United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, MILWAUKEE
MITCHELL INTERNATIONAL AIRPORT,
Milwaukee, WI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0154
Issued: April 7, 2021

Case Submitted on the Record

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

On October 25, 2019 appellant filed a timely appeal from an August 8, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards assigned Docket No. 20-0154.1
On March 11, 2003 appellant, then a 37-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that on March 1, 2003 she experienced right shoulder
and neck pain while checking bags, weighing 50 to 100 pounds each, for 2 to 2.5 hours without a
break, while in the performance of duty. OWCP accepted the claim under File No. xxxxxx562 for
right rotator cuff syndrome, herniated disc at C3-4, C4-5, and C5-6, cervical spondylosis without
myelopathy, and disc desiccation at C6-7. Appellant stopped work on September 8, 2003. She
1

The Board notes that following the August 8, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

eventually returned to work with restrictions, stopping several times throughout the years. On
November 7, 2005 appellant underwent an OWCP authorized C5-6 discectomy and fusion. She
was released to return to work on March 6, 2006. On October 29, 2008 appellant stopped work
and underwent an OWCP-approved cervical surgery on October 30, 2008. She returned to parttime limited-duty work on March 6, 2009.2
The record reveals that, under OWCP File No. xxxxxx976, OWCP accepted appellant’s
May 19, 2009 occupational disease claim (Form CA-2) for a right plantar fasciitis condition. On
May 21, 2009 appellant returned to work full time in a limited-duty capacity. On May 28 and
August 10, 2009 she accepted a limited-duty assignment as a full-time modified transportation
security officer with restrictions.3 On December 10, 2009 appellant stopped work due to her
accepted employment injury under OWCP File No. xxxxxx976.4
By decision dated December 22, 2009, OWCP found that the modified transportation
security position that appellant worked since August 10, 2009 fairly and reasonably represented
her wage-earning capacity. It also found that there was no loss of wage-earning capacity (LWEC)
as her actual earnings met or exceeded the current wages of the job she held when injured.5 On
January 14, 2011 the employing establishment terminated appellant’s employment on the grounds
she could not perform the essential duties of a transportation security officer.
In a letter to OWCP dated April 26, 2017, appellant related that she had been released back
to work under OWCP File No. xxxxxx976 on June 10, 2010, but was not offered a limited-duty
assignment. She filed Form CA-7 claims for wage-loss compensation for periods commencing
April 17, 2017.
Appellant submitted multiple requests for modification of the December 22, 2009 LWEC
determination. By decisions dated September 25 and December 29, 2017, April 12 and August 3,
2018, and January 16 and April 19, 2019, OWCP denied modification of the December 22, 2009
LWEC determination.
Appellant continued to file Form CA-7 claims for wage-loss compensation.
On April 30, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
By decision dated May 17, 2019, OWCP denied appellant’s request for an oral hearing as
she had previously requested reconsideration. After exercising discretion, it further denied the
2

By decision dated April 15, 2009, OWCP granted appellant a schedule award for 15 percent permanent
impairment of the right arm.
3

Appellant also had restrictions from her May 19, 2009 injury.

4
OWCP paid appellant wage-loss compensation under OWCP File No. xxxxxx976 until April 17, 2017 when her
wage-loss benefits were terminated. It has not administratively combined the current claim, File No. xxxxxx562, with
File No. xxxxxx976.
5
On December 10, 2009 appellant stopped work. She was released to return to work on June 15, 2010 in a limitedduty capacity on a full-time basis, but the employing establishment was unable to accommodate the restrictions.

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request, finding that the issue could be equally-well addressed through a request for
reconsideration.
Appellant continued to file Form CA-7 claims for wage-loss compensation.
On May 30, 2019 appellant requested reconsideration. In her May 30, 2019 letter, she
again argued that OWCP’s December 22, 2009 LWEC determination was erroneous and should
be modified as the modified transportation security officer position was temporary in nature.
Appellant indicated that the employing establishment withdrew the August 10, 2009 limited-duty
position, which caused the work cessation. She indicated that she was removed from employment
on January 21, 2011, after receiving permanent work restrictions from her treating physician.
Appellant also indicated that on April 4, 2019 the employing establishment acknowledged that the
limited-duty position was not a permanent position, but that it was temporary and subject to
revision due to changes in work restrictions or employing establishment operational requirements.
Thus, she contended that the limited-duty position was makeshift since it was designed to meet
her own particular restrictions. In a June 17, 2019 letter, appellant also presented arguments
pertaining to the submission of her Form CA-7 claims for compensation. She requested that
OWCP enforce the employing establishment’s responsibility to follow the regulations and
protocols.
Appellant also submitted medical documentation pertaining to on-going treatment of her
accepted conditions. This included follow-up reports from Dr. Luciana Berceanu, a Boardcertified anesthesiologist, dated May 20 and June 17, 2019 with regards to appellant’s right sided
neck/upper back, scapular/arm pain. The record also reflects that appellant underwent trigger point
injections in the right trapezius on June 26 and July 10, 2019, performed by Dr. Berceanu.
On July 18, 2019 OWCP sent a copy of appellant’s reconsideration request to the
employing establishment for comments as the reconsideration request regarded the factual
component of the LWEC determination. It afforded the employing establishment 20 days to
respond. No response was received.
By decision dated August 8, 2019, OWCP denied appellant’s request for reconsideration.
The Board finds that this case is not in posture for decision.
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.6 The burden of proof is on the
party attempting to establish a modification of the LWEC determination.7

6

20 C.F.R. § 10.511; see C.H., Docket No. 19-1114 (issued April 30, 2020); A.S., Docket No. 18-0370 (issued
March 5, 2019); Tamra McCauley, 51 ECAB 375 (2000); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.3 (June 2013).
7

Id.

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The Board finds that appellant’s May 30, 2019 for reconsideration was, in fact, a request
for modification of the December 22, 2009 LWEC determination. It is well established that a
claimant may establish that a modification of an LWEC determination is warranted if there has
been a showing that the original determination was, in fact, erroneous.8
The Board has held that when an LWEC determination has been issued and appellant
submits evidence with respect to one of the criteria for modification OWCP must evaluate the
evidence to determine if modification is warranted.9
As OWCP improperly reviewed the case under the standard for a timely reconsideration
request, the case must therefore be remanded to OWCP for a proper decision which includes
findings of fact and a clear and precise statement regarding whether appellant has met her burden
of proof to establish modification of the December 22, 2009 LWEC determination.10 Furthermore,
appellant’s prior claim under OWCP File No. xxxxxx976 also involves an alleged injury to the left
foot/ankle. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication depends on frequent cross-referencing between files and where two or more
injuries occur to the same part of the body.11 Therefore, on remand, for a full and fair adjudication,
OWCP shall administratively combine the present claim with File No. xxxxxx976 prior to
adjudicating the issue of the LWEC modification. Following any further development as deemed
necessary, OWCP shall issue a de novo decision.

8

Id. at § 10.511; Y.R., Docket No. 18-1464 (issued February 22, 2019).

9

See L.P., Docket No. 18-1429 (issued March 8, 2019).

10

See R.Z., Docket No. 17-1455 (issued February 15, 2019).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000); R.G., Docket No. 19-1755 (issued July 7, 2020); L.M., Docket No. 19-1490 (issued
January 29, 2020).

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IT IS HEREBY ORDERED THAT the August 8, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: April 7, 2021
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 15-1286
Issued: December 14, 2015

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 May 18, 2015 appellant filed a timely appeal from an April 17, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained ratable bilateral upper
extremity impairment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances outlined in
the Board’s prior decision are incorporated herein by reference.
OWCP accepted that on or before October 23, 2005 appellant, then a 48-year-old
schemed mail distribution clerk, sustained a right rotator cuff tear, herniated C5-6 disc with
degenerative disc disease, bilateral carpal tunnel syndrome, de Quervain’s tenosynovitis of the
right wrist and right radial tenosynovitis. She stopped work on May 11, 2005 and did not return.
Appellant received compensation for total disability on the supplemental and periodic rolls.
Dr. Samuel J. Chmell, an attending Board-certified orthopedic surgeon, performed a left
median nerve release on April 20, 2006 and a right median nerve release on December 15, 2006.
He submitted periodic reports through November 6, 2008 finding appellant totally disabled for
work due to bilateral carpal tunnel syndrome, bilateral wrist pain and crepitus, multiple tendinitis
in the upper extremities and bilateral shoulder derangement.3
On June 20, 2008 appellant claimed a schedule award for upper extremity impairment.
She submitted a July 14, 2008 impairment evaluation from Dr. Chmell utilizing the fifth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(hereinafter, “A.M.A., Guides”). Dr. Chmell found 77 percent impairment of the right upper
extremity due to limited shoulder motion, weakness, and cervical radiculopathy. He found 40
percent impairment of the left arm due to diminished sensation in the hand and thumb, pain,
dysesthesia, and weakness.
On October 8, 2008 OWCP obtained a second opinion from Dr. David H. Trotter, a
Board-certified orthopedic surgeon, who opined, under the fifth edition of the A.M.A., Guides,
that appellant had no permanent impairment of either upper extremity.
By decision dated January 22, 2009, OWCP denied appellant’s schedule award claim,
finding that the medical evidence did not establish ratable impairment of either extremity. It
accorded Dr. Trotter the weight of the medical evidence.

2

Docket No. 10-2126 (issued July 5, 2011).

3

On July 30, 2007 OWCP obtained a second opinion from Dr. Hythem P. Shadid, a Board-certified orthopedic
surgeon, regarding appellant’s work limitations. Dr. Shadid found mild right carpal tunnel syndrome and
nonoccupational peripheral neuropathy. He opined that appellant required no injury-related work restrictions and
had attained maximum medical improvement. OWCP found a conflict of medical opinion between Dr. Shadid and
Dr. Chmell, and selected Dr. Charles W. Mercier, a Board-certified orthopedic surgeon, as impartial medical
examiner. Dr. Mercier submitted February 12, 2008 and February 24, 2009 repots finding mild de Quervain’s
tenosynovitis of the right wrist that did not require any work restrictions.

2

On February 20, 2009 appellant requested an oral hearing.
reports from Dr. Chmell finding no change in her condition.4

She submitted progress

By decision dated and finalized May 13, 2009, an OWCP hearing representative set aside
OWCP’s January 22, 2009 decision, finding a conflict of medical opinion between Dr. Trotter,
for the government, and Dr. Chmell, for appellant, regarding the appropriate percentage of upper
extremity impairment. The hearing representative remanded the case for selection of an
impartial medical examiner. Instead, OWCP selected Dr. Rodrigo M. Ubilluz, a Board-certified
neurologist, as a second opinion specialist. In a January 29, 2010 letter to appellant, OWCP
advised that Dr. Ubilluz was to perform a second opinion evaluation. Dr. Ubilluz provided a
March 3, 2010 report finding no ratable impairment of the upper extremities according to the
sixth edition of the A.M.A., Guides.
By decision dated March 22, 2010, OWCP denied a schedule award as the medical
evidence did not establish any permanent impairment of the upper extremities related to the
accepted injuries. It accorded Dr. Ubilluz the weight of the medical evidence as the impartial
medical examiner. Appellant then appealed to the Board.
By decision and order issued July 5, 2011,5 the Board set aside OWCP’s March 22, 2010
decision, finding that Dr. Ubilluz could not represent the weight of the medical opinion as he was
not an impartial medical examiner. The Board remanded the case to OWCP for selection of an
impartial medical specialist to resolve the remaining conflict between Dr. Chmell and
Dr. Trotter.6
In a February 2, 2012 letter, OWCP advised appellant that it had selected Dr. Jaroslaw
Dzwinyk, a Board-certified orthopedic surgeon, an impartial medical examiner. It provided him
a copy of the medical record and statement of accepted facts.7
In a March 1, 2012 letter, appellant requested to participate in selection of the impartial
medical examiner, alleging that Dr. Dzwinyk was biased because he was “charged with a secret

4

April 17, 2009 magnetic resonance imaging (MRI) scans of appellant’s shoulders showed bilateral
supraspinatus, infraspinatus and subscapularis tendinosis with a nodular lesion over the superior left shoulder. An
April 20, 2009 MRI scan of the right wrist showed a small ganglion cyst in the carpal tunnel, mild flexor tendon
tenosynovitis, possible median nerve edema, a small volar synovial cyst ganglion, minimal tenosynovitis of the
extensor carpi radialis longus and brevis tendons, and mild tendinosis and subluxation of the extensor carpi ulnaris
tendon. An April 20, 2009 MRI scan of the left wrist showed ganglion cysts at the volar aspect of the radiocarpal
joint and flexor pollicis longus tendon, and mild extensor carpi ulnaris tendinosis.
5

Supra note 2.

6

During the pendency of the prior appeal, appellant submitted copies of medical records dating from 1979
through 2011. These records did not include a new impairment rating.
7

Appellant remained off work. Dr. Chmell provided a February 20, 2012 letter finding her totally and
permanently disabled for work due to bilateral carpal tunnel syndrome and right radial styloid tenosynovitis.

3

mission” to find no permanent impairment. OWCP responded by March 6, 2012 letter, denying
her request finding no valid reason to select a new impartial physician.8
Dr. Dzwinyk provided a March 26, 2012 report reviewing the medical record and
statement of accepted facts. On examination, he observed multiple pain behaviors, limited
cervical spine motion, diffuse tenderness to palpation of the neck and shoulders, and 3/5 give
way weakness in the anterior deltoids. Dr. Dzwinyk noted the following ranges of motion for
both shoulders: 0 to 180 degrees forward flexion; 0 to 100 degrees abduction; 0 to 120 degrees
external rotation; 0 to 80 degrees internal rotation. Tinel’s sign was negative at both elbows, and
Finkelstein’s test was negative at both wrists. Bilateral elbow motion was limited by appellant’s
muscle guarding and body habitus. Dr. Dzwinyk found subjective, nonanatomic loss of light
touch sensation in both hands, with well-healed surgical scars from the median nerve releases.
He asserted that appellant’s symptoms were “markedly out of proportion” to the minimal
objective findings. Dr. Dzwinyk noted that appellant had full range of motion throughout the
upper extremities, with a normal neurologic examination. He noted that appellant had no
objective evidence of carpal tunnel syndrome or de Quervain’s tenosynovitis. Also, imaging
studies of record did not support a cervical disc herniation, but rather a central bulge.
Dr. Dzwinyk opined that there was “no evidence to support any amount of permanent
impairment to either of the upper extremities” using the sixth edition of the A.M.A., Guides.
By decision dated May 1, 2012, OWCP denied appellant’s schedule award claim, finding
that the medical record did not support ratable impairment of the upper extremities, based on
Dr. Dzwinyk’s opinion as the weight of the medical evidence. It noted that Dr. Dzwinyk
provided detailed, extensive rationale explaining that appellant had no objective findings in
either arm.
In a May 26, 2012 letter, appellant requested an oral hearing. She alleged that OWCP did
not follow its procedures in selecting Dr. Dzwinyk. Appellant submitted additional medical
evidence.
In a March 9, 2012 report, Dr. Robert James Fink, an attending Board-certified
orthopedic surgeon, recommended electrodiagnostic testing to rule out right carpal tunnel
syndrome and right cubital tunnel syndrome. Dr. Chmell opined on March 21, 2012 that
appellant’s bilateral carpal tunnel syndrome, bilateral cubital tunnel syndrome, bilateral ulnar
neuropathy at the elbows, bilateral brachial plexopathy, and bilateral C3-T1 radiculopathy
remained active. In a May 3, 2012 report, he disagreed with Dr. Dzwinyk, noting that numerous
electrodiagnostic studies demonstrated objective, ratable upper extremity impairments.
By decision dated August 20, 2012, an OWCP hearing representative set aside the May 1,
2012 decision and remanded the case for referral of Dr. Dzwinyk’s report to an OWCP medical
adviser for review, to be followed by issuance of a de novo decision.
In an October 29, 2012 report, an OWCP medical adviser reviewed the medical record
and the reports of Dr. Trotter and Dr. Dzwinyk. He noted that, although Dr. Trotter and
8

Appellant submitted several statements from March through May 2012, as well as copies of medical evidence
previously of record, contending that Dr. Dzwinyk was not objective or impartial.

4

Dr. Dzwinyk did not specify a date of maximum medical improvement, it was “likely to have
occurred on May 28, 2005, which [was] two months after the date of the work injury.”
By decision dated January 10, 2013, OWCP denied appellant’s schedule award claim,
finding that the medical evidence did not establish that she had ratable impairment of either arm.
It accorded the weight of the medical evidence to Dr. Dzwinyk.
In a February 5, 2013 letter, appellant requested an oral hearing. She asserted that an
OWCP medical adviser was not authorized to select the date of maximum medical improvement.
At the hearing, held June 26, 2013, appellant asserted that she remained totally disabled for
work, with pain and paresthesias throughout her neck, back, and all extremities, as well as
migraine and cluster headaches.
Following the hearing, appellant provided a May 20, 2013 electromyography (EMG) and
nerve conduction velocity (NCV) report of the upper extremities showing mild bilateral carpal
tunnel syndrome, with distal sensory latency at 2.75 milliseconds on the right and 3.85
milliseconds on the left. There was no evidence of radiculopathy, plexopathy, or polyneuropathy
in either arm.
By decision dated September 11, 2013, an OWCP hearing representative set aside the
January 10, 2013 decision, finding that the case required additional medical development. The
hearing representative directed that OWCP obtain a supplemental report from Dr. Dzwinyk,
based on the May 20, 2013 EMG and NCV report and an updated statement of accepted facts, to
be followed by issuance of a de novo decision.
In a March 17, 2014 supplemental report, Dr. Dzwinyk reviewed the May 20, 2013 EMG
and NCV study. He noted that according to page 487 of the sixth edition of the A.M.A., Guides,
distal latencies of less than 4.0 milliseconds were considered normal, with no impairment. As
appellant’s distal latencies were 2.75 milliseconds on the right and 3.85 milliseconds on the left,
both less than 4.0 milliseconds, she did not have any upper extremity impairment due to carpal
tunnel syndrome.9
An OWCP medical adviser reviewed Dr. Dzwinyk’s supplemental report on May 26,
2014, and concurred with his assessment of zero percent impairment rating of the upper
extremities under the sixth edition of the A.M.A., Guides. He noted that appellant attained
maximum medical improvement as of May 28, 2000.
By decision dated August 14, 2014, OWCP denied appellant’s schedule award claim,
finding that the medical evidence did not demonstrate a ratable impairment of either upper
extremity. It accorded the weight of the medical evidence to Dr. Dzwinyk.

9

Appellant submitted a March 20, 2014 letter from Dr. Chmell, in which he opined that she remained
permanently and totally disabled for work due to bilateral carpal tunnel syndrome, right radial styloid tenosynovitis,
lumbar derangement, cervical derangements, lumbar radiculopathy, and blunted sensation and weakness throughout
the extremities.

5

In an August 30, 2014 letter, appellant requested an oral hearing. She contended that
Dr. Dzwinyk and OWCP’s medical adviser mischaracterized Dr. Chmell’s findings. At the
hearing, held February 11, 2015, appellant contended that OWCP disregarded the medical
evidence. She described difficulties with activities of daily living. Following the hearing,
appellant submitted a March 4, 2015 statement asserting that the accepted cervical disc
herniation caused ratable upper extremity impairment. She also provided March 4, 2015 and
April 2, 2015 letters from Dr. Chmell finding that appellant remained totally and permanently
disabled for work due to musculoskeletal and neurologic symptoms throughout her spine and
extremities.
By decision dated April 17, 2015, an OWCP hearing representative affirmed the
August 14, 2014 decision denying appellant’s schedule award claim, finding that the medical
evidence did not demonstrate a ratable impairment of either upper extremity. The hearing
representative accorded the weight of the medical evidence to Dr. Dzwinyk, who presented a
through, well-reasoned opinion explaining that appellant had no ratable abnormalities in either
arm.
LEGAL PRECEDENT
The schedule award provisions of FECA10 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. It, 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 mater 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.11 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides.12
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).13 Under the sixth edition, the evaluator identifies the impairment Class of
Diagnosis (CDX) condition, which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).14 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
10

5 U.S.C. § 8107.

11

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
13

A.M.A., Guides 3, section 1.3, “The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement” (6th ed. 2008).
14

Id. at 494-531 (6th ed. 2009).

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In addressing upper extremity impairments, the sixth edition requires identifying the
impairment CDX, which is then adjusted by grade modifiers based on GMFH, GMPE and
GMCS.15 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).16
No schedule award is payable for a member, function, or organ of the body not specified
in FECA or in the regulations.17 Because neither FECA nor the regulations provide for the
payment of a schedule award for the permanent loss of use of the back,18 no claimant is entitled
to such an award.19 However, in 1966, amendments to FECA modified the schedule award
provision to provide for an award for permanent impairment to a member of the body covered by
the schedule regardless of whether the cause of the impairment originated in a scheduled or
nonscheduled member. As the schedule award provision of FECA includes the extremities, a
claimant may be entitled to a schedule award for permanent impairment to an extremity even
though the cause of the impairment originated in the spine.20
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.21
Section 8123(a) of FECA provides that when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.22 When there
are opposing medical reports of virtually equal weight and rationale, the case must be referred to
an impartial medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical
evidence.23
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome, a right rotator
cuff tear, right radial tenosynovitis, and de Quervain’s tenosynovitis of the right wrist. Appellant
claimed a schedule award on June 20, 2008 for bilateral upper extremity impairment.
Dr. Chmell, an attending Board-certified orthopedic surgeon, provided a July 14, 2008
15

Id. at 385-419; see M.P., Docket No. 13-2087 (issued April 8, 2014).

16

Id. at 411.

17

Henry B. Floyd, III, 52 ECAB 220 (2001).

18

FECA specifically excludes the back from the definition of “organ.” 5 U.S.C. § 8101(19).

19

Thomas Martinez, 54 ECAB 623 (2003).

20

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

21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
22

5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

23

Delphia Y. Jackson, 55 ECAB 373 (2004).

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impairment rating based on the fifth edition of the A.M.A., Guides then in effect, finding 77
percent impairment of the right upper extremity and 40 percent impairment of the left upper
extremity. OWCP obtained second opinion from Dr. Trotter, a Board-certified orthopedic
surgeon, who opined on October 8, 2008 that appellant had no ratable impairment of either arm
under the fifth edition of the A.M.A., Guides. It found a conflict of medical opinion between
Dr. Trotter and Dr. Chmell, and selected Dr. Dzwinyk, a Board-certified orthopedic surgeon, to
resolve it. OWCP denied the schedule award claim based on Dr. Dzwinyk’s report as a weight
of the medical evidence. The Board finds that this denial was proper under the facts and
circumstances of the case.
Dr. Dzwinyk provided a March 26, 2012 report reviewing the medical record and
statement of accepted facts under the sixth edition of the A.M.A., Guides. He noted a normal
orthopedic and neurologic examination of the upper extremities, remarking that appellant
exhibited symptom exaggeration and pain behaviors. Dr. Dzwinyk emphasized that there was no
objective evidence of the accepted carpal tunnel syndrome or tenosynovitis. He therefore opined
that appellant had no ratable impairment of either arm. An OWCP medical adviser concurred
with this assessment. Dr. Dzwinyk provided a March 17, 2014 supplemental report reviewing
May 20, 2013 electrodiagnostic studies showing distal latencies in the upper extremities within
normal limits. He explained that these minimal findings were not ratable under the appropriate
section of the A.M.A., Guides. An OWCP medical adviser concurred with Dr. Dzwinyk’s
opinion on May 26, 2014.
The Board finds that OWCP properly accorded Dr. Dzwinyk’s opinion the weight of the
medical evidence. Dr. Dzwinyk was clear in his findings and opinions, and provided a detailed
explanation as to why the accepted conditions were no longer present or active. His opinion was
also based on a complete, accurate factual and medical history. OWCP’s April 17, 2015 decision
denying a schedule award was therefore proper under the facts and law of this case.
On appeal, appellant asserts a pattern of fraud, dishonesty, and misfeasance by OWCP.
In particular, she contends that she should have been granted a schedule award under the fifth
edition of the A.M.A., Guides, but OWCP deliberately delayed developing the claim until the
sixth edition went into effect. The Board has reviewed appellant’s contentions, and notes that
there is no evidence of impropriety by OWCP.24
Appellant also argued that Dr. Chmell was not given an opportunity to perform an
impairment rating. The Board notes that Dr. Chmell performed an impairment rating on
July 14, 2008. Dr. Chmell provided periodic reports through April 2, 2015. There is no
indication that OWCP prevented him from submitting an updated impairment rating.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

24

T.S., Docket No. 11-2016 (issued May 9, 2012).

8

CONCLUSION
The Board finds that appellant has not established that she sustained a ratable bilateral
upper extremity impairment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 17, 2015 is affirmed.
Issued: December 14, 2015
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
TENNESEE VALLEY HCS-MURFREESBORO,
Murfreesboro, TN, Employer
__________________________________________

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

Docket No. 09-53
Issued: April 14, 2009

Case Submitted on the Record

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

JURISDICTION
On October 6, 2008 appellant timely appealed the August 1, 2008 merit decision of the
Office of Workers’ Compensation Programs denying his traumatic injury claim. He also
appealed the Office’s September 18, 2008 nonmerit decision, denying his request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case and the nonmerit decision.
ISSUES
The issues are: (1) whether appellant established that he sustained a traumatic injury in
the performance of duty on June 17, 2008; and (2) whether the Office properly denied his request
for reconsideration.

FACTUAL HISTORY
On June 18, 2008 appellant, a 60-year-old electrical worker, filed a traumatic injury claim
for a twisted left knee. He attributed his injury to a June 17, 2008 event when he stepped off a
ladder at work.
The Office notified appellant by letter dated June 26, 2008, that the evidence received
was insufficient to support his claim.
Appellant submitted a June 18, 2008 medical report of Dr. Jeffery M. Huggett, a Boardcertified radiologist, who noted that although “[a] recent sprain [was] possible[,] such a sprain
[was] less likely as none of the expected marrow changes for an anterior cruciate ligament
mechanism injury [were] demonstrated.” Further, Dr. Huggett found no evidence supporting a
meniscal tear.
He diagnosed appellant with:
tri-compartmental osteoarthritis and
chondromalacia with cartilage loss, greatest over the lateral facet patella; and small knee joint
effusion.
Appellant submitted an unsigned physician election form dated June 17, 2008. He also
submitted a series of medical treatment reports signed by Linda Laughlin, a nurse practitioner.
These reports covered the periods between February 24 and July 1, 2008.
On July 7, 2008 appellant submitted a Form CA-16 dated June 23, 2008. However, there
is no evidence in the record establishing that the authorized physician provided treatment or a
medical report following treatment.
By decision dated August 1, 2008, the Office denied appellant’s traumatic injury claim
because the medical evidence failed to establish that he sustained an injury in the performance of
duty as defined by the Federal Employees’ Compensation Act.
Appellant requested reconsideration. With his request, he submitted additional treatment
reports singed by Ms. Laughlin. Appellant also submitted duplicate copies of the medical reports
previously submitted.
By decision dated September 18, 2008, the Office denied appellant’s request for
reconsideration because the evidence submitted was insufficient to warrant merit review of its
prior decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Act1 has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of the Act, that the claim was timely filed within the applicable time
limitation period of the Act, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally

1

5 U.S.C. §§ 8101-8193.

2

related to the employment injury.2 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the alleged
condition and the employment event or incident, the employee must submit rationalized medical
opinion evidence, based on a complete factual and medical background, supporting such a causal
relationship.5
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.6 The weight of medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.7
ANALYSIS -- ISSUE 1
Appellant has submitted insufficient medical evidence to establish that he sustained an
injury in the performance of duty on June 17, 2008.
The only substantively probative relevant medical evidence in this case was
Dr. Huggett’s report.
While appellant submitted several treatment reports signed by
Ms. Laughlin, NP, as a matter of law, Ms. Laughlin is not a physician for purposes of the Act
and, therefore, her opinions and findings do not constitute medical opinion evidence. Healthcare
2

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

3

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

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Id.

6

Leslie C. Moore, 52 ECAB 132 (2000).

7

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001). See Edgar G. Maiscott, 4 ECAB 558
(1952) (holding appellant’s subjective symptoms and self-serving declarations did not constitute evidence of a
sufficiently substantial nature).

3

providers such as nurses, acupuncturists, physician’s assistants and physical therapists are not
considered physicians under the Act.8 Thus, Ms. Laughlin’s opinions and reports do not
constitute rationalized medical opinions and have no medical weight or probative value.
The Board finds that Dr. Huggett’s report is of limited probative value because it merely
reports findings upon examination and lacks any rationalized opinion concerning the causal
relationship between appellant’s alleged condition, twisted knee, and employment factors or an
employment-related incident.9
Dr. Huggett diagnosed tri-compartmental osteoarthritis,
chondromalacia and small knee joint effusion however he offered no medical opinion regarding
the cause of these chronic conditions. Medical reports that do not contain rationale on causation
are generally insufficient to meet an employee’s burden of proof.10 The Board has held that the
mere fact that a condition manifests itself during a period of employment does not raise an
inference or presumption that there is a causal relationship between the two.11 Neither the fact
that the condition became apparent during a period of federal employment nor the belief that the
condition was caused or aggravated by an employment incident or factor(s) is sufficient to
establish causal relationship.12 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.13
Moreover, in his report, Dr. Huggett notes that a “recent sprain is possible but felt
unlikely.…” As a matter of law such terms as “possible,” “could,” “may,” or “might be”
indicate that the report is equivocal, speculative or conjectural and, therefore, is of limited
probative value.14
The Office advised appellant that it was his responsibility to provide a comprehensive
medical report, which described his symptoms, test results, diagnosis, treatment and the
physician’s opinion, with medical reasons, on the cause of his condition. Appellant failed to
submit sufficient medical documentation in response to the Office’s request. As the medical
evidence explaining how appellant’s employment duties caused or aggravated a knee or other
diagnosed condition, he has not met his burden of proof in establishing that he sustained an
injury in the performance of duty.

8

5 U.S.C. § 8101(2); see also G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007); Jerre R.
Rinehart, 45 ECAB 518 (1994); Barbara J. Williams, 40 ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983).
9

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (stating that 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).
10

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

11

Joe T. Williams, 414 ECAB 518, 521 (1993).

12

Id.

13

See Edgar G. Maiscott, supra note 7.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.3(g) (April 1993).

4

LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, 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) advanced a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.16 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.17
15

ANALYSIS -- ISSUE 2
Appellant requested reconsideration on August 8, 2008. In support of his request, he
submitted medical treatment reports signed by Ms. Laughlin as well as duplicate copies of
evidence previously submitted.
The treatment reports signed by Ms. Laughlin are of no probative value because nurses
are not considered physicians for purposes of the Act and, therefore, are not competent to render
a medical opinion.18 Furthermore, appellant submitted duplicate copies of Dr. Huggett’s
June 18, 2008 report and other documentation, which was already of record and was previously
reviewed by the Office. The submission of evidence which repeats or duplicates evidence that is
already in the case record does not constitute a basis for reopening a case for merit review.19 The
Board, therefore, finds that these reports are insufficient to warrant reopening appellant’s claim
for further merit review.
The evidence submitted by appellant did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office or constitute relevant and pertinent new evidence not previously considered by the
Office. As he did not meet any of the necessary regulatory requirements, the Board finds that he
is not entitled to further merit review.20

15

5 U.S.C. §§ 8101-8193, § 8128(a).

16

20 C.F.R. § 10.606(b)(2).

17

Id. at § 10.608(b). See Tina M. Parrelli-Ball, 57 ECAB 598 (2006) (when an application for review of the
merits of a claim does not meet at least one of the three regulatory requirements the Office will deny the application
for review without reviewing the merits of the claim).
18

David P. Sawchuk, 57 ECAB 316 (2006).

19

M.E., 58 ECAB ___ (Docket No. 07-1189, issued September 20, 2007); Patricia G. Aiken, 57 ECAB
441 (2006).
20

See 20 C.F.R. § 10.608(b); K.H., 59 ECAB ___ (Docket No. 07-2265, issued April 28, 2008); Richard Yadron,
57 ECAB 207 (2005).

5

CONCLUSION
The Board finds the Office properly concluded that appellant has not established that he
sustained an injury in the performance of duty on June 18, 2008. The Board also finds the Office
properly denied appellant’s August 8, 2008 request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the September 18 and August 1, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: April 14, 2009
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Coppell, TX, Employer
__________________________________________

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

Docket No. 14-744
Issued: August 6, 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 February 19, 2014 appellant filed a timely appeal from a January 8, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established wage-loss compensation for the period
August 21, 2012 through January 25, 2013 due to her accepted occupational disease injury.
FACTUAL HISTORY
On January 15, 2004 appellant, then a 54-year-old distribution clerk, filed an
occupational disease claim (Form CA-2) alleging that she developed a low back injury as a result
of lifting parcels and packages. By decision dated March 11, 2004, OWCP accepted the claim
1

5 U.S.C. § 8101 et seq.

for lumbar strain. The claim was later expanded to include spinal stenosis and thoracic or
lumbosacral neuritis.
On November 16, 2010 appellant underwent authorized L4-5 decompressive
laminectomy, bilateral foraminotomy and posterior lateral fusion. She received continued
physical therapy and epidural injections. Appellant returned to modified duty and claimed
intermittent disability for wage-loss compensation thereafter.
Appellant sought treatment from her attending physician, Dr. Aaron Calodney, a Boardcertified anesthesiologist with a subspecialty in pain medicine. In an August 27, 2012 medical
report, Dr. Calodney reported that she suffered from significant back and bilateral lower
extremity pain, as well as lumbar radiculopathy. He noted that, despite significant pain,
appellant worked full time but occasionally left work early due to interventional pain techniques,
such as lumbar epidural steroid injections. Dr. Calodney reported that her pain caused her to
miss work from May 3 through August 20, 2012.
On September 21, 2012 appellant filed a claim for compensation (Form CA-7) for leave
without pay for 48.75 hours for the period May 3 through August 20, 2012, which OWCP
authorized for 48.75 hours.
In an October 31, 2012 Duty Status Report (Form CA-17), Dr. Calodney reported that
appellant could return to work for five hours per day, six days per week with restrictions.
On October 23, 2013 appellant filed a second Form CA-7 for leave without pay for the
period August 21, 2012 through January 25, 2013. On her time analysis Form CA-7a, she
claimed intermittent disability from August 21, 2012 through January 25, 2013 for a total of 54.9
hours due to spinal and lumbar stenosis.2
In an October 21, 2013 medical report, Dr. Calodney reported that appellant suffered
from significant back and bilateral lower extremity pain, as well as lumbar radiculopathy. He
noted that she worked full time despite significant pain and had benefited from occasional
lumbar epidural steroid injections and surgery. Dr. Calodney noted that at times leading up to
the period in which appellant would have injections, her pain would be unbearable, limiting her
ability to function and causing her to leave work early. He confirmed that she had those dates as
a result of her condition.
In an October 21, 2013 attending physician’s report (Form CA-20), Dr. Calodney
reported that appellant visited his office for steroid injections every two to three months for
treatment of her lumbar radiculopathy and lumbar disc displacement. He noted that her last visit
was on March 29, 2013. Dr. Calodney stated that appellant had flare ups, which could require
her to miss some work due to pain.
2

Appellant requested leave without pay for 2.93 hours on September 5, 2012; 8 hours on September 6, 2012,
8 hours on September 7, 2012, 2.07 hours on October 1, 2012, 2.03 hours on October 11, 2012, 8 hours on
October 26, 2012, 1.59 hours on November 23, 2012, 2.64 hours on December 11, 2012, 3.16 hours on
December 20, 2012, 8 hours on December 27, 2012, 4.37 hours on January 4, 2013, 3.05 hours on January 22, 2013
and 1.06 hours on January 23, 2013.

2

By letter dated October 30, 2013, the employing establishment controverted appellant’s
claim for compensation. It argued that the medical evidence failed to establish disability on the
dates claimed and it did not appear that she sought medical attention on the dates that she alleged
that she was unable to perform her work duties. The employing establishment further noted that
Dr. Calodney’s report was backdated for incidents that happened over 10 months ago and could
not establish appellant’s disability as he did not treat her on those dates.
By letter dated November 8, 2013, OWCP informed appellant that the medical evidence
of record was insufficient to support her claim for compensation for the period August 27, 2012
through January 25, 2013, onward. Appellant was advised to submit medical evidence
establishing disability for the periods claimed.
In support of her claim, appellant submitted another report from Dr. Calodney dated
November 27, 2013. Dr. Calodney reported that she had significant back and bilateral
discomfort with low back and bilateral posterior extremities. After undergoing L5 laminectomy,
foraminotomy and posterolateral fusion surgery in 2010, appellant experienced some relief but
continued to suffer severe discomfort during long periods of standing and bending.
Dr. Calodney reported that there were times in which she was unable to function due to severe
discomfort and grief, causing her much distress.
By decision dated January 8, 2014, OWCP denied appellant’s claim for wage-loss
compensation for the period August 21, 2012 through January 25, 2013 finding that the medical
evidence failed to establish that she was disabled as a result of her accepted conditions for the
specific periods claimed.
LEGAL PRECEDENT
Under FECA,3 the term disability is defined as incapacity, because of employment injury,
to earn the wages that the employee was receiving at the time of injury.4 Disability is not
synonymous with a physical impairment which may or may not result in an incapacity to earn the
wages. An employee who has a physical impairment causally related to a federal employment
injury but who nonetheless has the capacity to earn wages he or she was receiving at the time of
injury has no disability as that term is used in FECA.5
Whether a particular injury causes an employee to be disabled and the duration of that
disability are medical issues which must be proved by a preponderance of the reliable, probative
and substantial medical evidence.6 Findings on examination are generally needed to support a
physician’s opinion that an employee is disabled for work. When a physician’s statements
consist only of a repetition of the employee’s complaints that excessive pain caused an inability
to work, without making an objective finding of disability, the physician has not presented a
3

5 U.S.C. §§ 8101-8193.

4

See Prince E. Wallace, 52 ECAB 357 (2001).

5

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

6

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

3

medical opinion on the issue of disability or a basis for payment of compensation.7 The Board
will not require OWCP to pay compensation for disability without any medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow employees to self-certify their disability and entitlement to compensation.8
OWCP’s procedure manual provides that wages lost for compensable medical
examination or treatment may be reimbursed.9 It notes that a claimant who has returned to work
following an accepted injury or illness may need to undergo examination or treatment and such
employee may be paid compensation for wage loss while obtaining medical services and for a
reasonable time spent traveling to and from the medical provider’s location.10 As a rule, no more
than four hours of compensation or continuation of pay should be allowed for routine medical
appointments. Longer periods of time may be allowed when required by the nature of the
medical procedure and/or the need to travel a substantial distance to obtain the medical care.11
ANALYSIS
The Board finds that appellant failed to meet her burden of proof to establish that she was
entitled to disability compensation for the period August 21, 2012 through January 25, 2013.
OWCP accepted that appellant sustained a lumbar strain, spinal stenosis and thoracic or
lumbosacral neuritis. It approved L5 laminectomy, foraminotomy and posterolateral fusion
surgery, which she underwent on November 16, 2010. Appellant received appropriate
continuation of pay and wage-loss compensation through August 20, 2012. On October 23, 2013
she claimed 54.9 hours for leave without pay for the period August 21, 2012 through
January 25, 2013.12
The medical evidence relevant to the specific dates of claimed compensation includes
reports from Dr. Calodney dated August 27 and October 31, 2012 and October 21 and
November 27, 2013. Dr. Calodney’s August 27, 2012 report addresses appellant’s disability for
the period May 3 through August 20, 2012 and is not relevant to her current claim for disability.
His October 31, 2012 CA-17 form states that she can work for five hours per day, six days per
week with restrictions, but does not explain these limitations with medical rationale, supporting a
finding of disability.

7

G.T., 59 ECAB 447 (2008); see Huie Lee Goal, 1 ECAB 180,182 (1948).

8

Id.

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16
(December 1995).
10

See also Daniel Hollars, 51 ECAB 355 (2000); Jeffrey R. Davis, 35 ECAB 950 (1984).

11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8
(November 1998).
12

Supra note 2.

4

In his October 21, 2013 medical report, Dr. Calodney reported that appellant suffered
from significant back and bilateral lower extremity pain, as well as lumbar radiculopathy. He
noted that she worked full time despite significant pain and had benefited from occasional
lumbar epidural steroid injections and surgery. Dr. Calodney stated that, at times leading up to
the period in which appellant would have injections, her pain would be unbearable, limiting her
ability to function and causing her to leave work early. He noted the days she missed work were
the same dates alleged by appellant.
In an October 21, 2013 Form CA-20, Dr. Calodney reported that appellant received
steroid injections every two to three months for her diagnosed conditions of lumbar
radiculopathy and lumbar disc displacement. He noted that her last visit was on March 29, 2013
and stated that she had flare ups which could require her to miss some work due to pain. In his
November 27, 2013 report, Dr. Calodney indicated that appellant experienced some relief but
continued to suffer severe discomfort during long periods of standing and bending post
L5 laminectomy, foraminotomy and posterolateral fusion surgery in 2010. He reported that there
were times in which she was unable to function due to severe discomfort and grief, causing her
much distress.
The Board finds that the opinion of Dr. Calodney is not well rationalized.13 While
Dr. Calodney opined that appellant was off work during the specific dates claimed because of
pain and limited functional ability, he failed to provide a fully rationalized explanation as to why
she was disabled on those dates. Other than generally stating that appellant suffered severe
discomfort from long periods of standing and bending, he did not profess any knowledge of her
specific job duties or provide a rationalized explanation as to why she could not work for the
claimed periods.14 Moreover, it is unclear if the long periods of standing and bending
Dr. Calodney refers to encompass occupational or nonoccupational exposure.
In this instance, Dr. Calodney merely repeated the dates and hours requested by appellant
for disability compensation in his October 31, 2012 report. His reports do not indicate that he
treated her on or near those dates, which would allow him to provide a detailed medical opinion
establishing disability on the specific dates claimed. Moreover, Dr. Calodney’s October 21,
2013 Form CA-20 indicated that appellant visited his office approximately two to three months
for epidural steroid injections, her last visit having been on March 29, 2013. Thus, it remains
unclear how he could reach his conclusion that she was disabled from August 21, 2012 through
January 25, 2013 without having consistently evaluated her.
When a physician’s statements regarding an employee’s ability to work consist only of
repetition of the employee’s complaints that he or she hurt too much to work, without objective
findings of disability being shown, the physician has not presented a medical opinion on the
issue of disability or a basis for payment of compensation15 and the Board has long held that
medical conclusions unsupported by rationale are of diminished probative value and insufficient
13

R.W., Docket No. 13-656 (issued July 16, 2013).

14

A.J., Docket No. 13-614 (issued July 9, 2013).

15

Supra note 7.

5

to establish causal relationship.16 The Board will not require OWCP to pay compensation for
disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.17 As there is no rationalized
medical evidence contemporaneous with the periods of claimed disability, appellant failed to
meet her burden of proof to establish entitlement to disability compensation for the period
August 21, 2012 through January 25, 2013.18
The record does not indicate that appellant received treatment, testing or therapy on the
dates of claimed compensation.19
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant failed to establish that she was entitled to disability
compensation for the period August 21, 2012 through January 25, 2013.

16

See Albert C. Brown, 52 ECAB 152 (2000).

17

William A. Archer, 55 ECAB 674 (2004).

18

Tammy L. Medley, 55 ECAB 182 (2003).

19

Supra note 2 requesting dates for disability compensation.

6

ORDER
IT IS HEREBY ORDERED THAT the January 8, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 6, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jacksonville, FL, Employer
__________________________________________

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

Docket No. 14-324
Issued: April 21, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 26, 2013 appellant filed a timely appeal from an August 1, 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 appellant met his burden of proof to establish that he sustained an
injury to the left knee causally related to factors of his federal employment.
FACTUAL HISTORY
On February 9, 2013 appellant, then a 56-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that he injured his left knee on February 8, 2013 after exiting his

1

5 U.S.C. § 8101 et seq.

postal vehicle and stepping onto grass. His supervisor checked a box confirming that appellant
had been injured in the performance of duty and noted that he had not missed work.
In a statement dated February 8, 2013, appellant noted that he had injured his left knee by
stepping out of his vehicle on uneven ground and turning his left foot. He stated that two and a
half hours later, he was able to continue delivery.
On February 9, 2013 James C. Whited, a nurse practitioner, stated that appellant had knee
strain and recommended that he work only light duty for 10 days.
In a February 19, 2013 letter, OWCP notified appellant of the deficiencies of his claim.
It afforded him 30 days for the submission of additional medical evidence, including a detailed
account of the alleged injury and a physician’s report with a diagnosis and a rationalized opinion
as to the cause of the diagnosed condition.
In response, appellant submitted a March 8, 2013 report from Dr. Mark S. Frisk, a Boardcertified radiologist, diagnosing him via a magnetic resonance imaging (MRI) scan with an ageindeterminate small vertical radial tear of the medial meniscus at the junction of the posterior
horn and body; an acute or subacute grade one medial collateral ligament (MCL) strain; and an
age-indeterminate small joint effusion. He also submitted a duplicate of Mr. Whited’s
February 9, 2013 report and another report from Mr. Whited from the same date.
By decision dated March 26, 2013, OWCP denied appellant’s claim. It found that the
medical evidence was insufficient to establish a causal relationship between his left knee
condition and the February 8, 2013 employment incident.
On April 5, 2013 appellant requested a review of the written record. He submitted a
statement from the same date alleging that he had not received a questionnaire from OWCP and
also submitted a limited-duty job offer from the employing establishment dated March 20, 2013.
Appellant resubmitted Dr. Frisk’s March 8, 2013 report.
In a February 25, 2013 report, Dr. Edward D. Young, a Board-certified orthopedic
surgeon, diagnosed appellant with a left medical meniscus tear. He checked boxes indicating
that appellant’s injury was work related, that an injury was the major contributing cause for his
reported medical condition, the treatment recommended and the functional limitations
determined, but did not list a date of injury and listed appellant’s employing establishment as
“unknown.” Dr. Young recommended an MRI scan of appellant’s knee and stated that appellant
should be limited to a desk job only. In a duty status report of the same date, he described
recommended work restrictions and stated that appellant’s injury occurred when he stepped on
uneven grass and felt tightness in his knee. On this document, Dr. Young listed the date of
injury as February 8, 2013.
In another report dated February 25, 2013, Dr. Young reviewed x-rays of appellant’s left
knee, which revealed no definitive fractures or lesions and good preservation of the joint space.
Appellant told Dr. Young that he injured his knee when he was walking, stepped in a hole and
felt his knee give out. On physical examination, Dr. Young noted that appellant had point
tenderness about the medial compartment of the left knee, a positive medial Apley’s grind test, a
positive medial McMurray’s test, a negative Homans’ sign, slightly increased pain with valgus
2

stress, a negative Lachman’s test, a negative anterior and posterior drawer sign and mild joint
effusion. He recommended an MRI scan.
On April 4, 2013 Dr. Young, on review of an MRI scan, diagnosed appellant with a grade
one medial collateral ligament tear, a radial tear of the medial meniscus and joint effusion. On
physical examination, he noted that appellant had a negative McMurray’s test and a positive
medial Apley’s grind test. Dr. Young recommended conservative management and physical
therapy. In a form report of the same date, he listed appellant’s date of injury as
January 28, 2013 and his employing establishment as “unknown.” Dr. Young recommended
work restrictions of no squatting, kneeling, climbing or lifting of over 10 pounds.
In a report dated May 23, 2013, Dr. Denver D. Nutter, Board-certified in family
medicine, checked boxes indicating that appellant’s injury was work related, that an injury was
the major contributing cause for appellant’s reported medical condition, the treatment
recommended and the functional limitations determined.2 He diagnosed appellant with knee
strain and stated that the injury occurred at 2:30 a.m. on February 8, 2013. Dr. Nutter
recommended that appellant be on light duty for 10 days, with no prolonged standing, walking,
squatting or repetitive use of stairs.
By decision dated August 1, 2013, OWCP’s hearing representative affirmed the
March 26, 2013 decision. He found that the medical evidence did not adequately explain causal
relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 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.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.6
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.7 Second, the
2

This report appears to be the same as Mr. Whited’s February 9, 2013 report, but attested by Dr. Nutter and with
additional work restrictions listed.
3

Supra note 1.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364, 366 (2006).

5

S.P., 59 ECAB 184, 188 (2007); Joe D. Cameron, 41 ECAB 153, 157 (1989).

6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4 n.5.

7

D.B., 58 ECAB 464, 466 (2007); David Apgar, 57 ECAB 137, 140 (2005).

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employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.8
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.9 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.10
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.11 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and
compensable employment factors.12 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.13
ANALYSIS
OWCP accepted that the employment incident of February 8, 2013 occurred at the time,
place and in the manner alleged; that a medical condition had been diagnosed. The issue is
whether appellant’s left knee condition resulted from the February 8, 2013 employment incident.
The Board finds that he did not meet his burden of proof to establish a causal relationship
between the knee condition for which compensation is claimed and the employment incident.
The medical evidence submitted by appellant included reports from Drs. Young and
Nutter, which contained diagnoses and examination findings. On April 4, 2013 Dr. Young, on
review of an MRI scan, diagnosed appellant with a grade one medial collateral ligament tear, a
radial tear of the medial meniscus and joint effusion. On May 23, 2013 Dr. Nutter diagnosed
appellant with knee strain and checked boxes indicating that appellant’s injury was work related,
that an injury was the major contributing cause for appellant’s reported medical condition, the
treatment recommended and the functional limitations determined. In a form report dated
8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734, 737 (2008); Bonnie A. Contreras,
supra note 4 n.5.
9

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

10

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

11

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).
12

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

13

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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February 25, 2013, Dr. Young checked the same boxes, but did not list a date of injury and listed
appellant’s employing establishment as “unknown.” In a duty status report of the same date, he
described recommended work restrictions and stated that appellant’s injury occurred when he
stepped on uneven grass and felt tightness in his knee. Neither Dr. Young nor Dr. Nutter,
however, sufficiently explained the process through which the February 8, 2013 incident
physiologically caused or aggravated the claimed right knee condition. Medical conclusions
unsupported by rationale are of little probative value.14 Furthermore, the Board has held that a
report that addresses causal relationship with a checkmark, without a medical rationale
explaining how work conditions caused the alleged injury, is of diminished probative value and
is insufficient to establish causal relationship.15
Dr. Frisk diagnosed appellant with an age-indeterminate small vertical radial tear of the
medial meniscus at the junction of the posterior horn and body; an acute or subacute grade one
medial collateral ligament (MCL) strain; and an age-indeterminate small joint effusion. He did
not, however, provide an opinion on the cause of these conditions. Similarly, Dr. Young’s
February 25, 2013 report reviewed x-rays of appellant’s left knee and his report of April 4, 2013
reviewed an MRI scan. Again Dr. Frisk did not address the cause of appellant’s condition.
Medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.16
Reports from Mr. Whited, a nurse practitioner, do not constitute probative medical
evidence, as nurse practitioners do not qualify as physicians under FECA. Therefore, they are
insufficient to establish appellant’s claim.17
Appellant expressed his belief that his left knee condition resulted from the
February 8, 2013 employment incident. The Board has held that the fact that a condition
manifests itself or worsens during a period of employment18 or that work activities produce
symptoms revelatory of an underlying condition does not raise an inference of causal
relationship between a claimed condition and employment factors.19 Neither the fact that the
condition became apparent during a period of employment, nor the belief that the condition was
caused or aggravated by employment factors or incidents, is sufficient to establish causal
relationship.20 Causal relationship must be substantiated by rationalized medical opinion
14

Willa M. Frazier, 55 ECAB 379, 384.

15

See Calvin E. King, Jr., 51 ECAB 394, 401 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843,
852 (1990).
16

Michael E. Smith, 50 ECAB 313, 316 n.8 (1999).

17

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as physician as defined in 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as
follows: (2) “physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors
and osteopathic practitioners within the scope of their practice as defined by State law.” See Merton J. Sills, 39
ECAB 572, 575 (1988).
18

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

19

B.B., Docket No. 13-256 (issued August 13, 2013); Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

20

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

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evidence, which it is appellant’s responsibility to submit. Therefore, appellant’s belief that his
condition was caused by the work-related incident is not determinative.
OWCP advised appellant that it was his responsibility to provide a comprehensive
medical report describing his symptoms, test results, diagnoses, treatment and the physician’s
opinion, with medical reasoning, on the cause of his condition. Appellant failed to submit
appropriate medical documentation in response to OWCP’s request. As there is no probative,
rationalized medical evidence addressing how his claimed left knee condition was caused or
aggravated by his employment, he has not met his burden of proof to establish that he sustained
an injury in the performance of duty causally related to factors of his federal employment.
Appellant submitted new evidence on appeal. The Board lacks jurisdiction to review
evidence for the first time on appeal.21 Appellant may submit this or any other new evidence or
argument with a written request for reconsideration to OWCP within one year of this merit
decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish that he
sustained a traumatic injury in the performance of duty on February 8, 2013.

21

20 C.F.R. § 501.2(c).

6

ORDER
IT IS HEREBY ORDERED THAT the August 1, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 21, 2014
Washington, DC

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

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

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

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