United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF VETERAN AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
CINCINNATI VA MEDICAL CENTER,
Cincinnati, OH, Employer
__________________________________________

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

Docket No. 21-1245
Issued: March 11, 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 17, 2021 appellant, through counsel, filed a timely appeal from a June 21, 2021
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 a medical condition
causally related to the accepted December 4, 2018 employment incident.
FACTUAL HISTORY
On November 3, 2020 appellant, then a 41-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on December 4, 2018 she injured her right arm when she grabbed a
patient who attempted to leave the premises while in the performance of duty. She explained that
the patient became agitated, started to swing his cane at the staff, and attempted to leave the
hospital. Appellant asserted that she grabbed him at the same time the police attempted to subdue
him by placing him on the bed which jerked her arm to the left and pulled her down with the patient
onto the bed. She noted that she initially experienced immediate pain to her wrist and arm, which
worsened with certain activities and continued days later. Appellant stopped work on
December 7, 2018.
In a November 18, 2020 development letter, OWCP notified appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence needed and provided a
factual questionnaire for her completion. OWCP afforded appellant 30 days to respond. No
further evidence was submitted.
By decision dated December 21, 2020, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish a medical diagnosis in connection
with the accepted December 4, 2018 employment incident. It concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
In a December 4, 2018 report, Dr. Jason T. Hildebrant, an internist, related that appellant
was involved in a work-related altercation with a patient who was trying to leave the hospital. He
summarized her account that the patient became agitated and aggressive, and that she tried to
redirect him back to his bed while a coworker relieved him of his cane. Dr. Hildebrant noted that
appellant was unsure whether she injured her arm from being hit by the cane or by the patient.
Appellant reported having aching pain in her right forearm. Dr. Hildebrant conducted a physical
examination and diagnosed right arm pain.
A December 15, 2018 x-ray of the right wrist revealed no acute osseous injury. A right
hand x-ray of even date demonstrated no fracture or dislocation. A right forearm x-ray of even
date revealed mild degenerative changes.
In an August 31, 2020 medical report, Dr. Glen A. McClung, a Board-certified orthopedic
surgeon, noted that appellant presented with right shoulder pain after she fell on her right shoulder.
He conducted a physical examination and diagnosed a possible right shoulder partial rotator cuff
tear.
In a November 18, 2020 medical report, Dr. McClung reported that appellant sustained a
work-related injury of the right shoulder “back in December” when a patient grabbed and pulled
her arm. He noted that she reinjured her right shoulder “in April.” Dr. McClung conducted a

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physical examination and diagnosed probable right shoulder distal clavicle osteolysis, right
shoulder impingement, and a possible partial rotator cuff tear.
A November 30, 2020 magnetic resonance imaging (MRI) scan of the right shoulder
revealed moderate-to-severe supraspinatus and mild infraspinatus tendinosis without tear as well
as mild acromioclavicular (AC) joint osteoarthritis with acromial morphology.
In a December 2, 2020 medical report, Dr. McClung conducted a physical examination and
diagnosed right shoulder impingement, AC arthrosis, and rotator cuff tendinitis.
In a December 10, 2020 form report, Dr. McClung noted that appellant’s condition began
in April 2020 and diagnosed right shoulder pain, rotator cuff tendonitis, impingement, and AC
arthrosis. He advised that she was scheduled for right shoulder surgery on December 28, 2020.
In a December 28, 2020 operative report, Dr. McClung noted that appellant underwent
surgery, including right shoulder arthroscopies with subacrominal decompression, distal clavicle
excision, and extensive debridement. He diagnosed right shoulder impingement, AC arthrosis,
bursitis, and synovitis.
In a letter dated January 12, 2021, appellant, through counsel, requested a telephonic
hearing before a representative of OWCP’s Branch of Hearings and Review. The hearing was
held on April 19, 2021.
By decision dated June 21, 2021, the hearing representative affirmed, as modified, the
December 21, 2020 decision, finding that the medical evidence submitted was sufficient to
establish a diagnosed medical condition. The claim remained denied, however, as the medical
evidence of record was insufficient to establish causal relationship between appellant’s diagnosed
conditions and the accepted December 4, 2018 employment incident.
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 emp loyee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 that an injury was sustained in the performance of duty, as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the

3

Supra note 1.

4

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

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employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.7
The medical evidence required to establish a 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 specif ic employment factors
identified by the employee. 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted December 4, 2018 employment incident.
In his November 18 2020 medical report, Dr. McClung noted that appellant sustained a
work-related injury of the right shoulder “back in December” when a patient grabbed and pulled
her arm. He also indicated that she reinjured her right shoulder “in April.” Dr. McClung diagnosed
right shoulder distal clavicle osteolysis, right shoulder impingement, and a possible partial rotator
cuff tear. While his report is generally supportive of causal relationship, he did not offer any
explanation or medical rationale as to how appellant could have developed the diagnosed right
shoulder conditions due to the accepted December 4, 2018 employment incident. The Board has
held that a report is of limited probative value regarding causal relationship if it does not contain

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).

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medical rationale explaining how a given medical condition is related to the accepted employment
incident.10 For these reasons, this report is insufficient to establish the claim.
In his reports dated December 2, 10, and 28, 2020, Dr. McClung provided multiple
diagnoses related to appellant’s right shoulder and arm. However, he did not provide an opinion
on causal relationship. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value. 11 Thus, these reports are
also insufficient to establish appellant’s claim.
In an August 31, 2020 medical report, Dr. McClung noted that appellant fell on her right
shoulder and diagnosed a possible right shoulder partial rotator cuff tear. However, he failed to
provide a firm diagnosis in connection with the accepted December 4, 2018 employment incident.
The Board has long held that a medical report lacking a firm diagnosis and a rationalized medical
opinion regarding causal relationship is of no probative value.12 Thus, this report is insufficient to
establish appellant’s claim.
Dr. Hildebrant, in his December 4, 2018 medical report, indicated that appellant was
involved in a work-related altercation with a patient who was trying to leave the hospital while
threatening staff members with his cane. He diagnosed right arm pain. However, the Board has
held that pain is a description of a symptom, not a clear diagnosis of a medical condition. 13 A
medical report lacking a firm diagnosis is of no probative value.14 This report is, therefore,
insufficient to establish a diagnosed medical condition causally related to the accepted
employment incident.
The remaining medical evidence includes radiographic studies. The Board has held,
however, that diagnostic studies, standing alone, lack probative value and are, therefore,
insufficient to establish the claim. 15

10
B.H., Docket No. 20-077 (issued October 21, 2020); see S.Y., Docket No. 20-0470 (issued July 15, 2020); T.J.,
Docket No. 19-1339 (issued March 4, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a
report is of limited probative value regarding causal relationship if it does not contain medical rationale describing the
relation between work factors and a diagnosed condition/disability).
11
L.T., Docket No. 20-0582 (issued November 15, 2021); A.C., Docket No. 21-0087 (issued November 9, 2021);
D.B., Docket No. 19-0514 (issued January 27, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
12

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).
13

C.S., Docket No. 20-1354 (issued January 29, 2021); D.R., Docket No. 18-1408 (issued March 1, 2019); D.A.,
Docket No. 18-0783 (issued November 8, 2018).
14

C.S., id.; J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

15

J.E., Docket No. 21-0956 (issued November 23, 2021); J.K., Docket No. 20-0591 (issued August 12, 2020); J.P.,
Docket No. 19-0129 (issued December 13, 2019).

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As the medical evidence of record is insufficient to establish that appellant’s diagnosed
right arm condition is causally related to the accepted December 4, 2018 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 medical
condition causally related to the accepted December 4, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 21, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 11, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Asheville, NC, Employer
__________________________________________

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

Docket No. 11-1739
Issued: April 18, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 27, 2011 appellant, through his attorney, filed a timely appeal from a June 22,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. § 501.3(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to compensation for wage-loss compensation for
the period August 2 to October 15, 2010.
FACTUAL HISTORY
On July 16, 2010 appellant, then a 32-year-old administrative officer, filed a traumatic
injury claim for injuries sustained to his back/spine, right arm and neck during a slip and fall on a
1

5 U.S.C. §§8101-8193.

stairwell on July 9, 2010. The employing establishment confirmed that he was going downstairs
for lunch when he was injured. Both appellant and the employing establishment acknowledged
he *had returned to work on July 9, 2010 from nonwork related back surgery.2
Medical evidence contemporaneous to the July 9, 2010 injury included a July 2, 2010
report from appellant’s attending surgeon, Dr. Douglas Pahl, a Board-certified orthopedic
surgeon, which indicated that appellant could return to work on July 9, 2010 on sedentary duty.
Restrictions were lifting/carrying/pushing/pulling not to exceed 10 pounds, frequent/micro
breaks, no driving or operating machinery while taking narcotics and no long walking and stairs
with heavy equipment.
A July 9, 2010 note from the employing establishment’s emergency room noted the prior
back injury and provided an impression of coccyx concussion and laceration of right forearm.
Appellant was sent home with ice packs and pain medicine and advised to follow-up with
Employee Health on July 12, 2010. In a July 12, 2010 note, a physician’s assistant from the
employing establishment’s emergency room held appellant off work until he could follow-up
with his treating physician.
In an August 2, 2010 duty status report, Dr. Pahl indicated that he advised appellant on
July 20, 2010 that he could return to regular work full time. He advised that he had not treated
appellant specifically for the fall. Dr. Pahl indicated that appellant received abrasions from his
fall and that he had disability from his lumbar spine fusion.
On September 10, 2010 OWCP accepted the claim for an abrasion of the right forearm
and paid continuation of pay for the period July 10 to 26, 2010. Appellant returned to work on
July 27, 2010 but stopped again on August 2, 2010.
On October 9, 2010 appellant filed a Form CA-7 claims for wage-loss compensation for
the period August 2 to October 15, 2010.
In a November 4, 2010 letter, OWCP requested appellant submit medical evidence
supporting that the disability period claimed was related to his accepted July 9, 2001 work injury
and/or treatment for the injury-related medical condition. It noted that he had a preexisting back
injury/surgery but was released to return to work full duty prior to the August 2, 2010 work
stoppage.
In an undated statement, appellant stated that he had indicated on his claim Form CA-1
that he had back, neck and psychological problems.3 He stated that he had an unrelated back
surgery and was provided restrictions, but these were not followed and had to use concrete steps
to reach his work area. Appellant stated that he followed this order with trepidation and fell. He
noted that he was receiving injections to his neck and back and was on multiple medications.
Appellant indicated that he had neck spasms that radiated to the right arm, his sciatica was more
2

The record indicates that the surgery was performed in March 2010.

3

Appellant’s July 16, 2010 traumatic injury claim did not attribute a psychological problem to the July 9, 2010
fall. The record contains an August 27, 2009 report from Dr. Pamela Lowe-Hogle, a psychiatrist, who treated
appellant for anxiety and depression and noted a work situation that he perceived as hostile.

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pronounced and that he had debilitating migraines after the work-related fall. He stated that
these limitations led to depression and anxiety. Evidence previously of record was received
along with a July 22, 2010 statement from Herman Player, a maintenance worker, regarding the
July 9, 2010 work injury and new medical evidence.
Several medical reports were received from Dr. Pahl. Several reports predated
appellant’s July 9, 2001 return to work and concerned his nonwork related back surgery. In a
July 19, 2010 report, Dr. Pahl noted appellant had returned to work approximately 10 days prior
and had a fall and sustained a bruised “coccyx.” He indicated that appellant was seen twice by
local emergency room and given a donut. Dr. Pahl noted that, by appellant’s account, he has
been unable to work due to increased low back pain. He noted examination findings and
reviewed a two-view lumbar spine series. Dr. Pahl provided an assessment of stable
postoperative course status post anterior-posterior spinal fusion L4-5 and L5-S1 and L5 endplate
fracture, secondary to recent trauma. He stated that the injury was relatively benign and no
further intervention was needed. Dr. Pahl stated that appellant should continue with pain
medications and held him off work for one week. He stated that there was no medical reason to
limit appellant’s work for more than a week. Dr. Pahl stated that he had great difficulty in
advising appellant not to use stairs. While he preferred that appellant use an elevator for a few
weeks, he stated that, if this could not be provided, there was no medical reason that appellant
could not use stairs at work. In an undated prescription slip, Dr. Pahl stated that he
recommended no work until July 26, 2010.
In a September 29, 2010 Coeburn Hospital Clinic slip, Dr. Gurcharan S. Kanwal, a
Board-certified psychiatrist, stated that appellant was not able to work for 30 days and diagnosed
lumbar disc disease, cervical disc disease, post-traumatic stress disorder, attention deficit
disorder, anxiety and Gastroesophageal reflux disease (GERD).
In a December 7, 2010 letter, OWCP expanded appellant’s claim to include
contusion/bruise of coccyx and L5 end-plate fracture.
By decision dated December 7, 2010, OWCP denied appellant’s claim for wage-loss
compensation from August 2 to October 15, 2010 on the grounds the medical evidence did not
establish that the claimed disability was due to the July 9, 2010 work injury.
On December 14, 2010 appellant, through his attorney, requested a telephonic hearing
which was held April 5, 2011 before an OWCP hearing representative. New evidence received
included a statement from appellant requesting to expand accepted conditions to include the
endplate fracture, cervical spine problems, migraine headaches and spasms that radiated into his
extremities. This also included diagnostic testing evidence as well as numerous exhibits in
which appellant set forth background information regarding his diagnoses and a letter from a
social worker discussing emotional problems.
Treatment notes and discharge instructions from the Pardee Urgent Care Center provided
a history of the July 9, 2010 fall at work and contained diagnoses of chronic pain, neck
degenerative disc disease and status post lumbosacral fusion. A September 1, 2010 Urgent Care
Patient Triage Complaint Form indicated that appellant should see a bone specialist as soon as
possible.

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In a November 18, 2010 report, Dr. Larry Russell, a Board-certified family practitioner,
opined that appellant was totally disabled due to injuries from the July 9, 2010 fall. He indicated
that appellant had significant pain in the lumbar area, cervical neck muscle spasms limiting range
of motion of the neck and radiating pain and spasms into the right arm. Dr. Russell stated that
these problems have led to increased frequency of migraine headaches and made it impossible
for him to hold a job of any kind now and in the foreseeable future. Progress reports from him
contained diagnoses of situational depression, degenerative lumbar/lumbosacral disc disease and
noted, as new diagnoses directly related to the work injury, chronic pain due to trauma, chronic
migraine, lumbago, thoracic/lumbosacral neuritis/radiculitis and occipital neuralgia.
In an April 11, 2011 report, Dr. Russell reiterated the contents of his November 18, 2010
report and opined that appellant had several active problems (ventricular tachycardia, occipital
neuralgia, thoracic/lumbosacral neuritis/radiculitis, lumbago, chronic migraine without aura,
chronic pain due to trauma, PAT, situational depression, degenerative lumbar/lumbosacral disc
disease, polyuria, umbilical hernia and GERD) directly related to the fall which rendered him
permanently disabled.
In a March 22, 2011 report, Dr. Ricardo Bierrenbach, a psychiatrist, indicated that
appellant had been under his care since September 16, 2010 for post-traumatic stress disorder,
major depressive disorder and attention deficit hyperactive disorder.
By decision dated June 22, 2011, OWCP’s hearing representative affirmed the denial of
appellant’s claim for wage-loss compensation for the period August 2 to October 15, 2010. The
hearing representative noted that OWCP should develop the issue of whether appellant’s claim
should be expanded to include other conditions such as cervical spine problems with radiation to
the extremities, migraine headaches and depression.
LEGAL PRECEDENT
For each period of disability claimed, an employee has the burden of establishing that he
was disabled for work as a result of the accepted employment injury.4 Whether a particular
injury causes an employee to become disabled for work and the duration of that disability, are
medical issues that must be proved by a preponderance of probative and reliable medical opinion
evidence.5 The Board will not require OWCP to pay compensation for disability in the absence
of medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.6

4

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also David H. Goss, 32 ECAB 24 (1980).

5

See Edward H. Horton, 41 ECAB 301 (1989).

6

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

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Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.7 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.8 An employee who has a physical impairment causally related to his federal
employment, but who nonetheless has the capacity to earn the wages he was receiving at the time
of injury, has no disability and is not entitled to compensation for loss of wage-earning capacity.9
When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his employment, he is entitled to compensation for any loss of wages.
ANALYSIS
OWCP accepted appellant’s claim for an abrasion of the right forearm, L5 endplate
fracture and contusion/bruise of coccyx. Continuation of pay was paid from July 10 to 26, 2010.
Appellant returned to work July 27, 2010 but stopped on August 2, 2010 and filed a claim for
wage-loss compensation from August 2 to October 15, 2010. It is appellant’s burden of proof to
establish the claimed period of employment-related disability. On November 4, 2010 OWCP
advised him of the evidence needed to establish his claim. However, appellant did not submit
sufficient reasoned medical evidence to establish that his disability beginning August 2, 2010
was causally related to his accepted conditions. He did not submit a narrative medical report in
which his treating physician explained how his disability was related to the accepted July 9, 2010
employment injury.
Dr. Pahl performed nonwork related back surgery in March 2010 and released appellant
to full duty on July 9, 2010 with restrictions. Following the July 9, 2010 work injury, he advised
appellant on July 20, 2010 that he could return to regular work full time. Dr. Pahl indicated that
in a July 19, 2010 report that the L5 endplate fracture, secondary to recent trauma, was relatively
benign and no further intervention was needed. He further stated that while he preferred the use
of an elevator for a few weeks, there was no medical reason that appellant could not use stairs at
work. As noted, appellant returned to work on July 27, 2010 and stopped on August 2, 2010.
There are no other reports from Dr. Pahl which either address the specific dates of disability
claimed, August 2 to October 15, 2010 or which holds appellant off work due to the accepted
conditions. Several of Dr. Pahl’s reports predate appellant’s claimed period of disability. Thus,
reports from him do not support that the accepted conditions caused any disability during the
claimed period.
Dr. Russell opined that appellant is totally disabled due to injuries from the July 9, 2010
fall. He also diagnoses several conditions which have not been accepted by OWCP. Dr. Russell
did not address the specific dates of disability claimed, August 2 to October 15, 2010 or provide
medical rationale or reasoning to explain why appellant was disabled due to the accepted
7

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
8

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

9

Merle J. Marceau, 53 ECAB 197 (2001).

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conditions.10
Without reasoned medical evidence supporting that appellant had
employment-related disability during the period in question, he has not met his burden of proof
to establish his claim for wage-loss compensation beginning August 2, 2010. The need for
reasoning is particularly important where Dr. Pahl’s more contemporaneous reports indicate that
appellant was not disabled.
Appellant submitted a September 29, 2010 clinic slip from Dr. Kanwal which holds
appellant off work for 30 days and lists diagnoses of lumbar disc disease, cervical disc disease,
post-traumatic stress disorder, attention deficit disorder, anxiety and GERD. He also submitted
treatment notes and discharge instructions from Pardee Urgent Care Center and a March 22,
2011 report from Dr. Bierrenbach which reference the accepted July 9, 2010 employment injury
and diagnose several conditions. However none of these reports are sufficient to support
appellant’s claim as this evidence does not contain a physician’s narrative opinion explaining the
relationship of his inability to work on the dates in question to the accepted conditions.
The other evidence of record, including diagnostic studies, are insufficient to establish
appellant’s wage loss claim as no medical opinion is offered on total disability due to the July 9,
2010 work injury or accepted conditions during the periods of wage loss claimed.
Appellant argues on appeal that OWCP’s decision is contrary to fact and law. As noted,
the medical evidence did not sufficiently address the causal relationship of his alleged disability
during the claimed period to his accepted work-related injuries. Therefore, appellant failed to
meet his 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 established that he was disabled for the period
August 2 through October 15, 2010 due to his accepted work-related injuries.

10

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value). Furthermore, for conditions not accepted or approved by
OWCP, appellant bears the burden of proof to establish that the condition is causally related to the employment
injury. See Jaja K. Asaramo, 55 ECAB 200 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the June 22, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 18, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.K., Appellant
and
DEPARTMENT OF THE AIR FORCE, HILL
AIR FORCE BASE, UT, Employer
__________________________________________

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

Docket No. 19-0829
Issued: September 25, 2019

Case Submitted on the Record

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

JURISDICTION
On March 9, 2019 appellant filed a timely appeal from a February 26, 2019 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 met his burden of proof to establish left knee conditions
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On January 22, 2019 appellant, then a 57-year-old quality assurance inspector, filed an
occupational disease claim (Form CA-2) alleging that he developed a left knee condition due to
heavy lifting, twisting, kneeling, and bending for prolonged periods of time while in the
1

5 U.S.C. § 8101 et seq.

performance of duty for over 15 years. He noted that he first became aware of his condition on
July 1, 2014, and its relationship to factors of his federal employment on July 2, 2014.
In a development letter dated January 25, 2019, OWCP informed appellant of the
deficiencies of his claim, and advised him of the type of factual and medical evidence needed to
establish his claim. It provided a questionnaire for his completion, and afforded him 30 days to
submit the necessary evidence.
In a separate development letter of the same date, OWCP notified the employing
establishment of appellant’s claim. It requested that the employing establishment provide
comments from a knowledgeable supervisor on the accuracy of appellant’s statements, a
description of the tasks appellant performed which required physical exertion, and a description of
precautions taken to minimize effects of the employment activities. OWCP afforded the
employing establishment 30 days to submit the requested information.
On January 29, 2019 appellant responded to OWCP’s questionnaire, relating that his
claimed condition was not the result of a one-time incident, but was the result of several years of
heavy maintenance duties.
Reports dated October 22 and December 17, 2018, by Dr. Michael J. Hall, a Boardcertified orthopedic surgeon, noted appellant’s complaints of left knee pain and that he had to walk
on concrete floors at work which increased his left knee pain. He diagnosed primary osteoarthritis
of the left knee.
In a report dated January 3, 2019, Jaren Mills, a physician assistant, noted that appellant
was examined for a preoperative evaluation of his left knee condition. Based on a left knee x-ray,
he noted impressions of mild degenerative changes at the medial and patellofemoral
compartments, osteophyte formation and subchondral sclerosis, and evidence of
chondrocalcinosis.
In an operative report dated January 8, 2019, Dr. Hall noted preoperative diagnoses of left
knee medial meniscal tear and chondromalacia. He related postoperative diagnoses of very severe
grade 4 chondromalacia in the medial compartment, grade 3 chondromalacia in the lateral
compartment, chondrocalcinosis throughout the knee, and a medial meniscus tear. Dr. Hall
explained that appellant had undergone chondroplasty of the patellofemoral joint, medial and
lateral compartments, partial medial meniscectomy, and debridement of chondrocalcinosis and
synovitis.
Mr. Mills indicated on January 18, 2019 that appellant returned for his one-week
postoperation follow-up evaluation. He noted that appellant’s left knee osteoarthritis was severe,
rather than mild as previously diagnosed.
By decision dated February 26, 2019, OWCP denied appellant’s claim finding that the
evidence of record was insufficient to establish causal relationship between his diagnosed left knee
conditions and the accepted factors of his federal employment.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA2 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 timely filed within the applicable
time limitation period of FECA,3 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.4 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.5
In an occupational disease claim, a claimant must submit the following: (1) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; and (3) medical evidence
establishing that the diagnosed condition is causally related to the employment factors identified
by the claimant.6
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.7 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 employee.8
Neither the mere fact that a disease or condition manifests itself during a period of employment
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.9
ANALYSIS
The Board finds that appellant has met his burden of proof to establish left knee conditions
causally related to the accepted factors of his federal employment.

2

Id.

3
A.M., Docket No. 18-1748 (issued April 24, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
4

C.M., Docket No. 18-1516 (issued May 8, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59
ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
5

A.M., supra note 3; K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
6

C.M., supra note 4; E.M., Docket No. 18-0275 (issued June 8, 2018).

7

T.S., Docket No. 18-1518 (issued April 17, 2019); A.M., Docket No. 18-0685 (issued October 26, 2018).

8

T.S., id.; E.V., Docket No. 18-0106 (issued April 5, 2018).

9

A.M., supra note 7; Dennis M. Mascarenas, 49 ECAB 215 (1997).

3

In support of his claim, appellant submitted three reports from Dr. Hall dated October 22
and December 17, 2018, and January 8, 2019. Dr. Hall primarily diagnosed osteoarthritis of the
left knee, and after appellant underwent surgery on January 8, 2019, he included postoperative
diagnoses including very severe grade 4 chondromalacia in the medial compartment, grade 3
chondromalacia in the lateral compartment, chondrocalcinosis throughout the knee, and a medial
meniscus tear. The only statements regarding causal relationship Dr. Hall offered were in the
October 22 and December 17, 2018 reports wherein he opined that appellant walked on concrete
in the performance of duty, which increased his left knee pain. This opinion however is a mere
conclusory opinion without the necessary rationale explaining how the employment factors were
sufficient to result in the diagnosed medical conditions.10 The Board has held that such an opinion
is insufficient to meet a claimant’s burden of proof to establish a claim.11
Appellant also submitted reports dated January 3 and 18, 2019 from Mr. Mills, a physician
assistant. These reports do not constitute competent medical evidence because physician assistants
are not considered physicians as defined under FECA.12 Under FECA the term “physician”
includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by the applicable state law.13
Consequently, the medical findings and/or opinions of a physician assistant will not suffice for
purposes of establishing entitlement to compensation benefits.14
As the record lacks rationalized medical evidence establishing causal relationship between
the accepted employment duties and appellant’s left knee conditions, the Board finds that appellant
has not met his 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 met his burden of proof to establish left knee conditions
causally related to the accepted factors of his federal employment.

10

T.S., supra note 7.

11

J.R., Docket No. 18-0051 (issued March 23, 2018); J.D., Docket No. 14-2061 (issued February 27, 2015).

12

T.C., Docket No. 19-0227 (issued July 11, 2019); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB
316, 320 n.11 (2006). Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013).
13

5 U.S.C. § 8101(2).

14

S.S., Docket No. 18-1488 (issued March 11, 2019).

4

ORDER
IT IS HEREBY ORDERED THAT the February 26, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 25, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
COATESVILLE VETERANS
ADMINISTRATION MEDICAL CENTER,
Coatesville, PA, Employer
__________________________________________

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

Docket No. 12-1664
Issued: June 24, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 1, 2012 appellant, through her attorney, filed a timely appeal of a May 10,
2012 Office of Workers’ Compensation Programs (OWCP) merit decision denying her claimed
recurrence of disability in 2008. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of
the case.
ISSUE
The issue is whether appellant sustained a recurrence of disability on May 19, 2008 due
to an accepted employment injury.
On appeal, counsel argued that OWCP had not met its burden of proof to reduce
appellant’s compensation based on her actual earnings as a clerk as Dr. Karl Rosenfeld, the
1

5 U.S.C. § 8101 et seq.

impartial medical specialist and a Board-certified orthopedic surgeon, did not provide the
necessary reports establishing that appellant could use her left hand to perform the duties as
required. He also argued that Dr. Rosenfeld did not address the issue of her recurrence of
disability.
FACTUAL HISTORY
This case has previously been before the Board on appeal. Appellant, a 29-year-old
nursing assistant, filed a traumatic injury claim on March 4, 1996 alleging that she sustained an
injury to her left wrist while moving a patient. OWCP accepted her claim for left wrist sprain
and fracture of the navicular cystic of the second metacarpal. Appellant returned to full-time
work as a receptionist on June 18, 2001 and filed a notice of recurrence of disability on
August 10, 2001. The Board affirmed OWCP’s May 23, 2003 denial of this claim on
January 12, 2004.2
On December 7, 2004 OWCP accepted appellant’s claim for the additional conditions of
ulnar nerve lesion and neuropathy on the right and median neuropathy of the right forearm and
wrist. It entered her on the periodic rolls on April 30, 1997. Appellant returned to work as a file
clerk in the pharmacy department, which she alleged involved typing and repetitive motion. The
duties included receiving telephone calls and mail, referring messages appropriately, placing
work orders, mailing correspondence and processing refills as well as other unspecified duties.
A pharmacy clerk is considered a sedentary position with some walking, lightweight carrying,
bending and crouching. The employing establishment stated that appellant was instructed not to
use the computer until voice activated software was purchased and that she took messages while
another employee entered the messages into the computer system.
OWCP referred appellant for an impartial medical examination with Dr. Rosenfeld to
determine the nature and extent of her injury-related condition and disability.3 In a report dated
April 1, 2008, Dr. Rosenfeld reviewed her factual and medical history and performed a physical
examination. He found no spasm in appellant’s neck and interscapular area and no atrophy in
her upper extremities. Dr. Rosenfeld found observable deficit in her left arm and history of
plexopathy and brachial plexus problems with her left upper extremity related to her initial
injury. However, he found nothing wrong with appellant’s right arm and opined, “[S]he could
do everything required of her right arm that a person could do with her right arm. The left arm
would be used only for minimal assistance.” Dr. Rosenfeld stated that appellant could perform
the clothing room position which did not entail pushing, pulling or lifting. He found that she
should not lift over 20 pounds and should not perform repetitive movements of the left wrist and
elbow. Dr. Rosenfeld also provided a work capacity evaluation and indicated that appellant
work eight hours a day with restrictions. He found that she should not reach above the shoulder
on the left and indicated that she should not push, pull or lift more than 10 pounds, 5 on the left.
2

Docket No. 03-2023 (issued January 12, 2004).

3

The Board determined that there was an existing conflict requiring an impartial medical examination. Docket
No. 09-1356 (issued April 5, 2010). The statement of accepted facts that Dr. Rosenfeld reviewed was dated
February 20, 2008 and included the accepted employment injuries. This document indicated that appellant stopped
work in August 2001 and retired on August 10, 2003.

2

By decision dated June 9, 2008, OWCP determined that the position of pharmacy clerk
fairly and reasonably represented her wage-earning capacity and found that she worked in this
position since January 22, 2008. By decision dated February 17, 2009, the hearing representative
affirmed Office’s June 12, 2008 loss of wage-earning capacity determination.
The Board reviewed these decisions on April 5, 20104 and found that OWCP failed to
meet its burden of proof to reduce appellant’s compensation benefits. The Board found that
Dr. Rosenfeld did not review the position of pharmacy clerk. The Board further found that the
record did not establish that appellant actually performed the duties of this position at any time
after her return to work. The Board noted that the employing establishment provided her with
temporary assistance for data entry and never actually provided her with the voice activated
software so that she could perform the position without assistance. Finally, appellant’s attending
physician, Dr. Scott Fried, an osteopath, opined that appellant could not perform the duties of
this position beginning February 21, 2008 less than 60 days after she returned to work. He
recommended that she began working four hours a day at that time. Dr. Fried noted increased
pain in the right ulnar elbow with numbness and tingling as well as swelling. He reported
appellant’s allegation that she used the computer both keying and mousing. The Board reversed
OWCP’s February 17, 2009 decision. The facts and circumstances of the case as set out in the
Board’s prior decisions are adopted herein by reference.
Appellant continued to work full time as a pharmacy clerk. Dr. Fried recommended parttime work on March 20, 2008. In a report dated May 15, 2008, he stated that appellant had not
received voice activated software and did not work due to increased swelling and pain in her
hands. Dr. Fried noted that she was working in the pharmacy and receiving 75 calls a day with a
headset, but still needed to repetitively pick up the receiver. He recommended voice activated
software and a receiver controller.
In a note dated June 11, 2008, Dr. Leonard B. Kamen, an osteopath, noted that appellant
was working four hours a day due to persistent swelling in her wrists. Appellant underwent an
electroneuromygraphic evaluation on July 8, 2008 which demonstrated right upper brachial
plexus nerve compromise, bilateral moderate ulnar nerve compromises, which had worsened
since her February 20, 2007 testing, right median nerve motor compromise and unilaterally
absent “left MABC sensory response.”
In a note dated June 19, 2008, Dr. Fried stated that appellant reduced her work hours on
May 19, 2008. He stated that she received a headset and receiver controller. Dr. Fried noted that
appellant had right ulnar pain and left wrist pain. He found reactivity symptoms as well as
swelling in the right hand, color and temperature changes. Dr. Fried diagnosed overuse
syndrome of the right upper extremity progressive with de Quervain’s syndrome of the right
wrist. He again recommended voice activated software.
Dr. Fried examined appellant on July 17, 2008 and stated that she had right wrist
symptoms, recommended voice activated software and functional capacity testing. He indicated
that she could work four hours a day with restrictions. In a report dated September 24, 2008,
Dr. Fried stated that appellant’s work activities exacerbated her injuries. He stated that her
4

Docket No. 09-1356 (issued April 5, 2010).

3

symptoms were worsened with lifting, pushing and pulling, regular gripping and grasping as well
as repetitive activity. Dr. Fried diagnosed sympathetically mediated pain syndrome, on the right;
ulnar, radial and median neuropathies, as well as de Quervain’s tenosynovitis and on the left;
median, ulnar and radial neuropathies. He stated that appellant was worsening every day she
worked and needed voice activation software.
On May 20, 2009 appellant filed a recurrence of disability claim alleging that on
February 21, 2008 she sustained a recurrence of disability due to her March 4, 1994 employment
injury. Dr. Rosenfeld examined her on July 21, 2009. He stated that appellant’s disabling
conditions were her plexopathy and brachial plexus problem of her left upper extremity.
Dr. Rosenfeld also noted symptoms consistent with de Quervain’s syndrome of the right wrist.
He completed a work capacity evaluation and indicated that appellant could work eight hours a
day with restrictions including two hours reaching, two hours reaching above the shoulder,
repetitive movements of the wrists and elbows for two hours a day with weight restrictions of
two pounds as well as pushing and pulling for two hours each with weight restrictions of five
pounds. Dr. Rosenfeld indicated that she could lift up to 10 pounds for two hours a day.
By decision dated July 30, 2009, OWCP denied the recurrence claim on the basis that the
June 12, 2008 wage-earning capacity determination was in effect. The Branch of Hearings and
Review vacated this decision on April 19, 2010 finding that OWCP should request a
supplemental report from Dr. Rosenfeld regarding appellant’s restrictions in February 2008.
Following the Board’s April 5, 2010 decision reversing the loss of wage-earning
determination,5 OWCP referred appellant to Dr. Rosenfeld for a supplemental report.
Dr. Rosenfeld responded on June 1, 2010 and noted that she stopped work on August 6, 2009.
He performed a physical examination and opined that appellant could currently work eight hours
a day with greater restrictions. Dr. Rosenfeld stated that she could not reach or reach above the
shoulder. He indicated that appellant could perform repetitive movements for two hours a day
with weight restrictions of two pounds. Dr. Rosenfeld stated that she could push and pull for one
hour each with a weight restriction of five pounds. He indicated that appellant should not lift on
the work capacity evaluation, but indicated that she could carry five pounds.
By decision dated June 21, 2010, OWCP reaffirmed the June 12, 2008 and February 17,
2009 decisions finding that Dr. Rosenfeld’s report supported appellant’s ability to perform the
position of pharmacy clerk and did not establish a change in recurrence of disability. Counsel
requested an oral hearing.
OWCP reissued the recurrence decision on July 20, 2010. Counsel requested an oral
hearing on July 22, 2010.
The Branch of Hearings and Review issued a decision on September 15, 2010 finding
that the recurrence decision required additional development including an updated statement of
accepted facts and a request that Dr. Rosenfeld address whether there was a worsening of
appellant’s compensation which prevented her from performing full-time duties as a clerk in
February 2008.
5

Id.

4

The Branch of Hearings and Review also reviewed OWCP’s June 21, 2010 decision and
reversed this decision. The hearing representative noted that based on the Board’s previous
reversal of the loss of wage-earning capacity determination, if OWCP wished to reduce
appellant’s compensation based on her loss of wage-earning capacity, an entirely new loss of
wage-earning capacity determination must be made and issued.
OWCP requested a supplemental report from Dr. Rosenfeld and provided an amended
statement of accepted facts. Dr. Rosenfeld completed a report on February 4, 2011 and reviewed
the new information. He stated that appellant had a 5-pound weight restriction rather than the 10
pounds required by a sedentary position. Dr. Rosenfeld stated, “If a subsequent report is
received stating that her work would require her lifting not more than five pounds, which her
duties would suggest, then I would okay this woman despite her admonition that she cannot
handle her duties as being able to perform them.”
OWCP requested a supplemental report on February 16, 2011 as Dr. Rosenfeld did not
respond to requests for information regarding the worsening of appellant’s condition in
February 21, 2008. Dr. Rosenfeld responded on February 18, 2011 and stated that his
restrictions were based on her subjective complaints.
By decision dated February 24, 2011, OWCP denied appellant’s claim for a recurrence
on May 19, 2008 relying on Dr. Rosenfeld’s reports. Counsel requested an oral hearing on
March 2, 2011. The Branch of Hearings and Review remanded the case on June 13, 2011
finding that Dr. Rosenfeld did not address the issues of whether appellant sustained a recurrence
of disability. The hearing representative directed OWCP to prepare a statement of accepted facts
including appellant’s description of the duties performed and the physical requirements. She
requested a supplemental report from Dr. Rosenfeld addressing Dr. Fried’s reports in 2008 and
providing rationale in support of his conclusions.
OWCP requested a supplemental report from Dr. Rosenfeld on August 1, 2011 and
provided him with an addendum to the statement of accepted facts. Dr. Rosenfeld responded on
September 20, 2011 and stated that when he examined appellant on April 1, 2008 she had
observable deficit of her left upper extremity and should use her left arm for minimal assistance
only. He found nothing wrong with her right upper extremity concluding that she could do
anything required of her with her right arm. Dr. Rosenfeld stated, “In conclusion, accepting the
job duties of full-time clerk in the pharmacy department as answering [tele]phones, scanning in
refill request slips and packing mail, I believe that [appellant] could do most of this with her right
arm and use her left arm only for minimal assistance.”
In a decision dated October 6, 2011, OWCP denied appellant’s claim for recurrence of
disability on May 19, 2008. Counsel requested an oral hearing.
Counsel appeared at the oral hearing on February 28, 2012 and argued that as the Board
found that OWCP had not established that the clerk position fairly and reasonably represented
appellant’s wage-earning capacity, then a recurrence “should be approved automatically.”
By decision dated May 10, 2012, the hearing representative affirmed OWCP’s October 6,
2011 decision finding that appellant had not submitted the necessary medical opinion evidence to

5

establish a causal relationship between her alleged recurrence of disability on May 19, 2008 and
her accepted work injuries. He stated that Dr. Rosenfeld’s most recent report was based on a
proper history of injury and job description and opined that she was capable of performing the
duties of a clerk full time and that her claimed recurrence was not due to her work injuries.
LEGAL PRECEDENT
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 lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related 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.6 When an
employee, who is disabled from the job he or she held when injured on account of employmentrelated residuals, returns to a light-duty position or the medical evidence of record establish that
he or she can perform the light-duty position, the employee has the burden to establish by the
weight of the reliable, probative and substantial evidence a recurrence of total disability and
show that he or she cannot perform such light duty. As part of this burden, the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty requirements.7
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well-rationalized and based on a proper
factual background, must be given special weight.8
ANALYSIS
Appellant filed a notice of recurrence of disability alleging that she sustained a recurrence
on February 21, 2008 due to her March 4, 1994 employment injury. She continued to work eight
hours a day in her position of pharmacy clerk until May 19, 2008. As appellant did not stop or
reduce her work until May 18, 2008, she did not sustain a compensable recurrence of disability
until that date.
Appellant’s attending physician, Dr. Fried opined that appellant could not perform the
duties of her pharmacy clerk position for eight hours a day, beginning on February 21, 2008. At
that time he noted that she was using the computer and had not been provided with voice
activated software and promised by the employing establishment. Dr. Fried attributed
appellant’s disability to her accepted right ulnar condition.

6

20 C.F.R. § 10.5(x).

7

Terry R. Hedman, 38 ECAB 222 (1986).

8

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

6

Dr. Rosenfeld examined appellant on April 1, 2008 to resolve a conflict of medical
evidence regarding the nature and extent of appellant’s injury-related conditions and disability.
He found that she had nothing wrong with her right arm and opined that she could do everything
with her right arm with no limitations. Dr. Rosenfeld noted that appellant had left hand
restrictions.
As Dr. Rosenfeld was selected to resolve a conflict of medical opinion regarding the
nature and extent of appellant’s injury-related condition, his report establishes that at the time of
his April 1, 2008 examination she did not have a right upper extremity condition causally related
to her accepted employment injuries and had not established a recurrence of disability.
Dr. Rosenfeld based his report on a proper history of injury including the accepted conditions.
He provided medical reasoning noting that appellant had no atrophy of the upper extremities and
only subjective findings in the right upper extremity. As this report is based on a proper factual
background, contains physical findings and medical reasoning, the report represents the special
weight of the medical evidence. Appellant has not met her burden of proof in establishing a
recurrence of disability due to her accepted employment injuries.
The Board finds that the contemporaneous medical evidence does not support a
recurrence of disability on or after February 18, 2008.
On appeal, counsel argued that OWCP had not properly reduced appellant’s
compensation benefits based on her earned wages. As the hearing representative stated on
September 15, 2010, the loss of wage-earning capacity determination was reversed by the Board
on April 5, 2010 and OWCP has not issued a new loss of wage-earning capacity determination.
Therefore, there is no loss of wage-earning capacity decision in effect in this case. The Board
has addressed the remainder of counsel’s arguments noting that appellant has not submitted the
necessary medical evidence to establish a spontaneous change in the nature and extent of her
injury-related condition and that her claim for injury and disability should be developed as a new
occupational disease claim.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing a
recurrence of disability on or after May 18, 2008. The Board further finds that appellant has
submitted evidence of a new occupational disease claim which has not been properly developed
by OWCP.

7

ORDER
IT IS HEREBY ORDERED THAT the May 10, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed and the case remanded for further development
consistent with this decision of the Board.
Issued: June 24, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AIR MARSHAL SERVICE,
El Segundo, CA, Employer
__________________________________________

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

Docket No. 19-0980
Issued: December 23, 2020

Case Submitted on the Record

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

JURISDICTION
On April 2, 2019 appellant filed a timely appeal from a February 13, 2019 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 met his burden of proof to establish a traumatic injury
in the performance of duty on April 29, 2018, as alleged.
FACTUAL HISTORY
On Sunday, April 29, 2018 appellant, then a 39-year-old federal air marshal, filed a
traumatic injury claim (Form CA-1) alleging that he sustained a back and leg injury when he was
1

5 U.S.C. § 8101 et seq.

involved in a motor vehicle accident (MVA) at 12:15 p.m. that day while in the performance of
duty. He indicated that the accident occurred while he was in travel status, in route from his home
in San Bernardino, California to Los Angeles International Airport (LAX) where he was to begin
a mission. On the reverse side of the claim form J.L., an employing establishment supervisor,
controverted the claim. He noted that appellant’s usual duty station was on Walnut Avenue in
El Segundo, California, and his regular work hours were 2:00 p.m. to 10:00 p.m., Sunday through
Thursday. J.L. contended that appellant was off-duty at the time of the MVA on April 29, 2018
as he was to report to work at 1:50 p.m., but was injured at 12:15 p.m. He further asserted that the
injury occurred off the employing establishment’s premises and that appellant was not involved in
official “off premises” duties.
A California Highway Patrol collision information form noted a date of April 29, 2018 and
a time of 12:40 p.m., provided no information other than how to obtain a copy of the collision
report.
Appellant also submitted an undated statement in which he maintained that, at the time of
the MVA, he was “on official duty status, traveling to my location” at LAX to fly a domestic
mission. He asserted that he was on official travel status at the time of the MVA, and that his
official duty at the airport started at 11:05 a.m. Appellant indicated that he was on the most direct
route from his residence to his duty location, and he attached a copy of a map with directions from
San Bernardino, California to LAX. He noted that he was not in a government-owned car, but that
the expenses of his travel were reimbursable. Appellant also submitted a copy of an employing
establishment voucher for travel from October 1, 2017 to September 30, 2018.
In a development letter dated May 16, 2018, OWCP informed appellant that the evidence
submitted was insufficient to establish his claim. It advised him of the type of factual and medical
evidence needed, and provided a questionnaire for his completion. OWCP requested further
information to determine whether appellant was in the performance of duty at the time of his injury.
It afforded her 30 days to submit the necessary evidence.
In a separate May 16, 2018 letter, OWCP asked the employing establishment to respond to
appellant’s claim.
An April 29, 2018 California Highway Patrol collision report indicated that a rear-end
traffic collision occurred on I-605 Southbound, 75 feet north of Telegraph Road at 12:40 p.m. on
that date. It noted that the two cars involved sustained minor damage and were driven away by
their respective owners. The report noted that the weather was clear, that it was daylight and dry
with no unusual conditions, that no pedestrians were involved, that alcohol was not a factor in the
collision and that appellant complained of back pain.
Medical evidence submitted included an April 29, 2018 work activity status report in which
Dr. Doug Plata, who practices family medicine, diagnosed strain of the muscle, fascia, and tendon
at neck level, contusion of the right thigh, and strain of the muscle and tendon of the thorax.
Dr. Plata advised that appellant could perform sedentary work with restrictions. In a May 1, 2017
report, Angelica Ross, a physician assistant, provided examination findings and diagnosed cervical
and thoracic strains and left thigh contusion. In work activity status reports dated May 4 to 11,

2

2018, Dr. William Downs, who practices occupational medicine, diagnosed lumbar radiculopathy
and strain of muscle and tendon and back. He advised that appellant could not work. A May 17,
2018 magnetic resonance imaging (MRI) scan of the lumbar spine demonstrated stenosis
secondary to a disc herniation at L4-5.
In a May 24, 2018 response to OWCP’s development questionnaire, appellant indicated
that he had reported the incident to J.L. at the Los Angeles field office, and to L.G., the on-duty
supervisor. He described immediate symptoms of soreness and tenderness, and noted that he had
been treated by urgent care that evening and was put on restrictions and prescribed physical
therapy. Appellant indicated that he did not have an injury to his neck or back prior to the MVA.
He reported that, at the time of the MVA, he was in route to official duty at LAX to go on temporary
duty for the government. Appellant reported that his last scheduled day of work at the field office
was April 26, 2018 and that he was on the most direct route of travel when the MVA occurred.
In correspondence dated June 5, 2018, Z.N., a senior human resources specialist at the
employing establishment, controverted appellant’s claim. She maintained that appellant was not
in the performance of duty at the time of the MVA because it occurred while he was commuting
to his place of work in his personally-owned vehicle. Z.N. reported that on April 29, 2018
appellant was scheduled on a domestic overnight trip and was to report directly to LAX at 1:50
p.m. She referenced an employing establishment policy, identified as OLE 3404, that governed
when a mission commenced, noting that it provided that a federal air marshal’s “mission day began
upon arrival at the temporary-duty location,” which in appellant’s case was LAX, and that it would
begin when the air marshal was “physically inside the airport terminal or, by the direction of a
superior, the marshal was to report to a different location for a specific mission.” Z.N. indicated
that J.L., appellant’s supervisor, had advised that he was to report to work at 1:50 p.m. and,
therefore, appellant was off duty when the MVA occurred. She noted that, based on the accident
report, he was injured at 12:15 p.m., off of the employing establishment premises, and at that time
he was not involved in “off premises” official duties. Z.N. maintained that this case involved a
routine commute to LAX for a mission assignment, reiterating the policy that, in the case of
domestic missions, the start of duty began upon physical arrival inside the airport terminal. She
maintained that, at the time of the MVA, appellant was not reasonably thought to be engaged in
his master’s business as he was not on official duty when it occurred, he was off premises, was not
driving a government-owned vehicle, and was to arrive at LAX airport at 1:50 p.m. Z.N. continued
that it could not be asserted that appellant was reasonably fulfilling the duties of the employment
as his master’s business would not have started until he physically arrived inside LAX that day.
On June 1, 2018 Dr. Kamran Aflatoon, an osteopath specializing in orthopedic surgery,
noted a history that appellant was in an MVA and had complaints of radiating low back pain. He
reviewed the MRI scan, provided examination findings, and diagnosed lumbar disc bulge,
lumbago, and lumbar spine sprain and strain. Appellant was also treated by Dr. Donna Cloughen,
a chiropractor, from June 5 to 13, 2018. Dr. Cloughen diagnosed MVA, lumbar disc bulge and
lumbar stenosis.
By decision dated July 2, 2018, OWCP denied the claim finding that appellant was not in
the performance of duty when injured on April 29, 2018.

3

On November 26, 2018 appellant requested reconsideration. In an attached statement, he
asserted that he was in the performance of duty when injured on April 29, 2018 and he referenced
by attachment a prior accepted claim regarding a similarly situated employee.
In support of his reconsideration request, appellant submitted evidence previously of record
and reports from Dr. Cloughen dated April 29 to June 26, 2018 who reiterated her diagnoses. In a
report dated June 29, 2018, Dr. Aflatoon noted seeing appellant in follow up and recommended
that his care be transferred to a physiatrist. In an October 4, 2018 report, Dr. James Brown, a
family physician, noted treating appellant for 15 years. He reported the history of the April 29,
2018 MVA and diagnosed lumbar intervertebral disc displacement, and strain of the muscle,
fascia, and tendon of the lower back. Dr. Brown opined with reasonable medical certainty that
appellant had not been able to perform the essential elements of his job since April 29, 2018 and
that he was partially disabled from work.
By a decision dated February 13, 2019, OWCP denied modification of the July 2, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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 timely filed within the applicable
time limitation period of FECA,3 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.4 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.5
In providing for a compensation program for federal employees, Congress did not
contemplate an insurance program against any and every injury, illness, or mishap that might befall
an employee contemporaneous or coincidental with his or her employment. Liability does not
attach merely upon the existence of an employee-employer relation. Instead, Congress provided
for the payment of compensation for disability or death of an employee resulting from personal
injury sustained while in the performance of duty.6

2

Supra note 1.

3

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

See 5 U.S.C. § 8102(a); see J.N., Docket No. 19-0045 (issued June 3, 2019).

4

The Board has interpreted the phrase while in the performance of duty to be the equivalent
of the commonly found requisite in workers’ compensation law of arising out of and in the course
of employment. The phrase “in the course of employment” encompasses the work setting, the
locale, and time of injury. The phrase “arising out of the employment” encompasses not only the
work setting, but also a causal concept with the requirement being that an employment factor
caused the injury. In addressing this issue, the Board has held that in the compensation field, to
occur in the course of employment, in general, an injury must occur: (1) at a time when the
employee may reasonably be said to be engaged in his or her master’s business; (2) at a place
where he or she may reasonably be expected to be in connection with the employment; and
(3) while he or she was reasonably fulfilling the duties of his or her employment or engaged in
doing something incidental thereto.7 In deciding whether an injury is covered by FECA, the test
is whether, under all the circumstances, a causal relationship exists between the employment itself,
or the conditions under which it is required to be performed and the resultant injury.8
The Board has recognized that, as a general rule, off-premises injuries sustained by
employees having fixed hours and places of work while going to or coming from work, are not
compensable, as they do not arise out of and in the course of employment. Such injuries are merely
the ordinary, nonemployment hazards of the journey itself, which are shared by all travelers. There
are recognized exceptions which are dependent upon the particular facts relative to each claim:
(1) where the employment requires the employee to travel on the highways; (2) where the
employing establishment contracts to and does furnish transportation to and from work; (3) where
the employee is subject to emergency calls, as in the case of firefighters; and (4) where the
employee uses the highway to do something incidental to his employment with the knowledge and
approval of the employing establishment.9
The Board has also held that an exception to the general going and coming rule is made for
travel from home when the employee is to perform a special errand. In such a situation, the
employing establishment is deemed to have agreed, expressly or impliedly, that the employment
service should begin when the employee leaves home to perform the special errand. Ordinarily,
cases falling within this exception involve travel which differs in time, or route, or because of an
intermediate stop, from the trip which is normally taken between home and work. In such a case,
the hazard encountered during the trip may differ from that involved in normally going to and
returning from work. The essence of the exception, however, is not found in the fact that a greater
or different hazard is encountered, but in the agreement to undertake a special task. For this reason,
coverage is afforded from the time the employee leaves home, even though in time and route the
journey may be, in part, identical to that normally followed in going to work.10

7

K.G., Docket No. 18-1725 (issued May 15, 2019); Kathryn S. Graham Wilburn, 49 ECAB 458 (1998).

8

J.C., Docket No. 17-0095 (issued November 3, 2017); Mark Love, 52 ECAB 490 (2001).

9

J.H., Docket No. 10-0185 (issued July 19, 2010); Connie J. Higgins (Charles H. Higgins), 53 ECAB 451 (2002);
Melvin Silver, 45 ECAB 677 (1994).
10

M.H., Docket No. 10-1337 (issued April 19, 2011); Elmer L. Cook, 11 ECAB 163 (1964).

5

In addressing the going and coming rule, Larson in workers’ compensation treatise has
explained, “when the employee is paid an identifiable amount as compensation for time spent in a
going or coming trip, the trip is within the course of employment.”11 Regarding payment for
expense of travel, Larson further provides that in the majority of cases involving a deliberate and
substantial payment for the expense of travel, or the provision of an automobile under the
employee’s control, the journey is held to be in the course of employment.12
OWCP’s procedures indicate that for injuries sustained while on travel status, the record
must contain evidence showing when and where the employee last performed official duty; the
distance between the place of injury and the place where official duty was last performed; between
what points the employee was traveling when injured; the purpose of the trip; when and where the
employee was next expected to perform official duty; whether the injury occurred on the direct or
most usually traveled route between the place of last official duty and the place where the employee
was expected to next perform official duty and, if not, the nature and extent of the deviation should
be given with a full explanation of the reason for such deviation; whether at the time of the injury
the employee was riding in or driving a Government-owned vehicle; and whether the employee’s
travel expenses were reimbursable. In injury cases, this information should be supplied by the
injured employee, with the official superior confirming or refuting the employee’s allegations.13
The claims examiner should request a copy of the employee’s travel authorization, and a map or
diagram showing the location of the place where official duty was last performed, the place where
the employee was next expected to perform official duty, the shortest or most usually traveled
route between these points, and the place where the accident occurred. For workers having a fixed
place of employment, who are injured while on an errand or special mission, the claims examiner
will obtain the same information as for workers in travel status.14
ANALYSIS
The Board finds that this case is not in posture for decision.
In controverting the claim, Z.N., an employing establishment workers’ compensation
manager, noted that appellant was driving his personal vehicle at the time of the accident and was
to report for duty at LAX at 1:50 p.m., and that the accident occurred at 12:15 p.m. She reported
that J.L., appellant’s supervisor, agreed that appellant was not in the performance of duty. Z.N.
maintained that employing establishment policies supported that, during domestic missions, which
was appellant’s scheduled duty that day, an air marshal’s duty began upon the marshal’s physical
arrival inside the airport which, in this case would have been 1:50 p.m. at LAX.
While the record indicates that appellant had fixed duty hours from 2:00 p.m. to 10:00 p.m.,
Sunday through Thursday, the Board finds further development of the record is needed to
11

A. Larson, The Law of Workers’ Compensation § 14.06(1) (2008).

12

Id.

13

Id.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(d)(e) (August 1992).

6

determine if appellant was in the performance of duty when the MVA occurred at 12:15 p.m. on
Sunday, April 29, 2018.
The Board has recognized that FECA covers an employee 24 hours a day when the
employee is on travel status and engaged in activities essential or incidental to such duties.15
However, as the Board noted in the case M.H.,16 air marshals are not in travel status while
commuting to work.
Although Z.N. cited to employing establishment policies regarding an air marshal’s
mission day and duties, a copy of these policies are not found in the record before the Board. Of
further note, the record indicates that appellant was to report to LAX at 1:50 p.m. on April 29,
2018 to begin his duty. This was outside his regular duty hours that began at 2:00 p.m. The Board
finds that the record is unclear of the factual chronology on the date of incident as it is unclear
whether appellant was to arrive at LAX at 1:50 p.m. or board a domestic flight at that time, thus
necessitating an earlier arrival time.
The Board also notes that the record does not contain evidence regarding reimbursement
policies of the employing establishment regarding mileage or any other expenses of appellant’s air
marshal duties during his travel to the airport.17
The Board notes that OWCP procedures require that in cases of injured air marshals, certain
documentary evidence must be obtained.18 Herein, although Z.N. provided a statement, she did
not provide a copy of employing establishment policies or other information needed for a full and
fair adjudication of this case.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter.
While appellant has the burden of proof to establish entitlement to compensation, OWCP shares
the responsibility in the development of the evidence, particularly when such evidence is of the
character normally obtained from the employing establishment or other governmental source.19
The Board finds that OWCP insufficiently developed the evidence regarding whether appellant
was in the performance of duty at the time of injury on April 29, 2018.20

15

See A.W., 59 ECAB 593 (2008); Ann P. Drennan, 47 ECAB 750 (1996); Richard Michael Landry, 39 ECAB
232 (1987).
16

See M.H., supra note 10.

17

See Jon Luis Van Alstine, 56 ECAB 136 (2004) (The Board found it readily apparent that monetary
reimbursement from the employing establishment was not for “all or substantially all” of the cost of his travel to work
where the employee was working a detail at an alternative work site and was reimbursed at 31 cents a mile for the 13mile difference between the work sites.)
18

Federal (FECA) Procedure Manual, supra note 14 at Chapter 2.804.7 (August 1992).

19

T.T., Docket No. 20-0383 (issued August 3, 2020).

20
D.C., Docket No. 19-0846 (issued October 17, 2019); Federal (FECA) Procedure Manual, supra note 14 at
Chapter 2.800.5(d)(1); see also Chapter 2.804.4(f).

7

As OWCP failed to request all the information as required under its procedures, the case
must be remanded for further development of the claim.21 On remand OWCP shall obtain
clarifying information as to the employing establishment policies and appellant’s duties on the
date of incident including development of whether he was in travel status or on a special mission
from his regularly assigned work on the date of incident. It shall further inquire as to whether he
was compensated for mileage or was to be reimbursed for mileage or any of his other expenses
related to his mission on April 29, 2018. Further OWCP shall determine the basis for why
appellant was instructed to report at 1:50 p.m. on the date of incident.
Following this and other such further development as deemed necessary, OWCP shall issue
a de novo decision.22
CONCLUSION
The Board finds that this case is not in posture for decision.

21

See S.T., Docket No. 20-0588 (issued September 16, 2020).

22

Id.

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ORDER
IT IS HEREBY ORDERED THAT the February 13, 2019 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: December 23, 2020
Washington, DC

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

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

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

9