United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS, REGIONAL OFFICE, Deer Park, WA,
Employer
__________________________________________

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

Docket Nos. 14-1804 &
15-314
Issued: April 17, 2015

Case Submitted on the Record

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

JURISDICTION
On August 12, 2014 appellant, through counsel, filed a timely appeal of a June 23, 2014
nonmerit decision of the Office of Workers’ Compensation Programs’ (OWCP) decision denying
further merit review. The Board assigned Docket No. 14-1804 to this appeal. Because over 180
days elapsed between the most recent merit decision on that issue, which was on January 14,
2014, to the filing of this appeal, the Board lacks jurisdiction to review the merits of that issue,
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3. Appellant filed a second appeal on November 25,
2014 of an October 8, 2014 merit decision of OWCP, to which the Board assigned Docket No.
15-314. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of that decision.
ISSUES
The issues are:
(1) whether OWCP properly denied appellant’s request for
reconsideration on the merits pursuant to 5 U.S.C. § 8128(a) on June 23, 2014 in Docket
1

5 U.S.C. § 8101 et seq.

No. 14-1804; and (2) whether appellant has met her burden of proof to establish disability
beginning June 16, 2013 due to her January 20, 2013 employment injury in Docket No. 15-314.
FACTUAL HISTORY
On February 6, 2013 appellant, then a 39-year-old part-time field representative, filed a
traumatic injury claim alleging that she was injured in an employment-related motor vehicle
accident. The employing establishment stated that she worked a variable job averaging 3.87
hours a day for the 52 weeks prior to her employment injury. OWCP accepted appellant’s claim
for disturbance of skin sensation on the left, sprain of the pelvis, wrist sprain on the left, sprain of
the left hip and thigh, displacement of cervical intervertebral disc without myelopathy, sprain of
the chest wall muscle, and sprain of the lumbar back.
Dr. Edgar A. Figueroa, a Board-certified family practitioner, completed a report on
February 22, 2013 and found that appellant could return to work effective that date with
restrictions to four hours a day. Appellant returned to part-time light duty on February 24, 2013
working four hours a day.
Dr. Jonathan J. Wilson, an osteopath, completed a note dated March 7, 2013 and stated
that appellant could work four hours a day with restrictions from February 22 through
April 8, 2013. On April 8, 2013 he stated that she was experiencing increasing pain. Appellant
had returned to her census work but was also working in another nonfederal position as a
noxious weed inspector for the State of Washington. She reported difficulty driving and stated
that everything got much worse after a long car ride to the coast for vacation from March 28
through 30, 2013. Dr. Wilson completed a duty status report and indicated that appellant could
perform part-time light-duty work. He determined that her disability was unchanged on
April 23, 2013.
Appellant filed claims for compensation requesting wage-loss compensation from
March 7 through April 20, 2013. On her claim form, she indicated that she worked as a noxious
weed inspector on April 1 through 18, 2013. In a letter dated May 10, 2013, OWCP requested
additional medical information supporting appellant’s disability for her federal employment
during the periods claimed.
Dr. Wilson completed a report dated May 20, 2013 and noted that appellant worked hard
in her home garden over the weekend and drove to Sullivan Lake, a six-hour drive, which made
things worse. On May 28, 2013 he found that she could work three to four hours a day with
restrictions. Dr. Wilson completed a report on June 19, 2013 and noted that on May 20, 2013
appellant had become overwhelmed with telephone interviews and hurt her neck and arm.
Appellant stated that bouncing down dirt roads caused her pain and that driving was still scary to
her. She stated that she was having trouble with the activities of daily living. Appellant reported
that she had returned to full-time four-hour-a-day work at the employing establishment.
Appellant submitted a copy of her job description as a noxious weed inspector which
included driving her personal vehicle through inspection areas, stopping, noting weeds, and
making personal contact with property owners. She frequently aided the owners in removing
weeds with a shovel. Appellant was responsible for 500 property owners in her inspection area.

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In April 2013 she worked 64 hours and in May 2013 she worked 91 hours. At this time
appellant’s pay rate was $12.50 an hour.
By decision dated June 20, 2013, OWCP denied appellant’s claim for intermittent periods
of compensation commencing March 7, 2013 and continuing. It stated that she submitted
evidence dated through May 29, 2013, but found that she had not submitted the necessary
medical opinion evidence to establish that she was totally disabled from employment for the
periods in question. Appellant, through counsel, requested an oral hearing before an OWCP
hearing representative on July 11, 2013.
OWCP referred appellant for a second opinion evaluation on May 14, 2013 with
Dr. James Schwartz, a Board-certified orthopedic surgeon. In his June 24, 2013 report, which
was received subsequent to the June 20, 2013 OWCP decision, Dr. Schwartz noted appellant’s
history of injury and reported her symptoms of leg and back pain. He diagnosed cervical and
lumbar strain related to the January 20, 2013 employment injury. Dr. Schwartz found that
appellant had no residuals of her employment injury in that her physical examination was
strikingly normal. He opined that she had no restrictions for her job duties and could work an
eight-hour day. Dr. Schwartz stated that with extended driving appellant might need to stop
every hour to get out and move around. He stated that her complaints were areas of tenderness
which was consistent with cervical and lumbosacral strain injuries.
Dr. Wilson examined appellant on June 26, 2013 and continued to find that she could
work four hours a day or full time at the employing establishment. He also completed a duty
status report of the same date with the same findings.
Dr. T. Daniel Dibble, a Board-certified anesthesiologist, examined appellant on July 9,
2013 and noted that she received epidurals on May 7 and 28, 2013. He noted that she performed
physical labor for an hour, stretched, worked for four hours, and sat for four hours.
Appellant filed additional claims for compensation dated May 4 and 27, and June 1, 2013
requesting wage-loss compensation from April 21 through June 1, 2013. She indicated that she
worked as a field inspector on April 23, 24, 29, and 30, 2013. Appellant also worked as a field
inspector on May 5, 2013 and from May 7 through 15 and 18, 2013, as well as from May 20
through 25, and May 28 through 31, 2013.
In a decision dated July 15, 2013, OWCP again denied appellant’s claim for intermittent
wage-loss compensation beginning March 7, 2013.2 It stated that the medical evidence dated
through July 5, 2013 did not support her disability for work. Appellant, through counsel,
requested an oral hearing on July 19, 2013.
Dr. Wilson completed a report on July 29, 2013 and again noted that appellant was
working four hours a day. Appellant worked hard in her home garden over the weekend and
took a six-hour drive which increased her pain. Dr. Wilson stated that she was stable, but in pain
with her current work regimen. He provided a duty status report and indicated that appellant was
2

OWCP did not further reference the specific period of disability denied and did not mention the June 20, 2013
decision.

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unchanged and working four hours a day.
September 13 and October 29, 2013.

Dr. Wilson provided similar reports dated

Appellant testified at the oral hearing on December 2, 2013 regarding both, the June 20
and July 15, 2014, decisions issued by OWCP, stating that it was impossible for her to work only
four hours a day and complete both of her jobs. In a report dated December 2, 2013, Dr. Wilson
found her incapable of driving or using a computer. He also reported that appellant could not
focus on work during periods of increased pain which made driving unsafe.
Appellant filed additional claims for compensation beginning November 13, 2013
claiming periods of total disability commencing June 16 through November 16, 2013. She
provided the dates that she worked as a noxious weed inspector. The employing establishment
noted on these forms that appellant had requested a lower case load. In a letter dated
December 16, 2013, OWCP requested that she supply additional medical evidence explaining
how her claimed disability was caused or aggravated by her employment injuries.
By decision dated January 14, 2014, an OWCP hearing representative noted both OWCP
decisions, June 20 and July 15, 2013, and found that appellant had not established that she was
totally disabled commencing March 7, 2013. The decision found that the medical evidence did
not support appellant’s disability for work due to her accepted employment-related condition
commencing March 7, 2013. The hearing representative affirmed OWCP’s June 20, 2013 and
July 15, 2013 decisions.
In a decision dated January 21, 2014, OWCP denied appellant’s claims for compensation
on or after June 16, 2013. It found that Dr. Wilson had provided work restrictions based on
subjective complaints, but failed to provide contemporaneous medical evidence to support
temporary total disability. Counsel requested an oral hearing on January 24, 2014.
In a report dated February 24, 2014, Dr. Wilson reported that appellant made subjective
complaints on October 8 and 29, 2013 including pains and muscle spasms. Appellant requested
two to three months to recuperate. On February 24, 2014 she informed Dr. Wilson that she had
quit her position at the employing establishment and had not worked since early October 2013.
Appellant, through counsel, requested reconsideration on April 17, 2014 of the
January 14, 2014 decision of the hearing representative and submitted an additional report from
Dr. Wilson dated March 24, 2014. Dr. Wilson reviewed her history of injury and the conditions
for which he provided treatment. He reported that in late April 2013 and early May 2013
appellant attempted to return to work on a part-time basis for four hours a day, which escalated
her pain level and paresthesia. In a note dated February 24, 2014, Dr. Wilson reported that on
February 22, 2013 she did not return to work as she tried to go hiking and experienced left side
pain. Appellant also drove for one hour and experienced tingling down her left leg and arm as
well as low back and cervical pain.
By decision dated June 23, 2014, OWCP declined to reopen appellant’s claim for
consideration of the merits finding that the evidence submitted in support of her April 17, 2014
request for reconsideration of the January 14, 2014 decision of the hearing representative was not
relevant as it did not address her disability for work on or after March 7, 2013.

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Dr. Wilson completed a report on July 2, 2014 and noted that appellant was still working
for the noxious weed board and having continued issues with her neck and left arm.
Appellant testified at the oral hearing on August 8, 2014 regarding the January 21, 2014
OWCP decision. She stated that she was employed four and a half months out of the year with
the local noxious weed board. Appellant stated that she was no longer working at the employing
establishment. She stopped working in October 2013 because of difficulty using her computer
and driving so that she could not perform her normal field representative duties. Appellant
described her preinjury employment as working for the employing establishment for 14 days a
month eight hours a day and then worked an additional eight hours on those days for the noxious
weed board. After she completed the employing establishment assignment, she worked the
remaining days of the month as a noxious weed inspector for eight hours a day. Following her
injury and in keeping with Dr. Wilson’s restrictions, appellant earned only half her wages from
both employers. She stated that the employing establishment gave her only 10 cases rather than
the 25 she received before her accident. Appellant testified that she worked four hours a day
almost every day so that she could get her work done for both employing establishment’s, but
she never worked more than four hours a day for either employing establishment.
The employing establishment responded on September 11, 2014, stating that appellant
was a permanent employee working intermittent hours. Appellant had no guarantee of hours as a
field representative. The employing establishment stated that the lost time was calculated by
calculating her average hours during the 52 weeks prior to the injury.
By decision dated October 8, 2014, the hearing representative found that appellant had
not submitted the necessary medical evidence addressing the claimed periods of disability to
establish entitlement to wage-loss compensation on and after June 16, 2013 and affirmed
OWCP’s January 21, 2014 decision.
LEGAL PRECEDENT -- ISSUE 1
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.3
Section 10.606(b) of the Code of Federal Regulations provide that a claimant may obtain review
of the merits of the claim by submitting in writing an application for reconsideration which sets
forth arguments or evidence and shows that OWCP erroneously applied or interpreted a specific
point of law; or advances a relevant legal argument not previously considered by OWCP; or
includes relevant and pertinent new evidence not previously considered by OWCP.4 Section
10.608 of OWCP’s regulations provide that when a request for reconsideration is timely, but
does not meet at least one of these three requirements, OWCP will deny the application for
review without reopening the case for a review on the merits.5

3

5 U.S.C. §§ 8101-8193, 8128(a).

4

20 C.F.R. § 10.606.

5

Id. at § 10.608.

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ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for disturbance of skin sensation on the left, sprain of
the pelvis, wrist sprain on the left, sprain of the left hip and thigh, displacement of cervical
intervertebral disc without myelopathy, and sprain of the chest wall muscle and sprain of the
lumbar back. Appellant requested wage-loss compensation. OWCP denied her claim for
compensation beginning on March 7, 2013 on the grounds that she had not submitted the
necessary medical opinion evidence to establish disability due to her accepted employment
injuries. She requested reconsideration and submitted additional evidence. OWCP found that
the submitted evidence was not new, relevant, and pertinent to the issue for which appellant’s
claim was denied, whether she had submitted sufficient medical opinion evidence to establish a
causal relationship between her periods of disability claimed and her accepted employment
injuries. It declined to reopen her claim for consideration of the merits on June 23, 2014.
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a point of law. Appellant has also not advanced a relevant legal argument not
previously considered.
In order to present pertinent, new, and relevant evidence in support of her claim,
appellant must submit medical opinion evidence attributing her disability for work on or after
March 7, 2013 to her accepted employment injuries. The Board finds that she failed to submit
such pertinent, new, and relevant evidence. Appellant submitted two reports from Dr. Wilson
which OWCP had not previously considered dated February 24 and March 24, 2014. In the note
dated February 24, 2014, Dr. Wilson stated that she did not return to work the week of
February 22, 2013 as she tried to go hiking and experienced left side pain. Appellant also drove
for one hour on February 21, 2013 and experienced tingling down her left leg and arm as well as
low back and cervical pain. This note also repeats Dr. Wilson’s earlier assessments that she felt
that she was unable to work without providing medical opinion evidence that she was in fact
disabled due to her accepted employment injuries. On March 24, 2014 Dr. Wilson completed a
report stating that in late April and early May 2013 appellant attempted to return to work on a
part-time basis for four hours a day, which escalated her pain level and paresthesia. This report
does not address a specific period of disability or provide a medical opinion as to the causal
relationship between appellant’s diagnosed disability and her employment activities. The report
is merely repetitious of other statements by Dr. Wilson that appellant felt that she reported
subjective complaints of pain which precluded her from performing her federal duties. As the
Board has held, evidence which is duplicative and repetitious of evidence already in the case
record is of no evidentiary value and does not constitute a basis for reopening a case.6
The Board finds that as appellant has not met any of the criteria, OWCP properly refused
to reopen her claim for consideration of the merits.

6

See Eugene F. Butler, 36 ECAB 393, 398 (1984).

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LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA7 has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.8 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.9
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.10 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.11 The Board will not require OWCP to pay compensation
for disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.12
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.13 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical 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.14 Neither the fact that
a disease or condition manifests itself during a period of employment nor the belief that the

7

5 U.S.C. §§ 8101-8193.

8

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

9

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity.)
10

See Fereidoon Kharabi, 52 ECAB 291 (2001).

11

Id.

12

Id.

13

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

14

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

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disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.15
ANALYSIS -- ISSUE 2
OWCP accepted appellant’s claim for disturbance of skin sensation on the left, sprain of
the pelvis, wrist sprain on the left, sprain of the left hip and thigh, displacement of cervical
intervertebral disc without myelopathy, and sprain of the chest wall muscle and sprain of the
lumbar back. The employing establishment indicated that she worked an average of 3.87 hours a
day for the 52 weeks prior to her employment injury. Appellant requested wage-loss
compensation beginning on June 16, 2013 and OWCP denied her claim for compensation
because she had not submitted the necessary medical opinion evidence to establish disability due
to her accepted employment injuries.
In his June 24, 2013 report, Dr. Schwartz, the second opinion physician, discussed
appellant’s history of injury. He diagnosed cervical and lumbar strain related to the January 20,
2013 employment injury. Dr. Schwartz found that appellant had no residuals of her employment
injury in that her physical examination was strikingly normal. He opined that she had no
restrictions for her job duties and could work an eight-hour day. This report does not support
appellant’s claim for disability on or after June 16, 2013. Dr. Schwartz determined that appellant
could work eight hours a day with no restrictions.
Appellant submitted a series of reports from Dr. Wilson indicating that she could work
four hours a day. On June 19, 2013 Dr. Wilson completed a duty status report and indicated that
she could work four hours a day. He reported that appellant normally worked four hours a day at
the employing establishment. Dr. Wilson never opined that she was totally disabled due to her
accepted employment injury. There is no medical evidence in the record supporting appellant’s
claim that she was unable to work for the four hours a day in her part-time employment. The
Board finds that she has not submitted the necessary medical opinion evidence to establish that
she was totally disabled from her date-of-injury position.
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
As appellant’s request for reconsideration did not comply with the requirements of
section 8128(a) of FECA and section 10.606(b) of OWCP’s regulations, the Board finds that
OWCP properly declined to reopen her claim for consideration of the merits on June 23, 2014 in
Docket No. 14-1804. The Board further finds that there is no medical evidence in Docket No.
15-314 supporting appellant’s claim that she was disabled beginning June 16, 2013, causally
related to her January 20, 2013 employment injury.

15

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

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ORDER
IT IS HEREBY ORDERED THAT the June 23, 2014 decision of the Office of
Workers’ Compensation Programs in Docket No. 14-1804 is affirmed and that the October 8,
2014 decision of the Office of Workers’ Compensation Programs in Docket No. 15-314 is also
affirmed.
Issued: April 17, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
DEPARTMENT OF THE ARMY, FORT
LEONARD WOOD, Nixa, MO, Employer
__________________________________________
Appearances:
Daniel M. Goodkin, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 14-1560
Issued: December 21, 2015

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On July 8, 2014 appellant, through counsel, filed an application for review of a May 22,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). The appeal
was docketed as No. 14-1560.
Appellant, a 45-year-old clinical psychologist, filed an occupational disease claim (Form
CA-2) on April 17, 2013. She alleged that she became sick after flying to a work conference in
August 2012 and subsequently, her health continued to deteriorate. Appellant also alleged that,
although she had requested reasonable accommodations for her previously diagnosed chronic
fatigue syndrome, the employing establishment refused to make these accommodations. She
asserted that she developed chronic fatigue syndrome, fibromyalgia, and dysautonomia due to
employment factors, which resulted in anxiety and mood disorder. Appellant stated that she first
became aware that these conditions were caused or aggravated by her employment on
October 1, 2012.
In determining whether a claimant has discharged his or her burden of proof to establish
an employment-related occupational disease claim, OWCP is required by statute and regulations

to make findings of fact.1 OWCP procedures further specify that a final decision must include
findings of fact and provide clear reasoning which allows the claimant to “understand the precise
defect of the claim and the kind of evidence which would tend to overcome it.”2 These
requirements are supported by Board precedent.3
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 a part of its
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.4
The Board finds that the May 22, 2014 decision of OWCP does not contain adequate
findings of fact and reasoning. The hearing representative merely stated that appellant’s claim
was predicated on her contentious relationship with her employer.
In the absence of such findings and reasoning, appellant would not be able to understand
the precise defect of her claim or the kind of evidence which would tend to overcome it.
The case must therefore be remanded to OWCP for a proper decision to include findings
of fact, a clear precise statement regarding the basis for the decision, and a copy of appellant’s
appeal rights. After such development it deems necessary OWCP should issue an appropriate
decision.

1

5 U.S.C. § 8124(a) provides: “The Secretary of Labor shall determine and make a finding of facts and make an
award for or against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision
of OWCP “shall contain findings of fact and a statement of reasons.”
2

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

3

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

4

Dennis J. Balogh, 52 ECAB 232 (2001).

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IT IS HEREBY ORDERED THAT the May 22, 2014 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further action in
conformance with this order of the Board to be followed by an appropriate decision.
Issued: December 21, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Del Rio, TX, Employer
__________________________________________

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

Docket No. 07-1597
Issued: October 24, 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 31, 2007 appellant filed a timely appeal of the April 30, 2007 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant’s lumbar condition is causally related to a June 6, 2006
employment incident.
FACTUAL HISTORY
On June 14, 2006 appellant, a 56-year-old letter carrier, filed a traumatic injury claim
alleging that he hurt his back on June 6, 2006 when lifting a heavy parcel from the floor. He
continued to work following the June 6, 2006 lifting incident. Appellant was seen on June 14,
2006 at the Gutierrez Medical Center.1 The progress notes indicate that an injury occurred on
1

The caregiver’s signature is illegible, but the signature box indicates that the person who treated appellant on
August 14, 2006 was a physician assistant.

June 6, 2006 when he lifted a package at work. Appellant was diagnosed with sciatica and
prescribed pain medication, a muscle relaxant and advised to apply heat. He returned to the
center on June 16, 2006 and Dr. Alfredo Gutierrez, Jr., M.D., diagnosed sciatica. Dr. Gutierrez
excused appellant from work beginning June 16, 2006. X-rays obtained on June 20, 2006
revealed mild osteoarthritis of the right hip and minor degenerative changes of the lumbar spine.
In a decision dated July 24, 2006, the Office denied appellant’s claim on the basis that
there was no medical evidence that provided a diagnosis in connection with the June 6, 2006
employment incident.
Appellant requested reconsideration on August 23, 2006. He submitted a June 14, 2006
Form CA-16 (authorization for examination/attending physician’s report), in which Dr. Gutierrez
diagnosed employment-related sciatica. Appellant also submitted an August 9, 2006 lumbar
magnetic resonance imaging (MRI) scan, which revealed, among other things, a disc herniation
at L4-5.
Dr. James W. Simmons Jr., a Board-certified orthopedic surgeon, examined appellant on
August 18, 2006 and reviewed the recent lumbar MRI scan. He noted that appellant complained
of low back pain and sciatica, greater on the right, with an onset of June 6, 2006 when he was
lifting a box. Approximately a week after the injury, appellant began having dysesthesias with
pain radiating from the back into the right leg. On physical examination, Dr. Simmons noted
marked lumbosacral paravertebral muscle spasm with tenderness in the lumbosacral region, more
so on the right side. He diagnosed herniated nucleus pulposus at L4-5 and L5-S1 based on MRI
scan, lumbar radiculopathy, central and foraminal stenosis at L4-5 and foraminal stenosis at
L5-S1. Dr. Simmons recommended obtaining a lumbar discography and suggested the
possibility of surgery depending on the results of the discography.
By decision dated November 28, 2006, the Office modified the prior decision to accept
the June 6, 2006 lifting incident. However, the Office denied the claim because the medical
evidence did not establish that a lumbar injury was either caused or aggravated by the June 6,
2006 employment incident.
On February 9, 2007 appellant requested reconsideration. He submitted two reports from
Dr. Gerardo Zavala, a Board-certified neurosurgeon.2 In a January 23, 2007 report, Dr. Zavala
indicated that, when he saw appellant on September 25, 2006, appellant reported injuring his
lower back on June 6, 2006 “doing heavy lifting at work.” He noted that appellant was treated
conservatively, but did not do well under Dr. Gutierrez’s care. Dr. Zavala also noted that an
August 2006 MRI scan showed a herniated disc at L4-5, and Dr. Simmons subsequently
recommended surgery. On November 8, 2006 Dr. Zavala performed a left L4-5 decompressive
laminectomy and radical discectomy and an L5-S1 left decompressive laminectomy. He
reported that post surgery, appellant continued to complain of low back pain and he remained off
work. On January 30, 2007 Dr. Zavala briefly reiterated the treatment that appellant received for
his low back condition and added that his herniated disc and lumbosacral radiculopathy were
related to the on-the-job injury of June 6, 2006.
2

Dr. Zavala had previously treated appellant for injuries to his cervical spine and left shoulder.

2

By decision dated April 30, 2007, the Office denied modification of the November 28,
2006 decision.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his 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.4
To determine if an employee sustained a traumatic injury in the performance of duty, the
Office begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident that is alleged to have occurred.5 The second component is whether the employment
incident caused a personal injury.6 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.7
ANALYSIS
Appellant attributed his lower back condition to a June 6, 2006 employment incident
when he lifted a heavy parcel from the floor. Approximately two weeks following the incident,
Dr. Gutierrez diagnosed sciatica. However, he did not clearly explain how the diagnosed
condition was related to appellant’s employment. Several months after the June 6, 2006
employment incident, a lumbar MRI scan revealed a herniated disc at L4-5. Dr. Simmons
examined appellant on August 18, 2006 and reviewed the recent scan, and based on this
information, he diagnosed herniated nucleus pulposus at L4-5, L5-S1, lumbar radiculopathy and
stenosis. Although Dr. Simmons identified June 6, 2006 as the date of onset of appellant’s low
3

5 U.S.C. §§ 8101-8193 (2000).

4

20 C.F.R. § 10.115(e), (f) (2007); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question that can generally be resolved only by rationalized medical opinion evidence. See Robert G.
Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of whether there is a causal relationship between
the claimant’s diagnosed condition and the implicated employment factors must be based on a complete factual and
medical background of the claimant. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, in order to be
considered rationalized, the opinion must be expressed in terms of a reasonable degree of medical certainty, and
must be supported by medical rationale, explaining the nature of the relationship between the diagnosed condition
and appellant’s specific employment factors. Id.
5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

John J. Carlone, 41 ECAB 354 (1989).

7

Shirley A. Temple, 48 ECAB 404, 407 (1997). The fact that the etiology of a disease or condition is unknown or
obscure does not relieve an employee of the burden of establishing a causal relationship by the weight of the medical
evidence nor does it shift the burden of proof to the Office to disprove an employment relationship. Judith J.
Montage, 48 ECAB 292, 294-295 (1997).

3

back complaints, he did not explain how the employment-related lifting incident caused or
contributed to the diagnosed conditions. Dr. Zavala’s January 2007 reports are similarly flawed.
While he stated that appellant’s herniated disc and lumbosacral radiculopathy were related to the
on-the-job injury of June 6, 2006, he did not explain how the lifting incident caused or
contributed to appellant’s current condition.
It is not enough to merely conclude that a diagnosed condition is employment related. A
physician’s opinion on causal relationship 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 factors.8 The
various reports from Drs. Gutierrez, Simmons and Zavala do not meet this standard. As such,
the medical evidence of record fails to establish a causal relationship between the June 6, 2006
employment incident and appellant’s rather sever lumbar condition, which ultimately required
surgical intervention in November 2006. Accordingly, the Office properly denied appellant’s
traumatic injury claim.
CONCLUSION
Appellant failed to establish that his claimed lumbar condition is causally related to the
June 6, 2006 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the April 30, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 24, 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

8

Victor J. Woodhams, supra note 4.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Irvington, NJ, Employer
__________________________________________

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

Docket No. 09-2027
Issued: May 12, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 4, 2009 appellant filed a timely appeal of an August 21, 2008 decision of the
Office of Workers’ Compensation Programs denying her claim for compensation. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.1
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
occupational disease in the performance of duty.

1

For Office decisions dated November 19, 2008 or later, a claimant has 180 days to file an appeal with the Board.
20 C.F.R. § 501.3(e) (2009); 73 Fed. Reg. 62,190 (October 20, 2008). For Office decisions issued before
November 19, 2008, a claimant had one year in which to file an appeal. See 20 C.F.R. § 501.3(d)(2) (2008).
Therefore, the Board lacks jurisdiction over the Office’s December 24, 2008 nonmerit reconsideration decision.

FACTUAL HISTORY
On October 29, 2007 appellant, then a 52-year-old sales and associate clerk, filed an
occupational disease claim alleging that she developed severe joint pain in both shoulders, hands
and legs due to her employment duties. She first realized that her condition was caused or
aggravated by her employment activities on October 22, 2007. Appellant stopped work on
October 30, 2007 and returned to work on February 11, 2008.
In an October 23, 2007 statement, appellant noted that her work duties included lifting,
bending and stacking trays of mail. She indicated that these activities caused pain to her arms,
shoulders and hands.
In an October 23, 2007 work status report, Dr. Rudolph Willis, a family medicine
specialist, advised that appellant was unable to work between October 22 and 23, 2007 but could
return to light duty on October 24, 2007. In a November 1, 2007 duty status report, he diagnosed
carpal tunnel syndrome. Dr. Willis indicated that appellant could resume working and he listed
restrictions.
On November 23, 2007 the Office advised appellant of the factual and medical evidence
necessary to establish her claim. It allowed her 30 days to submit such evidence.
In a November 13, 2007 statement, appellant advised that she was providing documents
pertaining to her alleged work injury. She noted that her treating physician had placed her on
light duty but that the employing establishment did not have any light work available.
An October 2, 2007 work status form from Dr. Willis indicated treating appellant for
right shoulder and right arm pain. Dr. Willis advised that appellant return to light duty on
October 4, 2007 for two weeks. He also noted that appellant was unable to work between
October 1 and 3, 2007. On October 9, 2007 Dr. Willis indicated that appellant was seen for a
checkup. In an October 15, 2007 work status form, he diagnosed right shoulder pain. Dr. Willis
noted that appellant was unable to work between October 15 and 21, 2007 and could resume
regular duty on October 22, 2007.
On December 11, 2007 appellant stated that her job duties consisted of unloading trucks
by lifting tubs of flats, dispatching mail by reaching and bending, throwing parcels into sacks
and selling postal products. She noted experiencing pain in her hands, arms, shoulders and legs.
In a December 31, 2007 decision, the Office denied appellant’s claim finding insufficient
medical evidence to establish that her work duties caused or aggravated her alleged medical
condition.
In a January 23, 2008 statement, appellant requested reconsideration. She asserted that
the Office did not give her enough time to provide the necessary information and that she had
difficulties obtaining a medical report from her treating physician. Appellant noted that the
Office had permitted her to switch treating physicians prior to denying her claim. She stated that
she was providing a physician’s report with her reconsideration request and that the Office
should directly contact her physician for any other information.

2

On January 22, 2008 Dr. Willis noted that appellant had been under his care for carpal
tunnel syndrome, tendinitis and a knee injury. He advised that appellant resume regular duty on
February 11, 2008. Dr. Willis also noted that appellant was unable to work from January 2 to
February 10, 2008.
An undated report from Essex Hand Surgery indicated that appellant had a follow-up
appointment scheduled for February 19, 2008.
In a May 1, 2008 decision, the Office denied modification of its December 31, 2007
decision, finding that the additional evidence submitted was insufficient to establish causal
relationship between the claimed medical condition and appellant’s employment duties. On
August 21, 2008 it reissued this decision to reflect appellant’s correct address.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.3
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.4

2

J.E., 59 ECAB ___ (Docket No. 07-814, issued October 2, 2007); Elaine Pendleton, 40 ECAB 1143 (1989).

3

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Roy L. Humphrey, 57 ECAB 238 (2005).

4

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

3

ANALYSIS
The record reflects that appellant’s job requires unloading mail trucks, lifting tubs of flats
and stacking trays of mail, but appellant submitted insufficient medical evidence to establish that
she has a diagnosed medical condition causally related to these employment activities.
In a January 22, 2008 report, Dr. Willis noted treating appellant for carpal tunnel
syndrome, tendinitis and a knee injury. He did not though discuss whether appellant’s
employment duties caused or aggravated these conditions. The Board has held 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.5 Dr. Willis’ November 1, 2007 duty
status report diagnosed carpal tunnel syndrome but did not address the issue of causal
relationship. The work status reports dated October 2 and 15, 2007 diagnosed right shoulder and
right arm pain without providing any opinion on causal relationship. Moreover, pain is a
symptom, not a compensable medical diagnosis.6 None of the reports from Dr. Willis address
causal relationship. Dr. Willis did not provide a rationalized medical opinion in which he
explained why the particular work duties caused or aggravated a diagnosed medical condition.
The record also contains an undated report from Essex Hand Surgery noting the date of
appellant’s subsequent appointment. The Board has held that a medical report may not be
considered as probative medical evidence if there is no indication that the person completing the
report qualifies as a physician as defined in 5 U.S.C. § 8102(2) and reports lacking proper
identification do not constitute probative medical evidence.7 Even if the report had identified
that it was written by a physician, it also failed to address the issue of causal relationship.
For these reasons, the medical evidence of record does not establish that appellant
sustained an occupational disease in the performance of duty.8
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an occupational disease in the performance of duty.

5

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009).

6

C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008).

7

See D.D., 57 ECAB 734 (2006) (medical reports lacking proper identification cannot be considered as probative
evidence in support of a claim).
8

On appeal, appellant asserts that her appeal is based on the fact that she did not receive a copy of the Office’s
December 24, 2008 decision. As noted, the Board lacks jurisdiction over the Office’s December 24, 2008 decision.
Therefore, the Board’s decision in the present case only pertains to the Office’s August 21, 2008 decision, the only
decision over which it has jurisdiction.

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated August 21, 2008 is affirmed.
Issued: May 12, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
U.S. POSTAL SERVICE, KENSINGTON POST
OFFICE, Detroit, MI, Employer
__________________________________________

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

Docket No. 20-0957
Issued: January 27, 2021

Case Submitted on the Record

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

JURISDICTION
On March 26, 2020 appellant filed a timely appeal from a March 17, 2020 merit decision
and a January 14, 2020 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.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish medical
conditions causally related to the accepted factors of his federal employment; and (2) whether
OWCP properly denied appellant’s request for a review of the written record as untimely filed
pursuant to 5 U.S.C. § 8124(b).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 16, 2019 appellant, then a 52-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed a partial anterior cruciate ligament (ACL)
tear in his right knee and a heel spur in his left foot due to factors of his federal employment. He
explained that his right knee first swelled up and became painful to walk and bend two years after
he started working as a mail carrier. Appellant indicated that he first became aware of his
conditions and realized that they were caused or aggravated by factors of his federal employment
on January 14, 2019. He did not stop work.
In an August 30, 2019 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence needed and provided a questionnaire for his completion. OWCP afforded appellant 30
days to submit the necessary evidence.
A December 26, 2018 magnetic resonance imaging (MRI) scan of the right knee
demonstrated a partial ACL tear.
A July 24, 2019 MRI scan of the left ankle revealed planter fasciitis with reactive bone
marrow edema, tiny osteochondral lesion along the posterior lateral talar dome, degenerative
spurring at the talonavicular joint, and a possible old healed sprain in the left spring ligament.
In a September 6, 2019 work excuse note, Dr. Sadiq Haque, a sports medicine specialist,
diagnosed left plantar fasciitis and held appellant off work until October 10, 2019.
In a September 6, 2019 response to OWCP’s questionnaire, appellant indicated that he
worked 9 to 11 hours a day, six days a week, which required him to climb up and down many
stairs. He asserted that he was also attacked by dogs several times during his shifts, causing certain
jerks, twists, and turns while fending off the dogs. Appellant indicated that he had not been
involved in any activities or physical sports outside of his work.
On October 1, 2019 OWCP received undated and unsigned notes, listing appellant’s work
restrictions for the period January 26 through November 2, 2019.
By decision dated October 18, 2019, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish that his diagnosed
conditions were causally related to the accepted factors of his federal employment.
January 25, 2019 x-rays of the knees demonstrated bilateral minimal degenerative joint
disease.
In a January 25, 2019 medical report, Dr. Haque noted that appellant was evaluated for
right knee pain and indicated that appellant had no prior injury. Appellant reported to him that his
symptoms were worse with walking and using stairs. Dr. Haque reviewed appellant’s x-rays of
the bilateral knee, conducted a physical examination, and diagnosed degenerative joint disease
(DJD).
February 22, 2019 x-rays of the pelvis and right hip revealed mild degenerative changes.
2

In a February 22, 2019 medical report, Dr. Haque indicated that appellant took time off
from his work due to right knee pain. Appellant reported to him that he was now having persistent
pain in his knee localized to the medial joint, as well as in his back and hip. He also reported that
his symptoms were worse with carrying mail and better with rest. Dr. Haque conducted a physical
examination, reviewed appellant’s x-rays, and diagnosed right knee DJD, right hip osteoarthritis,
and lumbar spondylosis.
In a March 20, 2019 medical report, Dr. Haque reiterated his examination findings and
diagnosis of right hip osteoarthritis. He indicated that appellant underwent a right hip injection to
alleviate his pain.
In a May 3, 2019 medical report, Dr. Haque noted that the March 20, 2019 injection had
provided appellant complete relief from pain for three to four weeks and that he initially returned
to work without any discomfort, but that his pain now returned. Appellant reported to Dr. Haque
that he had been running and walking without any discomfort before pain returned. Dr. Haque
diagnosed right hip femoroacetabular impingement and osteoarthritis.
A June 28, 2019 magnetic resonance imaging (MRI) scan of the right hip demonstrated
moderate right and mild left greater trochanteric bursitis and mild subcortical cystic changes in the
superior aspect of the right acetabulum. It revealed no avascular necrosis of the femoral head.
In a July 16, 2019 medical report, Dr. Haque reiterated his examination findings from the
May 3, 2019 report, but added that appellant continued to experience right knee and left foot pain.
He also noted that appellant thought his conditions might be related to prolonged walking required
to deliver mail. Dr. Haque reviewed appellant’s x-rays and the MRI scan and diagnosed greater
trochanteric bursitis of the right hip, a meniscus tear in the right knee, right knee DJD, and left
plantar fasciitis.
A July 24, 2019 MRI scan of the right knee revealed no evidence of a meniscus tear, but
demonstrated synovial/ganglion cyst at the lateral femoral epicondyle, chondromalacia patella, and
minimal knee joint effusion.
In a July 30, 2019 medical report, Dr. Haque reviewed the July 24, 2019 right knee MRI
scan and the left foot MRI scan, which revealed edema and plantar fascial thickening. He again
diagnosed left plantar fasciitis and right knee DJD.
In an August 7, 2019 medical report, Dr. Jonathan Nzoma, a Board-certified orthopedic
surgeon, noted that appellant was evaluated for his right knee. Appellant reported to him that
walking for long periods of time aggravated his conditions. Dr. Nzoma diagnosed right knee pain
and chondromalacia. He indicated that appellant was scheduled for surgery to remove the cyst at
the lateral femoral epicondyle.
In a September 6, 2019 medical report, Dr. Haque noted that appellant was evaluated for
left foot pain and again diagnosed left plantar fasciitis.
In a September 27, 2019 medical report, Dr. Haque noted that appellant was unsure if his
symptoms were improving because he was not walking as much as he used to at his work.

3

Appellant reported that he used to walk approximately 10 miles a day at work. Dr. Haque again
diagnosed left plantar fasciitis.
Dr. Nzoma noted in an October 3, 2019 medical report that appellant underwent right knee
arthroscopy with partial meniscectomy that day. He diagnosed right knee pain, lateral meniscus
tear, chondromalacia patella, and chondromalacia trochlear. Dr. Nzoma reiterated that appellant’s
belief that prolonged walking over long periods of time aggravated his right knee condition.
In an October 9, 2019 medical report,. Vanessa Delgado, a physician assistant, noted that
appellant returned for evaluation after he underwent partial right knee arthroscopic meniscectomy
on October 3, 2019. She prescribed physical therapy.
On November 12, 2019 OWCP received illegible medical notes dated June 11 and
September 9, 2019 from Dr. Barry Braver, an osteopathic manipulative therapy specialist. It also
received another partially illegible medical note dated July 30, 2019, in which Dr. Braver
diagnosed left plantar fasciitis.
In a request form dated December 16, 2019 and postmarked December 17, 2019, appellant
requested a review of the written record by a representative of OWCP’s Branch of Hearings and
Review.
By decision dated January 14, 2020, the hearing representative denied appellant’s request
for a review of the written record as untimely filed, finding that his request was not made within
30 days of the October 18, 2019 OWCP decision as it was postmarked on December 17, 2019.
The hearing representative further exercised discretion and determined that the issue in this case
could equally well be addressed by a request for reconsideration before OWCP along with the
submission of new evidence.
On February 14, 2020 appellant requested reconsideration of the October 18, 2019
decision.
By decision dated March 17, 2020, OWCP denied modification.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 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,3 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the

2

Supra note 1.

3
J.W., Docket No. 18-0678 (issued March 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

4

employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant.6
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.7 The opinion of the physician must be based on a
complete factual and medical background of the 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.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has met not his burden of proof to establish medical
conditions causally related to the accepted factors of his federal employment.
In medical reports dated July 16 and September 27, 2019, Dr. Haque noted that appellant
walked approximately 10 miles a day while delivering mail and that appellant thought his
conditions might be related to prolonged walking required to deliver mail. He diagnosed greater
trochanteric bursitis of right hip, a meniscus tear in the right knee, a right knee DJD, and left plantar
fasciitis. Dr. Haque, however, did not provide his own opinion which addressed the cause of the
diagnosed conditions. Similarly, Dr. Nzoma, in his August 7 and October 3, 2019 reports, did not
provide his own opinion on the cause of appellant’s diagnosed chondromalacia and other
conditions. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship.9 As
such, these reports are sufficient to establish appellant’s claim.

4

J.S., Docket No.18-0657 (issued February 26, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5
L.J., Docket No. 19-1343 (issued February 26, 2020); R.R., Docket No.18-0914 (issued February 24, 2020);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

7

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
8

R.G., Docket No. 18-0792 (issued March 11, 2020); D.J., Docket No. 19-1301 (issued January 29, 2020); I.J., 59
ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).
9
L.G., Docket No. 20-0433 (issued August 6, 2020); S.D., Docket No. 20-0413 (July 28, 2020); S.K., Docket No.
20-0102 (issued June 12, 2020).

5

In other reports dated from January 25 through September 6, 2019, Dr. Haque provided
multiple diagnoses related to appellant’s right knee, right hip, and left foot conditions. However,
he offered no opinion on causal relationship in these reports. As previously noted, medical
evidence that fails to address causation is of no probative value on that issue.10 These reports,
therefore, are also insufficient to establish appellant’s claim.
Appellant submitted unsigned and undated notes containing appellant’s work restrictions.
The Board has held that reports that are unsigned or bear an illegible signature lack proper
identification and cannot be considered probative medical evidence as the author cannot be
identified as a physician.11 Therefore, these notes are insufficient to establish appellant’s claim.
Appellant also submitted an October 9, 2019 medical report signed solely by Ms. Delgado,
a physician assistant. Certain healthcare providers such as physician assistants are not considered
“physician[s]” as defined under FECA.12 Consequently, their medical findings and/or opinions
will not suffice for purposes of establishing entitlement to FECA benefits.13
Finally, the record also contains the results from diagnostic testing. The Board has held
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.14
Thus, these reports are also insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence explaining the causal
relationship between his diagnosed medical conditions and the accepted factors of his federal
employment, the Board finds that he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that “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

10

Id.

11

M.A., Docket No. 19-1551 (issued April 30, 2020).

12

Supra note 1 at § 8101(2); 20 C.F.R. § 10.5(t).

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); K.W., 59 ECAB
271, 279 (2007).
13

14

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

6

of the decision, to a hearing on his [or her] claim before a representative of the Secretary.”15
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA provide
that a claimant shall be afforded a choice of an oral hearing or a review of the written record by a
representative of the Secretary.16 A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking and before the claimant has requested reconsideration.17
Although there is no right to a review of the written record or an oral hearing, if not requested
within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for a review of the written
record as untimely filed pursuant to 5 U.S.C. § 8124.
Appellant’s December 16, 2019 request for a review of the record was postmarked on
December 17, 2019, more than 30 days after the issuance of OWCP’s October 18, 2019 merit
decision. Because the postmark date was more than 30 days after the date of OWCP’s October 18,
2019 decision, the Board finds that the request was untimely filed and he was not entitled to a
review of the written record as a matter of right.19
Although appellant’s request for a review of the written record was untimely filed, OWCP
has the discretionary authority to grant the request and it must exercise such discretion.20 The
Board finds that, in the January 14, 2020 decision, OWCP’s Branch of Hearings and Review
properly exercised discretion by determining that the issue in the case could be equally well
addressed through a request for reconsideration before OWCP, along with the submission of
additional evidence. The Board has held that the only limitation on OWCP’s authority is
reasonableness.21 An abuse of discretion is generally shown through proof of manifest error, a
clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts.22 In this case, the evidence of record does not indicate
15

Supra note 1 at § 8124(b)(1).

16

Supra note 17 at §§ 10.616, 10.617.

17

Id. at § 10.616(a).

18
W.H., Docket No. 20-0562 (issued August 6, 2020); P.C., Docket No. 19-1003 (issued December 4, 2019); M.G.,
Docket No. 17-1831 (issued February 6, 2018); Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51
ECAB 155 (1999).
19
The 30-day period for determining the timeliness of an employee’s request for an oral hearing or review
commences the day after the issuance of OWCP’s decision. See Donna A. Christley, 41 ECAB 90 (1989).
20

Supra note 21.

21

R.M., Docket No. 19-1088 (issued November 17, 2020). See also E.S., Docket No. 18-1750 (issued March 11,
2019).
22

P.C., supra note 18.

7

that OWCP abused its discretion by denying appellant’s request for a review of the written record.
Accordingly, the Board finds that OWCP properly denied appellant’s request for a review of the
written record.
CONCLUSION
The Board finds that appellant has met not his burden of proof to establish right knee, right
hip, and left foot conditions causally related to the accepted factors of his federal employment.
The Board further finds that OWCP properly denied his request for an oral hearing as untimely
filed pursuant to 5 U.S.C. § 8124(b).
ORDER
IT IS HEREBY ORDERED THAT the March 17 and January 14, 2020 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 27, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8


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

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

Docket No. 09-1510
Issued: February 18, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 11, 2009 appellant filed a timely appeal from an October 29, 2008 merit decision
of the Office of Workers’ Compensation Programs denying her occupational disease claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has established that she sustained a bilateral upper
extremity condition causally related to factors of her federal employment.
FACTUAL HISTORY
On March 5, 2008 appellant, then a 49-year-old letter carrier, filed an occupational
disease claim alleging that she sustained increased numbness of both hands due to factors of her
federal employment. She attributed her condition to using her hands delivering mail and pulling
the brake on her work vehicle over the past 19 years. Appellant noted that her condition had
worsened since she filed a claim in 2004. She did not stop work.

In a report dated March 12, 2008, Dr. Stephen M. McCollam, a Board-certified
orthopedic surgeon, discussed appellant’s history of bilateral hand pain and intermittent
numbness for the past 19 years. He noted that she received a diagnosis of carpal tunnel
syndrome in 2004 and that following her diagnosis she “changed letter routes.” Appellant also
received injections in the right lateral elbow for epicondylitis. Dr. McCollam reviewed her
complaints of a recent increase in pain, numbness and tingling in both hands. On examination he
found a positive dorsiflexion test of the right forearm, positive median nerve compression of the
wrists bilaterally, and a negative Phalen’s test and Tinel’s sign. In an accompanying form report
also dated March 12, 2008, Dr. McCollam diagnosed bilateral carpal tunnel syndrome and right
tennis elbow. He checked “yes” that the history of injury provided by appellant corresponded to
that provided on the form of an injury due to repetitive motion, pulling mail and braking a
vehicle. Dr. McCollam opined that appellant could perform her usual employment.1
By decision dated April 21, 2008, the Office denied appellant’s claim on the grounds that
the medical evidence did not establish that she sustained a condition causally related to factors of
her accepted work factors.
In a report dated May 14, 2008, a physician’s assistant, dictating for Dr. McCollam,
diagnosed right carpal tunnel syndrome after a right carpal tunnel release on April 28, 2008 and
left carpal tunnel syndrome. The physician’s assistant stated:
“I shared with [appellant] today at this point it would be reasonable to proceed
with a carpal tunnel release on the left side under IV [intravenous] sedation. To
review, [she] states that her symptoms started on the job and continue to be
aggravated by the job. I discussed [appellant] again with Dr. McCollam today
and he is in agreement that this is a work[-]related injury.”
On August 13, 2008 appellant requested reconsideration. She submitted an April 28,
2008 report from Dr. McCollam indicating that she underwent a right carpal tunnel release. In a
progress report dated June 11, 2008, Dr. McCollam evaluated appellant following her left carpal
tunnel release. He diagnosed a probable small stitch abscess.
By decision dated October 29, 2008, the Office denied modification of its April 12, 2008
decision. It found that appellant had not submitted rationalized medical evidence supporting that
she sustained carpal tunnel syndrome due to factors of her federal employment.
On appeal appellant discussed the work factors to which she attributed her condition.
She noted that she had previously filed a claim in 2004 which was denied by the Office.
Appellant related that after her surgeries she was not provided with light duty. She maintained
that her physician provided an opinion that her condition was due to her occupation.

1

Appellant also submitted a portion of an electromyogram obtained on March 17, 2008.

2

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;5 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;6 and (3) medical evidence establishing that
the diagnosed condition is causally related to the employment factors identified by the claimant.7
The medical opinion 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.8
ANALYSIS
Appellant attributed her bilateral hand condition to her work duties, including delivering
mail and pulling the brake on her vehicle. The Office accepted the occurrence of the claimed
employment factors. The issue, therefore, is whether the medical evidence establishes a causal
relationship between the claimed conditions and the identified employment factors.
In a March 12, 2008 narrative report, Dr. McCollam noted that appellant complained of a
recent worsening of her bilateral hand pain and numbness. He discussed her prior diagnoses of
carpal tunnel syndrome and right elbow epicondylitis. Dr. McCollam found positive median
nerve compression of the nerves bilaterally and a negative Phalen’s test and Tinel’s sign. In a
form report of the same date, he diagnosed bilateral carpal tunnel syndrome and right tennis
elbow. Dr. McCollam checked “yes” that the history of injury appellant provided corresponded
to that on the form of an injury due to repetitive motion, pulling mail and braking a vehicle. The
2

5 U.S.C. §§ 8101-8193.

3

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Alvin V. Gadd, 57 ECAB 172 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

5

Michael R. Shaffer, 55 ECAB 386 (2004).

6

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

7

D.D., 57 ECAB 734 (2006); Roy L. Humphrey, 57 ECAB 238 (2005).

8

Id.

3

Board has held, however, that an opinion on causal relationship which 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. Without any explanation or rationale for
the conclusion reached, such report is insufficient to establish causal relationship.9
On April 28, 2008 Dr. McCollam noted that appellant had a right carpal tunnel release.
In a June 11, 2008 progress report, he diagnosed a possible small abscess following a left carpal
tunnel release. Dr. McCollam, however, did not address causation and thus his opinion is of
little probative value.10
In a report dated May 14, 2008, a physician’s assistant indicating that she was dictating
the report for Dr. McCollam. She noted that appellant related that her symptoms began at work
and were aggravated by her work duties. The physician’s assistant stated, “I discussed [her]
again with Dr. McCollam today and he is in agreement that this is a work[-]related injury.”
There is no evidence, however, that Dr. McCollam signed or reviewed the May 14, 2008 report.
A report from a physician’s assistant is entitled to no weight as a physician’s assistant is not a
“physician” as defined by section 8102(2) of the Act.11
On appeal appellant described the work factors to which she attributed her condition and
asserted that her physician found her condition employment related. An award of compensation,
however, may not be based on surmise, conjecture, speculation, or upon appellant’s own belief
that there is a causal relationship between her claimed condition and her employment.12
Appellant must submit a physician’s report in which the physician reviews those factors of
employment identified by her as causing his condition and, taking these factors into
consideration as well as findings upon examination and the medical history, explain how
employment factors caused or aggravated any diagnosed condition and present medical rationale
in support of his or her opinion.13 Appellant failed to submit such evidence and therefore failed
to discharge her burden of proof.14
CONCLUSION
The Board finds that appellant has not established that she sustained a bilateral upper
extremity condition causally related to factors of her federal employment.
9

Sedi L. Graham, 57 ECAB 494 (2006); Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box “yes” in
a form report, without additional explanation or rationale, is insufficient to establish causal relationship).
10

Medical evidence that does not offer any opinion regarding the cause of an employee’s condition is of
diminished probative value on the issue of causal relationship. Conard Hightower, 54 ECAB 796 (2003).
11

See 5 U.S.C. § 8101(2); J.M., 58 ECAB 303 (2007); Allen C. Hundley, 53 ECAB 551 (2002).

12

George H. Clark, 56 ECAB 162 (2004); Patricia J. Glenn, 53 ECAB 159 (2001).

13

D.D., 57 ECAB 734 (2006); Robert Broome, 55 ECAB 339 (2004).

14

Appellant submitted new medical evidence with her appeal. The Board has no jurisdiction to review new
evidence on appeal; see 20 C.F.R. § 501.2(c). Appellant can submit this evidence to the Office and request
reconsideration under 5 U.S.C. § 8128.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 29, 2008 is affirmed.
Issued: February 18, 2010
Washington, DC

Alec J. Koromilas, Chief 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
__________________________________________
C.D., Appellant
and
U.S. POSTAL SERVICE, RIVER GROVE
FACILITY, Carol Stream, IL, Employer
__________________________________________

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

Docket No. 10-2222
Issued: June 10, 2011

Case Submitted on the Record

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

JURISDICTION
On September 1, 2010 appellant filed a timely appeal from the August 12, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied modification
of her February 11, 2010 schedule award. Pursuant to the Federal Employees’ Compensation
Act (FECA)1 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 more than five percent impairment of each arm.
FACTUAL HISTORY
On February 5, 2009 appellant, then a 50-year-old automation clerk, filed a claim
alleging that her carpal tunnel syndrome was a result of keying on a letter sorting machine.

1

5 U.S.C. § 8101 et seq.

OWCP accepted her claim for bilateral carpal tunnel syndrome. Appellant underwent a left
carpal tunnel release on June 19, 2009 and a right carpal tunnel release on July 23, 2009.
Dr. Jamil Jacobs-El, the orthopedic surgeon who performed surgery, examined appellant
on November 4, 2009. Appellant felt much better than she did prior to surgery. She no longer
had pain awakening her at night. Appellant’s physical examination was normal except for
minimal trophic changes at the right hand. Dr. Jacobs-El released her to return to full duty
without restrictions. He found that appellant had no upper limb impairment due to loss of
function from decreased strength or from sensory deficit, pain or discomfort.
An OWCP medical adviser reviewed appellant’s medical record and assigned grade
modifiers for functional history, physical examination and clinical studies. Give the absence of
significant symptoms, the grade modifier for functional history was zero. Some weakness with
grip bilaterally warranted a grade modifier of three for physical examination. The grade
modifier for clinical studies was not applicable, as there was no electromyogram (EMG)
available for review. As the modifiers averaged 1.5, which rounded to 2, the medical adviser
found that appellant had a five percent impairment of each upper limb.
On February 11, 2010 OWCP issued schedule awards for five percent impairment of the
right and left upper limbs.
Appellant submitted an EMG from March 19, 2009, which showed significant bilateral
carpal tunnel syndrome. An OWCP medical adviser determined that the grade modifier for
clinical studies was two, which still gave a grade modifier average of two, resulting in no
increased rating.
In a decision dated August 12, 2010, OWCP denied modification of appellant’s schedule
award. The presurgery EMG did not alter the impairment calculation.
LEGAL PRECEDENT
Section 8107 of FECA2 authorizes the payment of schedule awards for the loss or loss of
use of specified members, organs or functions of the body. Such loss or loss of use is known as
permanent impairment. OWCP evaluates the degree of permanent impairment according to the
standards set forth in the specified edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment.3 As of May 1, 2009, any decision regarding a schedule
award must be based on the sixth edition.4

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.6.a (January 2010).

2

ANALYSIS
To rate the impairment for focal nerve compromise, OWCP’s medical adviser used Table
15-23, page 449 of the sixth edition of the A.M.A., Guides.5 Grade modifiers are described for
test findings, history and physical findings. Appropriate grade modifiers are determined,
averaged and then rounded to the nearest integer to determine the average grade. The bottom of
the table gives the default impairment value for each average grade.
The attending orthopedic surgeon, Dr. Jacob-El, advised that appellant had no upper limb
impairment due to decreased strength, sensory deficit, pain or discomfort. OWCP’s medical
adviser reviewed appellant’s record to rate her impairment under the A.M.A., Guides. The
absence of significant symptoms supported a grade modifier of zero for functional history under
Table 15-23. Some bilateral grip weakness warranted a grade modifier of three for physical
findings, which was the highest rating possible. The preoperative EMG was given a grade
modifier of two for testing findings, consistent with motor conduction loss.6 The average grade
modifier was thus 5 divided by 3, or 1.67, which rounded to 2 and which established a default
impairment value of five percent for each upper limb.7
The Board finds that OWCP correctly denied modification of appellant’s schedule award.
Even if OWCP’s medical adviser had assigned the highest possible grade modifier to the
preoperative EMG (grade modifier four, representing an almost dead nerve), the average grade
and the default impairment value would have remained unchanged. The Board will therefore
affirm OWCP’s August 12, 2010 decision denying modification of appellant’s schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that the medical evidence establishes no more than five percent
impairment of each upper limb.

5

A.M.A., Guides 449 (6th ed. 2009) (Table 15-23).

6

This is more severe than sensory or motor conduction delay but less severe than axon loss or an almost dead
nerve.
7

The default value may be modified up or down by one percent based on responses to a QuickDASH
questionnaire, which Dr. Jacobs-El did not administer.

3

ORDER
IT IS HEREBY ORDERED THAT the August 12, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 10, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

4