United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, FREEDOM STATION,
Charlotte, NC, Employer
__________________________________________

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

Docket No. 18-0919
Issued: October 18, 2018

Case Submitted on the Record

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

JURISDICTION
On March 29, 2018 appellant, through counsel, filed a timely appeal from a March 5, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established total disability beginning April 3, 2008
causally related to her June 30, 2006 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On August 7, 2007 appellant, then a 36-year-old casual city carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on June 30, 2006, she stepped in a hole while delivering mail,
injuring her left leg. She stopped work on June 30, 2006 and did not return. OWCP accepted the
claim for a left knee strain.
A magnetic resonance imaging (MRI) scan of the left knee, obtained on July 25, 2006,
revealed a small osteochondral lesion at the trochlear notch of uncertain clinical significance.
On September 15, 2006 appellant underwent a debridement of an anterior horn tear of the
left medial meniscus and chondroplasty of the femoral trochlea.
Appellant, on April 1, 2008, filed a claim for wage-loss compensation (Form CA-7) for the
period June 30, 2006 to April 2, 2008. She advised that she was unable to work during this period
as a result of her injury.
In a report dated May 12, 2008, Dr. G. Adam Flowers, a Board-certified orthopedic
surgeon, discussed appellant’s continued complaints of left knee pain subsequent to a meniscus
debridement and chondroplasty of the femoral trochlear. He noted that she related that she could
not perform her usual work duties. On examination, Dr. Flower found no effusion, but tenderness
to palpation over the medial and lateral patella. He diagnosed left knee patellofemoral pain
syndrome and plantar fasciitis of the left foot.
By decision dated June 25, 2008, OWCP denied appellant’s claim for wage-loss
compensation beginning June 30, 2006.4 It found that the medical evidence of record was
insufficient to support that she was totally disabled due to her accepted employment injury.
On June 30, 2008 Dr. Flowers advised that he was treating appellant for left knee
chondromalacia patella, “a painful condition due to the degenerative nature of cartilage damage
on the back of [her] kneecap.” He noted that she continued to have symptoms and was

3

Docket No. 14-0021 (issued March 11, 2014).

4

In a decision dated August 14, 2007, OWCP denied appellant’s request for continuation of pay as she did not
report the injury on an approved form within 30 days. On June 23, 2008 an OWCP hearing representative affirmed
the August 14, 2007 decision.

2

“significantly limited in her activities of daily living as far as her vocational pursuits due to this
chronic knee pain.”
Appellant, on July 15, 2008, requested an oral hearing before an OWCP hearing
representative.
On August 25, 2008 Dr. James Fleischli, a Board-certified orthopedic surgeon, obtained a
history of appellant injuring her left knee on June 30, 2006 at work and undergoing arthroscopic
surgery on September 15, 2006. He noted that she had continued knee pain with occasional
swelling such that she was not able to work. On examination, Dr. Fleischli found trace effusion
of the left knee with tenderness to palpation, but no instability. He diagnosed patellofemoral
chondromalacia after arthroscopic surgery. In a September 3, 2008 form, Dr. Fleischli determined
that appellant could not work. He checked a box marked “no” in response to the question of
whether the injury was work related.
Dr. Fleischli, on September 8, 2008, performed a left knee lateral release and plica excision
with debridement of scar tissue.5
On September 8, 2008 Dr. Flowers related that appellant underwent “a microfracture of
her trochlear groove in September 2006 for an injury she sustained the same year after a fall and
twisting of her knee at the [employing establishment].” He advised that treatment had not resolved
her symptoms. Dr. Flowers reviewed appellant’s work duties and found that she could not perform
extensive walking due to knee pain. He opined that her restrictions began on June 30, 2006 and
were “more of a clinical decision based on [appellant’s] inability to either tolerate the pain along
with performing her duties versus having alleviation of her symptoms of pain.”
A hearing was held on December 28, 2008. On March 17, 2009 OWCP’s hearing
representative vacated the June 25, 2008 decision and remanded the case for OWCP to refer
appellant for a second opinion examination to determine her exact diagnoses and the extent of any
disability from employment due to her work injury.
On December 3, 2008 Dr. Fleischli indicated that appellant was doing well following left
knee surgery, but had experienced additional left knee soreness after a December 3, 2008 motor
vehicle accident.
OWCP referred appellant to Dr. Harrison A. Latimer, a Board-certified orthopedic
surgeon, for a second opinion examination. In a report dated April 30, 2009, Dr. Latimer discussed
her history of tripping and falling on her left leg after stepping in a hole on June 30, 2006 while
delivering mail. He related:
“[Appellant] has continued knee pain complaints that are unchanged from her initial
presentation to physicians back in June 2006. She has had microfracture surgery
of a small area of what appears to have been chronic wear not related to her injury
of the medial trochlea. This opinion is based on the fact that there was minimal
edema at the time. It is also based on the fact that follow up MRI [scan] [study]
5

OWCP also received progress reports by Dr. Fleischli dated October 21, 2008 and January 7, 2009.

3

showed successful treatment of this area with no resolution or change in the
character of [appellant’s] symptoms which were unrelated to the patellofemoral
joint by her report. [Appellant] subsequently had a lateral release despite normal
patellofemoral tracking on MRI scan with again no change in her preoperative
symptoms. She had no evidence of lateral patellofemoral compression syndrome
prior to this surgery. There is no relationship between her work injury and any
indication for this surgery.”
Dr. Latimer determined that appellant’s current condition was not related to the June 30,
2006 employment injury based on the MRI scan study obtained after the incident that showed
changes due to chronic activity rather than an acute injury. He opined that she sustained a soft
tissue strain due to the June 30, 2006 work incident resulting in approximately four weeks of partial
disability. Dr. Latimer determined that appellant could have resumed her usual work duties by
August 1, 2006.
By decision dated July 8, 2009, OWCP denied appellant’s claim for wage-loss
compensation from June 30, 2006 to April 2, 2008. It found that Dr. Latimer’s opinion constituted
the weight of the evidence, establishing that she sustained only a strain as a result of her work
injury and that any resultant disability lasted no more than four weeks, during which time she could
have performed limited-duty employment.
Appellant requested an oral hearing. On December 28, 2009 an OWCP hearing
representative affirmed the July 8, 2009 decision. She found that Dr. Latimer’s report established
that appellant had no disability from June 30, 2006 to April 2, 2008 as a result of the accepted
employment injury.
A left knee MRI scan study obtained on February 20, 2010 showed no meniscal tears, a
ganglion cyst, and a very small Baker’s cyst. Dr. Fleischli reviewed the MRI scan study on
March 16, 2010 and found that it revealed no problems that would explain appellant’s posterior or
anterior knee pain.
A physician assistant, in a July 16, 2010 report, attributed appellant’s surgeries to the
June 30, 2006 work injury.
Counsel, on December 23, 2010, requested reconsideration. By decision dated
February 16, 2011, OWCP denied modification of its finding that she had not established
employment-related disability from June 30, 2006 to April 2, 2008.
In a report dated February 14, 2012, Dr. Fleischli indicated that appellant experienced left
knee pain after stepping in a hole on June 30, 2006 such that she could not work. He related, “It
is my medical opinion to a reasonable degree of medical certainty that her work-related injury was
the cause of her left knee pain and her inability to work as a mail carrier after the injury.”
Dr. Fleischli advised that appellant had continued pain of uncertain etiology after a September 8,
2008 lateral release and plica excision. He opined that she could not work full time as a result of
pain.
On February 17, 2012 appellant requested reconsideration. By decision dated April 5,
2012, OWCP denied modification of its February 16, 2011 decision.
4

In a report dated September 27, 2012, Dr. Flowers related that he had treated appellant for
injuries sustained in September 2006 when she stepped in a hole.6 He deferred to Dr. Fleischli
regarding her current condition, noting that he had last evaluated her in 2008. Dr. Flowers
indicated that in 2008 he had opined that appellant should not perform extensive walking due to
her knee condition. Regarding whether there was a period during which she could work as a letter
carrier, he deferred to Dr. Fleischli’s opinion. Dr. Flowers also advised that he had addressed the
issue of whether she could perform her usual employment from June 2006 to April 2008 in a prior
response.
On April 4, 2013 appellant, through counsel, again requested reconsideration. By decision
dated April 8, 2013, OWCP denied her request for reconsideration as the evidence submitted was
cumulative and insufficient to warrant reopening her case for further merit review under section
8128.
Appellant appealed to the Board. By decision dated March 11, 2014, the Board affirmed
the April 8, 2013 nonmerit decision, finding that appellant had not raised an argument or submitted
evidence sufficient to reopen her case under section 8128(a).7
On May 19, 2016 counsel requested that OWCP expand acceptance of her claim to include
a left knee intrasubstance ganglion cyst at the anterior cruciate ligament, a tiny Baker’s cyst, and
chondromalacia.
Appellant, on March 28, 2017, filed a notice of recurrence (Form CA-2a) claiming
disability and the need for medical treatment commencing on August 4, 2006, causally related to
her June 30, 2006 employment injury. She related that she did not resume work following her
injury. The employing establishment advised that it separated her from employment on August 4,
2006 at the expiration of her appointment.
OWCP, in an April 7, 2017 letter, requested that appellant submit reasoned medical
evidence from her attending physician supporting that her condition worsened such that she was
unable to work beginning August 4, 2006 due to her employment injury.
By decision dated June 23, 2017, OWCP found that appellant had not established that she
sustained a recurrence of disability commencing April 3, 2008 due to her accepted work injury. It
advised that it had previously adjudicated her claim for wage-loss compensation from June 30,
2006 to April 2, 2008 and that she should follow her appeal rights from its prior decisions regarding
that period. OWCP noted that appellant had not returned to work following her injury.
Counsel, on July 3, 2017, requested a telephone hearing before an OWCP hearing
representative. During the December 18, 2017 telephone hearing, she advised that she was
requesting wage-loss compensation for disability beginning June 30, 2006, the date of her injury.
Appellant contended that the employing establishment terminated her on August 4, 2006 as a result
6

Dr. Flowers indicated that appellant’s injury occurred in September 2006 rather than June 2006, but this appears
to be a typographical error.
7

See supra note 3.

5

of her work injury. Counsel contended that OWCP should have developed the issue of claim
expansion to include left knee chondromalacia, a tiny Baker’s cyst, and a ganglion cyst at the
anterior cruciate ligament.
By decision dated March 5, 2018, OWCP’s hearing representative affirmed the June 23,
2017 decision.8 She found that appellant had not submitted reasoned medical evidence supporting
that she was disabled from work commencing April 3, 2008, due to her accepted work injury.
On appeal counsel contends that OWCP failed to consider his request to expand acceptance
of the claim prior to adjudicating the issue of disability for the period claimed.
LEGAL PRECEDENT
An employee seeking benefits under FECA9 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.10 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled from work
as a result of the accepted employment injury.11 Whether a particular injury causes an employee
to become disabled from work, and the duration of that disability, are medical issues that must be
proven by a preponderance of probative and reliable medical opinion evidence.12
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.13 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.14 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages that he or she was receiving
at the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.15 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his or her employment, he or she is entitled to compensation for any loss of wages.
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
8

The hearing representative indicated that the issue was whether appellant’s was disabled from work commencing
August 4, 2006 due to her work injury. However, as noted by OWCP, it had previously adjudicated the issue of
disability for the period June 30, 2006 to April 2, 2008.
9

Supra note 2.

10

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986

11

See Amelia S. Jefferson, id.

12

See Edward H. Horton, 41 ECAB 301 (1989).

13

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); 20 C.F.R. § 10.5(f).

14

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

15

Merle J. Marceau, 53 ECAB 197 (2001).

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claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.16
ANALYSIS
OWCP accepted that appellant sustained left knee strain due to a June 30, 2006
employment injury. Appellant stopped work on June 30, 2006 and did not return. On March 28,
2017 she filed a notice of recurrence of disability alleging disability and the need for medical
treatment commencing beginning August 4, 2006, the date the employing establishment separated
her from employment. Appellant did not, however, return to work following her injury and thus
the issue is whether she has established disability from employment rather than a recurrence of
disability, which is defined as an inability to work after an employee has returned to work.17
Additionally, OWCP previously adjudicated the question of whether appellant experienced
disability from employment from June 30, 2006 to April 2, 2008. The current issue is thus whether
she has established disability from employment commencing April 3, 2008 causally related to her
accepted June 30, 2006 work injury.
The Board finds that appellant has not established that she was disabled from employment
commencing April 3, 2008 due to her accepted June 30, 2006 left knee strain. The issue of
disability from work can only be resolved by competent medical evidence.18 Whether a claimant’s
disability is related to an accepted condition is a medical question which must be established by a
physician who, on the basis of a complete and accurate factual and medical history, concludes that
the disability is causally related to employment factors and supports that conclusion with sound
medical reasoning.19 The record does not contain a medical opinion of sufficient rationale to
establish that appellant was disabled from work commencing April 3, 2008 due to the accepted
left knee strain.
On May 12, 2008 Dr. Flowers related that appellant had continued left knee pain after a
left medial meniscus debridement and chrondroplasty of the femoral trochlea. He diagnosed left
knee patellofemoral syndrome and left plantar fasciitis. Dr. Flowers indicated that appellant
advised that she was unable to perform her regular employment. While he noted that she related
that she was unable to work, he did not provide an independent opinion regarding her disability
from employment. A physician’s report is of little probative value when it is based on a claimant’s
belief rather than the doctor’s independent judgment.20

16

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

17

A recurrence of disability is defined as the inability to work after an employee has returned to work, caused by a
spontaneous change in a medical condition which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness. 20 C.F.R. § 10.5(x); S.F., 59 ECAB
525 (2008).
18

R.C., 59 ECAB 546 (2008).

19

See Sandra D. Pruitt, 57 ECAB 126 (2005).

20

Earl David Seale, 49 ECAB 152 (1997).

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Dr. Flowers, on June 30, 2008, diagnosed chondromalacia patella due to degeneration and
opined that appellant was limited in her vocation and daily activities by her resulting chronic knee
pain. OWCP, however, accepted only left knee strain as causally related to the accepted work
injury. Appellant has the burden of proof to establish that a condition not accepted by OWCP is
due to her employment injury through the submission of rationalized medical evidence.21
Dr. Flowers did not address the cause of the chondromalacia patella. 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.22
In an August 25, 2008 report, Dr. Fleischli discussed appellant’s history of a left knee
injury on June 30, 2006 and arthroscopic surgery on September 15, 2006. He diagnosed
patellofemoral chondromalacia after arthroscopic surgery. In a September 3, 2008 form,
Dr. Fleischli found that appellant could not work and indicated by checking a box marked “no”
that the injury was not related to employment. Consequently, his opinion does not support her
claim.
On September 8, 2008 Dr. Flowers reviewed appellant’s history of knee surgery in
September 2006 following a work injury earlier that year. He opined that she was restricted from
work beginning June 30, 2006 due to her pain performing her duties. Subjective complaints of
pain, however, are insufficient to establish disability from employment.23
Appellant submitted a July 16, 2010 report from a physician assistant. However, physician
assistants are not considered physicians as defined under FECA. Their reports therefore lack
probative value and are insufficient to establish the claim.24
Dr. Fleischli, on February 14, 2012, noted that appellant had left knee pain after stepping
in a hole on June 30, 2006. On examination, he found some irritation upon patellofemoral testing.
Dr. Fleischli attributed the cause of appellant’s left knee pain and disability to her accepted
employment injury, noting that she could not perform full-time employment due to pain. While
he found that she had irritation on patellofemoral testing, he did not otherwise explain the basis
for his disability determination other than to note that she experienced pain. As discussed,
subjective pain complaints do not support disability from employment.25
In a September 27, 2012 report, Dr. Flowers deferred to Dr. Fleischli regarding appellant’s
current condition and disability, noting that he last evaluated her in 2008. He related that she could

21

See JaJa K. Asaramo, 55 ECAB 200, 204 (2004).

22

See S.E., Docket No. 08-2214 (issued May 6, 2009).

23

See A.H., Docket No. 16-1824 (issued June 2, 2017).

24

Lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical
opinion under FECA. See V.J., Docket No. 17-0358 (issued July 24, 2018); see also David P. Sawchuk, 57 ECAB
316, 320 n.11 (2006); 5 U.S.C. § 8101(2).
25

See A.H., supra note 23.

8

not perform extensive walking due to her knee condition. Dr. Flowers, however, did not provide
a specific diagnosis or address causation, and thus his opinion is of diminished probative value.26
Moreover, in a report dated April 30, 2009, Dr. Latimer, an OWCP referral physician,
considered appellant’s history of a June 30, 2006 work injury. He opined that she sustained a soft
tissue strain that had resolved within four weeks. Dr. Latimer further determined that appellant’s
September 2006 left knee surgery was unrelated to her employment injury, providing as a rationale
that objective evidence revealed changes due to chronic wear without edema. The Board finds
that the report of Dr. Latimer is based on a complete and accurate factual and medical history and
provides a comprehensive physical examination of appellant and is therefore afforded the weight
of the medical evidence.
The issue of whether a claimant’s disability from work is related to an accepted condition
must be established by a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disability is causally related to the employment injury and
supports that conclusion with sound medical reasoning.27 Appellant has not submitted such
evidence and thus has not met her burden of proof.28
On appeal counsel asserts that OWCP should have adjudicated his request for claim
expansion. The Board’s jurisdiction, however, is limited to reviewing final decisions of OWCP.29
OWCP has not issued a final decision on this issue and thus it is not before the Board at this time.
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 total disability commencing April 3,
2008 causally related to her June 30, 2006 employment injury.

26

See R.S., Docket No. 16-1303 (issued December 2, 2016).

27

See G.B., Docket No. 16-1033 (issued December 5, 2016).

28

See K.A., Docket No. 17-1718 (issued February 12, 2018).

29

20 C.F.R. § 501.2(c).

9

ORDER
IT IS HEREBY ORDERED THAT the March 5, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 18, 2018
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, FEDERAL AIR
MARSHAL SERVICE, Chicago, IL, Employer
__________________________________________

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

Docket No. 19-1808
Issued: April 2, 2020

Case Submitted on the Record

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

JURISDICTION
On August 27, 2019 appellant filed a timely appeal from an April 5, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated July 14, 2015, to the filing of this appeal, pursuant

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of
error.
FACTUAL HISTORY
On May 12, 2014 appellant, then a 43-year-old federal air marshal, filed a traumatic injury
claim (Form CA-1) alleging that on March 21, 2014 she injured her left breast while in the
performance of duty. She explained that during a self-defense class she received numerous blows
to the left side of her torso when she held a bag that was punched and kicked. Appellant noted
that after the self-defense class and running on a treadmill to prepare for a mission readiness
assessment she felt pain and swelling. She did not indicate on the claim form that she had stopped
work. The employing establishment indicated that appellant was injured while in the performance
of duty.
In a May 23, 2014 development letter, OWCP informed appellant that additional evidence
was required in support of her claim. It advised her of the type of evidence necessary to establish
her claim and attached a questionnaire for her completion. OWCP afforded appellant 30 days to
submit the requested evidence.
In a May 14, 2014 narrative statement, appellant explained that she had undergone surgery
on February 3, 2014 and returned to full-duty work in March 2014. During the week of March 17
through 21, 2014 she taught a self-defense course. While engaging in this training appellant placed
the padded bags that were being punched and kicked up against her body on her left side and felt
pain during the class, but since it was not debilitating she did not stop. She continued to experience
pain and swelling and went to the doctor on April 8, 2014.
A May 14, 2014 attending physician’s report (Form CA-20) from Dr. John Kim, a Boardcertified plastic surgeon related that appellant was injured at work when students punched and
kicked a bag she was holding. Dr. Kim noted that appellant had a preexisting condition of breast
cancer, and his findings included a nonhealing left breast wound following a return to work after
a mastectomy. He diagnosed a left mechanical complication due to breast prosthesis and checked
the box marked “yes” indicating that he believed the diagnosed condition was caused or aggravated
by an employment activity. Dr. Kim concluded that increased physical activity caused the opening

2

5 U.S.C. § 8101 et seq.

3

The Board notes that appellant submitted additional evidence to OWCP following the April 5, 2019 decision.
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.

2

of appellant’s reconstructed breast. He indicated that he had first examined appellant on
August 15, 2013 and continued to treat her through 2014.
May 21, 2014 hospital notes indicated that Dr. Kim performed a left breast revision with a
local flap, a wound closure, and a left breast expander exchange. On May 30, 2014 Dr. Kim
completed a work capacity evaluation (Form OWCP-5c) and indicated that appellant had
reconstruction following surgery for breast cancer. He stated that prior to her reconstruction she
also had radiation, which had complicated her healing.
In a June 13, 2014 letter to Dr. Kim, OWCP provided a statement of accepted facts (SOAF)
and indicated that additional information was needed to distinguish between the treatment required
by appellant’s preexisting radiation treatment and a March 21, 2014 employment incident. It
provided a questionnaire for his completion and afforded him 30 days to submit the requested
evidence.
In a June 20, 2014 letter, Dr. Kim noted that appellant had breast cancer and radiation with
reconstructive surgery. He related that she had reported that she experienced trauma on her breast
which had been previously radiated and reconstructed. Dr. Kim stated that the trauma appellant
experienced resulted in wound disruption, inflammation, and eventual exposure of the implant.
He indicated that she then required another reconstruction surgery on May 21, 2014 because of the
exposure caused by the blunt trauma appellant reported. Dr. Kim opined that appellant’s
diagnosed condition was aggravated by the trauma and caused the need for another surgery. He
noted that radiated tissue is chronically vulnerable to healing problems, and that appellant needed
to refrain from vigorous activity until she was healed.
By decision dated September 3, 2014, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish a causal relationship between the
diagnosed condition and the accepted March 21, 2014 employment incident.
On September 30, 2014 appellant requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review.
OWCP continued to receive progress reports from Dr. Kim.
By decision dated July 14, 2015, an OWCP hearing representative affirmed the
September 3, 2014 decision.
In an October 25, 2018 narrative medical report, Dr. Clifford Janke, Board-certified in
emergency medicine, noted that appellant’s medical history included a diagnosis of ductal
carcinoma in situ of the left breast. He stated that she was treated with three lumpectomies on
June 16, 29, and July 13, 2011. Appellant then underwent a six-week course of radiation on
September 5, 2011 and was released to full-time regular-duty work on March 17, 2014.
Dr. Janke related that on March 17, 2014 appellant completed firearm training and fitness
training session that included a run. After the run appellant felt pain and discomfort in her left
breast and noticed redness and swelling. During additional training at work on March 18, 2014
the left side of appellant’s body was struck multiple times. During another training session on
March 20, 2014 appellant exposed her left side to threats. She was extremely sore afterwards and
3

her left breast was completely red. Dr. Janke noted that on March 21, 2014 during a self-defense
course appellant’s left breast and rib cage were directly impacted by blows from a strike pad that
she held. Appellant estimated that during this course she first received 20 to 25 blows, then felt
pain and paused to take ibuprofen, and then continued to receive around 20 more blows. After the
course her left breast was red, warm to the touch, and swollen.
Dr. Janke listed appellant’s work-related diagnoses as disruption of wound in the left
breast, leakage of left breast prosthesis and implant, breast implant malfunction, mechanical
complication of left breast prosthesis and implant, and left breast contusion. He summarized
appellant’s treatment by Dr. Kim and recounted that on April 8, 2014 Dr. Kim found attenuated
skin on appellant’s left side and indicated that her healing process and incision site were disrupted
and that her implant was exposed.
Dr. Janke indicated that appellant’s tissue was weakened by radiation, and he explained
that trauma to compromised tissue results in poor healing because of the absence of blood vessels
and inflammatory cells. He related that during the first week that appellant returned to work in
March 2014 she suffered 40 to 50 blunt force traumas to her left breast and torso which caused
wound disruption and inflammation and led to the opening and exposure of her left breast implant.
Dr. Janke also noted that during appellant’s March 2014 run at work her left breast moved in an
up and down motion with every step, which stressed the wound and weakened the tissue by pulling
it apart. He opined that appellant’s disrupted wound healing then necessitated another surgery,
and he concluded that the wound disruption, exposed implant, and surgical intervention were
therefore work related. Dr. Janke additionally indicated that her work-related diagnoses caused
appellant to be unable to work through June 2014.
On December 11, 2018 appellant requested a review of the written record.
By decision dated January 9, 2019, an OWCP hearing representative denied appellant’s
request for a review of the written record, finding that her request was not made within 30 days of
the July 14, 2015 OWCP decision. The hearing representative further determined that the issue in
the case could equally well be addressed by requesting reconsideration from OWCP and
submitting evidence not previously considered.
On January 13, 2019 appellant requested reconsideration.
By decision dated April 5, 2019, OWCP summarily denied appellant’s reconsideration
request, finding that it was untimely and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.4 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP ’s

4
5 U.S.C. § 8128(a); see M.E., Docket No. 18-1497 (issued March 1, 2019); J.W., Docket No. 18-0703 (issued
November 14, 2018); Y.S., Docket No. 08-0440 (issued March 16, 2009).

4

decision for which review is sought. 5 Timeliness is determined by the document receipt date of
the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System. 6 Imposition of this one-year filing limitation does not
constitute an abuse of discretion. 7
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error. 8 If a request for
reconsideration demonstrates clear evidence of error, OWCP will reopen the case for merit
review.9
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. 10 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. 11 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. 12 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. 13 This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. 14 To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP ’s
decision.15
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard.16 The claimant must present evidence which on its face shows that OWCP made
5

20 C.F.R. § 10.607(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

7

See M.E., supra note 4; E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB
104 (1989).
8

See 20 C.F.R. § 10.607(b); M.E., supra note 4; Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

9

G.G., Docket No. 18-1074 (issued January 7, 2019); see also id. at § 10.607(b); supra note 6 at Chapter 2.1602.5
(February 2016).
10

A.A., Docket No. 19-1219 (issued December 10, 2019); J.F., Docket No. 18-1802 (issued May 20, 2019); J.D.,
Docket No. 16-1767 (issued January 12, 2017); see Dean D. Beets, 43 ECAB 1153 (1992).
11

Id.; see also Leona N. Travis, 43 ECAB 227 (1999).

12

J.F., supra note 10; J.D., supra note 10; Jimmy L. Day, 48 ECAB 652 (1997).

13

Id.

14

Id.

15

J.F., supra note 10; M.E., supra note 4; Robert G. Burns, 57 ECAB 657 (2006).

16

See G.G., supra note 9.

5

an error. Evidence such as a detailed, well-rationalized medical report which, if submitted before
the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error.17 The Board makes an independent determination of
whether a claimant has demonstrated clear evidence of error on the part of OWCP. 18
Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact
and make an award for or against payment of compensation. 19 Section 10.126 of Title 20 of the
Code of Federal Regulations provides that a decision shall contain findings of fact and a statement
of reasons.20
ANALYSIS
The Board finds that this case is not in posture for decision. In the instant case, OWCP
provided no discussion of the new medical evidence submitted by appellant from Dr. Janke. Its
failure to provide factual findings and explain the basis for its conclusion that appellant did not
demonstrate clear evidence of error precludes the Board’s review of the decision.
The Board therefore finds that the case is not in posture for decision because OWCP failed
to make findings regarding the evidence submitted in support of the reconsideration request. 21
OWCP summarily denied appellant’s request for reconsideration without complying with the
review requirements of FECA and its implementing regulations. 22 Section 8124(a) of FECA
provides that OWCP shall determine and make a finding of fact and make an award for or against
payment of compensation.23 Its regulations at 20 C.F.R. § 10.126 provide that the decision of the
Director of OWCP shall contain findings of fact and a statement of reasons.
For this reason, the case will be remanded to OWCP to enable it to properly consider all
the evidence submitted at the time of the April 5, 2019 decision followed by an appropriate
decision on whether appellant has demonstrated clear evidence of error.
CONCLUSION
The Board finds that this case is not in posture for decision.

17

J.F., supra note 10; J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 6 at Chapter 2.1602.5(a)
(February 2016).
18

See M.E., supra note 4; D.S., Docket No. 17-0407 (issued May 24, 2017).

19

5 U.S.C. § 8124(a).

20

20 C.F.R. § 10.126.

21

C.R., Docket No. 17-0964 (issued September 9, 2019).

22

Id.; see also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.1602.3d
(February 2016).
23

Supra note 19.

6

ORDER
IT IS HEREBY ORDERED THAT the April 5, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for action consistent with this
decision of the Board.
Issued: April 2, 2020
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.P., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
DISTRIBUTION CENTER, Tracy, CA,
Employer
__________________________________________

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

Docket No. 10-645
Issued: October 13, 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 January 19, 2010 appellant, through his attorney, filed a timely appeal of a
November 24, 2009 merit decision of the Office of Workers’ Compensation Program. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant sustained an injury on January 22, 2009 in the
performance of duty.
FACTUAL HISTORY
On April 13, 2009 appellant, then a 46-year-old police officer, filed a traumatic injury
claim alleging on January 22, 2009 that he sustained a right knee injury running on the treadmill
in a fitness test. He stated that he was only able to run for seven minutes because his knee felt
tight. Two weeks later appellant’s right knee became swollen and his physician recommended
surgery due to right knee prepatellar bursitis. The employing establishment stated that he did not
immediately report his claim.

In a letter dated April 13, 2009, the Office requested that appellant submit additional
factual and medical evidence in support of his claim. It allowed 30 days for a response.
By decision dated April 13, 2009, the Office denied appellant continuation of pay on the
grounds that the injury was not reported within 30 days.1
In an April 15, 2009 statement, appellant’s supervisor, Kurt Christensen, noted that on
January 22, 2009 appellant was required to participate in a mandatory physical fitness test which
included running one and one-half miles. Appellant ran on a treadmill and did not complain
about any knee pain. He first reported a knee condition on February 17, 2009 requesting leave
due to “knee problems.” Walt Murken observed appellant during the physical testing on
January 22, 2009 and stated that appellant objected to participating in the test, ran for ½ mile and
stopped. Appellant showed symptoms of being out of breath, attempted to run again and
ultimately completed .58 miles in 7½ minutes. He did not report an injury.
In a December 9, 2008 report, Dr. Mark A. Charney, a Board-certified orthopedic
surgeon, diagnosed recurrent prepatellar bursitis. He stated that appellant should not run for his
physical ability test, but could walk instead. On January 9, 2009 Dr. Steven Ray Seibert, a
podiatrist, recommended that appellant walk two miles rather than run for one and one-half
miles. He stated that appellant had ongoing intermittent painful conditions involving his legs
and feet. On April 13, 2009 Dr. Charney again diagnosed right prepatellar bursitis and tendinitis
which began in April 2008. He stated, “[appellant] was advised to avoid running, but was asked
to run at work. Dr. Charney tried to run, but this had exacerbated his knee pain.”
On April 19, 2009 Dr. Corky Hull, Board-certified in preventative medicine, stated that
on January 22, 2009 appellant suggested that he walk rather than run during the fitness test. He
stated that appellant was required to run because he did not have a medical documented longterm medical restriction or disability. Dr. Hull stated that appellant discontinued the test due to
general fatigue, did not complain of pain or discomfort and that symptoms due to an injury as a
result of the run would likely develop within 24 to 48 hours.
By decision dated May 22, 2009, the Office denied appellant’s claim finding that the
medical evidence did not support a causal relationship between the fitness run on January 22,
2009 and his diagnosed condition.
Appellant, through his attorney, requested an oral hearing on September 9, 2009. He
stated that he took a mandatory diagnostic physical agility test at the employing establishment on
January 22, 2009 which included running on a treadmill. During the run, appellant developed
tightness in his right knee and later developed sharp, stabbing pain which required him to use
leave for three days. He noted that his knee condition preexisted the fitness run. Appellant used
leave from February 10 through 19, 2010 and first sought medical treatment on February 16,
2009 due to the progressive increase in knee symptoms. He stated that Dr. Hull did not observe
his testing.

1

For final decisions issued by the Office on and after November 19, 2008, the Board’s review authority is limited
to appeals which are filed within 180 days from the date of issuance of the Office’s decision. See 20 C.F.R.
§ 501.3(e). Therefore the Board does not have jurisdiction to review this decision.

2

In a February 16, 2009 note, Dr. Timothy Charles Miller, a physician, described
appellant’s swollen leg and history of chronic bursitis. He stated that appellant developed
recurrent right knee pain, that appellant experienced “no trauma or down on knees but started to
hurt yesterday….” Dr. Miller diagnosed recurrent prepatellar bursitis. On February 18, 2009
Dr. Richard Lenson, a Board-certified orthopedic surgeon, noted appellant’s recurrent pain in the
right knee. He stated that appellant believed that his recent flair up, which began two days
previously, was related to a physical fitness test at work. Dr. Lenson diagnosed recurrent
prepatellar bursitis on the right. On February 26, 2009 Dr. Charney diagnosed right knee chronic
prepatellar bursitis and noted no changes in appellant’s medical history. On June 17, 2009 he
stated that appellant reported bilateral knee and ankle pain associated with running. Dr. Charney
found that appellant’s knees and ankle were normal, but that appellant reported pain. He stated,
“[Appellant] probably should not run based on what he is telling me.” In a note dated
September 11, 2009, Dr. Charney stated:
“[Appellant] says when he ran on a treadmill for a work physical agility test on
January 22, 2009, he developed swelling on his knee. He had been followed for
the prepatellar bursitis previous, to this date. This condition was exacerbated by
running on the treadmill at too steep an incline and too rapid a speed.”
The employing establishment submitted a statement dated October 5, 2009 alleging that
the treadmill was not set on an incline and that appellant set the speed for running. Appellant
was required to run one and one-half miles in seven and one-half minutes and selected the speed
he felt was appropriate to complete this test.
By decision dated November 24, 2009, the hearing representative found that appellant ran
on a treadmill in the performance of duty on January 22, 2009, but that he failed to submit
sufficient medical opinion evidence to establish a causal relationship between his employment
and his diagnosed right knee condition.
LEGAL PRECEDENT
The Office defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”2 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First the employee must
submit sufficient evidence to establish that he and she actually experienced the employment
incident at the time, place and in the manner alleged.3 Second, the employee must submit
sufficient evidence, generally only in the form a medical evidence, to establish that the
employment incident caused a personal injury.4 A medical report is of limited probative value
on a given medical question if it is unsupported by medical rationale.5 Medical rationale
2

20 C.F.R. § 10.5(ee).

3

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

4

J.Z., 58 ECAB 529 (2007).

5

T.F., 58 ECAB 128 (2006).

3

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 activity. The
opinion of the physician must be based on a complete factual and medical background of the
claim, 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 activity or factors identified by the claimant.6
ANALYSIS
Appellant alleged that he sustained a right knee condition as a result of participating in an
employing establishment physical ability test on January 22, 2009. The Office accepted that
appellant ran on a treadmill for seven minutes, but found that he failed to submit medical
evidence establishing a physical condition resulting from this activity.
The Board finds that appellant has not submitted medical opinion evidence to meet his
burden of proof to establish his traumatic injury claim. Appellant alleged that he injured his
right knee on January 22, 2009. The medical evidence establishes that he had a preexisting right
knee condition of prepatellar bursitis. Appellant first sought medical treatment for the
January 22, 2009 incident on February 16, 2009 from Dr. Miller who noted that appellant
developed recurrent right knee pain, with no history of trauma on February 15, 2009. This report
does not support appellant’s claim for a traumatic injury occurring on January 22, 2009 as
Dr. Miller reported that appellant’s knee pain increased spontaneously on February 15, 2009.
Dr. Miller did not mention the January 22, 2009 employment incident and did not suggest a
causal relationship between appellant’s condition and his employment.
Dr. Lenson examined appellant on February 18, 2009 for recurrent pain in the right knee.
He noted that appellant attributed his current knee pain, which began in the last two days to a
physical fitness test at work. Dr. Lenson did not provide the specific details of the January 22,
2009 employment incident or offer any explanation as to how appellant’s current condition was
due to that incident. Without medical opinion evidence supporting a causal relationship between
the diagnosed condition and the employment incident, this report is not sufficient to meet
appellant’s burden of proof in establishing a traumatic injury claim.
Dr. Charney diagnosed right knee chronic prepatellar bursitis on February 26, but noted
that there were no changes in appellant’s medical history. As he did not discuss the January 22,
2009 employment incident, his report does not support appellant’s claim for a traumatic injury
on that date. On June 17, 2009 Dr. Charney noted that appellant reported knee pain while
running. He suggested that appellant avoid running. This note again fails to provide the
necessary factual history to support an injury on January 22, 2009. The Board notes that the
mere diagnosis of “pain” is not a firm medical diagnosis.7 On September 11, 2009 Dr. Charney
described the incident of January 22, 2009 to include appellant’s run on a treadmill at work. He
reported that appellant developed swelling in his right knee following this run. Dr. Charney
opined that appellant’s chronic prepatellar bursitis was exacerbated by running on the treadmill.
While Dr. Charney provided a correct date of incident and opined that appellant’s condition was
6

A.D., 58 ECAB 149 (2006).

7

Robert Broome, 55 ECAB 339 (2004).

4

exacerbated by running, this report is not sufficient to meet appellant’s burden of proof. He did
not base his report on a complete and accurate description of events as the employing
establishment disputed that the treadmill was set on an incline and that appellant was forced to
go to fast. Dr. Charney did not address the nature of appellant’s right knee condition or offer any
explanation of why appellant did not seek medical treatment for several weeks after the
employment incident. He did not explain how the employment activity caused an exacerbation
of the preexisting knee condition. Due to these deficiencies, Dr. Charney’s report is not
sufficient to meet appellant’s burden of proof.
CONCLUSION
The Board finds that appellant has not submitted the necessary medical opinion evidence
to establish that he sustained a right knee injury on January 22, 2009.
ORDER
IT IS HEREBY ORDERED THAT the November 24, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 13, 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
__________________________________________
R.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________

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

Docket No. 09-714
Issued: January 4, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 22, 2009 appellant filed a timely appeal from the June 6 and December 15,
2008 merit decisions of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2 and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant established that her disability commencing
January 21, 2008 was causally related to her December 28, 2004 injury; and (2) whether the
Office properly denied appellant’s request for spinal surgery.
FACTUAL HISTORY
On December 28, 2004 appellant, then a 40-year-old casual carrier, filed a traumatic
injury claim alleging that she injured her head, neck and low back that day when she fell down
steps while working. She stopped work that day. The Office accepted her claim for cervical
lumbar and thoracic strains. Appellant returned to work on June 25, 2005.

In a February 4, 2005 report, Dr. W.S. Edwards, a Board-certified orthopedic surgeon,
diagnosed cervical, thoracic and lumbar strain/sprains. He also found evidence of symptom
magnification. Dr. Edwards stated that there was no anticipated permanent impairment related to
appellant’s injury and that she should be able to return to work in three weeks. In a March 4,
2005 report, he found some expected tenderness but no focal neurologic deficit in the upper or
lower extremities. Appellant’s gait and flexibility were normal. Dr. Edwards found no evidence
of permanent impairment and discharged her from care. He stated that appellant might
experience temporary difficulty with repetitive twisting and turning of her shoulder and neck as
well as with repetitive bending and lifting when she returned to work. In a March 4, 2005
attending physician’s report, Dr. Edwards released her to sedentary duties. On May 18, 2005 the
Office requested that he clarify appellant’s work capabilities and whether there were any
residuals from the work injury. It noted that appellant had not returned to work.
The Office received reports from Dr. Fred D. McQueen, a Board-certified family
practitioner. On May 5, 2005 Dr. McQueen reviewed appellant’s history of injury and her
complaints of discomfort in her neck, shoulders and anterior chest wall. Appellant had sinusitis
with bronchitis and severe muscle spasm of the cervical spine and shoulders. Dr. McQueen
recommended home rest and medication until he could determine the kind of work she could
perform. On June 6, 2005 he noted that appellant had worked for one day in a sedentary job
sliding or casing mail but stopped when her pain became severe. X-rays were negative.
Dr. McQueen recommended that appellant not work due to pain.
In a June 17, 2005 report, Dr. Edwards advised that, at her most recent office visit,
appellant had been discharged from care and exhibited significant symptom magnification.
Appellant informed him that her symptoms continued and her activities were limited by
discomfort. Dr. McQueen advised that she did not localize any complaints in a dermatomal
pattern, there was no motor weakness or reflex asymmetry and she had inappropriate skin
tenderness to even light palpation over her right shoulder and her lumbosacral junction and
limited flexibility in all of those areas. X-rays of the cervical, thoracic and lumbar spine were all
normal. Dr. McQueen stated that appellant could return to work without restrictions. He
recommended that she use good body mechanics and careful lifting techniques. The record
reflects that appellant returned to full-time work on June 25, 2005.
In a July 30, 2007 report, Dr. McQueen noted that appellant continued to complain of
pain from her work injury. He advised that she had cervical spine pain on examination and
spasms of the trapezius muscles bilaterally. Dr. McQueen recommended magnetic resonance
imaging (MRI) scan of the cervical spine. He also noted weakness of appellant’s right arm as
compared to the left and requested nerve conduction studies.1 Appellant underwent an MRI scan
on August 9, 2007. The cervical study showed mild spondylosis with no significant disc
herniation. The thoracic spine scan was negative. The lumbar scan showed minimal facet
arthropathy with some minimal bulging and possible minimal herniation at L4-5, but neural
elements did not appear significantly effected. On October 10, 2007 Dr. McQueen reviewed
appellant’s diagnostic testing and advised that surgery was not warranted. He stated that she
would continue to have muscle spasm and pain. Dr. McQueen provided medication and work
1

On June 7, 2007 the Office authorized Dr. McQueen to be appellant’s designated physician.

2

restrictions. In a January 3, 2008 report, he advised that she had disc disease of the lumbar spine
at L4-5 and was at maximum medical improvement.
In a January 21, 2008 report, Dr. Dion J. Arthur, an orthopedic surgeon, noted the history
of injury, appellant’s medical treatment and her complaints. He provided findings on
examination and his interpretation of the diagnostic texts obtained of the cervical, lumbar and
thoracic spine. Dr. Arthur stated that MRI scans showed herniated discs at C4-5, C5-6 and L4-5
levels. He stated that appellant was a candidate for a cervical and lumbar disc decompression at
the C4-5, C5-6 and L4-5 levels as she had failed exhaustive conservative management over the
past three years.
Appellant stopped work on January 21, 2008. On February 4, 2008 she filed a Form
CA-7 claim for wage-loss compensation as of January 21, 2008. On February 13, 2008 appellant
requested authorization for surgery. In a February 29, 2008 letter, the Office requested that she
submit a detailed medical report from her attending physician.
In a March 6, 2008 report, Dr. Arthur reviewed the history of injury. He opined that
appellant had significant injuries which caused disc herniations of both the cervical and lumbar
spine. Dr. Arthur noted that she described a very severe traumatic injury with a fast acceleration
and deceleration injury to the body which created a significant and rapid flexion and extension
injury to the neck and blunt trauma to the low back. Appellant’s attempt to protect the back of
her head created a rapid snapping backwards and forwards of the neck as the majority of the
blunt trauma occurred to the shoulder, upper back and lower back region. Because the neck was
unprotected, it resulted in a severe whiplash injury that was significant enough to cause the
spinal trauma that she experienced. Dr. Arthur stated that the disc herniations of both the
cervical and lumbar spine caused her chronic pain syndromes since 2004. He advised that
appellant was not a malingerer and had sustained a significant injury. Dr. Arthur noted that she
did not have cervical or lumbar complaints prior to her injury. He found that appellant was a
candidate for cervical and lumbar disc decompression surgery. Dr. Arthur stated that she was
totally disabled.
The Office referred appellant, together with a statement of accepted facts, a list of
questions and the medical record, to Dr. Surendrapal Mac, a Board-certified orthopedic surgeon,
for a second opinion examination. In a June 13, 2008 report, Dr. Mac reviewed the history of
injury, the medical record, including diagnostic testing and set forth findings on examination.
He noted tenderness over the mid-cervical area and painful movements of the cervical spine.
Shoulder movements were full and neurological examination revealed no typical nerve or root
distribution despite appellant’s claims of diminished sensations over the left upper extremity.
Examination of the thoracic and lumbar revealed tenderness over the lumbar area with mildly
painful movements. X-ray testing of the cervical and lumbar spine revealed mild or minimal
degenerative changes. Dr. Mac diagnosed cervical strain, thoracic strain, lumbar strain, mild
cervical degenerative arthritis, mild lumbar degenerative arthritis and disc bulging at L4-5. He
opined that the accepted cervical, thoracic and lumbar strains had resolved and appellant’s
current condition more likely than not was unrelated to the strains she sustained in 2004.
Dr. Mac found that there was some symptom magnification on examination. As to whether the
proposed surgeries would benefit appellant, he noted the 2007 MRI scan did not reveal any clear
nerve or spinal cord compression. Since Dr. Mac had no experience doing spine surgery, he

3

would defer to the surgeon as to whether the procedure would benefit appellant. In a May 28,
2008 OWCP-5c work restriction form, he advised that she was capable of performing her usual
job without restriction.
Dr. Arthur submitted additional progress reports. He stated that appellant was totally
disabled and needed surgery.
By decision dated June 6, 2008, the Office denied appellant’s claim for wage-loss
compensation beginning January 21, 2008 and her request for surgery as the claimed medical
condition was not due to the accepted work injury. It found that the weight of the medical
evidence rested with the opinions of Dr. Edwards and Dr. Mac who found that she had no
residuals from the accepted work injury.
On June 14, 2008 appellant, through her attorney, requested a telephonic hearing that was
held on October 27, 2008. She testified that she stopped work on January 19, 2008 due to pain in
her upper and lower back, neck and arms. Appellant submitted progress reports from Dr. Arthur
dated March 20 through May 20, 2008.
In a June 19, 2008 report, Dr. McQueen advised that appellant had depression secondary
to chronic pain syndrome that was directly related to her chronic muscle spasms of the cervical
spine and lumbar disc disease. He requested that she be allowed certain medication. In an
August 6, 2008 report, Dr. Ajay K. Ajmani, a Board-certified internist, noted the history of
injury. He provided preliminary diagnoses of nonrheumatologic and nonautoimmune disease,
pain syndrome and fibromyalgia. Physical therapy reports from 2005 were submitted to the
record.
By decision dated December 15, 2008, an Office hearing representative affirmed the
June 6, 2008 decision.
LEGAL PRECEDENT -- ISSUE 1
As used in the Federal Employees’ Compensation Act, the term disability means
incapacity, because of an employment injury, to earn the wages the employee was receiving at
the time of injury.2 When the medical evidence establishes that the residuals of an employment
injury are such that, from a medical standpoint, they prevent the employee from continuing in his
employment, he is entitled to compensation for any loss of wage-earning capacity resulting from
such incapacity.3
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.4 Findings on examination are generally
2

Richard T. DeVito, 39 ECAB 668 (1988); Frazier V. Nichol, 37 ECAB 528 (1986); Elden H. Tietze, 2 ECAB 38
(1948); 20 C.F.R. § 10.5(f).
3

Bobby W. Hornbuckle, 38 ECAB 626 (1987).

4

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

4

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 he 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.5 The Board will not require the Office to pay compensation
for disability in the absence of any medical evidence directly addressing the specific dates of
disability, for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.6
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of the Act provides for the furnishing of services, appliances and
supplies prescribed or recommended by a qualified physician which the Office, under authority
delegated by the Secretary, considers likely to cure, give relief, reduce the degree or the period of
disability or aid in lessening the amount of monthly compensation.7 In interpreting section
8103(a), the Board has recognized that the Office has broad discretion in approving services
provided under the Act to ensure that an employee recovers from his or her injury to the fullest
extent possible in the shortest amount of time.8 The Office has administrative discretion in
choosing the means to achieve this goal and the only limitation on the Office’s authority is that
of reasonableness.9
While the Office is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.10 In order to be entitled to reimbursement
for medical expenses, a claimant must establish that the expenditures were incurred for treatment
of the effects of an employment-related injury. Proof of causal relationship in a case such as this
must include supporting rationalized medical evidence.11 Therefore, in order to prove that the
surgical procedure is warranted, appellant must submit evidence to show that the procedure was
for a condition causally related to the employment injury and that the surgery was medically
warranted.12 Both of these criteria must be met in order for the Office to authorize payment.13
5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008).

6

G.T., id.; Fereidoon Kharabi, supra note 4.

7

5 U.S.C. § 8103(a).

8

Dale E. Jones, 48 ECAB 648, 649 (1997).

9

James R. Bell, 52 ECAB 414 (2001); Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of
discretion by the Office is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment or administrative actions which are contrary to both logic and probable deductions from established facts).
10

Debra S. King, 44 ECAB 203, 209 (1992).

11

Id.; Bertha L. Arnold, 38 ECAB 282 (1986).

12

Joseph P. Hofmann, 57 ECAB 456 (2006).

13

Dona M. Mahurin, 54 ECAB 309 (2003); Cathy B. Millin, 51 ECAB 331, 333 (2000).

5

ANALYSIS -- ISSUES 1 and 2
The Office accepted that on December 28, 2004 appellant sustained neck, lumbar and
thoracic strains due to a fall down steps. In a June 17, 2005 report, Dr. Edwards, a Boardcertified orthopedic surgeon and the initial treating physician, clarified for the Office that
appellant had been released from care on March 4, 2005 and that she could work without
restrictions. He stated that the x-rays of the cervical, thoracic and lumbar spine were normal,
appellant’s complaints did not follow a dermatomal pattern and there were no motor weakness or
reflex asymmetry. Dr. Edwards also stated that appellant exhibited significant symptom
magnification.
Appellant returned to full-time work on June 25, 2005. She stopped work on January 21,
2008 and filed a claim for wage-loss compensation commencing January 21, 2008 due to her
December 28, 2004 employment injury. Appellant also requested authorization for spinal
surgery. The Office determined that the weight of the medical evidence that she had no
remaining residuals from her work injury was represented by Dr. Mac’s second opinion. In a
June 13, 2008 report, Dr. Mac opined that the accepted cervical, thoracic and lumbar strains had
resolved and appellant’s current conditions were not related to the accepted injuries. He advised
that she exhibited some symptom magnification during his May 28, 2008 examination and that
she was capable of performing her usual job without restrictions. Dr. Mac also stated that he did
not know whether decompression of the subligamentous disc bulge would help appellant as the
MRI scan did not have any clear nerve or spinal cord compression.
The Board finds that appellant did not submit sufficient medical evidence to establish that
her disability on or after January 21, 2008 or her request for spinal surgery was causally related
to her December 28, 2004 employment injury.
Dr. Arthur opined that appellant’s subligamentous disc herniations of the cervical and
lumbar spine were caused by the December 28, 2004 work injury and that she was a candidate
for cervical and lumbar disc decompression. On January 21, 2008 he indicated that she had
herniated disc at C4-5, C5-6 and L4-5 levels based on his review of the 2007 MRI’s scans and
recommended cervical and lumbar disc decompression as she had failed conservative
management. Dr. Arthur opined, on March 6, 2008, that appellant’s subligamentous disc
herniations of the cervical and lumbar spine were caused by the December 28, 2004 work injury.
He explained this was due to the nature of appellant’s fall and that she had not had any cervical
or lumbar medical management or complaints prior to this injury. Dr. Arthur further opined that
she was totally disabled. Although the above-referenced reports addressed appellant’s lumbar
and cervical herniated disc conditions and discussed the possible need for corrective surgery, he
failed to provide adequate medical rationale explaining how a fall down the stairs on
December 28, 2004 or the herniation caused total disability for work beginning
January 21, 2008.14 Furthermore, there is no bridging evidence which would relate her

14

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value). See also, Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah,
52 ECAB 457 (2001).

6

diagnosed cervical and lumbar herniations to the accepted neck, lumbar and thoracic strains.15
This is important in view of Dr. Edwards more contemporaneous reports indicating that appellant
was released from his care and her x-rays were normal. Therefore, Dr. Arthur’s reports are
insufficient to establish that her disability beginning January 21, 2008 or her requested surgery
were due to the December 28, 2004 work injury.
Dr. McQueen advised, in his January 3, 2008 report, that appellant had lumbar disc
disease of the lumbar spine at L4-5. In his June 19, 2008 report, he opined that she had
depression due to chronic pain syndrome that was directly related to her chronic muscle spasms
of the cervical spine and her lumbar disc disease. However, the reports of Dr. McQueen do not
establish appellant’s claim because he provided no indication that her disability on or after
January 21, 2008 was due to her December 28, 2004 employment injury.16 Additionally, he did
not provide any discussion to establish causal relationship of appellant’s additional diagnosed
conditions of lumbar disc disease and depression, which are not accepted conditions, nor did he
address whether the need for the requested surgery was employment related.
The remaining medical evidence of record does not contain an opinion as to the cause of
appellant’s disability beginning January 21, 2008 or the need for the requested surgery. Thus, it
is of limited probative value and is insufficient to establish her claim.
Appellant has failed to provide rationalized opinion evidence establishing that her
disability commencing January 21, 2008 was causally related to her accepted December 28, 2004
employment injuries. Accordingly, she has not met her burden of proof. As appellant has not
established that the requested surgery is for an employment condition or that it is medically
warranted, the Office did not abuse its discretion in declining to authorize surgery.
CONCLUSION
The Board finds that appellant failed to establish that she had any disability on or after
January 21, 2008 causally related to her December 28, 2004 work injury. The Board further
finds that the Office did not abuse its discretion in denying her request for surgery.

15

When there is a long delay between the testing on which the opinion is based and the employment incident, the
probative value of the opinion offered is diminished. The longer the period of time between the testing and the
employment incident, the greater the likelihood that an event not related to employment has caused or worsened the
condition. Mary A. Ceglia, 55 ECAB 626, 629 (2004).
16

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

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated December 15, 2008 is affirmed.
Issued: January 4, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’' Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Carmel Valley, CA, Employer
__________________________________________

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

Docket No. 21-1269
Issued: March 28, 2022

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 August 16, 2021 appellant filed a timely appeal from a July 29, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits,
effective August 15, 2021, for failure to complete an EN1032 form as requested.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 29, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedures 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 April 28, 2017 an employing establishment official, on behalf of appellant, then a 45
year-old rural carrier, filed a traumatic injury claim (Form CA-1) alleging that on April 15, 2017
appellant was injured in a motor vehicle accident, which resulted in head trauma, contusions, and
soft tissue damage while in the performance of duty. OWCP accepted the claim for multiple
fractures of the left ribs, traumatic subarachnoid hemorrhage without loss of consciousness,
cerebral infarction due to unspecified collusion or stenosis of right anterior cerebral artery,
aneurysm of other specified arteries, cerebral aneurysm, nonruptured, and contusion of left lower
leg. It paid appellant wage-loss compensation on the supplemental rolls, commencing May 30,
2017, and on the periodic rolls, commencing June 25, 2017.
Over time, OWCP periodically requested that appellant submit financial disclosure
statements (Form EN1032), which solicited information about her employment, volunteer work,
dependent(s) status, receipt of other federal benefits and/or payments, and third -party settlements.
On June 9, 2021 OWCP advised appellant that she was required to fully answer all
questions on the enclosed EN1032 form and return it within 30 days or her benefits would be
suspended. It mailed the notice to her last known address of record. No response was received.
By decision dated July 29, 2021, OWCP suspended appellant’s wage-loss compensation
benefits, effective August 15, 2021, due to her failure to submit the EN1032 form, as requested.
It advised that, if she were to complete and return the form, her wage-loss compensation benefits
would be restored retroactively to the date of suspension.
LEGAL PRECEDENT
Section 8106(b) of FECA authorizes the Secretary of Labor to require a partially disabled
employee to report his or her earnings from employment or self-employment, by affidavit or
otherwise, in the manner and at the times the Secretary specifies. 3
Under section 10.528 of OWCP’s implementing federal regulations, an employee in receipt
of compensation benefits must complete an affidavit as to any work or activity indicating an ability
to work, which the employee has performed for the prior 15 months. 4 If an employee who is
required to file such a report fails to do so within 30 days of the date of the request, his or her right
to compensation for wage loss is suspended until OWCP receives the requested report. At that
time, OWCP will reinstate compensation retroactive to the date of suspension if the employee
remains entitled to compensation.5

3

5 U.S.C. § 8106(b).

4

20 C.F.R. § 10.528. See also R.B., Docket No. 20-0176 (issued June 25, 2020); A.H., Docket No. 15-0241 (issued
April 3, 2015).
5

Id. See also J.M., Docket No. 20-1310 (issued April 21, 2021); P.M., Docket No. 16-0382 (issued May 19, 2016).

2

ANALYSIS
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective August 15, 2021, due to her failure to complete an EN1032 form as requested.
On June 9, 2021 OWCP provided appellant with the EN1032 form and advised that federal
regulations required her to complete the form and answer all questions concerning her employment
or earnings. It properly notified appellant that, if she did not completely answer all questions and
return the form within 30 days, her benefits would be suspended. The record reflects that OWCP’s
letter was sent to appellant’s last known address of record and there is no indication that it was
returned as undeliverable. 6 Under the mailbox rule, a document mailed in the ordinary course of
the sender’s business practices to the addressee’s last known address is presumed to be received
by the addressee. 7
The record indicates that appellant failed to timely submit an EN1032 form within 30 days
of OWCP’s request. As OWCP was paying appellant wage-loss compensation on the periodic
rolls she was, therefore, required to fully complete and submit the EN1032 form in a timely
manner.8 Appellant’s failure to file an EN1032 form within 30 days properly resulted in the
suspension of her wage-loss compensation. Thus, the Board finds that OWCP properly suspended
her wage-loss compensation benefits, effective August 15, 2021, pursuant to 20 C.F.R. § 10.528.9
CONCLUSION
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective August 15, 2021, for failure to submit a completed EN1032 form as requested.

6

See J.H., Docket No. 20-0785 (issued October 23, 2020); Kenneth E. Harris, 54 ECAB 502 (2003).

7

Id.

8

See R.S., Docket No. 20-0580 (issued September 14, 2020); A.S., Docket No. 17-1530 (issued November 7, 2017).

9

See R.B., supra note 4.

3

ORDER
IT IS HEREBY ORDERED THAT the July 29, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 28, 2022
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jersey City, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-952
Issued: July 13, 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 February 15, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ hearing representative decision dated August 21, 2006 and schedule
award decision dated February 10, 2006. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this schedule award.
ISSUE
The issue is whether appellant has more than a five percent permanent impairment to her
right lower extremity.
FACTUAL HISTORY
This is the third appeal before the Board. Appellant, a 50-year-old clerk, filed a claim for
benefits on December 16, 1993, alleging that she sustained a lumbosacral strain and sciatic
neuritis causally related to employment factors. The Office accepted the claim for lumbar sacral
sprain with sciatica. Appellant filed a claim for recurrence of her work-related disability on
October 14, 1997, which the Office denied by decision dated February 6, 1998. In a decision

dated October 27, 2000, the Board affirmed the Office’s February 6, 1998 decision.1 Appellant
filed a Form CA-7 claim for a schedule award based on a partial loss of use of her right lower
extremity. By decision dated July 12, 2002, the Office issued schedule awards for a four percent
permanent impairment of the right leg and a twelve percent permanent for the left leg.
Appellant’s attorney requested reconsideration of the award for the right leg. In a decision dated
July 16, 2003,2 the Board set aside the Office’s award for the right leg and remanded the case for
consideration of whether appellant had any impairment of her right leg due to motor loss for a
spinal based disorder, pursuant to Table 15-16 at page 424 of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (fifth edition) the (A.M.A., Guides). The
facts of this case are set forth in the Board’s October 27, 2000 and July 16, 2003 decisions and
are hereby incorporated by reference.
By letter dated January 22, 2004, the Office asked appellant’s treating physician,
Dr. Clay Irving, III, Board-certified in orthopedic surgery, to provide an impairment evaluation
for the right lower extremity in accordance with the Board’s instructions. The Office added a
note to appellant in a postscript to the letter, advising her to assist in obtaining Dr. Irving’s report
by letter dated March 11, 2004. No response was forthcoming.
By decision dated April 1, 2004, the Office found that appellant had failed to meet her
burden to provide a supplemental opinion from her treating physician to provide an impairment
evaluation in accordance with the Board’s instructions.
By letter dated April 8, 2004, appellant’s attorney requested an oral hearing, which was
held on December 14, 2004.
By decision dated March 2, 2005, an Office hearing representative set aside the April 1,
2004 decision and remanded the case for referral to a second opinion specialist.
In a report dated January 6, 2006, Dr. Paul A. Foddai, Board-certified in orthopedic
surgery, determined that appellant had a 20 percent impairment of the right lower extremity
based on loss of strength pursuant to Table 15-18 at page 424 of the A.M.A., Guides. He derived
this rating based on a motor deficit of 4/5. Dr. Foddai also found that appellant had a unilateral
spinal nerve root impairment at S1. He found, however, that appellant’s abnormality was motor
power only, with no sensory abnormality of the S1 nerve root.
In a report dated February 3, 2006, an Office medical adviser found that appellant had a
five percent impairment of her right lower extremity based on the A.M.A., Guides. The Office
medical adviser took Dr. Foddai’s finding of a 20 percent maximum loss times a motor deficit of
4/5, which totaled a 5 percent right lower extremity impairment pursuant to Tables 15-16 and 1518 at page 424. He found that there was a zero percent sensory impairment.

1

Docket No. 99-1827 (issued October 27, 2000).

2

Docket No. 03-811 (issued July 16, 2003).

2

On February 10, 2006 the Office granted appellant a schedule award for a five percent
permanent impairment of the right lower extremity for the period November 2 to 22, 2001 for a
total of 2.88 weeks of compensation.
By letter dated February 16, 2006, appellant’s attorney requested a hearing, which was
held on June 7, 2006. Counsel contended that the Office medical adviser erred by failing to
derive a rating for sensory deficit. Counsel contended that this created a conflict between the
Office medical adviser and the opinions of previous physicians of record.
In a decision dated August 21, 2006, an Office hearing representative affirmed the
February 10, 2006 Office decision and denied appellant’s claim for an additional award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 set forth the
number of weeks of compensation to be paid for permanent loss, or loss of use of the members
of the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of
compensation is paid in proportion to the percentage loss of use.4 However, the Act does not
specify the manner in which the percentage of loss of use of a member is to be determined. For
consistent results and to ensure equal justice under the law to all claimants, the Office has
adopted the A.M.A., Guides (fifth edition) as the standard to be used for evaluating schedule
losses.5
ANALYSIS
In its July 16, 2003 decision, the Board instructed the Office to determine whether
appellant had any impairment in her right leg due to motor loss for a spinal based disorder
pursuant to Table 15-16 at page 424. Appellant was referred to Dr. Foddai, who calculated a 20
percent impairment based on a 4/5 motor loss under Table 15-16. Using Table 15-16, the Office
medical adviser found that appellant’s 20 percent loss equated to a Grade 4 motor deficit. He
then calculated her right-sided 5 percent lower extremity impairment by multiplying the
maximum deficit for a Grade 4 impairment based on motor deficit under Table 15-16, 25, times
20 percent. The Office medical adviser concurred with Dr. Foddai’s opinion of a zero percent
sensory impairment; Dr. Foddai had stated that appellant’s abnormality was motor power only,
with no sensory abnormality of the S1 nerve root.6
There is no other probative medical evidence establishing that appellant sustained any
additional permanent impairment. The Board finds that the Office medical adviser properly
applied the A.M.A., Guides to the rate of appellant’s right lower extremity impairment. His
3

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

4

5 U.S.C. § 8107(c)(19).

5

20 C.F.R. § 10.404.

6

The Office medical adviser cited Dr. Foddai’s finding of 20 percent nerve root impairment at S1 pursuant to
Table 15-18. However, Dr. Foddai did not apply Table 15-18 in calculating appellant’s lower extremity impairment.

3

report constitutes the weight of medical opinion. Following the Office’s decision, appellant’s
attorney requested a hearing but did not submit any additional medical evidence. The Board will
affirm the Office’s February 10 and August 21, 2006 decisions granting appellant a schedule
award for a five percent permanent impairment to her right lower extremity.7
CONCLUSION
The Board finds that appellant has no more than a five percent permanent impairment to
her right lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the August 21 and February 10, 2006 decisions of
the Office of Workers’ Compensation Programs be affirmed.
Issued: July 13, 2007
Washington, DC

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

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

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

7

On appeal, appellant’s attorney contends that the Office further erred in failing to grant an additional impairment
for the left lower extremity. However, in its July 16, 2003 decision, the Board remanded the case for the Office to
consider a greater impairment award for the right lower extremity only. Appellant’s attorney has not raised this
issue or filed a claim for the left lower extremity since the July 2003 decision. The Board therefore rejects counsel’s
argument.

4