United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, San Antonio, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1599
Issued: March 7, 2019

Case Submitted on the Record

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

JURISDICTION
On August 20, 2018 appellant filed a timely appeal from an August 1, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a right knee
condition causally related to the accepted April 16, 2018 employment incident.
FACTUAL HISTORY
On April 23, 2018 appellant, then a 62-year-old general clerk, filed a traumatic injury claim
(Form CA-1) alleging that on April 16, 2018 he injured his right knee while in the performance of
duty. He explained that his right shoe got caught on a chair, which restrained him from getting
1

5 U.S.C. § 8101 et seq.

up and caused his right knee to pop. Appellant stopped work on April 17, 2018 and returned to
work on April 22, 2018.
In an April 23, 2018 statement, D.B., a coworker, indicated that on April 16, 2018 she and
appellant were in the general clerk’s office discussing work that needed to be done and when he
started to stand his knee popped, which D.B. heard. She asked him if he was okay, and commented
that “he could not walk on it for a while.” D.B. further commented that, “when appellant did walk
on it, he had a limp and was in pain.”
Appellant visited an Emergency Clinic on the date of the injury. The discharge notes
document treatment for a “knee/lower-leg problem,” noted that the pain began around 4:45 a.m.,
and also noted that “[appellant’s] symptoms were not related to any recent trauma.” The authoring
nurse practitioner diagnosed “pain in right knee,” and prescribed a knee immobilizer, steroidal
injections, and anti-inflammatory medication.
Appellant submitted April 16, 2018 emergency clinic treatment notes, which included a
right knee x-ray, discharge/home-care instructions for right knee pain and use of a knee
immobilizer, a list of various prescription medications, and a note excusing him from work until
April 19, 2018.
An April 16, 2018 right knee x-ray revealed mild tricompartmental degenerative change, a
nonspecific, small suprapatellar joint effusion, and no evidence of an acute facture or dislocation.
By way of patient history, the x-ray report noted that appellant stood up and heard a pop in his
right knee and experienced generalized right knee pain. The radiology report further noted that he
reported that he had his right anterior cruciate ligament removed after a prior injury and that he
had ongoing joint injections.
In an April 16, 2018 note, Dr. Aruna Chhabria, a Board-certified family practitioner,
advised that appellant had been treated in the emergency room that day and was released. She
further advised that he should not return to work until April 19, 2018.
By development letter dated June 25, 2018, OWCP advised appellant of the deficiencies
of his claim with respect to the medical evidence. It explained that the claim required a valid
diagnosis and a physician’s opinion explaining how the employment activities caused, contributed
to, or aggravated his medical condition. OWCP afforded appellant 30 days to submit
documentation, including a comprehensive narrative medical report by his attending physician.
No further evidence was received.
By decision dated August 1, 2018, OWCP accepted that the April 16, 2018 employment
incident occurred as alleged, but denied appellant’s claim because the medical evidence of record
did not contain a diagnosis in connection with the injury. Specifically, it noted that “pain” is not
a diagnosis of a medical condition under FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
2

time limitation period of FECA,2 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.3 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.4
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.5 Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.6 The second component is whether the employment incident caused a personal
injury.7 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.8
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.9 A physician’s opinion on whether there is causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.10 Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty, and must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).11
Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.12

2

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

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
4
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
5

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

6

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

7

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

8

D.D., Docket No. 18-0648 (issued October 15, 2018); Shirley A. Temple, 48 ECAB 404, 407 (1997).

9

T.H., supra note 5; Robert G. Morris, 48 ECAB 238 (1996).

10

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

11

Id.

12

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

3

Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted April 16, 2018 employment incident.
The April 16, 2018 emergency clinic records13 documented treatment for knee pain, and
prescribed a knee brace, steroidal injections, and anti-inflammatory medication. However, “pain”
is not a compensable condition for the purposes of FECA, but is rather a symptom.14
Appellant’s April 16, 2018 right knee x-ray revealed mild tricompartmental degenerative
change, a nonspecific, small suprapatellar joint effusion, and no evidence of an acute facture or
dislocation, Given the often minimalistic nature of diagnostic reports (such as x-ray and magnetic
resonance imaging scan readings), diagnostic studies standing alone lack probative value.15 Here,
the x-ray report lacks probative value because it does not address whether the April 16, 2018
workplace incident either caused or aggravated the identified right knee condition(s).16
The remainder of the April 16, 2018 medical documents do not establish an injury or
condition causally related to the accepted April 16, 2018 employment incident. Although
Dr. Chhabria excused appellant from work for three days, she did not provide a specific diagnosis.
The discharge/home-care instructions detail self-treatment for unspecified “knee pain.” As
previously stated, “pain” is a symptom, not a diagnosis.17 It is appellant’s burden of proof to obtain
and submit medical documentation containing a firm diagnosis, and that diagnosis must have
medical evidence upon which it stands.18 Without it, the Board finds that he has not met his burden
of proof to show that he sustained any medical condition as a result of the accepted employment
incident of April 16, 2018.

13

The Board notes that the emergency clinic records were completed by a nurse practitioner. However, notes
prepared by a nurse practitioner are of no probative value on the issue of causation as a nurse is not considered a
physician as defined under FECA. Consequently, the nurse practitioner’s medical findings and/or opinion do not
satisfy appellant’s burden of proof to establish a diagnosis in connection with the accepted employment incident.
K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician
assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified physician.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1).
14

B.B., Docket No. 18-1036 (issued December 31, 2018).

15

K.L., Docket No. 18-1029 (issued January 9, 2019); P.Y., Docket No. 18-1136 (issued January 7, 2019).

16

Id.

17

Supra note 11.

18

See M.B., Docket No. 17-1647 (issued April 2, 2018).

4

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted April 16, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 1, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 7, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Norfolk, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-1005
Issued: November 4, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 6, 2009 appellant filed a timely appeal from Office of Workers’ Compensation
Programs’ decisions dated March 21, 2008 and February 10, 2009. Under 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a five percent permanent impairment to his
right upper extremity and a 34 percent permanent impairment for the left upper extremity.
FACTUAL HISTORY
This is the second appeal before the Board. On February 23, 2000 appellant filed a Form
CA-2 claim for a left-sided carpal tunnel condition causally related to factors of his employment.
The Office accepted the claim for left carpal tunnel syndrome. Appellant received a schedule
award for 34 percent impairment of the left upper extremity on May 30, 2003. The Office
subsequently accepted a claim for bilateral carpal tunnel syndrome. On June 15, 2005 appellant
filed a Form CA-7 claim for a schedule award based on loss of use of his right and left upper

extremities. In an impairment evaluation dated April 27, 2006, an Office medical adviser found
that appellant had a four percent impairment of his right upper extremity and a five percent
impairment of his left upper extremity under the American Medical Association, Guides to the
Evaluation of Permanent Impairment.
On June 16, 2006 the Office granted appellant a schedule award for a four percent
permanent impairment of the right upper extremity. Appellant requested reconsideration and
submitted an August 14, 2006 report from Illeana Rosario, an occupational therapist, who stated
that appellant had an 11 percent bilateral upper extremity impairment due to sensory deficit of
the median nerve postcarpal tunnel release based on an August 14, 2006 impairment evaluation.
The report was cosigned on September 7, 2006 by Dr. Helena Guarda, a specialist in plastic
surgery. On October 3, 2006 an Office medical adviser, Dr. Willie E. Thompson, Boardcertified in orthopedic surgery, rejected the August 14, 2006 impairment evaluation because he
opined it was not submitted by a physician and therefore did not constitute probative medical
evidence under the A.M.A., Guides. By decision dated December 6, 2006, the Office denied
modification of the June 16, 2006 schedule award decision. In a January 24, 2008 decision,1 the
Board set aside the Office’s December 6, 2006 decision. The Board noted that Dr. Thompson
had rejected the August 14, 2006 report from Ms. Rosario, an occupational therapist, and
cosigned by a physician, Dr. Guarda, on the grounds that a report composed by an occupational
therapist did not constitute medical evidence under section 8101(2). The Office credited
Dr. Thompson’s opinion rejecting Ms. Rosario’s cosigned report despite the fact that it had
previously granted a four percent schedule award for right carpal tunnel syndrome based on
Ms. Rosario’s April 18, 2005 impairment evaluation, cosigned by Dr. Merrell, the attending
physician (and an associate of Dr. Guarda) who performed appellant’s carpal tunnel release
surgeries. The Board further stated that the report cosigned by Dr. Guarda noted pain symptoms
and sensory deficits relating to appellant’s wrist indicating that he might have additional
permanent impairment related to this area and provided an impairment rating in accordance with
specific tables of the A.M.A., Guides. It therefore indicated that the Office medical adviser erred
by neglecting to evaluate the possibility that appellant had additional impairment of his right
upper extremity related to his right-sided carpal tunnel syndrome, as indicated by Ms. Rosario’s
August 14, 2006 cosigned report. The Board therefore remanded the case to the Office for
consideration of the August 14, 2006 report cosigned by Dr. Guarda, to obtain a complete
assessment of appellant’s right upper extremity impairment in accordance with the standards of
the A.M.A., Guides. The complete facts of this case are set forth in the Board’s January 24,
2008 decision and are herein incorporated by reference.
The Office referred the case back to Dr. Thompson, the Office medical adviser. In a
February 11, 2008 report, Dr. Thompson again disregarded the August 14, 2006 report cosigned
by Dr. Guarda and merely reiterated the findings and conclusions he stated in his October 3,
2006 report. He noted that he had accorded appellant five percent impairment for the right upper

1

Docket No. 07-830 (issued January 24, 2008).

2

extremity based on a persistent, positive postoperative electromyelogram (EMG) and positive
nerve conduction studies in his October 3, 2006 report.2
By decision dated March 21, 2008, the Office, relying on Dr. Thompson’s opinion, found
that appellant was entitled to an additional one percent impairment for his right upper extremity.
On October 27, 2008 appellant requested reconsideration. Appellant did not submit any
additional medical evidence.
By decision dated February 10, 2009, the Office denied appellant’s application for review
on the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.
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
The Board in its January 28, 2008 decision directed the Office to evaluate Dr. Guarda’s
cosigned August 14, 2006 report. Dr. Thompson reviewed the report and stated in his
October 2006 report that he stood by his previous calculations. The Office, relying on
Dr. Thompson as the weight of the evidence, denied an award for additional impairment for the
left upper extremity but granted one percent additional impairment for the right upper extremity.
The Board finds that, however, as the record now stands, a conflict exists in the medical opinion
evidence between Dr. Guarda and Dr. Thompson concerning the degree of appellant’s permanent
impairment of both the right and left upper extremities. The Board sets aside the March 21, 2008
Office decision and remands for referral of appellant, the case record and a statement of accepted
facts to an appropriate independent medical specialist to resolve the conflict as to whether
appellant had additional impairment as indicated by Dr. Guarda’s August 14, 2006 cosigned
2

In its June 26, 2006 decision, the Office awarded a four percent right upper extremity impairment based on
Dr. Thompson’s April 2006 report. In his October 3, 2006 report, Dr. Thompson rated a five percent impairment
based on appellant’s continuing positive EMG and nerve conduction studies. The Office, however, did not modify
its award of five percent right upper extremity impairment in its December 6, 2006 decision.
3

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

4

Id. at § 8107(c)(19).

5

20 C.F.R. § 10.404.

3

report. After such further development of the record as it deems necessary, the Office shall issue
a de novo decision.6
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 21, 2008 decision of the Office of
Workers’ Compensation Programs be set aside and the case is remanded to the Office for further
action consistent with this decision of the Board.
Issued: November 4, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6

In light of the Board’s decision to set aside and remand the Office’s March 21, 2008 decision to reevaluate the
proper amount of impairment to appellant’s right upper extremity, the Board need not consider the Office’s
February 10, 2009 nonmerit decision.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1026
Issued: January 14, 2020

Case Submitted on the Record

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

JURISDICTION
On April 10, 2019 appellant, through counsel, filed a timely appeal from a January 28,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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 met her burden of proof to establish an injury in the
performance of duty on March 22, 2018, as alleged.
FACTUAL HISTORY
On April 2, 2018 appellant, then a 47-year-old deputy executive director, filed a traumatic
injury claim (Form CA-1) alleging on March 22, 2018 at 7:30 p.m. she fell due to the poor quality
of the street or sidewalk in New Orleans, Louisiana, and hit the right side of her head in two places
sustaining a concussion while in the performance of duty. On the reverse of the form, appellant’s
supervisor, R.M., indicated by checking a box marked “yes” that “the injury was caused by the
employee’s willful misconduct, intoxication, or intent to injury self or another.” He noted
“witnesses concluded in their written statements” that appellant was intoxicated. R.M. also
reported that appellant’s allegation of a head injury was contradicted by witnesses’ statements
which indicated that appellant fell and landed on her knees. R.M. further noted that appellant was
on temporary duty (TDY) in travel status which ended at 4:00 p.m. on March 22, 2018. He also
reported that the injury occurred off the employing establishment premises and while she was not
engaged in official off-premises duties.
In an April 9, 2018 statement, R.M. indicated that he was in New Orleans at the time of
appellant’s injury, but did not witness her fall. He disputed that appellant was in the performance
of duty at the time of her fall, alleging that the official meeting ended at 4:00 p.m. and that the 70
employees who attended the meeting were released at that time. However, R.M. also noted that
there were two nonmandatory planned evening dinner/entertainment venues that employees had
the option of attending, first socializing at a pub at 6:00 p.m. and then dinner at a restaurant. R.M.
noted that these venues were less than a mile from the duty location and the hotel. He also provided
seven unsigned and unidentified witness statements, regarding events occurring during the evening
of March 22, 2018 involving appellant. None of the statements related witnessing appellant strike
her head.
A partially redacted statement entitled “formal statement of events” indicated that on
March 22, 2018 appellant organized a gathering at a pub for happy hour at 5:00 p.m. The witness
arrived at the pub at approximately 7:00 p.m. and found appellant seated at a table with a cocktail
and alleged that her speech was impaired and she appeared intoxicated. She was noted to be
unsteady on her feet and walking very slowly on the way to the restaurant. Appellant tripped on a
small step in front of a store, fell, and landed on her knees. The witness did not see her hit her
head and only saw her fall on her knees. Appellant continued to the restaurant, but after arriving
felt ill. The witness went to appellant’s hotel room at approximately 8:30 p.m. and found that she
had vomited a large amount of liquid and that she sat on the bathroom floor and dry heaved. The
witness observed that appellant’s knee was swollen and bruised. She also reported that appellant
was prediabetic and the witness provided her with orange juice. The witness noted that on
March 26, 2018 she indicated that she had been diagnosed with a concussion. She indicated that
appellant was glad to know that her condition on March 22, 2018 was not from being drunk, but
from the effects of a concussion.

2

In an April 24, 2018 development letter, OWCP advised appellant of the deficiencies of
her claim. It requested additional factual and medical evidence from her and provided a
questionnaire for her completion. OWCP afforded appellant 30 days to respond.
In a March 24, 2018 e-mail, appellant reported that she tripped and fell in New Orleans
and thought that she had just hit her knee. She noted that no one had seen her fall and that witnesses
thought she was just sitting on the curb. Appellant alleged that a concussion explained why she
went from being fine and ordering dinner to so sick even after only two drinks. She alleged that
alcohol had nothing to do with her symptoms.
In a March 24, 2018 discharge note, Kelly Phillips, a physician assistant, diagnosed head
injury and concussion.
On March 29, 2018 appellant underwent a computerized tomography (CT) scan which was
read as normal. Dr. Suzanne Wittig, a Board-certified internist, diagnosed postconcussive
syndrome on March 29, 2018.
On April 2 and 10, 2018 Dr. Melissa N. Womble, a
neuropsychologist, examined appellant, diagnosed concussion on March 22, 2018 and provided
work restrictions. On April 2, 2018 Dr. Jessica A. Wertz, an osteopath, diagnosed concussion
without loss of consciousness.
In an e-mail dated March 22, 2019, R.M., noted that employees would get together at a
restaurant at 7:00 p.m. and at a pub at 6:00 p.m. prior to dinner. He noted that he would be at both
venues and requested that all “engage, connect, and attend at least one or both.”
In a May 9, 2018 note, Dr. Womble reported that appellant had sustained a head injury on
March 22, 2018. She listed appellant’s symptoms as nausea, vomiting once a day, headaches,
dizziness, noise sensitivity, and fatigue. Appellant also exhibited cognitive symptoms including
word finding problems and emotional changes of heightened anxiety. On May 18, 2018 Dr. Wittig
diagnosed prediabetes and noted that she had been prescribed medication.
By decision dated June 7, 2018, OWCP denied appellant’s traumatic injury claim finding
that the evidence of record was insufficient to establish that the alleged employment event occurred
as she described. While it noted that witnesses had alleged that appellant was intoxicated, it denied
her claim because no one saw her hit her head or heard her complain of a head injury. OWCP
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
On June 14, 2018 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative. Appellant provided a May 13, 2018 note from Dr. Womble indicating that
appellant sustained a head injury on March 22, 2018. She noted that appellant had sustained
additional falls and hit the front of her head.
On November 14, 2018 appellant testified before OWCP’s hearing representative and
noted that she was in New Orleans, Louisiana, for a multiday conference. She left a pub, the afterhours offsite scheduled by her supervisor, and was on her way to dinner at approximately 7:30
p.m. when she fell. Appellant further testified that she had two and a half cocktails at the pub. She
did not have an exact recollection of the fall, but noted that coworkers walking in front of her
directed her to watch for concrete building molding. Appellant then fell. She also testified that
3

she definitely hit her knee very hard on the ground, but did not recall hitting her head. Appellant
asserted, however, that hitting her head was consistent with how she felt later that night, then the
next day, and when she went to the emergency room. Coworkers helped her from the ground and
she continued to the restaurant. Appellant did not eat dinner, but returned to her hotel room and
was vomiting. She informed her coworkers that she was prediabetic and was provided with orange
juice which improved her condition. Appellant related that she had a bump on her head on the
right temple lobe and a bruise on her knee. She sought medical treatment on March 24, 2018 and
was diagnosed with a concussion. Appellant denied that she was intoxicated when she left the
pub, asserting that she was not feeling well and stopped drinking as she had “identified that
something was unusual and something was off with me.” She noted that she had recently started
a new medication, for her diabetes as well as sustaining a reaction to the two cocktails. Appellant
testified that her condition improved after drinking orange juice, but that the next day her head
hurt where she had hit it.
On November 27, 2018 appellant provided additional medical records from Ms. Kelly
dated March 24, 2018 which found a right-sided head injury from a fall which was tender to the
touch. Appellant indicated that she was walking down the street in New Orleans, Louisiana, and
fell to the ground hitting the right side of her head on the pavement. She noted that she had two
alcoholic beverages prior to the fall, but did not feel intoxicated. Appellant attributed her difficulty
remembering the details of the fall to her head injury rather than to alcohol consumption. She also
had left knee bruising. Appellant continued to feel slightly dizzy, nauseous, and very tired, but
had no persistent vomiting.
By decision dated January 28, 2019, OWCP’s hearing representative found that the factual
evidence was insufficient to establish that appellant had hit her head when she fell on March 22,
2018 and that she therefore had not established an injury at the time, place, and in the manner
alleged as there were inconsistencies in the evidence so as to cast serious doubt on the validity of
the claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 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

3

Supra note 2.

4
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).

4

to the employment injury.5 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.6
To determine whether an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components, which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred.7 The second component is whether the employment incident
caused a personal injury.8
An employee’s statement alleging that an injury occurred at a given time and in a given
manner is of great probative value and will stand unless refuted by strong or persuasive evidence.9
Moreover, an injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury in the performance of duty, as alleged, but the employee’s
statements must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action.10 An employee has not met his or her burden of proof to establish
the occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim.11 Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged injury,
and failure to obtain medical treatment may, if otherwise unexplained, cast sufficient doubt on an
employee’s statements in determining whether a prima facie case has been established.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty on March 22, 2018, as alleged.
Appellant has not established the factual component of her claim as she has not sufficiently
explained how and when the claimed injury occurred. In her Form CA-1, she alleged that on
March 22, 2018 at 7:30 p.m. she fell due to the poor quality of the street or sidewalk in New
Orleans, Louisiana, and believed that she had hit the right side of her head in two places sustaining
a concussion. However, in a March 24, 2018 e-mail, appellant reported that she tripped and fell
5

C.B., Docket No. 18-0071 (issued May 13, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

7

R.E., Docket No. 17-0547 (issued November 13, 2018); Elaine Pendleton, 40 ECAB 1143 (1989).

8

D.C., Docket No. 18-1664 (issued April 1, 2019); John J. Carlone, 41 ECAB 354 (1989).

9

A.C., Docket No. 18-1567 (issued April 9, 2019); Gregory J. Reser, 57 ECAB 277 (2005).

10

A.C., id.; Joseph H. Surgener, 42 ECAB 541, 547 (1991).

11

A.C., id.; Betty J. Smith, 54 ECAB 174 (2002).

12

C.W., Docket No. 19-0754 (issued October 2, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

5

and thought that she had just hit her knee. She specifically noted that she was uncertain whether
she had hit her head when she fell. In a statement, allegedly from a witnesses who saw the fall, it
is noted that appellant tripped on a small step in front of a store, fell, and landed on her knees.
This witness did not see appellant hit her head. Three witnesses reported that after the fall,
appellant complained of her knee pain and that they observed swelling, bruising, and other knee
conditions. No witnesses supported appellant’s contention that she had hit her head when she fell
on March 22, 2018, that she complained of head pain after the fall on March 22, 2018, or that there
was bruising on her head after the fall on March 22, 2018. The first indication of a head injury
was appellant’s March 24, 2018 e-mail and medical treatment. As noted, an employee has not met
his or her burden of proof where circumstances such as a lack of confirmation of injury cast doubt
on an employee’s statement in determining whether a prima facie case has been established.13
In support of her claim, appellant submitted multiple medical records including from
Drs. Womble, Wertz, and Wittig diagnosing concussion. On March 24, 2018 Ms. Kelly, a
physician assistant,14 found right-sided head injury which was tender to the touch. While this
finding supports that appellant sustained a head injury prior to examination on March 24, 2018, it
does not agree with appellant’s allegation on her Form CA-1 that she struck her head in two places.
The Board finds that these medical records are insufficiently detailed to meet appellant’s burden
of proof to establish the factual basis of her claim.15
As appellant has not adequately responded to the request for factual information, the Board
finds that the record lacks sufficient factual evidence to establish specific details of how the
claimed injury occurred.16
The Board notes that, because appellant has not established the first component of fact of
injury, it is unnecessary to discuss whether she submitted medical evidence sufficient to establish
that a medical condition existed and whether the condition was causally related to an alleged
employment incident.17

13

E.C., Docket No. 19-0943 (issued September 23, 2019).

14
5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See id. at § 8101(2); P.H., Docket No. 19-0119 (issued July 5, 2019); T.K., Docket No. 19-0055 (issued May 2, 2019);
David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as nurses, physician assistants, and physical
therapists are not competent to render a medical opinion under FECA). See also Gloria J. McPherson, 51 ECAB 441
(2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be
resolved through the submission of probative medical evidence from a physician).
15

Id.; K.M., Docket No. 19-0367 (issued June 26, 2019).

16
M.S., Docket No. 18-0059 (issued June 12, 2019); L.A., Docket No. 17-0138 (issued April 5, 2017); John R.
Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).
17

M.S., id.; see R.L., Docket No. 17-1670 (issued December 14, 2018); Dennis M. Mascarenas, 49 ECAB 215, 218
(1997) (as appellant failed to establish that the claimed incident occurred as alleged, it is unnecessary to discuss the
probative value of medical evidence).

6

On appeal counsel contended that OWCP had not established intoxication as an affirmative
defense in the denial of appellant’s claim. The Board notes that allegations of intoxication under
section 8102(a) of FECA18 can be invoked only as an affirmative defense and that OWCP’s use of
an affirmative defense must be invoked in the original adjudication of the claim.19 It is noted that
OWCP did not raise the affirmative defense of intoxication in support of its denial of her claim. It
did not mention section 8102(a) of FECA,20 did not mention its use of an affirmative defense, and
did not otherwise discuss intoxication as the basis for the denial of appellant’s claim.21 The basis
for the denial of the claim is solely due to appellant’s failure to establish fact of injury. Therefore,
issue of the affirmative defense of intoxication is irrelevant to the claim as it was not raised by
OWCP.22
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty on March 22, 2018, as alleged.

18

5 U.S.C. § 8102(a).

19
B.P., Docket No. 17-0058 (issued March 12, 2018); T.F., Docket No. 08-1256 (issued November 12, 2008); Ruth
Perras (Charles Perras), 33 ECAB 1646 (1982).
20

Supra note 15.

21

OWCP also implicitly accepted that appellant was in the performance of duty on March 22, 2018 as she was in
travel status at the time her injury occurred. The Board has held that, where an employee is on travel status or a TDY
assignment, he or she is covered by FECA 24 hours a day with respect to any injury that results from activities essential
or incidental to his or her temporary assignment. G.R., Docket No. 18-1490 (issued April 4, 2019); S.T., Docket No.
16-1710 (issued September 27, 2017); T.C., Docket No. 16-1070 (issued January 24, 2017).
22

Supra note 17; I.A., Docket No. 15-1931 (issued July 20, 2016); N.P., Docket No. 10-0952 (issued July 26, 2011);
N.P., Docket No. 19-0952 (issued May 18, 2011); A.S., Docket No. 10-0514 (issued April 12, 2011); Patricia
McKibben (Jimmy McKibben), Docket No. 00-0452 (issued June 9, 2000); Elaine Hegstrom (Wayne R. Hegstrom),
51 ECAB 539 (2000); Kurt R. Ellis, 47 ECAB 505 (1996) (OWCP is required to specifically raise intoxication as an
affirmative defense in the original adjudication).

7

ORDER
IT IS HEREBY ORDERED THAT the January 28, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 14, 2020
Washington, DC

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

Janice B. Askin, 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
__________________________________________
E.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Santa Clarita, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-776
Issued: December 23, 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 27, 2010 appellant filed a timely appeal from the August 17, 2009 merit
decision of the Office of Workers’ Compensation Programs concerning modification of a wageearning capacity determination and a disability claim for the period February 13 to
May 13, 2009. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.1
ISSUE
The issue is whether the Office properly denied appellant’s request for modification of a
wage-earning capacity determination and her claim for total disability for the period February 13
to May 13, 2009.

1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. See 20 C.F.R.
§§ 501.2(c) and 501.3.

FACTUAL HISTORY
On November 12, 1992 the Office accepted that appellant, then a 33-year-old distribution
clerk, sustained cervical and left shoulder strains due to the repetitive duties of her job. It later
accepted the condition of left shoulder impingement and authorized left shoulder surgeries in
1993, 1996 and 1999 which included decompression, lateral clavicle resection and rotator cuff
repair procedures. Appellant worked in limited-duty positions and received Office compensation
for periods of disability.
In a December 3, 2003 report, Dr. Richard Shaw, a Board-certified rheumatologist, who
served as an Office referral physician, determined that appellant had fibromyalgia which was
triggered by her work-related left shoulder injury. On April 21, 2004 the Office expanded
appellant’s accepted conditions to include fibromyalgia.
Appellant stopped work for various periods and in late 2006 she returned to full-time
work as a modified distribution clerk for the employing establishment. On June 19, 2007
Dr. Thomas Vangsness, Jr., an attending Board-certified orthopedic surgeon, indicated that she
could work for eight hours a day with restrictions, including no lifting, pulling or pushing over
10 pounds and no overhead work with the left arm. Appellant’s work as a modified distribution
clerk was within these restrictions.
In an August 30, 2007 decision, the Office adjusted appellant’s compensation effective
August 30, 2007 based on its determination that her actual wages as a modified distribution clerk
fairly and reasonably represented her wage-earning capacity.
Appellant stopped work on February 13, 2009 and filed claim forms alleging total
disability beginning February 13, 2009 due to her accepted employment injuries.2 She also
suggested that the Office’s August 30, 2007 wage-earning capacity determination should be
modified to reflect the worsening of her work-related condition.
In a February 13, 2009 report, Dr. Daniel Arkfeld, an attending Board-certified internist
and rheumatologist, stated that appellant visited him on that date crying and in a very stressed
state. He indicated that on physical examination she exhibited tender points in all four
quadrants, tenderness of the left first carpometacarpal joint, tenderness over the latissimus dorsi
and pectoralis muscles on the left side and signs of possible overuse phenomenon with
osteoarthritis. Dr. Arkfeld diagnosed left arm osteoarthritis/trauma with myofascial pain and
fibromyalgia, stress reaction and invasive osteoarthritis of the left thumb. He indicated that
appellant should be kept off work for one month. In a February 13, 2009 note, Dr. Arkfeld stated
that she was totally disabled from February 13 to March 13, 2009.
On March 3, 2009 the Office requested that appellant submit additional evidence in
support of her claim. It advised her regarding the standards for showing how a wage-earning
capacity determination may be modified.

2

Appellant later claimed that she had work-related disability through May 13, 2009.

2

In a March 10, 2009 report, Dr. Arkfeld stated when he saw appellant on February 13,
2009 he changed her status to being temporarily totally disabled due to the state of her left
shoulder injury with chronic pain syndrome, myofascial pain and fibromyalgia, stress reaction
with depression and gastrointestinal/abdominal pain. He indicated that her left shoulder injury
and subsequent severe fibromyalgia led her to be 100 percent disabled and noted that these
conditions had previously been accepted as 100 percent work related. During the follow-up
examination on March 10, 2009 appellant remained in chronic and severe pain. Dr. Arkfeld
indicated that she had fibromyalgia in her left shoulder, upper torso area and other parts of her
body. He stated, “[Appellant] continues [to be] 100 percent disabled at this time with severe
pain. I have treated many fibromyalgia patients over the years and she would qualify as very
severe and currently 100 percent disabled.”3
In a March 12, 2009 report, Dr. Vangsness stated that appellant reported that her left
shoulder symptoms were getting worse and that her pain could be up to 8 on a scale of 10. He
noted that on physical examination of the left shoulder she had 110 degrees of forward elevation
out of the normal value of 160 degrees and 30 degrees of external rotation out of the normal
value of 40 degrees. Appellant exhibited anterior capsular pain, was tender about the old surgery
incision site and had forward flexion and abduction impingement. Dr. Vangsness indicated that
she also had compensatory pain in her right shoulder and stated, “Her recent increase in pain, and
change in work status, is secondary to the repetitive motion and ongoing continuous trauma at
work…. Appellant will continue to be temporary totally disabled at this time.”
In an April 6, 2009 decision, the Office denied appellant’s request for modification of the
August 30, 2007 wage-earning capacity determination and her claim for total disability
beginning February 13, 2009. It stated that the reports of her attending physicians lacked
rationale in support of their findings on disability.
In an April 10, 2009 report, Dr. Arkfeld stated that on current examination appellant had
18 of 18 tender points with control points being negative. Appellant had a large surgical scar
over the superior aspect of her left shoulder with significant pain, limited range of motion of the
shoulders (with more limited motion on the left), significant abdominal discomfort and diffuse
painful myofascial tender points. Dr. Arkfeld stated that her myofascial pain and tender points
had increased and noted that she had weakness upon abduction and rotation of her left shoulder
which related to her surgery and the injury of her anterior capsular area. He posited that
appellant’s failure to get proper treatment for her fibromyalgia had caused this condition to
worsen and stated, “At this point, I would hope that a multidisciplinary approach to her
fibromyalgia, which I would classify as severe, and shoulder injury can be obtained. As such, I
am hoping she can return to gainful employment. Thus, I have placed her on temporary total
disability status at this time.”4

3

In another March 10, 2009 note, Dr. Arkfeld diagnosed fibromyalgia, left shoulder traumatic injury status post
surgery, irritable bowel and stomach pain, current disability since February 13, 2009 and decreased functional status.
4

On March 30, 2009 Dr. Steven Richeimer, an attending Board-certified anesthesiologist, stated that he was
treating appellant for fibromyalgia pain.

3

In April 14 and 23, 2009 reports, Dr. Vangsness asserted that appellant’s work-related
fibromyalgia and left shoulder problems had worsened and indicated that he had taken her off
work due to increased pain. He noted that the left shoulder problems included painful limited
motion (particularly on forward motion), impingement, anterior capsular pain and acromioclavicular joint problems.5 Dr. Vangsness provided an assessment of increasing pain in both
shoulders, status post previous surgeries involving the clavicle and the subacromial space.6 In a
May 6, 2009 form report, Dr. Arkfeld stated that appellant had been totally disabled since
February 13, 2009 due to work-related fibromyalgia and left shoulder instability.
In a May 7, 2009 report, Dr. Stuart L. Silverman, an attending Board-certified internist
and rheumatologist, stated that appellant reported experiencing moderate-to-severe widespread
pain, constant moderate-to-severe left shoulder pain radiating to the right wrist and fingers,
numbness in the right hip and diaphoresis in the hands. He stated that on examination she had
fibromyalgia with 18 of 18 tender points and exhibited positive dolorimetry consistent with
persistent pain and impingement of the left shoulder and loss of motion in both shoulders.
Dr. Silverman indicated that appellant would benefit from an interdisciplinary program to
address her multiple pain problems. He stated, “The patient at this time should be considered
totally disabled and is unable to return to work in the workforce.”
Appellant requested a review of the written record by an Office hearing representative.
In an August 17, 2009 decision, the Office hearing representative affirmed the Office’s April 6,
2009 decision.
LEGAL PRECEDENT
Once a loss of wage-earning capacity is determined, a modification of such a
determination is not warranted unless there is a material change in the nature and extent of the
employment-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was in fact erroneous.7 The burden of proof is on the
party attempting to show the award should be modified.8 Section 8115(a) of the Federal
Employees’ Compensation Act provides that the “wage-earning capacity of an employee is
determined by his or her actual earnings if his or her actual earnings fairly and reasonably
represent his or her wage-earning capacity.”9

5

On April 14, 2009 appellant had forward elevation of 110 degree out of the normal value of 160.

6

In an April 14, 2009 note, Dr. Vangsness stated regarding appellant’s left shoulder, “I have clearly documented
several times her chronic problem in this shoulder. At this time, as documented by me, her pain has recently
increased and this is why I have kept her off of work…. My physical exam[ination] has documented her ongoing
impingement and weakness. She has numbness and tingling intermittently in her left upper extremity and now she is
having ongoing problems in her right shoulder.”
7

George W. Coleman, 38 ECAB 782, 788 (1987); Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).

8

Jack E. Rohrabaugh, 38 ECAB 186, 190 (1986).

9

5 U.S.C. § 8115(a).

4

An employee seeking benefits under the 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 timely filed within the applicable time
limitation period of the Act, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.10 However, it is well established that proceedings under the
Act are not adversarial in nature, and while the claimant has the burden to establish entitlement
to compensation, the Office shares responsibility in the development of the evidence.11
ANALYSIS
The Office accepted that appellant sustained cervical and left shoulder strains and left
shoulder impingement and authorized left shoulder surgeries which were performed in 1993,
1996 and 1999. In an August 30, 2007 decision, it adjusted her compensation based on its
determination that her actual wages as a modified distribution clerk fairly and reasonably
represented her wage-earning capacity. Appellant stopped work on February 13, 2009 and filed
claim forms alleging total disability between February 13 and May 13, 2009 due to her accepted
employment injuries. She also suggested that the Office’s August 30, 2007 wage-earning
capacity determination should be modified to reflect the worsening of her work-related
condition. Citing the failure to submit probative medical evidence, the Office denied appellant’s
request for modification of the August 30, 2007 wage-earning capacity determination and her
claim for total disability for the period February 13 to May 13, 2009.
Appellant submitted numerous reports of attending physicians in support of her claim. In
February 13, March 10, April 10 and May 6, 2009 reports, Dr. Arkfeld, an attending Boardcertified internist and rheumatologist, stated that she began exhibiting increased symptoms on
examination beginning in February 2009, particularly with respect to her work-related left
shoulder condition and fibromyalgia. He indicated that appellant was totally disabled from
February 13 through at least May 6, 2009. In his March 10, 2009 report, Dr. Arkfeld stated that
she “continues 100 percent disabled at this time with severe pain. I have treated many
fibromyalgia patients over the years and she would qualify as very severe and currently 100
percent disabled.”
In March 12, April 14 and 23, 2009 reports, Dr. Vangsness, an attending Boardorthopedic surgeon, indicated that appellant’s work-related fibromyalgia and left shoulder
problems had worsened and stated that he had taken her off work due to increased pain. He
noted that her left shoulder problems included painful limited motion (particularly on forward
motion), impingement, anterior capsular pain and acromioclavicular joint problems.
Dr. Vangsness found periods of total disability between mid March and late April 2009.
10

Elaine Pendleton, 40 ECAB 1143, 1145 (1989). The medical evidence required to establish a causal
relationship between a claimed period of disability and an employment injury is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s rationalized
opinion on the issue of whether there is a causal relationship between the claimant’s diagnosed condition and the
compensable employment factors. See Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).
11

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

5

In a May 7, 2009 report, Dr. Silverman, an attending Board-certified internist and
rheumatologist, stated that appellant reported experiencing increased symptoms, including
moderate-to-severe widespread pain, constant moderate-to-severe left shoulder pain radiating to
the right wrist and fingers, numbness in the right hip and diaphoresis in the hands. He stated that
on examination she had work-related fibromyalgia with 18 of 18 tender points and noted that she
exhibited positive dolorimetry consistent with persistent pain and impingement of the left
shoulder and loss of motion in both shoulders. Dr. Silverman stated, “The patient at this time
should be considered totally disabled and is unable to return to work in the workforce.”
The Board notes that, while none of the reports of appellant’s attending physicians are
completely rationalized, they are consistent in indicating that her work-related conditions caused
total disability during the period of claimed disability (February 13 to May 13, 2009), and are not
contradicted by any substantial medical or factual evidence of record. Therefore, while the
reports are not sufficient to meet appellant’s burden of proof to establish her claim, they provide
support for her claim that she sustained a change in the nature and extent of her employmentrelated condition such that the August 30, 2007 wage-earning capacity determination should be
modified. Therefore, the reports are sufficient to require the Office to further develop the
medical evidence and the case record.12
Accordingly, the case will be remanded to the Office for further evidentiary development
regarding appellant’s request for modification of the August 30, 2007 wage-earning
determination and her claim for total disability for the period February 13 to May 13, 2009. The
Office should prepare a statement of accepted facts and obtain a medical opinion on this matter.
After such development it deems necessary, the Office shall issue an appropriate decision
regarding these matters.
CONCLUSION
The Board finds that the case is not in posture regarding whether the Office properly
denied appellant’s request for modification of a wage-earning determination and her claim for
total disability for the February 13 to May 13, 2009. The case is remanded to the Office for
further development.

12

See Robert A. Redmond, 40 ECAB 796, 801 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the August 17, 2009 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: December 23, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, San Francisco, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-279
Issued: May 28, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 20, 2013 appellant filed a timely appeal from a November 7, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established that he sustained an employment-related injury
in the performance of duty on October 26, 2011.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 10, 2011 appellant, then a 46-year-old maintenance worker, filed a
traumatic injury claim alleging that on October 26, 2011 he struck his left knee with a five-gallon
container of chemicals.
Appellant was admitted to the hospital on October 31, 2011 and discharged on
November 7, 2011. In an October 31, 2011 progress note, Dr. David Shearer, an orthopedic
surgeon, noted that appellant had a history of chronic osteomyelitis of the left patella after
patellar tendon repair 10 years prior. Appellant was admitted after bumping his knee on a bucket
at work and he showed signs of chronic infection with draining sinus tracts but no acute
infection. Dr. Shearer noted that appellant returned with increasing pain, difficulty bearing
weight and additional anterior swelling. He noted that x-rays of appellant’s knee showed a
fragmented patella with mixed lytic sclerotic changes consistent with chronic osteoarthritis, no
change from prior studies. Dr. Shearer found no evidence of a fracture. He concluded that
appellant had chronic osteomyelitis of the patella, acute trauma the prior week that appeared to
precipitate a new abscess or septic bursitis. Dr. Shearer noted that treatment awards require
extensive debridement, including partial or total patellectomy. Given the decompensation of the
infection over the last three days, he would admit appellant and perform definitive surgery rather
than delay. On November 1, 2011 appellant underwent irrigation and debridement of the left
prepatellar region with removal of all suture material from left patella and excision of the sinus
tracts with closure over a drain.
In a November 2, 2011 progress note, Dr. Jennifer Babik, a Board-certified internist with
a Board-certified subspecialty in infectious disease, noted that appellant was admitted to the
emergency department with acute worsening of infection in setting of trauma. He was now
postsurgery with removal of all suture material and excision the sinus tracts. In a November 16,
2011 letter, Dr. Shearer advised that appellant underwent surgery on November 1, 2011 with the
orthopedic service and would need six to eight weeks to recover. He recommended that
appellant remain off work from November 1 through December 19, 2011.
By letter dated December 28, 2011, OWCP asked appellant to submit further information
and to answer questions regarding his treatment and how the incident occurred. It asked him to
state where he was and what he was doing when the injury occurred, to describe the bucket and
state what chemical was in the bucket, how much it weighed and how he struck it against his
knee. OWCP also asked appellant if he had any similar knee issues or symptoms prior to the
injury.
In response, appellant submitted a January 4, 2012 report by Dr. Tyson E. Turner, a
Board-certified internist, and Dr. Deborah Grady, a Board-certified internist, discussing his
medications and treatment for chronic osteomyelitis.
By decision dated January 31, 2012, OWCP denied appellant’s claim. It found that, as
the mechanism for the injury was not clear, he did not establish that the incident occurred as
alleged. Furthermore, there was insufficient medical evidence which causally related appellant’s
claimed knee condition to the work incident. OWCP noted that appellant had an extensive
history of knee problems prior to October 6, 2011 and it was unclear how striking his knee on

2

October 26, 2011 would cause the need for surgery due to a malignant infection, especially
considering that appellant had been draining “white pus” out of his knee every two weeks for the
last three to four years.
Appellant responded to OWCP’s queries. He indicated that on October 26, 2011 he was
working on the roof of an infectious exhaust system for the isolation room. Appellant carried a
five-gallon chemical drum across the roof when it bumped his knee and twisted. By the time he
returned home, his knee was swollen. On November 1, 2011 appellant was admitted to the
hospital for emergency room treatment. He noted that he had a preexisting Mercer infection in
his kneecap.
On July 27, 2012 appellant requested reconsideration. He submitted results of a blood
culture dated October 5, 2012.
By decision dated October 25, 2012, OWCP denied modification of its January 31, 2012
decision.
On March 8, 2013 appellant again requested reconsideration. He did not submit any new
evidence or argument in support of his request.
By decision dated March 14, 2013, OWCP denied appellant’s request for reconsideration
without conducting a merit review.
On August 15, 2013 appellant requested reconsideration. He submitted a letter from his
union representative noting MRSA cases in the San Francisco medical center for the employing
establishment in 2010 and 2011 and submitted a copy of an e-mail supporting this allegation.
In a decision dated November 7, 2013, OWCP denied modification of its earlier
decisions.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
2

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

3

actually experienced the employment incident or exposure, which is alleged to have occurred.3
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.4 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between 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.5
ANALYSIS
The Board finds that appellant established that the employment incident occurred as
alleged. Appellant alleged that on October 26, 2011 he struck his left knee with a five-gallon
container of chemicals. An employee’s statement regarding an employment incident is of great
probative value and will stand unless refuted by strong or persuasive evidence.6 Appellant
sought medical treatment on October 31, 2011. There is no evidence that he did not hit his knee
on the drum on October 26, 2011. The Board finds that appellant’s statement is consistent with
his subsequent course of behavior, and accordingly, finds that he established that he experienced
the alleged incident as described.
The Board finds, however, that appellant failed to establish that the accepted incident
resulted in his medical condition. The issue of causal relationship is a medical one and must be
resolved by probative medical opinion from a physician.7 No physician clearly links appellant’s
November 1, 2011 surgery or his medical condition to the October 26, 2011 employment
incident. Dr. Shearer does discuss the incident and stated in an October 31, 2011 note that
appellant had decompensation of the chronic infection over the last three days and concluded that
appellant would not delay his surgery. He did not provide a well-rationalized opinion addressing
how the October 26, 2011 incident caused or aggravated appellant’s left knee condition.
Dr. Shearer did not give a detailed explanation as to how the incident occurred or how it resulted
in appellant’s surgery on November 1, 2011. He did not explain the relationship in light of
appellant’s history of Mercer infection. None of the other physicians of record provided a
probative opinion with regard to causal relationship. Drs. Turner and Grady discussed
appellant’s medication but did not address the employment incident. Dr. Babik discussed
appellant’s medical progress but not the issue of causal relationship.

3

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

4

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

5

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

6

Thelma Rogers, 42 ECAB 866 (1991), see also S.V., Docket No. 08-146 (issued May 12, 2008).

7

I.A., Docket No. 13-1701 (issued January 17, 2014).

4

An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment, nor, his belief that the condition was caused by his employment is sufficient to
establish causal relationship.8 As appellant did not establish that his medical condition was
causally related to the accepted factor of his employment, he did not meet his burden of proof.
Appellant may submit evidence or argument with a written request for reconsideration
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 that he sustained an employmentrelated injury in the performance of duty on October 26, 2011. Although appellant did establish
that he experienced the employment incident, he did not submit medical evidence sufficient to
establish a medical condition causally related to this incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 7, 2013 is affirmed, as modified.
Issued: May 28, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

8

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburg, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-2423
Issued: September 15, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 8, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated June 17, 2008. Under 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 13 percent permanent impairment to his
left lower extremity.
FACTUAL HISTORY
Appellant, a 43-year-old letter carrier, filed a Form CA-2 claim for benefits on July 22,
2001, alleging that he developed a lower back condition casually related to factors of his
employment. The Office accepted left-sided sciatica secondary to herniated disc at L5-S1. On
June 10, 2002 appellant underwent surgery for L4-5 and L5-S1 revision, bilateral
decompressions with laminectomies, partial medial facetectomies and foraminotomies; and an

L5-S1 posterior lumbar interbody fusion with right iliac crest bone graft. He returned to light
duty on January 25, 2003.
In a report dated April 5, 2004, Dr. Jason A. Smith, a specialist in orthopedic and
neurological surgery and appellant’s treating physician, stated that he reviewed diagnostic tests
which showed a solid fusion at L5-S1 from appellant’s June 2002 lumbar surgery. He noted,
however, that appellant was left with significant weakness to his left lower extremity and
ongoing problems with paresthesias and pain in an L5-S1 distribution on the left. Dr. Smith also
noted that appellant experienced sexual dysfunction because of his loss of function and ongoing
pain. He opined that appellant had reached permanent and stationary status and was limited to
performing light duty for six hours per day, five days a week, with restrictions on sitting,
twisting, bending, stooping, kneeling or climbing, lifting more than 15 pounds and lifting more
than 10 pounds above his shoulder.
On April 21, 2004 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of his left and right lower extremities.
In order to determine whether appellant had permanent impairment from his accepted
lumbar condition, the Office referred him to Dr. Alan Kimelman, Board-certified in physical and
rehabilitative medicine. In a June 4, 2004 report, Dr. Kimelman stated that appellant had
numbness, which persisted continually in the lateral aspect of the left foot. He also noted that
appellant developed a blister along the left foot due to loss of sensation. Dr. Kimelman indicated
in a June 4, 2004 impairment rating form that appellant experienced mild pain and discomfort in
the S1 nerve root and showed weakness of four on a scale of one to five based on active
movement against gravity with some resistance. He also rated a four plus out of five for
weakness of the hip abductors innervated at the L3-4 level.
In an impairment evaluation dated September 12, 2004, an Office medical adviser found
that appellant had a 13 percent impairment of his right lower extremity based on the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) fifth
edition. He stated:
“[Dr. Kimelman’s] report indicates that numbness persisted continually in the
lateral aspect of the left foot and that the claimant developed a blister along the
left foot due to loss of sensation. In the form report, the S1 nerve root is
identified with pain described as present and mild. These subjective complaints,
i.e., pain and/or altered sensation that interfere with activity would be graded a
maximal [G]rade [2] as per the Grading Scheme (Table 16-10, [p]age 482, fifth
edition of the [A.M.A.,] Guides). This would be between a 61 and an 80 percent
grade as per Table 15-15. One would recommend a mean or a 70 percent grade of
a maximal 5 percent (Table 15-18) for S1 and 70 percent of this would be
3.5 percent or rounded off to an 4 percent impairment. Dr. Kimelman identifies
4+/5 weakness of the hip abductors innervated by L4, which would be assessed a
maximal 34 percent impairment as per Table 15-18. Grade [4] weakness would
be assessed a maximum of 25 percent grade as per Table 15-16 and 25 percent of
34 would equate with 8.5 percent or rounded off to a 9 percent impairment for the
left hip abductor weakness. Records did not document any loss of hip, knee,

2

ankle, subtalar or toe range of motion for a zero percent impairment. Utilizing the
Combined Values Chart, the 4 percent impairment for left lower extremity
numbness and/or pain, combined with the 9 percent impairment for hip abductor
weakness would be equivalent to a 13 percent impairment of the left lower
extremity or leg. The records do not indicate right lower extremity, radicular
symptoms or findings for a zero percent impairment. Date of maximum medical
improvement would have occurred by the time of the June 4, 2004 evaluation,
approaching two years following the second operative procedure.”
On December 7, 2004 the Office granted appellant a schedule award for a 13 percent
permanent impairment of the left lower extremity for the period November 17, 2004 to August 6,
2005, for a total of 37.44 weeks of compensation.1
In a letter received by the Office on December 14, 2006, appellant requested
reconsideration.
Appellant submitted an August 26, 2006 report from Dr. Smith, who accorded him a
23 percent impairment rating of the whole person for his accepted lumbar condition based on a
diagnosis-related estimate (DRE), lumbar category 4 under the A.M.A., Guides. Dr. Smith based
this rating on loss of motion resulting from appellant’s successful arthrodesis; he indicated that
he rated 23 percent impairment due to his ongoing residual weakness, pain and dysfunction. He
noted that, with regard to appellant’s impotence, which directly resulted from his injury, his
condition fell within a Class 1 rating for permanent impairment due to penile disease under Table
7.5 of A.M.A., Guides, for a 10 percent impairment of the whole person. Using the Combined
Values Chart at page 604 of the A.M.A., Guides, Dr. Smith combined the 23 percent whole
person lumbar impairment with a 10 percent sexual dysfunction impairment, which resulted in a
combined 31 percent impairment; a 3 percent discretionary award for pain; and an additional
3 percent impairment for “ongoing significant pain,” which he believed was not well represented
by the previously calculated impairment values, for an overall 37 percent whole body
impairment.
In a November 23, 2005 report, Dr. H. Michael Jaffin, Board-certified in orthopedic
surgery, stated:
“At the present time [appellant] has sustained impairment as follows: With
respect to his lumbar spine he is a DRE lumbar spine category [3], with 13
percent whole person impairment with a history of herniated disc at the level that
would be expected from objective clinical signs. There was surgery and it is now
asymptomatic. Unfortunately, this does not cover his entire impairment because
[appellant] is substantially symptomatic. He would get an additional three percent
whole person impairment for pain. In addition to that [appellant] sustained one to
1

By decision dated December 2, 2004, the Office reduced appellant’s entitlement to wage-loss compensation in
light of the fact that he had returned to light duty on April 7, 2004. As appellant had been receiving compensation
based on his part-time work schedule since he returned to work, the Office determined that his schedule award
would be paid beginning November 17, 2004, even though the date of maximum medical improvement was
June 4, 2004. (AD 12/2/04).

3

two percent whole person impairment for calf atrophy. He would additionally
have sustained seven percent whole person impairment for his antalgic limp.
[Appellant] would also have sustained 10 percent whole person impairments for
each flexion and extension knee weakness, 15 percent whole person impairment
for plantar flexion weakness and three percent whole person impairment for great
toe extension weakness on the left. Using the combined impairments chart on
pages 604-605 of the A.M.A., [Guides] in combining [appellant’s] above listed
impairments, including 13 percent for DRE spine, [3] percent for pain, [2] percent
for gait, [2] percent for atrophy, [7] percent for gait, 10 percent for knee flexion
and extension weakness, 15 percent for plantar flexion weakness and [3] percent
for great toe flexion and extension weakness, this patient sustained a 50 percent
whole person impairment.”
In an impairment evaluation dated January 28, 2007, an Office medical adviser
recommended further development of the record in order to obtain clarification of the left lower
extremity weakness noted in Dr. Jaffin’s November 23, 2005 report and the left calf weakness
and left gluteus weakness noted in Dr. Smith’s August 28, 2006 report. He stated that appellant
might be entitled to a significantly higher award involving the left lower extremity depending on
this clarification and on any documentation of left lower extremity muscle weakness; he noted,
however, that a rating for left calf atrophy could not be combined with a rating for left
gastrocnemius or left plantar flexion ankle weakness, as this would be duplicating an award to
assign a rating for both atrophy and weakness. The Office medical adviser therefore
recommended that a narrative report he obtained which documented appellant’s subjective
complaints in detail and the manner in which they may or may not interfere with his activities.
He stated that any weakness of the muscles involving the left lower extremity should be carefully
measured, quantified and compared to the opposite or right lower extremity; he noted that a
description of the individual’s gait in detail could yield information which permitted an award
under Table 17-5, Lower Limb Impairment due to Gait Derangement. In addition, the Office
medical adviser noted that the medical records documented a sexual dysfunction, for which
Dr. Smith recommended a 10 percent whole-person impairment pursuant to Table 17-2 1,
Criteria for Rating Neurologic Sexual Impairment. He stated that, under the Federal (FECA)
Procedure Manual, a 10 percent sexual whole-person impairment would be divided by the total
for sexual impairment and urethral impairment of 28 percent to arrive at a 36 percent impairment
of the penis for an award with this degree of sexual dysfunction. Dr. Smith opined that
appellant’s sexual dysfunction condition appeared to be related to the accepted lumbar
intervertebral disc condition.
By decision dated February 9, 2007, the Office denied modification of the December 7,
2004 schedule award. It noted that both Dr. Jaffin and Dr. Smith submitted whole person
impairment ratings, which are not permitted under the Federal Employees’ Compensation Act.
The Office noted that the Office medical adviser had stated in his January 28, 2007 report that
additional medical evidence was needed to determine whether appellant was entitled to an
additional schedule award. It therefore instructed that the Office medical adviser’s report be sent
to Dr. Smith for review so that he could clarify the issues the Office medical adviser referenced
in his report, in order to aid in determining whether appellant was entitled to an additional
schedule award. In addition, the Office noted that it had authorized Dr. Smith to refer appellant
to an appropriate specialist to consider whether his sexual dysfunction condition was causally

4

related to his accepted back condition and to therefore determine whether he was entitled to
treatment and/or an additional schedule award for this condition.
In a May 31, 2007 report, Dr. Roland J. Wong, Board-certified in urology, stated that
appellant was referred because of erectile dysfunction. Appellant had related that, on May 3,
2001, while lifting a heavy box he developed back pain and subsequently was found to have a
herniated disc. In January 2002, he had a discectomy but ruptured another disc. In June 2002,
appellant had a fusion of L5-S1. He states that the level of his back pain is still 4 out of 10.
Appellant stated that after the injury he has been unable to sustain an erection and states that
prior to his injury he never had a problem with any erectile dysfunction. Dr. Wong concluded
that his sexual dysfunction coincided with the time of injury. It was his opinion that the sexual
dysfunction was the result of appellant’s injury in which the nerve fibers for erection were
damaged. Dr. Wong diagnosed organic impotence.
In a December 17, 2007 report, Dr. Smith noted that he had reviewed the Office medical
adviser’s January 28, 2007 report, after which he reiterated his previously rendered findings,
conclusions and impairment rating. He recommended that the left lower extremity findings
pertaining to Dr. Jaffin be referred to that physician for clarification regarding these points.
In a report dated May 13, 2008, the Office medical adviser stated that, based on the
current medical evidence of record, appellant was not entitled to a schedule award for the left
lower extremity greater than the award for 13 percent impairment previously awarded. He
stated, however, that he had not received the detailed clarification that he had requested in his
January 28, 2007 report. The Office medical adviser therefore recommended that clarification of
the left lower extremity weakness be obtained as he stated in his January 28, 2007 report, which
required that appellant be referred to an orthopedic surgeon for another evaluation to document
his subjective complaints in detail and how they may or may not interfere with activity. He
stated that any left or right lower extremity weakness should be identified in terms of which
muscle groups are involved and quantified.
By decision dated June 17, 2008, the Office denied modification of the February 9, 2007
decision. It noted that it had provided Dr. Smith with a copy of the Office medical adviser’s
January 28, 2007 report and in response Dr. Smith had submitted his December 17, 2007 report.
The Office found that this report was not sufficient to warrant an additional schedule award and
modification of the February 9, 2007 decision. It also instructed the district office to address and
develop the issue of whether appellant’s erectile dysfunction condition developed as a
consequence of his accepted lower back condition.
LEGAL PRECEDENT
The schedule award provision of the Act2 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.3 However, the Act does not specify the manner in which the
2

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

3

Id. at § 8107(c)(19).

5

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.4 The claimant has the burden of
proving that the condition for which a schedule award is sought is causally related to his or her
employment.5
ANALYSIS
The Board finds that the case is not in posture for decision.
The Office granted appellant an award for a 13 percent impairment for the left lower
extremity based on the Office’s medical adviser’s September 12, 2004 report, in which he
reviewed Dr. Kimelman’s findings of numbness and loss of sensation in the lateral aspect of the
left foot mild pain and discomfort in the S1 nerve root, 4/5 weakness based on active movement
against gravity with some resistance and 4/5 weakness of the hip abductors innervated at the L34 level. The A.M.A., Guides sets out the method by which impairments are rated for these
conditions at Chapter 15, subsection 12, at page 423, which states:
“If any neural impairment is identified, proceed with the following evaluation:
(1) Identify the nerve(s) involved, based on the clinical evaluation and the
dermatome distribution charts for the lower (Figure 15-1) … extremity….
(2) Determine the extent of any sensory and motor loss due to nerve
impairment, based on Tables 15-15 and 15-16.
(3) Find the maximum impairment due to nerve dysfunction in … Table
15-18 for the lower extremity.
(4) Multiply the severity of the sensory or motor deficit by the maximum
value of the relevant nerve (Tables 15-17, 15-18). If there is both sensory
and motor impairment of a nerve root, the impairment percents are
combined (Combined Values Chart, p[age] 604) to determine the
extremity impairment….”
The Office medical adviser adhered to the method outlined above by calculating a Grade
2 sensory deficit at S1 pursuant to Table 15-15 at page 424 of the A.M.A., Guides, then utilizing
Table 15-18 at page 424, which yielded a 70 percent impairment, multiplied by a maximal
5 percent impairment for S1, which equates to a 3.5 percent impairment. He then rounded off
this figure for a four percent impairment for S1 nerve dysfunction. The Office medical adviser
then applied appellant’s four plus out of five sensory deficit at L4 pursuant to Table 15-15,
which translated to a 34 percent impairment at Table 15-18. He then multiplied this figure by a
Grade 4, 25 percent weakness at Table 15-16, which yielded an 8.5 percent impairment for left
hip abductor weakness, which he rounded off to 9 percent. The Office medical adviser added
4

20 C.F.R. § 10.404.

5

Veronica Williams, 56 ECAB 367, 370 (2005).

6

4 percent for left lower extremity numbness and/or pain, for a total 13 percent lower extremity
impairment. The Office properly based its December 7, 2004 schedule award on the 13 percent
impairment rating rendered by the Office medical adviser, who took Dr. Kimelman’s findings on
examination and made calculations based on these findings, pursuant to the applicable standards
and tables of the A.M.A., Guides.
Appellant requested reconsideration and submitted reports from Drs. Smith and Jaffin. In
his January 28, 2007 report, the Office medical adviser stated that appellant might be entitled to a
significantly higher award involving the left lower extremity based on findings of left lower
extremity weakness, left calf weakness and left gluteus weakness made by these physicians. He
recommended further development and clarification of these issues through an additional
narrative report, which would thoroughly document appellant’s subjective complaints of pain
and determine if they were sufficient to warrant an additional schedule award for the left lower
extremity. However, the Office issued a decision based on February 9, 2007, in which it noted
the Office medical adviser’s recommendations for further development of the medical evidence
but denied modification of the original schedule award based on the available evidence of record.
It instructed the district office to send a copy of the Office medical adviser’s January 28, 2007
report to Dr. Smith so that he could review it and make the suggested clarifications; however,
Dr. Smith merely reiterated his previously stated findings in his December 17, 2007 report. The
case file was referred back to the Office medical adviser, who noted in a May 13, 2008 report
that he had not received the detailed clarification he had requested in his original report. The
Office medical adviser restated his recommendation that the Office further develop the medical
evidence and obtain clarification of the left lower extremity. In addition, he specifically
instructed that appellant be referred to an orthopedic surgeon for another evaluation to identify
and quantify any left or right lower extremity weakness, document his subjective complaints in
detail and specify the manner in which they may or may not interfere with activity, in order to
fully determine whether appellant was entitled to an additional award for left lower extremity
impairment. In its June 17, 2008 decision, however, the Office again did not address the Office
medical adviser’s recommendation and failed to follow the instruction to further develop the
medical evidence. The Board therefore finds that the Office erred by ignoring the Office medical
adviser’s recommendation to refer appellant to an orthopedic specialist, a referral which the
Office medical adviser believed was required to determine the proper degree of left lower
extremity impairment appellant sustained due to his accepted lower back condition.
The reports from Drs. Jaffin and Smith, however, did not explain how these physicians
correlated any impairment findings with the A.M.A. Guides. In addition, these reports do not
conform to the A.M.A., Guides, as they do not relate their findings to the applicable tables and
charts of the A.M.A., Guides.6 Therefore, these reports do not establish that appellant is entitled
to an additional schedule award. As Drs. Jaffin and Smith offered a mere conclusion regarding
the degree of appellant’s impairment, without explaining the basis for each rating factor,

6

While Drs. Jaffin and Smith assessed a whole man impairment, the Act does not allow for “whole man”
impairment schedule awards. Janae J. Tripplette, 54 ECAB 792 (2003).

7

the Office properly found that their opinions did not present a basis for an additional schedule
award for the left lower extremity.7
The Board therefore sets aside the June 17, 2008 Office decision and remands for referral
of appellant, the case record and a statement of accepted facts to an appropriate medical
specialist to evaluate the appropriate percentage of impairment in his left lower extremity based
on left lower extremity weakness, left calf weakness and left gluteus weakness. On remand, the
Office should instruct the impartial medical specialist to clearly indicate the specific background
and protocols of the A.M.A., Guides upon which he based his opinion. After such further
development of the record as it deems necessary, it shall issue a de novo decision.8
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 17, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to the Office for further
action consistent with this decision of the Board.
Issued: September 15, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7

The Board notes that a description of appellant’s impairment must be obtained from appellant’s physician,
which must be in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly
visualize the impairment with its resulting restrictions and limitations. See Peter C. Belkind, 56 ECAB 580,
585 (2005).
8

The Board notes that the Office has already referred the case for further development regarding the issue of
whether appellant’s sexual dysfunction condition is causally related to his accepted lumbosacral condition and
therefore provides a basis for an additional schedule award.

8