United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

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

Docket No. 16-0882
Issued: August 19, 2016

Case Submitted on the Record

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

JURISDICTION
On March 23, 2016 appellant filed a timely appeal from a January 27, 2016 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 established a traumatic injury on July 14, 2015 causally
related to the accepted employment incident.
FACTUAL HISTORY
On July 18, 2015 appellant, then a 53-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on July 14, 2015 she was dismounting her truck to deliver a package
and tripped while she was exiting her truck. She reported that when she tripped, she twisted her
back and pulled a muscle in her left leg behind the knee. Appellant’s supervisor controverted the
1

5 U.S.C. § 8101 et seq.

claim reporting that appellant’s statement was inconsistent with the facts found during the
investigation.
By letter dated July 29, 2015, OWCP requested that the employing establishment provide
additional information pertaining to the July 14, 2015 employment incident. In another letter of
that same date, it informed appellant that the evidence of record was insufficient to support her
claim. Appellant was advised of the medical and factual evidence needed and was afforded 30
days to respond, but failed to respond.
By decision dated September 1, 2015, OWCP denied appellant’s claim finding that
appellant had not established that the July 14, 2015 employment incident occurred at the time,
place, and in the manner alleged. It noted that she failed to establish fact of injury because she
did not respond to the questionnaire that was sent with the July 29, 2015 development letter.
OWCP further found that there was no evidence of record to establish a firm medical diagnosis
which could be reasonably attributed to the alleged July 14, 2015 employment incident.
On September 18, 2015 appellant requested review of the written record before an
OWCP hearing representative. In support of her claim, she submitted a narrative statement
explaining that she was injured on July 14, 2015 when she was delivering mail and packages on
her route. Appellant reported that she dismounted her truck to retrieve a package from the back
she stumbled over an unseen object in the road causing her to lose her footing. She attempted to
stop herself from falling and twisted her body in an awkward position. Appellant explained that
she attempted to break her fall, but her left knee bent in an awkward position which caused her to
pull a muscle in her lower back. She completed her route in pain which worsened over the next
few days, causing her to seek medical attention. Appellant further stated that she had no prior
issues with her left knee or back until the July 14, 2015 employment incident.
In support of her claim, appellant submitted medical reports dated July 31 through
September 2, 2015 from Dr. James M. Weiss, a Board-certified orthopedic surgeon. In his
July 31, 2015 report, Dr. Weiss noted that on July 14, 2015 appellant exited her truck and was
walking around it when she tripped and fell, injuring her lower back and left knee. He provided
findings on physical examination and noted that x-rays revealed moderate degenerative changes
of the lumbar spine, as well as degenerative changes of the knee. Dr. Weiss diagnosed left knee
sprain and lumbar sprain.2 In reports dated August 12 through September 2, 2015, he provided
findings on physical examination and work restrictions.
By decision dated January 27, 2016, OWCP’s hearing representative affirmed the
September 1, 2015 decision, as modified, finding that evidence of record established that the
July 14, 2015 employment incident occurred as alleged. However, the hearing representative
also found that appellant failed to provide a signed medical report with a firm medical diagnosis
which could be reasonably attributed to the July 14, 2015 employment incident.

2

The Board notes that the original medical diagnoses of sprain by Dr. Weiss, was to appellant’s right knee.
However, on August 12, 2015 he corrected the diagnoses to reflect a sprain of the left knee. The remainder of
Dr. Weiss’ medical reports are consistent in reporting complaints of the left knee.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was filed within the applicable
time limitation, that an injury was sustained while in the performance of duty as alleged, and that
any disability or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.6 The opinion of the physician must be based on one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.
This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.7
ANALYSIS
The Board finds that appellant failed to establish left knee and back conditions causally
related to the accepted July 14, 2015 employment incident.
In support of her claim, appellant submitted medical reports dated July 31 through
September 2, 2015 from Dr. Weiss, her treating physician. In the January 27, 2016 decision,
OWCP’s hearing representative found Dr. Weiss’ reports to lack probative value as the author of
the documents could not be identified as a physician. The Board notes that Dr. Weiss’ reports
were printed on his office letterhead and contained a signature line with his printed name. While
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, supra note 3.

6

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

7

James Mack, 43 ECAB 321 (1991).

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his reports may be unsigned, the Board finds that there are sufficient indicia of identification
concerning its author and authorship can be ascertained.8 Thus, the reports are of probative
value as the evidence establishes that they were created by Dr. Weiss.9
In his July 31, 2015 medical report, Dr. Weiss described the July 14, 2015 incident
explaining that appellant had exited her truck and was walking around it when she tripped and
fell, injuring her lower back and left knee. He diagnosed left knee sprain and lumbar sprain.
Appellant, therefore, has sufficiently established a sufficient diagnosis of lumbar and left knee
strain based on Dr. Weiss’ July 31, 2015 report.
While Dr. Weiss established diagnoses of lumbar and left knee strains, he failed to
provide a rationalized medical opinion regarding the cause of appellant’s conditions. His
July 31, 2015 report vaguely noted that appellant injured her back and did not provide details
regarding her medical history or comment on any potential preexisting lumbar conditions.
Dr. Weiss noted that x-rays of the lumbar spine showed moderate degenerative changes yet
failed to explain why her lumbar injury was not caused by a preexisting degenerative condition.
He merely recounted the incident as described by appellant and failed to detail the physical
exertion and activities which would cause her injury on July 14, 2015. Medical evidence that
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.10 The opinion of a physician supporting causal
relationship must rest on a complete factual and medical background supported by affirmative
evidence, address the specific factual and medical evidence of record, and provide medical
rationale explaining the relationship between the diagnosed condition and the established
incident or factor of employment.11 Without explaining how physiologically the movements
involved in the employment incident caused or contributed to the diagnosed conditions,
Dr. Weiss’ opinion is of limited probative value and is insufficient to meet appellant’s burden of
proof.12
Dr. Weiss’ reports dated August 12 through September 2, 2015 are also insufficient to
establish that appellant sustained injuries causally related to the July 14, 2015 employment
incident.13 These reports fail to provide a firm diagnosis and do not contain a narrative opinion
on causal relationship between the diagnosed conditions and the accepted employment
incident.14

8

T.B., Docket No. 15-0001 (issued July 1, 2015).

9

Id.

10

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

11

See Lee R. Haywood, 48 ECAB 145 (1996).

12

See L.M., Docket No. 14-973 (issued August 25, 2014); R.G., Docket No. 14-113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-548 (issued November 16, 2012).
13

See Robert Broome, 55 ECAB 339 (2004).

14

A.T., Docket No. 15-632 (issued June 9, 2015).

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The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relationship.15 An award of compensation may
not be based on surmise, conjecture, speculation, or on the employee’s own belief of causal
relation.16 To establish a firm medical diagnosis and causal relationship, appellant must submit a
physician’s report in which the physician reviews those factors of employment alleged to have
caused her condition and, taking these factors into consideration, as well as findings upon
examination and appellant’s medical history, explain how these employment factors caused or
aggravated any diagnosed condition, and present medical rationale in support of his opinion.17
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury on July 14, 2015 causally related to her accepted employment incident.

15

Daniel O. Vasquez, 57 ECAB 559 (2006).

16

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

17

Supra note 10.

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ORDER
IT IS HEREBY ORDERED THAT the January 27, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: August 19, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Quemado, NM, Employer
__________________________________________

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

Docket No. 17-0029
Issued: March 2, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 10, 2016 appellant, through counsel, filed a timely appeal of a September 12,
2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Because
more than 180 days elapsed from the last merit decision, dated March 3, 2016, to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3 the Board lacks jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing
pursuant to 5 U.S.C. § 8124.
FACTUAL HISTORY
On September 4, 2012 appellant, then a 65-year-old forestry technician filed a traumatic
injury claim (Form CA-1) alleging that on September 3, 2012, after spraying down the bathroom
area at Quemado Lake Recreation Area, he rolled up a hose, put it away, reached for water, felt
pain in the left shoulder, and heard a popping sound. He did not stop work.
By decision dated November 7, 2012, OWCP denied appellant’s claim because the
evidence was insufficient to establish a medical condition causally related to the accepted work
events.
On December 26, 2012 appellant requested reconsideration of the November 7, 2012
OWCP decision. By decision dated February 6, 2013, OWCP denied modification of its prior
decision.
On February 9, 2016 appellant, through counsel, filed a motion to rescind the decision
dated February 6, 2013. Counsel asserted that a new detailed medical narrative report from a
Dr. Demitri A. Adarmes provided an explanation of causation in appellant’s claim.
By decision dated March 3, 2016, OWCP denied modification of the decision dated
February 6, 2013.
On March 10, 2016 appellant, through counsel, requested a telephone hearing before a
hearing representative.
By decision dated September 12, 2016, an OWCP hearing representative denied
appellant’s request for an oral hearing as he was not entitled to a hearing as a matter of right
because he had previously requested reconsideration on the same decision. OWCP exercised its
discretion and further determined that the issue in the case could equally well be addressed by
requesting reconsideration from OWCP and submitting evidence not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his
claim before a representative of the Secretary.3 Section 10.615 of the federal regulations
implementing this section of FECA provides that a claimant shall be afforded a choice of an oral

3

5 U.S.C. § 8124(b)(1).

2

hearing or a review of the written record.4 OWCP’s regulations provide that the request must be
sent within 30 days of the date of the decision for which a hearing is sought and also that the
claimant must not have previously submitted a reconsideration request (whether or not it was
granted) on the same decision.5
Additionally, the Board has held that OWCP, in its broad discretionary authority in the
administration of FECA,6 has the power to hold hearings in certain circumstances where no legal
provision was made for such hearings and that OWCP must exercise this discretionary authority
in deciding whether to grant a hearing.7 OWCP procedures, which require OWCP to exercise its
discretion to grant or deny a hearing when the request is untimely or made after reconsideration,
are a proper interpretation of FECA and Board precedent.8
ANALYSIS
Appellant’s request for an oral hearing before a hearing representative dated March 9,
2016 was denied as he had previously requested reconsideration pursuant to 5 U.S.C. § 8128(a).9
In its September 12, 2016 decision, OWCP noted that, while he was not entitled to an oral
hearing as a matter of right, it had considered the matter in relation to the issue involved and,
under its discretionary authority, denied the request as appellant could pursue his claim further
by requesting reconsideration and submitting evidence in support of his claim.
Appellant had previously requested reconsideration on December 17, 2012 and
February 9, 2016 and OWCP had issued its reconsideration decisions on February 6, 2013 and
on March 3, 2016. In the instant case, appellant’s request for an oral hearing, received March 10,
2016, was made following requests for reconsideration under 5 U.S.C. § 8128. Hence, OWCP
correctly found that appellant was not entitled to an oral hearing before an OWCP hearing
representative as a matter of right under section 8124(b)(1) of FECA as he had previously
requested reconsideration.10
OWCP then exercised its discretion and determined that appellant’s hearing request could
equally well be addressed by requesting reconsideration and submitting additional evidence to
address the issue in this case. The Board finds that there is no evidence of record that OWCP
4

20 C.F.R. § 10.615.

5

Id. at § 10.616(a).

6

5 U.S.C. §§ 8101-8193.

7

Marilyn F. Wilson, 52 ECAB 347 (2001).

8

Teresa M. Valle, 57 ECAB 542 (2006). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and
Reviews of the Written Record, Chapter 2.1601.4(b)(1) (October 2011).
9

See Peggy R. Lee, 46 ECAB 527 (1995) (where the Board found that appellant’s request for an oral hearing was
made after OWCP issued its decision on his request for reconsideration made pursuant to 5 U.S.C. § 8128 and
therefore appellant was not entitled to an oral hearing before an OWCP hearing representative as a matter of right).
10

Supra note 3.

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abused its discretion in denying appellant’s hearing request.11 Thus, the Board finds that
OWCP’s September 12, 2016 decision denying appellant’s request for an oral hearing was
proper under the law and facts of this case.
On appeal, appellant, through counsel, argued the merits of his claim and asserted that he
submitted sufficient evidence to establish that he sustained a left shoulder injury in the
performance of duty. As explained, the Board does not have jurisdiction over the merits of the
case.
CONCLUSION
The Board therefore finds that OWCP properly denied appellant’s request for an oral
hearing pursuant to 5 U.S.C. § 8124(b)(1).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 12, 2016 is affirmed.
Issued: March 2, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

Daniel J. Perea, 42 ECAB 214, 221 (1990).

4


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

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

Docket No. 07-1268
Issued: October 9, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 11, 2007 appellant filed a timely appeal from a March 1, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for
reconsideration on the grounds that it was untimely filed and did not establish clear evidence of
error. Because more than one year has elapsed between the last merit decision dated
December 11, 1995 and the filing of this appeal, the Board lacks jurisdiction to review the merits
of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.

1

According to Office procedure, the one-year period for requesting reconsideration begins on the date following
issuance of the original Office decision, but the right to reconsideration within one year also accompanies any
subsequent merit decision on the issues, including any merit decision by the Board. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3b (June 2002).

FACTUAL HISTORY
This is the fourth appeal in the present case. In the first appeal, the Board issued a merit
decision on December 11, 1995, affirming the Office’s January 25, April 8 and August 8, 1994
decisions, as modified, to reflect that appellant had no disability after March 10, 1993 due to her
February 9, 1992 left wrist and thumb injury. It also found that she had not met her burden of
proof to establish that she sustained a recurrence of total disability on or after February 19, 1992
causally related to her accepted December 2, 1986 right wrist injury.2 The Board found that the
well-rationalized opinion of Dr. Anthony S. Unger, a Board-certified orthopedic surgeon, who
served as an impartial medical specialist, established that appellant had no disability after
March 10, 1993, due to her February 9, 1992 employment injury.3 In the second appeal, the
Board issued a nonmerit decision on February 26, 2003, affirming the Office’s April 2 and
June 1, 2001 decisions on the grounds that it did not abuse its discretion by refusing to reopen
appellant’s case for further merit review under 5 U.S.C. § 8128(a) because her applications for
review were not timely filed and failed to present clear evidence of error.4 In the third appeal,
the Board issued a nonmerit decision dated July 13, 2004, affirming the Office’s August 18,
2003 nonmerit decision denying appellant’s request for reconsideration as untimely and failing to
show clear evidence of error.5 The facts and the circumstances of the case up to that point are set
forth in the Board’s prior decisions and are incorporated herein by reference.
On May 12, 2005 appellant requested reconsideration before the Office. She contended
that her request was timely, in that it was filed within one year of the Board’s July 13, 2004
decision. Appellant recited the history of her case and argued that the medical evidence of
record did not establish that her left wrist and thumb condition had ceased. She contended that
she should not have to provide new medical evidence on each appeal to the Office, in that she
had already provided supporting medical evidence from her attending physician, Dr. Rida Azer,
a Board-certified orthopedic surgeon.
Appellant submitted a May 4, 2005 report from Dr. Azer who stated that appellant had
pain, numbness and weakness in the left wrist and hand. Examination revealed tenderness over
the first dorsal compartment; positive Finkelstein’s sign; intact abductor pollicis longus and
extensor pollicis; thickening of the first dorsal compartment with limitations of motion;
tenderness over the volar carpal ligament with a positive Tinel’s sign of the median nerve and
hypoesthesia over the left median nerve distribution. Dr. Azer recommended surgical
intervention. Appellant had informed him that she was working on a “NIXIE” machine, and was
2

Docket No. 95-802 (issued December 11, 1995).

3

The Office had accepted that appellant sustained employment-related left thumb tendinitis on February 9, 1992.
The Office determined that appellant was entitled to disability compensation for this injury until June 1, 1992. The
file number for this injury is A25-398729. In its December 11, 1995 decision, the Board also affirmed the Office’s
April 8 and June 9, 1994 decisions on the grounds that appellant did not meet her burden of proof to establish that
she sustained a recurrence of total disability on or after February 19, 1992 due to her December 2, 1986 right hand
and wrist injury. This injury (file number A25-297044) is not the subject of the present appeal.
4

Docket No. 01-1776 (issued February 26, 2003).

5

Docket No. 04-499 (issued July 13, 2004).

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sorting, lifting and sealing damaged mail. Appellant also informed Dr. Azer that “she had a
‘recurrence’ on July 18, 1992.”
In a letter dated July 18, 2005, the Office informed appellant that it did not have
jurisdiction to review the merits of her request for reconsideration, because the Board’s July 13,
2004 decision was a nonmerit decision, which became final 30 days after it was filed.
In a letter dated December 7, 2006, appellant contended that the Office’s July 18, 2005
decision, denying her request for reconsideration of its May 12, 2005 decision, did not contain
findings of fact, a statement of reasons or appeal rights. She disagreed with the one-year time
limitation for filing a request for reconsideration, contending that her request should be
considered timely because it was filed within one year of the Board’s July 13, 2004 nonmerit
decision. Appellant reiterated her contention that the weight of medical evidence should be
afforded to her attending physician, Dr. Azer, and that her claim was improperly denied.
By decision dated March 1, 2007, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely and failed to present clear evidence of error.6
LEGAL PRECEDENT
The Federal Employees’ Compensation Act7 provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee may obtain this relief through a request to the
district Office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”8
20 C.F.R. § 10.607(b) provides that the Office will consider an untimely application only
if it demonstrates clear evidence of error by the Office in its most recent merit decision. To
establish clear evidence of error, a claimant must submit evidence relevant to the issue which
was decided by the Office. The evidence must be positive, precise and explicit, and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office. To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion, or establish a clear procedural error, but must be of sufficient
6

In its March 1, 2007 decision, the Office referred to December 7, 2006 as the date of appellant’s request for
reconsideration. However, the Board notes that appellant requested reconsideration on May 12, 2005.
7

5 U.S.C. § 8101 et seq.

8

20 C.F.R. § 10.605.

9

See Alberta Dukes, 56 ECAB ___ (Docket No. 04-2028, issued January 11, 2005); see also Leon J. Modrowski,
55 ECAB 196 (2004).

3

probative value to prima facie shift the weight of the evidence in favor of the claimant. The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of the Office, such that the Office abused its discretion in denying merit
review in the face of such evidence.10
ANALYSIS
The Office properly determined that appellant failed to file a timely application for
review. The Office’s procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision. However, a right to
reconsideration within one year accompanies any subsequent merit decision on the issues.11 The
last merit decision in this case was the Board’s December 11, 1995 decision, affirming the
Office’s January 25, April 8 and August 8, 1994 decisions, as modified, to reflect that appellant
had no disability after March 10, 1993 due to her February 9, 1992 left thumb injury, and finding
that she had not met her burden of proof to establish that she sustained a recurrence of total
disability on or after February 19, 1992, causally related to her accepted December 2, 1986 right
wrist injury. As appellant’s May 12, 2005 request for reconsideration was submitted more than
one year after this last merit decision, it was untimely.12 Consequently, she must demonstrate
clear evidence of error on the part of the Office in denying her claim for compensation.13
In accordance with its internal guidelines and with Board precedent, the Office properly
performed a limited review to determine whether appellant’s application for review showed clear
evidence of error that would warrant reopening her case for merit review under section 8128(a)
of the Act, notwithstanding the untimeliness of her application. On May 12, 2005 appellant
contended that her request for reconsideration was timely, in that it was filed within one year of
the Board’s July 13, 2004 decision. She recited the history of her case and argued that the
medical evidence of record did not establish that her left wrist and thumb condition had ceased.
Appellant contended that she should not have to provide new medical evidence on each appeal to
the Office, in that she had already provided “actual factual evidence with supporting medical
evidence from [her] attending physician, Dr. Rida Azer, without coercion.” In her December 7,
2006 letter, she disagreed with the one-year time limitation for filing a request for
reconsideration, contending that her request should be considered timely because it was filed
within one year of the Board’s July 13, 2004 nonmerit decision. Appellant reiterated her
contention that the weight of medical evidence should be afforded to her attending physician,
Dr. Azer, and that her claim was improperly denied. She submitted a May 4, 2005 report from

10

See Alberta Dukes, supra note 9.

11

Veletta C. Coleman, 48 ECAB 367 (1997); Larry L. Lilton, 44 ECAB 243 (1992).

12

In its March 1, 2007 decision, the Office referred to December 7, 2006 as the date of appellant’s request for
reconsideration. However, the Board notes that appellant requested reconsideration on May 12, 2005 and reiterated
her request on December 7, 2006. The Office’s informational letter dated July 18, 2005 does not constitute a final
decision with appeal rights.
13

20 C.F.R. § 10.607(b); Donna M. Campbell, 55 ECAB 241 (2004).

4

Dr. Azer, who provided findings on examination and recommended surgical intervention.
Dr. Azer related appellant’s report that she had experienced a “recurrence” on July 18, 1992.”
The Board finds that the evidence submitted is not of sufficient probative value to prima
facie shift the weight of the evidence in favor of the claimant and raise a substantial question as
to the correctness of the Office’s decision.14 Appellant’s argument that her request was timely
because it was filed within one year of the Board’s July 13, 2004 decision is without merit.
According to Office procedures, the one-year period for requesting reconsideration begins on the
date following the original Office decision, but also accompanies any subsequent merit decision
on the issues, including any merit decision by the Board.15 As noted, the last merit decision in
this case was the Board’s December 11, 1995 decision. Its July 13, 2004 decision was a
nonmerit decision. Therefore, appellant May 12, 2005 request for reconsideration clearly falls
outside the one-year time limitation. Her disapproval of Office procedures relating to
reconsideration requests is insufficient to establish error.
Appellant also contends that her claim was improperly denied based on the medical
evidence of record, that the weight of medical evidence should be afforded to her attending
physician, and that she should not have to provide new medical evidence on each appeal to the
Office. These arguments do not establish error on the part of the Office, but merely repeat
arguments considered previously. Dr. Azer’s May 4, 2005 report also repeats medical evidence
already in the case record and does not establish clear error on the part of the Office in denying
her claim.16 This evidence does not manifest on its face that the Office committed an error in its
December 11, 1995 decision. Although the evidence submitted by appellant in support of her
untimely request for reconsideration generally supports her claim, it fails to raise a substantial
question as to the correctness of the Office’s decision. Thus, the evidence and argument
submitted by appellant are insufficient to show clear evidence of error on the part of the Office.
The Board finds that appellant’s reconsideration request was untimely filed and did not
establish clear evidence of error on the part of the Office.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely filed and failed to show clear
evidence of error.

14

Id.

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3b (June 2002).

16

See Helen E. Paglinawan, 51 ECAB 591 (2000).

5

ORDER
IT IS HEREBY ORDERED THAT the March 1, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 9, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1410
Issued: March 21, 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 July 13, 2018 appellant, through counsel, filed a timely appeal from a February 1, 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 foot and
ankle injury causally related to the accepted December 22, 2015 employment incident.

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 December 22, 2015 appellant, then a 57-year-old automation clerk, filed a traumatic
injury claim (Form CA-1) alleging that at 5:20 p.m. on that date while feeding mail into a sorting
machine, she turned to pick up a tray, lost her footing, and injured her right ankle while in the
performance of duty. Her supervisor indicated that the claimed incident was employment related.
In support of her claim, appellant provided a work slip dated December 23, 2015 by
Dr. Suzanne H. Shenk, an attending osteopathic physician Board-certified in internal medicine,
holding appellant off work from December 23 through 30, 2015 due to Achilles tendinitis with a
possible tendon rupture. She also submitted hospital emergency department discharge instructions
dated December 24, 2015 with a diagnosis of Achilles tendinitis.
By development letter dated January 7, 2016, OWCP advised appellant of the type of
medical and factual evidence needed to establish her claim, including a detailed description of the
December 22, 2015 employment incident specifying what she was doing at the time the injury
occurred, and a narrative report from her physician explaining how and why that event would
cause the claimed injury. It afforded her 30 days to submit the necessary evidence.
In response, appellant provided her January 22, 2016 statement asserting that, on
December 22, 2015, she turned to lift a 30-pound mail tray from a “knocker stack” and experienced
the onset of sudden, severe pain in the back of her right ankle and heel. She was unable to walk.
Appellant noted that the cushioned floor mat on which she was standing at the time of the incident
was worn and should be replaced. Two coworkers alerted her supervisor, who paged a medical
response team who transported appellant from the workroom floor in a wheelchair.
In a report dated January 6, 2016, Dr. Gerald M. Vernon, an attending osteopathic
physician Board-certified in family practice, noted that, while at work on December 22, 2015,
appellant “was holding a package and turned and twisted on her right leg and felt a sudden sharp
pain” at the top of her right heel and back of the calf. Appellant was treated at a hospital emergency
room and prescribed a walking shoe, splint, and crutches. On examination, Dr. Vernon noted
tenderness to palpation of the right Achilles tendon, swelling, and pedal edema. He diagnosed a
possible Achilles tendon tear versus a ruptured plantaris tendon. In an accompanying duty status
report (Form CA-17) dated January 6, 2016, Dr. Vernon diagnosed a ruptured right plantaris
tendon versus Achilles tendon tear. He held appellant off from work through February 6, 2016.
In part B of an authorization for examination and/or treatment request (Form CA-16),
attending physician’s report, dated February 3, 2016, Dr. Vernon diagnosed right Achilles
tendinitis with edema. He held appellant off work.
By decision dated February 10, 2016, OWCP accepted that the December 22, 2016
employment incident occurred as alleged, but denied the claim as the medical evidence of record
contained insufficient medical rationale to support a causal relationship between that incident and
the diagnosed tendon rupture. It concluded, therefore, that appellant had not met the requirements
to establish the she sustained an injury as defined by FECA.
On December 14, 2016 appellant requested reconsideration and submitted additional
medical evidence.

2

In a report dated March 1, 2016, Dr. Vernon opined that a magnetic resonance imaging
(MRI) study performed on February 24, 2016 demonstrated Achilles tendinosis with marrow
edema of the calcaneus, and an interstitial Achilles tendon tear with hyperemia. In a follow-up
report dated March 15, 2016, he diagnosed a right foot and ankle sprain, right Achilles tendon
strain, and tendinosis of the Achilles tendon with a possible interstitial tear.
Dr. Vernon opined in a report dated September 20, 2016 that the December 22, 2015
employment incident “resulted in injuries to her right ankle and Achilles tendon.” He noted that
the diagnostic and clinical findings were consistent with appellant’s account of the December 22,
2015 employment incident. An August 2016 MRI scan demonstrated “Haglund’s disease, which
is caused by trauma to the Achilles tendon, which is what [appellant] suffered, based on the
description of her injury.” Dr. Vernon indicated that “the right ankle and Achilles injury are a
direct result of the incident that occurred on December 22, 2015.” The “diagnostic testing, clinical
complaints, statement of how the incident occurred, and the mechanism of injury are all consistent
with the injuries sustained on December 22, 2015.”3
In a report dated November 3, 2016, Dr. Warren B. Mangel, an attending podiatrist, noted
a history of injury and treatment. He observed that appellant’s right left as 3/8 of an inch shorter
than her left leg. Dr. Mangel opined that “damage to the right Achilles tendon at the insertion in
the posterior aspect of the right heel and subsequent chronic pain [was] directly related” to the
December 22, 2015 employment incident. He explained that the “split in the posterior calcaneal
spur” demonstrated by imaging studies was “the likely cause of her sudden onset of right heel pain
while at work” on December 22, 2015. Dr. Mangel recommended surgical tenolysis of the
Achilles tendon.4
By decision dated March 14, 2017, OWCP denied modification, finding that the medical
evidence of record submitted in support of the December 14, 2016 reconsideration request
contained insufficient medical rationale to meet appellant’s burden of proof to establish causal
relationship.
On September 20, 2017 appellant, through counsel, requested reconsideration and
submitted additional medical evidence.
In a report dated September 15, 2017, Dr. Mangel opined that on December 22, 2015 when
appellant “twisted her body around to reach for another tray of mail, the non-skid pad” would have
kept appellant’s right foot pointed forward. “The torsional force of her body on the right foot,
increased the strain on the largest tendon of the body, the Achilles tendon at its insertion on the
back of the calcaneus, with such force that it split the retrocalcaneal spur which in effect is a form
of fracture of the calcaneus.” Appellant subsequently developed a nonunion of the retrocalcaneal
spur. “In this case, the torsional force of her body was the primary cause of the injury, subsequent
chronic pain, and disability.”

3

Appellant participated in physical therapy treatments in October 2016.

4
Appellant also submitted December 24, 2015 x-ray reports of right foot and ankle studies which demonstrated
plantar and dorsal calcaneal enthesophytes, a moderate dorsal calcaneal enthesophyte, and an irregularity at the base
of the fifth metatarsal.

3

In a report dated October 17, 2017, Dr. Thomas Obade, a Board-certified orthopedic
surgeon, reviewed a history of the claimed December 22, 2015 employment injury and treatment.
He opined that the “mechanism of injury with attention upon the Achilles tendon that was in close
proximity to the exotosis of the os calcis caused irritation of the Achilles tendon” with fluid
demonstrated by MRI scan indicative of an acute injury.
By decision dated February 1, 2018, OWCP denied modification, finding that the
additional medical evidence submitted on reconsideration contained insufficient medical rationale
to establish causal relationship between the accepted December 22, 2015 employment incident and
the diagnosed right foot and ankle conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was 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.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7
In order to determine whether an employee sustained a traumatic injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components, which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.8 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.9
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.10 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.11
Neither the mere fact that a disease or condition manifests itself during a period of employment,
5

Supra note 2.

6

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

7

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

8

R.E., Docket No. 17-0547 (issued November 13, 2018); David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover,
51 ECAB 146 (1999).
9

R.E., id.

10

G.N., Docket No. 18-0403 (issued September 13, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11
K.V., Docket No. 18-0723 (issued November 9, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).

4

nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.12
ANALYSIS
The Board finds that the case is not in posture for decision.
In support of her claim, appellant submitted medical evidence, including a September 20,
2016 report from Dr. Vernon, wherein he explained that her clinical findings and imaging studies
supported a traumatic injury to the right Achilles tendon that conformed to appellant’s account of
the accepted December 22, 2015 employment incident. Dr. Vernon explained that an August 2016
MRI scan demonstrated “Haglund’s disease, which is caused by trauma to the Achilles tendon,
which is what [appellant] suffered, based on the description of her injury.”
Appellant also provided reports from Dr. Mangel. In a report dated November 3, 2016,
Dr. Mangel opined that twisting at work on December 22, 2015 split a right posterior calcaneal
spur which caught and injured the right Achilles tendon. In a report dated September 15, 2017, he
added that the cushioned standing mat prevented appellant’s right foot from moving, and the
resultant torsional force split the retrocalcaneal spur. Dr. Mangel explained that, “The torsional
force of her body on the right foot, increased the strain on the largest tendon of the body, the
Achilles tendon at its insertion on the back of the calcaneus, with such force that it split the
retrocalcaneal spur which in effect is a form of fracture of the calcaneus.” He concluded that
appellant subsequently developed a nonunion of the retrocalcaneal spur, which “was the primary
cause of the injury, subsequent chronic pain, and disability.”
Dr. Vernon and Dr. Mangel provided affirmative opinions on causal relationship. They
accurately identified specific employment factors which appellant claimed caused her condition
identified findings on examination, and the mechanism of injury.
The Board notes that, while none of the reports of appellant’s attending physicians is
completely rationalized, they are consistent in indicating that she sustained an employment-related
right foot and ankle condition and are not contradicted by any substantial medical or factual
evidence of record. While the reports are insufficient to meet her burden of proof to establish her
claim, they raise an uncontroverted inference between her right foot and ankle condition and the
identified employment factors and are sufficient to require OWCP to further develop the medical
evidence and the case record.13
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement
to compensation, OWCP shares responsibility in the development of the evidence.14 OWCP has
12

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

13

D.W., Docket No. 17-1884 (issued November 8, 2018). See S.S., Docket No. 17-0322 (issued June 26, 2018);
J.G., Docket No. 17-1062 (issued February 13, 2018); A.F., Docket No. 15-1687 (issued June 9, 2016). See also
John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).
14
D.W., id. See, e.g., Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); Dorothy Sidwell, 36 ECAB 699, 707
(1985); Michael Gallo, 29 ECAB 159, 161 (1978).

5

an obligation to see that justice is done.15 The case shall, therefore, be remanded to OWCP. On
remand it shall refer appellant, a statement of accepted facts and the medical evidence of record to
an appropriate specialist for an examination, diagnosis, and a rationalized opinion as to whether
she sustained an employment-related occupational condition of the right foot and ankle. After this
and other such further development deemed necessary, OWCP shall issue a de novo decision.16
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: March 21, 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

15

D.W., supra note 13, William J. Cantrell, 34 ECAB 1233, 1237 (1983); Gertrude E. Evans, 26 ECAB 195 (1974).

16

The Board notes that the record contains a Part B of a Form CA-16 Authorization for Medical Treatment
completed by Dr. Vernon on February 3, 2016. Part A, the employing establishment’s section of the form, is not of
record. The Board notes, however, that a properly completed CA-16 form authorization may constitute a contract for
payment of medical expenses to a medical facility or physician, when properly executed. The form creates a
contractual obligation, which does not involve the employee directly, to pay for the cost of the examination or
treatment regardless of the action taken on the claim. The period for which treatment is authorized by a Form CA-16
is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c); P.R.,
Docket No. 18-0737 (issued November 2, 2018); N.M., Docket No. 17-1655 (issued January 24, 2018), Tracy P.
Spillane, 54 ECAB 608 (2003).

6


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

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

Docket No. 14-927
Issued: June 19, 2014

Case Submitted on the Record

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

JURISDICTION
On March 11, 2014 appellant, through her attorney, filed a timely appeal filed a timely
appeal of a February 6, 2014 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 sustained any permanent impairment to a scheduled
member of her body causally related to her accepted cervical, thoracic and lumbar conditions,
thereby entitling her to a schedule award under 5 U.S.C. § 8107.
FACTUAL HISTORY
Appellant, a 41-year-old letter carrier, slipped on a patch of ice on January 5, 1994 and
injured her neck and back. She filed a claim for benefits, which OWCP accepted for cervical and
1

5 U.S.C. § 8101 et seq.

thoracic sprain and occipital contusion. On August 27, 1996 appellant filed a claim for benefits
after she sustained a twisting injury to her back. OWCP accepted the claim for parathoracic
muscle strain. On July 2, 1998 appellant filed a Form CA-2a claim for benefits, alleging that she
sustained a recurrence of disability causally related to her accepted conditions. OWCP accepted
the claim for exacerbation of cervical, thoracic and lumbar myofascitis and aggravation of
degenerative disc disease of the lumbar spine.
On December 20, 2011 appellant filed a Form CA-7 claim for schedule award based on a
partial loss of use of her lower and upper extremities.
In a report dated January 27, 2012, Dr. William N. Grant, Board-certified in internal
medicine, stated that appellant had a 26 percent total impairment of her bilateral lower extremity
based on her accepted lumbar and thoracic conditions, pursuant to the American Medical
Association, Guides to the Evaluation of Permanent Impairment (sixth edition)
(A.M.A., Guides). He advised that she was having constant painful paresthesis in her lower back
which radiated down both of her lower limbs and that she needed assistance in performing
multiple activities of daily living. Dr. Grant noted that appellant underwent a magnetic
resonance imaging (MRI) scan in May 2011 that showed a herniated disc at L3-4. He calculated
his impairment rating by finding that she had a grade modifier one for clinical studies “based on
Table 1, page 5 of the attached handout;” a grade modifier of two for functional history under
Table 16-6, page 516 of the A.M.A., Guides; and a grade modifier of two under Table 16-7, page
517 of the A.M.A., Guides. Using the net adjustment formula set forth at Section 16.4 of the
A.M.A., Guides, Dr. Grant found that his calculations above produced a net adjustment of two,
which yielded a severe sensory deficit of 4 percent and a moderate motor deficit of 10 percent,
which produced a total deficit of 14 percent for left lower limb and 14 percent for the right lower
limb. This yielded a bilateral lower limb impairment of 26 percent.
In a March 22, 2012 report, Dr. Nabil F. Angley, Board-certified in orthopedic surgery and
an OWCP medical adviser, stated that he was unable to provide an impairment rating under the
A.M.A., Guides based on Dr. Grant’s January 27, 2012 report. He asserted that Dr. Grant’s report
contained exaggerated and inaccurate information and was not rendered in conformance with the
appropriate tables and protocols of the A.M.A., Guides; accordingly, he recommended that
appellant be referred to a new specialist for a new examination and impairment evaluation.
In order to determine whether appellant had any permanent impairment stemming from
her accepted cervical, thoracic and lumbar conditions, OWCP referred the case to Dr. Manhal
Ghanma, Board-certified in orthopedic surgery. In a March 8, 2013 report, Dr. Ghanma found
that appellant had a zero percent permanent partial impairment of the upper and lower
extremities pursuant to the A.M.A., Guides. After reviewing the medical history and statement
of accepted facts and stating findings on examination, he opined that the record indicated that she
did not develop any radiculopathy as a result of her work injuries, as evidenced by the multiple
records presented in her medical file. Dr. Ghanma advised that the imaging studies did not
reveal any evidence of nerve root compression to support radiculopathy based on appellant’s
work injuries. He stated that, while she had continued complaints of global left leg and foot
numbness, these symptoms were attributable to nonaccepted conditions and not to her work
injuries. Dr. Ghanma opined that the objective evidence in the file did not support evidence of
radiculopathy either in the upper or the lower extremities to support an impairment rating. In

2

light of the lack of objective evidence to support radiculopathy, with appellant’s imaging studies
revealing no evidence of nerve root compression, there was no basis for an impairment rating or
schedule award for her upper and lower extremities based on the diagnosis of radiculopathy.
Dr. Ghanma further advised that none of her accepted conditions would have resulted in
radiculopathy, including cervical sprain, thoracic sprain, occipital contusion, parathoracic muscle
strain, cervical, thoracic and lumbar myofascitis or aggravation of degenerative disc disease of
the lumbar spine. Accordingly, he rated a zero percent impairment for both the upper and both
lower extremities.
In a May 13, 2013 report, Dr. Brian M. Tonne, a specialist in internal medicine and an
OWCP medical adviser, reviewed Dr. Ghanma’s March 8, 2013 report and advised that spinal
nerve root impairments which affected the extremities had been clarified in the July/August 2009
edition of The Guides Newsletter. He concurred with Dr. Ghanma’s impairment evaluation,
noting that appellant had no residual objective findings of upper or lower extremity motor
weakness or sensory loss that were corroborated by focal examination findings consistent with
MRI scan findings of radiculopathy. Dr. Tonne opined that, as there were no imaging findings
of radiculopathy to support an impairment rating according to the A.M.A., Guides, appellant had
no residual, ratable impairment.
By decision dated June 17, 2013, OWCP denied appellant’s request for a schedule award,
finding that she did not sustain any permanent impairment to a scheduled member of her body
causally related to her accepted cervical, thoracic or lumbar conditions.
On June 20, 2013 appellant, through her attorney, requested an oral hearing, which was
held on August 13, 2013. By decision dated February 6, 2014, an OWCP hearing representative
affirmed the June 17, 2013 decision.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 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. 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. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.4 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.5

2

Id. at § 8107.

3

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

4

Id.

5

Veronica Williams, 56 ECAB 367, 370 (2005).

3

ANALYSIS
OWCP accepted the conditions of exacerbation of thoracic sprain, occipital contusion,
parathoracic muscle strain, cervical, thoracic and lumbar myofascitis and aggravation of
degenerative disc disease of the lumbar spine. Dr. Tonne reviewed Dr. Ghanma’s March 8, 2013
report and properly found that appellant had a zero percent impairment of her upper and lower
extremities based on her accepted conditions.
On appeal, counsel argued that OWCP’s methodology amounts to “junk science.” The
Board notes, however, that the A.M.A., Guides have been adopted as the uniform standard
applicable to all claimants for the determination of permanent impairment under FECA.6 With
regards to peripheral nerve impairments to the upper or lower extremities resulting from spinal
injuries, OWCP procedures indicate that The Guides Newsletter “Rating Spinal Nerve Extremity
Impairment using the sixth edition” (July/August 2009) is to be applied.7 The Board notes that
an impairment rating can be issued based on findings of radiculopathy pursuant to the
July/August 2009 edition of The Guides Newsletter. Dr. Ghanma, after reviewing appellant’s
medical history and conducting a thorough examination, found that none of the imaging studies
in the record showed any evidence of nerve root compression to support radiculopathy based on
her accepted conditions. He advised that, although she had continued complaints of global left
leg and foot numbness, these symptoms were attributable to nonaccepted conditions. Given this
lack of objective evidence to support radiculopathy, Dr. Ghanma concluded that there was no
basis for an impairment rating for the upper and lower extremities. He concluded that appellant
had a zero percent impairment for both the upper and both lower extremities. Dr. Tonne, an
OWCP medical adviser, reviewed Dr. Ghanma’s March 8, 2013 report and concurred that there
was no basis for a schedule award.
The Board notes that Dr. Ghanma’s March 8, 2013 impairment rating was rendered in
conformance with the sixth edition of the A.M.A., Guides. Accordingly, as Dr. Ghanma and
OWCP’s medical adviser provided the only impairment ratings of record rendered in accordance
with the applicable protocols and tables of the A.M.A., Guides, OWCP properly denied a
schedule award in its June 17, 2013 decision. Accordingly, the Board will affirm the
February 6, 2014 decision of OWCP, which affirmed the June 17, 2013 decision.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.

6

See J.C., Docket No. 11-241 (issued September 22, 2011); M.R., Docket No. 11-84 (issued
September 21, 2011).
7

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part
3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, supra note 13.

4

CONCLUSION
The Board finds that appellant has not sustained any permanent impairment to a
scheduled member of her body causally related to her accepted cervical, thoracic and lumbar
conditions, thereby entitling him to a schedule award under 5 U.S.C. § 8107.
ORDER
IT IS HEREBY ORDERED THAT the February 6, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 19, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 19-1716
Issued: March 11, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 12, 2019 appellant, through counsel, filed a timely appeal from a June 13, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

1

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

The Board notes that, following the June 13, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she was disabled
commencing May 18, 2018 causally related to her March 29, 2018 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On April 6, 2018 appellant, then a 43-year-old city carrier assistant, filed a traumatic injury
claim (Form CA-1) alleging that on March 29, 2018 she injured her left knee when she was struck
by a metal object while in the performance of duty. She stopped work on March 30, 2018 and
returned to work on April 1, 2018. OWCP accepted appellant’s claim for a left knee contusion.
In a state workers’ compensation form dated June 20, 2018, Dr. Arnold B. Wilson, a
Board-certified orthopedic surgeon, diagnosed unspecified internal derangement of the left knee
and opined that appellant was disabled from employment.5 He checked a box marked “yes”
indicating that the incident, described on the form as a door striking her left knee, was the
competent cause of illness.
On July 11, 2018 appellant filed a claim for compensation (Form CA-7) requesting wageloss compensation from May 18 to June 22, 2018.
By decision dated July 20, 2018, OWCP found that appellant had not established internal
derangement of the left knee causally related to her March 29, 2018 employment injury.
In a July 20, 2018 development letter, OWCP advised appellant that the evidence was
currently insufficient to establish that she was disabled from employment beginning May 12, 2018.
It noted that she had stopped work on March 30, 2018 and did not return. OWCP requested that
appellant submit a comprehensive medical report from her physician addressing how her accepted
condition had worsened such that she could no longer perform the duties of her position. It
afforded her 30 days to submit the necessary evidence.
Thereafter, OWCP received a June 1, 2018 report from Dr. Wilson. Dr. Wilson discussed
appellant’s history of injury on March 29, 2018 when she was struck on the left knee by a door.
3

5 U.S.C. § 8101 et seq.

4

Docket No. 18-1645 (issued March 8, 2019).

5

In state workers’ compensation forms dated June 7, 2018, Dr. Cathleen L. Bechan-Dugan, Board-certified in
family medicine and Dr. Juan Gonzalez Board-certified in emergency medicine, provided diagnoses in the form of
diagnostic codes.

2

He diagnosed internal derangement of the left knee following trauma at work and opined that she
was disabled from employment. In a disability certificate of even date, Dr. Wilson advised that
appellant was totally disabled pending reevaluation on July 19, 2018.
A July 28, 2018 magnetic resonance imaging (MRI) scan of appellant’s left knee revealed
a sprain of the medial cruciate ligament (MCL), insertional tendinosis of the distal quadriceps
tendon, lateral patellar tilt, and trace fluid.
A physician assistant provided a progress report on August 6, 2018.
On August 15, 2018 appellant telephoned OWCP and advised that she had initially stopped
work on March 29, 2018 to seek medical treatment. She had returned to work later on April 2,
2018, but had stopped work again on April 6, 2018 and had not returned.
On August 30, 2018 appellant appealed OWCP’s July 20, 2018 decision, finding that she
had not established left knee internal derangement due to her employment injury, to the Board.
By decision dated September 4, 2018, OWCP denied appellant’s claim for wage-loss
compensation beginning May 18, 2018. It found that the medical evidence was insufficient to
establish that she was disabled during the claimed period causally related to her accepted left knee
contusion.
Thereafter, OWCP received an attending physician’s report (Form CA-20) from
Dr. Wilson, who diagnosed a left knee MCL sprain, quadriceps tendinosis, and a contusion.
Dr. Wilson checked a box marked “yes” that the condition was caused or aggravated by the
described employment activity of a door striking appellant’s left knee.
In state workers’ compensation form reports dated August 6 to October 13, 2018,
Dr. Wilson diagnosed internal derangement of the left knee and found that appellant was disabled
from employment. He indicated by checking a box marked “yes” that her complaints were
consistent with the history of illness and that the incident was a competent cause of the injury. In
a form dated September 12, 2018, Dr. Wilson diagnosed a left knee sprain in addition to internal
derangement of the left knee.
A physician assistant completed a state workers’ compensation form report on
August 6, 2018.
The record contains physical therapy reports dated August through September 2018.
Dr. Wilson on September 14, 2018 discussed appellant’s history of left knee injuries
sustained at work on March 29, 2018 when a door struck her knee causing direct trauma. He
related that she was “out of work because of a limited ability to ambulate upon [appellant’s] left
knee.” Dr. Wilson attributed appellant’s complaints of left knee pain to her employment injury.
On examination, he found tenderness over the medial joint line with mild effusion, atrophy of the
quadriceps, and weakness. Dr. Wilson noted that an MRI scan demonstrated tendinosis of the
quadriceps and an MCL sprain. He diagnosed status post left knee trauma due to a work accident
and an MCL injury. Dr. Wilson advised that appellant had continued disability. In a disability
certificate of even date, he found that she was disabled until October 10, 2018.
3

On September 18, 2018 appellant requested reconsideration of OWCP’s September 4,
2018 decision.
In an October 12, 2018 work capacity evaluation (Form OWCP-5c), Dr. Wilson found that
appellant could work for eight hours per day with restrictions beginning October 20, 2018.
A physician assistant provided reports on October 12 and November 9, 2018. He also
completed a November 9, 2018 work capacity evaluation (Form OWCP-5c).
On December 6, 2018 the employing establishment informed OWCP that appellant had
returned to work for four hours per day with restrictions on October 20 to 23, 2018, but had then
been sent home. Appellant again resumed modified employment on December 6, 2018.
By decision dated January 2, 2019, OWCP denied modification of its September 4, 2018
decision.
Thereafter, OWCP received a report dated December 21, 2018 from Dr. Wilson.
Dr. Wilson indicated that appellant had sustained left knee trauma approximately nine months
prior at work, and currently was performing modified duty for four hours per day. On examination,
he found tenderness and crepitus at the patellofemoral joint and atrophy and weakness of the quad
as opposed to the unaffected side. Dr. Wilson diagnosed “symptoms of significant left knee
chondromalacia patella, this is caused by trauma at work.” In a disability certificate of even date,
he provided work restrictions.
The record contains reports from a physical therapist dated November 17, 2018 to
May 1, 2019.
On January 18, 2019 Dr. Wilson opined that appellant had sustained an injury to the MCL
of her left knee due to trauma sustained at work. He advised that she was recovering slowly and
should remain on modified duty.
In a progress report dated February 22, 2019, signed on March 1, 2019, Dr. Wilson found
slow recovery after an MCL injury and opined that appellant could perform modified duty, noting
that she was working four hours per day.
By decision dated March 8, 2019, the Board affirmed OWCP’s July 20, 2018 decision
finding that appellant had not met her burden of proof to establish left knee internal derangement
causally related to the accepted March 29, 2018 employment injury.6
On March 18, 2019 appellant, through counsel, requested reconsideration of the January 2,
2019 decision.7 She submitted additional reports from a physician assistant dated March 27 and
April 25, 2019.

6

Supra note 4.

7
On April 29, 2019 OWCP referred appellant for a second opinion examination to determine whether she continued
to have residuals of her accepted left knee contusion.

4

By decision dated June 13, 2019, OWCP denied modification of its January 2, 2019
decision. It found that appellant had not submitted medical evidence sufficient to establish that
she was disabled from employment during the claimed period due to her accepted condition of a
left knee contusion.
LEGAL PRECEDENT
An employee seeking benefits under FECA8 has the burden of proof to establish the
essential elements of his or her claim.9 Under FECA the term disability means incapacity, because
of an employment injury, to earn the wages that the employee was receiving at the time of injury.10
For each period of disability claimed, the employee has the burden of proof to establish that he or
she was disabled from work as a result of the accepted employment injury.11 Whether a particular
injury causes an employee to become disabled from work, and the duration of that disability, are
medical issues that must be proven by a preponderance of probative and reliable medical opinion
evidence.12
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she was
disabled commencing May 18, 2018 causally related to her March 29, 2018 employment injury.
On June 1, 2018 Dr. Wilson obtained a history of appellant’s injury of her left knee on
March 29, 2018 when it was struck by a door. He diagnosed internal derangement of the left knee
after work trauma and found that she was disabled from employment. While Dr. Wilson opined
that appellant was totally disabled from work, he diagnosed internal derangement of the left knee,
a condition not accepted by OWCP as employment related.14 As he did not attribute her disability

8

Supra note 3.

9

See L.S., Docket No. 18-0264 (issued January 28, 2020); B.O., Docket No. 19-0392 (issued July 12, 2019).

10

20 C.F.R. § 10.5(f); J.S., Docket No. 19-1035 (issued January 24, 2020).

11

T.W., Docket No. 19-1286 (issued January 13, 2020).

12

S.G., Docket No. 18-1076 (issued April 11, 2019); Fereidoon Kharabi, 52 ECAB 291 (2001).

13

See M.J., Docket No. 19-1287 (issued January 13, 2020); William A. Archer, 55 ECAB 674 (2004).

14

Where an employee claims that, a condition not accepted or approved by OWCP was due to an employment
injury, he or she bears the burden of proof to establish that the condition is causally related to the employment injury.
M.M., Docket No. 19-0951 (issued October 24, 2019); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

5

to the accepted condition of a left knee contusion, his opinion is insufficient to meet her burden of
proof.15
In state workers’ compensation forms dated June through October 2018, Dr. Wilson
diagnosed internal derangement of the left knee and indicated that appellant was disabled from
employment. He checked a box marked “yes” that the described employment incident of a door
striking her left knee was competent to produce the injury. The Board has held, however, that
when a physician’s opinion on causal relationship consists only of checking a box marked “yes”
to a form question, without explanation or rationale, that opinion is of diminished probative value
and insufficient to meet appellant’s burden of proof.16
In a September 14, 2018 report, Dr. Wilson discussed appellant’s history of a March 29,
2018 employment injury. He noted that an MRI scan demonstrated tendinosis of the quadriceps
and an MCL sprain. Dr. Wilson diagnosed status post left knee trauma due to an accident at work
and an MCL injury. He opined that appellant was unable to work because of difficulty with
ambulation. Dr. Wilson did not, however, provide rationale explaining how her inability to work
was causally related to her March 29, 2018 accepted left knee contusion.17 A mere conclusion
without medical rationale supporting a period of disability due to the accepted employment
condition is insufficient to meet appellant’s burden of proof.18
On October 12, 2018 Dr. Wilson completed a work capacity evaluation (Form OWCP-5c)
providing work restrictions. He did not, however, provide any rationale explaining the causal
relationship between any disability for work and the March 29, 2018 employment injury; thus, his
opinion is of diminished probative value.19
On December 21, 2018 Dr. Wilson diagnosed left knee chondromalacia patella due to left
knee trauma that had occurred nine months prior. He provided work restrictions. Dr. Wilson did
not address whether appellant was disabled due to her accepted condition of a left knee contusion
for a specific period on or after May 18, 2018. The Board has held that medical evidence that does
not provide an opinion regarding whether a period of disability is due to an accepted employment
condition is insufficient to establish a claim.20
In January 18 and February 22, 2019 progress reports, Dr. Wilson advised that appellant
was recovering from an MCL injury and should perform modified employment. He did not address
whether she was totally disabled beginning May 18, 2018 due to her accepted employment injury.

15

See T.W., Docket No. 19-1286 (issued January 13, 2020).

16

K.G., Docket No. 18-1598 (issued January 7, 2020).

17

M.L., Docket Nos. 18-1058, 18-1224 (issued November 21, 2019).

18

A.A., Docket No. 19-1165 (issued December 16, 2019); S.H., Docket No. 19-1128 (issued December 2, 2019).

19

O.W., Docket No. 17-1881 (issued May 1, 2018).

20

C.R., Docket No. 19-1427 (issued January 3, 2020).

6

As noted, evidence that does not address appellant’s accepted condition and the dates of disability
claimed is insufficient to meet her burden of proof.21
OWCP received an Form CA-20 from Dr. Wilson who diagnosed a left knee MCL sprain,
quadriceps tendinosis, and a contusion. Dr. Wilson checked a box marked “yes” that the condition
was caused or aggravated by the described employment activity of a door striking appellant’s left
knee. However, the checking of a box marked “yes” in a form report, without additional
explanation or rationale, is insufficient to establish causal relationship.22
Appellant submitted a July 28, 2018 MRI scan. Diagnostic studies lack probative value as
they do not address whether the employment injury caused the claimed period of disability.23
The record contains numerous reports from physician assistants and physical therapists.
Certain healthcare providers such as physician assistants, nurse practitioners, and physical
therapists are not considered “physician[s]” as defined under FECA.24 Therefore, these reports are
insufficient to meet appellant’s burden of proof.25
On appeal counsel contends that OWCP failed to utilize the appropriate causation standard
or give deference to appellant’s attending physician. As explained above, however, the medical
evidence is insufficient to establish that appellant was totally disabled beginning May 18, 2018
due to her accepted employment injury. Consequently, appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she was
disabled commencing May 18, 2018 causally related to her March 29, 2018 employment injury.

21

T.L., Docket No. 18-0934 (issued May 8, 2019); Sandra D. Pruitt, 57 ECAB 126 (2005).

22

M.D., Docket No. 18-0195 (issued September 13, 2018).

23

See L.C., Docket No. 19-1301 (issued January 29, 2020); C.R., supra note 20.

24

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

25

K.G., supra note 16; K.W., 59 ECAB 271 (2007).

7

ORDER
IT IS HEREBY ORDERED THAT the June 13, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 11, 2020
Washington, DC

Alec J. Koromilas, 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