United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NEBRASKA WESTERN IOWA HEALTH
CARE SYSTEM, Grand Island, NE, Employer
__________________________________________

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

Docket No. 07-1239
Issued: November 9, 2007

Case Submitted on the Record

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

JURISDICTION
On April 4, 2007 appellant filed a timely appeal from a January 31, 2007 merit decision
of the Office of Workers’ Compensation Programs that denied modification of a July 11, 2006
decision terminating her compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation effective July 11, 2006; and (2) whether appellant met her burden of proof in
establishing that she had any disability on or after July 11, 2006 causally related to her accepted
lumbar and thoracic strains.
FACTUAL HISTORY
On May 14, 2005 appellant, then a 55-year-old practical nurse, filed a traumatic injury
claim stating that she injured her middle and lower back in the performance of duty on May 7,

2005 when she pulled a patient toward her and experienced pressure.1 In a May 12, 2005 note,
Dr. Thomas F. Werner, a Board-certified family practitioner, diagnosed back strain secondary to
injury incurred while “lifting or moving” a patient. Appellant stopped work on May 10, 2005
and returned on May 14, 2005. The Office accepted this claim for sprain/strain of the lumbar
and thoracic regions.
On August 16, 2005 appellant filed a second traumatic injury claim stating that she
injured her lower back on that day while maneuvering a patient.2 She stopped work on
August 16, 2005 and returned on August 17, 2005. In an August 16, 2005 report, Dr. Douglas J.
Herbek, a Board-certified family practitioner, noted that appellant had a history of back problems
since May 2005 and diagnosed low back strain. On August 22, 2005 he related appellant’s claim
that her supervisor asked to perform tasks at work which were outside her physical restrictions.
The Office accepted appellant’s claim for lumbar and thoracic sprain/strain and paid appropriate
compensation.
On September 12, 2005 Dr. Herbek diagnosed low back strain and indicated that
appellant initially injured her back in May 2005 but reinjured it at work on August 16, 2005. On
September 30, 2005 he noted appellant’s belief that her back was worsening despite her work
restrictions, physical therapy and medication.
In a November 4, 2005 report, Dr. Adeleke Badejo, a Board-certified neurosurgeon,
noted appellant’s medical history, complaints of back pain and an October 4, 2005 magnetic
resonance imaging (MRI) scan report. He diagnosed degenerative disc disease at L1-2 with mild
spinal stenosis but stated: “I cannot explain [appellant’s] symptoms on the basis of the mild
stenosis at L1-2. My feeling is that her symptoms could be due to degenerative disc disease.
This would not, however, explain the radicular component of her complaint.” Dr. Badejo
recommended that appellant return to work in a limited-duty capacity on a graduated schedule.
In a November 4, 2005 duty status report, Dr. Herbek indicated that appellant could
return to work with restrictions as of November 7, 2005. He agreed with Dr. Badejo’s
recommendations concerning appellant’s return to a limited-duty job assignment. Appellant did
not return to work and also ceased attending physical therapy.
In a December 2, 2005 report, Dr. Herbek noted that, despite his and Dr. Badejo’s
recommendations, appellant had not returned to work and had not resumed physical therapy. He
diagnosed low back strain and neck strain. On December 12, 2005 Dr. Herbek explained that
Dr. Badejo had given appellant permission to return to work with restrictions. However, he
advised that appellant had not yet returned to work. Dr. Herbek explained that he was unable to
opine whether appellant could work a full eight hours per day, as she had not yet attempted to
work the four hours recommended.

1

The claim was assigned Office file number 112029594.

2

The claim was assigned Office file number 112030908. File number 112029594 and file number 112030908
were combined on October 7, 2005.

2

On January 9, 2006 the Office referred appellant for a functional capacity evaluation. In
a January 11, 2006 statement, appellant asserted that she could not undergo a functional capacity
evaluation because she could not work. On January 18, 2006 the Office informed her that the
employing establishment had made her a limited-duty job offer which the Office found suitable.
Appellant declined the offered position on January 21, 2006, stating: “I have a degree as a
Licensed Practical Nurse. I must lay down four to five times on my bed throughout the day
because of back pain. I am also receiving [Social Security Disability Insurance] because I am
unable to work due to my back pain.” On January 25, 2006 the Office informed appellant that
the employing establishment had offered her a position as a telephone operator, which the Office
determined to be suitable. In a January 28, 2006 statement, appellant attributed her disability to
her osteoarthritis and degenerative disc disease. She stated: “I know I am unable to do the job
that you offered because of my pain and my need to lay down when I feel I must.” On
February 27, 2006 the Office advised appellant that it had determined that her justifications for
refusing the limited-duty job offer were invalid.
On March 2, 2006 the Office referred appellant, together with a statement of accepted
facts, to Dr. Thomas Connolly, a Board-certified orthopedic surgeon, for a second opinion
examination.
Appellant underwent the functional capacity evaluation on April 25, 2006. In a May 2,
2006 report, Neal Wachholtz, a physical therapist, determined that appellant’s tests were invalid
and that he was unable to obtain accurate information concerning her condition due to “poor
effort during functional testing.” He also noted that, despite displaying full range of motion
during testing, appellant “also displays significant pain behaviors.” Mr. Wachholtz explained
that appellant reported “severe limitations,” stating that she “cannot do anything,” “totally cannot
work” and “cannot keep a job.” He stated that he could not recommend permanent restrictions,
as he was unable to reconcile appellant’s “subjective complaints of pain and her portrayed level
of disability” with the objective findings. However, Mr. Wachholtz estimated appellant’s work
capacity through her general strength and findings concerning her degenerative disc disease,
concluding that she was probably capable of working full time in a light to medium-duty
position.
In an April 28, 2006 report, Dr. Connolly reviewed appellant’s medical history and
performed a physical examination, finding evidence of degenerative changes of the spine. He
noted that appellant ambulated with a shuffling gait but had complete range of motion of the
neck and bilateral upper extremities. Dr. Connolly also found that appellant’s pain seemed
restricted to the lumbar region, but that she did not report lumbar pain when her head, neck and
shoulders were manipulated. He determined that appellant had underlying nonemployment
osteoarthritis to which her complaints of thoracolumbar pain were related. Dr. Connolly
concluded that appellant’s subjective complaints of pain were disproportionate to her objective
findings and diagnostic test results. In a May 11, 2006 supplemental report, he diagnosed
nonemployment-related osteoarthritis and degenerative changes at L1-2 and explained that
thoracic and lumbar strains generally resolved over the course of a few months. Dr. Connolly
noted that more than a year had elapsed since appellant’s injury and any disability should have
already resolved.

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On June 7, 2006 the Office issued a notice of proposed termination of appellant’s
compensation.
Following the Office’s proposed termination, appellant submitted several medical
reports. In a May 30, 2006 report, Dr. Anne K. Morse, an internist, diagnosed degenerative joint
disease and degenerative disc disease. On June 5, 2006 she diagnosed cervical and lumbar
degenerative disc disease as well as back pain secondary to degenerative disc disease and
degenerative joint disease, gastritis, depression and menopausal syndrome. In a June 19, 2006
report, Dr. Morse noted appellant’s refusal to return to work. She explained that appellant’s
degenerative disc disease was likely a preexisting condition, which “certainly was aggravated by
her injury but was not something that should cause her any long-term disability.” Dr. Morse did
not believe that appellant’s degenerative disc disease should be “a cause for disability” and stated
that appellant’s claimed employment-related disability was “minimal compared to the disability
she is allowing herself to have.” Other treatment notes from Dr. Morse addressed appellant’s
status and symptoms.
By decision dated July 11, 2006, the Office terminated appellant’s compensation
effective the same day.
On August 5, 2006 appellant appealed to the Board. On October 26, 2006 the Board
dismissed the appeal at appellant’s request so that she could pursue reconsideration before the
Office.3 In support of her reconsideration request, appellant provided additional copies of
reports previously received into the record, including Dr. Herbek’s August 22 and December 2,
2005 reports and Dr. Morse’s May 30, June 5 and 19, 2006 reports.
By decision dated January 31, 2007, the Office denied modification of its July 11, 2006
termination decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.4 The Office may not terminate compensation without
establishing that the disability ceased or that it was no longer related to the employment.5 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.6
ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation because the weight of medical evidence of record does not support continuing
3

Docket No. 06-1895 (issued October 26, 2005).

4

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

5

Id.

6

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

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employment-related disability. In reports prepared through November and December 2005,
Dr. Herbek recommended physical therapy but advised that appellant was capable of working in
a limited-duty position. Appellant attended only one session of the recommended physical
therapy and did not return to work. Dr. Herbek referred appellant for an evaluation with
Dr. Badejo, who provided a November 4, 2005 report concluding that appellant was capable of
returning to work. In November 18 and December 2, 2005 reports, Dr. Herbek concurred with
Dr. Badejo concerning appellant’s work capacity. However, appellant did not return to work.
The Office referred appellant to Dr. Connolly for a second opinion examination. In an
April 28, 2006 report, Dr. Connolly presented his physical examination findings and the
diagnostic test results, noting that both the examination and previous MRI scans supported a
diagnosis of osteoarthritis and degenerative changes of the lumbar spine. He explained that
appellant’s conditions were preexisting, nonemployment changes and that her accepted injury
should have resolved within several months. Dr. Connolly also indicated that appellant’s
subjective complaints of pain were far more “impressive” than the diagnostic testing results or
physical examination findings suggested. He found that her MRI scan report showed minor
degenerative changes and that she exhibited full range of motion and limited tenderness on
physical examination. However, Dr. Connolly noted that appellant walked with a shuffling gait
and presented complaints of pain that were not supported by the objective evidence. In a
May 11, 2006 report, he stated that her lumbar and thoracic strain should have resolved within a
few months, yet it had been a year since her injury. Based upon his report, the Office determined
that appellant no longer had employment-related disability or condition. The Board finds that
Dr. Connolly reviewed of the diagnostic testing results, detailed his physical examination
findings and provided explanation and rationale supporting his conclusion that appellant’s
employment-related condition had resolved. Accordingly, the medical evidence establishes that
appellant no longer has residuals from her employment-related injury. The Office met its burden
of proof in terminating her compensation benefits.
After the Office proposed to terminate appellant’s benefits, she submitted reports from
Dr. Morse. However, these reports provide limited support for appellant’s continuing disability.
In a June 19, 2006 report, Dr. Morse stated that appellant’s degenerative disc disease was likely a
preexisting condition but that the May 7 and August 16, 2005 traumatic injuries aggravated it.
However, she also indicated that she did not believe that appellant’s degenerative disc disease
should be “a cause for disability.” Dr. Morse stated that appellant’s claimed employment-related
disability was “minimal compared to the disability she is allowing herself to have.” To the
extent that she supported that appellant’s condition remained causally related to her accepted
employment injuries, she provided an equivocal opinion, stating that while the employment
injuries aggravated a preexisting condition she questioned why such an aggravation would be
ongoing and cause for disability. The Board has held that a medical opinion which is speculative
or equivocal in nature is of limited probative value on the issue of causal relationship.7 Other
treatment records from Dr. Morse did not provide additional reasoning in support for an ongoing
employment-related condition.

7

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based upon an
incomplete history or which are speculative or equivocal in character have little probative value).

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Accordingly, the Board finds that the Office properly terminated appellant’s
compensation benefits effective July 11, 2006.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that she had an employment-related disability, which continued after termination of
compensation benefits.8
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between
appellant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of appellant, 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 appellant.9
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof in establishing that she
had any disability causally related to her employment after July 11, 2006. Following the
Office’s termination of her compensation benefits, appellant submitted several medical reports
already received into the record and duly considered by the Office. Specifically, appellant
provided August 22 and December 2, 2005 reports from Dr. Herbek and May 30, June 5 and 19,
2006 reports from Dr. Morse. However, these reports had already been reviewed and considered
by the Office before the termination of appellant’s benefits and are insufficient to establish that
she had an employment-related condition or disability after July 11, 2006. Appellant did not
submit any new medical evidence explaining why any continuing condition or disability would
be causally related to her employment. Therefore, the Board finds that appellant did not meet
her burden of proof in establishing that she had continuing employment-related disability after
July 11, 2006.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation effective July 11, 2006 and she did not meet her burden of proof in establishing
that she had any employment-related disability after July 11, 2006.

8

Talmadge Miller, 47 ECAB 673, 679 (1996); Wentworth M. Murray, 7 ECAB 570, 572 (1955).

9

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

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ORDER
IT IS HEREBY ORDERED THAT the January 31, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 9, 2007
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
DEPARTMENT OF THE NAVY,
UNITED STATES NAVAL SHIP COMET,
FPO, San Francisco, CA, Employer
__________________________________________

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

Docket No. 20-0566
Issued: March 8, 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 January 13, 2020 appellant filed a timely appeal from a November 22, 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
ISSUE
The issue is whether OWCP properly denied appellant’s request for authorization of home
equipment and modifications.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the November 22, 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.

FACTUAL HISTORY
On January 6, 1968 appellant, then a 27-year-old seaman, filed a notice of injury or
occupational disease claim (Form CA-1) alleging that on January 5, 1968 he sustained a broken
left arm and a fractured left patella as a result of a motorcycle accident in Vietnam while in the
performance of duty. OWCP accepted the claim for skull fracture with convulsive disorder, left
wrist fracture, left patella open fracture, left bicep laceration, right hip fracture, and traumatic right
hip osteoarthritis. 3 The record reflects that OWCP paid appellant wage-loss compensation on the
periodic rolls as of June 16, 2002. On August 8, 2013 appellant underwent OWCP-authorized
total right hip replacement surgery.
In an August 8, 2019 letter, appellant requested that OWCP grant authorization for a
handicap bathroom extension, a new chair lift with a table, a ramp to access the rear of his property,
widen internal doors, and level and resurface areas around his house to facilitate his use of a
wheelchair, as recommended by his occupational therapist in an accompanyin g June 6, 2019
medical report.
Appellant also submitted an undated quote and quotes dated January 13, 18, June 16, and
August 8, 2019 for the recommended home modifications.
In an August 14, 2019 development letter, OWCP advised appellant that it required
periodic medical reports in cases in which compensation was being paid for prolonged disability.
It requested that he submit an opinion from his physician regarding the status of his accepted
condition, his ability to return to work, and his current medical treatment plan. OWCP afforded
appellant 30 days to respond.
A memorandum of telephone call (Form CA-110) dated September 4, 2019 reflects that
OWCP requested that appellant submit a report from his treating physician explaining the necessity
of an outdoor wheelchair ramp since he was not currently using a wheelchair.
OWCP received medical evidence from Dr. Aidan F. Lynch, an attending orthopedic
surgeon. In an August 27, 2019 attending physician’s report (Form CA-20), Dr. Lynch noted
appellant’s accepted conditions. He advised that appellant sustained multiple injuries and stiff
lower limbs that were caused or aggravated by the January 5, 1968 employment injury. Dr. Lynch
indicated that appellant was totally disabled from work as of May 1, 1986 and that he was
becoming increasingly disabled.
In a September 4, 2019 narrative report, Dr. Lynch noted appellant’s history of injury on
January 5, 1968. He also noted his current complaints of persistent shoulder discomfort.
Dr. Lynch observed that appellant’s ability to remain active was gradually deteriorating, he walked
with a shufﬂing gait and used a stick to mobilize, and his ability to walk was becoming more
restricted especially on rough ground or when attempting to climb steps or stairs. He further
observed that appellant was physically unable to work and he had to drive an automatic car.
Dr. Lynch reported findings on physical examination. He indicated that in 2013 appellant
3

By decision dated January 14, 1972, OWCP granted appellant a schedule award for 10 percent permanent
impairment of the left arm, 55 percent permanent impairment of the left leg, a nd 12 percent permanent impairment of
the right leg.

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underwent total right hip replacement surgery to convert a fused hip to a hip arthroplasty.
Dr. Lynch indicated that the operation provided him with improved hip mobility, but he still had
a signiﬁcant degree of stiffness in his hip in view of his previous arthrodesis. He advised that no
further improvement was anticipated regarding appellant’s hip function. Additionally, Dr. Lynch
advised that appellant had arthrodesis to his left knee, which was in a ﬁxed position, discomfort in
his back, which appeared to be associated with stiffness in both his right hip and left knee, and
restricted movement of both shoulders. He related that, in light of appellant’s injury, he was
becoming increasingly disabled in his ability to remain active. Dr. Lynch was also no longer able
to climb steps or stairs. He determined that appellant was 100 percent permanently disabled from
work. Dr. Lynch related that appellant was also becoming increasingly disabled from performing
activities of daily living (ADLs). He advised that his house required indoor modifications to
provide access to his bedroom and toilet. Dr. Lynch further advised that outdoor modifications,
which included a ramp to gain entrance into his house were required as appellant had to avoid
using steps or stairs and likely required a wheelchair in the future.
Dr. Lynch, in an October 1, 2019 addendum letter, advised that appellant had restricted
mobility as a result of his multiple injuries, which required indoor and outdoor modifications to
his house. He requested that OWCP grant authorization for such modifications. Dr. Lynch noted
that the ground at appellant’s house was quite rough and he was unable to walk on uneven surfaces.
As such, he maintained that a solid surface, either concrete or tarmac, was required. Dr. Lynch
also maintained that ramps instead of steps would be required at the entrance to appellant’s house.
He indicated that the front door and indoors of the house needed to be widened to allow wheelchair
access in the future. Dr. Lynch again opined that appellant remained permanently totally disabled
from work.
OWCP received additional estimates for a handicap bathroom and other home
modifications, including a wheelchair ramp with a platform and widened front and rear doorways.
By decision dated October 11, 2019, OWCP granted authorization for modification of
appellant’s existing bathroom and other indoor home modifications.
In an October 25, 2019 decision, OWCP denied authorization for a wheelchair ramp and
other outdoor home modifications, finding that the medical evidence of record was insufficient to
establish that the requested equipment and modifications were medically necessary to address the
effects of the January 5, 1968 employment injury.
By decision dated November 22, 2019, OWCP reissued the October 25, 2019 decision.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree, or the period of disability, or aid in lessening the amount of monthly compensation. 4
While OWCP is obligated to pay for treatment of employment-related conditions, the employee
4

5 U.S.C. § 8103; see R.P., Docket No. 17-0428 (issued April 19, 2018); Thomas W. Stevens, 50 ECAB
288 (1999).

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has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition. 5
In interpreting section 8103, the Board has recognized that OWCP has broad discretion in
approving services, with the only limitation on OWCP’s authority being that of reasonableness.6
Abuse of discretion is shown through proof of manifest error, clearly unreasonable exercise
of judgment, or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evid ence could be construed so as to
produce a contrary factual conclusion.7
The Board has previously noted that OWCP’s procedures provide for housing
modifications under limited circumstances. 8 To be eligible for housing modifications, the claimant
must be severely restricted in terms of mobility, functionality, and independence in normal living
functions, on a permanent basis, due to the work-related injury. Examples are impairments that
require the use of a prosthesis, wheelchair, motorized scooter, leg braces, crutches, ca ne, or other
self-help devices. Such medical conditions include quadriplegia, paraplegia, amputation, total loss
of use of limbs, blindness, and profound deafness bilaterally.9
Before considering the technicalities of housing modification proposals, a determination
must be made on the medical necessity of the requested modification. There are several aspects
to consider when reviewing the evidence of record:
“(1) Does the level of impairment rise to the level delineated in the eligibility
section above?
“(2) Does the medical evidence support that the claimant has restrictions or
physical limitations which necessitate the modification?
“(3) Are these restrictions caused by the accepted work-related condition?
“(4) Does the physician provide detailed findings and rationale for the opinion that
the claimant’s work injury has caused restrictions which necessitate the requested

5

See R.P., id.; Kennett O. Collins, Jr., 55 ECAB 648 (2004); Zane H. Cassell, 32 ECAB 1537 (1981).

6
See B.I., Docket No. 18-0988 (issued March 13, 2020); see also Daniel J. Perea, 42 ECAB 214, 221 (1990)
(abuse of discretion by OWCP is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or administrative actions which are contrary to both logic, and probable deductions from established facts).
7

D.S., Docket No. 18-0353 (issued May 18, 2020); P.L., Docket No. 18-0260 (issued April 14, 2020); L.W., 59
ECAB 471 (2008).
8

R.K., Docket No. 14-1238 (issued September 23, 2014).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Housing and Vehicle Modifications, Chapter 2.1800.3
(October 2009).

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modification? This should come from a physician who is a recognized authority in
the appropriate medical specialty.”10
ANALYSIS
The Board finds that OWCP properly appellant’s request for authorization of home
equipment and modifications.
OWCP accepted that on January 5, 1968 appellant sustained a work-related skull fracture
with convulsive disorder, left wrist fracture, left patella open fracture, left bicep laceration, right
hip fracture, and traumatic right hip osteoarthritis. Consequently, it granted authorization for
appellant’s handicap bathroom and other indoor home modifications, but denied authorization for
a wheelchair ramp and other outdoor home modifications.
In a September 4, 2019 report and October 1, 2019 addendum letter, Dr. Lynch requested
that OWCP authorize modification to the outside of appellant’s existing home, noting that he
would benefit from handicap accessible equipment. He noted that appellant’s current and
worsening ability to walk was restricted especially when he walked on rough or uneven ground
and attempted to climb steps or stairs. Dr. Lynch also noted that he had increasing difficulty
performing ADLs. He maintained that appellant would “likely” needed a wheelchair ramp to enter
his house because he should avoid using steps or stairs. As such, Dr. Lynch also related that the
front door and indoors of appellant’s house required widening to allow for the use of a wheelchair
in the future. Additionally, he indicated that a solid surface, such as concrete or tarmac, was
required outside appellant’s house due to his inability to walk on uneven surfaces. Dr. Lynch
found that appellant’s permanent total disability from work resulted from the January 5, 1968
employment injury, which required total right hip replacement surgery in 2013.
To establish the medical necessity of the requested modification, Dr. Lynch was required
to explain how appellant’s present inability to negotiate steps, requiring a wheelchair ramp, and to
walk on uneven ground, requiring a solid surface, were caused by the accepted employment injury
that occurred 51 years prior. The Board finds that Dr. Lynch failed to provide a rationalized
medical opinion explaining why the requested the wheelchair ramp and other home modifications
were medically necessary.11 Dr. Lynch did not provide the necessary medical explanation as to
how the wheelchair ramp and other outdoor home modifications would cure, reduce the period of
disability, or aid in lessening the amount of monthly compensation. 12
As noted, the only limitation on OWCP’s authority is approving or disapproving services
under FECA is one of reasonableness. 13 As the medical evidence submitted provided insufficient
10

Id. at Chapter 2.1800.4.

11

Supra note 4; see also O.M., Docket No. 20-0640 (issued April 19, 2021); D.K., Docket No. 20-0002 (issued
August 25, 2020); G.B., Docket No. 18-1444 (issued March 25, 2019); M.B., Docket No. 17-1679 (issued February 8,
2018); R.K., Docket No. 14-1238 (issued September 23, 2014) (medical conclusions unsupported by rationale are of
diminished probative value).
12

Supra note 3.

13

Supra note 5.

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explanation of medical necessity, the Board finds that OWCP properly denied appellant’s requests
under section 8103 of FECA.14
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 OWCP properly denied appellant’s request for authorization of home
equipment and modifications.
ORDER
IT IS HEREBY ORDERED THAT the November 22, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 8, 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

14

Supra note 10.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

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Appearances:
Lenin and Vivian Perez, for the appellant
Office of Solicitor, for the Director

Docket No. 06-839
Issued: January 26, 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 February 21, 2006 appellant filed an appeal of a decision of the Office of Workers’
Compensation Programs’ hearing representative dated February 7, 2006 denying her claim for a
traumatic injury as of June 22, 2004. Pursuant to 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 sustained a traumatic injury on June 22, 2004 causally
related to her federal employment.
FACTUAL HISTORY
On June 22, 2004 appellant, then a 48-year-old clerk, filed a traumatic injury claim
alleging that on June 22, 2004 she sustained an injury to the neck, right shoulder, right arm, back,
left and right legs.
In a letter dated July 14, 2004, the Office informed appellant that further information was
required including her statement describing the alleged incident.

In response appellant submitted medical records and a written statement. The medical
evidence included a signed note from Dr. Charles Hollen, Board-certified in internal medicine,
dated June 23, 2004 diagnosing soft tissue inflammation, exacerbation of a chronic neck problem
and identifying the cause as an incident at work “several days ago.” Also included in the
medical evidence was a copy of the June 23, 2004 letter from Dr. Hollen with a handwritten note
dated July 19, 2004 correcting appellant’s history to reflect that she hurt her neck on June 22,
2004 not “several days ago.” Appellant submitted a statement with a detailed description of her
injury. An unsigned x-ray report dated July 14, 2004 was submitted finding that there was a
dissector present at L5-S1. An unsigned report dated July 22, 2004 from Dr. Ashvin I. Patel,
Board-certified in orthopedic surgery, which diagnosed radiculitis was also submitted.
The Office received several medical documents for treatment of appellant’s neck and
back since 1999 prior to June 22, 2004. Among these older medical documents is an unsigned
letter from Dr. John R. Cassidy, Board-certified in neurological surgery, dated June 14, 2004
which noted that the magnetic resonance imaging (MRI) scan revealed that appellant had a rightsided L5-S1 disc herniation. In a July 9, 2004 unsigned letter, Dr. Patel reviewed appellant’s
MRI scan from March 10, 2004 and noted that it showed that she had a disc herniation at the
time of the MRI scan.
In an August 13, 2004 decision, the Office denied appellant’s claim on the grounds that
the evidence was insufficient to establish that the events occurred as alleged. Additionally the
Office found that the evidence failed to provide a diagnosis which could be connected to the
claimed event.
By an August 25, 2004 letter, appellant through her representative, requested a hearing
before an Office hearing representative.
In an unsigned letter dated January 6, 2006, the employer disagreed with appellant’s
revised statement at the hearing regarding the weight of the tubs in the alleged incident on
June 22, 2004. At the hearing appellant revised her statement about the weight of the tubs
claiming them to be around 30 pounds. The employer performed an audit and found the tubs to
weigh 13.6 and 17.6 pounds.
In a November 21, 2005 letter, Dr. H. Gerard Siek, Jr, Board-certified in orthopedic
surgery, diagnosed and opined that appellant had “chronic nerve root irritation from her failed
spine surgery.”
By decision dated February 6, 2006, the Office affirmed the August 18, 2004 decision,
but modified the reason for the denial by accepting the incident as alleged and finding that
appellant had not provided sufficient medical evidence to establish a causal relationship between
her medical condition and her established federal work duties.

2

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.3
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident that is alleged to have occurred.4 The second
component is whether a personal 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
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.6 Causal relationship is a
medical question that can generally be resolved only by rationalized medical opinion evidence.7
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on whether there is a causal relationship between the claimant’s diagnosed
condition and the established incident or factor of employment. The opinion 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 established incident or factor of employment.8
1

5 U.S.C. §§ 8101-8193

2

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

3

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

4

Elaine Pendleton, supra note 2.

5

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton supra note 2.

6

Katherine J. Friday, 47 ECAB 591, 594 (1996).

7

See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of causal relationship must be
based on a complete factual and medical background of the claimant. Victor J. Woodhams, supra note 3.
Additionally, in order to be considered rationalized, the 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 the claimant’s specific employment factors. Id.
8

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

3

An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.9
ANALYSIS
Appellant alleged that she sustained a back injury on June 22, 2004 when she was
moving and lifting stamp stock tubs. The Office accepted that the employment incident occurred
as alleged. The case turns on whether there is sufficient evidence to establish causal relation
between the employment incident and the back condition. The Board holds that the medical
evidence presented does not contain a rationalized medical opinion establishing that the workrelated incident is causally related to appellant’s diagnosed condition.
The medical reports submitted failed to provide the necessary rationalized medical
opinion. The June 23, 2004 report from Dr. Hollen described appellant’s pain and her chronic
pain history but failed to give a diagnosis or opinion as to how the work incident caused or
exacerbated her back condition.
An unsigned report dated July 9, 2004 diagnosed radiculopathy, but lacked an opinion as
to the cause. A July 22, 2004 unsigned report discussed appellant’s surgery but lacked an
opinion as to a diagnosis and causation. The Board has held that unsigned reports are of
diminished probative value as the author cannot be readily identified as a physician.10 As such,
the Board finds that the unsigned reports apparently from Dr. Patel are of diminished probative
value and are insufficient to establish appellant’s claim.
In a November 21, 2005 report, Dr. Siek diagnosed chronic nerve root irritation but
opined that it was caused by appellant’s failed spine surgery. He did not provide any opinion as
to how the work incident contributed or caused appellant’s back condition.
Appellant expressed her belief that her back condition worsened as a result of the
June 22, 2004 employment incident. The Board has held that the mere fact that a condition
manifests itself during a period of employment does not raise an inference that there is a causal
relationship between the two.11 Neither the fact that a condition became apparent during a period
of employment, nor the belief that the condition was caused or aggravated by employment
factors or incidents is sufficient to establish causal relationship.12
As there is no probative, rationalized medical evidence addressing how appellant’s
claimed back condition was caused or aggravated by her employment, she has not met her

9

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

10

Merton J. Sills, 39 ECAB 572 (1988).

11

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

12

Roy L. Humphrey, 57 ECAB ___ (Docket No. 05-1928, issued November 23, 2005).

4

burden of proof in establishing that she sustained an injury in the performance of duty causally
related to factors of her federal employment.
CONCLUSION
Appellant has not met her burden of proof to establish that she sustained a traumatic
injury to her right shoulder causally related to the June 22, 2004 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the February 7, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 26, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Millersville, PA, Employer
__________________________________________

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

Docket No. 19-0266
Issued: May 28, 2019

Case Submitted on the Record

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

JURISDICTION
On November 16, 2018 appellant filed a timely appeal from an October 25, 2018 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 to consider the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that his diagnosed
conditions are causally related to the accepted October 28, 2017 employment incident.
FACTUAL HISTORY
On October 31, 2017 appellant, then a 61-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that at approximately 1:20 p.m. on October 28, 2017, his service
vehicle was struck horizontally by another driver who ignored a red traffic light, injuring his neck,
right shoulder, and left ankle while in the performance of duty. On the reverse side of the claim
1

5 U.S.C. § 8101 et seq.

form, the employing establishment indicated that appellant stopped work on the date of the injury
and had not yet returned.
Appellant was transported to the emergency department by ambulance. In an October 28,
2017 report, emergency medical technician (EMT), Dustin Mosher, recorded that appellant
“complain[ed] of right shoulder pain possibly from seatbelt … [and] reported that a maroon
colored sedan struck the rear left side of the vehicle [causing] the mail truck to go up onto two
wheels and then landed. The mail truck had minor damage…. The maroon vehicle had
minor/moderate damage.”
A note from registered nurse Mickey McDonough reflects that appellant was evaluated in
the Lancaster General Health Emergency Department on October 28, 2017. He ordered appellant
to remain off work pending further evaluation.
In a development letter dated November 13, 2017, OWCP advised appellant of the need
for additional factual information and medical evidence in support of his claim for FECA benefits.
It specifically inquired about the circumstances of the alleged causative employment incident,
including witnesses and the immediate effect of the injury. The attached factual questionnaire also
included queries as to the existence of any related preexisting conditions. OWCP also requested
that appellant provide a narrative report from his attending physician, which was required to
include a diagnosis and a medical explanation as to how the reported work incident either caused
or aggravated a medical condition. It afforded him 30 days to submit the requested information.
A computerized tomography (CT) scan of appellant’s cervical spine on October 28, 2017
revealed a reversal of the cervical curvature and degenerative changes, but no acute fracture. An
October 28, 2017 left ankle x-ray showed no left ankle fracture or dislocation.
Emergency department notes dated October 28, 2017 and countersigned by Dr. Seth M.
Katz, a Board-certified specialist in emergency medicine, reflect that “[appellant] is a local [letter
carrier] who was driving his vehicle … when he was T-boned on the passenger side by another
vehicle…. Arrives to the emergency room with some right lateral neck pain that radiates into his
right shoulder. He is also having some pain to his left ankle.” The notes document patient’s
diagnosis history, which included arthritis, asthma, bronchitis, a broken right arm of unknown
year, and rheumatoid arthritis. The notes then detailed appellant’s surgical history and listed
appellant’s conditions, including: (1) hyperlipidemia; (2) asthma; (3) bone loss; (4) Raynauds’
syndrome; (5) carpal tunnel syndrome; (6) ulnar neuropathy of right upper extremity; and
(7) rheumatoid arthritis involving multiple sites with positive rheumatoid factor. After noting the
negative results of the CT scan and the x-ray, Dr. Katz concluded that appellant’s examination was
overall benign. Appellant was discharged and informed when to return.
By decision dated December 15, 2017, OWCP denied appellant’s claim. It accepted that
the October 28, 2017 incident occurred as alleged and that a medical condition(s) had been
diagnosed. OWCP denied the claim, however, as causal relationship had not been established
between the diagnosed condition(s) and the accepted October 28, 2017 employment incident.
On April 30, 2018 OWCP received additional copies of the emergency department notes.
Also submitted was the Millersville Borough Police Department report of the accident.

2

Visit notes dated October 31, 2017 from registered nurse Kara Doberstein repeated the
patient history contained in the emergency department triage, and noted that appellant continues
to have right shoulder and neck soreness without relief from the muscle relaxants. Ms. Doberstein
diagnosed neck muscle strain.
On July 27, 2018 appellant requested reconsideration of the December 15, 2017 decision
based on the new evidence submitted.
By decision dated October 25, 2018, OWCP denied modification of its December 15, 2017
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 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
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.6 Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.7 The second component is whether the employment incident caused a personal
injury.8 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.9

2

Id.

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

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

7

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

8

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

9

J.P., supra note 3; L.T., supra note 7; Shirley A. Temple, 48 ECAB 404, 407 (1997).

3

Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.10 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.11 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).12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his
diagnosed conditions are causally related to the accepted October 28, 2017 employment incident.
The emergency department notes of October 28, 2017 by Dr. Katz reflect that appellant
visited the emergency department after the accepted incident. The list of appellant’s conditions
included: (1) hyperlipidemia; (2) asthma; (3) bone loss; (4) Raynauds’ syndrome; (5) carpal
tunnel syndrome; (6) ulnar neuropathy of right upper extremity; (7) rheumatoid arthritis involving
multiple sites with positive rheumatoid factor. While appellant’s visit to the emergency
department was prompted by the accepted incident of October 28, 2017, Dr. Katz does not offer
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 on the issue of
causal relationship.13 This report, therefore, is insufficient to establish appellant’s claim.
In addition to the report by Dr. Katz, OWCP received various treatment records authored
by registered nurses and EMTs. As these providers are not considered “physician[s]” as defined
by FECA, their respective reports are insufficient for purposes of establishing entitlement to FECA
benefits.14
Appellant’s October 28, 2017 diagnostic studies are also insufficient to establish causal
relationship. The Board has held that diagnostic studies lack probative value as they do not provide

10

E.M., supra note 6; Robert G. Morris, 48 ECAB 238 (1996).

11

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

12

Id.

13

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

14

Under FECA a physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law. See 5 U.S.C.
§ 8102(2); D.B., Docket No. 16-1219 (issued November 8, 2016) (an EMT is not considered a physician under FECA);
M.M., Docket No. 16-1617 (issued January 24, 2017); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as nurses, physician assistants, and physical therapists are not competent to render a medical opinion
under FECA); see also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949)
(a medical issue such as causal relationship can only be resolved through the submission of probative medical evidence
from a physician).

4

an opinion on causal relationship between appellant’s employment incident and a diagnosed
condition.15
Consequently, the Board finds the medical evidence of record is insufficient to meet
appellant’s burden of proof to establish causal relationship between the diagnosed condition(s) and
the accepted October 28, 2017 employment incident.
Appellant may submit new evidence and/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 that his
diagnosed conditions are causally related to the accepted October 28, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the October 25, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 28, 2019
Washington, DC

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

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

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

15

T.H., Docket No. 18-1736 (issued March 13, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 16-0580
Issued: May 19, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 8, 2016 appellant filed a timely appeal from a January 4, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated May 11, 2015 to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly determined that appellant abandoned her request
for a hearing.
FACTUAL HISTORY
On March 17, 2015 appellant, then a 46-year-old administrative assistant filed a traumatic
injury claim (Form CA-1), alleging that on July 24, 2014 she was waiting to make a salad at
1

5 U.S.C. § 8101 et seq.

lunch when she stepped out of the way of a coworker and hit her right knee on an open cabinet of
the salad bar. She did not stop work. Appellant also claimed continuation of pay. The
supervisor checked the box marked “yes” in response to whether her knowledge of the facts
about the injury agreed with the statements made by appellant.
By letter dated April 2, 2015, OWCP informed appellant of the type of evidence needed
to support her claim and requested that she submit such evidence within 30 days. No additional
information was received.
In an April 2, 2015 decision, OWCP denied appellant’s request for continuation of pay as
the claim was not reported on an approved OWCP form within 30 days of the injury.
Appellant requested a telephonic hearing before an OWCP hearing representative of the
April 2, 2015 decision.
On May 11, 2015 OWCP also denied the claim for compensation, finding that appellant
had not established that the events giving rise to the claimed injury occurred as alleged.
On June 5, 2015 OWCP received appellant’s May 15, 2015 request for reconsideration
from the May 11, 2015 decision, but submitted no additional evidence. By decision dated
June 29, 2015, it denied appellant’s request without conducting a merit review of the claim.
In an October 22, 2015 letter, OWCP responded to appellant’s request for a hearing. It
advised her that a telephone hearing would be held on December 9, 2015 at 12 p.m., Eastern
Standard Time (EST). OWCP instructed appellant to call the provided toll-free number a few
minutes before the hearing time and enter the pass code to gain access to the conference call. It
mailed the October 22, 2015 letter to her address of record. Appellant did not appear at the
hearing.
By decision dated January 4, 2016, OWCP found that appellant had abandoned her
request for a hearing. It determined that she received a written notice of the hearing 30 days
before the scheduled hearing but did not appear and did not explain her absence either before or
after the scheduled hearing.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.2 Unless
otherwise directed in writing by the claims examiner, an OWCP hearing representative will mail
a notice of the time and place of the hearing to the claimant and any representative at least 30

2

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

2

days before the scheduled date.3 OWCP has the burden of proving that it mailed a notice of a
scheduled hearing to a claimant.4
A hearing before the Branch of Hearings and Review can be considered abandoned only
under very limited circumstances.5 With respect to abandonment of hearing requests, Chapter
2.1601.6(g) of OWCP’s procedures6 and section 10.622(f) of OWCP regulations7 provide in
relevant part that failure of the claimant to appear at the scheduled hearing, failure to request a
postponement, and failure to request in writing within 10 days after the date set for the hearing
that another hearing be scheduled shall constitute abandonment of the request for a hearing.
Under these circumstances, the Branch of Hearings and Review will issue a formal decision
finding that the claimant has abandoned her request for a hearing and return the case to the
district office.8
ANALYSIS
Following OWCP’s April 2, 2015 decision denying her claim for continuation of pay,
appellant timely requested a telephonic hearing before an OWCP hearing representative. On
October 22, 2015 OWCP notified appellant that her hearing was scheduled for December 9, 2015
at 12:00 p.m., EST. It provided a toll-free number and a pass code to use at the time of the
hearing. Appellant did not request a postponement, failed to call in at the scheduled hearing, and
failed to provide any notification for such failure to OWCP within 10 days of the scheduled date
of the hearing. As she did not appear and did not comply with OWCP’s requirements regarding
requesting postponement and/or rescheduling within the allotted time, the Board finds that
OWCP properly determined that she had abandoned her hearing request.
On appeal, appellant asserts that she did not receive notice of the scheduled hearing as
her local post office often delivers her mail to the wrong address. However, in an October 22,
2015 letter, OWCP advised appellant that a telephone hearing would be held on December 9,
2015 and provided her the telephone number and passcode for accessing the hearing. The
hearing notice was properly mailed to appellant’s last known address of record. The Board has
held, in the absence of evidence to the contrary, a letter properly addressed and mailed in the due
course of business is presumed to have arrived at the mailing address in due course. This is
known as the mailbox rule.9 Consequently, it is presumed that appellant received the properly
addressed notice of hearing.
3

20 C.F.R. § 10.617(b).

4

See also Michelle R. Littlejohn, 42 ECAB 463 (1991).

5

Claudia J. Whitten, 52 ECAB 483 (2001).

6

20 C.F.R. § 10.622(f).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written Record, Chapter
2.1601.6(g) (October 2011).
8

See supra note 6.

9

See James A. Gray, 54 ECAB 277 (2002).

3

CONCLUSION
The Board finds that appellant abandoned her request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the January 4, 2016 decision of Office of Workers’
Compensation Programs is affirmed.
Issued: May 19, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


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

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

Docket No. 13-1921
Issued: February 7, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 19, 2013 appellant, through her attorney, filed a timely appeal from a May 22,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
claim for compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that her right shoulder
condition is causally related to a November 14, 2009 employment incident.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 14, 2009 appellant, then a 51-year-old part-time flexible rural carrier, filed
a traumatic injury claim (Form CA-1) alleging that she injured her neck and right shoulder
during a slip and fall while delivering packages that day. She indicated that the fall occurred on
her right side. Appellant did not stop work.
In an October 26, 2012 Form CA-16 Authorization for Examination and Treatment,
Dr. Joel Buchalter, a Board-certified orthopedic surgeon, noted that appellant fell in a customer’s
driveway on November 14, 2009.2 He diagnosed shoulder impingement and opined with a check
mark “yes” that the condition was caused or aggravated by the employment activity.
Dr. Buchalter also opined that appellant was totally disabled from July 21, 2012 onward and
would eventually require shoulder arthroscopy. In an October 26, 2012 report, he stated that she
was initially seen for right shoulder pain on May 4, 2012 and that she provided a history of her
November 14, 2009 work injury and that her right arm had been bothering her since that time.
Dr. Buchalter indicated that appellant’s right shoulder impingement had become worse since the
November 14, 2009 injury. He opined that her right shoulder pain and injury are from the
November 14, 2009 work injury and her case should be open for treatment and possible surgery.
In a December 6, 2012 letter, OWCP notified appellant of the deficiencies in her claim
and requested additional factual and medical information. It noted that as it appeared to be a
minor injury with minimal or no time lost, a limited amount of expenses were administratively
approved. The claim was reopened because of the request to authorize surgery. Appellant was
afforded 40 days to submit additional evidence and respond to OWCP’s inquiries. No further
evidence was received.
By decision dated January 9, 2013, OWCP denied appellant’s claim. It found that the
incident of November 14, 2009 occurred as alleged but the medical evidence was insufficient to
substantiate the causal relationship between her right shoulder condition or need for surgery and
the November 14, 2009 incident.
On January 12, 2013 appellant requested reconsideration. No additional evidence was
submitted. By decision dated February 5, 2013, OWCP denied appellant’s reconsideration
request on the grounds that she did not raise a substantive legal question or include new and
relevant evidence.
In a February 5, 2013 letter, appellant, through counsel, requested a telephonic hearing.
In a January 28, 2013 report, Dr. Buchalter noted appellant’s medical treatment to the
right shoulder since May 2012 and presented examination findings. He reported that in
July 2012, she injured her shoulder while unloading her truck, having a twisting injury to her
2

While a properly completed CA-16 form can create a contractual agreement for payment of medical treatment
even if the claim is not ultimately accepted, this form was not properly completed. See Tracy P. Spillane, 54 ECAB
608 (2003). 20 C.F.R. § 10.300(b) states that the employer shall issue the CA-16 form within four hours of the
claimed injury. This regulation also limits the authorization for treatment to a period of 60 days from the date of
injury. The October 26, 2012 CA-16 form was completed over two years following the date of injury.

2

ankle and falling on her shoulder and elbows. Dr. Buchalter reported that since that period of
time appellant had increasing pain in the shoulder region and difficulty with overhead activities.
He opined that she had an injury in July 2012 in which she suffered shoulder pain and continues
to have pain despite repeat injections to the shoulder. Dr. Buchalter opined that appellant is a
candidate for arthroscopic surgery and submitted authorization for such surgery.
By decision dated February 26, 2013, OWCP denied appellant’s request for a hearing on
the grounds that she previously requested reconsideration and the issue could be equally
addressed by requesting reconsideration and submitting evidence not previously considered
which established causal relationship.
In a March 11, 2013 letter, appellant, through counsel, requested reconsideration.
Medical reports regarding her right ankle, including a September 5, 2012 magnetic resonance
imaging (MRI) scan, several fracture/dislocation care forms and a November 1, 2012 surgical
booking sheet were submitted with additional reports from Dr. Buchalter.
In medical reports dated May 4, 2012 to January 28, 2013, Dr. Buchalter discussed
appellant’s right shoulder condition. He noted that, on his initial treatment, appellant related
shoulder pain since her fall on November 14, 2009. Dr. Buchalter felt that her right shoulder
pain was due to injuries arising from the November 14, 2009 work injury. He noted that
appellant’s examination of May 4, 2012 showed significant signs of shoulder impingement and
the May 10, 2012 MRI scan showed evidence of extensive supraspinatus tendinosis, mild
infraspinatus tendinosis, degenerative foreshortening of the superior and posterior labra and mild
acromioclavicular joint hypertrophy. Based on the clinical examination and diagnostic testing
that appellant had extensive rotator cuff tendinitis and shoulder impingement arising from her
November 14, 2009 shoulder injury when she fell in a customer’s driveway. Dr. Buchalter also
diagnosed left knee degenerative joint disease, bilateral shoulder impingement, rule out rotator
cuff tear. For the history of injury, he noted that appellant fell two times, one time three years
prior and again two years ago, injuring both of her shoulders as well as her left hip.
Dr. Buchalter noted that the left hip was injured after the second fall. In medical reports dated
from July 26, 2012 to March 6, 2013, he discussed an ankle injury.
By decision dated May 22, 2013, OWCP denied modification of its January 9, 2013
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the

3

employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he or she actually experienced the employment incident at the time,
place and in the manner alleged. Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury. An employee may establish that the employment incident occurred as alleged
but fail to show that his or her condition relates to the employment incident.5
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.6 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.7 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.8
ANALYSIS
OWCP accepted that the employment incident of November 14, 2009 occurred at the
time, place and in the manner alleged. The issue is whether appellant’s claimed right shoulder
condition resulted from the November 14, 2009 employment incident. The Board finds that she
did not meet her burden of proof to establish the causal relationship between her claimed
condition and the employment incident.
Dr. Buchalter attributed appellant’s right shoulder condition and need for surgery to the
November 14, 2009 employment incident. However, he did not support his condition with
adequate medical rationale explaining how her current shoulder condition was related to the
November 14, 2009 employment incident. Dr. Buchalter first saw appellant on May 4, 2012
over two years after the incident at work. While he provided a history of the November 14, 2009
employment incident in his October 26, 2012 report and opined that her right shoulder
impingement was the result of that injury, he failed to account for the two-year gap between the
incident and his first evaluation of May 4, 2012. Dr. Buchalter did not provide sufficient
3

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

4

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

5

See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

6

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

7

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

8

Dennis M. Mascarenas, 49 ECAB 215 (1997).

4

findings or medical rationale to substantiate the causal relationship between the shoulder
condition and the November 14, 2009 incident.9 In a December 14, 2012 report, he concluded,
based on clinical examination and diagnostic testing, that appellant’s extensive rotator cuff
tendinitis and shoulder impingement arose from her November 14, 2009 shoulder injury as her
shoulder had bothered her since that time. Again, Dr. Buchalter failed to provide a sufficient
medical rationale addressing the relationship between her shoulder condition in 2012 and the
November 14, 2009 employment incident.10 The Board finds that he did not explain how the
mechanism of the November 14, 2009 employment incident caused or aggravated appellant’s
right shoulder conditions. Furthermore, the Board notes that Dr. Buchalter notes in his reports of
May 4, 2012 and January 28, 2013, an intervening employment event of July 2012 wherein
appellant injured both of her shoulders, in addition to other injuries.
The medical records pertaining to appellant’s other medical conditions, such as her right
ankle, are not related to the claimed condition in the current claim and thus are irrelevant.
Likewise, the diagnostic studies submitted do not address causal relationship and are irrelevant.
As appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained a right shoulder condition causally related to the November 14,
2009 employment incident, she has failed to meet her burden of proof to establish a claim for
compensation.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law. For the
reasons stated above, the Board finds that the attorney’s arguments are not substantiated.
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.

9

See Thomas L. Hogan, 47 ECAB 323 (1996).

10

Id.

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her right
shoulder condition is causally related to a November 14, 2009 employment incident, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the May 22, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 7, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-2219
Issued: May 7, 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 August 19, 2008 appellant filed a timely appeal from April 14 and July 24, 2008
decisions of the Office of Workers’ Compensation Programs adjudicating his claim for a
schedule award. Pursuant to 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 more than 10 percent impairment of his right upper
extremity for which he received a schedule award.
FACTUAL HISTORY
On April 17, 2005 appellant, then a 49-year-old mail handler, filed a claim for a traumatic
injury alleging that on April 16, 2005 he injured his right hand when he slipped and fell
backward. His claim was accepted for a right distal radial fracture. On May 24, 2005 appellant
filed a claim for a schedule award. He worked light duty until August 24, 2005 when he returned
to full duty.

In a November 22, 2005 report, Dr. Manhal A. Ghanma, a Board-certified orthopedic
surgeon and Office referral physician, reviewed the medical history and provided findings on
physical examination.1 He stated that appellant had full range of motion of the right wrist and
provided measurements. There was no discoloration or swelling, no tenderness to palpation of
the wrist and no crepitation to range of motion testing. There was no motor or sensory deficit.
Dr. Ghanma had excellent grip strength and no wrist instability. He determined that appellant
had no impairment based on the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (the A.M.A., Guides). In a supplemental report dated
December 8, 2005, Dr. Ghanma stated that there was no evidence of any residuals from
appellant’s accepted right distal radius fracture and his maximum date of medical improvement
was August 24, 2005, the date he returned to full duty.
In a May 21, 2007 report, Dr. Jeffrey C. Kirschman, a physician Board-certified in family
practice and occupational medicine, provided findings on physical examination, including range
of motion measurements. There was diffuse swelling over the ulnar dorsal aspect and over the
scaphoid. There was tenderness to palpation of the palmar wrist and over the ulnar aspect. Mild
crepitus was noted over the volar wrist on range of motion testing. Dr. Kirschman calculated
appellant’s right upper extremity impairment at 15 percent based on Table 16-18 at page 499 of
the A.M.A., Guides. He stated that a magnetic resonance imaging (MRI) scan revealed
abnormal findings in the right wrist and appellant had ongoing focal tenderness and poor
tolerance of repetitive activity.
On June 30, 2007 Dr. Jason D. Eubanks, an orthopedic surgeon and an Office medical
adviser, reviewed the report from Dr. Kirschman.2 He found that appellant had no right upper
extremity impairment. Range of motion measurements were normal and Dr. Kirschman
provided insufficient explanation as to how he calculated 15 percent right wrist impairment.
By decision dated October 18, 2007, the Office denied appellant’s claim for a schedule
award on the grounds that the medical evidence did not establish that he had any right upper
extremity impairment causally related to his accepted April 16, 2005 right distal radius fracture.
Appellant requested a review of the written record.
In an October 30, 2007 report, Dr. Kirschman stated that appellant had 10 percent right
upper extremity impairment for loss of grip strength according to Table 16-34 at page 509 of the
A.M.A., Guides. He provided the results of grip strength testing and calculated 30.2 percent
impairment. Applying the value of 30.2 percent to Table 16-34 at page 509 resulted in 10
percent right upper extremity impairment.

1

Appellant was not able to obtain an impairment rating from a treating physician when first requested by the
Office.
2

See Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002) (these procedures contemplate that, after obtaining all necessary medical
evidence, the file should be routed to an Office medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale for the
percentage of impairment specified, especially when there is more than one evaluation of the impairment present).

2

On March 27, 2008 an Office hearing representative set aside the October 18, 2007
decision and remanded the case for further development of the medical evidence.
On April 9, 2008 Dr. Nabil Angley, an Office medical adviser, reviewed Dr. Kirschman’s
October 30, 2007 report and calculated that appellant had 10 percent right upper extremity
impairment due to grip strength loss according to Table 16-34 at page 509 of the A.M.A.,
Guides.
In a letter received by the Office on May 2, 2008, appellant argued that the correct date of
maximum medical improvement was August 24, 2005 as noted in Dr. Ghanma’s 2005 reports.
He also indicated that he had dependents.3
By decision dated April 14, 2008, the Office granted appellant a schedule award for 10
percent right upper extremity impairment, or 31.20 weeks, from October 30, 2007 to June 4,
2008 with a date of maximum medical improvement of October 30, 2007.4
By decision dated July 24, 2008, an Office hearing representative affirmed the
April 14, 2008 decision.5
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act6 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.7
ANALYSIS
Dr. Kirschman calculated appellant’s right upper extremity impairment at 15 percent
based on Table 16-18 at page 499 of the A.M.A., Guides. He stated that an MRI scan revealed
abnormal findings in the right wrist and appellant had ongoing focal tenderness and poor
tolerance of repetitive activity. However, Dr. Kirschman provided insufficient explanation as to
how he calculated the 15 percent right wrist impairment.
3

The record shows that appellant’s April 14, 2008 schedule award was paid at the three-fourths augmented pay
rate for claimants with dependents.
4

The Act provides for 312 weeks of compensation for 100 percent loss or loss of use of the upper extremity.
5 U.S.C. § 8107(c)(10). Multiplying 312 weeks by 10 percent equals 31.2 weeks of compensation.
5

Subsequent to the July 24, 2008 Office decision, additional evidence was associated with the file. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
6
7

5 U.S.C. § 8107.

20 C.F.R. § 10.404 (1999).
(5 ed. 2001).

Effective February 1, 2001, the Office began using the A.M.A., Guides

th

3

In an October 30, 2007 report, Dr. Kirschman stated that appellant had 10 percent right
upper extremity impairment for loss of grip strength according to Table 16-34 at page 509 of the
A.M.A., Guides. He provided the results of grip strength testing and calculated 30.2 percent
impairment. Applying the value of 30.2 percent to Table 16-34 at page 509 resulted in 10
percent right upper extremity impairment.
An Office medical adviser reviewed Dr. Kirschman’s October 30, 2007 report compared
his calculations to the applicable section of the A.M.A., Guides, Table 16-34 at page 509, and
calculated that appellant had 10 percent right upper extremity impairment due to grip strength
loss.
The Board finds that there is no medical evidence establishing that appellant has more
than 10 percent right upper extremity impairment.
Regarding appellant’s assertion that the Office used an incorrect date of maximum
medical improvement in the April 14, 2008 schedule award, the period covered by a schedule
award commences on the date that the employee reaches maximum medical improvement from
the residuals of the accepted employment injury.8 It is a well-settled rule that maximum medical
improvement arises at the point at which the injury has stabilized and will not improve further.
This determination is factual in nature and depends primarily on the medical evidence.9 In this
case, the appropriate date of maximum medical improvement for the April 14, 2008 schedule
award was October 30, 2007, the date of the most recent medical report addressing appellant’s
right upper extremity impairment.
CONCLUSION
The Board finds that appellant has no more than 10 percent right upper extremity for
which he received a schedule award.

8

See Mark A Holloway, 55 ECAB 321 (2004).

9

Peter C. Belkind, 56 ECAB 580 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 24 and April 14, 2008 are affirmed.
Issued: May 7, 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

5