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

)
)
)
)
)
)
)
)

Appearances:
Stephen Larkin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0171
Issued: April 25, 2016

Case Submitted on the Record

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

JURISDICTION
On November 8, 2015 appellant, through counsel, filed a timely appeal from the
October 22, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.2
ISSUE
The issue is whether appellant established a basis for modifying OWCP’s January 30,
2008 loss of wage-earning capacity (LWEC) determination.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its October 22, 2015
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
Appellant, a 54-year-old part-time flexible (PTF) mail processing clerk, has an accepted
occupational disease claim for permanent aggravation of thoracolumbar scoliosis, which arose on
or about October 26, 2005.3 Although able to work, she could not resume her regular job duties.
On November 26, 2007 appellant accepted a limited-duty assignment as a modified PTF clerk.
The job was based on the November 20, 2007 permanent restrictions imposed by her thentreating physician, Dr. Benjamin F. Balme, a Board-certified orthopedic surgeon. Dr. Balme
limited appellant to working four hours per day, three days per week.4
By decision dated January 30, 2008, OWCP determined that appellant’s actual earnings
as a modified PTF clerk fairly and reasonably represented her wage-earning capacity. The
decision noted that the position was effective November 26, 2007, and she earned $295.80 per
week. At the time, appellant’s date-of-injury position paid $716.36 per week. Her then-current
weekly wages represented a more than 50 percent loss of wage-earning capacity. Because
appellant had been performing the modified PTF clerk position for more than two months,
OWCP found the job suitable to her partially disabled condition. Accordingly, OWCP formally
adjusted her wage-loss compensation to reflect her LWEC. Additionally, OWCP placed
appellant on the 28-day periodic compensation rolls.
For the next several years, appellant continued to work part-time, limited-duty while
receiving wage-loss compensation benefits based on the January 30, 2008 LWEC determination.
She also continued to follow-up with Dr. Balme until his retirement in late 2010. Additionally,
appellant regularly received acupuncture therapy, which Dr. Balme prescribed and OWCP
routinely authorized.
Once Dr. Balme retired, appellant came under the care of Dr. Jason M. Conaughty, a
Board-certified orthopedic surgeon, who initially examined her on December 13, 2010. He
diagnosed thoracolumbar scoliosis and rib hump deformity with chronic interscapular pain.
Dr. Conaughty noted that appellant was able to keep her symptoms in check with acupuncture.
He believed that continued therapy was a reasonable alternative to lumbar fusion.
Dr. Conaughty recommended a follow-up evaluation in six months.
When she returned on June 14, 2011, appellant reported persistent pain. Dr. Conaughty
noted that she had been managing 12 hours of work per week and had reportedly found
acupuncture therapy very beneficial in keeping her active. A recent x-ray showed no worsening
of appellant’s scoliotic curve. Dr. Conaughty recommended continued acupuncture and a
follow-up examination in six months. He also renewed appellant’s part-time, limited-duty work
restrictions.
3

Appellant stopped work on November 22, 2005. The January 16, 2006 claim (Form CA-2) indicated that she
regularly worked three eight-hour shifts per week. Subsequent claims for compensation (Form CA-7) confirmed
that appellant did not have a fixed, 40-hour per week schedule. As a PTF employee, she worked in excess of 24
hours per week just prior to her November 22, 2005 work stoppage.
4

Additional restrictions included 30 minutes of standing, 15 minutes of reaching/reaching above shoulder,
twisting, bending/stooping, and sitting (4 hours). Dr. Balme also imposed a 10-pound weight restriction with
respect to pushing, pulling, and lifting.

2

Appellant’s next visit was on February 23, 2012. She had been able to continue working
approximately three or four days a week, and she reported that the acupuncture was helping quite
a bit. Dr. Conaughty noted that recent x-rays showed a stable thoracic curve. He further
indicated that appellant’s symptoms were well controlled with acupuncture and activity
modification. Dr. Conaughty renewed her previous work restrictions, and advised appellant to
follow-up in a year.
Beginning May 7, 2012, appellant reduced her weekly work schedule to 2 four-hour
shifts. She returned to see Dr. Conaughty on May 9, 2012. Dr. Conaughty’s treatment notes
reflect that appellant reported problems with her work restrictions. He noted that she felt she
needed more restrictions because she was having a hard time keeping up with her current level of
work due to pain and thoracolumbar scoliosis. Dr. Conaughty advised her that she was a
palliative case, and not the type of patient amenable to surgery. He further noted that appellant’s
motor and neurological examinations revealed no gross changes. Dr. Conaughty also indicated
that her 44-degree curve was large for an individual still in the working stages of life. He
explained that he had not seen enough patients with this type of nonoperative scoliosis to be able
to provide appellant an accurate assessment regarding work restrictions. Dr. Conaughty believed
that an outside consultation would be more appropriate for determining appellant’s limitations.
He also recommended that she select a pain management specialist as her attending physician,
rather than a surgeon.
Through the end of May 2012, appellant continued to work just two four-hour shifts per
week.
On May 31, 2012 appellant saw Dr. Kathie J. Lang, a Board-certified family practitioner.
Dr. Lang diagnosed severe thoracolumbar scoliosis and chronic pain. She advised appellant to
continue her acupuncture and medications. Dr. Lang also noted that appellant had a 10-pound
weight restriction and worked four hours per day, three days per week. According to her,
appellant believed she could no longer adhere to her current work schedule on a regular basis.
Dr. Lang advised that she was unable to evaluate appellant’s ability to work. She recommended
that OWCP refer appellant to a specialist for such an evaluation. Additionally, Dr. Lang noted
her agreement with Dr. Conaughty’s recommendation that appellant consult with a pain
management specialist.
On June 4, 2012 appellant stopped work entirely. One week later she filed the first of a
series of claims (Forms CA-7) for wage-loss compensation beginning May 7, 2012. While the
claim was under development, appellant continued to receive wage-loss compensation in
accordance with the January 30, 2008 LWEC determination. OWCP subsequently advised her
regarding the process of modifying an LWEC determination, and afforded her the opportunity to
submit additional evidence and/or argument.5
Dr. Mark R. Greenberg, a Board-certified internist and anesthesiologist with a
subspecialty in pain medicine, examined appellant on June 20, 2012. He noted a history of
5

OWCP explained that modification of an LWEC was unwarranted unless there was a material change in the
nature and extent of the injury-related condition, the employee had been retrained or otherwise vocationally
rehabilitated, or the original determination was erroneous.

3

scoliosis and mid-back pain, as well as difficulties with work and job restrictions. Dr. Greenberg
indicated that appellant worked as a mail clerk, which she described as requiring heavy physical
exertion. Additionally, he noted that appellant currently had restrictions in place, which included
“half time” work and a 10-pound lifting limitation. Appellant had reportedly been off work since
June 12, 2012 due to pain. Dr. Greenberg further noted that appellant was receiving workers’
compensation benefits. He diagnosed scoliosis and thoracic spine pain. Although she had been
referred for pain management, which appellant declined, Dr. Greenberg noted that she was
primarily looking for a disability evaluation. He advised her to go through the disability
evaluation process, and did not otherwise comment on appellant’s ability to work.
OWCP also received various treatment records from Liane Venzke, a licensed
acupuncturist (LAc) and Doctorate of Acupuncture and Oriental Medicine (DAOM).
By decision dated September 10, 2012, OWCP denied appellant’s claim for additional
wage-loss compensation as she had not established a basis for modifying the January 30, 2008
LWEC determination.
Appellant identified Dr. Jeffrey W. Grolig, a Board-certified physiatrist, as her new
treating physician. He first examined her on September 6, 2012 and diagnosed severe thoracic
scoliosis. Dr. Grolig noted that appellant worked as a mail clerk with restrictions. He also
reported that appellant had been off work since May 7, 2012 due to pain. Dr. Grolig described
appellant’s employment duties as “heavy cleaning, repetitive lifting, [and] casing mail which
involve[d] repetitive above shoulder activity and arm movement.” He further noted that since
May 2005, appellant’s work decreased from 24 hours per week to zero as of May 2012.6
Dr. Grolig stated that appellant was currently unable to work in any economically competitive
capacity at the employing establishment, and her disability would continue for at least the next
one to two years. Absent corrective spinal surgery, Dr. Grolig surmised that appellant was
permanently disabled. He also noted that according to Dr. Conaughty, appellant was not a
surgical candidate.
In an October 8, 2012 follow-up report, Dr. Grolig noted that appellant’s condition had
flared-up, and she suffered from chronic pain syndrome, chronic discogenic pain syndrome, and
secondary myofascial syndrome. He described appellant as a disabled postal service worker,
who had been totally disabled since May 2012. Dr. Grolig indicated that she was severely
limited in terms of any pulling, pushing or scrubbing type of activities. Appellant was also
unable to do any heavy cleaning or casing activities because it involved stress to the thoracic
spine. Dr. Grolig explained that appellant had a rather extreme kyphoscoliosis deformity, which
had progressed over the years and led to a decline in her level of function. He advised that
appellant was currently disabled from performing her postal service duties, which disability was
expected to continue for at least the next 12 months. Dr. Grolig’s recommended treatment
included acupuncture, daily walking, and avoiding disc loading activities and any other activities
that would aggravate appellant’s thoracic myofascial syndrome.

6

Dr. Grolig reported that the decrease in hours was due to appellant’s progressive thoracic deformity and
associated myofascial pain syndrome, as well as numbness in the right upper extremity and various symptoms that
were precipitated by her work at the employing establishment in conjunction with her congenital scoliosis.

4

On November 7, 2012 appellant requested reconsideration citing “relevant evidence not
previously submitted.” In addition to the September 6 and October 8, 2012 reports from
Dr. Grolig, OWCP received acupuncture treatment records covering the period July 5 through
October 23, 2012.
By decision dated November 19, 2012, OWCP denied modification.
It found
Dr. Grolig’s recent reports unpersuasive, and noted that appellant’s treating physician did not
provide a well-reasoned opinion explaining how her work-related condition had materially
changed such that appellant was totally disabled on or after May 6, 2012.
On February 5, 2013 appellant requested reconsideration. The evidence received since
the last merit decision included several follow-up reports from Dr. Grolig, acupuncture and
physical therapy treatment records from November 8, 2012 through February 4, 2013, and a
January 7, 2013 functional capacity evaluation (FCE).
Dr. Grolig saw appellant for follow-up on November 6 and December 5, 2012, January 7,
and February 4, 2013. On each occasion he diagnosed 44-degree thoracolumbar kyphoscoliosis,
severe chronic pain syndrome, thoracolumbar myofascial pain syndrome, and mechanical back
syndrome. In his November 6, 2012 report, Dr. Grolig recommended six weeks of physical
therapy (Feldenkrais method) for appellant’s chronic pain syndrome. She began the
recommended therapy on December 5, 2012, and also had a follow-up visit with Dr. Grolig that
same day. Dr. Grolig’s December 5, 2012 treatment notes indicated that appellant improved
with physical therapy. He also recommended an FCE to objectively measure her tolerances.
Although it was clear to him that appellant was currently incapable of any economically
competitive employment, Dr. Grolig indicated that he wanted to obtain objective measurements
regarding her ability to sit, stand, lift, pull, and push. He advised appellant to continue with
physical therapy, obtain a formal FCE, and return for follow-up in four weeks.
When she returned on January 7, 2013, Dr. Grolig reiterated the need for an FCE, which
appellant had reportedly undergone earlier that day. At the time, she had a significant flare-up
following some preliminary measurements associated with the FCE. Dr. Grolig administered a
trigger point injection and advised appellant to follow-up in four weeks. In his February 4, 2013
follow-up report, he noted that the recent FCE indicated that appellant was unable to perform the
duties of her required job.7 Dr. Grolig further noted that the FCE revealed limitations in terms of
sitting and standing tolerances, as well as working tolerances. He characterized the FCE as

7

Although the January 7, 2013 FCE indicated that appellant did not meet the physical demands of her position at
the employing establishment, the report did not specifically identify appellant’s job by title. The essential function
information was reportedly obtained from the Dictionary of Occupational Titles (DOT); however, the FCE did not
identify a specific DOT Code for the position being evaluated. The report noted limitations with respect to material
handling and nonmaterial handling/positional tolerance. Appellant met none of the material handling requirements
and satisfied all but two (overhead reach and repetitive reach) of the 12 other criteria. With respect to material
handling, appellant demonstrated an ability to occasionally lift and/or maneuver objects weighing between 15 and
25 pounds. The comments section of the FCE noted, inter alia, that appellant currently “does not meet the physical
demands of her position at the [employing establishment].” The January 7, 2013 FCE report made no mention of
appellant’s regular duties as a mail processing clerk. It also did not mention her limited-duty assignment as a
modified PTF clerk, which included a 10-pound restriction with respect to pushing, pulling, and lifting.

5

highly objective and detailed. Based on the information provided, Dr. Grolig concluded that
appellant was unable to perform her “normal duties” at the employing establishment.8
In a March 12, 2013 decision, OWCP denied modification of the January 30, 2008
LWEC determination. The senior claims examiner found that the record did not demonstrate a
worsening of appellant’s accepted condition such that she was no longer able to perform her
limited-duty assignment. In fact, he noted that the January 7, 2013 FCE results supported that
appellant could perform her modified duties.
Appellant requested reconsideration on May 16, 2013. OWCP received additional
acupuncture and physical therapy treatment records, as well as follow-up reports from Dr. Grolig
dated March 25, May 6, and July 9, 2013. Dr. Grolig continued to diagnose 44-degree
thoracolumbar kyphoscoliosis, severe chronic pain syndrome, thoracolumbar myofascial pain
syndrome, and mechanical back syndrome. In his March 25, 2013 report, he expressed
disagreement with OWCP’s denial of benefits, accusing the OWCP claims examiner of being
“obstreperous” for second-guessing the FCE results. Dr. Grolig’s reiterated that appellant had
ongoing disability based on his February 4, 2013 findings. His May 6, 2013 report similarly
noted that appellant had been disabled and unable to work based on the detailed FCE.
Dr. Grolig’s July 9, 2013 follow-up report did not specifically comment on appellant’s ability to
work.
In an August 8, 2013 decision, OWCP again denied modification of its prior LWEC
determination.
On July 2, 2014 appellant’s counsel requested reconsideration.9 He argued that the
January 30, 2008 LWEC determination was erroneous because it was based on a part-time
position. Counsel claimed that appellant was a full-time employee at the time of her October 26,
2005 employment injury. He also claimed that OWCP improperly adjusted appellant’s wageloss compensation prior to the expiration of the 60-day period for issuing a formal LWEC
determination. Lastly, counsel argued that a June 25, 2014 FCE and a July 2, 2014 report from
Dr. Grolig established that appellant’s accepted condition had worsened.
According to the June 25, 2014 FCE, appellant demonstrated a standing tolerance of 15
minutes duration and a sitting tolerance of 30 minutes. The evaluation also revealed reduced
grip and pinch strength in the right hand, which demonstrated significantly below average
strength necessary to perform activities of daily living. Additional findings included the ability
to push or pull a 10-pound weight. The FCE further noted that appellant was able to reach to
perform hand manipulations for a two-minute period for an extended horizontal reach. Bilateral
lift testing demonstrated the ability to safely lift up to five pounds from the floor to waist level.
However, lifting with one hand demonstrated a three-pound limitation on the right and a sixpound limit on the left. With respect to lifting and carrying, appellant demonstrated the ability to
8

Dr. Grolig did not comment on whether appellant was able to perform her previous limited-duty assignment as a
modified PTF clerk.
9

Although the request was dated “June 2, 2014,” counsel referenced medical evidence dated June 25 and
July 2, 2014.

6

safely carry a five-pound weight a distance of 100 yards, as well as the ability to safely carry a
three-pound weight with the right hand and a five-pound weight with the left hand. Lastly,
lifting to a variety of shelf heights demonstrated the ability to safely lift a 5-pound weight to an
average shelf height of 20 inches.
Suzanne Cresswell, an occupational/physical therapist who administered the June 25,
2014 FCE, indicated that appellant exhibited maximal effort and participated to the best of her
ability throughout the evaluation. She noted that appellant had worked as a mail processing
clerk, which appellant described as requiring frequent repetitive and sustained reaching in a static
sit or stand posture. Ms. Cresswell was also aware that appellant worked a modified schedule
from 2006 to 2012, averaging a 12-hour workweek. However, she did not identify the specific
duties appellant performed prior to her 2012 work stoppage. Ms. Cresswell also did not
specifically comment on what, if any, type of work appellant was currently capable of
performing.
In his July 2, 2014 report, Dr. Grolig indicated that appellant suffered from chronic pain
syndrome and chronic discogenic pain syndrome. He reviewed the results of her latest FCE and
found that she was unable to perform the standing tolerance required of 30 minutes and was
unable to engage in repetitive pulling and pushing. Dr. Grolig explained that appellant could not
tolerate standing more than 15 minutes, which was incompatible and inconsistent with the job
requirements. He indicated that appellant remained disabled from the requirements of the
current job offer.10 Dr. Grolig further indicated that he did not see her condition improving in
the future.
OWCP referred appellant for a second opinion evaluation. In a September 12, 2014
report, Dr. Ronald L. Teed, a Board-certified orthopedic surgeon and OWCP-referral physician,
diagnosed preexisting chronic idiopathic thoracolumbar scoliosis with secondary spine pain and
functional overlay. He noted that appellant’s claim had been accepted for permanent aggravation
of thoracolumbar scoliosis. Dr. Teed further indicated that appellant developed spondylosis of
the thoracolumbar spine secondary to her idiopathic scoliosis. He explained that the spondylosis
contributed to appellant’s current pain and activity limitations. Dr. Teed further explained that
appellant’s worsening complaints and radiographic changes were due to the natural progression
of the underlying, nonindustrial condition and were not work related.11 He advised that appellant
should be limited to lifting 18 to 20 pounds and she should be allowed to sit and stand
intermittently, as needed. The noted work restrictions were related to appellant’s chronic,
preexisting thoracolumbar spine condition. Dr. Teed specifically indicated that the restrictions
were unrelated to appellant’s accepted employment injury.
According to Dr. Teed, appellant’s accepted condition of permanent aggravation of
thoracolumbar scoliosis had not worsened. He explained that aggravation was not currently
indicated, having noted that appellant had been off work for a number of years, and prior to that
10

Dr. Grolig did not identify which “current job offer” he was referring to.

11

Dr. Teed noted that appellant’s January 6, 2014 imaging studies revealed thoracic and lumbar scoliosis, facet
joint arthropathy at L5-S1, and a slight right paracentral disc protrusion at T4-5, which was consistent with mild
cord compression.

7

she was on very limited work activities for a number of years. Dr. Teed indicated that the
accepted aggravation certainly would have been expected to resolve after appellant stopped work
in May 2012. He reiterated that there had been no worsening of her accepted condition, but
rather a progression of degenerative changes related to appellant’s chronic, preexisting idiopathic
scoliosis. Dr. Teed further explained that recent imaging studies revealed age-related lumbar
spondylosis. He also indicated that the medical evidence of record did not support total
disability as of May 6, 2012. Dr. Teed noted that appellant’s May 2012 work stoppage was
based mainly on subjective findings. He also found that appellant was currently able to return to
her November 26, 2007 light-duty job.
Additional evidence received subsequent to OWCP’s August 8, 2013 decision included
physical therapy and acupuncture treatment records from June 5, 2013 through August 13, 2014.
OWCP also received follow-up reports from Dr. Grolig dated August 15, September 25,
October 24, November 5, December 3, 2013, January 6, February 5, March 24, and May 5, 2014.
Dr. Grolig also submitted duty status reports (Form CA-17) dated October 24, 2013 and
February 5, 2014.12
The majority of Dr. Grolig’s above-noted follow-up reports did not specifically address
appellant’s disability status and/or work restrictions. In his January 6, 2014 report, he discussed
the results of appellant’s recent imaging studies, which he noted revealed severe changes
associated with scoliosis. Dr. Grolig advised that appellant was unable to perform her prior job,
and that she might be a candidate for surgery should her T4-5 disc protrusion worsen. He noted
that, based on the recent imaging studies, appellant’s condition had clearly worsened. Dr. Grolig
further stated that it was clear that appellant’s current condition was due to the progression of her
previous industrial condition. He reiterated that appellant was unable to perform her previous
job “any hours per week,” and that she was clearly disabled as an outgrowth of her industrial
condition. When appellant returned for follow up on February 5, 2014, Dr. Grolig indicated that
she suffered from chronic pain syndrome and secondary myofascial syndrome. He also noted
that she had limitations that precluded her return to work, which were outlined in the latest
Form CA-17.
OWCP also received an October 4, 2013 report from Dr. Scott H. Kitchel, a Boardcertified orthopedic surgeon, who diagnosed idiopathic scoliosis and chronic back pain.
Although he noted an October 26, 2005 date of injury, Dr. Kitchel did not identify the cause of
injury. His October 4, 2013 report also did not include information regarding work limitations
and/or disability.
The record also included three additional reports from Dr. Conaughty, dated
November 11 and 14, 2013, and January 10, 2014. When he examined appellant on
November 11, 2013 Dr. Conaughty diagnosed thoracic scoliosis. Appellant’s x-ray reportedly
12

Both Form CA-17s identified the same work restrictions; however, the reports indicated that appellant had not
yet been advised to resume work. Dr. Grolig imposed a 10-pound lifting/carrying limitation. He also noted that
appellant could sit for 30 minutes, stand for 30 minutes continuously and up to one hour intermittently, walk for an
hour continuously and up to two hours intermittently, and climb for two hours. Dr. Grolig precluded all
bending/stooping/twisting and limited appellant to 30 minutes of pulling/pushing, 30 minutes kneeling, and one hour
of reaching above shoulder.

8

revealed a stable thoracic spine curve. Dr. Conaughty referred her for physical therapy and
advised her to continue with a pain management specialist. Appellant was to return in 12 months
for a follow-up x-ray. Dr. Conaughty also provided a return to work form with the notation “See
old restrictions.”13 His November 14, 2013 attending physician’s report (Form CA-20)
referenced the November 11, 2013 treatment notes and included a diagnosis of thoracic scoliosis.
Dr. Conaughty did not identify any period(s) of partial or total disability. Regarding appellant’s
work restrictions, he referred to the November 11, 2013 return to work form.
In his January 10, 2014 report, Dr. Conaughty noted that appellant had an established
diagnosis of thoracic scoliosis, and for many years she received palliative treatment with
physical therapy to enable her to continue working for the employing establishment and to keep
her pain in check. He indicated that physical therapy had been very successful in the past, and
when he last examined her on November 11, 2013, Dr. Conaughty noted that he recommended
that appellant continue physical therapy.
By decision dated October 1, 2014, OWCP again denied modification of the January 30,
2008 LWEC determination. As to the alleged error, it refuted counsel’s claim that appellant was
a full-time employee when she was injured on or about October 26, 2005.14 The senior claims
examiner also noted that OWCP waited at least 60 days after appellant began her November 26,
2007 limited-duty assignment before issuing a formal LWEC determination. Lastly, OWCP
found that appellant had not demonstrated that her work-related condition had materially
worsened. The senior claims examiner specifically found that Dr. Grolig had not explained how
appellant’s current condition was the result of a progression of her previous industrial condition.
In contrast, OWCP found that Dr. Teed provided a well-reasoned opinion explaining how
appellant’s current complaints and her claimed disability were not employment related.
OWCP subsequently received a July 2, 2014 duty status report (Form CA-17) from
Dr. Grolig.
The noted limitations were the same as he previously identified on
February 5, 2014.15 OWCP also received physical therapy treatment records from September 17
and October 8, 2014, as well as Dr. Grolig’s September 17, 2014 follow-up report and a
November 20, 2014 supplemental report. The September 17, 2014 follow-up report did not
specifically address disability and/or work restrictions.

13

Appellant had not seen Dr. Conaughty since he last examined her on May 9, 2012. Prior to that date, she had
been working part-time (12 hours week), limited duty in accordance with Dr. Conaughty’s May 26, 2011 permanent
work restrictions.
14

The employing establishment repeatedly identified appellant’s October 26, 2005 date-of-injury clerk position as
either part time or PTF. The January 16, 2006 claim (Form CA-2) similarly identified appellant as a part-time
employee. According to the employing establishment, appellant’s regular work hours were 9:00 a.m. until 5:00
p.m., three days per week. During the week of November 13 to 19, 2005, appellant was scheduled to work 33 hours
over five days. On November 22, 2005 she stopped work after completing only 3.5 hours of a scheduled 8-hour
shift. That same week appellant had been scheduled to work 29.5 hours over four days. While the record
demonstrates that appellant worked in excess of 24 hours per week just prior to her November 22, 2005 work
stoppage, counsel’s claim that she was in full-time pay status is unsubstantiated.
15

See supra note 13.

9

In his November 20, 2014 supplemental report, Dr. Grolig explained appellant’s need for
ongoing professional therapy, including acupuncture and physical therapy. He indicated that
therapy was a way of avoiding stronger opioid medications, as well as a means of preserving
what little function appellant had left. In reviewing her history, Dr. Grolig noted he first
evaluated appellant in September 2012, and that she had a long employment history as a mail
processing clerk. He also noted that appellant had scoliosis for many years. Dr. Grolig indicated
that appellant’s work created muscle tension, spasm, and a progressive increase in her
thoracolumbar curvature, which when last measured revealed 44 degrees of thoracolumbar
kyphoscoliosis. He also indicated that appellant’s muscles had weakened due to repetitive
trauma at work. According to Dr. Grolig, appellant’s many years of therapy prevented her
condition from becoming far worse. He believed the June 25, 2014 FCE demonstrated the extent
of appellant’s disability. In closing, Dr. Grolig opined that the extent of damage shown and
appellant’s disability were the direct result of her many years of work for the employing
establishment. He believed that had appellant not worked for the employing establishment, her
current condition would be substantially better.
On February 3, 2015 appellant accepted a limited-duty assignment as a modified mail
processing clerk.16 The job required that she work four hours per day, three days a week.
Appellant’s duties included up to two hours “walling mail” and “notify packages” and up to two
hours working the window/retail counter. Additional duties included undeliverable bulk
business mail (UBBM) and second notices (up to one hour). The physical requirements involved
up to two hours of walking, up to one hour of standing, up to 30 minutes sitting, and up to four
hours of fine manipulation and lifting. Appellant’s current hourly pay was $27.79.17
On April 24, 2015 appellant’s counsel filed another request for modification of OWCP’s
January 30, 2008 loss of wage-earning capacity determination. He submitted a February 9, 2015
report from Dr. Grolig in support of the request. Counsel argued that the report explained how
and why appellant’s condition worsened from the work she had actually been doing.
In his February 9, 2015 report, Dr. Grolig noted that appellant had recently returned to
modified duty, working a maximum of four hours per day, three days per week. Appellant’s
medical problems included 44-degree thoracolumbar kyphoscoliosis, severe chronic pain
syndrome, thoracolumbar myofascial pain syndrome, and mechanical back syndrome.
Dr. Grolig reported that appellant had been diagnosed with thoracic scoliosis exacerbated by her
employment. He described her job duties as involving manual distribution of letter-sized mail,
as well as moving hands full of flat-sized mail. Dr. Grolig indicated that appellant spent two
hours each day sorting mail. He also noted that she removed parcels from yellow bags, handled
large stacks of mail, and worked with Eastern Regional Mail Containers (ERMC). Additionally,
appellant lifted mail pouches from ERMCs and dumped the contents onto a metal table.
Dr. Grolig also reported that she performed basic window operations during her four-hour
workday. He explained that as a result of repetitive lifting of stacks of mail, twisting to sort
letter-sized mail, and moving ERMCs weighing 300 to 400 pounds, appellant experienced some
16

The offer referenced medical documentation dated February 5, 2014, which appears to be information provided
by Dr. Grolig.
17

The January 30, 2008 LWEC determination was based on a then-current hourly rate of $24.65.

10

extreme exertion of her shoulder and back. Dr. Grolig opined that these activities caused
appellant’s condition to worsen over time. He further explained that even though she only
worked four hours a day, three days per week, the repetitive bending, lifting, and twisting
exacerbated appellant’s thoracic scoliosis.
OWCP subsequently received Dr. Grolig’s May 15 and August 12, 2015 follow-up
reports. Dr. Grolig noted that appellant continued to work modified duty for four hours a day,
three days a week. He continued to treat appellant’s flare-ups, which included prescribing
topical agents, additional acupuncture, and administering trigger point injections.
In an October 22, 2015 decision, OWCP again denied modification of its January 30,
2008 LWEC determination.
LEGAL PRECEDENT
A wage-earning capacity determination is a finding that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.18 Compensation payments are based on the wage-earning capacity determination, and it
remains undisturbed until properly modified.19 Modification of an LWEC determination is
unwarranted unless there is a material change in the nature and extent of the injury-related
condition, the employee has been retrained or otherwise vocationally rehabilitated, or the original
determination was erroneous.20 The burden of proof is on the party seeking modification of the
wage-earning capacity determination.21
A light-duty position that fairly and reasonably represents an employee’s ability to earn
wages may form the basis of an LWEC determination if that light-duty position is a classified
position to which the injured employee has been formally reassigned.22 The position must
conform to the established physical limitations of the injured employee; the employer must have
a written position description outlining the duties and physical requirements; and the position
must correlate to the type of appointment held by the injured employee at the time of injury.23 If
these circumstances are present, a determination may be made that the position constitutes
“regular” federal employment.24

18

5 U.S.C. § 8115(a); see Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

19

See Katherine T. Kreger, 55 ECAB 633, 635 (2004).

20

20 C.F.R. § 10.511; see Tamra McCauley, 51 ECAB 375, 377 (2000); Federal (FECA) Procedure Manual,
Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.3 (June 2013).
21

20 C.F.R. § 10.511.

22

Id. at § 10.510.

23

Id.

24

Id.

11

With respect to part-time employment, the FECA Procedure Manual provides: (1) a parttime position may form the basis of an LWEC determination if the employee was a part-time
worker at the time of injury; and (2) for an employee who was a full-time employee on the date
of injury, a part-time position may form the basis of an LWEC determination if the employee’s
stable, established work restrictions limit him or her to part-time work.25 For a part-time position
to fairly and reasonably represent the wage-earning capacity of an individual who was a full-time
employee on the date of injury, the position should involve the number of hours the employee is
capable of working as indicated in the current, stable work restrictions.26
As long as there is no work stoppage due to the accepted condition(s), a formal LWEC
determination should be issued following 60 calendar days from the date of return to work.27
ANALYSIS
Appellant seeks modification of the January 30, 2008 LWEC determination, therefore,
she bears the burden of proof.28 The Board notes that neither appellant, nor her counsel, claim
that modification is warranted on the basis that she has been retrained or otherwise vocationally
rehabilitated. Counsel’s April 24, 2015 request for modification also did not allege that the
January 30, 2008 LWEC determination was issued in error. His only contention was that the
medical evidence of record established a material change in the nature and extent of appellant’s
injury-related condition.
Modification of an LWEC determination is appropriate where the evidence demonstrates
a material change in the nature and extent of the injury-related condition.29 The current medical
evidence must demonstrate a worsening of the accepted medical condition with no intervening
injury resulting in new or increased work-related disability.30
Prior to receiving counsel’s April 24, 2015 request for modification, OWCP received
physical therapy treatment records dated September 17 and October 8, 2014. Certain healthcare
providers such as physician assistants, nurse practitioners, physical therapists, acupuncturists,
and social workers are not considered “physician[s]” as defined under FECA.31 Consequently,
their medical findings and/or opinions are not of sufficient probative value to establish

25

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Earnings, Chapter 2.815.5c(1)(b) (June 2013).
26

Id.

27

Id. at Chapter 2.815.6a.

28

20 C.F.R. § 10.511.

29

Id.

30

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity
Decisions, Chapter 2.1501.3a(2) (June 2013).
31

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

12

entitlement to FECA benefits.32 In this instance, appellant’s voluminous physical therapy and
acupuncture treatment records are insufficient to establish a material change in the nature and
extent of her injury-related condition.
OWCP also received a July 2, 2014 duty status report (Form CA-17), as well as
Dr. Grolig’s September 17, 2014 follow-up report and a November 20, 2014 supplemental
report. The July 2, 2014 Form CA-17 did not address whether appellant’s work-related
condition had materially changed. Dr. Grolig’s September 17, 2014 follow-up report did not
specifically address disability and/or work restrictions.
In his November 20, 2014 supplemental report, Dr. Grolig indicated that the June 25,
2014 FCE demonstrated the extent of appellant’s disability. He found that appellant’s disability
was the direct result of her many years of work for the employing establishment. Dr. Grolig
believed that had appellant not worked for the employing establishment, her current condition
would be substantially better. While it is evident that Dr. Grolig believed that appellant’s
employment activities contributed to her current condition, he did not explain how her accepted
condition materially changed on or about May 7, 2012 such that appellant was no longer capable
of performing the part-time, limited-duty position she held since November 26, 2007. It is also
unclear from the November 20, 2014 supplemental report whether Dr. Grolig believed that
appellant’s post-November 2007 employment activities exacerbated her condition.
In conjunction with the April 24, 2015 request for modification, appellant’s counsel
submitted Dr. Grolig’s February 9, 2015 report. He argued that the report explained how and
why appellant’s accepted condition worsened from the work she had actually been doing. In his
February 9, 2015 report, Dr. Grolig identified what he understood to be appellant’s modified job
duties. He then explained that even though she only worked four hours a day, three days per
week, the repetitive bending, lifting, and twisting exacerbated her thoracic scoliosis. As noted,
the current medical evidence must demonstrate a worsening of the accepted medical condition
with no intervening injury resulting in new or increased work-related disability.33 In essence,
Dr. Grolig attributed appellant’s worsening condition to performing her modified mail
processing clerk duties, which is akin to an intervening injury. As such, his belief that
appellant’s limited-duty assignment exacerbated her thoracic scoliosis does not establish a basis
for modification. Appellant was examined by and submitted reports from Drs. Conaughty, Lang,
Greenberg, and Kitchel. None of these physicians addressed the issue of whether appellant’s
condition had materially changed. Accordingly, the Board affirms OWCP’s October 22, 2015
decision, finding that appellant failed to establish a basis for modifying the January 30, 2008
LWEC determination.

32

J.L., Docket No. 15-1935 (issued January 27, 2016) (acupuncturist); C.K., Docket No. 14-1235 (issued
September 11, 2014) (acupuncturist); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320
n.11 (2006).
33

Supra note 30.

13

CONCLUSION
Appellant has not established a basis for modifying OWCP’s January 30, 2008 LWEC
determination.
ORDER
IT IS HEREBY ORDERED THAT the October 22, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 25, 2016
Washington, DC

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

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

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

14


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Baltimore, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-0572
Issued: February 11, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On March 2, 2021 appellant filed a timely appeal from September 11 and October 2, 2020
merit decisions and a December 22, 2020 nonmerit decision of the Office of Workers’
Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’ Compensation Act2

1

The Board notes that, during the pendency of this appeal, OWCP issued an August 10, 2021 decision, which
granted appellant’s request for modification of the October 2, 2020 schedule award decision, and an August 11, 2021
decision granted appellant a schedule award for 7 percent right upper extremity permanent impairment and 15 percent
right lower extremity permanent impairment. (RD 8/10, 11/2021) The Board and OWCP may not simultaneously
exercise jurisdiction over the same issue(s). 20 C.F.R. § § 501.2(c)(3), 10.626; see D.P., Docket No. 20-1330 (issued
February 19, 2021); J.C., Docket No. 19-1849, n.2 (issued November 17, 2020); Russell E. Lerman, 43 ECAB 770
(1992); Douglas E. Billings, 41 ECAB 880 (1990). Consequently, OWCP’s August 10 and 11, 2021 decisions are set
aside as null and void.
2

5 U.S.C. § 8101 et seq.

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.3
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish disability
from work for the period August 2 through September 13, 2019; (2) whether she has met her
burden of proof to establish permanent impairment of a scheduled member or function of the body,
warranting a schedule award; and (3) whether OWCP abused its discretion in denying appellant’s
request for a hearing pursuant to 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On June 13, 2019 appellant, then a 52-year-old customer service representative, filed a
traumatic injury claim (Form CA-1) alleging that on that date she sustained right shoulder, arm,
wrist, hip, leg, and ankle injuries when she slipped and fell on a damp/wet bathroom floor near a
sink. She stopped work on the date of injury and returned to work on September 16, 2019.
OWCP accepted right shoulder sprain, right knee sprain, and right hip traumatic
trochanteric bursitis as a result of the accepted June 13, 2019 employment incident.
In an August 14, 2019 Form CA-20, Dr. Bridgette Provost, a physician specializing in
internal medicine, noted appellant’s history of injury and diagnoses of right shoulder joint sprain,
right knees sprain, and right hip traumatic trochanteric bursitis. She attributed the diagnosed
conditions to appellant’s fall on June 13, 2019 and found appellant totally disabled for the period
June 13 through August 28, 2019. Dr. Provost advised that any return to work would be
determined at a later date.
In a report dated August 29, 2019, Dr. Kevin E. McGovern, a Board-certified orthopedic
surgeon, diagnosed right hip trochanteric bursitis, which he attributed to the June 13, 2019
employment injury. Physical examination findings included slight reduced right hip motion, pain
on extremes of motion, no swelling or crepitus, and tenderness over the greater trochanter.
Dr. McGovern advised that appellant was to remain off work and continue with her physical
therapy three times a week for four weeks.
In a duty status report (Form CA-17) dated September 17, 2019, Dr. McGovern diagnosed
right hip bursitis and right knee and shoulder strains. He indicated that appellant was unable to
perform her usual work duties and held her off work. Dr. McGovern, in a form CA-20 of even
date, described the June 13, 2019 injury and diagnosed right hip bursitis and right knee and

3

The Board notes that, following the December 22, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

2

shoulder strains due to a slip and fall on June 13, 2019. He noted the period of disability as June 1
through September 26, 2019.
On June 6, 2020 appellant filed a claim for compensation (Form CA-7) claiming disability
from work for the period August 2 through September 13, 2019. On the reverse side of the claim
form appellant’s supervisor detailed pay status, including a time off award applied on August 6 to
7, 2019; sick leave used on August 5, 2019; and annual leave used on August 2, 2019.
In a separate Form CA-7 of even date, appellant filed a claim for a schedule award.
In a compensation claim development letter dated June 29, 2020, OWCP informed
appellant that additional evidence was required to establish disability for the period August 2
through September 13, 2019 claimed.4 It advised her of the type of evidence required to establish
her claim, including a comprehensive report from her treating physician addressing the periods of
disability. Appellant was afforded 30 days to provide the necessary evidence. No response was
received.
In a July 7, 2020 development letter concerning appellant’s schedule award claim, OWCP
requested that appellant’s treating physician submit a permanent impairment evaluation report in
accordance with the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides).5 It afforded her 30 days to submit additional medical
evidence in support of her schedule award claim. No response was received.
By decision dated September 11, 2020, OWCP denied appellant’s claim for wage-loss
compensation for the period August 2 through September 13, 2019. It noted that she failed to
submit any medical evidence establishing disability for the dates and hours claimed due to her
accepted employment injury.
By decision dated October 2, 2020, OWCP denied appellant’s claim for a schedule award.
On November 30, 2020 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review regarding the October 2, 2020 denial of her schedule
award claim.
Appellant submitted a November 13, 2020 report from Dr. Timothy S. Frazier, an
orthopedic surgeon. Dr. Frazier diagnosed chronic right shoulder, lumbar, and right knee sprains,
L4-5 disc disease, and chronic right hip trochanteric bursitis, which he attributed to the accepted
June 13, 2019 employment injury. Using the sixth edition of the A.M.A., Guides, he found 23
percent right upper extremity permanent impairment, 25 percent permanent impairment of her
right hip, 21 percent whole person impairment for her lumbar spine, and 24 percent right lower
extremity permanent due to the accepted June 13, 2019 employment.

4

OWCP noted that clarification was required concerning the type of leave appellant was claiming as it appeared
she was claiming LWOP, leave buy back, and a schedule award on different Form CA-7s. It also noted that some of
the leave she claimed conflicted with her continuation of pay dates.
5

A.M.A., Guides (6 th ed. 2009).

3

By decision dated December 22, 2020, the Branch of Hearings and Review denied
appellant’s hearing request, finding that it was untimely filed as it was not received until
November 30, 2020, more than 30 days after its October 2, 2020 merit decision. After excercising
its discretion, OWCP further found that the issue in the case could equally be addressed through
the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 6 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, prob ative, and substantial
evidence.7 The term disability is defined as the incapacity, because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.8 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled from work
as a result of the accepted employment injury. 9
Whether a particular injury causes an employee to become disabled from work, and the
duration of that disability, are medical issues that must be proven by a preponderance of the
reliable, probative, and substantial medical evidence. The Board will not require OWCP to pay
compensation for disability in the absence of medical evidence directly addressing the specific
dates of disability for which compensation is claimed. To do so would essentially allow an
employee to self-certify his or her disability and entitlement to compensation. 10
ANALYSIS -- ISSUE 1
The Board has duly considered the matter and finds that the case is not in posture for a
decision with regard to appellant’s claim for wage-loss compensation for the period August 2
through September 13, 2019.
In the case of William A. Couch,11 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued.
While OWCP is not required to list every piece of evidence submitted to the record, the
record is clear that the documents, which appellant submitted prior to the acceptance of her claim,
6

Supra note 2.

7

See A.N., Docket No. 20-0320 (issued March 31, 2021); B.K., Docket No. 18-0386 (issued September 14, 2018);
see also Amelia S. Jefferson, 57 ECAB 183 (2005); Nathaniel Milton, 37 ECAB 712 (1986).
8

20 C.F.R. § 10.5(f); A.N., id.; S.T., Docket No. 18-0412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB
397 (1999).
9

See A.N., supra note 7; D.G., Docket No. 18-0597 (issued October 3, 2018); Amelia S. Jefferson, supra note 7.

10

W.C., Docket No. 19-1740 (issued June 4, 2020); J.B., Docket No. 19-0715 (issued September 12, 2019).

11

41 ECAB 548 (1990); T.G., Docket No. 19-1930 (issued January 8, 2021); D.M., Docket No. 20-0099 (issued
July 16, 2020); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

4

were not reviewed by OWCP. In its September 11, 2020 decision, OWCP failed to consider an
August 14, 2019 Form CA-20 from Dr. Provost, as well as August 29 and September 17, 2019
reports from Dr. McGovern. As OWCP did not note receipt or consideration of this medical
evidence, it failed to follow its own procedures by properly discussing the relevant medical reports
of record.12
It is crucial that OWCP review all evidence received prior to the issuance of its final
decision, as the Board’s decisions are final with regard to the subject matter appealed. 13 The Board
finds that this case is not in posture for decision as OWCP did not review the above -noted evidence
in its September 11, 2020 decision. 14 On remand OWCP shall review all evidence of record, and
following any further development as it deems necessary, it shall issue a de novo decision
regarding appellant’s wage-loss compensation claim.
LEGAL PRECEDENT -- ISSUE 2
The schedule award provisions of FECA15 and its implementing federal regulations, 16 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage of loss of a member shall be
determined. For consistent results and to ensure equal justice, the Board has authorized the use of
a single set of tables so that there may be uniform standards applicable to all claimants. 17 For
schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition of the
A.M.A., Guides, published in 2009.18 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes. 19
A claimant has the burden of proof under FECA to establish permanent impairment of a
scheduled member or function of the body as a result of his or her employment injury entitling
12
P.B., Docket No. 21-0157 (issued September 2, 2021). All evidence submitted should be reviewed and discussed
in the decision. Evidence received following development that lacks probative value should also be acknowledged.
Whenever possible, the evidence should be referenced by author and date. Federal (FECA) Procedure Manual, Part
2 -- Claims, Initial Denials, Chapter 2.1401.5(b)(2) (November 2012).
13

See T.G., supra note 11; C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475
(2004); see also William A. Couch, supra note 11.
14

See T.G., id.; V.C., Docket No. 16-0694 (issued August 19, 2016).

15

5 U.S.C. § 8107.

16

20 C.F.R. § 10.404.

17

Id. at § 10.404(a).

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also id. at Chapter 3.700.2 and Exhibit 1 (January 2010).
19

D.P., Docket No. 20-1330 (issued February 19, 2021); D.S., Docket No. 18-1140 (issued January 29, 2019);
Isidoro Rivera, 12 ECAB 348 (1961).

5

him or her to a schedule award. 20 OWCP’s procedures provide that, to support a schedule award,
the file must contain competent medical evidence, which shows that the impairment has reached a
permanent and fixed state and indicates the date on which this occurred (date of maximum medical
improvement), describes the impairment in sufficient detail so that it can be visualized on review,
and computes the percentage of impairment in accordance with the A.M.A., Guides.21 Its
procedures further provide that, if a claimant has not submitted a permanent impairment
evaluation, it should request a detailed report that includes a discussion of how the impairment
rating was calculated. 22 If the claimant does not provide an impairment evaluation and there is no
indication of permanent impairment in the medical evidence of file, the claims examiner may
proceed with a formal denial of the award. 23
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
On June 6, 2020 appellant filed a claim for a schedule award. No medical evidence was
received in support of her schedule award claim. In a July 7, 2020 development letter, OWCP
requested a medical opinion from appellant’s treating physician regarding the extent of her
permanent impairment in accordance with the A.M.A., Guides. Appellant, however, did not
submit the necessary evidence.
As noted above, if the claimant does not provide a report from a treating physician from
which appellant’s permanent impairment of a scheduled member of function of the body can be
visualized, and there is no indication of permanent impairment in the medical evidence of file, the
claims examiner may proceed with a formal denial of the award. 24 Because appellant did not
submit medical evidence to establish permanent impairment of a scheduled member or function of
the body, in accordance with the sixth edition of the A.M.A., Guides, she has not met her burden
of proof to establish her schedule award claim. 25
LEGAL PRECEDENT -- ISSUE 3
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance

20

D.P., id.; M.G., Docket No. 19-0823 (issued September 17, 2019); D.F., Docket No. 18-1337 (issued
February 11, 2019); Tammy L. Meehan, 53 ECAB 229 (2001).
21

Supra note 18 at Chapter 2.808.5 (March 2017).

22

Id. at Chapter 2.808.6(a) (March 2017).

23

Id. at Chapter 2.808.6(c) (March 2017).

24

Id.

25

See D.P., supra note 19; T.M., Docket No. 19-1126 (issued September 22, 2020).

6

of the decision, to a hearing on his [or her] claim before a representative of the Secretary.”26
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA provide
that a claimant shall be afforded a choice of an oral hearing or a review of the written record by a
representative of the Secretary. 27 A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking and before the claimant has requested reconsideration. 28
Although there is no right to a review of the written record or an oral hearing, if not requested
within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion.
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly denied appellant’s request for telephonic hearing
pursuant to 5 U.S.C. § 8124(b) as untimely filed.
OWCP’s regulations provide that the request for an oral hearing must be made within 30
days of the date of the decision for which a review is sought. 29 Appellant’s hearing request was
dated November 30, 2020, which was more than 30 days after October 2, 2020 decision. As such,
the Board finds that her hearing request was untimely filed and she was, therefore, not entitled to
an oral hearing as a matter of right. 30
OWCP also has the discretionary power to grant an oral hearing or review of the written
record even if the claimant is not entitled to a review as a matter of right. The Board finds that
OWCP properly exercised its discretion in its December 22, 2020 decision, as it noted that it had
determined that the issue could be equally well addressed through a request for reconsideration.
The Board has held that the only limitation on OWCP’s discretionary authority is reasonableness.
An abuse of discretion is shown through proof of manifest error, a clearly unreasonable exercise
of judgment, or actions taken which are contrary to logic and probable deduction from established
facts.31 In this case, the evidence of record does not establish that OWCP abused its discretion in
denying appellant’s request for a hearing. Accordingly, the Board finds that OWCP properly
denied her request for an oral hearing. 32

26

5 U.S.C. § 8124(b)(1).

27

20 C.F.R. §§ 10.616, 10.617.

28

Id. at § 10.616(a).

29

Id.

30

A.G., Docket No. 20-1319 (issued May 19, 2021); B.H., Docket No. 20-0777 (issued October 21, 2020).
Timeliness is determined by the postmark on the envelope, if available. Otherwise, the date of the letter itself should
be used. See J.H., Docket No. 06-1565 (issued February 20, 2007); James B. Moses, 52 ECAB 465 (2001), citing
William J. Kapfhammer, 42 ECAB 271 (1990); see also Douglas McLean, 42 ECAB 759 (1991).
31

A.G., id.; W.H., Docket No. 20-0562 (issued August 6, 2020).

32

Id.

7

CONCLUSION
The Board finds that this case is not in posture for decision with regard to appellant’s claim
for compensation for disability from work for the period August 2 through September 13, 2019.
The Board further finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award. The
Board also finds that OWCP properly denied her request for an oral hearing pursuant to 5 U.S.C.
§ 8124(b) as untimely filed.
ORDER
IT IS HEREBY ORDERED THAT the October 2 and December 22, 2020 decisions of
the Office of Workers’ Compensation Programs are affirmed. The September 11, 2020 decision
of the Office of Workers’ Compensation Programs is set aside and the case is remanded to OWCP
for further action consistent with this decision of the Board.
Issued: February 11, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees' Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Huntington Station, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-45
Issued: May 8, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 11, 2011 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) decision dated August 17, 2011 finding that he abandoned his
request for a hearing. Because more than 180 days has elapsed between the last merit decision
by OWCP dated March 30, 2011 and the filing of this appeal, the Board lacks jurisdiction to
review the merits of this case.1 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 nonmerit issue of the
case.

1

An appeal of a final adverse OWCP decision issued on or after November 19, 2008 must be filed within 180
days of the decision. 20 C.F.R. § 501.3(e). The Board notes that appellant had until September 27, 2011 to timely
file an appeal from the March 30, 2011 decision. Appellant’s appeal filed October 11, 2011 and postmarked
October 3, 2011 is after September 27, 2011 and, thus, is not timely for that decision.
2

5 U.S.C. §§ 8101-8193.

ISSUE
The issue is whether OWCP properly determined that appellant abandoned his request for
a hearing.
FACTUAL HISTORY
On January 12, 2011 appellant, then a 44-year-old letter carrier, filed a traumatic injury
claim alleging that on that day he missed a curb due to deep snow while delivering mail and this
caused pain in the lower right side of his back and side of his chest. He had returned to work on
January 3, 2011 from a nonwork-related back injury.
Evidence received with the claim included a January 12, 2011 supervisor’s statement, a
December 29, 2010 report from Dr. Gino A. Consigliere, a Board-certified family practitioner,
containing diagnoses of herniated disc and indicating that appellant could return to full duty on
January 3, 2011 and progress reports dated December 29, 2010, January 14 and 28, 2011; a
January 17, 2011 physical therapist evaluation; duty status reports of January 14 and 29, 2011;
and January 25, 2011 nurse’s report.
In a January 31, 2011 letter, OWCP advised appellant of the type of factual and medical
evidence needed to establish his claim. Appellant submitted additional evidence.
In a March 30, 2011 decision, OWCP denied appellant’s claim on the grounds that the
evidence submitted did not establish that the event occurred as described and the medical
evidence was insufficient to establish that a diagnosed medical condition was causally related to
the claimed injury and/or event. It advised that medical treatment was not authorized and that
any prior authorization was terminated.
On April 19, 2011 appellant requested an oral hearing before an OWCP hearing
representative.
On June 15, 2011 OWCP advised appellant that an informal hearing would be held
August 2, 2011 at 11:00 a.m. at a specified location. This notice was sent to appellant’s address
of record. It instructed that appellant or his representative be present and also informed him of
the conditions under which a scheduled hearing could be postponed.
By decision dated August 17, 2011, OWCP found that appellant abandoned his request
for a hearing. It found that he received a written notice of the hearing 30 days before the
scheduled hearing but did not appear or explain his absence either before or after the scheduled
hearing. The decision was sent to appellant’s address of record.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.3 Unless
3

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

2

otherwise directed in writing by the claimant, OWCP’s hearing representative will mail a notice
of the time and place of the hearing to the claimant and any representative at least 30 days before
the scheduled date.4
The authority governing the abandonment of hearings rests with OWCP’s procedure
manual, which provides that a hearing can be abandoned only under very limited circumstances.
All three of the following conditions must be present: the claimant has not requested a
postponement; the claimant has failed to appear at a scheduled hearing; and the claimant has
failed to provide any notification for such failure within 10 days of the scheduled date of the
hearing. Under these circumstances, the Branch of Hearings and Review will issue a formal
decision finding that the claimant has abandoned his request for a hearing and return the case to
the district OWCP.5
ANALYSIS
By decision dated March 30, 2011, OWCP denied appellant’s claim for a traumatic
injury. Appellant timely requested an oral hearing. In a June 15, 2011 letter, it notified him of
the time and place for his August 2, 2011 scheduled hearing. OWCP instructed appellant of the
ways a postponement could be granted if he could not appear at the stated time and date. The
letter was sent to appellant’s address of record. Appellant did not appear at the hearing. He did
not request a postponement of the hearing or explain his failure to appear at the hearing within
10 days of the scheduled hearing date of August 2, 2011. The Board therefore finds that
appellant abandoned his request for a hearing.
On appeal appellant asserted that he had moved and his mail was being forward to an
incorrect address. He indicated that he moved to Corie Court, but his mail was forwarded to a
different number on Corie Court. As explained, appellant failed to request a postponement;
failed to appear at a scheduled hearing; and failed to provide any notification for such failure
within 10 days of the scheduled date and therefore abandoned his request for an oral hearing.6
There is no evidence of record prior to OWCP’s August 17, 2011 decision that appellant had
moved or that his mail was forwarded to an incorrect address.7 Appellant also asserted that he
pulled muscles in his back and neck when he stepped off the curb due to 16 inches of snow. The
Board notes, however, that it only has jurisdiction over whether OWCP properly determined that
appellant abandoned his request for a hearing.

4

20 C.F.R. § 10.617(b).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999). See also G.J., 58 ECAB 651 (2007).
6

Id.

7

The June 15, 2011 notice of hearing was not returned to OWCP as undeliverable. The Board has held that, in
the absence of evidence to the contrary, it is presumed that a notice mailed to an individual in the ordinary course of
business was received by that individual. Under the mailbox rule, evidence of a properly addressed letter together
with evidence of proper mailing may be used to establish receipt. Joseph R. Giallanza, 55 ECAB 186 (2003).

3

CONCLUSION
The Board finds that appellant abandoned his request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the August 17, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 8, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
U.S. POSTAL SERVICE, PRINCES BAY
FINANCE STATION, Staten Island, NY,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-158
Issued: April 25, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 23, 2007 appellant filed a timely appeal from an October 10, 2007 decision
of the Office of Workers’ Compensation Programs denying her emotional condition claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
this decision.
ISSUE
The issue is whether appellant sustained an emotional condition on August 21, 2007 in
the performance of duty.
FACTUAL HISTORY
On August 22, 2007 appellant, then a 53-year-old sales service associate, filed a
traumatic injury claim alleging that her anxiety and panic attack were due to being harassed by
coworkers and management about making a telephone call on August 21, 2007. On the back of
the form the employing establishment denied harassing appellant. Appellant’s supervisor noted

that appellant had been “instructed not to use the station [tele]phone for personal calls in
accordance with established regulations.”
In an August 21, 2007 statement, Barbara Rossetti, supervisor customer service, detailed
the events of that day involving an argument between appellant and Wendy Zizzo, a coworker.
The argument related to appellant talking Chinese on the employing establishment telephone and
saying the word “fifteen,” which Ms. Zizzo interpreted as referring to her and her using more
than 15 minutes on a break. Ms. Rossetti stated that Ms. Zizzo related that appellant broke down
and began to act irrationally. In talking with appellant, Ms. Rossetti stated that appellant became
loud. Appellant informed Ms. Rossetti that she had been on the telephone, that it was not her
lunch time or official break and her coworker had no right to question her about being on the
telephone. Following her discussions with appellant and Ms. Zizzo, Ms. Rossetti informed the
employees that the employing establishment’s telephone was to be used for personal use only
during breaks and lunch. She stated that appellant became very upset following her directive
regarding use of the employing establishment telephone.
In a letter dated September 7, 2007, the Office informed appellant that the evidence of
record was insufficient to support her claim. She was advised as to the type of medical and
factual information to provide and given 30 days to submit the requested information.
Subsequently, the Office received an August 21, 2007 authorization for examination
and/or treatment (Form CA-16), a September 5, 2007 work capacity evaluation (Form OWCP5a), September 8, 2007 notes by a nurse, an August 27, 2007 attending physician’s report and a
September 5, 2007 certification of health care provider. Appellant submitted no further factual
evidence.
On August 21, 2007 appellant was diagnosed with a panic attack as a result of a stress
reaction.1 The physician checked “yes” to the question of whether the condition had been caused
or aggravated by an employment activity.
In an August 27, 2007 attending physician’s report, Dr. Joel A. Idowu, an attending
Board-certified psychiatrist, diagnosed anxiety which he attributed to workplace stress.
In a September 5, 2007 certification of health care provider, Dr. Idowu diagnosed anxiety
and depression which he opined had been triggered by workplace stress and harassment. He
stated that appellant’s condition began on August 27, 2007 and that she was currently totally
disabled from working.
In September 8, 2007 progress notes, Kathy San Filippo, R.N., noted that appellant
related having depression, anxiety, stress and panic disorder. She noted that appellant was not
working.
Dr. Idowu, in a September 24, 2007 work capacity evaluation form, diagnosed anxiety
and depression. He concluded that appellant was totally disabled from working.

1

The signature on the form is illegible.

2

By decision dated October 10, 2007, the Office denied appellant’s claim.2 The Office
found that the evidence of record was insufficient to establish that she sustained an injury as
alleged. In reaching this determination, the Office found that the record contained no evidence
describing the specific employment factor, event or practice which appellant believed caused her
injury.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act; that the claim was
filed within the applicable time limitation; that an injury was sustained while in the performance
of duty as alleged; and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.4 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.5
To determine whether an employee sustained a traumatic injury in the performance of
duty, the Office must determine whether fact of injury is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.6 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish a
causal relationship between the employment incident and the alleged disability and/or condition
for which compensation is claimed.7 An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her disability and/or condition relates to the
employment incident.8
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed

2

The Board notes that, following the October 10, 2007 decision, the Office received additional evidence.
However, the Board may not consider new evidence on appeal. See 20 C.F.R. § 501.2(c); Donald R. Gervasi, 57
ECAB ___ (Docket No. 05-1622, issued December 21, 2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
3

5 U.S.C. §§ 8101-8193.

4

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

5

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

6

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

7

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

8

Id.

3

by the employment, the disability comes within the coverage of the Act.9 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.10
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.11 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.12
ANALYSIS
On her claim form, appellant attributed her condition to being harassed by coworkers and
management about making a telephone call on August 21, 2007. Ms. Rossetti, supervisor
customer service, indicated that she informed appellant and her coworkers that the telephone was
to be used for personal use only during breaks and lunch. The Board notes that instruction
regarding work by a supervisor is an administrative function of the employer and not a duty of
the employee.13 An administrative or personnel matter will be considered to be an employment
factor where the evidence discloses error or abuse on the part of the employing establishment.14
The Board finds that appellant has not provided any evidence establishing error or abuse by the
employing establishment.15
Additionally, appellant failed to provide a description of any other employment factors
which she alleged caused her emotional condition. The Office advised her in its September 7,
2007 letter that she should submit a detailed factual statement describing the employment
incidents alleged to have caused her emotional condition; however, she did not submit such a
9

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

10

Gregorio E. Conde, 52 ECAB 410 (2001).

11

Robert Breeden, 57 ECAB ___ (Docket No. 06-734, issued June 16, 2006); Dennis J. Balough, 52 ECAB
232 (2001).
12

L.C., 58 ECAB ___ (Docket No. 06-1263, issued May 3, 2007); Jeral R. Gray, 57 ECAB ___ (Docket No.
05-1851, issued June 8, 2006).
13

D.L., 58 ECAB ___ (Docket No. 06-2018, issued December 12, 2006) (mere disagreement or dislike of a
supervisory or managerial action will not be compensable, absent evidence of error or abuse).
14

L.S., 58 ECAB ___ (Docket No. 06-1808, issued December 29, 2006).

15

As appellant has not established a compensable work factor, it is not necessary to address the medical evidence.
T.G., 58 ECAB ___ (Docket No. 06-1411, issued November 28, 2006); Barbara J. Latham, 53 ECAB 316 (2002),

4

statement. A claimant’s burden of proof includes the submission of a detailed description of the
employment factors or conditions which she believes caused or adversely affected the condition
or conditions for which compensation is claimed.16 As appellant failed to specifically identify
any other factors to which she attributed her claimed condition, she has failed to establish an
essential element of his claim.17
CONCLUSION
The Board finds that appellant has failed to establish that she sustained an emotional
condition on August 21, 2007 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 10, 2007 is affirmed.
Issued: April 25, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

16

David Apgar, 57 ECAB ___ (Docket No. 05-1249, issued October 13, 2005).

17

Charles D. Gregory, 57 ECAB ___ (Docket No. 05-252, issued January 18, 2006) (where an employee fails to
identify specific employment factors believed to be responsible for a claimed condition, the employee does not meet
his or her burden of proof in establishing a claim for compensation).

5


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
B.P., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER,
Elk Grove Village, IL, Employer
_________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1054
Issued: November 14, 2019

Case Submitted on the Record

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

JURISDICTION
On April 12, 2019 appellant, through counsel, filed a timely appeal from October 16, 2018
and March 8, 2019 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the March 8, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a condition causally
related to the accepted July 30, 2018 employment incident.
FACTUAL HISTORY
On August 29, 2018 appellant, then a 22-year-old mail handler, filed a traumatic injury
claim (Form CA-1), alleging that on July 30, 2018 he sustained a back and side injury while in the
performance of duty. He stopped work on August 6, 2018. On the reverse side of the claim form,
the employing establishment controverted the claim contending that appellant had not previously
reported the injury to management. Appellant submitted a statement in support of his claim.
On August 2, 2018 appellant was seen by Dr. Amy Kule, a Board-certified emergency
room physician, who diagnosed, inter alia, upper back strain. Dr. Kule indicated that appellant
was seen in the emergency room that day and was released to return to work without restrictions
on August 5, 2018.
In an August 8, 2018 note, Dr. Collette Williams, a physician specializing in internal
medicine, indicated that appellant was disabled from work for the period August 2 to 9, 2018 due
to a “back/side” employment injury.
In an August 8, 2018 note, Dr. Emily M. Teurk, a Board-certified internist, diagnosed side
pain and referred appellant for physical therapy.
In a development letter dated September 12, 2018, OWCP informed appellant of the
deficiencies in the evidence submitted. It advised him of the type of factual and medical evidence
needed to establish his claim and provided a questionnaire for his completion regarding the events
surrounding his injury. OWCP afforded appellant 30 days to submit the necessary evidence.
In a duty status report (Form CA-17) dated August 23, 2018, Dr. Matthew Crouch, a
resident/fellow physician, noted a diagnosis of left side pain due to a muscle sprain. He noted that
appellant’s injury occurred on August 3, 2018 when he was working on the dock. Appellant was
released to return to work on August 4, 2018. Dr. Crouch, in an attending physician’s report (Form
CA-20) dated August 23, 2018, diagnosed unspecified left-side abdominal pain and noted an injury
date of August 3, 2018. He opined that the diagnosed condition had likely been aggravated from
lifting a heavy object at work.
On September 27, 2018 appellant responded to questions posed in OWCP’s questionnaire.
He stated that he developed back pain from pushing a bulk mail center over-the-road container
while working on the south dock.
In a report dated September 27, 2018, Dr. Crouch noted that appellant was seen for a
follow-up for left-sided lower back pain on August 23, 2018. Appellant had previously been seen
on August 2 and 9, 2018 for left-sided lower back pain, which Dr. Crouch indicated began on
July 31, 2018 after appellant had lifted many heavy objects at work. A physical examination
revealed tenderness on palpation of lower back muscles. Dr. Crouch opined that appellant’s
symptoms appeared consistent with a musculoskeletal strain from lifting heavy objects at work.

2

By decision dated October 16, 2018, OWCP denied appellant’s claim finding that he failed
to establish causal relationship. It found that the medical evidence of record failed to establish
how the diagnosed condition had been caused or aggravated by the accepted July 30, 2018
employment incident.
On December 11, 2018 appellant requested reconsideration of OWCP’s October 16, 2018
decision.
In a January 3, 2019 report, Dr. David Barnes, an osteopathic physician specializing in
family medicine, related that appellant had explained that on July 31, 2018 he felt a pop in his
lower back while pushing a container to load into a FedEx truck. He noted that appellant had been
diagnosed with a lumbar strain on August 8, 2018 by his treating physician. Dr. Barnes further
noted appellant’s physical examination findings and diagnosed lumbar sprain, sacroiliac sprain,
lumbar radiculopathy, and sacroiliitis. He opined that appellant would not have sustained a lower
back injury if he had not been working on July 31, 2018.
A January 21, 2019 magnetic resonance imaging (MRI) scan diagnosed mild L3-4 and L45 spinal canal stenosis. The report noted a history of a lower back injury due to lifting heavy
objects.
By decision dated March 8, 2019, OWCP denied modification of its October 16, 2018
decision.
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
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
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 if an employee has sustained a traumatic 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 that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that

4

H.A., Docket No. 18-1466 (issued August 23, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

H.A., supra note 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).

3

allegedly occurred.7 The second component is whether the employment incident caused a personal
injury.8
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, 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 incident.9
ANALYSIS
The Board finds appellant has not met his burden of proof to establish lumbar conditions
causally related to the accepted July 30, 2018 employment incident.
In support of his claim, appellant submitted an emergency room report dated August 2,
2018 from Dr. Kule. She diagnosed upper back strain, but did not offer an opinion as to the cause
of the diagnosed condition. Medical evidence that does not offer an opinion regarding the cause
of an employee’s condition is of no probative value on the issue of causal relationship.10 Thus,
Dr. Kule’s report is insufficient to establish appellant’s claim.
OWCP also received an August 8, 2018 note from Dr. Williams who noted that appellant
had sustained a back/side employment injury. As Dr. Williams did not provide a history of injury,
a firm diagnosis of a particular medical condition, or a rationalized opinion regarding causal
relationship, her report was of no probative value.11 Similarly OWCP received an August 8, 2018
note from Dr. Teurk, who noted a diagnosis of side pain. However, pain is a symptom rather than
a specific diagnosis.12 Dr. Teurk also did not relate a history of injury, diagnosis, or offer an
opinion regarding causal relationship, therefore, her report is also of no probative value.13
OWCP received Forms CA-17 and CA-20 dated August 23, 2018 and a September 27,
2017 report from Dr. Crouch. In the August 23, 2018 CA-17 and CA-20 forms, Dr. Crouch noted
an injury date of August 3, 2018 and diagnosis of left-sided pain due to muscle sprain. Dr. Crouch,
in his September 27, 2018 report, noted appellant’s lower back pain began on July 31, 2018 after
lifting heavy objects at work and he diagnosed musculoskeletal strain. It is well established that
medical reports must be based on a complete and accurate factual and medical background, and
that medical opinions based on an incomplete or inaccurate history are of limited probative value.14
7

J.C., Docket No. 18-1503 (issued May 2, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

8

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

9

S.S., Docket No. 18-1488 (issued March 11, 2019).

10

J.C., supra note 7; L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued
July 6, 2018).
11

See I.C., Docket No. 19-0804 (issued August 23, 2019).

12

G.S., Docket No. 19-0996 (issued September 23, 2019).

13

Supra note 11.

14

T.C., Docket No. 18-1351 (issued May 9, 2019); J.M., Docket No. 17-1002 (issued August 22, 2017); J.R.,
Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).

4

Dr. Crouch did not attribute the diagnosed conditions to the accepted July 30, 2018 employment
incident, which appellant alleged occurred when he pushed a bulk mail container, but instead he
indicated a history of lifting heavy objects. As Dr. Crouch noted an incorrect date of injury and
an inaccurate history of injury, his reports were of no probative value.15
While Dr. Barnes noted a series of diagnoses and related that appellant had felt a pop in his
lower back while pushing a container, his report is also insufficient to establish appellant’s claim.
He noted an incorrect date of injury, July 31, 2018, and, while he opined that appellant would not
have sustained a low back injury if he had not been at work, his opinion regarding causal
relationship is conclusory.16 Dr. Barnes did not explain how pushing a bulk mail container on
July 30, 2018 would have physiologically caused the diagnosed conditions.17 His report is
therefore insufficient to establish appellant’s claim.
The January 21, 2019 MRI scan lacks probative value as it does not contain an opinion on
causal relationship between the accepted July 30, 2018 employment incident and a diagnosed
condition.18 The Board has held that reports of diagnostic tests lack probative value as they do not
provide an opinion on causal relationship between an accepted employment incident and a
diagnosed condition.19
As appellant has not submitted rationalized medical evidence, based upon a complete and
accurate history, to establish lumbar conditions causally related to the accepted July 30, 2018
employment incident, he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a lumbar
condition causally related to the accepted July 30, 2018 employment incident.

15

Supra note 11.

16

See S.H., Docket No. 19-0697 (issued September 4, 2019).

17

Id.

18

D.B., Docket No. 18-1359 (issued May 14, 2019); S.G., Docket No. 17-1054 (issued September 14, 2017).

19

T.H., Docket No. 18-1736 (issued March 13, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the March 8, 2019 and October 16, 2018 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 14, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6