United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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G.S., Appellant
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and
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DEPARTMENT OF VETERANS AFFAIRS,
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VETERANS HEALTH ADMINISTRTION,
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Salem, VA, Employer
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___________________________________________ )
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-521
Issued: July 20, 2012

Case Submitted on the Record

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

JURISDICTION
On January 10, 2012 appellant’s representative filed a timely appeal from a December 1,
2011 Office of Workers’ Compensation Programs’ (OWCP) schedule award decision. 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 appellant’s claim for a schedule award.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has an
impairment caused by her accepted employment injuries that would entitle her to a schedule
award.
FACTUAL HISTORY
On March 9, 2006 appellant, then a 42-year-old food service worker, sustained a low
back injury in the performance of duty. She stopped work on that date. On April 21, 2006
1

5 U.S.C. § 8101 et seq.

OWCP accepted the claim for lumbago, sprain of lumbosacral joint ligament and lumbosacral
spondylosis without myelopathy. It paid wage-loss compensation benefits.
On October 29, 2009 appellant filed a claim for a schedule award. In a September 10,
2009 report, Dr. Stuart Goodman, a Board-certified neurologist, noted her history of injury and
treatment. On neurological examination, he noted positive straight leg raising on the left side
with decreased sensation in the left L5 dermatome. Dr. Goodman explained that appellant’s
motor examination revealed strength to be essentially equal and normal throughout. He advised
that reflexes were “1+/4” with plantar response flexor. Dr. Goodman found that appellant’s
sensory examination revealed a slight decrease in the left lumbar L5 dermatome but otherwise
was intact to vibration, touch, pinprick and position testing. He explained that the cerebellar
examination revealed normal finger-to-nose and heel-to-shin testing and her Romberg was
negative. Dr. Goodman referred to the American Medical Association, Guides to the Evaluation
of Permanent Impairment (6th ed. 2008) (A.M.A., Guides) Table 17.4, Lumbar Spine Regional
Grid and finds that appellant was class 1.2 He referred to Table 17.5, Adjustment Grid and
determined that she qualified for a grade modifier 1.3 Dr. Goodman referred to Table 17.6,
Functional History adjustment and utilized a grade modifier 2.4 He utilized Table 17.7, Physical
Examination adjustment and found a grade modifier 2.5 Dr. Goodman opined that appellant had
six percent permanent impairment of the left lower extremity.
In an April 28, 2010 report, OWCP’s medical adviser disagreed with Dr. Goodman’s
impairment rating as it was based on the section of the A.M.A., Guides pertaining to whole
person or spinal impairments, which was inappropriate for the evaluation of lower extremity
radiculopathy impairments. Regarding the spine, he noted that the approach to the evaluation of
spinal nerve impairment (such as radiculopathy affecting the extremities) was consistent with the
A.M.A., Guides and was discussed in the July/August issue of The Guides Newsletter.6 The
medical adviser explained that The Guides Newsletter was an official publication of the
American Medical Association and states, “The Guides Newsletter provides updates,
authoritative guidance, and AMA interpretations and rationales for the use of the A.M.A.,
Guides. He indicated that the A.M.A., Guides did not provide a separate approach to rating
spinal nerve impairments and that an approach consistent with values assigned for spinal
impairment in prior editions and the methodology applied in the sixth edition was provided. The
medical adviser explained that “[t]he proposed new tables provided values for rating spinal nerve
impairment by means of the process defined for the sixth edition in rating peripheral nerve
injuries. He noted that Dr. Goodman found a slight decrease in sensation to the L5 dermatome,
“yet it is intact to touch and pinprick” and there was no magnetic resonance imaging (MRI) scan
evidence of L5 nerve root impingement. The medical adviser concluded that the sensory deficits
2

A.M.A., Guides 570.

3

Id. at 575.

4

Id. at 576.

5

Id.

6

Rating Spinal Nerve Extremity Impairment Using the sixth edition, The Guides Newsletter (A.M.A., Chicago,
IL), July/August 2009.

2

provided by Dr. Goodman were questionable and there were no reliable, consistently
documented sensory deficits to qualify as lumbar radiculopathy.
He explained that
Dr. Goodman’s report indicated equal strength and there was no evidence of motor weakness.
The medical adviser opined that appellant did not warrant an impairment rating and noted that
the maximum rating would be a one percent leg rating if the reported findings were ratable.
In a June 7, 2010 decision, OWCP denied appellant’s claim for a schedule award. It
found that the medical evidence of record did not support a permanent impairment to a scheduled
member or function of the body. On June 17, 2010 appellant’s representative requested a
telephonic hearing.
On June 9, 2010 OWCP referred appellant to Dr. William C. Andrews, a Board-certified
orthopedic surgeon, for a second opinion. In a June 23, 2010 report, Dr. Andrews noted
appellant’s history of injury and examined her. He noted that she had stiffness and paravertebral
lumbar muscle spasm and positive straight leg raising on the left. Dr. Andrews further noted that
appellant had no motor deficit in the lower extremities; however, she complained of intermittent
numbness. He determined that her sensation was intact and diagnosed lumbosacral strain with
radicular left leg pain.
In a September 14, 2010 decision, an OWCP hearing representative found the case was
not in posture for hearing. He vacated the June 7, 2010 decision and remanded the case for
further development of the medical evidence to determine whether appellant sustained any
impairment due to her injury. The hearing representative noted that Dr. Andrews found intact
sensation and explained that clarification was needed regarding the objective nature of the
radiculopathy and whether appellant had permanent partial impairment.
By letters dated November 29, 2010 and February 7, 2011, OWCP referred appellant for
a follow-up examination with Dr. Andrews. In a February 23, 2011 report, Dr. Andrews
examined appellant and noted that she had definite numbness in the L5 distribution on the left
side consistent with a left lower extremity radiculopathy. He further advised that she also had
leg symptoms, a positive straight leg raise and a positive Lasegue sign. Dr. Andrews opined that
appellant did not demonstrate a definite motor deficit upon examination, and that she had full
range of motion of the upper and lower extremities.
In a July 5, 2011 report, the medical adviser noted appellant’s history of injury and
treatment. He referred to page 576 of the A.M.A., Guides and advised that a diagnosis of
radiculopathy required clinical findings including specific dermatomal distribution of pain,
numbness and/or paresthesias. Furthermore, subjective complaints of sensory changes were
more difficult to assess; therefore, these complaints should be consistent and supported by other
findings of radiculopathy. The medical adviser noted that the A.M.A., Guides also indicated that
there may be associated weakness and loss of reflex and a root tension sign was usually positive.
He also advised that the A.M.A., Guides noted that the identification of a condition that may be
associated with radiculopathy (such as a herniated disc) on an imaging study was not sufficient
to make a diagnosis of radiculopathy; clinical findings must correlate with the radiographic
findings in order to be considered. The medical adviser noted that to confirm a diagnosis of
radiculopathy, the A.M.A., Guides required clinical findings including dermatomal distribution
of pain, numbness and/or paresthesias. He advised that MRI scan findings of the lumbar spine

3

did not reveal any evidence of disc herniation or stenosis impinging upon the left nerve root.
Furthermore, the medical adviser indicated that, despite findings consistent with mild foraminal
narrowing possible in the L5-S1 level, this alone would not be dispositive of lumbar
radiculopathy. He noted that the A.M.A., Guides also required examination findings. The
medical adviser opined that, absent other corroborating findings, there did not appear to be
sufficient evidence to support a verifiable lumbar radiculopathy. He indicated that there were no
consistently documented findings of loss of sensation to light touch in the left lower extremity
that were reliable for rating purposes. The medical adviser explained that the medical records
consistently documented intact sensation to light touch. He opined that there were no sensory or
motor deficits related to a verifiable lumbar radiculopathy and thus no ratable impairment to
either lower extremity.
By decision dated July 21, 2011, OWCP denied appellant’s claim for a schedule award.
It found that there was no evidence of permanent impairment.
On August 1, 2011 appellant’s representative requested a telephonic hearing, which was
held on October 17, 2011. During the hearing, he argued that appellant had numbness and
positive straight raise and Lasègue’s tests. Appellant’s representative also questioned the
validity of the medical adviser’s report.
By decision dated December 1, 2011, OWCP’s hearing representative affirmed the
July 21, 2011 decision.
LEGAL PRECEDENT
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.7
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.8 FECA,
however, does not specify the manner by which the percentage loss of a member, function, or
organ shall be determined. To ensure consistent results and equal justice for all claimants under
the law, good administrative practice requires the use of uniform standards applicable to all
claimants.9 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.10 Effective May 1, 2009, schedule awards
are determined in accordance with the sixth edition of the A.M.A., Guides.11
7

Veronica Williams, 56 ECAB 367 (2005).

8

5 U.S.C. § 8107.

9

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

10

20 C.F.R. § 10.404.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010); J.B., Docket No. 09-2191 (issued May 14, 2010).

4

Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.12 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.13
For peripheral nerve impairments to the upper or lower extremities resulting from spinal
injuries, OWCP procedures indicate that The Guides Newsletter Rating Spinal Nerve Extremity
Impairment Using the sixth edition (July/August 2009) is to be applied.14
ANALYSIS
The evidence of record is insufficient to establish that appellant is entitled to a schedule
award in accordance with the sixth edition of the A.M.A., Guides.
OWCP accepted appellant’s claim for claim for lumbago. It expanded the claim to
include sprain of lumbosacral joint ligament and lumbosacral spondylosis without myelopathy
Appellant claimed a schedule award on October 29, 2009. However, she did not submit
any evidence from a physician finding that she had permanent impairment of a schedule body
member, caused or aggravated by her accepted conditions and which followed the A.M.A.,
Guides in rating permanent impairment. For example, the record contains a September 10, 2009
report from Dr. Goodman, who opined that appellant had a six percent impairment of the left
lower extremity. However, he incorrectly utilized the section of the A.M.A., Guides pertaining
to spinal impairments instead of the July/August issue of The Guides Newsletter.15 As noted
above, for peripheral nerve impairments to the upper or lower extremities resulting from spinal
injuries, OWCP procedures indicate that The Guides Newsletter Rating Spinal Nerve Extremity
Impairment Using the sixth edition (July/August 2009) is to be applied.16 Dr. Goodman did not
adequately explain how he used the A.M.A., Guides to rate impairment or rate impairment to a
scheduled member pursuant to the A.M.A., Guides. Furthermore, with regard to radiculopathy,
he did not provide any objective evidence of upper or lower extremity radiculopathy. The

12

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

13

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

14

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual,
Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is
included as Exhibit 4.
15

Rating Spinal Nerve Extremity Impairment using the sixth edition, The Guides Newsletter (A.M.A., Chicago,
IL), July/August 2009.
16

See supra note 14.

5

medical adviser explained that peripheral neuropathy impairment tables could not be used if
there was no objective radiculopathy. His opinion is of diminished probative value.17
OWCP subsequently referred appellant to Dr. Andrews for a second opinion
examination. In a June 23, 2010 report, Dr. Andrews noted that appellant had no motor deficits
in the lower extremity; however, she complained of intermittent numbness. He determined that
her sensation was intact and diagnosed lumbosacral strain with radicular left leg pain. In a
February 23, 2011 supplemental report, Dr. Andrews provided findings to include definite
numbness in the L5 distribution on the left side consistent with a left lower extremity
radiculopathy. However, he opined that appellant did not show a definite motor deficit on
examination, and that she had full range of motion of the upper and lower extremities.
In a July 5, 2011 report, OWCP’s medical adviser noted appellant’s history of injury and
treatment and reviewed Dr. Andrews’ reports. He referred to page 576 of the A.M.A., Guides
and explained that a radiculopathy diagnosis required clinical findings including specific
dermatomal distribution of pain, numbness and/or paresthesias. This provision cautioned that
subjective complaints of sensory changes were more difficult to assess; “therefore, these
complaints should be consistent and supported by other findings of radiculopathy.” The medical
adviser advised that to confirm a diagnosis of radiculopathy, the A.M.A., Guides required
clinical findings including dermatomal distribution of pain, numbness and/or paresthesias. He
explained that there was no evidence of disc herniation or stenosis impinging upon the left nerve
root and mild foraminal narrowing possible in the L5-S1 level, would not be dispositive of
lumbar radiculopathy. The medical adviser noted that the A.M.A., Guides also required
examination findings and there was not sufficient evidence to support a verifiable lumbar
radiculopathy as there were no consistently documented findings of loss of sensation to light
touch in the left lower extremity that were reliable for rating purposes. He stated that the
medical evidence supported intact sensation to light touch. The medical adviser opined that
there were no sensory or motor deficits related to a verifiable lumbar radiculopathy and thus no
ratable impairment to either lower extremity. The Board finds that he properly applied the
A.M.A., Guides in calculating appellant’s permanent impairment. As the July 5, 2011 report of
the medical adviser provides the only evaluation which conforms to the A.M.A., Guides, it
constitutes the weight of the medical evidence and establishes that appellant has no ratable
impairment to either lower extremity.
Appellant did not submit any other medical evidence to support that she was entitled to a
schedule award, under the sixth edition of the A.M.A., Guides, for a scheduled member of the
body under FECA. Accordingly, the Board finds that appellant has not established entitlement to
a schedule award.18
17

See J.G., Docket No. 09-1128 (issued December 7, 2009) (an attending physician’s report is of little probative
value where the A.M.A., Guides are not properly followed).
18

Although appellant’s counsel, before OWCP, questioned the validity of the medical adviser’s July 5, 2011
report, the Board notes that OWCP procedures contemplate that the medical adviser provide a reasoned opinion
regarding impairment in schedule award claims. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule
Awards and Permanent Disability Claims, Chapter 2.808.6(d) (January 2010). As explained, the medical adviser
explained the reasons why appellant had no ratable leg impairment. Regarding counsel’s argument of bias by the
medical adviser, appellant submitted no evidence showing any bias by the medical adviser.

6

Appellant may request a schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not establish that she sustained permanent impairment
to her lower extremities.
ORDER
IT IS HEREBY ORDERED THAT the December 1, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 20, 2012
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, San Diego, CA,
Employer
__________________________________________

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

Docket No. 15-0952
Issued: July 23, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 19, 2015 appellant filed a timely appeal from a February 19, 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.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained
bilateral knee injuries on December 19, 2014 while in the performance of duty.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following issuance of OWCP’s February 19, 2015 decision, OWCP received new
evidence. The Board lacks jurisdiction to review evidence which was not before OWCP at the time it issued its final
decision. See 20 C.F.R. § 501.2(c)(1); D.B., Docket No. 12-1653 (issued March 26, 2013).

On appeal, appellant describes her symptoms, medical treatment, and work duties that
she believed caused her claimed injury in response to OWCP’s request for additional
information.
FACTUAL HISTORY
On January 7, 2015 appellant, then a 57-year-old mail handler equipment operator, filed a
traumatic injury claim alleging that on December 19, 2014 she strained both knees at work. She
claimed that driving a tow vehicle put pressure on her knees.
In a January 8, 2015 letter, the employing establishment controverted the claim,
contending that the claim likely appeared to be an occupational disease claim based on
appellant’s description of injury. It noted that no medical evidence was submitted with the
claim.
By letter dated January 14, 2015, OWCP advised appellant of the deficiencies in her
claim and requested that she submit factual and medical evidence. Appellant was afforded 30
days to submit the requested evidence. OWCP also requested that the employing establishment
submit medical evidence if she was treated at its medical facility.
In medical reports dated January 8, 2015, Dr. Cynthia A. Kline-Purviance, an attending
physician Board-certified in emergency medicine, obtained a history that on December 19, 2014
appellant was working as a mail handler and, after stepping on pedals while using a tow vehicle,
she developed a limp. She was unable to continue to perform overtime work using the tow
vehicle, but performed work in another area. On her way home, appellant had nerve pain from
the back of her calf to her thigh. The pressure point around her knees was painful. Dr. KlinePurviance noted that appellant complained of left leg pain from repeatedly pushing on pedals of
the tow vehicle at work “over course of some days.” She provided a history of her medical
treatment, family, and social background. Dr. Kline-Purviance reported findings on examination
and diagnosed left thigh sprain, left knee and leg sprain and strain, and cumulative trauma from
repetitive motion. She advised that her examination findings and diagnoses were consistent with
the injury reported by appellant. Dr. Kline-Purviance concluded that the reported injury more
likely than not caused the current symptoms and findings. In reports dated January 13 and 21,
and February 4, 2015, she reiterated that her diagnoses of left thigh sprain, left knee and leg
sprain and strain, and cumulative trauma from repetitive motion. Dr. Kline-Purviance diagnosed
bilateral knee degenerative joint disease. She released appellant to return to light-duty work with
restrictions on each examination day.
Reports dated January 13 to 21, 2015 from appellant’s physical therapist, Marsha FunkMyers, addressed the treatment of her left knee sprain and strain.
An unsigned and undated duty status report noted appellant’s usual physical work
requirements.
In a February 19, 2015 decision, OWCP denied appellant’s traumatic injury claim,
finding that she failed to submit any factual evidence to establish that the December 19, 2014

2

incident occurred as alleged. It noted that she had not responded to the request for additional
factual information.
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
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which she claims compensation is causally related to
that employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.6
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.7
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.8 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.9 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.10
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she
sustained bilateral knee injuries on December 19, 2014 while in the performance of duty.
Appellant did not submit a sufficiently detailed description of the employment incident or
respond to the questions sent to her by OWCP. She alleged that she strained both knees as a
result of stepping on pedals while driving a tow vehicle on December 19, 2014. By letter dated
January 14, 2015, OWCP informed appellant of the deficiencies of her claim and the need to
3

5 U.S.C. §§ 8101-8193.

4

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

5

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

7

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

8

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
9

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

10

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

3

submit additional information regarding the alleged incident and medical evidence in support of
her claim. Appellant did not timely submit the requested factual evidence. The need for factual
evidence is especially important since it is unclear whether her claim should be treated as a
traumatic or occupational disease claim, as noted by OWCP. In reports dated January 8, 2015,
Dr. Kline-Purviance provided a contradictory history of injury as she initially reported that on
December 19, 2014 appellant developed a limp after stepping on pedals while using a tow
vehicle and subsequently reported her claim that she had left leg pain from repeatedly pushing on
pedals of a tow vehicle “over course of some days.”
A traumatic injury refers to injury caused by a specific event or incident or series of
incidents occurring within a single workday or work shift whereas an occupational disease refers
to an injury produced by employment factors which occur or are present over a period longer
than a single workday or work shift.11 The Board finds that appellant has not established that the
December 19, 2014 incident occurred at work, as alleged.12 As such, it is not necessary to
address the medical evidence.13
On appeal, appellant described her symptoms, medical treatment, and work duties that
she believed caused her claimed injury, as a response to OWCP’s earlier request for additional
information. However, as the Board’s review is limited to evidence in the case record at the time
OWCP made its decision over which the Board has jurisdiction, the Board cannot review
evidence submitted for the first time on appeal.14
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish bilateral
knee injuries on December 19, 2014 while in the performance of duty.

11

20 C.F.R. § 10.5(ee), (q); B.B., Docket No. 13-256 (issued August 13, 2013).

12

T.M., Docket No. 13-1997 (issued February 11, 2014).

13

Alvin V. Gadd, supra note 6.

14

See supra note 2.

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ORDER
IT IS HEREBY ORDERED THAT the February 19, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 23, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, CHICAGO CENTER
CARRIER ANNEX, Chicago, IL, Employer
__________________________________________

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

Docket No. 21-0670
Issued: January 27, 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 March 15, 2021 appellant filed a timely appeal from a February 17, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury in the
performance of duty on November 9, 2020, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 17, 2021 decision, OWCP received additional evidence and
appellant submitted additional evidence on appeal. 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.

FACTUAL HISTORY
On December 21, 2020 appellant, then a 57-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on November 9, 2020 she sustained a sprain/fracture to her right
knee when picking up military bags while in the performance of duty. On the reverse side of the
claim form the employing establishment acknowledged that appellant was injured while in the
performance of duty, but controverted her claim, noting that she had been working with a limp for
a while and that her injury was not caused by her work. Appellant stopped work on November 10,
2020 and returned to work on November 15, 2020.
A December 15, 2020 magnetic resonance imaging (MRI) scan of the right knee revealed
medial tibial plateau subchondral insufficiency fracture, chondromalacia, osteoarthritis, medial
meniscal intrasubstance degeneration and probable tear at the posterior horn root ligament
attachment, small joint effusion with synovial thickening and partially ruptured Baker’s cyst, and
mild Iliotibial (IT) band and patellar tendon-lateral femoral condyle friction syndrome.
In a December 17, 2020 statement, appellant asserted that she was injured on November 9,
2020 when, while working on a machine with a coworker, she tried to pick up a military bag. She
explained that she heard and felt a pop in her right knee, as well as a gushing sensation. Appellant
dropped the bag and had to sit for a period of time before she was able to stand back up and go
home. She indicated that when she woke up the next day, she was unable to walk for the next
three days as her pain was too unbearable. Appellant noted that she f irst saw her doctor on
November 12, 2020 and then ended up in an emergency room two days later. She explained that
she had to wait three weeks for an MRI scan because of the COVID-19 pandemic. Appellant
asserted that when she returned to work on November 15, 2020, she notified her supervisor of her
injury. She indicated that her supervisor temporarily reassigned her to a rewrap area. Appellant
explained that she did not report her injury sooner because she only received her MRI scan findings
on December 15, 2020, which showed that she sustained a fracture and a small tear in her right
ligament.
In a December 19, 2020 letter, appellant’s supervisor, L.H., noted that on or around
November 10, 2020 appellant came to work and reported that her leg was hurting and that she
requested to be temporarily placed on a different assignment. She noted that she had assigned her
to a rewrap area. L.H. indicated that appellant missed a few days of work and returned, stating
that she needed further medical attention from her physician and that she needed to be back in the
rewrap area to work. She notified appellant that she needed to provide proper documentation from
her doctor to be excused from her normal duties. L.H. noted that on December 17, 2020 appellant
notified her for the first time that she wanted to file an accident report, stating that her leg problem
was due to a work-related injury. She noted that since appellant was placed on a new assignment,
she always had a severe walking impairment, which made her body twist while walkin g. L.H.
contended that appellant had more than enough time to report that her injury was work related, but
did not. She asserted her belief that her pain was from a preexisting condition, not a work-related
injury.
In a December 22, 2020 medical report, Dr. Brian Forsythe, a Board-certified orthopedic
surgeon, noted that appellant’s injury occurred at work on November 9, 2020 while lifting a bag
full of mail and packages when she felt a pop and experienced pain in her right knee. He reviewed

2

the December 15, 2020 MRI scan of the right knee and diagnosed an insufficiency fracture and a
medial meniscus tear of the right knee.
In a January 14, 2021 development letter, OWCP advised appellant that additional factual
and medical evidence was needed in support of her claim and provided a questionnaire for her
completion. OWCP afforded appellant 30 days to respond.
In a December 18, 2020 letter, Dr. Suwon Nopachai, a Board-certified internist, noted that
appellant first contacted her on November 11, 2020 regarding her November 9, 2020 work-related
knee injury. She noted that appellant was subsequently seen in her clinic on November 12, 2020
and her MRI scan of the right knee demonstrated a fracture and other problems that needed to be
addressed by an orthopedic surgeon.
In a December 22, 2020 duty status report (Form CA-17), Dr. Forsythe diagnosed a right
medial tibial plateau insufficiency fracture and a right medial meniscus tear, and provided work
restrictions. In a January 6, 2021 medical report, Dr. Forsythe noted that appellant’s date of injury
was November 9, 2020 and diagnosed a stress fracture of tibia.
Dr. Forsythe, in a January 19, 2021 medical report, diagnosed an insufficiency fracture of
the right knee and noted that appellant’s knee was improving. In medical notes of even date, he
diagnosed a right knee medial plateau insufficiency fracture and indicated that appellant could
return to work with restrictions. In a Form CA-17 of even date, Dr. Forsythe provided work
restrictions.
Appellant accepted a modified job offer on January 28, 2021 performing limited duty as a
mail handler.
By decision dated February 17, 2021, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish that the November 9, 2020 incident
occurred, as alleged. It noted that she failed to respond to the questionnaire that was sent with the
January 14, 2021 development letter. OWCP concluded, therefore, that the requirements had not
been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the

3

Supra note 1.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

3

employment injury. 5 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. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. The second component is whether the employment
incident caused a personal injury and can be established only by medical evidence. 7
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.8 The employee has not met his or her burden of proof of establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity
of the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast serious doubt on an employee ’s statements
in determining whether a case has been established. An employee ’s statement alleging that an
injury occurred at a given time and in a given manner is of great probative value and will stand
unless refuted by strong or persuasive evidence. 9
ANALYSIS
The Board finds that appellant has met her burden of proof to establish a traumatic incident
in the performance of duty on November 9, 2020, as alleged.
On her Form CA-1 and subsequent December 17, 2020 narrative statement, appellant
consistently reported that on November 9, 2020 she sustained a right knee injury due to picking
up military bags while in the performance of duty. In a December 22, 2020 medical report,
Dr. Forsythe noted that appellant alleged that she had sustained a work injury on November 9,
2020 while lifting a bag full of mail resulting in a pop and subsequent pain in her right knee. On
January 6, 2021 he diagnosed a stress fracture of tibia and attributed her condition to the alleged
November 9, 2019 employment incident. Likewise, Dr. Nopachai, in her December 18, 2020
report, noted that appellant first contacted her on November 11, 2020 and reported a November 9,
2020 work-related knee injury. As noted, an employee’s statement alleging that an injury occurred
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

See J.M., Docket No. 19-1024 (issued October 18, 2019); M.F., Docket No. 18-1162 (issued April 9, 2019).

9

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

4

at a given time and place, and in a given manner is of great probative value and will stand unless
refuted by strong or persuasive evidence.10 Moreover, on the reverse side of the claim form the
employing establishment acknowledged that appellant was injured while in the performance of
duty. In a December 19, 2020 letter, L.H., appellant’s supervisor, indicated that appellant had
contacted her the day following the alleged November 9, 2020 employment incident and reported
that she had injured her leg. For these reasons, the Board finds that this evidence of record is
sufficient to establish that an employment incident occurred on November 9, 2020 as alleged.11
Appellant has, thus, established the factual component of fact of injury. 12
As appellant has established that the November 9, 2020 employment incident factually
occurred as alleged, the question becomes whether the incident caused an injury. 13 Because
OWCP found that she had not established fact of injury, it did not evaluate the medical evidence,
and the case must, therefore, be remanded for consideration of the medical evidence of record. 14
After this and other such further development as deemed necessary, OWCP shall issue a de novo
decision addressing whether appellant has met her burden of proof to establish an injury causally
related to the accepted November 9, 2020 employment incident.
CONCLUSION
The Board finds that appellant has met her burden of proof to establish a traumatic incident
in the performance of duty on November 9, 2020, as alleged. The Board further finds that this
case is not in posture for decision regarding whether appellant has established an injury causally
related to the accepted November 9, 2020 employment incident.

10

Id.

11

See L.T., Docket No. 20-1499 (issued August 18, 2021); C.R., Docket No. 20-1147 (issued January 5, 2021).

12

Id.

13

See L.O., Docket No. 20-0280 (issued October 1, 2021); M.C., Docket No. 18-1278 (issued March 7, 2019); D.B.,
supra note 9.
14

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the February 17, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: January 27, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.B., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE, OFFICE
OF FIELD OPERATIONS, Philadelphia, PA,
Employer
__________________________________________

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

Docket No. 19-0221
Issued: July 15, 2019

Case Submitted on the Record

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

JURISDICTION
On November 8, 2018 appellant, through counsel, filed a timely appeal from a
September 21, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish total
disability from work commencing October 15, 2017 causally related to her accepted August 9,
2017 employment injuries; and (2) whether appellant has met her burden of proof to establish that
acceptance of her claim should be expanded to include left lateral epicondylitis causally related to
the accepted August 9, 2017 employment injury.
FACTUAL HISTORY
On August 9, 2017 appellant, then a 40-year-old consumer safety inspector, filed a
traumatic injury claim (Form CA-1) alleging on that date that she fell down stairs injuring her left
elbow and left leg while in the performance of duty.
On August 9, 2017 appellant sought treatment at the emergency room from Rebecca
Broadaway, a physician assistant. On August 20, 2017 the employing establishment provided her
with an authorization for examination and/or treatment (Form CA-16). Dr. William Rohan, a
Board-certified internist, completed the Form CA-16 on August 29, 2017 and diagnosed left arm
pain. He indicated by checking a box marked “yes” that he believed that appellant’s diagnosed
condition was due to her employment injury. Dr. Rohan found that she was totally disabled from
work from August 29 through September 7, 2017.
In a September 7, 2017 note, Dr. Thomas E. Varney, a Board-certified orthopedic surgeon,
reported that appellant had fallen down the stairs onto her left elbow on August 9, 2017. He also
noted that her work duties had changed such that she was required to repetitively lift carcasses
with her left hand to perform inspections. Dr. Varney diagnosed left elbow pain. He opined that
appellant’s left elbow pain was consistent with lateral epicondylitis. Dr. Varney noted that he was
not certain whether her left elbow condition was due to her work duties or to her August 9, 2017
fall. He indicated that appellant could return to work on September 11, 2017 without lifting with
her left upper extremity.
On September 8, 2017 Dr. Varney completed a form report and noted that appellant had
fallen down stairs while working and diagnosed left elbow pain. He also indicated by checking a
box marked “yes” that he believed that her diagnosed condition was due to her employment injury.
Dr. Varney also completed a duty status report (Form CA-17) on September 20, 2017 diagnosing
left elbow pain and provided appellant’s light-duty work restrictions.
In an October 19, 2017 note, Dr. Varney diagnosed lateral epicondylitis of the left elbow.
He noted that appellant had stopped work as the employing establishment had not provided lightduty work in accordance with his ongoing restrictions. Dr. Varney also completed a Form CA-17
on October 19, 2017 diagnosing lateral epicondylitis and providing light-duty work restrictions.

2

Beginning on October 27, 2017 appellant filed claims for compensation for leave without
pay (Form CA-7) for the period October 15 through December 19, 2017.3
On November 13, 2017 OWCP accepted appellant’s claim for left elbow contusion and left
elbow abrasion.
By development letter dated November 13, 2017, OWCP noted that when appellant’s claim
was first received it appeared to be a minor injury that resulted in minimal or no lost time from
work. Based on this criteria, it had administratively approved payment of a limited amount of
medical expenses. OWCP advised appellant of the deficiencies of her claim. It requested
additional factual and medical evidence from her and provided a questionnaire for her completion.
OWCP afforded appellant 30 days to respond.
In a separate letter dated November 13, 2017, OWCP notified appellant that her claim for
disability compensation was not payable as she had not submitted medical evidence establishing
that her disability from work was due to her accepted conditions of left elbow contusion and left
elbow abrasion rather than to the nonwork-related left elbow lateral epicondylitis.
In a December 3, 2017 note, the employing establishment reported that there had been no
light-duty work available for appellant.
In a December 19, 2017 note, Dr. Varney diagnosed left lateral epicondylitis and found
that appellant could return to full-duty work on December 20, 2017. On December 20, 2017
appellant returned to full-time regular duty at the employing establishment.
In a letter dated January 8, 2018, appellant responded to OWCP’s November 13, 2017
factual development questionnaire and denied having any similar injury to her left elbow prior to
August 9, 2017.
By decision dated January 25, 2018, OWCP denied appellant’s claim for left epicondylitis,
finding that the medical evidence did not establish causal relationship between her diagnosed
condition and her August 9, 2017 employment injury.
By separate decision dated January 25, 2018, OWCP denied appellant’s claim for disability
for the period October 15 through December 19, 2017 due to her accepted August 9, 2017
employment injuries.
On January 25, 2018 appellant submitted a November 30, 2017 note from Dr. Varney. At
that time, Dr. Varney diagnosed lateral epicondylitis left elbow and continued to find that she was
partially disabled and to provide work restrictions.
On February 21, 2018 appellant, through counsel, requested an oral hearing, in the form of
a telephonic hearing, with an OWCP hearing representative from both of the January 25, 2018
OWCP decisions. In a narrative statement dated July 5, 2018, appellant reported on August 8,
3

These forms indicated that appellant also worked part time as a supermarket cashier on October 20, 21, 27, and
28, 2017 as well as November 3, 4, 10, 11, 17, and 18, 2017. She also worked in this position on December 1 and
2, 2017.

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2017 she fell down the stairs at work landing on her left elbow and both buttocks. She again
reported that she was able to work until August 8, 2017 and had not received any previous
diagnosis of left lateral epicondylitis.
On July 31, 2018 appellant testified at a telephonic hearing before an OWCP hearing
representative. She described the August 9, 2017 employment incident during which she fell down
three or four steps at the employing establishment landing on her left elbow. Appellant asserted
that she had no left elbow pain prior to her fall on August 9, 2017. She noted that she worked at
the employing establishment following the August 9, 2017 fall from August 10 through 21, 2017.
Appellant stopped work on August 22, 2017 and returned on December 20, 2017. The employing
establishment then transferred her to Nevada.
On August 1, 2018 OWCP accepted the additional condition of contusion of the left thigh
as causally related to appellant’s August 9, 2017 employment injury. In a letter dated August 14,
2018, it noted that it had initially created two separate files for her August 9, 2017 injuries, but had
then transferred all the documents from OWCP File No. xxxxxx300 into the current claim file,
OWCP Filed No. xxxxxx432, and deleted the former file.
By decision dated September 21, 2018, OWCP’s hearing representative found that
appellant had not met her burden of proof to establish that her disability for the period October 15
through December 19, 2017 was causally related to her accepted employment injuries. She further
found that appellant had not met her burden of proof to establish left epicondylitis causally related
to her accepted August 9, 2017 employment injury.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 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.5
Whether a particular injury causes an employee disability from employment and the
duration of that disability are medical issues which must resolved by a preponderance of the
reliable, probative, and substantial medical evidence.6 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled from work.
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury. Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time

4

Supra note 2.

5

V.H., Docket No. 18-1282 (issued April 2, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
6

V.H, id.; Edward H. Horton, 41 ECAB 301 (1989).

4

of injury, has no disability as that term is used in FECA.7 Furthermore, whether a particular injury
causes an employee to be disabled from employment and the duration of that disability are medical
issues which must be proven by a preponderance of the reliable, probative, and substantial medical
evidence.8 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 their disability and
entitlement to compensation.9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish total disability
from work commencing October 15, 2017 causally related to her accepted August 9, 2017
employment injuries.
Following her August 9, 2017 employment injuries of left elbow contusion, left elbow
abrasion, and contusion of the left thigh, appellant stopped work on August 22, 2017 and returned
to full-duty work on December 20, 2017. She filed claims for compensation for the period
October 15 through December 19, 2017.
On August 9, 2017 appellant sought treatment at the emergency room from a physician
assistant. Reports from physician assistants have no probative medical value in establishing her
claim. Such healthcare providers are not considered “physician[s]” as defined under FECA.10
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.11
On August 29, 2017 Dr. Rohan submitted a completed a form report and diagnosed left
arm pain. On September 8, 2017 Dr. Varney completed a form report and also diagnosed left
elbow pain. The Board has held that the mere diagnosis of “pain” does not constitute the basis for
payment of compensation.12 Without a further diagnosis, these medical reports are insufficient to
meet appellant’s burden of proof to establish disability from work.
On September 7, 2017 Dr. Varney noted appellant’s history of injury on August 9, 2017
and diagnosed left elbow pain consistent with lateral epicondylitis. He found that she was partially
disabled. As noted above, left elbow pain is not an acceptable diagnosis to constitute the basis for
7

See 20 C.F.R. § 10.5(f); V.H., id.; N.M., Docket No. 18-0939 (issued December 6, 2018).

8

V.H., id.; Fereidoon Kharabi, 52 ECAB 291 (2001).

9

Id.

10

5 U.S.C. § 8101(2). This subsection defines a physician as surgeons, podiatrist, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.
11

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). Federal (FECA) Procedure
Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013); see S.Y., Docket No. 18-1814
(issued April 18, 2019); M.F., Docket No. 17-1973 (issued December 31, 2018).
12

T.G., Docket No. 18-1064 (issued April 26, 2019); Robert Broome, 55 ECAB 339 (2004).

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payment of compensation.13 Furthermore, the Board notes that lateral epicondylitis had not been
accepted as causally related to the August 9, 2017 employment injury. Dr. Varney continued to
diagnose lateral epicondylitis in reports dated October 19, November 30, and December 19, 2017.
As he failed to offer the necessary rationale for his opinion that appellant was disabled due to her
accepted left elbow contusion, left elbow abrasion, and left thigh contusion, his opinions are of
limited probative value.14 These reports do not establish that appellant was disabled from
October 15 through December 19, 2017 due to her accepted employment injuries.
As appellant did not submit sufficiently rationalized medical opinion evidence to establish
that she was disabled from work for the period commencing October 15, 2017 due to the August 9,
2017 accepted conditions of left elbow contusion, left elbow abrasion, and left thigh contusion,
she has not met her burden of proof to establish that the claimed disability was employment related.
She was thus not entitled to wage-loss compensation for the period claimed.
LEGAL PRECEDENT -- ISSUE 2
When an employee claims that, a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.15
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence.16 The opinion of the physician must be based on a
complete factual and medical background of the employee, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.17
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.18
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include the additional condition of left lateral
epicondylitis causally related to the accepted August 9, 2017 employment injury.
On September 7, 2017 Dr. Varney diagnosed left lateral epicondylitis. He described the
accepted August 9, 2017 employment injury of a fall down the stairs onto appellant’s left elbow.
13

Id.

14

V.H., supra note 5.

15

Id.

16

V.H., supra note 5; D.E., 58 ECAB 448 (2007); Mary J. Summers, 55 ECAB 730 (2004).

17

V.H., id.; I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (2005).

18

V.H., id.; V.W., 58 ECAB 428 (2007); Ernest St. Pierre, 51 ECAB 623 (2000).

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However, Dr. Varney also noted that her work duties had changed such that she was required to
repetitively lift carcasses with her left hand to perform inspections. He noted that he was not
certain whether appellant’s left elbow condition was due to her work duties or to her August 9,
2017 fall. The Board has held that medical opinions that are speculative or equivocal in character
are of diminished probative value.19 Dr. Varney offered two separate explanations for appellant’s
diagnosed left lateral epicondylitis. To be of probative medical value regarding causal
relationship, a medical report must provide a reasoned opinion on whether the employment
incident described caused or contributed to the diagnosed medical condition.20 As Dr. Varney did
not offer a clear opinion as to the cause of appellant’s diagnosed left lateral epicondylitis, his
reports are insufficiently rationalized to meet her burden to establish causal relationship between
her diagnosed condition and her accepted employment injury.
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 10.607.21
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish total disability
from work commencing October 15, 2017 causally related to her accepted August 9, 2017
employment injuries. The Board further finds that she has not met her burden of proof to establish
that acceptance of her claim should be expanded to include left lateral epicondylitis causally related
to the accepted August 9, 2017 employment injury.

19

T.B., Docket No. 18-1694 (issued April 23, 2019); T.H., Docket No. 18-1736 (issued March 13, 2019); Kathy A.
Kelley, 55 ECAB 206 (2004).
20

T.B., id.; J.S., Docket No. 17-1039 (issued October 6, 2017); John W. Montoya, 54 ECAB 306 (2003).

21

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No. 171062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the September 21, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 15, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 08-69
Issued: May 5, 2008

Case Submitted on the Record

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

JURISDICTION
On October 9, 2007 appellant timely appealed the February 12, 2007 nonmerit decision
of the Office of Workers’ Compensation Programs, which denied her request for reconsideration.
She also timely appealed the Office’s November 1, 2006 merit decision denying her claim for an
additional schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant is entitled to an additional schedule award for
permanent impairment of her right upper extremity; and (2) whether the Office properly denied
further merit review under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
Appellant, a 49-year-old former distribution clerk, has an accepted occupational disease
claim for right wrist tendinitis, right shoulder tendinitis and bilateral carpal tunnel syndrome,

which arose on or about February 18, 1992.1 Between 1992 and 2002, appellant underwent three
Office-approved surgical procedures. Her first surgery was a right carpal tunnel release
performed on July 30, 1992. Appellant had a left carpal tunnel release on July 12, 2002,
followed by another right carpal tunnel release on August 9, 2002.
After her 1992 surgery, appellant received a schedule award for six percent impairment
of the right upper extremity due to residuals of her carpal tunnel syndrome. The August 19,
1994 award was based on the July 6, 1994 examination of Dr. George Varghese, a Boardcertified physiatrist and Office referral physician. The district medical adviser, Dr. Daniel D.
Zimmerman, reviewed Dr. Varghese’s findings and concurred with the six percent impairment
rating.
Following her surgeries in 2002, appellant filed a claim for an additional schedule award.
In July 2003, the Office again referred appellant to Dr. Varghese for an impairment rating
regarding her bilateral carpal tunnel syndrome. In a report dated August 29, 2003, Dr. Varghese
found 12 percent impairment of the right upper extremity due to carpal tunnel syndrome. He
also found four percent impairment of the left upper extremity. Dr. Zimmerman, on behalf of the
Office, reviewed Dr. Varghese’s findings and concurred with the August 29, 2003 impairment
ratings for both the left and right upper extremities.
On October 28, 2003 the Office granted a schedule award for four percent impairment of
the left upper extremity. Appellant also received an additional award of 12 percent for the right
upper extremity. The Office, however, neglected to offset this latest 12 percent award by the
6 percent award appellant previously received in 1994.
Appellant made arrangements with Dr. Varghese for an assessment of her right shoulder
condition, as this was not part of the doctor’s August 29, 2003 right upper extremity impairment
rating. In a September 26, 2003 report, Dr. Varghese acknowledged he had not previously rated
appellant’s right shoulder. Based on his September 22, 2003 examination results, he found seven
percent impairment of the right upper extremity due to loss of range of motion in the shoulder.
Dr. Zimmerman reviewed Dr. Varghese’s September 26, 2003 report and concurred with
the seven percent rating for loss of motion in the right shoulder. In his March 22, 2004 report, he
explained that combining the 7 percent shoulder impairment with the 12 percent wrist
impairment represented a total right upper extremity impairment of 18 percent. Because
appellant already received a 12 percent award in October 2003, she was only entitled to an
additional 6 percent due to her right shoulder impairment. However, Dr. Zimmerman noted that
the Office neglected to offset the 1994 and 2003 awards for permanent impairment due to right
carpal tunnel syndrome. As a result, appellant received an additional six percent impairment for
carpal tunnel syndrome to which she was not entitled. Dr. Zimmerman recommended that the
Office correct its earlier mistake by not paying additional monies for the right shoulder
impairment.

1

When the Office initially accepted appellant’s claim in 1992, left carpal tunnel syndrome was not among the
accepted conditions. It was not until June 2002 when the Office expanded the claim to include left carpal tunnel
syndrome an accepted condition.

2

The Office followed Dr. Zimmerman’s advice and issued a March 24, 2004 decision
denying an additional schedule award. The Office explained that the 1994 schedule award for
6 percent impairment was not taken into account when appellant received her 2003 award for 12
percent impairment of the right upper extremity. Accordingly, the Office reduced the current six
percent additional rating for the right shoulder by the six percent award appellant received in
1994 for her right carpal tunnel syndrome. Appellant requested reconsideration of the March 24,
2004 decision. The Office denied her request by decision dated May 13, 2004.
On May 26, 2006 appellant filed another claim for a schedule award. She submitted an
April 11, 2006 report from Dr. Dana R. Towle, a Board-certified plastic surgeon with a
subspecialty in hand surgery. Dr. Towle found 4 percent impairment of the left upper extremity
and 21 percent impairment of the right upper extremity. Although he stated his impairment
rating was in accord with the American Medical Association, Guides to the Evaluation of
Permanent Impairment, (5th ed. 2001) he did not otherwise explain how he reached his finding.2
Dr. Zimmerman advised the Office that Dr. Towle’s April 11, 2006 report was not
suitable for determining the extent of appellant’s upper extremity permanent impairment.
Accordingly, he recommended that appellant be referred to another physician skilled in the use
of the A.M.A., Guides (5th ed. 2001). The Office once again selected Dr. Varghese to evaluate
appellant’s right upper extremity impairment due to carpal tunnel syndrome.
In a report dated October 12, 2006, Dr. Varghese found 15 percent permanent impairment
of the right upper extremity “for [appellant’s] deficits from right carpal tunnel syndrome.” The
overall rating included impairments for sensory deficit (10 percent) and loss of motion at the
wrist (5 percent).
On October 30, 2006 Dr. Zimmerman reviewed Dr. Varghese’s October 12, 2006
impairment rating. According to the district medical adviser, Dr. Varghese’s 15 percent rating
for right carpal tunnel syndrome was “correctly performed” using the A.M.A., Guides (5th ed.
2001). Dr. Zimmerman noted, however, that appellant had already been “processed as having an
18 percent [right] upper extremity schedule award due to permanent residuals of a carpal tunnel
syndrome.” He also noted his March 22, 2004 remarks regarding appellant having improperly
received a 12 percent award in addition to the 6 percent award she received in 1994. Because
appellant already received an 18 percent award for her right carpal tunnel syndrome,
Dr. Zimmerman advised that she was not entitled to an additional award based on Dr. Varghese’s
latest 15 percent impairment rating.3
In a decision dated November 1, 2006, the Office denied appellant’s claim for an
additional schedule award. The Office explained that appellant had been paid a schedule award

2

Dr. Towle’s examination was limited to appellant’s hand, wrists and elbows. Appellant stated that he did not
evaluate her right “shoulder disability.”
3

Dr. Zimmerman’s October 30, 2006 report did not reference the September 26, 2003 rating of seven percent for
appellant’s right shoulder. He also did not mention the Office’s March 24, 2004 decision that rectified the offset
problem he originally raised in his March 22, 2004 report.

3

for 18 percent impairment of the right upper extremity and Dr. Varghese’s October 12, 2006
impairment rating of 15 percent represented “an improvement from the prior schedule award.”
On December 19, 2006 appellant requested reconsideration. She argued that her right
wrist impairment had not improved, but in fact had worsened. Appellant also characterized the
Office’s method of offsetting her earlier awards for the right wrist and right shoulder as “fuzzy
math.” The Office denied appellant’s request for reconsideration in a decision dated
February 12, 2007.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.4 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the A.M.A.,
Guides as the appropriate standard for evaluating schedule losses.5 Effective February 1, 2001,
schedule awards are determined in accordance with the A.M.A., Guides (5th ed. 2001).6
The Act and its implementing regulations provide for the reduction of compensation for
subsequent injury to the same scheduled member.7 Benefits payable under section 8107(c) shall
be reduced by the period of compensation paid under the schedule for an earlier injury if:
(1) compensation in both cases is for impairment of the same member or function or different
parts of the same member or function; and (2) the latter impairment in whole or in part would
duplicate the compensation payable for the preexisting impairment.8
ANALYSIS
Thus far appellant has received schedule awards for a total right upper extremity
impairment of 18 percent. The overall rating was a combination of impairments to the wrist and
shoulder. As Dr. Zimmerman explained in his March 22, 2004 report, the 12 percent impairment
of the wrist due to residuals of carpal tunnel syndrome when combined with the 7 percent
impairment of the right shoulder for loss of motion represented an overall impairment of 18
percent.9

4

For a total, or 100 percent loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1) (2000).
5

20 C.F.R. § 10.404 (2007).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

7

5 U.S.C. § 8108; 20 C.F.R. § 10.404(c).

8

20 C.F.R. § 10.404(c)(1), (2).

9

See 604-06 Combined Values Chart, A.M.A., Guides.

4

In 2006 appellant submitted evidence of a worsening of her right upper extremity
impairment. According to Dr. Towle, appellant had 21 percent impairment of the right upper
extremity. However, the Office properly disregarded Dr. Towle’s April 11, 2006 report because
it was not prepared in accordance with the A.M.A., Guides.10 The Office referred appellant to
Dr. Varghese, who found a 15 percent impairment of the right upper extremity due to carpal
tunnel syndrome. Dr. Zimmerman noted that Dr. Varghese’s October 12, 2006 rating was
“correctly performed” using the A.M.A., Guides.
In denying appellant’s claim for an additional schedule award, the Office seemed to have
forgotten that her prior schedule awards were for a combination of impairments to the right wrist
and shoulder, and not simply for carpal tunnel syndrome. When Dr. Zimmerman suggested that
appellant not be paid an additional award in 2006, he was apparently unaware that the offset
issue he initially raised on March 22, 2004 had already been resolved. The Office compounded
Dr. Zimmerman’s mistake by similarly failing to account for the March 24, 2004 decision that
offset the award appellant would have otherwise been entitled to because of her seven percent
impairment of the right shoulder. Accordingly, appellant’s right carpal tunnel syndrome
represents only 12 percent of the previously awarded 18 percent right upper extremity
impairment.
While appellant previously had only 12 percent impairment due to carpal tunnel
syndrome, Dr. Varghese’s October 12, 2006 rating found 15 percent impairment. Ostensibly this
represents a worsening of appellant’s impairment attributable to her right carpal tunnel
syndrome. However, contrary to Dr. Zimmerman’s finding, this latest rating provided by
Dr. Varghese was not “correctly performed.” Of the total 15 percent rating, 5 percent was
attributed to loss of range of motion at the wrist. The other 10 percent was for sensory deficit.
The inclusion of the five percent impairment for loss of range of motion was improper under the
A.M.A., Guides.11 Impairment for carpal tunnel syndrome is rated based on motor and/or
sensory deficits.12 Therefore, appellant should not have received a rating for loss of motion at
the wrist in addition to the 10 percent rating she received for sensory deficit. When the 5 percent
motion impairment is properly excluded, appellant’s current impairment due to carpal tunnel
syndrome is only 10 percent.13 Because she has already been awarded at least 12 percent
impairment for her right carpal tunnel syndrome, appellant is not entitled to an additional
schedule award at this time.
Although the outcome remains the same, the Office’s rationale for denying an additional
schedule award was incorrect. The November 1, 2006 decision will be modified to reflect the
Board’s findings as to appropriate basis for denying appellant’s claim for an additional schedule
award.
10

Dr. Towle noted the A.M.A., Guides in his report, but he did not identify the specific method he used to
calculate a 21 percent impairment of the right upper extremity.
11

See A.M.A., Guides 480-83, section 16.5.

12

Id.; Kimberly M. Held, 56 ECAB 670, 675 (2005).

13

Dr. Varghese’s August 29, 2003 rating, which formed the basis of the October 28, 2003 award for 12 percent
impairment also mistakenly included a rating for loss of motion at the wrist.

5

CONCLUSION
Appellant failed to establish entitlement to an additional schedule award for permanent
impairment of the right upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the November 1, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.14
Issued: May 5, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

In view of the Board’s disposition of the merits of the schedule award, the Office’s February 12, 2007 nonmerit
decision is rendered moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CITIZENSHIP & IMMIGRATION
SERVICES, Miami, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-284
Issued: May 14, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 19, 2014 appellant filed a timely appeal from a May 30, 2014 merit
decision and an August 21, 2014 attorney fee 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.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s wage-loss and
medical compensation benefits effective June 1, 2014; and (2) whether it abused its discretion by
approving appellant’s prior counsel’s fee in the amount of $4,560.00.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on March 30, 2012 appellant, then a 53-year-old clerk, sustained a
cervical sprain and cervicalgia while lifting file boxes. Following emergency room treatment on
April 4, 2012, he was followed by Dr. Christopher Brown, an attending Board-certified
orthopedic surgeon, who ordered a magnetic resonance imaging (MRI) scan, which was
performed on May 16, 2012 that showed cervical spondylosis with central stenosis at C4-5,
C6-7, a disc herniation at C3-4, and bilateral foraminal stenosis from C4 to 7 due to spondylitic
changes.2 Appellant stopped work at the time of injury. He reported for duty on May 23, 2012,
again stopped work and did not return.
Dr. Guillermo Pasarin, an attending Board-certified neurosurgeon, provided an
August 17, 2012 report noting multilevel spondylitic disc disease from C3 through C7, with
myelomalacia at C5-6 consistent with appellant’s neurologic symptoms in the right upper
extremity, and advanced degenerative disc disease with congenital stenosis. He opined that the
accepted cervical sprain likely exacerbated appellant’s preexisting degenerative conditions,
causing them to become symptomatic.
Dr. Brown provided duty restrictions through March 2013 due to impaired cervical spine
strength and mobility.3 He opined that appellant reached maximum medical improvement as of
March 8, 2013, with a permanent restriction against lifting or carrying more than 25 pounds.
On June 3 2013 OWCP obtained a second opinion report from Dr. Peter J. Millheiser, a
Board-certified orthopedic surgeon, who reviewed the medical record and a statement of
accepted facts. Dr. Millheiser related appellant’s symptoms of numbness and paresthesias in
both hands and feet, as well as neck and back pain. On examination, he found voluntarily
restricted motion of the cervical, thoracic, and lumbar spine without spasm, tenderness, trigger
points, motor loss, or neurologic abnormalities. Dr. Millheiser noted hypoesthesia of the dorsal
aspect of the first ray in both feet and on the plantar surfaces of the hallux bilaterally. He
diagnosed a cervical sprain, cervical spondylosis, cervical radiculopathy, a focal disc herniation
at C3-4, bilateral cervical canal stenosis, and bilateral foraminal stenosis. Dr. Millheiser opined
that the accepted cervical sprain had ceased without residuals. He explained that appellant’s
ongoing symptoms were caused by preexisting degenerative disc disease, unaffected by his
sedentary work duties as described in the statement of accepted facts. Dr. Millheiser found
appellant able to perform full-duty work with no restrictions.
In a September 19, 2013 addendum, Dr. Millheiser stated that Dr. Pasarin’s report
demonstrated that appellant’s “main problems [were] the preexisting advanced degenerative
disease,” which may have been exacerbated by the accepted injury. On February 6, 2014 he
added that the accepted cervical sprain caused a temporary, resolved aggravation of preexisting
degenerative, disc disease and cervical spondylosis.

2

Appellant had concomitant diagnoses of major depressive disorder and obstructive sleep apnea related to his
military service.
3

Appellant participated in physical therapy from May through September 2012.

2

Appellant’s counsel at the time provided a February 7, 2014 letter asserting that both
Dr. Brown and Dr. Millheiser supported a continuing causal relationship between appellant’s
ongoing symptoms and the accepted cervical sprain. OWCP placed appellant’s case on the
periodic rolls as of March 9, 2014.
By notice dated April 9, 2014, OWCP advised appellant that it proposed to terminate his
wage-loss and medical compensation benefits as the accepted cervical sprain and cervicalgia had
ceased without residuals, considering Dr. Millheiser’s opinion the weight of the medical
evidence. It afforded him 30 days to submit additional evidence and argument.
Appellant provided a May 9, 2014 statement disagreeing with the proposed termination.
He asserted that he was unable to work due to back and neck pain, as well as side effects from
prescribed medications. Appellant submitted a May 8, 2014 report from Dr. Brown, noting that
physical therapy was not effective in reducing appellant’s symptoms. On examination,
Dr. Brown found a normal range of motion in the cervical spine, no paraspinal tenderness or
trigger points, and normal reflexes throughout the extremities. He opined that appellant
remained at maximum medical improvement. Dr. Brown recommended a pain management
program.
By decision dated May 30, 2014, OWCP finalized the termination of appellant’s wageloss and medical compensation benefits effective June 1, 2014 finding that the accepted neck
sprain had ceased without residuals. It accorded Dr. Millheiser the weight of the medical
evidence.
On June 17, 2014 appellant’s prior counsel requested that OWCP approve a fee request
for $4,560.00 for 15.2 hours of work from June 4, 2012 to March 11, 2014, at the rate of $300.00
an hour. Counsel noted that he rendered an additional three hours of legal services in appellant’s
case for which he did not charge appellant. He explained that appellant had signed an agreement
agreeing to pay the fee, but then “expressed no interest in paying any type of [representative] fee,
although he is well aware that he [was] responsible for payment.” Counsel provided an itemized
timesheet, describing the type, and duration of the services provided on the 46 listed dates.
In a June 18, 2014 letter, OWCP requested that appellant comment on his counsel’s fee
request for $4,560.00. It advised him that, if he did not respond by July 18, 2014, it would
assume that he did not wish to comment on the fee and would consider the fee request approved
as fair and reasonable.
In a June 22, 2014 letter, appellant contended that he had active residuals of the accepted
injury and disputed the termination of his compensation. He submitted his claim form and
medical evidence dated from 2002 to 2004 related to the right thumb and right elbow. Appellant
did not address counsel’s fee request.
By decision dated August 21, 2014, OWCP approved the request for a $4,560.00 fee for
services rendered from June 4, 2012 to March 11, 2014. It found that appellant had failed to
raise a timely objection to the proposed fee.

3

LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.4 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.5
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a cervical sprain and cervicalgia in a March 30,
2012 lifting incident. Apart from a brief return to work on May 23, 2012, appellant stopped
work on the date of injury and did not return. Dr. Brown, the attending Board-certified
orthopedic surgeon, diagnosed significant degenerative cervical disc disease with foraminal
stenosis. Dr. Pasarin, the attending Board-certified neurosurgeon, opined that the accepted
sprain aggravated the preexisting cervical spine conditions. OWCP obtained a second opinion
from Dr. Millheiser, a Board-certified orthopedic surgeon, who submitted June 3 and
September 19, 2013, and February 6, 2014 reports. Dr. Millheiser opined that the accepted
cervical sprain temporarily aggravated underlying degenerative disc disease. OWCP terminated
appellant’s wage-loss and medical benefits effective June 1, 2014, based on Dr. Millheiser’s
reports as the weight of the medical evidence.
Dr. Millheiser provided detailed medical rationale, based on the complete medical record
and statement of accepted facts. He explained that the accepted cervical sprain resolved as there
were no objective findings on examination. Dr. Millheiser found appellant fit for full-duty work.
Dr. Brown also found that appellant had reached maximum medical improvement as of March 8,
2013, and he could perform full-time modified duty. He found appellant’s condition unchanged
as of May 8, 2014, concurring with Dr. Millheiser that appellant had no objective neurologic
abnormalities on examination attributable to the accepted cervical sprain. Neither Dr. Millheiser
nor Dr. Brown found continuing residuals of the accepted injury. The Board, therefore, finds
that OWCP’s May 30, 2014 decision terminating appellant’s medical and wage-loss
compensation was proper under the law and facts of the case.
On appeal, appellant alleges that OWCP sabotaged his compensation case by denying
him necessary medical care and ignoring his neurologic symptoms. He asserts the need for
cervical discectomies to address neurologic difficulties with his bladder, right hand, and both
feet. The Board notes that there is no evidence of record that OWCP mishandled appellant’s
case or denied him medical care required by the accepted injuries.
LEGAL PRECEDENT -- ISSUE 2
It is not the Board’s function to determine the fee for representative services performed
before OWCP. That is a function within the discretion of OWCP based on the criteria set forth
4

Bernadine P. Taylor, 54 ECAB 342 (2003).

5

Id.

4

in Title 20 of the Code of Federal Regulations and mandated by Board decisions. The Board’s
sole function is to determine whether the action by OWCP constituted an abuse of discretion.6
Generally, an abuse of discretion is shown through proof of manifest error, clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deductions
from established facts.7
Section 10.703 of the Code of Federal Regulations provide in pertinent part that a
representative must submit a fee application, which includes a statement of agreement or
disagreement with the amount charged, signed by the claimant.8 When a fee application has
been disputed, OWCP is required to provide the claimant with a copy of the fee application and
request the submission of further information in support of any objection.9 After the claimant
has been afforded 15 days from the date the request was forwarded to respond to the request,
OWCP will then proceed to review the fee application to determine whether the amount of the
fee is substantially in excess of the value of services received by looking at the following factors:
(1) usefulness of the representative’s services; (2) the nature and complexity of the claim; (3) the
actual time spent on development and presentation of the claim; and (4) customary local charges
for similar services.10
ANALYSIS -- ISSUE 2
The Board finds that OWCP did not abuse its discretion. OWCP considered the detailed
fee application submitted by appellant’s counsel, describing the specific legal services provided
on 46 dates from June 4, 2012 to March 11, 2014. Counsel preferred that appellant had signed
an agreement acknowledging his responsibility to pay the legal fee.
OWCP advised appellant by June 18, 2014 letter of his counsel’s fee request and of his
opportunity to submit evidence or argument against approval of the fee. It explained that, if he
did not respond, it would approve the fee as fair and reasonable. Appellant provided a June 22,
2014 letter discussing his symptoms, but did not address counsel’s fee issue. Therefore, OWCP
approved the fee request by decision dated August 21, 2014. The Board finds that, as appellant
did not object to the approval of the fee request, OWCP did not abuse its discretion by approving
the $4,560.00 fee for 15.2 hours of legal services rendered from June 4, 2012 to March 11, 2014.
On appeal, appellant contends that OWCP failed to mail him a notice of oral hearing on
an unspecified issue because it was solely within the Board’s jurisdiction. It appears that he is
referring to the fee issue. However, counsel’s fee decision, with attached appeal rights, was sent
to appellant’s address of record. To the extent that appellant asserts he should have a
6

J.P., Docket No. 11-63 (issued June 19, 2012); L.H., Docket No. 11-900 (issued December 6, 2011); C.H.,
Docket No. 10-987 (issued March 22, 2011).
7

Daniel J. Perea, 42 ECAB 214 (1990).

8

20 C.F.R. § 10.703(a)(i).

9

Id. at § 10.703(c).

10

Id.

5

hearing with regard to issues that are before the Board in the present appeal, the Board and
OWCP may not simultaneously have jurisdiction over the issues in a case.11
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss and compensation
benefits effective June 1, 2014 because the accepted cervical sprain and cervicalgia resolved
without residuals. The Board further finds that OWCP properly approved his counsel’s fee in the
amount of $4,560.00.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 21 and May 30, 2014 are affirmed.
Issued: May 14, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

See Arlonia B. Taylor, 44 ECAB 591 (1993); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41
ECAB 880 (1990).

6