United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Tracy, CA, Employer
__________________________________________

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

Docket No. 18-1091
Issued: December 28, 2018

Case Submitted on the Record

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

JURISDICTION
On May 2, 2018 appellant filed a timely appeal from an April 9, 2018 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days had elapsed
from the last merit decision, dated June 26, 2017, to the filing of this appeal, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction to review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On December 3, 2013 appellant, then a 63-year-old distribution process worker, filed a
traumatic injury claim (Form CA-1) alleging that on November 29, 2013 he lost his balance and
fell onto the floor, pinning his left knee behind him and experiencing pain in both knees, while
changing the position of forks on a forklift in the performance of duty.
On January 24, 2014 OWCP accepted the claim for bilateral knee and leg sprain of
unspecified sites.
Appellant was placed off work on February 5, 2014 by Dr. Gary R. Wisner, an attending
Board-certified orthopedic surgeon. He stopped work on that date. OWCP paid appellant wageloss compensation for temporary total disability on the supplemental rolls as of February 6, 2014.
On May 2, 2014 OWCP expanded acceptance of appellant’s claim to include left knee
meniscus tear, current. It authorized arthroscopic left knee surgery performed by Dr. Wisner on
July 8, 2014. OWCP continued to pay appellant wage-loss compensation for temporary total
disability.
Dr. Wisner subsequently advised that appellant had continuing residuals of his accepted
employment-related bilateral knee injuries that required medical treatment and that he remained
totally disabled from work due to his work-related injuries.
In a December 4, 2014 medical report, Dr. Aubrey A. Swartz, a Board-certified orthopedic
surgeon and OWCP referral physician, opined that appellant had no residuals of his accepted workrelated conditions and, while he could not perform his usual job, he could work eight hours a day
with restrictions.
OWCP found a conflict in medical opinion between Dr. Wisner and Dr. Swartz regarding
whether appellant had continuing employment-related residuals or disability necessitating referral
to an impartial medical examiner, pursuant to 5 U.S.C. § 8123(a). In an August 25, 2015 report,
Dr. Arthur M. Auerbach, a Board-certified orthopedic surgeon, selected as the impartial medical
examiner, opined that appellant no longer had residuals of his accepted November 29, 2013
employment injuries and, while he could not perform his usual job, he could work eight hours a
day with permanent restrictions.
By decision dated January 21, 2016, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective that date, based on Dr. Auerbach’s August 25, 2015
opinion that appellant no longer had residuals or disability stemming from his work-related
injuries.

2

In an appeal request form postmarked February 29, 2016 and received by OWCP on
March 7, 2016, appellant requested a telephone hearing before a representative of OWCP’s Branch
of Hearings and Review.
OWCP, by decision dated March 23, 2016, denied appellant’s request for a hearing, finding
that his request was untimely filed because it was not made within 30 days of its January 21, 2016
decision. It further indicated that it had exercised its discretion and further denied the request as
the relevant issue of the case could equally well be addressed by requesting reconsideration and
submitting evidence not previously considered by OWCP.
In an appeal request form received by OWCP on December 20, 2016, appellant requested
reconsideration of the January 21, 2016 termination decision. By decision dated March 16, 2017,
OWCP denied modification of its January 21, 2016 decision. It determined that appellant failed
to submit rationalized medical evidence from a qualified physician as defined under FECA
establishing causal relationship between the diagnosed medical condition and accepted
employment injuries.
Appellant, in an appeal request form and letter received by OWCP on March 20, 2018,
requested reconsideration of the March 16, 2017 decision. In his letter, he contended that enclosed
reports from Dr. Qasim Aslam Barra and Dr. Yee Hisang Jeffrey Wang, Board-certified
radiologists, were sufficient to establish that he had continuing residuals and disability related to
his accepted injuries and to rebut the opinions of Dr. Swartz and Dr. Auerbach.
In a February 7, 2018 left knee magnetic resonance imaging (MRI) scan report, Dr. Barra
provided an impression of severe patellofemoral compartment chondromalacia, focal thinning of
the lateral aspect of the patella retinaculum which may be iatrogenic or represent sequela of prior
injury, mild lateral compartment chondromalacia, and small joint effusion.
In a February 7, 2018 right knee MRI scan report, Dr. Wang provided an impression of
lateral meniscal degenerative tearing with grade 3 chondromalacia lateral tibial plateau. He further
provided an impression of focal grade 3 patellar chondromalacia and trace popliteal cyst.
By decision dated April 9, 2018, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, an
application for reconsideration must be received by OWCP within one year of the date of OWCP’s
decision for which review is sought.3 Timeliness is determined by the document receipt date (i.e.,
the “received date” in OWCP’s integrated Federal Employees’ Compensation System.4 The Board

3

20 C.F.R. § 10.607(a).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.4(b) (February 2016).

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has found that the imposition of the one-year time limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.5
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s application for review is untimely filed, OWCP must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error. If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.6 To
demonstrate clear evidence of error, a claimant must submit evidence that is relevant to the issue
that was decided by OWCP7 and is positive, precise, and explicit, and is manifest on its face that
OWCP committed an error.8 The evidence must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must also shift the weight of
the evidence in favor of the claimant and raise a substantial question as to the correctness of
OWCP’s decision for which review is sought. Evidence that does not raise a substantial question
is insufficient to demonstrate clear evidence of error. It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion. A determination of whether
the claimant has demonstrated clear evidence of error entails a limited review of how the evidence
submitted with the reconsideration request bears on the evidence previously of record.9
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration.
As noted, an application for reconsideration must be received within one year of the date
of OWCP’s decision for which review is sought.10 As appellant’s request for reconsideration was
not received by OWCP until March 20, 2018, more than one year after issuance of the March 16,
2017 decision, the last merit decision by OWCP on the termination issue, it was untimely filed.
Consequently, appellant must demonstrate clear evidence of error by OWCP denying his claim for
compensation.
The Board further finds that appellant has failed to demonstrate clear evidence of error.
With the March 20, 2018 reconsideration request, appellant maintained that the medical
reports from Drs. Barra and Wang established continuing residuals and disability from his accepted
November 29, 2013 employment injuries. The term “clear evidence of error” is intended to
represent a difficult standard, and the argument provided here is not the type of positive, precise,
5

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

6

M.L., Docket No. 09-0956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); supra note 4 at Chapter
2.1602.5 (February 2016) (the term clear evidence of error is intended to represent a difficult standard).
7

Dean D. Beets, 43 ECAB 1153 (1992).

8

Leona N. Travis, 43 ECAB 227 (1991).

9

J.S., Docket No. 10-0385 (issued September 15, 2010); B.W., Docket No. 10-0323 (issued September 2, 2010).

10

See supra note 3.

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and explicit evidence which manifested on its face that OWCP committed an error.11 Even a
detailed, well-rationalized medical report, which would have created a conflict in medical opinion
requiring further development if submitted prior to issuance of the denial decision, does not
constitute clear evidence of error.12 It is not enough to show that evidence could be construed so
as to produce a contrary conclusion. Instead, the evidence must shift the weight in appellant’s
favor.13
The MRI scan reports dated February 7, 2018 from Drs. Wang and Barra noted appellant’s
right and left knee conditions. The reports do not raise any error in the underlying March 16, 2017
OWCP decision to terminate appellant’s wage-loss compensation and medical benefits as they do
not address the relevant issue of whether appellant had any continuing residuals or disability
causally related to his accepted November 29, 2013 employment injuries.14
The Board finds that appellant has not raised an argument or submitted any evidence that
manifests on its face that OWCP committed an error in terminating his wage-loss compensation
and medical benefits effective January 21, 2016. Appellant has not provided evidence of sufficient
probative value to raise a substantial question as to the correctness of OWCP’s decision. Thus,
the evidence is insufficient to demonstrate clear evidence of error.15
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.

11

See supra note 4 at Chapter 2.1602.5 (February 2016); see Dean D. Beets, supra note 7.

12

See D.G., 59 ECAB 455 (2008); L.L., Docket No. 13-1624 (issued December 5, 2013).

13

See M.N., Docket No. 15-0758 (issued July 6, 2015).

14

See B.C., Docket No. 16-1404 (issued April 14, 2017); F.R., Docket No. 09-0575 (issued January 4, 2010)
(evidence that is not germane to the issue on which the claim was denied is insufficient to demonstrate clear evidence
of error).
15

See M.B., Docket No. 17-1505 (issued January 9, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the April 9, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 28, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.R., Appellant
and
U.S. POSTAL SERVICE, SANTA ANA
PERFORMANCE CLUSTER,
City of Industry, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-319
Issued: June 25, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On November 28, 2011 appellant filed a timely appeal from the September 6, 2011
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
request for further review of the merits of her claim.1 The Board assigned Docket No. 12-319.
In an August 26, 2010 decision, OWCP denied appellant’s claim on the grounds that she
did not submit sufficient medical evidence to establish that she sustained disability due to her
December 29, 2008 work injury as alleged for the period May 5 to 17, 2010.2 In a document
1

The last merit decision of record was the August 26, 2010 decision of OWCP denying appellant’s claim for a
period of disability. Because more than 180 days has elapsed between the last merit decision and the filing of this
appeal on November 28, 2011, the Board lacks jurisdiction to review the merits of this claim. For OWCP decisions
issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of OWCP decisions issued
on or after November 19, 2008 must be filed within 180 days of the decision. See 20 C.F.R. §§ 501.2(c) and 501.3.
2

OWCP accepted that on December 29, 2008 appellant, a mail processor, sustained a cervical sprain, cervical
radiculopathy, and sprains of her right shoulder, acromioclavicular joint, upper arm, elbow, forearm and wrist after
she picked up heavy packages of mail. Appellant began working light duty and received compensation from OWCP
for partial disability. She stopped work from May 5 to 10, 2010 and worked 2.03 hours on May 11, 2010 and 2.07
hours on May 12, 2010. Appellant stopped work again from May 13 to 17, 2010. She filed claims for the portions
of her workday that she did not work between May 5 and 17, 2010.

postmarked as sent on August 26, 2011, appellant requested reconsideration of OWCP’s
August 26, 2010 decision. In support of her request, she submitted a new report of Dr. Hosea
Brown, III, an attending Board-certified internist. In a September 6, 2011 decision, OWCP
denied appellant’s request for further review of the merits of her claim on the grounds that her
request was untimely filed and failed to demonstrate clear evidence of error. OWCP indicated
that appellant’s August 26, 2011 reconsideration request was made more than a year after
OWCP’s August 26, 2010 decision. It found that the evidence submitted by appellant did not
clearly show error in its August 26, 2010 decision.
The Board has considered the matter and finds that the August 26, 2011 postmarked
request constituted a timely request for reconsideration. OWCP regulations at 20 C.F.R.
§ 10.607(a), provide that “an application for reconsideration must be sent within one year of the
date of OWCP’s decision for which review is sought” and that, “if submitted by mail, the
application will be deemed timely if postmarked by the U.S. Postal Service within the time
period allowed.” In computing the time for requesting reconsideration, the date of the event
from which the designated time period begins to run shall not be included when computing the
time period. However, the last day of the period shall be included unless it is a Saturday, a
Sunday or a legal holiday.3 Thus, the time for requesting reconsideration of OWCP’s August 26,
2010 decision began to run on August 27, 2010 and ended on August 26, 2011. The Board finds
that appellant’s request was timely, as it was postmarked on August 26, 2011, and thus was
clearly made within one year of the August 26, 2010 decision. Because appellant filed a timely
reconsideration request, the case will be remanded to OWCP for application of the standard for
reviewing timely requests for reconsideration.4 The “clear evidence of error” standard utilized
by OWCP in its September 6, 2011 decision is appropriate only for untimely reconsideration
requests. After such further development as OWCP deems necessary, it should issue an
appropriate decision to protect appellant’s appeal rights.

3

Debra McDavid, 57 ECAB 149 (2005); see John B. Montoya, 43 ECAB 1148 (1992).

4

See 20 C.F.R. § 10.606(b)(2).

2

IT IS HEREBY ORDERED THAT the September 6, 2011 decision of the Office of
Workers’ Compensation Programs’ is set aside and the case remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: June 25, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Washington, DC, Employer
__________________________________________

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

Docket No. 18-1073
Issued: January 18, 2019

Case Submitted on the Record

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

JURISDICTION
On May 1, 2018 appellant filed a timely appeal from an April 13, 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 more than 12 percent permanent impairment of the right
upper extremity, for which he previously received a schedule award.

1

5 U.S.C. § 8101 et. seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The facts relevant to this appeal
are set forth below.
On January 29, 2015 appellant, then a 40-year-old internal revenue agent, filed an
occupational disease claim (Form CA-2) alleging that on October 3, 2014 he first became aware
of his right rotator cuff injury and first realized that his condition was caused by his federal
employment. He claimed that, while he was assembling documents for review he felt a very sharp
pain go through his right shoulder while using a hole puncher to perforate case file documents.
OWCP accepted the claim for sprain of the right shoulder and upper arm;
acromioclavicular (AC) and disorder of the bursae and tendons in the right shoulder region,
unspecified; complete right rotator cuff rupture; and right brachial neuritis or radiculitis, not
otherwise specified. It authorized a right shoulder arthroscopy with subacromial decompression
and distal clavicle resection which was performed on July 7, 2015 by Dr. Steven H. Bernstein, an
attending Board-certified orthopedic surgeon. OWCP paid wage-loss compensation benefits on
the periodic rolls.
Appellant returned to full-time work with restrictions on June 18, 2016.
On June 28, 2016 appellant filed a claim for a schedule award (Form CA-7).
In support of his schedule award claim, appellant submitted a June 17, 2016 report from
Dr. Bernstein in which he noted that appellant had been evaluated on June 15, 2016. On physical
examination Dr. Bernstein utilized the diagnosis-based impairment (DBI) methodology to
determine the degree of permanent impairment. He indicated that, in accordance with Table 155, page 402 of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides),3 appellant’s rotator cuff contusion with impingement
and residual loss, equated to five percent permanent impairment of the right upper extremity.
Dr. Bernstein further indicated that an AC joint injury/disease equated to eight percent upper
extremity permanent impairment. Utilizing the Combined Values Chart on page 604, he calculated
13 percent permanent impairment of the right upper extremity and 8 percent whole person
impairment. Dr. Bernstein awarded an additional four percent impairment each for pain,
weakness, and loss of endurance and function. He found no additional impairment for atrophy.
Dr. Bernstein concluded that appellant had a combined 29 percent total right upper extremity
permanent impairment.
On July 21, 2016 Dr. Jovito Estaris, Board-certified in occupational medicine, acting as an
OWCP district medical adviser (DMA) reviewed the medical record, including Dr. Bernstein’s
report. He noted appellant’s diagnoses of impingement syndrome and AC disease. The DMA
used the range of motion (ROM) method. He referenced Dr. Bernstein’s ROM measurements and
2

Docket No. 17-1424 (issued October 25, 2017).

3

A.M.A., Guides (6th ed. 2009).

2

applied Table 15-34, page 475 of the A.M.A., Guides. The DMA found 3 percent impairment
each for flexion and abduction, no impairment for external rotation, and 4 percent impairment for
internal rotation, totaling 10 percent impairment. He assigned a grade modifier 1 for loss of ROM
under Table 15-35, page 477. The DMA found a grade modifier 1 for decreased total ROM
according to Table 15-36, page 477. He assigned a grade modifier 2 for functional history for pain
with normal activity based on Table 15-7, page 406. The DMA then calculated 10.5 percent
permanent impairment of the right upper extremity which was rounded up to 11 percent. He
explained that his impairment rating was markedly lower than Dr. Bernstein’s impairment rating
because Dr. Bernstein had rated two diagnoses under the DBI method and had combined the
impairment ratings. The DMA referenced page 387 of the A.M.A., Guides, which directed that,
if a patient had two significant diagnoses, the examiner should use the diagnosis with the highest
causally-related impairment for the impairment calculation. He also noted that Dr. Bernstein
awarded additional impairment ratings for pain, weakness, and loss of endurance and function
which was not acceptable under the sixth edition of the A.M.A., Guides. The DMA determined
that appellant had reached maximum medical improvement (MMI) on June 17, 2016, the date of
Dr. Bernstein’s evaluation.
OWCP, by letter August 4, 2016, requested that appellant obtain a supplemental report
from Dr. Bernstein regarding the extent of his permanent impairment based on the physician’s
review of the DMA’s report.
In an August 19, 2016 letter, Dr. Bernstein reviewed the DMA’s report and disagreed with
his use of the ROM methodology to calculate appellant’s impairment rating. He contended that
this methodology was inappropriate and inadequate as it failed to capture the degree of appellant’s
pain, difficulty, and impairment. Dr. Bernstein restated his prior finding that appellant had 29
percent right arm impairment.
The DMA, on September 20, 2016, reviewed Dr. Bernstein’s August 19, 2016 report. He
reiterated why his use of the ROM methodology to calculate appellant’s impairment rating was
more appropriate under the A.M.A., Guides. The DMA also restated why Dr. Bernstein’s
impairment rating was not acceptable under the A.M.A., Guides.
By decision dated October 4, 2016, OWCP granted appellant a schedule award for 11
percent permanent impairment of the right upper extremity, based on the opinion of the DMA.
The period of the award ran from June 18, 2016 to February 13, 2017.4
On November 4, 2016 appellant requested reconsideration.
By decision dated February 2, 2017, OWCP reviewed the merits of appellant’s claim and
denied modification of its October 4, 2016 decision. It found that the weight of the medical
evidence remained with the DMA’s opinion.

4

On November 30, 2016 appellant accepted a lump-sum payment of the schedule award.

3

Appellant appealed to the Board on June 15, 2017. By decision dated October 25, 2017,
the Board set aside the February 2, 2017 decision.5 The Board found that OWCP had
inconsistently applied Chapter 15 of the A.M.A., Guides regarding the proper use of either the DBI
or ROM methodology in assessing the extent of permanent impairment. The Board remanded the
case for OWCP to issue a de novo decision after development of a consistent method for
calculating permanent impairment of the upper extremities.6
Following remand, on December 11, 2017 OWCP requested that appellant submit an
additional report from Dr. Bernstein including a review of a newly prepared the statement of
accepted facts (SOAF) and an evaluation of his prior impairment rating based on the reprinted
2009 sixth edition A.M.A., Guides. Appellant was afforded 30 days to submit the requested
evidence.
By letter dated January 10, 2018, appellant responded to OWCP’s December 11, 2017
development letter. He contended that OWCP’s DMA’s opinion could not carry the weight of the
medical evidence. Appellant noted that he had not received a copy of the SOAF, which
inaccurately noted that he had preexisting cervical radiculitis, AC joint arthrosis, and a herniated
cervical disc. He asserted that Dr. Bernstein’s 29 percent right arm extremity impairment rating
was sufficient to establish his entitlement to a greater schedule award.
On February 15, 2018 OWCP requested that its DMA review his July 21 and
September 21, 2016 reports and Dr. Bernstein’s impairment rating of June 17, 2016 and explain
how their right upper extremity impairment calculations were determined under the reprinted 2009
sixth edition A.M.A., Guides. In pertinent part, it indicated that the DMA must reference all
pertinent objective and subjective findings, identify the methodology used by the rating physician,
and advise whether the applicable tables in the A.M.A., Guides identify a diagnosis that can
alternatively be rated by ROM. If the A.M.A., Guides allows for the use of both the DBI and
ROM methods to calculate an impairment rating for the diagnosis in question, the method
producing the higher rating should be used. If the rating physician provided an assessment using
the ROM method and the A.M.A., Guides allows for use of ROM diagnosis in question, the DMA
was to independently calculate the impairment using both the ROM and DBI methods and identify
the higher rating. OWCP noted that, if it was clear to the evaluator evaluating loss of ROM that
the loss had an organic basis, three independent measurements should be documented/recorded
and the greatest ROM should be used for the determination of permanent impairment. If the
medical evidence of record was insufficient to render a rating based on the ROM method, where
allowed, the DMA was advised to note the medical evidence necessary to complete the ROM
rating method and render an impairment rating using the DBI method, if possible, given the
available evidence.
On February 19, 2018 the prior DMA for OWCP reviewed the SOAF and medical record.
The DMA utilized the DBI method to determine the degree of appellant’s permanent impairment.
He indicated that, in accordance with Table 15-5, page 403 of the sixth edition of the A.M.A.,
Guides, appellant’s AC joint arthropathy with impingement syndrome status post distal clavicle
5

Supra note 2.

6

Supra note 1.

4

resection equated to a class 1 impairment with a default value of 10 percent upper extremity
impairment.7 Utilizing Table 15-7, page 406, the DMA assigned a grade modifier 2 for functional
history due to pain with regular activity, increase on lifting arm.8 He assigned a grade modifier of
2 for physical examination under Table 15-8, page 408 due to a tender shoulder with limitation of
ROM and positive impingement tests.9 The DMA noted that a grade modifier for clinical studies
was not applicable as a magnetic resonance imaging scan showed AC joint arthropathy, which was
used in the diagnosis and proper placement in the regional grid. Applying the net adjustment
formula, he subtracted 2, the numerical value of the class, from the numerical value of the grade
modifier for each applicable component (functional history and physical examination) and then
added those values, resulting in a net adjustment of 2 ((2-1) + (2-1)).10 Application of the net
adjustment formula meant that movement was warranted two places to the right of class 1 default
value grade C to grade E based on Table 15-5.11 Therefore, the DBI method of rating of permanent
impairment for appellant’s right AC joint arthropathy with impingement syndrome amounted to
12 percent of the right upper extremity.12
The DMA noted that the ROM method was applicable in this case. However, he indicated
that there was only one set of measurements of ROM of the right shoulder. The DMA noted that
three independent measurements of ROM of the involved joint was required to use the ROM
method. He reviewed Dr. Bernstein’s June 15, 2016 impairment evaluation and noted his 29
percent right upper extremity impairment rating. The DMA related that proper use of the A.M.A.,
Guides explained any discrepancies between his own impairment evaluation and Dr. Bernstein’s
impairment evaluation. He indicated that Dr. Bernstein provided impairment ratings for two
conditions of the same joint, five percent impairment for impingement syndrome of right shoulder
and eight percent impairment for AC joint arthropathy of the same shoulder. The DMA maintained
that this was not the recommended rating by the sixth edition of the A.M.A., Guides and related
that page 387 provided that if a patient had two significant diagnoses, for instance, rotator cuff tear
and biceps tendinitis, the examiner should use the diagnosis with the highest causally related
impairment rating for the impairment calculation. He further related that page 389 provided that
if more than one diagnosis could be used, the highest causally-related impairment rating should be
used, which was generally the more specific diagnosis. Typically, one diagnosis would adequately
characterize the impairment and its impact on activities of daily living (ADL). The DMA
maintained that the highest causally related impairment rating was for the AC joint arthropathy.
Dr. Bernstein had added four percent impairment ratings for disability due to pain, weakness, and
loss of endurance, and loss of function. He indicated that these impairment ratings were not found

7

A.M.A., Guides 411, Table 15-5.

8

Id. at 406, Table 15-7.

9

Id. at 408, Table 15-8.

10

Id. at 411.

11

Supra note 5.

12

Id.

5

in the sixth edition of the A.M.A., Guides. The DMA again concluded that appellant had reached
MMI on June 15, 2016, the date of Dr. Bernstein’s evaluation.
By decision dated February 22, 2018, OWCP vacated its February 2, 2017 decision. It
found that its DMA properly determined that appellant had an additional 1 percent impairment of
his right upper extremity, totaling 12 percent permanent impairment of his right upper extremity.
By decision dated April 13, 2018, OWCP granted appellant an additional schedule award
of one percent right upper extremity permanent impairment. This was above the previously paid
11 percent right upper extremity award, for a total right upper extremity permanent impairment of
12 percent. The additional award ran for a total of 3.12 weeks of compensation covering the period
February 14 to March 7, 2017.
LEGAL PRECEDENT
The schedule award provisions of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body.13 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.14 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).15 The Board has approved the
use by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of
a member of the body for schedule award purposes.16
The sixth edition requires identifying the impairment class of diagnosis (CDX) condition,
which is then adjusted by grade modifiers based on functional history (GMFH), physical
examination (GMPE), and clinical studies (GMCS).17 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).
The A.M.A., Guides also provide that the ROM impairment method is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
diagnosis-based sections are applicable.18 If the ROM method is used as a stand-alone approach,
13

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

14

Id. at § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

15
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5 (March 2017).
16

Isidoro Rivera, 12 ECAB 348 (1961).

17

A.M.A., Guides 401-19.

18

Id. at 461.

6

the total of motion impairment for all units of function must be calculated. All values for the joint
are measured and added.19 Adjustments for functional history may be made if the evaluator
determines that the resulting degree of permanent impairment does not adequately reflect
functional loss and functional reports are determined to be reliable.20
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments.21 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician ( i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the
[A.M.A.,] Guides allow for the use of both the DBI and ROM methods to calculate
an impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)22
The Bulletin further advises:
“If the medical evidence of record is not sufficient for the DMA to render a rating
on ROM where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available evidence.
“Upon receipt of such a report, and if the impairment evaluation was provided from
the claimant’s physician, the CE should write to the claimant advising of the
medical evidence necessary to complete the impairment assessment and provide 30
days for submission. Any evidence received in response should then be routed back
to the DMA for a final determination. Should no evidence be received within 30
days of the date of the CE’s letter, the CE should proceed with a referral for a second
opinion medical evaluation to obtain the medical evidence necessary to complete

19

Id. at 473.

20

Id. at 474.

21

FECA Bulletin No. 17-06 (issued May 8, 2017).

22

Id.

7

the rating. After receipt of the second opinion physician’s evaluation, the CE
should route that report to the DMA for a final determination.”23
ANALYSIS
The Board finds that this case is not in posture for decision.
On prior appeal the Board remanded the case for OWCP to reevaluate the extent of
appellant’s permanent impairment of his right upper extremity after it determined a consistent
method for rating upper extremity impairments under the sixth edition of the A.M.A., Guides. On
remand OWCP indicated that FECA Bulletin No. 17-06 provides that, if the A.M.A., Guides
allowed both the DBI and ROM methods for calculating an identified diagnosis, the method that
yielded the higher impairment rating should be used.24
On June 28, 2016 appellant’s treating physician, Dr. Bernstein, noted that appellant
sustained 29 percent permanent impairment of his right upper extremity pursuant to the A.M.A.,
Guides. He used the DBI method to rate appellant’s permanent impairment. Dr. Bernstein
diagnosed rotator cuff contusion with impingement and residual loss under Table 15-5, page 402
of the sixth edition of the A.M.A., Guides,25 appellant’s loss equated to five percent permanent
impairment of the upper extremity. He further indicated that an AC joint injury/disease equated
to eight percent upper extremity impairment. Utilizing the Combined Values Chart on page 604,
Dr. Bernstein calculated 13 percent impairment of the upper extremity. He awarded an additional
four percent permanent impairment each for pain, weakness, and loss of endurance and function.
Dr. Bernstein found no additional impairment for atrophy. He concluded that appellant had 29
percent total upper extremity permanent impairment. Dr. Bernstein advised that appellant could
return to his internal revenue field agent position with restrictions.
On February 19, 2018 OWCP’s DMA reviewed Dr. Bernstein’s impairment findings. He
noted that, since three independent ROM calculations were not of record, it was not possible to
evaluate appellant’s permanent impairment utilizing the ROM methodology. Pursuant to FECA
Bulletin No. 17-06, the DMA proceeded to evaluate appellant’s impairment using the DBI
methodology.
However, as noted by the DMA, while an alternative ROM calculation for appellant’s
diagnosis was allowed under the A.M.A., Guides, there was only one set of ROM calculations of
record. Pursuant to FECA Bulletin No. 17-06, if the ROM method of rating permanent impairment
is allowed, after review of the DBI rating, the DMA should advise as to the medical evidence
necessary to complete the ROM method of rating if the medical evidence of record is insufficient
to rate appellant’s impairment using ROM. If the claimant’s treating physician has provided an
impairment rating, the claims examiner should then write to the treating physician advising of the
23

Id.

24

Supra note 19. FECA Bulletin No. 17-06 (issued May 8, 2017). See also D.F., Docket No. 17-1474 (issued
January 23, 2018).
25

A.M.A., Guides (6th ed. 2009).

8

medical evidence necessary to complete the rating. If the necessary evidence is not received within
30 days, OWCP is to refer appellant for a second opinion evaluation. In the present case, it did
not follow the procedures outlined in FECA Bulletin No. 17-06 after the DMA advised that the
necessary evidence of three independent ROM findings were not of record to rate appellant’s
permanent impairment utilizing the ROM methodology. For this reason, this case must be
remanded for OWCP to complete the proper procedures outlined in FECA Bulletin No. 17-06 to
rate appellant’s upper extremity permanent impairment. After such further development as
necessary, OWCP shall issue a de novo decision.26
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 13, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision.
Issued: January 18, 2019
Washington, DC

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

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

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

26

See T.M., Docket No. 18-0182 (issued July 26, 2018).

9


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

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

Docket No. 19-0411
Issued: July 19, 2019

Case Submitted on the Record

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

JURISDICTION
On December 18, 2018 appellant, through counsel, filed a timely appeal from a
November 5, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a right shoulder
condition causally related to the accepted factors of her federal employment.

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 4, 2017 appellant, then a 52-year-old rural carrier associate, filed an occupational
disease claim (Form CA-2) for a torn right rotator cuff injury resulting from the repetitive nature
of delivering mail and packages while in the performance of duty. She noted that she first became
aware of her condition on November 21, 2016 and its relationship to her federal employment on
March 8, 2017. Appellant stopped work on March 22, 2017 and has not returned.
In support of her claim, appellant submitted a medical report dated March 8, 2017 from
Dr. David J. Hergan, an attending Board-certified orthopedic surgeon, who advised that she was
restricted from lifting above the chest height with her right arm.
OWCP subsequently received additional reports by Dr. Hergan. In a report dated April 7,
2017, Dr. Hergan noted that appellant was currently out of work from March 8, 2017 until her next
follow-up visit on April 12, 2017. In a duty status report (Form CA-17) dated April 12, 2017, he
noted a date of injury as November 21, 2016. Dr. Hergan further noted a history that appellant’s
injury resulted from repeated use of her right arm while delivering mail and packages. He
diagnosed rotator cuff tear due to injury. Dr. Hergan advised that appellant was unable to perform
her regular work with her right arm. He also noted additional work restrictions.
OWCP also received reports dated March 8 and 29, 2017 indicating, “This documentation
was done by Lauren Okamoto acting as a scribe for Dr. Hergan.”3 Ms. Okamoto initially
diagnosed right shoulder impingement with rotator cuff tendinitis versus tearing and subsequently
diagnosed right shoulder full thickness supraspinatus tear.
In a development letter dated May 11, 2017, OWCP notified appellant of the factual and
medical deficiencies of her claim. It provided a development questionnaire for her completion and
requested that she submit a response in order to substantiate the factual basis of her claim. OWCP
asked appellant to provide detailed information concerning the employment-related activities she
believed contributed to her medical condition and how often and long she performed such duties.
It also asked her to provide a description of all activities outside her federal employment. OWCP
instructed appellant to provide a narrative medical report from her physician which contained a
detailed description of findings and diagnoses, explaining how her work activities caused,
contributed to, or aggravated her medical condition. By separate letter of the same date, it
requested that the employing establishment respond to her allegations and provide information
regarding the tasks she performed and frequency and duration of these activities. OWCP instructed
the employing establishment to submit a copy of appellant’s position description. It afforded both
parties 30 days to respond.
OWCP subsequently received a February 11, 2016 report by Dr. Joseph M. Sohn, a Boardcertified orthopedic surgeon, who reviewed x-ray results of appellant’s cervical and lumbar spines.
In a letter dated February 11, 2016, Dr. Sohn provided an assessment of spondylosis and neck and
low back pain.

3
The Board notes that Ms. Okamoto’s professional qualifications are not contained in the case record and that
Dr. Hergan has not indicated that she was his scribe.

2

An additional report dated April 12, 2017, contained a diagnosis of rotator cuff tear. The
report also indicated, “This documentation was done by Lauren Okamoto acting as a scribe for
Dr. Hergan.”
Dr. Hergan, in an operative report dated May 23, 2017, indicated that he performed right
shoulder arthroscopic rotator cuff repair and subacromial decompression. His preoperative and
postoperative diagnoses were right shoulder rotator cuff tear and impingement.
By decision dated June 12, 2017, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish the factual portion of her claim. It
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
On June 12, 2017 appellant responded to OWCP’s May 11, 2017 development
questionnaire. She described the employment duties that she believed contributed to her condition.
Appellant alleged that her job duties involved lifting heavy ﬂats of mail and sorting and pulling
some them down (which required reaching above her shoulder) for delivery, resulting in constant
lifting, turning, and pushing mail to and from a facility. She further alleged that she delivered
many packages weighing up to 70 pounds. Appellant also sorted and loaded these packages and
delivered them to at least 400 to 600 mailboxes out of the right side of her truck using her right
hand and arm. She implicated constant repetitive motion that she performed with her arm and
shoulder at work as the cause of what started as an ache and sore shoulder/arm and developed into
pain that interfered with her sleep and ability to perform her job. Appellant contended that
ultimately an actual tear of her right rotator cuff was indicated on a magnetic resonance imaging
(MRI) scan. She related that she worked part time, approximately 35 hours a week, but indicated
that she worked at least four days a week for regular route delivery and always on Sunday for
Amazon due to permanent employees taking time off work. Appellant worked an average of eight
to nine hours a day on her route starting with the collection, lifting, and sorting of mail and
packages for about three and one-half hours to four hours. She spent one-half hour loading her
truck and approximately five hours delivering mail and packages. Appellant described her
activities outside her federal employment, which included computer use approximately one to two
hours a week and performing occasional hair services one hour every two weeks during the last
year.
In daily notes dated June 6 through 29, 2017, appellant’s physical therapists noted a
diagnosis of unspecified rotator cuff tear or rupture of the right shoulder, not specified as traumatic.
On July 18, 2017 appellant requested reconsideration of OWCP’s June 12, 2017 decision
and submitted additional medical evidence.
Additional daily notes dated July 5, 6, and 10, 2017 from appellant’s physical therapists
reiterated the diagnosis of unspecified rotator cuff tear or rupture of the right shoulder, not
specified as traumatic.
In a July 11, 2017 letter, Dr. Hergan indicated that he initially saw appellant on March 8,
2017 and that she had experienced approximately one year of worsening right shoulder pain. He
further indicated that she was diagnosed with a full-thickness rotator cuff tear of the right shoulder
on March 29, 2017 based on a March 16, 2017 MRI scan. After further questioning appellant,
3

Dr. Hergan opined: “I believe within a reasonable degree of medical certainty that [appellant’s]
work, which involves casing mail overhead for approximately three hours a day, directly
contributed to and/or aggravated her medical condition of her right shoulder.” He related that he
was not aware of any injury or repetitive activity that she performed outside her federal
employment that could have caused, aggravated, or contributed to her right shoulder condition.
By decision dated October 3, 2017, OWCP affirmed its June 12, 2017 decision, as
modified. It found that appellant had established the factual portion of her claim. However, the
claim remained denied as appellant had not provided a rationalized medical opinion explaining
how her diagnosed right shoulder condition was causally related to the accepted employment
factors.
OWCP received a report dated October 19, 2017 by Dr. Lucinda L. Hautaniemi, a Boardcertified family practitioner, who described examination findings and diagnosed right rotator cuff
disorder. Dr. Hautaniemi noted that appellant had a right shoulder overuse injury documented in
2015 with an acute tear in November 2016 which required surgery. She advised that appellant’s
work duties were the only plausible cause for the injury. In an April 18, 2018 report,
Dr. Hautaniemi noted laboratory test results.
On August 8, 2018 appellant, through counsel, requested reconsideration of OWCP’s
October 3, 2017 decision and submitted an additional report dated May 29, 2018 from Dr. Hergan.
Dr. Hergan noted a history of his own medical treatment of her, including the right shoulder rotator
cuff repair he performed on May 23, 2017. He also noted that he treated appellant following a
right arm injury she sustained at work in February 2017. Dr. Hergan indicated that she slipped on
ice as she reached her right arm out to grab a side mirror of a mail truck. He further indicated that
appellant reported that she had prior pain that she attributed to her work duties which involved
lifting heavy boxes, casing mail over shoulder height with her right arm for hours, delivering mail
outside of her truck, and lifting groups of mail and packages out and away from her body.
Dr. Hergan advised that the job duties outlined above put direct stress on the rotator cuff complex,
specifically the supraspinatus muscle and tendon, by lifting heavy objects away from the body
which were known to cause stress at the supraspinatus tendon/greater tuberosity footprint insertion.
He related that this could lead to gradual tearing of the rotator cuff tendon fibers at this area.
Dr. Hergan maintained that the traction-type injury appellant sustained in February 2017
completely correlated with MRI scan findings, which showed a full-thickness insertional tear of
the supraspinatus. He opined: “I believe that it is within a reasonable degree of medical certainty
that [appellant] likely had progressive partial tearing of her rotator cuff due to the aggregate of
trauma sustained at her job at the service [employing establishment] by lifting and ﬁling,
particularly above chest height and away from her body.” Dr. Hergan further opined: “I also
believe within a reasonable degree of medical certainty that [appellant’s] fall most likely caused a
full-thickness tear, which then led directly to her requiring surgical intervention in the right
shoulder as well as [postoperative] physical therapy.” He noted that he just saw appellant for her
one-year, follow-up visit and that she was doing excellent and no longer had significant pain or
dysfunction. Dr. Hergan concluded that she was new again and able to perform her normal
activities of daily living.
OWCP, by decision dated November 5, 2018, denied modification of its prior decision. It
found that the additional medical evidence submitted failed to establish causal relationship
between the accepted employment incident and the diagnosed right shoulder conditions.
4

LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 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.6
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;7 (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition;8 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.9
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to the accepted factors of her federal employment.
Appellant submitted a series of reports from her physician, Dr. Hergan. In an April 12,
2017 Form CA-17 report, Dr. Hergan diagnosed rotator cuff tear due to her repetitive use of her
right arm while delivering mail and packages at work. The Board finds that, although he supported
causal relationship, he did not provide medical rationale explaining the basis of his conclusory
opinion regarding the causal relationship between appellant’s rotator cuff tear and factors of her

4

Supra note 2.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

6

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

7

Michael R. Shaffer, 55 ECAB 386 (2004).

8

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

9

Beverly A. Spencer, 55 ECAB 501 (2004).

10

See J.R., Docket No. 17-1781 (issued January 16, 2018); I.J., 59 ECAB 408 (2008).

5

employment.11 Dr. Hergan did not explain the process by which repetitive use of her right arm
while delivering mail and packages would cause the diagnosed condition. As the opinion of
appellant’s physician regarding causal relationship was conclusory and unexplained, it was
insufficient to meet appellant’s burden of proof. Dr. Hergan’s April 12, 2017 report is thus
insufficient to establish her burden of proof .12
In a July 11, 2017 report, Dr. Hergan opined that casing mail overhead for approximately
three hours a day, directly contributed to and/or aggravated appellant’s right shoulder fullthickness rotator cuff tear. He noted that he was not aware of any injury or repetitive activity that
she performed outside her federal employment that could have caused, aggravated, or contributed
to her right shoulder condition. However, the Board has found that the mere fact that a disease
manifests itself during a period of employment does not raise an inference that there is a causal
relationship between the two,13 and temporal relationship alone will not suffice for purposes of
establishing causal relationship.14 Thus, the Board finds that Dr. Hergan’s July 11, 2017 report is
insufficient to establish appellant’s burden of proof.
Dr. Hergan, in a May 29, 2018 report, opined: “I believe that it is within a reasonable
degree of medical certainty that [appellant] likely had progressive partial tearing of her rotator cuff
due to the aggregate of trauma sustained at her job at the [employing establishment] by lifting and
ﬁling, particularly above chest height and away from her body.” He further opined: “I also believe
within a reasonable degree of medical certainty that [appellant’s] fall most likely caused a fullthickness tear, which then led directly to her requiring surgical intervention in the right shoulder
as well as posteruptive [sic] physical therapy.” Dr. Hergan’s reports were couched in speculative
terms and were thus insufficient to establish appellant’s claim. While the opinion supporting
causal relationship does not have to reduce the cause or etiology of a disease or condition to an
absolute certainty, the opinion must be one of reasonable medical certainty and not speculative or
equivocal in character.15 Because Dr. Hergan’s opinions are speculative and equivocal in nature,
they do not carry appellant’s burden of proof as to causal relationship.
Dr. Hergan’s remaining reports are of no probative value because they did not relate
appellant’s right shoulder diagnoses, May 23, 2017 surgery, work restrictions, and disability from

11
See S.S., Docket No. 17-1256 (issued December 13, 2018); T.M., Docket No. 08-0975 (issued February 6, 2009)
(a medical report is of limited probative value on the issue of causal relationship if it contains a conclusion regarding
causal relationship which is unsupported by medical rationale).
12
S.S., id.; J.M., 58 ECAB 478 (2007) (where the Board found that appellant did not meet his burden of proof in
establishing a work-related right wrist condition where his physician provided only conclusory support for causal
relationship. As the opinion of appellant’s physician regarding causal relationship was conclusory and unexplained,
it was insufficient to meet appellant’s burden of proof).
13
M.S., Docket No. 19-0189 (issued May 14, 2019); L.T., Docket No. 18-1603 (issued February 21, 2019); Birger
Areskog, 30 ECAB 571 (1979).
14

Id.

15

M.S., supra note 13; C.L., Docket No. 18-1379 (issued February 5, 2019).

6

work to the accepted employment factors.16 For the reasons stated, the Board finds that his reports
are insufficient to establish her burden of proof.
Dr. Hautaniemi, in an October 19, 2017 report, diagnosed right rotator cuff disorder and
opined that appellant’s work duties were the only plausible cause for the injury. However, she
failed to offer medical rationale explaining how appellant’s diagnosed right shoulder condition
was caused or aggravated by the accepted employment factors.17 Medical evidence that does not
offer an opinion regarding the cause of an employee’s condition or disability is of no probative
value on the issue of causal relationship.18 The need for rationale is particularly important as
Dr. Hautaniemi indicated that appellant had a prior history of a right shoulder condition.19 Her
remaining report did provide a history of injury, a firm diagnosis of a particular medical condition,
nor a rationalized opinion regarding causal relationship.20 For the reasons set forth above, the
Board finds that Dr. Hautaniemi’s reports are insufficient to establish appellant’s burden of proof.
Dr. Sohn’s February 11, 2016 reports provided an assessment of spondylosis and neck and
low back pain. His reports, however, do not address whether appellant sustained a right shoulder
condition causally related to the accepted employment factors. Dr. Sohn’s reports predate the 2017
occupational disease claim, as well as, the date that she alleged that she was first aware of her right
shoulder condition, November 21, 2016. The Board finds, therefore, that his reports provide no
specific support for the claim that is at issue on the present appeal.21
The daily notes from appellant’s physical therapists have no probative medical value in
establishing appellant’s claim as physical therapists are not considered “physicians” as defined
under FECA.22 Furthermore, Ms. Okamoto’s reports have no probative medical value because she
did not list her professional qualifications, it is unclear whether she is a physician under FECA.23
As such, this evidence is also insufficient to meet appellant’s burden of proof.

16

See S.G., Docket No. 19-0041 (issued May 2, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018) (medical evidence that does not offer an opinion regarding the cause of an
employee s condition is of no probative value on the issue of causal relationship).
17

Supra note 11.

18

Supra note 16.

19

See S.G., supra note 16; M.B., Docket No. 17-0688 (issued March 15, 2018).

20

See S.G., id.; L.M., Docket No. 18-0473 (issued October 22, 2018).

21

See H.M., Docket No. 11-0781 (issued March 8, 2012).

22
5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See id. at § 8102(2); S.A., Docket No. 16-1128 (issued November 24, 2017); M.M., Docket No. 16-1617 (issued
January 24, 2017); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as nurses, physician
assistants, and physical therapists are not competent to render a medical opinion under FECA). See also Gloria J.
McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal
relationship can only be resolved through the submission of probative medical evidence from a physician).
23

See id. at § 8101(2); Merton J. Sills, 39 ECAB 572, 575 (1988).

7

On appeal, counsel contends that OWCP failed to adjudicate the claim in accordance with
the proper standard of causation and to give due deference to the findings of the attending
physician. However, as discussed above, Dr. Hergan did not provide a rationalized opinion
sufficient to establish that appellant’s diagnosed right shoulder condition was caused or aggravated
by the accepted factors of her federal employment.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the November 5, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 19, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 17-1143
Issued: December 4, 2017

Case Submitted on the Record

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

JURISDICTION
On April 27, 20171 appellant filed a timely appeal from an October 31, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from October 31, 2016, the date of OWCP’s last decision was April 29,
2017, a Saturday; consequently, the period for filing the appeal ran to the next business day, Monday, May 1, 2017.
See 20 C.F.R. § 501.3(f)(2). Since using May 2, 2017, the date the appeal was received by the Clerk of the
Appellate Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing.
The date of the U.S. Postal Service postmark is April 27, 2017, rendering the appeal timely filed. See 20 C.F.R.
501.3(f)(1).
1

2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established an emotional condition in the performance
of duty.
FACTUAL HISTORY
On December 18, 2015 appellant, then a 39-year-old peer specialist, filed an occupational
disease claim (Form CA-2) alleging that she suffered mental distress, physical pain, and sleep
deprivation as a result of her federal employment. On the claim form she wrote that the main
problem was harassment from her supervisor, with other incidents involving coworkers and a
particular veteran that had caused her stress. On the reverse side of the claim form appellant’s
supervisor, A.S., indicated that appellant had not stopped work.
The record contains an employing establishment incident report dated December 9, 2015.
A.S., wrote that appellant was asked why she was absent from a December 7, 2017 meeting, and
she responded that she was being micromanaged. The report indicates that appellant later
contacted A.S.’s supervisor and accused A.S. of harassing her.
By letter dated December 29, 2015, OWCP requested that appellant submit additional
factual and medical evidence to support her claim for compensation. On March 1, 2016
appellant submitted a February 24, 2016 letter and medical evidence.
In the February 24, 2016 letter, appellant alleged that, on September 23, 2015, a veteran
had made a comment that appellant was “knock-kneed” and the comment made her feel
embarrassed. She alleged that there had been other times when that veteran had made comments
about her weight. According to appellant, A.S. had minimized such incidents and told her that
such incidents happen when you are attractive. Appellant then asserted that A.S. had harassed,
bullied, and kept tabs on her for the past two years, creating a hostile work environment. In
November 2013, she asserted that she had told A.S. she was not comfortable riding in the back of
a car full of male patients, but nothing was done, yet other female employees were allowed to sit
in front and drive. Appellant asserted that A.S. did not care about her concerns. She alleged that
she had to share an office with a coworker from October 2013 to May 2014, and this individual
would pick on her and interrupt conversations. In addition, appellant alleged that this coworker
smoked electronic cigarettes in the office. She complained that this was a safety violation, but
A.S. ignored her concerns.
Appellant further alleged that since December 2013 A.S. had constantly hounded her
about not being in the recreational center and not interacting with veterans to build relationships.
She further alleged that A.S. intentionally scheduled outings during times that she had scheduled
meetings and she asserted that she was never asked to facilitate other staff member groups while
they were on leave. When appellant reported this to A.S. on October 28, 2015, A.S. told her it
was because she always rejected her offers to do so. Appellant then discussed volunteering to
make a dish for the 2015 Thanksgiving lunch, but A.S. made sure she was at another clinic and
could not prepare the dish. With respect to December 9, 2015, she asserted that A.S. questioned
her aggressively about missing a December 7, 2015 meeting, but she had told A.S. that she was

2

attending a meeting at another location. Appellant asserted that she had filed a grievance
regarding this matter.3
As to additional evidence submitted on March 1, 2016, the record contains December 2,
4, and 15, 2013 “report of contact” forms from A.S. The December 2, 2013 report refers to a
discussion regarding appellant’s lateness for work and a December 4, 2013 discussion regarding
the need for her to engage more with the patients. The December 15, 2013 report indicated that a
meeting was held to discuss her discomfort with veterans. The report indicated that appellant felt
uncomfortable at a recent outing when she had to sit between two veterans and some of the
veterans smelled and it bothered her allergies. A.S. wrote that appellant was advised that
sometimes the front seat was occupied, but she was not expected to always sit between patients.
There was a discussion involving November 12, 2013, when appellant asked for leave for
personal business. A.S. indicated that appellant was advised to call her if she was not going to
be back by 2:00 p.m., as that was the time put on her timesheet.
The record contains an agreement to mediate dated January 16, 2014, signed by
appellant, A.S., a union representative, and another participant. Included is a page with
comments regarding a coworker. The comments request that this coworker not intervene in
private conversations, criticize everything, or take control of conversations.
In a brief note dated December 23, 2015, appellant wrote that she had filed an Equal
Employment Opportunity (EEO) claim on December 17, 2015. She asserted that A.S. had
demanded she sign some form regarding misconduct and disorderly behavior.
In a letter dated February 29, 2016, A.S. contended that she had not created a hostile
work environment, never interrogated appellant, and had always been respectful. On March 29,
2016 she wrote that appellant’s grievance had been “remedied-satisfied.” A.S. indicated that
appellant spent time in her office and did not interact with the patients, failed to complete notes
in a timely manner,4 and was often late to work.
On September 16, 2016 additional evidence was submitted. In a March 28, 2016 letter,
A.S. asserted that the December 9, 2015 meeting was not conducted in an interrogating manner
and it was appellant who raised her voice. As to the failure to attend a December 7, 2015
meeting, appellant stated that she did not know she was required to attend and felt that A.S. was
micromanaging. A.S. wrote that, despite an agreement made in November/December 2014,
appellant continued to spend time in her office away from her patient case duties.
In a September 9, 2016 statement, a coworker wrote that on September 23, 2015
appellant had complained that an older veteran had made a comment that she was “knock-kneed”
and she was bothered by the remark. The coworker indicated that it was explained to appellant
that patients may at times say something inappropriate, but they do not intend to cause harm.
According to the coworker, the patient indicated that he did not intend to offend appellant, and
3

A February 17, 2016 note from a union representative indicated appellant had alleged that A.S. created a hostile
work environment.
4

The record contains e-mails dated December 10, 2015 from A.S. regarding the need to complete patient notes.

3

he apologized to her. He indicated that he felt they were joking with one another, as they had in
the past.
A.S. also submitted a September 9, 2016 letter addressing appellant’s allegations. She
wrote that she had always been supportive of appellant, that appellant was granted permission to
attend every professional development event, and was allowed to stay in her office when
appellant reported “having a bad day.” A.S. indicated that appellant often had conflicts with
patients or staff members, and felt that others were “looking at her funny.” As to a
September 23, 2015 incident, she wrote that the patient was 73 years old and the staff did not feel
as if he had done anything inappropriate. A.S. asserted that she never made a statement
regarding patients making comments because an employee was attractive, and she had to remind
appellant to be careful how she joked with patients.
A.S. denied harassing appellant about being late, noting that supervisors were required to
know the whereabouts of their staff. She denied ever harassing or bullying appellant. A.S. wrote
that she did not have time to micromanage an employee, but she did expect employees to arrive
at work on time and perform assigned job duties. With respect to outings, she reported that
appellant was never asked to sit in the back of a vehicle, and all staff members drove vehicles
when taking patients on outings. Appellant did share an office for a period of time, but there
were problems from the start and it was agreed that they would minimize using the office at the
same time. A.S. indicated that there was a policy against electronic cigarettes in the building, but
she had no knowledge regarding appellant’s allegations and never told appellant that any
exposure was harmless. In addition, she denied ever intentionally scheduling outings during
appellant’s scheduled meetings.
By decision dated October 31, 2016, OWCP denied appellant’s emotional condition,
finding that appellant had not substantiated a compensable work factor.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment, but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties, or to a requirement imposed
by the employment, the disability comes within the coverage of FECA. On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force, or his or her frustration from not being permitted to work in a particular environment, or
to hold a particular position.5
Appellant has the burden of proof to establish by the weight of the reliable, probative,
and substantial evidence that the condition for which he or she claims compensation was caused
or adversely affected by employment factors.6 This burden includes the submission of a detailed
5

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, 28
ECAB 125 (1976).
6

Pamela R. Rice, 38 ECAB 838, 841 (1987).

4

description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.7
In cases involving emotional conditions, the Board has held that when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician, when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.8 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.9
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be probative and reliable evidence that harassment or discrimination did in fact
occur.10 Mere perceptions of harassment, retaliation or discrimination are not compensable
under FECA.11
ANALYSIS
The Board finds that appellant has not alleged that, under Cutler,12 her emotional
condition was caused by performance of actual employment duties.13 Rather, appellant objects
to various actions by the employing establishment personnel.
Appellant alleged that she was harassed by her supervisor, A.S. She alleged, for
example, that the supervisor micromanaged her, did not ask her to facilitate other staff members’
groups, intentionally scheduled outings when appellant would be at a meeting, and failed to
respond to concerns such as riding in the back seat with male patients. As noted above, there
must be probative and reliable evidence to support a claim of harassment.14
Appellant has not submitted probative evidence of harassment in this case. There is no
evidence of record corroborating appellant’s allegations of micromanaging or other inappropriate
supervision. It is well established that any allegation of error with regard to micromanaging
7

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

8

See Charles D. Edwards, 55 ECAB 258 (2004); Norma L. Blank, 43 ECAB 384 (1993).

9

Lori A. Facey, 55 ECAB 217 (2004); Norma L. Blank, id.

10

Marlon Vera, 54 ECAB 834 (2003).

11

Kim Nguyen, 53 ECAB 127 (2001).

12

Supra note 5.

13

See D.R., Docket No. 16-0605 (issued October 17, 2016).

14

Supra note 10.

5

must be supported by probative evidence.15 The Board has held that the manner in which a
supervisor exercises his or her discretion falls outside the coverage of FECA. This principle
recognizes that a supervisor or manager must be allowed to perform his or her duties and that
employees will, at times, disagree with actions taken. Mere disagreement with or dislike of
actions taken by a supervisor or manager will not be compensable absent evidence establishing
error or abuse.16 Appellant’s supervisor, A.S. explained that appellant was often late and it was a
supervisor’s responsibility to account for an employee’s work hours. The record contains reports
of contact indicating that the supervisor addressed appellant’s concerns, such as riding in the
back seat with male patients. There is no evidence to support that A.S., acting as a supervisor,
intentionally kept her from outings or ignored appellant’s concerns. As to an allegation that,
A.S. interrogated appellant about missing a December 7, 2015 meeting, there was no evidence of
error or abuse. While appellant has referred to filing a grievance and an EEO complaint, no
evidence of such actions was presented and no findings of error have been submitted.17
Appellant also alleged that she had to share an office with a coworker who picked on her
and at times smoked electronic cigarettes. However, she failed to provide information with
respect to any specific instances of these assertions, and no witness statements or other
supporting evidence were presented. While appellant submitted a copy of a mediation agreement
involving this coworker, none of the listed allegations indicated that he used electronic
cigarettes. Furthermore, appellant’s supervisor indicated that she had no knowledge of any
specific allegations against the coworker. As such, the evidence of record is insufficient to
support appellant’s allegations involving her coworker.18
In addition, appellant referred to a September 23, 2015 incident when a patient made a
remark about her appearance that made her feel uncomfortable. While the Board has recognized
the compensability of verbal abuse in certain circumstances, this does not imply that every
statement uttered in the workplace will give rise to a compensable work factor.19 The evidence
of record indicates that the patient did not intend to offend appellant and was simply joking with
her as he had in the past. There is no evidence that the comment from the patient rose to the
level of verbal abuse that established a compensable work factor.20
The Board accordingly finds that appellant has not substantiated a compensable work
factor with respect to her claim for compensation. In the absence of a compensable work factor,

15

See S.B., Docket No. 16-1124 (issued November 10, 2016); P.R., Docket No. 14-0346 (issued
September 3, 2014).
16

See Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

17

A.M., Docket No. 17-0192 (issued June 5, 2017).

18

See Y.J., Docket No. 15-1137 (issued October 4, 2016).

19

Judy L. Kahn, 53 ECAB 321, 326 (2002).

20

See K.T., Docket No. 11-0269 (issued September 20, 2011).

6

the Board will not address the medical evidence.21 It is appellant’s burden of proof to establish
her claim, and appellant has not met her burden of proof in this case.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established an emotional condition in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 31, 2016 is affirmed.
Issued: December 4, 2017
Washington, DC

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

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

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

21

See Margaret S. Krzycki, 43 ECAB 496 (1992).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
U.S. POSTAL SERVICE, PROCESSING
& DISTRIBUTION CENTER, Fox Valley, IL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-2062
Issued: May 17, 2011

Case Submitted on the Record

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

JURISDICTION
On August 10, 2010 appellant filed a timely appeal from April 21 and July 28, 2010 merit
decisions of the Office of Workers’ Compensation Programs which denied his traumatic injury
claim. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury causally related to his December 7, 2009 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 14, 2009 appellant, then a 53-year-old clerk, filed a traumatic injury claim
alleging that on December 7, 2009 he sustained injuries to his back, shoulder, arm and hand
while pulling dock plates on the dock.
According to an unsigned December 14, 2009 hospital record, Dr. Jeffrey A. Zeitler,
Board-certified in emergency medicine, treated appellant in the emergency room and diagnosed
a thoracic strain. A December 14, 2009 work excuse slip and duty status report with an illegible
signature, excused appellant from work until December 16, 2009 and diagnosed him with right
thoracic strain. It was noted that he was injured on December 7, 2009 after pulling chains and
popping the plates on a dock and marked “yes” that this diagnosis was due to the December 7,
2009 work event.
Appellant provided medical reports from Dr. Kaleem Khan, a Board-certified family
practitioner. In a December 10, 2009 report, he complained of pain in his upper back and neck,
which radiated to both arms and shoulder blades, for the past month. Appellant stated that he
could not turn his neck without pain and experienced tingling and numbness on both arms when
he is working. Dr. Khan noted that he worked for the employing establishment and his job,
which involved, lifting, pulling, pushing and bending down, aggravated the pain in his back. He
conducted a physical examination, reviewed appellant’s social and medical background and
diagnosed a back sprain. Dr. Khan provided a work excuse slip advising appellant to return to
full duty without restrictions on December 17, 2009.
In a December 17, 2009 medical report, Dr. Khan stated that appellant was treated for
back pain. Upon physical examination, he noted tenderness in appellant’s upper back and
spasms of the paraspinal thoracic muscles. Dr. Khan diagnosed a back sprain. In a January 12,
2010 report, he noted that appellant was seen in the hospital emergency room on January 1, 2010
for back pain and complained of upper back pain radiating to his shoulders and arms. Dr. Khan
reviewed appellant’s social and medical background and conducted a physical examination,
which revealed spasms of the upper thoracic and cervical muscles and decreased range of
motion. He diagnosed a back sprain and advised appellant to avoid bending, stooping, lifting,
pushing or pulling.
In an undated statement, appellant reported that on December 7, 2009 he was hurt on the
job and filled out all related documents with his supervisor. He requested copies of any
documents related to the December 7, 2009 employment incident.
On March 16, 2010 the Office advised appellant that the evidence submitted was
insufficient to support his claim because the medical evidence did not explain how his condition
resulted from the December 7, 2009 work event. It requested that he describe whether the claim
was for his shoulder and arm, his left or right side and whether he previously had any similar
disabilities or symptoms. The Office also requested that appellant provide a detailed, narrative
medical report from his physician, which should include a history of the injury, examination and
treatments received, results of any examinations and tests, medical diagnosis and his physician’s
opinion, supported by medical rationale, explaining how the December 7, 2009 employment
incident caused or aggravated the alleged injury.

2

In a January 29, 2009 handwritten record, Dr. Richard Gelband, a chiropractor, stated that
appellant sustained a shoulder and neck injury at work on December 7, 2009 when he was
pulling chains at work. He diagnosed cervical radiculopathy. Appellant explained that his pain
was located in his upper back, shoulder, neck and arms. In progress notes dated January 29 to
March 12, 2010, Dr. Gelband recorded appellant’s treatments.
In a decision dated April 21, 2010, the Office denied appellant’s claim on the grounds of
insufficient medical evidence. It accepted that the December 7, 2009 incident occurred as
alleged, but found that the medical evidence failed to provide a physician’s opinion regarding
how his diagnosed conditions were causally related to the accepted event.
On May 14, 2010 appellant requested a review of the written record. He submitted a
November 15, 2009 report of hazard, unsafe conditions signed by appellant, which indicated that
the dock area had bays that did not work properly. He also submitted a PS Form 1769 about the
employment incident, which noted that he was injured on December 7, 2009 and that the
emergency pull cords or stop buttons were improperly placed and inaccessible. Appellant
explained that he sustained a thoracic strain and experienced pain in his shoulder, back, arm and
hand when he was popping the dock plates on the dock.
On June 24, 2010 the Office advised the employing establishment that appellant
requested a review of the written record and asked for any comments or relevant documents to be
submitted within 20 calendar days. No response was received.
By decision dated July 28, 2010, the Office hearing representative affirmed the April 21,
2010 decision, finding that appellant failed to submit sufficient medical evidence to establish that
his medical conditions were causally related to the December 7, 2009 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under the Act2 has the burden of proof to establish the
essential elements of his claim by the weight of the reliable, probative and substantial evidence3
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton,
40 ECAB 1143, 1145 (1989).
5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

3

incident at the time, place and in the manner alleged.6 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.7 An employee may establish that the
employment incident occurred as alleged but fail to show that his disability or condition relates
to the employment incident.8
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence providing a diagnosis or opinion as to
causal relationship.9 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 specified employment factors or incident. 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.10
ANALYSIS
The Office accepted that on December 7, 2009 appellant was pulling dock plates on the
dock at work. Appellant was subsequently diagnosed with thoracic strain and cervical
radiculopathy. The issue is whether he established that his alleged back, shoulder, arm or hand
conditions resulted from the accepted December 7, 2009 employment incident.
On December 14, 2009 Dr. Zeitler treated appellant in the emergency room and
diagnosed a thoracic strain. He did not provide any opinion on the cause of appellant’s condition
or describe the December 7, 2009 work incident. In December 10, 17, 2009 and January 12,
2010 medical reports, Dr. Khan diagnosed appellant with a back sprain but did not explain how
appellant was injured or mention the December 7, 2009 incident. None of these reports relate
appellant’s back condition to the December 7, 2009 work event or explain how pulling plates off
the dock caused his back condition. It was noted in the December 10, 2009 report, that appellant
stated he experienced back and neck pain for the past month and that his employing
establishment duties aggravated his pain. He failed to mention any specific work event. As the
reports fail to provide an accurate history of injury describing the December 7, 2009 incident,
they are not based upon a complete and factual background and are of limited probative value.11

6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

7

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

8

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

9

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

10

I.J., 59 ECAB 408 (2008); B.B., 59 ECAB 234 (2007); Victor J. Woodhams, 41 ECAB 345 (1989).

11

Paul Foster, 56 ECAB 208 (2004); J.F., Docket No. 09-1061 (issued November 17, 2009).

4

In a December 14, 2009 duty status form, it was marked “yes” that appellant’s thoracic
strain was due to the December 7, 2009 work event.12 The Board has held, however, that when a
physician’s opinion on causal relationship consists only of checking “yes” to a form question,
without explanation or rationale, that opinion is of diminished probative value and is insufficient
to establish a claim.13 No explanation is given for the conclusion that appellant’s back condition
was a result of the work event and no evidence is provided indicating that the provider is a
physician. Thus, this report is insufficient to establish causal relationship.
Appellant also provided a medical report by Dr. Gelband, a chiropractor, who stated that
appellant sustained a shoulder and neck injury at work on December 7, 2009 when he was
pulling up chains at work and diagnosed him with cervical radiculopathy. Although Dr. Gelband
provided an accurate history of injury and opinion as to causal relationship, chiropractors are
defined as “physicians” only to the extent that their reimbursable services are limited to
treatment consistent of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist.14 The record does not contain any x-ray report or indication that
Dr. Gelband ever requested that x-rays be taken. Further, he diagnosed appellant with cervical
radiculopathy, not subluxation. Dr. Gelband is not considered a “physician” under the Act and
his opinion does not constitute probative medical evidence.
On appeal, appellant contended that his injury was caused by following his supervisor’s
instructions to pop all the dock plates even though this activity was not part of his job
requirements as a clerk. A claimant’s belief, however, that his condition was caused by his
employment is insufficient to establish causal relationship.15 As noted, the issue of causal
relationship is a medical question that must be established by probative medical opinion from a
physician.16 Appellant contended that his supervisor did not provide any information about his
injury in response to the Office’s request. As noted, however, it is his burden to establish all the
elements of his claim.17 Appellant did not provide probative medical opinion in this case and
failed to meet his burden of proof to establish his traumatic injury claim.18

12

The December 14, 2009 duty status form contained an illegible signature, which appellant alleged on appeal
was completed by his supervisor.
13

D.D., 57 ECAB 734, 738 (2006); Lucrecia, M. Nelson, 42 ECAB 583, 594 (1991).

14

Paul Foster, 56 ECAB 208 (2004); D.S., Docket No. 09-860 (issued November 2, 2009); see also 5 U.S.C.
§ 8101(2).
15

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Sharon Yonak, 49 ECAB 250 (1997).

16

David Apgar, 57 ECAB 137 (2005); W.W., Docket No. 09-1619 (issued June 2, 2010).

17

See Elaine Pendleton, supra note 4.

18

To the extent that medical evidence of record refer to repetitive lifting, pulling, pushing and bending down at
work occurring over more than one shift, rather than a single incident and that appellant indicated in the
December 10, 2009 medical report that he experienced pain for the past month, the medical evidence implicates that
he may have an occupational disease claim.

5

CONCLUSION
The Board finds that appellant did not establish that his back, shoulder, arm and hand
conditions were causally related to the December 7, 2009 employment incident.19
ORDER
IT IS HEREBY ORDERED THAT the July 28 and April 21 2010 decisions of the
Office of Workers’ Compensation Program are affirmed.
Issued: May 17, 2011
Washington, DC

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

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

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

19

Appellant may submit additional evidence, together with a written request for reconsideration, to the Office
within one year of the Board’s merit decision under 5.U.S.C. § 8128.

6