happened at home. Appellant reiterated that he sustained an injury at work, while lifting
and throwing sacks of mail onto a conveyor belt and could hardly get out of bed on
September 8, 2007 due to pain. He noted treatment from physicians and physical therapy.

2

Appellant did not file a claim immediately because he did not know who to contact. He also
asserted that this was the only back injury he ever had. In an undated statement, appellant noted
that he had been out of work since September 8, 2007. He addressed treatment by his
chiropractor and physical therapy.
By decision dated March 13, 2008, the Office denied appellant’s claim for compensation
finding the evidence insufficient to establish that he actually experienced the employment
incident as alleged. It also found that the medical evidence failed to establish a work-related
injury in connection with the reported incident.
The Office subsequently received reports from Dr. Frederick Cohen, a Board-certified
internist. On January 10, 2008 Dr. Cohen noted appellant’s complaint of back pain and
numbness in his legs. He indicated that appellant’s condition started on September 7, 2007 after
throwing heavy sacks in tubs at work. Dr. Cohen diagnosed lumbar disc degeneration and
lumbar spinal stenosis. In a February 5, 2008 myelogram report, he noted that testing of
appellant’s lumbosacral spine revealed multilevel degenerative changes with disc space
narrowing and osteophytic spurring. Dr. Cohen diagnosed congenitally shallow canal, severe
central canal stenosis at L2-3, lateral recess encroachment at that level bilaterally as well as right
greater than left at L3-4 and left greater than right at L4-5.
A February 5, 2008 computerized tomography scan of appellant’s lumbar spine by
Dr. Seth Zeidman, a Board-certified neurosurgeon, revealed severe central canal stenosis at L2-3
with biforaminal encroachment and strategic foraminal spur on the left at L5-S1. On
February 14, 2008 Dr. Zeidman noted that appellant was injured at work on September 7, 2007
while throwing heavy sacks in tubs. He diagnosed lumbar disc degeneration and lumbar spinal
stenosis. Dr. Zeidman also recommended surgery.
On April 7, 2008 appellant requested a telephone hearing. At the August 12, 2008
hearing, he stated that on September 2, 2007 he was throwing sacks of mail when he injured his
back. Although appellant continued working for the rest of the week, but could not get out of
bed on September 8, 2007. He stated that he never indicated that his injury was sustained at
home. An Office hearing representative advised that appellant submit treatment notes from the
time of the injury. Appellant submitted an undated form diagnosing L5-S1 radiculopathy. He
also submitted a work restriction form already of record.
By decision dated October 27, 2008, an Office hearing representative affirmed the
March 13, 2008 decision finding that the evidence failed to support that the incident occurred at
the time, place and in the manner alleged.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an “employee of the United States” within the meaning of the Act; that the claim was filed
within the applicable time limitation; that an injury was sustained while in the performance of
1

5 U.S.C. §§ 8101-8193.

3

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 on a traumatic injury
or an occupational disease.2
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.
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. Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.3
An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury while in the performance of duty. However, the
employee’s statements must be consistent with the surrounding facts and circumstances and his
or her subsequent course of action. 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 cast doubt on an employee’s statements in
determining whether he or she has established a prima facie claim for compensation. However,
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 and persuasive evidence.4
ANALYSIS
The record reflects that appellant is a casual mail handler who claimed a lower back
injury and dislocated discs on his right side after lifting heavy sacks of mail and throwing them
on a conveyor belt September 2 through 7, 2007. The Office found that he had not established
that the claimed work incident occurred as alleged. The Board finds that appellant has not met
his burden of proof to establish that the claimed injury occurred as alleged.
Appellant alleges that he injured his back at work lifting heavy sacks of mail and
throwing them onto a conveyor belt. However, the evidence contains inconsistencies that cast
doubt about this incident as the cause of the injury. On appellant’s claim form, Mr. Hoffarth,
checked a box “no” indicating that appellant was not injured in the performance of duty. In an
undated statement, he indicated that, upon appellant’s return to work on September 14, 2007,
appellant stated that he had missed work because of a back strain he sustained doing chores on
his day off. Also, the September 14, 2007 nurse’s note indicated that appellant did not state that
his low back pain was work related. It further noted that his medical documentation was
inadequate as it did not state the nature of his illness. Dr. Markowski’s work restriction dated
September 10, 2007 generally noted that appellant had missed work between September 9 and
11, 2007 “due to illness” and his September 20, 2007 work restriction only advised that he could
2

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

Id.

4

M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Louise F. Garnett, 47 ECAB 639 (1996).

4

not work due to back pain. As noted, an employee’s statement must be consistent with the
surrounding facts and circumstances in order to establish a prima facie claim for compensation.5
On August 12, 2008 appellant denied stating that his back condition was caused at home
and was not work related. The reports from Drs. Cohen and Zeidman, dated January 10 and
February 14, 2008 respectively, indicated that he sustained an injury at work while throwing
heavy sacks in tubs. However, the evidence describing a work-related injury is dated after
December 11, 2007, the date when appellant filed his traumatic injury claim approximately four
months after the alleged injury occurred. The factual evidence most contemporaneous with the
claimed September 7, 2007 incident indicates that his back condition was sustained on his day
off, while the contemporaneous medical evidence does not mention a history of lifting or
throwing of sacks. Appellant provided no further evidence to support his assertion and did not
clearly explain why he delayed filing his claim. He did not offer any explanation addressing
these inconsistencies regarding his claim, as requested by the Office.
Furthermore, appellant’s claim is inconsistent regarding the date the alleged injury was
sustained. His claim form asserted that he sustained a traumatic injury from September 2
through 7, 2007.6 At the August 12, 2008 oral hearing, appellant’s representative noted in his
opening statement that the alleged injury occurred on September 7, 2007. However, appellant
subsequently testified that he was throwing sacks onto a conveyor on September 2, 2007 when
he felt pain in his back. He further testified that he continued to work for the rest of the week
until September 8, 2007 when he got out of bed and “could not move.” Additionally, reports
from Drs. Cohen and Zeidman noted that appellant was injured at work on September 7, 2007.
Appellant failed to identify a consistent date of injury or explain why he provided various of
dates of injury.
For these reasons, the Board finds that there are such inconsistencies that cast serious
doubt on the validity of the claim. Appellant has not met his burden of proof in establishing that
the September 2007 incident occurred as alleged.7
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained a traumatic injury in the performance of duty.

5

See id.

6

The Board notes that appellant’s alleged date of injury does not fall within the meaning of the term “traumatic
injury” which is defined as a condition of the body caused by a specific event or incident, or a series of events or
incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee).
7

As appellant did not establish that the employment incident occurred at the time, place and manner alleged, the
Board need not consider the medical evidence. See S.P., 59 ECAB ___ (Docket No. 07-1584, issued
November 15, 2007).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated October 27 and March 13, 2008 are affirmed.
Issued: September 1, 2009
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brick, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0372
Issued: May 3, 2018

Case Submitted on the Record

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

JURISDICTION
On December 8, 2016 appellant, through counsel, filed a timely appeal from an August 16,
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 the claim.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
3

5 U.S.C. § 8101 et seq.

The record includes evidence received after OWCP issued its August 16, 2016 decision. The Board’s jurisdiction
is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the Board is precluded
from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant has established a right shoulder condition causally related
to the accepted September 25, 2014 employment incident.
FACTUAL HISTORY
On January 3, 2015 appellant, then a 56-year-old window clerk/dispatcher, filed a
traumatic injury claim (Form CA-1) alleging that, on September 25, 2014, she injured her right
shoulder while pulling and pushing an all-purpose container (APC) cage in the performance of
duty. She did not stop work. In a January 14, 2015 development letter, OWCP advised appellant
of the deficiencies in her claim. Appellant was provided a questionnaire for her completion
regarding the circumstances of the injury. She was also asked to provide a narrative medical report
from her physician which contained a detailed description of findings and diagnoses, explaining
how the claimed work incident caused or aggravated a medical condition. Appellant was afforded
30 days to submit the requested information.
In a January 3, 2015 statement, appellant provided a description of the September 25, 2014
incident.
The employing establishment controverted the claim in a January 12, 2015 letter. It also
submitted a January 3, 2015 Authorization for Examination and/or Treatment (Form CA-16) for
medical examination of appellant’s rotator cuff tendinosis condition allegedly sustained on
September 25, 2014.
In an October 13, 2014 prescription for physical therapy, Dr. Charles B. Peeples, a Boardcertified internist, diagnosed internal shoulder derangement.
Medical evidence from Dr. Fotios P. Tjoumakaris, a Board-certified orthopedic surgeon,
was also received. In a November 10, 2014 report, he diagnosed right shoulder rotator cuff
tendinosis. In a January 5, 2015 duty status report (Form CA-17), Dr. Tjoumakaris noted that
appellant’s injury occurred while she was moving a cage with circular mail and marriage mail on
September 25, 2014. He diagnosed a right shoulder impingement.
By decision dated February 17, 2015, OWCP denied the claim as fact of injury had not
been established. It noted that appellant had not responded to its January 14, 2015 development
questionnaire to support that the incident occurred in the manner alleged and, thus, the factual
basis of her claim remained unsubstantiated.
On July 17, 2015 appellant requested reconsideration. In a supplemental statement dated
November 23, 2015, she described her September 25, 2014 right shoulder injury, as well as her
previous 2013 injuries.
In a July 29, 2013 report, Dr. Warren K. Churgin, an internist, reported that appellant had
right shoulder pain for over one year with no trauma. An assessment of right shoulder sprain was
provided.

2

In an October 13, 2014 referral form, Dr. Peeples diagnosed an internal right shoulder
derangement and referred appellant to orthopedics.
By report dated November 10, 2014, Dr. Tjoumakaris related that appellant had a threeweek history of increasing severity of pain within her right shoulder and upper arm. He noted that
she had pain in that area for several months or even up to a year. Appellant reported that this
initially happened and was exacerbated while she was working as a postal worker.
Dr. Tjoumakaris noted examination findings and reported that the right shoulder x-rays were
within normal limits. He noted an impression of right shoulder rotator cuff tendinitis. A magnetic
resonance imaging (MRI) scan of the right shoulder was recommended to rule out underlying
rotator cuff tear.
In a November 24, 2014 report, Dr. Tjoumakaris noted MRI scan results and examination
findings. An impression of right shoulder rotator cuff tendinopathy was provided. In his
January 5, 2015 report, Dr. Tjoumakaris provided an impression of right shoulder impingement
syndrome and restricted appellant to light-duty work. A course of physical therapy was ordered.
Additional progress notes dated from April 13, 2015 were received along with work restrictions,
duty status and attending physician’s reports, and requests for physical therapy. Appellant’s
diagnoses were stated as disorder of bursae and tendons in shoulder region, bursitis of right
shoulder, and right shoulder rotator cuff tendinitis. In his July 13, 2015 progress note,
Dr. Tjoumakaris noted that appellant had again recently strained her right shoulder.
Medical evidence pertaining to conditions other than the right shoulder was also received.
This included evidence from Dr. Peeples which referred appellant to physical therapy on
March 30, 2015 for neck pain and on June 4, 2015 for a herniated intervertebral disc.
By decision dated April 27, 2016, OWCP modified the February 17, 2015 decision to
reflect that the September 25, 2014 incident occurred as alleged. However, it affirmed the denial
of the claim as the medical evidence of record was insufficient to support that the diagnosed right
shoulder conditions were causally related to the accepted September 25, 2014 work incident.
OWCP found that the medical evidence provided failed to contain a history of injury consistent
with appellant’s factual statement and was not rationalized to support that the diagnosed right
shoulder conditions were causally related to the September 25, 2014 work incident.
On May 19, 2016 OWCP received a May 10, 2016 request for reconsideration from
counsel.
In a February 3, 2016 report, Dr. Tjoumakaris indicated that he treated appellant from
November 10, 2014 until February 1, 2016 for a right shoulder condition. He noted that, when he
initially saw her on November 10, 2014, she described an injury that occurred to her right shoulder
on September 25, 2014 when she pulled a large cage filled with mail and felt a pulling sensation
in her right shoulder with sudden onset of pain. Dr. Tjoumakaris further noted that appellant had
a past medical history of a prior shoulder condition that occurred on May 2, 2013 while separating
pallets of mail weighing approximately 20 to 25 pounds. At that point, appellant’s shoulder was
painful every time she did any strenuous activity. A second injury of October 3, 2013 occurred
when she put an over-size box in a cage. Dr. Tjoumakaris indicated that the box slipped out of
appellant’s hand and slammed her arm against the cage. He indicated that these previous injuries

3

had resolved by the time she injured her right shoulder in September 2014. Dr. Tjoumakaris noted
appellant’s examination findings and her medical course, including diagnostic testing results. He
reported that she had positive impingement findings on her physical examination, but her rotator
cuff currently maintained adequate strength. Dr. Tjoumakaris concluded his report by opining that
the diagnosed partial thickness rotator tear of appellant’s right shoulder with acute rotator cuff
tendinitis and impingement syndrome was causally related to the September 25, 2014 work-related
incident. He explained that she was doing relatively well and that her previous rotator cuff
symptoms had resolved and when her 2014 work injury exacerbated her underlying rotator cuff
pathology. Additional duty status reports and progress notes from Dr. Tjoumakaris were received.
By decision dated August 16, 2016, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
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 which is alleged to have occurred.7 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.8
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is 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

4

Supra note 2.

5

Joe D. Cameron, 41 ECAB 153 (1989).

6

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

7

Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

8

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); see also P.W., Docket No. 10-2402 (issued August 5, 2011).

4

the nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.9
ANALYSIS
OWCP accepted that the September 25, 2014 incident of pulling and pushing an APC cage
occurred in the performance of duty, as alleged. The issue is whether appellant has established
that the September 25, 2014 employment incident caused or aggravated a right shoulder condition.
The Board finds that she failed to submit sufficient medical evidence to support a right shoulder
condition causally related to the accepted employment incident.10
On October 13, 2014 Dr. Peeples diagnosed an internal shoulder derangement condition.
In separate reports, he referred appellant to orthopedics and physical therapy. Dr. Peeples’ reports,
however, do not constitute probative medical evidence as he failed to provide a history of the
incident or a rationalized opinion regarding the cause of appellant’s condition. Medical opinion
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.11 Medical opinion evidence which is not based on a proper
history of injury and does not offer any opinion regarding the cause of an employee’s condition is
of limited probative value on the issue of causal relationship.12 Therefore, Dr. Peeples’ reports are
of limited probative value.
Dr. Tjoumakaris submitted two narrative reports. In his November 10, 2014 report, he
related that appellant had a three-week history of increasing severity of pain in her right shoulder
and upper arm. Dr. Tjoumakaris noted that she experienced pain in that area for several months
or even up to a year, which was exacerbated while she was working as a postal worker. He
provided an impression of right shoulder rotator cuff tendinitis. This opinion of Dr. Tjoumakaris
is not well rationalized. He seemingly referenced a preexisting condition. Dr. Tjoumakaris failed
to provide any support that appellant’s current condition was caused or aggravated by the
September 25, 2014 employment incident and, did not address why her complaints were not
caused by her preexisting conditions.13 Medical evidence that does not offer an opinion regarding

9

Solomon Polen, 51 ECAB 341 (2000).

10

See Robert Broome, 55 ECAB 339 (2004).

11

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

12
See D.E., Docket No. 17-1874 (issued February 9, 2018); see also R.E., Docket No. 10-0679 (issued
November 16, 2010); K.W., 59 ECAB 271 (2007).
13

A well-rationalized opinion is particularly warranted when there is a history of preexisting condition. R.E.,
Docket No. 14-0868 (issued September 24, 2014); T.M., Docket No. 08-0975 (issued February 6, 2009); Michael S.
Mina, 57 ECAB 379 (2006).

5

the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.14 Thus, Dr. Tjoumakaris’ opinion is of limited probative value.15
In a February 3, 2016 report, Dr. Tjoumakaris indicated that, when he initially saw
appellant on November 10, 2014, she described an injury that occurred to her right shoulder on
September 25, 2014 when she pulled a large cage filled with mail and felt a pulling sensation in
her right shoulder with sudden onset of pain. He noted that she had a past medical history of
previous shoulder condition that occurred on May 2 and October 3, 2013 while at work.
Dr. Tjoumakaris indicated that these previous injuries had resolved by the time appellant injured
her right shoulder in September 2014. He concluded his report by opining that the diagnosed
partial thickness rotator tear of the right shoulder with acute rotator cuff tendinitis and
impingement syndrome were causally related to the September 25, 2014 work-related incident.
Dr. Tjoumakaris explained that appellant’s previous rotator cuff symptoms had resolved and she
was doing relatively well when her 2014 work injury exacerbated her underlying rotator cuff
pathology. However, the opinion of Dr. Tjoumakaris is not well rationalized. Dr. Churgin’s
July 29, 2013 report, which predates the current injury, noted that appellant had right shoulder pain
for over one year with no trauma. This evidence indicates that appellant had a documented
shoulder condition in approximately 2012, prior to the two work-related incidents of May 2 and
October 3, 2013. There is no objective evidence presented to support that her preexisting shoulder
conditions had resolved prior to the September 25, 2014 work incident. While Dr. Tjoumakaris
noted new symptoms, such generalized statements do not establish causal relationship because
they merely repeat appellant’s allegations and are unsupported by adequate medical rationale
explaining how this physical activity on September 25, 2014 actually caused or aggravated the
diagnosed conditions.16 The Board has held that the mere fact that her symptoms arose during a
period of employment or produced symptoms revelatory of an underlying condition does not
establish causal relationship between her condition and her employment factors.17 Thus, the Board
finds that Dr. Tjoumakaris’ report is insufficiently rationalized to establish that appellant’s
condition was caused or aggravated by the accepted employment incident.
In a January 5, 2015 duty status report (Form CA-17), Dr. Tjoumakaris related that
appellant injured her right shoulder on September 25, 2014 while moving a cage full of circular
mail and marriage mail. While he diagnosed a right shoulder impingement, he did not explain
how physiologically the movements involved in the employment incident caused or contributed to
the diagnosed condition. Thus, this report is of limited probative value.18

14
The opinion of a physician supporting causal relationship must rest on a complete factual and medical background
supported by affirmative evidence, address the specific factual and medical evidence of record, and provide medical
rationale explaining the relationship between the diagnosed condition and the established incident or factor of
employment. C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).
15

P.O., Docket No. 14-1675 (issued December 3, 2015).

16

See K.W., Docket No. 10-0098 (issued September 10, 2010).

17

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

18
See L.M., Docket No. 14-0973 (issued August 25, 2014); R.G., Docket No. 14-0113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-0548 (issued November 16, 2012).

6

Appellant also submitted copies of physical therapy notes. However, reports from physical
therapists do not rise to the level of competent medical opinion evidence under FECA as physical
therapists are not physicians under FECA.19
Accordingly, the medical evidence of record does not contain a well-rationalized medical
opinion establishing that the diagnosed right shoulder conditions were causally related to the
accepted September 25, 2014 employment incident. OWCP advised appellant of the type of
medical evidence necessary to establish her claim. Appellant failed to submit appropriate medical
documentation in response to OWCP’s request.20
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relationship.21 An award of compensation may
not be based on surmise, conjecture, speculation, or upon appellant’s own belief that there was a
causal relationship between his or her condition and his or her employment.22 Causal relationship
must be based on rationalized medical opinion evidence.23 As appellant has not submitted a
rationalized medical opinion supporting that her right shoulder conditions were causally related to
the accepted September 25, 2014 employment incident, she has not met her burden of proof to
establish an employment-related traumatic injury.
On appeal counsel contends that appellant had provided prima facie factual and medical
evidence which established that she suffered a traumatic injury on September 25, 2014 while in
the course of her employment. OWCP gave proper consideration to all evidence she submitted.
As previously noted causal relationship is a medical issue and the medical evidence generally
required to establish causal relationship is rationalized medical opinion evidence. Appellant has
not submitted sufficiently-rationalized medical evidence in this case and, therefore, has not met
her burden of proof.
The record contains a Form CA-16 which lists the date of injury as September 25, 2014
and which indicates a rotator cuff tendinosis condition. The Board notes that where an employing
establishment properly executes a Form CA-16 which authorizes medical treatment as a result of
an employee’s claim for an employment-related injury, the Form CA-16 creates a contractual
obligation, which does not involve the employee directly, to pay for the cost of the examination or
19

V.W., Docket No. 16-1444 (issued March 14, 2017) (where the Board found that physical therapy reports do not
constitute competent medical evidence because physical therapists are not considered physicians as defined under
FECA). See 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 opinion under FECA); 5 U.S.C. § 8101(2) (this
subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law).
20
See D.B., Docket No. 16-1219 (issued November 8, 2016); see also T.H., Docket No. 15-0772 (issued
May 12, 2016).
21

L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB
559 (2006).
22

Patricia J. Glenn, 53 ECAB 159-60 (2001).

23

M.E., Docket No. 14-1064 (issued September 29, 2014).

7

treatment regardless of the action taken on the claim.24 The period for which treatment is
authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated
earlier by OWCP.25
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 established a right shoulder condition causally
related to the accepted September 25, 2014 employment incident.26
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated August 16, 2016 is affirmed.
Issued: May 3, 2018
Washington, DC

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

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

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

24

See Tracy P. Spillane, 54 ECAB 608 (2003).

25

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

26

See 20 C.F.R. § 10.300(c).

8