United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phoenix, AZ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1526
Issued: December 22, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 6, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decision dated March 26, 2008, which denied his request for
reconsideration. He also appealed the Office’s November 16, 2007 decision denying his
occupational disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof that he sustained an
occupational disease in the performance of duty; and (2) whether the Office properly denied
appellant’s request for reconsideration.
FACTUAL HISTORY
On September 14, 2007 appellant, then a 47-year-old timekeeping clerk, filed an
occupational disease claim alleging that he sustained carpal tunnel issues in both wrists and
muscle fatigue and inflammation in both forearms as a result of repetitive motion activity. He

stated that “all” of his assignments were repetitive and that he first became aware of his
condition on August 1, 2000. Appellant did not stop work.
On September 18, 2007 the employing establishment challenged appellant’s claim on the
grounds that he failed to provide objective medical evidence to support his claim of a workrelated condition.
In a September 25, 2007 letter, the Office notified appellant of the type of factual and
medical evidence needed to establish his claim and allowed him to submit such evidence within
30 days. It asked appellant to describe in detail which employment-related activities required
exertion or repeated movement of the wrist or hand.
On October 15, 2007 the Office received appellant’s response. Appellant submitted a
statement that described his condition and listed the various positions he has had with the
employing establishment. The list further stated that each position required appellant to use his
fingers, hands and/or forearms for “eight hours a day, five days per week.” The list also stated
that “except for [appellant’s] current position ..., the repetitive … stress occurred in each location
of employment since 1981.” The list did not state the duties required for each position or
provide any description of any particular physical activities that comprised specific duties.
Appellant also provided evidence from healthcare providers. In a May 4, 2001 medical
report from Dr. Jeffrey Steier, a neurologist, appellant was diagnosed with carpal tunnel
syndrome. A March 8, 2007 report from Roger Quinte, a physician’s assistant, diagnosed
chronic arm muscle fatigue and pain. An August 8, 2007 report from Dr. J. Michael Powers, a
neurologist, provided the results of a nerve conduction study and Dr. Powers’ impression that
appellant has chronic bilateral carpal tunnel syndrome and extensor tenosynovitis in the
forearms. In an updated progress note, Mr. Quinte reported that appellant has a history of carpal
tunnel in both wrists and diagnosed tendinitis of the right arm.
On October 26, 2007 the employing establishment disputed appellant’s allegation that his
work activities contributed to his condition asserting that his positions since 2000 were selfpaced and did not involve repetitive motion. It also submitted a standard position description for
appellant’s time and attendance clerk position.
In a November 16, 2007 decision, the Office denied appellant’s claim for compensation
on the grounds that appellant did not identify any employment factors that he believed caused or
contributed to his condition. It also found that the medical evidence was insufficient to establish
a causal relationship between appellant’s condition and his employment activities.
On February 12, 2008 appellant filed a request for reconsideration of the Office’s
decision dated November 16, 2007. In the reconsideration request, he provided an updated list of
positions he has held at the employing establishment stating that each position required 100
percent manual work. Appellant also submitted the final page of an unsigned treatment note
dated September 8, 2006, which indicated that his job environment contributed to his lateral
epicondylitis. The typed report included a handwritten notation with the words “Dr. John
Marshall” and a telephone number. Additionally, appellant submitted a November 3, 2005
physical therapy assessment, which described his medical history as chronic right arm pain and

2

carpal tunnel-like symptoms for seven years off and on with repetitive motion with right hand
from many years at work.
In a March 26, 2008 decision, the Office denied appellant’s request for reconsideration
on the grounds that he had not provided sufficient evidence to warrant merit review of the
Office’s decision dated November 11, 2007.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was 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. 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.1
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
diagnosed condition is causally related to the employment factors identified by the claimant.2
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that a claimed medical condition was caused or adversely affected by
employment factors. This burden includes the submission of a detailed description of the
employment factors or conditions, which the claimant believes caused or adversely affected the
condition or conditions for which compensation is claimed. If a claimant does establish an
employment factor, he must submit medical evidence showing that a medical condition was
caused by such a factor.3 It is the claimant’s responsibility to prove that work was performed
under these specific conditions at the time, in the manner and to the extent alleged.4

1

J.E., 59 ECAB ___ (Docket No. 07-814, issued October 2, 2007); Elaine Pendleton, 40 ECAB 1143 (1989).

2

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Roy L. Humphrey, 57 ECAB 238 (2005).

3

Effie Morris, 44 ECAB 470 (1993).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Development of Claims, Chapter 2.800.3(a) (April 1993)
(in occupational disease cases, the claimant must submit evidence to identify fully the particular work conditions
alleged to have caused the disease); see also L.B., 59 ECAB ___ (Docket No. 07-1748, issued December 18, 2007)
(stating that the claimant has the burden of proof to identify employment factors believed to have caused or
aggravated a claimed employment-related condition).

3

ANALYSIS -- ISSUE 1
As noted, three criteria must be established in an occupational disease claim. The record
supports that the first requirement, establishing the existence of a disease or medical condition,
has been met as medical reports from Dr. Powers show that appellant has been treated for
bilateral carpal tunnel syndrome and extensor tenosynovitis of the forearms.
However, appellant has not identified employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition. His CA-2 form states that
“repetitive motion activity” from job assignments caused his claimed carpal tunnel and muscle
fatigue. Appellant does not indicate any particular assignments or describe the type of activities
the assignments require. Also, his September 14, 2007 statement lists the positions he has held
at the employing establishment and describes each position as requiring use of fingers, hands and
forearms for “eight hours a day, five days per week.” However, the job descriptions in
appellant’s statement are vague and do not identify specific work activities that cause his carpal
tunnel syndrome or muscle fatigue. For example, in his current position, appellant stated that he
used his fingers, hands, wrists and forearms for eight hours per day and five days per week, but
he did not specify particular job activities that required repetitive use of his fingers, hands, wrists
or forearms. Furthermore, the job description for a time and attendance clerk, provided by the
employing establishment, does not describe duties or responsibilities that require constant
repetitive motion of the fingers, hands and forearms. Additionally, the employing establishment
disputed that appellant’s positions involved repetitive motions and noted that his duties were
self-paced. The Office’s September 25, 2007 letter asked that he describe in detail the work
activities that required exertion or repeated movement of the wrist or hand. Despite the fact that
the Office’s letter advised appellant of the type of factual evidence necessary to support his
claim, he failed to provide such evidence identifying specific work activities that caused his
claimed condition. Consequently, he has not identified employment factors alleged to have
caused or contributed to his claimed condition.
As appellant has not identified employment factors alleged to have caused or contributed
to a diagnosed condition, it is not necessary to consider medical evidence addressing causal
relationship.5 In any event, the medical reports from Dr. Steier and Dr. Powers do not reference
contributing employment factors and also do not provide an opinion as to whether employment
factors caused or adversely affected appellant’s condition.6 Furthermore, reports from
physician’s assistants cannot be considered as medical evidence.7
5

See S.P., 59 ECAB __ (Docket No. 07-1584, issued November 15, 2007); Bonnie Contreras, 57 ECAB 364
(2006) (where a claimant has not established an employment incident alleged to have caused an injury, it is not
necessary to consider the medical evidence).
6

See K.W., 59 ECAB __ (Docket No. 07-1669, issued December 13, 2007) (medical evidence that does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship); Willie Miller, 53 ECAB 697 (2002).
7

See 5 U.S.C. § 8101(2) (defining the types of medical professionals that fall within the meaning of
“physician”); J.M., 58 ECAB __ (Docket No. 06-2094, issued January 30, 2007) (the reports of a physician’s
assistant are entitled to no weight as a physician’s assistant is not a physician as defined by section 8101(2) of the
Act).

4

Therefore, the evidence of record is insufficient to meet appellant’s burden of proof to
establish that his carpal tunnel syndrome and muscle fatigue are causally related to specific
factors of his federal employment.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.8 When a claimant fails to meet
one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.9
The Board has held that the submission of evidence which repeats evidence already in the
record10 or does not address the particular issue involved does not constitute a basis for
reopening a case.11
ANALYSIS -- ISSUE 2
In support of his February 12, 2008 request for reconsideration, appellant provided an
updated narrative statement, a physical therapy assessment, and the final page of an unsigned and
incomplete medical treatment note. His request for reconsideration did not attempt to show that
the Office erroneously applied the law because his request did not identify to a point of law that
should have been applied or interpreted differently. Appellant also did not attempt to advance a
new relevant legal argument given that his updated statement and additional medical notes
sought to support and supplement evidence already in the record. Although he submitted
additional evidence, his updated narrative statement is identical to his November 16, 2007
statement with the exception that each job description also states that “[t]his job was 100 percent
manual work.” This additional description does not address the defect in appellant’s previous
statement given that he did not identify the specific duties that required repetitive use of his
fingers, hands and forearms. This statement is essentially repetitive in nature.12 Therefore,
appellant’s updated narrative does not constitute relevant new evidence not previously
considered by the Office.
The physical therapy assessment cannot be considered as relevant new evidence because
it did not sufficiently identify work factors requiring repetitive motion. The assessment is also
8

20 C.F.R. § 10.606(b)(2).

9

Id. at § 10.608(b).

10

Jerome Ginsberg, 32 ECAB 31 (1980).

11

D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007); Edward Diekemper, 31 ECAB
224 (1979).
12

See supra note 10.

5

not probative as medical evidence because physical therapists are not regarded as physicians as
defined by the Act.13 Therefore, this assessment is insufficient to require a merit review.
Additionally, the September 8, 2006 medical treatment note is not relevant because it is
incomplete, consisting of only the last page of a treatment note that was apparently from the
office of Dr. John Marshall but was not signed by a physician. Because the report is incomplete
and does not identify particular employment duties alleged to have caused appellant’s condition,
it is not relevant.14
Consequently, the Office properly denied appellant’s reconsideration request without a
merit review.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an occupational disease causally related to his federal employment. The Board also
finds that the Office properly denied appellant’s request for reconsideration without conducting a
merit review of the claim.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated March 26, 2008 and November 16, 2007 are affirmed.
Issued: December 22, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board
13

See David Sawchuk, 57 ECAB 316 (2006) (physical therapists are lay individuals not competent to render a
medical opinion under the Act).
14

See R.M., 59 ECAB __ (Docket No. 08-734, issued September 5, 2008) (the Board has found that reports
lacking proper identification, such as unsigned treatment notes, do not constitute probative medical evidence);
Richard Williams, 55 ECAB 343 (2004) (medical reports lacking proper identification cannot be considered as
probative evidence in support of a claim).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Panama City, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-0878
Issued: July 26, 2021

Case Submitted on the Record

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

JURISDICTION
On March 13, 2020 appellant filed a timely appeal from a January 24, 2020 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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the January 24, 2020 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish that the acceptance
of his claim should be expanded to include additional left arm, lower back, neck, and left knee and
leg conditions causally related to his accepted May 28, 2019 employment injury.
FACTUAL HISTORY
On May 28, 2019 appellant, then a 47-year-old law enforcement officer, filed a traumatic
injury claim (Form CA-1) alleging that on that date he sustained injuries to his arms and
experienced pain in his lower back, neck, and left knee and shin when he was involved in a motor
vehicle accident while in the performance of duty. He stopped work on May 28, 2019.
In a June 12, 2019 development letter, OWCP informed appellant that the evidence
submitted was insufficient to establish his claim. It advised him of the type of factual and medical
evidence necessary to establish his claim and provided a questionnaire for completion. OWCP
afforded appellant 30 days to provide the necessary factual information and medical evidence.
Appellant submitted diagnostic testing reports dated May 28, 2019. A cervical
computerized tomography (CT) scan demonstrated mild degenerative disease at the C5-6 level. A
lumbar spine CT scan revealed postoperative changes at L5-S1 level and annular disc bulge
without disc herniation or stenosis at L4-5. A head and brain CT scan showed no acute intracranial
process and evidence of prior sinus surgery. A right hand x-ray film report of appellant’s right
hand revealed no acute process.
By decision dated July 16, 2019, OWCP accepted that the May 28, 2019 employment
incident occurred, as alleged, but denied appellant’s traumatic injury claim as the evidence of
record was insufficient to establish a diagnosis in connection with the accepted employment
incident.
OWCP subsequently received an emergency room discharge instruction sheet dated
May 28, 2019, which indicated that he was treated by Paul J. Oenick, a certified physician
assistant, and Dr. Christopher Singley, a Board-certified family practitioner. Dr. Singley reported
that back pain was usually caused by an injury to the muscles or ligaments of the spine and may
appear after a sudden twisting or bending force (such as in a car accident). He also noted that
appellant was treated for a hand contusion, neck pain, and sprained finger.
A May 28, 2019 left hand x-ray film report showed fractures in the middle phalanx of the
third and fourth digits.
On August 1, 2019 appellant requested a hearing before a representative of OWCP’s
Branch of Hearings and Review.
Appellant subsequently submitted a May 28, 2019 emergency room examination report
signed by Dr. Singley who recounted that appellant was seen for complaints of neck and lumbar
pain, left thumb pain, hand pain, and right hand abrasion following a motor vehicle collision. Upon
examination of appellant’s neck, Dr. Singley observed full range of motion and lower neck
tenderness to palpation. He noted lumbar examination findings of full range of motion and
bilateral lower lumbar muscle spasms to palpation. Examination of appellant’s bilateral hands
2

revealed tenderness and swelling. Dr. Singley reported that neurological examination showed no
motor or sensory deficits. He diagnosed neck, back, finger, and hand pain.
On November 12, 2019 a telephonic hearing was held. Appellant testified that he had
previously undergone back surgery on the L5-S1 level. He explained that he did not look at his
medical records until after his claim was denied and then noticed that he had bulging at C5-6 and
fractures in his left hand.
OWCP subsequently received a motor vehicle accident report about the May 28, 2019
employment incident.
By decision dated January 24, 2020, the hearing representative affirmed the July 16, 2019
decision in part and vacated it in part. He determined that the medical evidence of record was
sufficient to establish that appellant sustained a diagnosis of right hand abrasion causally related
to the accepted May 28, 2019 employment incident. The hearing representative also found that
the medical evidence of record did not establish any other diagnosed condition causally related to
the accepted incident. He noted that the emergency room diagnostic imaging reports were negative
for any acute injuries.3
LEGAL PRECEDENT
Where 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.4
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.5 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.6 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
employment injury.7
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to a claimant’s own intentional misconduct.8 Thus, a subsequent
3
OWCP subsequently issued a February 10, 2020 decision, which accepted appellant’s claim for right hand
abrasion.
4

R.J., Docket No. 17-1365 (issued May 8, 2019); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

5

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

6

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

Id.

8

See S.M., Docket No. 19-0397 (issued August 7, 2019); Mary Poller, 55 ECAB 483, 487 (2004); Arthur Larson
& Lex K. Larson, The Law of Workers’ Compensation 10-1 (2006).

3

injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it
is the direct and natural consequence of a compensable primary injury.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that the
acceptance of his claim should be expanded to include additional left arm, lower back, neck, and
left knee and leg conditions causally related to his accepted May 28, 2019 employment injury.
In support of his claim for expansion, appellant submitted a May 28, 2019 emergency room
examination report and discharge instructions sheet, which indicated that he was treated by
Dr. Singley. Dr. Singley recounted appellant’s complaints of neck and lumbar pain, left thumb
pain, hand pain, and right hand abrasion following a motor vehicle collision at work. He provided
examination findings of appellant’s neck, back, and bilateral hands. Dr. Singley diagnosed neck,
back, finger, and hand pain, hand contusion, and sprained finger.10 While he noted that appellant
was examined following a motor vehicle accident, he did not specifically address the cause of
appellant’s conditions. The Board has found that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.11 This report, therefore, is insufficient to establish expansion of the acceptance of his
claim.12
Appellant submitted CT scan and x-ray film reports, which showed mild degenerative
disease at the C5-6 level, annular disc bulge without disc herniation or stenosis at L4-5, and
fractures in the middle phalanx of the third and fourth digits. The Board has held, however, that
reports of diagnostic tests, standing alone, lack probative value as they do not provide an opinion
on causal relationship between appellant’s employment duties and the diagnosed conditions.
Accordingly, this evidence is not sufficient to meet his burden of proof.13
As the medical evidence of record is insufficient to establish causal relationship between
additional left arm, lower back, neck, and left knee and leg conditions and the accepted May 28,
2019 employment injury, the Board finds appellant has not met his burden of proof to establish his
claim.
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.

9

A.T., Docket No. 18-1717 (issued May 10, 2019); Susanne W. Underwood (Randall L. Underwood), 53 ECAB
139 (2001).
10

Findings of pain or discomfort alone do not satisfy the medical aspect of the fact of injury medical determination.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.4a(6) (August 2012).
11
M.G., Docket No. 19-1863 (issued December 15, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).
12

See K.R., Docket No. 20-1103 (issued January 5, 2021); L.D., Docket No. 19-0350 (issued October 22, 2019).

13

G.S., Docket No. 18-1696 (issued March 26, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that the
acceptance of his claim should be expanded to include additional left arm, lower back, neck, and
left knee and leg conditions causally related to his accepted May 28, 2019 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the January 24, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 26, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Federal Way, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Steven E. Brown, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-628
Issued: July 21, 2014

Case Submitted on the Record

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

JURISDICTION
On January 21, 2014 appellant, through counsel, filed a timely appeal from a
December 19, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly computed appellant’s pay rate for compensation
purposes as of April 11, 2011.
FACTUAL HISTORY
On August 17, 2011 appellant, then a 56-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome,
arthritis, cervical spinal stenosis and degenerative joint disease as a result of her federal
1

5 U.S.C. § 8101 et seq.

employment duties. She stated that she first became aware of her condition on July 10, 1997 and
of its relationship to her employment on July 30, 2010. Appellant continued to work. She
underwent shoulder surgery on April 11, 2011. Appellant did not return to work following this
surgery.
By letter dated September 7, 2011, appellant requested that OWCP note her date of injury
as July 30, 2010 instead of July 10, 1997. By letter dated September 14, 2011, OWCP informed
appellant that the date of injury had been changed to July 30, 2010.
By decision dated April 5, 2012, OWCP accepted appellant’s claim for right permanent
aggravation of shoulder region and primary osteoarthritis of shoulder region and the date of
injury was listed as July 30, 2010.
Appellant filed claim for compensation forms (Form CA-7) for intermittent hours of
leave without pay for the period August 15, 2010 to March 29, 2011.
On August 2, 2012 appellant filed a claim for compensation noting intermittent leave
without pay from July 10, 2010 to August 2, 2012.
An August 2, 2012 worksheet submitted from the employing establishment determined
that appellant’s total earnings one year prior to the date of injury on July 30, 2010 amounted to
$21,258.60.2 The weekly pay rate was calculated as $433.85 based on the 49 weeks appellant
worked, her hourly rate and the average number of hours worked per week during the year in
which her disability began.
By letter dated August 10, 2012, OWCP requested that appellant clarify her CA-7 forms
requesting wage-loss compensation. Appellant was advised that her file had been reviewed and
currently there was no medical evidence to support disability or medical treatment on the dates
listed.
In a letter dated September 6, 2012, appellant responded that July 30, 2010 was the
correct date of injury because that was when her cervical problems began. She explained that the
dates listed on her CA-7 forms were dates of medical visits.
On September 7, 2012 OWCP informed appellant that it had received a request from her
treating physician for medical treatment for a cervical condition, which the record indicated was
related to a fall from a barn in the 1990’s. Appellant was advised that the only accepted
condition was a shoulder condition. She was informed that she should submit medical evidence
which causally related her cervical condition to the accepted injury.
By decision dated September 27, 2012, OWCP denied appellant’s claim for
compensation for the period August 15, 2010 to March 29, 2011 finding that the medical
evidence of record failed to establish disability as a result of her accepted shoulder conditions.

2

The Board notes that appellant was employed as a part-time worker who did not work the same number of hours
per week. 20 C.F.R. § 10.216(b)(2).

2

Appellant filed additional Form CA-7’s for leave without pay beginning April 11, 2011
through December 31, 2011 and continuing.
A December 26, 2012 worksheet submitted from the employing establishment
determined that appellant’s total earnings one year prior to the date of injury amounted to
$17,455.13. The date of injury was noted as April 11, 2011. The weekly pay rate was calculated
as $335.68 based on the 52 weeks appellant worked, her hourly rate and the average number of
hours worked per week during the year her disability began.
By decision dated December 19, 2013, OWCP calculated appellant’s pay rate as $335.68
per week. It noted that the date used to determine her pay rate was April 11, 2011, the date of
her shoulder surgery which established the date her disability began.
LEGAL PRECEDENT
Section 8101(4) of FECA defines monthly pay as the monthly pay at the time of injury,
or the monthly pay at the time disability begins, or the monthly pay at the time compensable
disability recurs if the recurrence begins more than six months after the injured employee
resumes regular full-time employment with the United States, whichever is greater.3 In an
occupational disease claim, the date of injury is the date the employee was last exposed to the
employment conditions which caused or aggravated the claimed condition.4
ANALYSIS
On appeal before the Board, counsel for appellant argues that her pay rate should have
been calculated based on the July 30, 2010 date of injury which would provide a higher pay rate.
The Board finds that the evidence of record establishes that, as this is an occupational
disease claim, the date of injury and the date of disability are the same in this case. The
December 19, 2013 pay rate decision based appellant’s pay rate on her total earnings one year
prior to April 11, 2011, the date OWCP determined that her disability began as a result of her
accepted shoulder surgery. The Board notes that the evidence of record establishes that appellant
continued to work and be exposed to the factors of employment which caused her injury until she
stopped work for her April 11, 2011 shoulder injury.5 With respect to date of injury, it is well
established that in an occupational disease or illness claim, the date of injury is the date of last
exposure to the factors contributing to the injury.6 The Board thus concludes that the date of
injury and the date of disability are the same in this case. Appellant is entitled to monthly pay
based on the greater pay rate, the monthly pay based on the date of injury, the date of disability
3

5 U.S.C. § 8101(4).

4

Manuel Carbajal, 37 ECAB 216 (1985).

5

While appellant stopped work in March 2011, she has not established that she stopped work due to her shoulder
condition.
6

T.K., Docket No. 13-1833 (issued March 10, 2014); see also Henry D. Miles, Docket No. 92-1757 (issued
September 7, 1993); Thomas V. Harper, 32 ECAB 400 (1980).

3

or the date of recurrent disability.7 Since appellant did not return to work following her surgery,
there is no other relevant date of recurrent disability.
While appellant has alleged that her injury occurred in July 2010 when she first
experienced headache, neck and shoulder pain, the evidence of record establishes that the
accepted shoulder condition caused disability as of April 21, 2011, and that is the date of injury
as well.
Section 8114(d) of FECA provides different methods for determining the average annual
earnings depending on the character and duration of the employment:
“(1) If the employee worked in the employment in which he was employed at the
time of his injury during substantially the whole year immediately preceding the
injury and the employment was in a position for which an annual rate of pay -(A) was fixed, the average annual earnings are the annual rate of pay; or
(B) was not fixed, the average annual earnings are the product obtained by
multiplying his daily wage for the particular employment or the average
thereof, if the daily wage has fluctuated by 300, if he was employed on the
basis of a 6-day workweek 280, if employed on the basis of a 5 1/2-day
week and 260, if employed on the basis of a 5-day week.”8
OWCP properly determined that appellant had worked in the employment in which she
was injured for substantially the whole year prior to the injury and that she did not have fixed
annual earnings. It, however, did confirm her annual earnings. Based upon her hourly rate of
pay, and average number of hours worked per day, OWCP calculated appellant’s weekly and
annual total annual earnings for one year prior to April 11, 2011. Appellant’s weekly pay rate
was determined to be $335.68 and her annual earnings totaled $17,455.13. There is no evidence
of record that she was entitled to a higher rate of pay.
CONCLUSION
The Board finds that OWCP properly determined appellant’s rate of pay.

7

Supra note 2.

8

5 U.S.C. § 8114(d).

4

ORDER
IT IS HEREBY ORDERED THAT the December 19, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 21, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting 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
__________________________________________
B.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Washington DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1676
Issued: December 21, 2007

Case Submitted on the Record

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

JURISDICTION
On June 7, 2007 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated March 9, 2007 terminating her compensation and medical
benefits and a nonmerit decision dated April 6, 2007. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merit and nonmerit issues of this case.
ISSUES
The issues are: (1) whether the Office has met its burden of proof to terminate
appellant’s compensation and medical benefits effective March 18, 2007 on the grounds that she
had no continuing disability or medical residuals causally related to her accepted lumbosacral
sprain; and (2) whether the Office properly declined to reopen appellant’s claim for
consideration of the merits under section 8128(a) of the Federal Employees’ Compensation Act.

FACTUAL HISTORY
On March 5, 1975 appellant, then a thirty-one-year-old nursing assistant, filed a traumatic
injury claim alleging that on February 9, 1975 she experienced pain in her back and neck after
turning a patient. She stopped work on February 15, 1975 and returned to work on
February 17, 1975. Appellant filed a second traumatic injury claim on February 9, 1976. She
alleged that she developed back pain when assisting a patient to sit up in bed. The Office
accepted appellant’s claim for chronic lumbosacral strain with radiculopathy and entered
appellant on the periodic rolls on September 24, 1976. By decision dated August 20, 1979, the
Office denied appellant’s claim for continuing compensation beyond September 13, 1979. It
vacated this decision on March 26, 1982 and retroactively reinstated appellant’s compensation
benefits for temporary total disability on December 28, 1982.
Appellant returned to work as a part-time floral designer on July 15, 1983. The Office
issued a loss of wage-earning capacity determination on August 15, 1983 based on her actual
earnings.
Appellant’s attending physician, Dr. Cecil H. Neville, Jr., a Board-certified orthopedic
surgeon, completed a report on February 17, 1999 and diagnosed degenerative disc disease at
L5-S1 with radiculopathy. He opined that appellant was totally disabled. In a letter dated
June 12, 2000, the Office requested that appellant provide medical records in support of her
continued disability. Appellant submitted a form report completed by a physician’s assistant.
The Office requested additional medical information by letter dated December 6, 2004.
Appellant submitted a form report dated January 6, 2005 completed by a physician’s assistant.
By letter dated June 27, 2005, the Office requested that appellant provide a detailed narrative
medical report addressing her current condition. Appellant submitted a form report completed
by a physician’s assistant dated July 6, 2005.
The Office referred appellant for a second opinion evaluation with Dr. Donald Getz, a
Board-certified orthopedic surgeon, to determine if she continued to experience residuals of her
1976 employment injury. Dr. Getz examined appellant on February 23, 2006. He noted her
history of injury and accepted condition. Dr. Getz also noted that appellant experienced the
additional conditions of asthma and exogenous obesity. He examined her, noting that appellant
had waddling gait consistent with her body habitus of massive exogenous obesity that she could
not walk on her toes, but could walk on her heels for a few steps. Dr. Getz found that appellant
could bend to her knees with difficulty and had difficulty standing and rising from a chair.
Appellant’s reflexes were equal and hypoactive. He diagnosed massive exogenous obesity,
degenerative disease with osteoarthritis of the spine and degenerative arthritis of the knees.
Dr. Getz stated, “In my opinion any disability associated with [appellant’s] original injury of
February 9, 1976 has ceased and has been replaced by progressive spinal osteoarthritis associated
and caused by her exogenous obesity.” He noted that appellant was disabled due to her knee
condition which was not related to her original injury. Dr. Getz opined that appellant was
unemployable due to her multiple obesity-related problems.
The Office requested additional medical evidence from appellant’s attending physician
regarding her current conditions on October 6, 2006.

2

In a letter dated January 29, 2007, the Office proposed to terminate appellant’s
compensation and medical benefits. It noted that Dr. Getz found that appellant was no longer
disabled due to her employment-related conditions and suffered no residuals of those conditions.
The Office informed appellant that a physician’s assistant was not considered a physician under
the Act. The Office allowed her 30 days to submit additional medical evidence.
In a letter dated February 12, 2007, appellant alleged that her employment-related
condition had worsened. She stated that Dr. Getz did not provide a through examination.
By decision dated March 9, 2007, the Office terminated appellant’s compensation and
medical benefits effective March 18, 2007 finding that the weight of the medical evidence as
represented by Dr. Getz’s report established that her disability or residuals related to her 1976
employment injury had ceased.
Appellant submitted an appeals request form on April 2, 2007 initialed by the right to
request reconsideration. By decision dated April 6, 2007, the Office declined to reopen
appellant’s claim for consideration of the merits as she failed to submit any information or
evidence in support of the request.
LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.1 The Office 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 in termination compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.3 The
right to medical benefits for an accepted condition is not limited to the period of entitlement of
disability. To terminate authorization for medical treatment the Office must establish that a
claimant no longer has residuals of an employment-related condition which require further
medical treatment.4
ANALYSIS -- ISSUE 1
The Office accepted appellant’s 1976 claim for chronic lumbosacral strain with
radiculopathy. Appellant returned to part-time light-duty work and the Office reduced her
compensation benefits to reflect her wage-earning capacity. The most recent medical report
from appellant’s physician is dated 1999, from Dr. Neville, diagnosing degenerative disc disease
with radiculopathy. Although he opined that appellant was totally disabled, Dr. Neville did not
provide an opinion attributing her disability to her accepted employment injury of chronic
lumbosacral strain with radiculopathy.
1

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

2

Mary A. Lowe, 52 ECAB 223, 224 (2001).

3

Gewin C. Hawkins, 52 ECAB 242, 243 (2001).

4

Mary A. Lowe, supra, note 2.

3

The Office requested additional medical reports supporting appellant’s continued partial
disability beginning in 2000. Appellant did not submit any medical evidence addressing her
condition after this date. She did submit form reports completed by a physician’s assistant in
2000, January and July 2005. The definition of “physician” found in section 8101(2) of the Act,
does not include physician’s assistants.5 It is well established that, to constitute competent
medical opinion evidence, the medical evidence submitted must be signed by a qualified
physician.6 Therefore, these reports do not constitute medical evidence and are not competent to
support appellant’s claim for continuing disability and medical residuals related to her accepted
employment injury.
Due to the lack of recent medical evidence in the record and after repeated requests for
updated medical reports, the Office referred her to Dr. Getz, a Board-certified orthopedic
surgeon, for a second opinion evaluation. Dr. Getz noted appellant’s history of injury, medical
history and provided findings on physical examination. He concluded that she had no continuing
disability or residuals to her accepted condition of chronic lumbosacral strain with radiculopathy.
Dr. Getz attributed appellant’s current disability and medical conditions to her obesity and
resulting osteoarthritis of the spine and knees. He opined that these conditions were not
employment related. The Board finds that the weight of the medical evidence is represented by
Dr. Getz. His report is thorough and well reasoned and clearly opined that appellant’s current
conditions and disability were not related to her accepted back strain, but instead due to
osteoarthritis which was attributable to her obesity. The Office has met its burden of proof to
terminate appellant’s compensation and medical benefits.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,7
the Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.8 When a claimant fails to meet
one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.9

5

5 U.S.C. § 8101(2); Allen C. Hundley, 53 ECAB 551, 554 (2002). Therefore, the reports from a physician’s
assistant are entitled to no weight under the Act. Id.
6

Vickey C. Randall, 51 ECAB 357, 360 (2000); Arnold A. Alley, 44 ECAB 912, 921 (1993). Merton J. Sills, 39
ECAB 572, 575 (1988).
7

5 U.S.C. §§ 8101-8193, § 8128(a).

8

20 C.F.R. § 10.606(b)(2).

9

20 C.F.R. § 10.608(b).

4

ANALYSIS -- ISSUE 2
Appellant requested reconsideration on April 2, 2007 but did not provide any
documentation or narrative in support of her request. As she did not provide any evidence or
argument in support of her reconsideration request, the Office properly denied her application for
reconsideration without reopening the case for review of the merits.
CONCLUSION
The Board finds that the medical evidence establishes that appellant has no continuing
disability or medical residuals and that therefore the Office properly terminated her
compensation and medical benefits effective March 18, 2007. The Board further finds that the
Office properly declined to reopen appellant’s claim for consideration of the merits on
April 6, 2007.
ORDER
IT IS HEREBY ORDERED THAT the April 6 and March 9, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 21, 2007
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
U.S. POSTAL SERVICE, FORT WORTH
PROCESSING & DISTRIBUTION CENTER,
Fort Worth, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-0165
Issued: March 3, 2016

Case Submitted on the Record

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

JURISDICTION
On November 5, 2015 appellant filed a timely appeal from a June 8, 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 his burden of proof to establish left hand, left wrist,
and bilateral elbow injuries causally related to factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant submitted additional evidence. However, the Board is precluded from reviewing evidence
which was not before OWCP at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On February 24, 2014 appellant, then a 46-year-old custodian/laborer, filed an
occupational disease claim (Form CA-2) under File No. xxxxxx429 alleging that on
September 17, 2013 he first became aware of numbness and weakness in his left hand and left
wrist, inability to bend, move, or grip with the same hand and wrist, and weakness, giving away,
burning, and pain in both elbows. He further alleged that on February 17, 2014 he first realized
that his conditions were caused or aggravated by his federal employment. Appellant maintained
that on each workday, he repeatedly grasped empty trash cans which cramped his left hand and
caused pain in both of his elbows, policed workroom floors, and replaced paper towels, toilet
tissue, and soap receptacles which locked his left hand and wrist. In a March 17, 2014 narrative
statement, he described his symptoms. Appellant noted that he worked six hours a day, five days
a week. He contended that his repetitive work duties prevented him from working on computers
as a hobby.
In a February 17, 2014 work tolerance limitations form report, Dr. Christopher R. Mann,
an attending occupational medicine physician, diagnosed bilateral ulnar neuropathy and left
carpal tunnel syndrome. He advised that appellant could not perform his regular unrestricted job
assignment, but he could work eight hours a day with restrictions.
On the Form CA-2 and in an undated narrative statement, the employing establishment
controverted the claim. It contended that, since November 7, 2013, appellant had been on the
periodic rolls under claim number xxxxxx098.3
The employing establishment had
accommodated him with a modified job six hours a day, five days a week. It related that work
was available within his restrictions once he returned to work. The employing establishment
contended that appellant’s computer hobby was likely a contributing factor to his injury.
By letter dated March 4, 2014, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It afforded him 30 days to submit a factual statement detailing
the employment-related activities that contributed to his condition and activities outside his
federal employment and a medical report from an attending physician which included an
explanation of how his employment activities caused, contributed to, or aggravated his medical
condition. OWCP requested that the employing establishment submit any medical evidence, if
appellant had been treated at its medical facility.
Appellant submitted a December 5, 2013 report from Dr. Scott T. Stoll, a Board-certified
physiatrist, who noted that electromyogram/nerve conduction studies (EMG/NCS) revealed
mild-to-moderate bilateral axonometric C8 radiculopathies, mild left neuropraxic carpal tunnel
syndrome, moderate-to-severe bilateral neuropraxic ulnar neuropathy at the elbows, and bilateral
cervical paraspinal muscular hypertonicity (muscle spasm). He noted that the diagnosed

3

On September 11, 2009 OWCP accepted appellant’s claim under OWCP File No. xxxxxx098 for cervical sprain
sustained on July 4, 2009 while in the performance of duty as a custodian/laborer. On December 17, 2003 it
accepted his claim for a recurrence of disability beginning November 6, 2013. The claim was expanded to include
sprain of the left shoulder and upper arm in other unspecified sites, degeneration of cervical intervertebral disc, and
anxiety disorder.

2

conditions, except for bilateral cervical paraspinal muscular hypertonicity (muscle spasm), had
worsened since a January 5, 2012 EMG/NCS.
In a February 17, 2014 report, Dr. Mann provided appellant’s history, which included his
employment during the last 13 years as a custodian and the prior three years as a letter carrier at
the employing establishment. Appellant related to him that on September 17, 2013 he was
performing his limited-duty job when he experienced an insidious onset of bilateral elbow
inflammation that radiated tingling and burning down the ulna side of both forearms to the
hands. He further related that, although he was performing limited-duty work, he still lifted trash
cans of all sizes and dumped them which required a repetitive wrist-twisting action. Appellant
also reported bad spells of numbness, tingling, and weakened grip when he mopped for more
than 15 minutes at a time. Dr. Mann noted the treatment appellant received for his work-related
cervical injury. He reported findings and reiterated his diagnoses of bilateral ulnar neuropathy
and left carpal tunnel syndrome. Dr. Mann opined that appellant sustained bilateral elbow,
forearm, and wrist injuries as a direct result of the activities he performed most of the last three
years as a custodian but noted that his injuries were initially irritated by 13 years of frequent arm
use as a carrier. He noted that appellant was disabled due to severe cervical radiculopathy.
In a July 18, 2014 decision, OWCP denied appellant’s occupational disease claim. It
found that he did not respond to its March 4, 2014 request for additional factual information.
Consequently, OWCP found that appellant failed to establish an injury as alleged.
On January 8, 2015 appellant requested reconsideration. In an accompanying statement,
he explained that when he initially stated that he could not work on computers as a hobby, he did
not mean that he tore down computers and put them back together. Appellant meant that he
checked his e-mail several times a week.
In a December 22, 2014 report, Dr. Mann reviewed OWCP’s July 18, 2014 decision and
contended that appellant’s statements about checking his e-mail and working on computers were
erroneously described as a hobby and suggested that he actually built computers. He only
understood that appellant was on the computer briefly most evenings to check his e-mail. Thus,
Dr. Mann related that he did not list this activity as a hobby or otherwise. On March 2, 2015 he
contended that the employing establishment violated federal regulations as it required appellant
to return to work with no supportive medical opinion. Dr. Mann maintained that a return to work
would worsen the medical conditions in both of his claims, OWCP File Nos. xxxxxx429 and
xxxxxx098. In a January 12, 2015 attending physician’s report (Form CA-20), he indicated with
an affirmative mark that appellant had cervical degenerative disc with increased radiculopathy,
cervical sprain, left shoulder sprain, and anxiety disorder caused by the accepted July 4, 2009
work injury.
Appellant submitted a January 6, 2015 anesthesia record signed by Martin Simpson, a
certified registered nurse anesthetist.
In a March 27, 2015 letter, the employing establishment contested appellant’s request for
reconsideration. It contended that neither the facts of the claim, nor causal relationship had been
established. The employing establishment noted that appellant was off work from November 13,
2013 through February 22, 2015 due to his previous claim under OWCP File No. xxxxxx098.

3

Appellant returned to work on February 23, 2015 for 4.5 hours and then went home. He did not
return. The employing establishment maintained that appellant had not submitted any medical
evidence pertaining to the instant claim since February 17, 2014, or any statements to support
fact of injury. The fact that appellant had not worked since November 13, 2013 indicated there
was no fact of injury during the performance of duty.
In a June 8, 2015 decision, OWCP denied modification of the July 18, 2014 decision,
finding that appellant had not sustained a work-related injury as claimed. It found that the
factual evidence was too vague and general with respect to the employment factors that he
attributed to his claimed medical conditions. OWCP also found that Dr. Mann’s March 2, 2015
report did not provide a rationalized medical opinion to establish a causal relationship between
appellant’s diagnosed conditions and his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden to establish the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
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.
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.7
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his subsequent
course of action. An employee has not met his or her burden in establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim. Circumstances such as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury, and failure to
4

Supra note 1.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

6

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

7

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

4

obtain medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement
in determining whether a prima facie case has been established.8
ANALYSIS
Appellant claimed that he sustained left hand, left wrist, and bilateral elbow conditions
due to performing his work duties. OWCP found that he failed to establish the factual
component of his claim. The Board finds, however, that the evidence establishes that appellant
was a custodian/laborer and performed employment duties as such. In his Form CA-2 and
March 17, 2014 narrative statement, appellant attributed his claimed employment injuries to
repeatedly grasping empty trash cans, policing workroom floors, and replacing paper towels,
toilet tissue, and soap receptacles six hours a day, five days a week. The Board notes that there
is no evidence refuting that the claimed employment factors of grasping trash cans, policing
workroom floors, and replacing paper towels, toilet tissue, and soap receptacles, occurred as
alleged.
Consequently, the Board finds that appellant has established the factual component of
this claim, including that he grasped empty trash cans, policed workroom floors, and replaced
paper towels, toilet tissue, and soap receptacles at work. This case shall be remanded to OWCP
for consideration of the evidence as it relates to the accepted employment factors identified by
appellant and thereafter issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision and is remanded to OWCP for
further development.

8

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

5

ORDER
IT IS HEREBY ORDERED THAT the June 8, 2015 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this decision of the Board.
Issued: March 3, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
REGION IX, Richmond, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-1335
Issued: November 22, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 14, 2016 appellant filed a timely appeal from a June 1, 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.2
ISSUE
The issue is whether appellant met her burden of proof to establish left wrist
de Quervain’s tenosynovitis causally related to factors of her federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the June 1, 2016 decision. Since the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB
126 (2005).

FACTUAL HISTORY
On March 25, 2016 appellant, then a 34-year-old benefit authorizer, filed an occupational
disease claim (Form CA-2) alleging that she sustained left wrist de Quervain’s tenosynovitis as a
result of repetitively typing and writing on a desk that was too high.
In an attached statement, appellant explained that around May 2015 she was detailed to
work as a benefits authorizer. She reported that the detail required more typing and writing than
her usual position, such as providing instructions in writing to trainees and typing monthly
reports for each trainee. Appellant explained that in September 2015 she was assigned to a
temporary desk on the third floor and the workstation was significantly higher than it should
have been for a person of her height. She worked at that desk for approximately five months.
Appellant related that her left wrist became sore and the soreness worsened over time. She
sought medical treatment from her physician and was diagnosed with left wrist de Quervain’s
tenosynovitis.
Appellant provided a form report dated March 21, 2016 from Dr. Alina Walasek, a
Board-certified internist, who indicated that appellant worked as a benefits authorizer for the
employing establishment. She related that appellant began to experience left wrist pain one
week previously and could not remember any acute injury to the wrist. Dr. Walasek indicated
that appellant had worked the last five months at a temporary desk that was too high for her. She
also noted that appellant’s work had required more typing and handwriting than usual for the
past year. Dr. Walasek conducted a physical examination and observed tenderness to palpation
over appellant’s first extensor compartment of the left hand and normal sensation to light touch.
Each finger exhibited full flexion/extension and strength. Finkelstein’s test was positive.
Dr. Walasek diagnosed left wrist de Quervain’s tenosynovitis. She checked a box marked “yes”
that her findings and diagnosis were consistent with appellant’s account of injury or onset of
illness. Dr. Walasek reported that the mechanism of injury was “repetitive typing on a keyboard
and handwriting associated with recent increase in frequency of these activities.”
By letter dated April 8, 2016, OWCP advised appellant that the evidence submitted was
insufficient to establish her claim. It requested that she respond to the attached questionnaire in
order to substantiate the factual elements of her claim and that she provide additional medical
evidence to establish that she sustained a diagnosed condition causally related to her federal
employment.
On April 25, 2016 OWCP received appellant’s response to its questionnaire. Appellant
described that as a benefits authorizer mentor she spent her eight-hour day reviewing cases
submitted by trainees, which required analyzing the record, determining if the trainee took
appropriate action, and typing up a review of the trainee’s action. She noted that review of the
cases required between five minutes to one hour of typing depending on how complex the case
was. Appellant explained that she typed monthly reports for each trainee, which generally
required between 15 and 30 minutes per report. She also noted that she worked at a temporary
desk for five months and that it was not set up to her ergonomic requirements and was
significantly higher for her height.

2

Appellant submitted follow-up examination reports dated April 7 and 28, 2016 by
Dr. Walasek, who related that appellant’s left thumb pain had lessened when compared to her
initial evaluation on March 21, 2016. Dr. Walasek reported that appellant had been wearing a
left wrist brace and working modified duty. Upon examination, she observed mild tenderness to
palpation over the first extensor compartment of the left hand. Each finger demonstrated full
flexion/extension and strength. Dr. Walasek reported mildly positive Finkelstein test. She
diagnosed de Quervain’s tenosynovitis. Dr. Walasek authorized appellant to work with
restrictions of occasional repetitive left hand motions and lifting, carrying, pushing, and pulling
no more than 15 pounds.
OWCP denied appellant’s claim in a decision dated June 1, 2016. It accepted her
employment duties as a benefits authorizer and that she sustained a diagnosed left hand
condition, but denied her claim as the medical evidence submitted failed to establish that her
condition was causally related to factors of her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 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.7

3

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

4

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton,
40 ECAB 1143, 1145 (1989).
5

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

6

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

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

3

ANALYSIS
Appellant alleges that she sustained de Quervain’s tenosynovitis of the left wrist as a
result of repetitively typing and writing, and from using a desk that was too high in the
performance of her duties as a benefits authorizer. OWCP accepted the repetitive duties of her
job as a benefits authorizer and that she was diagnosed with de Quervain’s tenosynovitis, but
denied her claim because the medical evidence failed to establish that her left hand condition was
causally related to her employment duties. The Board finds that appellant has not met her
burden of proof to establish her occupational disease claim.
Appellant submitted various reports from Dr. Walasek dated March 21 to April 28, 2016.
In her initial examination, Dr. Walasek related appellant’s complaints of left wrist pain that
began the previous week. She noted that appellant worked as a benefits authorizer and that her
work had required more typing and handwriting than usual for the past year. Dr. Walasek also
indicated that appellant had worked the last five months at a temporary desk that was too high
for her. She reviewed appellant’s physical examination findings and diagnosed de Quervain’s
tenosynovitis. Dr. Walasek checked a box marked “yes” that her findings and diagnosis were
consistent with appellant’s account of injury. The Board has held that a checkmark or
affirmative notation in response to a form question on causal relationship is insufficient, without
medical rationale, to establish causal relationship.8
Dr. Walasek reported that appellant’s employment duties required “repetitive typing on a
keyboard and handwriting associated with recent increase in frequency of these activities.”
Although her reports contained an accurate description of appellant’s employment duties, they
do not contain a sufficient explanation, based on medical rationale, of how any of appellant’s
duties would have physiologically caused or contributed to her left hand condition.9 A medical
report is of limited probative value on the issue of causal relationship if it contains a conclusion
regarding causal relationship which is unsupported by medical rationale.10 Dr. Walasek’s
reports, therefore, are insufficient to establish appellant’s claim.
On appeal, appellant alleges that she submitted all necessary documentation to show that
her injury was caused by the work activity. She noted that her physician informed appellant that
her medical report contained the information needed to show that her injury was work related.
As noted above, however, Dr. Walasek’s medical reports are of limited probative value on the
issue of causal relationship and are insufficient to establish her claim. The mere fact that work
activities may produce symptoms revelatory of an underlying condition does not raise an
inference of an employment relation.11 Such a relationship must be shown by rationalized
medical evidence of a causal relation based upon a specific and accurate history of employment
conditions which are alleged to have caused or exacerbated a disabling condition.12 Because
8

K.T., Docket No. 15-1758 (issued May 24, 2016).

9

See M.M., Docket No. 15-607 (issued May 15, 2015); M.W., Docket No. 14-1664 (issued December 5, 2014).

10

S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-975 (issued February 6, 2009).

11

See D.R., Docket No. 16-0528 (issued August 24, 2016).

12

Patricia J. Bolleter, 40 ECAB 373 (1988).

4

appellant has not submitted such rationalized medical evidence in this case, the Board finds that
she has not met her burden of proof to establish her occupational disease claim.
Appellant may submit new evidence or argument as part of a formal 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. § 10.606 through § 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an occupational disease claim as a result of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the June 1, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 22, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1633
Issued: December 15, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 15, 2014 appellant, through counsel, filed a timely appeal from a March 12, 2014
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 established that he sustained more than a five percent
permanent impairment to the right upper extremity, for which he received a schedule award.
On appeal, counsel contends that OWCP’s decision was contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that appellant, then a 35-year-old clerk, sustained a right supraspinatus
tear and a right rotator cuff tear in the performance of duty on October 11, 2007. It authorized
surgery and he underwent an arthroscopic subacromial decompression of the right shoulder
performed by Dr. John Ternes, a Board-certified orthopedic surgeon, on June 18, 2008.
Appellant received appropriate compensation benefits.2 Thereafter, Dr. Ternes released him to
work without restrictions effective September 11, 2008.3
On April 3, 2009 appellant, through counsel, filed a claim for a schedule award.4
In an October 9, 2008 report, Dr. Ternes indicated that appellant was seen for a follow up
of his June 18, 2008 right shoulder surgery. Appellant reported that he had returned to full-duty
work and felt intermittent discomfort at the subacromial area of his shoulder with overhead
reaching and lifting. Dr. Ternes found that appellant’s right shoulder revealed well-healed
arthroscopic portals. Appellant had subjective tenderness on palpation of the subacromial area,
but no biceps tendon tenderness. His right shoulder range of motion was forward flexion to 170
degrees, abduction to 180 degrees, 90 degree external rotation to 90 degrees, 90 degree internal
rotation to 35 degrees, and external rotation with arm at side to 50 degrees. Appellant had a
negative impingement sign in his shoulder. On strength testing in all directions, his strength
rated a five out of five and equal to his opposite side. Appellant had no anterior, inferior, or
posterior instability of his shoulder. Dr. Ternes concluded that appellant had reached maximum
medical improvement and opined that he had a 20 percent permanent impairment of the right
arm “based on his decreased range of motion and residual discomfort.” He released appellant to
work without restrictions.
On January 9, 2009 Dr. Ternes reported that appellant’s right shoulder had a 90 degrees
internal rotation to 40 degrees and reiterated his opinion that appellant had a 20 percent
permanent impairment of the right upper extremity.
In an April 8, 2009 letter, OWCP notified appellant of the deficiencies of his schedule
award claim. It afforded him 30 days to submit additional evidence, including a medical report
containing a detailed description of his permanent impairment based on the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
2

By decision dated August 4, 2008, OWCP made a preliminary determination that appellant had received an
overpayment of compensation in the amount of $652.86 because he received compensation for temporary total
disability for the period June 7 to 13, 2008 while he worked full time. In an October 8, 2008 letter, it
administratively terminated collection of the overpayment of compensation since the general cost of collection of at
least $2,256.00 was greater than the overpayment amount of $652.86.
3

Appellant, through counsel, filed additional claims (Form CA-2a) alleging that he sustained a recurrence of
disability on October 23, 2008 and June 18, 2009. By decisions dated January 20, 2009 and January 20, 2010,
OWCP denied the claims on the basis that the medical evidence was insufficient to establish that he sustained a
recurrence of his accepted right shoulder conditions.
4

Appellant, through counsel, filed claims for wage-loss compensation (Form CA-7) for intermittent periods
commencing March 15, 2009. By decision dated June 1, 2009, OWCP denied the claims on the basis that the
medical evidence was insufficient to establish that he was disabled during the periods claimed.

2

On April 28, 2009 an OWCP medical adviser reviewed the evidence of record and
explained that Dr. Ternes’ 20 percent impairment rating had no basis and did not follow the
A.M.A., Guides. The medical adviser found that based upon the findings of Dr. Ternes and the
fifth edition of the A.M.A., Guides appellant had a five percent permanent impairment of the
right upper extremity.
By decision dated April 30, 2009, OWCP granted appellant a schedule award for five
percent permanent impairment to the right upper extremity for 15.6 weeks of compensation for
the period October 29, 2008 through February 15, 2009.
On January 25, 2010 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative and submitted a December 9, 2008 report from Dr. Ternes who
reiterated his findings and medical opinions.
In a September 25, 2009 report, Dr. Ternes had indicated that the rating guide he used to
determine appellant’s permanent impairment was “the North Carolina Industrial Commission
Rating Guide last updated on February 5, 2009.” After reviewing the fifth edition of the A.M.A.,
Guides, he found that appellant’s impairment rating was mostly determined by his change of
motion in the shoulder. Dr. Ternes determined that, based on Figure 16-40, appellant had a one
percent upper extremity impairment based on flexion. Based on Figure 16-46, appellant had a
three percent upper extremity impairment based on internal rotation. Dr. Ternes concluded that
appellant had a four percent permanent impairment of the right upper extremity, which he noted
that was comparable to the rating determined by the medical adviser.
In an April 6, 2010 letter, appellant, through counsel, filed a petition to withdraw his
request for an oral hearing.5
By decision dated May 4, 2010, an OWCP hearing representative accepted appellant’s
request for withdrawal of the hearing.
In a June 24, 2010 report, Dr. Ternes stated that it was medical opinion that appellant’s
status regarding his shoulder was unchanged from his previous evaluations and that his
permanent impairment rating from this injury and his permanent work restrictions continued to
be in effect.
On October 22, 2010 Dr. Martin Fritzhand, a Board-certified urologist, conducted a
physical examination of appellant and found that forward flexion of the right shoulder was
diminished to 100 degrees, with extension diminished to 30 degrees. Abduction of the shoulder
was diminished to 90 degrees, with adduction diminished to 20 degrees. External rotation of the
shoulder was normal to 90 degrees, with internal rotation diminished to 30 degrees. There was
tenderness noted on palpation of the right trapezius musculature. Muscle strength was wellpreserved and there was no evidence of muscle atrophy. Dr. Fritzhand indicated that under the
sixth edition of the A.M.A., Guides, Table 15-5,6 if motion loss was present in a right rotator cuff
5

On April 7, 2010 appellant, through counsel, filed a notice of occupational disease (Form CA-2) alleging that he
developed cervical spondylosis due to factors of his federal employment.
6

Table 15-5, page 401-05, of the sixth edition of the A.M.A., Guides is entitled Shoulder Regional Grid.

3

injury, impairment could alternatively be assessed using section 15.7. Utilizing Table 15-34,7 he
indicated that appellant’s flexion resulted in a three percent permanent impairment, his extension
resulted in one percent, his abduction three percent, adduction one percent, external rotation zero
percent and internal rotation four percent. Dr. Fritzhand concluded that appellant had a total of
12 percent permanent impairment to the right upper extremity. He also provided an impairment
rating based on a diagnosis of cervical radiculopathy.
On February 12, 2013 an OWCP medical adviser found a discrepancy in the range of
motion findings of Dr. Ternes and Dr. Fritzhand. She indicated that an inconsistency in the
findings could have been the result of a worsening of the accepted conditions and recommended
a second opinion evaluation to determine the nature and extent of appellant’s right shoulder
condition. The medical adviser noted that an impairment rating based on a cervical diagnosis
was not correct as appellant had no accepted cervical conditions.
OWCP referred appellant to Dr. Harrison Latimer, a Board-certified orthopedic surgeon,
for a second opinion evaluation. On June 5, 2013 Dr. Latimer conducted a physical examination
and reviewed appellant’s medical history and a statement of accepted facts. Upon examination,
he found that appellant had full, active, assisted range of motion of the right shoulder and full
range of motion of the cervical spine without any radicular symptoms. Dr. Latimer indicated
that appellant was “very hesitant with testing of his shoulder as far as scapulohumeral rhythm
[was] concerned but he ha[d] no winging of the scapula.” Appellant had global mild weakness
in the right shoulder in all directions to rotator cuff testing. He had no anterior, posterior, or
inferior instability of the shoulder. Appellant had a normal axillary musculocutaneous, radial,
median, ulnar, motor and sensory examination, and a normal vascular examination. Dr. Latimer
concluded that appellant’s right shoulder condition had resolved. He indicated that appellant did
not have a complete rotator cuff rupture, but an impingement, tendinopathy, and at most partial
tear with no evidence of any tearing when the tendon surface was visualized arthroscopically.
Utilizing the sixth edition of the A.M.A., Guides, Dr. Latimer determined that appellant’s
condition fell under rotator cuff injury partial thickness tear and was a class 1 diagnosis. He
assigned a grade modifier 2 for Functional History (GMFH) because appellant was able to
perform activities with modification unassisted, but required over-the-counter medications and
some narcotic medicines. Dr. Latimer assigned a grade modifier 2 for Physical Examination
(GMPE) due to reproducible symptoms and demonstrated bursal tendinopathy lesion by
magnetic resonance imaging (MRI) scan and arthroscopic examination. He assigned a grade
modifier 2 for Clinical Studies (GMCS) based on appellant’s MRI scan and surgical findings.
Based on Table 15-5,8 Dr. Latimer determined that the grade modifiers moved appellant up to a
class 1E injury, resulting in a five percent permanent impairment of the right upper extremity.
He opined that appellant reached maximum medical improvement in March 2009, approximately
nine months after his shoulder surgery.
On July 3, 2013 Dr. H.P. Hogshead, an OWCP medical adviser, reviewed the medical
evidence of record and concurred with Dr. Latimer that appellant had reached maximum medical
improvement effective March 2009. He concurred with Dr. Latimer’s class 1E diagnosis of
7

Table 15-34, page 475, of the sixth edition of the A.M.A., Guides is entitled Shoulder Range of Motion.

8

See supra note 6.

4

partial thickness tear based on Table 15-5 of the sixth edition of the A.M.A., Guides and found
that, as appellant previously received payment for a five percent permanent impairment of the
right upper extremity, he was not entitled to an additional schedule award.
By decision dated July 15, 2013, OWCP denied appellant’s claim for increased schedule
award, indicating that the medical adviser recommended a five percent permanent impairment of
the right upper extremity less any award previously paid. Appellant previously received a
schedule award for five percent permanent impairment of the right upper extremity and,
therefore, the medical evidence did not support an increase in the impairment already
compensated.
On July 19, 2013 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative. A telephonic hearing was held before an OWCP hearing representative
on December 17, 2013.
By decision dated March 12, 2014, the hearing representative affirmed the July 15, 2013
schedule award decision.
LEGAL PRECEDENT
The schedule award provisions of FECA9 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members 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 sound
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. The A.M.A., Guides has been adopted by OWCP as a standard for evaluation of
schedule losses and the Board has concurred in such adoption.10 For schedule awards after
May 1, 2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides,
published in 2009.11
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).12 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition Class of Diagnosis (CDX), which is then adjusted by grade modifiers based
on GMFH, GMPE, and GMCS.13 The net adjustment formula is (GMFH - CDX) + (GMPE 9

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

10

See Bernard A. Babcock, Jr., 52 ECAB 143 (2000). See also 5 U.S.C. § 8107.

11

See D.T., Docket No. 12-503 (issued August 21, 2012); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(a) (February 2013); see also Federal (FECA)
Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
12

A.M.A., Guides (6th ed., 2009), p.3, section 1.3, International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.
13

Id. at 494-531.

5

CDX) + (GMCS - CDX). Evaluators are directed to provide reasons for their impairment rating
choices, including the choices of diagnoses from regional grids and calculations of modifier
scores.14
It is appellant’s burden to submit sufficient evidence to establish the extent of permanent
impairment.15
ANALYSIS
OWCP accepted that appellant sustained a right supraspinatus tear and a right rotator cuff
tear in the performance of duty on October 11, 2007. Appellant underwent right shoulder
surgery on June 18, 2008 and returned to work without restrictions effective September 11, 2008.
In an April 30, 2009 award of compensation, OWCP granted him a schedule award for five
percent permanent impairment to the right upper extremity. As previously noted, it is appellant’s
burden to submit sufficient evidence to establish the extent of permanent impairment.
OWCP properly referred appellant to Dr. Latimer for a second opinion examination to
determine the extent and degree of any permanent impairment. On June 5, 2013 Dr. Latimer
found that appellant had full active assisted range of motion of the right shoulder. He indicated
that appellant was “very hesitant with testing of his shoulder as far as scapulohumeral rhythm
[was] concerned but he ha[d] no winging of the scapula.” Appellant had global mild weakness
in the right shoulder in all directions to rotator cuff testing. He had no anterior, posterior, or
inferior instability of the shoulder. Appellant had a normal axillary musculocutaneous, radial,
median, ulnar, motor and sensory examination, and a normal vascular examination. Dr. Latimer
concluded that appellant’s right shoulder condition had resolved. He indicated that appellant did
not have a complete rotator cuff rupture, but an impingement, tendinopathy, and at most partial
tear with no evidence of any tearing when the tendon surface was visualized arthroscopically.
Utilizing the sixth edition of the A.M.A., Guides, Dr. Latimer determined appellant’s condition
fell under rotator cuff injury partial thickness tear and was a class 1 diagnosis. He assigned a
grade modifier 2 for GMFE because appellant was able to perform activities with modification
unassisted, but required over-the-counter medications and some narcotic medicines. Dr. Latimer
assigned a grade modifier 2 for GMPE due to reproducible symptoms and demonstrated bursal
tendinopathy lesion by MRI scan and arthroscopic examination. He assigned a grade modifier 2
for GMCS based on appellant’s MRI scan and surgical findings. Based on Table 15-5,
Dr. Latimer determined that the grade modifiers moved appellant up to a class 1E injury,
resulting in a five percent permanent impairment of the right upper extremity. He opined that
appellant reached maximum medical improvement in March 2009.
In accordance with its procedures, OWCP properly referred the evidence of record to its
medical adviser, Dr. Hogshead, who reviewed the clinical findings of Dr. Latimer on July 3,
2013 and determined that appellant had a five percent permanent impairment of the right upper
extremity under the sixth edition of the A.M.A., Guides. Dr. Hogshead concurred with
Dr. Latimer’s class 1E diagnosis of partial thickness tear based on Table 15-5 of the sixth edition
14

See R.V., Docket No. 10-1827 (issued April 1, 2011).

15

See Annette M. Dent, 44 ECAB 403 (1993).

6

of the A.M.A., Guides. Using the net adjustment formula of (GMFH - CDX) + (GMPE - CDX)
+ (GMCS - CDX), Dr. Hogshead found that (2-1) + (2-1) + (2-1) resulted in a net grade modifier
of 3, resulting in an impairment class 1, grade E, equaling a five percent permanent impairment
of the right upper extremity. He discussed how he arrived at his conclusion by listing specific
tables and pages in the A.M.A., Guides. Dr. Hogshead properly interpreted Table 15-5 to find
that appellant qualified for five percent permanent impairment to the right upper extremity.
Thus, the Board finds that OWCP properly relied upon the opinion of its medical adviser in
denying appellant’s claim for an additional schedule award.
Regarding appellant’s impairment for the accepted right shoulder conditions,
Dr. Fritzhand selected range of motion measurements. The A.M.A., Guides provide that, under
specific circumstances, range of motion may be selected as an alternative approach in rating
upper extremity impairment and cautions that an impairment rating that is calculated using range
of motion stands alone and may not be combined with a diagnosis-based impairment.16
However, section 15.7a indicates that range of motion should be measured after a warm up, that
the maximum range of motion should be measured at least three times and that the maximum
measurement is used to determine range of motion measurement.17 There is no indication that
the range of motion measurements reported by Dr. Fritzhand followed the procedure outlined in
the A.M.A., Guides.18 As such, his opinion is of reduced probative value.19
The Board has held that when the attending physician fails to provide an estimate of
impairment conforming to the A.M.A., Guides or does not discuss how he or she arrives at the
degree of impairment based on physical findings, his or her opinion is of diminished probative
value in establishing the degree of impairment and OWCP may rely on the opinion of its medical
adviser to apply the A.M.A., Guides to the findings reported by the attending physician.20 The
Board finds that the medical adviser in this case properly applied the standards of the A.M.A.,
Guides. The medical adviser’s opinion is the weight of medical evidence and supports that
appellant does not have a greater right upper extremity impairment than the five percent
previously awarded.
In his October 22, 2010 report, Dr. Fritzhand provided an impairment rating based on a
diagnosis of cervical radiculopathy. OWCP has not accepted a cervical condition in this case.
Therefore, this report has no probative value regarding appellant’s permanent impairment under

16

Section 15.3b, page 407, of the sixth edition of the A.M.A., Guides is entitled Adjustment Grid: Physical
Examination. Section 15.3b of the A.M.A., Guides indicates that range of motion may be used to determine an
impairment rating “only when specified by the regional grid or in the rare case when DBIs [diagnosis-based
impairments] are not applicable.... If it is clear to the evaluator that a restricted range of motion has an organic
basis, [three] measurements should be obtained and the greatest range measured should be used for the
determination of impairment.” Id.
17

A.M.A., Guides 464 (6th ed. 2009).

18

See supra note 16.

19

See H.R., Docket No. 13-1264 (issued December 3, 2013).

20

L.M., Docket No. 12-868 (issued September 4, 2012); see John L. McClanic, 48 ECAB 552 (1997).

7

the sixth edition of the A.M.A., Guides and he has failed to establish a claim for an additional
schedule award.21
There is no probative medical evidence of record, in conformance with the sixth edition
of the A.M.A., Guides, establishing that appellant has more than a five percent permanent
impairment to the right upper extremity. Accordingly, appellant has not established that he is
entitled to a schedule award greater than that previously awarded.22
On appeal, counsel contends that OWCP’s decision was contrary to fact and law. For the
reasons stated above, the Board finds that counsel’s arguments are not substantiated.
Appellant may request a schedule award or increased 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 has not established that he sustained more than a five
percent permanent impairment to the right upper extremity, for which he received a schedule
award.

21

See Richard A. Neidert, 57 ECAB 474 (2006) (an attending physician’s report is of little probative value where
the A.M.A., Guides are not properly followed).
22

FECA provides for reduction of compensation for subsequent injury to the same body member. It provides that
schedule award compensation is reduced by the compensation paid for an earlier injury where the compensation in
both cases are for impairment of the same member or function and where it is determined that the compensation for
the later disability in whole or part would duplicate the compensation payable for the preexisting disability.
5 U.S.C. § 8108; 20 C.F.R. § 10.404(c).

8

ORDER
IT IS HEREBY ORDERED THAT the March 12, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 15, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

9