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

)
)
)
)
)
)
)
)

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

Docket No. 17-0371
Issued: April 26, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 8, 2016 appellant, through counsel, filed a timely appeal from an
August 16, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish that her claim
should be expanded to include a tear of the medial meniscus of the right knee as a result of her
June 1, 2015 employment injury.
FACTUAL HISTORY
On June 2, 2015 appellant, then a 52-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 1, 2015 she sustained a pull or tear in her right knee climbing
up “high cement steps” delivering mail to a residence. She stopped work on June 3, 2015.
OWCP accepted the claim for a right knee sprain.3
Appellant initially received treatment for her injury on June 2, 2015 from Dr. Jasmeet
Singh Bhogal, Board-certified in family practice. Dr. Bhogal obtained a history of her
experiencing “excruciating knee pain after stepping on a step and feeling a pull in her knee.” He
diagnosed a sprain of the knee and leg and provided work restrictions.
In a report dated June 29, 2015, Dr. Brian J. Sennett, a Board-certified orthopedic
surgeon, related that around four weeks earlier appellant was going up “an oversized step and felt
something rip in the anterior aspect of the knee in the region of the patella tendon.” He
diagnosed a right knee strain of the patella tendon with patella tendinitis and a possible tear of
the medial meniscus. Dr. Sennett referred appellant for a magnetic resonance imaging (MRI)
scan study.4 The MRI scan, obtained on July 29, 2015, revealed a “displaced radial tear of the
posterior horn medial meniscus with involvement of the tibial root attachment,” degenerative
arthrosis of the medial and patellofemoral compartment, and moderate joint effusion.
Counsel, on October 13, 2015, requested that OWCP expand acceptance of the claim to
include a tear of the posterior horn of the right medial meniscus.
By decision dated October 21, 2015, OWCP found that appellant had not established that
her claim should be expanded to include a right medial meniscus tear due to her June 1, 2015
work injury. It determined that she had not submitted reasoned medical evidence showing a
causal relationship between her June 1, 2015 work injury and her meniscal tear.
On October 26, 2015 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative.
Dr. Sennett, in a November 29, 2015 report, discussed appellant’s history of climbing up
steps on June 1, 2015 and feeling “something ‘rip’ in the anterior aspect of the knee.” He
3

On July 24, 2015 OWCP denied appellant’s claim as the medical evidence was insufficient to establish causal
relationship. On August 5, 2015 appellant requested an oral hearing. Following a preliminary review, in a decision
dated September 30, 2015, an OWCP hearing representative vacated the July 24, 2015 decision and accepted the
claim for right knee strain.
4

In a progress report dated July 13, 2015, Dr. Sennett provided examination findings of bilateral tenderness of the
medial joint line.

2

discussed his initial findings and the results of diagnostic studies. Dr. Sennett related that
appellant had a follow-up examination August 3, 2015. He opined, “It was noted that [appellant]
had a root tear avulsion of her medial meniscus of her right knee as well as arthritis of the medial
hemi-compartment of the right knee. The arthritis involving her right knee was not as bad as her
left knee, as the left knee had ‘bone on bone’ arthritic changes.” Dr. Sennett diagnosed a torn
medial meniscus of the right knee and bilateral knee osteoarthritis. He related:
“With respect to causality, it is not possible to state that [appellant] tore her right
medial meniscus on June 1, 2015 ascending the stairs while working. She stated
in the office that her knee had been bothering her while using the pedals, while
driving, and the pain worsened on June 1, 2015 while ascending the stairs. It can
be stated within a reasonable degree of medical certainty that [appellant]
aggravated her right knee as a result of ascending the stairs on June 1, 2015.”
Dr. Sennett advised that appellant was unable to drive her vehicle from June 1 to
October 19, 2015.
At the hearing, held on February 3, 2016, appellant related that beginning
November 2014 the gas pedal in her truck was difficult to press and that her knee began hurting.
It took until February 2015 for the pedal to be replaced. On June 1, 2015 appellant experienced a
ripping sensation and severe pain in her knee climbing a high step. She described her continued
difficulty driving with her knee.
By decision dated March 7, 2016, OWCP’s hearing representative affirmed the
October 21, 2015 decision. He found that Dr. Sennett did not provide sufficient rationale for his
finding that climbing stairs aggravated appellant’s right knee. The hearing representative noted
that the only issue was a traumatic event on June 1, 2015 rather than any injury resulting from
using pedals beginning in 2014.
Dr. Sennett, in a report dated March 6, 2016, discussed appellant’s history of sharp pain
and “increased symptoms related to [appellant] medial meniscus tear of [the] right knee” on
June 1, 2015 going up a step. He related, “As a result, it is my opinion within a reasonable
degree of medical certainty that [appellant] ascension of the oversized step of June 1, 2015
contributed, in some way, to the aggravation of the diagnosed right medial meniscus tear.”
Appellant, through counsel, on May 19, 2016 requested reconsideration.
By decision dated August 16, 2016, OWCP denied modification of the March 7, 2016
decision.5 It found that Dr. Sennett did not explain why climbing the step on June 1, 2015
aggravated a meniscal tear.
On appeal counsel contends that Dr. Sennett’s reports are sufficient to either establish the
claim or to require further development of the evidence.

5

OWCP indicated that the hearing representative’s decision was dated March 11, 2016 rather than
March 7, 2016.

3

LEGAL PRECEDENT
Appellant bears the burden of proof to establish that a condition not accepted or approved
by OWCP is causally related to an employment injury.6 Causal relationship is a medical issue,
and the medical evidence generally required to establish causal relationship is rationalized
medical opinion evidence.7 The opinion of the physician must be based on a complete factual
and medical background of the claimant,8 must be one of reasonable medical certainty,9 and must
explain the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.10
ANALYSIS
OWCP accepted that appellant sustained a right knee sprain on June 1, 2015 in the
performance of duty. On October 13, 2015 counsel requested that OWCP expand acceptance of
her claim to include a tear of the right posterior horn of the medial meniscus. The issue is
whether appellant submitted sufficient medical evidence to show that her medial meniscal tear
was a result of her June 1, 2015 work injury.
The Board finds that the medical evidence is insufficient to establish that appellant’s
claim should be expanded to include a right meniscus tear. In a November 29, 2015 report,
Dr. Sennett reviewed the history of her feeling something ripping in the anterior right knee after
climbing steps on June 1, 2015. He discussed test results and noted that appellant had a tear of
the medial meniscus of the right knee and bilateral knee arthritis worse on the left. Dr. Sennett
advised that it was impossible to definitely determine that the meniscal tear occurred on June 1,
2015 walking up steps, noting that she also related that she had knee pain using vehicle pedals
driving. He opined that going up stairs on June 1, 2015 aggravated appellant’s right knee
condition. Dr. Sennett did not, however, specify how the work injury of June 1, 2015 caused a
tear or fully explain how the described work injury caused or aggravated a right knee condition.
Without a firm diagnosis supported by medical rationale, the report is of little probative value.11
Dr. Sennett, on March 6, 2016, found that appellant had increased right knee pain and symptoms
due to a medial meniscal tear of the right knee climbing a step on June 1, 2015. He opined that
climbing the step contributed “in some way” to an aggravation of the right medial meniscus tear.
Dr. Sennett’s finding that climbing the large steps on June 1, 2015 “in some way” aggravated a
meniscal tear is speculative and unexplained, and thus insufficient to meet appellant’s burden of

6

See V.B., Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200 (2004).

7

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

8

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

9

Supra note 7.

10

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

11

See Samuel Senkow, 50 ECAB 370 (1999) (finding that, because a physician’s opinion of Legionnaires disease
was not definite and was unsupported by medical rationale, it was insufficient to establish causal relationship).

4

proof.12 His June 29, 2015 report is also of limited probative value as it did not specifically
address whether her employment caused or aggravated a diagnosed medical condition.13
On appeal appellant, through counsel, contends that the reports from Dr. Sennett are
sufficient to meet her burden of proof or to require further development. OWCP, however, did
not accept her claim for a right meniscal tear. Where appellant claims that a condition not
accepted or approved by OWCP was due to her employment injury, she bears the burden of
proof to establish that the condition is causally related to the employment injury through the
submission of rationalized medical evidence.14 Dr. Sennett did not provide sufficient rationale
for his opinion that the work injury aggravated a tear of the right medial meniscus. Medical
conclusions unsupported by rationale are of little probative value.15
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her claim
should be expanded to include a tear of the medial meniscus of the right knee as a result of her
June 1, 2015 employment injury.

12

See D.E., 58 ECAB 448 (2007); T.F., 58 ECAB 128 (2006).

13

See K.W., 59 ECAB 271 (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).
14

See supra note 6.

15

Willa M. Frazier, 55 ECAB 379 (2004); Jimmy H. Duckett, 52 ECAB 332 (2001).

5

ORDER
IT IS HEREBY ORDERED THAT the August 16, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 26, 2017
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU MCA REGIONAL OFFICE
NEW YORK, New York, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1220
Issued: March 17, 2022

Case Submitted on the Record

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

JURISDICTION
On August 9, 2021 appellant filed a timely appeal from a July 15, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2

1

5 U.S.C. § 8101 et seq.

2

The Board notes that, following the July 15, 2021 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.

1

ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted February 27, 2021 employment incident.
FACTUAL HISTORY
On March 2, 2021 appellant, then a 59-year-old miscellaneous clerk, filed a traumatic
injury claim (Form CA-1) alleging that on February 27, 2021 she bruised her right knee and
overextended her right arm when she slipped and fell on ice when she leaned over to place a notice
on the door, while in the performance of duty. On the reverse side of the claim form, appellant’s
supervisor acknowledged that she was injured in the performance of duty. Appellant stopped work
on February 27, 2021 and returned to work on February 28, 2021.
In a development letter dated March 5, 2021, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of additional evidence was necessary to establish her claim
and provided a questionnaire for her completion. OWCP afforded appellant 30 days to submit the
necessary evidence.
On March 25, 2021 appellant submitted a March 22, 2021 response to OWCP’s
development questionnaire. She attested that she was placing a notice on the garage door when
she slipped and fell on ice. Appellant felt a sharp pain in her right kneecap and right upper arm
and subsequently notified her supervisor and sought medical care. She also attested that she did
not have similar disability or symptoms prior to her fall.
Appellant submitted a medical report dated February 27, 2021 from Dr. Julie Stein, a
Board-certified family medicine specialist. Dr. Stein related that appellant was seen for knee pain
after a fall.
OWCP received two x-ray reports dated February 27, 2021 from Dr. Reed Thomas, an
internist and pulmonary disease specialist, which found no fracture in appellant’s knees or right
humerus.
Appellant submitted the first page of a four-page after-visit summary dated March 8, 2021,
which reflected that she was seen that day by Dr. Cyril Kozak, a Board-certified family practice
specialist. The document indicated that “issues were addressed: contusion of right knee,
subsequent encounter; and muscle strain of right upper arm, subsequent.”
By decision dated April 6, 2021, OWCP accepted that the February 27, 2021 employment
incident occurred, as alleged, but denied appellant’s claim, finding that she had not submitted
medical evidence containing a medical diagnosis in connection with her accepted employment
incident. It concluded, therefore, that the requirements had not been met to establish an injury as
defined by FECA.
On April 12, 2021 appellant requested reconsideration of OWCP’s April 6, 2021 decision.
In support of her claim, she submitted a report dated February 27, 2021 from Dr. Joyce Burton, an
osteopath specializing in internal medicine. Dr. Burton related that appellant slipped on ice and
fell on her right knee with her arm out in front of her. She diagnosed knee pain.
2

By decision dated July 15, 2021, OWCP denied modification of its April 6, 2021 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
There are two components involved in establishing fact of injury. The first co mponent to be
established is that the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time and place, and in the manner alleged. The second
component is whether the employment incident caused a personal injury and can be established
only by medical evidence.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 9

3

Id.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

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

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

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

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

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

3

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted February 27, 2021 employment incident.
In support of her claim, appellant submitted February 27, 2021 reports from Dr. Stein and
Dr. Burton, who diagnosed right knee pain. The Board has held that pain is a symptom and not a
compensable medical diagnosis. 10 These reports are, therefore, insufficient to establish a diagnosis
causally related to the accepted employment incident.
The first page of four-page after-visit summary dated March 8, 2021 indicated that
Dr. Kozak addressed appellant’s issues of right knee contusion and muscle strain of the right upper
arm. It, however, did not offer a diagnosis. The Board has held that medical evidence lacking a
firm diagnosis is of no probative value.11 Therefore, this document has no probative value and is
insufficient to establish a diagnosis causally related to the accepted employment incident.
OWCP also received diagnostic test reports. The Board has held, however, that diagnostic
test reports, standing alone, lack probative value as they do not provide an opinion on causal
relationship between the employment incident and a diagnosed condition.12 These reports are,
therefore, insufficient to establish appellant’s claim.
As there is no medical evidence of record establishing a diagnosed medical condition
causally related to the accepted February 27, 2021 employment incident, the Board finds that
appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted February 27, 2021 employment incident.

10

A.G., Docket No. 20-1319 (issued May 19, 2021); T.S., Docket No. 20-0343 (issued July 15, 2020).

11

L.T., Docket No. 20-0582 (issued November 15, 2021); W.G., Docket No. 20-0439 (issued July 13, 2020); R.L.,
Docket No. 20-0284 (issued June 30, 2020); P.C., Docket No. 18-0167 (issued May 7, 2019).
12

See W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

4

ORDER
IT IS HEREBY ORDERED THAT the July 15, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 17, 2022
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF COMMERCE, PATENT &
TRADEMARK OFFICE, Arlington, VA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Stephen D. Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-447
Issued: September 14, 2009

Case Submitted on the Record

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

JURISDICTION
On December 3, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ January 15 and October 22, 2008 decisions, denying her schedule
award claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this appeal.
ISSUE
The issue is whether appellant has established that she is entitled to a schedule award for
permanent impairment to her upper extremities due to her accepted condition of bilateral wrist
tendinitis.
FACTUAL HISTORY
On June 8, 2001 appellant, then a 48-year-old secretary, filed an occupational disease
claim alleging that she developed tendinitis in both wrists due to repetitive job activities. She

stopped working on May 21, 2001. The Office accepted appellant’s claim for bilateral wrist
tendinitis.
Appellant sought treatment from Dr. Stuart L. Davidson, a Board-certified orthopedic
surgeon. On September 15, 2006 Dr. Davidson opined that she was disabled as a result of her
accepted injury and that her disability was permanent. He stated that appellant continued to
experience pain related to severe tendinitis of her shoulders, wrists and hands, as well as arthritis
and radiculopathy.
In an October 9, 2006 second opinion report, Dr. Havinder Pabla, a Board-certified
orthopedic surgeon, opined that appellant’s work-related tendinitis had resolved and that she was
able to return to full-time employment with no restrictions related to her accepted condition. His
examination revealed no atrophy of the thenar hypothenar intrinsic muscles in the wrists
bilaterally. In the right wrist, there was tenderness over the dorsal surface of the radio carpal
joint. Grip and pinch strength were normal. Range of motion (ROM) testing revealed:
dorsiflexion -- 70 degrees; volar flexion -- 60 degrees; ulnar and radial deviations were 30 and 20
degrees respectively; pronation and supination were normal, equal and symmetrical. In the left
wrist, there was no tenderness over the anatomical snuff box, distal radioulnar joint, ulnar stylon
processor or proximal carpal row. ROM testing revealed: dorsiflexion -- 70 degrees; volar
flexion -- 70 degrees; pronation and supination -- 80 degrees; ulnar and radial deviations -- 30
and 20 degrees respectively. Phalen, Allen and Finklestein tests were negative. Tinel sign was
negative. Median nerve compression test was normal. The flexor digitorum profundus and
superficialis functions were intact. Dr. Pabla noted that appellant had numerous subjective
complaints, but that neither his examination nor recent x-rays revealed any significant
abnormality. He opined that she had no residuals from her accepted condition of tendinitis of the
wrists.
The Office found a conflict in medical opinion between Dr. Davidson and Dr. Pabla as to
whether appellant continued to experience residuals from her accepted work-related bilateral
wrist tendinitis and, if so, whether the residuals were disabling. It referred appellant, to
Dr. Edward G. Alexander, a Board-certified orthopedic surgeon, for an impartial medical
examination in order to resolve the conflict. In a January 3, 2007 report, Dr. Alexander opined
that her accepted condition of bilateral wrist tendinitis had fully resolved. Examination revealed
full ROM of the elbows, wrists, hands and fingers. Finklestein, Phalen and Tinel tests were
negative. Dr. Alexander found no evidence of neural deficits, radiculopathy or peripheral
neuropathy.
By decision dated April 11, 2007, the Office terminated appellant’s medical and wageloss benefits based on Dr. Alexander’s referee opinion. It found that the evidence established
that she had no residuals from her accepted condition.
On April 3, 2007 appellant submitted a claim for a schedule award. She submitted
numerous reports from Dr. Davidson, who continued to opine that she was disabled. On
January 19, 2007 Dr. Davidson indicated that appellant’s symptoms of bilateral shoulder, arm,
hand and wrist pain had worsened and that she had restricted ROM in both shoulders. On
February 8 and March 1, 2007 he reported continuing pain in those areas, as well as numbness
and tingling in the wrists and hands and some weakness in the hands. Subsequent follow-up

2

reports through August 1, 2007 reflect appellant’s continued complaints of upper extremity pain
and Dr. Davidson’s opinion that she remained disabled. None of Dr. Davidson’s reports
contained detailed examination findings or an opinion as to the degree of appellant’s permanent
impairment as a result of her accepted injury.
The Office forwarded the medical file and a statement of accepted facts to the district
medical adviser for review and an opinion as to whether appellant had any permanent
impairment of a scheduled member as a result of her accepted injury. In a December 31, 2007
report, the medical adviser indicated that he had reviewed the entire medical record, including
reports from Drs. Davidson, Pabla and Alexander. He noted that there were no significant
findings on x-ray or neurodiagnostic studies of the upper extremity. Based upon the normal
examination findings of Dr. Alexander and Dr. Pabla and normal diagnostic studies, the medical
adviser concluded that appellant had a zero percent impairment of her upper extremities as a
result of the accepted condition of bilateral wrist tendinitis.
In a January 15, 2008 decision, the Office denied appellant’s request for a schedule
award. It found that the evidence failed to demonstrate that she sustained a permanent,
measurable scheduled impairment due to the accepted condition.
On February 4, 2008 appellant requested an oral hearing. On June 30, 2008 she modified
her request to a review of the written record.
Appellant submitted an April 30, 2007 report from Dr. Davidson, which reflected
diagnoses of adhesive capsulitis of the shoulders, bilateral tendinitis of the wrists and hands,
bilateral carpal tunnel syndrome and depressive disorder. Dr. Davidson stated that she had
“generalized weakness” in both hands, noting that her grip strength on the right was 30 percent
less than on the left. He indicated that she was in constant, severe pain. The report provided
ROM measurements for the fingers. Dr. Davidson stated that appellant had reached maximum
medical improvement as of the date of his report.
Appellant submitted follow-up reports from Dr. Davidson, from September 7, 2007
through February 11, 2008, reflecting her continued complaints of bilateral hand pain. The
record also contains an April 15, 2008 functional capacity evaluation (FCE) and supporting
documentation. In a summary report, Carla M. Jaspers, “MS,OTR/L” stated that testing was
attempted, but was terminated due to appellant’s complaints of pain. Testing that, was
performed included an EPIC hand function sort, which was “used to quantify an individual’s
perception of her ability to perform work tasks. The responses on this instrument can be used to
test the reliability/accuracy of a client’s subjective reports of ability and limitation.” Testing
reflected that appellant perceived herself as meeting the physical requirements for less than
sedentary-strength work according to Department of Labor standards.
In a July 21, 2008 letter, appellant’s representative contended that the April 15, 2008
FCE demonstrated a measured impairment to her hands, stating that “the EPIC hand function
sort was restricted.” Thus, he argued that the Office’s schedule award decision should be
reversed.

3

By decision dated October 22, 2008, an Office hearing representative affirmed the
January 15, 2008 decision, denying appellant’s request for a schedule award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. The Act, 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 the Office. 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. American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) (5th ed. 2001) has been adopted by the Office for
evaluating schedule losses and the Board has concurred in such adoption.2
Not all medical conditions accepted by the Office result in permanent impairment to a
scheduled member.3 It is the claimant’s burden to establish that he or she sustained a permanent
impairment of a scheduled member or function as a result of an employment injury.4 Office
procedures provide that, to support a schedule award, the file must contain competent medical
evidence which shows that the impairment has reached a permanent and fixed state and indicates
the date on which this occurred (date of maximum medical improvement), describes the
impairment in sufficient detail to include, where applicable, the loss in degrees of active and
passive motion of the affected member or function, the amount of any atrophy or deformity,
decreases in strength or disturbance of sensation or other pertinent description of the impairment
and the percentage of impairment should be computed in accordance with the A.M.A., Guides.5
This description must be in sufficient detail so that the claims examiner and others reviewing the
file will be able to clearly visualize the impairment with its restrictions and limitations.6
ANALYSIS
The issue is whether appellant established that she has a permanent impairment of her
upper extremities due to her accepted condition of tendinitis of the wrists. The Board finds that

1

5 U.S.C. §§ 8101-8193. See 5 U.S.C. § 8107.

2

See 20 C.F.R. § 10.404; R.D., 59 ECAB ___ (Docket No. 07-379, issued October 2, 2007).

3

Thomas P. Lavin, 57 ECAB 353 (2006).

4

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

5

J.P., 60 ECAB ___ (Docket No. 08-832, issued November 13, 2008); see also Federal (FECA) Procedure
Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6 (August 2002).
6

Federal (FECA) Procedure Manual, supra note 5. See John H. Smith, 41 ECAB 444, 448 (1990); Alvin C.
Lewis, 36 ECAB 595, 596 (1985).

4

the medical reports submitted in support of her claim are not sufficient to establish that she
sustained any permanent impairment due to her accepted condition.
Appellant’s attending physician, Dr. Davidson, opined consistently that appellant
experienced constant pain and numbness due to her wrist tendinitis and that she was disabled
partly due to her accepted condition. However, he did not provide sufficient detail to enable an
Office medical adviser or the Board, to visualize any permanent impairment.7 Dr. Davidson’s
reports were general in nature and did not contain detailed findings on examination from which a
determination could be made as to whether appellant had a permanent impairment of her upper
extremities as derived under the standards of the A.M.A., Guides,8 which are based primarily on
loss of range of motion.9 To this extent, it provides specific tables and figures exemplifying the
types of tests and evaluations that may be performed to properly determine impairment.10
However, Dr. Davidson did not include any range of motion evaluations of the wrists.
Moreover, none of his reports contained an opinion supporting that appellant’s accepted
condition caused any permanent impairment to a scheduled member of the body.
The record contains an April 15, 2008 FCE, which was conducted by Ms. Jaspers,
“MS,OTR/L.” Appellant’s representative contends that the FCE demonstrated a measured
impairment to appellant’s hands, stating that “the EPIC hand function sort was restricted.”
However, the April 15, 2008 FCE is insufficient to establish appellant’s entitlement to a schedule
award. As there is no evidence that the report was signed by an individual that qualifies as a
physician under the Act, the Board finds that it does not constitute probative medical evidence.11
Moreover, the EPIC hand function sort, on which appellant’s representative relies, was not used
to evaluate appellant’s permanent impairment, but rather was “used to quantify an individual’s
perception of her ability to perform work tasks.” The Board also notes that testing was
terminated due to appellant’s complaints of pain, and the evaluation was not completed. For all
of these reasons, the April 15, 2008 FCE lacks probative value.
On appeal, appellant’s representative also contends that the Office erred by ignoring the
evidence, which he alleged was encompassed in the FCE, that her wrist condition had not

7

See A.L., 60 ECAB ___ (Docket No. 08-1730, issued March 16, 2009) (an impairment description must be in
sufficient detail so that the claims examiner and others reviewing the file will be able to clearly visualize the
impairment with its restrictions and limitations). See also Joseph D. Lee, 42 ECAB 172 (1990).
8

The Board notes that Dr. Davidson’s April 30, 2007 report provided ROM measurements for the fingers;
however, he provided no measurements for the wrists; nor did he provide any explanation as to how diminished
ROM in the fingers was causally related to her accepted wrist condition.
9

See Tammy L. Meehan, 53 ECAB 229 (2001); August M. Buffa, 12 ECAB 324 (1961).

10

See, e.g., A.M.A., Guides 516-17, page 436-37.

11

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

5

resolved. The representative’s argument is without merit. The Office hearing representative
considered the April 15, 2008 FCE, but determined that it was of diminished probative value as
the testing was prematurely terminated. Moreover, restrictions noted in the EPIC hand function
sort did not objectively measure impairment in the use of appellant’s hands, as argued by her
representative; rather, they subjectively described her limitations. Finally, the hearing
representative’s decision was based on its finding that the evidence did not contain a medical
opinion that appellant had a permanent partial impairment of either upper extremity.
While appellant has not submitted any probative medical evidence supporting her
schedule award request, reports from Dr. Pabla and Dr. Alexander dated October 9, 2006 and
January 3, 2007 provided detailed findings on examination, including ROM measurements.
Dr. Pabla noted that appellant had numerous subjective complaints, but that neither his
examination nor recent x-rays revealed any significant abnormality. He opined that appellant
had no residuals from her accepted condition of tendinitis of the wrists. Dr. Alexander’s
examination revealed full ROM of the elbows, wrists, hands and fingers. Finklestein, Phalen and
Tinel’s tests were negative. He found no evidence of neural deficits, radiculopathy, or peripheral
neuropathy and opined that appellant’s accepted condition of bilateral wrist tendinitis had fully
resolved. Based upon the normal examination findings of Dr. Alexander and Dr. Pabla and
normal diagnostic studies, the medical adviser concluded that appellant had a zero percent
impairment of her upper extremities as a result of the accepted condition of bilateral wrist
tendinitis.
Appellant has the burden of proof to establish that she sustained a permanent impairment
to a scheduled member. As the medical evidence of record lacks the detail necessary to provide
the basis for a schedule award under the A.M.A., Guides and is devoid of a rationalized medical
opinion on the issue of permanent impairment, the Board finds that it does not support
entitlement to a schedule award.
CONCLUSION
The Board finds that appellant is not entitled to a schedule award for permanent
impairment to her upper extremities due to her accepted condition of tendinitis of the bilateral
wrists.

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
October 22 and January 15, 2008 decisions are affirmed.
Issued: September 14, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bronx, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0322
Issued: July 18, 2019

Case Submitted on the Record

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

JURISDICTION
On November 26, 2018 appellant, through counsel, filed a timely appeal from an
October 26, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the October 26, 2018 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish lumbar conditions
causally related to the accepted November 26, 2016 employment incident.
FACTUAL HISTORY
On December 6, 2016 appellant, then a 43-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 26, 2016 she experienced pain in her lower back,
hips, and thighs when standing in the lobby helping customers while in the performance of duty.
She indicated that she helped customers pack their boxes and complete forms needed for shipping
or mailing. Appellant stopped work on November 27, 2016 and has not returned.
In a December 1, 2016 report, Dr. John Mitamura, a Board-certified orthopedic surgeon,
noted that appellant was injured on “November 26, 2006.”4 He reported that she was standing and
walking while performing customer service duties in the lobby of the employing establishment,
when she developed severe sharp pains in the lower back which radiated down the right hip and to
the right thigh. The next day, appellant had severe back pain and was unable to place pressure on
the left leg. Dr. Mitamura noted examination findings and obtained x-rays of the lumbar spine,
which revealed left-sided spondylosis at the lower L4-5 level, grade 1 spondylolisthesis at L4-5
with foraminal stenosis at L5-S1, and worsening with a grade 2 spondylolisthesis at the L4-5 level.
He provided an impression of spondylolisthesis at L4-5 with lumbar radiculopathy and opined that
appellant was totally disabled from work. Dr. Mitamura recommended magnetic resonance
imaging (MRI) scan studies of the lumbar spine, a lumbar spine brace and physical therapy. In a
December 1, 2016 excuse slip, he took appellant off work due to lumbar sprain.
In a December 9, 2016 letter, the employing establishment controverted appellant’s claim.
It noted that she was on limited duty with regard to her claim in OWCP File No. xxxxxx5915 and
that her modified duties were: answering telephone -- 1 hour (sitting); lobby director -- up to 5
hours (standing intermittently, walking intermittently); and writing second notices -- 1.5 hours
(sitting). The employing establishment further noted that appellant used a chair in the lobby and
that she did not lift above her restrictions.
In a development letter dated December 12, 2016, OWCP requested additional factual and
medical evidence in support of appellant’s November 26, 2016 claim, including a physician’s
medical explanation as to how the reported employment incident caused or aggravated a medical
condition. It also provided a questionnaire for appellant to complete. OWCP afforded appellant
30 days to submit the requested information.
In work excuse slips dated December 29, 2016 and January 4, 2017, Dr. Mitamura opined
that appellant was totally disabled due to her lumbar sprain. In a January 4, 2017 report, he noted
that appellant had injured her low back at work on November 26, 2016. Dr. Mitamura indicated
that appellant’s lumbar spine MRI scan studies demonstrated retrolisthesis consistent with spinal
4

This appears to be a typographical error and should read as November 26, 2016.

5
Under OWCP File No. xxxxxx591, OWCP accepted right knee conditions due to a February 20, 2014 workrelated traumatic injury. Appellant also has a claim under OWCP File No. xxxxxx444, which OWCP accepted left
knee conditions for a February 8, 2007 work-related traumatic injury. These claims have not been administratively
combined with the present claim.

2

instability and a disc herniation at the L5-S1 level. He further noted that loss of disc height and
water content at L4-5 and L5-S1 were also seen. Dr. Mitamura provided an impression of lumbar
disc herniation at L5-S1 with lumbar spinal instability and opined that appellant was totally
disabled from work. Physical therapy and lower electromyogram/nerve conduction velocity
(EMG/NCV) testing were recommended.
By decision dated January 25, 2017, OWCP denied appellant’s traumatic injury claim. It
found that she had not submitted rationalized medical evidence establishing causal relationship
between the diagnosed back conditions and the accepted employment incident. OWCP concluded,
therefore, that appellant had not established an injury or medical condition causally related to the
accepted employment incident.
On February 22, 2017 appellant requested a review of the written record by an OWCP
hearing representative. The envelope containing the hearing request was not of record.
In a December 5, 2016 statement, appellant discussed her work activities on
November 26, 2016. She indicated that after she helped a customer pack up items for international
transit, she turned to get a customs form when her back tightened up and she experienced back
pain.
In a January 17, 2017 attending physician’s report (Form CA-20), Dr. Mitamura indicated
that appellant injured her back at work on November 26, 2016. He diagnosed lumbar disc
herniation with spinal instability and indicated by checking a box marked “yes,” indicating that
the condition was caused or aggravated by an employment activity.
In a February 15, 2017 report, Dr. Mitamura provided an impression of lumbar spinal
instability and radiculopathy with disc herniation secondary to a previous fall and a consequential
injury with the date of November 26, 2016. He advised that appellant had previously fallen and
struck her knees on February 20, 2014 and that this knee injury caused an antalgic gait, which
created stress on her lower back and a consequential back injury to the lumbar spine. Over time
appellant’s low back problem progressively worsened. In progress notes dated March 16,
April 18, May 16, June 20 and June 21, 2017, Dr. Mitamura continued to diagnose lumbar spinal
instability with radiculopathy, noting a date of injury of November 26, 2016.
By decision dated August 11, 2017, an OWCP hearing representative affirmed OWCP’s
January 25, 2017 decision. She noted that the new evidence did not clearly explain how the
November 26, 2016 work incident caused a new injury or what effect it had on appellant’s
preexisting back condition.
OWCP received progress reports dated July 27, October 3 and 31, and November 26, 2017
and January 2 and 30, February 28, March 28, April 25, and May 23, 2018 from Dr. Mitamura,
which continued to note a November 25, 2016 workplace injury to the low back. Dr. Mitamura
also continued to diagnose lumbar spinal instability with radiculopathy and concluded that
appellant was totally disabled from work due to her work-related incident.
In an August 24, 2017 report, Dr. Mitamura provided an impression of lumbar spinal
instability with disc herniation with a clear exacerbation from her standing position in the
workplace lobby where she assisted customers. He indicated that MRI scan studies of the lumbar
spine demonstrated a disc herniation at the L5-S1 level and EMG/NCV testing demonstrated
abnormality with bilateral L5-S1 nerve root compression. Dr. Mitamura explained that when
3

appellant stood in the lobby for eight hours at her workplace, the prolonged standing created
additional downward pressure of the upper torso on the L5-S1 level which had a disc herniation.
This exacerbated the disc herniation and created damage to the nerves. Dr. Mitamura opined that
a clear exacerbation of the nerve root compression from the disc herniation occurred from the
forces of the standing position which created downward pressure across the L5-S1 disc space and
an outward migration and disc herniation in the L5-S1 level.
On July 30, 2018 appellant, through counsel, requested reconsideration. Counsel argued
that Dr. Mitamura’s June 19, 2018 report supported causal relationship between appellant’s
described injuries and conditions and the November 26, 2016 employment incident.
In a June 19, 2018 report, Dr. Mitamura summarized appellant’s visits along with his
findings and opinions on those dates along with the results of the diagnostic studies. He again
related that appellant sustained an injury to her lower back from a work-related accident on
November 26, 2016, while she was standing and walking performing customer service duties in
the lobby of the employing establishment. Dr. Mitamura diagnosed lumbar radiculopathy and
instability with spondylolisthesis at L4-5 with sprain of the ligaments of the lumbar spine. He
opined that, due to the employment incident, appellant had significant facet arthropathy, spinal
stenosis and spondylolisthesis with spinal instability. Dr. Mitamura indicated that additional
studies were needed and, due to the severity of injuries to the lumbar spine, appellant would
ultimately need lumbar spine surgery.
Additional progress reports from Dr. Mitamura dated August 2 and September 12, 2018
continued to diagnose lumbar spinal instability with radiculopathy.
By decision dated October 26, 2018, OWCP denied modification of its August 11, 2017
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.6 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.7
In order to determine whether an employee sustained a traumatic injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the

6

See M.K., Docket No. 18-1623 (issued April 10, 2019); A.J., Docket No. 18-1116 (issued January 23, 2019);
Gary J. Watling, 52 ECAB 278 (2001).
7

20 C.F.R. § 10.115(e); see T.O., Docket No. 18-1012 (issued October 29, 2018); see Michael E. Smith, 50 ECAB
313 (1999).

4

employment incident which is alleged to have occurred.8 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.9 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.
This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury.10
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of her claim, appellant submitted medical reports dating from December 1, 2016
from Dr. Mitamura. Dr. Mitamura reported that appellant was standing and walking while
performing customer service in the lobby of the employing establishment on November 26, 2016
when she developed severe sharp pains in the lower back which radiated down the right hip and to
the right thigh.
Dr. Mitamura provided details pertaining to causal relationship of appellant’s lumbar spinal
instability and radiculopathy with disc herniation to the standing involved in appellant’s modifiedduty position. He explained, in a February 15, 2017 report, that appellant’s February 20, 2014
work-related knee injury caused an antalgic gait, which created stress on her lower back and a
consequential back injury to the lumbar spine, which caused progressive pain and a lumbar disc
herniation. Dr. Mitamura noted that over time appellant’s low back problem progressively
worsened and she indicated November 26, 2016 as the date of subsequent injury. In his August 24,
2017 report, he indicated that appellant’s standing position in the workplace lobby exacerbated her
lumbar spinal instability with disc herniation. Dr. Mitamura noted objective evidence of a disc
herniation at the L5-S1 level and bilateral L5-S1 nerve root compression. He explained that
prolonged standing created additional downward pressure of the upper torso on the L5-S1 level
which had a disc herniation, which exacerbated the disc herniation and damage to the nerves.
Dr. Mitamura also explained that an exacerbation of the nerve root compression from the disc
herniation occurred from the forces of the standing position creating downward pressure across
the L5-S1 disc space and an outward migration of the disc herniation in the L5-S1 level. In his
June 19, 2018 report, he incorporated all of his previous reports and opined that, due to the
employment events of November 26, 2016, appellant had significant facet arthropathy, spinal
stenosis and spondylolisthesis with spinal instability.

8

See P.F., Docket No. 18-0973 (issued January 22, 2019); see also Elaine Pendleton, 40 ECAB 1143 (1989).

9

C.P., Docket No. 18-1645 (issued March 8, 2019).

10

C.B., Docket No. 18-0071 (issued May 13, 2019).

5

The Board finds that, while Dr. Mitamura’s reports are not completely rationalized and are
insufficient to meet appellant’s burden of proof to establish her claim, they are consistent in
indicating that she sustained a back injury on November 26, 2018 while assisting a customer in a
standing position and raise an uncontroverted inference between her diagnosed back conditions
and the work-related incident and are sufficient to require OWCP to further develop the medical
evidence and the case record.11
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.12
The Board will therefore remand the case for further development of the medical evidence.
On remand, OWCP should prepare a statement of accepted facts and obtain a rationalized opinion
from an appropriate Board-certified physician as to whether appellant’s diagnosed lumbar
conditions are causally related to the accepted November 26, 2016 employment incident, either
directly or through aggravation, precipitation, or acceleration.13 Following this and any other
further development deemed necessary, OWCP shall issue a de novo decision on appellant’s
November 26, 2016 traumatic injury claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

11
See X.V., Docket No. 18-1360 (issued April 12, 2019); D.W., Docket No. 17-1884 (issued November 8, 2018);
see Robert A. Redmond, 40 ECAB 796, 801 (1989).
12

See X.V., id.; S.W., Docket No. 18-0119 (issued October 5, 2018); William J. Cantrell, 34 ECAB 1233 (1993).

13

Id.; P.A., Docket No. 09-0319 (issued November 23, 2009).

6

ORDER
IT IS HEREBY ORDERED THAT the October 26, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: July 18, 2019
Washington, DC

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

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

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 15-0535
Issued: September 1, 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 January 20, 2015 appellant filed a timely appeal from a December 4, 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 met her burden of proof to establish an employmentrelated injury on October 2, 2014.
On appeal appellant asserts that her right knee has been giving her trouble since
August 2014 when getting in and out of her postal vehicle.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On October 14, 2014 appellant, then a 60-year-old rural mail carrier, filed a traumatic
injury claim alleging that on October 2, 2014 she felt her right knee pop while she was walking
across the workroom floor and that she then could not bear weight or stand. She stopped work
that day. The postmaster, John T. Porada, completed an OWCP CA-16 form authorizing medical
treatment. An incident report stated that appellant’s right knee was injured as she was walking
across the floor.
In an October 3, 2014 treatment note, Dr. Abraham H. Rosenzweig, a Board-certified
orthopedic surgeon, noted a history that on October 2, 2014 appellant developed pain and
swelling when she had an episode of right knee instability and she was unable to bear weight.
He provided physical examination findings and diagnosed probable traumatic subluxation of the
patella with underlying patellofemoral joint arthritis. Dr. Rosenzweig recommended physical
therapy and medication. On October 10, 2014 he advised that appellant continued to have right
knee pain and swelling. Dr. Rosenzweig stated that, although the pain and swelling developed
while she was working, there was no specific injury. He recommended a diagnostic arthroscopy,
which was scheduled for November 3, 2014.
By letter dated November 3, 2014, OWCP informed appellant that when her claim had
been received, it appeared to be a minor injury resulting in minimal or no lost time from work,
but that her claim had now been reopened for consideration because she had not yet returned to
work. It informed her of the type of evidence needed to support her claim, and gave her 30 days
to provide the requested information.
In a statement dated October 2, 2014, appellant related that, as she reported for work that
day, she first entered the postmaster’s office and then, as she walked toward her desk, she felt her
knee pop, dropped her belongings, and grabbed for anything to break her fall. She stated that she
could not bear weight and may have tripped over packages, but could not confirm this.
Appellant indicated that she then went to an urgent care facility, was given crutches, and was
told to follow up with her physician.
Florence J. Palmer, a coworker, provided a statement on November 12, 2014. She
indicated that on October 2, 2014 she heard appellant cry out, saw her drop the mail she was
carrying and almost fall, but that Sherry Fancher, another coworker, ran over to steady her and
got her a chair. Ms. Palmer related that appellant could not stand. Ms. Fancher also noted in her
statement that she heard appellant cry out, and she ran to get her a chair.
On November 7, 2014 Dr. Rosenzweig reported that appellant was status post
arthroscopy of the right knee that revealed severe degenerative joint disease of the patella. He
recommended physical therapy. Dr. Rosenzweig provided additional follow-up reports on
November 25 and December 2, 2012. On the latter date he advised that appellant was markedly
improved and could return to work without restrictions on December 9, 2014.
By decision dated December 4, 2014, OWCP denied the claim. It noted that the evidence
of record was insufficient to establish that the claimed right knee injury was caused by a specific
factor of employment.

2

LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,2 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.3 The employee must also
establish that he sustained an injury in the performance of duty as alleged and that his disability
for work, if any, was causally related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.5
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.6
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
obtain medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement
in determining whether a prima facie case has been established.7
ANALYSIS
The Board finds that the evidence of record supports that an employment incident
occurred on October 2, 2014. Appellant claimed that she felt her right knee buckle while
walking in the employing establishment. Two coworkers heard her cry out and submitted
supportive statements. OWCP denied the claim asserting the evidence of record was insufficient
to establish that the claimed right knee injury was caused by a specific factor of employment.
However, appellant has submitted a consistent history of injury which was confirmed by
supporting statements of two coworkers. The Board therefore finds that the factual evidence is
2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

3

R.C., 59 ECAB 427 (2008).

4

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

T.H., 59 ECAB 388 (2008).

6

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

7

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

3

sufficient to establish that appellant experienced an employment-related incident on
October 2, 2014.
The Board further finds that the case is not in posture for a decision with regard to
whether the October 2, 2014 work incident caused an injury. As noted, part of an employee’s
burden of proof includes the submission of medical evidence addressing whether the
employment incident caused a personal injury.
Appellant submitted reports from
Dr. Rosenzweig dated October 3 to December 2, 2014 in which he described appellant’s right
knee condition.
OWCP did not consider whether the medical evidence submitted was sufficient to
establish the claim and also did not consider whether, regardless of the acceptance of the claim,
appellant was entitled to reimbursement of medical expenses pursuant to the CA-16 form issued
to her by the postmaster, Mr. Porada.8
Accordingly, the case will be remanded to OWCP for appropriate consideration and
development of the medical evidence.9 After such further development as deemed necessary,
OWCP shall issue an appropriate merit decision regarding appellant’s claim.
CONCLUSION
The Board finds that the evidence supports that an employment incident occurred on
October 2, 2014 and that the case must be remanded to OWCP to determine if appellant
sustained an injury or medical condition caused by this incident.

8

Whereas, in this case, an employing establishment properly executes a Form CA-16 which authorizes medical
treatment as a result of an employee’s claim for an employment-related injury, the CA-16 form creates a contractual
obligation, which does not involve the employee directly, to pay for the cost of the examination or treatment
regardless of the action taken on the claim. See Tracy P. Spillane, 54 ECAB 608 (2003). The period for which
treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by
OWCP. See 20 C.F.R. § 10.300(c).
9

See N.W., Docket No. 11-530 (issued November 7, 2011).

4

ORDER
IT IS HEREBY ORDERED THAT the December 4, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: September 1, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.P., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITY SE, Panama City, FL, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 17-1430
Issued: September 13, 2018

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

On June 20, 2017 appellant, through counsel, filed a timely appeal from a March 27, 2017
decision of the Office of Workers’ Compensation Programs (OWCP). The appeal was docketed
as No. 17-1430.
On January 28, 2016 appellant filed a notice of recurrence (Form CA-2a) and alleged that
on December 1, 2015 he stopped work due to his May 10, 2011 employment injury. He alleged
that he was assigned light-duty employment from August 2011 through December 2015 when he
was directed to return to his date-of-injury position as a carpentry worker without restrictions.
Appellant asserted that the employing establishment did not continue to offer him any additional
light-duty assignments after December 2015 despite his permanent work restrictions.
By decision dated March 27, 2017, OWCP’s hearing representative affirmed an April 5,
2016 OWCP decision, which denied appellant’s claim for a recurrence of disability commencing
1

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

December 7, 2015.2 He found that the second opinion report of Dr. Cory Gaiser, an osteopath,
Board-certified by the American Osteopathic Board of orthopedic surgery, was entitled to the
weight of the medical evidence as to appellant’s work restrictions. The hearing representative
determined that appellant no longer had any disability from his work-related injuries of May 10,
2011, that he continued to have residuals of his work injury, which did not prevent him from
performing his usual duties, and that the employing establishment withdrew his modified-duty
work appropriately.
The Board, however, finds that OWCP failed to make the necessary inquiries and specific
findings regarding appellant’s light-duty work status and offers of employment.
On March 19, 2012 the employing establishment offered appellant a light-duty position as
a lead management assistant. By letter dated March 21, 2012, OWCP informed appellant that the
lead management assistant position was considered suitable work. Appellant commenced work in
that offered position. Following an April 8, 2014 functional capacity examination (FCE), on
August 19, 2014 he was found to be unable to perform the duties of his date-of-injury carpenter
job, which required “heavy work.” The FCE found that appellant was able to perform “medium
work” and the employing establishment then offered him a position as a materials expeditor, which
required “medium work.” The record is unclear whether appellant accepted the position of
materials expeditor or whether he continued in the light-duty lead management assistant position
through December 2015.
Dr. Gaiser completed a work capacity evaluation (Form OWCP-5c) on December 2, 2015
and indicated that appellant could not return to his date-of-injury position. He found that appellant
could work eight hours a day with restrictions performing a medium strength level position based
on the FCE. Dr. Gaiser indicated that appellant could sit five hours a day, walking five hours a
day, standing three hours a day, reach for three hours a day, and bend or stoop for three hours a
day. Appellant could lift up to 40 pounds and push and pull up to 50 pounds occasionally.
On December 2, 2015 the employing establishment informed appellant that he was to
“return to the carpenter shop for duty.”
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused
the illness. This term also means an inability to work that takes place when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.3
On remand OWCP should further develop the record to determine what light-duty positions
appellant performed following his work injury, the dates that those light-duty positions were
offered to appellant, what position appellant was working when he stopped work in
2

December 7, 2015 is the date that the employing establishment terminated appellant’s pay.

3

20 C.F.R. § 10.5(x).

2

December 2015, and whether light-duty work remained available to appellant when he stopped
work in December 2015. It should obtain a position description for each position offered to
appellant to determine whether the work offered to appellant was within the restrictions as set forth
in the FCE and by the physicians of record.
Following this and any other development deemed necessary, OWCP shall issue a de novo
decision.
IT IS HEREBY ORDERED THAT the March 27, 2017 decision is set aside and the case
is remanded for further action consistent with this order of the Board.
Issued: September 13, 2018
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
FINANCE & ACCOUNTING SERVICE,
Columbus, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-1305
Issued: January 13, 2015

Case Submitted on the Record

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

JURISDICTION
On May 20, 2014 appellant filed a timely appeal from an April 1, 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 OWCP properly determined appellant’s pay rate for compensation
purposes.
FACTUAL HISTORY
The case has been before the Board on prior appeals. On the initial appeal to the Board,
the issues included a termination of compensation effective January 4, 2010, an overpayment of
1

5 U.S.C. § 8101 et seq.

$11,630.61 based on an incorrect pay rate, denial of waiver of the overpayment, and a schedule
award for a 15 percent left arm permanent impairment.2 Appellant had filed a claim for injury on
April 23, 1993, that was accepted for cervical, lumbosacral, left thumb, and ring finger strains, as
well as metacarpophalangeal (MP) joint reconstruction surgery on May 2, 2004.
In addition, appellant filed a claim for injury on October 27, 1995, alleging that she
injured her fingers on her left hand when she slammed her fingers in a door. OWCP accepted
this claim for contusions and sprains of the left third and fourth fingers and left MP joint surgery
on April 23, 1996. The two cases have been administratively combined.
With respect to the pay rate for compensation purposes, the Board noted that on
October 27, 1995 appellant was working four hours a day. OWCP had initially paid
compensation based on a weekly pay rate of $416.73, which it found represented full-time
employment on October 27, 1995. It then found that the correct pay rate should be based on the
original date of injury, April 23, 1993, of $376.19 and found an overpayment of compensation
had been created.
As the Board explained, October 27, 1995 did represent a date of injury. The correct pay
rate for that date would be determined by application of 5 U.S.C. § 8114. Even though appellant
was working four hours a day, it was not clear what her correct pay rate would be under this
statute. OWCP was directed to make a proper determination and if the pay rate on October 27,
1995 was higher than on April 23, 1993, then this would represent the correct pay rate.
By order dated December 21, 2013, the Board remanded the case to OWCP to properly
resolve the pay rate issue.3 The Board also noted that it had issued a November 16, 2012
schedule award decision using the pay rate of $376.19 based on an April 23, 1993 date of injury,
without making findings as to pay rate.
In a decision dated April 1, 2014, OWCP found that there was no basis to change the pay
rate from April 23, 1993. It stated that appellant did not return to full-time employment or
sustain a recurrence. According to OWCP, “we paid you based on your ‘left thumb’ condition,
which was accepted under case File No. xxxxxx359 and not for the conditions (sprain and
contusion), which was accepted under case File No xxxxxx404 and since the job would have
continued had you not sustained a new injury, there is no justification to pursue a higher pay-rate
in 1995.”
LEGAL PRECEDENT
Under 5 U.S.C. § 8101(4), “‘monthly pay’ means 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.…” OWCP

2

Docket No. 11-1952 (issued September 10, 2012).

3

Docket No. 13-1597 (issued December 21, 2013).

2

regulations stated that “pay rate for compensation purposes” means the employee’s pay as
determined under 5 U.S.C. § 8114.4
5 U.S.C. § 8114 provides:
“Average annual earnings are determined as follows-(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 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 51/2-day week and 260 if employed on the basis
of a 5-day week.
(2) If the employee did not work in employment in which he was
employed at the time of his injury during substantially the whole year
immediately preceding the injury, but the position was one which would
have afforded employment for substantially a whole year, the average
annual earnings are a sum equal to the average annual earnings of an
employee of the same class working substantially the whole immediately
preceding year in the same or similar employment by the United States in
the same or neighboring place, as determined under paragraph (1) of this
subsection.
(3) If either of the foregoing methods of determining the average annual
earnings cannot be applied reasonably and fairly, the average annual
earnings are a sum that reasonably represents the annual earning capacity
of the injured employee in the employment in which he was working at
the time of the injury having regard to the previous earnings of the
employee in federal employment and of other employees of the United
States in the same or most similar employment in the same or neighboring
location, other previous employment of the employee or other relevant
factors. However, the average annual earnings may not be less than 150
times the average daily wage the employee earned in the employment
during the days employed within [one] year immediately preceding his
injury.”

4

20 C.F.R. § 10.5(s).

3

ANALYSIS
As the history of the case indicates, OWCP found an overpayment of compensation had
been created because appellant was paid wage-loss compensation based on an incorrect pay rate.
Appellant was paid compensation based on a pay rate for compensation purposes of $416.73,
which it found represented pay for full-time work on October 27, 1995. The April 1, 2014
OWCP decision finds that a weekly pay rate of $376.19 is correct without actually addressing the
specific pay rate issues that are present in this case. It appears to find that October 27, 1995
would not represent a date of injury. OWCP refers to appellant not returning to full-time
employment or sustaining a recurrence after return to full-time work. It also refers to the
existence of two claims and then states “the job would have continued” without explaining how
this resolves the pay rate issue.
When OWCP initially used a pay rate on October 27, 1995 of $416.73 a week, it had not
properly applied 5 U.S.C. § 8114 in determining the specific pay rate on October 27, 1995. As
noted above, there are specific and well-established provisions under 5 U.S.C. § 8114 for
determining the pay rate on that date. The issues include whether appellant worked substantially
the whole year prior in the position, and if not whether the position would have afforded
employment for substantially a whole year, or whether 8114(d)(3) should be applied to
determine an amount that reasonably represents the earning capacity as of October 27, 1995.
OWCP must secure relevant evidence from the employing establishment to make proper
findings. As the record indicated that appellant was working part-time, it may be that the pay
rate on October 27, 1995 is less than $376.19, the pay rate on April 23, 1993. If so, OWCP can
make a proper finding that the April 23, 1993 pay rate is correct under FECA.
Once the issue of the correct pay rate for compensation purposes is resolved, then OWCP
can make a proper determination as to an overpayment of compensation. Since the overpayment
was based on a finding of an incorrect pay rate, it is necessary to properly resolve the underlying
pay rate issue. The record indicates that appellant also received a schedule award on
November 16, 2012, with compensation paid based on a pay rate for compensation purposes of
$376.19. The pay rate issue would also affect the compensation issued pursuant to the schedule
award. After properly resolving the pay rate issue, OWCP should issue proper decisions
regarding the overpayment and schedule award issues to protect appellant’s appeal rights.
The Board had directed OWCP to make a determination as to the pay rate on October 27,
1995 and determine whether it was greater than the pay rate on April 23, 1993. It is necessary
that OWCP act in accord with the Board’s determinations as otherwise there would be no finality
of decisions and the appeals procedure would be nullified.5 The case will again be remanded to
OWCP for proper findings on the issues presented.
On appeal, appellant refers to an April 23, 2014 decision from OWCP. However, it
appears that the document she is referring to is an informational letter dated April 23, 2014
noting the accepted left hand conditions from the October 27, 1995 claim and stating that it was

5

See E.C., Docket No. 14-588 (issued July 1, 2004); Anthony Greco, 3 ECAB 84 (1949).

4

in a denied status. This was not a final decision with appeal rights,6 but an informational letter
responding to a telephone call. The Board’s jurisdiction is limited to final decisions of OWCP
arising under FECA.7 Appellant may pursue compensation issues regarding the 1995 injury with
OWCP and receive an appropriate final decision, but on this appeal the Board is limited to
review of the April 1, 2014 final decision.
CONCLUSION
The Board finds that OWCP did not properly determine appellant’s pay rate for
compensation purposes and the case is remanded to OWCP for further development.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 1, 2014 is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: January 13, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6

See 20 C.F.R. § 10.126, providing that a decision contains findings of fact, statement of reasons, and
information about appeal rights.
7

Id. at § 501.2(c).

5