United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
A.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Redwood City, CA, Employer
_________________________________________

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

Docket No. 13-857
Issued: August 14, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 26, 2013 appellant, through counsel, filed a timely appeal from a
January 17, 2013 decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to reduce appellant’s compensation
benefits based on her capacity to earn wages in the constructed position of security surveillance
monitor.
On appeal appellant’s attorney asserts that the January 17, 2013 decision is contrary to
fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 7, 2006 appellant, then a 62-year-old distribution clerk, filed an occupational
disease claim alleging that her work duties caused numbness in both hands, tingling in the
fingers, weakness, clumsiness and pain. OWCP accepted trigger finger (acquired) on the left and
bilateral tenosynovitis. Appellant worked modified duty eight hours a day with a lifting
restriction of four pounds.
On September 3, 2009 appellant filed a recurrence of disability claim. The employing
establishment noted that there was no work available within her restrictions after
September 4, 2009. In a September 15, 2009 report, Dr. Alan Hsu, an attending physician,
Board-certified in family and occupational medicine, advised that appellant could perform
modified work with gripping and grasping limited to 15 minutes per hour for a total of 1 hour
and a one-pound lifting restriction.
Appellant was paid wage-loss compensation effective September 4, 2009 and placed on
the periodic rolls.
In October 2009, OWCP referred appellant to Dr. Ramon L. Jimenez, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a November 23, 2009 report,
Dr. Jimenez reviewed the medical record and provided findings on physical examination. He
diagnosed bilateral lateral epicondylitis, mild carpal tunnel syndrome and trigger finger. In an
attached work capacity evaluation, Dr. Jimenez advised that appellant could work eight hours a
day with restrictions on repetitive wrist and elbow motion, pushing and pulling limited to two
pounds for two hours daily.
In April 2010, appellant was referred to Dr. Juon-Kin K. Fong, a Board-certified
orthopedic surgeon, for another second opinion evaluation. In a July 7, 2010 report, Dr. Fong
noted appellant’s complaint of bilateral upper extremity pain. He provided physical examination
findings and diagnosed bilateral repetitive strain injury/carpal tunnel disease syndrome of the
upper extremities with forearm tendinitis, bilateral carpal tunnel syndrome and trigger digits. In
an attached work capacity evaluation, Dr. Fong advised that appellant could work eight hours a
day with permanent restrictions of two hours reaching and reaching above the shoulder, four
hours of repetitive motion of the wrists, and one hour of pushing, pulling and lifting, with a 10pound weight restriction. A November 10, 2010 functional capacity evaluation (FCE)
demonstrated that she could perform light duty for eight hours a day with restrictions to her
physical activity.2
On November 17, 2010 appellant was referred for vocational rehabilitation services with
Kim Page, a vocational rehabilitation counselor. She completed vocational testing on
December 3, 2010 that demonstrated that she had good reading skills and basic math skills. On

2

Sitting and static standing were limited to 30 minutes continuously; walking to 30 to 60 minutes continuously,
occasional climbing, power grasping, simple grasping and fingering; infrequent bending at the waist and squatting;
occasional precision grasping with proper position; less than 4 minutes of continuous reaching overhead; 8 to 10
minutes of continuous midline reaching; 4 minutes of continuous reaching forward; isometric pushing limited to 23
pounds; isometric pulling limited to 25 pounds; and lifting limited to 20 pounds.

2

January 10, 2011 Dr. Fong agreed with the FCE results and reiterated that appellant could work
full time at light duty.
On July 5, 2011 OWCP forwarded a copy of appellant’s FCE, Dr. Fong’s reports, and the
Department of Labor Dictionary of Occupational Titles definitions to Dr. Hsu for comment
regarding appellant’s work restrictions. Dr. Hsu was asked to respond within 30 days.
In October 2011, Ms. Page identified the positions of identification clerk and security
surveillance monitor as within appellant’s physical limitations. She advised that the positions
were reasonably available in the local labor market at entry level annual wages of $10.00 to
$12.00 an hour. On November 10, 2011 appellant completed a one-day training class at The
Loss Prevention Group on the power to arrest, weapons of mass destruction and terrorism
awareness.
On November 28, 2011 Dr. Hsu advised that there had been no significant change in
appellant’s symptoms or clinical presentation since July 31, 2007. He submitted reports
reiterating her work restrictions. Dr. Hsu did not comment on OWCP’s July 5, 2011 letter.
On February 27, 2012 Ms. Page reported that appellant had participated in 90 days of
placement services but was not offered a position.3
On April 28, 2012 OWCP obtained updated salary information from the employing
establishment. By letter dated May 2, 2012, it proposed to reduce appellant’s compensation
based on her capacity to earn wages as a security surveillance monitor. OWCP noted that she
could return to full-time work as a security surveillance monitor within the restrictions identified
by Dr. Fong. It further noted that the labor market survey prepared by Ms. Shaw established that
the position was reasonably available in the local labor market at a weekly wage of $400.00.4
In correspondence dated May 14, 2012, appellant disagreed with the proposed reduction
and restrictions provided by Dr. Fong. She asserted that she could not perform repetitive wrist
movement up to four hours or reach above the shoulder for up to two hours, could not push or
pull 25 pounds for one hour or lift 20 pounds for one hour due to her upper extremity condition.
Appellant noted that she had a work-related back injury with permanent restrictions of no
bending, twisting, pulling, pushing, lifting or carrying more than five pounds with sitting,
standing and walking restricted to one-half hour. She asserted that repetitive movement and
prolonged sitting would aggravate her conditions. In a May 10, 2012 report, Dr. Hsu advised
that he disagreed with Dr. Fong’s recommendations regarding appellant’s work restrictions. He
provided physical restrictions that limited bilateral gripping and grasping to 15 minutes per hour
3

On April 25, 2012 OWCP advised that it had been paying appellant compensation at an erroneous amount
because she was entitled to augmented compensation. Appellant was paid the amount due.
4

The duties of the surveillance systems monitor position were described as: Monitors premises of public
transportation terminals to detect crimes or disturbances, using closed circuit television monitors, and notifies
authorities by telephone of need for corrective action; observes television screens that transmit in sequence views of
transportation facility sites; pushes hold button to maintain surveillance of location where incident is developing,
and telephones police or other designated agency to notify authorities of location of disruptive activity; adjusts
monitor controls when required to improve reception, and notifies repair service of equipment malfunctions. It has a
sedentary strength level and does not require frequent reaching, handling or fingering.

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for a total of 1 hour and a one-pound lifting restriction. Appellant retired on disability effective
May 31, 2012.
By decision dated July 26, 2012, OWCP reduced appellant’s wage-loss compensation
effective July 29, 2012 based on her capacity to earn wages as a security surveillance monitor.
This resulted in a 61 percent loss of wage-earning capacity. OWCP noted that file number
xxxxxx187 was the master case for appellant’s lumbar sprain cases, with subsidiary cases
xxxxxx110 (denied) and xxxxxx291 and xxxxxx225 (closed). An OWCP referral physician had
advised that her lumbar condition had resolved and was at base-line for preexisting lumbar disc
disease.
On July 31, 2012 appellant, through her attorney, requested a hearing held on
November 6, 2012. She testified that she had worked as a nixie clerk at the employing
establishment. Appellant completed two years of college and had several low back claims in
addition to the present claim. Due to her upper extremity and back pain, she was incapable of
performing the security surveillance monitor position. Appellant’s attorney argued that a
conflict in medical opinion had been created between Dr. Fong and Dr. Hsu regarding
appellant’s work restrictions.
On November 28, 2012 Dr. Hsu disagreed with Dr. Fong’s opinion. He indicated that
appellant had permanent restrictions established in July 2007.
In a January 17, 2013 decision, an OWCP hearing representative affirmed the July 26,
2012 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.5 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.6
Section 8115 of FECA and the implementing federal regulations provide that wageearning capacity is determined by the actual wages received by an employee if the earnings fairly
and reasonably represent his or her wage-earning capacity. If the actual earnings do not fairly
and reasonably represent wage-earning capacity or the employee has no actual earnings, his or
her wage-earning capacity is determined with due regard to the nature of his or her injury, the
degree of physical impairment, his or her usual employment, age, qualifications for other
employment, the availability of suitable employment and other factors or circumstances which
may affect his or her wage-earning capacity in his or her disabled condition.7

5

James M. Frasher, 53 ECAB 794 (2002).

6

20 C.F.R. §§ 10.402, 10.403; John D. Jackson, 55 ECAB 465 (2004).

7

5 U.S.C. § 8115; 20 C.F.R. § 10.520; John D. Jackson, id.

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OWCP must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The
medical evidence upon which OWCP relies must provide a detailed description of the condition.8
Additionally, the Board has held that a wage-earning capacity determination must be based on a
reasonably current medical evaluation.9
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP for selection of a position listed in the Department of Labor’s Dictionary of
Occupational Titles or otherwise available in the open market, that fits that employee’s
capabilities with regard to his or her physical limitations, education, age and prior experience.
Once this selection is made, a determination of wage rate and availability in the open labor
market should be made through contact with the state employment service or other applicable
service.10 Finally, application of the principles set forth in Albert C. Shadrick,11 as codified in
section 10.403 of OWCP’s regulations,12 will result in the percentage of the employee’s loss of
wage-earning capacity.13
In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, OWCP must consider the degree of physical impairment,
including impairments resulting from both injury related and preexisting conditions, but not
impairments resulting from postinjury or subsequently acquired conditions. Any incapacity to
perform the duties of the selected position resulting from subsequently acquired conditions is
immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation.14
ANALYSIS
The Board finds that OWCP met its burden of proof to reduce appellant’s compensation
effective July 29, 2012 based on her capacity to earn wages in the constructed position of
security surveillance monitor.
The weight of medical evidence is represented by the July 7, 2010 report from Dr. Fong,
a Board-certified orthopedic surgeon, who provided a second opinion evaluation that established
that appellant was no longer totally disabled. OWCP properly referred appellant for vocational
rehabilitation counseling in November 2010.15 In October 2011, the vocational rehabilitation
8

William H. Woods, 51 ECAB 619 (2000).

9

John D. Jackson, supra note 6.

10

James M. Frasher, supra note 5.

11

5 ECAB 376 (1953).

12

20 C.F.R. § 10.403.

13

James M. Frasher, supra note 5.

14

John D. Jackson, supra note 6.

15

5 U.S.C. § 8104(a); see Ruth E. Leavy, 55 ECAB 294 (2004).

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counselor, Ms. Page, identified positions that conformed to appellant’s capabilities. OWCP
determined that appellant had the capacity to earn wages as a security surveillance monitor,
based on the opinion of Dr. Fong.
Dr. Fong noted appellant’s complaint of bilateral upper extremity aches and pains. He
provided examination findings and diagnosed bilateral repetitive stress injury/carpal tunnel
disease syndrome of the upper extremities with forearm tendinitis, bilateral carpal tunnel
syndrome and trigger digits. In an attached work capacity evaluation, Dr. Fong advised that
appellant could work eight hours a day with permanent restrictions of two hours reaching and
reaching above the shoulder, four hours of repetitive motion of the wrists, and one hour of
pushing, pulling and lifting, with a 10-pound weight restriction. A November 10, 2010 FCE
demonstrated that appellant could perform light duty for eight hours per day with restrictions to
her physical activity.16 On January 10, 2011 Dr. Fong agreed with the FCE results and opined
that appellant could work light duty on a full-time basis.
The security systems monitor position was classified as within the sedentary strength
category with negligible reaching, handling and fingering.17 Ms. Page, the vocational
rehabilitation counselor, advised that the position was reasonable available in the local labor
market with an entry-level hourly wage of $10.00 to $12.00.
Appellant disagreed with the proposed reduction and submitted a report from Dr. Hsu
who disagreed with Dr. Fong’s opinion regarding appellant’s physical restrictions. Dr. Hsu
indicated that appellant’s work restrictions had been in place since July 2007. The restrictions
provided by him indicate that bilateral gripping and grasping were limited to 15 minutes per hour
for a total of 1 hour and a one-pound lifting restriction. The physical demands of the security
surveillance monitor position listed above comport with the restrictions provided by Dr. Hsu and
those of Dr. Fong.
The Board also notes that appellant asserted that she had restrictions based on a back
condition. Preexisting conditions must be considered in a constructed wage-earning capacity
determination.18 The record, however, contains no medical evidence that established that
appellant had any physical restrictions as a result of her back condition. Other than stating that
she experienced back pain, she did not submit medical evidence addressing why her back
condition would prevent her from performing the duties of the security surveillance position.19
The Board finds that OWCP considered the proper factors, such as availability of suitable
employment and appellant’s physical limitations, usual employment, age and employment
qualifications, in determining that the position of security surveillance monitor represented her
wage-earning capacity.20 The evidence of record establishes that she had the requisite physical
16

Supra note 2.

17

Supra note 4.

18

Gary L. Moreland, 54 ECAB 638 (2003).

19

See Darletha Coleman, 55 ECAB 143 (2003).

20

James M. Frasher, supra note 5.

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ability, skill and experience to perform the position and that such a position was reasonably
available within the general labor market of her commuting area. OWCP therefore properly
determined that the position of security surveillance monitor reflected appellant’s wage-earning
capacity, and using the Shadrick formula,21 properly reduced her compensation effective
July 29, 2012.22
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP met its burden to justify reduction of appellant’s wage-loss
compensation on the grounds that she had the capacity to earn wages in the constructed position
of security surveillance monitor.
ORDER
IT IS HEREBY ORDERED THAT the January 17, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 14, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

21

Supra note 11.

22

James Smith, 53 ECAB 188 (2001).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.F., Appellant
and
U.S. POSTAL SERVICE, CAROL STREAM
POST OFFICE, Carol Stream, IL, Employer
__________________________________________

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

Docket No. 16-1541
Issued: January 13, 2017

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 July 26, 2016 appellant filed a timely appeal from a March 31, 2016 merit decision
and a July 7, 2016 nonmerit 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
ISSUES
The issues are: (1) whether appellant has established an emotional condition in the
performance of duty; and (2) whether OWCP properly denied appellant’s request for
reconsideration under 5 U.S.C. § 8128(a).

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2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence with her notice of appeal to the Board. The
Board’s jurisdiction is limited, however, to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1).
Appellant may submit this evidence to OWCP, together with a formal request for reconsideration, pursuant to 5
U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

FACTUAL HISTORY
On June 30, 2015 appellant, then a 57-year-old mail processor filed a notice of
occupational disease (Form CA-2) claiming that she sustained an emotional condition in the
performance of duty due to a pattern of harassment by management. In accompanying
statements, she alleged that supervisor K.B. yelled at her on April 19, 2015 regarding taking her
lunch late and threatened to take away her position. Appellant alleged that on May 11, 2015,
supervisors K.B. and A.P. yelled at her and removed her time card because they thought she did
not work on Mother’s Day, but appellant claimed that she had reported to work that day. She
asserted that, by removing her time card from the rack on May 11, 14, and 28, and June 15 to
22, 2015, managers were retaliating against her for filing an Equal Employment Opportunity
(EEO) complaint.
In a July 1, 2015 letter, supervisor A.P. asserted that on April 19, 2015 she was walking
toward appellant and K.B. at the time of the alleged altercation, but that she did not hear K.B.
yell or scream. Instead, appellant approached A.P. “screaming and yelling about her time card
missing” and alleging that someone had interfered with her money. Appellant later apologized
for yelling.
Dr. Dadhija Patel, an attending osteopath Board-certified in internal medicine, provided a
June 11, 2015 letter relating appellant’s account of harassment at work, causing anxiety.
In a July 10, 2015 letter, OWCP advised appellant of the additional evidence needed to
establish her claim, including factual corroboration of the alleged harassment, and a statement
from her attending physician explaining how and why those factors could have caused the
claimed emotional condition. Appellant was afforded 30 days to submit such evidence.
In response, appellant submitted additional statements reiterating her prior allegations.
She also provided chart notes dated June 10, 2015 to March 7, 2016 from Dr. Pradeep Thapar, an
attending Board-certified psychiatrist, finding her disabled for work due to major depressive
disorder and generalized anxiety. Dr. Thapar prescribed medication.3
In a July 8, 2015 letter, a union official noted meeting with manager J.G. on
June 29, 2015. J.G. asserted that she was unaware that appellant had filed EEO complaints
against K.B. She explained that appellant’s time card could have been missing because she “did
not leave it in the rack in Automation as [appellant was] instructed by” supervisor W.P. J.G.
called W.P. and verified that he had instructed appellant to leave her time card in the Automation
division, and not to take it with her to the Priority Mail division. J.G. noted that since appellant
began leaving her time card in Automation as instructed, there had not been a problem with it not
being in the rack when she clocked in.
In an e-mail received on August 7, 2015, manager J.G. denied yelling at appellant,
harassing her, or pressuring her to drop her EEO claim.
In a July 29, 2015 e-mail, supervisor W.P. related that appellant had accused supervisors
of moving or hiding her time card. W.P. explained that as appellant worked in different
3

Appellant also submitted medication management notes from a nurse practitioner. She claimed compensation
(Form CA-7) from July 9 to 24, 2015, and from December 26, 2015 to April 1, 2016.

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divisions and often arrived after work was assigned at noon, it was sometimes difficult for her to
recall where she had last clocked out. W.P. instructed appellant to leave her time card in the rack
at the Automation unit, punch out for lunch at Automation, “and to end [appellant’s] tour leaving
her time card in the card area.” After appellant began complying with these instructions, she had
no difficulty locating her card and had not accused others of moving it.
By decision dated March 31, 2016, OWCP denied the claim, finding that appellant had
not established any compensable factors of employment. It found that she had not established
the April 19 or May 11, 2015 incidents as factual, as supervisory witness statements contradicted
her version of events. Additionally, OWCP found that appellant submitted insufficient evidence
to establish that management personnel had hidden her time card as alleged. As appellant had
failed to establish any compensable work factors, OWCP did not address the medical evidence.
On April 25, 2016 appellant requested reconsideration. She submitted April 6 and
May 4, 2016 notes from Dr. Patel diagnosing major depressive disorder and generalized anxiety
disorder. Appellant also filed claims for compensation from April 16 to June 24, 2016.
By nonmerit decision dated July 7, 2016, OWCP denied reconsideration, finding that the
evidence submitted was irrelevant or immaterial to appellant’s burden to establish compensable
work factors. It noted that the medical evidence was irrelevant as appellant had not established
any compensable employment factors.
LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment, but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA. On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.4
Appellant has the burden of establishing by the weight of the reliable, probative, and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by employment factors.5 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.6
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP as part of its
4

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125 (1976).
5

Pamela R. Rice, 38 ECAB 838, 841 (1987).

6

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

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adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician, when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.7 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.8
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be probative and reliable evidence that harassment or discrimination did in fact
occur.9 Mere perceptions of harassment, retaliation, or discrimination are not compensable
under FECA.10
ANALYSIS -- ISSUE 1
Appellant has not attributed her emotional condition to the performance of her regular or
specially assigned duties as a mail processor under Cutler.11 Rather, this case is solely based on
her allegation that her supervisors yelled at her on April 19 and May 11, 2015, and retaliated
against her for filing an EEO complaint by moving or hiding her time card on May 11, 14, 25,
and 28, and June 15 to 22, 2015. On July 20, 2015 OWCP advised appellant of the type of
evidence needed to establish her claim. Appellant provided additional statements reiterating her
allegations and medical evidence. OWCP denied the claim on March 31, 2016, finding that she
had failed to establish any of her allegations as factual or compensable.
Appellant failed to submit any witness statements or other evidence corroborating her
account of events. Instead, Supervisor A.P. provided a witness statement asserting that neither
she nor K.B. yelled at appellant on April 19, 2015 as alleged. Rather, they claimed it was
appellant who had yelled at them.
Regarding appellant’s allegation that management moved or hid her time card in
retaliation for her filing an EEO claim, Manager J.G. and Supervisor W.P. submitted letters
explaining that appellant often left her time card in the wrong work unit, leading her to believe
that someone had moved it. When she followed instructions to leave her time card in the
Automation area rack, she no longer experienced difficulties with locating her card.
The Board finds that appellant has not met her burden of proof to establish any of her
allegations as factual or compensable. Appellant submitted no evidence corroborating her
account of events and the witness statements tend to negate her recollections. As she has not

7

See Charles D. Edwards, 55 ECAB 258 (2004); Norma L. Blank, 43 ECAB 384 (1993).

8

Lori A. Facey, 55 ECAB217 (2004); Norma L. Blank, id.

9

Marlon Vera, 54 ECAB 834 (2003).

10

Kim Nguyen, 53 ECAB 127 (2001).

11

See supra note 3.

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established any compensable factor of employment, the medical evidence need not be
addressed.12
On appeal, appellant contends that additional evidence accompanying her appeal request
is sufficient to establish her claim. However, the Board may not consider evidence for the first
time on appeal that was not before OWCP at the time it issued the final decision in the case.13
LEGAL PRECEDENT -- ISSUE 2
To require the office to reopen a case for merit review under section 8128(a) of FECA,14
section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.15 Section 10.608(b) provides that
when an application for review of the merits of a claim does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.16
In support of a request for reconsideration, a claimant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.17 Appellant need only
submit relevant, pertinent evidence not previously considered by OWCP.18 When reviewing an
OWCP decision denying a merit review, the function of the Board is to determine whether
OWCP properly applied the standards set forth at section 10.606(b)(3) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.19
ANALYSIS -- ISSUE 2
Appellant requested reconsideration on April 18, 2016. She did not offer an argument.
In support of her request, appellant submitted claims for wage-loss compensation and medical
reports from Dr. Patel. OWCP denied reconsideration by decision dated July 7, 2016, finding
that her request form, claim forms, and Dr. Patel’s reports were irrelevant.
The Board finds that OWCP appropriately denied reconsideration. The critical issue in
the March 31, 2016 merit decision was that appellant had not established any compensable
factors of employment. To be relevant, the evidence submitted on reconsideration must address
12

Margaret S. Krzycki, 43 ECAB 496 (1992).

13

Supra note 2.

14

5 U.S.C. § 8128(a).

15

20 C.F.R. § 10.606(b)(3).

16

Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008).

17

Helen E. Tschantz, 39 ECAB 1382 (1988).

18

See supra note 14. See also Mark H. Dever, 53 ECAB 710 (2002).

19

Annette Louise, 54 ECAB 783 (2003).

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that issue. The compensation claim forms and the medical evidence are not relevant to
establishing appellant’s allegations as factual. Therefore, they do not comprise a basis for
reopening the case.20
A claimant may be entitled to a merit review by submitting pertinent new and relevant
evidence or argument. Appellant did not do so in this case. Therefore, pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not established an emotional condition in the
performance of duty. The Board further finds that OWCP properly denied appellant’s request
for further merit review of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 7 and March 31, 2016 are affirmed.
Issued: January 13, 2017
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

20

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DELIVERY CENTER, Milwaukee, WI,
Employer
__________________________________________

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

Docket No. 18-0607
Issued: October 18, 2018

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 January 30, 2018 appellant filed a timely appeal from an October 16, 2017 merit
decision and a December 28, 2017 nonmerit 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 the claim.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish a left knee injury
causally related to the accepted August 25, 2017 employment incident; and (2) whether OWCP’s
Branch of Hearings and Review properly denied appellant’s request for review of the written
record, pursuant to 5 U.S.C. § 8124(b)(1), as untimely filed.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 25, 2017 appellant, then a 44-year-old mail handler assistant, filed a traumatic
injury claim (Form CA-1) alleging that, on that date she, was pulling on an all-purpose container
(APC) while at work when she sustained a left knee strain. She stopped work on August 25, 2017
and returned to work on August 29, 2017.
In support of her claim, appellant submitted an August 25, 2017 emergency services excuse
form signed by Kelly Anderson, a physician assistant, which indicated that appellant was excused
from work until August 27, 2017.
By development letter dated September 11, 2017, OWCP requested that appellant submit
additional factual and medical evidence in support of her claim including a rationalized medical
opinion from a qualified physician regarding causal relationship. It attached a questionnaire for
her completion and afforded her 30 days to submit the necessary evidence.
On September 25, 2017 appellant responded to the development questionnaire and
provided further details with regard to how her injury occurred. She noted that the driver had taken
an APC off his truck, as she grabbed it and started pulling it toward the staging area she could not
place pressure on her knee.
Appellant submitted physical therapy notes from her initial visit on September 27, 2017.
The physical therapist noted that appellant had chronic pain in her left knee.
By decision dated October 16, 2017, OWCP denied appellant’s claim. It determined that,
although appellant had established that the incident occurred as alleged, she had not submitted
medical evidence supporting a diagnosed condition causally related to the accepted incident.
On November 29, 2017 appellant requested review of the written record by a representative
of OWCP’s Branch of Hearings and Review. She submitted additional evidence from her physical
therapists.
In a decision dated December 28, 2017, the hearing representative denied appellant’s
request for a review of the written record as it was untimely filed. She also reviewed the request
at her discretion, and determined that the issue could equally well be addressed by requesting
reconsideration from the district office and submitting evidence not previously considered.
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking benefits under FECA2 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged, and that any specific
condition or disability claimed is causally related to the employment injury.3

2

Id.

3

S.S., Docket No. 16-1760 (issued January 23, 2018).

2

To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether the 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 is whether the employee actually experienced the employment incident that
allegedly occurred.4 The second component is whether the employment incident caused a personal
injury.5 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.6
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.7 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.8 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).9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established her traumatic injury claim, as she has
not established a diagnosed condition causally related to the accepted employment incident.
Appellant failed to submit any medical evidence to support her claim. The evidence of
record prior to OWCP’s October 16, 2017 merit decision consisted of reports from a physician
assistant and a physical therapist. The Board has held that reports from physician assistants and
physical therapists do not constitute competent medical evidence under FECA as these
practitioners are not considered physicians as defined by FECA. Therefore, these reports are
insufficient to establish appellant’s claim.10

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5
John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). 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. Victor J. Woodhams, 41 ECAB 345,
352 (1989). 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). Id.
6

Shirley Temple, 48 ECAB 404, 407 (1997).

7

Robert G. Morris, 48 ECAB 238 (1996).

8

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

See R.E., Docket No. 16-1916 (issued March 8, 2018).

10
5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by law. Allen C.
Hundley, 53 ECAB 551, 554 (2002) (physician assistants); P.T., Docket No. 17-0374 (issued April 19, 2018) (physical
therapists).

3

Consequently, because appellant has failed to submit medical evidence to establish that she
sustained an employment-related diagnosed medical condition causally related to the accepted
employment incident, she has not met her burden of proof.11
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b) (1) of FECA concerning a claimant’s entitlement to a hearing before an
OWCP representative, provides in pertinent part, “Before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his claim
before a representative of the Secretary.12 Section 10.615 of OWCP’s federal regulations,
implementing this section of FECA, provides that a claimant who requests a hearing can choose
between two formats, either an oral hearing or a review of the written record by an OWCP hearing
representative.13 As section 8124(b)(1) is unequivocal in setting forth the time limitation for
requesting a hearing, a claimant is not entitled to a hearing as a matter of right unless the request
is made within the requisite 30 days.14 The date of filing is fixed by postmark or other carrier’s
date marking.15
The Board has held that OWCP, in its broad discretionary authority in the administration
of FECA, has the power to hold hearings in certain circumstances where no legal provision was
made for such hearings and that OWCP must exercise this discretionary authority in deciding
whether to grant a hearing.16 Specifically, the Board has held that OWCP has the discretion to
grant or deny a hearing request on a claim involving an injury sustained prior to the enactment of
the 1966 amendments to FECA which provided the right to a hearing,17 when the request is made
after the 30-day period for requesting a hearing,18 when the request is for a second hearing on the
same issue,19 and when the request is made after a reconsideration request was previously

11

See E.G., Docket No. 17-0265 (issued May 25, 2018).

12

5 U.S.C. § 8124(b)(1).

13

20 C.F.R. § 10.615.

14

Ella M. Garner, 36 ECAB 238, 241-42 (1984).

15

See 20 C.F.R. § 10.616(a).

16

Henry Moreno, 39 ECAB 475, 482 (1988).

17

Rudolph Bermann, 26 ECAB 354, 360 (1975).

18

Herbert C. Holley, 33 ECAB 140, 142 (1981).

19

Johnny S. Henderson, 34 ECAB 216, 219 (1982).

4

submitted.20 In these instances, OWCP will determine whether a discretionary hearing should be
granted, and if not, will so advise the claimant with reasons.21
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for review of the written
record as untimely filed pursuant to 5 U.S.C. § 8124(b)(1).
A request for hearing or review of the written record must, as noted above, be made within
30 days after the date of the issuance of a final OWCP decision. Appellant’s unsigned request for
review of the written record was date stamped as having been received by OWCP on November 28,
2017, which is more than 30 days after its October 16, 2017 decision. The imaged copy of the
envelope that is in the record before the Board does not contain a visible postmark date. Where
the postmark is nonexistent or not legible, the hearing request will be deemed timely unless OWCP
has kept evidence of the date of delivery on the record reflecting that the request is untimely.22 As
noted, the appeal request form is date stamped as having been received on November 28, 2017.
Accordingly, the evidence regarding the date of delivery reflects that appellant’s request is
untimely filed. Therefore, OWCP’s hearing representative properly found in her December 28,
2017 decision that appellant was not entitled to a review of the written record as a matter of right
because her request was not made within 30 days of its October 16, 2017 decision.23
OWCP’s hearing representative then properly exercised her discretion by noting that she
had considered the matter and denied appellant’s request for a review of the written record because
the issue could equally well be addressed through a request for reconsideration.24 The Board has
held that the only limitation on OWCP’s authority is reasonableness and an abuse of discretion.
Abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deduction
from established facts.25 In this case, the evidence of record does not indicate that OWCP abused
its discretion in its denial of appellant’s request for a review of the written record.
Appellant contends that she submitted her request for review of the written record late
because she was waiting for hospital reports. However, as explained above, OWCP properly
denied appellant’s request for a review of the written record. Accordingly, the Board finds that

20

R.H., Docket No. 07-1658 (issued December 17, 2007); S.J., Docket No. 07-1037 (issued September 12, 2007).
Section 10.616(a) of OWCP’s regulations provides that the claimant seeking a hearing must not have previously
submitted a reconsideration request (whether or not it was granted) on the same decision. 20 C.F.R. § 10.616(a).
21

L.W., Docket No. 18-0249 (issued May 8, 2018).

22

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written Record, Chapter
2.1601.2(a) (October 2011).
23

See Z.D., Docket No. 17-1315 (issued October 12, 2017).

24

M.H., Docket No. 15-0774 (issued June 19, 2015).

25

Daniel J. Perea, 42 ECAB 214, 221 (1990).

5

OWCP properly denied appellant’s request for a review of the written record as untimely filed
under 5 U.S.C. § 8124(b)(1).
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left knee
condition causally related to the accepted August 25, 2017 employment incident. The Board
further finds that OWCP’s Branch of Hearings and Review properly denied appellant’s request for
review of the written record as untimely filed.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 28 and October 16, 2017 are affirmed.
Issued: October 18, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Atwater, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1570
Issued: December 18, 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 May 22, 2007 appellant timely appealed the April 20, 2007 merit decision of the
Office of Workers’ Compensation Programs, which granted a schedule award. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the schedule
award.
ISSUE
The issue is whether appellant has more than a seven percent impairment of the right
lower extremity.
FACTUAL HISTORY
Appellant, a 45-year-old senior correctional officer, injured his right knee and right wrist
on December 8, 2003 when he fell from a moving vehicle. In January 2004 the Office accepted
the claim for right wrist sprain, right knee sprain, medial collateral ligament strain, lateral
meniscus tear and rupture of the anterior cruciate ligament. On February 3, 2004 appellant
underwent a partial lateral meniscectomy and anterior cruciate ligament reconstruction. He

returned to full-time, modified duty on March 29, 2004, and resumed his regular employment
duties on May 1, 2004.
In an August 27, 2004 report, Dr. John S. Holmes, an attending Board-certified
orthopedic surgeon, advised that appellant’s right knee condition was permanent and stationary.
He noted that appellant had been performing his job without difficulty or complaints.
Dr. Holmes also reported that the surgical scar was well healed, there was good range of motion,
no effusion and the ligaments were intact. He advised that appellant did not need any specific
restrictions with respect to his work activities. However, Dr. Holmes felt that provisions should
be made for future medical care, but he did not schedule appellant for a return appointment.
On November 20, 2006 appellant filed a claim for a schedule award. He did not submit
any evidence of permanent impairment; therefore, the Office referred appellant for evaluation by
Dr. Borislav Stojic, a Board-certified orthopedic surgeon, who examined appellant on
February 23, 2007.
The Office referred the record, including Dr. Stojic’s February 23, 2007 examination
findings, to a medical adviser for a determination of whether appellant had an employmentrelated permanent impairment. In a report dated March 30, 2007, the Office medical adviser
found that appellant had a seven percent permanent impairment of the right lower extremity.
Based on Dr. Stojic’s recent examination findings, the medical adviser noted that there was no
range of motion deficit or impairment due to atrophy or weakness. However, appellant’s pain
complaints represented a four percent impairment of the right lower extremity. The medical
adviser noted that applying a diagnostic-based rating method would yield a higher overall
impairment. This took into account appellant’s February 3, 2004 partial lateral meniscectomy
(two percent) and his patellofemoral arthritis (five percent), for a combined right lower extremity
impairment of seven percent.1
By decision dated April 20, 2007, the Office granted appellant a schedule award for
seven percent impairment of the right lower extremity. The award covered a period of 20.16
weeks from February 3 to June 24, 2006.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act set forth the number of weeks
of compensation to be paid for the permanent loss of use of specified members, functions and
organs of the body.2 The Act, however, does not specify the manner by which the percentage
loss of a member, function or organ shall be determined. To ensure consistent results and equal
justice under the law, good administrative practice requires the use of uniform standards
applicable to all claimants. The implementing regulations have adopted the American Medical
Association, Guides to the Evaluation of Permanent Impairment as the appropriate standard for
1

There was no impairment associated with the February 3, 2004 cruciate ligament reconstruction as there was no
evidence of residual instability.
2

For a total loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. § 8107(c)(2)
(2000).

2

evaluating schedule losses.3 Effective February 1, 2001, schedule awards are determined in
accordance with the A.M.A., Guides (5th ed. 2001).4
ANALYSIS
The Office medical adviser reviewed Dr. Stojic’s February 23, 2007 examination
findings and properly applied those findings to the A.M.A., Guides. The most advantageous
method of rating appellant’s lower extremity impairment was by combining his patellofemoral
arthritis impairment (five percent) with the diagnosis-based estimate (DBE) rating for the partial
lateral meniscectomy (two percent) performed on February 2, 2003.5 Pursuant to Table 17-31,
which rates arthritis impairments based on roentgenographically determined cartilage intervals,
usually an x-ray finding of arthritis is necessary for evaluation of impairment. However, a
footnote to Table 17.31 at page 599 states:
“In an individual with a history of direct trauma, a complaint of patellofemoral
pain and crepitation on physical examination, but without joint space narrowing
on x-rays, a … five percent lower extremity impairment is given.”
This arthritis impairment is properly combined with appellant’s diagnosis-based impairment
rating for partial lateral meniscectomy of two percent under the cross-usage chart at Table 17-2.
The pain and/or sensory impairment due to the lower extremity peripheral nerve injury
(Grade 3 involving the femoral nerve, four percent) represented a lesser impairment than the pain
attributable to patellofemoral arthritis (five percent).6 Therefore, the Office medical adviser
properly recommended that the combined diagnosed-based estimate and arthritis impairment
rating form the basis of appellant’s schedule award. The seven percent impairment rating
provided by the Office medical adviser on March 30, 2007 is consistent with Dr. Stojic’s
examination findings and conforms to the A.M.A., Guides (5th ed. 2001). As such, the Office
medical adviser’s impairment rating constitutes the weight of the medical evidence.7 Appellant
has not presented any evidence that he has greater than a seven percent impairment of the right
lower extremity.
CONCLUSION
Appellant has not demonstrated that he has greater than a seven percent impairment of
the right lower extremity.

3

20 C.F.R. § 10.404 (2007).

4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

5

See A.M.A., Guides 544, Table 17-31; A.M.A., Guides 546, Table 17-33.

6

See A.M.A., Guides 482, Table 16-10; A.M.A., Guides 552, Table 17-37.

7

See Bobby L. Jackson, 40 ECAB 593, 601 (1989).

3

ORDER
IT IS HEREBY ORDERED THAT the April 20, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 18, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Little Rock, AR, Employer
)
___________________________________________ )
J.J., Appellant

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

Docket No. 08-548
Issued: June 13, 2008

Case Submitted on the Record

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

JURISDICTION
On December 19, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated October 19, 2007 which denied appellant’s claim
for a traumatic injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
sustained injury on August 13, 2007.
FACTUAL HISTORY
On August 15, 2007 appellant, then a 48-year-old rural carrier, filed a claim alleging that
on August 13, 2007 she sustained injury to her leg, arm and back when her mail truck flipped
over. Appellant stopped work on August 13, 2007. She returned to light duty on September 7,
2007 and to full duty on September 12, 2007.

In support of her claim, appellant submitted an August 13, 2007 Arkansas Motor Vehicle
Crash Report, which noted that she reached down to retrieve mail from the floor board of her
vehicle and drove off the roadway and the vehicle flipped over. The report noted that appellant
was transported by emergency services to Jefferson Regional Medical Center. A witness
statement confirmed that appellant’s truck flipped over and landed in a ditch. Appellant
submitted duty status reports from Dr. Justiss Lindsey, a Board-certified family practitioner,
dated August 16 and 22, 2007. He provided clinical findings of left lower extremity weakness
and left leg swelling and recommended two weeks of physical therapy. A diagnosis on the
August 16, 2007 report is not legible. Dr. Lindsey advised that appellant was totally disabled.
On September 4, 2007 he noted clinical findings of right lower extremity contusions and noted
that the diagnosis was due to the injury. Dr. Lindsey advised that appellant could resume lightduty work on September 3, 2007, subject to restrictions.
By letter dated September 17, 2007, the Office advised appellant of the factual and
medical evidence needed to establish her claim. I requested that she submit a comprehensive
medical report from her treating physician which included a reasoned explanation as to how the
specific work factors or incidents identified by appellant had contributed to her claimed injuries.
Appellant resubmitted the duty status reports from Dr. Lindsey which were previously of
record. On September 11, 2007 he returned appellant to work full time without restrictions.
In a decision dated October 19, 2007, the Office denied appellant’s claim on the grounds
that the medical evidence was not sufficient to establish that she sustained an injury related to the
August 13, 2007 motor vehicle accident.1
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 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. 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 actually sustained an 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 which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
1

5 U.S.C. §§ 8101-8193.

2

Id.

3

Gary J. Watling, 52 ECAB 357 (2001).

4

Michael E. Smith, 50 ECAB 313 (1999).

2

component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.5
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 the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.6 The weight of medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.7
The Office’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.8 In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.9
ANALYSIS
The Office properly found that the August 13, 2007 motor vehicle incident occurred as
alleged. The Board finds, however, that the medical evidence is insufficient to establish that
appellant sustained an injury causally related to the August 13, 2007 incident. On September 17,
2007 the Office advised appellant of the medical evidence needed to establish her claim.
Appellant did not submit a rationalized medical report from an attending physician addressing
how the motor vehicle accident caused or contributed to an injury.
The duty status reports of Dr. Lindsey noted clinical findings of left lower extremity
weakness and left leg swelling and recommended physical therapy. He advised that appellant
was totally disabled. However, Dr. Lindsey did not provide any specific diagnosis. In an
undated return to work note, he noted treating appellant from August 22 to September 3, 2007.
Dr. Lindsey’s reports are insufficient to establish the claim as he did not address how the
5

Id.

6

Leslie C. Moore, 52 ECAB 132 (2000).

7

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (July 2000).

9

Id.

3

August 13, 2007 accident cause or contributed to any specific condition or disability.10
Therefore, these reports are insufficient to meet appellant’s burden of proof.
On September 4, 2007 Dr. Lindsey noted clinical findings of right lower extremity
contusions and advised that appellant could resume light-duty work subject to restrictions. On
September 11, 2007 he returned appellant to work full time without restrictions. However, as
noted, these reports did not provide a history of injury or specifically address whether appellant’s
motor vehicle accident caused a diagnosed medical condition.11 Therefore, these reports are
insufficient to meet appellant’s burden of proof.
The Office procedures recognize that in clear-cut traumatic injury claims, such as a fall
resulting in a broken arm, a physician’s affirmative statement is sufficient and no rationalized
opinion on causal relationship is needed. The facts of this case do not provide for such a
situation as there was no firm diagnosis or records of appellant’s initial medical treatment on
August 13, 2007 at Jefferson Regional Medical Center. Appellant has not submitted a reasoned
medical opinion on causal relation between a diagnosed condition and the accepted work-related
incident.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.12 Causal relationships must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence and the Office
therefore properly denied appellant’s claim for compensation.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained leg, back and arm injury causally related to her August 13, 2007 employment
incident.13

10

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
11

Id.

12

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

13

After the October 19, 2007 Office decision appellant submitted additional evidence. However, the Board may
not consider new evidence on appeal; see 20 C.F.R. § 501.2(c). However, this does not preclude appellant from
requesting reconsideration from the Office and submitting additional evidence in support of her reconsideration
request.

4

ORDER
IT IS HEREBY ORDERED THAT the October 19, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 13, 2008
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, HASTINGS POST
OFFICE, Hastings, MN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0361
Issued: September 11, 2020

Case Submitted on the Record

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

JURISDICTION
On December 4, 2019 appellant filed a timely appeal from a July 19, 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 appellant has met her burden of proof to establish left carpal tunnel
syndrome (CTS) causally related to the accepted December 1, 2018 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 19, 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 June 6, 2019 appellant, then a 51-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on December 1, 2018 she developed CTS of the left wrist due to
repetitive motion while in the performance of duty. On the reverse side of the claim form, the
employing establishment acknowledged that she was injured in the performance of duty, however,
noted that the claim should have been filed as an occupational disease claim (Form CA-2).
Appellant did not stop work.
In a development letter dated June 11, 2019, OWCP informed appellant of the deficiencies
in her claim. It advised her of the type of factual and medical evidence needed to establish her
claim and provided a questionnaire for her completion. OWCP afforded appellant 30 days to
submit the necessary evidence.
Dr. Michael R. Johnson, a Board-certified orthopedic surgeon, noted in a February 28,
2019 medical report that appellant initially presented with a right hand condition and had
undergone right trigger finger release to treat a cyst over the top of the A1 pulley on the right hand.
He further noted a prior diagnosis of right CTS. On physical examination Dr. Johnson found
numbness and tingling of the left hand. He diagnosed left CTS, as well as right middle trigger
finger, and right volar ganglion cyst at the right middle finger metacarpal (MCP) joint.
A June 5, 2019 electromyography (EMG) scan of the left hand was performed by
Dr. Karen A. Truitt, Board-certified in neurology. Dr. Truitt reported that the EMG scan revealed
a moderate median neuropathy at the left wrist, which was consistent with the clinical diagnosis
of left CTS.
Dr. Johnson noted, in a June 13, 2019 report, that appellant sustained a work-related injury
on December 1, 2018 and was scheduled for surgery on July 9, 2019.3 In a medical report of even
date, he noted that she presented with left upper extremity numbness and tingling, which was
thought to be CTS. Dr. Johnson indicated that appellant’s symptoms began on December 1, 2018,
either from exposure to a cold work environment and/or the repetitive use of her left hand at work.
He related that her symptoms were worse with activities throughout the day. Dr. Johnson’s
physical examination revealed some decreased sensation to light touch in the median nerve
distribution in the left hand. He diagnosed left CTS and opined that appellant’s repetitive use of
her left hand at work had “likely” caused or contributed to her condition.
In an attending physician’s report (Form CA-20) dated June 13, 2019, Dr. Johnson
indicated that appellant had no history of preexisting injury or disease with her left hand and
reiterated that she sustained a work-related injury on December 1, 2018. He repeated his diagnosis
of left CTS. Dr. Johnson checked a box marked “Yes” indicating that appellant’s condition was
caused or aggravated by the claimed December 1, 2018 employment incident and recommended
carpal tunnel release surgery. In a duty status report (Form CA-17) of even date, he diagnosed
CTS and advised that she could return to full-time work without restrictions.

3
OWCP received a June 26, 2019 general medical and surgical authorization request for neuroplasty of left wrist
to treat appellant’s diagnosed left CTS.

2

By decision dated July 19, 2019, OWCP denied appellant’s claim. It accepted that the
December 1, 2018 employment incident occurred, as alleged; however, it found that she had not
established that her diagnosed condition was causally related to the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,5 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.6 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.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.8
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.10

4

Supra note 2.

5

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6
L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

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

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish left CTS
causally related to the accepted December 1, 2018 employment incident.
In a February 28, 2019 medical report, Dr. Johnson diagnosed right middle trigger finger,
right volar ganglion cyst at the right middle finger MCP joint, and left CTS, but offered no history
of injury or opinion regarding causal relationship between appellant’s left CTS and the accepted
December 1, 2018 employment incident. The Board has held that medical evidence which does
not offer an opinion on causal relationship is of no probative value to the issue of causal
relationship.11 Therefore, this report is insufficient to establish appellant’s claim.
In medical reports and a duty status report dated June 13, 2019, Dr. Johnson consistently
noted examination findings, including numbness and tingling of the left hand, and diagnosed left
CTS. He opined that appellant’s repetitive use of her left hand at work on December 1, 2018 had
“likely” caused or contributed to left CTS. However, Dr. Johnson’s opinion is speculative in
nature. The Board has held that medical opinions that are speculative and equivocal are of
diminished probative value.12 Moreover, Dr. Johnson did not provide a pathophysiological
explanation as to how the repetitive motion and use of appellant’s left hand while at work either
caused or contributed to her diagnosed left CTS.13 Lacking a rationalized explanation, these
reports are insufficient to meet her burden of proof.
In a June 13, 2019 Form CA-20, Dr. Johnson diagnosed left carpal tunnel and checked a
box marked “Yes” that appellant’s condition was caused or aggravated by an employment activity.
The Board has held, however, that medical evidence on causal relationship that consists only of a
physician checking “Yes” to a medical form question on whether the claimant’s condition was
related to the history given is of little probative value.14 Although the report contains a medical
diagnosis, without any explanation or rationale for the conclusion reached, such report is also
insufficient to establish causal relationship.15
Appellant also submitted the results of a June 5, 2019 EMG scan. The Board has held,
however, that diagnostic studies, standing alone, lack probative value on the issue of causal
relationship as they do not address whether the employment incident caused any of the diagnosed
conditions.16 This report is, therefore, insufficient to establish the claim.

11

L.T., Docket No. 18-1603 (issued February 21, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018).

12

H.A., Docket No. 18-1455 (issued August 23, 2019).

13

L.T., Docket No. 19-1100 (issued November 13, 2019); M.V., Docket No. 18-0884 (issued December 28, 2018).

14

S.F., Docket No. 16-1276 (issued October 10, 2017); N.L., Docket No. 17-0454 (issued April 6, 2017); Lillian M.
Jones, 34 ECAB 379, 381 (1982).
15

N.V., Docket No. 17-0107 (issued July 3, 2017); Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box
marked yes in a form report, without additional explanation or rationale, is insufficient to establish causal relationship).
16

K.S., Docket No. 19-1623 (March 19, 2020); M.J., Docket No. 19-1287 (issued January 13, 2020).

4

As none of the medical evidence appellant submitted constitutes rationalized medical
evidence sufficient to establish causal relationship between the accepted December 1, 2018
employment incident and her diagnosed left CTS, the Board finds that she has not met her burden
of proof.17
On appeal appellant asserts that she submitted additional medical evidence. However, as
previously noted, evidence not before OWCP at the time of its final decision will not be considered
by the Board for the first time on appeal.18
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish left CTS
causally related to the accepted December 1, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the July 19, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 11, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

17

R.G., Docket No. 18-0792 (issued March 11, 2020).

18

Supra note 2.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Macon, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0896
Issued: September 13, 2016

Case Submitted on the Record

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

JURISDICTION
On March 26, 2016 appellant filed a timely appeal from a September 28, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an injury causally related to an accepted
October 6, 2014 employment incident.
On appeal, appellant alleges that she properly told her supervisor of the injury and
completed the required forms.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 1, 2014 appellant, then a 48-year-old city letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that on October 6, 2014, she was delivering mail when a dog
approached her in attack mode, she then twisted her right knee as she tried to escape. She
alleged that this incident also aggravated a previous injury of August 26, 2008 to her lower back
and left knee. In a handwritten statement submitted with the claim, appellant indicated that
while escaping a dog attack on her route, she turned abruptly and twisted her right knee. She
indicated that she refused medical attention at that time. Appellant stopped work on
November 17, 2014.
The employing establishment controverted appellant’s claim.
The employing
establishment contended that appellant failed to provide objective, well-reasoned medical
evidence which demonstrated that her claimed conditions were causally related to factors of her
federal employment.
Appellant had a prior claim before OWCP in xxxxxx524 that was accepted for a left leg
contusion resulting from an August 26, 2008 employment injury. Appellant also submitted some
diagnostic studies that predated her current alleged injury. A September 3, 2008 magnetic
resonance imaging (MRI) scan of appellant’s left knee was normal. An April 23, 2009 MRI scan
revealed possible minor degenerative change at L4-5 with bulge.
In support of her claim, appellant submitted a November 17, 2014 report wherein
Dr. Shahram Rezaiamiri, a Board-certified neurosurgeon, noted that appellant injured her back
on October 26, 2008 while she was pulling a dolly up a set of stairs at a local high school. He
noted that appellant has been dealing with a myriad of treatment modalities over the past several
years including lumbar injections in 2010 (which did not give her significant relief), physical
therapy, NSAIDs, narcotics, and bracing. He indicated that the worsening happened in a gradual
fashion and appellant denied any new trauma or accident. He noted that appellant’s symptoms
were worse than at the time of the initial accident. Dr. Rezaiamiri assessed appellant with
lumbar radiculopathy and low back pain -- lumbago.
By letter dated December 11, 2014, OWCP informed appellant that additional medical
evidence was necessary to support her claim and afforded appellant 30 days to provide this
evidence. Appellant responded to this letter by submitting medical evidence and further
statements.
In an October 10, 2014 note, addressed to the employing establishment, appellant
indicated that while exiting her vehicle a dog attacked her. She alleged that the dog did not bite
her, but that she turned abruptly and twisted her right knee. Appellant signed a statement
indicating that she did not seek medical attention nor did she wish to file a claim at that time.
In an October 27, 2014 initial report, Dr. Robert Karsch, a Board-certified orthopedic
surgeon, noted that appellant saw him for left knee symptoms associated with an anterior knee
pain. He noted that the symptoms began on August 26, 2008 when appellant pulled a dolly up
stairs into a school to deliver mail, the handle pulled off, and she fell backwards twisting her left
knee and further injuring her low back. Dr. Karsch also noted that appellant has been on limited

2

duty since the date of her original injury with no walking more than two hours. He further noted
that last month appellant was chased by a dog and had to turn and run quickly to get away, and
has been limping since that time because her left leg radicular symptoms were present again.
Dr. Karsch listed his impression as possible tear of medial meniscus of left knee and ordered a
new MRI scan. In a December 23, 2014 addendum, he clarified that appellant reinjured her knee
on October 6, 2014 while working and being chased by a dog. Dr. Karsch asked to correct the
prior note that indicated that she was injured “last month” while attempting to get away from a
dog.
On December 12, 2014 appellant accepted OWCP’s offer to work as a modified city
carrier for 2.25 hours a day.
In a December 19, 2014 note, Dr. Tiffany Sanders, a physician Board-certified in
emergency medicine, indicated that appellant was treated in the emergency department on
December 19, 2014 and that she may return to work on December 22, 2014.
In an attending physician’s report (Form CA-20) dated January 2, 2015, Dr. Rezaiamiri
diagnosed appellant with bulging lumbar disc and checked a box indicating that he believed that
the condition was caused or aggravated by her employment. He specifically noted that on
October 6, 2014 appellant claimed that she was frightened by a dog at work and that a sudden
trauma would aggravate this type of injury. Dr. Rezaiamiri noted that appellant was partially
disabled.
In January 7, 2015 responses to questions from OWCP, appellant indicated that while
walking on the grass to deliver mail, a dog leaped off a porch and charged her in an attacking
manner. She stated that, following postal regulations, she pulled her dog spray and positioned
her satchel in front of her while slowly backing up. Appellant stated that while doing so she lost
her balance on the crest that joins the two yards together and the dog retreated back to the porch.
She stated that when she was losing her footing, she turned abruptly to gain her balance and that
was when she felt something pop. Appellant noted that she was already experiencing some
discomfort and aching from her previous job-related injury dated August 26, 2008 that was
documented in OWCP file number xxxxxx524.
In a statement received by OWCP on January 13, 2015, B.R., a coworker, indicated that
appellant told her on October 6, 2014 that a dog had chased her, that she twisted her leg trying to
get away from the dog, and that she advised her supervisor in writing. In another statement, S.J.,
a coworker, indicated that she speaks to appellant on a daily basis and that on October 6, 2014
appellant spoke to her about a dog that approached her in an attacking manner on her route that
date, told her that she hurt her knee due to being startled by the dog, and stated that she was in
pain. She continued to talk to her about how the pain was not subsiding.
By decision dated January 16, 2015, OWCP denied appellant’s claim, finding that she
had not established that the incident occurred as alleged. It also noted that the medical evidence
did not establish that appellant sustained a diagnosed medical condition causally related to the
employment incident.

3

By letter dated and received by OWCP on January 30, 2015, appellant, through counsel,
requested a telephonic hearing before an OWCP hearing representative.
A December 26, 2014 MRI scan of the lumbar spine was interpreted by Dr. Richard E.
Barlow, a Board-certified radiologist, as showing mild early lumbar spinal stenosis at L4-5
where there is diffuse bulge of the disc annulus that is slightly eccentric to the right and bulging
into the right neural foramen.
In a March 16, 2015 report, Dr. Samuel B. Milton, a Board-certified physiatrist,
discussed appellant’s injuries of August 25, 2008 and October 6, 2014. He assessed appellant
with complaints of low back pain. Dr. Milton noted a normal neurological examination with the
left anterior knee pain, MRI scan evidence of severe patellofemoral osteoarthritis with no
evidence of internal derangement, and chronic low back pain. He noted MRI scan evidence of
minor disc bulging with some lateral recess stenosis to the right that correlated with appellant’s
symptomology. Dr. Milton opined that based on medical documentation appellant appeared to
have complaints of low back pain that had not resolved as a result of her injury from August 25,
2008 and as a result has ongoing restrictions. He noted that he was unable to relate with the
medical documentation appellant’s patellofemoral arthritis to her incident of August 25, 2008.
In a June 30, 2015 report from a follow-up visit, Dr. Karsch listed his impression of the
left knee as degenerative joint disease -- patellofemoral, and noted that appellant would be a
candidate for patellofemoral replacement in the future if she failed conservative treatment
options. He noted that appellant was currently disabled from work from her spine physician.
At the hearing held on August 5, 2015, appellant described how her injury occurred,
noted that she promptly reported the injury to her supervisor, and discussed her medical
treatment. She stated that she told Dr. Rezaiamiri about the dog attack when she first saw him.
Appellant testified that she was currently not working. She noted that at the time of the injury
she was working modified duty.
By decision dated September 28, 2015, the hearing representative found that incident had
occurred as alleged. However, she denied appellant’s claim because appellant had not met her
burden of proof to establish that her claimed medical conditions were causally related to the
accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence2 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.3

2

J.P., 49 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

3

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.4
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.5 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.6 An employee may establish that the employment incident
occurred as alleged but fail to show that his or her disability or condition relates to the
employment incident.7
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.8 The weight of the
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.9
ANALYSIS
OWCP has accepted that the employment incident of October 6, 2014 occurred as
alleged. However, it denied appellant’s claim because she did not establish an injury causally
related to the accepted injury. The Board finds that appellant did not meet her burden of proof to
establish that the accepted October 6, 2014 employment incident resulted in an injury.
Appellant did not seek medical attention for the October 6, 2014 employment incident
until October 27, 2014, at which point she saw Dr. Karsch. Dr. Karsch noted in this report that
appellant was chased by a dog during her employment the prior month and had to turn and run
quickly to get away, and has been limping since that time. In an addendum dated December 23,
2014, he issued a correction and noted that appellant reinjured her knee when she was chased by
a dog on October 6, 2014, and that his prior statement that she was chased the previous month
was incorrect. Dr. Karsch’s general statement that appellant reinjured her left knee on October 6,
2014 does not constitute rationalized medical opinion evidence linking a medical diagnosis to the
accepted employment incident. He did not provide a specific medical diagnosis indicating that a
medical condition was caused or aggravated by the October 6, 2014 incident, nor did he provide
an explanation as to how this aggravation occurred. A mere conclusion without the necessary
4

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

5

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

6

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

7

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindshi, 57 ECAB 418 (2006).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

9

James Mack, 43 ECAB 321 (1991).

5

rationale explaining how and why the physician believes that a claimed employment incident
resulted in a diagnosed condition is insufficient to meet a claimant’s burden of proof.10
Dr. Rezaiamiri did check a box marked “yes” on his attending physician’s report
indicating that appellant’s condition of bulging lumbar disc was related to the October 6, 2014
employment incident, and noted that appellant informed him that she was frightened by a dog at
work on that date, and that a sudden trauma would aggravate this type of injury. The Board has
held that a physician’s opinion that consists of checking a box on a form report without more by
way of medical rationale, is of diminished probative value in establishing causal relationship.11
No medical rationale was provided by Dr. Rezaiamiri on the issue of causal relationship.12 His
brief statement on the January 2, 2015 attending physician’s report is unrationalized. Although
Dr. Rezaiamiri’s statement is generally supportive of a causal relationship, he did not explain the
process by which appellant’s particular work incident caused or contributed to the diagnosed
condition.13 Furthermore, his statement is inconsistent with his earlier November 17, 2014 report
wherein he specifically noted that appellant indicated that her lower back and leg pain happened
in a gradual fashion and that appellant denied any new trauma or accident.
Although Dr. Milton mentioned the October 6, 2014 dog incident, he did not provide an
opinion on whether there was any causal relationship between this accepted employment incident
and appellant’s back and knee conditions. Dr. Sanders merely indicated that appellant received
treatment in the emergency room on December 19, 2014 and may return to work on
December 22, 2014. She did not address appellant’s medical condition. The Board notes that
medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.14 The diagnostic studies,
including the December 26, 2014 MRI scan report by Dr. Barlow, do not address a causal
relationship.15 Accordingly, the medical evidence is insufficient to establish causal relationship
between appellant’s current medical condition and the accepted employment incident.
The statements by appellant and by B.R. and S.J. are also insufficient to establish causal
relationship. Lay persons are not competent to render medical opinions.16 As noted, causal
relationship is a medical question that generally requires rationalized medical opinion evidence
to resolve the issue.17 The Board has held that the mere fact that a condition manifests itself
during a period of employment is insufficient to establish causal relationship; temporal
10

G.M., Docket No. 14-2057 (issued May 12, 2015).

11

N.K., Docket No. 15-1532 (issued March 11, 2016).

12

Id.

13

See J.S., Docket No. 14-818 (issued August 7, 2014).

14

F.T., Docket No. 15-1109 (issued June 17, 2016).

15

See G.M., supra note 10.

16

James A. Long, 10 ECAB 538 (1989).

17

See S.C., Docket No. 16-0002 (issued November 25, 2015).

6

relationship alone will not suffice.18 Furthermore, appellant’s personal belief that her
employment activities either caused or contributed to her condition is insufficient, by itself, to
establish causal relationship.19
As the evidence is insufficient to establish a causal relationship, appellant has failed to
meet her burden of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established an injury causally related to the
accepted October 6, 2014 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 28, 2015 is affirmed.
Issued: September 13, 2016
Washington, DC

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

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

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

18

Id.

19

See D.I., 59 ECAB 158, 162 (2007); Phillip L. Barnes, 55 ECAB 426, 440 (2004).

7