United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 09-1171
Issued: February 25, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 31, 2009 appellant filed a timely appeal of the March 4, 2009 merit decision of
the Office of Workers’ Compensation Programs denying her claim for an additional 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 a 16 percent impairment of the right upper
extremity and a 9 percent impairment of the left upper extremity, for which she received
schedule awards.
FACTUAL HISTORY
The Office accepted that on June 8, 2000 appellant, then a 26-year-old letter carrier,
sustained bilateral carpal tunnel syndrome and de Quervain’s disease while in the performance of
her work duties.

On March 14, 2003 appellant filed a claim (Form CA-7) for a schedule award. By
decision dated June 16, 2003, the Office granted her a schedule award for a seven percent
impairment of the right upper extremity.
On April 28, 2005 appellant filed a claim for an additional schedule award after
undergoing right carpal tunnel release surgery on November 13, 2003. By decision dated
March 8, 2006, the Office granted her a schedule award for an eight percent impairment of the
right upper extremity and a five percent impairment of the left upper extremity.
On December 13, 2006 appellant filed a claim for an additional schedule award. On
July 30, 2007 the Office granted her a schedule award for a one percent impairment of the right
upper extremity and a four percent impairment of the left upper extremity.
On August 6, 2008 appellant filed another claim for an additional schedule award.
On August 21, 2008 the Office referred appellant, together with a statement of accepted
facts, the case record and a list of questions, to Dr. Joel W. Renbaum, a Board-certified
orthopedic surgeon, who was asked to determine if appellant had any residual disability or
permanent impairment due to her accepted employment-related injuries.
In a September 29, 2008 medical report, Dr. Renbaum reviewed a history of appellant’s
accepted June 8, 2000 employment injuries, medical treatment and employment background. On
physical examination of the upper extremities, he reported full range of the neck and bilateral
shoulders and elbows. There was a healed volar surgical incision on the right. There was no
localizing tenderness to palpation. Appellant’s bilateral arms measured 13 inches and her
bilateral forearms measured 11 inches. A Finkelstein’s test and Tinel’s sign were negative.
Appellant’s bilateral grip strength was 40/40 on the right and left. On neurological examination
of the upper extremities, Dr. Renbaum found reflexes, motor strength and sensory within normal
limits. Distal vascular status was intact. Dr. Renbaum provided a diagnosis of status post carpal
tunnel release of the right wrist and a repetitive stress injury of appellant’s bilateral upper
extremities due to her employment injuries. He noted her subjective complaints of occasional
slight and moderate pain in the right hand and forearm. Dr. Renbaum stated that appellant could
work eight hours per day with permanent restrictions on repetitive activities three hours per day.
He stated that the restrictions precluded her from performing her regular work duties as a letter
carrier. Dr. Renbaum opined that appellant continued to suffer from residuals of her accepted
employment injuries. He concluded that she reached maximum medical improvement five
months following her November 2003 surgery.
By letter dated October 14, 2008, the Office requested that Dr. Lisa M. Key, an attending
Board-certified internist, review Dr. Renbaum’s report and provide an opinion regarding
appellant’s bilateral wrist impairment. A copy of this letter was sent to appellant at her address
of record. Dr. Key did not respond.
On December 20, 2008 an Office medical adviser reviewed appellant’s medical records,
including Dr. Renbaum’s September 29, 2008 findings. She stated that appellant reached
maximum medical improvement on September 29, 2008. The Office medical adviser found that
appellant did not sustain any additional impairment due to loss of range of motion, strength or

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sensory deficit or pain based on the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) (5th ed. 2001).
By decision dated March 4, 2009, the Office denied appellant’s claim for an increased
schedule award.
On appeal, appellant contends that she was not aware that a follow-up examination with
Dr. Key was necessary or that the physician failed to respond to the Office’s October 14, 2008
letter. She also contends that Dr. Renbaum failed to conduct a thorough medical examination as
he only examined her for 15 minutes.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 set forth the number of weeks of compensation to be paid for
permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.3 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.4
The fifth edition of the A.M.A., Guides, regarding impairment due to carpal tunnel
syndrome, provides:
“If, after an optimal recovery time following surgical decompression, an
individual continues to complain of pain, paresthesias and/or difficulties in
performing certain activities, three possible scenarios can be present:
1. Positive clinical findings of median nerve dysfunction and electrical conduction
delay(s): the impairment due to residual [carpal tunnel syndrome] is rated
according to the sensory and/or motor deficits as described [in Tables 16-10a and
16-11a].
2. Normal sensibility and opposition strength with abnormal sensory and/or motor
latencies or abnormal [electromyogram] testing of the thenar muscles: a residual
[carpal tunnel syndrome] is still present and an impairment rating not to exceed
[five percent] of the upper extremity may be justified.

1

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

2

20 C.F.R. § 10.404.

3

5 U.S.C. § 8107(c)(19).

4

20 C.F.R. § 10.404.

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3. Normal sensibility (two-point discrimination and Semmes-Weinstein
monofilament testing), opposition strength and nerve conduction studies: there is
no objective basis for an impairment rating.”5
The Board has found that the fifth edition of the A.M.A., Guides provides that
impairment for carpal tunnel syndrome be rated on motor and sensory deficits only.6
ANALYSIS
The Office accepted appellant’s claim for bilateral carpal tunnel syndrome and
de Quervain’s disease. On June 16, 2003 appellant received a schedule award for seven percent
impairment of her right upper extremity. She underwent carpal tunnel release on November 13,
2003 to treat the accepted right upper extremity condition. Following her surgery, appellant
received an additional schedule award on March 8, 2006 for 8 percent impairment of her right
upper extremity, a total of 15 percent and 5 percent impairment of her left upper extremity. On
July 30, 2007 she received a schedule award for an additional 1 percent impairment of the right
upper extremity and 4 percent impairment of the left upper extremity, totaling 16 percent
impairment of the right upper extremity and 9 percent impairment of the left upper extremity.
The Board finds that appellant did not meet her burden of proof to establish that she sustained
greater impairment.
On September 29, 2008 Dr. Renbaum, an Office referral physician, provided a thorough
review of appellant’s accepted employment injuries and medical treatment. On physical
examination of the upper extremities, he reported normal findings, which included full range of
the neck and bilateral shoulders and elbows and a healed volar surgical incision on the right.
Dr. Renbaum also found no localizing tenderness to palpation. He reported that appellant’s
bilateral grip strength was 40/40 on the right and left, negative Finkelstein’s test result and
Tinel’s sign and that appellant’s reflexes, motor strength and sensory were within normal limits.
Dr. Renbaum also reported that the distal vascular status was intact. He advised that appellant
was status post carpal tunnel release of the right wrist and she sustained a repetitive stress injury
of her bilateral upper extremities due to her employment injuries. Dr. Renbaum opined that,
although she continued to suffer from residuals of her accepted employment injuries, she could
work with restrictions. He concluded that appellant reached maximum medical improvement
five months after her November 13, 2003 surgery. The Board finds this report is thorough and
well rationalized and is sufficient to establish the additional impairment.
The Office appropriately routed the case record to the Office medical adviser for review
to provide an impairment rating based on the A.M.A., Guides.7 On December 20, 2008 the
Office medical adviser reviewed Dr. Renbaum’s findings and opined that there was no objective
basis for any additional impairment to appellant’s upper extremities under the A.M.A., Guides.
5

A.M.A., Guides 495; see T.A., 59 ECAB ___ (Docket No. 07-1836, issued November 20, 2007).

6

Kimberly M. Held, 56 ECAB 670 (2005).

7

See C.J., 60 ECAB ___ (Docket No. 08-2429, issued August 3, 2009); Federal (FECA) Procedure Manual, Part
2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter 2.808.6(d) (August 2002).

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She found that appellant had no impairment due to loss of range of motion, strength or sensory
deficit or pain. The Office medical adviser determined that she sustained no additional
impairment to either the right or left upper extremities.
The Office medical adviser based her opinion on a proper review of the record and
appropriately applied the A.M.A., Guides in finding that appellant did not sustain any additional
impairment to either upper extremity. As there is no probative medical evidence to establish that
appellant sustained greater permanent impairment than that previously awarded.8 The Board will
affirm the March 4, 2009 decision.
The Board finds that appellant’s contentions that she was neither aware that a follow-up
examination with Dr. Key was necessary nor that the physician failed to respond to the Office’s
October 14, 2008 letter are without merit. The Board notes that the Office’s October 14, 2008
letter requested that Dr. Key review and provide an opinion regarding Dr. Renbaum’s
September 29, 2008 examination. A copy was sent to appellant’s address of record. This letter
was not returned as undeliverable. Under the mailbox rule, the presumption is that appellant
received proper notification of the Office’s request for additional information from Dr. Key.9
With regard to appellant’s contention that Dr. Renbaum did not conduct a thorough
examination, the Board notes that, in addition to examining appellant, he reviewed a history of
her accepted employment injuries, medical treatment and presented findings based on a full
examination of the injured members. Based upon Dr. Renbaum’s examination and the Office’s
concurrence, the Board finds that appellant sustained no additional employment-related
impairment.
CONCLUSION
The Board finds that appellant has failed to establish that she has more than a 16 percent
impairment of the right upper extremity and a 9 percent impairment of the left upper extremity,
for which she received schedule awards.

8

See C.J., supra note 7.

9

Under the mailbox rule, a letter properly addressed and mailed in the due course of business, such as in the
course of the Office’s daily activities, is presumed to have arrived at the mailing address in due course. See
James A. Gray, 54 ECAB 277 (2002); Charles R. Hibbs, 43 ECAB 699 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the March 4, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 25, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Houston, TX, Employer
__________________________________________

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

Docket No. 11-1888
Issued: March 19, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 15, 2011 appellant filed a timely appeal from the June 2, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her claim, for
compensation at the augmented rate. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether OWCP properly denied appellant’s claim for compensation at the
augmented rate for a claimant with one or more dependents within the meaning of FECA.

1

20 C.F.R. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on October 17, 2008 appellant, then a 47-year-old nurse, sustained a
lumbar sprain due to a fall at work. It paid her compensation for periods of compensation.
In an October 15, 2009 letter, appellant asserted that her daughter, Torria S. Harrington,
qualified as a dependent under FECA and therefore she was entitled to receive compensation at
the augmented three-fourths pay rate. She claimed that her daughter was a full-time student for
the fall 2009 semester (August to December 2009), indicating that she was taking 11 credit hours
of courses at Houston Community College and 3 credit hours of courses at the University of
Houston.2 Appellant indicated that school administrators refused to complete the school
attendance certification forms provided by OWCP. However, she submitted an October 13, 2009
document showing that, for the fall 2009 semester, her daughter was registered to take 11 credit
hours of courses at Houston Community College and an October 12, 2009 document showing
that she was registered to take 3 credit hours of courses at the University of Houston.
In two undated letters received by OWCP in mid 2010, appellant asserted that her
daughter had been a full-time college student since August 2008 and therefore she was entitled to
receive compensation at the augmented rate since that time. In one of the letters, she stated, “I
received the supplemental payment of $137.91 … last week. This amount does not reflect the
total amount owed to me to compensate me at the pay rate of 3/4 instead of 2/3.”
Appellant submitted an October 13, 2009 document showing that, for the fall 2009
semester, her daughter was registered for 11 credits worth of classes at Houston Community
College. A May 18, 2010 academic record shows that her daughter completed 11 credits worth
of classes at Houston Community College during the fall 2009 semester (August 22 to
December 16, 2009). An October 12, 2009 document shows that, for the fall 2009 semester,
appellant’s daughter was registered for three credits worth of classes at the University of
Houston.
Appellant submitted a May 18, 2010 document which indicates that, between January 19
and May 20, 2010, her daughter was characterized as “FullTime” at the Houston Community
College. A May 18, 2010 academic record shows that her daughter completed 14 credits worth
of classes at Houston Community College during the spring 2010 semester (January 19 and
May 19, 2010). Another May 18, 2010 document shows that, between January 19 and May 14,
2010, appellant’s daughter completed three credits worth of classes at the University of Houston.
In a February 2, 2011 letter, appellant asserted that she still had not been paid the proper
amount of compensation at the augmented rate. She stated:
“I was off work for knee surgery from 8/18/09-10/18/09. While off work, a Dept.
of Labor employee informed me that I would receive back pay once they received
documentation validating that my daughter, Torria Harrington, was a full-time
college student. From 8/18/09-10/18/09, I was only paid at the 2/3 pay rate
instead of the 3/4 pay rate. I am requesting to be paid the difference between 2/3
2

The record reflects that appellant’s daughter was born on August 27, 1990.

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and 3/4. Additionally, I am requesting to be paid at a 3/4 pay rate for the dates of
2/9/09, 6/19/09, 11/2/09 & 7/10/10 as specified on the CA-7.”
In a February 11, 2011 decision, OWCP determined that appellant was not entitled “to
the difference between with dependent and without dependent for compensation claims filed in
2008.” It noted, “You[r] daughter was not a full time student at one educational facility for that
year.” (Emphasis in original.) OWCP stated that appellant received a $137.71 payment on
June 11, 2010 for the difference due to her for the period December 2, 2009 to February 18, 2010
and that, in about two weeks, she would receive a $10.91 payment for the difference due to her
for the period March 16 to June 15, 2010.
In an April 13, 2011 letter, appellant claimed entitlement to augmented compensation for
the same periods mentioned in her February 2, 2011 letter. She further stated:
“I have provided a copy of the documentation that proves that my daughter,
Torria, was a full time student during the above stated dates. During the Fall
2009, she completed 11 credit hours at Houston Community College and three
credit hours at the University of Houston, which totaled 14 credit hours. A full
time student must take a minimum of 12 credit hours in one semester. In a letter
from the Dept. of Labor dated 2/11/11, it states I can’t be paid at 75 percent
because she didn’t receive all of the credit hours at one university. I do not
believe the intent of the FECA regulation is for an employee to be discriminated
against because a dependent took classes at two accredited colleges. I propose
that the intent was to ensure that a child is a dependent and attending college fulltime.”3
In a June 2, 2011 decision, OWCP determined that appellant was not entitled “to the
difference between with and without dependent for compensation claims filed in 2008.” It noted,
“You[r] daughter was not a full[-]time student at one educational facility for that year.”
(Emphasis in original.) OWCP stated that appellant received a $137.71 payment on June 11,
2010 for the difference due to her for the period December 2, 2009 to February 18, 2010 and a
$10.91 payment on February 18, 2011 for the difference due to her for the period March 16 to
June 15, 2010.
LEGAL PRECEDENT
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of duty.4 If the
disability is total, the United States shall pay the employee during the disability monthly
compensation equal to 66 2/3 percent of her monthly pay, which is known as her basic
compensation for total disability.5 Where the employee has one or more dependents as defined
3

Appellant resubmitted the documents she had previously submitted to support her assertion that her daughter
was a full-time student.
4

5 U.S.C. § 8102(a).

5

Id. at § 8105(a)

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in FECA, she is entitled to have her basic compensation augmented at the rate of 8 1/3 percent,
for a total of 75 percent of monthly pay.6 A student may be a dependent, which under 5 U.S.C.
§ 8101(17) means an individual under 23 years of age who has not completed 4 years of
education beyond high school and is regularly pursuing a full-time course of study or training at
an accredited institution.7 If a claimant receives augmented compensation during a period where
she has no eligible dependents, the difference between the compensation she was entitled to
receive at the two-thirds compensation rate and the augmented compensation received at the
three-quarters rate constitutes an overpayment of compensation.8
In determining whether a claimant has discharged her burden of proof and is entitled to
compensation benefits, OWCP is required by statute and regulation to make findings of fact.9
OWCP’s procedure further specifies that a final decision of OWCP must include findings of fact
and provide clear reasoning which allows the claimant to “understand the precise defect of the
claim and the kind of evidence which would tend to overcome it.”10 These requirements are
supported by Board precedent.11
ANALYSIS
Appellant claimed that her daughter had been a full-time student since August 2008 and
asserted that therefore she was entitled to be paid compensation at the augmented three fourths
rate for a claimant with one or more dependents within the meaning of FECA. OWCP made
adjustment payments to her which it asserted were designed to ensure that she would be paid at
the augmented three-fourths rate for the periods December 2, 2009 to February 18, 2010 and
March 16 to June 15, 2010.
OWCP denied appellant’s claim for augmented compensation for certain periods. The
Board finds that it did not provide adequate facts or findings such that she would adequately
understand the precise defect of her claim and the kind of evidence which would tend to
overcome it. In its February 2 and June 2, 2011 decisions, OWCP generally indicated that
appellant was not entitled “to the difference between with dependent and without dependent for
compensation claims filed in 2008.” It noted, “You[r] daughter was not a full[-]time student at
one educational facility for that year.” (Emphasis in original.) Appellant submitted evidence to
6

Id. at § 8110(b).

7

5 U.S.C. §§ 8101(17), 8110(a). A dependent may also be a husband or wife (under certain circumstances); an
unmarried child, including an adopted child or stepchild, who lives with a claimant and is under 18 years of age; an
unmarried child who younger 18 or over 18, but who cannot support himself or herself because of mental or
physical disability or a parent who totally depends on a claimant for support. 5 U.S.C. §§ 8101(9), 8110(a).
8

Diana L. Booth, 52 ECAB 370 (2001).

9

5 U.S.C. § 8124(a) provides that OWCP “shall determine and make a finding of facts and make an award for or
against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP
“shall contain findings of fact and a statement of reasons.”
10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (July 1997).

11

See James D. Boller, Jr., 12 ECAB 45, 46 (1960).

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establish that, for the fall 2009 semester, her daughter was taking 11 credit hours of courses at
Houston Community College and 3 credit hours of courses at the University of Houston.
OWCP’s decisions suggests that a rule exists which provides that an individual who takes a full
load of classes would not be considered a full-time student within the meaning of FECA if those
classes were taken at more than one institution. OWCP did not provide adequate explanation for
this determination nor did it cite to any authority for the decision reached any such rule.
Moreover, with respect to the augmented payments made for part of the spring 2010 semester, it
did not adequately explain why they were made for the designated periods and how they were
calculated. OWCP did not make any specific findings on appellant’s claim that she was entitled
to augmented compensation for the fall 2008 and spring 2009 semesters.
For these reasons, OWCP’s June 2, 2011 decision regarding appellant’s claim for
augmented compensation will be set aside. The case is remanded to OWCP for such further
development as it deems necessary, to be followed by an appropriate decision on this matter.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether OWCP
properly denied appellant’s claim for compensation at the augmented rate for a claimant with one
or more dependents within the meaning of FECA. The case is remanded to OWCP for further
development.

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ORDER
IT IS HEREBY ORDERED THAT the June 2, 2011 decision of the Office of Workers’
Compensation Programs is set aside and the case remanded to OWCP for proceedings consistent
with this decision of the Board.
Issued: March 19, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fife, WA, Employer
__________________________________________

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

Docket No. 10-30
Issued: July 9, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 23, 2009 appellant filed a timely appeal from a September 23, 2008 merit
decision of the Office of Workers’ Compensation Programs that denied his claim. 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 established that he sustained an injury in the performance
of duty on January 18, 2008, causally related to his employment.
FACTUAL HISTORY
On May 8, 2008 appellant, a 42-year-old postal employee, filed a traumatic injury claim1
(Form CA-1) for “debris in [his] eyes,” a right hip condition, “an increase[d] rating of service
1

Appellant originally filed a notice of recurrence of disability (Form CA-2a). Following a telephone interview on
August 12, 2008, during which the difference between an occupational disease claim (Form CA-2), a traumatic
injury claim (Form CA-1), and a notice of recurrence of disability claim (Form CA-2a) were explained, appellant
elected to administratively change his claim to a traumatic injury claim.

connected [sic] disability,” as well as post-traumatic stress disorder (PTSD). He attributed these
conditions to a January 18, 2008 incident when he was placed on light duty.
Appellant submitted a January 18, 2008 note containing a job offer and a description of
his light-duty assignment.
By letter dated August 22, 2008, the Office notified appellant that he had not submitted
sufficient evidence supporting his claim. It advised appellant that he needed to submit additional
evidence and provided guidance concerning the type of evidence required.
The employing establishment controverted the claim. By decision dated September 23,
2008, the Office denied the claim because appellant had not established fact of injury.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,3
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.4 As part of his burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.5 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.8

2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
5

Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

7

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

8

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).

2

Causal relationship is a medical issue and the medical evidence generally 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
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. 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.9
ANALYSIS
Appellant identified being placed on light duty on January 18, 2008 as the employment
incident he deems responsible for his condition. The Board finds that the record contains
nothing contradicting appellant’s assertion that he was placed on light duty on the day in
question. Although the employing establishment controverted the claim generally, it did not
deny appellant’s allegation that he was placed on light duty on January 18, 2008. The Board
thus finds that appellant has established incident.
Appellant has not explained in any detail why being placed on light duty would have
caused the multiple medical conditions he has alleged. To establish a prima facie claim he must
also submit medical evidence that the alleged employment incident caused a medically
diagnosed injury. As noted above, causal relationship is a medical issue that can only be proven
by probative medical opinion evidence. The Office notified appellant that he needed to submit
additional evidence supporting his claim and advised him of the type of evidence required.
Appellant submitted no medical opinion evidence supporting his claim and, consequently, has
not established a causal relationship between the employment incident and his alleged medical
conditions. Although he submitted additional evidence on appeal, the Board’s jurisdiction is
limited to the evidence of record when the Office rendered its decision and, therefore, may not
consider evidence for the first time on appeal.10
An award of compensation may not be based on surmise, conjecture or speculation.11
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.12 The fact that a condition manifests itself or worsens during a
period of employment13 or that work activities produce symptoms revelatory of an underlying

9

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
10

20 C.F.R. § 501.2(c). See J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008) (holding the
Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its final decision).
11

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving declarations
do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).
12

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

13

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

3

condition14 does not raise an inference of causal relationship between a claimed condition and an
employment incident.
Because the medical evidence contains no reasoned discussion of causal relationship, one
that soundly explains how the established employment incident caused or aggravated a
diagnosed medical condition, the Board finds appellant has not established the essential element
of causal relationship.
CONCLUSION
The Board finds appellant has not established that he sustained an injury in the
performance of duty on January 18, 2008, causally related to his employment
ORDER
IT IS HEREBY ORDERED THAT the September 23, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 9, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Wilcox, AZ, Employer
__________________________________________

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

Docket No. 19-0951
Issued: October 24, 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 April 1, 2019 appellant, through counsel, filed a timely appeal from a February 4, 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 February 4, 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 no t 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 expand the acceptance of his
claim to include additional right ankle and foot conditions as causally related to the accepted
March 22, 2017 employment injury.
FACTUAL HISTORY
On March 31, 2017 appellant, then a 29-year-old border patrol agent, filed a traumatic
injury claim (Form CA-1) alleging that on March 22, 2017 he injured his lower leg on an obstacle
course while in the performance of duty. He asserted that he suffered rope burn, which
subsequently became infected. On the reverse side of the claim form, the employing establishment
indicated that the alleged injury occurred in the performance of duty and that appellant did not stop
work.
Appellant initially received medical treatment from a Federal Law Enforcement Training
Centers’ (FLETC) employee health unit. In a March 24, 2017 treatment note, Dr. Lisa Perkowski,
a Board-certified internist, recounted appellant’s complaints of pain to the bilateral Achilles area.
She indicated that appellant sustained wounds to his bilateral Achilles area from a dry rope climb
on an obstacle course two days ago. Appellant noted that his wound areas were “weeping” onto
his socks and sheets the past two days. Dr. Perkowski reported examination findings of steady
gait and dressings in place of the wound. She diagnosed second-degree friction burns to the
bilateral lower extremities and recommended that appellant be restricted from all physical
activities.
Appellant continued to receive medical treatment from the health unit and submitte d
examination notes dated March 27 to 31, 2017. Dr. Perkowski recounted appellant’s continued
complaints of throbbing right leg pain made worse with putting pressure on it. She indicated that
appellant’s wounds were healing, but the surrounding tissue near the right ankle area was swollen.
Dr. Perkowski diagnosed second-degree friction burns to the posterior, bilateral lower extremities
and early cellulitis of the right lower extremity. She recommended that appellant refrain from all
physical training activities.
Appellant submitted a March 30, 2017 authorization for examination and/or treatment
(Form CA-16), which noted a date of injury of March 22, 2017 and described appellant’s injury
as syncope, fatigue, and skin infection.
In health unit notes dated April 3 and 5, 2017, Brenda Perez, a registered nurse, indicated
that appellant no longer complained of any radiating leg pain. She reported right leg examination
findings of decreased redness, swelling, and drainage and no tenderness to light touch. Ms. Perez
diagnosed right lower leg wounds and authorized appellant to participate in all physical training
activities with no restrictions.
On April 12, 2017 appellant received medical treatment in urgent care from Becki
Shumaker, a nurse practitioner, for complaints of right ankle and foot pain. Ms. Shumaker
reviewed appellant’s history and conducted a physical examination. Discharge instructions
showed that appellant was diagnosed with right foot tendinitis.

2

An April 12, 2017 right foot x-ray examination showed mild hallux valgus, small plantar
calcaneal heel spur, and enthesophyte formation at the insertion of the Achilles tendon.
On April 14, 2017 appellant began to receive medical treatment from Dr. John Powers, a
podiatrist, for complaints of right ankle and heel pain. He recounted that appellant sustained an
ankle injury on March 22, 2017 when he slid down a rope during training and sustained seconddegree burns. Dr. Powers noted that appellant’s burns had completely healed, but he still
experienced pain with walking and standing. He reviewed appellant’s history and conducted an
examination. Dr. Powers noted tenderness upon palpation of the right Achilles insertion and
proximal to the insertion of the Achilles. Vascular examination showed dorsalis pedis and
posterior tibial pulses palpable 2 over 4 bilaterally and no edema. Dr. Powers diagnosed history
of cellulitis and Achilles tendinitis of the right lower extremity. He recommended a right ankle
magnetic resonance imaging (MRI) scan.
An April 20, 2017 right ankle MRI scan revealed subacute posterior calcaneus fracture and
findings which may represent mild tenosynovitis of the posterior tendons of the ankle.
In an April 24, 2017 report, Dr. Powers related that he evaluated appellant for follow-up of
right heel injury. He reviewed appellant’s history and noted that a right ankle MRI scan showed
an incomplete nondisplaced fracture of the posterior body of the calcaneus. Dr. Powers reported
physical examination findings of 5/5 muscle strength of both lower extremities and normal range
of motion of the ankle subtalar midtarsal. He diagnosed calcaneal fracture, nondisplaced fracture
of body of right calcaneus, and history of cellulitis. Dr. Powers recommended that appellant
maintain a strict nonweightbearing status to the right lower extremity. He completed a duty status
report (Form CA-17), which noted that appellant could not resume work.
Dr. Powers continued to treat appellant. In reports dated May 16 and June 6, 2017, he
recounted that appellant had less pain since he started using crutches and a cast boot. Dr. Powers
reviewed appellant’s history and noted that radiographs of the right foot showed evidence of
calcaneal fracture healing. He noted tenderness upon palpation of the right Achilles insertion and
proximal to the insertion of the Achilles. Dr. Powers diagnosed calcaneal fracture and
nondisplaced fracture of the body of the right calcaneus. He completed CA-17 forms, which noted
that appellant could not resume work.
A June 6, 2017 right foot x-ray showed a healed fracture of the right fifth toe proximal
phalanx and mild soft tissue swelling of the right foot.
On June 9 and 23, 2017 appellant filed claims for wage-loss compensation (Form CA-7)
for total disability for the period May 24 to June 23, 2017.
By development letter dated June 20, 2017, OWCP informed appellant that his claim was
initially accepted as a minor injury, but it was now considering the merits of the claim because he
had submitted a claim for wage-loss compensation. It advised him of the factual and medical
evidence necessary to establish his claim and also provided a questionnaire for completion. OWCP
afforded appellant 30 days to provide the necessary factual information and medical evidence.
On June 25, 2017 OWCP received appellant’s response to the June 20, 2017 development
letter. In a narrative statement, he recounted that at the time of injury he was crawling across a
rope on the confidence course that was approximately six feet off the ground. Appellant explained
that the back of his legs began to burn and he fell. He noted that his legs landed heel first in the
3

dirt from about six feet or higher. Appellant related that he initially went to the medical shed for
treatment and was told that his burns were infected. He reported that he was off work for one
week. Appellant indicated that while the infection began to clear up, he still had pain in his heel.
He was prescribed additional pain medication and advised to take more time off work.
Appellant also submitted a June 27, 2017 report by Dr. Powers. He reported examination
findings for no tenderness on lateral compression of the calcaneus and intact neurological vascular
status of the right lower extremity. Dr. Powers diagnosed calcaneal fracture and nondisplaced
fracture of the body of the right calcaneus, initial encounter. He completed a CA-17 form, which
indicated that appellant could work light duty.
By decision dated July 25, 2017, OWCP denied appellant’s traumatic injury claim finding
insufficient medical evidence to establish causal relationship between the accepted March 22, 2017
employment incident and any diagnosed right lower extremity conditions.
On August 8, 2017 appellant requested reconsideration.
OWCP received a July 11, 2017 report by Dr. Powers who noted that appellant no longer
complained of pain in his foot and was ambulating well in regular shoes. Dr. Powers provided
examination findings and opined that appellant was cleared for full activities and return to work.
Appellant also submitted an undated letter from Dr. Powers, which indicated that on
March 22, 2017 appellant sustained an injury while sliding down a rope while training. He noted
that appellant had a second-degree rope burn to the right ankle and developed an infection.
Dr. Powers explained that appellant had completely healed from the second-degree burn, but still
had continued pain in his posterior right ankle and heel. He reported that a right ankle MRI scan
revealed that appellant had a calcaneal stress fracture and he explained that appellant was placed
in nonweight bearing status and placed in a cast boot. Dr. Powers related that during this time
appellant could not perform his training exercises. He indicated that on July 11, 2017 appellant
was cleared for full duty as his calcaneal stress fracture had resolved.
By decision dated October 17, 2017, OWCP modified the July 25, 2017 decision. It found
that the medical evidence of record was sufficient to “accept” the diagnoses of bilateral lower leg
second-degree friction burns and right foot/ankle cellulitis as causally related to the accepted
March 22, 2017 employment incident. However, OWCP denied expansion of the acceptance of
the claim, finding that the medical evidence of record was insufficient to establish that appellant’s
diagnosed right heel calcaneal stress fracture and right ankle tendinitis were causally related to the
accepted March 22, 2017 employment injury. 4
By separate decision of even date, OWCP formally accepted appellant’s claim for seconddegree burn of the lower leg - bilaterally (resolved), and cellulitis of the right ankle/foot (resolved).
On September 26, 2018 appellant, through counsel, requested reconsideration.

4

OWCP also denied appellant’s claim(s) for wage-loss compensation for the period April 5 to June 23, 2017 finding
that the medical evidence of record was insufficient to establish that he was totally disabled from work as a result of
his accepted March 22, 2017 employment injury.

4

Appellant resubmitted reports by Dr. Powers dated April 14, 24, and May 16, 2017.
By decision dated February 4, 2019, OWCP denied modification of the October 17, 2017
decision. It found that the medical evidence of record was insufficient to establish that the
acceptance of the claim should be expanded to include right ankle tendinitis and right heel
calcaneal stress fracture as causally related to the accepted March 22, 2017 employment injury.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury. 5
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 6 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. 7 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). 8 Neither the mere fact that a disease or condition manifests itself
during a period of employment, nor the belief that the disease or condition was caused or
aggravated by employment factors or incidents is insufficient to establish causal relationship. 9
ANALYSIS
The Board finds that appellant has not met his burden of proof to expand the acceptance of
his claim to include additional right ankle and foot conditions as causally related to the accepted
March 22, 2017 employment injury.
Appellant submitted an undated letter and a series of reports dated April 14 to June 27,
2017 from Dr. Powers. Although Dr. Powers’ reports contain an accurate description of the
accepted employment injury and diagnosis of calcaneal fracture, the above-referenced reports do
not contain any opinion on whether appellant’s right calcaneal fracture was causally related to the
accepted March 22, 2017 employment injury. 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.10 These reports, therefore, are insufficient to establish appellant ’s
claim.

5

R.J., Docket No. 17-1365 (issued May 8, 2019); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

6

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

7

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

8

Id.

9

E.B., Docket No. 17-1497 (issued March 19, 2019); V.W., 58 ECAB 428 (2007).

10

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

5

Appellant also submitted medical reports dated April 3 and 5, 2017 from Brenda Perez, a
registered nurse, and an April 12, 2017 report by Becki Shumaker, a nurse practitioner. These
reports are of no probative value, however, because registered nurses and nurse practitioners are
not considered physicians as defined under FECA. 11
Diagnostic testing results of record, including the April 12 and June 6, 2017 right foot xray examination reports and an April 20, 2017 right ankle MRI scan report, are likewise
insufficient to establish any additional conditions as reports of diagnostic tests lack probative value
as they do not provide an opinion on causal relationship between appellant’s employment duties
and the diagnosed conditions. 12 Thus, these reports are also insufficient to meet appellant’s burden
of proof regarding expansion of his claim. 13
As the medical evidence of record does not contain a rationalized medical opinion
regarding causal relationship between appellant’s additional diagnosed conditions and the
accepted employment injury, the Board finds that he has not met his burden of proof.
On appeal counsel argues that the decision is contrary to law and fact. He did not, however,
provide any evidence in support of his argument.
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 expand the acceptance of
his claim to include additional right ankle and foot conditions as causally related to the accepted
March 22, 2017 employment injury.

11

5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants,
nurses, and physical therapists are not competent to render a medical opinion under FECA). 5 U.S.C. § 8101(2); 20
C.F.R. § 10.5(t). M.G., Docket No. 19-0918 (issued September 20, 2019) (nurse practitioner).
12

See A.B., Docket No. 17-0301 (issued May 19, 2017).

13

See P.M., Docket No. 18-0287 (issued October 11, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the February 4, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 24, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
FEDERAL JUDICIARY, FEDERAL PUBLIC
DEFENDERS, Sioux City, IA, Employer
__________________________________________

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

Docket No. 07-553
Issued: May 23, 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 December 20, 2006 appellant filed a timely appeal from the November 13, 2006 merit
decision of the Office of Workers’ Compensation Programs, which awarded compensation for
permanent impairment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
to review the merits of her schedule award.
ISSUE
The issue is whether appellant has more than an eight percent permanent impairment of
her left lower extremity.
FACTUAL HISTORY
On October 7, 2005 appellant, then a 55-year-old branch administrative assistant,
sustained an injury in the performance of duty when she walked down a flight of stairs, missed
the last step and fell. The Office accepted her claim for a closed fracture of the left lateral
malleolus, temporary aggravation of right shoulder impingement syndrome and temporary

aggravation of bilateral knee osteoarthritis. The Office found that the temporary aggravations
ended by November 30, 2005.1
On May 24, 2006 appellant claimed a schedule award for her fractured left ankle. The
Office referred appellant, together with the medical record and a statement of accepted facts, to
Dr. Andrew S. Lee, a specialist in physical medicine and rehabilitation, who examined appellant
on October 16, 2006. Dr. Lee related her history and reviewed the findings of past x-rays. He
described his findings on physical examination and found that appellant had reached maximum
medical improvement. For a calf circumference difference of 1.9 centimeters, Dr. Lee found an
eight percent permanent impairment of the left lower extremity. For seven degrees ankle
dorsiflexion, he found a seven percent impairment. He found no impairment for an ankle
fracture with four degrees valgus angulation. Because muscle atrophy and range of motion
deficits may not be combined, Dr. Lee gave appellant the larger of the two impairments: the
eight percent impairment for calf atrophy.
On November 1, 2006 an Office medical adviser reviewed Dr. Lee’s findings and
determined that his rating was correct. On November 13, 2006 the Office issued a schedule
award for an eight percent permanent impairment of the left lower extremity.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act2 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
American Medical Association, Guides to the Evaluation of Permanent Impairment.3
ANALYSIS
Dr. Lee compared the maximum circumference of appellant’s right calf, 43.5 centimeters,
with the maximum circumference of the left, 41.6. According to Table 17-6, page 530, of the
A.M.A., Guides, the 1.9 centimeter difference represents an eight percent impairment of the
lower extremity. Appellant’s 0.1 centimeter difference in thigh circumference does not increase
this rating.
Appellant also has impairment of the left lower extremity due to loss of ankle motion.
Under the A.M.A., Guides 537, Table 17-11, seven degrees of ankle dorsiflexion (extension)
represents a seven percent impairment of the lower extremity. Plantar flexion of 62 degrees

1

X-rays on October 7, 2005 showed a somewhat oblique fracture through the distal fibula at the base of the
lateral malleolus, not a fracture of the lateral malleolus itself.
2
3

5 U.S.C. § 8107.

20 C.F.R. § 10.404 (1999).
ed. 2001).

Effective February 1, 2001 the Office began using the A.M.A., Guides (5th

2

represents no impairment. Under the A.M.A., Guides 537, 31 degrees inversion and 18 degrees
eversion represent no impairment. Appellant has no impairment due to loss of toe motion.4
Dr. Lee further consulted the diagnosis-based estimates in the A.M.A., Guides 547, Table
17-33. An extra-articular ankle fracture with four degrees valgus angulation represents no
impairment of the lower extremity.
The A.M.A., Guides 526, Table 17-2, indicates that muscle atrophy may not be used
together with loss of motion for evaluating a single impairment. The A.M.A., Guides states: “If
more than one method can be used, the method that provides the higher rating should be
adopted.”5 The Office followed these instructions and appropriately awarded appellant
compensation for an eight percent impairment of her left lower extremity due to calf atrophy.6
Appellant disagrees with the number of weeks awarded: “Because I suffer with
rheumatoid and osteoarthritis, the break has exacerbated the pain in my left ankle. Also, the
lesions that formed on my ankle have not healed due to diabetes.” A person who has an intraarticular fracture and subsequent rapid onset of arthritis may receive a schedule award for both
arthritis and a diagnosis-based estimate.7 But appellant’s fracture was extra-articular, a
somewhat oblique fracture of the distal fibula located opposite the base of the tibia’s lateral
malleolus. No physician has reported arthritis in appellant’s left ankle, and no physician has
reported that the well-healed closed fracture of the distal fibula is permanently aggravating any
rheumatoid or osteoarthritic condition. In any event, any impairment due to arthritis may not be
combined with impairment due to muscle atrophy or loss of motion.8 Further, no physician has
reported that the October 7, 2005 employment injury caused lesions to form on appellant’s left
ankle. Dr. Lee reported no such lesions when he examined appellant on October 16, 2006. The
Board finds that the Office properly applied the A.M.A., Guides to Dr. Lee’s clinical findings
and properly awarded compensation for an eight percent permanent impairment of the left lower
extremity.
CONCLUSION
The Board finds that appellant has no more than an eight percent permanent impairment
of her left lower extremity causally related to her October 7, 2005 employment injury.

4

A.M.A., Guides 537, Table 17-14.

5

Id. at 527.

6

The Act provides 288 weeks’ compensation for the total loss of a leg. 5 U.S.C. § 8107(c)(2). Partial losses are
proportionate. Id. at § 8107(c)(19). An eight percent impairment of the lower extremity, therefore, entitles
appellant to 23.04 weeks’ compensation, which the Office awarded.
7

A.M.A., Guides 544.

8

Id. at 526, Table 17-2.

3

ORDER
IT IS HEREBY ORDERED THAT the November 13, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 23, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF THE INTERIOR, UPPER
COLORADO REGION, Salt Lake City, UT,
Employer
__________________________________________

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

Docket No. 14-1870
Issued: January 13, 2015

Case Submitted on the Record

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

JURISDICTION
On August 25, 2014 appellant filed an appeal from a July 7, 2014 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury in
the performance of duty on July 24, 2013.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the July 7, 2014 decision. Because the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB
126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration.

FACTUAL HISTORY
On August 1, 2013 appellant, then a 39-year-old engineering equipment operator, filed a
traumatic injury claim (Form CA-1) alleging that at 3:00 p.m. on July 24, 2013, he was operating
a backhoe loading trucks at the employing establishment and the resulting bouncing and jerking
motions caused lower back pain. He stopped work on July 31, 2013.
In a note dated August 5, 2013, Dr. Ravi Bhasker, Board-certified in family medicine,
stated that appellant had reinjured his back. He stated that “[appellant’s] last MRI [magnetic
resonance imaging] [scan] in May 2013 showed the lower back to have L1-L2 and L5-S1 with
subtle minimal disc bulges. [Appellant] continues to have pain that radiates down both legs.”
Dr. Bhasker recommended that appellant try to retire and stated that he should have 40 days off
“to try to help him settle the pain and the radiculopathy.” Appellant also submitted a note signed
by a physician’s assistant dated July 31, 2013.
On September 4, 2013 Dr. Bhasker stated that appellant had injured his back several
years prior but that he had recently injured his back in July 2013. Appellant was given six
months to reach maximum medical improvement and a recommendation for physical therapy.
Dr. Bhasker noted that he would be following appellant on a monthly basis and recommended
that he return to regular duty on September 16, 2013.
In a progress note dated October 2, 2013, Dr. Bhasker stated that appellant injured
himself while working on heavy equipment and that he had a history of low back pain, herniated
discs, and degenerative discs. He stated that appellant was working.
Dr. Bhasker stated in a November 5, 2013 report that appellant had a herniated disc in his
lower back at L4-L5 with radiculopathy and sciatic impingement syndrome. He noted that
appellant continued to work full time.
In a note dated December 4, 2013, Dr. Bhasker stated that appellant was a heavy
equipment operator who injured his back at work. On examination, he observed tenderness at
L3-L4 with limited flexion and extension, as well as a positive left leg raise sign.
Dr. Bhasker noted on January 8, 2014 that appellant continued to perform light duty
while loading heavy equipment, but that he was not using the heavy equipment himself. He
reported that appellant had severe low back pain from his herniated disc.
In a progress note dated February 11, 2014, Dr. Bhasker stated that appellant was
contemplating retirement due to persistent pain. He noted that appellant should continue
medium duty.
Upon examination on February 19, 2014, Dr. Bhasker diagnosed a herniated disc and
degenerative arthritis. He noted that appellant “has not been operating equipment anymore and
usually is driving equipment to one place or another for the company that he works for. I am
giving him a note stating that he can do medium-duty work but no heavy equipment operating,
but, he can go ahead and drive a semi that will take loaded equipment to different parts of the
state.”

2

In a note dated March 11, 2014, Dr. Bhasker stated that appellant had a long history of
low back pain and a herniated disc. He stated that appellant was “attempting to work where he is
a driver for heavy equipment and he does operate heavy equipment, but we have given him a
note that he should only drive at his own pace.”
On April 22, 2014 Dr. Bhasker stated that appellant had “chronic low back pain with
radiculopathy secondary to his work-related job.” He noted that appellant complained on this
visit of mid-epigastric pain that radiated to the back.
By letter dated June 2, 2014, OWCP advised appellant of the deficiencies in his claim. It
stated that his claim had been reopened for consideration because medical bills had exceeded
$1,500.00. OWCP noted that appellant had not provided sufficient evidence to establish that he
actually experienced an incident alleged to have caused injury, and asked that he submit a
response to its questionnaire to substantiate the factual elements of his claim. Appellant was
asked to provide a detailed description of how his injury occurred, the immediate effects of his
injury, and a description of his condition between the date of injury and the date he first received
medical attention. OWCP also asked him to submit medical evidence in support of his claim. It
afforded appellant 30 days to submit this additional evidence. Appellant did not respond.
An additional progress note from Dr. Bhasker, dated May 21, 2014, stated that appellant
continued to have low back pain, and that he had degenerative arthritis of his low back with
radiculopathy into the left leg.
By decision dated July 7, 2014, OWCP denied appellant’s claim on the grounds that the
evidence submitted was not sufficient to establish the factual component of fact of injury, as he
had not responded to its inquiries. It stated that the evidence did not support that the injury or
event occurred as described.
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, that an injury4 was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5

3

5 U.S.C. §§ 8101-8193.

4

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).

3

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.6
With respect to the first component of fact of injury, the employee has the burden of
establishing the occurrence of an injury at the time, place, and in the manner alleged, by a
preponderance of the reliable, probative, and substantial evidence.7 An injury does not have to
be confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury
in the performance of duty, but the employee’s statements must be consistent with the
surrounding facts and circumstances and his or her subsequent course of action.8 An employee
has not met his or her burden of proof of establishing the occurrence of an injury when there are
such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.9
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury and failure to obtain medical
treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in
determining whether a prima facie case has been established.10 However, an employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.11
ANALYSIS
Appellant must establish all of the elements of his claim in order to prevail. He must
prove his employment; the time, place, and manner of injury; a resulting personal injury, and that
his injury arose in the performance of duty.12 Appellant alleged that he sustained a back injury
on July 24, 2013 as a result of bouncing and jerking motions while operating a backhoe loading
trucks. The Board finds that appellant has not met his burden of proof to establish that the
incident of July 24, 2013 occurred as alleged because he has not sufficiently described the time,
place, and manner of his injury.

6

Id. See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

7

William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979).

8

Charles B. Ward, 38 ECAB 667, 670-71 (1987); Joseph Albert Fournier, Jr., 35 ECAB 1175, 1179 (1984).

9

Tia L. Love, 40 ECAB 586, 590 (1989); Merton J. Sills, 39 ECAB 572, 575 (1988).

10

Samuel J. Chiarella, 38 ECAB 363, 366 (1987); Henry W.B. Stanford, 36 ECAB 160, 165 (1984).

11

D.B., 58 ECAB 464, 466-67 (2007); Robert A. Gregory, 40 ECAB 478, 483 (1989).

12

See R.Z., Docket No. 13-1911 (issued September 15, 2014).

4

Appellant did not provide a clear factual statement identifying how operating a backhoe
loading trucks on July 24, 2013 was alleged to have caused his back condition. On June 2, 2014
OWCP advised him of the deficiencies in his claim. It noted that appellant had not provided
sufficient evidence to establish that he actually experienced an incident alleged to have caused
injury, and asked that he submit a response to its questionnaire to substantiate the factual
elements of his claim. Appellant was asked to provide a detailed description of how the injury
occurred, the effects of the injury, and a description of his condition until he sought medical
attention. OWCP afforded him 30 days to submit this additional evidence. Appellant did not
provide any statement responding to OWCP’s inquiry.
The Board notes that appellant has offered no explanation as to why he continued to work
until July 31, 2013, when the injury occurred on July 24, 2013. The Board further notes that
while he sought medical care on July 31, 2013, none of the medical evidence of record
documents that he sustained a work injury on July 24, 2013. These inconsistences in the
evidence of record cast sufficient doubt on an employee’s statements in determining whether a
prima facie case has been established.
Thus, the Board finds that appellant has not sufficiently established the time, place, and
manner of the traumatic incident of July 24, 2013 to meet his burden of proof.13 As appellant has
not established the factual component of his claim, the Board will not address the medical
evidence as it relates to a diagnosis of an incident in connection with the incident of July 24,
2013 or the causal relationship between this incident and appellant’s alleged injury.14
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a traumatic
injury in the performance of duty on July 24, 2013.

13

See C.J., Docket No. 12-1927 (issued March 29, 2013); C.G., Docket No. 11-1897 (issued April 24, 2012).

14

See Bonnie A. Contreras, 57 ECAB 364 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 7, 2014 is affirmed.
Issued: January 13, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS AFFAIRS REGIONAL OFFICE,
New York, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1666
Issued: December 14, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 7, 2007 appellant filed a timely appeal from a March 21, 2007 merit decision of
the Office of Workers’ Compensation Programs denying her traumatic injury claim. 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 established that she sustained an injury on April 21,
2003 in the performance of duty.
FACTUAL HISTORY
On April 23, 2003 appellant, then a 43-year-old program support clerk, filed a traumatic
injury claim alleging that on April 21, 2003 she sustained severe back pain after opening a heavy
drawer while filing documents. She stopped work on April 21, 2003.

In April 2003 statements, the employing establishment controverted the claim because
appellant was “away from the area assigned to perform her duties” at the time of the alleged
incident. Appellant submitted a statement from a coworker who witnessed her “trying to hold on
to a bottom drawer as she fell backwards upon her back.” Another coworker witnessed her lying
on her back in the file area next to an open file drawer.
In a report dated April 23, 2003, Dr. Michelle A. Stern, a Board-certified physiatrist,
related that she treated appellant on that date “for her complaint of severe back pain, which was
sustained while at work on Monday, April 21, 2003.” She opined that appellant should remain
off work for approximately two weeks. Dr. Stern completed a Form CA-16, authorization for
examination and/or treatment on May 8, 2003. She provided a history on the form of appellant
experiencing low back pain at work on April 21, 2003 after opening a file cabinet drawer.
Dr. Stern diagnosed low back pain and lumbar strain and checked “yes” that the condition was
due to the described employment activity. She found that appellant was totally disabled
beginning April 23, 2003.
On May 13, 2003 the Office requested that Dr. Stern provide an explanation of how the
April 21, 2003 incident caused or aggravated a diagnosed condition. On May 14, 2003 Dr. Stern
related that appellant had preexisting partial disability as a result of a 1976 back surgery to
correct severe scoliosis. She stated:
“On April 21, 2003 [appellant] [h]as reported that[,] while pulling a heavy file
draw[er] open, she developed acute low back pain which required an immediate
evaluation in an emergency room. [She] has been unable to work since
April 21, 2003. [Appellant] still continues to have acute low back pain from this
incident and is currently unable to return to work. It is expected that [she] should
be able to return to work performing light duties only on June 6, 2003.”
In an accompanying work restriction evaluation, Dr. Stern diagnosed severe back pain
and listed permanent work restrictions.
In a June 3, 2003 response to the Office’s request for further information, Dr. Stern noted
that in 1976 appellant underwent a fusion at T8 to L4 with Harrington rods for severe scoliosis.
She experienced pain on April 19, 2002 after moving “heaving drawers at work.” Dr. Neil Roth,
an orthopedic surgeon, evaluated appellant on May 2, 2002 and diagnosed lumbar spine flat back
syndrome. He referred appellant to Dr. Stern for treatment. Dr. Stern related:
“Since that time, I have seen [appellant] several times for episodic low back pain.
These other episodes of low back pain occurred in August 2002 and
February 17, 2003. [Appellant’s] acute episodes are controlled with pain
medication and physical therapy. She was able to resume sedentary work duties
on February 24, 2003. [Appellant] had at this time reduced lumbar lordosis, mild
lumbar paraspinal spasms and occasional numbness down her left lower
extremity. On April 21, 2003 [she] reported that[,] while pulling a heavy file
draw[er] open, she again developed acute low back pain, which required an
immediate evaluation in an emergency room. [Appellant] has been unable to
work since April 21, 2003. On examination, on April 23, 2003 she had limited

2

lumbar range of motion due to pain, severe paraspinal spasms, limited motor due
to pain and a positive straight leg test on the left.”
Dr. Stern asserted that an x-ray showed disc narrowing and facet hypertrophy at L3-4.
She opined that appellant could resume limited-duty employment on June 6, 2003.
By decision dated June 13, 2003, the Office denied appellant’s claim on the grounds that
she had not established that the incident occurred at the time, place and in the manner alleged.1
On June 2, 2003 appellant requested an oral hearing which was held on January 23, 2004. In a
decision dated April 19, 2004, the Office hearing representative affirmed the June 13, 2003
decision. He found that appellant did not explain why she opened the wrong drawer of the file
cabinet.
In a statement dated May 21, 2004, appellant’s union representative noted that clerks
inevitably opened a wrong file cabinet drawer. On April 5, 2005 her union representative
requested reconsideration of appellant’s claim. He asserted that the employing establishment
argued that appellant was working in an incorrect area but did not dispute that “she was still
opening drawers that she believed to be where she had to file cases.” In a report dated
October 21, 2004, Dr. Stern described appellant’s history of a back fusion in 1978 and
subsequent diagnosis of flat back syndrome. She related:
“[Appellant] suffers from a temporary aggravation of her preexisting medical
condition when performing certain work duties. [She] was advised not to pull
heavy file drawers as this may aggravate her condition. [Appellant] was seen in
my office again on April 23, 2003. She reported to me that she was assigned a
task at work that caused her to pull open a heavy file drawer. After pulling the
heavy file drawer on April 21, 2003, [she] developed symptoms of acute low back
pain which required an immediate evaluation in an emergency room. On
examination in my office on April 23, 2003, [appellant] had limited lumbar range
of motion due to pain and severe paraspinal spasms. She was again placed off
duty from work and given pain medication to control her symptoms.
“[Appellant] has a preexisting medical condition which causes her to suffer from
episodic low back pain if she has to perform heavy lifting, pulling or twisting and
affects the personal as well as work activity that she can perform. If [she] had to
pull a heavy object, this could cause her to have an acute low back pain
exacerbation. The work situation that [appellant] described can cause her stated
symptoms and be responsible for her pain. Although [she] has a preexisting back
condition, acute episodes of low back pain can occur through inappropriate work
duties for appellant, requiring her to be out of work to recover.”
In a decision dated June 29, 2005, the Office modified its April 19, 2004 decision to
show that the April 21, 2003 work incident occurred as alleged. It noted that mistakenly opening
1

The employing establishment removed appellant from employment on June 9, 2003 because of her inability to
perform her job duties. Appellant was subsequently found to be covered under the Americans with Disabilities Act
by the Merit Systems Protection Board and retroactivity reinstated.

3

the wrong file drawer did not remove a claimant from the performance of duty. The Office
found, however, that the medical evidence was insufficient to establish that appellant sustained a
medical condition due to the accepted work incident.
On September 30, 2005 appellant, through her representative, requested reconsideration.
In a July 19, 2005 report, Dr. Stern discussed her prior treatment of appellant for back pain and
her recommendation that appellant work with modifications. She treated appellant on April 23,
2003 after an employment incident in which she opened a heavy file drawer. Dr. Stern noted her
findings on examination of decreased range of motion and spasms and asserted, “[Appellant’s]
injury that required her to be off work duty due to her back pain from April 21 to June 2003 was
caused by the stress of trying to open a heavy drawer.”
By decision dated March 21, 2007, the Office denied modification of its June 29, 2005
decision. It found that Dr. Stern’s report did not show that appellant had a medical condition to
her accepted fall at work and further noted that back pain was not a diagnosis.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 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 filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.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 an employee sustained a traumatic injury in the performance of
duty, the Office must determine whether “fact of injury” is established. First, an employee has
the burden of demonstrating the occurrence of an injury at the time, place and in the manner
alleged, by a preponderance of the reliable, probative and substantial evidence.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.6 An employee may establish that the employment
incident occurred as alleged, but fail to show that his or her disability and/or condition relates to
the employment incident.7
2

5 U.S.C. §§ 8101-8193.

3

Anthony P. Silva, 55 ECAB 179 (2003).

4

See Ellen L. Noble, 55 ECAB 530 (2004).

5

Delphyne L. Glover, 51 ECAB 146 (1999).

6

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

7

Id.

4

ANALYSIS
Appellant alleged that on April 21, 2003 she sustained a severe back pain after opening a
heavy drawer in a file cabinet. She submitted statements from witnesses to the incident and
sought medical treatment on that date in the emergency room. Appellant has established that the
April 21, 2003 incident occurred at the time, place and in the manner alleged. The issue is
whether the medical evidence establishes that she sustained an injury as a result of this incident.
In an April 23, 2003 report, Dr. Stern indicated that she treated appellant for severe back
pain “sustained while at work” on April 21, 2003. In a May 8, 2003 form report, Dr. Stern
diagnosed lumbar strain and low back pain.8 She checked “yes” that the condition was caused or
aggravated by employment and opined that appellant was disabled from work. The Board has
held, however, that, when a physician’s opinion on causal relationship consists only of checking
“yes” to a form question, without explanation or rationale, that opinion has little probative value
and is insufficient to establish a claim.9
On May 23, 2003 Dr. Stern discussed appellant’s history of developing “acute low back
pain which required an immediate evaluation in the emergency room” after opening a heavy file
drawer. She opined that she was unable to work due to continued low back pain. Low back
pain, however, is a description of a symptom rather than a clear diagnosis of a medical condition
and does not constitute a basis for the payment of compensation.10
In a report dated June 3, 2003, Dr. Stern noted that appellant had a history of a fusion
from T8 to L4 with Harrington rods in 1976 to correct severe scoliosis. She experienced
episodes of low back pain on April 12, August 2002 and February 17, 2003 and on April 21,
2003 after opening a heavy file drawer at work. Dr. Stern examined appellant on April 23, 2003
and found “severe paraspinal spasms, limited motor due to pain and a positive straight leg test on
the left.” She found that appellant was unable to work beginning April 21, 2003 and could
resume limited-duty employment on June 6, 2003. Dr. Stern did not provide a firm diagnosis of
appellant’s condition or fully explain how the described work incident caused or aggravated her
condition. Without a firm diagnosis supported by medical rationale, her report is of little
probative value.11
In a report dated October 21, 2004, Dr. Stern noted that appellant underwent a fusion in
the 1970s to correct scoliosis. The fusion resulted in flat back syndrome. Dr. Stern advised
against appellant opening heavy drawers as it might cause a temporary aggravation of her
8

The Board notes that the Office issued a Form CA-16. A properly executed Form CA-16 creates a contractual
obligation which does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim. See Elaine M. Kreymborg, 41 ECAB 256, 259 (1989). The Office did not address
this issue in its March 21, 2007 decision.
9

Deborah L. Beatty, 54 ECAB 340 (2003).

10

Robert Broome, 55 ECAB 339 (2004).

11

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

5

preexisting condition. Dr. Stern opined that the “work situation that [appellant] described can
cause her stated symptoms and be responsible for her pain.” While Dr. Stern found that the
April 21, 2003 employment incident “can cause” appellant’s symptoms, she did not relate a
specific diagnosed condition to the April 21, 2003 employment incident.12 Thus, Dr. Stern’s
opinion is insufficient to meet appellant’s burden of proof. She listed prophylactic work
restrictions; however, the Board has consistently held that the possibility of a future injury does
not form a basis for the payment of compensation under the Act.13
On July 19, 2005 Dr. Stern again discussed her treatment of appellant on April 23, 2003
after she experienced acute low back pain after opening a heavy file drawer. She stated,
“[Appellant’s] injury that required her to be off work duty due to her back pain from April 21 to
June 2003 was caused by the stress of trying to open a heavy drawer.” Dr. Stern, however, did
not provide a specific diagnosis of appellant’s condition or provide any rationale for her
conclusion. Medical conclusions unsupported by rationale are of diminished probative value.14
An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is a causal relationship between her claimed condition and her
employment.15 Appellant must submit a physician’s report in which the physician reviews those
factors of employment identified by her as causing her condition and, taking these factors into
consideration as well as findings upon examination and the medical history, explain how
employment factors caused or aggravated any diagnosed condition and present medical rationale
in support of his or her opinion.16 She failed to submit such evidence and therefore failed to
discharge her burden of proof.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury on
April 21, 2003 in the performance of duty.

12

Id.

13

Manual Gill, 52 ECAB 282 (2001).

14

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

15

Patricia J. Glenn, 53 ECAB 159 (2001).

16

Robert Broome, 55 ECAB 339 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 21, 2007 is affirmed.
Issued: December 14, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7