United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
SYSTEMS COMMAND, San Diego, CA,
Employer
__________________________________________

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

Docket No. 15-1324
Issued: September 10, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 26, 2015 appellant filed a timely appeal from a May 12, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has more than 13 percent permanent impairment of the
right upper extremity for which she received schedule awards.
FACTUAL HISTORY
On May 13, 2005 appellant, then a 39-year-old aircraft ordinance systems mechanic, filed
a traumatic injury claim alleging that on May 3, 2005 she pulled her right shoulder in the
performance of duty. OWCP accepted the claim for neck sprain/strain, a sprain/strain of the
right arm and shoulder, and a complete rupture of the right rotator cuff. On July 12, 2005
1

5 U.S.C. § 8101 et seq.

appellant underwent a repair of a type 2 tear of the superior labrum anterior to posterior and
repair of a full-thickness rotator cuff tear at the supraspinatus area and an undersurface tear on
the humeral side of the right shoulder.
OWCP had previously accepted that appellant sustained a right shoulder strain and labral
tear due to a February 25, 2005 work injury, assigned file number xxxxxx297. On September 3,
2002 appellant had undergone a right shoulder debridement and subacromial decompression. In
decisions dated December 17, 2003 and July 15, 2004, OWCP granted her a schedule award for
three percent permanent impairment of the right upper extremity due to loss of range of motion
of the right shoulder under file number xxxxxx297.
In an impairment evaluation dated December 14, 2005, Dr. Lindy O’Leary, who
specializes in occupational medicine, diagnosed resolved cervical strain, right shoulder strain, a
torn rotator cuff, and a torn labrum. She noted that appellant was status post repairs of a type 2
labrum tear and a torn rotator cuff. Dr. O’Leary discussed appellant’s complaints of “minimal
right shoulder pain that increases to slight to moderate with right shoulder reaching and with
over shoulder reaching or heavy lifting.” She measured range of motion of the right shoulder.
Dr. O’Leary found that appellant had eight percent permanent impairment of the right upper
extremity due to loss of range of motion according to the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
On January 12, 2007 an OWCP medical adviser concurred with Dr. O’Leary’s finding
that appellant had an eight percent right upper extremity permanent impairment due to loss of
range of motion of the right shoulder. He further found an additional 5 percent permanent
impairment due to pain from the axillary nerve, for a total right upper extremity impairment of
13 percent.
By decision dated February 2, 2007, OWCP granted appellant a schedule award for an
additional 10 percent permanent impairment of the right upper extremity. The period of the
award ran for 31.2 weeks from February 5 to September 11, 2006.
On August 9, 2013 appellant underwent an authorized right shoulder arthroscopy and
debridement with the removal of a loose suture.
In a permanent and stationary report dated January 13, 2014, Dr. O’Leary discussed
appellant’s history of shoulder injuries and surgeries and, on examination, found full range of
motion of the right shoulder without pain, negative impingement, and no erythema, ecchymosis,
or swelling. Dr. O’Leary diagnosed resolved cervical strain, right shoulder strain with a labrum
and rotator cuff tear, status post repair of the rotator cuff and labrum tears, and status post
debridement and removal of a loose suture. She advised that appellant had obtained maximum
medical improvement.
On February 6, 2014 appellant filed a claim for an additional schedule award. By letter
dated February 18, 2014, OWCP requested that she submit an impairment evaluation from an
attending physician using the sixth edition of the A.M.A., Guides. In a January 23, 2015
response, appellant related that she was unable to find a physician who utilized the sixth edition
of the A.M.A., Guides.
On February 23, 2015 OWCP referred appellant to Dr. David T. Easley, a Board-certified
orthopedic surgeon, for a second opinion examination to determine the extent of any permanent
2

impairment of the right upper extremity. In a report dated March 20, 2015, Dr. Easley reviewed
appellant’s history of injury and the medical reports of record. On examination he found
tenderness on palpation at the supraspinatus and subscapularis tendons and the glenoid labrum, a
negative impingement sign, and symmetrical reflexes. Dr. Easley measured range of motion as
identical for both shoulders and found 4/5 muscle strength testing of the deltoids and elevators of
the right shoulder. Citing the sixth edition of the A.M.A., Guides, he identified the diagnosis as
a class 1 rotator cuff partial thickness tear using the shoulder regional grid at Table 15-5 on page
403, which yielded a default value of three percent. Dr. Easley applied a grade modifier of one
for functional history due to pain with vigorous activity, a grade modifier of two for physical
examination findings, and a grade modifier of two for clinical studies showing a partial rotator
cuff and labrum tear. He utilized the net adjustment formula and found that the default value
should be moved two places to the right, for a total right upper extremity impairment of five
percent.
On April 25, 2015 an OWCP medical adviser reviewed Dr. Easley’s report and concurred
with his impairment rating.
By decision dated May 12, 2015, OWCP denied appellant’s claim for an increased
schedule award.
On appeal appellant relates that after this injury she had to undergo a third surgery and
that she has continued difficulty using her right shoulder. She describes activities that she can no
longer perform and also notes that she has back problems.
LEGAL PRECEDENT
The schedule award provision of FECA,2 and its implementing federal regulations,3 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. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.4 As of May 1, 2009, the
sixth edition of the A.M.A., Guides, as amended, is used to calculate schedule awards.5
The sixth edition requires identifying the impairment Class of Diagnosis (CDX)
condition, which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).6 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id. at § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
6

A.M.A., Guides 494-531.

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ANALYSIS
OWCP accepted that on May 3, 2005 appellant sustained a complete rupture of the right
rotator cuff, a sprain/strain right shoulder and arm, and a neck sprain/strain in file number
xxxxxx258. Appellant also had a prior accepted claim, assigned file number xxxxxx297, for a
strain and labral tear of her right shoulder from an employment injury on February 25, 2002. On
September 3, 2002 she underwent a subacromial decompression and debridement of the right
shoulder. OWCP granted appellant a schedule award for three percent permanent impairment of
the right upper extremity due to loss of shoulder motion under file number xxxxxx297.
On July 12, 2005 appellant had additional surgery to repair a full-thickness rotator cuff
tear and a tear of the labrum. In a decision dated February 2, 2007, OWCP granted her an
additional 10 percent permanent impairment of the right upper extremity due to loss of range of
motion and pain in the axillary nerve of the right shoulder.
On August 9, 2013 appellant underwent further surgery for a debridement and removal of
a loose suture. In a report dated January 13, 2014, Dr. O’Leary found that appellant had full
range of shoulder motion without pain and no sign of impingement or swelling. She opined that
appellant’s neck strain had resolved. Dr. O’Leary advised that appellant had reached maximum
medical improvement.
On February 6, 2014 appellant filed a claim for an increased schedule award. She could
not find a physician to rate her impairment using the sixth edition of the A.M.A., Guides, and on
February 23, 2015 OWCP referred her to Dr. Easley for an impairment evaluation.
In a report dated March 20, 2015, Dr. Easley measured symmetrical range of motion of
both shoulders and 4/5 muscle strength of the right shoulder at the deltoids and elevators. On
examination he found tenderness to palpation at the right shoulder. Dr. Easley identified
appellant’s diagnosis as a partial thickness rotator cuff tear according to Table 15-5 on page 403,
which yielded a default value of three percent. He applied grade modifiers and found a total
right upper extremity impairment of five percent.
An OWCP medical adviser agreed with Dr. Easley’s finding and impairment rating.
However, OWCP had accepted appellant’s claim for a complete rupture of the right rotator cuff
and the operative report supported that she had a full rotator cuff tear rather than a partial tear.
The proper diagnosis in this claim is a full-thickness rotator cuff tear, which yields a default
value of three percent with no consistent objective findings and a default value of five percent
with residual loss but normal motion. The maximum allowed for a full-thickness tear after
applying grade modifiers is seven percent.
Accepting this distinction, even if appellant received the maximum rating under Table
15-5 for the diagnosis of a full-thickness rotator cuff tear, she has not shown a greater
impairment of the right arm than the previously awarded 13 percent. She has not submitted any
evidence showing a greater impairment.

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On appeal appellant describes continued problems with her right shoulder and notes that
she can no longer perform some activities. Factors such as limitations on daily activities,
however, do not influence the calculation of appellant’s schedule award.7
Appellant also maintains that she is experiencing difficulty with her back. This medical
problem is not covered by the decision appealed from OWCP. The Board’s jurisdiction is
limited, however, to reviewing this final decision is appellant’s claim.8
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than 13 percent permanent impairment of the
right upper extremity for which she received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the May 12, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 10, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7

See E.L., 59 ECAB 405 (2008); Kimberly M. Held, 56 ECAB 670 (2005).

8

20 C.F.R. § 501.2(c).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Providence, RI, Employer
__________________________________________

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

Docket No. 12-1844
Issued: April 1, 2013

Case Submitted on the Record

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

JURISDICTION
On August 29, 2012 appellant, through his counsel, filed a timely appeal from a July 31,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
right knee and back injury in the performance of duty on March 16, 2010.
FACTUAL HISTORY
On March 18, 2010 appellant, then a 58-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on March 16, 2010 he sustained a back strain and meniscus

1

5 U.S.C. § 8101 et seq.

sprain moving equipment on a scale. He stopped work on March 17, 2010 and notified his
supervisor on March 18, 2010.
By letter dated March 24, 2010, the employing establishment controverted the claim. It
stated that appellant did not timely notify his supervisor when the alleged incident occurred on
March 16, 2010 despite being aware of the procedures for filing due to previous workers’
compensation claims. The employing establishment stated that he called in sick for his next
scheduled shift on March 17, 2010. Appellant informed his manager that his knee buckled when
pushing a hamper, but that he did not realize he was injured until he was at home. The
employing establishment also noted that he was self-employed installing heavy equipment such
as heating and air conditioning units which could be the cause of his injury.
In a March 16, 2010 hospital discharge sheet, appellant was seen for back pain, sprains,
fracture and bruises and was referred to a specialist for follow-up care. In a back to work note of
the same date, John Zorsch, a physician’s assistant (PA), reported that appellant could return to
work on March 19, 2010.
By letter dated March 25, 2010, OWCP informed appellant that the evidence of record
was insufficient to support his claim. Appellant was advised of the medical and factual evidence
needed and was asked to respond to the questions provided in the letter within 30 days.
In a March 19, 2010 prescription note, Rebecca Grazboro, a registered nurse, reported
that appellant would undergo a work capacity evaluation the following week.
In a March 25, 2010 attending physician’s report (Form CA-20), Tracy Martin, a
registered nurse, noted that appellant could not return to work due to a right knee sprain and low
back strain. She check marked the form to reflect that his condition was caused from pushing a
cart at work. Ms. Martin listed that appellant had a preexisting back injury involving a fractured
vertebrae from a helicopter crash.
In a March 25, 2010 diagnostic report, Dr. David E. Gambill, a Board-certified
radiologist, reported that a magnetic resonance imaging (MRI) scan of the right knee revealed no
acute change with spurring of the patella.
In progress notes dated April 1 to 15, 2010, Dr. Surender Singh, a Board-certified in
family medicine, reported that appellant complained of pain after pushing a loaded mail cart at
work, which caused him to twist his low back and right knee. Appellant sought immediate
treatment at the emergency room on March 16, 2010. Upon review of diagnostic testing and
physical examination, Dr. Singh diagnosed low back pain, tear of the right knee medial cartilage
and sprain of right knee. In an April 1, 2010 CA-20 form, Dr. Singh checked the box marked
“yes” as to whether appellant’s condition was caused or aggravated by his employment activity.
He cited no history of a preexisting injury and concluded that appellant could not return to work
until further notice.
By decision dated April 29, 2010, OWCP denied appellant’s claim finding that the
factual evidence did not establish that the March 16, 2010 incident occurred as alleged.

2

On May 4, 2010 appellant requested review of the written record before the Branch of
Hearings and Review.
In narrative statements dated May 4 to August 30, 2010, appellant related that he was at
work on March 16, 2010 and had to weigh a hamper which appeared to be overweight. He
attempted to move the hamper onto the scale but one of the wheels was flat. Appellant continued
to push the hamper until he finally got it on the scale, causing his back to hurt. Once he got the
hamper onto the scale, he felt a burning sensation in his knee. Appellant stated that he took
medicine to relieve the pain and finished his shift. He woke up the next day with a swollen right
knee and back pain and sought emergency medical treatment. Although appellant had a side
business for heating and air conditioning installments, his job entailed paperwork and he did not
do any of the heavy installments. He noted an employment-related back injury 10 years prior
and stated that there had been no incidents with his back until March 16, 2010.2
In an April 3, 2010 report, Dr. James P. Strain, a Board-certified diagnostic radiologist,
reported that an MRI scan of the lumbar spine showed disc space narrowing and degenerative
changes with no fracture. He also noted moderately severe compression deformity of the T11
vertebral body.
In an April 5, 2010 report, Dr. Daryl R. Parker, a Board-certified diagnostic radiologist,
reported that an MRI scan of the right knee showed a tear of the posterior horn of the medial
meniscus, joint effusion, focal artifact/signal loss and slight bony spurring along the inferior and
superior aspects of the patella. He noted that plain film radiographs from March 25, 2010
indicated small metallic densities in the soft tissues anterolateral to the distal femoral metaphysis.
In a May 7, 2010 diagnostic report, Dr. Ahmed Elaini, a Board-certified radiologist,
reported that an MRI scan of the lumbar spine revealed multilevel degenerative changes most
pronounced at L4-5 and L5-S1 where disc protrusion was noted and incompletely visualized loss
of height at T11 with nonacute appearance.
In medical reports dated April 22 to May 24, 2010, Dr. James E. Devin, a Board-certified
orthopedic surgeon, reported that appellant injured his back and right knee on March 16, 2010
when he was pushing an 1100-pound hamper. Upon physical examination and review of
diagnostic testing, he diagnosed a back sprain at work aggravating preexisting chronic back pain,
aggravation of lumbar disc disease with protrusion, sciatica, right knee torn meniscus work
injury and knee sprain. Dr. Devin also diagnosed appellant with back sprain, aggravation of
lumbar disc disease, sciatica and a right knee torn meniscus. He opined that appellant was
unable to perform his job duties and recommended surgery and physical therapy.
In a June 2, 2010 surgical report, Dr. Arthur J. Bowman, a Board-certified orthopedic
surgeon, reported that appellant had internal derangement of the right knee and that an MRI scan
suggested a torn medial meniscus. Apparently, appellant injured his knee at work and the knee
felt unstable. He underwent arthroscopy and debridement of the medial femoral condyle without
complication. In follow up notes dated June 24 to July 13, 2010, Dr. Bowman stated that
appellant was restricted from working and recommended physical therapy treatments.
2

The Board notes that there is no further information regarding any prior injury and OWCP claim.

3

By decision dated December 16, 2010, a hearing representatives affirmed the April 29,
2010 decision, finding that the evidence failed to establish that the March 16, 2010 incident
occurred as alleged.
By letter dated November 21, 2011, appellant through counsel, requested reconsideration
of the December 16, 2010 OWCP decision. He resubmitted medical evidence previously of
record together with new medical reports from Dr. Bowman. On January 7, 2011 Dr. Bowman
stated that appellant was under his care and had no reported problem with his knee prior to the
March 2010 injury.
In an October 6, 2011 medical report, Dr. Bowman stated that appellant had arthroscopic
surgery of the right knee. Appellant informed him that he had no problems with his knee until he
sustained a fall in March 2010. Dr. Bowman stated that the “assumption has been made that is
when his knee problem occurred.” Appellant was referred after he sought emergency room and
physical therapy treatment. Dr. Bowman stated that, during his last examination on January 7,
2011, appellant was doing well other than the sensation of occasional mechanical clicking in the
knee. Physical findings were otherwise unremarkable with no pain and swelling.
By decision dated July 31, 2012, OWCP affirmed the December 16, 2010 decision
finding that the evidence of record failed to establish that the incident occurred as alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
When an employee claims that he or she sustained an injury in the performance of duty
he or she must submit sufficient evidence to establish that he or she experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. He or she must also
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

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

5

Elaine Pendleton, supra note 3.

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establish that such event, incident or exposure caused an injury.6 Once an employee establishes
that he or she sustained an injury in the performance of duty, he or she has the burden of proof to
establish that any subsequent medical condition or disability for work, for which he or she claims
compensation is causally related to the accepted injury.7
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his or her subsequent course of action. In determining whether a case has
been established, such circumstances as late notification of injury, lack of confirmation of injury
and failure to obtain medical treatment may, if otherwise unexplained, cast substantial doubt on
the employee’s statements. The employee has not met his or her burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.8
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.9 The opinion of the physician must be based on one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.
This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion.10
ANALYSIS
The Board finds that appellant failed to establish that he sustained a right knee and back
injury in the performance of duty on March 16, 2010.
Appellant must establish all of the elements of his claim in order to prevail. He must
prove his employment, the time, place and manner of injury, a resulting personal injury and that
her injury arose in the performance of duty. In its July 31, 2012 decision, OWCP found that
appellant did not establish that the incident occurred at the time, place and in the manner alleged.
The Board finds, however, that the evidence of record is sufficient to establish that the March 16,
2010 incident occurred, as alleged.

6

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
7

Elaine Pendleton, supra note 3.

8

Betty J. Smith, 54 ECAB 174 (2002).

9

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

10

James Mack, 43 ECAB 321 (1991).

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Appellant alleged that on March 16, 2010 he was pushing a heavy hamper filled with
mail onto a scale which had a flat wheel. This caused him to push harder, which resulted in back
pain and a pop in the right knee pain with burning sensation. Appellant’s CA-1 form noted that
he sustained a back strain and meniscus sprain on March 16, 2010 after moving equipment on a
scale. His CA-1 form and narrative statements dated March 18, May 4 and 24 and August 30,
2010, have all been consistent with one basic account of the mechanism of the employment
incident. Moreover, appellant sought medical treatment on the same date of the employment
incident, notified his supervisor on the following date and filed his CA-1 form only two days
after the employment incident.
The Board notes that Dr. Bowman’s October 6, 2011 medical report stated that appellant
had no problems with his knee until he sustained a fall in March 2010. However, this does not
cast such inconsistencies as to doubt the manner in which the incident occurred. The medical
reports from Dr. Singh and Dr. Devin are consistent in noting that appellant experienced right
knee and back pain after pushing a heavy hamper on March 16, 2010. Dr. Singh and Dr. Devin
treated appellant soon after the March 16, 2010 employment incident. Appellant consistently
maintained that he was pushing a heavy hamper filled with mail when he sustained his injury.
Moreover, Dr. Bowman’s June 2, 2010 and January 2, 2011 reports only note a work-related
injury and make no reference to a fall in March 2010. Although his October 6, 2011 report noted
that appellant sustained a fall in March 2010, the factual evidence of record overwhelmingly and
consistently states that he was pushing a heavy hamper on March 16, 2010, indicating that
perhaps Dr. Bowman mistakenly noted a fall instead. Thus, the Board finds that, given the above
referenced evidence, appellant has alleged with specificity that the incident occurred at the time,
place and in the manner alleged.11
In progress notes dated April 1 to 15, 2010, Dr. Singh reported that appellant complained
of low back pain and right knee pain after pushing a loaded mail cart at work which caused him
to twist his low back and right knee. Upon review of diagnostic testing and physical
examination, he diagnosed low back pain, tear of the right knee medial cartilage and sprain of
right knee. In medical reports dated April 22 to May 24, 2010, Dr. Devin reported that appellant
injured his back and right knee on March 16, 2010 when he was pushing an 1100-pound hamper.
He diagnosed back sprain at work aggravating preexisting chronic back pain, aggravation of
lumbar disc disease with protrusion, sciatica, right knee torn meniscus work injury and knee
sprain. In a June 2, 2010 operative report, Dr. Bowman diagnosed torn medial meniscus and
internal derangement of the right knee.
While the reports of Dr. Singh, Dr. Devin and Dr. Bowman establish a diagnosis of back
sprain, right knee torn meniscus, aggravation of lumbar disc disease and right knee sprain, they
are not rationalized as to the issue of causal relation. Dr. Bowman’s October 6, 2011 report
contains an incorrect history of the employment incident, noting that appellant sustained a fall in
March 2010. Moreover, his report failed to state any opinion on the cause of appellant’s injury.
Dr. Singh’s reports noted appellant’s complaints of right knee and back pain from pushing a
loaded mail cart at work. In an April 1, 2010 CA-20 form report, Dr. Singh checked the box
marked “yes” when asked if he believed appellant’s condition was caused or aggravated by his
11

See Willie J. Clements, 43 ECAB 244 (1991).

6

employment activity of pushing carts loaded with mail on March 16, 2010. The Board has held
that a report that addresses causal relationship with a checkmark, without medical rationale
explaining how the work conditions caused the alleged injury, is of diminished probative value
and is insufficient to establish causal relationship.12 Furthermore, Dr. Singh’s report had an
inaccurate medical history as he noted no preexisting injury to which appellant himself has
attested to. While Dr. Devin provided an accurate account of the March 16, 2010 employment
incident, he failed to provide any explanation regarding how the incident accepted in this case
caused or contributed to appellant’s right knee and back injury. His brief statement that
appellant suffered a back sprain at work and had a right knee torn meniscus work injury is
equivocal in nature and of limited probative value.13
The noted physicians did not provide a detailed discussion of appellant’s medical history,
merely recounted the incident as described by appellant and did not offer a rationalized opinion
on the issue of causal relationship.14 Medical evidence that does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.15 The opinion of a physician supporting causal relationship must rest on a complete
factual and medical background supported by affirmative evidence, address the specific factual
and medical evidence of record and provide medical rationale explaining the relationship
between the diagnosed condition and the established incident or factor of employment.16 The
reports of Dr. Singh, Dr. Devin and Dr. Bowman do not meet that standard and are insufficient to
meet appellant’s burden of proof.
The remaining medical evidence of record is also insufficient to establish causal
relationship between appellant’s right knee and back injury and the March 16, 2010 employment
incident.
Nurses, physician’s assistants, physical and occupational therapists are not
“physicians” as defined by FECA, their opinions regarding diagnosis and causal relationship are
of no probative medical value.17 While the diagnostic reports provided by Dr. Gambill,
Dr. Strain, Dr. Parker and Dr. Elaini provided a diagnosis with radiographic findings, they failed
to state any opinion on causal relationship.18 Thus, the reports are of limited probative value.
While appellant has established that the March 16, 2010 incident occurred as alleged, that
he was pushing a hamper onto a scale, he did not submit rationalized medical evidence to
12

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

13

S.W., Docket No. 08-2538 (issued May 21, 2009).

14

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
15

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

16

See Lee R. Haywood, 48 ECAB 145 (1996).

17

5 U.S.C. § 8101(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. See also Roy L. Humphrey, 57 ECAB 238 (2005).
18

Supra note 15.

7

establish that his back sprain, right knee torn meniscus, aggravation of lumbar disc disease or
right knee sprain were caused or aggravated by the accepted employment incident. In the instant
case, the record is without rationalized medical evidence establishing a causal relationship
between the March 16, 2010 employment incident and appellant’s right knee and back injury.
Thus, appellant has failed to establish his burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his right
knee and back injury is causally related to the accepted March 16, 2010 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the July 31, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: April 1, 2013
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
U.S. POSTAL SERVICE, GRAYSON POST
OFFICE, Grayson, Georgia, Employer
__________________________________________

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

Docket No. 08-1693
Issued: December 19, 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 May 29, 2008 appellant timely filed an appeal of the Office of Workers’
Compensation Programs’ merit decision dated April 7, 2008 denying her claim. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained
an occupational disease in the performance of duty.
FACTUAL HISTORY
Appellant, a 39-year-old rural carrier, filed an occupational disease claim (Form CA-2)
dated October 29, 2007 alleging repetition of work on a daily basis aggravated her weak hand
and arm, resulting in carpal tunnel syndrome. She submitted no corroborating medical evidence
with this form.
By letter dated January 22, 2007, appellant’s employer controverted her claim on the
basis that she had not filed any evidence, medical or otherwise, to support her claim.

By letter dated January 28, 2008, the Office notified appellant that it had received her
claim for benefits under the Federal Employees’ Compensation Act and requested detailed
information pertaining to her claim including a comprehensive medical report. Appellant did not
provide the requested information.
By decision dated April 7, 2008, the Office denied appellant’s claim because the
evidence submitted was not sufficient to establish an injury as defined by the Act.1
LEGAL PRECEDENT
An employee seeking benefits under the Act2 has the burden of proof to establish the
essential elements of their claim by the weight of the evidence,3 including that they sustained an
injury in the performance of duty and that any specific condition or disability for work for which
they claim compensation is causally related to that employment injury.4
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.5
The Board has held that the fact that a condition manifests itself or worsens during a
period of employment6 or that work activities produce symptoms revelatory of an underlying
condition7 does not raise an inference of causal relationship between a claimed condition and
employment factors.
As part of her burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.8 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
1

Appellant submitted medical evidence following the Office’s April 7, 2008 decision. The Board’s jurisdiction is
limited to review of the evidence which was before the Office at the time of its final decision. 20 C.F.R. § 501.2(c).
2

5 U.S.C. § 8101 et seq.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
5

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

6

E.A., 58 ECAB ___ (Docket No. 07-1145, issued September 7, 2007); Albert C. Haygard, 11 ECAB 393,
395 (1960).
7

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

8

G.T., supra note 4; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

2

the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.9
ANALYSIS
The Board finds that appellant failed to meet her burden of proof to establish a prima
facie claim for compensation. Although she submitted a statement which purported to identify
the factors of employment that she believed caused her condition, she failed to submit any
substantive medical evidence in support of her claim. Rather, the only evidence that appellant
submitted to the Office was the CA-2 form alleging that repetition of unspecified employment
task(s) on a daily basis aggravated her weak hand and arm.
The Office advised appellant of the need to submit a medical opinion explaining how the
claimed condition was related to the implicated employment factors. Appellant did not submit
any medical evidence prior to the Office’s April 7, 2008 decision. She therefore did not establish
a prima facie claim for compensation.
CONCLUSION
The Board finds that the Office properly determined that appellant did not meet her
burden of proving the claimed occupational disease.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 7, 2008 is affirmed.
Issued: December 19, 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
9

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.E., Appellant
and
DEPARTMENT OF THE TREASURY, U.S.
MINT, San Francisco, CA, Employer
__________________________________________

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

Docket No. 15-1072
Issued: February 23, 2016

Case Submitted on the Record

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

JURISDICTION
On April 9, 2015 appellant filed a timely appeal of an October 8, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to reduce appellant’s compensation
benefits based on her capacity to earn wages in the constructed position of call-out operator.
FACTUAL HISTORY
This case was previously before the Board.2 On September 29, 1993 appellant, then a 38year-old coin checker, filed an occupational disease claim (Form CA-2) alleging that she injured
1

5 U.S.C. § 8101 et seq.

2

Docket No. 98-1983 (issued July 18, 2000).

her right thumb, arm, shoulder, and back as a result of her federal employment duties. OWCP
accepted the claim for tendinitis of the right hand, wrist, and arm. Appellant was placed on the
periodic rolls effective May 27, 1994. She was involved in OWCP vocational rehabilitation
services and received a diploma as an ophthalmic technician on December 29, 1995. On
January 7, 1997 OWCP reduced appellant’s wage-loss compensation based on her ability to earn
wages in the selected position of ophthalmic assistant. On March 18, 1998 a hearing
representative affirmed OWCP’s decision. By decision dated July 18, 2000, the Board reversed
the March 18, 1998 decision finding that appellant did not have sufficient training to perform the
duties of the selected position. The facts of the case, as set forth in the prior decision, are
incorporated herein by reference.
In a November 9, 2006 letter, OWCP referred appellant to Dr. Arthur Auerbach, a Boardcertified orthopedic surgeon, to obtain an assessment of her employment-related condition, the
extent of disability, and appropriate treatment. In his December 7, 2006 report, Dr. Auerbach
reviewed a statement of accepted facts and appellant’s medical history. He conducted a physical
examination and concluded that she had reached maximum medical improvement. Dr. Auerbach
concluded that appellant continued to suffer residuals of her work-related injury and opined that
she was capable of light-duty work with the following restrictions: no repetitive movements
with the wrists and elbows; no reaching with the right arm; no reaching above the shoulder with
the right arm; no pushing, pulling, or lifting greater than 10 pounds occasionally with the right
arm.
On April 18, 2007 OWCP determined that the weight of the medical evidence rested with
Dr. Auerbach and requested a job offer from the employing establishment that complied with his
work restrictions.
By letter dated April 23, 2007, OWCP again referred appellant to vocational
rehabilitation services to assist her in returning to work. On December 27, 2007 it closed
appellant’s file for vocational rehabilitation services as medical issues were being clarified.
In an April 3, 2008 letter, OWCP notified the employing establishment that appellant’s
vocational rehabilitation services had been closed in December 2007 as there were new medical
issues that needed to be addressed. It advised that it was arranging for a new second opinion
examination.
OWCP referred appellant to Dr. Joseph McCoy, a Board-certified orthopedic surgeon, for
a second opinion examination to determine the nature and extent of her employment-related
conditions. In an April 28, 2008 report, Dr. McCoy reviewed a statement of accepted facts, her
medical history, and conducted a physical examination. He opined that appellant was capable of
working as an optometric technician for eight hours per day. In a July 7, 2008 addendum report,
Dr. McCoy opined that she was capable of participating in vocational rehabilitation.
In a July 15, 2008 report, Dr. David LaRochelle, an attending orthopedic surgeon,
disagreed with Dr. McCoy’s assessment as appellant had an underlying rheumatologic condition.
He opined that she was not capable of reaching above the shoulder or lifting more than 10
pounds.

2

In a December 4, 2008 letter, OWCP notified appellant that it had found a conflict in the
medical opinions of Drs. McCoy and LaRochelle and referred her to an impartial medical
examiner to resolve the conflict. On October 6, 2009 Dr. Mathias Masem, an orthopedic
surgeon, reviewed a statement of accepted facts, reviewed the medical record, and conducted a
physical examination. He diagnosed right wrist tendinitis, right carpal tunnel syndrome, right
elbow tendinitis, and right shoulder impingement syndrome. Dr. Masem opined that appellant
had a chronic right upper extremity repetitive strain injury, which arose out of her federal
employment. He disagreed with Dr. McCoy and concurred with Dr. LaRochelle that her right
shoulder injury was causally related to her federal employment. Dr. Masem found no evidence
of an underlying systemic inflammatory disease process or a cervical spine problem. He
restricted appellant from pushing, pulling, reaching above the shoulder, and lifting more than
five pounds. In a June 7, 2010 addendum report, Dr. Masem increased her lifting capacity to 10
pounds occasionally.
In reports dated January 12, 2011 through November 4, 2013, Dr. Robert Gomez, a
Board-certified orthopedic surgeon and appellant’s attending physician, restricted her from
lifting, pushing, and pulling over 10 pounds with both upper extremities and no repetitive use of
both upper extremities.
OWCP referred appellant to Dr. J. Hearst Welborn, Jr., a Board-certified orthopedic
surgeon, for a second opinion examination to determine the nature and extent of her
employment-related condition. In a September 26, 2011 report, Dr. Welborn reviewed a
statement of accepted facts, her medical history, and conducted a physical examination. He
diagnosed de Quervain’s tenosynovitis, shoulder impingement syndrome, bicipital tendinitis,
fibromyalgia, and chronic pain syndrome. Dr. Welborn noted that the shoulder impingement and
de Quervain’s tendinitis were causally related to appellant’s federal employment and noted that
her fibromyalgia and chronic pain conditions were not employment related. He found that she
did not have residuals of her work-related conditions as they had resolved over the past 18 years.
Dr. Welborn advised that appellant could work full-time, light duty with a restriction of lifting up
to 20 pounds.
On November 2, 2011 Dr. Gomez indicated that he disagreed with Dr. Welborn’s
evaluation and agreed “with Dr. LaRochelle and Dr. Masem that [appellant had] chronic right
shoulder impingement syndrome, chronic right wrist [d]e Quervain’s tenosynovitis, intermittent
right elbow pathology either tendinitis versus radial tunnel syndrome” and found no evidence for
fibromyalgia or chronic pain syndrome. In a September 13, 2013 report, he opined that appellant
continued to suffer residuals of her employment-related conditions. On November 4, 2013
Dr. Gomez advised that she could work with restrictions of no lifting, pushing, or pulling over 10
pounds with both arms, and no repetitive use of both arms.
In a November 20, 2013 letter, OWCP referred appellant to vocational rehabilitation
services based on Dr. Gomez’s November 4, 2013 report indicating that she was capable of
performing modified duties with restrictions.
On January 8, 2014 a vocational rehabilitation counselor identified the position of callout operator, Department of Labor’s Dictionary of Occupational Titles (DOT) No. 237.367-014
as suitable to appellant’s work experience, physical restrictions, and education. The call-out
operator position was identified as sedentary work which involved compiling credit information,
3

using the telephone, and copying information. The physical requirements included exerting up
to 10 pounds of force occasionally. The vocational rehabilitation counselor stated that appellant
had gained attention to detail skills, basic keyboarding, customer service, and filing skills which
she could apply towards work as an entry-level call-out operator and indicated that the position
was reasonably available within the general labor market of appellant’s commuting area on a
full-time basis as confirmed by the State of California’s Employment Development Department.
In a February 3, 2014 report, Dr. Gomez reviewed the call-out operator job description
and physical requirements and opined that appellant was capable of performing the job.
On February 19, 2014 OWCP received a rehabilitation plan and award, including the
call-out operator position. As of February 24, 2014, it provided 90 days of placement assistance.
Placement was unsuccessful. In a July 3, 2014 memorandum, OWCP stated that appellant was
offered an extension of placement services, but she did not take advantage of this offer.
Appellant also declined an interview for a position with Bay, Inc.
On September 2, 2014 OWCP issued a notice of proposed reduction of benefits finding
that appellant was capable of earning wages as a call-out operator at the rate of $400.00 per
week. It afforded her 30 days in which to submit evidence or argument regarding her capacity to
earn wages in the constructed position.
Appellant submitted a September 30, 2014 narrative statement arguing that she was not
capable of performing the call-out operator position and submitted reports dated May 5 through
September 17, 2014 from Dr. Gomez who reiterated his opinion that she was capable of
performing the job duties of the call-out operator position.
By decision dated October 8, 2014, OWCP finalized the proposed reduction of
compensation benefits finding that appellant had the capacity to earn wages as a call-out
operator. It determined that she had 58 percent loss of wage-earning capacity and her
compensation was reduced to a net compensation of $868.20 every four weeks.3
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.4
Section 8115(a) of FECA,5 provides in determining compensation for partial disability,
the wage-earning capacity of an employee is determined by his or her actual earnings if his or
her actual earnings fairly and reasonably represent his or her wage-earning capacity. If the actual
3

By decision dated April 30, 2015, an OWCP hearing representative affirmed the October 8, 2014 decision. The
Board and OWCP may not have concurrent jurisdiction over the same issue in a case. Consequently, any decision
by OWCP on an issue pending before the Board is null and void. See Douglas E. Billings, 41 ECAB 880,
895 (1990). As OWCP issued the April 30, 2015 decision after appellant’s appeal to the Board on April 9, 2015 and
as it is on the same issue pending before the Board, loss of wage-earning capacity, it is null and void. See 20 C.F.R.
§ 501.2(c)(3).
4

See Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

5

5 U.S.C. § 8115.

4

earnings do not fairly and reasonably represent wage-earning capacity or if the employee has no
actual earnings, his or her wage-earning capacity is determined with due regard to the nature of
his or her injury, his or her degree of physical impairment, his or her usual employment, his or
her age, his or her qualifications for other employment, the availability of suitable employment,
and other factors and circumstances which may affect his or her wage-earning capacity in his or
her disabled condition.6 Wage-earning capacity is a measure of the employee’s ability to earn
wages in the open labor market under normal employment conditions.7 The job selected for
determining wage-earning capacity must be a job reasonably available in the general labor
market in the commuting area in which the employee lives.8 In determining an employee’s
wage-earning capacity, OWCP may not select a makeshift or odd-lot position or one not
reasonably available on the open labor market.9
OWCP must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The
medical evidence upon which OWCP relies must provide a detailed description of the
condition.10 Additionally, the Board has held that a wage-earning capacity determination must
be based on a reasonably current medical evaluation.11
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP for selection of a position, listed in the DOT or otherwise available in the open
market, that fits that employee’s capabilities with regard to her physical limitations, education,
age and prior experience. Once this selection is made, a determination of wage rate and
availability in the open labor market should be made through contact with the state employment
service or other applicable service. Finally, application of the principles set forth in Albert C.
Shadrick12 will result in the percentage of the employee’s loss of wage-earning capacity. The
basic range of compensation paid under FECA is 66 2/3 percent of the injured employee’s
monthly pay.13
In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, OWCP must consider the degree of physical impairment,
including impairments resulting from both injury-related and preexisting conditions, but not
impairments resulting from post-injury or subsequently acquired conditions. Any incapacity to
perform the duties of the selected position resulting from subsequently acquired conditions is
6

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

7

See Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

8

Id.

9

See Steven M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35 ECAB 581 (1984).

10

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

11

See John D. Jackson, 55 ECAB 465 (2004).

12

5 ECAB 376 (1953).

13

See Karen L. Lonon-Jones, 50 ECAB (1999).

5

immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation.14
ANALYSIS
The Board finds that OWCP met its burden of proof to reduce appellant’s compensation
benefits based on her capacity to earn wages in the constructed position of call-out operator.
OWCP accepted appellant’s claim for tendinitis of the right hand, wrist, and arm and
referred her to vocational rehabilitation. In its October 8, 2014 decision, it reduced her
compensation benefits based on her capacity to earn wages as a call-out operator. OWCP
determined that this position was medically and vocationally suitable for appellant. It found that
she was capable of earning $400.00 per week and had 58 percent wage-earning capacity. The
question is whether appellant had some capacity to earn wages and the Board finds that the
weight of the evidence of record establishes that she had the requisite physical ability, skill, and
experience to perform the position of call-out operator.
The vocational rehabilitation counselor determined that appellant was able to perform the
position of a call-out operator. She provided a job description for the call-out operator position,
which was identified as sedentary work which involved compiling credit information, using the
telephone, and copying information. The physical requirements included exerting up to 10
pounds of force occasionally. The vocational rehabilitation counselor stated that appellant had
gained attention to detail, basic keyboarding, customer service, and filing skills which she could
apply towards work as an entry-level call-out operator and indicated that the position was
reasonably available within the general labor market of appellant’s commuting area on a fulltime basis as confirmed by the State of California’s Employment Development Department.
The call-out operator position was within appellant’s medical restrictions. In a July 15,
2008 report, Dr. LaRochelle, an attending orthopedic surgeon, restricted appellant from lifting
more than 10 pounds. In an October 6, 2009 report, Dr. Masem Mathias, an orthopedic surgeon
and OWCP referral physician, restricted appellant from lifting more than 10 pounds
occasionally. In a September 26, 2011 report, Dr. Welborn, a Board-certified orthopedic surgeon
and OWCP second opinion examiner, found that appellant was capable of full-time, light-duty
work with a restriction of lifting up to 20 pounds. In his reports, Dr. Gomez, a Board-certified
orthopedic surgeon and appellant’s attending physician, restricted appellant from lifting,
pushing, and pulling over 10 pounds with both upper extremities and no repetitive use of both
upper extremities. In his February 3, 2014 report, he reviewed the call-out operator job
description and physical requirements and opined that she was capable of performing the job. In
reports dated May 5 through September 17, 2014, Dr. Gomez reiterated his opinion that
appellant was capable of performing the job duties of the call-out operator position.
The Board finds that OWCP considered the proper factors, such as availability of suitable
employment and appellant’s physical limitations, usual employment and age and employment
qualifications, in determining that the position of call-out operator represented her wage-earning
capacity.15 The evidence of record establishes that appellant had the requisite physical ability,
14

See supra note 11.

15

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

6

skill, and experience to perform the duties and that the position was reasonably available within
the general labor market of her commuting area.
The information as set forth by the vocational counselor determined that the wages for
the position of call-out operator were $400.00 per week. Applying the Shadrick16 principles, the
current pay rate for the date-of-injury position is compared with the wage-earning capacity of
$400.00 per week and a percentage of loss of wage-earning capacity is determined. OWCP
determined that appellant had 58 percent loss of wage-earning capacity and her compensation
was reduced to a net compensation of $868.20 every four weeks. The Board finds that OWCP
met its burden of proof to reduce her compensation.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP met its burden of proof to reduce appellant’s compensation
benefits based on her capacity to earn wages in the constructed position of call-out operator.
ORDER
IT IS HEREBY ORDERED THAT the October 8, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 23, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
16

See supra note 12.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
TENNESSEE VALLEY AUTHORITY,
BELLEFONTE NUCLEAR PLANT,
Hollywood, AL, Employer
__________________________________________

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

Docket No. 08-913
Issued: August 25, 2008

Case Submitted on the Record

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

JURISDICTION
On February 6, 2008 appellant filed a timely appeal from a November 27, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for an oral
hearing and a January 15, 2008 nonmerit decision denying his request for reconsideration as it
was untimely filed and did not establish clear evidence of error. As there is no merit decision
within one year of the filing date of this appeal, the Board lacks jurisdiction to review the merits
of the case.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
the November 27, 2007 and January 15, 2008 nonmerit decisions.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s request for an oral
hearing under 5 U.S.C. § 8124; and (2) whether the Office properly denied his request for
reconsideration as it was untimely filed and did not demonstrate clear evidence of error.

1

20 C.F.R. §§ 501.2(c), 501.3.

FACTUAL HISTORY
On August 20, 2004 appellant, then a 56-year-old former pipefitter, filed an occupational
disease claim alleging that he sustained hearing loss due to noise exposure during the course of
his federal employment. He indicated that he was first aware of his condition and its relationship
to his employment in 1981. Appellant explained that he delayed filing his claim because he
feared reprisals. He did not report his hearing loss to his supervisor. Appellant was last exposed
to the factors which he alleged caused his condition on April 19, 1982.
By decision dated March 7, 2005, the Office denied appellant’s claim as it was untimely
filed. It found that he had not filed his claim within three years of his awareness of the
relationship between his hearing loss and his employment or notified his supervisor within 30
days of the injury. The Office further noted that audiograms showed hearing loss predating his
federal employment and no significant increase in hearing loss during his employment such that
the employing establishment should have been aware of his hearing loss.
On March 28, 2005 appellant requested an oral hearing. On May 2, 2005 he informed the
Office that he no longer desired an oral hearing. On September 28, 2005 the hearing
representative granted appellant’s petition to withdraw his request for an oral hearing. He
requested reconsideration on October 5, 2005. Appellant noted that his coworkers had received
compensation from the Office for hearing loss and authorization for hearing aids. He contended
that the medical evidence established that his hearing loss was employment related.
By decision dated December 7, 2005, the Office denied modification of its March 7, 2005
decision. It determined that he had not submitted evidence sufficient to show that his claim was
timely filed.
On September 25, 2007 appellant indicated that he made a mistake when he had
requested reconsideration instead of an oral hearing and requested advice from the Office. In
another September 25, 2007 letter, he requested that the Branch of Hearings and Review approve
his claim.2 By decision dated November 27, 2007, the Office denied appellant’s request for a
hearing as he had previously received reconsideration. It found that the issue could be equally
well addressed by appellant requesting reconsideration and submitting evidence showing that his
claim was timely filed.
On December 19, 2007 appellant requested reconsideration. He asserted, “I filed my
claim as soon as I was aware that I could file a claim. Therefore, I should not be denied because
I did not file my claim in a timely manner.” Appellant noted that his coworkers had received
benefits.
By decision dated January 15, 2008, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely filed and did not establish clear evidence of
error.

2

It is unclear whether appellant desired an oral hearing or a review of the written record.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8124(b) of the Federal Employees’ Compensation Act,3 concerning a claimant’s
entitlement to a hearing, states that: “Before review under section 8128(a) of this title, a
claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on request
made within 30 days after the date of issuance of the decision, to a hearing on his claim before a
representative of the Secretary.”4 As section 8124(b)(1) is unequivocal in setting forth the time
limitation for requesting a hearing, a claimant is not entitled to a hearing as a matter of right
unless the request is made within the requisite 30 days.5
The Office, in its broad discretionary authority in the administration of the Act, has the
power to hold hearings in certain circumstances where no legal provision was made for such
hearings, and the Office must exercise this discretionary authority in deciding whether to grant a
hearing. Specifically, the Board has held that the Office has the discretion to grant or deny a
hearing request on a claim involving an injury sustained prior to the enactment of the 1966
amendments to the Act which provided the right to a hearing, when the request is made after the
30-day period established for requesting a hearing, or when the request is for a second hearing on
the same issue.6 The Office’s procedures, which require the Office to exercise its discretion to
grant or deny a hearing when a hearing request is untimely or made after reconsideration under
section 8128(a), are a proper interpretation of the Act and Board precedent.7
ANALYSIS -- ISSUE 1
The Board finds that the Office properly denied appellant’s request for a hearing before
the Branch of Hearings and Review. Section 8124(b) provides that, before review under section
8128(a), a claimant for compensation is entitled to a hearing on his claim on a request made
within 30 days after the date of issuance of the decision.8 The Offices regulations provide that a
claimant must not have previously submitted a reconsideration request on the same issue.9
By decision dated March 7, 2005, the Office denied appellant’s hearing loss claim as
untimely filed. On March 28, 2005 appellant requested a hearing but subsequently informed the
Office that he desired reconsideration instead of a hearing. By decision dated December 7, 2005,
the Office denied modification of its March 7, 2005 decision. On September 25, 2007 appellant
requested that the Branch of Hearings and Review approve his claim. As he had previously

3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8124(b)(1).

5

Leona B. Jacobs, 55 ECAB 753 (2004).

6

See André Thyratron, 54 ECAB 257 (2002).

7

Sandra F. Powell, 45 ECAB 877 (1994).

8

5 U.S.C. § 8124(b).

9

20 C.F.R. § 10.616(a).

3

requested reconsideration, he was not entitled to a hearing as a matter of right.10 The Office
advised appellant that it had considered his request and denied the hearing as he could address
the issue by requesting reconsideration and submitting evidence showing that he had timely filed
his claim. An abuse of discretion is generally shown through proof of manifest error, a clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
deduction from established facts.11 There is no evidence that the Office abused its discretion in
denying his request for a hearing.
LEGAL PRECEDENT -- ISSUE 2
The Office, through regulation, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Act. It will not review a decision denying or
terminating a benefit unless the application for review is filed within one year of the date of that
decision.12 When an application for review is untimely, the Office undertakes a limited review
to determine whether the application presents clear evidence that the Office’s final merit decision
was in error.13 Its procedures state that the Office will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s
application for review shows “clear evidence of error” on the part of the Office.14 In this regard,
the Office will limit its focus to a review of how the newly submitted evidence bears on the prior
evidence of record.15
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.16 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion. This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office. To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
10

Id.; see also Martha A. McConnell, 50 ECAB 129 (1998).

11

See Lon E. Grinage, 57 ECAB 177 (2005).

12

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

13

Veletta C. Coleman, 48 ECAB 367 (1997).

14

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: “[The Office] will consider an
untimely application for reconsideration only if the application demonstrates clear evidence of error on the part of
[it] in its most recent decision. The application must establish, on its face, that such decision was erroneous.”
20 C.F.R. § 10.607(b).
15

See Nelson T. Thompson, 43 ECAB 919 (1992).

16

Leon J. Modrowski, 55 ECAB 196 (2004); Dorletha Coleman, 55 ECAB 143 (2003).

4

a substantial question as to the correctness of the Office’s decision.17 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.18
ANALYSIS -- ISSUE 2
The Office properly determined that appellant failed to file a timely application for
review. Its procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision.19 A right to reconsideration
within one year also accompanies any subsequent merit decision on the issues.20 As appellant’s
December 19, 2007 request for reconsideration was submitted more than one year after the last
merit decision of record dated December 7, 2005, it was untimely. Consequently, he must
demonstrate clear evidence of error by the Office in denying his claim for compensation.21
Appellant contended that he filed his claim as soon as he knew that he could file a claim.
The Board has held, however, that unawareness of possible entitlement, lack of access to
information and ignorance of the law or one’s obligations under it do not constitute exceptional
circumstances that excuse the failure to timely file a claim.22 Appellant further noted that his
coworkers received benefits. The issue, however, is whether he has shown that his claim is
timely under the applicable time limitation provisions and not whether his coworkers’ claims
were accepted.
Appellant has not submitted evidence or raised arguments sufficient to establish clear
evidence of error. In order to establish clear evidence of error, the evidence submitted must be
of sufficient probative value to prima facie shift the weight of evidence in favor of the claimant
and raise a substantial question as to the correctness of the Office’s decision.23 Appellant has not
met this standard and thus has failed to establish clear evidence of error.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for an oral hearing
under section 8124 and properly denied his request for reconsideration as it was untimely filed
and did not establish clear evidence of error.

17

Id.

18

Pete F. Dorso, 52 ECAB 424 (2001); John Crawford, 52 ECAB 395 (2001).

19

20 C.F.R. § 10.607(a).

20

Robert F. Stone, 57 ECAB 292 (2005).

21

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

22

See E.B., 58 ECAB ___ (Docket No. 07-629, issued July 18, 2007).

23

See Veletta C. Coleman, supra note 13.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 15, 2008 and November 27, 2007 are affirmed.
Issued: August 25, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Jacksonville, FL, Employer
__________________________________________

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

Docket No. 10-1003
Issued: December 3, 2010

Case Submitted on the Record

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

JURISDICTION
On March 1, 2010, appellant timely appealed the January 12, 2010 merit decision of the
Office of Workers’ Compensation Programs, which denied her left ankle claim. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.1
ISSUE
The issue is whether appellant’s left ankle condition is causally related to her
November 2, 1994 employment injury.
FACTUAL HISTORY
Appellant, a 48-year-old distribution clerk, was injured in the performance of duty on
November 2, 1994. She was struck by a forklift, which knocked her to the floor and then ran
1

The record on appeal contains evidence received after the Office issued its January 12, 2010 decision. The
Board may not consider evidence that was not of record when the Office rendered its final decision. 20 C.F.R.
§ 501.2(c)(1) (2010).

over her left foot. Appellant underwent surgery on November 4, 1994 to repair a displaced left
hallux proximal phalanx fracture.2 The Office accepted her claim for left shoulder sprain and
fracture phalanges of left foot.3 Appellant received wage-loss compensation. On March 31,
1995 she returned to work as a modified distribution clerk with no loss in earnings.4 On
September 7, 1995 the Office granted a schedule award for seven percent impairment of the left
lower extremity.
Appellant had regular follow-up visits with Dr. Hiram A. Carrasquillo, her attending
Board-certified orthopedic surgeon, through August 1, 1996. Dr. Carrasquillo noted that she was
doing relatively well. On physical examination there was no evidence of swelling in appellant’s
foot, but there was still some tenderness and decreased range of motion. Dr. Carrasquillo also
noted that appellant’s orthotics had completely worn down. He gave her a new prescription for
orthotics and advised her to return on an as needed basis.
After an apparent five-year lapse in treatment, appellant was seen on January 29, 2002 by
Dr. Robert J. Kleinhans, a Board-certified orthopedic surgeon,5 who noted that a forklift ran over
her left foot in 1994 and she was diagnosed with a fracture of her left first toe and a crush injury.
Dr. Kleinhans further noted that after undergoing surgery appellant was in a wheelchair for about
six months, and then some time afterwards she developed plantar fasciitis. Physical examination
revealed left forefoot tenderness, mostly in the first metatarsal area. There was also tenderness
over the lateral ankle ligaments and the peroneal sheath. Appellant had a well-healed dorsal scar
over the first toe and good range of motion in the ankle, foot and toes. Recently obtained x-rays
of the foot and ankle showed no fracture, dislocation or degenerative changes. Dr. Kleinhans
diagnosed left foot crush injury with left peroneal tendinitis. He recommended light-duty with
no prolonged standing and walking. Dr. Kleinhans prescribed medication and advised appellant
to return in a month.
Following Dr. Kleinhans’ January 2002 examination there was an apparent seven-year
lapse in treatment with respect to appellant’s left foot. On May 6, 2009 Dr. Rahul V. Deshmukh,
a Board-certified orthopedic surgeon, diagnosed internal derangement of the ankle. He noted
significant posterior tibialis tendinitis and lateral laxity with possible anterior talofibular
ligament (ATFL) tear.6 The reported history was that appellant was run over by a forklift in
November 1994 and sustained a left shoulder contusion and “left foot/ankle injury.”
Dr. Deshmukh did not specifically mention the multiple fractures appellant sustained or her
November 4, 1994 surgery. He recommended obtaining a magnetic resonance imaging (MRI)
scan of the left ankle.
2

Appellant also had nondisplaced left fourth and fifth distal phalanx fractures.

3

Appellant also has an accepted claim for bilateral carpal tunnel syndrome, which arose on or about
February 22, 1991.
4

By decision dated July 3, 1995, the Office found that appellant’s position as a modified clerk represented her
wage-earning capacity. She had zero loss in wage-earning capacity.
5

Dr. Kleinhans had previously treated appellant for carpal tunnel syndrome.

6

Dr. Deshmukh also provided a diagnosis with respect to appellant’s left shoulder.

2

The June 16, 2009 left ankle MRI scan revealed a rupture of the anterior talofibular
ligament. It also showed a prior injury to the anterior inferior tibial fibular ligament, which was
otherwise intact.
In a follow-up visit on July 15, 2009, Dr. Deshmukh examined appellant and reviewed
the recent left ankle MRI scan. He diagnosed significant left ankle pain and dysfunction related
to a complete ATFL tear. Dr. Deshmukh recommended surgery for a left ankle Broström
procedure and sought approval from the Office.
On August 6, 2009 the Office advised appellant that based upon the current evidence it
could not authorize the recommended left ankle ligament repair surgery. It requested a narrative
report from her physician explaining how the newly diagnosed condition was causally related to
her November 2, 1994 employment injury. Appellant was afforded 30 days to submit the
requested medical evidence.
In an August 17, 2009 report, Dr. Deshmukh stated that appellant’s left ankle injury was
a direct result of the November 2, 1994 employment accident where she was “hit by a forklift.”
He stated that “[appellant] fell and injured her shoulder and the forklift ran over her left ankle.”
Dr. Deshmukh further stated that the injury-related diagnosis was left ankle osteoarthritis.
In a decision dated September 10, 2009, the Office denied the requested surgery because
the evidence did not establish a causal relationship between the accepted injuries and the
proposed left ankle ligament repair.
By decision dated January 12, 2010, the Branch of Hearings and Review affirmed the
September 10, 2009 decision. The hearing representative found that appellant had not
established that her current left ankle condition was causally related to her November 2, 1994
employment injury.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act7 has the
burden of establishing the essential elements of her claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.8

7

5 U.S.C. §§ 8101-8193 (2006).

8

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

3

When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to the claimant’s own intentional misconduct.9 Thus, a subsequent
injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it
is the direct and natural result of a compensable primary injury.10
Where an employee claims that a condition not accepted or approved by the Office was
due to an employment injury, she bears the burden of proof to establish that the condition is
causally related to the employment injury.11
An injured employee is entitled to receive all medical services, appliances or supplies
which a qualified physician prescribes or recommends and which the Office considers necessary
to treat the work-related injury.12
ANALYSIS
Dr. Carrasquillo, who began treating appellant the day after her November 2, 1994
employment injury, did not diagnose a specific injury of the left ankle. His treatment notes
covering almost a two-year period following the November 1994 injury do not document any left
ankle complaints. There was evidence of plantar fasciitis, but no specific left ankle injury or
ankle complaints. Dr. Carrasquillo advised that appellant’s fractures had completely healed as of
May 4, 1995, and she had reached maximum medical improvement. The record indicates that
Dr. Carrasquillo last examined appellant on August 1, 1996, and she was reportedly doing
relatively well. He did not mention any specific left ankle complaints at the time. More than
five years later Dr. Kleinhans diagnosed left peroneal tendinitis. However, his January 29, 2002
report does not include an opinion on causal relationship. Other than noting appellant sustained
a left foot crush injury in 1994, Dr. Kleinhans did not explain how appellant’s current tendinitis
was related to her November 2, 1994 employment injury.
Another seven years passed before Dr. Deshmukh diagnosed a complete ATFL tear, as
demonstrated by the June 16, 2009 left ankle MRI scan. He recommended surgery and sought
authorization from the Office, but he did not adequately explain how the left ATFL tear was
causally related to appellant’s November 2, 1994 employment injury. Dr. Deshmukh diagnosed
left ankle osteoarthritis, which he attributed to appellant’s November 2, 1994 employment injury.
However, he appears to have relied upon an inaccurate history of injury. Dr. Deshmukh stated in
an August 17, 2009 report that the “forklift ran over [appellant’s] left ankle.” This history of
injury is inconsistent with appellant’s prior statements as well as earlier medical reports that
documented an injury to the forefoot, and more specifically, fractures of appellant’s first, fourth
and fifth toes. Moreover, the various reports Dr. Deshmukh’s submitted prior to the hearing
9

Mary Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation
10-1 (2006).
10

Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

11

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

12

20 C.F.R. § 10.310(a).

4

representative’s January 10, 2010 decision do not mention appellant’s fractures or the surgery
she underwent on November 4, 1994.
The medical evidence of record does not establish that appellant sustained injury to her
left ankle on November 2, 1994. There is also no competent medical evidence indicating that
appellant subsequently developed a left ankle condition as a consequence of the multiple toe
fractures she sustained on November 2, 1994. Appellant’s multiple fractures were considered
completely healed as of May 1995. Therefore, the proposed left ankle ligament repair does not
appear necessary for the treatment of appellant’s previously accepted fractures. The Board finds
that the Office properly declined to accept appellant’s claim for a left ankle condition. Because
the proposed left ankle ligament repair does not appear to be necessary for the treatment of
appellant’s accepted conditions, the Office properly declined to authorize the recommended
surgery.
CONCLUSION
Appellant has not established that her current left ankle condition is causally related to
her November 2, 1994 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the January 12, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 3, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 08-903
Issued: August 19, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 4, 2008 appellant filed a timely appeal from a November 5, 2007 merit
decision of an Office of Workers’ Compensation Programs’ hearing representative who affirmed
a June 25, 2007 decision denying his traumatic injury claim. Under 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on May 2, 2007.
FACTUAL HISTORY
On May 8, 2007 appellant, then a 56-year-old employee, filed a traumatic injury claim,
Form CA-1, alleging that he injured his left knee on May 2, 2007 when he picked up a pencil he
dropped. He stopped work on May 3, 2007 and returned to work on May 7, 2007. The
employing establishment controverted the claim based on an e-mail appellant provided to his

supervisor which stated, in pertinent part: “I just had my left knee up as I was picking up a
pencil and I hurt my left knee … I may have to see a doctor.”
In a May 4, 2007 medical note, Dr. Harvey Orlin, a Board-certified orthopedic surgeon,
advised that appellant was a 6-foot 4-inch, 300-pound man. Appellant was sitting at work on
May 2, 2007 and picked up a pencil and then squatted and felt a pulling sensation and pain in his
left knee. He developed swelling and difficulty in walking and bending his left knee. No prior
history of left knee problems was noted. Dr. Orlin noted his examination findings and the results
of x-rays of the left knee. He diagnosed left knee pain, synovitis, chondromalacia patella with
early patellofemoral osteoarthritis and quadriceps partial tendon tear of the left knee. The left
knee was aspirated of approximately 10 cubic centimeters of clear yellow fluid.
In a letter dated May 23, 2007, the Office informed appellant that the evidence of record
was insufficient to support his claim. It advised him to submit additional medical and factual
evidence. Appellant was given 30 days to submit the requested information.
In a May 23, 2007 statement, appellant advised that he was working in his cubicle and
dropped a pencil he was using on the floor. When he could not reach the pencil sitting, he got up
and squatted down to pick it up. Appellant immediately e-mailed his supervisor of his left knee
injury. A duplicate copy of Dr. Orlin’s May 4, 2007 medical report was provided. In notes
dated May 11 and 30, 2007, he advised that appellant had a work-related injury to his left knee.
Also submitted were copies of a May 4, 2007 request for a magnetic resonance imaging (MRI)
scan, physical therapy notes and a May 4, 2007 MRI scan report.
By decision dated June 25, 2007, the Office denied appellant’s claim on the grounds that
he failed to establish fact of injury.
On July 7, 2007 appellant requested a review of the written record. In a July 9, 2007
statement, he reiterated that he was writing at his work cubicle when he dropped a pencil on the
floor. Appellant picked up the pencil as he needed to use it. A June 13, 2007 report from
Dr. Orlin noted that appellant sustained a work-related injury to his left knee. He diagnosed
synovitis, chondromalacia patella, quadriceps tendinosis and a suggestive tear of the patella
quadriceps tendon of the left knee.
By decision dated November 5, 2007, an Office hearing representative affirmed the
denial of appellant’s claim, finding that the medical evidence was insufficient to establish causal
relationship.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 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

1

5 U.S.C. §§ 8101-8193.

2

of duty; and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.2
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must first determine whether fact of injury has been established.
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 is alleged to have occurred. The second component of fact of injury is whether the
incident caused a personal injury and, generally, this can be established only by medical
evidence.3
When determining whether the implicated employment factors caused the claimant’s
diagnosed condition, the Office generally relies on the rationalized medical opinion of a
physician.4 To be rationalized, the opinion must be based on a complete factual and medical
background of the claimant5 and must be one of reasonable medical certainty,6 explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.7
ANALYSIS
Appellant alleged he injured his left knee on May 2, 2007 when he bent over to pick up a
pencil he had dropped. He noted that he had to squat when he picked up the pencil. The Board
finds that the evidence establishes that appellant picked up a pencil as alleged.
Although the May 2, 2007 work incident is established, appellant’s burden of proof
includes the necessity of submitting medical evidence addressing the causal relationship between
his diagnosed conditions and the May 2, 2007 incident. In a May 4, 2007 report, Dr. Orlin
treated appellant for left knee pain that appellant reported developed at work when he tried to
pick up a pencil from a squatting position. He diagnosed left knee pain, synovitis of the left
knee, chondromalacia patella with early patellofemoral osteoarthritis and quadriceps partial
tendon tear. However, Dr. Orlin did not address how squatting to pick up a pencil would cause
or aggravate the diagnosed conditions.8 To the extent that the history of injury set forth in his
report may be considered as support for causal relationship, he did not provide medical rationale
2

Caroline Thomas, 51 ECAB 451 (2000); Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

5

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

6

John W. Montoya, 54 ECAB 306 (2003).

7

Judy C. Rogers, 54 ECAB 693 (2003).

8

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

3

explaining how squatting to pick up a pencil would contribute to the left knee conditions.9 In his
June 13, 2007 report, Dr. Orlin opined that appellant had a work-related injury to his left knee,
diagnosed as synovitis, chondromalacia patella, quadriceps tendinosis and suggestive tear of the
patella quadriceps tendon of the left knee. Again, he failed to address how appellant’s
employment activities caused or aggravated the diagnosed medical conditions. The medical
reports are insufficient to establish appellant’s claim as Dr. Orlin did not adequately address the
issue of causal relationship.
The Board finds that appellant did not meet his burden of proof in this case. The medical
evidence is not sufficient to establish an injury causally related to appellant’s May 2, 2007
employment incident.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury on
May 2, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 5 and June 25, 2007 are affirmed.
Issued: August 19, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

9

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

4