United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Jacksonville, FL, Employer
__________________________________________

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

Docket No. 07-26
Issued: March 7, 2007

Case Submitted on the Record

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

JURISDICTION
On October 2, 2006 appellant filed a timely appeal from a November 23, 2005 decision
of the Office of Workers’ Compensation Programs denying his occupational disease claim for
wrist conditions and a May 30, 2006 decision affirming the denial. Pursuant to 20 C.F.R.
§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established that he sustained bilateral carpal tunnel
syndrome, bilateral cubital tunnel syndrome and cervical radiculopathy in the performance of
duty.
FACTUAL HISTORY
On March 24, 2004 appellant, then a 57-year-old claims examiner, filed an occupational
disease claim (Form CA-2), for cervical radiculopathy and bilateral cubital and carpal tunnel
syndromes sustained on or before October 21, 2002. He attributed these conditions to using a

computer and automated imaging system at work for eight hours a day, five days a week. On
September 13, 2003 appellant was in a nonoccupational motor vehicle accident and sustained a
cervical vertebral fracture and cervical and lumbar disc herniations. He returned to work part
time in October 2003, stopped work on February 2, 2004 and did not return.
In an April 7, 2004 letter, the Office advised appellant of the additional evidence needed
to establish his claim. The Office requested a complete description of causative work factors and
rationalized medical opinion from his physician explaining the causal relationship between those
factors and the claimed conditions.
Appellant submitted chart notes from Dr. Bruce Steinberg, an attending Board-certified
orthopedic surgeon, from October 21 to November 18, 2002. Dr. Steinberg noted his complaints
of numbness and tingling in both hands and wrists. He diagnosed bilateral carpal tunnel
syndrome, early bilateral cubital tunnel syndrome, “[p]ossible radiculopathy secondary to nerve
root impingement” and right shoulder bursitis.
In a January 27, 2003 report, Dr. Michael S. Scharf, an attending Board-certified
orthopedic surgeon, noted appellant’s history of bilateral hand and wrist paresthesias. He stated
that appellant worked “as a claim examiner and work[ed] on a computer a lot.” Dr. Scharf noted
that magnetic resonance imaging scans showing multilevel disc degeneration in the cervical
spine with foraminal stenosis at C4-5. He diagnosed cervical spondylosis and prescribed home
traction.
In a February 18, 2004 report, Dr. M.W. Kilgore, an attending Board-certified
psychiatrist and neurologist, noted treating appellant for injuries sustained in the September 13,
2003 motor vehicle accident. He noted herniated discs at C3-4 and C4-5, herniated lumbar discs
and a C5-6 endplate fracture. Dr. Kilgore opined that the accident caused chronic neck and back
pain, disabling appellant from work.1
In a March 24, 2004 letter, Debra Harvey, appellant’s supervisor, stated that appellant did
not complain of neck or upper extremity symptoms until after the September 13, 2003
nonoccupational motor vehicle accident.
By decision dated May 26, 2004, the Office denied appellant’s claim on the grounds that
he failed to substantiate the alleged work factors as factual. The Office further found that he
1

Appellant submitted diagnostic test results. January 16, 2002 cervical x-rays showed degenerative changes from
C4 through 7. A January 22, 2002 cervical MRI scan showed degenerative changes at C4-6 and a posterior spur at
C5-6. A January 29, 2002 electromyogram (EMG) of the upper extremities was “suggestive of bilateral mild
chronic C5-6 poly-radiculopathy” without evidence of entrapment neuropathy. Appellant also submitted a
February 19, 2004 report from Dr. David E. Kemp, a chiropractor. As Dr. Kemp did not diagnose a spinal
subluxation by x-ray, he is not considered a physician for the purposes of this case and his opinion carries no
medical weight. Section 8101(2) of the Federal Employees’ Compensation Act defines a physician as surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by stated law. Section 8101(3) of the Act, which defines services and supplies, limits
reimbursable chiropractic services to treatment consisting of manual manipulation of the spine to correct a
subluxation as demonstrated by x-ray to exist and subject to regulation by the Secretary. 5 U.S.C. § 8101(3). See
Thomas W. Stevens, 50 ECAB 288 (1999); George E. Williams, 44 ECAB 530 (1993).

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submitted insufficient rationalized medical evidence supporting a causal relationship between
work factors and the claimed conditions.
Appellant requested an oral hearing, held on January 25, 2005. He submitted an
August 7, 2004 letter from a coworker confirming his use of a computerized imaging system at
work for several hours a day over a period of years. Appellant also submitted a February 21,
2005 report from Dr. Michelle Aquino-Caballero, an attending Board-certified internist, opining
that there “definitely [was] a relationship” between appellant’s bilateral carpal tunnel syndrome
and using a computer at work.
By decision dated April 5, 2005, the Office hearing representative set aside the May 26,
2004 decision. He found that appellant established using a computer at work from 2000 to 2004.
The hearing representative further found that the medical evidence was sufficient to require
additional development and remanded the case for referral to a second opinion examiner.
On April 29, 2005 the Office referred appellant to Dr. Steven Lancaster, a Board-certified
orthopedic surgeon, for a second opinion examination. A statement of accepted facts and the
medical record were provided for his review. Dr. Lancaster submitted a May 18, 2005 report
noting that appellant’s claim had been accepted for cervical radiculopathy, bilateral carpal tunnel
syndrome and bilateral cubital tunnel syndrome. On examination, he observed bilaterally
positive Tinel’s and Phalen’s signs. Dr. Lancaster noted a September 2003 motor vehicle
accident in which appellant sustained an unspecified fracture of the cervical spine.
The Office requested that Dr. Lancaster submit a supplemental report clarifying his
opinion on causal relationship. Dr. Lancaster submitted an August 5, 2005 supplemental report
opining that appellant could have a compression neuropathy even though a July 12, 2005 EMG
of both upper extremities was normal.
The Office determined that Dr. Lancaster’s supplemental report was not responsive to the
questions posed and that his opinion was defective as it was not based on the medical record. On
August 25, 2005 the Office referred appellant to Dr. D. Barry Lotman, a Board-certified
orthopedic surgeon, for a second opinion examination. A statement of accepted facts was
provided for his review. In a September 27, 2005 report, Dr. Lotman noted reviewing the
statement of accepted facts, but that “no other medical records [were] submitted for [his]
review.” On examination, Dr. Lotman found a mildly limited range of cervical motion, a
positive Tinel’s sign in the left wrist and a positive neurologic sign over Guyon’s canal in the
right wrist. He also noted a nonanatomic loss of vibratory sense in the upper extremities.
Dr. Lotman diagnosed cervical spondylosis, possible bilateral carpal tunnel syndrome and
symptom magnification. He opined that appellant’s “deskwork” aggravated the cervical
spondylosis. Dr. Lotman noted that appellant’s cervical condition had returned to baseline
following the September 2003 motor vehicle accident.
In an October 28, 2005 letter, Dr. Lotman advised that appellant brought no medical
records to the second opinion examination. He noted reviewing the statement of accepted facts,
Dr. Lancaster’s August 5, 2005 report, a July 2005 EMG report and unspecified medical records.

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By decision dated November 3, 2005, the Office accepted an aggravation of cervical
spondylosis but denied appellant’s claim for cervical radiculopathy and bilateral carpal and
cubital tunnel syndromes. The Office found that the medical evidence was insufficient to
establish a causal relationship between work factors and the claimed wrist conditions or cervical
radiculopathy. The Office accorded the weight of the medical opinion to Dr. Lotman,
Appellant requested a telephonic hearing, held on March 9, 2006. At the hearing,
appellant contended that Dr. Lotman performed only a cursory physical examination and refused
to review medical records he brought to the examination.
By decision dated and finalized May 30, 2006, the Office hearing representative affirmed
the November 23, 2005 decision, finding that the medical record was insufficient to establish a
causal relationship between work factors and the claimed cubital and carpal tunnel syndromes.
He found that Dr. Lotman’s opinion represented the weight of the medical evidence. The
hearing representative noted Dr. Lotman’s October 28, 2005 addendum stating that appellant did
not bring any additional records with him to the examination.
LEGAL PRECEDENT
An employee seeking benefits under the Act2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of the Act; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

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nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
ANALYSIS
Appellant alleged that he developed bilateral carpal tunnel syndrome, bilateral cubital
tunnel syndrome and cervical radiculopathy as a result of using a computer and imaging system
at work. The Office accepted the claim for an aggravation of cervical spondylosis but denied the
other claimed conditions on the grounds that the medical evidence was insufficient to establish
that they were causally related to his employment.
The Office accorded the weight of the medical evidence to Dr. Lotman, a Board-certified
orthopedic surgeon and second opinion physician. In its May 30, 2006 decision, the Office
found that Dr. Lotman’s report was based on a complete and accurate medical history. However,
the record demonstrates otherwise. In his September 27, 2005 report, Dr. Lotman stated that no
medical records other than the statement of accepted facts were provided for his review.
Appellant asserted that he brought some records with him to the examination but Dr. Lotman
refused to review them. Dr. Lotman noted in an October 28, 2005 letter that he reviewed a
July 2005 EMG report, Dr. Lancaster’s August 5, 2005 report and other unspecified records. He
denied that appellant brought these records to the examination. Dr. Lotman stated in his
September 27, 2005 report that the Office did not provide him with the medical record. His
reports are unclear as to whether he had all the medical evidence of record for his review. The
Board has held that reports based on an incomplete or inaccurate medical history are of
diminished probative value.6
The Board finds that Dr. Lotman’s opinion requires clarification. On remand of the case,
the Office should provide him with an updated statement of accepted facts and a complete copy
of the medical record. The Office shall request that Dr. Lotman submit a comprehensive report,
based on his clinical findings and the medical record, explaining any causal relationship between
work factors and the claimed conditions of bilateral carpal tunnel syndrome, bilateral cubital
tunnel syndrome and cervical radiculopathy. The Office shall then issue an appropriate decision
in the case. Should Dr. Lotman not be available to provide such a report, the Office should
develop the medical evidence as needed for a proper adjudication of the claim.
CONCLUSION
The Board finds that the case is not in posture for a decision. The case will be remanded
for additional medical development.

5

Solomon Polen, 51 ECAB 341 (2000).

6

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

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 30, 2006 and November 23, 2005 are set aside and the case
remanded for further development consistent with this opinion.
Issued: March 7, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.K., Appellant
and
DEPARTMENT OF THE NAVY, DEFENSE
LOGISTICS AGENCY, PUGET SOUND
NAVAL SHIPYARD, Bremerton, WA, Employer
__________________________________________

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

Docket No. 19-0074
Issued: May 15, 2019

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 October 12, 2018 appellant filed a timely appeal from a September 19, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish binaural hearing
loss causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On July 11, 2017 appellant, then a 56-year-old retired supply management training
specialist, filed an occupational disease claim (Form CA-2) alleging that he sustained binaural
1

5 U.S.C. § 8101 et seq.

hearing loss due to factors of his federal employment. He indicated that he first became aware of
his condition, and its relationship to his federal employment on May 1, 2015. On the reverse side
of the claim form, the employing establishment noted that appellant first received medical care on
October 4, 2016 from federal employment on November 12, 2016 and first reported his condition
to his former supervisor on June 30, 2017.
In a federal occupational hearing loss claim form dated June 30, 2017, appellant related
that he had a history of tinnitus. He attached a summary of his employment history.
In a development letter dated July 21, 2017, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence needed and provided a
questionnaire for his completion. In a separate letter of even date, OWCP requested information
from the employing establishment relevant to appellant’s hearing loss claim, including all
audiograms. It afforded both parties 30 days to respond.
In a completed development questionnaire dated July 31, 2017, appellant indicated that he
had not previously filed a claim for hearing loss and did not have hobbies involving exposure to
loud noises.
In a letter dated August 21, 2017, the employing establishment controverted appellant’s
claim. It indicated that he began employment on May 17, 2015, but he was employed in a
sedentary desk position capacity. The employing establishment noted that appellant was exposed
to years of loud noises while sandblasting during his employment at the Naval Shipyard, which
was his place of employment prior to May 17, 2015.
By decision dated October 20, 2017, OWCP denied appellant’s hearing loss claim finding
that the evidence of record was insufficient to establish the factual component of his claim.
Specifically, it noted that the record contained a conflicting factual history concerning his work
activities on or about May 2015.
On April 27, 2018 appellant requested reconsideration of OWCP’s October 20, 2017
decision. He submitted additional evidence.
In a statement dated April 17, 2018, appellant related that he was exposed to noise two to
three hours per day from 1993 to 2016 when he was employed by both the Puget Sound Naval
Shipyard and Defense Logistics Agency.
On July 12, 2018 OWCP referred appellant, together with a statement of accepted facts
which summarized appellant’s exposure to hazardous noise, to Dr. Edward Treyve, a Boardcertified otolaryngologist, for a second opinion evaluation to determine whether appellant
sustained employment-related hearing loss.
In a report dated September 4, 2018, Dr. Treyve noted appellant’s history and complaints,
and provided audiometric test results. The audiogram performed on Dr. Treyve’s behalf by Rachel
Shannon, an audiologist, reflected testing at frequency levels of 500, 1,000, 2,000, and 3,000 hertz
(Hz) which revealed the following: right ear 15, 10, 5, and 10 decibels (dBs), respectively, left ear
25, 15, 25, and 30 dBs, respectively. Dr. Treyve indicated that the audiogram revealed normal
hearing on the right with a mild-to-severe downsloping sensorineural loss on the left. He
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diagnosed “unilateral sensorineural hearing loss” involving the left ear. Dr. Treyve related that
while appellant worked in a noisy environment for several years, there was no evidence of hearing
loss in the right ear and he had a severe high-frequency hearing loss in the left ear. Furthermore,
he noted that occupational noise exposure was almost always bilateral and symmetric, and as such,
he did not believe that the hearing loss in appellant’s left ear was related to occupational noise
exposure. Dr. Treyve opined that the hearing loss in the left ear was related to viral causes or
possibly a retrocochlear lesion.
By decision dated September 19, 2018, OWCP affirmed the October 20, 2017 decision, as
modified. It found that the evidence presented was sufficient to satisfy that appellant sustained
hearing loss in his left ear. However the evidence of record was insufficient to establish that
appellant’s hearing loss was caused by noise exposure during his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 and that an injury was sustained in the performance of duty as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.4 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To establish that, an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.6
Neither the condition becoming apparent during a period of employment, nor the belief of
the employee that the hearing loss was causally related to noise exposure in federal employment,

2

Id.

3

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).
4

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).
5

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).
6

Supra note 4.

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is sufficient to establish causal relationship.7 The medical evidence required to establish causal
relationship is rationalized medical opinion evidence.8 Rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized opinion on the issue of whether there
is causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical background
of the claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish binaural hearing
loss causally related to the accepted factors of his federal employment.
Appellant has not submitted medical evidence which provides an opinion regarding the
cause of his alleged binaural sensorineural hearing loss. However, OWCP referred appellant to
Dr. Treyye for a second opinion evaluation regarding appellant’s hearing loss claim. He concluded
that appellant did not have sensorineural hearing loss due to his federal employment. In a report
dated September 4, 2018, Dr. Treyve related appellant examination findings, reviewed the
statement of accepted facts, and diagnosed unilateral sensorineural hearing loss involving the left
ear. He noted that occupational noise exposure was almost always bilateral and symmetric, and
opined that the hearing loss in appellant’s left ear was not related to occupational noise, but rather
was related to viral causes or possibly a retrocochlear lesion.
The Board finds that Dr. Treyve’s September 4, 2018 report represents the weight of the
medical evidence and establishes that appellant’s sensorineural hearing loss was not due to
exposure to noise in the workplace.10 Dr. Treyve’s opinion is based on a proper factual and
medical history as he reviewed current audiometric test results and related his findings on
examination and testing in support of his opinion that appellant’s hearing loss was not due to the
exposure to noise in his federal employment.11
The Board thus finds that the medical evidence of record is insufficient to establish that he
had sensorineural hearing loss causally related to the accepted factors of his federal employment.
Appellant has not met his burden of proof.12

7

C.C., Docket No. 18-1229 (issued March 8, 2019).

8

M.B., Docket No. 17-1999 (issued November 13, 2018).

9

M.L., Docket No. 18-1605 (issued February 26, 2019).

10

R.B., Docket No. 18-0720 (issued November 13, 2018); see R.J., Docket No. 11-1644 (issued February 14, 2012);
J.L., Docket No. 07-1740 (issued December 20, 2007).
11

R.B., id.; see T.T., Docket No. 17-0471 (issued August 8, 2017).

12

J.B., Docket No. 17-0984 (issued July 11, 2018); Mary E. Marshall, 56 ECAB 420, 427 (2005).

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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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish binaural hearing
loss causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the September 19, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 15, 2019
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, PALM DESERT POST
OFFICE, Palm Desert, CA, Employer
__________________________________________

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

Docket No. 19-1893
Issued: April 17, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 12, 2019 appellant filed a timely appeal from a July 9, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from OWCP’s last merit decision, dated February 28, 2019, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant abandoned her request for
an oral hearing before an OWCP hearing representative.
FACTUAL HISTORY
On January 12, 2019 appellant, then a 35-year-old retail clerk, filed a traumatic injury claim
(Form CA-1) alleging that on July 5, 2017 she sustained an injury when she tripped and fell on her
left side after her pant leg was caught by equipment while in the performance of duty. She did not
stop work.

In a July 5, 2017 authorization for examination and/or treatment (Form CA-16), the
employing establishing authorized appellant to seek medical care at an urgent care facility.
In an undated medical report, Carol E. Engel, a nurse practitioner, noted that appellant was
seen in urgent care on July 5, 2017. Appellant reported tripping on a cage at work and falling on
her left leg and thigh. She complained of left hip and lower back pain. Ms. Engel diagnosed left
hip contusion and lower back pain. In a work progress and status report of even date, she again
provided diagnoses of left hip contusion and lower back pain and released appellant to work
without restrictions on July 6, 2017. In a July 13, 2017 work progress and status report, Ms. Engel
cleared appellant to return to work that same day without restrictions.
In a statement dated December 16, 2018, appellant indicated that she fell at work on July 5,
2017 in the mail hold section. She explained that she was retrieving mail for a customer when her
pant leg got caught on a cage that was located in an aisle, causing her to fall on her left side.
Appellant immediately reported the incident and was sent to urgent care. She asserted that, while
she had been treating? with her doctor for a while, the pain and discomfort had not gone away and
needed further medical attention.
In a January 14, 2019 letter, the employing establishment controverted appellant’s claim.
In a January 28, 2019 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish her claim. It advised her of the type of medical evidence needed
including a valid medical diagnosis from a qualified physician. OWCP afforded appellant 30 days
to submit appropriate medical evidence. No further evidence was received.
By decision dated February 28, 2019, OWCP found that the medical evidence of record
was insufficient to establish a diagnosis in connection with the accepted July 5, 2017 employment
incident, noting that a nurse practitioner is not considered a qualified physician. Thus, it found
that the requirements had not been met to establish an injury as defined by FECA.
On March 27, 2019 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. OWCP also received additional medical evidence, including a
progress note signed by Ms. Engel, dated July 5, 2017, noting that appellant complained of low
back pain and left hip pain following a fall that day. Appellant underwent x-rays of the pelvis, left
hip, and lumbar spine, which revealed no significant abnormalities.
In a May 15, 2019 letter, OWCP’s hearing representative notified appellant that a
telephonic hearing was scheduled for Monday, June 24, 2019 at 3:15 p.m. Eastern Standard Time
(EST). The notice included a toll-free number to call and provided the appropriate passcode.
OWCP’s hearing representative mailed the notice to appellant’s last known address of record.
Appellant did not make an appearance.
By decision dated July 9, 2019, OWCP’s hearing representative determined that appellant
had abandoned her request for an oral hearing. The hearing representative indicated that appellant
received a 30-day advance written notice of the hearing scheduled for June 24, 2019, and that she
failed to appear. OWCP’s hearing representative further noted that there was no indication in the
record that appellant contacted OWCP prior to the scheduled hearing to request a postponement

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or provide an explanation to OWCP for her failure to appear at the hearing within 10 days of the
scheduled hearing.
LEGAL PRECEDENT
A claimant who has received a final adverse decision by OWCP may obtain a hearing by
writing to the address specified in the decision within 30 days of the date of the decision for which
a hearing is sought. 1 Unless otherwise directed in writing by the claimant, OWCP’s hearing
representative will mail a notice of the time and place of the hearing to the claimant and any
representative at least 30 days before the scheduled date. 2 OWCP has the burden of proving that
it was properly mailed to a claimant and any representative of record a notice of a scheduled
hearing.3
A claimant who fails to appear at a scheduled hearing may request in writing, within 10
days after the date set for the hearing, that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference. 4
The failure of the claimant to request another hearing within 10 days, or the failure of the claimant
to appear at the second scheduled hearing without good cause shown, shall constitute abandonment
of the request for a hearing. 5
ANALYSIS
The Board finds that OWCP properly determined that appellant abandoned her request for
an oral hearing before an OWCP hearing representative.
Following OWCP’s February 28, 2019 decision, appellant filed a timely request for an oral
hearing before a representative of OWCP’s Branch of Hearings and Review. In a May 15, 2019
letter, OWCP’s hearing representative notified her that OWCP’s Branch of Hearings and Review
had scheduled a telephonic hearing for June 24, 2019 at 3:15 p.m. EST. The hearing representative
properly mailed the hearing notice to appellant’s last known address of record6 and provided
instructions on how to participate. Appellant failed to call in for the scheduled hearing using the
provided telephone number and passcode. She did not request a postponement or provide an
1

20 C.F.R. § 10.616(a).

2

Id. at § 10.617(b).

3

A.R., Docket No. 19-1691 (issued February 24, 2020); M.R., Docket No. 18-1643 (issued March 1, 2019);
Michelle R. Littlejohn, 42 ECAB 463(1991).
4

Supra note 1 at § 10.622(f).

5

20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written
Record, Chapter 2.1601.6(g) (October 2011); see also A.J., Docket No. 18-0830 (issued January 10, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018).
6

Absent evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business is
presumed to have been received. This is called the mailbox rule. See C.Y., Docket No. 18-0263 (issued
September 14, 2018). Appellant did not submit evidence of nondelivery of OWCP’s May 15, 2019 hearing notice
such that the presumption of receipt would be rebutted.

3

explanation to OWCP for her failure to attend the hearing within 10 days of the scheduled hearing. 7
The Board thus finds that OWCP properly determined that appellant abandoned her request for a
telephonic hearing.8
On appeal appellant asserted that she was unable to participate in the June 24, 2019
telephonic hearing because the hearing time conflicted with her work schedule. As noted above,
she received proper notice of the scheduled hearing and did not timely request a postponement of
the hearing or provide the basis for her failure to participate as was required. Thus, the Board finds
that appellant abandoned her request for an oral hearing.
CONCLUSION
The Board finds that OWCP properly determined that appellant abandoned her request for
an oral hearing before an OWCP hearing representative. 9

7

E.S., Docket No. 19-0567 (issued August 5, 2019).

8

A.J., supra note 5.

9

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).

4

ORDER
IT IS HEREBY ORDERED THAT the July 9, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 17, 2020
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Macon, GA, Employer
__________________________________________

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

Docket No. 14-481
Issued: August 14, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 31, 2013 appellant filed a timely appeal from an October 22, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her occupational
disease claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained right carpal tunnel syndrome
causally related to the accepted cervical spine and right upper extremity conditions.
On appeal, appellant asserts that new medical evidence submitted on appeal establishes
that she sustained bilateral carpal tunnel syndrome due to accepted cervical spine and right
shoulder injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on January 2, 2008 appellant, then a 57-year-old accountable paper
supervisor, sustained a right shoulder sprain, right rotator cuff sprain, right rotator cuff tear and
other “affections of shoulder region, not otherwise classified” when she pulled her right shoulder
while lifting a box.2 On March 3, 2008 Dr. Lyle A. Norwood, an attending Board-certified
orthopedic surgeon, performed an arthroscopic repair of the right rotator cuff, approved by
OWCP. Following a course of physical therapy, he released appellant to light duty as of
July 21, 2008. Appellant returned to work on September 29, 2008 in a limited-duty position.3
A December 15, 2008 impairment rating by Dr. John W. Ellis, a physician Boardcertified in occupational medicine and family practice, consulting to appellant’s attorney, noted
negative Finkelstein’s, Tinel’s and Phalen’s signs at the right wrist and no impairment of the
right median nerve at the wrist.
August 27, 2009 electromyography (EMG) and nerve conduction velocity (NCV) studies
showed very mild median nerve neuropathy at the wrists, bilaterally without evidence of cervical
radiculopathy.
In an August 10, 2009 letter, Dr. George Stefanis, an attending Board-certified
neurosurgeon, opined that appellant sustained C5-6 and C6-7 disc herniations in the January 2,
2008 incident, causing radiculopathy into the right upper extremity. On January 7, 2010 OWCP
expanded the claim to include C6-7 cervical disc displacement and cervical spondylosis.
Dr. Stefanis performed an anterior discectomy, fusion and fixation at C5-6 and C6-7 on
March 18, 2011, authorized by OWCP.4 Appellant returned to work in a modified-duty position
on July 2, 2012.5
On July 19, 2012 Dr. Stefanis prescribed bilateral cock-up wrist splints. In September 10
and November 13, 2012 reports, he diagnosed carpal tunnel syndrome with complaints of
paresthesias in both hands.
2

By decision dated April 13, 2009 and revised June 9, 2009, OWCP granted appellant a schedule award for a 16
percent impairment of the right upper extremity due to impairment of the right shoulder.
3

By decision dated May 27, 2009, OWCP found that appellant’s actual earnings as a modified supervisor
properly represented her wage-earning capacity. As appellant’s actual earnings equaled those of her date-of-injury
position, she was found to have no loss of wage-earning capacity.
4

On August 24, 2011 OWCP obtained a second opinion from Dr. Jonathan Liss, a Board-certified neurologist,
who found appellant able to perform full-time light-duty work. It then found a conflict between Dr. Liss and
appellant’s attending physicians regarding her work capacity. Dr. Kenneth Lazarus, a Board-certified neurologist
and impartial medical specialist, opined on March 6, 2012 that the cervical disc herniations did not require further
medical treatment. On June 6, 2012 OWCP issued a notice of proposed termination of medical benefits for the
cervical disc herniation. It does not appear from the record that OWCP finalized the June 6, 2012 notice.
5

By decision dated September 28, 2012, OWCP found that appellant’s actual earnings as a modified supervisor
properly represented her wage-earning capacity. It found that appellant had no loss of wage-earning capacity as
appellant’s salary equaled that of her date-of-injury position. Following a review of the written record, an OWCP
hearing representative affirmed the September 28, 2012 decision on April 18, 2013.

2

In a January 29, 2013 report, Dr. Stefanis found that appellant had reached maximum
medical improvement. He opined that appellant could continue her modified-duty job.
On February 9, 2013 appellant requested that OWCP expand the claim to include carpal
tunnel syndrome, based on the August 27, 2009 electrodiagnostic testing. She submitted a
February 15, 2013 report from Dr. Norman Donati, Jr., an attending Board-certified orthopedic
surgeon, diagnosed degenerative lumbar disc disease and bilateral carpal tunnel syndrome, left
greater than right.
In a March 4, 2013 letter, OWCP advised appellant of the evidence needed to establish
her claim. It requested a report from her attending physician explaining how and why the
accepted conditions would cause carpal tunnel syndrome. Appellant was afforded 30 days to
submit additional evidence.
By decision dated April 11, 2013, OWCP denied appellant’s claim for carpal tunnel
syndrome on the grounds that causal relationship was not established. It found that Dr. Donati
and Dr. Stefanis did not adequately explain how or why the accepted conditions or their sequelae
would cause or aggravate carpal tunnel syndrome.
In a May 9, 2013 letter, appellant requested a hearing, later changed to a request for a
review of the written record.
In an April 26, 2013 report, Dr. Stefanis opined that according to Proposed Table 1:
Spinal Nerve Impairment of the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment, appellant had a zero percent impairment as she had no
sensory or motor deficit in the C5 spinal nerve distribution. On a June 11, 2013 report, he again
opined that appellant had a zero percent permanent impairment and could continue working in
her modified-duty job.
In a September 9, 2013 report, Dr. Norwood, diagnosed possible carpal tunnel based on
appellant’s complaints of weakness and clumsiness of the right hand. He recommended
electrodiagnostic testing. A September 24, 2013 electrodiagnostic study of the right upper
extremity demonstrated C6-7 nerve root compression and a “very mild” right median nerve
entrapment at the wrist.
By decision dated October 22, 2013, an OWCP hearing representative affirmed the
April 11, 2013 decision. The hearing representative found that appellant’s physicians did not
explain how or why the January 2, 2008 injuries caused carpal tunnel syndrome. The hearing
representative noted that Dr. Donati did not provide a definite diagnosis of carpal tunnel
syndrome.
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.6 To establish a causal relationship between the
6

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

3

condition claimed, as well as any attendant disability and the employment event or incident, an
employee must submit rationalized medical evidence based on a complete medical and factual
background supporting such a causal relationship.7 Causal relationship is a medical issue and the
medical evidence required to establish a causal relationship is rationalized medical evidence.8
Rationalized medical evidence is evidence which includes a physician’s rationalized medical
opinion on the issue of whether there is a causal relationship between the claimant’s diagnosed
condition and the implicated employment factors. The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty and must be supported by medical rationale, explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.9
ANALYSIS
OWCP accepted that appellant sustained a right shoulder sprain, right rotator cuff sprain,
right rotator cuff tear, unspecified shoulder condition, C6-7 disc displacement and cervical
spondylosis. On February 9, 2013 appellant requested that OWCP accepted carpal tunnel
syndrome as work related. OWCP denied the claim by decisions dated April 11 and October 22,
2013 on the grounds that the medical evidence did not establish a causal relationship between the
accepted injuries and carpal tunnel syndrome.
Dr. Ellis, a physician Board-certified in family practice and occupational medicine
consulting to appellant’s attorney, opined on December 11, 2008 that appellant had no sign of
right carpal tunnel syndrome or median nerve impairment.
Dr. Stefanis, an attending Board-certified neurosurgeon, submitted September 10 and
November 13, 2012 reports diagnosing bilateral carpal tunnel syndrome based on an August 27,
2009 electrodiagnostic study showing minimal median nerve neuropathy at both wrists. He
clarified on April 26, 2013 that appellant’s right arm symptoms were not due to C5 involvement.
However, Dr. Stefanis did not attribute the carpal tunnel syndrome to the accepted injuries.
Dr. Donati, an attending Board-certified orthopedic surgeon, diagnosed bilateral carpal tunnel
syndrome on February 15, 2013, but did not address its cause. As Dr. Stefanis and Dr. Donati
did not provide an explanation of the medical reasons that the accepted injuries would cause or
aggravate carpal tunnel syndrome, their opinions are insufficient to meet appellant’s burden of
proof.10
Dr. Norwood, an attending Board-certified orthopedic surgeon, diagnosed “possible
carpal tunnel” syndrome on September 9, 2013 and recommended additional testing. The
equivocal nature of this opinion diminishes its probative quality.11 Although a September 24,
7

Jennifer Atkerson, 55 ECAB 317 (2004).

8

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

9

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

10

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

11

Ricky S. Storms, 52 ECAB 349 (2001).

4

2013 study demonstrated very mild entrapment of the right median nerve at the wrist, there is no
report of record from Dr. Norwood explaining a medical connection between the entrapment and
the accepted injuries.
OWCP advised appellant by March 4, 2013 letter of the evidence necessary to establish
her claim, including a report from her attending physician explaining how and why the accepted
conditions would result in the development of carpal tunnel syndrome. However, appellant did
not submit such evidence. Therefore, OWCP’s October 22, 2013 decision was proper under the
law and circumstances of this case.
On appeal, appellant asserts that new medical evidence submitted for the first time on
appeal is sufficient to establish her claim for carpal tunnel syndrome. However, the Board may
not consider new evidence for the first time on appeal that was not before OWCP at the time it
issued the finale decision in the case.12
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 did not establish that she sustained carpal tunnel syndrome
in the performance of duty.

12

20 C.F.R. § 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 22, 2013 is affirmed.
Issued: August 14, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

6


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

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

Docket No. 09-498
Issued: July 14, 2009

Case Submitted on the Record

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

JURISDICTION
On December 10, 2008 appellant filed a timely appeal from an August 6, 2008 merit
decision of the Office of Workers’ Compensation Programs denying his claim for an
employment-related injury and a September 25, 2008 decision denying further merit review.
Pursuant to 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 appellant established that he sustained a left knee injury in
the performance of duty; and (2) whether the Office properly denied his request for
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a). On appeal appellant contends that
his pain worsened and his range of motion decreased during his workweek.
FACTUAL HISTORY
On June 23, 2008 appellant, then a 53-year-old postal clerk, filed an occupational disease
claim (Form CA-2) alleging that he sustained a left knee degenerative condition and a torn

meniscus. He claimed that he worked on a concrete reinforced industrial tile floor for over 26
years and that his duties required repetitive bending. Appellant became aware of his knee
condition in June 2006 and realized it was related to his employment in July 2006. The
employing establishment controverted the claim.
Appellant submitted medical records dated July 16, 2006 through March 13, 2008 from
his treating physician, Dr. Roger G. Wilber, a Board-certified orthopedic surgeon. On July 27,
2006 Dr. Wilber relayed appellant’s statements that he had experienced left knee pain for
approximately two weeks, with some stiffness, cracking and tightness in the knee. Physical
examination revealed fairly marked crepitus associated with patellofemoral motion on the left
side, tightness in the posterior aspect of his knee and a range of motion from 0 to 125 to 130
degrees. X-rays demonstrated mild degenerative changes and a small osteophyte on the lateral
femoral condyle. Dr. Wilber opined that appellant had early degenerative changes in the knee
and more than likely a standard degenerative meniscus tear and a Baker’s cyst. Appellant
underwent left knee arthroscopy in September 2006.
In a November 9, 2006 medical report, Dr. Wilber stated that appellant was status post
left knee arthroscopy and noted appellant’s reports of occasional flare-ups that prevented him
from actively fulfilling his job duties. On March 13, 2008 he diagnosed chrondromalacia of the
patella and early osteoarthritic changes in appellant’s left knee. Dr. Wilber noted appellant’s
belief that his conditions were aggravated by work. He opined that there was not much that
could be done as appellant was not yet a surgical candidate.
In a medical report dated August 9, 2007, Dr. Wilber’s brother, Dr. John H. Wilber, a
Board-certified orthopedic surgeon, stated that appellant was almost a year out from his
arthroscopic surgery. The procedure noted a mensical tear and some arthritis involving the
patellofemoral joint and medial joint line. Dr. John H. Wilber opined that appellant’s current
symptoms were more related to those conditions than to a new incident.
By letter dated July 1, 2008, the Office notified appellant of the deficiencies in his claim
and requested he submit additional medical evidence.
Appellant resubmitted the July 27, 2006 report of Dr. Roger Wilber and a
contemporaneous magnetic resonance imagining (MRI) scan of the left knee revealing a tear of
the posterior horn and body of the medial meniscus, patellofemoral and medial compartment
osteoarthritic changes and a Baker’s cyst with partial rupture. In a September 28, 2006 report,
Dr. Wilber stated that appellant was seen for an evaluation of his knee status post arthroscopy.
He stated that he had two large grooves in the patellofemoral cartilage on the trachlear side in
addition to the condylar changes and meniscal tear. Dr. Wilber advised that appellant would take
three weeks off from work before returning to full duties.
By decision dated August 6, 2008, the Office denied appellant’s claim. It accepted that
appellant’s employment required him to walk on concrete floors and bend repetitively and that
he was diagnosed with osteoarthritis and meniscal tears of the left knee. However, the Office
found that he did not establish a causal relationship between his employment and his left knee
condition.

2

On September 15, 2008 appellant filed a request for reconsideration of the merits. He did
not submit any evidence or argument in support of his request.
By decision dated September 25, 2008, the Office denied appellant’s request for
reconsideration finding that he did not submit any additional relevant evidence or advance a new
legal argument.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,2 including that he is an “employee” within the meaning of
the Act3 and that he filed his claim within the applicable time limitation.4 The employee must
also establish that he sustained an injury in the performance of duty as alleged and that his
disability for work, if any, was causally related to the employment injury.5
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.7

1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
3

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
4

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
5

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

6

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

7

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

3

ANALYSIS -- ISSUE 1
The Office accepted that appellant’s employment duties included walking on concrete
floors and repetitive bending. The issue is whether appellant established that he sustained a left
knee injury causally related to these work factors. The Board finds that he has not met his
burden of proof.
Appellant submitted treatment records from Dr. Roger Wilber dated July 16, 2006
through March 13, 2008. Dr. Wilber diagnosed degenerative changes and a meniscal tear in the
left knee. However, he did not provide any opinion on causal relationship. On March 13, 2008
Dr. Wilber noted appellant’s belief that his condition was aggravated by work.8 He did not
address how working on concrete floors or bending would have cause or contribute to the
degenerative changes found on examination or the need for surgery. Because Dr. Wilber never
provided a rationalized medical opinion explaining how appellant’s left knee condition was
related to his employment, the Board finds that his medical reports are insufficient to establish
that appellant sustained an injury causally related to his employment.9
The July 27, 2006 MRI scan report and an August 9, 2007 medical report from
Dr. John H. Wilber are similarly deficient as they do not address causation.10 He stated that
appellant’s current symptoms were more related to his previous meniscal tear and patellofemoral
and medial joint disease than to a new incident. Dr. Wilber did not address how walking on
concrete floors at work would cause or contribute to the diagnosed degenerative changes found
on examination.11
On appeal, appellant noted that his symptoms decreased if he took two or more days off
work but immediately returned once he began to work. In order to establish a compensable
injury, he is required to provide medical evidence addressing the causal relationship between his
left knee condition and his employment.12
Absent rationalized medical evidence from a physician, appellant has not met his burden
of proof to establish that his left knee condition is causally related to factors of his federal
employment.

8

See Edgar G. Maiscott, 4 ECAB 558 (1952) (appellant’s subjective symptoms and self-serving declarations do
not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature to establish the fact of injury
as alleged).
9

See Victor J. Woodhams, supra note 7.

10

See Donald T. Pippin, 54 ECAB 631 (2003).

11

See Robert Broome, 55 ECAB 339 (2004); Linda I. Sprague, 48 ECAB 386 (1997).

12

See Victor J. Woodhams, supra note 7.

4

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act13 does not entitle a claimant to a review of an Office decision
as a matter of right. This section vests the Office with discretionary authority to determine
whether it will review an award for or against compensation.14 The Office, through regulations,
has imposed limitations on the exercise of its discretionary authority under section 8128(a).15
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,16 the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.17 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his or her application for review within one year of the date of that decision.18 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.19
ANALYSIS -- ISSUE 2
Appellant did not submit any evidence with his reconsideration request, nor did he
advance a legal argument not previously considered or show that the Office erroneously
interpreted or applied a specific point of law. Because appellant did not meet the requirements
set forth under section 8128(a) of the Act,20 the Board finds that the Office properly denied
further merit review.
CONCLUSION
The Board finds that appellant did not establish that he sustained a left knee condition in
the performance of duty. The Board also finds that the Office properly denied appellant’s
request for reconsideration of the merits under section 5 U.S.C. § 8128(a).

13

5 U.S.C. §§ 8101-8193.

14
15

Id. at § 8128(a).
Annette Louise, 54 ECAB 783, 789-90 (2003).

16

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
17

20 C.F.R. § 10.606(b)(2).

18

Id. at § 10.607(a).

19

Id. at § 10.608(b).

20

5 U.S.C. § 8128(a).

5

ORDER
IT IS HEREBY ORDERED THAT the September 25 and August 6, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: July 14, 2009
Washington, DC

Alec J. Koromilas, Chief 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
__________________________________________
C.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
EDITH NORSE ROGERS MEMORIAL
VETERANS HOSPITAL, Bedford, MA,
Employer
__________________________________________

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Appearances:
Daniel B. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0769
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On February 22, 2019 appellant, through counsel, filed a timely appeal from an August 28,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the

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

Appellant timely requested oral argument before the Board. By order dated July 20, 2020, the Board exercised
its discretion and denied the request as the matter could be adequately addressed based on a review of the case record.
Order Denying Request for Oral Argument, Docket No. 19-0769 (issued July 20, 2020).

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.
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury in the
performance of duty on October 1, 2015, as alleged.
FACTUAL HISTORY
On October 8, 2015 appellant, then a 61-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging on October 1, 2015 that she fell to her knee and twisted her ankle while in
the performance of duty. On the reverse side of the claim form, the employing establishment
acknowledged that she was injured in the performance of duty. Appellant stopped work on the
date of injury.
In support of her claim, appellant provided an October 1, 2015 note from Dr. Ryan A.
Secan, a Board-certified internist, noting that she fell after her legs gave way for an unknown
reason. Dr. Secan recounted that she did not walk well due to back issues and used a scooter to
cover long distances. He reviewed x-rays and diagnosed a spiral fracture through the distal left
fibula.
A note of even date from Linda Gaudet, a registered nurse, indicated that appellant was
walking out of her office using her cane when her knees collapsed and she fell, landing on her right
knee.
In an October 2, 2015 report, Dr. Brock Drapkin, a Board-certified internist, noted that
appellant fell forward when walking home from work and was unable to get up due to severe left
leg pain. He relayed that, over the past several months, she had experienced frequent falls for
uncertain reasons. Dr. Drapkin related that appellant experienced a feeling of generalized
weakness when she fell, but no loss of consciousness, and was generally unable to get up by
herself. He diagnosed preexisting morbid obesity, gout, hyperlipidemia, depression, neuropathy,
and found that she had sustained a nondisplaced oblique distal fibular fracture on the left.
Dr. Drapkin found that appellant had experienced an unexplained fall without loss of
consciousness which resulted in a distal left fibular fracture. He reported, “The mechanism of this
and other recent recurrent falls is not clear.”
On October 2, 2015 Dr. Eric Holstein, a Board-certified orthopedic surgeon, examined
appellant and noted her history of morbid obesity and severe knee degenerative joint disease. He
reported that she ambulated with a cane and that she sustained a syncopal episode at work.
Dr. Holstein found that appellant did not slip, but fell after passing out. He noted that she was
unclear as to why this occurred, and that she awoke with pain in her left leg. Dr. Holstein
diagnosed nondisplaced distal fibula fracture.

3

5 U.S.C. § 8101 et seq.

2

On October 2, 2015 the employing establishment provided appellant with an authorization
for examination and/or treatment (Form CA-16).
Dr. Jasper Ngomba, a Board-certified internist, examined appellant on October 3, 2015 and
noted that she had fallen 20 times in the past six months. He found that she had been diagnosed
with optic neuritis.
In an October 4, 2015 report, Dr. Stacie Perlman, a Board-certified surgeon, noted that, on
October 2, 2015, appellant fell on the sidewalk while walking home from work and sustained a
nondisplaced left fibular fracture.
On October 4, 2015 Dr. Jonathan Moray, a Board-certified neurologist, examined
appellant due to her frequent falls. He noted that she reported falls beginning 23 years earlier.
Dr. Moray noted that appellant had fallen recently and was experiencing increasing pain in her low
back as well as weakness and numbness in the right leg. He indicated that she had chronic neck
and back pain. Dr. Moray noted that appellant experienced frequent falling with an unknown
etiology. He reported that she had a history of a possible central nervous system disease, that her
examination was consistent with peripheral neuropathy or spinal stenosis, and questionable
regarding lumbar radiculopathy with myelopathy.
On October 5, 2015 appellant underwent a brain magnetic resonance imaging (MRI) scan
which demonstrated minimal scattering of white matter signal abnormalities with bilateral frontal
predominance differential including microangiopathic change, Lyme disease, the effects of
hypertension or migraine, demyelinating disease, and other entities.
In a December 10, 2015 development letter, OWCP advised appellant of the deficiencies
of her claim. It requested additional factual and medical evidence and provided a questionnaire
for her completion. OWCP afforded appellant 30 days to respond.
In an October 1, 2015 note, Jessica G. Sprangers, a physician assistant, reported that
appellant described appellant’s fall as resulting from a slip, and that she had no preceding
symptoms. She recounted that appellant used a cane due to chronic back pain. Appellant denied
feeling dizzy or weak just prior to falling. Ms. Sprangers noted that appellant was unsure of
exactly what made her fall, but that appellant had asserted that her legs did not “give out.” She
noted that appellant had experienced frequent falls in the past due to balance problems.
In a December 16, 2015 letter, appellant denied syncopal episodes. She asserted that on
October 1, 2015 she was feeling well, did not have dizziness, and that her gait was steady.
Appellant alleged that she informed her physicians that she did not know why she fell. She
described the events surrounding her fall as walking toward the restroom at the employing
establishment at approximately 3:55 p.m. and as she was walking in the corridor she suddenly had
fallen onto the hard surface of the corridor. Appellant noted pain in her left foot and indicated that
she sought medical treatment. She asserted that she did not strike any objects on the way down to
the immediate supporting surface. Appellant denied any history of fainting. She noted that her
back was arthritic. Appellant reported that she had experienced more falls as she had aged, but
that the falls were not serious and usually caused by an uneven surface or due to objects, ice, or

3

fluids on the floor. She did not notice any substance on the floor on October 1, 2015 and did not
know what caused her fall.
In a December 24, 2015 note, Dr. Mythily Meda, an internist, reported that appellant had
a history of dizziness, but no syncope. She recounted that appellant reported no syncopal episode
at the time of her fall on October 1, 2015.
By decision dated January 14, 2016, OWCP denied appellant’s claim, finding that the
factual evidence was insufficient to support that she actually experienced the alleged employment
incident as a result of her work duties, as well as that the medical evidence did not substantiate
that the diagnosis provided was caused or aggravated by a work injury. It noted that she reported
that she did not know what caused her fall and did not strike any object as she was falling. OWCP
also noted that Dr. Holstein reported that appellant had sustained a syncopal episode at work.
On February 5, 2016 appellant requested reconsideration of the January 14, 2016 decision.
She provided a February 5, 2016 note from Dr. Holstein in which he reported that she used a cane
or walker due to severe knee degenerative joint disease. Dr. Holstein reported that there had been
a discrepancy between appellant’s history of injury, experiencing an mechanical fall, and his
reports suggesting a syncopal episode. He noted that she reported no loss of consciousness and
that medically there were no abnormalities. Dr. Holstein also reported that physicians had found
no diagnosis of syncope in appellant’s medical history, and that therefore her history was
“consistent with a mechanical fall at work.” He diagnosed closed fracture of the lateral malleolus.
In a March 10, 2016 narrative statement, appellant again asserted that she had not ever
experienced syncope including immediately prior to her fall on October 1, 2015. She noted that
she did have a history of dizziness due to medications prior to October 1, 2015 and that this was
addressed through dosage adjustment before her fall on October 1, 2015. Appellant surmised that
she likely slipped on liquid left on the floor by a patient. She submitted nurses’ notes, as well as
physical and occupational therapy notes.
By decision dated April 11, 2016, OWCP denied modification.
On February 8, 2017 appellant, through counsel, requested reconsideration of the April 11,
2016 decision. She submitted additional medical and factual evidence and asserted that OWCP
had not established that her fall on October 1, 2015 was idiopathic, rather than an unexplained fall
which would be considered to have occurred in the performance of duty.
In a February 7, 2017 affidavit, appellant asserted that the corridor where she fell on
October 1, 2015 was busy and traveled by hundreds of people on a daily basis. She noted that
there had been numerous floods and water leaks on the floor as well as water drips from people
using the restrooms, spills of liquids including coffee and other beverages, and water tracks from
inclement weather. Appellant alleged that there were cracks, grooves, depressions, and pits in the
floor surface in which water or other liquids often collected. She repeated her statement that, on
October 1, 2015, as she walked to the restroom, she was feeling well, her gait was stead y and that
she was not weak or dizzy in any way. Appellant suddenly slipped and fell on the floor. She did
not know the cause of her slip, but asserted that it felt like she slipped due to water on the floor.
In a January 16, 2017 report, Matthias J. Mulvey, a professional building safety and code

4

consultant, noted that on November 4, 2016 he inspected the corridor where appellant fell on
October 1, 2015. He found deep erosion marks, pitting, and water stains from heavy pedestrian
traffic and water damage. Mr. Mulvey reported 20 feet of erosion marks and water staining
running in a line from the bathroom exit toward appellant’s office door. He noted that the depth
of the erosion and pitting was sufficient to allow for the pooling of liquid and that the existing
surface marks were consistent with liquid historically collecting and pooling in the pits and
depressions of the floor’s surface.
Appellant also resubmitted Ms. Sprangers’ October 1, 2015 note in which appellant
described a fall at work which resulted from a slip. She also provided discharge notes in which
Dr. Meda diagnosed a fracture of the distal fibular shaft and noted that she had a fall at work.
Appellant submitted Dr. Drapkin’s October 2, 2015 note describing her frequent falls for uncertain
reasons.
In a January 17, 2017 report, Dr. George P. Whitelaw, a Board-certified orthopedic
surgeon, reviewed appellant’s medical records and affidavit. He noted that syncope was a
temporary loss of consciousness or fainting due to other medical conditions. Dr. Whitelaw found
that there was no medical evidence that appellant had a diagnosis of a syncopal event and that
Dr. Meda explicitly denied that appellant had a history of syncope. He opined that appellant had
experienced a mechanical fall as her incident was consistent with slipping.
By decision dated July 7, 2017, OWCP denied modification of its prior decisions.
On July 5, 2018 appellant, through counsel, requested reconsideration and submitted
additional factual evidence.
In an October 1, 2015 incident report, the employing establishment described appellant’s
fall as losing her balance while trying to exit the building, striking both knees on the floor, and
complaining of left ankle pain.
Appellant’s husband completed a narrative statement on November 8, 2017 explaining that
appellant fell on October 1, 2015 in the basement of a building on the employing establishment’s
premises, approximately 25 feet from her office
K.H., the acting director of performance management at the employing establishment,
completed a statement on November 14, 2017 and reported that on October 1, 2015 he was
informed that appellant had fallen in a tunnel.
On November 24, 2017 K.S., patient safety officer at the employing establishment,
reported on October 1, 2015 appellant informed her that she had fallen and did not know how or
why. Appellant denied hitting her head or losing consciousness at any time. K.S. and K.H. helped
appellant onto her scooter and directed her to urgent care.
In a November 30, 2017 statement, J.W., an employing establishment nurse, reported that
she found appellant on her knees on October 1, 2015 outside her office and next to the exit door.
Appellant indicated that she had injured her left leg and discussed seeking treatment at urgent care.
J.W. noted that appellant did not fall on her face, but was on her knees in a sitting position holding
on to a railing.
5

On June 15, 2018 Dr. Whitelaw provided a correction to his January 17, 2017 report and
again opined that appellant’s incident was consistent with slipping and suffering a mechanical fall.
He noted that a review of the medical records established that she denied dizziness or weakness
prior to the fall. Dr. Whitelaw concluded that there was no syncopal event invo lved in the
October 1, 2015 fall.
By decision dated August 28, 2018, OWCP denied appellant’s claim, finding that the
evidence of record established that she sustained an idiopathic fall outside of the performance of
duty. It found that the medical record was consistent in reporting that she had a long history of
falling with a recent increase in frequency of falls, difficulty ambulating, and balance problems.
OWCP concluded that the mere fact that the etiology of appellant’s falls both past and present
remained undiagnosed does not make the fall sustained at work on October 1, 2015 unexplained.
It determined that both the medical and factual evidence clearly establish ed that a physical
condition preexisted and resulted in the fall on October 1, 2015. OWCP concluded that appellant’s
fall on October 1, 2015 was explained as it was one of a series of 20 falls sustained over the
preceding 6-month period resulting from preexisting pathology and must therefore be considered
as idiopathic.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
It is a well-settled principle of workers’ compensation law, and the Board has so held, that
an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology causes
an employee to collapse and to suffer injury upon striking the immediate supporting surface, and
there is no intervention or contribution by any hazard or special condition of employment -- is not
within coverage of FECA. 7 Such an injury does not arise out of a risk connected with the
employment and is therefore not compensable. The Board has made equally clear, the fact that

4

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

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

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).
7

M.R., Docket No. 19-0341 (issued July 10, 2019); H.B., Docket No. 18-0278 (issued June 20, 2018); see Carol A.
Lyles, 57 ECAB 265 (2005).

6

the cause of a particular fall cannot be ascertained or that the reason it occurred cannot be
explained, does not establish that it was due to an idiopathic condition.8
This follows from the general rule that an injury occurring on the industrial premises during
working hours is compensable unless the injury is established to be within an exception to such
general rule.9 OWCP has the burden of proof to submit medical evidence showing the existence
of a personal, nonoccupational pathology if it chooses to make a finding that a given fall is
idiopathic in nature. 10 If the record does not establish that the particular fall was due to an
idiopathic condition, it must be considered as merely an unexplained f all, one which is
distinguishable from a fall in which it is definitely proved that a physical condition preexisted and
caused the fall. 11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty on October 1, 2015, as alleged.
In determining whether appellant’s injury occurred in the performance of duty, the Board
must first consider factors to determine whether the October 1, 2015 incident was caused by an
idiopathic fall. Factors to be considered include whether there is evidence of a predisposed
condition that caused appellant to collapse, whether there were any intervening circumstances or
conditions that contributed to her fall, and whether appellant struck any part of her body against a
wall, piece of equipment, furniture, or similar object as she fell. 12
The Board finds that the medical evidence establishes that appellant’s fall on October 1,
2015 was due to a personal, nonoccupational pathology without employment contribution. On
October 1, 2015 Dr. Secan reported that appellant did not walk well due to back issues.
Dr. Ngomba examined appellant on October 3, 2015 noting that she had fallen 20 times in the past
six months, and she had been diagnosed with optic neuritis. On October 2, 2015 Dr. Holstein
reported that appellant used a cane or walker due to severe knee degenerative joint disease.
Dr. Moray found on October 4, 2015 that her examination was consistent with peripheral
neuropathy or spinal stenosis. The Board, therefore, finds that the evidence of record is sufficient
to establish that appellant’s fall was caused by appellant’s preexisting conditions and thus, was
idiopathic.

8

M.R. and H.B., id.

9

H.B., id.; Dora J. Ward, 43 ECAB 767, 769 (1992); Fay Leiter, 35 ECAB 176, 182 (1983).

10

A.B., Docket No. 17-1689 (issued December 4, 2018); P.P., Docket No. 15-0522 (issued June 1, 2016); see also
Jennifer Atkerson, 55 ECAB 317 (2004).
11

M.R., supra note 7; P.N., Docket No. 17-1283 (issued April 5, 2018); John R. Black, 49 ECAB 624 (1998); Judy
Bryant, 40 ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).
12

D.T., Docket No. 19-1486 (issued January 17, 2020); A.B., Docket No. 17-1689 (issued December 4, 2018); P.P.,
Docket No. 15-0522 (issued June 1, 2016); see also Jennifer Atkerson, 55 ECAB 317 (2004).

7

Further, the Board finds that the evidence of record is insufficient to show that appellant
experienced an intervention or contribution by any hazard or special condition of employment.
Appellant did not allege that she struck any object related to her employment when she fell to the
ground.13 The Board, therefore, finds that appellant’s fall on October 1, 2015, without any further
intervention or contribution by the employing establishment, is considered idiopathic and is
therefore noncompensable.14
Accordingly, appellant has not met her burden of proof to establish that she sustained an
injury in the performance of duty on October 1, 2015, as alleged.
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 an injury in the
performance of duty on October 1, 2015, as alleged.15

13

P.N., supra note 11.

14

Id.

15

The Board notes that where an employing establishment properly executes a Form CA-16 authorizing medical
treatment related to a claim for a work injury, the form creates a contractual obligation, which does not involve the
employee directly, to pay for the cost of the examination/treatment regardless of the action taken on the claim.
Tracy P. Spillane, 54 ECAB 608 (2003). The period for which treatment is authorized by a Form CA-16 is limited to
60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c).

8

ORDER
IT IS HEREBY ORDERED THAT the August 28, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 15, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF THE ARMY,
DIRECTORATE OF CONTRACTING,
Fort Dix, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-221
Issued: May 8, 2008

Case Submitted on the Record

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

JURISDICTION
On October 30, 2007 appellant filed a timely appeal from the May 30, 2007 merit
decision of the Office of Workers’ Compensation Programs’ hearing representative, which
affirmed her schedule award. 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 20 percent permanent impairment of her
right lower extremity.
FACTUAL HISTORY
On November 13, 1989 appellant, then a 32-year-old purchasing agent, tripped over a
drain in the restroom and fell on her right knee. The Office accepted her claim for fracture and
dislocation of the right patella. Appellant underwent arthroscopic surgery on January 23, 1990.

A conflict in medical opinion arose on the issue of permanent impairment. The Office
referred appellant, together with the medical record and a statement of accepted facts, to
Dr. George P. Glenn, Jr., a Board-certified orthopedic surgeon, for an impartial medical
evaluation.
On October 7, 2003 Dr. Glenn related appellant’s history of injury and medical treatment.
He reviewed the operative report from 1990 and noted that the surgeon did not describe a
fracture of the patella in the strict sense, but rather fissure fractures and degenerative changes
involving the medial and lateral patella, lateral tibial plateau and lateral femoral condyle.
Dr. Glenn described appellant’s present complaints and his findings on physical examination.
He noted about a 15 degree valgus attitude bilaterally and a range of motion from 0 degrees
extension through 95 degrees flexion. Radiographs showed significant degenerative changes
involving the articular surface of the patella with significant diminution of the patellofemoral
joint space. There was also a two millimeter cartilage interval between the femoral condyle and
tibial plateau. Dr. Glenn determined that appellant had a four percent impairment of the whole
person due to loss of motion and an eight percent impairment of the whole person due to joint
space narrowing in the tibiofemoral joint. Because these impairments may not be combined, he
concluded that appellant had an eight percent impairment of the right lower extremity due to
joint space narrowing.
On November 3, 2003 an Office medical adviser reviewed Dr. Glenn’s findings and
reported that appellant had a 10 percent impairment of the right lower extremity due to loss of
motion and a 20 percent impairment due to joint space narrowing. He noted that these ratings
may not be combined.
On April 5, 2005 the Office issued a schedule award for a 20 percent total impairment of
the right lower extremity.1 The Office reissued the decision on October 11, 2006,2 and an Office
hearing representative affirmed on May 30, 2007.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act3 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.4

1

Appellant previously received a schedule award for a 15 percent impairment, so the Office awarded
compensation for an additional 5 percent.
2

On a prior appeal, the Board found that the Office did not send its April 5, 2005 decision to the representative’s
correct address. Docket No. 06-576 (issued July 24, 2006).
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999). Effective February 1, 2001, the Office began using the A.M.A., Guides (5th
ed. 2001).

2

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.5 When 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.6 When the Office secures an opinion from an
impartial medical specialist for the purpose of resolving a conflict in the medical evidence and the
opinion from the specialist requires clarification or elaboration, the Office has the responsibility to
secure a supplemental report from the specialist for the purpose of correcting a defect in the
original report.7
ANALYSIS
According to Table 17-10, page 537 of the A.M.A., Guides, knee flexion of 95 degrees
represents a 10 percent impairment of the lower extremity.8 Extension to zero degrees (no
flexion contracture) represents no impairment. According to Table 17-31, page 544, a
roentgenographically determined cartilage interval of two millimeters in the knee joint represents
a 20 percent impairment of the lower extremity and, according to the cross-usage chart found at
Table 17-2, page 526, impairment due to loss of motion may not be combined with impairment
due to arthritis or degenerative joint disease. So the Office issued a schedule award for the larger
of the two, namely, the 20 percent impairment due to the cartilage interval in appellant’s
tibiofemoral joint.
Appellant’s attorney has noted two problems with this award. First, Dr. Glenn reported
significant degenerative changes involving the articular surface of the patella with significant
diminution of the patellofemoral joint space, but he did not report a cartilage interval for this
joint under Table 17-31, page 544 of the A.M.A., Guides. His evaluation of arthritis impairment
is therefore incomplete. If he obtained a true lateral view, Dr. Glenn may simply report the
cartilage interval for the patellofemoral joint from the existing x-ray. If additional studies are
needed (the A.M.A., Guides requires either a “sunrise” or true lateral view), the Office shall
make proper arrangements.
Second, Dr. Glenn reported a valgus deformity of 15 degrees. According to Table 17-10,
page 537 of the A.M.A., Guides, this represents a 20 percent impairment of the lower extremity.
He should clarify whether this impairment preexisted appellant’s 1989 employment injury.9 If
5

5 U.S.C. § 8123(a).

6

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

7

See Nathan L. Harrell, 41 ECAB 402 (1990).

8

Although the A.M.A., Guides also provides impairment figures for the whole person, the Act does not authorize
the payment of schedule awards for the permanent impairment of the whole person. Ernest P. Govednick, 27 ECAB
77 (1975). Payment is authorized only for the permanent impairment of specified members, organs or functions of
the body, including the leg or lower extremity.
9

It is well established that preexisting impairments to the scheduled member are to be included when determining
entitlement to a schedule award. Michael C. Milner, 53 ECAB 446, 450 (2002); Raymond E. Gwynn, 35 ECAB
247 (1983).

3

so, the Office must compare appellant’s impairment under Table 17-10, page 537 (both loss of
flexion and valgus deformity) to her impairment under Table 17-31, page 544 (both knee and
patellofemoral joints) and must base her schedule award on the larger of the two. The Board will
set aside the Office hearing representative’s May 30, 2007 decision and will remand the case for
a supplemental report from the impartial medical specialist and an appropriate final decision on
appellant’s permanent impairment.
Appellant’s attorney made other arguments on appeal that lack merit. He suggested that
the Office did not select Dr. Glenn from the Physician’s Directory System (PDS), as required,
but page 490 of the imaged record shows that the Office did use the PDS appointment schedule
and appellant’s zip code to select an appropriate physician to resolve the conflict. Appellant’s
attorney also argued that an 8 percent whole person impairment, which Dr. Glenn reported for
the joint space narrowing in the tibiofemoral joint, could be converted to a 21 percent
impairment of the lower extremity using Table 17-3, page 527 of the A.M.A., Guides. This
would be one percent more than the Office determined, but Table 17-3, used properly, converts
lower extremity impairments to whole person impairments, not the other way around. It shows
that a 20 percent lower extremity impairment, taken from Table 17-31, page 544 of the A.M.A.,
Guides, converts to an 8 percent whole person impairment, which the Act does not authorize.
CONCLUSION
The Board finds that this case is not in posture for decision. A supplemental report from
the impartial medical specialist is required.
ORDER
IT IS HEREBY ORDERED THAT the May 30, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: May 8, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4