United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Warren, MA, Employer
__________________________________________

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

Docket No. 18-1326
Issued: January 4, 2019

Case Submitted on the Record

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

JURISDICTION
On June 25, 2018 appellant, through counsel, filed a timely appeal from an April 30, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the
Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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

The record also contains a June 13, 2018 schedule award decision. Appellant has not appealed from that decision
and, thus, it is not before the Board at this time. 20 C.F.R. §§ 501.2(c) and 501.3.
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly reduced appellant’s wage-loss compensation,
effective September 17, 2017, based on her capacity to earn wages as a data entry clerk.
FACTUAL HISTORY
On May 9, 2013 appellant, then a 37-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that, on May 6, 2013, she injured her shoulder in the performance of duty. She
stopped work on May 7, 2013 and did not return. OWCP accepted the claim for right shoulder
strain and a partial rotator cuff tear and paid appellant wage-loss compensation for total disability
beginning June 21, 2013.
OWCP, on August 5, 2015, referred appellant to Dr. John R. Corsetti, a Board-certified
orthopedic surgeon, for a second opinion examination. In an August 31, 2015 report, Dr. Corsetti
diagnosed a symptomatic partial thickness right rotator cuff tear and right shoulder
acromioclavicular joint (AC) arthropathy causally related to the May 6, 2013 employment injury.
He opined that appellant could perform modified employment with no repetitive use of the upper
extremity or lifting more than 5 pounds frequently and 10 pounds occasionally. In a work
restriction evaluation, Dr. Corsetti found that she could lift 5 to 10 pounds for 4 hours per day with
no reaching above the shoulder.
On January 5, 2016 OWCP referred appellant for vocational rehabilitation. In a report
dated January 31, 2016, the vocational rehabilitation counselor discussed her prior work
experience as a receptionist and in self-employment buying and selling merchandise on eBay. He
noted that appellant advised that she might need to “take a quick refresher course to update herself
in Word and Excel and she would be very comfortable in any office setting.”
In a January 13, 2016 office note, Dr. Andrew M. Chertoff, an attending Board-certified
orthopedic surgeon, concurred with Dr. Corsetti’s finding that appellant could resume
employment.
The vocational rehabilitation counselor, on April 8, 2016, completed a job classification
(Form CA-66) for the position of data entry clerk. The position was sedentary requiring occasional
lifting of up to 10 pounds and frequent fingering. The rehabilitation counselor found that appellant
met the specific vocational preparation of three to six months for the position through her prior
work history. He determined that the position was performed in sufficient numbers to be
reasonably available within the commuting area based on information from the state Bureau of
Labor Statistics and Employment at a weekly wage of $545.60.
On July 21, 2016 Dr. Chertoff related that he had reviewed Dr. Corsetti’s report and
concurred with his findings.
On March 2, 2017 OWCP referred appellant to Dr. Balazs B. Somogyi, a Board-certified
orthopedic surgeon, for a second opinion examination. On March 23, 2017 Dr. Somogyi found
that appellant had continued residuals of her May 6, 2013 employment injury. However, he
determined that she could resume work lifting up to 10 pounds with no overhead work or

2

repetitious use of the right upper extremity. In a March 31, 2017 work capacity evaluation (Form
OWCP-5c), Dr. Somogyi opined that appellant could work 8 hours per day with no reaching or
reaching above the shoulder and lifting up to 10 pounds for 4 hours per day.
On April 28, 2017 OWCP’s rehabilitation specialist requested that the vocational
rehabilitation counselor provide updated CA-66 forms for the targeted positions.
In a May 11, 2017 Form CA-66, the vocational rehabilitation counselor found that the
sedentary position of data entry clerk, which required occasional lifting up to 10 pounds, frequently
fingering, occasional handling, and no reaching, was suitable for appellant based on her prior work
experience. He found that the position was performed in sufficient numbers to make it reasonably
available based on state employment information at a weekly wage of $577.60.
On May 19, 2017 an OWCP rehabilitation specialist reviewed the vocational rehabilitation
report and noted that the evidence indicated that appellant could work as a data entry clerk earning
$577.60 per week.
In a report dated July 11, 2017, Dr. Chertoff advised that he had evaluated appellant for
right shoulder pain on July 6, 2017 and noted that she related the pain “to work back on
May 6, 2013.” He recommended diagnostic studies and found that she could perform modified
employment for two hours per day.
On July 27, 2017 OWCP notified appellant of its proposed reduction of her wage-loss
compensation benefits based on her capacity to earn wages of $577.60 per week as a data entry
clerk. It determined that the opinion of Dr. Somogyi constituted the weight of the evidence and
established that the position was within her work restrictions.
Dr. Chertoff, on August 17, 2017, requested authorization for a magnetic resonance
imaging study due to appellant’s complaints of pain in her right shoulder, “which she again related
to her work.” He opined that she could work with restrictions for two hours per day.
By decision dated August 30, 2017, OWCP reduced appellant’s wage-loss compensation
benefits, effective September 17, 2017, based on its finding that she had the physical and
vocational capacity to earn wages of $577.60 per week as a data entry clerk. It applied the formula
set forth in Albert C. Shadrick,4 in determining appellant’s loss of wage-earning capacity (LWEC).
OWCP found that, as she was currently capable of earning more than in her date-of-injury position,
she had no LWEC.
On September 6, 2017 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative.
During the hearing, held on February 14, 2018, appellant asserted that she did not receive
the appropriate training to work as a data entry clerk, noting that she did not have significant

4

5 ECAB 376 (1953); as codified by regulation in 20 C.F.R. § 10.403.

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computer skills. She also maintained that she experienced shoulder pain with performing
repetitive work duties.
By decision dated April 30, 2018, OWCP’s hearing representative affirmed the August 30,
2017 decision. She found that appellant’s buying and selling merchandise on eBay and her
acknowledgement that she had some computer skills supported that she could work entering data
into a computer.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.5 Its burden of
proof includes the necessity of furnishing rationalized medical opinion evidence based on a proper
factual and medical background.6
Under section 8115(a) of FECA 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.7 If the actual earnings do not fairly and reasonably represent wage-earning capacity, or
if the employee has no actual earnings, the wage-earning capacity is determined with due regard
to the nature of the injury, the degree of physical impairment, the usual employment, age,
qualifications for other employment, the availability of suitable employment, and other factors and
circumstances which may affect the wage-earning capacity in his or her disabled condition.8
Wage-earning capacity is a measure of the employee’s ability to earn wages in the open labor
market under normal employment conditions.9 The job selected for determining wage-earning
capacity must be a job reasonably available in the general labor market in the commuting area in
which the employee lives.10 The fact that an employee has been unsuccessful in obtaining work
in the selected position does not establish that the work is not reasonably available in his or her
commuting area.11
OWCP must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The medical
evidence upon which OWCP relies must provide a detailed description of the condition.12

5

See E.D., Docket No. 17-1064 (issued March 22, 2018).

6

See S.N., Docket No. 17-1589 (issued January 3, 2018).

7

5 U.S.C. § 8115(a).

8

Id.; see also J.M., Docket No. 17-0397 (issued April 3, 2018).

9
See M.P., Docket No. 18-0094 (issued June 26, 2018); see also Federal (FECA) Procedure Manual, Part 2 -Claims, Determining Wage-Earning Capacity Based on a Constructed Position, Chapter 2.816.3 (June 2013).
10

See M.K., Docket No. 17-0208 (issued April 17, 2018).

11

See O.V., Docket No. 16-1702 (issued September 13, 2017).

12

See B.G., Docket No. 17-0477 (issued September 20, 2017).

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Additionally, the Board has held that an LWEC determination must be based on a reasonably
current medical evaluation.13
When OWCP makes a determination of partial disability and of specific work restrictions,
it may refer the employee’s case to a vocational rehabilitation counselor authorized by OWCP for
selection of a position listed in the Department of Labor, Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his
physical limitations, education, age, and prior experience. Once this selection is made, a
determination of wage rate and availability in the open labor market should be made through
contact with the state employment service, local Chamber of Commerce, employer contacts, and
actual job postings.14 Lastly, OWCP applies the principles set forth in Albert C. Shadrick15 as
codified in section 10.403 of OWCP’s regulations,16 to determine the percentage of the employee’s
LWEC.17
ANALYSIS
The Board finds that OWCP properly reduced appellant’s wage-loss compensation,
effective September 17, 2017, based on her capacity to earn wages as a data entry clerk. On
August 31, 2015 Dr. Corsetti, an OWCP referral physician, diagnosed a symptomatic partial
thickness right rotator cuff tear and right AC joint arthropathy causally related to the May 6, 2013
employment injury. He found that appellant could work full time with no repetitive use or
overhead use of the right upper extremity and with restrictions on lifting more than 5 pounds
frequently or 10 pounds occasionally. Dr. Chertoff, her attending physician, reviewed
Dr. Corsetti’s report and concurred with his findings. The Board thus finds that OWCP properly
referred appellant for vocational rehabilitation as the medical evidence established that she was no
longer totally disabled due to residuals of her employment injury.18
OWCP further properly found that appellant had the physical capacity to perform the duties
of a data entry clerk. The position is classified as sedentary employment requiring occasional
lifting of up to 10 pounds, frequently fingering, occasional handling, and no reaching. Following
vocational rehabilitation and reemployment efforts, it referred her to Dr. Somogyi for an updated
report regarding her work restrictions. Dr. Somogyi, on March 23, 2017, opined that appellant
had continued restrictions from her May 6, 2013 employment injury. He determined that she could
work full time lifting up to 10 pounds with no overhead work or repetitive rotation of the right
arm. In an OWCP-5c dated March 31, 2017, Dr. Somogyi found that appellant could work eight
hours with restrictions on reaching or reaching above the shoulder and lifting up to 10 pounds for
13

Id.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.6.a (June 2013).
15

5 ECAB 376 (1953).

16

20 C.F.R. § 10.403.

17

See D.S., Docket No. 17-0496 (issued May 25, 2017).

18

See D.P., Docket No. 16-1198 (issued August 22, 2017); N.J., 59 ECAB 171 (2007).

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four hours per day. His opinion is reasoned and based on a complete and accurate history and thus
constitutes the weight of the evidence and establishes that she has the requisite physical ability to
earn wages as a data entry clerk.19
On July 11 and August 17, 2017 Dr. Chertoff discussed appellant’s complaints of right
shoulder pain which she related to her May 6, 2013 work injury. He advised that she could work
two hours per day modified employment. Dr. Chertoff, however, did not specifically relate
appellant’s disability to the accepted employment injury. While he noted that she attributed her
pain to the May 6, 2013 injury, a physician’s report is of little probative value when it is based on
a claimant’s belief rather than the doctor’s independent judgment.20
The Board, therefore, finds that the weight of the evidence establishes that appellant had
the physical capacity to perform the duties of the selected position.21
In assessing the claimant’s ability to perform the selected position, OWCP must consider
not only physical limitations, but also take into account work experience, age, mental capacity,
and educational background.22 The rehabilitation counselor determined that appellant had the
skills necessary to perform the position of data entry clerk based on her prior work experience,
including selling merchandise on eBay. He further found that the position was reasonably
available within the appropriate geographical area at a wage of $577.60 week. As the rehabilitation
counselor is an expert in the field of vocational rehabilitation, OWCP may rely on his or her
opinion in determining whether the job is vocationally suitable and reasonably available.23 The
Board finds that OWCP considered the proper factors, including the availability of suitable
employment, appellant’s physical limitations, and employment qualifications in determining that
appellant had the capacity to perform the position of data entry clerk.24 OWCP further properly
determined that she had no LWEC in accordance with the formula developed in Shadrick and
codified at 20 C.F.R. § 10.403.25 It, therefore, properly found that the position of data entry clerk
reflected her wage-earning capacity effective September 17, 2017.
Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.

19

See M.P., supra note 9.

20

See M.O., Docket No. 18-1056 (issued November 6, 2018).

21

See T.J., Docket No. 16-1473 (issued January 26, 2017).

22

Id.

23

See J.B., Docket No. 17-0817 (issued April 26, 2018); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.6(b) (June 2013).
24

Supra note 8.

25
Supra note 4. OWCP found that the current pay rate for appellant’s job at the time of injury was $558.36, and
she was capable of earning $577.60 and, thus, had no loss of wage-earning capacity.

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CONCLUSION
The Board finds that OWCP properly reduced appellant’s wage-loss compensation,
effective September 17, 2017, based on her capacity to earn wages as a data entry clerk.
ORDER
IT IS HEREBY ORDERED THAT the April 30, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 4, 2019
Washington, DC

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

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

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

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

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Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0933
Issued: March 13, 2020

Case Submitted on the Record

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

JURISDICTION
On April 2, 2018 appellant, through counsel, filed a timely appeal from a March 8, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the March 8, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a right shoulder
condition causally related to the accepted January 27, 2017 employment incident.
FACTUAL HISTORY
On January 27, 2017 appellant, then a 52-year-old distribution window and mark up clerk,
filed a traumatic injury claim (Form CA-1) alleging that on that day she heard a pop in her right
shoulder and experienced pain which spread from her neck down to the fingers on her right side
when she was taking a small package from the top of a cage while in the performance of duty. She
stopped work on that day.
In a January 27, 2017 narrative statement, appellant indicated that, earlier that day, she was
taking a small, one-pound package from the top of a cage when she heard a pop in her right
shoulder. She indicated that it resulted in excruciating pain from the right side of her neck down
to her arm and fingertips. Appellant indicated that she stopped work immediately due to the pain.
She explained that she left a note with her coworker to inform the postmaster of her injury.
OWCP received a January 27, 2017 statement from Postmaster J.H.4 J.H. confirmed that
appellant had reported that she injured her shoulder earlier that day at 4:00 a.m.
On January 27, 2017 the employing establishment issued an authorization for examination
and/or treatment (Form CA-16) for medical care at Care Mount Medical.
OWCP received a January 27, 2017 attending physician’s report (Part B of a Form CA-16)
with an illegible signature. The form noted appellant’s diagnosis as possible tendinitis.
In a development letter dated February 13, 2017, OWCP informed appellant that the
evidence submitted was insufficient to establish her claim and advised that additional medical
evidence was needed to support her claim. It requested that she submit a rationalized medical
report which explained that a diagnosed condition was causally related to the alleged incident.
OWCP afforded appellant 30 days to submit the necessary evidence.
OWCP received a January 27, 2017 report from a nurse practitioner who treated appellant
on that date for complaints of a right shoulder injury sustained earlier that morning at work. The
nurse practitioner indicated that appellant explained that she was at work throwing her “usual 100+
parcels and developed sudden right shoulder pain.” She assessed a right shoulder injury and
indicated that it could be tendinitis.
In a report dated February 8, 2017, Dr. Stacy Gross, Board-certified in physical medicine
and rehabilitation, noted that appellant was seen for evaluation of right shoulder pain. She
indicated that she last saw appellant in July 2015, for left shoulder pain, which was also a work
injury. Dr. Gross explained that appellant related that she was favoring the left shoulder, and using
her right side more. As a result, she began having pain on January 27, 2017, and was off work
since then. Dr. Gross explained that appellant was “going through a lot of packages over the
4

The Board notes that the statement was dated February 27, 2017, but this appears to be a typographical error as
it was received by OWCP on January 31, 2017.

2

holidays and sorts mail all day, every day with her right arm.” She noted that appellant engaged
in a lot of repetitive activities working in the employing establishment and her pain was worse
when she raised her right arm. Dr. Gross diagnosed right shoulder rotator cuff impingement and
tendinitis/tendinopathy and placed appellant off work.
In a February 8, 2017 Form CA 17 report, Dr. Gross indicated that appellant was injured
on January 27, 2017 and noted that appellant claimed that she heard a “pop in the right shoulder
while taking a small parcel from a cage.” She diagnosed rotator cuff and impingement. Dr. Gross
indicated that appellant was unable to work.
In a February 9, 2017 attending physician’s report (Form CA-20), Dr. Gross noted that
appellant had pain in her right shoulder after a lot of lifting and sorting packages and mail. She
responded “yes” regarding whether appellant had any preexisting conditions and noted “previous
shoulder injury from work.” Dr. Gross diagnosed rotator cuff impingement and tendinitis. She
responded “yes” with regard to whether she believed the condition found was caused or aggravated
by an employment activity. Dr. Gross indicated that appellant was unable to work.
OWCP received physical therapy reports dated February 14, 17, and 23 and March 8, 20,
and 28, 2017.
By decision dated April 4, 2017, OWCP denied appellant’s claim finding that the medical
evidence of record was insufficient to establish causal relationship between the diagnosed
conditions and the accepted January 27, 2017 employment incident of lifting a small package from
the top of a cage. It concluded that the requirements had not been met to establish an injury and/or
medical condition.
OWCP continued to receive additional physical therapy reports dated through
April 4, 2017.
In a March 27, 2017 report, Dr. Gross noted that appellant was seen for follow up. She
diagnosed right shoulder rotator cuff tendinitis and impingement. In her June 12, 2017 report,
Dr. Gross diagnosed right shoulder impingement and osteoarthritis. In a July 11, 2017 report, she
diagnosed impingement of the right shoulder and rotator cuff tendinopathy.
In a July 31, 2017 report, Dr. Gross indicated that appellant was seen on February 8, 2017
for continued right shoulder pain. She noted that appellant had worked at the employing
establishment for many years and suffered an injury to her left shoulder in 2015. Dr. Gross
indicated that appellant was subsequently overusing her right shoulder and injured it due to
repetitive work activities. She noted that appellant was off work from the time she first saw her
on February 8, 2017 until the last visit on July 11, 2017. Dr. Gross opined that, given the repetitive
activities required at her job, “it is reasonable that there is a causal link to the patient’s shoulder
pain and a repetitive overuse injury sustained at work.” She explained that appellant was seen by
her years earlier for similar complaints to the left shoulder and at that time her symptoms were
deemed to be related to an overuse injury at work. Dr. Gross also indicated that appellant had
underlying arthritis of the right shoulder. She explained that a recent magnetic resonance imaging
scan revealed supraspinatus tendinosis, “but definition is a degenerative injury to the tendon
secondary to repetitive stress upon the tendon.” Dr. Gross opined that appellant’s job produced a
“repetitive stress upon her shoulders” and was “more likely the precipitating factor for her current
right shoulder pain and disability.”

3

On August 17, 2017 appellant, through counsel, requested reconsideration. Counsel noted
that appellant had a previous injury to her left shoulder on October 31, 2014 under OWCP File
No. xxxxxx606. He explained that, at the time of appellant’s January 27, 2017 injury, she was
provided with a Form CA-1, but a Form CA-2 for an occupational disease would have been more
appropriate, as her claim was primarily an occupational disease claim. Counsel indicated that she
had last worked on January 27, 2017. He further argued that the medical evidence supported
appellant’s claim and that OWCP conducted the claim in an adversarial posture.
Dr. Gross continued to treat appellant and saw her on August 21, 2017. She advised that
appellant had persistent right shoulder pain secondary to repetitive activities at the job in the
employing establishment.
In an October 19, 2017 report, Dr. Gross diagnosed subacromial impingement of the right
shoulder.
By decision dated November 21, 2017, OWCP denied modification of its prior decision.
In a November 20, 2017 report, Dr. Gross saw appellant for follow up and diagnosed
chronic right shoulder pain, and other chronic pain.
On December 11, 2017 appellant, through counsel, requested reconsideration.
In a January 18, 2018 report, Dr. Gross noted that appellant was seen for follow up and her
claim remained denied. She diagnosed rotator cuff tear arthropathy of the right shoulder and
advised that she was 100 percent disabled.
By decision dated March 8, 2018, OWCP denied modification of the prior decision.5
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA,7 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 is causally related to

5

OWCP’s claims examiner specifically noted that appellant’s description of the alleged incident on the claim form
supported a traumatic injury, which occurred during a single work shift at a given time and place, and under given
circumstances, and with an injury to a specific body part. OWCP explained that insofar as it appeared that appellant
might be claiming a consequential injury stemming from a previously accepted injury or a new occupational disease
as a result of events longer than one day or work shift she may file a consequential injury claim to the previously
accepted claim or Form CA-2 for an occupational disease claim.
6

Supra note 1.

7

S.C., Docket No. 18-1242 (issued March 13, 2019); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

4

the employment injury.8 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.9
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.10 Fact
of injury consists of two components that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that
allegedly occurred.11 The second component is whether the employment incident caused a
personal injury.12
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence. 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 incident.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to the accepted January 27, 2017 employment incident.
In support of her claim, appellant submitted multiple reports from Dr. Gross, her treating
physician. In a narrative report dated February 8, 2017, Dr. Gross explained that appellant had a
prior left shoulder employment injury in July 2015, which caused her to favor her right side, and
that as a result appellant began having pain on January 27, 2017, and had been off work since that
time. She noted that appellant was “going through a lot of packages over the holidays and sorts
mail all day, every day with her right arm,” and she also noted that appellant engaged in a lot of
repetitive work activities. Dr. Gross, however, did not relate a history of the specific January 27,
2017 employment incident alleged by appellant. The Board has held that medical opinions based
on an incomplete or inaccurate history are of limited probative value.14 Similarly, in the
February 9, 2017 Form CA-20 report, Dr. Gross related that appellant experienced shoulder pain
after performing a lot of lifting and sorting packages and mail. A physician must provide a
narrative description of the identified employment incident and a reasoned opinion on whether the
described incident caused or contributed to a diagnosed medical condition.15 Dr. Gross’

8

T.H., Docket No. 18-1736 (issued March 13, 2019); R.C., 59 ECAB 427 (2008).

9

T.E., Docket No. 18-1595 (issued March 13, 2019); Delores C. Ellyett, 41 ECAB 992 (1990).

10

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388 (2008).

11

E.M., Docket No. 18-1599 (issued March 7, 2019); Bonnie A. Contreras, 57 ECAB 364 (2006).

12

Id.

13

See S.S., supra note 10; H.B., Docket No. 18-0781 (issued September 5, 2018).

14

G.E., Docket No. 19-1190 (issued November 26, 2019); T.O., Docket No. 17-0093 (issued March 22, 2018).

15

K.B., Docket No. 19-0398 (issued December 18, 2019).

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February 8, 2017 narrative report and February 9, 2017 Form CA-20 are therefore insufficient to
establish appellant’s claim.16
In a February 8, 2017 Form CA-17, Dr. Gross indicated that appellant was injured on
January 27, 2017 when she heard a “pop in the right shoulder while taking a small parcel from a
cage.” The Board notes that she accurately described the employment incident and provided a
diagnosis of rotator cuff and impingement. Additionally, Dr. Gross responded “yes” regarding
whether the history of injury corresponded to that shown by the employee. However, the Board
has long held that the checking of a box “yes” in a form report, without additional explanation or
rationale, is insufficient to establish causal relationship.17
In a July 31, 2017 narrative report, Dr. Gross noted that appellant was overusing her right
shoulder and injured it due to repetitive work activities. She opined that given the repetitive
activities required at her job, “it is reasonable that there is a causal link to the patient’s shoulder
pain and a repetitive overuse injury sustained at work.” Dr. Gross saw appellant on August 21,
2017 and noted that appellant had persistent right shoulder pain secondary to repetitive activities
at work. In these reports Dr. Gross again did not offer an opinion regarding the employment
incident which occurred on January 27, 2017. As previously noted, reports that are based on an
incomplete history of injury and do not provide an opinion on causal relationship, are insufficient
to establish the claim.18
Dr. Gross also submitted additional reports dated March 27, June 12, July 11, and
October 19, 2017 and January 18, 2018. In those reports she provided diagnoses, but no opinion
regarding causal relationship. Medical evidence that does not offer an opinion regarding the cause
of an employee’s condition is of no probative value on the issue of causal relationship.19
Consequently, the Board finds that these reports are also insufficient to establish appellant’s claim.
OWCP also received a January 27, 2017 report from a nurse practitioner who assessed a
right shoulder injury and indicated that it could be tendinitis and OWCP received physical therapy
reports dating from February 14 to April 4, 2017. Certain healthcare providers such as nurse
practitioners and physical therapists are not considered “physician[s]” as defined under FECA.20
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.21
16

Id.

17

L.S., Docket No. 18-0264 (issued January 29, 2020); see Barbara J. Williams, 40 ECAB 649, 656 (1989).

18

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

19

See J.H., Docket No. 19-0838 (issued October 1, 2019); S.G., Docket No. 19-0041 (issued May 2, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
20

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

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); R.L., Docket
No. 19-0440 (issued July 8, 2019) (nurse practitioners and physical therapists are not considered physicians under
FECA); K.W., 59 ECAB 271, 279 (2007).
21

6

On January 27, 2017 OWCP also received an illegibly signed Form CA-16 report. A report
that is unsigned or bears an illegible signature lacks proper identification and cannot be considered
probative medical evidence as the author cannot be identified as a physician.22
As appellant has not submitted a rationalized medical opinion supporting that she sustained
a right shoulder condition causally related to the accepted January 27, 2017 employment incident,
she has not met her burden of proof to establish an employment-related traumatic injury.
On appeal counsel asserts that OWCP unjustifiably denied appellant’s claim by taking an
adversarial posture and placing an unreasonable burden upon appellant. However, the Board notes
that in the present claim, appellant has not submitted medical evidence containing a rationalized
medical opinion supporting that she sustained an injury causally related to the accepted January 27,
2017 employment incident.23
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to the accepted January 27, 2017 employment incident.

22

K.L., Docket No. 18-1029 (issued January 9, 2019).

23
The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No. 171062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

7

ORDER
IT IS HEREBY ORDERED THAT the March 8, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 13, 2020
Washington, DC

Christopher J. Godfrey, Deputy 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Alexandria, VA, Employer
)
__________________________________________ )
M.S., Appellant

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

Docket No. 14-1925
Issued: April 20, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 2, 2014 appellant, through counsel, filed a timely application for review
from an August 6, 2014 decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s claim for wage-loss
compensation for the period November 7, 2013 through January 3, 2014.
FACTUAL HISTORY
On December 2, 2013 appellant, then a 41-year-old law enforcement officer, filed an
occupational disease claim (Form CA-2) alleging that he sustained spondylolisthesis,
spondylosis, severe degenerative disc disease, torn discs, and severe foraminal stenosis as a
1

5 U.S.C. § 8101 et seq.

result of duties of his federal employment. His duties included wearing body armor weighing
over 50 pounds and extreme physical exertion while pursuing and apprehending fugitives and
conducting tactical operations. Appellant first became aware of his claimed conditions on
October 26, 2001 and of their relationship to his employment on September 17, 2013. His
regular work shift was Monday through Friday.
In an operative report dated November 7, 2013, Dr. Edward J. Goldberg, a Boardcertified orthopedic surgeon, reviewed the procedures performed on that date of a Gill
laminectomy at L3; a left L1-2 hemilaminotomy and discectomy; a posterolateral spinal fusion at
L3-4; and a cancellous allograft. He noted that appellant’s pre and postoperative diagnoses were
isthmic spondylolisthesis at L3-4 and a left L1-2 herniated nucleus pulposus. There were no
complications.
In a report dated February 28, 2014, Dr. Syed M. Quadri, a Board-certified osteopath,
stated:
“[Appellant’s] MRI [magnetic resonance imaging] scans of the neck and back are
clearly suggestive of acquired spondylosis. Further, he has spondylolysis at L3-4,
which is a pars defect. This defect is suggestive of high impact stress to the spine,
which results in fracture. It is presumable that, as a consequence of the defect,
[appellant] has developed spondylolisthesis (slippage of vertebral body) at this
level. The amalgam of spondylosis, uncovertebral hypertrophy in the cervical
spine, degenerative disc disease in the cervical and lumbar spine, and disc
herniation at L1 are all suggestive of acquired degeneration as a result of high
impact activities to the axial skeleton. Disc herniations at L1 are not at all typical
in the general population, although observed. One would not suspect such severe
degeneration of the spine at [appellant’s] relatively young age. Even if he were to
suffer from a genetic condition which predisposes him to accelerated arthritis, it
does not explain findings like the pars defect which are typically acquired as
stated previously through impact or trauma. To be clear, [appellant] does not
demonstrate any constellation of symptoms consistent with a congenital
condition. Reviewing [appellant’s] work activities, it is clear that high impact,
shear and rotational forces to the axial spine are inherent to his line of work.
“Now, [appellant’s] symptoms are and always have been concordant with MRI
[scan] findings. He has to the best of his ability, taken professional advice and
engaged in core strengthening and has avoided obesity. [Appellant] also does not
engage in activities like smoking, which is a known risk factor for degenerative
disc disease. Therefore, in my opinion, [appellant’s] current condition like
arthritis of the spine, degeneration of discs, impingement of nerve roots by bony,
and disc elements, pars defects, are a direct result of employment activities like
hiking with heavy gear for several miles, jumping from heights in pursuit of
criminals, swinging a ram to breach doors, etc.”
OWCP accepted appellant’s claim for occupational disease on April 28, 2014 for
aggravation of cervical spondylosis without myelopathy; aggravation of lumbosacral spondylosis
without myelopathy; aggravation of unspecified arthropathy; aggravation of degeneration of the

2

lumbar or lumbosacral intervertebral disc; thoracic or lumbosacral neuritis or radiculitis;
aggravated-acquired spondylolisthesis; and displacement of the lumbar intervertebral disc
without myelopathy.
On May 9, 2014 appellant filed a claim for leave buyback from November 7, 2013
through January 3, 2014. An OWCP specialist for the employing establishment noted that the
type of leave used was sick leave, and that appellant returned to work on January 6, 2014.
By letter dated May 23, 2014, OWCP requested additional information regarding
appellant’s claim for compensation for the period November 7, 2013 through January 3, 2014. It
noted that OWCP had not received any medical evidence regarding his disability status during
the claimed period. OWCP requested that appellant submit an additional report from Dr. Quadri
addressing the dates of disability along with a discussion as to why he was totally disabled for
work for the relevant period.
In a May 21, 2014 report, Dr. Goldberg stated that appellant underwent a lumbar
laminectomy at L3, discectomy at L1-2, and a posterolateral spinal fusion at L3-4. He stated that
appellant reported no continuing symptoms other than an occasional altered sensation on his left
lateral thigh.
On June 2, 2014 Dr. Goldberg stated that appellant underwent spinal surgery on
November 7, 2013. He noted that, due to the extensive procedure, appellant was incapacitated
from November 7, 2013 through January 5, 2014. Dr. Goldberg stated that appellant was
released to limited duty on January 6, 2014 and full duty on February 20, 2014.
By decision dated August 6, 2014, OWCP denied appellant’s claim for compensation for
the period November 7, 2013 through January 3, 2014. It noted that it had not received a request
for authorization for this surgery. OWCP found that the evidence of record failed to support
disability during the claimed period.
LEGAL PRECEDENT
Under FECA, the term disability means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.2 Disability is thus not
synonymous with physical impairment, which may or may not result in incapacity to earn wages.
An employee who has a physical impairment causally related to a federal employment injury, but
who nevertheless has the capacity to earn the wages he or she was receiving at the time of injury,
has no disability as that term is used in FECA.3 Whether a particular injury causes an employee
disability for employment is a medical issue which must be resolved by competent medical
evidence.4 Whether a particular injury causes an employee to be disabled for work and the

2

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

3

Cheryl L. Decavitch, 50 ECAB 397, 401 (1999).

4

Donald E. Ewals, 51 ECAB 428 (2000).

3

duration of that disability, are medical issues that must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.5
For each period of disability claimed, the employee has the burden of establishing that he
or she was disabled for work as a result of the accepted employment injury.6 The Board will not
require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so, would
essentially allow an employee to self-certify her disability and entitlement to compensation.7
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence.8 The opinion of the physician must be based on a complete factual
and medical background of the employee, must be one of reasonable 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 employee.9
ANALYSIS
OWCP accepted appellant’s claim for occupational disease on April 28, 2014 for
aggravation of cervical spondylosis without myelopathy; aggravation of lumbosacral spondylosis
without myelopathy; aggravation of unspecified arthropathy; aggravation of degeneration of the
lumbar or lumbosacral intervertebral disc; thoracic or lumbosacral neuritis or radiculitis;
aggravated acquired spondylolisthesis; and displacement of the lumbar intervertebral disc
without myelopathy. Appellant filed a claim for leave buyback on May 9, 2014 for the period
November 7, 2013 through January 3, 2014 due to his accepted occupational conditions. OWCP
denied his claim on August 6, 2014, finding that the medical evidence failed to support disability
during the claimed period.
In a report dated February 28, 2014, Dr. Quadri explained the causal relationship between
appellant’s spinal conditions at L1-2 and L3-4 and factors of his federal employment. The
conditions accepted by OWCP as work related included aggravation of cervical spondylosis
without myelopathy; aggravation of lumbosacral spondylosis without myelopathy; aggravation
of unspecified arthropathy; aggravation of degeneration of the lumbar or lumbosacral
intervertebral disc; thoracic or lumbosacral neuritis or radiculitis; aggravated acquired
spondylolisthesis; and displacement of the lumbar intervertebral disc without myelopathy. The
procedures performed on November 7, 2013 included a Gill laminectomy at L3; a left L1-2
hemilaminotomy and discectomy; a posterolateral spinal fusion at L3-4; and a cancellous
allograft. Dr. Quadri did not address specific dates of disability in his reports. OWCP advised
5

Tammy L. Medley, 55 ECAB 182 (2003); see Donald E. Ewals, id.

6

See Amelia S. Jefferson, 57 ECAB 183 (2005). See also David H. Goss, 32 ECAB 24, 27 (1980).

7

See William A. Archer, 55 ECAB 674, 679 (2004); Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

8

See Viola Stanko (Charles Stanko), 56 ECAB 436, 443 (2005); see also Naomi A. Lilly, 10 ECAB 560, 57273 (1959).
9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (2005).

4

appellant by letter dated May 23, 2014 of the evidence needed to establish his claim and
requested an additional report from Dr. Quadri addressing specific dates of disability and
explaining why appellant was totally disabled for these dates. Appellant did not submit such a
report.
While appellant did submit a note from Dr. Goldberg dated June 2, 2014 which stated
that he was incapacitated from November 7, 2013 through January 5, 2014 due to his extensive
surgical procedures,10 Dr. Goldberg’s note did not contain a discussion as to why appellant was
totally disabled for these dates. Instead, the June 2, 2014 note generally stated that the disability
was due to his surgery, with no further discussion as to why appellant was totally disabled rather
than capable of working within restrictions, and why such disability was causally related to
appellant’s accepted employment-related conditions. As such, these reports are of diminished
probative value on the issue of whether appellant was totally disabled between November 7,
2013 and January 3, 2014.11 Therefore, OWCP’s August 6, 2014 decision denying appellant’s
claim for wage-loss compensation for the period November 7, 2013 and January 3, 2014 was
proper under the law and facts of the case.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly denied appellant’s claim for wage-loss
compensation for the period November 7, 2013 through January 3, 2014.

10

The Board notes that January 4 and 5, 2014 were a Saturday and a Sunday, respectively, and that appellant was
off work on these days of the week under his regular schedule.
11

See Deborah L. Beatty, 54 ECAB 340 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the August 6, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 20, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
U.S. POSTAL SERVICE, AVONDALE
GOODYEAR POST OFFICE, Goodyear, AZ,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1972
Issued: June 25, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On September 27, 2019 appellant, through counsel, filed a timely appeal from a July 19,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 19, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish right foot and ankle
conditions causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On October 29, 2018 appellant, then a 31-year-old rural carrier associate, filed an
occupational disease claim (Form CA-2) alleging that she sustained tarsal tunnel syndrome and
tenosynovitis due to factors of her federal employment that placed stress and pressure on her feet
and ankles, which included standing, walking, and carrying packages on concrete surfaces all day.
She indicated that she first became aware of her claimed conditions on August 20, 2018 and first
realized their relation to factors of her federal employment on September 19, 2018. On the reverse
side of the claim form, the employing establishment indicated that appellant stopped work on
August 29, 2018.
An August 28, 2018 referral note by Dr. Jose Pierrend, Board-certified in family medicine,
provided a diagnosis of intractable right heel pain.
A September 25, 2018 work status note by Dr. Paul Ledesma, a Board-certified podiatrist,
provided a diagnosis of tarsal tunnel syndrome and right ankle tenosynovitis. Dr. Ledesma
indicated that appellant would return to work “within the next six months or sooner.” He noted
that her treatment plan included injection therapy, physical therapy, and wearing a controlled ankle
movement (CAM) boot.
An undated letter from B.W., appellant’s supervisor, indicated that appellant often
mentioned exercising at a gym and recently submitted leave slips for participating in a five
kilometer race. In a subsequent letter, she also indicated that for the past several months appellant
had worked an average of 4.5 to 5 hours daily and spent an average of 2 hours daily at the office
casing mail, sorting parcels, and loading vehicles. B.W. also noted that appellant’s duties included
assisting other carriers, but that she had not done so for the past few months. She indicated that
while she became aware of appellant’s injury on September 20, 2018, she was not informed that it
was possibly employment related until October 30, 2018.
An undated statement from appellant indicated that she started to feel soreness and pain in
her heel that radiated into her ankle. When her symptoms worsened she first saw her primary care
physician in August 2018 and then went to Dr. Ledesma who diagnosed tarsal tunnel syndrome
and right ankle tenosynovitis. Appellant noted that he treated her injury and then released her to
return to work on September 19, 2019 as a trial, but upon return to her employment duties she was
in significant pain from prolonged walking, standing, and handling heavy containers. She
indicated that she then informed her supervisor of her symptoms and was again treated by
Dr. Ledesma on September 20, 2019. Appellant listed her employment duties as casing mail,
delivering and collecting mail along a prescribed route in a vehicle, loading and unloading mail
trays weighing as much as 70 pounds, prolonged standing, walking, bending, and reaching, and
handling mail containers weighing up to the maximum allowable weight. She indicated that she
did not have a history of foot, heel, ankle, or leg injuries, and she noted that she exercised regularly.
Appellant also indicated that she had worked for the employing establishment for three years and
worked six days a week. She described a typical day as including casing mail for a few hours and
then loading the mail into her vehicle and spending 4 to 10 hours delivering the mail. Appellant
2

explained that she made 16 official stops which required that she climb in and out of her vehicle
and walk back and forth on a concrete surface to deliver the mail from her vehicle into mailboxes.
She noted that she also exited her vehicle between stops to deliver packages weighing up to 70
pounds directly to customers’ doors. Appellant then returned undeliverable mail to the employing
establishment and assisted other carriers.
In October 31, 2018 controversion letters, the employing establishment contended that
appellant had not established fact of injury or causal relationship.
An October 2, 2018 work status note by Dr. Ledesma repeated appellant’s diagnoses of
tarsal tunnel syndrome and right ankle tenosynovitis and indicated that she could return to work
on October 3, 2018 with restrictions and would continue with her treatment plan. Dr. Ledesma
continued to provide work status notes recommending that she work with restrictions.
In a November 1, 2018 development letter, OWCP informed appellant that additional
evidence was required to establish her cumulative injury claim. It advised her of the type of factual
and medical evidence necessary and attached a questionnaire for her completion. OWCP afforded
appellant 30 days to submit the requested evidence.
In an August 22, 2018 medical report, Dr. Pierrend indicated that appellant complained of
piercing and sharp heel pain which started the week prior and was worsening. Appellant noted
that there was no precipitating injury and indicated that her pain was aggravated by walking and
standing. Dr. Pierrend reviewed her medical history and conducted a physical examination which
revealed normal results. He diagnosed intractable right heel pain and indicated that he suspected
appellant had calcaneal spurs.
Appellant’s August 22, 2018 calcaneus x-rays were interpreted by Dr. Edward Urbanik, a
Board-certified radiologist, as within normal limits.
In an August 30, 2018 report, Dr. Ledesma noted that appellant presented with right foot
and ankle pain that started in her heel and radiated up her leg. Appellant stated that she experienced
this pain for the past four weeks and noted that it had increased over the past few days and she was
having trouble walking. She indicated that she was unsure why her pain started, and Dr. Ledesma
noted that she worked on her feet all day as a mail carrier. Appellant also indicated that she had
no relevant medical history, and a physical examination revealed pain with provocation over the
right tarsal tunnel and medial calcaneal nerve, positive Tinel’s sign over the posterior tibial nerve,
and pain in the flexor hallucis longus muscle, plantar fascia, and the posterior tibial tendon in the
right foot and ankle. Increased pronation during midstance and eversion of the heel’s position in
stance were also noted. X-rays of appellant’s heel revealed normal results and an ultrasound of
the right plantar fascia revealed minimal thickening and mild hypoechoic signal. Dr. Ledesma
diagnosed right ankle tenosynovitis, pain and contracture, right leg tarsal tunnel syndrome,
entrapment of the medial calcaneal nerve, and right foot plantar fasciitis.
In a September 11, 2018 report, Dr. Ledesma indicated that appellant continued to
complain of right heel and ankle pain. He conducted a physical examination, repeated his previous
diagnoses, and recommended the additional treatments of injection therapy and a CAM boot.
Dr. Ledesma also recommended postponing appellant’s return to work for at least one week. In a
September 18, 2018 report, he indicated that her pain was improving, and he instructed that she
could return to work on September 19, 2018 without restrictions.
3

Dr. Ledesma, in a September 20, 2018 report, indicated that appellant attempted to return
to work, but experienced significant pain in her right foot that intensified to the point that she could
“not put much pressure on it.” He repeated his previous diagnoses and recommended that she
receive additional treatments and diagnostic imaging and remain off work.
A September 20, 2018 magnetic resonance imaging scan of appellant’s right-side lower
extremity joints, interpreted by Dr. Janet Martin, Board-certified in radiology, revealed a small
accessory peroneus quartus, a talar body small fibrosynovial cyst, and no additional ligament
injury.
In an October 9, 2018 report, Dr. Ledesma indicated that appellant continued to present
with right ankle and foot pain. He conducted a physical examination which additionally revealed
pain with provocation of the tibial nerve within appellant’s right calf, and he additionally
diagnosed a right tibial nerve lesion.
In an October 16, 2018 report, Michael Compton, a nurse practitioner, indicated that
appellant presented with right foot pain and back pain. He conducted a physical examination and
indicated that she had symptoms consistent with tarsal tunnel syndrome and plantar fasciitis.
Appellant continued to follow up with Mr. Compton through the end of October 2018.
An October 24, 2018 electromyogram and nerve conduction velocity study, interpreted by
Dr. Luke Garcia, an osteopath Board-certified in physical medicine and rehabilitation, revealed
right superficial peroneal sensory nerve mononeuropathy and right sural sensory nerve
mononeuropathy. Dr. Garcia diagnosed tarsal tunnel syndrome.
An October 2018 position description for a rural carrier associate listed the duties of
appellant’s position as including sorting mail, loading mail into a vehicle, delivering mail along a
prescribed route while driving a vehicle, returning undeliverable mail, and carrying parcels
weighing up to 70 pounds.
On November 27, 2018 appellant completed OWCP’s questionnaire and provided a
narrative statement explaining that she had not run in the recent five kilometer races she attended.
She stated that her job aggravated her tarsal tunnel syndrome and tenosynovitis. Appellant also
noted that she was never instructed to ask for assistance with carrying packages over 35 pounds,
and that her gym membership was canceled in 2017. She also included documentation in support
of her statements.
By decision dated January 24, 2019, OWCP denied appellant’s occupational disease claim
finding that the evidence of record was insufficient to establish causal relationship between her
diagnosed conditions and her accepted factors of federal employment.
On February 19, 2019 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative. Appellant subsequently submitted additional medical evidence.
A January 21, 2019 operative report by Dr. Ledesma indicated that he performed an open
decompression and neurolysis of the tarsal tunnel and a flexor tenolysis with synovectomy of the
right ankle.

4

In a May 7, 2019 letter Dr. Ledesma indicated that he had treated appellant for her right
heel and ankle pain since August 30, 2018. He opined that, upon reviewing her treatment and her
weight-bearing activities at home and at her job, he determined that her foot pain was the result of
compensatory actions related to her physical activities at work. Dr. Ledesma opined that it was
more likely than not that the physical demands at work, as set forth in appellant’s job description
and in her own words, contributed to her tarsal tunnel/plantar fasciitis.
On June 10, 2019 an OWCP hearing representative conducted an oral hearing.
In a June 28, 2019 controversion letter, the employing establishment suggested that
appellant likely spent more time on her feet in her previous jobs than in her current position. It
additionally noted that potential preexisting conditions that had not been reviewed could have
contributed to her foot conditions.
In a June 18, 2019 report, Dr. Ledesma noted that appellant presented with right foot pain
and indicated that she was experiencing numbness in her foot when driving due to pedal
manipulation. Dr. Ledesma conducted a physical examination and continued to diagnose right
ankle pain and contracture, tarsal tunnel syndrome, and tenosynovitis of the right foot flexor
hallucis longus. He opined that appellant’s pathophysiology of her work duties such as lifting and
carrying objects up to 70 pounds on a regular basis in and out of her work vehicle increased the
strain and stress on her feet, which caused or exacerbated her tarsal tunnel syndrome and tendinitis.
Dr. Ledesma explained that her foot pathology was caused by her bearing of weight greater than
her own body weight. He further opined that the repetitive nature of appellant’s applying pressure
to her foot while driving a vehicle on a mail route “added to the source of the pathology and
ultimately tarsal tunnel syndrome.”
By decision dated July 19, 2019, an OWCP hearing representative denied modification of
the January 24, 2019 OWCP decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA,5 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 is causally related to
the employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
4

Supra note 2.

5

S.C., Docket No. 18-1242 (issued March 13, 2019); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

T.H., Docket No. 18-1736 (issued March 13, 2019); R.C., 59 ECAB 427 (2008).

7

T.E., Docket No. 18-1595 (issued March 13, 2019); Delores C. Ellyett, 41 ECAB 992 (1990).

5

alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors.8
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence.9 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 employee.10
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.11
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.12
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of her claim, appellant submitted a series of medical reports by Dr. Ledesma
from August 2018 through June 2019 which provided a history of injury, physical examination
findings, a review of diagnostic tests, and medical diagnoses. Dr. Ledesma, in his June 18, 2019
medical report, indicated that she presented with right foot pain and experienced numbness in her
foot when driving, which she stated was due to pedal manipulation. He reviewed appellant’s
medical history, conducted a physical examination, diagnosed right ankle pain and contracture,
tarsal tunnel syndrome, and tenosynovitis of the right foot, and explained the mechanism of
injury.13 Dr. Ledesma opined that her pathophysiology of her work duties such as lifting and
carrying objects up to 70 pounds on a regular basis in and out of her work vehicle increased the
strain and stress on her feet, which caused or exacerbated her tarsal tunnel syndrome and
tendonitis. He also opined that the repetitive nature of her applying pressure to her foot while
driving a vehicle on a mail route “added to the source of the pathology and ultimately tarsal tunnel
syndrome.”

8

M.S., Docket No. 18-1554 (issued February 8, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

11

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

12
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).
13

R.S., Docket No. 19-1939 (issued May 6, 2020).

6

It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement
to compensation, OWCP shares the responsibility in the development of the evidence to see that
justice is done.14
Dr. Ledesma is a Board-certified podiatrist who is qualified in his field of medicine to
render rationalized opinions on the issue of causal relationship, and he provided a comprehensive
understanding of the claimed mechanism of injury. The Board finds that, although his June 18,
2019 medical report is insufficiently rationalized to meet appellant’s burden of proof to establish
her claim, it is relevant evidence in support of her claim, as it explains a physiological process by
which her accepted factors of federal employment could have caused or aggravated her diagnosed
foot and ankle conditions. Dr. Ledesma’s June 18, 2019 medical report therefore raises an
uncontroverted inference of causal relation between appellant’s claimed right ankle and foot
conditions and the accepted factors of her federal employment. Further development of appellant’s
claim is therefore required.15
On remand OWCP shall prepare a statement of accepted facts setting forth the employment
factors which have been established and refer her to an appropriate second opinion physician for
an examination and a rationalized medical opinion as to whether her accepted employment factors
either caused or aggravated her right foot and ankle conditions.16 If the second opinion physician
disagrees with the pathophysiological explanation provided by Dr. Ledesma, he or she must
provide a fully-rationalized explanation explaining why Dr. Ledesma’s opinion is unsupported.
After this and other such further development deemed necessary, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

14

Y.D., Docket No. 19-1200 (issued April 6, 2020).

15

See K.T., Docket No 19-1436 (issued February 21, 2020).

16

See supra note 12.

7

ORDER
IT IS HEREBY ORDERED THAT the July 19, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further development consistent
with this decision of the Board.
Issued: June 25, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Roxbury, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
John L. DeGeneres, Jr., Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0675
Issued: November 23, 2020

Case Submitted on the Record

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

JURISDICTION
On February 5, 2020 appellant, through counsel, filed a timely appeal from a November 20,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish that the acceptance
of his claim should be expanded to include a permanent aggravation of preexisting degenerative
osteoarthritis as causally related to his accepted employment injury.
FACTUAL HISTORY
On September 5, 2014 appellant, then a 52-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that factors of his federal employment on or before June 26,
2014, had aggravated preexisting right hip osteoarthritis. He submitted a statement dated April 24,
2014, describing his duties as a letter carrier beginning in April 1988, including repetitive lifting,
stair climbing, stooping, bending, and prolonged walking. Appellant noted the onset of right hip
discomfort in early 2013.
In reports dated from March 28 through September 6, 2013, Dr. Mark Haffenreffer, a
Board-certified orthopedic surgeon, noted appellant’s worsening right hip and groin pain for the
past several years. He diagnosed degenerative right hip arthritis.3 In a December 19, 2013 report,
Dr. Haffenreffer diagnosed end-stage osteoarthritis of the right hip with complete cartilage loss.
He performed a total right hip arthroplasty on January 6, 2014. In the operative note,
Dr. Haffenreffer commented that appellant had a high acetabular index.
In a report dated August 20, 2014, Dr. Byron Hartunian, a Board-certified orthopedic
surgeon, noted appellant’s account of his work duties as a letter carrier and reviewed medical
records. On examination, he noted limited right hip motion. Dr. Hartunian diagnosed status post
total right hip arthroplasty for end-stage degenerative arthritis. He found that appellant had
attained maximum medical improvement (MMI) on February 18, 2014. Dr. Hartunian opined that
repetitive loading activities and severe local stresses such as “repeated knee bending, kneeling,
lifting, climbing, stooping, twisting, squatting, and carrying” in the performance of duty caused
chronic inflammation that accelerated articular cartilage loss, contributing to the acceleration of
appellant’s right hip osteoarthritis.
In a development letter dated October 31, 2014, OWCP notified appellant of the factual
deficiencies of his claim. It advised him of the type of evidence required and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary
evidence.
In a statement dated November 18, 2014, J.S., appellant’s supervisor, confirmed that the
physical requirements of appellant’s position included carrying a mail satchel weighing up to 35
pounds, standing one to two hours a day, and walking up to seven miles a day.
On May 20, 2015 OWCP referred appellant, the medical record, and a statement of
accepted facts (SOAF) to Dr. Christopher B. Geary, a Board-certified orthopedic surgeon, for a
3

A March 7, 2013 magnetic resonance imaging (MRI) scan of the right hip demonstrated a full-thickness articular
cartilage loss of the right femoral head and acetabulum with subchondral cystic change. May 31, 2013 right hip xrays demonstrated severe osteoarthritis of the right hip.

2

second opinion regarding whether there was a causal relationship between the identified
employment factors and the claimed right hip condition. Dr. Geary provided a June 30, 2015
report, in which he reviewed the medical record and SOAF. On examination of the right hip, he
observed flexion at 105 degrees, external rotation at 45 degrees, and internal rotation at 5 degrees.
Dr. Hartunian opined that appellant’s work activities had caused a temporary aggravation of
preexisting degenerative osteoarthritis of the right hip. He noted that while the right hip
arthroplasty was “reasonable and necessary,” it was unrelated to appellant’s federal employment.
By decision dated July 13, 2015, OWCP accepted appellant’s occupational disease claim
for a temporary aggravation of right hip osteoarthritis, based on Dr. Geary’s opinion as the weight
of the medical evidence.
On August 11, 2015 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. During the hearing, conducted on
January 26, 2016, appellant contended that he had sustained a permanent aggravation of right hip
osteoarthritis.
By decision dated March 31, 2016, OWCP’s hearing representative set aside the July 13,
2015 decision and remanded the case to obtain a supplemental opinion from Dr. Geary on the issue
of causal relationship.
On remand Dr. Geary provided an August 12, 2016 supplemental report, in which he
opined that employment factors had caused a temporary aggravation of preexisting right hip
osteoarthritis, which would have resolved immediately upon appellant’s “removal from the
employment environment.” He referenced Dr. Haffenreffer’s observation of a high acetabular
index as an indication that appellant’s anatomy contributed to the development of right hip
osteoarthritis.
OWCP then found a conflict of medical opinion between Dr. Hartunian, for appellant, and
Dr. Geary, for the government, regarding causal relationship. It referred appellant and the case
record, including a March 25, 2015 SOAF, to Dr. John H. Chaglassian, a Board-certified
orthopedic surgeon, as an impartial medical examiner.
In a July 17, 2017 report, Dr. Chaglassian listed medical reports reviewed and provided a
history of injury and treatment. On examination he noted a level pelvis, normal gait, 100 degrees
right hip flexion, 0 degrees extension, 45 degrees external rotation, 5 degrees internal rotation, and
a one-centimeter leg length discrepancy. Dr. Chaglassian opined that appellant “would have
temporary aggravation of the right hip osteoarthritis by his work-related activities.”
By decision dated August 9, 2017, OWCP denied appellant’s claim for a permanent
aggravation of right hip osteoarthritis. It accorded Dr. Chaglassian the special weight of the
medical evidence.
On August 16, 2017 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
By decision dated December 8, 2017, an OWCP hearing representative set aside the
August 9, 2017 decision, following a preliminary review. He found that Dr. Chaglassian had not
3

discussed the significance of clinical and diagnostic findings of record, indicated why he disagreed
with appellant’s treating physicians, or explained how the medical record supported his opinion.
The hearing representative further found that Dr. Chaglassian had not addressed which job duties
had in any way contributed to the development of the underlying condition. He remanded the
claim to obtain a supplemental opinion from Dr. Chaglassian addressing these issues, as well as
whether the January 6, 2014 right hip arthroplasty, should be retroactively approved as treatment
for an accepted injury.
On remand Dr. Chaglassian provided a January 9, 2018 supplemental independent medical
examination report, in which he characterized arthritis as a progressive condition that could not be
influenced by physical factors other than a discrete traumatic injury. He contended that
Dr. Hartunian’s support for causal relationship was speculative, as “qualified Board-certified
orthopedic surgeons” would not have opined that walking, carrying mail, and getting in and out of
delivery vehicles would cause osteoarthritis. Dr. Chaglassian noted that Dr. Haffenreffer’s
reference to a high acetabular index indicated that appellant’s anatomy contributed to the
underlying degenerative condition. He concluded that the right hip arthroplasty was necessitated
by appellant’s underlying osteoarthritis, unrelated to the accepted work factors.
By decision dated January 25, 2018, OWCP denied appellant’s claim for expansion of the
acceptance of the claim to include a permanent aggravation of right hip osteoarthritis, based on
Dr. Chaglassian’s opinion as the special weight of the medical evidence.
On February 1, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, held on July 19, 2018. During the
hearing, counsel contended that Dr. Chaglassian’s opinion was insufficiently rationalized to
represent the special weight of the medical evidence. He submitted additional evidence.
In a June 25, 2015 report, Dr. Barry W. Levine, a Board-certified pulmonologist, opined
that carrying a heavy mail satchel and climbing stairs at work over a 27-year career “caused
degeneration of the right hip” and severe pain necessitating complete hip replacement.
In a July 16, 2018 report, Dr. Hartunian opined that prolonged walking, stair climbing, and
carrying a mail satchel while at work caused a permanent aggravation of right hip osteoarthritis.
He explained that employment factors caused a permanent loss of cartilage as arthritis did not
revert to baseline after an acceleration or aggravation.
By decision dated September 25, 2018, OWCP’s hearing representative affirmed OWCP’s
January 25, 2018 decision. She accorded Dr. Chaglassian the special weight of the medical
evidence.
On August 22, 2019 appellant, through counsel, requested reconsideration. He contended
that Dr. Chaglassian’s reports were insufficiently rationalized to be accorded the special weight of
the medical evidence. Counsel submitted additional evidence.
In an August 15, 2019 report, Dr. Hartunian explained that appellant’s high acetabular
index made him more susceptible to degenerative arthritis from high impact loading activities. He
opined that appellant’s work activities contributed to the development of degenerative
osteoarthritis of the right hip.
4

In an August 22, 2019 statement, appellant estimated that during his 31-year career at the
employing establishment he had walked approximately 35,000 miles, climbed 15 million steps,
stood for 465 days, and had climbed in and out of his vehicle millions of times.
Counsel also submitted copies of reports by Dr. Chaglassian from other cases before
OWCP.
By decision dated November 20, 2019, OWCP denied modification, finding that the
medical evidence of record was insufficient to establish causal relationship. It accorded
Dr. Chaglassian the special weight of the medical evidence.
LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.4
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.5 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.6 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors.7
Section 8123(a) of FECA provides in pertinent 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.”8 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.9
The Federal (FECA) Procedure Manual provides that the findings of an OWCP referral
physician or impartial medical specialist must be based on the factual underpinnings of the claim,

4

See T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).

5

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

6

M.V., Docket No. 18-0884 (issued December 28, 2018).

7

Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

5 U.S.C. § 8123(a).

9
D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB
1010 (1980).

5

as set forth in the SOAF.10 When OWCP’s referral physician or impartial medical specialist does
not use the SOAF as the framework in forming his or her opinion, the probative value of the
opinion is diminished or negated altogether.11
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP properly determined that there was a conflict in the medical opinion evidence
between Dr. Hartunian, an attending physician, and Dr. Geary, an OWCP referral physician, on
the issue of causal relationship. In order to resolve the conflict, pursuant to 5 U.S.C. § 8123(a),
OWCP referred appellant, the medical record, and a SOAF to Dr. Chaglassian for an impartial
medical examination and an opinion on the matter.
Dr. Chaglassian provided a July 17, 2017 report, in which he opined that employment
factors had caused a temporary aggravation of right hip osteoarthritis. OWCP denied appellant’s
claim for a permanent aggravation of right hip osteoarthritis based on Dr. Chaglassian’s opinion
as the special weight of the medical evidence. Pursuant to appellant’s request for a hearing, by
decision issued December 8, 2017, an OWCP hearing representative remanded the case to obtain
a supplemental report from Dr. Chaglassian addressing whether the accepted employment factors
had in any way contributed to the development of the underlying right hip osteoarthritis. In
response, Dr. Chaglassian submitted a January 9, 2018 supplemental report in which he opined
that osteoarthritis was a progressive condition unrelated to physical influences other than a discrete
traumatic injury. He concluded that the accepted work factors had no impact on the development
of appellant’s right hip osteoarthritis. Dr. Chaglassian reiterated his opinion that a permanent
aggravation of osteoarthritis could not be influenced by external factors other than traumatic
injury, but he did not acknowledge or explain OWCP’s prior acceptance of a temporary
aggravation of the osteoarthritis. The Board finds that given Dr. Chaglassian’s failure to
acknowledge OWCP’s prior determination, as set forth in the SOAF, that the accepted employment
factors caused a temporary aggravation of the osteoarthritic condition, his opinion is found to be
of diminished probative value regarding causal relationship and is thus insufficient to carry the
special weight as an impartial medical specialist.
Therefore, in order to resolve the conflict in the medical opinion evidence, the case will be
remanded to OWCP for referral of the case record, including a SOAF and appellant, to a new
impartial medical specialist for examination and for a rationalized medical opinion, which
evaluates whether the acceptance of his claim should be expanded to include a permanent
aggravation of preexisting degenerative osteoarthritis as causally related to his accepted

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.810.11a
(September 2019).
11

Id. at Chapter 3.600.3(10) (October 1990).

6

employment injury. After this and other such further development as OWCP deems necessary, it
shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 20, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: November 23, 2020
Washington, DC

Christopher J. Godfrey, Deputy 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