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

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

Docket No. 14-1674
Issued: December 16, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 28, 2014 appellant, through her attorney, filed a timely appeal of a May 9, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than five percent permanent impairment of her
upper extremities due to bilateral carpal tunnel syndrome.
On appeal counsel argued that there was a conflict of medical opinion evidence between
appellant’s attending physician and the medical adviser.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 14, 2006 appellant, then a 42-year-old distribution clerk, filed an occupational
disease claim alleging that she developed bilateral carpal tunnel syndrome due to factors of her
federal employment.
On June 15, 2006 Dr. George P. Zavitsanos, a Board-certified plastic surgeon, diagnosed
carpal tunnel syndrome. Dr. Manzoor Mohiuddin, a Board-certified physiatrist, examined
appellant on December 6, 2002 and found carpal tunnel syndrome. He reported left hand pain
from the left wrist to the left thumb and left elbow. Dr. Mohiuddin also noted that appellant had
a motor vehicle accident in 2001 which resulted in right hand numbness and pain. He performed
nerve conduction and electromyogram (EMG) studies which demonstrated mild-to-moderate left
sensory motor carpal tunnel syndrome, mild right ulnar sensory neuropathy at the wrist and
moderate right sensory motor carpal tunnel syndrome. OWCP accepted appellant’s claim for
bilateral carpal tunnel syndrome on July 12, 2006.
In a report dated May 2, 2006, Dr. Stephanie Sweet, a Board-certified orthopedic
surgeon, reviewed appellant’s electrodiagnostic testing dated April 18, 2006 and found that
appellant had no left median motor conduction and that her right median motor conduction was
markedly slow across the wrist. She also found an absence of bilateral median sensory
conduction. Dr. Sweet reported advanced thenar atrophy on physical examination. She
recommended carpal tunnel decompression. The electrodiagnostic studies demonstrated motor
nerve in the left median wrist and elbow of onset 0.00 and amplification of 0.00 while in the
right median wrist and elbow 10 and 1.37, respectively, for a velocity of 51.72 milliseconds over
21 centimeters.
Dr. Zavitsanos performed a left carpal tunnel release on July 14, 2006. He performed a
right carpal tunnel release on September 8, 2006. In a treatment note dated October 9, 2006,
Dr. Zavitsanos stated that appellant had excellent results bilaterally and experienced little pain
and weakness. He released her to return to full duty on December 3, 2006.
In a report dated May 9, 2013, Dr. David Weiss, an osteopath, examined appellant for
schedule award purposes. He described her employment duties and her symptoms of pain,
numbness, tingling and swelling in both hands and wrists. Dr. Weiss reviewed appellant’s
electrodiagnostic testing. Appellant reported bilateral hand and wrist pain with stiffness as well
as swelling and weakness in both hands and wrists. She stated that she had difficulty with
activities of daily living such as washing and dressing in addition to brushing her teeth, applying
makeup and eating. Appellant noted difficulty with grasping objects and decreased grip strength
bilaterally. She reported a pain level of 8 out of 10. Dr. Weiss found that appellant’s
QuickDASH was 79 percent involving the right upper extremity and 61 percent for the left.
On physical examination Dr. Weiss found thenar atrophy bilaterally with positive Tinel’s
sign, positive Phalen’s test as well as positive carpal compression sign and normal range of
motion. He also noted that grip strength testing performed three times revealed 20 kilograms of
force strength in the right hand and 18 kilograms of force strength in the left hand. Pinch key
testing indicated five kilograms bilaterally.
Dr. Weiss performed Semmes-Weinstein
monofilament testing and found a diminished sensibility at 3.61 over the median nerve

2

distribution bilaterally. He found that two-point discrimination was 10 millimeters on the right
and 6 millimeters on the left.
Dr. Weiss applied the American Medical Association, Guides to the Evaluation of
Permanent Impairment, sixth edition2 to his findings and the diagnosis of entrapment
neuropathy.3 In the right wrist he found grade modifiers of test findings 4, history 3 and physical
examination 2 for a total of 9 and an average of three or eight percent impairment. Dr. Weiss
stated that the functional history based on appellant’s QuickDASH score was 79 percent or grade
modifier 3 and that her impairment rating remained at 8 percent.4 In the left wrist, he found test
findings 4, history 3, physical examination 2 for a total of 9, an average of three or eight percent
impairment. He stated that appellant’s QuickDASH score was 61 percent and that her
impairment remained at 8 percent. Dr. Weiss stated that appellant reached maximum medical
improvement on May 9, 2013.
Appellant requested a schedule award on August 21, 2013. OWCP referred the medical
evidence to OWCP medical adviser on August 30, 2013 to review the application of the A.M.A.,
Guides. On September 11, 2013 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon
and district medical adviser reviewed Dr. Weiss’ report and disagreed with his impairment
rating. He reviewed the findings on physical examination noting thenar atrophy, positive Tinel’s
sign and Phalen’s test as well as positive carpal compression. Dr. Berman noted that strength
was normal and that there was decreased sensation over the median nerve in both the right and
left hands. He found that appellant’s test findings for the right median nerve were properly
categorized at grade modifier 3, Axon loss.5 Dr. Berman noted that grade modifier 4 indicated
an “almost dead nerve” which he felt was inappropriate. He further found that for history, the
appropriate category was significant intermittent symptoms, grade modifier 2 rather than
constant symptoms, grade modifier 3 as found by Dr. Weiss. Dr. Berman agreed with physical
findings grade modifier 2, for decreased sensation.6 He applied the formula from the A.M.A.,
Guides, adding the three grade modifiers and reached an average of two for five percent
impairment.7 Dr. Berman also opined that the QuickDASH score should be grade modifier 2
rather than 3, and that the impairment remained five percent. In regard to appellant’s left upper
extremity, he listed that grade modifiers as test findings 3, history 2, physical examination 2 for
five percent impairment of the left upper extremity as well.
By decision dated October 11, 2013, OWCP granted appellant schedule awards for five
percent impairment of each of her upper extremities.
2

A.M.A., Guides, 6th ed. (2009). 20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1,
2009, OWCP should advise any physician evaluating permanent impairment to use the sixth edition of the A.M.A.,
Guides. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6.a (January 2010).
3

A.M.A., Guides 449, Table 15-23.

4

Id. at 406, Table 15-7.

5

Id. at 487, Appendix 15-B.

6

Id. at 449, Table 15-23.

7

Id. at 448.

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Counsel requested an oral hearing before an OWCP hearing representative on
October 18, 2013. He appeared and argued that there was a conflict of medical opinion
regarding the extent of appellant’s permanent impairment for schedule award purposes. In a
decision dated May 9, 2014, the hearing representative found that Dr. Berman’s report was
entitled to the weight of the medical evidence.
LEGAL PRECEDENT
The schedule award provision of FECA8 and its implementing regulations9 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.10
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.11 In
Table 15-23, grade modifiers levels (ranging from 0 to 4) are described for the categories test
findings, history, and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.12 The maximum impairment rating for carpal tunnel syndrome
is nine.13
ANALYSIS
OWCP accepted that appellant developed bilateral carpal tunnel syndrome due to her
employment duties and that she underwent bilateral carpal tunnel releases to address these
conditions. Following her surgeries and her return to full duty in 2006, appellant filed a claim
for a schedule award on August 21, 2013 and submitted a report from Dr. Weiss.
In regard to appellant’s right wrist, Dr. Weiss found grade modifier 4 for test findings
which correlates to an almost dead nerve, grade modifier 3 for history due to constant symptoms
and grade modifier 2 for physical examination due to decreased sensation. In accordance with
8

5 U.S.C. §§ 8101-8193, 8107.

9

20 C.F.R. § 10.404.

10

See supra note 2.

11

A.M.A., Guides 449, Table 15-23.

12

A survey completed by a given claimant, known by the name QuickDASH, may be used to determine the
function scale score. A.M.A., Guides 448-49.
13

Id. at 449, Table 15-23.

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the A.M.A., Guides, he totaled these grade modifiers to reach nine then divided by three to reach
an average of three or eight percent impairment.14 Dr. Weiss stated that the functional history
based on appellant’s QuickDASH score was 79 percent or 315 and that her impairment rating
remained at 8 percent as the value for the functional scale score was equal to the grade assigned
for the condition.16
In the left wrist, he found test findings grade modifier 4, history grade modifier 3,
physical examination grade modifier 2 for a total of 9, an average of three or eight percent
impairment. Dr. Weiss stated that appellant’s QuickDASH score was 61 percent was also grade
modifier 3 and that her impairment remained at 8 percent. He stated that appellant reached
maximum medical improvement on May 9, 2013.
On September 11, 2013 Dr. Berman, the district medical adviser, reviewed Dr. Weiss’
report and disagreed with his impairment rating. He found that the test findings for the right
median nerve were grade modifier 3, Axon loss.17 Dr. Berman noted that grade modifier 4
indicated an “almost dead nerve.” He further found that for history, the appropriate category was
significant intermittent symptoms, grade modifier 2 rather than constant symptoms as found by
Dr. Weiss. Dr. Berman agreed that physical findings were grade modifier 2, for decreased
sensation.18 He applied the formula for carpal tunnel syndrome under the A.M.A., Guides and
reached an average of two for five percent impairment.19 Dr. Berman also opined that the
QuickDASH score should be grade modifier 2 rather than 3, and that the impairment remained
five percent. In regard to appellant’s left upper extremity, he listed that grade modifiers as test
findings 3, history 2, physical examination 2 for five percent impairment of the left upper
extremity as well.
The Board finds that this case is not in posture for a decision. Dr. Weiss provided
findings on physical examination and upon review of the medical records. He reached grade
modifiers for test findings of an almost dead median nerve, and for history grade modifier 3 for
constant symptoms. Dr. Berman reduced each of these grade modifiers finding Axon loss and
intermittent symptoms, respectively. However, neither physician provided the specific basis
utilized for determining the appropriate grade modifier. There is no discussion of the findings on
electrodiagnostic testing performed by Dr. Sweet and of application of Appendix 15-B:
Electrodiagnostic Evaluation of Entrapment Syndromes.20 The Board is unable to determine the
appropriate selection for grade modifier for test results based on these reports. It is also unclear
how the physicians reached the history grade modifier. Neither Dr. Weiss nor Dr. Berman
provided the medical reasoning for picking the selected grade modifier.
14

Id.

15

Id. at 406, Table 15-7.

16

Id. at 449.

17

Id. at 487, Appendix 15-B.

18

Id. at 449, Table 15-23.

19

Id. at 448.

20

Id. at 487.

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Proceedings before OWCP are not adversarial in nature and OWCP is not a disinterested
arbiter; in a case where OWCP “proceeds to develop the evidence and to procure medical
evidence, it must do so in a fair and impartial manner.”21 On remand, OWCP should refer
appellant and the appropriate test results to a second opinion physician for a detailed and wellreasoned report in accordance with the A.M.A., Guides addressing each of grade modifiers and
providing the reasoning behind the selections considering the appropriate provisions of the
A.M.A., Guides. After this and such other development of the medical evidence as it deems
necessary, OWCP should issue a de novo decision regarding appellant’s permanent impairment
for schedule award purposes.
CONCLUSION
The Board finds this case not in posture for decision due to deficiencies in the medical
evidence requiring additional development by OWCP.
ORDER
IT IS HEREBY ORDERED THAT the May 9, 2014 decision of the Office of Workers’
Compensation Programs is set aside and remanded for further development consistent with this
decision of the Board.
Issued: December 16, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

21

Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Atlantic City, NJ,
Employer
__________________________________________

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

Docket No. 09-1070
Issued: November 12, 2009

Case Submitted on the Record

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

JURISDICTION
On May 16, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ January 2, 2009 merit decision terminating his compensation benefits.
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 on appeal is whether the Office properly terminated appellant’s compensation
benefits effective July 5, 2008.
FACTUAL HISTORY
On November 3, 2004 appellant, a 30-year-old federal air marshal, filed an occupational
disease claim alleging that he sustained a collapsed lung (pneumothorax) as a result of his
employment activities, which involved extensive flying. He also claimed that he suffered

employment-related headaches, stomach cramping, sinus problems, earaches, frequent colds and
back pains. The Office accepted appellant’s claim for spontaneous pneumothorax.
Appellant was treated by Dr. Joseph M. Feagan, a Board-certified osteopath, specializing
in family medicine. On December 16, 2004 Dr. Feagan opined that appellant could return to full
duty, provided that he was restricted from air flight. On January 4, 2005 he reiterated his
restrictions. Dr. Feagan stated that repeated changes in air pressure associated with appellant’s
work-related travel accelerated the diagnosed pneumothorax. He explained that, in air travel,
pressure falls, resulting in an increase in gas volume, and that any blebs in the lungs could be
exacerbated by such pressure changes, leading to a pneumothorax. On June 14, 2005 Dr. Feagan
stated that, although the symptoms associated with appellant’s collapsed lung had resolved, the
risk for recurrent pneumothorax continued to be an immediate threat in the context of his
possible return to work as an air marshal.
In a report dated January 10, 2005, Dr. Amita Vasoya, a Board-certified osteopath,
specializing in pulmonary medicine, reviewed the history of appellant’s right pneumothorax,
which he stated had since resolved. She opined that appellant could not fly on a daily basis,
because continued flying would place him at risk for recurrence. On August 7, 2006 Dr. Vasoya
again opined that appellant was unable to return to his date-of-injury position, which would
require him to fly on a daily basis.
On March 16, 2007 the employing establishment notified appellant that he was being
removed from his employment effective March 30, 2007 due to his inability to perform the
duties of a federal air marshal. The employing establishment noted that his inability to perform
those duties resulted from the accepted pneumothorax condition. Appellant filed a recurrence of
total disability claim. On June 27, 2007 the Office accepted appellant’s recurrence claim as of
March 31, 2007.
On August 7, 2007 Dr. Vasoya again stated that appellant was unable to fly on a daily
basis, due to his continued risk for recurrent pneumothorax. She opined that appellant could
perform any job activity that did not involve flying.
The record reflects that appellant’s position as an air marshal required flying on a regular
basis. His duties consisted of protecting airline passengers and crews on passenger flights.
The Office referred appellant, together with the medical record and a statement of
accepted facts, to Dr. Brian Kim, a pulmonologist, for a second opinion examination and an
opinion as to whether appellant continued to have residuals of his accepted pneumothorax and, if
so, whether he was disabled as a result of those residuals. In a report dated February 20, 2008,
Dr. Kim found appellant’s chest clear to auscultation and percussion. He opined that appellant’s
accepted right pneumothorax had resolved. On April 2, 2008 Dr. Kim noted that a pulmonary
function study revealed normal spirometry and lung volume. He stated that appellant’s diffusing
capacity was slightly reduced, as were his forced expiratory volume and forced vital capacity,
compared to an October 11, 2006 study. Dr. Kim stated that appellant was still at risk of
developing a spontaneous pneumothorax, especially if he worked under the condition of
changing barometric pressures, such as working as a flight marshal. He explained the fact that
appellant developed a spontaneous pneumothorax indicates that he has a tendency to develop a

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pneumothorax at any time in the future. Dr. Kim opined that appellant was not capable of
returning to full duty as an air marshal. In a supplemental report dated May 2, 2008, he indicated
that appellant did not have any residual effect from the spontaneous pneumothorax, except for
the danger of recurrence of a pneumothorax from certain conditions, such as daily flying or
lifting heavy material, which would increase inthrathoracic pressure. Dr. Kim stated that, as long
as appellant avoided those conditions, the risk of a spontaneous pneumothorax was within
normal range. He noted that the restriction to avoid daily flying was prophylactic in nature to
avoid recurrence of a pneumothorax.
By notice dated May 9, 2008, the Office proposed to terminate appellant’s compensation
benefits, based upon Dr. Kim’s report, which established that he no longer had residuals from his
accepted pneumothorax condition. It also stated that any permanent restrictions were
prophylactic in nature. In a decision dated June 12, 2008, the Office finalized its decision to
terminate appellant’s medical and wage-loss benefits effective July 5, 2008.
On June 17, 2008 appellant, through his representative, requested an oral hearing. At the
October 28, 2008 hearing, counsel argued that appellant had residuals from his accepted
condition, as evidenced by the fact that he was restricted from flying and was still under a
doctor’s care for breathing problems.
By decision dated January 2, 2009, the Office hearing representative affirmed the
June 12, 2008 decision. The hearing representative found that appellant’s restrictions related to
flying were prophylactic and that his fear of future injury was not compensable.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.1 It may not terminate compensation without establishing
that disability ceased or that it was no longer related to the employment.2 The Office’s burden of
proof includes the necessity of furnishing rationalized medical opinion evidence based on a
proper factual and medical background.3
As used in the Federal Employees’ Compensation Act,4 the term disability means
incapacity because of an injury in employment to earn the wages the employee was receiving at
the time of the injury, i.e., a physical impairment resulting in loss of wage-earning capacity. The
general test in determining loss of wage-earning capacity is whether the employment-caused
impairment prevents the employee from engaging in the kind of work he was doing when he was

1

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Fermin G. Olascoaga, 13 ECAB 102,
104 (1961).
2

J.M., 58 ECAB ___ (Docket No. 06-661, issued April 25, 2007); Anna M. Blaine, 26 ECAB 351 (1975).

3

T.P., 58 ECAB ___ (Docket No. 07-60, issued May 10, 2007); Larry Warner, 43 ECAB 1027 (1992).

4

5 U.S.C. §§ 8101-8193, 8102.

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injured.5 In other words, if an employee is unable to perform the required duties of the job in
which he was employed when injured, the employee is disabled.6
ANALYSIS
The evidence of record establishes that appellant is unable to perform the type of work he
was performing when injured due to residuals of his accepted condition; therefore, he continues
to be disabled under the Act.7 The Board finds that the Office improperly terminated appellant’s
compensation benefits as of July 5, 2008.
In the present case, the Office terminated appellant’s compensation benefits after
determining that his disability had ceased and that he no longer had residuals from his accepted
pneumothorax. As used in the Act,8 the term disability means incapacity because of an injury in
employment to earn the wages the employee was receiving at the time of the injury, i.e., a
physical impairment resulting in loss of wage-earning capacity. The general test in determining
loss of wage-earning capacity is whether the employment-caused impairment prevents the
employee from engaging in the kind of work he was doing when he was injured.9 In other
words, if an employee is unable to perform the required duties of the job in which he was
employed when injured, the employee is disabled.10
The evidence establishes that appellant is unable to perform the duties of an air marshal.
There is no dispute that appellant no longer exhibited any symptoms related to his accepted
pneumothorax as of July 5, 2008. However, there is also no disagreement that appellant should
be restricted from flying on a regular basis due to his propensity to sustain a spontaneous
pneumothorax. Dr. Feagan stated that, although the symptoms associated with appellant’s
accepted collapsed lung had resolved, the risk for recurrent pneumothorax continued to be an
immediate threat in the context of his possible return to work as an air marshal. The Office’s
second opinion physician, Dr. Kim, stated that appellant was at continued risk of developing a
spontaneous pneumothorax, especially if he worked under the condition of changing barometric
pressures, such as working as a flight marshal. He explained the fact that appellant developed a
spontaneous pneumothorax indicates that he has a tendency to develop a pneumothorax at any
5

See Marvin T. Schwartz, 48 ECAB 521 (1997). See also Patricia A. Keller, 45 ECAB 278, 286 (1993).

6

Id.

7

See Prince E. Wallace, 52 ECAB 357 (2001) (where claimant’s physician opined that he was capable of
resuming the duties of his date-of-injury job, but his recommended restrictions were in conflict with the
requirements of the position, the Board found that he was disabled and reversed the Office’s decision to terminate
compensation benefits). See also Marvin T. Schwartz, supra note 5 (where the Office’s second opinion physician
opined that the claimant’s accepted condition had resolved, but provided permanent lifting and bending restrictions
which did not comport to the date-of-injury job description, the Board found that he was unable to perform the type
of work he was performing when injured and was, therefore, disabled; the Board found that the Office had
improperly terminated his compensation benefits).
8

5 U.S.C. §§ 8101-8193, 8102.

9

See Marvin T. Schwartz, supra note 5. See also Patricia A. Keller, supra note 5.

10

Id.

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time in the future. Dr. Kim opined that appellant was not capable of returning to full duty as an
air marshal and should be restricted from daily flying or lifting heavy material, which would
increase inthrathoracic pressure. Compliance with Dr. Kim’s restrictions would render appellant
unable to perform the required duties of the job in which he was employed when injured and
would thus, by definition, render him disabled.11
Appellant’s disability is, in itself, a residual of his accepted pneumothorax. If his
employment-related condition had truly resolved, there would be no need to restrict appellant
from flying. The Office hearing representative affirmed the termination decision finding that
appellant’s restrictions were prophylactive in nature. He likened this case to Mary A. Geary,12
where the Board found that fear of future injury (psychological problems due to chemical
exposure), which was related to an underlying nonemployment-related condition (ovarian
cancer), was not compensable. The Geary case, however, is distinguished from the case at hand.
In this case, the medical restrictions were designed to subvert an imminent threat of recurrence of
a spontaneous pneumothorax due to an accepted employment-related condition. As Dr. Kim
explained, the fact that appellant developed a spontaneous pneumothorax indicates that he has a
tendency to develop a pneumothorax at any time in the future. As his restrictions are permanent,
his condition is chronic in nature.
The evidence of record indicates that appellant is unable to perform the type of work he
was performing when injured; therefore, he continues to be disabled.13 The Board finds that the
Office improperly terminated appellant’s compensation benefits as of July 5, 2008.
CONCLUSION
The Board finds that the Office did not meet its burden of proof in terminating
appellant’s compensation benefits effective July 5, 2008.

11

See Jeri A. Holvick, Docket No. 00-552 (issued August 27, 2001) (where claimant recovered from an accepted
pulmonary condition but the referee physician opined that she could not return to work because of environmental
pollutants, the Board found that the Office failed to meet its burden of proof because the claimant was not capable of
performing the type of work performed when injured).
12

43 ECAB 300 (1991).

13

See Prince E. Wallace, 52 ECAB 357 (2001) (where claimant’s physician opined that he was capable of
resuming the duties of his date-of-injury job, but his recommended restrictions were in conflict with the
requirements of the position, the Board found that he was disabled and reversed the Office’s decision to terminate
compensation benefits). See also Marvin T. Schwartz, supra note 5.

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ORDER
IT IS HEREBY ORDERED THAT the January 2, 2009 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 12, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, FLOWERY BRANCH
POST OFFICE, Flowery Branch, GA, Employer
__________________________________________

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

Docket No. 16-1462
Issued: April 11, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 1, 2016 appellant filed a timely appeal from a March 2, 2016 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 has established greater than 18 percent permanent
impairment of the right upper extremity, for which she previously received a schedule award.
FACTUAL HISTORY
OWCP accepted that on May 23, 2013 appellant, then a 56-year-old lead customer
service clerk, sustained an acromioclavicular sprain of the right shoulder and upper arm, and

1

5 U.S.C. § 8101 et seq.

reflex sympathetic dystrophy (RSD) syndrome of the right upper extremity while pushing a wire
mail cage. Appellant did not stop work at the time of injury.
In a June 13, 2013 report, Dr. Jesse E. Seidman, an attending Board-certified orthopedic
surgeon, diagnosed an acromioclavicular sprain of the right shoulder with rotator cuff and biceps
tendinitis.2 He provided progress notes through November 4, 2013, recommending arthroscopic
surgery as conservative measures had failed to improve appellant’s symptoms and functioning.
Dr. Seidman held appellant off work as of November 10, 2013. Appellant received wage-loss
compensation benefits beginning on November 19, 2013.
On December 18, 2013 Dr. Seidman performed arthroscopic debridement of the
subscapularis, arthroscopic subacromial decompression, biceps tenotomy, arthroscopic Mumford
procedure, and arthroscopic double row rotator cuff repair, as approved by OWCP. Appellant
remained off work and received compensation on the daily and periodic rolls. She underwent a
series of stellate ganglion blocks in 2014. Dr. Seidman released appellant to light duty as of
August 14, 2014. She returned to work on August 18, 2014.
On August 26, 2014 OWCP obtained a second opinion from Dr. Eric S. Furie, a Boardcertified orthopedic surgeon. He reviewed the medical record and a statement of accepted facts.
Dr. Furie found active residuals of accepted RSD syndrome, with limited motion of the right
wrist and hand, as well as right shoulder weakness. He restricted appellant to lifting no more
than 20 pounds with her right arm and limited reaching above shoulder level with the right upper
extremity. Dr. Furie noted that appellant would reach maximum medical improvement as of
December 18, 2014, one year after surgery.
On January 21, 2015 appellant filed a claim for a schedule award (Form CA-7). In
support of her claim, she provided a January 12, 2015 report from Dr. Seidman, noting active
abduction and forward flexion of the right shoulder at 140 degrees, external rotation at 40
degrees, internal rotation at 30 degrees, and extension at 50 degrees. He found good motion of
the right wrist, slight atrophy in the right hand, and range of motion of the proximal
interphalangeal and metacarpophalangeal joints limited to 90 degrees.
An OWCP medical adviser reviewed Dr. Seidman’s report on February 4, 2015. He
found that appellant had attained maximum medical improvement as of December 18, 2014, one
year after arthroscopic right shoulder surgery. Referring to Table 15-34 of the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment
(hereinafter, A.M.A., Guides),3 he found, utilizing the range of motion methodology, three
percent impairment of the right upper extremity due to forward elevation limited to 140 degrees,
three percent impairment due to shoulder abduction limited to 140 degrees, four percent
impairment due to internal rotation limited to 30 degrees, and two percent impairment for
2

An October 31, 2013 magnetic resonance imaging (MRI) scan of the right shoulder demonstrated
acromioclavicular impingement, full thickness anterior supraspinatus tendon tear, full thickness superior
subscapularis tear, infraspinatus tendinosis, a partial tear and dislocation of the biceps tendon, a superior labrum
anterior and posterior tear of the glenoid labrum, and subacromial bursitis.
3

A.M.A., Guides 475, Table 15-34 (sixth edition) is entitled “Shoulder Range of Motion.”

2

external rotation limited to 40 degrees. The medical adviser combined these percentages to
equal 12 percent permanent impairment of the right upper extremity.
In a March 2, 2015 letter, Dr. Seidman found that appellant had attained maximum
medical improvement as of January 12, 2015. He opined that appellant had 18 percent
permanent impairment of the right upper extremity according to unspecified portions of the
A.M.A., Guides.
An OWCP medical adviser reviewed Dr. Seidman’s report on April 10, 2015 and
concurred that appellant had 18 percent permanent impairment of the right upper extremity due
to limited right shoulder and finger motion. She found that it was appropriate to use the range of
motion rating method as opposed to a diagnosis-based impairment (DBI) methodology, because
appellant’s RSD syndrome manifested itself primarily through limited shoulder and hand motion.
By decision dated May 5, 2015, OWCP granted appellant a schedule award for 18
percent permanent impairment of the right upper extremity. The period of the award ran from
January 12, 2015 to February 9, 2016.
In a May 18, 2015 letter, appellant requested a telephonic oral hearing, held before an
OWCP hearing representative on December 15, 2015. At the hearing, she described continued
limited motion in her right hand and shoulder. Appellant’s husband presented information and
quoted newspaper articles about RSD syndrome. Appellant submitted photographs illustrating
her limited hand motion, including the inability to make a fist with her right hand. Following the
hearing, she submitted a January 12, 2015 report from Dr. Seidman, releasing her to full duty,
and physical therapy notes.
By decision dated March 2, 2016, OWCP’s hearing representative affirmed OWCP’s
May 5, 2015 schedule award determination, finding that the additional evidence submitted did
not establish that appellant sustained greater than 18 percent permanent impairment of the right
upper extremity.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.4 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.5 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 under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing

4

See 20 C.F.R. §§ 1.1-1.4.

5

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).

3

5 U.S.C.

regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.6
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).7 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.8
ANALYSIS
The issue on appeal is whether appellant has established greater than 18 percent
permanent impairment of the right upper extremity, for which she previously received a schedule
award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the range of
motion methodology when assessing the extent of permanent impairment for schedule award
purposes.9 The purpose of the use of uniform standards is to ensure consistent results and to
ensure equal justice under the law to all claimants.10 In T.H., the Board concluded that OWCP
physicians are at odds over the proper methodology for rating upper extremity impairment,
having observed attending physicians, evaluating physicians, second opinion physicians,
impartial medical examiners, and district medical advisers use both DBI and range of motion
methodologies interchangeably without any consistent basis. Furthermore, the Board has
observed that physicians interchangeably cite to language in the first printing or the second
printing when justifying use of either range of motion or DBI methodology. Because OWCP’s

6

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
8

Isidoro Rivera, 12 ECAB 348 (1961).

9

T.H., Docket No. 14-0943 (issued November 25, 2016).

10

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

4

own physicians are inconsistent in the application of the A.M.A., Guides, the Board finds that
OWCP can no longer ensure consistent results and equal justice under the law for all claimants.11
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the March 2, 2016 decision.
Following OWCP’s development of a consistent method for calculating permanent impairment
for upper extremities to be applied uniformly, and such other development as may be deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper extremity
schedule award.
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 2, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: April 11, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
11

Supra note 9.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Chicago, IL,
Employer
__________________________________________

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

Docket No. 21-0155
Issued: October 6, 2021

Case Submitted on the Record

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

JURISDICTION
On November 13, 2020 appellant filed a timely appeal from an August 10, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 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.
ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted December 20, 2018 employment incident.
1
The Board notes that, following the August 10, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for
the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence
for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 3. The facts and circumstances as set forth
in the Board’s prior order are incorporated herein by reference. The relevant facts are as follows.
On December 21, 2018 appellant, then a 62-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on December 20, 2018 at 12:30 p.m. she sustained a head
contusion when an all-purpose container (APC) bar closure fell down and struck her head while in
the performance of duty. 4 She explained that the APC bar was not secured in the APC closure latch.
Appellant stopped work on December 20, 2018 and returned to work on December 24, 2018.
In a December 20, 2018 medical report, Dr. James Devries, Board-certified in emergency
medicine, noted that appellant was injured that day when she was loading shelves and some
materials fell on her head. He observed that she had a history of a slipped disc in her neck and noted
that she sustained no lacerations or any evidence of a basilar skull fracture on examination.
Dr. Devries diagnosed an injury of the head and neck pain. In a medical note of even date, he
requested that appellant be excused from work from December 20 to 22, 2018 due to her injury.
In an attending physician’s report (Form CA-20), also dated December 20, 2018,
Dr. Devries indicated that appellant was loading mail when she fell forward and struck her head.
He diagnosed a blunt head injury.
On December 20, 2018 Dr. Miral Jhaveri, a Board-certified radiologist, performed a
computerized tomography (CT) scan of appellant’s brain, noting no acute intracranial abnormality.
In a separate diagnostic report of even date, Dr. Sudeep Bhabad, a Board-certified radiologist,
conducted a CT scan of her cervical spine, noting no acute displaced frac ture, compression
deformity or traumatic subluxation as well as multilevel degenerative changes.
In a January 17, 2019 medical report, Dr. Chmell, a Board-certified orthopedic surgeon,
observed that appellant sustained an injury at work when she was struck in the head by an APC
door. He noted that she experienced headaches, head and neck pain , as well as left-sided cervical
spasms and tenderness with a positive Spurling’s test. Dr. Chmell reviewed a CT scan of appellant’s
head that did not reveal any brain injury, as well as a CT scan of her cervical spine that demonstrated
multilevel disc protrusions. He diagnosed bilateral CTS, cervical disc displacement, a left shoulder
rotator cuff tear and right lateral elbow epicondylitis with respect to her continued treatment under
OWCP File No. xxxxxx767. Dr. Chmell subsequently diagnosed multilevel cervical disc protrusion
with radiculopathy in the left upper extremity with respect to the present case and the December 20,
2018 employment incident. In a duty status report (Form CA-17) of even date, he noted that
appellant was hit on the head and neck by an APC and provided work restrictions.

3

Order Remanding Case, Docket No. 19-1357 (issued March 30, 2020).

4

OWCP assigned File No. xxxxxx535 to this claim. The Board notes that OWCP previously accepted an
occupational disease claim for tenosynovitis of the hands and wrists, bilateral carpal tunnel syndrome (CTS), a displaced
cervical intervertebral disc, and a complete left rotator cuff rupture due to factors of her federal employment under
OWCP File No. xxxxxx767.

2

In medical notes dated January 17 and February 14, 2019, Dr. Chmell continued to diagnose
bilateral CTS, cervical disc displacement and a left shoulder rotator cuff tear with respect to OWCP
File No. xxxxxx767 and a cervical disc protrusion.
In a February 14, 2019 medical report, Dr. Chmell noted that appellant was experiencing
severe neck and head pain and that she demonstrated marked limitation in motion with tenderness
and muscle spasms in her cervical spine since the December 20, 2018 employment incident. On
physical examination he reiterated his prior diagnoses. Dr. Chmell recommended that appellant
undergo a magnetic resonance imaging (MRI) scan of her cervical spine for further evaluation.
In an undated statement, appellant asserted that on December 20, 2018 at 12:35 p.m. she was
loading an APC with boxes and, as she was closing the bottom rack, the top rack of the APC popped
open and slammed down onto her head. She alleged that she sustained a knot on her head and had
experienced headaches as a result.
In undated witness statements, S.P. and V.M., appellant’s coworkers, indicated that on
December 20, 2018 appellant was hit on the head by the top rack of the APC while she was trying
to close the bottom rack.
In a March 26, 2019 development letter, OWCP advised appellant of the deficiencies of her
claim and instructed her as to the factual and medical evidence necessary to establish her claim. It
provided her with a questionnaire and also requested that she submit a narrative medical report from
her physician, which contained a detailed description of findings and diagnoses, explaining how the
reported incident caused or aggravated her medical condition. OWCP afforded ap pellant 30 days
to respond.
In a February 23, 2019 medical report, Dr. Chmell indicated that appellant sustained an
injury to her cervical spine on December 20, 2018 when she was struck on the head by an APC door.
He diagnosed a multilevel cervical disc protrusion and explained that when she was struck on the
head by the heavy APC door, she sustained a severe axial load to her cervical spine. Dr. Chmell
noted that this was a common cause of serious cervical spine injuries.
In a March 11, 2019 diagnostic report, Dr. Ada Kumar, a Board-certified radiologist,
performed an MRI scan of appellant’s cervical spine, revealing spondylosis of the cervical spine.
In a March 21, 2019 medical report, Dr. Chmell noted that appellant continued to experience
severe neck pain. On examination and review of her MRI scan, he diagnosed multiple cervical disc
herniations with upper extremity radiculopathy due to the December 20, 2018 employment incident.
By decision dated April 30, 2019, OWCP denied appellant’s traumatic injury claim, finding
that the medical evidence of record was insufficient to establish that her diagnosed condition was
causally related to the accepted December 20, 2018 employment incident.
OWCP continued to receive evidence. Appellant submitted a December 20, 2018
emergency medical services report, which indicated that, while she was at work, a rack of some sort
hit her on top of her head. The report noted no trauma or lasting visual disturbance.

3

In a December 26, 2018 medical report, Dr. Paul Ruestow, a Board-certified
endocrinologist, observed that appellant was struck in the head by a steel plate wh ile she was at
work on December 20, 2018. He noted that her cervical spine showed disc disease and diagnosed
cervical neuritis.
In an April 18, 2019 medical report, Dr. Chmell noted that appellant continued to experience
severe neck pain and stiffness due to the claimed December 20, 2018 employment injury. He
recommended that she participate in physical therapy in order to treat her condition .
Dr. Chmell explained in a May 16, 2019 medical report that, while appellant suffered from
degenerative changes of the cervical spine prior to her December 20, 2018 injury, those changes
were not causing her to experience the symptoms she had been experiencing since the accepted
December 20, 2018 employment incident. He opined that her injury was a traumatic aggravation of
degenerative disc disease of the cervical spine. Dr. Chmell opined that it was more likely than not
that the December 20, 2018 employment incident caused additional disc protrusion at multiple
levels.
On June 4, 2019 appellant appealed to the April 30, 2019 decision to the Board. By order
dated March 30, 2020,5 the Board set aside the April 30, 2019 OWCP decision. The Board
remanded the case for OWCP to administratively combine OWCP File No. xxxxxx767 with the
present claim under OWCP File No. xxxxxx535 and to further evaluate the evidence to determine
whether appellant sustained either an injury on December 20, 2018 due to the accepted employment
incident or experienced progression of a previously accepted employment injury. The Board
directed OWCP to issue a de novo decision following any necessary further development.
OWCP subsequently administratively combined OWCP File No s. xxxxxx767 and
xxxxxxx535, with OWCP File No. xxxxxxx767 serving as the master file.
By decision dated August 10, 2020, OWCP denied appellant’s traumatic injury claim, under
OWCP File No. xxxxx535, finding that she had not submitted medical evidence containing a
medical diagnosis in connection with the accepted December 20, 2018 employment incident. Thus,
it found that the requirements had not been met to establish an injury defined by FECA. OWCP
explained that the medical evidence did not reflect or indicate any new injury or aggravation of her
preexisting cervical condition and provided that the alleged pain was identified as a symptom of her
preexisting cervical condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA 6 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

5

Supra note 3.

6

Supra note 2.

4

FECA,7 that an injury was sustained in the performance of duty as alleged, and that any disability
or medical condition for which compensation is claimed is causally related to the employment
injury.8 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. 9
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. The first component is that 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. 10
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 11 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment incident
identified by the employee. 12
ANALYSIS
The Board finds that this case is not in posture for decision.
In his January 17, 2019 medical report, Dr. Chmell recounted the events of the December 20,
2018 employment incident in which appellant was struck in the head by an APC door while at work
and noted the subsequent symptoms of pain in her head and neck as a result. On review of CT scans
of her head and cervical spine, he diagnosed multilevel cervical disc protrusion with radiculopathy
in the left upper extremity. Dr. Chmell’s subsequent medical reports distinguished the diagnoses of
bilateral CTS, cervical disc displacement, a left shoulder rotator cuff tear and right lateral elbow
epicondylitis as related to appellant’s previously accepted claim under OWCP File No. xxxxxx767
and differentiated her diagnosis of multilevel cervical disc protrusion with radiculopathy in the left
upper extremity as being related to the accepted December 20, 2018 employment incident in the
7

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).
8

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).
9

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).
10

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).
11

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
12

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).

5

present claim under OWCP File No. xxxxxx535. Specifically, in his May 16, 2019 medical report,
he acknowledged that appellant had preexisting degenerative changes of the cervical spine prior to
the accepted December 20, 2018 employment incident. Dr. Chmell explained, however, that the
December 20, 2018 employment incident was a traumatic aggravation of degenerative disc disease
of her cervical spine that caused additional disc protrusion at multiple levels. Therefore, the Board
finds that the evidence of record establishes a diagnosed medical condition.
However, OWCP has not reviewed the medical evidence of record. As the medical evidence
of record establishes a diagnosed medical condition, the case must be remanded for consideration
of the medical evidence with regard to the issue of causal relationship. Following this and other
such further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that appellant has met her burden of proof to establish a diagnosed medical
condition. The Board further finds, however, that this case is not in posture for decision as to
whether her diagnosed medical condition is causally related to the accepted December 20, 2018
employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 10, 2020 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: October 6, 2021
Washington, DC

Alec J. Koromilas, Chief 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
__________________________________________
R.S., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISIONS, Marion, IL, Employer
__________________________________________

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

Docket No. 15-575
Issued: April 22, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 16, 2015 appellant, through counsel, filed a timely appeal from an
October 22, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained neck strain, migraines, and numbness of the
arms and hands causally related to factors of her federal employment.
FACTUAL HISTORY
On November 7, 2013 appellant, then a 40-year-old case manager, filed an occupational
disease claim alleging neck strain and stiffness, migraines, numbness in her arms and hands, and
loss of motion causally related to factors of her federal employment. She described the work

1

5 U.S.C. § 8101 et seq.

factors to which she attributed her condition, including typing, working on a computer, lifting
heavy files, bending over to file, and combat training. Appellant did not stop work.
By letter dated December 5, 2013, OWCP requested that appellant provide additional
factual and medical information, including a detailed report from her attending physician
addressing the causal relationship between any diagnosed condition and her employment. It
further advised her that a chiropractor was considered a physician under FECA only to the extent
that he or she diagnosed a subluxation by x-ray.
In a decision dated February 5, 2014, OWCP denied appellant’s claim on the grounds that
she did not establish an employment-related condition. It accepted the identified work factors
but found that appellant had failed to submit any supporting medical evidence.
On March 5, 2014 appellant, through counsel, requested a telephone hearing.
On September 11, 2014 appellant submitted chiropractic reports dated June 8 through
November 19, 2013. In an initial evaluation dated June 8, 2013, Dr. Angela Baxter, a
chiropractor, discussed her complaints of discomfort in the lumbosacral spine, left and right
cervical spine, and upper thoracic spine. She interpreted x-rays as showing reduced lumbar
lordosis, reversed cervical lordosis, disc space narrowing at T12 to L2, a superior right ilium,
cervical spondylosis, and facet arthropathy. Dr. Baxter diagnosed lumbar fusion, lumbar
spondylosis, cervical spondylosis, and idiopathic scoliosis by x-ray. Following examination, she
diagnosed lumbar intervertebral disc displacement without myelopathy, cervical spondylosis
without myelopathy, postural kyphosis, lumbalgia, cervicalgia, tension headaches, unspecified
myalgia, and myositis, pelvic segmental dysfunction, sacroillitis, deconditioning syndrome,
unequal leg length, sacral segmental dysfunction, and thoracic segmental dysfunction.
In chiropractic reports dated June 20 through November 14 2013, Dr. Baxter described
her treatment of appellant and provided the same diagnoses. In a report dated October 7, 2013,
she related that a magnetic resonance imaging (MRI) scan study of the cervical spine revealed a
disc bulge at C6-7, a disc protrusion compressing the left foot at C7, an annular bulge with spinal
narrowing at C4-5, disc protrusions at C3-4 and T1-2, and foraminal stenosis at C6-7.
In an undated report received by OWCP on September 11, 2014, Dr. Baxter advised that
appellant had “frequent exacerbation[s]” of her neck and back pain as a result of her
employment. The chiropractor reviewed her work duties and noted that stress with a coworker
aggravated her “neck pain and myospasm. It appears as though her occupation is contributing to
and aggravating her spinal conditions.”
Appellant also received treatment from Dr. Ronald D. Smith, a chiropractor. In a report
dated May 20, 2013, Dr. Smith indicated that she had “[m]ultiple subluxations with spasm,
hypomobility and point tenderness” at C1 on the left, C2 on the right, T1 on the left, and T8 and
T7. He diagnosed lumbar intervertebral disc displacement without myelopathy, cervical
spondylosis without myelopathy, postural kyphosis, lumbalgia, cervicalgia, tension headaches,
unspecified myalgia, and myositis, pelvic segmental dysfunction, sacroillitis, deconditioning
syndrome, unequal leg length, sacral segmental dysfunction, and thoracic segmental dysfunction.
Dr. Smith provided similar reports dated May 28 through November 19, 2013 indicating that
appellant had multiple subluxations at various spinal locations and providing the same diagnoses.

2

By decision dated October 22, 2014, the hearing representative affirmed the February 5,
2014 decision. She found that the chiropractic reports were of no probative value as the
chiropractor did not diagnosis a subluxation by x-ray.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;5 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;6 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.7
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
medical background of the claimant,8 must be one of reasonable medical certainty9 explaining
the nature of the relationship between the diagnosed condition and the specific employment
factors identified by the claimant.10
Section 8101(2) of FECA provides that the “term ‘physician’ includes chiropractors only
to the extent that their reimbursable services are limited “to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist….”11 A
2

5 U.S.C. § 8101 et seq.

3

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Ellen L. Noble, 55 ECAB 530 (2004).

5

Michael R. Shaffer, 55 ECAB 386 (2004).

6

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

7

Beverly A. Spencer, 55 ECAB 501 (2004).

8

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

9

John W. Montoya, 54 ECAB 306 (2003).

10

Judy C. Rogers, 54 ECAB 693 (2003).

11

5 U.S.C. § 8101(2); see also Michelle Salazar, 54 ECAB 523 (2003).

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chiropractor cannot be considered a physician under FECA unless it is established that there is a
subluxation as demonstrated by x-ray evidence.12 OWCP’s regulations at 20 C.F.R. § 10.5(bb)
define subluxation as an incomplete dislocation, off-centering, misalignment, fixation or
abnormal spacing of the vertebrae which must be demonstrable on any x-ray film to an
individual trained in the reading of x-rays.13
ANALYSIS
Appellant alleged that she experienced neck stiffness and strain, migraine headaches,
numbness of the arms and hands, and reduced motion as a result of her work duties. OWCP
accepted the occurrence of the claimed employment factors. The issue, therefore, is whether the
medical evidence establishes a causal relationship between the claimed conditions and the
identified employment factors.
Appellant submitted chart notes dated June 8 through November 19, 2013 from
Dr. Baxter, a chiropractor. On June 8, 2013 Dr. Baxter found that x-rays showed reduced lumbar
lordosis, a reversed cervical lordosis, T1 to L2 disc space narrowing, cervical spondylosis, and
idiopathic scoliosis. In progress reports dated June through November 19, 2013, Dr. Baxter
diagnosed lumbar intervertebral disc displacement without myelopathy, cervical spondylosis
without myelopathy, postural kyphosis, lumbalgia, cervicalgia, tension headaches, unspecified
myalgia and myositis, pelvic segmental dysfunction, sacroillitis, deconditioning syndrome,
unequal leg length, sacral segmental dysfunction, and thoracic segmental dysfunction. On
October 7, 2013 Dr. Baxter opined that an MRI scan study showed a disc bulge at C6-7, a disc
protrusion compressing the left root at C7, an annular bulge with spinal narrowing at C4-5, disc
protrusion at C3-4 and T1-2, and foraminal stenosis at C6-7. In an undated report received by
OWCP on September 11, 2014, she found that appellant sustained exacerbations of neck and
back pain as a result of her work duties. As discussed, however, section 8101(2) of FECA
provides that the term ‘physician’ includes chiropractors only to the extent that their
reimbursable services are limited to treatment consisting of manual manipulation of the spine to
correct a subluxation as demonstrated by x-ray to exist.14 A chiropractor cannot be considered a
physician under FECA unless it is established that there is a subluxation as shown by x-ray
evidence.15 Dr. Baxter did not diagnose a subluxation by x-ray; therefore, she is not considered a
physician under FECA and her reports are of no probative value.16
In reports dated March 20 through November 19, 2013, Dr. Smith, a chiropractor,
advised that appellant had multiple subluxations at various levels of the cervical and thoracic
spine. He diagnosed lumbar intervertebral disc displacement without myelopathy, cervical
spondylosis without myelopathy, postural kyphosis, lumbalgia, cervicalgia, tension headaches,
unspecified myalgia and myositis, pelvic segmental dysfunction, sacroiliitis, deconditioning
12

See Mary A. Ceglia, 55 ECAB 626 (2004).

13

20 C.F.R. § 10.5(bb).

14

5 U.S.C. § 8101(2); see also I.C., Docket No. 14-1927 (issued February 13, 2015).

15

Supra note 13; see supra note 12.

16

See Isabelle Mitchell, 55 ECAB 623 (2004).

4

syndrome, unequal leg length, sacral segmental dysfunction, and thoracic segmental dysfunction.
While Dr. Smith noted that appellant had subluxations, he did not provide any indication that he
reviewed any x-rays in reaching this determination. As his finding of a spinal subluxation was
not based on an x-ray reading, he is not considered a physician under FECA.17
Appellant has not submitted any evidence from a physician finding that she sustained a
diagnosed condition as a result of the identified work factors; consequently, she has not met her
burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained neck strain,
migraines, and numbness of the arm and hand causally related to factors of her federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the October 22, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 22, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

17

See K.D., Docket No. 11-16 (issued August 16, 2011).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, CAYEY POST
OFFICE, Cayey, PR, Employer
__________________________________________
Appearances:
Thomas S. Harkins, Esq.
Office of the Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 21-1337
Issued: March 18, 2022

Case Submitted on the Record

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

On September 6, 2021 counsel filed an appeal from a decision of the Office of Workers’
Compensation Programs (OWCP). The Office of the Clerk of the Appellate Boards assigned
Docket No. 21-1337 to this appeal. 1
The Board has duly considered the matter and recognizes that the current appeal was not
filed by appellant or his authorized representative. Section 501.3(a) of the Board’s Rules of
Procedure provides that a “person adversely affected by a final decision of the Director [of OWCP]
or his or her authorized Representative, may file an appeal of such decision by the Board .”2 The
Board concludes that neither a “person adversely affected” by a final OWCP decision, nor an
“authorized Representative,” has filed an appeal to the Board. As such, there is no valid appeal
before the Board and Docket No. 21-1337 must be dismissed.3 Accordingly,

1

By letter dated October 8, 2021 counsel advised the Board that he did not represent appellant and had inadvertently
filed the current appeal.
2

20 C.F.R. § 501.3(a).

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
3

IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1337 is dismissed.
Issued: March 18, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE ARMY, U.S. ARMY
)
MEDICAL COMMAND, Fort Bliss, TX,
)
Employer
)
___________________________________________ )
M.V., Appellant

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

Docket No. 13-1502
Issued: November 18, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On June 11, 2013 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) merit decision dated February 5, 2013 that denied her claim.
The record also contains an OWCP decision dated March 20, 2013 denying appellant’s request
for reconsideration, without a merit review, pursuant to 5 U.S.C. § 8128(a). 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 appellant has met her burden of proof to establish an injury
in the performance of duty; and (2) whether OWCP properly refused to reopen appellant’s case
for further review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 29, 2012 appellant, then a 60-year-old patient administration clerk, filed an
occupational disease claim alleging that she had pain in both hands and arms due to repetitive
use of the hands due to typing and filing patient medical reports. She indicated that she first
realized the disease or illness was caused or aggravated by her employment on October 1, 2012.
Appellant did not stop work.
In support of her claim, appellant submitted a statement in which she described her
duties, which included repetitive typing, filling out numerous forms and filling out records. Her
supervisor concurred with her statement describing her duties.
OWCP received a follow-up appointment slip and an October 23, 2012 disability
certificate from a physician’s assistant.
In letters dated November 16, 2012, OWCP requested additional factual and medical
evidence from appellant and the employing establishment.
In a December 7, 2012 statement, appellant described her duties and indicated that she
believed that the repetitive nature of her duties was the cause of her arm pain. She also noted
that her outside duties included reading, walking outside and using the elliptical depending upon
the weather. Appellant indicated that her husband did the cooking; she did not do sports or play
any musical instruments.
In a January 14, 2013 progress note, Virginia Lopez, a physical therapist, noted that
appellant was having pain in her right shoulder and elbow and bilateral wrists. She indicated that
appellant fell a few years earlier on her outstretched arm, previously had elbow pain and was
diagnosed with epicondylitis. Ms. Lopez noted that appellant received physical therapy and was
having increasing symptoms in her arms.
By decision dated February 5, 2013, OWCP denied appellant’s claim finding that she
failed to submit the necessary medical evidence in support of her claim. It noted that she did not
submit any medical evidence that gave a complete history, a definitive diagnosis and the cause of
the injury in connection with the injury and/or events.
Appellant requested reconsideration of OWCP’s February 5, 2013 decision on
March 11, 2013. OWCP received a copy of the January 14, 2013 progress notes from a physical
therapist.
In a February 26, 2013 report, Dr. Phillip J. Lavallee, Board-certified in occupational
medicine noted that appellant initially started having pain in October 2012 and that she worked
as a patient administration clerk and data transcriber. He explained that she was initially seen on
October 23, 2012 for her complaints of pain in the right shoulder, elbow wrist and hand and
explained that her workload had increased. Dr. Lavallee advised that appellant complained of
right hand, wrist, and elbow pain and her pain progressively worsened. He indicated that her
pain was worse with typing, writing and filing. Dr. Lavallee noted that appellant had a previous
claim in 2002 for similar symptoms and occupational therapy was helpful. He examined her and
provided findings. Dr. Lavallee diagnosed wrist pain, hand pain and lateral epicondylitis. He
2

noted that the therapist recommended continued therapy. Dr. Lavallee opined “I believe this
condition is work related. The symptoms began with the added workload. The [patient] has
continued to work and although the workload has remained the same, the changes to her
workstations and therapy have helped.” Dr. Lavallee recommended continued therapy.2
By decision dated March 20, 2013, OWCP denied appellant’s request for reconsideration
finding that she failed to submit either new and relevant evidence or legal contentions not
previously considered. It noted that the February 26, 2013 report came from a physician’s
assistant and was not relevant unless countersigned by a physician.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged and
that any disability and/or specific condition for which compensation is claimed are causally related
to the employment injury.3 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.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is 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 a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by the
claimant.5

2

The report was also signed by a physical therapist.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

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

5

Id.

3

ANALYSIS -- ISSUE 1
In the instant case, appellant alleged that her bilateral upper extremity was caused by the
repetitive use of her hands in the performance of duty. The Board initially notes that there is no
evidence refuting that the claimed employment factor, that her position required her to
repetitively use her hands in the performance of duties, which included typing and filling out
forms. Consequently, the Board finds that appellant has established that she used her hands on a
repetitive basis. However, OWCP denied the claim finding that she did not provide any medical
evidence to establish that a medical condition was diagnosed in connection with the claimed
event or work factors.
The Board finds that appellant has not submitted any medical evidence to establish that
her bilateral upper extremity condition was caused or aggravated by typing and filling out forms
at work or any other specific factors of her federal employment. The Board notes that there were
no medical records submitted by a physician which contained a rationalized medical opinion
explaining the cause of appellant’s bilateral upper extremity condition.6 OWCP informed
appellant of the deficiencies in the medical evidence and what was needed to establish her claim
in a letter dated November 16, 2012. However, the only evidence received was a January 14,
2013 progress note from a physical therapist. Health care providers such as nurses,
acupuncturists, physician’s assistants and physical therapists are not physicians under FECA.
Thus, their opinions on causal relationship do not constitute rationalized medical opinions and
have no weight or probative value.7
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.8
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.9 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
As there is no probative, rationalized medical evidence addressing and explaining why
appellant’s bilateral upper extremity condition was caused and/or aggravated by factors of her
employment, appellant has not met her burden of proof in establishing that she sustained a
medical condition in the performance of duty causally related to factors of employment.

6

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).
7

Jane A. White, 34 ECAB 515, 518 (1983).

8

See Joe T. Williams, 44 ECAB 518, 521 (1993).

9

Id.

4

LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,10
OWCP’s regulations provide that a claimant’s application for reconsideration must be submitted
in writing and set forth arguments or contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.11 To be entitled to a merit review of OWCP’s decision
denying or terminating a benefit, a claimant must file his or her application for review within one
year of the date of that decision.12 When a claimant fails to meet one of the above standards,
OWCP will deny the application for reconsideration without reopening the case for review on the
merits.13
ANALYSIS -- ISSUE 2
Appellant requested reconsideration on March 11, 2013. In support of her claim for an
occupational disease, she submitted a February 26, 2013 report, from Dr. Lavallee. OWCP
specifically noted that the February 26, 2013 report came from a physician’s assistant and was
not relevant unless countersigned by a physician. However, this report is relevant as it was
signed by Dr. Lavallee, a physician, Board-certified in occupational medicine, and he supported
that appellant’s medical condition was employment related. The Board finds that this new
evidence is relevant to the medical causation issue in the present case. As appellant provided
relevant and pertinent new evidence not previously considered, OWCP improperly denied her
reconsideration request. Therefore, OWCP was obligated to conduct a merit review of the
claim.14
Reopening a claim for merit review does not require a claimant to submit all evidence
that may be necessary to discharge his burden of proof.15 If OWCP should determine that the
new evidence submitted lacks probative value, it may deny modification of the prior decision,
but only after the case has been reviewed on the merits.16 On remand OWCP shall conduct a
merit review of the case and issue an appropriate merit decision.

10

5 U.S.C. § 8128(a). Under section 8128(a) of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.
11

20 C.F.R. §§ 10.609(a) and 10.606(b).

12

Id. at § 10.607(a).

13

Id. at § 10.608(b).

14

D.M., Docket No. 10-1844 (issued May 10, 2011).

15

See Kenneth R. Mroczkowski, 40 ECAB 855 (1989); Helen E. Tschantz, 39 ECAB 1382 (1988).

16

See Dennis J. Lasanen, 41 ECAB 933 (1990).

5

On appeal, appellant argued that her report was signed by a physician. The Board has
noted that the report was signed by a physician and the case is being remanded for further
development.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty. The Board further finds that OWCP improperly
denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the February 5, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed. The March 20, 2013 decision is remanded for a
merit review.
Issued: November 18, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6