United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE AIR FORCE, 99TH
MEDICAL GROUP, NELLIS AIR FORCE
BASE, NV, Employer
__________________________________________

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

Docket No. 21-1165
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 July 19, 2021 appellant filed a timely appeal from a February 11, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated May 27, 2020, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
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 March 10, 2015 appellant, then a 63-year-old nurse educator, filed an occupational
disease claim (Form CA-2) alleging that she sustained an aggravation of her degenerative disc
disease due to constant sitting, staring at a computer screen, and inputting data while in the
performance of duty.
In a July 22, 2014 report, Dr. Shirley Rodriguez, an osteopath, recounted appellant’s
complaints of mid-thoracic, left-sided pain medial to the scapular area. She reported physical
examination findings of abnormal edema bilaterally in appellant’s extremities. Dr Rodriguez
assessed hypertension, osteoarthritis, gastroesophageal reflux disease, thoracic region strain, and
venous insufficiency.
In an October 28, 2014 report, Dr. Wesley Johnson, a Board-certified orthopedic surgeon,
recounted that appellant had worked for the employing establishment for a number of years and
complained of chronic pain issues in her neck and back. On physical examination, he noted
tenderness and mild swelling in her left wrist and some tenderness over the tuberosity of her right
shoulder. Dr. Johnson indicated that appellant had a chronic condition that may have been
exacerbated through her primary care.
Appellant resigned from the employing establishment, effective March 13, 2015.
In a letter dated May 12, 2015, the employing establishment controverted appellant’s claim
alleging that she had not submitted medical evidence of the alleged injury. It also noted that she
had previous fall injuries in 2013 and 2014.
In statements dated October 22, 2014 and May 2, 2015, appellant explained that she was
diagnosed with degenerative disc disease before she began working for the employing
establishment in 2012. She reported that she was exposed to constant sitting, staring at screens,
and inputting data at work and experienced painful, cramping hands, eye strain, headaches, and
back pain.
By decision dated June 16, 2015, OWCP denied appellant’s occupational disease claim,
finding that she had not established that her diagnosed thoracic and lumbar spine conditions were
causally related to the accepted factors of her federal employment.

3

Docket No. 18-1280 (issued March 12, 2019).

2

On June 29, 2015 appellant requested reconsideration.
In reports dated November 6, 2014 through April 20, 2015, Dr. Rodriguez provided
examination findings and assessed right shoulder pain, cervicalgia, degenerative joint disease,
osteoarthritis, thoracic strain, cervical strain, tenosynovitis of the thumb, and right shoulder
supraspinatus tendon tear.
In a June 12, 2015 attending physician’s report (Form CA-20), Dr. Rodriguez noted
appellant’s history of lumbar degenerative joint disease and diagnosed supraspinatus tendon tear
and degeneration of the cervical, thoracic and lumbar spine. She checked a box marked “Yes”
indicating that the diagnosed conditions were caused or aggravated by appellant’s employment
and explained that appellant worked at a desk job, which placed a strain on her spine, shoulders,
and wrist.
By decision dated September 25, 2015, OWCP denied modification of the June 16, 2015
decision.
On November 20, 2015 appellant requested reconsideration.
Appellant submitted reports dated July 16 through October 29, 2015 from Dr. John M.
Baldauf, a Board-certified orthopedic surgeon, who indicated that he treated her for complaints of
right shoulder pain after a slip and fall injury approximately seven months prior. On initial
examination of the right shoulder, Dr. Baldauf observed positive Neer and Hawkins signs and no
pain or swelling. He diagnosed shoulder impingement syndrome, bilateral shoulder tendinitis, and
bilateral shoulder joint pain.
By decision dated February 9, 2016, OWCP denied modification of the September 25,
2015 decision.
On March 21, 2016 appellant requested reconsideration.
In a May 11, 2016 statement, appellant indicated that she continued to be in pain on a level
of 7 to 10 on most days. She alleged that it was common for a person with mild-to-moderate
degenerative joint disease that was previously not problematic to experience a major exacerbation
of her condition from a sedentary job and a hard fall onto cement.
By decision dated June 17, 2016, OWCP denied modification of the February 9, 2016
decision.
On September 7, 2016 appellant requested reconsideration. She contended that she had
submitted all required medical documents from her physicians. Appellant asserted that her federal
employment temporarily aggravated her preexisting degenerative joint condition and that the
October 2014 fall made the aggravation permanent.
In a February 22, 2016 report, Dr. Archie C. Perry, a Board-certified orthopedic surgeon,
indicated that he treated appellant for complaints of low back pain radiating into her bilateral legs.
He discussed her diagnostic reports and provided examination findings. Dr. Perry diagnosed
lumbar degenerative disc disease, lumbar spinal stenosis, and acquired lumbar spondylolisthesis .

3

In March 16 and 30, 2016 reports, Dr. Baldauf discussed appellant’s history of injury and
provided physical examination findings. He diagnosed right hip joint pain, lumbosacral
degenerative disc disease with radiculopathy, lumbar spinal stenosis, acquired lumbar
spondylolisthesis, and lumbago.
In an April 27, 2016 report, Dr. Willis Y. Wu, Board-certified in anesthesiology and pain
medicine, noted lumbar examination findings of mildly limited range of motion and tenderness in
the lumbosacral junction. He diagnosed lumbar intervertebral disc degeneration, lumbar
radiculopathy, lumbar spondylosis without myelopathy, and hip osteoarthritis. Dr. Wu continued
to treat appellant and provided medical reports dated May 13 and June 23, 2016.
By decision dated April 20, 2018, OWCP denied modification of the June 17, 2016
decision.
Appellant appealed to the Board. By decision dated March 12, 2019, the Board affirmed
OWCP’s April 20, 2018 decision, finding that she had not met her burden of proof to establish
causal relationship between her diagnosed medical conditions and accepted factors of her federal
employment.
On October 7, 2019 appellant requested reconsideration. She submitted various articles
about injuries that result from sitting for long periods of time.
By decision dated May 27, 2020, OWCP denied modification.
On January 22, 2021 appellant requested reconsideration. She indicated that she continued
to have pain and suffering due to sitting for six hours a day on a poorly prepared workstation.
Appellant explained that she was diagnosed with degenerative joint disease in 2000, but her
condition was not problematic until she started to work for the employing establishment. She
asserted that her sedentary job duties temporarily aggravated her degenerative joint disease and
her fall in October 2014 permanently aggravated her condition.
By decision dated February 11, 2021, OWCP denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by

4

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

4

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must be received by OWCP within one y ear of the date of
OWCP’s decision for which review is sought. 6 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 7 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
With her January 22, 2021 request for reconsideration, appellant submitted a statement
alleging that she did not experience problems with her degenerative joint disease until she began
to work for the employing establishment. She asserted that her sedentary job duties temporarily
aggravated her degenerative joint disease and her fall in October 2014 permanently aggravated her
condition. Appellant’s reconsideration request does not advance a new legal argument not
previously considered nor does it show that OWCP erroneously applied or interpreted a specific
point of law. Her argument is substantially similar to that which was previously considered and
discussed in OWCP’s April 20, 2018 decision. 9 Consequently, appellant is not entitled to further
review of the merits of her claim based on either the first or second above-noted requirements
under 20 C.F.R. § 10.606(b)(3). 10

5

20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); J.W., Docket No. 19-1795
(issued March 13, 2010); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
6

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

9

See T.S., Docket No. 20-0968 (issued August 17, 2021); see also J.V., Docket No. 19-1554 (issued
October 9, 2020); Eugene F. Butler, 36 ECAB 393, 398 (1984).
10

20 C.F.R. § 10.606(b)(3)(i) and (ii); P.M., Docket No. 20-0780 (issued November 24, 2020); G.Q., Docket No.
18-1697 (issued March 21, 2019); Alan G. Williams, 52 ECAB 180 (2000).

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Furthermore, the Board finds that appellant has not provided any relevant and pertinent
new evidence not previously considered. 11 Thus, appellant is also not entitled to a review of the
merits of her claim based on the third above-noted requirement under section 10.606(b)(3).12
As appellant has not met any of the regulatory requirements under 20 C.F.R.
§ 10.606(b)(3), pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 11, 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
11

T.H., Docket No. 20-1598 (issued June 2, 2021); F.D., Docket No. 19-0890 (issued November 8, 2019).

12

20 C.F.R. § 10.606(b)(3)(iii); J.V., Docket No. 19-1554 (issued October 9, 2020); T.M., Docket No. 19-0535
(issued July 25, 2019).
13

S.M., Docket No. 21-0392 (issued August 12, 2021); D.G., Docket No. 19-1348 (issued December 2, 2019); A.R.,
Docket No. 16-1416 (issued April 10, 2017); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006)
(when a request for reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b), OWCP will deny the request for reconsideration without reopening the case for a review on the merits).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 15-1517
Issued: February 25, 2016

Case Submitted on the Record

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

JURISDICTION
On July 2, 2015 appellant filed a timely appeal from a June 11, 2015 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 filed a timely claim for compensation under 5 U.S.C.
§ 8122.
FACTUAL HISTORY
On April 3, 2015 appellant, then an 88-year-old retired rigger, filed an occupational
disease claim (Form CA-2) alleging that he sustained bilateral hearing loss and tinnitus due to
noise exposure during the course of his federal employment. He alleged that his conditions of
bilateral hearing loss and tinnitus were documented by the employing establishment’s
1

5 U.S.C. § 8101 et seq.

audiologist. Appellant stated that he first became aware of his hearing loss and tinnitus on
February 17, 1982 and first related his condition to his employment on that date, but he asserted
that he was not informed that a claim for hearing loss compensation could be filed resulting in
his delay in filing his claim. He retired on February 16, 1982.
In a letter dated April 6, 2015, the employing establishment notified appellant that it had
received his hearing loss claim. It stated that, after his retirement, its medical facility forwarded
all official personnel and medical folders to the National Archives in St. Louis, Missouri and,
therefore, it no longer had a copy of any medical examinations pertaining to appellant’s hearing
or ear problems, audiograms, or preemployment examination. The employing establishment
enclosed instructions for appellant to request the medical information that was required by
OWCP for his hearing loss claim and requested that he provide a copy of all the documents
obtained.
In an April 9, 2015 letter, OWCP advised appellant of the deficiencies in his claim and
requested additional evidence because the evidence submitted did not show that his claim was
timely filed or that the noise exposure he experienced caused injury. It afforded him 30 days to
submit additional evidence and respond to its inquiries. In a letter of April 9, 2015, OWCP
advised the employing establishment that it must provide factual information, including medical
and employment records, for consideration of appellant’s claim. It further advised the
employing establishment that federal regulations provide that, in the absence of a full reply from
the agency, OWCP may accept claimant’s allegations as factual.
Appellant submitted a job application, a notification of personnel action (SF-50) dated
February 7, 1966, a position description, pay rate information, and his employment history. He
also submitted an audiogram dated March 17, 2015 and a checklist for filing a federal
occupational hearing loss claim indicating that he had no history of any previous ear or hearing
problems, used to hunt as a hobby many years ago, and first noticed his hearing loss in
February 1982 after he retired.
In a letter also dated April 9, 2015, OWCP informed the employing establishment of
appellant’s hearing loss claim and requested additional information, including copies of all
medical examinations pertaining to hearing or ear problems, preemployment examination, and
all audiograms, and a statement indicating if he was in a hearing conservation program while
employed.
In an April 21, 2015 letter, the employing establishment stated that as appellant was
retired, there was no supervisor to comment on the hearing loss claim. It reiterated that it no
longer had appellant’s medical file and therefore could not say if he was in a hearing
conservation program. The employing establishment further indicated that it had instructed
appellant on how to obtain his medical records and stated that it would comment on the issue
once in receipt of his records. It failed to provide any response to OWCP’s inquiry as to whether
it maintained a hearing conservation program during appellant’s period of employment.
On May 4, 2015 the employing establishment conducted an investigation of appellant’s
occupational exposure to noise. It found that for the period November 20, 1970 to February 7,
1996 he was exposed to 79 to 89 decibels of continuous lower frequency background noise while
employed as a shipfitter. The employing establishment further found that for the period
November 20, 1970 to February 16, 1982 appellant was exposed to 100 to 110 decibels of
2

intermittent upper frequency tool use noise and 79 to 89 decibels of continuous lower frequency
background noise while employed as a rigger.
By decision dated June 11, 2015, OWCP denied appellant’s claim for employmentrelated hearing loss and tinnitus finding it was untimely filed. Appellant’s claim was denied
because the evidence did not support a finding that his claim was filed within three years of the
date of injury or that his immediate supervisor had actual knowledge within 30 days of the date
of injury. The decision found that there was no evidence that he was part of a hearing
conservation program.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.2 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death. Compensation
for disability or death, including medical care in disability cases, may not be allowed if a claim is
not filed within that time unless:
“(1) [T]he immediate superior had actual knowledge of the injury or death within
30 days. The knowledge must be such as to put the immediate superior
reasonably on notice of an on-the-job injury or death; or
“(2) [W]ritten notice of injury or death as specified in section 8119 was given
within 30 days.”3
Section 8119 of FECA provides that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury, or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the individual giving the notice.4 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.5
In a case of an occupational disease, the time for filing a claim begins to run when the
employee first becomes aware, or reasonably should have been aware, of a possible relationship
between the condition and his employment. When an employee becomes aware, or reasonably
should have been aware, that he or she has a condition which has been adversely affected by
factors of his or her federal employment, such awareness is competent to start the limitation
period even though the employee does not know the precise nature of the impairment or whether

2

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

3

5 U.S.C. § 8122(a).

4

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

5

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

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the ultimate result of such affect would be temporary or permanent.6 Where the employee
continues in the same employment after he reasonably should have been aware that he has a
condition which has been adversely affected by factors of federal employment, the time
limitation begins to run on the date of the last exposure to the implicated factors.7 Section
8122(b) of FECA provides that the time for filing in latent disability cases does not begin to run
until the claimant is aware or by the exercise of reasonable diligence should have been aware, of
the causal relationship between the employment and the compensable disability.8 The
requirement to file a claim within three years is the claimant’s burden and not that of the
employing establishment.9
ANALYSIS
The Board finds that this case is not in posture for decision.
On April 3, 2015 appellant filed an occupational disease claim alleging that he sustained
bilateral hearing loss and tinnitus due to factors of his federal employment. Regarding the
relationship of the claimed condition to his work, he stated that he first became aware of his
claimed condition and that it was caused or aggravated by his employment on February 17, 1982.
Appellant indicated on his Form CA-2 that an audiologist for the employing establishment
documented his bilateral hearing loss and tinnitus prior to his retirement from the Puget Sound
Naval Shipyard. He has not alleged that his hearing loss was a latent condition. Appellant
retired from the employing establishment on February 16, 1982.
Although the date of appellant’s injury was listed as February 17, 1982, the date of his
last exposure to noise in his federal employment position was presumably his date of retirement
on February 16, 1982. However, his claim for compensation was not filed until April 3, 2015,
more than 30 years after he was last exposed to the claimed employment factors as a rigger for
the employing establishment.
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of FECA if
his immediate superior had actual knowledge of the injury within 30 days or under section
8122(a)(2) if written notice of injury was given to his immediate superior within 30 days as
specified in section 8119. As noted on his claim form (Form CA-2), he noted that his hearing
loss and tinnitus was documented by the employing establishment’s audiologist. OWCP denied
the claim based upon a finding that appellant had not established that he was as part of a hearing
conservation program. While participation in a hearing conservation program can establish
constructive notice of injury, there is no evidence in the record, other than appellant’s assertion
on his claim form, demonstrating that such a program was in place at this employing
establishment.
The Board notes, however, that OWCP requested employment and medical records from
the employing establishment by letter dated April 9, 2015, specifically asking whether appellant
6

See Larry E. Young, supra note 4.

7

Id.

8

5 U.S.C. § 8122(b); see Luther Williams, Jr., 52 ECAB 360 (2001).

9

See Debra Young Bruce, 52 ECAB 315 (2001).

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participated in an employing establishment hearing conservation program. In a letter dated
April 6, 2015, the employing establishment stated that after retirement, the agency medical
facility sent all official personnel and medical folders to the National Archives in St. Louis,
Missouri and, therefore, it no longer had a copy of any medical examinations pertaining to
appellant’s hearing or ear problems, audiograms, or preemployment examination. The
employing establishment neither confirmed nor denied that it had a hearing conservation
program during appellant’s period of employment. Appellant’s claim would be timely if such a
program were in place at the employing establishment.10 OWCP regulations and the FECA
procedure manual provide that, in the absence of a reply from the employing establishment,
OWCP may accept the allegation of appellant as factual -- if claimant’s statement is sufficiently
clear and detailed as to matters of which he is knowledgeable.11
It is well established that proceedings under FECA are not adversarial in nature and
OWCP is not a disinterested arbiter. It has the obligation to see that justice is done.12 While an
employee has the burden to establish entitlement to compensation, OWCP shares responsibility
in the development of the evidence,13 especially when such evidence is of the character normally
obtained from the employing establishment or other government source.14 The evidence
regarding the existence of any hearing conservation program would be in the possession of the
employer.15 Once OWCP has begun investigation of a claim, it must pursue the evidence as far
as reasonably possible, particularly when such evidence is in the possession of the employing
establishment and is, therefore, more readily accessible to OWCP.16 Appellant has alleged that
10

See T.M., Docket No. 14-1631 (issued December 2, 2014); Federal (FECA) Procedure Manual, Part 2 -Claims, Time, Chapter 2.801.3a(3)(c) (March 2011) which states that if the employing establishment, in connection
with a recognized environmental hazard, has an employee testing program and a test shows the employee to have
positive findings this should be accepted as constituting actual knowledge. For example, the employing
establishment where employees may be exposed to hazardous noise levels may give annual hearing tests for exposed
employees. A hearing loss identified on such a test would constitute actual knowledge on the part of the agency of a
possible work injury.
11

20 C.F.R. § 10.117(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims,
Chapter 2.800.10(a) (June 2011).
12

See R.L., Docket No. 12-0086 (issued August 29, 2012) (where the Board remanded the case to OWCP to
request the records pertaining to the employee’s 1998 letter of resignation and retirement in 2001, as well as any
employing establishment records of audiometric testing, and requested that the supervisor address the issue of
knowledge of the claimant’s hearing loss, as far as possible).
13

See T.M., supra note 10 (where OWCP requested employment and medical records from the employing
establishment, specifically asking whether appellant participated in an employer hearing conservation program and
the employing establishment did not respond, the Board found that the evidence regarding any hearing conservation
programs would be in the possession of the employer and remanded the case for further development noting no
response from the employing establishment as to the existence of a hearing conservation program would cause the
claim to be accepted).
14

Id.

15

Id.

16

See S.A., Docket No. 09-1551 (issued January 21, 2010) (where OWCP requested that the employing
establishment submit the employee’s medical records within a week and the employer informed OWCP that it
would submit the records as soon as possible. Nonetheless, OWCP denied the claim two days later. As such, the
Board found that it did not pursue the evidence as far as reasonably possible and remanded the case for further
development of the hearing loss claim).

5

his bilateral hearing loss and tinnitus conditions were documented by an employing establish
audiologist. By the employing establishment’s own admission, appellant’s employment and
medical records are at the National Archives in St. Louis, Missouri and should be obtained for
the record.
For these reasons, the Board finds that the case must be remanded to OWCP for further
development. OWCP shall request that the employing establishment respond to the inquiry of
whether a hearing conservation program existed at the time of appellant’s employment and to
submit any and all employment and medical records pertaining to appellant’s claim in its
possession relating to the hearing loss claim, or alternatively, determine whether the claim
should be accepted on the basis of appellant’s statements and the available evidence. After
conducting such further development as deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 11, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: February 25, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Artesia, NM, Employer
__________________________________________

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

Docket No. 13-885
Issued: July 5, 2013

Case Submitted on the Record

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

JURISDICTION
On February 25, 2013 appellant filed a timely appeal from a September 5, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his right knee
condition was causally related to the March 7, 2012 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 19, 2012 appellant, then a 45-year-old border patrol agent supervisor, filed a
traumatic injury claim alleging that on March 7, 2012 he twisted his right knee during physical
training. He did not stop work.
In an April 16, 2012 attending physician’s report, Dr. Peter Gambacorta, an osteopath,
stated that appellant injured his right knee during mock combat exercise with another agent and
noted a date of injury of March 7, 2012. He reported that a magnetic resonance imaging (MRI)
scan revealed prior meniscectomy, grade 4 and possible medial meniscus retear.
In an April 16, 2012 report, Dr. Gambacorta noted appellant’s complaint of right knee
pain. He listed a history that appellant injured his right knee during a March 7, 2012 training
exercise when he was engaged in mock combat with another agent. Appellant stated that he felt
a click in his knee and had some pain since the episode. Dr. Gambacorta reported that appellant
had a history of a prior meniscectomy and some swelling. Upon examination, he observed pain
upon deep flexion and palpatory tenderness to the medial joint line. There was no gross
deformity, laceration, abrasion, ecchymosis, nor tenderness to the patella, parapatellar
retinaculum medially and laterally, quadriceps tendon and patellar tendon. Lachman’s,
McMurray’s, Ober’s and posterior drawer tests were negative. Dr. Gambacorta noted a possible
retearing of the medial meniscus and diagnosed right knee pain, arthritis and possible medial
meniscus retear. He checked a box marked “yes” that the incident appellant described was the
competent medical cause of this injury or illness.
In a June 11, 2012 attending physician’s report, Dr. Gambacorta noted a history of injury
of right knee pain and arthritis. He stated that appellant injured his knee during a combat
exercise. Dr. Gambacorta diagnosed arthritis and knee pain. He checked “yes” that he believed
appellant’s condition was caused or aggravated by an employment activity.
In a June 11, 2012 report, Dr. Gambacorta stated that appellant returned to his office for
follow-up with complaint of pain mostly in the medial aspect of his knee and of popping and
clicking. He noted that appellant had been working full duties. Upon examination,
Dr. Gambacorta found tenderness on the medial joint line. He reported full extension of the
knee, flexion to over 120 and painful deep flexion. McMurray’s test was positive. Lachman’s
test was negative. Dr. Gambacorta diagnosed right knee pain and arthritis. He checked a box
marked “yes” that the incident appellant described was the competent medical cause of this
injury.
On July 10, 2012 OWCP advised appellant that the evidence submitted was insufficient
to establish his claim and requested additional evidence.
In a July 25, 2012 statement, Robert S. Wotring III, a supervisory border patrol agent,
noted that appellant injured his knee while in the performance of duty as a physical techniques
instructor. He explained that appellant was conducting a collapsible steel baton certification drill
with his assigned class. Mr. Wotring stated that staff members were required to participate in all
aspects of the physical conditioning program and noted that the activities in which the instructors

2

participated included work sprints, distance running, calisthenics, strength and plyometric
training.
In a decision dated September 5, 2012, OWCP accepted that the March 7, 2012 incident
occurred as alleged but denied appellant’s claim finding insufficient medical evidence to
establish that his diagnosed right knee condition was causally related to the accepted incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.7 An employee may establish that the
employment incident occurred as alleged but fail to establish that his or her disability or
condition relates to the employment incident.8
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.9 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.10 The weight of the medical evidence is determined by its reliability, its probative

2

Id. at §§ 8101-8193.

3

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

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

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

6

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

7

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

8

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

9

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

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

3

value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.11
ANALYSIS
OWCP accepted that on March 7, 2012 appellant was participating in a mock combat
exercise in the performance of duty. It denied his traumatic injury claim finding insufficient
medical evidence to establish that his right knee condition was causally related to the accepted
incident. The Board finds that appellant did not meet his burden of proof to establish that he
sustained a right knee condition as a result of the March 7, 2012 employment incident.
Appellant submitted various reports by Dr. Gambacorta dated April 16 to June 11, 2012.
Dr. Gambacorta obtained a history that appellant injured his right knee on March 7, 2012 during
a training exercise at work. Upon examination, he observed pain upon deep flexion and
palpatory tenderness to the medial joint line. Lachman’s, McMurray’s, Ober’s and posterior
drawer tests were negative. McMurray’s test was positive. Dr. Gambacorta reported full
extension of the knee, flexion to over 120 and painful deep flexion. He noted that appellant had
a history of a prior meniscectomy and arthritis. Dr. Gambacorta stated that an MRI scan
revealed prior meniscectomy and a possible medial meniscus retear. He diagnosed right knee
pain and arthritis. In April 16 and June 11, 2012 reports, Dr. Gambacorta checked a box marked
“yes” that he believed appellant’s condition was caused or aggravated by an employment
activity. The Board has held, however, that when a physician’s opinion on causal relationship
consists of checking “yes” to a form question, without explanation or rationale, that opinion is of
diminished probative value and is insufficient to establish a claim.12
Although he stated that appellant injured his right knee during a training exercise at work,
Dr. Gambacorta did not provide any medical rationale explaining how appellant’s current right
knee condition was caused or aggravated by the March 7, 2012 employment incident. The Board
has held that a medical report is of limited probative value on the issue of causal relationship if it
contains a conclusion regarding causal relationship which is unsupported by medical rationale.13
Dr. Gambacorta’s opinion fails to adequately address appellant’s prior right knee condition for
which he underwent a meniscectomy or how the accepted incident was competent to contribute
to the arthritis or a retear of the medial meniscus. The Board finds that his opinion is of limited
probative value on the issue of causal relationship because he does not explain how the March 7,
2012 employment incident caused or aggravated the right knee condition.
Appellant has not provided sufficient medical evidence to establish that he sustained a
right knee condition causally related to the March 7, 2012 employment incident. Accordingly
the Board finds that he did not meet his burden of proof to establish his claim.

11

James Mack, 43 ECAB 321 (1991).

12

D.D., 57 ECAB 734, 738 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).

13

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

4

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that his right knee condition was causally
related to the March 7, 2012 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the September 5, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 5, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Manchester, NH, Employer
__________________________________________

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

Docket No. 16-1377
Issued: November 22, 2016

Case Submitted on the Record

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

JURISDICTION
On June 21, 2016 appellant filed a timely appeal from a December 30, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision of OWCP dated April 14, 2015, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).
On appeal appellant contends that he sustained a work-related injury on November 26,
2013 for which he is entitled to the cost incurred for his initial hospital evaluation related to this
injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 24, 2014 appellant, then a 42-year-old deportation officer, filed a traumatic
injury claim (Form CA-1) alleging that on November 26, 2013 he experienced right hand trauma
and swelling in an attempt to apprehend a noncompliant subject.
In a November 26, 2013 right hand x-ray report, Dr. John J. Januario, a Board-certified
radiologist, provided an impression of no fracture. There appeared to be mild flexion deformity
at the fifth distal interphalangeal joint, age indeterminate.
In an emergency room medical report dated November 26, 2013, Dr. Kevin B. Rankins,
Board-certified in emergency medicine, provided a history that appellant presented with right
hand swelling. He was stung by a bee that morning and had some mild swelling of his hand.
Appellant also injured his right hand while trying to restrain a criminal earlier that evening.
Dr. Rankins provided a history of appellant’s medical, family, and social background. He
reported findings on physical and x-ray examination. Dr. Rankins provided an impression of
hand swelling (primary encounter diagnosis) and hand injury. He related that it was difficult to
determine whether this was traumatic or allergic. Dr. Rankin noted that there was no fracture on
x-ray. In a November 27, 2013 New Hampshire workers’ compensation medical form, he
reiterated appellant’s history of injury and diagnoses. Dr. Rankins released him to return to fullduty work on the date of his examination. He advised that appellant had not reached maximum
medical improvement. Dr. Rankins noted that it was undetermined as to whether his injury had
caused permanent impairment.
In a February 25, 2014 letter, OWCP advised appellant of the deficiencies of his claim
and afforded him 30 days to submit additional evidence and respond to its inquiries.
In a March 6, 2014 narrative statement, appellant related that he filed his first Form CA-1
on November 27, 2013, within one day of his claimed November 26, 2013 work injury. He
noted that this form was subsequently returned to him because the employing establishment’s
signature was missing. The employing establishment filed another Form CA-1 on appellant’s
behalf on January 24, 2014. Appellant related that he had not sustained any other injury between
the date of injury and the date it was first reported. Prior to his claimed November 26, 2013
injury, his hand was irritated by a bee sting on November 25, 2013. This incident caused
appellant’s hand to swell slightly. On November 27, 2014 he experienced extreme swelling of
his hand for which he sought medical treatment. Appellant noted that no broken bones were
found.
Appellant resubmitted Dr. Rankins’ November 27, 2013 state workers’ compensation
medical form. He also submitted a copy of his November 27, 2013 Form CA-1.
In a March 27, 2014 decision, OWCP accepted that the November 26, 2013 incident
occurred as alleged. However, it denied appellant’s claim, finding that the medical evidence of
record did not contain a medical diagnosis in connection with the accepted employment incident.
On March 17, 2015 appellant requested reconsideration. He resubmitted Dr. Januario’s
November 26, 2013 right hand x-ray report and Dr. Rankins’ November 27, 2013 state workers’
compensation medical form.

2

In an April 14, 2015 decision, OWCP denied modification of the March 27, 2014
decision. It found that the evidence submitted repeated or duplicated evidence already of record.
OWCP further found that Dr. Rankins’ report did not provide a specific medical diagnosis
causally related to the accepted November 26, 2013 employment incident.
In a July 30, 2015 appeal request form, appellant requested reconsideration. In an
accompanying memorandum of the same date, he contended that he sustained a work-related
right hand injury on November 26, 2013 for which he was entitled to the cost incurred for
services associated with his initial hospital visit on the date of injury.
By decision dated December 30, 2015, OWCP denied further merit review of appellant’s
claim. It found that he had not submitted any evidence to support that it erroneously applied or
interpreted a point of law. Specifically, OWCP found that appellant failed to address the issue at
hand. It further found that he had not submitted any relevant or pertinent new medical evidence
not previously considered which contained a firm diagnosis of a specific injury.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.3 To be entitled to a merit review of an OWCP 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.4 Section 10.608(b) of the implementing regulations state that any
application for review that does not meet at least one of the requirements listed in 20 C.F.R.
§ 10.606(b)(3) will be denied by OWCP without review of the merits of the claim.5
ANALYSIS
Appellant disagreed with OWCP’s denial of his traumatic injury claim. He requested
reconsideration contending that his right hand condition was causally related to the accepted
November 26, 2013 employment incident and he was entitled to medical benefits.
The Board finds that appellant failed to show that OWCP erroneously applied or
interpreted a specific point of law. Moreover, appellant did not advance a relevant legal
argument not previously considered. In his July 30, 2015 request for reconsideration and on
appeal appellant asserted that he sustained a work-related right hand injury on November 26,
2013 for which he was entitled to the cost incurred for services associated with his initial hospital

2

Id. Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

3

visit on the date of injury. The Board finds that these contentions do not show a legal error by
OWCP or constitute new and relevant legal argument.
The underlying issue in this case is whether appellant submitted medical evidence
establishing that his right hand condition is causally related the accepted November 26, 2013
employment incident. That is a medical issue which must be addressed by relevant and pertinent
new medical evidence.6 However, appellant did not submit any new medical evidence with his
request for reconsideration showing an employment-related right hand injury.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the December 30, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 22, 2016
Washington, DC

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

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

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

6

See Bobbie F. Cowart, 55 ECAB 746 (2004).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.F., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 17-0347
Issued: May 1, 2017

Case Submitted on the Record

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

JURISDICTION
On December 5, 2016 appellant filed a timely appeal from a June 20, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has established greater than two percent permanent
impairment of each upper extremity, for which she previously received a schedule award.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to the Board on appeal. The Board s jurisdiction
is limited to reviewing the evidence that was before OWCP at the time of its final decision. Therefore, this
additional evidence cannot be considered by the Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
OWCP accepted that on or before February 1, 2013 appellant, then a 48-year-old tax
examining clerk, sustained bilateral carpal tunnel syndrome and bilateral trigger thumb due to
repetitive keyboarding, folding documents, and pulling or pushing carts of documents.
Dr. Valerie Deardoff, an attending Board-certified orthopedic surgeon, noted in a
December 5, 2014 report that November 21, 2014 nerve conduction velocity (NCV) and
electromyogram (EMG) studies showed severe bilateral carpal tunnel syndrome and mild right
ulnar nerve compression at the elbow. Appellant underwent a series of steroid injections for
bilateral trigger thumb.
On March 2, 2015 Dr. Deardoff performed a right endoscopic carpal tunnel release and
right trigger thumb release, approved by OWCP. Appellant returned to full-time restricted duty
on March 26, 2015. She participated in occupational therapy in June and July 2015.
On July 30, 2015 Dr. Deardoff performed a left carpal tunnel release and left trigger
thumb release, approved by OWCP. She provided periodic progress reports through October 29,
2015 noting scar thickening in the left hand and wrist. Appellant continued to participate in
occupational therapy through January 2016.
On February 22, 2016 appellant filed a claim for a schedule award (Form CA-7). In a
March 8, 2016 letter, OWCP notified appellant of the evidence needed to establish her schedule
award claim, including a report from her attending physician supporting that she had attained
maximum medical improvement (MMI), the impairing diagnosis, a detailed description of the
permanent impairment, and an impairment rating calculated according to the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter,
A.M.A., Guides). Appellant was afforded 30 days to submit such evidence.
In response, appellant submitted a March 31, 2016 report from Dr. Deardoff, finding that
appellant had attained MMI. On a March 23, 2016 examination, appellant complained of scar
tenderness and difficulty with pinching and gripping. Monofilament testing in both hands
showed normal sensation. Dr. Deardoff diagnosed bilateral carpal tunnel syndrome and bilateral
stenosing synovitis of the thumbs. She opined that, according to Table 15-233 of the A.M.A.,
Guides, appellant had three percent permanent impairment of each upper extremity due to carpal
tunnel syndrome. Dr. Deardoff explained that as appellant had no objective clinical findings of
stenosing synovitis, she had no permanent impairment rating for the accepted trigger thumbs
according to Table 15-2.4
An OWCP medical adviser reviewed Dr. Deardoff’s report on April 16, 2016, noting that
she did not provide an impairment calculation to support the percentages of permanent
impairment offered. He found that appellant reached MMI by March 31, 2016. The medical
adviser performed an impairment rating using Table 15-23. For both upper extremities, he rated
3

Table 15-23, page 449 of the sixth edition of the A.M.A., Guides is titled “Entrapment/Compression Neuropathy
Impairment.”
4

Table 15-2, page 392 of the sixth edition of the A.M.A., Guides is titled “Digit Regional Grid:
Impairments.”

2

Digit

carpal tunnel syndrome. The medical adviser found a history grade modifier of 1 due to
postoperative scar tissue without median nerve deficit, a grade modifier for physical findings of
zero due to a normal sensory examination, and a grade modifier for test findings of 3 due to
conduction delay on preoperative EMG and NCV testing. Averaging these modifiers, he
calculated a grade modifier of 1.33, rounded downward to a grade modifier of 1.0. The medical
adviser noted that, although Dr. Deardoff did not perform or score a QuickDASH or other
functional questionnaire, she described mild functional deficits from carpal tunnel syndrome that
did not require an adjustment of the default grade of two. He therefore found two percent
permanent impairment of each upper extremity.
By decision dated June 20, 2016, OWCP granted appellant a schedule award for two
percent permanent impairment of each upper extremity due to carpal tunnel syndrome, based on
Dr. Deardoff’s opinion as reviewed by OWCP’s medical adviser.
LEGAL PRECEDENT
A claimant seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim.5 With respect to a schedule award, it is appellant’s burden
of proof to establish permanent impairment.6 A claimant may seek an increased schedule award
if the evidence establishes that he or she sustained an increased impairment causally related to an
employment injury.7 The medical evidence must include a detailed description of the permanent
impairment.8
The schedule award provision of FECA9 and its implementing regulations10 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.11 For schedule awards after May 1, 2009,
the impairment is evaluated under the sixth edition of the A.M.A., Guides.12
5

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

6

Edward W. Spohr, 54 ECAB 806, 810 (2003).

7

See Rose V. Ford, 55 ECAB 449 (2004).

8

See Vanessa Young, 55 ECAB 575 (2004).

9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404 (1999).

11

K.H., Docket No. 09-341 (issued December 30, 2009). For OWCP decisions issued after May 1, 2009, the
sixth edition of the A.M.A., Guides is used. B.M., Docket No. 09-2231 (issued May 14, 2010).
12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700.2 and Exhibit 1 (January 2010).

3

Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.13 In
Table 15-23, grade modifier levels (ranging from zero to four) are described for the categories
test findings, history, and physical findings. The grade modifier levels are averaged to arrive at
the appropriate overall grade modifier level and to identify a default rating value. The default
rating value may be modified up or down by one percent based on functional scale, an
assessment of impact on daily living activities.14
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome and bilateral
trigger thumbs. Dr. Deardoff, an attending Board-certified orthopedic surgeon, performed right
endoscopic tunnel release and trigger thumb release on March 2, 2015, and left carpal tunnel
release and trigger thumb release on July 30, 2015.
On February 22, 2016 appellant claimed a schedule award. Dr. Deardoff provided a
March 31, 2016 report, finding that appellant had attained MMI. She found three percent
permanent impairment of each arm due to carpal tunnel syndrome according to Table 15-23 of
the A.M.A., Guides.15 However, Dr. Deardoff’s impairment rating is of limited probative value
as she did not explain how she applied the rating process for Table 15-23 to arrive at her
impairment rating.16
An OWCP medical adviser (OMA) reviewed Dr. Deardoff’s report on April 16, 2016.
Based on Dr. Deardoff’s findings, the OMA rated appellant’s diagnosed carpal tunnel syndrome
using Table 15-23. He noted that appellant had a clinical history modifier of 1 for postoperative
scar tissue, a modifier of zero for physical findings due to a normal sensory examination, and a
modifier of 3 for test findings based on preoperative electrodiagnostic testing. The OMA
averaged these to calculate a grade modifier of 1.33, rounded downward to a grade modifier of
1.0. He explained that as Dr. Deardoff did not describe a functional deficit sufficient to warrant
adjusting the default grade of two, appellant had two percent permanent impairment of each
upper extremity due to carpal tunnel syndrome.
The Board finds that the OMA properly applied the A.M.A., Guides, to Dr. Deardoff’s
findings to determine that appellant had two percent permanent impairment of each arm. The
OMA accurately applied the appropriate portions of the A.M.A., Guides to Dr. Deardoff’s
clinical findings and provided detailed rationale explaining his application of the A.M.A.,

13

A.M.A., Guides 449, Table 15-3 (6th ed 2009).

14

A survey completed by a given claimant, known by the name QuickDASH, may be used to determine the
Functional Scale score. Id. at 448-49.
15

Supra note 13. The rating process for Table 15-23 is set forth at pages 448-50.

16

See Richard A. Neidert, 57 ECAB 474 (2006) (an attending physician’s report is of little probative value where
the A.M.A., Guides are not properly followed).

4

Guides.17 The Board finds that appellant has not met her burden of proof to establish more than
two percent permanent impairment of each upper extremity.
On appeal, appellant contends that new medical evidence established more than two
percent permanent impairment of each upper extremity. However, the Board may not review
evidence that was not before OWCP at the time it issued the last decision in the case.18
Appellant may request a schedule award or an increased schedule award at any time
based on evidence of a new exposure or medical evidence showing progression of an
employment-related condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established greater than two percent permanent
impairment of each upper extremity, for which she previously received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 20, 2016 is affirmed.
Issued: May 1, 2017
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
17

See Linda Beale, 57 ECAB 429 (2006) (it is well established that, when the attending physician fails to provide
an estimate of impairment conforming to the A.M.A., Guides, her opinion is of diminished probative value in
establishing the degree of permanent impairment and OWCP may rely on the opinion of its medical adviser to apply
the A.M.A., Guides, to the findings reported by the attending physician).
18

Supra note 2.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
NATIONAL GUARD, Columbus, OH, Employer
__________________________________________

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Docket No. 17-1217
Issued: February 16, 2018

Case Submitted on the Record1

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

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

JURISDICTION
On May 15, 2017 appellant filed a timely appeal of an April 24, 2017 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.
ISSUE
The issue is whether appellant met his burden of proof to establish a neck and back injury
causally related to the accepted March 12, 2013 employment incident.

1
Appellant filed a timely request for oral argument. By order dated December 20, 2017, the Board, after
exercising its discretion, denied his request as his arguments could be adequately addressed in a decision based on a
review of the case record. Order Denying Request for Oral Argument, Docket No. 17-1217 (issued
December 20, 2017).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 26, 2016 appellant, then a 56-year-old air craft mechanic, filed a traumatic
injury claim (Form CA-1), alleging that on March 12, 2013, while washing an aircraft in the
hangar area, he slipped and fell on the wet floor injuring his neck and back. His supervisor
advised that appellant was injured in the performance of duty.3 Appellant did not stop work.
A cervical spine magnetic resonance imaging (MRI) scan dated October 22, 2013
revealed C6-7 right foraminal disc protrusion causing severe right foraminal stenosis, C3-4
broad-based central disc protrusion with bilateral uncinate process spurs resulting in severe
bilateral foraminal stenosis, mild central canal stenosis, and minimal ventral cord deformation.
Appellant was treated by Dr. David Hannallah, a Board-certified orthopedist, on
October 23, 2013 for worsening neck pain radiating into his right shoulder, trapezial region, and
arm. Dr. Hannallah noted findings of a normal gait, no shoulder impingement, no midline
cervical tenderness, some paraspinal tenderness, symmetric strength, and intact range of motion.
He diagnosed stenosis of the spinal cervical region, worsening right upper extremity pain, and
paresthesias from a C6-7 herniated disc causing foraminal stenosis. Dr. Hannallah indicated that
the axial pain was in part due to degenerative disc disease and may not be completely alleviated
with surgery. In a note dated August 18, 2014, he saw appellant for neck pain. Dr. Hannallah
diagnosed spinal stenosis in the cervical region and brachial neuritis. Appellant also underwent
physical therapy.
By development letter dated November 3, 2016, OWCP advised appellant of the type of
evidence needed to establish his claim, particularly requesting that he submit a physician’s
reasoned opinion addressing the relationship between his claimed condition and specific
employment factors.
Appellant subsequently submitted a Form CA-1 dated March 14, 2013 which noted that
on March 12, 2013 he was washing an aircraft and slipped and fell on the wet floor injuring his
neck and back. A witness statement by D.A. indicated that he saw appellant washing an aircraft
and fall on his back. The Form CA-1 was signed by appellant’s supervisor, D.D., on
March 14, 2013. Supervisor D.D. noted that appellant was injured in the performance of duty.
In a statement dated November 22, 2016, appellant indicated that he filed a Form CA-1
on March 13, 2013 after he slipped and fell on March 12, 2013 while washing an aircraft. He
continued to work, but that evening he had pain with little ability to move his neck. The next
day appellant filed the Form CA-1 with his supervisor. He reported numbness and loss of
strength in his right arm. Appellant indicated that he had prior treatment for right carpal tunnel
syndrome. He was treated by Dr. Hannallah who diagnosed spinal stenosis from C2 to C7.
Appellant indicated that his symptoms progressed including loss of feeling in right arm, neck,
and shoulder area. He noted that he could no longer work as an aircraft mechanic after 36 years
of service because of his condition. Appellant reported participating in physical therapy.
3

Appellant previously filed a Form CA-1 for this incident on March 14, 2013. The Form CA-1 was signed by
appellant’s supervisor on March 14, 2013 who noted that appellant was in the performance of duty. The employing
establishment did not forward this claim to OWCP until after appellant filed his October 26, 2016 Form CA-1.

2

In a December 2, 2016 decision, OWCP denied appellant’s claim for compensation
because the medical evidence of record was insufficient to establish that he sustained an injury or
medical condition causally related to the accepted work incident.
In an appeal request form dated December 31, 2016 and postmarked January 5, 2017,
appellant requested a telephonic oral hearing before an OWCP hearing representative.
In a decision dated February 10, 2017, OWCP denied appellant’s request for an oral
hearing. It found that his request was untimely filed. Appellant was informed that his case had
been considered in relation to the issues involved and that the request was further denied as it
could equally be addressed by requesting reconsideration from OWCP and submitting evidence
not previously considered.4
On March 21, 2017 appellant requested reconsideration. He submitted an MRI scan of
the cervical spine dated February 17, 2017, which revealed significant interval enlargement of a
left uncovertebral/foraminal disc-osteophyte complex at C6-7, severe left foraminal narrowing,
abutment of the left C7 nerve root, right uncovertebral/foraminal disc-osteophyte complex
evident at C6-7, severe right foraminal narrowing, abutment of the right Cl nerve root, stable
mild central narrowing at C3-4 related to a broad-based disc-osteophyte complex, severe
bilateral foraminal narrowing at C3-4, discogenic change, and facet arthropathy.
Appellant submitted an undated surgery scheduling sheet for an anterior discectomy and
fusion at C6-7 prepared by Dr. Hannallah. He was diagnosed with cervical spinal stenosis.
Appellant submitted a report from Dr. Joseph Winchell, a Board-certified family
practitioner, dated March 20, 2017, who noted that appellant initially presented in
September 2013 with neck pain which had begun three weeks prior. He was referred to an
orthopedic surgeon and was later diagnosed with cervical radiculopathy. Dr. Winchell opined
that appellant’s “medical condition is as least likely as not related to his military service based
upon review of his Service Treatment records.” He indicated that the fall at work could have
caused radiculopathy and the symptoms may not have presented for several months.
In an April 24, 2017 decision, OWCP denied modification of a December 2, 2016
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that
any disability and/or specific condition for which compensation is claimed are causally related to

4

Appellant has not appealed this decision.

5

Supra note 2.

3

the employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged. Second, the employee must submit
medical evidence to establish that the employment incident caused a personal injury.7
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.8
ANALYSIS
It is undisputed that on March 12, 2013 appellant was working as an aircraft mechanic,
and while washing an aircraft in the hangar area, he slipped on the wet floor and fell and injured
his neck and back. However, the Board finds that he failed to submit sufficient medical evidence
to establish that his diagnosed medical condition is causally related to the March 12, 2013
employment incident.
Appellant submitted a note from Dr. Hannallah on October 23, 2013 in which he treated
him for worsening neck pain radiating into his right shoulder, trapezial region, and arm.
Dr. Hannallah noted findings of paraspinal tenderness and diagnosed stenosis of the spinal
cervical region, worsening right upper extremity pain, and paresthesias from a C6-7 herniated
disc causing foraminal stenosis. He opined that the axial pain was probably due to degenerative
disc disease. Similarly, on August 18, 2014 Dr. Hannallah treated appellant for neck pain and
diagnosed spinal stenosis in the cervical region and brachial neuritis. An undated surgery
scheduling sheet from Dr. Hannallah diagnosed spinal stenosis of the cervical region and
recommended an anterior discectomy and fusion at C6-7. Dr. Hannallah’s medical opinion is
insufficient to establish the claim as he did not provide a history of injury9 or specifically address
whether appellant’s employment incident was sufficient to have caused or aggravated a
diagnosed medical condition.10
6

Gary J. Watling, 52 ECAB 357 (2001).

7

T.H., 59 ECAB 388 (2008).

8

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

9

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
10

A.D., 58 ECAB 149 (2006); Docket No. 06-1183 (issued November 14, 2006) (medical evidence which does
not offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship).

4

Appellant submitted a March 20, 2017 report from Dr. Winchell who noted that appellant
presented in September 2013 with neck pain. Dr. Winchell opined that appellant’s medical
condition was as least likely as not related to his military service based up review of his service
treatment records. He indicated that the fall at work “could have” caused radiculopathy and the
symptoms may not have presented for several months. The Board notes that Dr. Winchell’s
report provides some support for causal relationship, but is insufficient to establish the claimed
conditions are causally related to his employment duties. Dr. Winchell’s report, at best, provides
speculative support for causal relationship as he noted that appellant’s cervical radiculopathy was
as least likely as not related to his military service and the fall at work could have caused
radiculopathy.11 He provided no medical reasoning explaining how the particular workplace
conditions caused or aggravated the diagnosed conditions.
The record also contains records regarding appellant’s physical therapy. The Board has
held that notes signed by a physical therapist are not considered medical evidence as they are not
physicians under FECA.12 Thus, these treatment records are of no probative medical value in
establishing appellant’s claim.
The remainder of the medical evidence including MRI scans of the cervical spine are of
limited probative value as they fail to provide a physician’s opinion on a causal relationship
between appellant’s work incident and his diagnosed cervical condition.13 For this reason, this
evidence is insufficient to meet his burden of proof.
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated, or aggravated by his employment is
sufficient to establish causal relationship. Causal relationships must be established by
rationalized medical opinion evidence.14 Appellant failed to submit such evidence and therefore
he has not met his burden of proof.
On appeal appellant contends that his original injury was on March 12, 2013 and he
continued to work and his condition has worsened. He noted that he could no longer work as an
aircraft mechanic after 36 years of service. As found above, the medical evidence of record does
not establish a diagnosed medical condition causally related to the accepted work incident.
Appellant has not submitted a physician’s report which sufficiently describes how the March 12,
2013 incident caused or aggravated his diagnosed medical conditions.
11

See D.D., 57 ECAB 734 (2006) (medical opinions that are speculative or equivocal in character are of
diminished probative value).
12

See David P. Sawchuk, 57 ECAB 316, 320n.11 (2006) (lay individuals such as physician assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law). See also K.F., Docket No. 171125 (issued January 11, 2018) (physical therapists are not considered physicians as defined under FECA).
13

See S.E., Docket No. 08-2214 (issued May 6, 2009) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship).
14

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

5

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 his burden of proof to establish that his neck
and back injuries were causally related to the accepted March 12, 2013 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the April 24, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 16, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy 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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 18-0551
Issued: October 2, 2018

Case Submitted on the Record

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

JURISDICTION
On January 19, 2018 appellant filed a timely appeal from an October 19, 2017 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 met her burden of proof to establish a right shoulder
condition causally related to the accepted July 13, 2017 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 19, 2017 decision, OWCP received additional evidence. However,
the Board’s jurisdiction is limited to the evidence that was in the record at the time OWCP issued its final decision.
Thus, the Board is precluded from reviewing this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On July 14, 2017 appellant, then a 42-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on July 13, 2017 while in the performance of duty she injured her right
shoulder “rotator cup” while lifting packages off the long life vehicle (LLV) to the dock side of
the dolly. She stopped work on July 15, 2017 and returned later on July 20, 2017.
In a July 15, 2017 note, Dr. Krystal M. Baciak, an emergency medicine specialist, reported
that appellant was treated in the emergency room on July 14, 2017 and could return to work on
July 16, 2017.
In a July 25, 2017 return to work note, Dr. Michael E. Perrone, an orthopedic surgeon,
related that appellant was seen that day for a right shoulder injury. He released her to return to
work on July 26, 2017 with a restriction of no right shoulder use.
On July 25, 2017 Dr. Lewis Shi, an orthopedic surgeon, diagnosed right shoulder pain. He
reported that appellant had sustained a right shoulder injury at work on July 13, 2017. Physical
examination findings were detailed. Dr. Shi reported that appellant’s pain was “suspicious for
rotator cuff tend[i]nitis,” but it was unclear whether it was another pathology or rotator cuff tear.
In an August 11, 2017 attending physician’s report (Form CA-20), Dr. Shi diagnosed right
shoulder pain. He checked the box marked “yes” to the question of whether the diagnosed
condition was due to her work injury. Dr. Shi further explained that any lifting or carrying
aggravated her pain. In an August 22, 2017 note, he reported that appellant had a persistent right
shoulder injury and that she had started physical therapy.
By development letter dated September 7, 2017, OWCP advised appellant that, when her
claim was received, it appeared to be a minor injury that resulted in minimal or no lost time from
work and, since the employing establishment did not controvert continuation of pay or challenge
the case, a limited amount of medical expenses were administratively approved and paid. It noted
that her claim had been reopened because the medical bills had exceeded $1,500.00. Appellant
was advised regarding the medical evidence necessary to establish her claim. OWCP afforded her
30 days to submit the necessary evidence.
In a return to work note dated September 26, 2017, Dr. Shi diagnosed a persistent right
shoulder injury. He reported that appellant had no use of her right arm and requested authorization
for a magnetic resonance imaging (MRI) scan.
In a September 26, 2017 report, Dr. Shi diagnosed right shoulder pain and work injury. He
provided examination findings, treatment provided, and treatment dates. Dr. Shi opined that
appellant sustained a work injury. He explained the employment incident aggravated her right
shoulder due to the lack of any symptoms prior to the work incident.
By decision dated October 19, 2017, OWCP denied appellant’s claim finding that she
failed to establish fact of injury. It found that she failed to submit any medical evidence with a
diagnosis causally related to the accepted July 13, 2017 employment incident.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.6 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.7 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.8
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to the accepted July 13, 2017 employment incident.
Dr. Baciak reported that appellant was treated in the emergency room on July 14, 2017,
however, she did not provide a diagnosis. In a July 25, 2017 note, Dr. Perrone released appellant
to return to work and noted that she was seen for a right shoulder injury. These reports are

3

Id.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

5

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

6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4.

7

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 4.
9

M.L., Docket No. 17-1026 (issued April 20, 2018).

3

insufficient to establish appellant’s claim as the reports failed to provide a firm medical diagnosis
or offer any opinion regarding the cause of appellant’s condition.10
Appellant submitted several reports from Dr. Shi. In narrative reports dated July 25, 2017,
Dr. Shi diagnosed right shoulder pain. In an August 11, 2017 Form CA-20, he diagnosed right
shoulder pain and checked a box marked “yes” to the question of whether it was a work injury.
On the September 26, 2017 report Dr. Shi diagnosed right shoulder pain. His diagnosis of right
shoulder pain in the July 25, August 11, and September 26, 2017 reports, without any explanation
of the shoulder condition causing the pain, is a description of a symptom rather than a firm
diagnosis of a compensable medical condition.11 Dr. Shi, in the remaining medical evidence,
indicated that appellant had a right shoulder condition. He, however, failed to provide a medical
diagnosis.12 Because Dr. Shi failed to provide a medical diagnosis, his opinion is of diminished
probative value. These reports, which fail to provide diagnosis of appellant’s condition, are
therefore insufficient to establish appellant’s claim.
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor the
belief that her condition was caused, precipitated, or aggravated by her employment is sufficient
to establish causal relationship. Causal relationship must be established by rationalized medical
opinion evidence.13 Appellant failed to submit such evidence, and therefore failed to meet her
burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(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
right shoulder condition causally related to the accepted July 13, 2017 employment incident.

10

Id.

11

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis.
C.F., Docket No. 08-1102 (issued October 10, 2008).
12

See V.S., Docket No. 09-2308 (issued September 1, 2010). Medical evidence is of diminished probative value if
it fails to provide a firm diagnosis.
13

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

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated October 19, 2017 is affirmed.
Issued: October 2, 2018
Washington, DC

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

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

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

5