United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF STATE, BUREAU OF
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ADMINISTRATION, Washington, DC, Employer )
__________________________________________ )
L.L., Appellant

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

Docket No. 07-617
Issued: July 24, 2007

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 January 3, 2007 appellant filed a timely appeal from a December 12, 2006 merit
decision of the Office of Workers’ Compensation Programs that reduced his wage-loss
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
wage-earning capacity decision.
ISSUE
The issue is whether the Office met its burden of proof in reducing appellant’s wage-loss
compensation benefits effective December 24, 2006 based on its determination that the part-time
constructed position of telephone sales representative represented his wage-earning capacity.
FACTUAL HISTORY
On January 11, 2001 appellant, then a 53-year-old building services specialist, sustained
a severe low back strain while attempting to move a flag, a pole and a base. He stopped work on
January 16, 2001. Dr. P.F. Abraham, a Board-certified radiologist, performed a January 19,
2001 magnetic resonance imaging (MRI) scan of appellant’s lumbosacral spine. He diagnosed

degenerative disc disease from the L3 level to the S1 level with spondyloarthrosis. The Office
accepted appellant’s claim for lumbar strain and paid appropriate compensation.
In a May 29, 2001 attending physician’s report, Dr. Randolph B. Cook, a Board-certified
orthopedic surgeon, diagnosed a herniated nucleus pulposis and stated that appellant was not
capable of maintaining employment at even sedentary duty. On April 11, 2001 Dr. Cook
recommended that appellant remain off work until his symptoms could be controlled further. On
April 30, 2001 Dr. Cook noted appellant’s medical history and findings upon examination and
concluded that appellant was ambulatory with a cane but could not sit or stand for prolonged
periods of time due to pain. He advised that appellant needed medication to control the pain
which affected his physical function. Dr. Cook concluded that “it may be that he would not be
functional at any level job, depending on the effect of the medications and/or his inability to sit
for prolonged periods.”
On October 10, 2002, at the Office’s request, Dr. Harry M. Freedman, an orthopedic
surgeon, examined appellant and provided a second opinion concerning whether he remained
disabled by the January 10, 2001 work injury. He determined that appellant sustained a disc
herniation at the L4-5 level. Dr. Freedman opined that appellant had residuals of his work
injury, namely “severe debilitating back pain with right sciatica” and concluded that appellant
was totally disabled. In a work capacity evaluation prepared the same day, Dr. Freedman
reiterated that appellant was completely disabled from work.
Appellant also provided an August 21, 2003 work capacity evaluation from
Dr. Richard P. DuShuttle, a Board-certified orthopedic surgeon, who noted that appellant could
work two hours per day with restrictions. Dr. DuShuttle determined that appellant could sit,
walk, stand and reach for two hours, could reach above shoulder level for one hour and could
operate a motor vehicle for one half hour.
On October 20, 2003 the Office referred appellant to Dr. Robert Draper, a Board-certified
orthopedic surgeon, for a second opinion examination performed on November 19, 2003. In a
report prepared the same day, Dr. Draper diagnosed low back pain syndrome involving
“preexisting degenerative lumbar disc disease at L3-4, L4-5, L5-S1 with degenerative lumbar
disc disease, work injury aggravated.” Dr. Draper found that appellant had some residuals from
the employment injury, explaining that the injury exacerbated the preexisting conditions and
caused appellant to have some continued discomfort in the back on a permanent basis. He
concluded that appellant was mildly disabled or partially disabled in terms of performing
excessive heavy lifting and should avoid lifting more than 50 pounds. However, appellant could
perform work as long as he did not lift more than 50 pounds. He could work full time, 8 hours a
day, 40 hours per week. In a corresponding work capacity evaluation, Dr. Draper reiterated that
appellant could work eight hours daily within limitations.
The Office found a conflict in the medical evidence regarding whether appellant could
work eight hours per day with restrictions. By letter dated May 7, 2004, the Office referred
appellant to Dr. David Sopa, an osteopath and a Board-certified orthopedic surgeon, selected to
resolve the conflict.

2

Dr. Sopa examined appellant and prepared a report on May 26, 2004. He noted
appellant’s medical history and reviewed the record. Following a physical examination,
Dr. Sopa diagnosed advanced degenerative disc disease of the lumbar spine from L3 to the
sacrum, with severe degenerative disc disease at L4-5, with nerve root compression and a
relative spinal stenosis. He noted that the “extensiveness of the degenerative disc disease is
significant for [appellant] at his age.” Dr. Sopa opined that because of the nature of appellant’s
preexisting degenerative disc disease he would ultimately have become injured either at work or
at home. He explained:
“At some point the disease process is advanced enough that there is not enough
disc material that could herniate. It is believed that the condition hurt because of
the underlying condition while lifting and turning. There was not an exacerbation
of the underlying condition, since, statistically speaking, he had this back
condition … for a number of years.”
Dr. Sopa concluded that appellant could return to work at a desk job provided the employing
establishment allowed him to work within restrictions designed to preserve his comfort. He
noted that appellant’s back condition was reflective of his underlying severe back degeneration
rather than the one incident of lifting flags. Dr. Sopa stated: “As far as the injury pattern is
concerned he would have achieved a maximum medical improvement at some time through his
treatment that he received and that he would be able to return to work.” (Emphasis in the
original.)
On December 7, 2004 the Office requested that Dr. Sopa supplement his report with a
work capacity evaluation. On December 10, 2004 Dr. Sopa stated that appellant could work
eight hours per day with restrictions. He also noted that appellant had a degenerative condition
and that he did not believe that a one-time work accident caused appellant’s low back condition.
By letter dated January 13, 2005, the Office referred appellant for vocational
rehabilitation.
Appellant submitted a March 15, 2005 work capacity evaluation from
Dr. DuShuttle, who reiterated his opinion that appellant could work no more than two hours per
day with restrictions.
On March 7, 2006 the employing establishment informed the Office that it did not have
any positions matching appellant’s work restrictions and qualifications. In an April 30, 2006
report, the vocational rehabilitation counselor noted that appellant was interested in the
“professional technology field” and the “skilled arts field” and was currently searching for
sedentary employment with a new employer in his commuting area. In an undated report, the
counselor noted that appellant’s vocational tests were administered on February 24 and
March 28, 2006 and interpreted on April 11, 2006. She determined that the following jobs were
appropriate for an individual with appellant’s skill level and restrictions: software engineer, loan
interviewer, customer service representative and purchasing agent. In April 22 and 24, 2006
reports, the vocational rehabilitation counselor stated that appellant could perform the following
positions: customer service representative, a light-duty position; loan interviewer, a sedentary
position; or telephone sales representative, a sedentary position. An April 24, 2006 Form CA-66
job classification report for the telephone sales representative position noted that the position was
available and would require appellant to solicit orders for services over the telephone, speak to

3

prospective customers, quote prices and attempt to persuade customers to purchase products,
record purchase information and refer orders to others for filling.
In a June 1, 2006 report, Dr. DuShuttle explained that appellant’s condition had not
changed. He noted that there was “still decreased flexion and extension with pain and stiffness.
Bilateral sciatic notch tenderness with buttock pain.” Dr. DuShuttle diagnosed multilevel
degenerative disc disease and lumbar spine facet spondylosis from L3 to the sacrum and stated:
“[Appellant] was given a work restriction of permanent two hours a day only, alternating sitting
and standing.” In a June 16, 2006 work capacity evaluation, Dr. DuShuttle reiterated his opinion
that appellant could not work more than two hours daily.
In a June 20, 2006 note, the Office indicated that additional evidence was necessary for a
full adjudication of appellant’s claim. The Office referred appellant to Dr. Jerry Case, a Boardcertified orthopedic surgeon, for an updated medical examination and report.
Dr. Case examined appellant and prepared a report on August 29, 2006. He noted
appellant’s medical history and indicated that appellant was taking medication for pain. Dr. Case
diagnosed multilevel degenerative disc disease from L3 to S1 and history of back strain on
January 11, 2001 aggravating underlying degenerative disc disease. He stated that, based on a
review of the x-rays and the physical findings, it was “difficult to explain the level of pain”
appellant complained of. Dr. Case advised that, although there certainly are objective findings to
be responsible for some back pain,” based on objective findings, appellant “should be capable of
full-time sedentary work with restrictions of avoiding continuous standing and walking, avoiding
bending and twisting and no lifting over 10 pounds.” He concluded: “Because of his level of
subjective complaints … it is unlikely that he will be able to return to work on a full-time basis.
But I would think that certainly he could return to work on a part-time basis, four hours a day
within the above restrictions.” In a work capacity evaluation corresponding to the narrative
report, Dr. Case stated that appellant could work four hours per day with restrictions.
On September 25, 2006 the vocational rehabilitation counselor prepared a new CA-66 job
classification report for the telephone sales representative position, noting that the position was
reasonably available, either full time or part time, in appellant’s commuting area at a weekly
wage of $400.00. The vocational rehabilitation counselor confirmed that the position was
available in appellant’s commuting area based on her contact with a state employment service
representative.
On October 31, 2006 the Office issued a notice of proposed reduction of benefits finding
that appellant was capable of earning wages as a part-time telephone sales representative. The
Office noted Dr. Sopa’s impartial opinion but stated that this report was dated while appellant
underwent vocational rehabilitation such that the matter was referred to Dr. Case for a more
current evaluation. The Office noted that Dr. Case found that appellant could work for four
hours daily within certain restrictions. The Office also indicated that appellant’s vocational
rehabilitation counselor had recommended the position of telephone sales representative, a
sedentary position within appellant’s restrictions, which was found available within appellant’s
commuting area. The Office calculated appellant’s loss of wage-earning capacity based on his
ability to earn $200.00 per week as a part-time telephone sales representative.

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On November 8, 2006 appellant disagreed with the Office’s proposed reduction of
benefits, stating that his injury still caused him great pain and discomfort. In a November 16,
2006 work capacity evaluation, Dr. B. Venkataramana, a Board-certified neurosurgeon, advised
that appellant was “disabled and can[no]t work for a living.”
By decision dated December 12, 2006, the Office reduced appellant’s wage-loss
compensation, effective December 24, 2006, to reflect his ability to earn wages as a part-time
telephone sales representative.
LEGAL PRECEDENT
Once the Office has made a determination that a claimant is totally disabled as a result of
an employment injury and pays compensation benefits, it has the burden of justifying a
subsequent reduction of benefits.1 Under section 8115(a) of the Federal Employees’
Compensation Act,2 wage-earning capacity is determined by the actual wages received by an
employee if the earnings fairly and reasonably represent his or her wage-earning capacity. If the
actual earnings do not fairly and reasonably represent his or her 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 the injury, the degree of physical impairment, his or her usual employment, age,
qualifications for other employment, the availability of suitable employment and other factors
and circumstances which may affect wage-earning capacity in his or her disabled condition.3
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist for
selection of a position, listed in the Department of Labor, Dictionary of Occupational Titles
(DOT) or otherwise available in the open market, that fits the employee’s capabilities with
regard to his or her physical limitations, education, age and prior experience. Once this selection
is made, a determination of wage rate and availability in the 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. Shadrick,4 will result in the percentage of the
employee’s loss of wage-earning capacity.5
ANALYSIS
Appellant’s claim was accepted for lumbar strain. He submitted reports from his
attending physicians, Dr. Cook, who opined that he could not work in even a sedentary position,
and Dr. DuShuttle, who concluded that he could work only two hours per day with restrictions.
The Office referred appellant to Dr. Draper, a second opinion physician, who concluded that
1

David W. Green, 43 ECAB 883 (1992).

2

5 U.S.C. § 8115(a).

3

Karen L. Lonon-Jones, 50 ECAB 293 (1999).

4

5 ECAB 376 (1953); see also 20 C.F.R. § 10.403(d)-(c).

5

James A. Birt, 51 ECAB 291 (2000); Francisco Bermudez, 51 ECAB 506 (2000).

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appellant could work eight hours per day with restrictions. To resolve the conflict between
appellant’s physicians and Dr. Draper, the Office referred appellant to Dr. Sopa for an impartial
medical evaluation.6 Dr. Sopa, on May 26, 2004, concluded that appellant’s condition was the
result of a preexisting condition and not of residuals from his employment injury and opined that
appellant could return to work for eight hours per day with restrictions. The Office requested a
supplemental work capacity evaluation report which Dr. Sopa provided on December 10, 2004,
noting that appellant could work eight hours per day with restrictions. These reports established
that appellant could work within restrictions for up to eight hours daily.7 Thereafter, the Office
referred appellant for vocational rehabilitation.
After the employing establishment confirmed that it did not have any limited-duty
position for appellant, the vocational rehabilitation counselor identified several selected positions
that appellant could perform and which were reasonably available. One of these positions was
that of a telephone sales representative, a sedentary position involving occasional reaching,
handling and lifting of up to 10 pounds. The rehabilitation counselor indicated that this position
fell within appellant’s work restrictions and was reasonably available in appellant’s commuting
area.
As appellant had submitted additional reports from Dr. DuShuttle in 2005 and 2006
reiterating that he could work no more than two hours per day, the Office properly referred
appellant to Dr. Case to obtain a current report on appellant’s work restrictions.8 In his
August 29, 2006 report, Dr. Case examined appellant, reviewed his history and diagnosed
multilevel degenerative disc disease from L3 to S1 and a history of back strain on November 1,
2001, which aggravated underlying degenerative disc disease. Dr. Case concluded that there was
sufficient objective evidence to explain some of appellant’s back pain. He stated, however, that
based solely on the objective findings, appellant would be capable of working a full eight-hour
day in a limited-duty assignment. Nonetheless, Dr. Case recommended that appellant work no
more than four hours per day as his subjective complaints, which outweighed the objective
findings, were serious enough in Dr. Case’s estimation to make a full eight-hour day inadvisable.
Dr. Case also set forth appellant’s work restrictions indicating that appellant could lift, pull and
push up to 10 pounds with limitations on a variety of activities such as walking, standing,
twisting and reaching about his shoulder.
In contrast, appellant provided Dr. Venkataramana’s November 16, 2006 report, stating
that appellant was disabled and could not work for a living. However, he provided no medical
6

5 U.S.C. § 8123(a). Section 8123(a) of the Act provides in part: “If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the Secretary shall
appoint a third physician, who shall make an examination.”
7

It is well established that, when a case is referred to an impartial medical specialist for the purpose of resolving a
conflict, the opinion of such specialist, if sufficiently well rationalized and based on proper factual and medical
background, must be given special weight. Phillip H. Conte, 56 ECAB ___ (Docket No. 04-1524, issued
December 22, 2004).
8

There is some indication in the record that the Office considered Dr. Case to be an impartial specialist.
However, Dr. Sopa had previously resolved the conflict regarding whether appellant could work more than two
hours. Dr. Case’s report is considered to be that of a second opinion physician.

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reasoning explaining the basis of his stated conclusion. Similarly, Dr. DuShuttle’s 2005 and
2006 reports offered no additional reasoning or rationale, beyond that previously considered, to
explain why appellant could not work more than two hours daily. Consequently, the Board finds
that Dr. Case’s well-reasoned opinion established that appellant was medically capable of
working four hours per day within restrictions.
After receipt of Dr. Case’s report, the vocational rehabilitation counselor, on
September 25, 2006, confirmed with a state employment service representative that the position
of telephone sales representative was available on a part-time basis in appellant’s commuting
area. Evidence from the rehabilitation counselor also establishes that appellant has the
appropriate knowledge, training and background to perform the selected position. The Board
finds that the sedentary telephone sales representative position conforms to work restrictions set
forth by Dr. Case. The weight of the evidence of record establishes that appellant had the
requisite physical ability, skill and experience to perform the duties of telephone sales
representative and that such a position was reasonably available within the general labor market
of her commuting area. The Office properly calculated appellant’s loss of wage-earning capacity
by using his date-of-injury pay rate, his current pay rate for his job and the pay rate for the
selected position.9
Accordingly, the Office met its burden of proof to establish that the position of a
telephone sales representative reflected appellant’s wage-earning capacity effective
December 24, 2006, the date it reduced his wage-loss compensation benefits.
CONCLUSION
The Board finds that the Office properly reduced appellant’s wage-loss compensation
effective December 24, 2006.

9

See Shadrick, supra note 4.

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ORDER
IT IS HEREBY ORDERED THAT the December 12, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 24, 2007
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
DEPOT, Memphis, TN, Employer
__________________________________________

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

Docket No. 16-0731
Issued: May 11, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 3, 2016 appellant filed a timely appeal from a December 30, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP abused its discretion in denying authorization for a new
vehicle purchase.

1

Appellant filed a timely request for oral argument. By order dated June 24, 2016, the Board exercised its
discretion and denied his request as it determined that his arguments could adequately be addressed in a decision
based on a review of the case record. Order Denying Request for Oral Argument, Docket No. 16-0731 (issued
June 24, 2016).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 25, 1991 appellant, then a 42-year-old management analyst, filed a traumatic
injury claim (Form CA-1) alleging that on July 24, 1991 he injured his left leg after he tripped
and fell in his office.3 OWCP accepted the claim for a left ankle sprain and an aggravation of a
herniated nucleus pulposus.
In 1993, OWCP authorized the purchase of a wheelchair lift on appellant’s 1992 Dodge
Grand Caravan. On January 31, 1995 it authorized the purchase of a 1995 Ford Econoline van
with remote starter. OWCP subsequently authorized the purchase of a 2008 Grand Caravan with
wheelchair conversion on February 27, 2009. The van had 14,670 miles on its odometer at the
time of purchase.
In a letter dated December 9, 2014 appellant advised that his vehicle ramp needed
immediate repairs to be functional and that the repair would cost approximately $1,100.00 with
tax.4 He related that the vehicle also needed repairs to the constant velocity (CV) joint boosts
and new brakes. The van burned oil and had almost 100,000 miles. Appellant asked OWCP to
consider replacing his vehicle as he no longer felt safe driving.
OWCP, on December 11, 2014, referred appellant to a vocational rehabilitation counselor
for assistance with vehicle repair.
Appellant, on December 18, 2014, informed OWCP that his wheelchair ramp in his van
was not working at all and that his wheelchair was stuck in the van. He advised that repairs on
the van for both the ramp and other maintenance would cost thousands of dollars and requested
for vehicle replacement.
In a report dated December 30, 2014, Dr. Stephen H. Landy, a Board-certified
neurologist, diagnosed leg atrophy, a herniated lumbar disc at L5-S1 and reflex sympathetic
dystrophy. He related, “[Appellant] is in medical need of the wheelchair and in medical need of
[a] working, safe disabled vehicle. I do not believe [that] it is appropriate for him to drive a
vehicle with nearly 100,000 miles. If it became disabled, [appellant] could not walk to summon
help.” Dr. Landy requested that OWCP provide appellant with a vehicle that lowered when the
ramp extended, a power transfer seat, and power-heated seats for his muscle spasms.
An OWCP rehabilitation specialist, on January 7, 2015, related that United Access
provided a repair estimate for replacing the wheelchair ramp at a cost of $1,170.00 excluding tax.
He noted that appellant’s van at the time of purchase had 14,670 miles on it and currently had
95,000 miles on it, which equated to driving around 38.8 miles per day. The specialist asserted,
“I verified with a local Dodge dealer, that with proper maintenance, a Dodge van can be
expected to last for 200,000 miles before a major repair is needed.” He noted that Dr. Landy had
3

Appellant’s left leg was in a plastic leg/foot support brace from a preexisting condition at the time of injury.
Medical records indicate that he had a long history of peroneal neuropathy and dysesthetic type pain in his left leg,
which worsened after the work injury.
4

On December 9, 2014 appellant telephoned OWCP and advised that he was having difficulties with the ramp on
his van and that repairs would total between $800.00 and $900.00.

2

advised that appellant required a new vehicle for safety with power-heated seats for muscle
spasms. The rehabilitation specialist and indicated that OWCP should further develop this aspect
of the claim before “accepting this opinion.”
By letter dated January 28, 2015, OWCP notified appellant that it had received a
$1,170.00 repair estimate for his wheelchair lift. It informed him that it maintained and repaired
equipment furnished on his vehicle due to his disability, but he was responsible for routine
maintenance. OWCP advised that appellant should submit evidence from a vehicle repair
specialist if his current vehicle was not repairable. It indicated that it would consider purchasing
a replacement vehicle only if the cost of reasonable repairs exceeded the lowest Blue Book
value.
In a February 4, 2015 response, appellant indicated that his van required extensive repairs
that exceeded its Blue Book value. He submitted an estimate from a Jeep dealership showing
repairs needed totaled $7,933.50 excluding engine work. The mechanic indicated that he could
not test oil consumption given the broken CV joint, but could “give [an] approximate estimate of
at least $3,500[.00] plus for engine work alone.” Appellant submitted evidence from a Kelley
Blue Book website showing that a 2008 Dodge Grand Caravan in good condition was worth
$8,385.00, and in fair condition was worth $7,439.00. He also submitted an estimate from Midas
Muffler indicated that a replacement muffler would cost $206.32.
On February 13, 2015 OWCP referred appellant to another rehabilitation counselor with
Ascendant Consulting, Incorporated, for assistance with repairing his vehicle.5
In a March 3, 2015 telephone call report, the rehabilitation counselor advised OWCP that
appellant’s van was towed to Katz’ Mainstreet Garage for appraisal. The mechanic indicated
that, without driving the van, it could not determine if there was a transmission or engine
problem. Appellant did not want the van driven. The counselor indicated that he would check
the vendor’s credentials and discuss with appellant.
On March 11, 2015 Collierville Chrysler Dodge Jeep advised that it would give appellant
$6,000.00 for trade-in of his van.
The rehabilitation counselor, on March 13, 2015, submitted an estimate from the National
Automobile Dealers Association Guides indicating that the average trade-in value for a 2008
Dodge Grand Caravan was $6,375.00. As estimate from the Edmunds website provided that a
2008 Dodge Grand Caravan was worth $5,930.00 in a trade-in and $7,355.00 to a private party.
A Kelley Blue Book website indicated that the van had a trade-in value of $6,414.00 if in good
condition.
In a report of telephone call dated March 13, 2015, the rehabilitation counselor advised
that a mechanic at Christian Brothers Automotive indicated that the van required a new

5

The initial rehabilitation counselor experienced an unexpected absence.

3

transmission and other repairs, but not a muffler.6 The mechanic indicated that Dodge vans
“burn oil and that this is normal.”
Christian Brothers Automotive provided an unsigned repair estimate of $5,275.66. The
repairs consisted of rebuilding the transmission, servicing the brakes, replacing the front axles,
aligning the wheels, replacing the rear shocks, and replacing the front struts and mounts.
United Access, in an e-mail dated March 16, 2015, informed the rehabilitation counselor
that a rough estimate for an appraisal on appellant’s van was $5,236.00 for the chassis and
$4,513.00 for the conversion, for an undamaged wholesale value of $10,749.00.
In a memorandum dated March 16, 2015, OWCP noted that the rehabilitation counselor
provided a repair estimate of $5,275.55 from Christian Brothers Automotive and appellant
provided an estimate of $7,933.50 from Collierville Jeep, with an additional estimate of $206.32
from Midas Mufflers for a replacement muffler. It found that the trade-in value of the chassis
was estimated at between $6,000.00 and $6,500.00 and the value with modification was
$10,749.00 excluding repairs. OWCP noted that the cost of repairs was appellant’s
responsibility. It also found that he could be supplied with heated seats with a “portable plug in
heating pad designed specifically for vehicle use at a cost of approximately $50.00.”
By decision dated March 23, 2015, OWCP denied appellant’s request for the purchase of
a new vehicle. It found that the cost of needed repairs did not exceed the estimated value of the
van of $10,749.00.
On March 27, 2015 appellant advised OWCP that he was purchasing a new van and that
the vehicle modification from his old van would be transferred to the new van.7 He purchased a
2014 van.
Appellant, by letter dated April 20, 2015 and postmarked April 23, 2015, requested an
oral hearing. By decision dated May 11, 2015, OWCP denied his request for an oral hearing as
untimely.
On November 10, 2015 appellant requested reconsideration. He asserted that his vehicle
“did not stand up to the additional weight of being converted to a disabled van, and this was the
first year of this particular model which had a very bad reliability rating.” Appellant noted that
the rehabilitation counselor did not seek the opinion of a Dodge dealer. He spoke with the
mechanic at Christian Brothers Automotive who provided the repair estimate on his van and
learned that the rehabilitation counselor told him to ignore problems with the engine, brakes, fuel
pump, torque converter, and muffler. Appellant advised that corrected repair estimate was
$12,465.00 without tax. Appellant indicated that America’s Mobility Superstore (AMS)

6

On March 12, 2015 the rehabilitation counselor advised OWCP that Katz’ Mainstreet Garage would not provide
an estimate for anything other than the CV joints. He indicated that he would take the van to another repair
establishment. The rehabilitation counselor, in a March 16, 2015 report, noted that Katz’ garage did not find a
transmission problem “as far as they can tell.” The garage could not find the computer code for the vehicle.
7

On April 27, 2015 OWCP authorized a facility to provide heated vehicle seats to appellant.

4

provided a repair estimate that was even higher and noted that both exceeded the Blue Book
value.
Appellant submitted an unsigned estimate form from Christian Brothers Automotive. On
the form an individual related that a man for Ascendant Consulting told him to do only a “bare
bones estimate” on the van. The man also told him not to include some items on the list,
including torque converter, a diagnosis of engine noise, an electric fuel pump, and brake pads.
The estimate contained typewritten additions listed additional repairs and a handwritten notation
adding the extra repairs to the prior estimate for a total cost of $12,465.00.
In an undated and unsigned statement received November 10, 2015, AMS indicated that
it spent $15,636.50 repairing appellant’s van in order to make it “a safe and reliable vehicle for a
disabled person to drive.” AMS provided an extensive list of repairs.
Appellant submitted a form from the General Services Administration indicating that
passenger vehicles should be replaced at 75,000 miles and five years.
By decision dated December 30, 2015, OWCP denied modification of its March 23, 2015
decision. It found that the new unsigned estimate from Christian Brothers Automotive did not
negate the prior estimate it provided.
On appeal appellant contends that OWCP discriminated against him due to his disability,
noting that the employing establishment replaced vehicles with less mileage than his van.

5

LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree of the period of disability, or aid in lessening the amount of monthly compensation.8
In interpreting this section of FECA, the Board has recognized that OWCP has broad discretion
in approving services provided under section 8103, with the only limitation on OWCP’s
authority being that of reasonableness.9 Abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment or actions taken which are contrary to
both logic and probable deductions from established facts. It is not enough to merely show that
the evidence could be construed so as to produce a contrary factual conclusion.10 In order to be
entitled to reimbursement for medical expenses, a claimant must establish that the expenditures
were incurred for treatment of the effects of an employment-related injury.11
OWCP’s procedures provides that equipment furnished for a vehicle by OWCP should be
maintained and repaired at OWCP expense and may be replaced after normal wear and tear.
Equipment required for the injury will be repaired and maintained at OWCP expense. Other
parts of the vehicle will be repaired, maintained and replaced at the owner’s expense even if
OWCP paid for the vehicle. Replacement equipment for the present vehicle or similar
equipment will be provided on a replacement vehicle if the claimant can establish that the
vehicle should be replaced. OWCP may only consider the purchase of a subsequent vehicle
when the estimated cost of reasonable mechanical repairs on the current vehicle exceeds its
lowest current Blue Book value.12

ANALYSIS
OWCP accepted that appellant sustained a left ankle strain and an aggravation of a
herniated nucleus pulposus due to a July 24, 1991 employment injury. It purchased a 2008
Grand Caravan with wheelchair conversion for him on February 27, 2009. Appellant requested a
new vehicle on December 9, 2014. He maintained that the wheelchair ramp was not functional
and that the van required significant repairs. Appellant submitted an estimate from Collierville
Jeep quoting repairs of $7,933.50, excluding engine work. The mechanic indicated that engine
8

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

9

Joseph P. Hofmann, 57 ECAB 456 (2006); James R. Bell, 52 ECAB 414 (2001).

10

Claudia L. Yantis, 48 ECAB 495 (1997).

11

Cathy B. Mullin, 51 ECAB 331 (2000).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Housing and Vehicle Modifications, Chapter 2.1800.5
(October 2009).

6

repairs would be a minimum of $3,500.00. Appellant also submitted an estimate from Midas
Muffler showing a muffler replacement cost of $206.32. He provided OWCP with an estimate
from a Kelley Blue Book website listing the value of a 2008 Dodge Caravan in good condition as
$8,385.00 and in fair condition as $7,439.00.
OWCP referred appellant to a rehabilitation counselor for assistance with vehicle repairs.
The counselor advised that a Kelley Blue Book website showed the trade-in value of the van was
$6,414.00 in good condition.
The rehabilitation counselor obtained a repair estimate from Christian Brothers
Automotive of $5,275.66. The repairs included work on the transmission, brakes, front axles,
wheels, rear shocks, and front struts and mounts.
Based on the repair estimate from Christian Brothers Automotive, OWCP denied
appellant’s request for a replacement vehicle as the cost of repairs did not exceed the lowest
current Blue Book value. With respect to denying authorization for a replacement vehicle, the
only limitation on OWCP’s authority in approving services under FECA is that of
reasonableness.13 The quoted estimate for repairs obtained by the rehabilitation counselor did
not exceed the Blue Book value and thus OWCP’s denial of authorization for a new vehicle was
reasonable.
Appellant submitted an unsigned repair statement from an individual purporting to be a
mechanic with Christian Brothers Automotive. The individual advised that he had not included
all the necessary repairs based on the instruction of the rehabilitation counselor. As noted by
OWCP, however, the statement is unsigned and the individual is not identified, and thus it is of
diminished probative value.
Appellant also submitted an unsigned estimate from AMS indicating that it spent
$15,536.50 repairing his van to make it a dependable vehicle. The issue, however, is whether the
estimated cost of reasonable mechanical repairs on the van exceeded its lowest current Blue
Book value. As OWCP obtained an estimate showing that the cost of repairs did not exceed the
lowest current Blue Book value, it did not abuse its discretion in denying authorization for a new
vehicle.14
On appeal appellant alleges that OWCP discriminated against him due to his disability.
He also asserts that the employing establishment replaced vehicles with less mileage than his
van. As discussed, however, OWCP followed its procedures in denying authorization for a new
vehicle. There is no evidence that it discriminated against appellant as a result of his disability.
CONCLUSION
The Board finds that OWCP did not abuse its discretion in denying authorization for a
new vehicle purchase.
13

See S.R., Docket No. 09-2332 (issued August 16, 2010).

14

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the December 30, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 11, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF THE INTERIOR,
BUREAU OF RECLAMATION, Denver, CO,
Employer
__________________________________________

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

Docket No. 21-0637
Issued: August 12, 2021

Case Submitted on the Record

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

JURISDICTION
On March 15, 2021 appellant filed a timely appeal from a March 15, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted October 31, 2019 employment incident.
FACTUAL HISTORY
On November 4, 2019 appellant, then a 31-year-old letter secretary, filed a traumatic injury
claim (Form CA-1) alleging that: on October 31, 2019 she sustained bruised muscles in her right
1

5 U.S.C. § 8101 et seq.

arm; pain and numbness down to her fingers; sore right ribs; pain in her shoulder, back, neck, hip,
knee, and ankle joint; and limited mobility in her arm, shoulder, and neck when she slipped and
fell on a sheet of ice while in the performance of duty. She stopped work on the date of injury and
returned to work on November 4, 2019.
On October 31, 2019 appellant underwent diagnostic testing by Dr. John M. Gilbert, a
Board-certified diagnostic radiologist. In a cervical spine x-ray report dated October 31, 2019,
Dr. Gilbert provided an impression of normal cervical spine series with oblique and flexion and
extension views. He reported that x-rays of the right shoulder and right scapula performed on
October 31, 2019 were normal. Dr. Gilbert’s diagnostic reports noted appellant’s history of injury
of falling on the ice and experiencing pain in her right upper extremity status post a fall on ice on
October 31, 2019.
Dr. Doris A. Kleinert, a Board-certified family practitioner, in a November 7, 2019
physician’s report of workers’ compensation, noted a date of injury of October 31, 2019. She
provided work-related diagnoses of neck, back, and right shoulder blade pain, right arm paresthesia
without weakness. Dr. Kleinert advised that appellant could return to work with restrictions, for
four hours per day as of November 8, 2019. In a November 8, 2019 narrative report, she discussed
examination findings and reiterated her diagnosis of right shoulder and neck pain, and right upper
limb paresthesia. Dr. Kleinert also provided assessments of unspecified fall and scapulalgia. On
October 31, 2019 she referred appellant to physical therapy.
OWCP also received physical therapy notes dated from November 25, 2019 through
January 20, 2020.
In a March 23, 2020 development letter, OWCP advised appellant of the deficiencies of
her claim, requested additional factual and medical evidence, and provided a questionnaire for her
completion. It afforded her 30 days to respond.
In an April 23, 2020 response to OWCP’s development letter, appellant, through counsel,
explained that she was unable to obtain and submit a report from her physician because his office
was limited due to the COVID-19 pandemic, and she was unable to complete the development
questionnaire as she was required to look into records that she could not access at home during the
pandemic. Counsel requested a 45-day extension to submit the required information. No
additional evidence was received.
OWCP, by decision dated April 23, 2020, accepted that the October 31, 2019 employment
incident occurred as alleged. However, it denied appellant’s traumatic injury claim, finding that
he had not submitted medical evidence containing a medical diagnosis in connection with the
accepted employment incident. OWCP explained that pain is a symptom, not a medical diagnosis.
Consequently, it found that the requirements had not been met to establish an injury as defined by
FECA.
Appellant, through counsel, requested reconsideration. She submitted a partial copy of a
report by Dr. Kleinert.
Subsequently, appellant submitted the completed development questionnaire and a witness
statement from her coworker.
2

By letter dated January 25, 2021, OWCP informed appellant that only a part of
Dr. Kleinert’s report had been received. It afforded her 30 days to submit Dr. Kleinert’s entire
report.
OWCP received a complete copy of Dr. Kleinert’s November 26, 2020 report, noting that
appellant presented for examination on November 7, 2019 for ongoing complaints of pain in her
neck, back, and right shoulder blade, and right arm numbness and tingling. Dr. Kleinert also noted
her history of injury on October 30, 2019, reported findings on examination, and reviewed
diagnostic results. She diagnosed sprain of ligaments of the cervical spine and right shoulder,
cervicalgia, scapulalgia, and paresthesia of the right upper limb. Based on her review of
appellant’s history, physical examination ﬁndings, and imaging studies, Dr. Kleinert opined that
the October 31, 2019 employment incident caused appellant’s diagnosed conditions. Regarding
appellant’s cervical spine sprain and subsequent development of cervicalgia, she noted that a
sprain of the ligaments of the cervical spine (cervical sprain) occurs when a muscle or ligament in
the neck stretches or tears. This tearing and stretching can occur when a sudden movement, such
as a fall, forces the neck to stretch or bend outside of its normal range of motion and places extreme
pressure on the cervical spine. Extreme pressure on the cervical spine often results in chronic pain
that is limited to the neck region, otherwise known as cervicalgia. Dr. Kleinert related that, in this
case, appellant slipped on a sheet of ice and fell, landing primarily on her right shoulder blade.
The abrupt fall caused a sudden, rapid back-and-forth movement of her neck (i.e., whiplash) and
put extreme, excessive pressure on her neck and shoulder. This sudden back-and-forth movement
was so forceful that it caused appellant’s neck to move outside of its normal range of motion and
damaged the soil tissue in her neck. This resulted in a cervical sprain. As a result of this pressure
on her cervical spine and subsequent soft tissue damage, as of November 7, 2019, appellant
experienced pain that limited the neck region, i.e., cervicalgia. Dr. Kleinert maintained that apart
from the October 31, 2019 work-related incident there was nothing in her history and no activities
outside work that caused or contributed to her cervical sprain or cervicalgia. Regarding appellant’s
right shoulder sprain, she indicated that a traumatic injury such as a fall causes a shoulder sprain
when the tendons and ligaments stretch beyond their normal limits and become damaged or torn.
The damage to the tendons and ligaments causes swelling, tenderness, and inﬂammation in the
shoulder, resulting in a sprain. Dr. Kleinert again noted that the impact of her fall on her right
shoulder caused the ligaments in her shoulder to be stretched beyond their normal limits. This
damaged the tendons and ligaments and caused appellant’s right shoulder sprain. Dr. Kleinert
maintained that the mechanism of injury, falling to the hard ground, and her symptoms of pain and
painful range of motion corroborated this diagnosis. She noted that scapulalgia is a term that refers
to pain in the region of the scapula or shoulder blades. This pain can be traumatic injury, such as
a fall. When a person falls and lands on the shoulder blades, the shoulders absorb the force of the
impact. The impact damages the soft tissues in the shoulder blades and swelling, bruising,
tenderness, and inﬂammation, otherwise known as scapulalgia. Dr. Kleinert maintained that when
appellant slipped onto a patch of ice and fell onto her right shoulder the soil tissues in the region
became damaged because the right shoulder blade absorbed the impact of her body falling to the
ground. This damage resulted in pain, swelling, tenderness, and inflammation. This damage also
caused appellant’s scapulalgia. Dr. Kleinert defined appellant’s right upper limb paresthesia as a
burning, tingling sensation that occurs when pressure is applied to a nerve. The sensation is often
likened to pins and needles. Dr. Kleinert noted that paresthesia can be caused by traumatic injuries
such as falls because such injuries cause the soft tissues in the body to swell. When a tissue
becomes inﬂamed and swollen, the tissue puts increased pressure on nearby nerves. The increased
3

pressure on the nerve results in paresthesia. Dr. Kleinert maintained that the impact of appellant
falling onto her right shoulder and resulting sprain (described above) on her October 31, 2019
work injury caused swelling and inflammation in her right arm and shoulder. Consequently, the
swollen tissue put increased pressure on the nerves in her right arm, causing paresthesia of the
upper right limb. Dr. Kleinert related that appellant experiences numbness and tingling of the right
arm/hand, which is consistent with this diagnosis. She concluded that appellant may return to parttime work with limitations as of November 7, 2019.
By decision dated March 15, 2021, OWCP modified in part its April 23, 2020 decision, but
appellant’s claim remained denied. It found that while Dr. Kleinert provided diagnoses of right
shoulder sprain and neck sprain, her opinion on causal relationship was of diminished probative
value as it was more than one year after appellant’s October 31, 2019 employment incident, and
thus, was not contemporaneous to the accepted work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,3 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.6

2

Id.

3

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6
T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).

4

The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 7 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.8
ANALYSIS
The Board finds that this case is not in posture for decision.
In a November 26, 2020 medical report, Dr. Kleinert opined that the accepted October 31,
2019 employment incident caused appellant’s cervical spine sprain, cervicalgia, right shoulder
sprain, scapulalgia, and right upper limb paresthesia. She reviewed diagnostic reports and
provided findings on physical examination. Dr. Kleinert discussed the mechanism of injury for
this traumatic injury claim. She noted that a cervical spine sprain occurs when a muscle or
ligament in the neck stretches or tears. This tearing and stretching can occur when a sudden
movement, such as a fall, forces the neck to stretch or bend outside of its normal range of motion
and places extreme pressure on the cervical spine. Dr. Kleinert maintained that the impact of
appellant’s fall onto her right shoulder caused the ligaments in her shoulder to be stretched beyond
their normal limits. This damaged the tendons and ligaments and caused her right shoulder sprain.
Dr. Kleinert related that appellant’s mechanism of injury, falling to the hard ground, and her
symptoms of pain and painful range of motion corroborated her diagnosis. She noted that
scapulalgia referred to pain in the region of the scapula or shoulder blades. This pain can be
traumatic injury, such as a fall. When a person falls and lands on the shoulder blades, the shoulders
absorb the force of the impact. The impact damages the soft tissues in the shoulder blades and
swelling, bruising, tenderness, and inﬂammation, otherwise known as scapulalgia. Dr. Kleinert
indicated that since appellant’s right shoulder blade absorbed the impact of her body falling to the
ground, the soil tissues in the region became damaged. This damage resulted in pain, swelling,
tenderness, inflammation, and scapulalgia. Dr. Kleinert defined right upper limb paresthesia as a
burning, tingling sensation that occurs when pressure is applied to a nerve. The sensation is often
likened to pins and needles. Paresthesia can be caused by traumatic injuries such as falls because
such injuries cause the soft tissues in the body to swell. When a tissue becomes inﬂamed and
swollen, the tissue puts increased pressure on nearby nerves. The increased pressure on the nerve
results in paresthesia. Dr. Kleinert advised that the impact and resulting sprain of appellant’s fall
onto her right shoulder and arm caused swelling and inflammation in her right arm and shoulder.
Consequently, she advised that the swollen tissue put increased pressure on the nerves in her right
arm, causing paresthesia of the upper right limb. Dr. Kleinert maintained that appellant’s
numbness and tingling of the right arm/hand was consistent with such diagnosis.

7

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
8
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

5

The Board finds that her report provides sufficient rationale to require further development
of the case record by OWCP.9 Dr. Kleinert referenced objective medical findings demonstrating
injury, expressed her opinion on causal relationship within a reasonable degree of medical
certainty, and provided a pathophysiologic explanation as to the mechanism by which the accepted
October 31, 2019 employment incident would have resulted in her diagnosed conditions.
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.10
The case shall, therefore, be remanded to OWCP for further development of the medical
evidence in order to determine whether appellant sustained a medical condition causally related to
the October 31, 2019 employment incident. On remand, OWCP shall prepare a statement of
accepted facts and refer appellant to specialist in the appropriate field of medicine for a second
opinion examination. The referral physician shall provide a well-rationalized opinion as to
whether the accepted employment incident caused, aggravated, or accelerated appellant’s
diagnosed conditions. If the referral physician opines that the diagnosed conditions are not
causally related to the employment incident, he or she must provide a rationalized explanation as
to why their opinion differs from that articulated by Dr. Kleinert. Following this and other such
further development as deemed necessary, OWCP shall issue a de novo decision on appellant’s
traumatic injury claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

9

See B.F., Docket No. 20-0990 (issued January 13, 2021); Y.D., Docket No. 19-1200 (issued April 6, 2020).

10

Id.; K.P., Docket No. 18-0041 (issued May 24, 2019).

6

ORDER
IT IS HEREBY ORDERED THAT the March 15, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: August 12, 2021
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, CHICAGO CENTRAL
CARRIER ANNEX, Chicago, IL, Employer
__________________________________________

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

Docket No. 21-1192
Issued: March 14, 2022

Case Submitted on the Record

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

JURISDICTION
On July 29, 2021 appellant filed a timely appeal from an April 23, 2021 merit decision and
a May 26, 2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award; and

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 26, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of her
claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 18, 2015 appellant, then a 47-year-old sales and services distribution
associate, filed a traumatic injury claim (Form CA-1) alleging that on December 12, 2015 she
strained her abdomen when lifting a package while in the performance of duty. OWCP accepted
the claim for a ventral hernia without obstruction or gangrene. On August 15, 2016 appellant
underwent an OWCP-authorized ventral hernia repair. OWCP paid her wage-loss compensation
on the supplemental rolls for time lost from work for the period August 13 through
October 21, 2016. Appellant returned to modified light-duty employment on October 17, 2016
and to her date-of-injury employment on November 7, 2016.
In an impairment evaluation dated November 23, 2020, Dr. Blair Andrew Rhode, a Boardcertified orthopedic surgeon, discussed appellant’s history of sustaining a ventral hernia lifting a
package at work on December 12, 2015. He noted that the hernia had been surgically repaired and
that she had returned to her regular work duties. On examination, Dr. Rhode found tenderness
along the midline of the abdomen with no evidence of a recurrent hernia. Referencing the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides),3 he found class 1 impairment of the abdomen using Table 6-4 on page 107,
relevant to determining impairments of the digestive tract, which yielded a default whole person
impairment of five percent. Dr. Rhode applied grade modifiers of zero for functional history,
physical examination, and clinical studies, and found a total of five percent whole person
impairment.
On February 3, 2021 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a development letter dated February 3, 3021, OWCP requested that appellant submit an
impairment evaluation addressing whether she had obtained maximum medical improvement
(MMI) and providing an impairment rating in accordance with the A.M.A., Guides.
On March 18, 2021 Dr. David I. Krohn, a Board-certified internist serving as a district
medical adviser (DMA), noted that Dr. Rhode had not described any current symptoms or
attributed the tenderness to palpation along the midline to the surgical incision. Utilizing Table
6-10 on page 122 of the A.M.A., Guides, relevant to determining impairment due to abdominal
herniation, he found class 0 impairment based on physical findings showing “no palpable defect
in supporting structures of the abdominal wall and no description of slight protrusion at the site of
defect with increased abdominal pressure.” Dr. Krohn advised that Dr. Rhode had used Table 6-4,
which was relevant to impairment of the upper digestive tract, instead of Table 6 -10, the
appropriate method set forth in the A.M.A., Guides for calculating impairment due to herniations.
He found that appellant had reached MMI on December 15, 2020.

3

A.M.A., Guides (6 th ed. 2008).

2

On March 22, 2021 OWCP requested that Dr. Rhode review and discuss Dr. Krohn’s
March 14, 2021 report. It afforded him 30 days to submit the requested information. No response
was received.
By decision dated April 23, 2021, OWCP denied appellant’s schedule award claim. It
found that Dr. Krohn’s report constituted the weight of the evidence and established that she had
no permanent impairment.
On May 24, 2021 appellant requested reconsideration. She argued that Dr. Rhode had not
responded to OWCP’s March 22, 2021 letter requesting clarification of his report, as he had
retired. Appellant asserted that she had recently attended an appointment at a new facility for an
evaluation.
By decision dated May 26, 2021, OWCP denied appellant’s request for reconsideration of
the merits under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body . FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009. 6 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
and Health (ICF): A Contemporary Model of Disablement.8 Under the sixth edition, the evaluator
identifies the impairment class of diagnosis (CDX), which is then adjusted by grade modifiers
based on functional history (GMFH), physical examination (GMPE), and clinical studies

4

Supra note 1.

5

20 C.F.R. § 10.404.

6

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6 th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also id., at Chapter 3.700, Exhibit 1 (January 2010).
7

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

8

A.M.A., Guides (6 th ed. 2009), p.3, section 1.3.

3

(GMCS).9 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
Evaluators are directed to provide reasons for their impairment choices, including the choices of
diagnoses from regional grids and calculations of modifier scores. 11
No schedule award is payable for a member, function, or organ of the body not specified
in FECA or in the implementing regulations.12 FECA identifies members such as the arm, leg,
hand, foot, thumb and finger, organs to include the eye and functions as loss of hearing and loss
of vision.13 Section 8107(c)(22) of FECA provides for the payment of compensation for
permanent loss of any other important external or internal organ of the body as determined by the
Secretary of Labor. 14 The Secretary of Labor has made such a determination and pursuant to the
authority granted in section 8107(c)(22), added the breast, kidney, larynx, lung, penis, testicle,
ovary, uterus, and tongue to the schedule. 15
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the p ercentage of permanent impairment
using the A.M.A., Guides.16
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
In a November 23, 2020 impairment evaluation, Dr. Rhode found that appellant had
tenderness along the abdominal midline with no evidence of a recurrent hernia. Utilizing Table
6-4 on page 107, which rates upper digestive tract impairment, he found that she had five percent
whole person impairment. FECA, however, does not allow schedule awards for impairment of the
body as a whole. 17 Furthermore, a schedule award cannot be granted for a digestive impairment
or hernia because neither are listed in FECA or the regulations as a scheduled member or function
of the body. 18 The terms of FECA are specific as to the method and amount of payment of

9

Id. at 494-531.

10

Id. 411.

11

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

12

See G.S., Docket No. 17-1318 (issued October 11, 2017); Leroy M. Terska, 53 ECAB 247 (2001).

13

5 U.S.C. § 8107(c).

14

Id. at § 8122(c)(22).

15

20 C.F.R. § 10.404; Henry B. Floyd, III, 52 ECAB 220 (2001).

16

Supra note 6 at Chapter 2.808.6(f) (March 2017); B.B., Docket No. 18-0782 (issued January 11, 2019).

17

D.K., Docket No. 21-0303 (issued July 8, 2021); S.M., Docket No. 14-1052 (issued September 4, 2014).

18

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404; see D.C., Docket No. 14-1618 (issued December 15, 2014).

4

compensation. Neither OWCP, nor the Board, has the authority to enlarge the terms of FECA or
to make an award of benefits under terms other than those specified in the statute. 19
On March 18, 2021 Dr. Krohn found that appellant had no impairment due to her hernia
using Table 6-10 on page 122, which provides criteria for evaluating whole person impairment
due to abdominal herniation. As discussed, however, a hernia is not listed in FECA or the
regulations as a scheduled member or function of the body, and thus there is no basis for awarding
a schedule award for a hernia. 20
As the medical evidence of record is insufficient to establish permanent impairment of a
member or function of the body listed in FECA or its implementing regulations, the Board finds
that appellant has not met her burden of proof. 21
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progressio n of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his or her own motion or on application. 22
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP. 23
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought. 24 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.25 If the request is timely, but fails to meet at least one

19

G.S., supra note 12; S.K., Docket No. 08-848 (issued January 26, 2009).

20

Supra note 18.

21

G.S., supra note 12.

22

5 U.S.C. § 8128(a).

23

20 C.F.R. § 10.606(b)(3); see also S.S., Docket No. 18-0647 (issued October 15, 2018).

24
Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Supra note 6 at Chapter 2.1602.4
(September 2020). Timeliness is determined by the document receipt date of the request for reconsideration as
indicated by the received date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter
2.1602.4b.
25

Id. at § 10.608(a); see also M.S., Docket No. 18-1041 (issued October 25, 2018).

5

of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 26
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Initially, the Board finds that OWCP properly considered appellant’s representative’s
correspondence as a request for reconsideration and not as a claim for a schedule award. 27 The
underlying issue on reconsideration is whether the medical evidence demonstrates a permanent
impairment of a scheduled member or function warranting a schedule award. Thus, the Board
must determine whether appellant presented sufficient evidence or argument demonstrating
permanent impairment sufficient to warrant a merit review pursuant to 5 U.S.C. § 8128(a).28
Appellant has not submitted evidence or raised an argument in support of her request for
reconsideration sufficient to warrant further merit review pursuant to 20 C.F.R. § 10.606(b)(3).
She did not show that OWCP erroneously applied or interpreted a specific point of law or raise a
relevant legal argument not previously considered. On reconsideration, appellant asserted that
Dr. Rhode had retired and that she had sought an impairment evaluation from another physician.
Her contention, however, is not relevant to the underlying issue of whether she sustained a
permanent impairment causally related to her accepted employment injury. 29 That is a medical
issue which must be addressed by relevant and pertinent medical evidence. 30 Thus, appellant is
not entitled to a review of the merits of her claim based on the first and second above -noted
requirements under section 10.606(b)(3). 31
The Board further finds that appellant did not submit any relevant or pertinent new
evidence not previously considered. As she did not provide relevant and pertinent new evidence,
appellant is not entitled to a merit review based on the third requirement under section
10.606(b)(3). 32
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 33

26

Id. at § 10.608(b); K.S., Docket No. 18-1022 (issued October 24, 2018).

27

See K.W., Docket No. 19-0553 (issued November 8, 2019); B.W., Docket No. 18-1415 (issued March 8, 2019).

28

S.W., Docket No. 18-1261 (issued February 22, 2019).

29

See A.G., Docket No. 20-0290 (issued June 24, 2020).

30

See T.V., Docket No. 19-1504 (issued January 23, 2020); S.P., Docket No. 18-1419 (issued February 27, 2019).

31

20 C.F.R. § 10.606(b)(3)(i) and (ii); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

32

Id. at § 10.606(b)(3)(iii); T.W., Docket No. 18-0821 (issued January 13, 2020).

33

A.F., Docket No. 18-1154 (issued January 17, 2019); C.C., Docket No. 17-0043 (issued June 15, 2018).

6

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award. The
Board further finds that OWCP properly denied her request for reconsideration of the merits of her
claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 26, 2021 and April 23, 2021 are affirmed.
Issued: March 14, 2022
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mobile, AL, Employer
__________________________________________

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

Docket No. 10-100
Issued: September 22, 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 October 13, 2009 appellant filed a timely appeal from the March 27 and
September 22, 2009 merit decisions of the Office of Workers’ Compensation Programs.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of
the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he was
disabled from July 20, 2008 through January 6, 2009 due to his accepted employment injury; and
(2) whether appellant established that he was disabled from January 23 through April 24, 2009
due to his accepted torn medial meniscus.
FACTUAL HISTORY
This case has previously been before the Board on appeal. On November 22, 2006
appellant, then a 42-year-old letter carrier, filed an occupational disease claim alleging that he
developed a right knee condition due to factors of his federal employment. On November 3,

2006 Dr. Manuel P. Daugherty, Jr., a Board-certified orthopedic surgeon, performed a video
arthroscopy of the right knee with partial medial meniscectomy. By decision dated May 4, 2007,
the Office Branch of Hearings and Review accepted appellant’s claim for torn medial meniscus
of the right knee. The Office authorized compensation benefits from November 6, 2006 through
February 25, 2007.
Dr. Daugherty stated that appellant was experiencing marked patellofemoral crepitus in
the right knee with tenderness over the medial and lateral joint line. On June 17, 2008 he found
joint line tenderness medially and laterally in the right knee, loss of range of motion and
effusion. Dr. Daugherty found that x-rays confirmed medial compartment narrowing in the right
knee and noted that appellant was considering a total knee replacement. The district medical
adviser reviewed appellant’s request for total knee replacement on August 5, 2008 and noted that
Dr. Daugherty had not offered a definitive opinion regarding appellant’s need for knee
replacement and recommended that the surgery not be authorized. On July 29, 2008
Dr. Daugherty stated that appellant had a severely degenerated right knee with severe
patellofemoral crepitance, mild quadriceps wasting and tenderness. He diagnosed severe
osteoarthritis of the right knee and noted that as appellant was unable to take NSAIDS, had
completed and failed an injection regimen and that the next treatment option was total knee
replacement. Dr. Daugherty opined that the work-related medial meniscectomy had resulted in a
substantial increase in appellant’s right knee symptoms which, when combined with appellant’s
inability to tolerate pain medications, supported a total knee arthroplasty.
The Office referred appellant for a second opinion evaluation with Dr. Charlton Barnes, a
Board-certified orthopedic surgeon, to determine the need for surgical intervention. In a
December 3, 2008 report, Dr. Barnes diagnosed work-related chondromalacia of the patella and
stated that the significance of cartilaginous damage would have to be determined by arthroscopy.
He found that appellant’s employment injury had not resolved and that he had not yet reached
maximum medical improvement. Dr. Barnes recommended additional physical therapy for
strengthening. He found that a total knee replacement was not necessary and recommended an
arthroscopy to determine the extent of the right knee damage.
By decision dated December 31, 2008, the Office denied appellant’s request for right
knee total arthroplasty.
Appellant appealed this decision to the Board.
In a dated November 10, 2009 decision,1 the Board affirmed the Office’s December 31,
2008 decision. The facts and the circumstances of the case as set out in the Board’s prior
decision are incorporate herein by reference.
On December 29, 2008 Dr. Daugherty released appellant to return to work with
restrictions as of January 5, 2009. He indicated that appellant wanted to try to go back to lightduty work and that he asked that appellant return in three weeks for a follow-up appointment.
On January 8, 2009 Dr. Daugherty provided appellant’s restrictions. Appellant returned to lightduty work on January 9, 2009. Dr. Daugherty referred appellant for physical therapy on
1

Docket No. 09-1049 (issued November 10, 2009).

2

January 26, 2009. On January 27, 2009 he advised that appellant was totally disabled from
July 20, 2008 through January 4, 2009 due to osteoarthritis of the right knee. Dr. Daugherty
indicated with a checkmark “yes” that appellant’s condition was due to his employment. He
provided work restrictions and indicated that appellant was partially disabled beginning
January 5, 2009.
Appellant filed a claim for compensation for the period July 20, 2008 through
January 5, 2009. The employing establishment converted the claim on the grounds that he was
absent due to his alleged need for total knee replacement but was capable of light-duty work
during the period claimed. In a letter dated February 12, 2009, the Office requested additional
medical evidence in support of appellant’s claim and allowed 30 days for a response. On
February 23, 2009 Dr. Daugherty stated that appellant was “off work for related injuries and/or
abdominal problems….”
In a March 27, 2009 decision, the Office found that appellant failed to submit adequate
medical evidence supporting his claimed period of disability.
Dr. Daugherty examined appellant on April 1, 2009 and reported that he could sit for four
hours at work and get up for six hours. He examined appellant on July 29, 2008 and found that
the only viable treatment option was total knee arthroplasty. Dr. Daugherty noted that appellant
experienced a gastrointestinal hemorrhage and cardiac problem, but was under care for his right
knee from July 20, 2008 through January 5, 2009.
Appellant filed a claim on May 11, 2009 requesting compensation for intermittent leave
without pay from January 5 through April 29, 2009. In a letter dated May 19, 2009, the Office
requested additional medical evidence for the dates January 23, 28, 30, February 13, 19, 23, 24,
26, 27, March 6 and 10 and April 24, 2009. It authorized wage-loss compensation for 35.6
hours. The Office allowed 30 days for a response. In a decision dated June 18, 2009, the Office
denied appellant’s claim for additional hours of disability.
Appellant requested reconsideration of the June 18, 2009 decision on July 9, 2009 and
resubmitted Dr. Daugherty’s May 4, 2009 report. In notes dated June 29 to August 28, 2009,
Dr. Daugherty stated that appellant was under his care from July 2008 through January 5, 2009
when he released appellant to return to work. He completed a duty status report on September 4,
2009 and provided work restrictions due to traumatic osteoarthritis of the right knee.
By decision dated September 22, 2009, the Office denied modification of the June 18,
2009 decision on the grounds that appellant failed to provide probative medical evidence to
establish that he was disabled from January 23 through April 24, 2009 due to his accepted right
knee condition.2

2

The Office issued additional decisions in appellant’s claim regarding his entitlement to a schedule award after
the date of his appeal to the Board on October 13, 2009. The Board will not address these issues in this appeal.
20 C.F.R. § 501.2.

3

LEGAL PRECEDENT -- ISSUES 1 & 2
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim, including that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.4 The term disability is defined as the incapacity because of an employment injury to earn
the wages the employee was receiving at the time of the injury, i.e., a physical impairment
resulting in loss of wage-earning capacity.5
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.6 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.7 The Board will not require the Office to pay compensation
for disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.8
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.9 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.10 Neither the fact that
a disease or condition manifests itself during a period of employment nor the belief that the

3

5 U.S.C. §§ 8101-8193.

4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Kathryn Haggerty, 45 ECAB 383 (1994);
Elaine Pendleton, 40 ECAB 1143 (1989).
5

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
6

See Fereidoon Kharabi, 52 ECAB 291 (2001).

7

Id.

8

Id.

9

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

10

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

4

disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.11
ANALYSIS -- ISSUE 1
Appellant filed a claim for compensation requesting wage-loss compensation for the
period July 20, 2008 through January 5, 2009. The Office denied this claim in a decision dated
March 27, 2009.
On December 29, 2008 Dr. Daugherty, a Board-certified orthopedic surgeon, released
appellant to return to work with restrictions as of January 5, 2009. He stated that appellant
wanted to attempt to return work and noted he would return in three weeks time for a follow-up
evaluation. This report does not establish appellant’s specific period of total disability or explain
why he was unable to perform light-duty work prior to January 5, 2009. The employer noted
that light-duty work was available to appellant during, this period. This report is not sufficiently
detailed or reasoned to establish that appellant was totally disabled from July 2008 through
January 2009.
In a form report dated January 27, 2009, Dr. Daugherty stated that appellant was totally
disabled from July 20, 2008 through January 4, 2009 due to osteoarthritis of the knee and
partially disabled beginning January 5, 2009. He indicated with a checkmark “yes” that
appellant’s condition was due to his employment. The Board notes that this report is not
sufficient to meet appellant’s burden of proof as Dr. Daugherty did not explain how he reached
his conclusion that appellant was totally disabled due to his employment injury. The Board has
held that an opinion on causal relationship which consists only of a physician checking “yes” to a
medical form report question on whether the claimant’s disability was related to his employment is
of little probative value. Without any explanation or rationale for the conclusion reached, the
report is insufficient to establish causal relationship between the accepted condition and the period
of disability claimed.12
On February 23, 2009 Dr. Daugherty noted that he received the Office’s request for
additional medical evidence. He stated that appellant was “off work for related injuries and/or
abdominal problems …” during the period claimed. The Board finds that appellant has not
submitted the sufficient medical evidence to establish that he was totally disabled from July 2008
through January 2009 due to his accepted medial meniscal tear and resulting surgery. Although
the medical evidence in the record establishes that Dr. Daugherty supported a causal relationship
between appellant’s accepted condition and the diagnosis of osteoarthritis of the right knee, the
Office has not accepted this condition as employment related. The second opinion physician,
Dr. Barnes, a Board-certified orthopedic surgeon, did not address appellant’s ability to work in
his December 3, 2008 report, although he found that appellant continued to experience residuals
from his accepted employment injury. The medical evidence in the record at the time of the
Office’s March 27, 2009 decision does not offer adequate medical reasoning in support of the

11

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

12

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

5

period of total disability as claimed by appellant. Due to these deficiencies in the medical
evidence appellant has failed to meet his burden of proof.
ANALYSIS -- ISSUE 2
Appellant filed a claim on May 11, 2009 requesting compensation for leave without pay
intermittently from January 5 through April 29, 2009. The Office allowed 35.6 hours of wage
loss but otherwise denied this claim by decision dated June 18, 2009. Appellant requested
reconsideration on July 9, 2009 and submitted a May 4, 2009 report from Dr. Daugherty, who
reiterated that appellant expressed a wish to attempt to return to work on December 29, 2008 and
was released to try to do so and to return for a follow-up appointment on January 5, 2009.
Dr. Daugherty previously examined appellant on July 29, 2008 and found that the only viable
treatment option was total knee arthroplasty. He noted that appellant experienced a
gastrointestinal hemorrhage and cardiac problem from July 2008 through January 2009, but was
under care for the right knee. Dr. Daugherty completed notes which stated that appellant was
under his care from July 2008 through January 5, 2009 when he released him to return to work.
The Board finds that Dr. Daugherty’s reports do not address the specific question of
disability as claimed by appellant, from January 5 through April 29, 2009.
Instead,
Dr. Daugherty addressed appellant’s disability for work prior to January 5, 2009. As these
reports do not address the specific period of compensation claimed by appellant, they are not
sufficient to establish that he was disabled for intermittent dates on or after January 23, 2009.
CONCLUSION
The Board finds that appellant has not submitted the necessary medical opinion evidence
to establish that he was totally disabled from July 20, 2008 through January 6, 2009 or from
January 23, 2009 intermittently through April 24, 2009.

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of Office of Workers’ Compensation
Programs dated September 22 and March 27, 2009 are affirmed.
Issued: September 22, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newark, NJ, Employer
__________________________________________

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

Docket No. 11-90
Issued: June 8, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 14, 2010 appellant filed a timely appeal from an August 30, 2010 merit
decision of the Office of Workers’ Compensation Programs denying his traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 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 an
injury in the performance of duty on July 7, 2010.
FACTUAL HISTORY
On July 7, 2010 appellant, then a 58-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that he sustained five stitches in his left leg, five stitches in his left arm
and twisted his back when he missed a step on the stairs and fell. He sustained his injury, filed

1

5 U.S.C. § 8101 et seq.

his claim, stopped work and notified his supervisor on the same date. The employing
establishment reported that the injury occurred while appellant was in the performance of duty.
In a July 7, 2010 duty status form, Dr. I. Bhatia, a treating physician, noted that appellant
should not work until reevaluated on July 9, 2010. In a July 9, 2010 note, Dr. Bhatia reported
that appellant was treated at Rahway Care Center and could return to work on July 12, 2010.
By letter dated July 28, 2010, the Office 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 directed to submit it within 30 days. He did not submit any additional
information.
By decision dated August 30, 2010, the Office denied appellant’s claim on the grounds
that there was no medical evidence that provided a diagnosis which could be connected to the
accepted July 7, 2010 employment incident.2
LEGAL PRECEDENT
An employee seeking benefits under the Act has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of the Act; that the claim was 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 occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components 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.
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
2

The Board notes that appellant submitted additional evidence after the Office rendered its August 30, 2010
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its
final decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 10.510.2(c)(1);
Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit
this evidence to the Office, together with a request for reconsideration pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).
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 at 1143.

2

a causal relationship.6 The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. 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.7
ANALYSIS
The Office found that the incident occurred as alleged on July 7, 2010. The issue,
therefore, is whether appellant submitted sufficient medical evidence to establish that the
employment incident caused a leg, arm or back injury. The Board finds that he did not submit
sufficient medical evidence to support that he sustained an injury causally related to the July 7,
2010 employment incident.8 The medical evidence is deficient on two grounds: first, it fails to
provide a firm diagnosis; and second, there is no narrative opinion on causal relationship
between a diagnosed condition and the accepted employment incident.
In July 7 and 9, 2010 medical notes, Dr. Bhatia reported that appellant was treated at
Rahway Care Center and could return to work on July 12, 2010. Dr. Bhatia did not provide any
specific diagnosis or detail regarding appellant’s medical condition. The reports do not establish
causal connection in appellant’s claim because the physician did not identify a medical
condition. Thus, Dr. Bhatia’s medical notes do not constitute probative medical evidence
because they fail to provide a firm medical diagnosis and do not adequately explain the cause of
appellant’s injury.9
Appellant’s belief that the work incident caused his medical problem is not in question,
but that belief, however sincerely held, does not constitute the medical evidence necessary to
establish causal relationship. The record is devoid of rationalized medical evidence to establish a
diagnosed medical condition causally related to the accepted July 7, 2010 employment incident.
Appellant has failed to establish his claim.
Evidence submitted by appellant after the final decision cannot be considered by the
Board. As noted, the Board’s jurisdiction is limited to reviewing the evidence that was before
the Office at the time of its decision.10 Appellant may submit additional evidence, together with
a written request for reconsideration, to the Office 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.

6

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

7

James Mack, 43 ECAB 321 (1991).

8

See Robert Broome, 55 ECAB 339 (2004).

9

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

10

Supra note 2.

3

An award of compensation may not be based on surmise, conjecture or speculation.11 To
establish causal relationship, appellant must submit a physician’s report in which the physician
reviews those factors of employment alleged to have caused his condition and, taking these
factors into consideration, as well as findings upon examination and appellant’s medical history,
explain how these employment factors caused or aggravated any diagnosed condition, and
present medical rationale in support of his opinion.12 Where an appellant fails to submit such
medical evidence, he or she has not established that the injury occurred as alleged.13
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a traumatic injury on July 7, 2010 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the August 30, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 8, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

11

D.D., 57 ECAB 734 (2006).

12

Supra note 8.

13

Tracey P. Spillane, 54 ECAB 608 (2003); 5 U.S.C. § 8101(5).

4