United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Spokane, WA
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-1979
Issued: June 10, 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 July 9, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decisions dated November 2, 2007 and February 5, 2008 denying her claims for
employment-related disability and January 11 and April 21, 2008 nonmerit decisions denying her
request for an oral hearing and reconsideration, respectively. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merit and nonmerit issues of this case.
ISSUES
The issues are: (1) whether appellant is entitled to compensation for disability for work
from July 23 through 27, 2007; (2) whether she is entitled to compensation for disability for
work for the period September 24 to October 24, 2007 and November 1 and 2, 2007; (3) whether
the Branch of Hearings and Review properly denied appellant’s oral hearing request as untimely
filed; and (4) whether the Office properly refused to reopen appellant’s case for further
consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On July 9, 2003 appellant, then a 44-year-old distribution clerk, filed an occupational
disease claim alleging that she developed right shoulder impingement with degenerative arthritis
due to factors of her federal employment. The Office accepted her claim for degenerative joint
disease of the right shoulder. Appellant accepted a limited-duty position on September 3, 2003.
The Office awarded her compensation for the period January 26 to February 7, 2004. Appellant
returned to full duty on June 21, 2004.
Appellant requested wage-loss compensation from July 23 through 27, 2007. In a note
dated July 25, 2007, Dr. Robert Numata, a Board-certified family practitioner, indicated that she
could return to work on July 27, 2007. He completed a form report on July 25, 2007 and
indicated that appellant was totally disabled from July 23 to 27, 2007 due to a cervical strain
which “related to the injury of April 20, 2003.” In a letter dated July 27, 2007, the Office
informed her that her claim was not payable and requested additional information. On
August 10, 2007 it resent the letter to appellant’s current address and informed her that she had
30 days to submit the necessary documentation.
Appellant filed a second claim for compensation on October 24, 2007 requesting wageloss compensation from September 24 through October 24, 2007. Dr. Allen R. Seely, a Boardcertified family practitioner, completed a note dated October 2, 2007 and stated that appellant
was “off work” from September 24 to October 2, 2007 and that she could resume “full-work
activity” on October 3, 2007. In a note dated October 15, 2007, he stated that appellant was off
work on October 11, 12, 15 and 16 and that she could return to work on October 17, 2007.
Dr. Seely completed an attending physician’s report on September 27, 2007 diagnosing right
shoulder arthritis and indicating with a checkmark “yes” that this condition was caused or
aggravated by an employment activity. He indicated that appellant could return to work on
September 28, 2007.
By decision dated November 2, 2007, the Office denied appellant’s claim for
compensation from July 23 to 27, 2007.
Appellant requested an oral hearing on
December 5, 2007. By decision dated January 11, 2008, the Branch of Hearings and Review
denied her December 5, 2007 request for an oral hearing as untimely and stated that the
November 2, 2007 decision of the Office could be “equally well addressed by requesting
reconsideration….”
Dr. Seely completed a report on November 4, 2007 and diagnosed chronic right shoulder
pain, fibromyalgia and chronic depression. He stated that appellant requested modification of
her workstation and part-time work.
Appellant filed a claim for compensation for the dates November 1 and 2, 2007.
Dr. Seely completed a form report on November 2, 2007 and diagnosed chronic right shoulder
pain.
He indicated that appellant required treatment from October 16 through
November 2, 2007.
In a letter dated November 30, 2007, the Office informed appellant that she must submit
additional medical evidence to meet her burden of proof to establish disability from work from

2

September 24 to October 24, 2007 and November 1 and 2, 2007. It allowed 30 days for a
response.
By decision dated February 6, 2008, the Office denied appellant’s claim for
compensation benefits finding that she had not met her burden of proof in establishing
entitlement to compensation for wage loss from September 24 through October 24, 2007 and
November 1 through 2, 2007.
Appellant requested reconsideration on March 12, 2008. In support of her request, she
submitted medical evidence including her records from 2003 through 2005. In a February 15,
2008 report, Dr. Seely diagnosed chronic right shoulder pain, fibromyalgia and chronic
depression. He stated that appellant was incapacitated due to right shoulder pain from July 23 to
27, 2007, from September 24 to October 24, 2007 and from November 1 to 2, 2007. Dr. Seely
stated that appellant could work part time from February 6, 2008. Dr. Numata completed a note
on July 25, 2007 and stated that appellant had cervical muscular pain and that she should be able
to return to work on July 27, 2007. In a note dated March 2, 2008, Dr. P.Z. Pearce, a Boardcertified family practitioner, diagnosed fibromyalgia as the cause of appellant’s shoulder pain.
Appellant filed a notice of recurrence of disability on April 3, 2008 alleging that on
July 23, 2007 she sustained a recurrence of disability causally related to her April 30, 2003
employment injury. The Office accepted this claim for recurrence on July 23, 2007.
By decision dated April 21, 2008, the Office denied appellant’s March 12, 2008
reconsideration request.
LEGAL PRECEDENT -- ISSUES 1 AND 2
A recurrence of disability is the 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 which
caused the illness. The 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 work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force (RIF)) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.1
Appellant for each period of disability claimed, has the burden of proving by a
preponderance of the reliable, probative and substantial evidence that she is disabled for work as
a result of her employment injury. Whether a particular injury caused an employee to be
disabled for employment and the duration of that disability are medical issues which must be
provide by preponderance of the reliable probative and substantial medical evidence.2

1

20 C.F.R. § 10.5(x).

2

Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

3

Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work. The Board has stated that, when a physician’s statements
regarding an employee’s ability to work consist only of a repetition of the employee’s complaints
that he or she hurts too much to work, without objective signs of disability being shown, the
physician has not presented a medical opinion on the issue of disability or a basis for payment of
compensation.3
ANALYSIS -- ISSUE 1
Appellant alleged that she was totally disabled from July 23 through 27, 2007 due to her
accepted employment injury of degenerative joint disease of the right shoulder. In support of her
claim, she submitted a report dated July 25, 2007 from Dr. Numata, a Board-certified family
practitioner, who indicated that appellant could return to work on July 27, 2007. Dr. Numata
completed a form report on July 25, 2007 finding that appellant was totally disabled from July 23
to 27, 2007 due to a cervical strain and that this condition was “related to the injury of
April 20, 2003.
As noted above, appellant has the burden to establish she is disabled for work as a result
of her employment injury of degenerative joint disease of the right shoulder by the
preponderance of the reliable probative and substantial medical evidence.4 Dr. Numata’s reports
are not sufficient to meet appellant’s burden of proof in establishing work-related disability from
July 23 to 27, 2007 as he failed to attribute her disability to her accepted employment-related
condition. Instead, he diagnosed a new condition, cervical strain. As the Office has not accepted
this condition as resulting from appellant’s employment activities, the mere diagnosis of this
condition and a brief opinion from Dr. Numata that the condition is related to appellant’s
employment is not sufficient to meet appellant’s burden of proof.
The Board finds that appellant has not submitted the required medical findings, an
accepted diagnosis and medical reasoning needed to establish that her disability from July 23
to 27, 2007 was due to her employment and that the Office properly denied this claim.
ANALYSIS -- ISSUE 2
Appellant filed claims for compensation on October 24 and November 2, 2007 requesting
wage-loss compensation from September 24 through October 24, 2007 and November 1
and 2, 2007. In support of her claims for periods of total disability, her submitted reports from
Dr. Seely, a Board-certified family practitioner, were stating that she was totally disabled from
September 24 to October 2, 2007 and October 11, 12, 15 and 16, 2007. In a report
September 27, 2007, Dr. Seely diagnosed right shoulder arthritis and indicated with a checkmark
“yes” that this condition was caused or aggravated by an employment activity. He did not
provide any physical findings in support of his disability determination. Furthermore, the Board
has held that an opinion on causal relationship which consists only of a physician checking “yes”
to a medical form report question on whether the claimant’s condition was related to the history
3

Id.

4

Supra note 2.

4

given is of little probative value. Without any explanation or rationale for the conclusion
reached, such a report is insufficient to establish causal relationship.5 Dr. Seely’s reports are not
sufficient to establish that appellant was totally disabled from September 24 through October 24,
2007 due to the lack of physical findings, definite opinion on causal relationship and the lack of
medical reasoning. Therefore appellant has not met her burden of proof in establishing
entitlement to compensation for these periods and the Office properly denied her claim.
In regard to appellant’s claim for compensation for the dates November 1 and 2, 2007,
Dr. Seely completed a form report on November 2, 2007 and diagnosed chronic right shoulder
pain. He completed an additional report on November 4, 2007 and diagnosed chronic right
shoulder pain, fibromyalgia, and chronic depression. Dr. Seely stated that appellant requested
modification of her workstation and part-time work. His statements regarding appellant’s ability
to work consist only of a repetition of her complaints of pain with no objective signs of
disability. Based on Board precedent, Dr. Seely has not presented a medical opinion on the issue
of disability or a basis for payment of compensation.6 As appellant has not submitted the
necessary detailed medical opinion evidence, the Board finds that the Office properly denied her
claim for compensation for the period September 24 through October 24, 2007 and November 1
through 2, 2007.
LEGAL PRECEDENT -- ISSUE 3
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides in pertinent
part as follows:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary … is entitled, on request made
within 30 days after the date of issuance of the decision, to a hearing on his claim
before a representative of the Secretary.”7
The claimant can choose between two formats: an oral hearing or a review of the written
record.8 The requirements are the same for either choice.9 The Board has held that section
8124(b)(1) is “unequivocal” in setting forth the time limitation for requesting hearings or reviews
of the written record. A claimant is entitled to a hearing or review of the written record as a
matter of right only if the request is filed within the requisite 30 days as determined by postmark
or other carrier’s date marking10 and before the claimant has requested reconsideration.11
5

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

6

Fereidoon Kharabi, supra note 2.

7

5 U.S.C. §§ 8101-8193, § 8124(b)(1).

8

20 C.F.R. § 10.615.

9

Claudio Vazquez, 52 ECAB 496, 499 (2001).

10
11

20 C.F.R. § 10.616(a). Tammy J. Kenow, 44 ECAB 619 (1993).
Martha A. McConnell, 50 ECAB 129, 130 (1998).

5

However, when the request is not timely filed or when reconsideration has previously been
requested, the Office may within its discretion, grant a hearing or review of the written record,
and must exercise this discretion.12
ANALYSIS -- ISSUE 3
The Office issued a decision on November 2, 2007 denying appellant’s claim for
compensation for total disability for the period July 23 to 27, 2007. Appellant requested an oral
hearing from the Branch of Hearings and Review regarding this decision on December 5, 2007.
As her request for an oral hearing was postmarked more than 30 days after the date of the
Office’s decision, she is not entitled to an oral hearing as a matter of right.
In the January 11, 2008 decision, the Branch of Hearings and Review properly denied
appellant’s request for an oral hearing as untimely and further found that her claim for
compensation could be addressed through the reconsideration process. The Board finds that this
finding by the Branch of Hearings and Review constitutes a proper exercise of the discretion to
deny appellant’s request for an oral hearing. As appellant’s request for an oral hearing was
untimely and as the Branch of Hearings and Review properly exercised its discretion in denying
her untimely request, the Board finds that the January 11, 2008 decision of the Branch of
Hearings and Review is affirmed.
LEGAL PRECEDENT -- ISSUE 4
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.14 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.15
13

ANALYSIS -- ISSUE 4
Appellant requested reconsideration of the Office’s February 5, 2008 decision on
March 12, 2008. She submitted medical reports in support of her reconsideration request
including a report dated February 15, 2008 from Dr. Seely diagnosing right shoulder pain,
fibromyalgia and chronic depression and supporting appellant’s disability for work from July 23
to 27, September 24 to October 24 and November 1 and 2, 2007. This report is repetitive of
evidence already in the record. Dr. Seely previously opined that appellant was totally disabled
on the dates in question and attributed this disability to right shoulder pain. Therefore this report
12

Id.

13

5 U.S.C. §§ 8101-8193, § 8128(a).

14

20 C.F.R. § 10.606(b)(2).

15

Id. at 10.608(b).

6

is not relevant and pertinent new evidence and is not sufficient to require the Office to reopen
appellant’s claim for consideration of the merits.
Appellant also submitted a note dated July 25, 2007 diagnosing cervical muscular pain
from Dr. Numata, a Board-certified family practitioner, and a note dated March 2, 2008 from
Dr. Pearce, a Board-certified family practitioner, attributing her shoulder pain to fibromyalgia.
As these physician’s did not attribute appellant’s current condition and any resulting disability to
her accepted employment condition of degenerative joint disease of the right shoulder, these
reports are not relevant to the decision issued by the Office finding that appellant had not
established periods of disability due to her accepted injury. As these reports are not relevant,
they are not sufficient to require the Office to reopen appellant’s claim for consideration of the
merits.
In support of her request for reconsideration, appellant submitted medical records from
2003 and 2005. As these records predate the alleged periods of disability, these records cannot
establish that she was totally disabled beginning in July 2007 and the records are not relevant to
the February 6, 2008 decision of the Office. As the records are not relevant, the Office properly
declined to reopen appellant’s claim for consideration of the merits.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
was totally disabled for the periods July 23 to 27, September 24 to October 24 and November 1
and 2, 2007. The Board further finds that the Branch of Hearings and Review properly denied
appellant’s request for an oral hearing as untimely and that the Office properly declined to
reopen appellant’s claim for consideration of the merits.

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 21, February 5 and January 11, 2008 and November 2, 2007
are affirmed.
Issued: June 10, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.J., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
San Bernardino, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1656
Issued: September 18, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 31, 2019 appellant filed a timely appeal from a July 10, 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.2

1

5 U.S.C. § 8101 et seq.

2
The Board notes that following the July 10, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish more than 10 percent
impairment of the left upper extremity and more than 10 percent permanent impairment of each
lower extremity for which she has previously received schedule award compensation.
FACTUAL HISTORY
On March 29, 2004 appellant, then a 45-year-old city carrier, filed an occupational disease
claim (Form CA-2), alleging that she experienced pain to her buttocks, legs, neck, shoulders, feet,
and ankles due to factors of her federal employment, including increased walking from 7 to 10
miles, carrying a heavy satchel, and casing mail. The claim was adjudicated by OWCP under File
No. xxxxxx877. Following an initial denial on June 23, 2004, on August 4, 2005 it accepted the
claim for sprain of the back, lumbar region, and sprain of the neck.
On May 18, 2005 appellant filed a Form CA-2 claim, alleging that due to carrying mail
and walking she developed bilateral foot, lower extremity, low back, neck, left shoulder, and
bilateral hip conditions. OWCP adjudicated this claim under File No. xxxxxx738 and accepted it
for lumbar and cervical sprains, left lateral epicondylitis, and other affectations of the left
shoulder.3
OWCP administratively combined File Nos. xxxxxx877 and xxxxxx738, with File No.
xxxxxx877 designated as the master file.
Under File No. xxxxxx877, OWCP paid appellant intermittent compensation on the
supplemental rolls from May 23 through August 29, 2005. On August 26, 2007 OWCP began
paying appellant loss of wage-earning capacity (LWEC) compensation on the periodic rolls for
four hours daily.4
On July 2, 2015 appellant filed a claim for a schedule award (Form CA-7). She submitted
a January 23, 2015 report in which Dr. Khalid B. Ahmed, a Board-certified orthopedic surgeon,
opined that appellant had reached maximum medical improvement (MMI) on May 1, 2013. He
provided an impairment rating in accordance with the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 Dr. Ahmed
opined that, utilizing Chapter 17, The Spine and Pelvis, appellant had 6 percent whole person
impairment based on intervertebral disc herniation and radiculopathy of the cervical spine and 12
percent whole person impairment for the lumbar spine. For her left shoulder, he opined that under

3

OWCP referenced another claim adjudicated under File No. xxxxxx180, accepted for bilateral plantar
fibromatosis. It also indicated that appellant was granted schedule awards for the bilateral lower extremities under
that claim, i.e., four percent impairment for each foot. However, the Board does not have access to this case file
through the Integrated Federal Employees’ Compensation System (iFECS), its electronic file.
4

OWCP based the LWEC determination on the April 26, 2007 second opinion evaluation of Dr. Bunsri Sophon, a
Board-certified orthopedic surgeon, who advised that appellant could work four hours daily.
5

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

2

Table 15-5, Shoulder Regional Grid, she had two percent left upper extremity impairment or one
percent whole person impairment.6
On September 24, 2015 Dr. Leonard A. Simpson, an orthopedic surgeon serving as an
OWCP district medical adviser (DMA), reviewed Dr. Ahmed’s reports dated May 1, 2013 and
January 23, 2015 and the medical evidence of record.7 He found that Dr. Ahmed’s impairment
evaluation could not be considered probative for schedule award purposes under FECA, because
he utilized whole person impairments for the scheduled members, and FECA does not recognize
whole person impairment. The DMA applied the A.M.A., Guides and The Guides Newsletter,
Rating Spinal Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The
Guides Newsletter), utilizing Dr. Ahmed’s May 1, 2013 findings. Using the range of motion
(ROM) methodology for impairment, Dr. Simpson opined that appellant had 10 percent permanent
impairment of the left upper extremity. Using The Guides Newsletter for her back condition, he
found, 6 percent permanent impairment for sensory and motor deficits at L4 and L5 bilaterally,
and 4 percent permanent impairment for S1 sensory and motor deficits bilaterally for a total 16
percent permanent impairment of each lower extremity. The DMA noted that appellant had
previously received a schedule award for four percent impairment of each foot under OWCP File
No. xxxxxx180, which equaled three percent impairment of each leg. He concluded that appellant
had 13 percent permanent impairment of each lower extremity.
By decision dated September 21, 2016, OWCP granted appellant a schedule award for 10
percent permanent impairment of the left upper extremity and 10 percent permanent impairment
of the left lower extremity and 10 percent permanent impairment of the right lower extremity. The
period of the award was from September 18, 2016 to June l, 2018.8 OWCP had paid appellant
LWEC compensation continuously through September 17, 2016 and began paying schedule award
compensation effective September 18, 2016. It did not resume LWEC compensation when her
schedule award compensation ended on June 1, 2018.
On February 25, 2019 appellant filed a Form CA-7 for an additional schedule award.9
Appellant submitted a February 8, 2019 progress report from Dr. Ahmed. With regard to the
cervical spine and upper extremities, Dr. Ahmed described physical examination findings of
limited range of motion of the cervical spine, paraspinal tenderness and spasm, restricted and
6

Dr. Ahmed had previously submitted an impairment evaluation on October 18, 2013 that referenced his May 1,
2013 examination. Utilizing the fifth edition of the A.M.A., Guides (5th ed. 2001), he advised that appellant had 7
percent whole person impairment of the cervical spine, 3 percent whole person impairment of the left upper extremity,
13 percent whole person impairment of the lumbar spine, and 4 percent whole person impairment of the right knee for
a combined whole person impairment of 25 percent.
7

In a referral memorandum, OWCP noted that appellant had two additional accepted claims and referenced both
File No. xxxxxx738, and File No. xxxxxx180, accepted for plantar fibromatosis for which appellant had received a
schedule award for four percent permanent impairment of each foot. See supra note 3. The latter claim is not before
the Board in appellant’s current appeal.
8

The September 21, 2016 schedule award decision found in OWCP File No. xxxxxx877 and OWCP File No.
xxxxxx738 contains only the first page and does not explain OWCP’s schedule award calculations.
9
On August 19, 2005 appellant filed a claim for compensation for the period March 18 to May 22, 2005. By
decision dated February 13, 2018, OWCP denied appellant’s claim for compensation. Following reconsideration
requests, by decisions dated April 2, 2018 and May 14, 2019 OWCP denied merit review. Appellant did not file an
appeal with the Board from the May 14, 2019 decision.

3

painful range of motion of the right shoulder, tenderness over greater tuberosity of humerus, and
a positive impingement test. With regard to the lumbar spine, he noted limited range of motion,
positive straight leg test bilaterally, paraspinal tenderness and spasms. Dr. Ahmed also noted
limited range of motion of the bilateral wrists and hands, tenderness over the distal radioulnar joint,
and positive Phalen’s signs over the carpal tunnel bilaterally. He described his review of his
previous medical records and advised that appellant was permanent and stationary on May 1, 2013.
Dr. Ahmed diagnosed cervical strain/sprain with multiple level herniated discs with radiculopathy;
lumbar spine strain/sprain with herniated discs at L3-4, L4-5, and L5-S1; left shoulder strain/sprain
with impingement syndrome; left elbow strain/sprain; bilateral wrist and hand strain/sprain, rule
out carpal tunnel syndrome; overload pain of the right shoulder, rule out tendinitis, impingement;
rotator cuff tear; and symptoms of anxiety and depression.
In a development letter dated March 14, 2019, OWCP requested that appellant submit an
impairment evaluation from her attending physician in accordance with the A.M.A., Guides that
included a discussion of the rationale for calculation with references to tables in the A.M.A.,
Guides. It further noted that, if her physician was unable or unwilling to provide the required
report, it would refer her to a second opinion physician. OWCP afforded appellant 30 days to
submit the requested evidence.
Dr. Ahmed thereafter submitted additional treatment notes dated March 15, April 26, and
June 7, 2019. He repeated appellant’s complaints and described physical examination findings,
and reiterated his diagnoses. Dr. Ahmed again noted that appellant was permanent and stationary.
By decision dated July 10, 2019, OWCP denied appellant’s claim for an additional
schedule award. It indicated that she had not submitted additional evidence in response to its
March 14, 2019 development letter and found that she failed to submit medical evidence
supporting an increase in the impairment already compensated.
LEGAL PRECEDENT
The schedule award provisions of FECA,10 and its implementing federal regulations,11 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. However,
FECA does not specify the manner in which the percentage loss of a member shall be determined.
The method used in making such a determination is a matter which rests in the discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. OWCP
evaluates the degree of permanent impairment according to the standards set forth in the specified
edition of the A.M.A., Guides, published in 2009.12 The Board has approved the use by OWCP

10

Supra note 1.

11

20 C.F.R. § 10.404.

12
For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).

4

of the A.M.A., Guides for the purpose of determining the percentage loss of use of a member of
the body for schedule award purposes.13
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury.14 OWCP’s 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, describes the impairment in sufficient detail so that it can be visualized on review,
and computes the percentage of impairment in accordance with the A.M.A., Guides.15
Neither FECA nor its implementing regulations provide for a schedule award for
impairment to the back or to the body as a whole.16 Furthermore, the back is specifically excluded
from the definition of organ under FECA.17 The sixth edition of the A.M.A., Guides does not
provide a separate mechanism for rating spinal nerve injuries as impairments of the extremities.
Recognizing that FECA allows ratings for extremities and precludes ratings for the spine, The
Guides Newsletter offers an approach to rating spinal nerve impairments consistent with sixth
edition methodology. For peripheral nerve impairments to the upper or lower extremities resulting
from spinal injuries, OWCP’s procedures indicate that The Guides Newsletter is to be applied.18
The Board has recognized the adoption of this methodology for rating extremity impairment,
including the use of The Guides Newsletter, as proper in order to provide a uniform standard
applicable to each claimant for a schedule award for extremity impairment originating in the
spine.19
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment class of diagnosis (CDX) condition, which is then adjusted by grade modifiers based
on functional history (GMFH), physical examination (GMPE), and clinical studies (GMCS).20 The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).21
13

See K.J., Docket No. 19-1492 (issued February 26, 2020); P.R., Docket No. 19-0022 (issued April 9, 2018);
Isidoro Rivera, 12 ECAB 348 (1961).
14

See T.H., Docket No. 19-1066 (issued January 29, 2020); D.F., Docket No. 18-1337 (issued February 11, 2019);
Tammy L. Meehan, 53 ECAB 229 (2001).
15
See 5 U.S.C. § 8101(19); J.K., Docket Nos. 19-1420 & 19-1422 (issued August 12, 2020); Francesco C.
Veneziani, 48 ECAB 572 (1997).
16

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see D.D., Docket No. 19-1676 (issued July 29, 2020); B.W.,
Docket No. 18-1415 (issued March 8, 2019); J.M., Docket No. 18-0856 (issued November 27, 2018); N.D., 59 ECAB
344 (2008); Tania R. Keka, 55 ECAB 354 (2004).
17

J.K., supra note 15.

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.
19
D.D., supra note 16; E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued
February 18, 2014).
20

A.M.A., Guides 383-492.

21

Id. at 411.

5

The A.M.A., Guides also provide that the ROM impairment methodology is to be used as
a stand-alone rating for upper extremity impairments when other grids direct its use or when no
other diagnosis-based impairment (DBI) sections are applicable.22 If ROM is used as a standalone approach, the total of motion impairment for all units of function must be calculated. All
values for the joint are measured and added.23 Adjustments for functional history may be made if
the evaluator determines that the resulting impairment does not adequately reflect functional loss
and functional reports are determined to be reliable.24
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments.25 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)26
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”27
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified.28

22

Id. at 461.

23

Id. at 473.

24

Id. at 474.

25

FECA Bulletin No. 17-06 (May 8, 2017).

26

Id.

27

Id.; see also H.H., Docket No. 19-1530 (issued June 26, 2020); A.G., Docket No. 18-0329 (issued July 26, 2018).

28

Federal (FECA) Procedure Manual, supra note 18 at Chapter 2.808.6(f); P.W., Docket No. 19-1493 (issued
August 12, 2020).

6

ANALYSIS
The Board finds that this case is not in posture for decision.
The Board initially notes that OWCP did not review the medical evidence found in File
No. xxxxxx738 before it rendered its July 10, 2019 decision. Furthermore, Chapter 2.808.6d of
OWCP’s procedures provides that if there is indication in the record of impairment, OWCP should
refer the case to its DMA before denying a schedule award claim.29 Dr. Ahmed submitted progress
notes dated February 8, March 15, April 26, and June 7, 2019. Thus, OWCP should have referred
the case file to its DMA for review prior to issuing the July 10, 2019 decision denying her claim
for a schedule award.
The Board notes that, although the appeal rights accompanying the July 10, 2019 decision
clearly stated that a claimant could request only one type of appeal at that time, appellant
simultaneously filed an appeal with the Board, requested a hearing with OWCP’s Branch of
Hearings and Review, and requested reconsideration with OWCP. During the pendency of this
appeal, on October 7, 2019, an OWCP hearing representative issued a decision setting aside the
July 10, 2019 decision and remanding the case for further medical development with regard to
appellant’s schedule award claim. OWCP decisions that change the status of a decision on appeal
are null and void.30 The October 7, 2019 decision is therefore null and void.
Nonetheless, it is well established that proceedings under FECA are not adversarial in
nature and OWCP is not a disinterested arbiter. While the claimant has the burden of proof to
establish entitlement to compensation, OWCP shares responsibility in the development of the
evidence and to see that justice is done.31 The Board will remand the case to OWCP for referral
of the record, together with a statement of accepted facts, to its DMA for review of the medical
evidence on the issue of whether appellant has established additional impairment under the
combined files, File No. xxxxxx877 and File No. xxxxxx738. On remand OWCP should also
obtain a complete copy of its September 21, 2016 schedule award decision. It should also consider
whether it should have resumed appellant’s LWEC compensation after her schedule award
compensation ended on June 1, 2018. After this and any further development deemed necessary,
OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

29

Federal (FECA) Procedure Manual, id., at Chapter 2.808.6d.

30

G.W., Docket No. 19-0260 (issued July 10, 2020); Cathy B. Millin, 51 ECAB 331 (2000); Douglas E. Billings,
41 ECAB 880 (1990).
31

A.S., Docket No. 19-1432 (issued August 5, 2020); A.A., 59 ECAB 726 (2008).

7

ORDER
IT IS HEREBY ORDERED THAT the July 10, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: September 18, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Buffalo, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1224
Issued: November 16, 2015

Case Submitted on the Record

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

JURISDICTION
On May 8, 2015 appellant filed a timely appeal from a May 27, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish a right shoulder
condition in the performance of duty causally related to factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the May 27, 2015 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On June 5, 2014 appellant, then a 53-year-old automation clerk, filed an occupational
disease claim (Form CA-2) alleging a right shoulder injury due to factors of his federal
employment, including moving pie carts. He indicated that he first became aware of the
condition and its relation to his federal employment on April 18, 2014. In a narrative statement,
appellant indicated that he had no previous problems with his shoulder but recently underwent
bilateral carpal tunnel surgery on September 12 and October 17, 2012. He stated that his hands
and wrists were still weak and sore, which made it difficult for him to control and move pie carts
causing a strain on his shoulders and upper body.
In a report dated May 20, 2014, Dr. Sandra Yale, an osteopathic manipulative therapy
specialist, released appellant to work with the following restrictions: no lifting, pushing, or
pulling greater than 20 pounds.
In a June 19, 2014 letter, OWCP notified appellant of the deficiencies of his claim and
afforded him 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted a narrative statement dated July 15, 2014 indicating that, on the
evening of April 18, 2014, while trying to move a pie cart filled with mail, he began to feel a
sharp pain in his right shoulder. He continued to experience pain and difficulty moving pie carts,
sweeping mail from stackers, and finalizing machines at the end of the night. Appellant reported
that he moved up to 8 to 10 pie carts alone and swept between 250 to 350 stackers a night.
By decision dated September 5, 2014, OWCP denied the claim on the basis that appellant
had failed to establish fact of injury.
On September 24, 2014 appellant requested an oral hearing before an OWCP hearing
representative and submitted an August 25, 2014 magnetic resonance imaging (MRI) scan of the
right shoulder which revealed prominent acromioclavicular (AC) joint arthrosis with
impingement and extensive tears of the infraspinatus and supraspinatus tendons with associated
ganglion cyst. He also submitted reports dated October 16, 2014 and April 7, 2015 from
Dr. Yale diagnosing right shoulder strain, superior labrum, anterior to posterior (SLAP) tear, and
rotator cuff impingement syndrome of the right shoulder. Dr. Yale opined that appellant’s right
shoulder condition was causally related to factors of his federal employment and restricted him
from lifting greater than 25 pounds.
Appellant submitted reports dated August 26 through December 30, 2014 from Dr. David
Ratliff, a Board-certified orthopedic surgeon. On August 26, 2014 Dr. Ratliff reported that
appellant had previously been followed for bilateral carpal tunnel syndrome. Appellant indicated
that his hands felt “fine just weaker than normal.” Dr. Ratliff noted that appellant was required
to push a cart at work and on April 18, 2014 he had sudden pain and a snap at his right shoulder.
Physical examination of the right shoulder revealed no gross deformity and mild tenderness to
palpation at the lateral shoulder. Distal sensation was intact at the axillary, radial, median, and
ulnar nerve distributions. Active forward elevation was 120 degrees. External rotation in
adduction was 50 degrees with functional internal rotation. The scapular plane abduction
showed 4/5 strength in both internal and external rotation. There was mild soreness with an

2

O’Brien’s Test but not increased in internal rotation, soreness with Hawkin’s and Speed’s
testing, and a negative crossarm. Dr. Ratliff diagnosed rotator cuff tendinopathy and partial
tearing with intra substance tearing noted with a ganglion cyst at the musculeptendious junction
at the suprasinatus. In an October 16, 2014 report, he stated that appellant’s federal job duties
included: pushing and pulling wheeled letter trays that may weigh up to 500 pounds; loading
mail on transport units for induction into distribution system; loading mail onto feeder modules;
removing mail from stacker bins; and rubber-banding or tying mail as necessary and placing in
proper trays. Dr. Ratliff opined “that pushing and pulling activities at work may have caused or
contributed to the injury of [appellant’s] right shoulder.” He explained that despite letter trays or
pie carts of mail being on wheels, the “initial force to move these bins may have caused or
contributed to shoulder pain.” Dr. Ratliff further indicated that elevating the arm for pushing
was a common cause for rotator cuff problems as well as a possible SLAP tear. He noted that
appellant had no hobbies or activities outside of work which could have contributed to his right
shoulder condition. On November 4, 2014 Dr. Ratliff diagnosed right shoulder partial rotator
cuff tear and noted that appellant was working full duty and reported opening doors and lifting at
work, which caused some soreness. He advised that appellant was capable of performing his
usual job and released him to regular duty without restrictions.
A telephone hearing was held before an OWCP hearing representative on April 8, 2015.
By decision dated May 27, 2015, the hearing representative affirmed, as modified, the
prior decision on the basis that fact of injury had been established, but found that the medical
evidence was insufficient to establish a causal relationship between appellant’s right shoulder
condition and factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, and that an injury4 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee 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

3

Supra note 1.

4

OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
5

See O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004).

3

condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. The opinion of the physician must
be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that factors of
his federal employment caused or aggravated his right shoulder condition. Appellant submitted a
statement in which he identified the factors of employment that he believed caused the condition,
including pushing and pulling carts, loading, removing, and rubber-banding or tying mail, which
OWCP accepted as factual. However, to establish a claim that he sustained an employmentrelated injury, he must also submit rationalized medical evidence which explains how his
medical condition was caused or aggravated by the implicated employment factors.8
In the October 16, 2014 report, Dr. Ratliff noted that appellant’s federal job duties
included: pushing and pulling wheeled letter trays that may weigh up to 500 pounds; loading
mail on transport units for induction into distribution system; loading mail onto feeder modules;
removing mail from stacker bins; and rubber-banding or tying mail as necessary and placing in
proper trays. He opined “that pushing and pulling activities at work may have caused or
contributed to the injury of [appellant’s] right shoulder.” Dr. Ratliff explained that despite letter
trays or pie carts of mail being on wheels, the “initial force to move these bins may have caused
or contributed to shoulder pain.” He further indicated that elevating the arm for pushing was a
common cause for rotator cuff problems as well as a possible SLAP tear. Dr. Ratliff noted that
appellant had no hobbies or activities outside of work which could have contributed to his right
shoulder condition. He advised that appellant was capable of performing his usual job and
released him to regular duty without restrictions.
Dr. Ratliff failed to provide a rationalized opinion explaining how factors of appellant’s
federal employment, such as pushing and pulling carts, loading, removing, and rubber-banding
or tying mail, caused or aggravated his right shoulder condition. He noted that appellant’s
condition occurred while he was at work, but such generalized statements do not establish causal
relationship because they merely repeat appellant’s allegations and are unsupported by adequate
medical rationale explaining how his physical activity at work actually caused or aggravated the
6

See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

See O.W., supra note 5.

8

See A.C., Docket No. 08-1453 (issued November 18, 2008); Donald W. Wenzel, 56 ECAB 390 (2005); Leslie C.
Moore, 52 ECAB 132 (2000).

4

diagnosed conditions.9 The Board finds that Dr. Ratliff’s opinion that factors of appellant’s
federal employment “may have caused or contributed to” his right shoulder condition is
speculative and equivocal in nature.10 Lacking thorough medical rationale on the issue of causal
relationship, the Board finds that his reports are insufficient to establish that appellant sustained
an employment-related injury.
In her reports, Dr. Yale diagnosed right shoulder strain, SLAP tear, and rotator cuff
impingement syndrome of the right shoulder. She opined that appellant’s right shoulder
condition was causally related to factors of his federal employment and released him to work
with lifting restrictions. The Board has held that the mere fact that appellant’s symptoms arise
during a period of employment or produce symptoms revelatory of an underlying condition does
not establish a causal relationship between appellant’s condition and his employment factors.11
Dr. Yale failed to provide a rationalized opinion explaining how factors of appellant’s federal
employment, such as pushing and pulling carts, loading, removing, and rubber-banding or tying
mail, caused or aggravated his right shoulder condition. Thus, the Board finds that her reports
are insufficiently rationalized to establish that appellant’s condition was caused or aggravated by
factors of his federal employment.
In support of his claim, appellant submitted an August 25, 2014 MRI scan of the right
shoulder. This document does not constitute competent medical evidence as to the issue of
causation as it does not contain rationale by a physician relating appellant’s disability to his
employment.
As appellant has not submitted any rationalized medical evidence to support his
allegation that he sustained an injury causally related to the accepted employment factors, he
failed to meet his burden of proof to establish a claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right
shoulder condition in the performance of duty causally related to factors of his federal
employment.

9

See K.W., Docket No. 10-98 (issued September 10, 2010).

10

Medical opinions that are speculative or equivocal in character are of little probative value. See Kathy A.
Kelley, 55 ECAB 206 (2004).
11

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

5

ORDER
IT IS HEREBY ORDERED THAT the May 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 16, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Santa Clarita, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 06-1532
Issued: April 20, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 28, 2006 appellant filed a timely appeal from a March 23, 2006 decision1 of the
Office of Workers’ Compensation Programs denying her claim for leave buy back for the period
August 24 to 25, 2005 and compensation for lost wages for August 27 to November 3, 2005.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
claim.
ISSUE
The issue is whether appellant met her burden of proof to establish that she was entitled
to leave buy back for the period August 24 to 25, 2005 and for compensation for partial disability
from August 27 to November 3, 2005.

1

Appellant indicated that she is not appealing a merit decision dated June 22, 2006.

FACTUAL HISTORY
On June 12, 2001 appellant, then a 46-year-old clerk, filed an occupational disease claim
alleging that on March 31, 1999 she first realized her cervical degenerative disc disease had been
permanently aggravated by her employment. She noted that on May 15, 1998 she first became
aware of this condition.2 The Office accepted the claim for cervical radiculopathy and
authorized cervical surgery, which was performed on June 29, 2004. Appellant reduced her
work hours from eight hours per day to four hours per day effective June 23, 2003 and returned
to full-time modified work on July 12, 2003. On September 3, 2003 she reduced her hours to
four hours per day and returned to full-time modified work on October 10, 2003. Appellant
stopped work on October 27, 2003, returned to part-time modified work on March 19, 2004 and
stopped again on June 28, 2004. She returned to work on November 4, 2004 for four hours per
day. On April 13, 2005 appellant accepted a modified job offer working four hours per day.
On May 11, 2005 Dr. Katrina Vlachos, a treating Board-certified physiatrist, reviewed
and approved a May 9, 2005 proposal to increase appellant’s work hours from four hours to eight
hours in her limited-duty job. She released appellant to an eight-hour light-duty job on May 18,
2005 and again on June 15, 2005. In a May 25, 2005 report, Dr. Vlachos reviewed and approved
a limited-duty job offer working eight hours per day.
On June 6, 2005 the employing establishment offered appellant a modified job working
eight hours per day. Appellant returned to working eight hours per day in the modified job on
June 19, 2005. On June 29, 2005 she underwent surgery and stopped work. The employing
establishment offered appellant a modified job on June 12, 2005. On July 26, 2005 the
employing establishment revised the June 12, 2005 job offer working eight hours per day to
comply with restrictions by her physician. The job restrictions included intermittent and
continuous lifting and carrying up to five pounds for two hours per day; intermittent standing up
to four hours per day with sit/stand option; no twisting, pulling, pushing, climbing, kneeling, or
standing and two hours per day of reaching above the shoulder.
The Office subsequently received an August 24, 2005 attending physician’s supplemental
report by Dr. John T. Harbaugh, a treating physician Board-certified in family practice and
occupational health, diagnosing situational tension. He stated that she could return to light-duty
work on August 27, 2005 for four hours per day. Dr. Harbaugh found that appellant was totally
disabled for the period August 24 to 26, 2005. Appellant’s last visit was on August 12, 2005
when she reported that “she had increased symptoms, but was tolerating it.” She related having a
panic attack prior to going to work on August 22, 2005 which she attributed “to anxiety because
of her situation and work.” The panic attack appellant alleged was due to her supervisors
rejecting her family medical leave request form. They informed her that she was ineligible for
leave under the Family Medical Leave Act as she had not worked the required number of hours.
A physical examination revealed bilateral neck tenderness and bilateral tenderness in the
shoulder trapezius musculature. The report noted that on August 12, 2005 appellant reported that
“she had increased symptoms, but was tolerating it.” Dr. Harbaugh stated that appellant “is
2

She has been on limited duty since April 13, 1999 due to her accepted carpal tunnel syndrome under claim
number 13-1190901.

2

willing to try going back to work again at a four-hour per day limit.” He opined that appellant
could return to work four hours per day on August 27, 2005.
In an August 31, 2005 report, Dr. Harbaugh diagnosed lumbosacral strain with lumbar
disc disease, left leg sciatica and nonemployment-related status post cervical discectomy and
fusion. He reported that August 12, 2005 was the date of the most recent examination.
Dr. Harbaugh noted, “work restrictions as per [employing establishment’s] job offer of [July] 26,
[20]05” for eight hours. On September 8, 2005 he diagnosed cervical disc bulge with cervical
radiculitis.
In an October 7, 2005 attending physician’s report, Dr. Harbaugh diagnosed cervical disc
bulges with cervical radiculitis. He checked “yes” to the question whether he believed the
diagnosed condition had been caused or aggravated by appellant’s employment. Under remarks,
Dr. Harbaugh placed appellant on light duty working four hours per day with restrictions for the
period September 9 to October 9, 2005.
On October 11, 2005 the Office received appellant’s claims for compensation (Form
CA-7) and a September 8, 2005 attending physician’s report by Dr. Harbaugh, a treating
physician Board-certified in family practice and occupational health. Appellant requested leave
buy back for the period August 25 to 26, 2005 and intermittent compensation for the period
August 27 to October 7, 2005. In an attached time analysis CA-7a form, appellant noted that she
worked four hours per day and used four hours of leave without pay for the period August 28 to
October 6, 2005 and used 16 hours of sick leave for August 24 and 25, 2005. Dr. Harbaugh
limited appellant to four hours per day starting August 27, 2005.
By letter dated October 18, 2005, the Office advised appellant of the evidence needed to
establish a recurrence claim due to her employment-related condition. It was to address whether
her light-duty assignment had changed and a report from her attending physician describing
objective findings of a worsening in her employment-related condition and which also explained
how she could no longer perform her duties when she stopped work. Appellant was informed
that the information contained on CA-17 and CA-20 forms was insufficient to support her claim.
The Office subsequently received attending physician’s supplemental reports dated
October 17 and 29, 2005, a November 3, 2005 report and a November 2, 2005 attending
physician’s report by Dr. Harbaugh, a claim for intermittent compensation for the period
October 7 to November 3, 2005 and a time analysis form for the period October 9 to
November 3, 2005. Dr. Harbaugh stated that he reduced appellant’s hours due to “her increasing
complaints of pain and flares of pain in her” neck and shoulder muscles, which he concluded was
“reasonable concerning the patient’s given complaints and history of neck fusion.” He reported
mild to moderate bilateral tenderness in the neck and trapezi.
By decision dated November 23, 2005, the Office denied appellant’s claim for leave buy
back and her wage-loss request. The Office informed appellant that this was considered a
recurrence of disability and the medical evidence was insufficient to support a change in her
condition or a change in the light-duty requirements.

3

Subsequent to the decision, the Office received reports dated November 11, 17 and 29,
2005 report by Dr. Harbaugh. On November 17, 2005 Dr. Harbaugh diagnosed chronic neck
pain, status post cervical. He stated that appellant’s work hours had been reduced to six hours
from eight hours because her medication required adjustment and “[h]er pain complaints
increased significantly.” Objective evidence included increased neck stiffness. Dr. Harbaugh
noted that she was seen for neck and shoulder pain and for review of a job offer by the
employing establishment. He indicated that appellant would continue working “six hours per
day as she transitions back to” working eight hours per day. Dr. Harbaugh also noted that he had
reviewed the proposed job offer and found it compatible with the restrictions set for appellant.
On December 7, 2005 appellant, through counsel, requested reconsideration. He
contends that appellant never accepted the June 19, 2005 limited-duty position requiring that she
work eight hours a day. Appellant contended that the employing establishment withdrew the
limited-duty job offer where she was working four hours per day and offered her a limitedduty job requiring eight hours a day. Therefore, the withdrawal of the four-hour limited-duty
position without following Office procedure constituted a recurrence pursuant to section
2.1500.3(b)(1)(c).
By decision dated March 23, 2006, the Office found the evidence insufficient to warrant
modification of the denial of her recurrence claim.3 The Office rejected appellant’s argument
regarding limited-duty position as appellant’s treating physicians had both released appellant to
work eight hours per day and approved the increase to eight hours.
LEGAL PRECEDENT
Appellant has the burden of proving by the preponderance of the reliable, probative and
substantial evidence that she was disabled for work as the result of an employment injury.4
Monetary compensation benefits are payable to an employee who has sustained wage loss due to
disability for employment resulting from the employment injury.5 Whether a particular
employment injury causes disability for employment and the duration of that disability are
medical issues which must be proved by a preponderance of reliable, probative and substantial
medical evidence.6
In situations where compensation is claimed for periods where leave was used, the Office
has the authority and the responsibility to determine whether the employee was disabled during
3

The Board notes that, following the March 23, 2006 decision, the Office received additional evidence.
However, the Board may not consider new evidence on appeal. See 20 C.F.R. § 501.2(c); Donald R. Gervasi, 57
ECAB ___ (Docket No. 05-1622, issued December 21, 2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
4

Frankie A. Farinacci, 56 ECAB ___ (Docket No. 05-1282, issued September 2, 2005); David H. Goss, 32
ECAB 24 (1980).
5

Amelia S. Jefferson, 57 ECAB ___ (Docket No. 04-568, issued October 26, 2005); Debra A. Kirk-Littleton, 41
ECAB 703 (1990).
6

Sandra D. Pruitt, 57 ECAB ___ (Docket No. 05-739, issued October 12, 2005); Edward H. Horten, 41 ECAB
301 (1989).

4

the period for which compensation is claimed.7 The Office determines whether the medical
evidence establishes that an employee is disabled by an employment-related condition during the
period claimed for leave buy back, after which the employing establishment will determine
whether it will allow the employee to buy back the leave used.8
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that light duty can be performed, the employee has the burden to establish by the weight of
reliable, probative and substantial evidence a recurrence of total disability.9 As part of this
burden of proof, the employee must show either a change in the nature and extent of the injuryrelated condition, or a change in the nature and extent of the light-duty requirements.10
Under the Federal Employees’ Compensation Act11 the term disability is defined as
incapacity, because of employment injury, to earn the wages that the employee was receiving at
the time of injury.12 Disability is thus not synonymous with physical impairment which may or
may not result in incapacity to earn the wages. An employee who has a physical impairment
causally related to a federal employment injury but who nonetheless has the capacity to earn
wages he or she was receiving at the time of injury has no disability as that term is used in the
Act,13 and whether a particular injury causes an employee disability for employment is a medical
issue which must be resolved by competent medical evidence.14 Whether a particular injury
causes an employee to be disabled for work and the duration of that disability, are medical issues
that must be proved by a preponderance of the reliable, probative and substantial medical
evidence.15
The Board will not require the Office to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and

7

Glen M. Lusco, 55 ECAB 148 (2003); Laurie S. Swanson, 53 ECAB 517 (2002); see also 20 C.F.R. § 10.425,
which provides: “The employee may claim compensation for periods of annual and sick leave which are restorable
in accordance with the rules of the employing [establishment]. CA-7 and CA-7b forms are used for this purpose.”
8

Glen M. Lusco, supra note 7; Laurie S. Swanson, supra note 7.

9

Richard A. Neidert, 57 ECAB ___ (Docket No. 05-1330, issued March 10, 2006).

10

J.F., 58 ECAB ___ (Docket No. 06-186, issued October 17, 2006); Shelly A. Paolinetti, 52 ECAB 391 (2001);
Terry R. Hedman, 38 ECAB 222 (1986).
11

5 U.S.C. §§ 8101-8193.

12

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

13

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

14

Donald E. Ewals, 51 ECAB 428 (2000).

15

Tammy L. Medley, 55 ECAB 182 (2003); see Donald E. Ewals, supra note 14.

5

entitlement to compensation.16 Furthermore, it is well established that medical conclusions
unsupported by rationale are of diminished probative value.17
ANALYSIS
The Office accepted appellant’s claim for cervical radiculopathy and authorized cervical
surgery. Appellant filed a claim for leave buy back from August 24 to 25, 2005 and then four
hours of disability for the period August 27 to November 3, 2005. She did not file a notice of
recurrence of disability, but she had returned to full-time work and it is her burden of proof to
establish an employment-related disability on or after August 24, 2005.
The Board finds that appellant did not submit sufficient medical evidence to establish
either total disability for the period August 25 to 26, 2005 or partial disability for the period
August 27 to November 3, 2005.
The October 7, 2005 attending physician’s report from Dr. Harbaugh contains a diagnosis
of cervical disc bulges with cervical radiculitis. The report does not contain a reasoned medical
opinion explaining how the disability reported for the period September 9 to October 9, 2005
was related to the employment injury. The only reference to the cause of the disability is a
checkmark of “yes” to the question as to whether the condition was employment related with no
explanation. The Board has held that when a physician’s opinion on causal relationship consists
only of checking “yes” to a form question, without explanation or rationale, that opinion is of
diminished probative value and is insufficient to establish a claim.18
The record contains an October 4, 2005 report from Dr. Harbaugh diagnosing situational
tension as a result of a panic attack. Dr. Harbaugh opined that appellant was totally disabled for
the period August 24 to 26, 2005. A physical examination revealed bilateral neck tenderness and
bilateral tenderness in the shoulder trapezius musculature. Dr. Harbaugh indicated that appellant
had a panic attack on August 22, 2005 prior to her going to work. He noted that appellant
attributed the attack “to anxiety because of her situation and work.” Dr. Harbaugh related that
appellant “is willing to try going back to work again at a four-hour per day limit.”
Dr. Harbaugh’s October 4, 2004 report is insufficient to meet appellant’s burden. He does not
attribute appellant’s total disability for August 25 and 26, 2005 due to a worsening of her
accepted condition. Instead, the disability was due to a panic attack completely unrelated to
appellant’s accepted cervical degenerative disc disease. When a claimant stops working at the
employing establishment for reasons unrelated to an employment-related physical condition, she
has no disability within the meaning of the Act.19 Therefore the Office properly denied her
request for leave buy back for August 25 and 26, 2005. With respect to appellant’s partial
disability commencing August 27, 2005, Dr. Harbaugh released appellant to working four hours
per day based upon her statement that she was willing to try that. Dr. Harbaugh provided
16

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

17

Jacquelyn L. Oliver, 48 ECAB 232 (1996).

18

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006).

19

Richard A. Neidert, 57 ECAB ___ (Docket No. 05-1330, issued March 10, 2006).

6

rationale opinion explaining why appellant cannot work eight hours in the modified position as
she had been doing prior to the panic attack. He merely notes that appellant is willing to try
working four hours per day. There is no discussion of appellant’s job duties or explanation of
how the employment-related condition had changed such that appellant could not continue to
work full time. This report is insufficient to support her claim for partial disability beginning
August 27, 2005.
Appellant subsequently submitted several reports by Dr. Harbaugh including a
November 3, 2005 report in which he attributed appellant’s partial disability to her subjective
complaints without mentioning appellant’s August 22, 2005 panic attack. Dr. Harbaugh appears
to give contradictory opinions regarding the cause of appellant’s disability. In an October 4,
2005 report, he attributed appellant’s total disability to her panic attack, but subsequently stated
that her disability was a result of her subjective complaints of pain. Dr. Harbaugh did not
explain how appellant’s accepted cervical condition could have worsened such that she was
totally disabled for the period August 24 to 26, 2005 and partially disabled for the period
August 27 to November 3, 2005. He stated that he reduced appellant’s hours based upon her
subjective complaints of pain without any supporting objective evidence. The Board has held
that a medical opinion not based upon objective evidence is entitled to little probative value.20
As Dr. Harbaugh has failed to provide an opinion supported by objective evidence and rationale,
his reports are insufficient to support appellant’s burden of proof.
The record also contains reports by Dr. Harbaugh dated November 11, 17 and 29, 2005 in
which he increased appellant’s work hours. These reports concern appellant’s partial disability
for periods subsequent to November 3, 2005. As these reports do not address the period of
partial disability in question, they are not relevant to the issue at hand.
Appellant was advised by an October 18, 2005 letter of the medical and factual evidence
needed to establish her claim for recurrence of disability. However, she did not submit such
evidence. The Office properly found that appellant submitted insufficient evidence to meet her
burden of proof in establishing the claimed recurrence of total disability from August 24 to 26,
2005 and partial disability from August 27 to November 3, 2005.
The Board finds that appellant has not submitted the necessary detailed medical opinion
evidence complete with objective physical findings to support a change in the nature and extent
of her injury-related condition or to support the period of disability claimed. The Board also
finds that appellant has not submitted any evidence supporting a withdrawal of her limited-duty
job.

20

Generally, findings on examination are needed to justify a physician’s opinion that an employee is disabled for
work. When a physician’s statements regarding an employee’s ability to work consist only of a repetition of the
employee’s complaints that he or she hurt too much to work without objective signs of disability being shown, the
physician has not presented a medical opinion on the issue of disability or a basis for payment of compensation.
William A. Archer, 55 ECAB 674 (2004).

7

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she was
entitled to leave buy back for the period August 24 to 25, 2005 and for compensation for partial
disability from August 27 to November 3, 2005.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 23, 2006 is affirmed.
Issued: April 20, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, PORT ARTHUR POST )
OFFICE, Port Arthur, TX, Employer
)
__________________________________________ )
I.M., Appellant

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

Docket No. 21-0517
Issued: February 26, 2021

Case Submitted on the Record

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

On February 17, 2021 appellant filed an appeal from a May 5, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0517.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180th day following the May 5, 2020 decision was November 1, 2020. As appellant
did not file an appeal with the Board until February 17, 2021, more than 180 days after the May 5,
2020 OWCP decision, the Board finds that the appeal docketed as No. 21-0517 is untimely filed.
The Board is without jurisdiction to review the appeal. Appellant has not offered a reason to

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

explain the failure to timely file an appeal with supporting documentation sufficient to establish
compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”3
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0517 is dismissed.
Issued: February 26, 2021
Washington, DC

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

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

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

3

Id. at § 501.6(d).

2


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

)
)
)
)
)
)
)
)

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

Docket No. 19-0913
Issued: November 25, 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 March 25, 2019 appellant, through counsel, filed a timely appeal from a March 1, 2019
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 March 1, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a left middle finger
condition causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On June 19, 2018 appellant, then a 51-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed arthritis in his left middle finger due to factors of
his federal employment. He indicated that he repetitively used his left hand to finger through
letters and flats since 1992. Appellant further indicated that he first became aware of his condition
and first realized it was caused or aggravated by his federal employment duties on May 21, 2018.
He did not stop working. OWCP assigned File No. xxxxxx071 to this claim, which is the subject
of the current appeal.
Appellant has three other claims relative to his left upper extremity. In 2013 he filed an
occupational disease claim that was accepted for left carpal tunnel syndrome under OWCP File
No. xxxxxx777. In 2015 appellant filed an occupational disease claim that was denied for a left
upper extremity condition under OWCP File No. xxxxxx856. In 2017 he filed an occupational
disease claim that was accepted for an exacerbation of left carpal tunnel syndrome, exacerbation
of left cubital tunnel syndrome, and arthritis of the left thumb carpal metacarpal (CMC) joint under
OWCP File No. xxxxxx847. On October 31, 2017 appellant underwent a left wrist trapeziectomy,
left thumb CMC joint arthroplasty with tendon transfer, left carpal tunnel release, and in situ left
ulnar nerve release at the elbow.
In two reports dated May 21 and June 18, 2018, Dr. Richard J. Tosti, a Board-certified
orthopedic hand surgeon, indicated that appellant was status post left CMC thumb arthroplasty,
carpal tunnel release, and cubital tunnel release surgeries, which he underwent on
October 31, 2017. He further indicated that appellant had been released to part-time, full-duty
work, but had been “struggling” at work with metacarpophalangeal (MP) joint range of motion
and soreness around the MP joint when sifting through letters. Dr. Tosti reviewed x-rays that
showed significant arthrosis and diagnosed MP joint arthrosis of the left middle finger. He opined
that appellant’s condition was related to his work as a mail carrier as well as the other forms of
arthritis around the wrist in his hand.
In a development letter dated July 9, 2018, OWCP advised appellant of the deficiencies of
his claim and advised him of the factual and medical evidence necessary to establish his claim. It
afforded him 30 days to submit additional evidence and respond to its inquiries.
On July 24, 2018 the employing establishment controverted appellant’s claim. It submitted
a position description and related that he cased mail into three pieces of equipment with four
shelves for approximately 1 hour and 15 minutes per day and once the mail was cased, he pulled
down the mail and placed it into containers, and then loaded all the mail, including parcels, into a
vehicle before delivering it to a total of 619 boxes. The employing establishment acknowledged
that casing mail would be considered repetitive in nature, but appellant was right-hand dominant
so it did not follow that his left middle finger condition would be causally related to his federal
employment.

2

In a narrative statement dated July 16, 2018, appellant indicated that he worked as a letter
carrier for the past 26 years and he used his left hand repetitively to finger through letters and
magazines and third bundles. He stated that the middle finger is the longest finger so that was the
first finger that he used to start fingering through letters, repetitively. Appellant indicated that he
had a previously accepted claim under OWCP File No. xxxxxx847 and requested that the
acceptance of the claim be expanded to include a left middle finger condition.
In an undated report, Dr. Tosti noted that appellant had been under his care for left upper
extremity pain and arthritis since January 2017. He opined that appellant’s conditions are causally
related to his work as a mailman as his left upper extremity was the one that he used solely to
manipulate the mail. In order to manipulate the mail, appellant had to have a firm pinch/grip
between the thumb and the forefinger as well as the rest of the fingers. Dr. Tosti related that
appellant had been suffering with left middle finger MP joint pain and stiffness that had been
progressing. He noted that radiographs confirmed significant arthrosis of his middle finger MP
joint. While appellant was continuing to improve from a postoperative standpoint with his left
thumb CMC joint, Dr. Tosti requested that the acceptance of appellant’s claim be expanded to
accommodate treatment for the left middle finger MP joint arthrosis because this was the dominant
hand/side that he used to disperse the mail and he believed this to be a contributing factor.
By decision dated August 22, 2018, OWCP found that the factual evidence was sufficient
to establish fact of injury, but the medical evidence of record failed to establish causal relationship
between the diagnosed left middle finger condition and the accepted factors of appellant’s federal
employment.
On August 28, 2018 appellant requested a hearing before a representative of OWCP’s
Branch of Hearings and Review.
A telephonic hearing was held before an OWCP hearing representative on
January 15, 2019. Appellant provided testimony and the hearing representative held the case
record open for 30 days for the submission of additional evidence.
In response, appellant submitted a statement indicating that his doctors had recommended
a joint replacement.
Appellant also submitted a report from Dr. Tosti dated January 8, 2018 indicating that
appellant’s main issue was stiffness in the MP joint of the middle finger that seemed to start
sometime after his October 31, 2017 wrist operation, but opined that he was not exactly sure why
it was suddenly stiff as he was not in that region of the left hand during the operation. Dr. Tosti
recommended strengthening and more aggressive stretching of the MP joint and possibly an intraarticular injection, if he was still very symptomatic.
In a response dated February 4, 2019, the employing establishment again contended that
appellant used an excessive amount of leave and worked an average of 16.92 hours per week in
the year prior, which was inconsistent with his allegation of performing constant repetitive motion
while in the performance of duty. Further, it asserted that, while working, appellant did not utilize
his left hand constantly and repetitively, as alleged, but rather in an intermittent nature.
By decision dated March 1, 2019, OWCP’s hearing representative affirmed the prior
decision finding the medical evidence of record insufficient to establish causal relationship.
3

LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged, and that any disability
or specific condition for which compensation is claimed is causally related to the employment
injury.5 These are the essential elements of every compensation claim regardless of whether the
claim is predicated on a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee 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 employee.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).10
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11

4

Supra note 2.

5

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
6

K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

7

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
8

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

9

M.V., Docket No. 18-0884 (issued December 28, 2018).

10

Id.; Victor J. Woodhams, supra note 7.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).

4

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left middle
finger condition causally related to the accepted factors of his federal employment.
In his May 21 and June 18, 2018 reports, as well as an undated report, Dr. Tosti noted that
appellant had been struggling at work with left upper extremity pain, particularly joint pain and
stiffness of the left middle finger, and that diagnostic testing confirmed significant arthrosis of the
MP joint of the left middle finger. He opined that appellant’s left middle finger condition was a
direct result of the accepted factors of his federal employment. While Dr. Tosti identified the
specific employment factors alleged by appellant, including using his left upper extremity
predominately to manipulate and deliver mail, he did not provide a pathophysiological explanation
as to how those activities either caused or contributed to appellant’s diagnosed condition.12
Furthermore, the Board has consistently held that medical rationale is particularly necessary when
there are preexisting conditions involving the same body part,13 and has required medical rationale
differentiating between the effects of the work-related injury and the preexisting condition in such
cases.14 As Dr. Tosti’s reports lack rationale, they are of limited probative value and therefore
insufficient to establish appellant’s claim.15
As appellant has not submitted rationalized medical evidence to support his claim that he
sustained a left middle finger condition causally related to the accepted employment factors, the
Board finds that he 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 not met his burden of proof to establish a left middle
finger condition causally related to the accepted factors of his federal employment.

12

Supra note 10.

13

E.g., K.R., Docket No. 18-1388 (issued January 9, 2019).

14

See, e.g., A.J., Docket No. 18-1116 (issued January 23, 2019); M.F., Docket No. 17-1973 (issued December 31,
2018); J.B., Docket No. 17-1870 (issued April 11, 2018); E.D., Docket No. 16-1854 (issued March 3, 2017); P.O.,
Docket No. 14-1675 (issued December 3, 2015).
15

See J.L., Docket No. 18-1804 (issued April 12, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the March 1, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 25, 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

6