United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.L., Appellant
and
U.S. POSTAL SERVICE, NEWPORT BRANCH,
Wilmington, DE, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1515
Issued: February 22, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 11, 2009 appellant, through his representative, filed a timely appeal from the
April 30, 2009 merit decision of the Office of Workers’ Compensation Programs, which awarded
schedule compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
to review the merits of the case.
ISSUE
The issue is whether appellant has more than a five percent impairment of his right lower
extremity.
FACTUAL HISTORY
On July 9, 1998 appellant, then a 27-year-old mail carrier, sustained an injury in the
performance of duty when he slipped and fell on a wet floor. The Office accepted his claim for
lumbar and right knee sprain. Appellant underwent right knee synovectomies on May 4, 1999,
March 21, 2000 and November 7, 2000. He underwent excision of a right knee neuroma on
August 1, 2001.

Appellant filed a claim for a schedule award. In July 2008, Dr. George L. Rodriguez, a
physiatrist, compared the circumferences of appellant’s thighs and found the right to be 0.5
centimeters smaller. He also compared the calves and found the right to be 1.5 centimeters
smaller. On August 10, 2008 Dr. Rodriguez offered an impairment rating of seven percent of the
right lower extremity due to mild calf atrophy. As appellant was suffering significantly from
right knee pain, he included an additional pain-related impairment.
On August 12, 2008 Dr. Rodriguez again compared appellant’s thighs but found the right
to be 2.0 centimeters larger. He found the right calf to be 2.0 centimeters larger than the left calf.
Dr. Rodriguez continued to report through March 2009 that appellant’s right thigh and calf were
larger than his left.
An Office medical adviser noted the inconsistency in thigh and calf measurements, with
apparent atrophy on the right becoming apparent atrophy on the left. He found that the findings
were unreliable and should not be used to determine permanent impairment. The medical
adviser found that a rating for patellofemoral pain was the most applicable rating under the
circumstances. Appellant had a history of direct trauma to the joint, he had a complaint of pain
around the patellofemoral joint, and there was crepitation on physical examination. The medical
adviser therefore found a five percent impairment of the right lower extremity. He added that no
additional rating for pain was appropriate, as the rating already addressed patellofemoral pain.
In a decision dated April 30, 2009, the Office issued a schedule award for a five percent
impairment of appellant’s right lower extremity.
On appeal, appellant’s representative argues that the Board should either accept
Dr. Rodriguez’ measurements or remand the case for a second opinion evaluation to determine
the proper measurements of appellant’s calf and thigh.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.2
A claimant seeking compensation under the Act has the burden of establishing the
essential elements of his claim by the weight of the reliable, probative and substantial evidence.3

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

2

ANALYSIS
To support his claim for a schedule award, appellant submitted an impairment rating from
his physiatrist, Dr. Rodriguez, who based his August 10, 2008 impairment rating on mild atrophy
in the right calf and an additional pain-related impairment. The atrophy noted on examination
that date differed with that subsequently reported by the physician. On August 12, 2008
Dr. Rodriguez reported that appellant now had moderate atrophy in the left thigh and moderate
atrophy in the left calf when compared to the right.4 He would continue to report relative
atrophy on the left through March 2009. The Board finds that Dr. Rodriguez’ impairment rating
is of diminished probative value. His measurements from July to August 2008 are inconsistent
and remain unexplained. Dr. Rodriguez’ measurements after the August 10, 2008 impairment
rating show no impairment of the right lower extremity due to atrophy.
Table 17-31, page 544 of the A.M.A., Guides provides impairment estimates for arthritis
based on joint space narrowing. In an individual with a history of direct trauma, a complaint of
patellofemoral pain, and crepitation on physical examination, but without joint space narrowing
on x-rays, the table states that a five percent lower extremity impairment is given. The Office
medical adviser confirmed that appellant met these criteria. The impairment rating based on
patellofemoral pain is supported by the medical evidence of record and it appropriately reflects
appellant’s primary complaint of right knee pain.
The Board finds that the medical evidence supports no more than a five percent
impairment of appellant’s right lower extremity due to patellofemoral pain. As this rating
directly encompasses pain, and as the chapter in the A.M.A., Guides devoted to pain-related
impairment should not be redundant of or inconsistent with principles of impairment rating
described in other chapters5, the Office properly awarded no additional rating for pain-related
impairment. The Board will affirm the Office’s April 30, 2009 decision.
The Board cannot, as appellant’s representative suggests, accept Dr. Rodriguez’
July 2008 measurements. The unexplained change in measurements from July to August 2008
raises the question of reliability; unreliable findings provide no basis for the payment of a
schedule award. As for directing the Office to further develop the medical evidence to reliably
determine circumferences, it is appellant who bears the burden of proof to establish his
entitlement to a schedule award.
CONCLUSION
The Board finds that appellant has no more than a five percent impairment of his right
lower extremity.

4

American Medical Association, Guides to the Evaluation of Permanent Impairment 530 (5th ed. 2001) (Table
17-6).
5

A.M.A., Guides 570.

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ORDER
IT IS HEREBY ORDERED THAT the April 30, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 22, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
SYSTEMS COMMAND, Cherry Point, NC,
Employer
__________________________________________

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

Docket No. 08-2112
Issued: June 12, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 28, 2008 appellant filed a timely appeal from a July 15, 2008 schedule award
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3(d), the Board has jurisdiction over the merits of the schedule award claim.1
ISSUE
The issue is whether appellant has established more than five percent right upper
extremity impairment, for which he received a schedule award.

1

Subsequent to appellant’s appeal, the Office issued a December 12, 2008 schedule award decision concerning
appellant’s left upper extremity. The Board has no jurisdiction to review this decision as it was issued after the
filing of this appeal. See 20 C.F.R. §§ 501.2(c) and 501.3.

FACTUAL HISTORY
On May 25, 2006 appellant, then a 50-year-old pneudraulic systems mechanic, filed an
occupational disease claim attributing numbness and pain in his right hand, elbow and arm to his
federal employment. The Office accepted his claim for right elbow epicondylitis, bilateral carpal
tunnel syndrome and bilateral lesion of the ulnar nerve. On January 22, 2007 appellant
underwent a right carpal tunnel release and right ulnar nerve transfer. The Office paid
compensation and he returned to work.
On December 1, 2008 appellant filed a schedule award claim. He submitted medical
reports pertaining to his right upper extremity.2 In a February 4, 2008 report, Dr. Brian J.
Battersby, a Board-certified orthopedic surgeon, opined that appellant reached maximum
medical improvement on January 17, 2008 for the right upper extremity. He also opined that
appellant had a 12 percent impairment of the right upper extremity for carpal tunnel syndrome
and ulnar nerve deficit under the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).3
In a February 19, 2008 report, Dr. G. Pujadas, an Office medical adviser, reviewed the
medical record. He opined that appellant reached maximum medical improvement on
January 17, 2008 for his right upper extremity. Based on Dr. Battersby’s November 8, 2007
treatment report, the medical adviser determined that appellant had zero permanent impairment
to the right upper extremity under scenario three on page 495 of the A.M.A., Guides.
The Office found a conflict in medical opinion arose between Dr. Battersby and the
Office medical adviser regarding the extent of permanent impairment. It referred appellant,
together with the case record and a statement of accepted facts and a list of questions, to Dr. Noel
Rogers, a Board-certified orthopedic surgeon, selected as the impartial medical specialist.
In a June 27, 2008 report, Dr. Rogers reviewed appellant’s history and noted findings on
examination. He advised that appellant had a full range of motion without pain in the shoulders
and good “2+” strength in the deltoids. Dr. Rogers reported grip felt weak on examination, but
noted extension of the fingers revealed good strength and biceps and triceps were “2+”
bilaterally. Examination of the intrinsics via the first dorsal interosseous showed good strength
bilaterally. Grip strength, using actual measurement, was 20 pounds on both the left and right
side. Tenderness was noted on both wrists over the scars and on the ulnar notches bilaterally.
Sensations of the thumbs, index and long fingers were “2+,” but the right ring and little finger
showed decreased sensation. Tinel’s sign was negative on the right side with a positive Tinel’s
at the ulnar nerves bilaterally. Median nerve pressure revealed tenderness bilaterally. In
addressing permanent impairment, Dr. Rogers prefaced his impairment rating by noting that the
A.M.A., Guides had “no tables that specifically rate carpal tunnel syndrome, so we will have to
go to the nerves.” Utilizing Tables 13-23 and 13-24 on pages 346 and 348 of the A.M.A.,
Guides, respectively he found the median nerve fell into a Class 1 classification for both motor
and sensory function and, therefore, had zero percent impairment. Dr. Rogers found that the
2

As previously noted, appellant received a separate schedule award for his left upper extremity. Id.

3

A.M.A., Guides (5th ed. 2001).

2

ulnar nerve had a Class 4 or 26 percent rating for sensation and a Class 1 or 0 percent motor
deficit. He noted that appellant’s ring and little fingers were impaired on the right and, under
Table 16-1 page 438 of the A.M.A., Guides, 26 percent impairment rating for sensation for the
ring and little finger would result in 3 percent ring finger impairment and 3 percent little finger
impairment, for a total 6 percent right hand impairment. Utilizing Table 16-2 on page 439 of the
A.M.A., Guides, Dr. Rogers found that six percent right hand impairment converted to five
percent right arm impairment.
The Office referred Dr. Rogers’ June 27, 2008 report to a second Office medical adviser
for review. On July 9, 2008 the Office medical adviser found appellant reached maximum
medical improvement on January 17, 2008. He concurred with Dr. Rogers’ rating of five percent
impairment of the right upper extremity based on a mild degree of ulnar sensory loss.
By decision dated July 15, 2008, the Office granted appellant a schedule award for five
percent permanent impairment of the right upper extremity. The award covered the period
April 12 through July 30, 2008 for a total 15.6 weeks of compensation. In a July 11, 2008
memorandum, the Office noted that appellant was being paid leave buy back during the period
February 29 through April 11, 2008 and, in order to avoid overlapping payments, the schedule
award would start on April 12, 2008 as opposed to the date of maximum medical improvement,
January 17, 2008. It further noted the change was not disadvantageous to appellant.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 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. The Act, however, does not specify the manner in which the percentage of loss shall
be determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.6
Section 8123(a) of the Act provides that, 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 When 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 on a proper factual background, must be
given special weight.8
4

5 U.S.C. §§ 8101-8193.

5

20 C.F.R. § 10.404.

6

Ronald R. Kraynak, 53 ECAB 130 (2001).

7

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

8

Manuel Gill, 52 ECAB 282 (2001).

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ANALYSIS
The Office properly determined that a conflict in medical evidence arose between the
opinions of Dr. Battersby, appellant’s attending physician, who found 12 percent right upper
extremity impairment, and Dr. Pujadas, an Office medical adviser, who found no impairment to
his right upper extremity. It referred appellant to Dr. Rogers for an impartial evaluation.
Dr. Rogers found appellant had five percent permanent impairment of the right arm based
on ulnar sensory loss of a mild degree. He utilized Tables 13-23 and 13-24 on pages 346 and
348 of the A.M.A., Guides, which related to appellant’s pain or sensory deficit and loss of
muscle power and motor function resulting from peripheral nerve disorders, respectively. For
the median nerve, Dr. Rogers indicated that appellant had a Class 1 or zero percent impairment
for both sensory and motor function. For the ulnar nerve, he found appellant had a Class 1 or
zero percent motor deficit. From Table 13-23, Dr. Rogers opined that appellant had a Class 4 or
26 percent sensory deficit of the ulnar nerve.9 He then converted the 26 percent sensory deficit
rating, under conversion tables in the A.M.A., Guides, to find 5 percent impairment of the arm.
This is an error, however, as Dr. Rogers did not properly use the rating procedure set forth in
Table 13-23 for determining sensory impairment resulting from a peripheral nerve disorder.
Table 13-23 notes that, for the upper extremities, the examiner should find the value for
maximum loss of function of the specific nerve or root due to pain or loss of sensation using
Figures 16-48 and 16-49 in Chapter 16 and multiply the percentage associated with the identified
nerve by the percentage associated with the decreased sensation from Table 13-23.10 In this
case, Dr. Rogers noted only that appellant had 26 percent ulnar nerve sensory impairment under
Class 4 but he failed to follow the procedure set forth at Table 13-23 by identifying the
maximum loss of function of the ulnar nerve under Table 16-14 in Chapter 16 which would then
be multiplied by the 26 percent sensory impairment that he identified under Class 4. Moreover,
while he rated 26 percent impairment (Class 4) value for the affected digits, he did not fully
explain how he arrived at this rating under Class 4 for which provides a range of 26 to 60
percent. The Office medical adviser concurred with Dr. Rogers’ flawed impairment rating. The
Board further notes that Dr. Rogers noted that the A.M.A., Guides do not have specific
provisions for rating carpal tunnel syndrome. However, the Board notes that page 495 of
Chapter 16 of the A.M.A., Guides sets forth a scheme for rating carpal tunnel syndrome.11
Because Dr. Rogers did not properly assess appellant’s permanent impairment of the right arm
pursuant to the A.M.A., Guides, his opinion does not resolve the conflict in medical opinion.
When the Office obtains an opinion from an impartial medical specialist for the purpose
of resolving a conflict in the medical evidence and the specialist’s opinion requires clarification
or elaboration, the Office must secure a supplemental report from the specialist to correct the
defect in his original report.12 The Board will set aside the Office’s July 15, 2008 decision and
9

A Class 4 sensory deficit under Table 13-23 has a range of 26 to 60 percent sensory impairment for decreased
sensation with or without pain, interfering activity. A.M.A., Guides, Table 13-23, at 346.
10

See id.

11

A.M.A., Guides 495. See T.A., 59 ECAB ___ (Docket No. 07-1836, issued November 20, 2007).

12

L.R. (E.R.), 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007).

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remand the case for the Office to obtain a supplemental opinion from Dr. Rogers that will
resolve medical conflict. Following this and such further development as may be required, the
Office shall issue an appropriate final decision on appellant’s entitlement to a schedule award for
the right arm.13
CONCLUSION
The Board finds that this case is not in posture for decision regarding the extent of
appellant’s right upper extremity impairment.
ORDER
IT IS HEREBY ORDERED THAT the July 15, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: June 12, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

13

On appeal, appellant questions why his schedule award did not commence on his date of injury. The Board
notes that it is well established that the period covered by a schedule award commences on the date that the
employee reaches maximum medical improvement from the residuals of the employment injury. J.C., 58
ECAB ___ (Docket No. 06-1018, issued January 10, 2007).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SUPPLY CENTER, Bremerton, WA, Employer
__________________________________________

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

Docket No. 13-1807
Issued: January 6, 2014

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 July 29, 2013 appellant filed a timely appeal from a June 25, 2013 merit decision of
the Office of Workers’ Compensation Programs. 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 filed a timely claim for compensation under 5 U.S.C.
§ 8122(a).
FACTUAL HISTORY
On December 12, 2012 appellant, then a 72-year-old forklift operator, filed an
occupational disease claim alleging that on January 1, 1995 he first became aware of his bilateral
hearing loss and realized that it was caused or aggravated by loud noise at work. He retired from
1

5 U.S.C. § 8101 et seq.

the employing establishment on September 30, 1999. Appellant stated that his claim was not
filed within 30 days of his injury because he was not notified that he could file a claim. A
supervisor, whose signature is illegible, indicated on the claim form that appellant first reported
his claimed injury to the employing establishment on January 28, 2013.
In a federal occupational hearing loss claim checklist dated December 12, 2012, appellant
stated that he was exposed to constant ringing at work. On December 12, 2012 he described his
federal and nonfederal work history and exposure to noise from 1958 to 1999.
An October 17, 2012 audiogram showed that testing for the right ear at the frequency
levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed decibel losses of 15, 20, 20 and
55 respectively. Testing for the left ear at the same frequency levels revealed decibel losses of
15, 20, 25 and 60 respectively.
In a December 17, 2012 medical report, Dr. Gerald G. Randolph, a Board-certified
otolaryngologist, advised that appellant had bilateral sensorineural hearing loss. He determined
that appellant had no impairment to the right ear and 7.5 percent impairment to the left ear,
resulting in a 1.25 percent binaural hearing loss under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment. Dr. Randolph further
determined that appellant had one percent impairment due to tinnitus. He recommended bilateral
fitting of appropriate hearing aids. Dr. Randolph noted that appellant had retired in 1999 and
requested the opportunity to review the prior industrial audiograms to determine the extent of his
hearing loss at or near the time he left employment and whether hearing aids would have been
indicated at that time.
By letter dated March 8, 2013, OWCP requested that appellant submit additional
evidence to establish his claim. It noted that the submitted evidence did not establish that he
provided timely notification of his work injury or that he was injured while in the performance of
duty. Appellant was afforded 30 days to submit the requested evidence. It also requested that
the employing establishment submit factual and medical evidence regarding his occupational
noise exposure. No further information was received.
In a June 25, 2013 decision, OWCP denied appellant’s hearing loss claim as it was
untimely filed. There was no evidence to support a finding that his claim was timely filed within
three years of the date of injury or that his immediate supervisor had actual knowledge within 30
days of the date of injury. OWCP found that the date of appellant’s injury was January 1, 1995
and his claim for compensation was not filed until December 12, 2012.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.2 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death. Compensation

2

Charles Walker, 55 ECAB 238 (2004); see Charles W. Bishop, 6 ECAB 571 (1954).

2

for disability or death, including medical care in disability cases, may not be allowed if a claim is
not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 was given within
30 days.”3
Section 8119 of FECA provides that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury, or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the individual giving the notice.4 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.5
For actual knowledge of a supervisor to be regarded as timely filed, an employee must show not
only that the immediate superior knew that he or she was injured, but also knew or reasonably
should have known that it was an on-the-job injury.6
Section 8122(b) of FECA provides that the time for filing in latent disability cases does
not begin to run until the claimant is aware or by the exercise of reasonable diligence should
have been aware, of the causal relationship between the employment and the compensable
disability, and the Board has held that the applicable statute of limitations commences to run
although the employee does not know the precise nature of the impairment.7
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware, or reasonably should have been aware, of a possible relationship
between his condition and his employment. When an employee becomes aware or reasonably
should have been aware that he or she has a condition which has been adversely affected by
factors of his federal employment, such awareness is competent to start the limitation period
even though the employee does not know the precise nature of the impairment or whether the
ultimate result of such affect would be temporary or permanent.8 Where the employee continues
3

5 U.S.C. § 8122(a).

4

Id. at § 8119; Larry E. Young, 52 ECAB 264 (2001).

5

Laura L. Harrison, 52 ECAB 515 (2001).

6

Delmont L. Thompson, 51 ECAB 155 (1999).

7

5 U.S.C. § 8119(b); Delmont L. Thompson, supra note 6.

5 Id. at § 8122(b); see Luther Williams, Jr., 52 ECAB 360 (2001).
8

Larry E. Young, supra note 4.

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in the same employment after he or she reasonably should have been aware that he or she has a
condition which has been adversely affected by factors of federal employment, the time
limitation begins to run on the date of the last exposure to the implicated factors.9 The
requirement to file a claim within three years is the claimant’s burden and not that of the
employing establishment.10
The time limitations in section 8122(a) and (b) do not: “(1) begin to run against a minor
until he reaches 21 years of age or has had a legal representative appointed; (2) run against an
incompetent individual while he is incompetent and has no duly appointed legal representative;
or (3) run against any individual whose failure to comply is excused by the Secretary on the
grounds that such notice could not be given because of exceptional circumstances.”11
ANALYSIS
The Board finds that appellant has not established that his hearing loss claim was filed in
a timely manner.
On December 12, 2012 appellant filed an occupational disease claim alleging a bilateral
hearing loss due to his federal employment on January 1, 1995, more than four years prior to his
resignation from the employing establishment on September 30, 1999. The time limitation for
filing the claim began to run on the date of his last exposure on September 30, 1999.12 Appellant
had three years from September 30, 1999 to timely file his claim. As his claim was not filed
until December 12, 2012, the Board finds that it was not timely filed within the three-year period
of limitation.
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of FECA if
his immediate supervisor had actual knowledge of the injury or if he provided written notice
within 30 days of his last exposure to noise, i.e., within 30 days of September 30, 1999.13 The
record does not reflect that appellant provided written notice of injury prior to filing the instant
claim, and a supervisor advised that the employing establishment did not receive notice of
appellant’s injury until January 28, 2013. The Board finds, therefore, that appellant has not
established that the employing establishment had knowledge of a hearing loss within 30 days of
his last exposure in 1999.
Appellant contended that he was not notified that he could file a claim for his hearing
loss. The Board has held that an employee’s unawareness of possible entitlement, lack of access
to information or ignorance of the law or one’s rights and obligations under it do not constitute

9

Id.

10

Debra Young Bruce, 52 ECAB 315 (2001).

11

5 U.S.C. § 8122(d).

12

See Larry E. Young, supra note 4.

13

See 5 U.S.C. § 8122(a)(1); Ralph L. Dill, 57 ECAB 248 (2005).

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exceptional circumstances that excuse a failure to file a timely claim.14 Appellant was not under
21 years old and provided no evidence to show that he was incompetent or was prevented from
giving notice by exceptional circumstances. He did not timely file a claim for compensation.15
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’s claim is barred by the applicable time limitation
provisions of FECA.
ORDER
IT IS HEREBY ORDERED THAT the June 25, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 6, 2014
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

14

B.J., 59 ECAB 660 (2008).

15

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.D., Appellant
and
PEACE CORPS,VOLUNTEER SERVICES,
Guyana, South America, Employer
__________________________________________

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

Docket No. 13-1645
Issued: December 6, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 10, 2013 appellant filed a timely appeal from a June 26, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP) terminating her compensation benefits.
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.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation
effective June 26, 2013 on the grounds that she had no further employment-related disability;
and (2) whether it properly terminated authorization for medical benefits.
FACTUAL HISTORY
On October 16, 2012 appellant, then a 32-year-old former Peace Corps volunteer, filed an
occupational disease claim vascular thoracic outlet syndrome after working for six months in
1

5 U.S.C. § 8101 et seq.

Guyana, South America. She attributed her condition to performing computer work. Appellant
stopped work on September 12, 2012. OWCP accepted her claim for brachial plexus lesions and
paid compensation for disability beginning September 12, 2012.
In a form report dated October 3, 2012, Dr. Fritz J. Baumgartner, an attending Boardcertified surgeon, diagnosed thoracic outlet syndrome. He checked “yes” that the condition was
caused or aggravated by work factors.
On December 26, 2012 OWCP referred appellant to Dr. Steven M. Ma, a Board-certified
orthopedic surgeon, for a second opinion examination. In a report dated January 17, 2013,
Dr. Ma reviewed the medical evidence of record and provided detailed findings on examination.
He diagnosed cervical disc disease and possible thoracic outlet syndrome. Dr. Ma asserted that
the “diagnosis of a brachial plexus lesion is not established. In fact, it is difficult to specifically
identify [appellant’s] medical problem.” Dr. Ma noted that electrodiagnostic studies were
normal and that her current complaints included pain down the right leg. He found that appellant
had no current condition as a result of performing six months of office work for the employing
establishment. Dr. Ma related that x-rays and magnetic resonance imaging (MRI) scan studies
showed a tortuous cervical spine or cervical spine laxity. He also found that appellant was
hyperflexible. Dr. Ma attributed her arm symptoms to a cervical abnormality, which he found to
be a “nonindustrial preexisting condition.” He recommended against surgery for possible
thoracic outlet syndrome due to appellant’s hyperflexibility. Dr. Ma stated:
“However, this examiner does not find any industrial causation for [appellant’s]
cervical disc disease, brachial plexus lesion or thoracic outlet syndrome.
[Appellant] works a sedentary desk work. Her usual and customary work duties
would not cause her to have any of these problems. In fact, [appellant] has been
only doing this type of physical activity for [six] months when she developed her
symptoms. This is too short of a period of time to expect one to have symptoms
due to employment.”
Regarding whether appellant had residuals of her brachial plexus lesions, Dr. Ma noted
that appellant believed that she had thoracic outlet syndrome. He opined that she had no brachial
plexus lesion based on the electrodiagnostic evidence.
On February 7, 2013 OWCP advised appellant of its proposed termination of her
compensation and entitlement to medical benefits based on Dr. Ma’s opinion that she had no
current condition as a result of her employment.
In a February 18, 2013 response, appellant questioned why she was sent to an orthopedic
surgeon for an evaluation given that her problem was vascular thoracic outlet syndrome. She
asserted that she did not have a brachial plexus lesion and asked OWCP to correct its acceptance
of her claim to include the proper condition.
Appellant submitted a September 3, 2012 report from Dr. Marc Margolis, a Boardcertified thoracic surgeon, who discussed her history of bilateral aching, tingling and numbness
of the arms, more on the right. Dr. Margolis stated that her symptoms and the findings on
examination were “compatible with arterial thoracic outlet syndrome.”

2

On September 12, 2012 the employing establishment medically separated appellant due
to her thoracic outlet syndrome.2
On April 3, 2013 OWCP referred appellant to Dr. Reginald Abraham, a Board-certified
thoracic surgeon, for a second opinion examination. In a report dated April 19, 2013,
Dr. Abraham reviewed the history of injury and discussed her complaints of numbness and
tingling in her bilateral upper extremities. On examination, he found “diminish[ed] pulses to
both extremities when the neck is moved from side to side.” Dr. Abraham advised that
arteriograms and venograms showed thoracic outlet syndrome bilaterally. He related that
appellant had reduced blood flow to the upper extremities and showed “exacerbated signs of
arterial compromise and venous outflow compromise which may indeed result in neurological
changes secondary to ischemic type symptoms with movement of her arms and upper torso.”
Dr. Abraham stated, “I think it is altogether possible that she has contributing thoracic outlet
symptoms from a narrow outlet that giving her primarily vascular type findings which can easily
explain her neurological symptoms as well.” He recommended thoracic outlet surgery on the left
side followed by physical therapy and possibly surgery on the right side depending on the results
of the left-sided surgery. Dr. Abraham related:
“This does not mean [appellant] does not have symptoms from other issues that
relate to thoracic outlet syndrome. Objective findings include the arteriogram and
venogram which show occlusive disease. In terms of providing any injury-related
factors of disability, it certainly stands to reason that repetitive work using
[appellant’s] arms especially as they are raised or lowered would aggravate a
condition like this that is likely preexisting.”
In response to the question of whether appellant had a current condition due to her injury,
Dr. Abraham related, “Again, I do not believe this is a brachial plexus injury. I do believe this is
an outlet[-]related issue with the vascular compromise to the arms which can be compounded by
repetitive use and exertion.” He opined that the aggravation ceased when appellant stopped
performing repetitive work. Dr. Abraham listed work restrictions that were permanent without
corrective surgery. In an accompanying work capacity evaluation, he found that appellant could
work three to four hours a day with restrictions.
By decision dated June 26, 2013, OWCP terminated appellant’s compensation and
authorization for medical benefits effective that date. It found that the opinions of the referral
physicians Dr. Abraham and Dr. Ma represented the weight of the evidence and established that
appellant had no further disability due to her brachial plexus lesions. OWCP further found that
neither physician attributed appellant’s thoracic outlet syndrome to her employment.
On appeal, appellant contended that she did not have brachial plexus lesions but instead
vascular thoracic outlet syndrome as established by a September 6, 2012 venogram and
arteriogram. She asserted that OWCP should correct her work-related diagnosis. Appellant
argued that Dr. Abraham found that her work duties aggravated her thoracic outlet syndrome.

2

In a report dated October 4, 2012, Dr. Baumgartner diagnosed symptomatic bilateral thoracic outlet syndrome
and recommended surgery.

3

LEGAL PRECEDENT -- ISSUES 1 & 2
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.3
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.5 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.6
OWCP’s procedures provides as follows:
“When the DMA [district medical adviser], second opinion specialist or referee
physician renders a medical opinion based on a SOAF [statement of accepted
facts] which is incomplete or inaccurate or does not use the SOAF as the
framework in forming his or her opinion, the probative value of the opinion is
seriously diminished or negated altogether.”7
ANALYSIS -- ISSUES 1 & 2
OWCP accepted that appellant sustained brachial plexus lesions causally related to
factors of her federal employment. It paid her compensation for total disability beginning
September 12, 2012.
By decision dated June 26, 2013, OWCP terminated appellant’s
compensation and authorization for medical treatment after finding that the weight of the
evidence, as represented by the opinions of the referral physicians, established that she had no
further residuals of her employment injury.
The Board finds that OWCP improperly terminated appellant’s compensation. On
December 26, 2012 OWCP referred appellant to Dr. Ma and Dr. Abraham for second opinion
examinations. In a report dated January 17, 2013, Dr. Ma diagnosed cervical disc disease and
possible thoracic outlet syndrome. He opined that the electrodiagnostic evidence did not show a
brachial plexus lesion. Dr. Ma asserted that appellant’s work duties did not cause thoracic outlet
syndrome, brachial plexus lesions or cervical disc disease. On April 19, 2013 Dr. Abraham also
found that she did not have a brachial plexus lesion but instead had thoracic outlet syndrome.
3

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

4

Gewin C. Hawkins, 52 ECAB 242 (2001).

5

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

6

Id.

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).

4

Consequently, neither physician determined that appellant was no longer disabled due to her
brachial plexus lesions but instead found that she had not experienced such an injury. OWCP,
however, accepted her claim for brachial plexus lesions. To the extent that the opinions of
Dr. Ma and Dr. Abraham are outside of the statement of accepted facts, they are based on an
inaccurate factual history and insufficient to meet OWCP’s burden of proof.8 OWCP did not
address whether it was attempting to rescind acceptance of her brachial plexus syndrome based
on the evidence; it did not inform appellant that it was contemplating rescission or actually
rescinding acceptance in its termination decision. It must inform a claimant correctly and
accurately of the grounds on which a rejection rests so as to afford the claimant an opportunity to
meet, if possible, any defect appearing therein.9 OWCP may not find that residuals of an
employment injury have ceased by a particular date when the evidence upon which the decision
rests tends to support that, in fact, the injury never occurred.10
Additionally, regarding whether appellant had a current condition or disability due to the
accepted injury, Dr. Abraham advised that she had an outlet problem with a “vascular
compromise to the arms which can be compounded by repetitive use and exertion.” He opined
that diagnostic studies revealed occlusive disease and on examination found a reduced pulse of
both extremities with neck movement. Dr. Abraham recommended thoracic outlet surgery
beginning on the left side. He further listed work restrictions. Dr. Abraham’s opinion, while not
fully definite or rationalized that appellant’s employment duties caused or aggravated thoracic
outlet syndrome and vascular insufficiency, is generally supportive and sufficient to warrant
further development of the evidence. Once OWCP undertakes development of the medical
evidence, it has the responsibility to do in a manner that will resolve the relevant issues in the
case.11 Upon return of the case record, OWCP should develop the evidence to determine
whether appellant sustained thoracic outlet syndrome and vascular insufficiency caused or
aggravated by factors of her federal employment.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s compensation and
authorization for medical benefits effective June 26, 2013 on the grounds that she had no further
employment-related disability or need for medical treatment.

8

Id.; see also T.F., Docket No. 12-209 (issued June 18, 2012).

9

See John M. Pittman, 7 ECAB 514 (1955).

10

See John L. Hofmann, Docket No. 04-1802 (issued November 22, 2004).

11

See Melvin James, 55 ECAB 406 (2004); Mae Z. Hackett, 34 ECAB 1421 (1983).

5

ORDER
IT IS HEREBY ORDERED THAT the June 26, 2013 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 6, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 10-1958
Issued: July 7, 2011

Case Submitted on the Record

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

JURISDICTION
On July 27, 2010 appellant timely appealed the July 7, 2010 merit decision of the Office
of Workers’ Compensation Programs (OWCP), which reduced his compensation. 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 OWCP properly reduced appellant’s compensation effective
August 1, 2010 for failing to cooperate with vocational rehabilitation.

1

5 U.S.C. §§ 8101-8193 (2006).

FACTUAL HISTORY
This case was previously before the Board. Appellant, a 63-year-old former letter carrier,
has an accepted claim for right hand contusion and lumbar spine contusion.2 His injury occurred
July 16, 1984 when he fell while attempting to flee six dogs that attacked him. Appellant’s 1984
traumatic injury claim has a lengthy procedural history, including numerous prior appeals dating
back more than two decades.3 The Board issued its most recent prior decision on
November 21, 2008.4 One issue on appeal was whether appellant received an overpayment of
$33,003.07. The second issue pertained to his July 14, 2006 claim for recurrence of disability.
The Board reversed OWCP’s finding with respect to the $33,003.07 overpayment. As to the
recurrence claim, the Board remanded the case to OWCP for a determination of whether
modification of a September 29, 1994 wage-earning capacity determination was warranted.5 On
remand OWCP modified the September 29, 1994 LWEC determination. Effective April 12,
2009, it adjusted appellant’s periodic rolls payments to reflect entitlement to wage-loss
compensation for total disability.6
In April 2009, OWCP referred appellant for vocational rehabilitation based on the
March 27, 2009 work capacity evaluation (Form OWCP-5c) of Dr. Jeannine M. Leadbeater, a
Board-certified family practitioner, who imposed a four and a half-hour limitation with respect to
sitting, walking, standing, reaching and reaching above shoulder. Dr. Leadbeater also imposed a
two and a half-hour limitation on operating a motor vehicle at work. Additionally, appellant was
limited to two and a half hours pushing with a 30-pound weight restriction. He was allowed to
pull 20 pounds and lift 30 pounds. Lastly, Dr. Leadbeater restricted appellant to two hours
squatting and two and a half hours kneeling.7

2

Appellant has a history of lumbar degenerative disc disease and has undergone several surgical procedures, most
recently on January 5, 2005.
3

Docket Nos. 90-1201, 92-1525, 95-1488, 03-1105 and 07-2266.

4

Docket No. 07-2266. The Board’s November 21, 2008 decision is incorporated herein by reference.

5

OWCP previously reduced appellant’s compensation based on his actual earnings as a mail clerk effective
November 4, 1990. In a prior appeal, the Board affirmed OWCP’s September 29, 1994 loss of wage-earning
capacity (LWEC) determination (Docket No. 95-1448). On subsequent appeal, the Board affirmed OWCP’s
March 11, 2003 decision denying modification of the September 29, 1994 LWEC determination (Docket No. 031105).
6

OWCP also paid appellant compensation for total disability retroactive to March 19, 2006.

7

The limitations were ostensibly based on an “attached functional capacity evaluation,” but no such information
was attached to the March 27, 2009 Form OWCP-5c. Dr. Leadbeater imposed similar restrictions in a February 22,
2008 Form OWCP-5c. The previous year’s work capacity evaluation included an additional two and a half-hour
limitation on bending/stooping, but no specific restriction with respect to operating a motor vehicle at work.

2

Appellant initially met with his OWCP-designated rehabilitation counselor on
June 1, 2009. OWCP subsequently assigned another counselor, with whom appellant met on
July 16, 2009. The rehabilitation counselor developed a plan for private placement.8 The
identified positions included Correctional -- Treatment Specialist, Social Worker, Delinquency
Prevention and teacher aide 1.9 OWCP’s rehabilitation specialist approved the job placement
plan on September 25, 2009 and a copy of the plan was forwarded to appellant for his signature.
On November 6, 2009 OWCP advised appellant that it proposed to reduce his
compensation because the medical and factual evidence established that he was no longer totally
disabled, but rather was partially disabled. It further explained that, based on the previously
identified positions, he had the capacity to earn wages ranging from $263.46 to $500.00 per
week. Appellant was to receive 90 days of job placement assistance and during that period his
compensation would not be reduced. Lastly, OWCP informed him that, if he disagreed with the
proposal, he could submit additional evidence or argument relevant to his capacity to earn wages
in the selected positions. Any such information was to be submitted prior to the expiration of the
90-day job placement period.
On November 25, 2009 appellant received medical treatment for chronic low back pain.
Dr. Tarsha J. Darden, a Board-certified family practitioner, noted a history of a job-related injury
at age 18 and a subsequent back injury in 1984. She also noted that appellant had already
undergone three back surgeries and had been recommended for a fourth. Appellant reportedly
had been doing exercises for low back pain three weeks prior and his pain had worsened since
then. He rated his pain at 7 out of 10. The pain was limited to appellant’s low back and did not
radiate down his legs. Dr. Darden also noted that, based on a previous magnetic resonance
imaging scan, appellant had been told he needed additional back surgery. Appellant’s current
pain was severe and she advised that he follow-up with an orthopedist. Dr. Darden’s assessment
was chronic low back pain. She prescribed Flector patches for pain and referred appellant to an
orthopedist.
In a December 2, 2009 progress report, the rehabilitation counselor advised OWCP that
appellant failed to sign the rehabilitation plan, failed to provide requested references, failed to
complete a job skills questionnaire and failed to provide his college transcripts or other relevant
information that would facilitate the development of a résumé. He also indicated that appellant
had not provided job search logs or other documentation of his job search activities. The
rehabilitation counselor further noted that of the approximate 30 job leads he provided appellant
had not applied for any of the available positions. Appellant reportedly had been completely
dismissive of the rehabilitation counselor’s efforts to help him find suitable employment.
8

Appellant expressed interest in returning to his prior position as a letter carrier and in fact, he pursued such
reemployment efforts independent of the rehabilitation counselor. However, his former employer was either
unwilling or unable to accommodate his wishes. Notwithstanding appellant’s approximate 25-year absence from
work, he argued to no avail that he had civil service retention rights pursuant to 5 U.S.C. § 8151(b). Appellant had
voluntarily resigned from the employing establishment effective September 14, 1984. As an alternative to returning
to his former letter carrier duties, he wanted OWCP to authorize his pursuit of a Master’s degree in Ministry.
Appellant already held two Bachelor’s degrees therefore additional training for the ministry was not considered
justified in light of the availability of jobs appellant was currently qualified to perform.
9

Appellant previously worked as a substitute teacher.

3

On December 14, 2009 OWCP advised appellant that it had been informed that he
discontinued good faith participation in OWCP-approved job placement program. It instructed
him to either resume a good faith effort with job placement services or provide a good reason for
not doing so. If appellant did not take the necessary steps within 30 days, OWCP explained that
it would terminate rehabilitation services and reduce his compensation based on the previously
identified positions.
Appellant met with a prospective employer on December 17, 2009. However, it did not
result in an offer of employment. The prospective employer was reportedly drawn into a debate
between appellant and the rehabilitation counselor about previous efforts to return him to work
with his former employer.
Appellant wrote to OWCP on several occasions complaining about the rehabilitation
program and how he had not agreed with the rehabilitation counselor about the job leads that had
been provided. He claimed he was unqualified for some of the identified positions. Apart from
the December 17, 2009 contact with a prospective employer, appellant did not otherwise resume
participation with the job placement program. Effective March 8, 2010, OWCP terminated its
rehabilitation efforts due to appellant’s failure to cooperate.
A May 11, 2010 OWCP e-mail contains a position description for a “Teacher[’s]
Assistant.” The only physical requirement noted for this position is the ability to lift up to 40
pounds.
On June 3, 2010 OWCP issued a notice of proposed reduction. It advised appellant of its
intent to reduce his compensation based on his ability to earn weekly wages of $263.46 as a
teacher’s aide 1. OWCP explained that Dr. Leadbeater’s March 27, 2009 report of examination
established that he was partially disabled as a result of the employment injury. It indicated that
the permanent restrictions identified in the March 27, 2009 report were accepted as the best
representation of his current work capabilities. The notice further explained that appellant failed
to cooperate with job placement assistance and that he had been warned of the consequences of
his actions by letter dated December 14, 2009. OWCP indicated that, because the rehabilitation
process had progressed beyond the initial phase, he would be rated based on a position for which
he was both physically and vocationally suited. Appellant was afforded 30 days to submit
additional evidence or argument.
Appellant subsequently challenged OWCP’s reliance on a March 2009 medical report.
He noted that his back went out in November 2009 and at that time he had been referred to
orthopedist. Appellant resubmitted Dr. Darden’s November 25, 2009 treatment notes. He also
submitted a June 17, 2010 treatment request from Dr. Leadbeater, who referred him to an
orthopedic surgeon for evaluation of chronic back pain. Dr. Leadbeater made a similar referral
six months earlier.
By decision dated July 7, 2010, OWCP reduced appellant’s compensation effective
August 1, 2010 for failure to cooperate with vocational rehabilitation. It found that the teacher’s
aide 1 position was both medically and vocationally suitable and appellant had not submitted
evidence sufficient to alter the prior recommendation to reduce his benefits. OWCP further
indicated that, because he elected not to participate in the job seeking phase of the vocational

4

rehabilitation program, his compensation would be adjusted based on his ability to earn wages as
a teacher’s aide 1.
LEGAL PRECEDENT
OWCP may direct a permanently disabled employee whose disability is compensable to
undergo vocational rehabilitation.10 If an individual without good cause fails to apply for and
undergo vocational rehabilitation when so directed, OWCP after finding that in the absence of
the failure the wage-earning capacity of the individual would probably have substantially
increased, may reduce prospectively the monetary compensation of the individual.11 Where a
suitable job has been identified, OWCP will reduce the employee’s future monetary
compensation based on the amount which would likely have been his wage-earning capacity had
he undergone vocational rehabilitation.12 OWCP will determine this amount in accordance with
the job identified through the vocational rehabilitation planning process.13 The reduction will
remain in effect until such time as the employee acts in good faith to comply with OWCP’s
directive.14
OWCP must initially determine the employee’s medical condition and work restrictions
before selecting an appropriate position that reflects his vocational wage-earning capacity.15 The
medical evidence OWCP relies upon must provide a detailed description of the employee’s
condition and the evaluation must be reasonably current.16 Where suitability is to be determined
based on a position not actually held, the selected position must accommodate the employee’s
impairment from both injury-related and preexisting conditions, but not impairment attributable
to post-injury or subsequently acquired conditions.17
ANALYSIS
Once OWCP has made a determination that an employee is totally disabled as a result of
an employment injury and pays compensation, it has the burden of justifying a subsequent
reduction of benefits.18 It reduced appellant’s compensation based on his ability to earn wages as
a teacher’s aide 1. The Board finds that the reduction in compensation was inappropriate, based
upon the medical evidence of record.
10

5 U.S.C. § 8104(a).

11

Id. at § 8113(b).

12

20 C.F.R. § 10.519(a) (2010).

13

Id.

14

Id.

15

M.A., 59 ECAB 624, 631 (2008).

16

Id.

17

N.J., 59 ECAB 171, 176 (2007).

18

Supra note 15.

5

It is clear that appellant did not cooperate with the vocational rehabilitation process. As
noted, however, OWCP must initially determine the employee’s medical condition and work
restrictions before selecting an appropriate position that reflects his vocational wage-earning
capacity.19 The medical evidence OWCP relies upon must provide a detailed description of
appellant’s condition and the evaluation must be reasonably current.20 In this instance, OWCP
relied upon a March 27, 2009 work capacity evaluation from Dr. Leadbeater.
Initially, Dr. Leadbeater checked the appropriate box indicating that appellant could
perform his usual job. She then indicated that he was unable to perform his usual job, but could
work eight hours with restrictions. These restrictions included a four and a half-hour limitation
with respect to sitting, walking, standing, reaching, reaching and a 30-pound lifting restriction.
Although Dr. Leadbeater identified various work restrictions, she did not provide a specific
diagnosis or a detailed description of appellant’s condition. The record does not include a
contemporaneous narrative medical report from her. In fact, Dr. Leadbeater appears not to have
provided any narrative medical reports or a reasonably current evaluation. Her March 27, 2009
OWCP-5c referenced an attached functional capacity evaluation (FCE). No such attachment was
provided. However, the record includes the results of a January 29, 2008 FCE prepared by
Kevin P. Schrack, a physical therapist. It is not entirely clear whether this prior FCE formed the
basis of the March 27, 2009 work restrictions. In any event, the results were dated and the
record does not include evidence indicating that Dr. Leadbeater had recently examined appellant
at the time she prepared the March 27, 2009 OWCP-5c.
Furthermore, there is no indication of record that Dr. Leadbeater reviewed a position
description for a teacher’s aide 1 and therefore there is no medical evidence of record that
appellant could actually perform the physical requirements of this position. The Board notes that
the May 11, 2010 OWCP e-mail, which contained a position description for a teacher’s assistant
did not list the physical requirements of the position, other than noting that lifting up to 40
pounds was required. Dr. Leadbeater’s restrictions included a lifting restriction of 30 pounds and
also included substantial restrictions on sitting, walking and standing. As the record lacks a
position description which includes a complete description of the physical requirements of the
teacher’s aide position, the record does not substantiate that appellant can perform this position.
Accordingly, the Board finds that the more recent evidence of record, particularly the
March 27, 2009 OWCP-5c does not adequately establish appellant’s current medical condition,
including both preexisting and injury-related conditions. The Board also finds that OWCP has
not established that he can perform the physical requirements of the teacher’s aide 1 position. As
such, OWCP improperly reduced appellant’s compensation on the basis that the teacher’s aide 1
position was both medically and vocationally suitable.
CONCLUSION
The Board finds that OWCP failed to satisfy its burden in reducing appellant’s wage-loss
compensation for failure to cooperate with vocational rehabilitation effective August 1, 2010.
19

Id.

20

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the July 7, 2010 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: July 7, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MEDICAL CENTER, Fayetteville, NC, Employer
__________________________________________
Appearances:
Ditty S. Bhatti, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 14-0253
Issued: June 26, 2015

Case Submitted on the Record

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

The Board issued a decision and order in the above-entitled matter on May 5, 2015. By
that decision, the Board affirmed a May 16, 2013 decision of the Office of Workers’
Compensation Programs (OWCP), finding that OWCP made a proper finding regarding
appellant’s wage-earning capacity. However, the Clerk of the Board inadvertently misaddressed
the May 5, 2015 decision, and mailed it to an incorrect address.
In Bertha Keeble,1 the Board, citing to Ralph W. Moody,2 noted that a decision of the
Board is issued when it is filed and mailed, and that the presumption will be that this was
accomplished on the date the decision is dated.3 The Board found in Keeble that, as the decision
was mailed to an incorrect address, such decision was not issued. Consequently, the Board
ordered that the decision be reissued.
Similarly, in the instant case, the Board inadvertently addressed and mailed the
May 5, 2015 decision to an incorrect address. As in Keeble, since the Board mailed the

1

45 ECAB 355 (1994).

2

44 ECAB 375 (1993).

3

See supra note 1 at 356. See also S.B., Docket No. 14-749 (issued September 12, 2014).

May 5, 2015 decision to an incorrect address, the Board concludes that such decision was not
properly issued and must be reissued.
IT IS HEREBY ORDERED that the Board’s May 5, 2015 decision is reissued.
Issued: June 26, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
H.G. HEFNER VETERANS MEDICAL
CENTER, Salisbury, NC, Employer
__________________________________________

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

Docket No. 21-0175
Issued: June 23, 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 November 24, 2020 appellant filed a timely appeal from a September 16, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left shoulder
condition causally related to the accepted September 5, 2018 employment incident.
FACTUAL HISTORY
This case has been previously before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On September 10, 2018 appellant, then a 54-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that on September 5, 2018 she sustained a left shoulder injury
when dressing a large patient who suffered from dementia while in the performance of duty. She
stopped work on September 6, 2018 and then returned to full-time regular-duty work on
September 12, 2018.
In a progress report and note dated September 6, 2018, Sylvia D. Dickerson, a family nurse
practitioner, indicated that appellant was seen in her clinic that day for acute left shoulder pain and
was released to work effective September 11, 2018.
A September 28, 2018 magnetic resonance imaging (MRI) scan of appellant’s left shoulder
demonstrated high-grade (near complete) partial-thickness tearing of the ventral supraspinatus
tendon and prominent infraspinatus tendinopathy.
By decision dated October 23, 2018, OWCP found that the factual evidence was
insufficient to establish that the September 5, 2018 incident occurred at the time, place, and in the
manner alleged. It concluded, therefore, that the requirements had not been met to establish an
injury as defined by FECA.
In an October 23, 2018 medical report, Dr. Thomas A. Ginn, a Board-certified orthopedic
hand surgeon, diagnosed left rotator cuff tear. In a work status form of even date, he released
appellant to work with restrictions regarding her left arm.
On October 31, 2018 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
In a February 12, 2019 note, Dr. Ginn noted that appellant could return to light-duty work
with restrictions.
A telephonic hearing was held before an OWCP hearing representative on March 11, 2019.
Appellant provided testimony and the hearing representative held the case record open for 30 days
for the submission of additional evidence.

3

Docket No. 19-1441 (issued January 28, 2020).

2

Appellant subsequently submitted notes dated March 18 and 26, 2019 from Dr. Ginn, who
indicated that appellant developed shoulder pain while at work on September 5, 2018 was
eventually diagnosed with a rotator cuff tear, and had undergone surgery. Dr. Ginn opined that
her job placed her at a higher risk than the general population for shoulder pathology. He explained
that appellant’s repetitive pushing, pulling, and lifting placed her shoulder at a higher risk of
developing rotator cuff disease/tearing.
By decision dated May 24, 2019, OWCP’s hearing representative modified, the
October 23, 2018 decision to find that appellant had established that the September 5, 2018
incident occurred as alleged. However, the claim remained denied as the medical evidence of
record was insufficient to establish that her diagnosed left shoulder condition was causally related
to the accepted September 5, 2018 employment incident.
On June 24, 2019 appellant, through counsel, appealed to the Board. By decision dated
January 28, 2020, the Board affirmed OWCP’s May 24, 2019 decision.4
On March 2, 2020 appellant requested an oral hearing before a hearing representative of
OWCP’s Branch of Hearings and Review. By decision dated July 10, 2020, OWCP denied her
hearing request.
On August 7, 2020 appellant, through counsel, requested reconsideration of the January 28,
2020 decision.
In a July 15, 2020 narrative report, Dr. Cecil M. Farrington, a family medicine specialist,
treated appellant for left shoulder pain due to a work-related injury. He related that a patient at
appellant’s work constantly pulled and grabbed her arm when she tried to perform her work duties,
resulting in worsening pain and decrease in her ability to use her arm. Dr. Farrington reviewed
the September 28, 2018 MRI scan of appellant’s left shoulder, which revealed partial-thickness
tearing of the ventral supraspinatus tendon, and indicated that she underwent left shoulder surgery
on November 14,2018. He noted that she continued to have periodic episodes of pain and
decreased range of motion in her left shoulder as a result of the injury and subsequent surgery,
despite being asymptomatic prior to the work incident.
By decision dated September 16, 2020, OWCP denied modification of the January 28,
2020 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable

4

Id.

5

Supra note 2.

3

time limitation period of FECA,6 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.7 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.8
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.9 There are 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.10
The second component is whether the employment incident caused a personal injury.11
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.12 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a
complete factual and medical background.13 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 incident.14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted September 5, 2018 employment incident.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s May 24, 2019 merit decision because the

6

S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
7

T.H., Docket No. 18-1736 (issued March 13, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C.,
59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
8

T.E., Docket No. 18-1595 (issued March 13, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M.,
Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
9

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388, 393-94 (2008).

10

E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

11

E.M., id.; John J. Carlone, 41 ECAB 354 (1989).

12

S.S., supra note 8; Robert G. Morris, 48 ECAB 238 (1996).

13

C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

14

Id.

4

Board considered that evidence in its January 28, 2020 decision. Findings made in prior Board
decisions are res judicata absent further review by OWCP under section 8128 of FECA.15
Dr. Farrington, in his July 15, 2020 narrative report, reviewed the September 28, 2018 MRI
scan of appellant’s left shoulder and indicated that appellant underwent left shoulder surgery on
November 14, 2018. He noted that appellant was asymptomatic prior to the work incident and
opined that appellant experienced periodic episodes of pain and decreased range of motion in her
left shoulder as a result of her work-related injury and the subsequent surgery. The Board has held
that an opinion that a condition is causally related to an employment injury because the employee
was asymptomatic before the injury is insufficient, without supporting rationale, to support causal
relationship.16 Moreover, Dr. Farrington failed to explain, with rationale, how the accepted
employment incident either caused or contributed to appellant’s left shoulder condition. The
Board has held that a medical opinion should reflect a correct history and offer a medically-sound
and rationalized explanation by the physician of how the specific employment incident
physiologically caused or aggravated the diagnosed conditions.17 Thus, the Board finds that this
report from Dr. Farrington is insufficient to establish causal relationship.
As appellant has not submitted rationalized medical evidence establishing causal
relationship between her diagnosed left shoulder condition and the September 5, 2018 accepted
employment incident, the Board finds that she has not met her burden of proof to establish her
claim.
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 left shoulder
condition causally related to the accepted September 5, 2018 employment incident.

15

See P.B., Docket No. 20-0124 (issued March 10, 2021); I.S., Docket No. 19-1461 (issued April 30, 2020).

16

A.R., Docket No. 19-0465 (issued August 10, 2020); J.F., Docket No. 19-1694 (issued March 18, 2020); Kimper
Lee, 45 ECAB 565 (1994).
17

J.D., Docket No. 19-1953 (issued January 11, 2021); see K.W., Docket No. 19-1906 (issued April 1, 2020).

5

ORDER
IT IS HEREBY ORDERED THAT the September 16, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 23, 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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 14-176
Issued: March 21, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 28, 2013 appellant filed a timely appeal of an August 1, 2013 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying her traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
sustained a left knee injury on August 25, 2012 in the performance of duty.
FACTUAL HISTORY
On August 28, 2012 appellant, then a 50-year-old mail carrier, filed a traumatic injury
claim alleging that she twisted her left knee when walking on uneven grass while in the
performance of duty on August 25, 2012.
1

5 U.S.C. § 8101 et seq.

On August 27, 2012 Dr. Philip C. Hoversten, a physician Board-certified in occupational
medicine, noted appellant’s history of injury and left medial knee pain. He diagnosed a
unspecified injury of the knee, leg, ankle and foot. Dr. Margo H. Hutchison, a Board-certified
family practitioner, examined appellant on September 4, 2012 and diagnosed knee pain as the
result of twisting her left knee in the performance of duty. On September 21, 2012 she
diagnosed medial knee pain. In a note dated October 16, 2012, Dr. Hutchison diagnosed knee
pain and stated that she suspected patellofemoral syndrome or a small meniscus tear.
Dr. Hoversten examined appellant on October 29, 2012 and diagnosed medial knee pain and
chondromalacia of the left patella.
In a letter dated November 20, 2012, OWCP noted that appellant’s claim had been
administratively approved for a limited amount of medical expenses and that she now needed to
provide additional factual and medical evidence in support of her claim. It allowed appellant 30
days to respond.
Dr. Hutchison completed a report dated November 14, 2012 and stated that a left knee
magnetic resonance imaging (MRI) scan demonstrated mild to moderate patellar chondromalacia
an effusion with a Baker’s cyst. She noted that appellant twisted her left knee while lifting and
walking at work. Appellant underwent an MRI scan of her left knee on October 24, 2012 which
demonstrated trace joint effusion with a tiny Baker’s cyst and mild to moderate patellar
chondromalacia.
By decision dated January 2, 2013, OWCP denied appellant’s claim finding that she had
not established the factual component of her claim, that the injury occurred at the time, place and
in the manner alleged. It further found that appellant did not submit the necessary medical
opinion evidence to establish that a diagnosed medical condition was causally related to her work
event.
Appellant requested an oral hearing on January 14, 2013 before an OWCP hearing
representative. Dr. Paul Havel, a Board-certified orthopedic surgeon, completed a form report
on October 16, 2012 and diagnosed knee pain, patellofemoral syndrome or meniscal tear. He
stated that appellant twisted her knee while getting into her truck from the curb and indicated
with a checkmark “yes” that the condition was caused or aggravated by an employment activity.
Appellant testified at the oral hearing on May 8, 2013. She stated that she sustained a left
knee injury on August 25, 2012. Appellant stated that she was retrieving mail from the curbside
of her truck and twisted her knee walking on lumpy grass.
Dr. Hutchison completed a note on May 14, 2013 and diagnosed medial knee pain and
chondromalacia of the left patella. She indicated that appellant had a work-related injury. In a
separate note dated May 14, 2013, Dr. Hutchison stated that appellant’s injury occurred while at
work on August 25, 2012 and that she twisted her knee and felt pain in her left medial knee. She
stated, “My current medical opinion is that the twist of her left knee resulted in the left knee pain
that she has continued to have.”
By decision dated August 1, 2013 and finalized August 2, 2013, the hearing
representative found that appellant had established that the incident occurred as alleged on

2

August 25, 2012 but that she failed to submit the necessary medical opinion evidence to establish
a causal relationship between her August 25, 2012 employment incident and her diagnosed
condition of chondromalacia patella.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.3 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.4
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”5 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First 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.6 Second, the employee must submit
sufficient evidence, generally only in the form a medical evidence, to establish that the
employment incident caused a personal injury.7 A medical report is of limited probative value
on a given medical question if it is unsupported by medical rationale.8 Medical rationale
includes a physician’s well-reasoned opinion on the issue of whether there is a causal
relationship between the claimant’s diagnosed condition and the implicated employment activity.
The opinion of the physician must be based on a complete factual and medical background of the
claim, 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 activity or factors identified by the claimant.9

2

5 U.S.C. §§ 8101-8193.

3

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

20 C.F.R. § 10.5(ee).

6

John J. Carlone, 41 ECAB 354 (1989).

7

J.Z., 58 ECAB 529 (2007).

8

T.F., 58 ECAB 128 (2006).

9

A.D., 58 ECAB 149 (2006).

3

ANALYSIS
Appellant filed a traumatic injury claim alleging that she injured her left knee in the
performance of duty on August 25, 2012. The hearing representative accepted that the injury
occurred at the time, place and in the manner alleged. The hearing representative found that
appellant had not submitted sufficient medical opinion evidence to establish a causal relationship
between her diagnosed condition and her employment injury.
Appellant has submitted a series of reports from Dr. Hutchison who first examined
appellant on September 4, 2012 and diagnosed knee pain as a result of twisting her left knee in
the performance of duty. Dr. Hutchison continued to provide a diagnosis of knee pain through
October 16, 2012. The Board has held that the mere diagnosis of “pain” does not constitute the
basis for payment of compensation.10 The Board has held that pain is a symptom and not a
condition. In order to establish her traumatic injury claim, appellant must submit medical
evidence explaining the causal relationship between her employment event on August 25, 2012
and medical condition such as chondromalacia patella.
Dr. Hutchison completed a note on May 14, 2013 and diagnosed medial knee pain and
chondromalacia of the left patella and indicated that appellant had a work-related injury. In a
separate note dated May 14, 2013, she stated that appellant’s injury occurred while at work on
August 25, 2012 and that she twisted her knee and felt pain in her left medial knee.
Dr. Hutchison stated, “My current medical opinion is that the twist of her left knee resulted in the
left knee pain that she has continued to have.” While she supports a causal relationship between
appellant’s employment incident and her knee pain, she did not opine and explain how the
employment incident of twisting her left knee caused or aggravated the diagnosed condition of
chondromalacia of the left patella. Without medical opinion evidence relating the condition of
chondromalacia of the patella rather than merely the symptom of medial knee pain to appellant’s
employment twisting incident on August 25, 2012 these reports are not sufficient to meet
appellant’s burden of proof.
Dr. Havel completed a form report on October 16, 2012 and diagnosed knee pain,
patellofemoral syndrome or meniscal tear. He described appellant’s employment incident of
twisting her knee. Dr. Havel indicated with a checkmark “yes” that the conditions of knee pain,
patellofemoral syndrome or meniscal tear were caused or aggravated by an employment activity.
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 condition was related
to the history given is of little probative value. Without any explanation or rationale for the
conclusion reached, such report is insufficient to establish causal relationship.11 Dr. Havel did not
provide a clear diagnosis. He diagnosed knee pain, which is a symptom not a condition, and
suggested in the alternative patellofemoral syndrome or meniscal tear. Furthermore, he failed to
provide a written opinion in support of his conclusion that appellant’s condition was employment
related. Without a clear diagnosis and supportive medical reasoning explaining why and how
10

Robert Broome, 55 ECAB 339 (2004).

11

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

4

appellant’s diagnosed condition resulted from her employment injury, this report is not sufficient to
meet appellant’s burden of proof.
CONCLUSION
The Board finds that appellant has not submitted sufficient medical opinion evidence to
establish a causal relationship between her accepted August 25, 2012 employment incident and
her diagnosed condition. Appellant has therefore failed to meet her burden of proof.
ORDER
IT IS HEREBY ORDERED THAT the August 1, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 21, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5