United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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

Docket No. 17-1207
Issued: December 8, 2017

Case Submitted on the Record

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

JURISDICTION
On May 11, 2017 appellant filed a timely appeal from a January 26, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated May 22, 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 the claim.2
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of OWCP’s January 26, 2017 decision and on appeal, appellant
submitted new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time
it issued its final decision. Thus, the Board may not consider the new evidence. See 20 C.F.R. § 501.2(c)(1).
2

On appeal appellant acknowledges that his request for reconsideration was untimely, but
contends that the request was untimely because a medical facility failed to provide him with
medical documentation he had requested in a timely manner. He further contends that the
medical evidence submitted in support of his request for reconsideration established that he
sustained a recurrence of disability.
FACTUAL HISTORY
On March 11, 2008 appellant, then a 51-year-old letter carrier, filed an occupational
disease claim (Form CA-2) under OWCP File No. xxxxxx255 for a right shoulder torn rotator
cuff.3 He claimed that he first became aware of his condition and realized its relationship to his
federal employment on November 9, 2001.
OWCP accepted the claim for sprain of the right shoulder, unspecified site, and sprain of
the right shoulder and upper arm, rotator cuff. It authorized right arthroscopic repair of a
massive tear through a previously altered surgical field (right) and arthroscopic biceps tenodesis
performed on March 4, 2009. Appellant stopped work at the employing establishment on
March 4, 2009.4
In a March 31, 2009 decision, OWCP denied appellant’s claim for compensation for
leave without pay from June 19 to September 21, 2008. It found that the medical evidence of
record was insufficient to establish that his claimed disability for work was caused by his
accepted employment injuries.
On March 21, 2014 appellant filed a recurrence of disability claim (Form CA-2a) alleging
a new period of disability which commenced on December 27, 2013 while he was sitting on a
couch. He asserted that he experienced a cramp in his neck and shoulder area. Appellant alleged
that his right shoulder had hurt since his injury on November 9, 2001. He indicated that he had
no injuries since his March 2009 surgery. On the claim form, appellant stated that he had never
returned to work and the employing establishment noted that he had retired.5
In a July 14, 2014 decision, OWCP denied appellant’s claim for a recurrence of
disability, finding that the medical evidence of record did not establish that he was disabled due
to a worsening of his accepted work-related conditions without an intervening cause.

3

On September 30, 2009 appellant filed a claim under OWCP File No. xxxxxx808 for a left shoulder injury,
accepted for a left shoulder and rotator cuff sprain. OWCP authorized benefits, including surgical authorizations for
rotator cuff repairs. Appellant received supplemental wage-loss payments for periods between March 11, 2008 and
August 24, 2013. He was placed on the periodic compensation rolls for total disability on August 25, 2013 and
continued receiving such compensation at the time of the filing of the present appeal. OWCP administratively
combined this file with the instant case assigned File No. xxxxxx255, with the latter serving as the master file.
4

The record indicates that appellant had a right arthroscopic glenohumeral debridement, extensive and mini open
repair of completer rotator cuff avulsion performed on December 14, 2001.
5

The record indicates that appellant retired from the employing establishment and received benefits from the
Office of Personnel Management. Effective August 24, 2011, appellant elected FECA benefits under File No.
xxxxxx808.

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OWCP received a May 19, 2014 letter from Dr. Eduardo I. Garcia, a pain medicine
specialist, who noted appellant’s history of injury and medical background. Dr. Garcia opined
that it was undeniable that appellant had a severe recurrence in pain, spasms, loss of range of
motion, and weakness to his right shoulder and right upper extremity, which were directly related
to his November 9, 2001 work-related injury, without intervening cause.
On September 10, 2014 appellant requested reconsideration of the July 14, 2014 decision.
He submitted a July 31, 2014 report from Dr. Mool P. Nigum, a Board-certified neurologist, who
noted appellant’s history of injury and medical, family, and social background. Dr. Nigum
reported findings and diagnosed status post arthroscopic repair of the right shoulder, right
shoulder impingement syndrome, and right shoulder arthralgia. He opined that appellant had a
worsening of his right shoulder internal derangement and right rotator cuff tear directly related to
his original November 9, 2001 employment injury.
In a December 10, 2014 decision, OWCP denied modification of its July 14, 2014
decision. It found that the medical evidence submitted was insufficient to establish that appellant
sustained a recurrence of disability as of December 27, 2013 causally related to his accepted
employment injuries.
In an appeal request form dated February 19, 2015 and received on February 24, 2015,
appellant again requested reconsideration. In a February 25, 2015 statement, he indicated that he
was a retired postal employee. Appellant described his former work duties and claimed that
since February 11, 2014 his right shoulder pain (aggravated preexisting right shoulder pain) was
constant and had worsened. He sought medical treatment and claimed that he was unable to
perform any hobbies due to his injury.
In a January 29, 2015 report, Dr. Nigum noted that he examined appellant and advised
that his accepted right shoulder sprain and right rotator cuff sprain should be expanded to include
the diagnoses of postsurgical right shoulder, right shoulder rotator cuff tear, right shoulder
labrum tear, right shoulder biceps tendon dislocation, and right shoulder internal derangement.
He reiterated his prior opinion that appellant sustained a recurrence of his original November 9,
2001 right shoulder injury. Dr. Nigum noted that his opinion was based on a March 24, 2014
right shoulder magnetic resonance imaging (MRI) scan and arthrogram.
A March 24, 2014 right shoulder arthrogram report from Dr. John Wright, a Boardcertified radiologist, provided an impression of large rotator cuff tear, postsurgical changes, and
superior labral tear.
By decision dated May 22, 2015, OWCP denied modification of its December 10, 2014
decision finding that Dr. Nigum’s report was insufficiently rationalized to establish that
appellant’s right shoulder conditions and claimed disability were causally related to his accepted
employment injuries. The decision informed appellant that any request for reconsideration had
to be made within one year of that decision.
OWCP received daily notes from appellant’s physical therapists which addressed the
treatment of appellant’s left shoulder pain from February 25 to September 20, 2016.

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In prescriptions dated March 25 and August 22, 2016, Dr. Ian J. Reynolds, a Boardcertified orthopedic surgeon, ordered continued rehabilitation for appellant’s sprain of the left
rotator cuff capsule and strain of muscle, fascia, and tendon of the long head of biceps, left arm.
In an appeal request form and letter dated November 2, 2016 and received on
November 22, 2016, appellant requested reconsideration of the May 22, 2015 decision. He
submitted an April 6, 2016 right shoulder MRI scan report from Dr. Larry Hurdiss, a Boardcertified radiologist. Dr. Hurdiss found that extensive tearing of the supraspinatus tendon and
the anterior margin of the infraspinatus tendon was evident with marked retraction and
significant atrophy of the supraspinatus muscle belly. He also found significant superior
subluxation of the humeral head with a moderate, one centimeter, inferiorly directed osteophyte
of the proximal head of the humerus. Dr. Hurdiss reported extensive postsurgical changes were
present with multiple tracks within the greater tuberosity from prior orthopedic anchors. In a
May 4, 2016 right shoulder MRI scan report, he found retearing of the supraspinatus tendon with
marked retraction of the torn tendon in the superior subluxation of the humeral head.
Dr. Hurdiss also found contrast material that extended directly through the torn rotator cuff into
the subdeltoid and subacromial bursae and extended proximally over the muscle belly of the
moderately atrophic supraspinatus muscle. In a May 4, 2016 addendum report, he amended his
prior conclusion, noting that an arthrogram of the right shoulder demonstrated a moderate
amount of direct extravasation of contrast material through a torn rotator cuff into the subdeltoid
and subacromial bursae.
In an August 25, 2016 progress note, Dr. James D. Jackson, Jr., a general surgeon,
provided a history of appellant’s injury and medical treatment. He noted his persistent
complaints of right shoulder pain, weakness, and loss of motion and strength. Dr. Jackson
discussed findings on physical examination and provided an impression that appellant had
continuing significant pain, loss of motion, and weakness of the right shoulder due to his workrelated repetitive job duties. He advised that his right shoulder disability would not have
occurred, but for the above-mentioned mechanism of injury. Dr. Jackson indicated that appellant
had numerous MRI scan and arthrograms, which documented rotator cuff tears, all of which
were comparable to the original injury on November 9, 2001. He also indicated that appellant’s
prior physicians, two of whom were orthopedic surgeons, documented a right shoulder diagnosis.
Dr. Jackson related that his formal diagnosis was right rotator cuff tear. He opined that appellant
had sustained a recurrence of his accepted November 9, 2001 right shoulder injury due to a
material worsening and continued repetitive and persistent use of the shoulder during the
performance of his work-related duties. Dr. Jackson maintained that this was documented by
evaluations performed by orthopedic surgeons and MRI scan, which included arthrograms,
dating from March 2014 to 2016.
In prescriptions dated April 7 and October 3, 2016, Dr. Reynolds again ordered continued
rehabilitation for appellant’s previously diagnosed left shoulder conditions. Daily notes signed
by appellant’s physical therapists addressed the treatment of appellant’s left shoulder pain from
September 20 to December 1, 2016.
In a January 26, 2017 decision, OWCP denied appellant’s request for reconsideration as
it was untimely filed and failed to demonstrate clear evidence of error.

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LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for
further merit review.6 This discretionary authority, however, is subject to certain restrictions.
For instance, a request for reconsideration must be received within one year of the date of
OWCP’s decision for which review is sought.7 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.8
OWCP may not deny a reconsideration request solely because it was untimely filed.
When a claimant’s application for review is untimely filed, OWCP must nevertheless undertake
a limited review to determine whether it demonstrates clear evidence of error. If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.9 To
demonstrate clear evidence of error, a claimant must submit evidence that is relevant to the issue
that was decided by OWCP,10 that is positive, precise, and explicit, and that manifests on its face
that OWCP committed an error.11 The evidence must not only be of sufficient probative value to
create a conflict in medical opinion or establish a clear procedural error, but must also shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision for which review is sought. Evidence that does not raise a
substantial question is insufficient to demonstrate clear evidence of error. It is not enough
merely to show that the evidence could be construed so as to produce a contrary conclusion. A
determination of whether the claimant has demonstrated clear evidence of error entails a limited
review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record.12
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. OWCP’s regulations13 and procedures14 establish a one-year time
limit for requesting reconsideration, which begins on the date of OWCP’s most recent merit
6

5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009).

7

20 C.F.R. § 10.607(a).

8

E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

9

M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011) (the term clear evidence of error
is intended to represent a difficult standard).
10

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

11

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

12

J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued September 2, 2010).

13

20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

14

Federal (FECA) Procedure Manual, supra note 9 at Chapter 2.1602.4 (October 2011); see Veletta C. Coleman,
48 ECAB 367, 370 (1997).

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decision. The most recent merit decision was OWCP’s May 22, 2015 decision. Appellant had
one year from the date of that decision to make a timely request for reconsideration. Since
OWCP did not receive his request until November 22, 2016, it was filed outside the one-year
time period. As appellant’s November 22, 2016 request for reconsideration was submitted more
than one year after the May 22, 2015 merit decision, it was untimely filed. Consequently, he
must demonstrate clear evidence of error by OWCP in the denial of his claim.15
The Board has reviewed the record and finds that the evidence submitted in the untimely
request for reconsideration does not raise a substantial question as to the correctness of OWCP’s
last merit decision and is therefore insufficient to demonstrate clear evidence of error. The
underlying issue in appellant’s claim is medical in nature with respect to a claimed recurrence of
disability causally related to his employment injuries. The Board notes that the term clear
evidence of error is intended to represent a difficult standard.16 Even a detailed, wellrationalized medical report, which would have created a conflict in medical opinion requiring
further development if submitted prior to issuance of the denial decision, is insufficient to
demonstrate clear evidence of error.17 It is not enough to show that evidence could be construed
so as to produce a contrary conclusion. Instead, the evidence must shift the weight in appellant’s
favor.18
Appellant submitted Dr. Jackson’s August 25, 2016 progress note in which he opined that
he sustained a recurrence of disability due to his accepted right shoulder employment injury.
Dr. Jackson reported findings and diagnosed a right shoulder rotator cuff tear. He advised that
appellant’s disability would not have occurred, but for the performance of his repetitive job
duties. Dr. Jackson maintained that the worsening of the accepted injury was documented by
appellant’s prior physicians and diagnostic test results. As previously noted, even a report such
as a detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical evidence requiring further development is insufficient
to demonstrate clear evidence of error.19 While Dr. Jackson’s opinion is generally supportive of
causal relationship, it does not demonstrate clear error on the part of OWCP in rendering its
May 22, 2015 decision.20 His progress note is insufficient as he did not provide a sufficiently
rationalized opinion regarding the causal relationship between appellant’s right shoulder
condition and the accepted employment injuries.21 Thus, the Board finds that Dr. Jackson’s
report does not raise a substantial question concerning the correctness of OWCP’s decision.
15

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

16

Federal (FECA) Procedure Manual, supra note 9 at Chapter 2.1602.5 (October 2011); see Dean D. Beets, supra
note 10.
17

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

18

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

19

Supra note 17.

20

K.T., Docket No. 16-0677 (issued June 16, 2016).

21

Willa M. Frazier, 55 ECAB 379 (2004) (medical conclusions unsupported by rationale are of little probative
value).

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Appellant also submitted Dr. Hurdiss’ April 6 and May 4, 2016 MRI scan and arthrogram
reports in which the physician addressed his right shoulder conditions. The reports do not raise
any error in the underlying OWCP’s May 22, 2015 denial of appellant’s recurrence of disability
claim.22 Additionally, Dr. Reynolds’ prescriptions dated March 25 to October 3, 2016 for
continued rehabilitation for appellant’s diagnosed left shoulder conditions do not raise a
substantial question as to the correctness of OWCP’s decision as they do not address the relevant
issue of causal relationship between the claimed recurrence of disability and the accepted right
shoulder conditions.23
Appellant submitted daily notes from his physical therapists. Physical therapists are not
considered physicians as defined under FECA and thus their reports do not constitute competent
medical evidence.24 Consequently, these daily notes are insufficient to demonstrate clear error
by OWCP with respect to the underlying medical issue.
The Board finds that OWCP properly found that appellant’s November 22, 2016 request
for reconsideration failed to demonstrate clear evidence of error. It therefore properly denied
appellant’s reconsideration request.
On appeal appellant acknowledges that his request for reconsideration was untimely filed,
but contends that this was because a medical facility failed to provide him with medical
documentation in a timely manner. The May 22, 2015 decision contained clear instructions that
any request for reconsideration had to be made within one year of that decision. The Board finds
that appellant was aware of OWCP’s requirement that reconsideration requests must be made
within one year of the decision to be timely.25 As appellant did not submit his reconsideration
request within one year of the May 22, 2015 decision and failed to demonstrate clear evidence of
error on the part of OWCP, the Board finds that OWCP properly denied his request.
Appellant further contends on appeal that the medical evidence submitted in support of
his request for reconsideration established a recurrence of disability. For the reasons set forth
above, the Board finds that the evidence submitted in support of appellant’s untimely request for
reconsideration was insufficient to prima facie shift the weight of the evidence in appellant’s
favor and raise a substantial question as to the correctness of OWCP’s May 22, 2015 decision
denying his recurrence of disability claim.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
22

M.N., supra note 18.

23

F.R., Docket No. 09-575 (issued January 4, 2010) (evidence that is not germane to the issue on which the claim
was denied is insufficient to demonstrate clear evidence of error).
24

5 U.S.C. § 8101(2); J.M., 58 ECAB 448 (2007); G.G., 58 ECAB 389 (2007); David P. Sawchuck, 57 ECAB
316, 322 n.11 (2006); Allen C. Hundley, 53 ECAB 551 (2002).
25

J.N., Docket No. 14-0034 (issued March 7, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the January 26, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 8, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
NORTH METRO, GA, Employer
__________________________________________

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Appearances:
Paul Felser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-0475
Issued: September 28, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 29, 2014 appellant, through counsel, filed a timely appeal from
September 5, October 14, and December 3, 2014 merit decisions of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.3

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
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5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the December 3, 2014 decision. Since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt,
57 ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss and compensation benefits effective September 23, 2013 as she no longer had any
residuals or disability causally related to her accepted employment injuries; and (2) whether
appellant has established continuing disability causally related to her federal employment after
September 23, 2013.
FACTUAL HISTORY
On October 2, 2012 appellant, then a 49-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) and alleged that on October 1, 2012 she experienced pain in her right
shoulder while scanning parcels. The employing establishment controverted her claim alleging
that there was no medical evidence to support her injury. Appellant stopped work on
October 4, 2012.
Appellant was initially treated by Dr. A. Akintoye, a Board-certified internist, for
complaints of severe neck pain radiating into her right arm with numbness and tingling. In a
November 15, 2012 report, Dr. Akintoye related that the pain began in October 2012 and
described her work duties. Upon examination, he observed cervical spine tenderness and marked
pain and restriction of cervical motion. Dr. Akintoye also noted muscle spasms of the rightsided paraspinal and trapezius muscle and hyperesthesia to touch of the entire right arm. He
stated that a magnetic resonance imaging (MRI) scan of appellant’s neck showed a disc
herniation/extrusion at C5-6 with significant displacement and compression of her spinal cord.
Dr. Akintoye diagnosed cervical disc herniation, spinal cord compression, spinal cord
displacement, spinal stenosis, cervical radiculopathy and disc protrusion, and right shoulder
sprain. He opined that appellant’s medical conditions were directly caused by the October 1,
2012 work injury and that she was unable to work due to the fact that she was unable to lift with
her right arm.
On November 27, 2012 OWCP accepted appellant’s claim for displacement of cervical
intervertebral disc without myelopathy and right shoulder sprain. It paid appropriate medical and
disability compensation benefits.
In a March 12, 2013 report, Dr. Jeff Traub, a Board-certified orthopedic surgeon,
examined appellant for a follow up of an October 2012 work injury. He noted that in
November 2012 an MRI scan examination revealed a herniated disc at the C5-6 level. Dr. Traub
reported that appellant was out of work and observed by the employing establishment of
performing activities outside her physical limitations. He noted that appellant was unable to
complete a functional capacity evaluation (FCE) because her blood pressure was too high and
she could not continue. Upon examination, Dr. Traub observed swelling and muscle spasm in
her neck. He noted that all the rest of appellant’s complaints were subjective. Dr. Traub
reported that objectively, she had a herniated disc at C5-6 with some degenerative changes as
shown by the MRI scan. He explained that “more likely than not these degenerative changes and
even the herniated dis[c] likely preceded [appellant’s] injury at work. The injury at work at most
aggravated a preexisting condition....” Dr. Traub recommended that appellant remain off work
until an FCE could be performed.

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On April 25, 2013 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and the medical record, to Dr. Alexander N. Doman, a Board-certified orthopedic
surgeon, for a second opinion examination to determine the extent of her accepted employmentrelated injuries and any continuing disability. The SOAF noted that an investigation had been
conducted by the employing establishment’s Office of Inspector General (OIG) and surveillance
video evidence was obtained, which demonstrated her ability to perform various physical
activities without limitation. These activities included wearing a satchel bag over appellant’s
body, carrying shopping bags and apparel, fully extending a trunk lid, reaching onto roof of car,
pumping gas into her tank, turning over a trash container, and pulling the trash container behind
her.
In a May 29, 2013 report, Dr. Doman provided results of an examination on
May 21, 2013. He reviewed appellant’s medical record, the SOAF, and the video surveillance
tape and provided an accurate history of the October 1, 2012 injury. Upon examination,
Dr. Doman observed no evidence of swelling of her neck or shoulder with no neurologic deficits.
Deep tendon reflexes were normal. He also noted full range of motion of the left and right
shoulder with no evidence of rotator cuff weakness or shoulder instability and reported that
x-rays of the right shoulder revealed normal acromioclavicular (AC) joint and that x-rays of the
cervical spine showed evidence of degenerative disc disease at C4 to C6.
Dr. Doman opined that appellant’s work-related cervical and right shoulder conditions
had resolved and were no longer active. He noted that according to the surveillance video she
had no difficulty with activities of a broad nature. Dr. Doman further explained that there was
no reasonable likelihood that the work duties appellant described had resulted in injury. He
pointed out that the x-rays showed no objective evidence of any ongoing shoulder difficulty.
Dr. Doman stated that appellant was not currently disabled from employment due to the work
injury and was capable of performing the duties of a processing mail clerk.
On June 17, 2013 a copy of Dr. Doman’s report was sent to Dr. Traub.
On June 27, 2013 appellant underwent an FCE by Dana L. Davis, a physical therapist,
who determined that appellant was capable of performing her job with restrictions of lifting,
carrying, or pushing no more than 15 pounds, no pulling or reaching above shoulder, and limited
repeated bending.
On June 24, 2013 appellant submitted claims for disability (Form CA-7) to OWCP,
which were received on July 2, 2013. In support of her claims, she included a copy of
Dr. Doman’s May 29, 2013 report.
On August 9, 2013 OWCP proposed to terminate appellant’s compensation and medical
benefits based on Dr. Doman’s May 29, 2013 report, which found that her employment-related
injuries had resolved and that she was capable of returning to work. It determined that the
weight of medical evidence rested with Dr. Doman who determined that she no longer suffered
residuals of her October 1, 2012 employment-related injuries and was able to return to work.
In an August 17, 2013 report, Dr. Traub stated that appellant was not cleared for work
because her FCE was not approved and noted that he clearly authorized her to return to light duty
with restrictions of no repetitive overhead motion and no lifting greater than 15 pounds. He

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reported that she had muscular spasm in her trapezius muscles and he opined that surgery would
not be beneficial for her. Dr. Traub stated that he was going to fill out and fax the paperwork
again to OWCP.
In August 27 and September 5, 2013 work capacity evaluations, Dr. Traub indicated that
appellant was not capable of returning to her usual job and required restrictions of no lifting
more than 15 pounds and no repetitive lifting. He noted that she reached maximum medical
improvement.
In a September 5, 2013 statement, appellant noted that on October 1, 2012 she injured her
neck and shoulder at the employing establishment as a result of lifting and moving heavy
equipment. She related that, due to the injury, she experienced pain, swelling, and muscle
spasms in her neck and shoulder. Appellant stated that her physician, Dr. Traub, authorized her
to return to work with restrictions.
By decision dated September 23, 2013, OWCP finalized the termination of appellant’s
compensation and medical benefits effective September 23, 2013. It determined that the weight
of the medical evidence rested with Dr. Doman’s May 29, 2013 report, which determined that
her employment-related injuries had resolved and that she was capable of returning to full duty.
On November 21, 2013 OWCP received appellant’s request for an oral hearing.
In a letter dated February 10, 2014, appellant through counsel, Paul H. Felser, requested
copies of the surveillance video that had been provided to Dr. Doman for his second opinion
examination. Mr. Felser alleged that OWCP’s termination was improper because OWCP had
failed to provide copies of the investigative materials to appellant.
On March 11, 2014 OWCP sent a copy of the surveillance video to appellant’s counsel.
On April 2, 2014 OWCP received appellant’s request for reconsideration. Appellant
contended that she wanted to rescind her request for an oral hearing and request reconsideration.
She reported that her claim was denied because the physician had failed to provide medical
documentation. Appellant believed, however, that her physician had submitted documentation
after Dr. Doman’s report. She contended that a conflict in medical evidence existed and that she
should have been given a referee opinion. Appellant noted that she was providing additional
medical documentation from another medical physician regarding her injuries. She also
resubmitted the June 27, 2013 FCE report.
In a March 24, 2014 report, Dr. Zouheir Shama, a general surgeon, related that appellant
had worked for the postal service since 1993 and described her duties as a distribution clerk. He
provided an accurate history of the October 1, 2012 injury and reviewed the medical treatment
she received. Dr. Shama noted that appellant’s compensation benefits were terminated after
Dr. Doman’s second opinion examination and review of a videotape by the OIG.
Dr. Shama reported that appellant complained of pain in the right shoulder, neck, and
right arm. Upon examination, he observed tenderness of her right shoulder over the bicipital
groove. Abduction of the right arm was 120 (normal 180) and revealed pain with movement.
Dr. Shama diagnosed cervical strain, shoulder strain, and displacement of cervical intervertebral
disc. He opined that, based on a review of appellant’s job duties, physical examination, and past
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injury, she required further treatment because her job was aggravating her pain by lifting, placing
weight, or moving the shoulder. Dr. Shama reported that he reviewed the OIG surveillance
video tape and explained that the activities identified on the tape did not amount to an eight-hour
shift at work and the continual use of her extremities consistent with work. He stated that
appellant would benefit from physical therapy and medications for pain.
By decision dated April 21, 2014, OWCP denied modification of the September 23, 2013
termination decision.
In a May 1, 2014 MRI scan of the right shoulder, Dr. Johnny Alexander, a Boardcertified diagnostic radiologist, reported a normal MRI scan of the right shoulder.
In a May 1, 2014 MRI scan of the cervical spine, Dr. Alexander observed multilevel
degenerative changes including prominent diffuse disc bulge with superimposed protrusion,
prominent broad-based disc herniation resulting in mild compression of anterior aspect of the
cord and mild central canal, and mild bilateral foraminal stenosis without nerve root compression
at C6-7.
On May 14 and June 24, 2014 OWCP received appellant’s requests for reconsideration.
In a May 13, 2014 report, Dr. Shama described appellant’s October 1, 2012 employment
injury and noted that her claim was accepted for displacement of cervical intervertebral disc and
right shoulder sprain. He reported that he had not diagnosed pain, but that pain was the
mechanism by which she described the nature of her injury. Dr. Shama stated that although he
based a portion of his conclusion on appellant’s subjective complaints he also performed a
physical evaluation and requested additional diagnostic testing. He related that the MRI scan of
the cervical spine revealed bulging disc at C4-5, mild central canal stenosis at C5-6 and C6-7,
broad-based disc herniation at C6-7, and mild bilateral foraminal stenosis at C6-7. Dr. Shama
diagnosed cervical disc displacement and sprain AC joint.
Dr. Shama advised that, upon examination of appellant and review of the May 1, 2014
MRI scan, he believed that she still suffered residuals of her October 1, 2012 injury. He
explained that the cervical pain was radicular and was being transferred to her right shoulder and
neck. Dr. Shama noted that appellant was required to utilize her shoulders and neck in
performing the scanning duties at the postal service and that, although she was seen using her
right shoulder to close the trunk of her vehicle or do minimal lifting, these functions did not last
longer than seconds. He explained that his review of the videotape demonstrated that any
prolonged carrying or lifting was not done with the right shoulder, but with the left. Dr. Shama
reported that appellant did not violate any reasonable medical restrictions by the momentary use
of her right shoulder. He opined that she was not able to perform any prolonged duties using her
right hand and shoulders. Dr. Shama stated that appellant’s pain associated with her neck was
radicular in nature and transferred pain to her right shoulder.
Appellant submitted a May 22, 2014 letter from the employing establishment providing
information and the proper forms on how to file a complaint for discrimination with the Equal
Employment Opportunity Commission.
In a June 15, 2014 statement, Samuel L. Lovett, appellant’s then representative, requested
that appellant’s OWCP benefits be restored. He reported that, although she had been removed
5

from her employment, there was no evidence that she attempted to defraud the employing
establishment or violated any postal regulations, rules, policy, or restriction violation.
Mr. Lovett stated that the surveillance video by OIG did not show any workplace or restriction
violations by appellant. He contended that OWCP and OIG violated her due process when they
made a decision in her workers’ compensation case based on photos and videos that she did not
have an opportunity to discredit or explain. Mr. Lovett alleged that, even if appellant was
removed from employment “for cause,” it should have no effect on her OWCP compensation
benefits.
In a June 24, 2014 report, Dr. Shama stated that appellant was examined for follow up of
her October 1, 2012 employment injury. He noted her complaints of right shoulder, right arm,
and neck pain. Upon examination, Dr. Shama observed limited range of motion and provided
range of motion findings for the right shoulder and cervical spine. He reported that appellant
continued to experience pain in movement and sometimes during and after physical therapy.
Paravertebral muscle spasms of the cervical spine were moderate. Dr. Shama related that an
MRI scan of the cervical spine revealed degenerative spine with central canal stenosis. He
reported that appellant’s diagnosis remained the same.
In an August 19, 2014 report, Dr. Shama conducted a follow-up examination of
appellant’s cervical spine. He noted the positive MRI scan findings for degenerative spine and
provided range of motion findings. Dr. Shama stated that he was dealing with a cervical spine
with central canal stenosis as last seen on the latest MRI scan. He reported that appellant showed
improvement with physical therapy.
In a decision dated September 5, 2014, OWCP denied modification of the termination
decision.
On September 16, 2014 appellant again requested reconsideration. She stated that her
claim was closed because of a misrepresentation of her medical condition in a surveillance tape
by the OIG. Appellant pointed out that both Drs. Traub and Shama had reviewed the
surveillance video, evaluated her, and determined that she still had residuals of her employmentrelated injury. She alleged that her case should be reopened or at least sent to a referee opinion
due to a conflict in medical reports. Appellant noted that she was submitting new medical
evidence to address the issue of causal relationship.
In a September 16, 2014 report, Dr. Shama stated that he was responding to the
September 5, 2014 denial decision. He noted that appellant had worked as a distribution clerk
for the employing establishment since 1993 and described her work duties. Dr. Shama related
that on October 1, 2012 she sustained a work-related injury that was accepted for cervical disc
displacement and right shoulder sprain. He reported that appellant’s compensation was
terminated after a second opinion examiner, who reviewed a surveillance video of her by the
OIG, concluded that her injuries had resolved.
Dr. Shama stated that he treated appellant and ordered an MRI scan, which confirmed his
objective medical findings upon examination that she continued to have residuals as a result of
her on-the-job injury. He explained that she worked as a distribution clerk whose duties
consisted of lifting, bending, stooping, carrying, pushing, and pulling. Dr. Shama reported that
as a result appellant was required to use her shoulders when she distributed mail in a repetitive
6

nature. He stated that she was required to perform the lifting, carrying, pushing, pulling, and
sorting duties on a daily basis. Dr. Shama opined that appellant’s work aggravated the injury to
her neck and shoulder. He concluded that she continued to have residuals of her October 1, 2012
employment injury and was not able to perform the repetitive work with her shoulder.
Dr. Shama explained that there were positive objective findings from the May 1, 2014 MRI scan
and these were confirmed during his examination, which demonstrated that appellant was unable
to perform repetitive distribution of mail. He recommended that she see an orthopedic surgeon
to determine whether surgical intervention was needed.
By decision dated October 10, 2014, OWCP denied modification of the termination
decision.
On November 3, 2014 appellant again requested reconsideration. She alleged that
OWCP had not met its burden of proof to terminate her claim because Dr. Doman’s second
opinion report clearly showed that his opinion was entirely influenced by the OIG surveillance
video. Appellant also noted that although Dr. Traub reported her degenerative changes he also
concluded that her injury at work aggravated her preexisting condition and was thus
compensable. She also questioned why OWCP decided to place the special weight of medical
opinion on the physician to whom she had the least exposure as opposed to Drs. Traub and
Shama who treated her repeatedly.
Appellant resubmitted Dr. Traub’s March 12, 2013 medical report and May 1, 2014 MRI
scan reports.
In an October 27, 2014 report, Dr. Shama stated that he was responding to the
October 10, 2014 denial decision. He again reviewed appellant’s employment duties and
provided an accurate history of the October 1, 2012 employment injury. Dr. Shama noted that
his claim had been accepted for cervical disc displacement and right shoulder sprain. He also
related that OWCP’s second opinion physician decided that appellant’s injuries had resolved
based on a surveillance video by the OIG.
In a decision dated December 3, 2014, OWCP denied modification of its October 10,
2014 denial decision.
LEGAL PRECEDENT -- ISSUE 1
Pursuant to FECA, once OWCP accepts a claim and pays compensation, it has the burden
of justifying termination or modification of an employee’s benefits.4 OWCP may not terminate
compensation without establishing that the disability had ceased or that it was no longer related
to the employment.5 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.6 The right to
medical benefits for an accepted condition is not limited to the period of entitlement for
4

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

5

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor,
37 ECAB 541 (1986).
6

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

disability compensation.7 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.8
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s traumatic injury claim for displacement of cervical
intervertebral disc without myelopathy and right shoulder sprain as a result of an October 1, 2012
employment injury. Appellant stopped work and received wage-loss disability compensation
and medical benefits.
Appellant was initially treated by Drs. Akintoye and Traub who noted that prior to her
October 1, 2012 employment injury she suffered from a preexisting degenerative cervical
condition, as confirmed by a November 5, 2012 MRI scan. In a March 12, 2012 report,
Dr. Traub examined her for a follow up of an October 2012 work injury. He observed swelling
and muscle spasm in appellant’s neck and reported that she had a herniated disc at C5-6 with
some degenerative changes, as shown by an MRI scan. Dr. Traub explained that her
degenerative changes and the herniated disc most likely preceded her injury at work. He opined
that appellant’s work injury aggravated the preexisting conditions. In an August 17, 2013 report,
Dr. Traub authorized her to return to light duty with restrictions of no repetitive overhead motion
and no lifting greater than 15 pounds.
On April 25, 2013 OWCP referred appellant to Dr. Doman for a second opinion
regarding the status of her accepted conditions. In a May 29, 2013 report, Dr. Doman reviewed
her history, including the SOAF and the surveillance video tape, and described the October 1,
2012 employment injury. He conducted an examination and noted no evidence of swelling of
appellant’s neck or shoulder. Dr. Doman also reported that deep tendon reflexes were normal.
He observed full range of motion of both shoulders with no evidence of rotator cuff weakness or
shoulder instability. Dr. Doman stated that review of the OIG surveillance video revealed that
appellant had no difficulty with activities of a broad nature. He opined that her work-related
cervical and right shoulder conditions had resolved and were no longer active. Dr. Doman stated
that appellant was not currently disabled from employment due to the work injury and was
capable of performing the duties of a processing mail clerk. Accordingly, OWCP terminated her
wage-loss compensation and medical benefits effective September 23, 2013.
The Board has held that the weight of the medical opinion is determined by the
opportunity for and thoroughness of examination, the accuracy and completeness of the
physician’s knowledge of the facts of the case, the medical history provided the care of analysis
manifested and the medical rationale expressed in support of stated conclusions.9 In this case,
Dr. Doman discussed the history of injury and explained that there were no objective findings to
establish that appellant had any continuing employment-related residuals or disability causally
related to her October 1, 2012 employment injury. The Board finds that his opinion is detailed,
7

A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).
8

A.P., id; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

9

See K.W., 59 ECAB 271 (2007); Ann C. Leanza, 48 ECAB 115 (1996).

8

well rationalized, and based upon a complete and accurate history and thorough clinical
examination. Accordingly, the Board finds that OWCP properly accorded the weight of the
medical evidence to Dr. Doman who found that appellant no longer had any residuals or
disability from her accepted cervical and right shoulder conditions.
On appeal, appellant alleges that she was not shown the OIG surveillance video before it
was shown to her physicians and that Dr. Doman did not conduct an examination of her, but
made his recommendations based solely on the OIG surveillance video. She also alleges that
OWCP did not allow her to view the video before it was shown to her physicians. The Board
notes that appellant would have been aware of the video on or around June 17, 2013 when
OWCP forwarded a copy of Dr. Doman’s May 29, 2013 report (which discussed the video) to
appellant’s treating physician, Dr. Traub, prior to the termination. Further, on July 2, 2013
appellant submitted a copy of Dr. Doman’s report to OWCP in support of her CA-7 form claims
for disability prior to the September 23, 2013 termination decision. She did not request a copy of
the surveillance video. Appellant later obtained counsel and he requested a copy of the video on
February 10, 2014. A copy was provided to counsel on March 11, 2014. OWCP has the
responsibility to make the claimant aware of videotape evidence it has provided to a medical
expert. It properly did so here by providing a copy of Dr. Doman’s May 29, 2013 report to
appellant’s treating physician. The evidence reflects that appellant obtained a copy of that report
from her treating physician because she included a copy of his May 29, 2013 report (which
discussed the surveillance video evidence) in her June 24, 2013 submission to OWCP. If she
requests a copy of the videotape, one should be made available and the employee given a
reasonable opportunity to offer any comment or explanation regarding the accuracy of the
recording.10 In this case, appellant did not request a copy of the surveillance video until after the
termination. Once she requested the video, it was provided to her. The Board finds that OWCP
properly handled the video evidence.
The Board thus finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits on September 23, 2013.
LEGAL PRECEDENT -- ISSUE 2
After termination of compensation benefits clearly warranted on the basis of the
evidence, the burden for reinstating compensation shifts to the claimant. To prevail, the claimant
must establish by the weight of the reliable, probative, and substantial evidence that he or she
had an employment-related disability, which continued after the termination of compensation
benefits.
ANALYSIS -- ISSUE 2
The Board further finds that appellant has not established any continuing residuals or
disability, after September 23, 2013, causally related to the October 1, 2012 employment injury.
Following OWCP’s termination decision, she submitted various reports by Dr. Shama dated
March 24 to October 27, 2014, in which he described her work duties at the employing
establishment and the October 1, 2012 injury. Dr. Shama noted that he treated appellant for
10

J.M., 58 ECAB 478, 486 (2007).

9

continued complaints of pain in the right shoulder, neck, and right arm. Upon examination, he
observed tenderness of her right shoulder over the bicipital groove and pain with movement.
Abduction was 120 degrees. Dr. Shama diagnosed cervical strain, shoulder strain, and
displacement of cervical intervertebral disc. He opined that appellant required further treatment
because her job was aggravating her pain. Dr. Shama reported that he reviewed the OIG
surveillance tape and explained that the activities identified on the tape were not equivalent to an
eight-hour shift at work and the continual use of her extremities consistent with work. In
subsequent reports he continued to provide clinical examination findings of limited range of
motion of the right shoulder and cervical spine. In an October 1, 2012 report, Dr. Shama
described appellant’s repetitive duties as a distribution clerk and opined that the work aggravated
the injury to her neck and shoulder. He noted that positive objective findings from the May 1,
2014 MRI scan and his examination demonstrated that she was unable to perform repetitive
distribution of mail. Dr. Shama concluded that appellant continued to have residuals of her
October 1, 2012 employment injury and was not able to perform the repetitive work with her
shoulder.
The Board notes that although Dr. Shama attributed appellant’s inability to work to her
shoulder and cervical conditions, he failed to explain based on medical rationale how she was
unable to work as a result of her October 1, 2012 employment injury. More specifically,
Dr. Shama did not address whether her current complaints were related to her accepted
employment injury or her degenerative cervical condition.11 He fails to adequately explain,
based on medical rationale, how appellant’s preexisting condition continued to be aggravated as
a result of the October 1, 2012 employment incident. Rather, Dr. Shama attributes it to the
repetitive duties of her job. The Board has found that medical evidence that states a conclusion,
but does not offer any rationalized medical explanation is of limited probative value.12 Appellant
contends that Dr. Shama’s medical reports establish that she continued to suffer residuals from
her initial injury and create a medical conflict with Dr. Dorman’s opinion. As noted above,
however, Dr. Shama’s reports lacked sufficient probative value to establish that appellant’s
current conditions were causally related to the specific October 1, 2012 employment injury or to
create a conflict in medical opinion.13
OWCP also received further diagnostic studies following the termination of
compensation, including May 1, 2014 MRI scan studies of appellant’s right shoulder and
cervical spine. The May 1, 2014 MRI scans revealed a normal right shoulder and multilevel
degenerative changes of the cervical spine. However, these studies provided no opinion
regarding appellant’s disability status.
The Board finds that appellant has not submitted sufficient medical evidence to establish
that she continues to suffer residuals of her accepted October 1, 2012 cervical and right shoulder
injuries.
Appellant has not established that she had any continuing disability after
September 23, 2013.
11

See Federal (FECA) Procedure Manual, Parts 2 -- Claims, Causal Relationship, Chapter 2.805.3(e)
(January 2013).
12

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

13

See T.C., Docket No. 12-444 (issued August 1, 2012); see also B.P., Docket No. 08-1457 (issued February 2,
2009); Gloria J. Godfrey, 52 ECAB 486 (2001).

10

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 met its burden of proof to justify termination of appellant’s
wage-loss compensation and medical benefits effective September 23, 2013 and she has not
established her entitlement to continuing disability benefits.
ORDER
IT IS HEREBY ORDERED THAT the December 3, October 14, and September 5,
2014 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 28, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11


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

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

Docket No. 11-828
Issued: November 9, 2011

Case Submitted on the Record

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

JURISDICTION
On February 15, 2011 appellant filed a timely appeal from the September 21, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which awarded schedule
compensation. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 31 percent impairment of his right leg for
which he received a schedule award.
FACTUAL HISTORY
On December 12, 2008 appellant, a 71-year-old rural carrier, fractured his right hip in the
performance of duty when he slipped and fell on a patch of ice while carrying a tub of mail.

1

5 U.S.C. § 8101 et seq.

OWCP accepted his claim for right acetebular fraction with open reduction and internal fixation.
He claimed a schedule award based on permanent impairment.
Dr. Gerald J. Lang, a Board-certified orthopedic surgeon and associate professor,
evaluated appellant’s physical impairment. He noted intermittent daily pain in the right
hip/groin, minimal loss of muscle strength, bone-on-bone arthritis and occasional use of a cane.2
Dr. Lang also noted loss of hip motion: forward flexion was 80 degrees, extension was zero
degrees, abduction was 20 degrees, adduction was 10 degrees, internal rotation was zero degrees
and external rotation was 10 degrees. He did not offer a percentage impairment rating in this
report.
An OWCP medical adviser reviewed Dr. Lang’s findings and determined that appellant
had a 31 percent impairment of his right leg due to loss of hip motion. Using Table 16-24, page
549 of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(6th ed. 2009), he found that mild loss of flexion, abduction and adduction each caused 5 percent
impairments, while moderate losses for internal and external rotation each caused 10 percent
impairment.3
On September 21, 2010 OWCP issued a schedule award for a 31 percent impairment of
appellant’s right lower extremity, which amounted to 89.28 weeks of compensation.
On appeal, appellant disagrees with percentage impairment awarded. He noted that
Dr. Lang reported a 50 percent loss of use of the right lower extremity. Appellant argues that
OWCP did not take into consideration the extent of pain that he suffered each day. He also
argues that the number of weeks of compensation OWCP awarded should be increased from
89.28 to 150.
LEGAL PRECEDENT
Section 8107 of FECA4 authorizes the payment of schedule awards for the loss or loss of
use of specified members, organs or functions of the body. Such loss or loss of use is known as
permanent impairment. OWCP evaluates the degree of permanent impairment according to the
standards set forth in the specified edition of the A.M.A., Guides.5

2

Previous x-rays revealed stable alignment of the right-sided acetebular fracture with no development of posttraumatic degenerative joint disease.
3

Rather than add the individual impairments together, the medical adviser combined them under the Combined
Values Chart on page 604 of the A.M.A., Guides.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).

2

ANALYSIS
Diagnosis-based impairment is the primary method of evaluation for the lower
extremity.6 The first step in determining an impairment rating is to choose the diagnosis that is
most applicable for the region being assessed.7 Table 16-4, page 512 of the A.M.A., Guides
provides diagnoses for the hip region. Fractures about the hip joint, including acetebular
fractures, are found on page 514. Default impairment values for this diagnosis range from 7 to
37 percent, depending on the measured displacement of the articular surface. The default
impairment value for an infected fracture is 50 percent. These default values can be adjusted
slightly up or down based on such nonkey factors as functional history and findings on physical
examination.8
OWCP did not award appellant compensation for a diagnosis-based impairment. Instead,
it awarded compensation based on loss of motion. Section 16.7 of the A.M.A., Guides, page
543, explains, however, that diagnosis-based impairment is the method of choice for calculating
impairment, and that range of motion is used principally as a factor in adjusting that calculation.
Some of the diagnosis-based impairment grids refer to the range of motion when that is the most
appropriate mechanism for grading the impairment, but Table 16-4, The Hip Regional Grid, does
not indicate that range of motion may be used as an alternative method.9 Other circumstances in
which the range of motion section may be used do not apply in this case.10 The sixth edition of
the A.M.A., Guides does not support rating appellant’s impairment under the range of motion
section. Table 16-4, page 514, provides a relevant diagnosis for a diagnosis-based rating, which
is the primary method of evaluation and the method of choice for the lower extremity. The
Board, therefore, will set aside appellant’s schedule award and remand the case for a proper
application of the A.M.A., Guides and an appropriate final decision on appellant’s claim for a
schedule award.11
Appellant argues on appeal that Dr. Lang reported a 50 percent loss of use of his right
lower extremity. He reported a 50 percent decrease in motion of the hip, not a 50 percent
impairment of the right lower extremity. The specific ranges of hip motion he recorded do not
reflect a 50 percent impairment of the lower extremity.
6

A.M.A., Guides 497.

7

Id. at 499.

8

Id. at 515.

9

Upper extremity grids, by contrast, place asterisks by the relevant diagnoses to indicate that impairment may be
assessed alternatively using range of motion. No such asterisk appears in Table 16-4 for the diagnosis of fracture
about the hip joint.
10

Range of motion may be used when no other diagnosis-based section is applicable, when there is an amputation
impairment or, in very rare cases, when severe injuries having significant functional loss result in passive range of
motion losses qualifying for severe or very severe classification. A.M.A., Guides 543.
11

See G.N., Docket No. 10-850 (issued November 12, 2010) (where it appeared OWCP’s medical adviser did not
properly apply the A.M.A., Guides, the Board set aside the schedule award and remanded the case for a proper
application).

3

Appellant also argues that OWCP did not take into consideration the extent of pain that
he suffered each day. The rating he received for loss of motion, or will receive based on his
diagnosis, takes pain into consideration. Appellant’s award will primarily reflect objective
factors, but subjective experiences regarding his condition, such as pain, do play a role in
modifying the relevant default impairment. If a patient presents with a painful condition and
cannot be rated according to the principles outlined in other chapters, the A.M.A., Guides
provides a separate pain-related impairment, but in no circumstance should this pain-related
impairment be considered as an add-on to the impairment determined in other chapters.12
Because appellant may and should be rated for his diagnosed acetebular fracture, a rating that
can be modified by a functional assessment reflecting pain, he may not receive an additional
award for pain-related impairment.
Finally, appellant argues that he should receive 150 weeks of compensation for his
impairment. The number of weeks of compensation he receives depends on his impairment
rating. The maximum compensation for 100 percent loss of a leg is 288 weeks of compensation,
such as when the leg is amputated at the hip.13 Partial losses are compensated proportionately.14
A 31 percent impairment, therefore, warrants 89.28 weeks of compensation (0.31 x 288), but as
noted a proper impairment rating for appellant’s acetebular fracture has not yet been determined.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of the
medical evidence is warranted.

12

A.M.A., Guides 39.

13

5 U.S.C. § 8107(c)(2).

14

Id. at § 8107(c)(19).

4

ORDER
IT IS HEREBY ORDERED THAT the September 21, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: November 9, 2011
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF THE TREASURY,
BUREAU OF ENGRAVING & PRINTING,
Fort Worth, TX, Employer
__________________________________________

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

Docket No. 17-1752
Issued: June 13, 2018

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 August 9, 2017 appellant filed a timely appeal from a March 30, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from December 17, 2015, the date of the most recent merit decision, 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 the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 9, 2009 appellant, then a 65-year-old plate printer, filed a traumatic injury claim
(Form CA-1) alleging that, on February 20, 2009, he injured his left knee when he tripped on a
raised diamond plate and struck his knee on a table while in the performance of duty. By decision
dated April 3, 2009, OWCP accepted his claim for sprain of the lateral collateral ligament of the
knee, tear of the medial meniscus of the left knee, and unspecified internal derangement of the left
knee.
By decision dated July 15, 2010, OWCP issued appellant a schedule award for 13 percent
permanent impairment of the left lower extremity.
On May 27, 2011 appellant requested reconsideration of OWCP’s July 15, 2010 decision,
arguing that OWCP had miscalculated his schedule award due to his work at two separate agencies.
By decision dated September 20, 2011, OWCP reviewed the merits of appellant’s claim
and found that it had calculated appellant’s schedule award correctly based on his pay rate on the
date disability began, April 16, 2009, by not including his Office of Personnel Management (OPM)
annuity in calculating his pay rate.
Appellant retired from the employing establishment, effective April 1, 2012.
By decision dated February 6, 2013, OWCP expanded the acceptance of appellant’s claim
to include additional conditions of traumatic arthropathy of the left lower leg and tenosynovitis of
the left foot and ankle.
On July 22, 2015 appellant requested an increased schedule award for his left lower
extremity.
In a report dated May 3, 2015, Dr. Marvin Van Hal, a Board-certified orthopedic surgeon,
examined appellant and calculated that he had 41 percent left lower extremity impairment after a
total knee arthroplasty. He rendered his impairment rating according to the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides)2 and indicated a date of maximum medical improvement of September 22, 2014.
OWCP forwarded the case record and a statement of accepted facts to a district medical
adviser (DMA) on August 3, 2015. In a report dated August 5, 2015, the DMA concurred with
Dr. Van Hal’s total lower extremity impairment rating of 41 percent, yielding an additional award
due to appellant of 28 percent, as he had previously received a schedule award for 13 percent
permanent impairment of the left lower extremity.
By decision dated March 10, 2016, OWCP granted appellant an increased schedule award
for an additional 28 percent permanent impairment of the left lower extremity. It noted weekly
pay of $2,255.00, which, multiplied by the 75 percent compensation rate, resulted in weekly
compensation of $1,691.25. After cost-of-living adjustments, appellant’s weekly compensation
2

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

2

was calculated to be $1,728.75. His payment during the period February 7 to March 5, 2016 was
noted to be $6,915.00. Finally, OWCP calculated appellant’s continuing compensation payments
every four weeks as $4,052.00. The period of the award ran for 80.60 weeks.3
On February 28, 2017 appellant requested reconsideration of OWCP’s March 10, 2016
decision. With his request for reconsideration, appellant included a calculation of his monthly
annuity from OPM. He also included a letter in which he asked OWCP to check the mathematics
on the calculation of his March 10, 2016 schedule award. Appellant noted that, while his weekly
compensation at the 75 percent compensation rate was $1,691.25, and that with a cost-of-living
adjustment his weekly compensation was $1,728.75, he had received a schedule award with a
weekly compensation amount of $1,242.80, which reflected 55 percent compensation rate. He
further noted that each monthly deposit was for the amount of $4,052.00.
By decision dated March 30, 2017, OWCP denied appellant’s request for reconsideration.
It found that he had not raised substantive legal questions, nor included new and relevant evidence
with his request for reconsideration.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by 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.4 Section 10.608(b) of OWCP’s regulations provide
that when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration
without reopening the case for a review on the merits.5
ANALYSIS
OWCP issued a decision dated March 10, 2016 granting appellant a schedule award for an
additional 28 percent permanent impairment of his left lower extremity. It noted weekly pay of
$2,255.00, which, multiplied by the 75 percent compensation rate, resulted in weekly
compensation of $1,691.25. After cost-of-living adjustments, appellant’s weekly compensation
was calculated to be $1,728.75. Finally, it calculated his continuing compensation payments every
four weeks as $4,052.00. On February 23, 2017 appellant requested reconsideration of this
decision alleging that OWCP had made a mathematical error as to his weekly compensation rate.

3
An ACPS supplemental rolls payment form report dated March 3, 2016 related that a schedule award would be
paid on the supplemental rolls from May 3, 2015 through November 17, 2016 at a weekly pay rate of $1,242.80 and
a 75 percent compensation rate. No insurance or miscellaneous deductions would be taken resulting in a net payment
of $44,574.86. The record reflects however that appellant received schedule award compensation totaling $81,691.16.
4

20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

5

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

3

As noted above, the Board does not have jurisdiction over the merits of the December 17,
2015 decision. The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of his claim.
The Board finds that appellant has raised a legal argument that has a reasonable color of
validity as to whether OWCP erroneously applied or interpreted a specific point of law.
In his February 23, 2017 request for reconsideration, appellant alleged that OWCP
erroneously applied a compensation formula in determining his schedule award pay rate. The
Board notes that $1,728.75, appellant’s weekly schedule award compensation after cost-of-living
adjustments, multiplied by four to arrive at his continuing payments, does not equal $4,052.00, as
noted by OWCP. One thousand seven hundred twenty eight dollars and seventy-five cents
multiplied by four equals $6,915.00, the amount OWCP indicated that he would receive during
the period February 7 to March 5, 2016. As such, appellant’s allegation of a mathematical error
has a reasonable color of validity. A request for reconsideration predicated on a legal premise
need only contain an assertion of an adequate legal premise having some reasonable color of
validity.6
Thus, as appellant had not previously raised this legal argument, the Board finds that he is
entitled to a review of the merits of his claim based on the first above-noted requirement under
section 10.606(b)(3). The Board finds that OWCP, therefore, improperly denied appellant’s
request for reconsideration of the merits in its March 30, 2017 decision pursuant to 20 C.F.R.
§ 10.608. The case shall be remanded to OWCP to conduct a merit review of appellant’s schedule
award claim. Following this and other such further development as deemed necessary, OWCP
shall issue a de novo decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

6

See T.B., Docket No. 10-2336 (issued September 28, 2011).

4

ORDER
IT IS HEREBY ORDERED THAT the March 30, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion, to be followed by an appropriate decision.
Issued: June 13, 2018
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.E., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Anaheim, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-1100
Issued: September 22, 2008

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 4, 2008 appellant timely appealed the August 13, 2007 merit decision of the
Office of Workers’ Compensation Programs, which denied her claim for wage-loss
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of the claim.1
ISSUE
The issue is whether appellant was disabled from May 1 to July 20, 2007 due to her
August 16, 2006 employment injury.

1

The record on appeal includes evidence received after the Office issued the August 13, 2007 decision. The
Board’s appellate review is limited to the evidence in the case record which was before the Office at the time of its
final decision. 20 C.F.R. § 10.501.2(c) (2008).

FACTUAL HISTORY
Appellant, a 36-year-old mail handler, was injured August 16, 2006 when a wire hamper
fell from a forklift and struck her right side. She stopped work the day of her injury and returned
to work in a limited-duty capacity on August 22, 2006. The Office accepted appellant’s claim
for contusions of the right shoulder, upper arm, elbow and forearm.
On May 11, 2007 appellant filed a claim for post-traumatic stress disorder (PTSD), which
she attributed to her August 16, 2006 employment injury. She first became aware of her
psychiatric condition on May 7, 2007. Appellant last worked on May 1, 2007.2
From an orthopedic standpoint, appellant was capable of performing limited-duty work,
and the employing establishment advised that modified work remained available. From April 23
to August 27, 2007, Dr. Behzad Haghi, appellant’s treating physician, found her capable of
performing limited-duty work as it pertained to the use of her right upper extremity.3
From a psychological standpoint, appellant was considered totally disabled according to
Dr. Barbara A. Ammon, Ph.D. In a May 30, 2007 report, Dr. Ammon diagnosed PTSD and
indicated that appellant had been totally disabled since May 1, 2007. She first saw appellant on
May 7, 2007, at which time appellant reported having been injured at work on August 16, 2006
when a 390-pound wire cage stacked on a truck fell onto her chin and then onto her chest,
pinning her against a nearby parked mule. The impact reportedly knocked the wind out of
appellant, who was stunned and unable to move and her right arm began turning black.
Appellant also informed Dr. Ammon that the truck driver pulled the cage off of her, tearing her
skin. Dr. Ammon noted that, since the accident, appellant had not been fully able to use her right
arm and hand. Appellant had also experienced symptoms referable to her neck, shoulder, back
and hip.
Dr. Ammon noted that, immediately following the August 16, 2006 accident, appellant
experienced the onset of flashbacks and nightmares. Appellant reportedly awakened from the
nightmares with palpitations and sweat. Dr. Ammon stated that appellant was hypervigilant and
startled easily. Also, appellant’s memory and concentration were impaired, she was irritable
and she became tearful with little provocation. Dr. Ammon described appellant as well
motivated to work and noted that, despite ongoing orthopedic and psychological symptoms,
appellant returned to limited duty two or three weeks after her injury. But appellant felt quite
fearful at work and she became physically tense and experienced palpitations when she was
around or even heard the sound of cages. She reportedly had recurrent thoughts of how the cage
came close to striking her head.
2

On May 10, 2007 appellant filed another emotional condition claim (13-2171958) for alleged harassment that
occurred following her return to light duty in August 2006. The Office adjudicated the two emotional condition
claims separately and associated the May 11, 2007 filing with appellant’s August 16, 2006 traumatic injury claim
(13-2157179).
3

Dr. Haghi is Board-certified in family and preventive medicine, with a subspecialty in occupational medicine.
He imposed right arm restrictions that included no repetitive reaching, no reaching above shoulder level, no lifting
over five pounds and no heavy or repetitive pushing or pulling. Appellant was also required to wear a tennis elbow
brace at work.

2

Dr. Ammon also noted that appellant’s clinical picture was further complicated by the
harassment she received from her supervisor following her return to limited-duty work. She
reported that appellant’s supervisor repeatedly attempted to force her to work outside of her
physician’s restrictions. The supervisor also closely monitored appellant’s actions and indicated
that other employees did not want to work with her because they considered her to be a safety
hazard.
When appellant first sought psychological counseling with Dr. Ammon on May 7, 2007,
she reported experiencing ongoing nightmares and flashbacks of the August 16, 2006 incident.
Additional complaints included depression, irritability, tearfulness, feelings of helplessness and
hopelessness, impaired memory and concentration, hypervigilance, startle response, headaches,
palpitations, excessive sweating, and reduced self-confidence and self-esteem. Dr. Ammon
explained that appellant’s psychological condition was consistent with the diagnosis of posttraumatic stress disorder. She also stated that appellant’s symptoms interfered with her ability to
continue working. Dr. Ammon advised that appellant required psychological treatment,
including weekly psychotherapy, possibly augmented by psychotropic medications. According
to her, appellant’s prognosis was guarded and the estimated duration of her disability was
unknown.
In a June 6, 2007 letter to the employing establishment, Dr. Ammon advised that
appellant was being treated for psychological symptoms that developed reactive to employmentrelated injury and stress. She stated that appellant was temporarily totally disabled for her usual
employment until July 7, 2007.
Dr. Ammon wrote the employing establishment again on June 8, 2007. This letter was
directed to the plant manager. Dr. Ammon reiterated that appellant was receiving treatment for
psychological symptoms that developed reactive to an employment-related injury. She also
noted that she was made aware that many supervisory personnel had contacted appellant by
telephone while she was on medical leave. Dr. Ammon requested that the supervisory personnel
be instructed to refrain from contacting appellant by telephone as this was not in her best interest
from an emotional point of view and was hampering appellant’s recovery.
In a July 12, 2007 follow-up report, Dr. Ammon sought to “clarify the cause of
[appellant’s] psychological disability.” She again noted that appellant’s psychological symptoms
were consistent with the diagnosis of PTSD, which “developed reactive to the industrial injury of
August 16, 2006.” Dr. Ammon also noted that she had previously reported that appellant had
been “subjected to supervisory maltreatment following the injury.” But she explained that the
predominant cause of appellant’s psychological symptoms and resulting disability were her
symptoms of post-traumatic stress disorder. Dr. Ammon further explained that had appellant not
been emotionally vulnerable because of this condition, she would have been better able to cope
with the supervisor’s behavior. She noted that appellant had the same supervisor before and after
the injury and prior to appellant’s injury she had been able to interact with the supervisor without
developing a disabling psychological condition.
On July 16, 2007 the Office informed appellant that her August 16, 2006 employment
injury had been expanded to include PTSD. It advised appellant that the medical evidence of
record was insufficient to establish that she incurred any wage loss due to this condition.

3

In a July 24, 2007 attending physician’s report (Form CA-20), Dr. Ammon diagnosed
employment-related PTSD. She also noted that appellant had been disabled since May 1, 2007
and that she remained totally disabled.
On July 26, 2007 appellant filed a claim for compensation (Form CA-7) for the period
May 1 to July 20, 2007.
By decision dated August 13, 2007, the Office denied appellant’s claim for wage-loss
compensation beginning May 1, 2007.
LEGAL PRECEDENT
A claimant has the burden of establishing the essential elements of her claim, including
that the medical condition for which compensation is claimed is causally related to the claimed
employment injury.4 For wage-loss benefits, the claimant must submit medical evidence
showing that the condition claimed is disabling.5 The medical evidence submitted must be
reliable, probative and substantial.6
ANALYSIS
Appellant claimed that she was totally disabled from May 1 to July 20, 2007 due to her
employment-related post-traumatic stress disorder.7 However, the medical evidence of record
does not support such a finding. Dr. Ammon’s initial report dated May 30, 2007 attributed
appellant’s current psychological condition, in part, to supervisory harassment unrelated to the
August 16, 2006 traumatic injury. She noted that appellant’s clinical picture was further
complicated by harassment from her supervisor following her return to limited-duty work. The
supervisor was alleged to have repeatedly attempted to force appellant to work beyond her
physical restrictions. Appellant also complained of being closely monitored by her supervisor.
Additionally, she learned that other employees did not want to work with her because they
considered her to be a safety hazard. According to Dr. Ammon, these factors also impacted
appellant’s psychological state.
The psychological impact of appellant’s interactions with her supervisors was also
evident from the July 6 and 8, 2007 letters Dr. Ammon wrote to the employing establishment. In
the first letter, Dr. Ammon noted that appellant was being treated for psychological symptoms
that developed reactive to an employment-related injury and “stress.” In the second letter, she
admonished the employing establishment for contacting appellant at home during her medical
leave of absence. Dr. Ammon requested that supervisory personnel refrain from contacting

4

20 C.F.R. § 10.115(e); see Tammy L. Medley, 55 ECAB 182, 184 (2003).

5

20 C.F.R. § 10.115(f).

6

20 C.F.R. § 10.115.

7

Appellant does not allege, nor does the record establish, that she was totally disabled due to the injuries she
sustained to her right upper extremity on August 16, 2006.

4

appellant by telephone as this was not in appellant’s best interest from an emotional point of
view and was hampering her recovery.
Dr. Ammon’s July 12, 2007 letter explained that had appellant not been emotionally
vulnerable because of her PTSD, she would have been better able to cope with her supervisor’s
behavior. According to her, appellant’s psychological condition began to deteriorate soon after
the August 16, 2006 incident at work. Dr. Ammon stated that “[i]mmediately following the
accident,” appellant “experienced the onset of flashbacks and nightmares of the accident.” But
even with the almost instantaneous onset of psychological symptoms, appellant was able to
continue working for some nine months following the August 16, 2006 traumatic injury.
Dr. Ammon has not explained how and why appellant’s psychological condition deteriorated
over the course of nine months to the point of her being totally disabled for the period at issue.
It is also unclear from Dr. Ammon’s July 12, 2007 report how she distinguished the socalled “predominate” cause of appellant’s current “psychological symptoms and resulting
disability.” There is no indication from the doctor’s report how she was able to distinguish
appellant’s disability among the effects of her PTSD symptoms and the effects of the reported
supervisory harassment. It is not enough for Dr. Ammon to simply say that appellant is totally
disabled due to her employment-related PTSD.8
The current record does not include any probative medical evidence to support
appellant’s claim that she was totally disabled from May 1 to July 20, 2007 due to her August 16,
2006 employment injury. Accordingly, the Office properly denied appellant’s claim for wageloss compensation.
CONCLUSION
Appellant did not established entitlement to wage-loss compensation for the period
May 1 to July 20, 2007.

8

A physician’s opinion on whether there is a causal relationship between the diagnosed condition and the
implicated employment factors must be based on a complete factual and medical background. Victor J. Woodhams,
41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree
of medical certainty, and must be supported by medical rationale, explaining the nature of the relationship between
the diagnosed condition and appellant’s specific employment factors. Id.

5

ORDER
IT IS HEREBY ORDERED THAT the August 13, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 22, 2008
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