United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
DEPARTMENT OF THE ARMY, BROOKE
ARMY MEDICAL CENTER, Houston, TX,
Employer
__________________________________________

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

Docket No. 21-1068
Issued: March 1, 2022

Case Submitted on the Record

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

JURISDICTION
On June 28, 2021 appellant filed a timely appeal from a May 28, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted October 9, 2020 employment incident.
FACTUAL HISTORY
On April 12, 2021 appellant, then a 57-year-old practical nurse, filed a traumatic injury
claim (Form CA-1) alleging that on October 9, 2020 a maintenance worker ran over her right foot
1

5 U.S.C. § 8101 et seq.

with a cart, which caused pain and swelling in her right foot as well as knee pain. On the reverse
side of the claim form, appellant’s supervisor indicated that she was injured in the performance of
duty. Appellant did not stop work.
In support of her claim, appellant submitted a medical report dated November 3, 2020 from
Dr. Melany A. Shearrer, a family medicine specialist. Dr. Shearrer related that appellant was seen
for right foot pain and a small lump on the top of her foot, which began one month prior when a
maintenance cart hit the top of her foot.
In reports dated March 10 and 12, 2021, Dr. Tamara Moseley, a podiatrist, related that a
cart ran over appellant’s foot in November 2020 and she noted that appellant had complaints of
right foot pain, swelling, and paresthesia. In the March 12, 2021 note, she related that x-rays of
appellant’s foot were negative for fracture and diagnosed right foot pain.
In a March 11, 2021 report, Dr. Bhavna Lalvani, a family medicine specialist, related that
appellant was seen for right knee pain, which appellant believed resulted from overcompensating
from a right foot injury in November 2020.
On March 30, 2021 a physical therapist requested a consultation for a provisional diagnosis
of right knee unilateral primary osteoarthritis.
OWCP received a letter dated April 8, 2021 from appellant’s co-worker, M.R., and a
separate letter from her co-worker, T.V. Both co-workers stated that they witnessed a maintenance
cart run over appellant’s right foot in October 2020. M.R. also related that appellant stated that
she was in pain and held her right leg and foot following the incident.
In a development letter dated April 26, 2021, OWCP informed appellant of the deficiencies
in her claim. It noted the type of factual and medical evidence needed and provided a questionnaire
for her completion. OWCP afforded appellant 30 days to submit the necessary evidence.
In a report dated April 27, 2021, Matthew Randel, a physical therapist, related that
appellant presented with signs and symptoms commonly associated with right foot pain , likely due
to nerve and soft tissue injury.
Appellant submitted a response to OWCP’s development questionnaire dated May 5, 2021.
She attested that she told her supervisor of her injury three or four weeks after it occurred as she
was still in pain. Appellant stated that her supervisor initially indicated that it was too late to file
a claim.
By decision dated May 28, 2021, OWCP accepted that the October 9, 2020 employment
incident occurred, as alleged; however the claim was denied as she had not submitted medical
evidence containing a medical diagnosis in connection with her accepted employment incident. It
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
There are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.6
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 7 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 specific employment factors
identified by the employee. 8

2

Id.

3

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
7

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
8

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted October 9, 2020 employment incident.
In support of her claim, appellant submitted a medical report dated November 3, 2020 from
Dr. Shearrer, which related that appellant was seen for right foot pain. Similarly, OWCP received
a medical report dated March 11, 2021 from Dr. Lalvani, which stated that appellant was seen for
right knee pain. The Board has held that pain is a symptom and not a compensable medical
diagnosis.9 As these reports did not provide a firm diagnosis causally related to the acc epted
employment incident, they are insufficient to establish appellant’s claim.
OWCP also received reports dated March 10 and 12, 2021 from Dr. Moseley, which related
that appellant had right foot pain, swelling, and paresthesia. As with pain, 10 swelling,11 and
numbness12 are also symptoms of a medical condition, not diagnoses. For this reason,
Dr. Moseley’s reports are insufficient to meet appellant’s burden of proof.
Appellant also submitted were reports from physical therapists. Certain healthcare
providers such as physician assistants, nurse practitioners, and physical therapists are not
considered physicians as defined under FECA. 13 Their opinions are therefore not considered
competent medical evidence. 14 Consequently, this evidence will not suffice for purposes of
establishing entitlement to FECA benefits. 15
As there is no medical evidence of record establishing a diagnosed medical condition
causally related to the accepted October 9, 2020 employment incident, the Board finds that
appellant has not met her burden of proof.

9

See S.L., Docket No. 19-1536 (issued June 26, 2020); D.Y., Docket No. 20-0112 (issued June 25, 2020).

10

Supra note 9.

11

M.C., Docket No. 17-0024 (issued March 22, 2018).

12

See Leonardo G. Cobero, Docket No. 99-2489 (issued June 1, 2001).

5 U.S.C. § 8101(2) provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law,”
20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013); see also M.F., Docket No. 19-1573 (issued March 16, 2020); N.B., Docket No. 19-0221
(issued July 15, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA).
13

14

M.T., Docket No. 21-0783 (issued December 27, 2021).

15

See M.C., Docket No. 19-1074 (issued June 12, 2020).

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Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(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 diagnosed
medical condition causally related to the accepted October 9, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 28, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 1, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0974
Issued: January 11, 2022

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 June 9, 2021 appellant, through counsel, filed a timely appeal from a December 17,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left knee condition
causally related to the accepted December 6, 2017 employment incident.
FACTUAL HISTORY
This case has previously been before the Board. 3 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 January 12, 2018 appellant, then a 53-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 6, 2017 she injured her left knee while in the
performance of duty. She explained that she was walking into the breakroom in order to fill a
water bottle and when she put her foot down on the floor, her shoe did not move while the rest of
her body continued in motion and rotated to the right. Appellant noted that she heard a loud pop
in her left knee and felt unbearable pain and a burning sensation. She did not stop work.
In a development letter dated January 26, 2018, OWCP informed appellant of the
deficiencies of her claim and advised her of the type of factual and medical evidence necessary to
establish her claim. It provided a questionnaire for her completion and also requested that she
submit a narrative medical report from her treating physician, which provided a diagnosis and the
physician’s rationalized medical explanation as to how the alleged employment incident caused
the diagnosed condition. OWCP afforded appellant 30 days to submit the necessary evidence.
Appellant replied to OWCP’s development questionnaire and submitted medical evidence.
By decision dated March 5, 2018, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish causal relationship between her medical condition
and the accepted employment incident.
On March 15, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
By decision dated October 4, 2018, OWCP’s hearing representative affirmed the March 5,
2018 decision.
On April 17, 2019 appellant, through counsel, requested reconsideration of OWCP’s
October 4, 2018 decision.
In a March 22, 2019 narrative medical report, appellant’s attending physician, Dr. Andrew
Beharrie, a Board-certified orthopedic surgeon, explained that degenerative meniscus tears are
very common in the setting of osteoarthritis of the knee. He noted that, as osteoarthritis progresses,
the contact pressure in the joint increases and the increased pressure results in greater stresses on
the meniscus as the quality and strength of the tissue in the meniscus diminishes with age. As a
3

Docket No. 19-1596 (issued April 23, 2020).

2

result of these factors, patients with arthritis are more likely to develop a degenerative meniscus
tear because the meniscus is more susceptible to damage. Dr. Beharrie further explained that, prior
to her injury, appellant had preexisting arthritis of her knee, but was asymptomatic although she
may have also had preexisting degenerative meniscus tears. The twisting injury to her knee caused
significant force across her arthritic joint and this likely resulted in an acute meniscus tear or
worsening of a preexisting tear. Additionally, Dr. Beharrie explained that appellant’s injury may
have caused a new tear in a previously intact meniscus or resulted in a progression of preexisting
tear. He also noted that the injury caused a flare up of inflammation in her knee, which resulted
in aggravation of her baseline arthritis and associated meniscus tear.
By decision dated April 23, 2019, OWCP denied modification of the October 4, 2018
decision.
On July 22, 2019 appellant, through counsel, filed an appeal with the Board. By decision
dated April 23, 2020,4 the Board found that Dr. Beharrie’s March 22, 2019 report was sufficient
to require additional development and remanded the case for OWCP to refer appellant, a statement
of accepted facts (SOAF), and the medical evidence of record to a district medical adviser (DMA)
or an appropriate Board-certified physician for a rationalized opinion addressing whether the
diagnosed left knee conditions are causally related to the accepted December 6, 2017 employment
incident and a de novo decision.
On July 15, 2020 OWCP referred appellant, a SOAF, and a series of questions to
Dr. Stephen Koss, a Board-certified orthopedic surgeon, for a second opinion evaluation.
In a report dated August 21, 2020, Dr. Koss reviewed the SOAF, provided appellant’s
history of injury, and performed a physical examinatio n. He found full extension and
approximately 95 degrees of flexion of the left knee at which point appellant reported discomfort
and refused to flex the knee further. Appellant exhibited only 85 degrees of flexion of the right
knee due to pain. Dr. Koss found bilateral knee osteoarthritis with no difference on examination
between the injured left knee and the non-injured right knee. He opined that appellant’s current
bilateral knee pain and stiffness was degenerative and chronic in nature and not related to the
accepted employment incident. Dr. Koss further reviewed a left knee magnetic resonance imaging
(MRI) scan and found chronic degenerative changes with a degenerative tear in the meniscus. He
noted that it was common to develop meniscal tears in arthritic knees and that these tears were
degenerative in nature and not related to any acute injury. Dr. Koss determined that appellant had
not sustained a significant aggravation of a preexisting condition and disagreed with Dr. Beharrie.
He concluded that she could return to work with no “significant” restrictions related to her work
injury and that she did not require additional medical treatment due to her accepted employment
injury.
By decision dated December 17, 2020, OWCP denied appellant’s claim finding that the
medical evidence of record did not establish causal relationship between her accepted December 6,
2017 employment incident and her diagnosed conditions.

4

Id.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally re lated
to the employment injury. 7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. 9 There are two
components that must be considered in conjunction with one another. The first component is
whether the employee actually experienced the employment in cident that allegedly occurred. 10
The second component is whether the employment incident caused a personal injury.11
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 12 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a
complete factual and medical background. 13 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported b y medical
rationale, explaining the nature of the relationship between the diagnosed condition, and
appellant’s specific employment incident. 14
Section 8123(a) of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall

5

Supra note 2.

6

M.G., Docket No. 19-1860 (issued March 15, 2021); S.C., Docket No. 18-1242 (issued March 13, 2019); S.B.,
Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
7

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

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

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

10

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

11

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

12

S.S., supra note 9; Robert G. Morris, 48 ECAB 238 (1996).

13

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

14

Id.

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make an examination. 15 This is called a referee examination and OWCP will select a physician
who is qualified in the appropriate specialty and who has no p rior connection with the case. 16
When there exists opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background, must
be given special weight. 17
ANALYSIS
The Board finds that this case is not in posture for decision.
Dr. Beharrie, appellant’s treating physician, found that she had preexisting arthritis in her
left knee, that she may have had a preexisting degenerative meniscus tear, but that the accepted
December 6, 2017 employment incident where she twisted her left knee caused significant force
across her arthritic joint that likely resulted in an acute meniscus injury or the worsening of a
preexisting tear. He also attributed aggravation of her left knee arthritis and associated meniscus
tear to the inflammation of her left knee to the accepted employment incident.
By contrast, Dr. Koss a second opinion physician, opined in his August 21, 2020 report
that appellant had no disabling residuals of any condition associated with her current claim, rather
her ongoing conditions were due to her preexisting bilateral knee osteoarthritis. He further noted
that it was common to develop meniscal tears in arthritic knees and that these tears were
degenerative in nature and not related to any acute injury. Dr. Koss determined that she had not
sustained a significant aggravation of a preexisting condition and disagreed with Dr. Beharrie. He
concluded that appellant had no employment-related disability or residuals.
Dr. Beharrie provided a description of how the accepted employment incident caused or
contributed to the diagnosed left knee meniscal tear. Dr. Koss, however, opined that there was no
causal relationship between the accepted employment incident and appellant’s degenerative left
knee condition. The Board, therefore, finds that a conflict in medical opinion exists regarding
whether she sustained a left knee injury as a result of the accepted December 6, 2017 employment
incident.
OWCP’s regulations provide that, if a conflict exists between the medical opinion of the
employee’s physicians and the medical opinion of a second -opinion physician or an OWCP
medical adviser, OWCP shall appoint a third physician to make an examination. 18 The Board will,
thus, remand the case to OWCP for referral to an impartial medical specialist regarding whether
15

5 U.S.C. § 8123(a); M.W., Docket No. 19-1347 (issued December 5, 2019); C.T., Docket No. 19-0508 (issued
September 5, 2019); R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
16

20 C.F.R. § 10.321.

17

M.W., supra note 15; C.T., supra note 15; Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52
ECAB 486 (2001).
18

5 U.S.C. § 8123(a); M.W., supra note 15.

5

appellant has met her burden of proof to establish that she sustained a left knee injury causally
related to the accepted employment incident.19 Following this and any such further development
as may be deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 17, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: January 11, 2022
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

19

Id.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.V., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Carson, CO, Employer
__________________________________________

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

Docket No. 09-1165
Issued: February 16, 2010

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 March 31, 2009 appellant, through his representative, filed a timely appeal from the
August 12, 2008 and February 20, 2009 merit decisions of the Office of Workers’ Compensation
Programs regarding a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than 10 percent permanent impairment to his
right lower extremity.
FACTUAL HISTORY
On September 13, 2004 appellant, then a 37-year-old police officer, filed a traumatic
injury claim (Form CA-1) alleging that, on September 9, 2004, while making a routine traffic
stop, he stepped out of his vehicle onto the side of the road and experienced a pop in his right
knee. The Office accepted the claim for torn meniscus of the right knee and permanent
aggravation of a preexisting torn anterior cruciate ligament (ACL) graft. It authorized a right
knee arthroscopy, partial synovectomy and partial medial meniscectomy, which appellant
underwent on November 30, 2004. On February 9, 2007 appellant underwent a revision of the

ACL reconstruction and a partial lateral meniscectomy. On June 21, 2007 he filed a request for a
schedule award (Form CA-7).
By letter dated June 21, 2007, the Office requested that appellant submit a physician’s
evaluation of permanent impairment in accordance with the fifth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).1
In a July 24, 2007 medical report, Dr. Jacob Patterson, a Board-certified orthopedic
surgeon, opined that appellant sustained 20 percent permanent impairment of the lower extremity
under the A.M.A., Guides third edition.
In a letter dated September 21, 2007, the Office notified appellant that Dr. Patterson’s
impairment rating was based on the third edition of the A.M.A., Guides and that a rating
conforming to the fifth edition was required.
In a November 12, 2007 medical report, Dr. Patterson opined that appellant sustained 15
percent permanent impairment of the right leg. He indicated that appellant did not sustain any
impairment for range of motion or ankylosis, but provided a seven percent impairment rating for
ACL laxity and two percent impairment for a lateral meniscectomy using Table 17-33.
Dr. Patterson also added seven percent impairment for degenerative joint disease using Table
17-31. He stated that appellant had reached maximum medical improvement.
On February 14, 2008 the Office requested that an Office medical adviser review
Dr. Patterson’s medical reports and determine appellant’s permanent impairment of the right
lower extremity. In a February 15, 2008 medical report, Dr. Ronald J. Swarsen, Board-certified
in family medicine, stated that Dr. Patterson did not provide a narrative explaining his
impairment calculations or the methods he used to calculate impairment. He noted that
degenerative joint disease was not an accepted condition. Dr. Swarsen advised that appellant
reached maximum medical improvement on July 24, 2007.
On February 19, 2008 the Office notified Dr. Patterson of the deficiencies in his medical
report and requested clarification of the impairment rating.
In a March 24, 2008 medical report, Dr. Patterson stated that, at the time of the ACL
reconstruction, appellant had degenerative arthritis related to his employment injury based on
direct vision during the arthroscopy and from an x-ray evaluation. Using Tables 17-31 and
17-33 in the A.M.A., Guides, he opined that appellant sustained seven percent lower extremity
impairment due to mild arthritis in the knee, two percent impairment due to the partial lateral
meniscectomy and seven percent impairment due to mild residue and ACL laxity. Dr. Patterson
stated that appellant sustained 16 percent total permanent impairment of the lower extremity.
In an April 4, 2008 medical report, Dr. Swarsen opined that appellant sustained nine
percent impairment to the right lower extremity. He stated that in accordance with Table 17-33
on page 546 of the A.M.A., Guides, appellant sustained seven percent impairment due to laxity
of the ACL and two percent impairment for the partial lateral meniscectomy. Dr. Swarsen
disagreed with Dr. Patterson’s inclusion of an impairment rating for degenerative joint disease
because he did not include x-rays to support the finding of arthritis as required by section 17.2h
1

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

2

on page 544 of the A.M.A., Guides. He noted a maximum medical improvement date of
July 24, 2007.
The Office referred appellant to Dr. Katharine J. Leppard, Board-certified in physical
medicine and rehabilitation, for a second opinion evaluation of his permanent impairment. In a
June 13, 2008 medical report, Dr. Leppard reviewed appellant’s medical and occupational
history and reported his complaints of persistent knee pain, numbness and weakness in the right
knee. Physical examination revealed mild swelling of the right knee, mild ACL laxity on the
right and decreased sensation over the saphenous nerve distribution. Range of motion of the
knee demonstrated extension and flexion of 97 degrees. Dr. Leppard opined that appellant
sustained 18 percent permanent impairment of the right lower extremity. She added 2 percent
impairment for a partial lateral meniscectomy and 7 percent impairment for mild cruciate
ligament laxity, in accordance with Table 17-33 on page 546, with 10 percent impairment for
mild loss of range of motion with flexion less than 110 degrees, using Table 17-10 on page 537.
Dr. Leppard noted that appellant achieved maximum medical improvement on
November 12, 2007.
In a June 27, 2008 medical report, Dr. Swarsen stated that Dr. Leppard appropriately used
Table 17-33 on page 546 of the A.M.A., Guides to determine that appellant sustained seven
percent impairment for a laxity of the ACL and two percent impairment for a partial lateral
medial meniscectomy. In light of Table 17-2 on page 526 of the A.M.A., Guides, however,
Dr. Leppard incorrectly combined the rating for loss of range of motion with the diagnosis-based
estimates. Dr. Swarsen opined that the 10 percent impairment rating for range of motion should
be adopted because it provided the highest rating. He indicated that appellant reached maximum
medical improvement on July 24, 2007.
By letter dated June 30, 2008, the Office requested that Dr. Leppard clarify her
impairment after reviewing Dr. Swarsen’s June 27, 2008 medical report.
In a July 3, 2008 report, Dr. Leppard stated that she would adopt the higher 10 percent
impairment rating for loss of range of motion over the 9 percent rating for partial meniscectomy
and mild ACL laxity.
On July 18, 2008 Dr. Swarsen agreed with Dr. Leppard’s rating of 10 percent permanent
impairment of the right leg. He stated that the rating was appropriate and consistent with the
fifth edition of the A.M.A., Guides and supported by documentation of pathology.
By decision dated August 12, 2008, the Office granted appellant a schedule award for 10
percent impairment of the right leg, less the nine percent previously paid under a separate claim
number.2 It found maximum medical improvement was on July 24, 2007.
On August 22, 2008 appellant, through his attorney, filed a request for a telephonic
hearing before an Office hearing representative, which was held on December 4, 2008.
By decision dated February 20, 2009, the Office hearing representative affirmed the
August 12, 2008 decision. She found that Dr. Patterson did not provide a valid impairment
2

Appellant was awarded a schedule award for a nine percent permanent impairment to the right lower extremity
due to a July 11, 2000 knee strain under Office file number xxxxxx039.

3

rating; therefore, the Office properly referred appellant to Dr. Leppard for a second opinion
evaluation. Further, Dr. Swarsen and Dr. Leppard agreed that appellant sustained 10 percent
permanent impairment.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
sustaining impairment from loss, or loss of use, of scheduled members or functions of the body.
However, the Act 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.5
ANALYSIS
The Office accepted that appellant sustained a torn meniscus of the right knee and a
permanent aggravation of a preexisting torn ACL due to his employment injury. The issue is
whether appellant sustained greater than 10 percent permanent impairment to his right lower
extremity entitling him to additional schedule awards.
In a July 24, 2007 medical report, Dr. Patterson opined that appellant sustained 20
percent permanent impairment. He utilized the third edition of the A.M.A., Guides. After
notification that impairment ratings were required to be under the fifth edition of the A.M.A.,
Guides, Dr. Patterson provided a November 12, 2007 report finding 15 percent permanent
impairment of the right leg. He provided seven percent impairment rating for mild cruciate
ligament laxity and two percent impairment for a lateral meniscectomy using Table 17-33.6
Dr. Patterson also added seven percent impairment for degenerative joint disease using Table
17-31.7
On March 24, 2008 Dr. Patterson found that appellant sustained 16 percent permanent
impairment of the right lower extremity. He added seven percent impairment for mild arthritis of
the knee, two percent impairment for partial lateral meniscectomy and seven percent impairment
for mild residue and ACL laxity using Tables 17-318 and 17-339 in the A.M.A., Guides, fifth
edition. Dr. Patterson stated that appellant’s degenerative arthritis was related to his employment
injury and was visible during the arthroscopy and on an x-ray evaluation.
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. See also Linda R. Sherman, 56 ECAB 127 (2004).

6

A.M.A., Guides 546.

7

Id. at 544.

8

Id. at 544.

9

Id. at 546.

4

The Board finds that Dr. Patterson’s impairment ratings are not sufficient for schedule
award purposes. In the July 24, 2007 medical report, Dr. Patterson based his impairment rating
on the third edition of the A.M.A., Guides as opposed to the fifth edition. This report is of
diminished probative value.10 On November 12, 2007 and March 24, 2008 Dr. Patterson
included an impairment rating for degenerative joint disease using Table 17-31. He stated that
he visually observed the arthritis during the arthroscopy and that it was visible on an x-ray film.
The A.M.A., Guides state that in the case of arthritis of the knee, impairments should be based
on x-rays where the knee is in the neutral flexion-extension position or zero degrees.11
Dr. Patterson did not specify the type of x-ray he relied upon in rating this impairment or include
a copy of the x-ray with his medical report.12 The Board finds that the impairment ratings were
not in conformance with the A.M.A., Guides and are of diminished probative value.13
The Office referred appellant to Dr. Leppard for a second opinion evaluation. In a
June 13, 2008 medical report, Dr. Leppard reviewed appellant’s medical and occupational
history and provided a complete physical examination. She opined that appellant sustained 18
percent impairment of the right lower extremity. Dr. Leppard added two percent impairment for
a partial lateral meniscectomy and seven percent impairment for mild cruciate ligament laxity,
using Table 17-33 on page 546 of the A.M.A., Guides.14 She also added 10 percent impairment
for mild loss range of motion with flexion less than 110 degrees, in accordance with Table 17-10
on page 537.15
The Office properly routed the case file to the Office medical adviser for review.16 On
June 27, 2008 Dr. Swarsen opined that appellant sustained 10 percent impairment rating for loss
of range of motion according to Table 17-10.17 He found that Dr. Leppard incorrectly combined
the ratings for loss of range of motion with the diagnosis-based ratings, which was prohibited
under the cross-usage chart at Table 17-2, page 526.18 As the rating for loss of range of motion
was higher than that for the diagnosis-based rating, Dr. Swarsen found that appellant’s total
impairment rating was 10 percent.

10

Effective February 1, 2001, the Office adopted the fifth edition of the A.M.A., Guides as the guidelines for
rating permanent impairment. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6 (August 2002).
11

A.M.A., Guides 544.

12

See R.D., Docket No. 08-2091 (issued August 6, 2009).

13

See J.C., 58 ECAB 700 (2007).

14

A.M.A., Guides 546.

15

Id. at 537.

16

See Federal (FECA) Procedure Manual, supra note 10 (after obtaining all necessary medical evidence, the file
should be routed to an Office medical adviser for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the Office medical adviser providing rationale for the percentage of
impairment specified, especially when there is more than one evaluation of the impairment present).
17

A.M.A., Guides 537.

18

Id. at 526.

5

The Office requested that Dr. Leppard clarify her impairment rating and provide a copy
of Dr. Swarsen’s report. On July 3, 2008 Dr. Leppard advised that she would adopt the 10
percent impairment rating for range of motion as it was greater than the diagnosis-based
estimates of 9 percent. The A.M.A., Guides provides that, if more than one rating method can be
used, the method that provides the higher rating should be adopted.19 As the rating for loss of
range of motion provided a higher total impairment, the medical evidence establishes 10 percent
impairment to appellant’s right leg. There is no other probative medical evidence of record to
establish that appellant had more than 10 percent impairment of his right lower extremity.
CONCLUSION
The Board finds that appellant has 10 percent permanent impairment to his right lower
extremity.
ORDER
IT IS HEREBY ORDERED THAT the February 20, 2009 and August 12, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 16, 2010
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

19

Id. at 527.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wichita, KS, Employer
__________________________________________

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Appearances:
Debra Hauser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1514
Issued: January 8, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 23, 2014 appellant, through her attorney, filed a timely appeal from the
January 13, 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 OWCP abused its discretion in denying appellant’s request to
change physicians.
FACTUAL HISTORY
On May 26, 2009 appellant, then a 44-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that her repetitive employment duties had aggravated her
degenerative cervical disc disease. She indicated that she first became aware of her claimed
1

5 U.S.C. §§ 8101-8193.

condition on May 16, 2006 and that she first realized it was related to her employment in
January 2008. OWCP accepted appellant’s claim for aggravation of degenerative disc disease at
C4-5 and C5-6. On September 29, 2008 appellant underwent OWCP-authorized anterior
cervical discectomy and fusion at C4-5 and C5-6.
In an undated letter received on May 1, 2012, appellant requested to change her treating
physician to Dr. Eustaquio Abay, a Board-certified neurosurgeon.2 OWCP authorized this
change in a letter dated May 7, 2012.
On July 25, 2012 Dr. Abay performed OWCP-authorized anterior cervical discectomy
and fusion at C3-4. He released appellant to work on February 8, 2013 with specified
restrictions. On February 18, 2013 Dr. Abay completed an order to refer her to Dr. Xavier Ng, a
Board-certified physical medicine and rehabilitation physician in Wichita, KS, for epidural
steroid injections and pain management as needed. In a letter dated March 4, 2013, OWCP
authorized the change of treating physician to Dr. Ng.
In a March 11, 2013 letter, appellant questioned the change of physician letter, indicating
that Dr. Abay had not released her from his care. By letter dated March 22, 2013, OWCP
informed her that the letter effectuating the change of physician was sent based on Dr. Abay’s
referral form and on information given to the assigned field nurse by Dr. Abay’s office that he
was transferring care to Dr. Ng.
In an April 1, 2013 letter, appellant’s counsel asserted that at no point did Dr. Abay and
appellant agree that she would be released to Dr. Ng’s care. It was noted that, at appellant’s
request, Dr. Abay referred her to Dr. Edward Wolski, a Board-certified family practitioner and
pain management physician. A March 4, 2013 referral order from Dr. Abay referring appellant
to Dr. Wolski in Denton, TX, for “Rehabilitation Referral” and a functional capacity evaluation
was submitted. A March 21, 2013 report of Dr. Wolski’s initial evaluation was also submitted.
Counsel communicated by telephone with OWCP and indicated that appellant wanted to
see Dr. Wolski in Denton, TX, because she was not comfortable with the physicians in her area.
OWCP advised counsel during these communications that a physician outside of her area would
not be authorized. Counsel requested that OWCP issue a formal letter regarding appellant’s
request to change her treating physician.
In a May 15, 2013 letter, counsel, on behalf of appellant, made a formal request for a
change of physician to Dr. Wolski. In a May 14, 2013 statement, Dr. Abay indicated that
appellant was no longer under his care and that she had been referred to Dr. Wolski.
By letter dated June 10, 2013, counsel requested clarification of a June 7, 2013
conversation during which OWCP indicated that appellant’s change of treating physician request
would not be authorized as the requested physician was located more than 50 miles from her
residence. It was noted that appellant did not have a formal decision with appeal rights on this
matter.
2

Appellant’s treating physician at the time of the request was Dr. Nazih Moufarrij, a Board-certified
neurosurgeon.

2

In a July 17, 2013 decision, OWCP formally denied appellant’s change of physician
request to Dr. Wolski noting that he was not located within a reasonable distance from her home
and that Dr. Ng was an appropriate specialist to treat her work-related medical condition. It
indicated that Dr. Ng’s office was located less than 40 miles from her residence while
Dr. Wolski’s office was “approximately 334-363 miles from your residence.”
Counsel, on behalf of appellant, requested a review of the written record by an OWCP
hearing representative. She contended that OWCP had improperly denied her request to change
her treating physician to Dr. Wolski.
In a January 13, 2014 decision, the hearing representative affirmed OWCP’s July 17,
2013 decision noting that OWCP did not abuse its discretion in denying appellant’s request for a
change in her treating physician. She indicated that appellant’s own personal preference to treat
with Dr. Wolski was not sufficient reason to support a request to transfer care to a physician in
another state. Dr. Abay provided no medical explanation to support this referral or to show why
Dr. Wolski was specifically selected as the physician to provide follow-up treatment. The
hearing representative stated that Dr. Abay did not address whether or not there were other
physicians in the local area who could provide the same type of treatment or explain why Dr. Ng
was unable to provide appropriate treatment for the work-related conditions. She noted that even
if appellant did not wish to treat with Dr. Ng, no evidence had been presented to establish that
she was unable to obtain appropriate medical care with another physician with a similar specialty
within a 50-mile radius (or 100 miles roundtrip) from her residence or workplace. The hearing
representative noted that appellant did not live or work in a location which would be considered
geographically remote. Dr. Wolski was a family practice and pain management physician and
these were not rare specialties. The hearing representative noted that appellant’s accepted
conditions were not so unusual that they would require an unusual specialty or treatment that
only Dr. Wolski could provide.
LEGAL PRECEDENT
The payment of medical expenses incident to securing medical care is provided for under
section 8103 of FECA. The pertinent part provides that an employee may initially select a
physician to provide medical services, appliances, and supplies, in accordance with such
regulations and instruction as the Secretary considers necessary.3
When the physician originally selected to provide treatment for a work-related injury
refers the employee to a specialist for further medical care, the employee need not consult
OWCP for approval. In all other instances, however, the employee must submit a written request
to OWCP with his reasons for desiring a change of physician. OWCP will approve the request if
it determines that the reasons submitted are sufficient. Requests that are often approved include
those for transfer of care from a general practitioner to a physician, who specializes in treating
conditions like the work related one or the need for a new physician when an employee has
moved.4
3

5 U.S.C. § 8103(a).

4

20 C.F.R. § 10.316; see also P.M., Docket No. 12-1212 (issued January 24, 2013).

3

Any transfer of medical care should be accomplished with due regard for professional
ethics and courtesy. No transfer or termination of treatment should be made unless it is in the
best interest of the claimant and the government. Employees who want to change attending
physicians must explain their reasons in writing and OWCP must review all such requests.
OWCP may approve a change when the original treating physician refers the claimant to another
physician for further treatment; the claimant wants to change from the care of a general
practitioner to that of a specialist in the appropriate field or from the care of one specialist to
another in the appropriate field; or the claimant moves more than 50 miles from the original
physician (since OWCP has determined that a reasonable distance of travel is up to a roundtrip
distance of 100 miles). It must use discretion in cases where other reasons are presented.5
The Board has recognized that OWCP, acting as the delegated representative of the
Secretary of Labor, has broad discretion in approving services provided under FECA. OWCP
has the general objective of ensuring that an employee recovers from her injury to the fullest
extent possible in the shortest amount of time. It, therefore, has broad administrative discretion
in choosing means to achieve this goal. The only limitation on OWCP’s authority is that of
reasonableness. Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
deductions from established facts. It is not enough to show merely that the evidence could be
construed to produce a contrary conclusion.6
ANALYSIS
OWCP accepted appellant’s claim for aggravation of degenerative disc disease at C4-5
and C5-6. On March 4, 2013 Dr. Abay, an attending Board-certified neurosurgeon, referred her
to Dr. Ng, a Board-certified physical medicine and rehabilitation physician. OWCP approved
this request by issuing an authorization to change treating physicians to Dr. Ng. Appellant and
her counsel contended that a change of physician approval should not have been issued as
Dr. Abay had not released appellant from his care. Counsel then submitted a formal request for a
change of physician to Dr. Wolski, a Board-certified family practice and pain management
physician located in Denton, TX, a location more than 330 miles away from appellant’s home in
Goddard, KS. A statement was submitted in which Dr. Abay indicated that appellant had been
released from his care and referred to Dr. Wolski.
The Board finds that OWCP did not abuse its discretion by denying appellant’s request to
change attending physicians to Dr. Wolski, whose office is located more than 330 miles away
from her home. The distance roundtrip to and from Dr. Wolski’s office was more than 660
miles, which far exceeds the 100-mile roundtrip radius that OWCP generally has found to be
reasonable.7 The Board finds that this is an unnecessary distance to travel in the absence of a
compelling reason to justify travel to a physician located at a greater distance.
5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing Examination and Treatment, Chapter
3.300.5c (February 2012).
6

See R.G., Docket No. 12-811 (issued June 15, 2012); Daniel J. Perea, 42 ECAB 221 (1990).

7

See supra note 6.

4

The Board notes that OWCP provided multiple reasons for its denial of appellant’s
request. OWCP indicated that appellant’s own personal preference to treat with Dr. Wolski was
not sufficient reason to support a request to transfer care to a physician in another state.
Dr. Abay provided no medical explanation to support this referral or to show why Dr. Wolski
was specifically selected as the physician to provide follow-up treatment. OWCP indicated that
Dr. Abay did not address whether or not there were other physicians in the local area who could
provide the same type of treatment or explain why Dr. Ng was unable to provide appropriate
treatment for the work-related conditions. No evidence had been presented to establish that
appellant was unable to obtain appropriate medical care with another physician with a similar
specialty within a 50-mile radius (or 100 miles roundtrip) from her residence or workplace.
OWCP indicated that her accepted conditions are not so unusual that they would require an
unusual specialty or treatment that only Dr. Wolski could provide.
Further, it is noted that appellant resides less than 20 miles from the center of Wichita,
KS, a considerable metropolitan area. Such a long distance to travel to Dr. Wolski for care does
not appear necessary and reasonable or in the best interest of appellant. In a similar case, the
Board found that OWCP acted within its discretion in denying a claimant’s request to see a
physician who was located more than 300 miles from his home in Houston, TX.8
On appeal, appellant’s counsel contends that Dr. Abay referred appellant to Dr. Wolski
for treatment and noted that his clinic was capable of providing all treatments suggested by
Dr. Abay. While appellant offered reasons for requesting to see Dr. Wolski, OWCP provided
sufficient reason for denying his request. It has broad discretion in approving services provided
under FECA and the only limitation on OWCP’s authority is that of reasonableness. In this case,
there is no evidence of manifest error, clearly unreasonable judgment or illogical action on the
part of OWCP. Appellant’s arguments on appeal do not demonstrate that OWCP’s decision to
deny the change in physicians was an abuse of discretion.9
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP did not abuse its discretion in denying appellant’s request to
change physicians.

8

See J.W., Docket No. 13-1852 (issued January 23, 2014). The Board notes that this case coincidentally also
involves a request to change to Dr. Wolski as a treating physician.
9

See supra note 7.

5

ORDER
IT IS HEREBY ORDERED THAT the January 13, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 8, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 07-520
Issued: June 20, 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 December 16, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decision dated September 21, 2006 denying her request for
reconsideration. Because she filed her appeal more than a year after the last merit decision dated
August 24, 2005, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board does not have
jurisdiction over the merits of the claim. The only decision properly before the Board is the
Office’s September 21, 2006 nonmerit decision.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
This is the second appeal in this case to the Board. In an order dated April 19, 2005, the
Board set aside the Office’s April 20, 2004 denial of appellant’s request for reconsideration and
remanded the case for proper consideration of the evidence.1
On January 13, 1999 appellant, a 41-year-old letter carrier, filed a traumatic injury claim
alleging that on January 8, 1999 she injured her feet delivering mail in inclement weather.2 The
Office accepted the claim for bilateral tendinitis/strain and later expanded the claim to include
Morton’s neuroma, right foot. Appellant returned to limited duty on May 20, 1999. On April 5,
2000 she filed an occupational disease claim alleging that she had developed tarsal tunnel
syndrome, hammertoes and bunions, as a result of walking and prolonged standing in frigid
temperatures while performing her employment-related duties.3
On June 21, 2000 the Office denied appellant’s occupational disease claim on the
grounds that the claimed medical conditions had not been shown to be causally related to factors
of employment.4 By decision dated November 17, 2000, an Office hearing representative set
aside the June 21, 2000 decision and remanded the case for further development of the medical
evidence. Finding that the April 5, 2000 claim was actually an expansion of the January 13,
1999 claim, the hearing representative directed the Office to double File No. A10-498108 into
File No. A10-484070.
Appellant was treated by Dr. Samuel Chmell, a Board-certified orthopedic surgeon, who
opined on February 1, 2001 that appellant’s hammertoe and bunion conditions were related to
her employment. In a January 10, 2001 report of a second opinion examination, Dr. Leonard R.
Smith, a Board-certified orthopedic surgeon, opined that her bunions and hammertoe deformities
were not caused, aggravated, precipitated or exacerbated by her employment activities. He
stated that there was no orthopedic evidence of any pathology in appellant’s feet or ankles
related to her work.
By decision dated February 1, 2001, the Office again denied appellant’s occupational
disease claim, finding that the medical evidence did not establish that her condition was related
to her employment. On June 21, 2001 an Office hearing representative found a conflict between
the medical opinions of appellant’s treating physician and the second opinion physician.
Accordingly, the representative set aside the February 1, 2001 decision and remanded the case
for further development of the medical evidence, including an impartial medical examination.
On remand, the Office referred appellant, together with the entire medical record and a
statement of accepted facts, to Dr. Alan A. Hyman, a Board-certified orthopedic surgeon, for an
1

Docket No. 05-319 (issued April 19, 2005).

2

File No. 10-0484070.

3

File No. 10-0498108. Appellant also has an approved occupational disease claim for a March 1, 1999 injury
that was accepted for lumbosacral radiculopathy on the right.
4

The record does not contain a copy of the June 21, 2000 decision.

2

impartial medical examination. In a September 13, 2001 report, Dr. Hyman diagnosed mild
bilateral hallux valgus deformities; mild bilateral supple hammertoe deformities lesser toes; right
ankle tarsal tunnel syndrome; and Morton’s neuroma right foot. He opined that appellant’s
hallux valgus deformities were not caused by work activities, explaining that these conditions
were extremely common and that, if there had been a progression of these deformities, it should
be considered a natural progression. Dr. Hyman opined that appellant’s tarsal tunnel syndrome
and Morton’s neuroma were causally related to her employment activities.
By decision dated October 24, 2001, the Office accepted that appellant’s tarsal tunnel
syndrome was work related. However, the Office denied the claim as to bilateral hammertoes
and hallux deformities, finding that these conditions were not causally related to appellant’s
employment.
On October 21, 2002 appellant requested reconsideration of the October 24, 2001
decision, submitting follow-up reports from her treating physician. She contended that
Dr. Hyman’s referee opinion should not have been given special weight, as it was not factual and
was not well rationalized. By decision dated January 16, 2003, the Office denied modification of
its October 24, 2001 decision.
On January 13, 2004 appellant again requested reconsideration. She alleged that the
Office failed to properly evaluate the medical evidence. Referring to numerous sections of the
Office procedure manual and the Board’s case law, appellant contended that the Office failed to
apply and misinterpreted certain points of law. She argued that the Office incorrectly accorded
special weight to the impartial medical examiner. Appellant stated that information was
improperly sent to the Office from the employing establishment without her knowledge.
Exhibits submitted included a description of her duties as a letter carrier and an undated
transcript of a hearing before Judge Jackson. In a nonmerit decision dated April 20, 2004, the
Office denied appellant’s request for reconsideration.
Appellant appealed the April 20, 2004 decision to the Board. In an order dated April 19,
2005, the Board set aside the Office’s April 20, 2004 denial of her request for reconsideration
and remanded the case for proper consideration of the evidence.5 In a merit decision dated
August 24, 2005, the Office denied modification of its January 16, 2003 decision.
On August 23, 2006 appellant again requested reconsideration. She contended that the
Office failed to comply with the Board’s April 19, 2005 order and refused to adhere to its own
procedure manual with regard to the selection of medical examiners and in weighing medical
evidence. Appellant stated that the claims examiner “appeared” not to have reviewed the entire
case file and did not give reasons for assigning weight to the referee opinion. In a declaration
dated August 23, 2006, she contended that her claimed condition was causally related to factors
of her federal employment because she never “had any problems” before January 8, 1999.
Appellant did not submit any additional medical evidence.
By decision dated September 21, 2006, the Office denied appellant’s request for
reconsideration, finding that the evidence submitted was insufficient to warrant merit review.
5

Docket No. 05-319 (issued April 19, 2005).

3

LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act,6 the Office has the
discretion to reopen a case for review on the merits. The Office must exercise this discretion in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulation,7 which provides that a claimant may obtain review of the merits of his or her written
application for reconsideration, including all supporting documents, which sets forth arguments
and contains evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the
[Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.8
Evidence that repeats or duplicates evidence already in the case record has no evidentiary
value and does not constitute a basis for reopening a case.9
ANALYSIS
In her August 23, 2006 request for reconsideration, appellant reiterated that her condition
was causally related to her employment and contended that the Office failed to adhere to its
procedure manual with regard to the selection of medical examiners and in weighing medical
evidence. However, she failed to show how the Office erred in its application of a specific point
of law. Appellant also failed to advance a relevant legal argument not previously considered, as
the arguments espoused were raised and considered in her January 13, 2004 request for
reconsideration. The submission of evidence or argument that repeats or duplicates that already
in the case record does not constitute a basis for reopening a case.10

6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.606(b).

8

Id.

9

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

10

Id.

4

Appellant argued that the Office failed to comply with the Board’s April 19, 2005 order,
stating that the claims examiner “appeared” not to have reviewed the entire case file and failed to
give reasons for assigning weight to the referee opinion. However, the Board finds that these
arguments have no reasonable color of validity and therefore are not a basis for reopening the
case on its merits.11 The record does not establish that pertinent evidence was not considered by
the Office. Furthermore, the reasons for assigning weight to the medical opinion of the impartial
medical examiner were clearly stated in the Office’s October 24, 2001 decision, which was
incorporated by reference in the August 24, 2005 decision.
For reasons stated above, the Board finds that appellant did not demonstrate that the
Office erroneously applied or interpreted a specific point of law, or advance a relevant legal
argument not previously considered by the Office. Consequently, she was not entitled to a
review of the merits of her claim based on the first and second above-noted requirements under
section 10.606(b)(2).12
Appellant submitted no additional evidence in support of her reconsideration request.
However, she contended that her claimed condition was causally related to factors of her federal
employment because she never “had any problems” before January 8, 1999. The Board notes
that lay individuals, such as appellant, are not competent to render a medical opinion.13
Therefore, appellant’s contention does not constitute relevant and pertinent evidence not
previously considered by the Office. Moreover, an award of compensation may not be based on
appellant’s belief of causal relationship. Neither the mere fact that a disease or condition
manifests itself during a period of employment, nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents, is sufficient to establish a causal
relationship.14 As she did not submit relevant and pertinent new evidence not previously
considered by the Office, she did not meet the requirements of the third above-noted element of
section 10.606(b)(2).15
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her August 23, 2006 request for reconsideration.

11

See Jennifer A. Guillary, 57 ECAB ___ (Docket No. 06-208, issued March 13, 2005) (while a reopening of a
case may be predicated solely on a legal premise not previously considered, such reopening is not required where
the legal contention does not have a reasonable color of validity).
12

20 C.F.R. § 10.606(b)(2)(1), (2).

13

Robert J. Krstyen, 44 ECAB 227 (1992).

14

Phillip L. Barnes, 55 ECAB 426 (2004); see also Dennis M. Mascarenas, 49 ECAB 215 (1997).

15

20 C.F.R. § 10.606(b)(2)(3).

5

CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 21, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 20, 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
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, OR, Employer
__________________________________________

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Appearances:
Paul H. Felser, Esq., for the appellant
No appearance, for the Director

Docket No. 08-1363
Issued: December 22, 2008

Oral Argument: November 18, 2008

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 8, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ January 4, 2008 nonmerit decision, denying his request for merit
review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this
nonmerit decision. Because more than one year has elapsed between the Office’s last merit
decision dated December 12, 2006 and the filing of this appeal on April 8, 2008 the Board lacks
jurisdiction to review the merits of this claim.1

1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2). The record also contains a July 24, 2007 decision of the Board
finding that appellant had established that the event occurred as alleged, but affirming the Office’s denial of the
claim on the grounds that causal relation had not been established. In the absence of further review by the Office on
the issue addressed by the decision, the subject matter reviewed is not subject to further consideration by the Board.
5 U.S.C. § 8128; Clinton E. Anthony, Jr., 49 ECAB 476 (1998). Appellant did not seek reconsideration of the
Board’s decision pursuant to 20 C.F.R. § 501.7(a). A decision of the Board is final upon the expiration of 30 days
from the date of the decision. 20 C.F.R. § 501.6(d).

ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case is before the Board for the second time. In a decision dated July 24, 2007, the
Board affirmed the Office’s December 12, 2006 denial of appellant’s occupational disease claim,
on the grounds that the evidence failed to establish that the accepted events had caused a
diagnosed condition. The findings of fact and conclusions of law are incorporated herein by
reference.2
On September 10, 2006 appellant, a 35-year-old mail handler, filed an occupational
disease claim alleging that he sustained a torn left rotator cuff, back pain and tendinitis as a result
of pushing a mail container in the performance of duty. In support of his claim, he submitted
medical evidence, including reports from his treating physician, Dr. John C. Austin, an
orthopedic surgeon. On September 6, 2006 Dr. Austin stated that appellant sustained a left
shoulder injury in December 2004 while pushing a mail cart. He diagnosed left shoulder partial
thickness rotator cuff tear with rotator cuff tendinitis and left shoulder moderate
acromioclavicular (AC) degenerative joint disease. On October 26, 2006 Dr. Austin diagnosed
supraspinatus tendinopathy and bursitis with partial tearing. He indicated that appellant noted an
acute worsening of left shoulder pain following the mail cart incident in December 2004.
In a decision dated December 12, 2006, the Office denied appellant’s claim on the
grounds that he failed to establish the fact of injury.3 Appellant appealed the December 12, 2006
decision to the Board. In a decision dated July 24, 2007, the Board found that appellant had
established that the event occurred as alleged, but denied the claim on the grounds that he had
failed to establish that the accepted event caused an injury.
On December 11, 2007 appellant, through his representative, requested reconsideration.
In support of the request, he submitted new medical evidence, which the representative
contended was sufficient to establish a causal relationship between the accepted employment
event and appellant’s shoulder injury.
In an October 10, 2007 report, Dr. Austin diagnosed left rotator cuff tendinitis and AC
degenerative joint disease. He related appellant’s report that his shoulder pain began in
December 2004 when pushing a mail cart and that he sustained a second injury in
December 2005 in a motor vehicle accident. Dr. Austin opined that appellant’s shoulder pain
originated during the December 2004 incident, stating that “forceful pushing of the container,
with it suddenly stopping,” could have caused his rotator cuff tendinitis. He stated that it was

2

Docket No. 07-649 (issued July 24, 2007).

3

The Board notes that the Office properly treated appellant’s claim as a traumatic injury claim, since the alleged
event occurred in a single workday. See 20 C.F.R. § 10.5 (ee).

2

difficult to ascertain which of the two incidents significantly worsened his symptoms, but he
suspected that the 2004 incident was “the major contributing cause.
On October 24, 2007 Dr. Austin stated that appellant sustained an aggravation of left
shoulder chronic rotator cuff tendinitis and AC degenerative joint disease during the
December 2004 incident. He opined within a reasonable degree of medical certainty, that “the
majority of [appellant’s] shoulder pain” was a result of the mail cart incident.
In a report dated November 21, 2007, Dr. Austin stated that appellant’s job duties, which
involved pushing heavy mail containers, repetitive pushing in forward flexion and overhead
lifting, “certainly are likely to have created and further aggravated his rotator cuff tend[i]nitis.”
He opined, within a reasonable degree of medical certainty, that the rotator cuff tendinitis
originated during appellant’s injury.
In a November 4, 2007 report, Dr. Timothy J. Gray, a Board-certified osteopath,
specializing in family practice, stated that he saw appellant between June 20 and September 11,
2006 for shoulder pain. He diagnosed supraspinous tendinitis, biceps tendinitis and administered
steroid injections. Dr. Gray opined that pushing and pulling heavy containers of mail initially
caused appellant’s condition.
By decision dated January 4, 2008, the Office denied appellant’s request for
reconsideration.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,4 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.5 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.6 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.7
In implementing the one-year time limitation, 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
4

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

20 C.F.R. § 10.606(b)(2).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

3

subsequent merit decision on the issues.8 This includes any hearing or review of the written
record decision, any denial of modification following a reconsideration request, any merit
decision by the Employees’ Compensation Appeals Board (ECAB) and any merit decision
following action by ECAB.9
ANALYSIS
In support of a request for reconsideration, appellant submitted four medical reports
which addressed the relevant issue in this case, namely, whether the accepted employment
incident caused an injury. On November 4, 2007 Dr. Gray opined that pushing and pulling
heavy containers of mail initially caused appellant’s condition. In an October 10, 2007 report,
Dr. Austin diagnosed left rotator cuff tendinitis and AC degenerative joint disease. He related
appellant’s report that his shoulder pain began in December 2004 when pushing a mail cart,
stating that “forceful pushing of the container, with it suddenly stopping,” could have caused his
rotator cuff tendinitis and that he suspected that the 2004 incident was “the major contributing
cause.” On October 24, 2007 Dr. Austin stated that appellant sustained an aggravation of left
shoulder chronic rotator cuff tendinitis and AC degenerative joint disease during the
December 2004 incident and opined within a reasonable degree of medical certainty, that “the
majority of [appellant’s] shoulder pain” was a result of the mail cart incident. On November 21,
2007 he stated that appellant’s job duties, which involved pushing heavy mail containers,
repetitive pushing in forward flexion and overhead lifting, “certainly are likely to have created
and further aggravated his rotator cuff tendinitis.” Dr. Austin opined, within a reasonable degree
of medical certainty, that the rotator cuff tendinitis originated during appellant’s injury.
The medical reports submitted in support of appellant’s request for reconsideration
constitute relevant and pertinent new evidence related to the underlying issue in this case. They
provided a degree of explanation and reasoning regarding the cause of appellant’s condition that
was not present in earlier reports. The Office noted that the medical evidence was insufficient to
establish a causal relationship between the accepted event and the left shoulder injury. However,
the standard for reopening a claim for merit review does not include the requirement that a
claimant submit all evidence necessary to discharge his burden of proof. Rather, he must submit
evidence that is relevant, pertinent and not previously considered by the Office. The Board finds
the evidence submitted sufficient to require further review of the case on its merits.10
Accordingly, the Board finds that the Office improperly denied appellant’s
reconsideration request without conducting a merit review. Upon return of the case record, the
Office shall conduct a merit review of the claim and, following any further development deemed
necessary, issue an appropriate merit decision.

8

Larry L. Litton, 44 ECAB 243 (1992). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Preliminary
Processing, Chapter 2.1602.3(b)(1) (October 2005).
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3b(1) (January 2004).

10

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

4

CONCLUSION
The Board further finds that the Office improperly refused to reopen appellant’s case for
further review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the January 4, 2008 decision of the Office of
Workers’ Compensation Programs is reversed and the case is remanded for further proceedings
consistent with this decision.
Issued: December 22, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sunnyside, NY, Employer
__________________________________________

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

Docket No. 19-0566
Issued: August 22, 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 January 16, 2019 appellant filed a timely appeal from an October 24, 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 to consider the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a right wrist injury
in the performance of duty, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 24, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On September 6, 2018 appellant, then a 56-year-old custodian, filed an occupational
disease claim (Form CA-2) alleging that she sustained de Quervain’s tenosynovitis of her wrist
due to factors of her federal employment, which included repetitive motion and twisting of her
wrists. She did not specify which wrist was involved. Appellant indicated that she became aware
of the condition in May 2017 and that it was causally related to factors of her federal employment
on May 28, 2017. She stopped work on September 6, 2018.
In a September 6, 2018 supplemental statement, appellant indicated that she went to the
urgent care center on May 28, 2017 because she had severe, unrelenting, and nagging pain. She
indicated that she was diagnosed with de Quervain’s tenosynovitis due to repetitive motion at
work. Appellant explained that it was hard to use her right hand for her daily hygiene and to
perform work activities.
OWCP received a job description form and e-mails between E.C., a human resource
management specialist, and A.B., a manager, describing appellant’s duties as sweeping no more
than two hours per day.
In a development letter dated September 21, 2018, OWCP advised appellant that it required
additional factual and medical evidence to establish her claim. It attached a questionnaire,
requesting that she provide a detailed description of the employment factors she believed
contributed to her right hand condition, including a description of the exact medical condition she
was claiming, relevant dates, and required duties. OWCP also requested that appellant’s attending
physician provide a comprehensive narrative medical report. It afforded appellant 30 days to
submit the necessary evidence.
In August 16, 2018 work excuse and treatment notes, Dr. Judah Fierstein, Board-certified
in emergency medicine, indicated that appellant could return to work on August 20, 2018.
In a September 4, 2018 report, Dr. Bradley Horak, an orthopedic hand surgeon, noted that
appellant was seen for recurrence of right wrist pain “x 15 months.” He noted that she was seen
for an injection on June 5, 2017 which relieved her symptoms until March 2018, when she was
given an injection by Dr. Jennifer Gordon, Board-certified in emergency medicine, and was seen
for urgent care on August 16, 2018 for the same complaint and given a wrist splint. Dr. Horak
diagnosed radial styloid tenosynovitis and proposed a decompression of the right first dorsal
extensor compartment. A duty status report (Form CA-17) of even date by him noted the diagnosis
of radial styloid tenosynovitis and provide restrictions on twisting, pulling/pushing, simple
grasping, and fine manipulation.
In a September 27, 2018 treatment note, Dr. Maxim Tyorkin, a Board-certified orthopedic
surgeon, noted that he saw appellant for an initial consultation for an employment-related injury
that occurred on May 11, 2017, when she injured her right wrist. He diagnosed right wrist
de Quervain’s syndrome.
By decision dated October 24, 2018, OWCP denied appellant’s claim, finding that the
evidence of record failed to establish that the occupational exposure occurred as alleged as she had

2

not responded to the questionnaire provided with its September 21, 2018 development letter. It
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.4 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
Appellant’s burden of proof includes the submission of a detailed description of the
employment factors, which he or she believes caused or adversely affected a condition for which
compensation is claimed.7
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right wrist
injury in the performance of duty, as alleged.
Appellant has not established the factual component of her claim, as she failed to describe
the circumstances surrounding the occupational factors, which she believed caused or contributed
to her diagnosed conditions. To establish a claim for compensation in an occupational disease
claim, an employee must submit a statement which identifies the factors of employment believed

3

See E.V., Docket No. 19-0447 (issued June 25, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P.,
59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
4
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

S.J., Docket No. 17-1798 (issued February 23, 2018).

3

to have caused her condition.8 Appellant has not provided factual information to establish that an
occupational exposure occurred as alleged.9
In a development letter dated September 21, 2018, OWCP requested that appellant provide
detailed information concerning the occupational factors she believed contributed to her condition
and respond to its questionnaire. However, appellant failed to respond or otherwise provide a
detailed narrative statement describing the employment factors, which she believed contributed to
her condition.10 The Board notes that she only provided a generalized and vague statement on her
Form CA-2, which stated that the repetitive motion and twisting of her wrist caused inflammation.
Furthermore, on her claim form appellant did not identify with specificity which wrist was the
subject of her complaints. In her September 6, 2018 narrative statement, she indicated that she
had severe, unrelenting, and nagging right wrist pain and had been diagnosed with de Quervain’s
tenosynovitis due to repetitive motion at work. However, the statement again did not describe the
specific employment factors appellant believed caused or contributed to her condition.11
While appellant submitted medical reports to the record, these reports also did not describe
specific employment factors which allegedly caused her right wrist injury.
As appellant has not described the employment factors alleged to have caused her injury,
the Board finds that she has not met her burden of proof to establish an injury in the performance
of duty, as alleged. As such, the medical evidence need not be addressed.12
Appellant may submit new evidence or argument 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. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right wrist
injury in the performance of duty, as alleged.

8

D.M., Docket No. 18-0335 (issued June 18, 2018).

9

Id.

10

See D.C., Docket No. 18-0082 (issued July 12, 2018).

11

Id.

12
See E.V., supra note 3; see V.F., 58 ECAB 321, 327 (2007); see also Bonnie A. Contreas, 57 ECAB 364, 368
n.10 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the October 24, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 22, 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

5


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

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

Docket No. 11-1702
Issued: March 2, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 18, 2011 appellant timely appealed the April 11, 2011 merit decision of the
Office of Workers’ Compensation Programs (OWCP), which granted a schedule award for
bilateral upper extremity impairment. 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.2
ISSUE
The issue is whether appellant has greater than two percent impairment of both the right
and left upper extremity.
1
2

5 U.S.C. §§ 8101-8193.

The record on appeal includes evidence received after OWCP issued its April 11, 2011 decision. The Board’s
appellate review is limited to evidence that was in the case record at the time OWCP issued its final decision. 20
C.F.R. § 501.2(c)(1) (2011). Accordingly, any new evidence received after the April 11, 2011 decision will not be
considered on appeal.

FACTUAL HISTORY
Appellant, a 41-year-old former contact representative, has an accepted occupational
disease claim for bilateral carpal tunnel syndrome (CTS), which arose on or about
January 8, 2007. On February 16, 2009 Dr. John G. Seiler, III, a Board-certified orthopedic
surgeon, performed a right carpal tunnel release, which OWCP authorized.3 Appellant received
appropriate wage-loss compensation. Unable to resume her regular duties, she returned to work
on August 16, 2010 as a customer service representative, with no loss in pay.4
On February 7, 2011 appellant filed a claim for a schedule award (Form CA-7).
However, she did not submit an impairment rating. On February 10, 2011 OWCP advised
appellant of the need for additional medical evidence in support of her claim for a schedule
award. The request was also directed to her surgeon, Dr. Seiler. OWCP advised Dr. Seiler to
prepare an upper extremity rating in accordance with the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (2008).
Dr. Seiler did not provide an impairment rating as requested, but instead submitted
follow-up treatment notes dated February 10 and March 17, 2011. In his February 10, 2011
treatment notes, he diagnosed bilateral CTS consistent with past electrodiagnostic studies.
Dr. Seiler noted excellent range of motion, mild tenderness, and positive Tinel’s signs. He also
noted that two-point discrimination was 5/5 in all fingers and thumbs. Appellant reportedly
preferred to continue nonsurgical treatment strategies and had recently received a new keyboard
at work that was helping a bit. Dr. Seiler refilled appellant’s prescription for anti-inflammatory
medication and advised her to follow up in four to six weeks.
When Dr. Seiler next saw appellant on March 17, 2011, she reported doing fairly well
overall. There were no other new problems and she estimated her condition had improved 25 to
30 percent. Bilateral upper extremity physical examination of the skin, subcutaneous tissues, and
vascular system were essentially normal. Dr. Seiler’s neurological examination revealed 5/5
two-point discrimination in all fingers and thumbs bilaterally. He also noted that Tinel’s signs
were +/-. Dr. Seiler’s impression was that overall appellant seemed to be doing fairly well with
nonsurgical treatment. He noted that she believed she had improved with ergonomic worksite
evaluation and modifications and nonsurgical treatment. Dr. Seiler planned to continue with this
treatment regimen and advised appellant to return in four to six weeks.
The district medical adviser, Dr. James W. Dyer, a Board-certified orthopedic surgeon,
reviewed the case record on April 1, 2011. He reported that appellant bad bilateral CTS, greater
on the right side, which required surgical release on February 16, 2009. Dr. Dyer characterized
the surgical result as “good.” As to the left side, he noted that appellant had been treated
nonsurgically with splints, anti-inflammatory medication and activity modification. Applying
3

Dr. Seiler is also certified in the subspecialties of hand surgery and orthopedic sports medicine.

4

By decision dated November 18, 2010, OWCP determined that appellant’s position as a customer service
representative fairly and reasonably represented her wage-earning capacity. Because her earnings as a customer
service representative equaled or exceeded the current wages of her date-of-injury position, appellant had zero loss
in wage-earning capacity.

2

Table 15-23 (Entrapment/Compression Neuropathy Impairment), A.M.A., Guides 449 (6th ed.
2008), Dr. Dyer noted that appellant’s grade modifiers (test findings, history & physical
findings) totaled 3, and averaged 1. With a grade modifier of 1, the default upper extremity
impairment rating was two percent under Table 15-23. Because Dr. Seiler had not provided a
QuickDASH (Disabilities of the Arm, Shoulder and Hand) score, there was no basis for
adjustment for functional scale.5 Dr. Dyer, therefore, found that appellant had two percent upper
extremity impairment on both the left and right side. Additionally, he indicated that appellant
had reached maximum medical improvement as of February 10, 2011.
By decision dated April 11, 2011, OWCP granted a schedule award for two percent
impairment of the right upper extremity and two percent impairment of the left upper extremity.
The award covered a period of 12.48 weeks, beginning February 10, 2011.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.6 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.7 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).8
ANALYSIS
Appellant challenges OWCP’s award of two (2) percent impairment of both the left and
right upper extremity. However, she has not submitted any probative medical evidence
indicating that she has a greater impairment than previously awarded. OWCP provided appellant
an opportunity to submit an impairment rating from her attending physician, Dr. Seiler, but he
did not submit a rating under the A.M.A., Guides (6th ed. 2008). While Dr. Seiler did not
provide a specific rating, his recent treatment notes included sufficient information upon which

5

The QuickDASH consists of 11 questions regarding one’s upper extremity symptoms (pain/tingling/difficulty
sleeping) and the ability to perform certain activities such as opening a tight or new jar or using a knife to cut food.
See Table 15-39, A.M.A., Guides 485 (6th ed. 2008). Based on the individual responses, a score is calculated from 0
to 100. The QuickDASH score is then used to determine what, if any, additional modification should be made based
on functional scale. Table 15-23, A.M.A., Guides 449 (6th ed. 2008).
6

For a total, or 100 percent loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).
7

20 C.F.R. § 10.404 (2011).

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); id. Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6a
(January 2010).

3

to rate appellant’s upper extremity impairment.9 OWCP, therefore, referred the case to Dr. Dyer
for review and an appropriate rating under the A.M.A., Guides.
Dr. Dyer reviewed the record, including Dr. Seiler’s recent treatment notes from
February and March 2011, and found that appellant had two percent impairment of both the left
and right upper extremity. He explained that, under Table 15-23, A.M.A., Guides 449 (6th ed.
2008), appellant’s grade modifiers for test findings, history and physical findings totaled 3,
which represented an average grade modifier of 1. A grade 1 modifier corresponds to a default
upper extremity impairment rating of two percent and because Dr. Seiler had not provided a
QuickDASH score, there was no basis for further adjustment under Table 15-23. Thus, the
default rating of two percent represented appellant’s upper extremity impairment of both the left
and right side. Dr. Dyer’s April 1, 2011 impairment rating conforms to the A.M.A., Guides (6th
ed. 2008) and is consistent with Dr. Seiler’s recent examination findings. Accordingly, his
finding represents the weight of the medical evidence regarding the extent of appellant’s bilateral
upper extremity impairment.
CONCLUSION
Appellant failed to establish she has greater than two percent impairment of both the left
and right upper extremity.

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The attending physician should describe the impairment in sufficient detail to permit clear visualization of the
impairment and the restrictions and limitations which have resulted. The description should include the loss in
degrees of active and passive motion of the affected member or function, the amount of any atrophy or deformity,
disturbance of sensation, or other pertinent description of the impairment. Under the sixth edition of the A.M.A.,
Guides (2008), clinical history is also important in the diagnosis-based grid that ranks impairment within classes of
severity. Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3a(2) (January
2010).

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ORDER
IT IS HEREBY ORDERED THAT the April 11, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 2, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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