United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
PACIFIC, Fort Shafter, HI, Employer
__________________________________________

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

Docket No. 18-1606
Issued: April 16, 2019

Case Submitted on the Record

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

JURISDICTION
On August 20, 2018 appellant filed a timely appeal from March 5 and June 14, 2018 merit
decisions 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 OWCP properly suspended appellant’s entitlement to wage-loss
compensation and medical benefits commencing May 17, 2017 under 5 U.S.C. § 8123(d).

1

5 U.S.C. § 8101 et seq.

2
Appellant also appealed a May 16, 2017 decision of OWCP. However, as more than 180 days elapsed from the
issuance of the May 16, 2017 decision to the filing of the present appeal, the Board lacks jurisdiction over this decision.
See 20 C.F.R. §§ 501.2(c), 501.3.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as set forth in the
Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.
On May 5, 1989 appellant, then a 28-year-old tools and parts attendant, filed an
occupational disease claim (Form CA-2) alleging that he developed bilateral plantar fasciitis and
heel spur syndrome due to the extended periods of standing required by his job. He stopped work
on December 17, 1988. OWCP initially accepted his claim for temporary aggravation of bilateral
pes planus (flat feet) and bilateral plantar fasciitis.4 Appellant returned to work on April 19, 1989
in a light-duty position for the employing establishment which required little walking or standing.
He stopped work again on April 3, 1990 and OWCP paid him wage-loss compensation on the daily
rolls commencing that date.5
Between 2010 and 2012, OWCP authorized physical therapy treatment for appellant’s feet,
including manual therapy.6 Appellant requested authorization commencing January 1, 2013 for
manual foot therapy, including use of a Hivamat deep oscillation machine.
Several of appellant’s physicians recommended continuing foot therapy. For example, in
multiple reports dated commencing in late 2012, Dr. Gary R. Goodman, a podiatrist,
recommended that appellant continue with manual foot therapy, including use of a Hivamat
machine, in order to treat and provide pain relief from his accepted work-related foot conditions.
In a January 14, 2014 report, Dr. Robert R. Reppy, a Board-certified preventive medicine
physician, noted that appellant needed to continue with an aggressive program of physical therapy
using the Hivamat machine.
By decision dated June 5, 2014, OWCP denied modification of its prior decisions denying
appellant’s request for authorization of manual foot therapy commencing January 1, 2013,
including use of the Hivamat machine.
Appellant subsequently requested reconsideration and submitted additional medical
evidence. In a September 12, 2014 report, Dr. Howard Hogshead, a Board-certified orthopedic
surgeon serving as an OWCP medical adviser, described the Hivamat machine as a tool that is
3
Order Dismissing Appeal, Docket No. 17-1126 (issued September 21, 2017); Docket No. 15-0259 (issued
November 3, 2015), petition for recon. denied, Docket No. 15-0259 (issued August 11, 2016); Docket No. 13-0777
(issued June 26, 2013); Order Dismissing Appeal, Docket No. 09-2085 (issued September 25, 2009); Docket No.
07-1206 (issued March 6, 2008); Docket No. 05-1349 (issued December 12, 2005); Order Dismissing Appeal, Docket
No. 03-0582 (issued June 29, 2004); Order Remanding Case, Docket No. 02-1171 (issued November 26, 2002);
Docket No. 98-1109 (issued May 17, 2000), petition for recon. denied, Docket No. 98-1109 (issued
December 18, 2000).
4

In mid-2014 OWCP updated the accepted conditions to include permanent aggravation of bilateral pes planus
(flat feet), permanent aggravation of bilateral plantar fibromatosis, bilateral tarsal tunnel syndrome, and mood disorder
due to chronic bilateral foot pain with major depressive-like episode.)
5

OWCP paid appellant wage-loss compensation on the periodic rolls commencing January 17, 2010.

6
The case record reveals that manual therapy techniques consisted of, but were not limited to, connective tissue
massage, joint mobilization/manipulation, manual traction, passive range of motion, soft tissue mobilization and
manipulation, and therapeutic massage.

2

supposed to introduce tissue vibrations thereby reducing edema and promoting continued local
circulation. Dr. Hogshead noted, “Less exotic methods such as massage are available at less
expense. Continued treatment with this device cannot be approved.”
By decision dated October 28, 2014, OWCP denied modification of its June 5, 2014
decision denying appellant’s request for authorization of foot therapy.
Appellant appealed to the Board and, by decision dated November 3, 2015,7 the Board set
aside OWCP’s June 5 and October 28, 2014 decisions, finding that the case was not in posture for
decision because there remained a conflict in the medical opinion evidence regarding appellant’s
need for foot therapy due to his accepted foot conditions. The Board remanded the case to OWCP
for referral of appellant to an impartial medical specialist to resolve this outstanding conflict.
In a May 23, 2016 medical report, Dr. Goodman posited that appellant had employmentrelated bilateral Achilles tendinitis and bilateral posterior tibial tendinitis and he requested that
appellant’s accepted conditions be expanded to include these conditions.
On September 9, 2016 OWCP expanded appellant’s accepted conditions to include
bilateral Achilles tendinitis and bilateral posterior tibial tendinitis.
In December 2016 OWCP referred appellant to Dr. Mark Beylin, a podiatrist, for an
impartial medical examination and opinion regarding appellant’s need for foot therapy to treat his
accepted medical conditions. Dr. Beylin’s office was located in Melbourne, Florida. The record
contains a document showing that numerous physicians were contacted before a physician deemed
suitable to conduct an impartial medical examination was found. The appointment was originally
scheduled for January 23, 2017 at 2:00 p.m. On the morning of January 23, 2017, appellant
contacted Dr. Beylin’s office to cancel the appointment; the appointment was later rescheduled for
March 27, 2017.
In a January 26, 2017 statement, appellant objected to the referral to Dr. Beylin because he
believed his physical condition prevented him from tolerating such a long trip from his residence
in Seminole, Florida, to see Dr. Beylin. In a January 26, 2017 report, Dr. Goodman indicated that
he did not believe “it would be easy” for appellant to travel to and from Dr. Beylin’s office.
By letter dated March 9, 2017, OWCP advised appellant that there had been significant
updates to his case in the several prior years, including the September 9, 2016 expansion of his
accepted conditions to include bilateral tendinitis and bilateral posterior tibial tendinitis. It advised
him that, therefore, it was appropriate to refer him for a second opinion specialist to evaluate his
need for foot therapy to treat his accepted medical conditions.
In a separate March 9, 2017 letter, OWCP advised appellant that he would be referred to a
second opinion specialist for examination and consideration of whether he required foot therapy
for treatment of his accepted medical conditions. It informed him that it had cancelled the
appointment with Dr. Beylin. OWCP advised appellant that, if he failed to keep the scheduled
appointment for a second opinion examination, he must provide notice in writing within seven
days from the time of the failure to appear. Only a legitimate, documented emergency would be
7

Supra note 3.

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deemed as an adequate basis for not keeping the appointment. OWCP further advised that, if
appellant failed to provide an acceptable reason for not appearing for the examination, or if he
obstructed the examination, his benefits would be suspended in accordance with section 8123(d)
of FECA. The letter was sent to appellant’s address of record in Seminole.
In a March 14, 2017 letter, appellant thanked OWCP for cancelling the appointment with
Dr. Beylin and he requested that he be scheduled for an examination with an impartial medical
specialist whose office was within 100 miles of his residence in Seminole, Florida.
By letter dated March 21, 2017, OWCP advised appellant of a second opinion examination
scheduled for April 7, 2017 at 11:15 a.m. Eastern Standard Time (EST) with Dr. William
Dinenberg, a Board-certified orthopedic surgeon, whose office was located in Tampa, Florida.
This letter was sent to appellant’s address of record in Seminole, Florida.
In an April 11, 2017 letter, a case coordinator for OWCP advised that appellant did not
attend the examination scheduled with Dr. Dinenberg for April 7, 2017.
In an April 26, 2017 notice of proposed suspension, OWCP advised appellant that 5 U.S.C.
§ 8123(d) provides that, if an employee refuses to submit to or obstructs an examination, his or her
right to compensation is suspended until the refusal or obstruction stops. It noted that he failed to
report for the examination with Dr. Dinenberg scheduled for April 7, 2017 and indicated that it
had not received a reason for his nonattendance. OWCP advised appellant that he must submit
new and pertinent explanation for not attending the examination with Dr. Dinenberg within 14
days of the notice of proposed suspension. If good cause was not established, entitlement to wageloss compensation or medical benefits would be suspended in accordance with 5 U.S.C. § 8123(d)
until he attended and fully cooperated with the examination. Appellant did not submit any
additional evidence/argument within the allotted period.
By decision dated May 16, 2017, OWCP suspended appellant’s entitlement to wage-loss
compensation and medical benefits, effective May 17, 2017, pursuant to 5 U.S.C. § 8123(d). It
found that he had failed to appear for the examination with Dr. Dinenberg scheduled for April 7,
2017 and that he had not provided good cause for his nonattendance.
On December 5, 2017 appellant requested reconsideration and argued that he had not
received the March 21, 2017 letter scheduling the examination with Dr. Dinenberg on
April 7, 2017. He also submitted medical evidence concerning his foot condition, including a
June, 22, 2017 report of Dr. Goodman. By decision dated March 5, 2018, OWCP denied
modification of its May 16, 2017 decision suspending appellant’s entitlement to wage-loss
compensation and medical benefits commencing May 17, 2017 under 5 U.S.C. § 8123(d).
On March 16, 2018 appellant requested reconsideration and again argued that he had not
received the March 21, 2017 letter scheduling the examination with Dr. Dinenberg. By decision
dated June 14, 2018, OWCP again denied modification of its March 5, 2018 decision regarding
the suspension of appellant’s entitlement to wage-loss compensation and medical benefits.

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LEGAL PRECEDENT
Section 8123(d) of FECA authorizes OWCP to require an employee, who claims disability
as a result of federal employment, to undergo a physical examination as it deems necessary.8 The
determination of the need for an examination, the type of examination, the choice of locale, and
the choice of medical examiners are matters within the province and discretion of OWCP.9
OWCP’s regulations provide that a claimant must submit to an examination by a qualified
physician as often and at such times and places as OWCP considers reasonably necessary.10
Section 8123(d) of FECA and OWCP regulations provide that, if an employee refuses to submit
to or obstructs a directed medical examination, his or her right to compensation is suspended until
the refusal or obstruction ceases.11 OWCP’s procedures provide that, before OWCP may invoke
these provisions, the employee is to be provided a period of 14 days within which to present in
writing his or her reasons for the refusal or obstruction.12 If good cause for the refusal or
obstruction is not established, entitlement to compensation is suspended in accordance with section
8123(d) of FECA.13
ANALYSIS
The Board finds that OWCP properly suspended appellant’s entitlement to wage-loss
compensation and medical benefits pursuant to 5 U.S.C. § 8123(d), effective May 17, 2017.
The Board has reviewed the evidence of record and notes that the record contains sufficient
evidence to establish that appellant failed to appear for a scheduled medical examination, without
good cause, within the meaning of section 8123 of FECA. In a March 21, 2017 letter, OWCP
advised appellant of a second opinion examination scheduled for April 7, 2017 at 11:15 a.m. EST
with Dr. Dinenberg, whose office was located in Tampa, Florida. Appellant did not appear for the
examination scheduled for April 7, 2017 and he failed to provide good cause for his nonattendance.
In an April 26, 2017 notice of proposed suspension, OWCP advised him that 5 U.S.C. § 8123(d)
provides that, if an employee refuses to submit to or obstructs an examination, his or her right to
compensation is suspended until the refusal or obstruction stops. It noted that appellant failed to
report for the examination with Dr. Dinenberg scheduled for April 7, 2017 and indicated that it
had not received a reason for his nonattendance. OWCP further advised him that he must submit
new and pertinent explanation for not attending the examination with Dr. Dinenberg within 14
days of the notice of proposed suspension. If good cause was not established, entitlement to wageloss compensation or medical benefits would be suspended in accordance with 5 U.S.C. § 8123(d)
until he attended and fully cooperated with the examination. Appellant did not submit any
additional evidence/argument within the allotted period.
8

5 U.S.C. § 8123(d).

9

L.B., Docket No. 17-1891 (issued December 11, 2018); J.T., 59 ECAB 293 (2008).

10

20 C.F.R. § 10.320.

11

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323; D.K., Docket No. 18-0217 (issued June 27, 2018).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13d (September 2010).
13

Id. at Chapter 2.810.13e.

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On appeal appellant contends that he had not received OWCP’s March 21, 2017 letter
advising him of the examination scheduled for April 7, 2017 with Dr. Dinenberg. Absent evidence
to the contrary, a letter properly addressed and mailed in the ordinary course of business is
presumed to have been received. This is known as the mailbox rule.14 OWCP’s March 21, 2017
letter was sent to appellant’s address of record at the time and is presumed to have been received
by him absent any notice of nondelivery. Appellant has not submitted evidence to rebut this
presumption.15
On appeal appellant also questions the propriety of his referral to a second opinion specialist
for an appointment in April 2017, rather than to an impartial medical specialist. The Board notes
that OWCP had advised appellant through a March 9, 2017 letter that his referral to a second opinion
specialist was appropriate given the updated nature of his case. OWCP explained to appellant that
referral for a second opinion examination was appropriate due to significant changes in his case as
evidenced by the September 9, 2016 expansion of his accepted conditions to include bilateral
tendinitis and bilateral posterior tibial tendinitis. As noted above, in its April 26, 2017 notice of
proposed suspension, OWCP afforded appellant 14 days to submit additional argument/evidence,
but he did not submit any additional evidence/argument within the allotted period.
The determination of the need for an examination, the type of examination, the choice of
locale, and the choice of medical examiners are matters within the province and discretion of
OWCP.16 Under the circumstances of the present case, the Board finds that OWCP did not abuse
its discretion in directing appellant to appear for a second opinion examination with
Dr. Dinenberg.17 OWCP’s actions in this regard were reasonable and it properly found that
appellant failed to provide good cause for not appearing for the examination with Dr. Dinenberg
scheduled for April 7, 2017.
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 properly suspended appellant’s entitlement to wage-loss
compensation and medical benefits commencing May 17, 2017 under 5 U.S.C. § 8123(d).

14

See James A. Gray, 54 ECAB 277 (2002).

15

The Board notes that appellant had responded to a March 9, 2017 letter which OWCP sent to his address of
record.
16

See supra note 9.

17
Abuse of discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deductions from established facts. See C.F.,
Docket No. 18-0791 (issued February 26, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the June 14 and March 5, 2018 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 16, 2019
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
PORTLAND INTERNATIONAL AIRPORT,
Portland, OR, Employer
__________________________________________

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

Docket No. 10-1723
Issued: August 23, 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 June 15, 2010 appellant filed a timely appeal of the February 5 and April 19, 2010
merit decisions of the Office of Workers’ Compensation Programs (OWCP) denying her
traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant’s injury on December 19, 2009 was sustained while in the
performance of duty.
FACTUAL HISTORY
On December 22, 2009 appellant, then a 57-year-old transportation security officer
(screener), filed a traumatic injury claim (Form CA-1) alleging that at 6:55 p.m. on
December 19, 2009 she sustained a right shoulder fracture. She had exited a door on the lower
level of the airport terminal between carousels number five and six when a passenger stopped her
to ask a question. After answering the question, appellant tripped over a roller bag of a second
1

5 U.S.C. § 8101 et seq.

individual and fell to the sidewalk. Her work shift was from 1:45 p.m. to 6:45 p.m. Wednesday
through Saturday. On the claim form, the employing establishment noted that appellant had
signed out to go home. Appellant was on her way to catch a bus to a parking lot when she was
stopped by a passenger.
By letter dated December 24, 2009, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It requested that she provide a physician’s report which
included findings from examination, the results of all x-ray and laboratory tests, a diagnosis and
medical opinion with medical rationale explaining how the reported work incident caused or
aggravated her claimed injury. OWCP also requested that the employer provide additional
information as to whether it owned, leased or controlled the property where the injury occurred;
a diagram of the area where the injury occurred; the exact time of injury; whether it owned,
leased, maintained or controlled the parking lot; whether parking spaces were checked for
unauthorized vehicles and by whom; whether the parking lot was for the exclusive use of federal
employees or used by the public; whether there were assigned parking spaces or a designated
area for employees; whether parking was provided without cost to employees and whether other
parking was available for employees.
Appellant submitted medical records pertaining to her right shoulder fracture and
treatment.
On December 19, 2009 the employing establishment contended that appellant was not in
the performance of duty when she provided customer service to a passenger who asked a
question regarding an air carrier. Appellant was off duty and still in uniform.
In an incident investigation report dated December 19, 2009, the employing
establishment stated that the incident of that date did not take place in its controlled area. It
occurred on a sidewalk outside baggage claim carousels number five and six. The employing
establishment contended that appellant’s injury was caused by inattention. In a January 7, 2010
letter, it advised that her injury occurred on property owned or managed by the Port of Portland.
Appellant’s shift had ended at 6:45 p.m. on December 19, 2009.
In a February 5, 2010 decision, OWCP denied appellant’s claim that she sustained an
injury in the performance of duty on December 19, 2009. It accepted that she tripped over a
passenger’s roller bag approximately 10 minutes after signing out from work and sustained a
right humerus fracture as a result of the fall. The injury did not occur on property owned, leased
or maintained by the employing establishment and was not compensable because it did not arise
out of the course of her federal employment. OWCP noted that appellant was on a sidewalk near
an exit door when she fell.
In a February 10, 2010 letter, appellant requested reconsideration. She contended that, as
a member of the customer service team, she was required to help passengers in all areas of the
airport. In a December 26, 2009 letter, appellant described the December 19, 2009 incident. She
signed out after completing her work shift at 6:45 p.m. As usual, appellant proceeded towards
the “employee bus.” She stated that people always stopped officers to ask for directions or help.
It was understood by all uniformed officers that they should help the public at all times.
Appellant answered a woman’s question regarding the location of her baggage. Another woman
was standing at the curb and holding the handle of a roller bag. As a car swerved in towards this
woman, she became startled and backed up with her bag. The bag moved into appellant’s path
2

and she clipped her left toe on the bag. Appellant lost her balance and fell to the ground onto her
right shoulder. She proceeded to the employee bus but discovered that she would not be able to
drive. Appellant returned to carousel number four and contacted Jerry Nichols, a supervisor,
who called paramedics and Marsha Shanahan, a screening manager. She was helped by the
paramedics until her husband arrived and then took her to Southwest Medical Center where she
was diagnosed as having a broken right humerus.
In correspondence dated July 15, 2008 through April 15, 2009, the employing
establishment noted that appellant was part of its customer service team and advised her about
upcoming training sessions.2
An undated and unsigned statement, Jerry Nichols noted that as immediate supervisor he
expected appellant to represent TSA and the mission by “being there for the traveling public.”
Appellant was expected to remain courteous and assist the public in any manner that would
facilitate their travel and movement throughout the airport.3
A second undated and unsigned statement from Don Headrick, a transportation security
manager, noted his expectation that all officers when in uniform represented TSA throughout
their commute to and from work. As a public service officer, appellant was expected to answer
questions, be helpful and assist the public as necessary while in uniform.4
By letter dated March 18, 2010, Rick Williams, an administrative officer, submitted
employing establishment directives regarding dress and appearance, responsibilities at work and
while off duty, and conduct when at work for transportation security officers. He contended that
appellant was off duty at the time of the December 19, 2009 incident as she had signed out at
6:45 p.m.
In a March 31, 2010 letter, appellant contended that the assistance she provided to the
passenger on December 19, 2009 was in accordance with the required behavior of a uniformed
officer and the training she received. To the best of her knowledge, uniformed officers were
required to help anyone in need of assistance particularly while on the employer’s property.
Officers were required to follow the employing establishment manuals and codes of dress and
ethics.
In letters dated March 31, 2010, Mr. Nichols and Diane Crofts, a supervisor, stated that
officers were expected to remain courteous and assist the public in any manner that would
facilitate travel and movement throughout the airport.
In an April 15, 2010 letter, Director Michael T. Irwin stated that Mr. Headrick did not
have the authority to change or modify employing establishment policy, which provided that
employees who were no longer on duty were not covered by FECA. Director Irwin contended
that appellant was off duty at the time of her December 19, 2009 injury. He stated that
2

It was noted that appellant would have the opportunity to complete “Engage” skills, in which team members
assisted VIPs, elected officials, passengers with special needs or those who just needed a little extra care and
attention as they process through security.
3

Appellant handwrote annotation that Mr. Nichol was her “Pass. Supervisor.”

4

Appellant identified Mr. Headrick as her “Pass. Screening Manager.”

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Mr. Headrick’s intent was to convey that the public views all uniformed employees as
representatives of the TSA, even if the employee was off duty. While on or off duty, employees
were expected to conduct themselves in a manner that did not adversely reflect on the employing
establishment or negatively impact its ability to discharge its mission, cause embarrassment, or
cause the public and/or the employer to question an employee’s reliability, judgment or
trustworthiness.
In an April 19, 2010 decision, OWCP denied modification of the February 5, 2010
decision. It found that appellant failed to establish that she was required to perform her work
duties as a transportation security screener while not on official duty.
LEGAL PRECEDENT
FECA provides for the payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.5 The phrase sustained
while in the performance of duty is regarded as the equivalent of the coverage formula
commonly found in workers’ compensation laws, namely, arising out of and in the course of
employment.6 In the course of employment relates to the elements of time, place and work
activity.7 To arise in the course of employment, an injury must occur at a time when the
employee may reasonably be said to be engaged in her master’s business, at a place when she
may reasonably be expected to be in connection with her employment and while she was
reasonably fulfilling the duties of her employment or engaged in doing something incidental
thereto. As to the phrase in the course of employment, the Board has accepted the general rule of
workers’ compensation law that, off-premises injuries sustained by employees having fixed
hours and place of work, while going to and from work, before or after work hours or during a
lunch period, are not compensable as they do not arise out of and in the course of employment,
but are merely the ordinary, nonemployment hazards of the journey itself that are shared by all
travelers.8 But, if the employee is on the premises of the employing establishment, an injury will
generally fall within the performance of duty.9
The term “premises,” as it is used in workers’ compensation law, is not synonymous with
property owned by the employer.10 The former does not depend on ownership, nor is it
necessarily coextensive with the latter. Moreover, in some cases premises may include all the
property owned by the employer; in other cases, even though the employer does not have
ownership or control of the place where the injury occurred, the place is nevertheless considered
part of the premises. The premises of the employer may, therefore, be broader or narrower than

5

5 U.S.C. § 8102(a).

6

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).
7

D.L., 58 ECAB 667 (2007).

8

See Denise A. Curray, 51 ECAB 158 (1999).

9

See Idalaine L. Hollins-Williamson, 55 ECAB 655 (2004).

10

Jimmie Brooks, 54 ECAB 248, 249 (2002).

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the property of the employer, depending more on the relationship of the property to the
employment than on the status or extent of legal title.11
An exception to the premises rule is the principle that course of employment should
include an injury that occurred at a point where the employee was within the range of dangers
associated with the employment.12 This is called the proximity rule and may cover an injury
which occurs off the employer’s premises but which occurred on the only route or at least on the
normal route, which employees must traverse to reach the plant. The special hazards of that
route become the hazards of the employment.13 Another such extension of the premises rule
occurs when an employee must travel a public thoroughfare to traverse between two premises of
the employer.
OWCP is not a disinterested arbiter but rather performs the role of adjudicator on the one
hand and gatherer of relevant facts and protector of the compensation fund on the other, a role
that imposes an obligation on OWCP to see that its administrative processes are impartially and
fairly conducted.14 While a claimant has the burden of proof to establish entitlement to
compensation, OWCP shares responsibility in the development of the claim.15
ANALYSIS
The Board finds that the case is not in posture for decision.
Appellant stated that she tripped and fell at 6:55 p.m. on December 19, 2009 after exiting
through doors on the lower level of the airport terminal located between baggage carousels
number five and six, about 10 minutes after she signed out from work and end of her shift. She
was stopped by a passenger and asked a question concerning an air carrier. Appellant did not see
another passenger’s roller bag and tripped, sustaining a fracture of her right shoulder. OWCP
denied her claim on the grounds that her injury occurred off premises after she signed out from
work and while on her way home.
The Board notes that OWCP did not adequately develop the evidence to support this
finding. Appellant works as a transportation security officer at an international airport. In this
case, it is not clear from the record where the federal premises began or where it ends. Before
OWCP can support a finding that appellant was off premises, it must first establish the
parameters of the premises. The mere fact that appellant’s injury occurred in an area of the
airport that is not federally owned or operated or maintained by her employer is not dispositive.
The employer’s premises may well extend beyond the immediate ground upon which appellant
performs her screening duties inside the airport.

11

Linda D. Williams, 52 ECAB 300 (2001). See also Wilmer Lewis Prescott, 22 ECAB 318 (1971).

12

Id.; Michael K. Gallagher, 48 ECAB 610 (1997).

13

Id.

14

Thomas M. Lee, 10 ECAB 175 (1958).

15

See William J. Cantrell, 34 ECAB 1233 (1983); Gertrude E. Evans, 26 ECAB 195 (1974).

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This case is similar to Donald R. Gervasi,16 where the employee fell following the end of
his work shift on the first floor of the airport terminal while entering elevator doors.17 The Board
noted the fact that his employer did not control or own the location where the injury occurred did
not resolve the question as to the extent of the premises. Similarly, in D.T.,18 the employee fell
on pavement while walking from Terminal B on his lunch break back to Terminal A where his
duty station was located. The Board found that the factual evidence of record was not
sufficiently developed by OWCP to permit a fully informed adjudication of the premises issue.
It stated:
“The mere fact that [the employee’s] injury occurred in an area of the airport that
is not federally owned or operated or maintained is not dispositive. The
employer’s premises may well extend beyond the immediate ground upon which
[the employee] performs his screening duties inside Terminal A East. The
premises could extend to bathrooms and restaurants and other public areas of the
airport that are not owned or operated or maintained by the [F]ederal
[G]overnment. The premises could extend to any place on the airport grounds
where [he] might reasonably be expected to be in connection with his
employment….”19
In this case, the premises of the employer could extend to the sidewalk outside the airport
terminal and other public areas that are not owned or operated or maintained by the Federal
Government where appellant might reasonably be expected to be in connection with her
employment and this may depend on whether the employing establishment instructed her to
assist passengers only at certain designated locations inside the airport or whether she was
expected to assist passengers outside the airport terminals or building. There is no detailed
description pertaining to the location of appellant’s duty station, the location of her injury and the
routes of ingress or egress from the airport terminal. Appellant’s injury may also be
compensable if the employer provided a shuttle bus as the means for appellant to get to her car
and if the parking lot where her car was located was used exclusively or principally by
employees for the employer’s convenience. The record on appeal does not allow the Board to
make a fully informed adjudication of this claim.
Appellant contended that, as a member of the customer service team, she received
training by her employer as to uniformed officers assisting the public throughout the airport. In
support of her contention, Mr. Headrick and Mr. Nichols stated that all officers were expected to
assist the public in any manner, including answering questions, at all times throughout the
airport. Although Mr. Irwin stated that Mr. Headrick did not have the authority to change or
16

57 ECAB 281 (2005).

17

The fact that appellant sustained injury 10 minutes after she signed out is not dispositive of her claim. An
employee going to or coming from work is covered under workers’ compensation while on the premises of the
employer, so long as the interval before or after work is reasonable and the employee is engaged in incidental acts.
See Narbik A. Karamian, 40 ECAB 617 (1989). Compare Cemeish E. Williams, 57 ECAB 509 (2006) (The
employee arrived 15 minutes before her work shift at the airport and was injured on an escalator while adjusting her
uniform. The Board found OWCP did not meet its burden of proof to rescind acceptance of the claim).
18

Docket No. 07-985 (issued October 22, 2008).

19

Id.

6

modify the policy that off-duty employees were not covered by FECA, the record does not
contain a copy of the employer’s policy regarding this matter. Based on the statements of
appellant, Mr. Headrick, Mr. Nichols and even Mr. Irwin, the record is unclear as to whether
appellant was given additional work duties by her managers or whether it is customary for offduty employees in uniform to continue to serve the public. This aspect of the claim was not fully
developed by OWCP.
For these reasons, the Board will set aside OWCP’s decisions denying appellant’s claim
of injury and remand the case for further development of the evidence. After such development
as it deems necessary; OWCP shall issue an appropriate decision on her claim for compensation.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
was injured on December 19, 2009 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the April 19 and February 5, 2010 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this decision.
Issued: August 23, 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

7


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

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

Docket No. 19-0401
Issued: July 23, 2019

Case Submitted on the Record

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

JURISDICTION
On December 13, 2018 appellant, through counsel, filed a timely appeal from an
October 16, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a right shoulder
condition causally related to the accepted May 3, 2017 employment incident.
FACTUAL HISTORY
On July 3, 2017 appellant, then a 29-year-old mail processing clerk, filed a traumatic injury
claim (Form CA-1) alleging that she sustained a right shoulder/cuff injury on May 3, 2017 due to
overhead lifting and pushing while in the performance of duty. She stopped work on May 3 and
returned to work on June 25, 2017.
In a May 3, 2017 return to work/disability slip, Dr. Patrycia Czesnowski, a Board-certified
family practitioner, placed appellant on work restrictions including no right arm work for the next
three weeks.
In a May 3, 2017 statement, appellant explained that she was experiencing numbness,
tingling, and sharp pains in the entire side of her right arm and shoulder. She indicated that
Dr. Czesnowski diagnosed “a rotator cuff injury/right shoulder pain due to constant pushing and
overhead lifting movements at work.”
Dr. Czesnowski completed a May 9, 2017 request for light duty and provided restrictions
for the right arm.
On July 3, 2017 appellant’s supervisor noted that appellant had arrived at work on May 3,
2017 with her arm in a sling. She indicated that, when she questioned appellant if her injury
occurred on the job, appellant replied “no” and indicated that she could not recall when the injury
occurred.
In a July 6, 2017 treatment note, Dr. Czesnowski related that appellant had been her patient
since July 28, 2016. She noted that appellant was diagnosed on May 3, 2017 with right shoulder
pain/cuff injury which was work related. Dr. Czesnowski indicated that appellant could sustain
further injury if she continued work. She recommended a return to work on July 7, 2017 with no
pushing, pulling, or overhead lifting of more than 10 pounds.
OWCP also received July 17, 2017 emergency room treatment notes from Dr. Brian
Tweddle, Board-certified in emergency medicine. Dr. Tweddle indicated that appellant sought
treatment for a right rotator cuff injury and right shoulder pain from an injury on May 3, 2017.
In a development letter dated August 14, 2017, OWCP informed appellant that additional
evidence was needed in support of her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. OWCP also asked appellant to

2

clarify whether she was claiming a traumatic injury or occupational disease. It afforded her 30
days to provide the requested evidence.
OWCP received May 3 and 6, June 27, July 6, 17, and 25, and August 22, 2017 treatment
notes from Dr. Czesnowski, in which she reiterated appellant’s diagnosis and work restrictions.
A July 13, 2017 magnetic resonance imaging (MRI) scan read by Dr. Jeffrey S.
Mitchinson, a Board-certified diagnostic radiologist, revealed multiple findings regarding
appellant’s right shoulder, including degeneration, ossification, an os acromiale, tears and
tendinitis of the rotator cuff, and mild bursitis.
In an August 22, 2017 statement, appellant indicated that her condition developed over
time. She also described her physical duties which were repetitive in nature and involved pushing,
pulling, lifting, and overhead activities.
By decision dated September 28, 2017, OWCP treated the claim as one for a traumatic
injury accepted that the employment events of May 3, 2017 occurred as alleged. It denied the
claim finding that appellant had not met her burden of proof to establish a diagnosed medical
condition causally related to the accepted employment incident. OWCP concluded, therefore, that
the requirements had not been met to establish an injury as defined by FECA.
On October 26, 2017 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
OWCP received a copy of Dr. Czesnowski’s August 22, 2017 treatment notes.
Dr. Czesnowski continued to treat appellant for right shoulder pain on September 19, 2017.
A telephonic hearing was held on March 16, 2018. Appellant provided testimony and the
hearing representative held the case record open for 30 days for the submission of additional
evidence.
OWCP received copies of previously submitted reports.
By decision dated May 30, 2018, OWCP’s hearing representative affirmed the
September 28, 2017 decision.
On July 6, 2018 appellant, through counsel, requested reconsideration and submitted
additional medical evidence.
In a June 5, 2018 report, Dr. Czesnowski noted that appellant had been a patient since
July 28, 2016. She indicated that appellant sustained a right shoulder rotator cuff injury on
May 3, 2017. Dr. Czesnowski advised that appellant was never diagnosed with a right shoulder
condition prior to the accepted May 3, 2017 employment incident. She noted that she reviewed
the July 12, 2017 MRI scan of the right shoulder and opined that the “injury was most likely
brought on by repetitive right arm movements performed at work.” Dr. Czesnowski also noted
that she read appellant’s August 22, 2017 statement and further opined that appellant was unable

3

to perform any type of work that involved her right arm and that she needed further medical
treatment to improve her right shoulder function and reduce her pain.
By decision dated October 16, 2018, OWCP denied modification of the May 30, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.6 The second component is whether the employment incident caused a personal injury.7
Rationalized medical opinion evidence is 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 incident.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to the accepted May 3, 2017 employment incident.
In support of her claim, appellant submitted a July 6, 2017 treatment note, in which
Dr. Czesnowski opined that appellant had “right shoulder pain/cuff injury” which was work
3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

8

S.S., Docket No. 18-1488 (issued March 11, 2019).

4

related. The Board has held that under FECA the assessment of pain is not considered a diagnosis
as pain merely refers to a symptom of an underlying condition.9 As she failed to provide a firm
medical diagnosis and provided no rationalized explanation regarding causal relationship,
Dr. Czesnowski’s report is insufficient to establish that the employment incident physiologically
caused a diagnosed condition.10
In a June 5, 2018 report, Dr. Czesnowski opined that the “injury was most likely brought
on by repetitive right arm movements performed at work.” This report attempts to address causal
relationship, but is also of limited probative value, as it is couched in speculative terms.11
OWCP received several other reports from Dr. Czesnowski, including return to
work/disability slips providing work restrictions for the right arm dated May 3 and 9, 2017 and
treatment notes dated August 22 and September 19, 2017. While Dr. Czesnowski provided work
restrictions, she offered no description of the employment incident, no diagnosis, and no opinion
regarding causal relationship. As these reports were not based on a complete factual background,
and did not explain the nature of the relationship between the diagnosed condition and the specific
employment incident, with supporting medical rationale, they were of limited probative value.12
OWCP also received July 17, 2017 emergency room treatment notes from Dr. Tweddle,
who indicated that appellant sought treatment for a right rotator cuff condition and right shoulder
pain from a May 3, 2017 injury. However, Dr. Tweddle did not explain how a diagnosed condition
was causally related to the accepted employment incident. Medical evidence that does not offer
any opinion regarding the cause of an employee’s condition is of no probative value on the issue
of causal relationship.13
The diagnostic report dated July 13, 2017, interpreted imaging studies and provided
diagnostic findings. The Board has held, however, that diagnostic reports lack probative value as
they do not address whether the employment incident caused the diagnosed conditions.14
Because the medical reports of record do not adequately address how the accepted May 3,
2017 employment incident caused a diagnosed medical condition, the reports are insufficient to

9

M.V., Docket No. 18-0884 (issued December 28, 2018). The Board has consistently held that pain is a symptom,
rather than a compensable medical diagnosis. See P.S., Docket No. 12-1601 (issued January 2, 2013); C.F., Docket
No. 08-1102 (issued October 10, 2008).
10

J.M., Docket No. 17-1002 (issued August 22, 2017).

11

The Board has held that speculative and equivocal medical opinions regarding causal relationship have no
probative value. R.C., Docket No. 18-1695 (issued March 12, 2019); see Ricky S. Storms, 52 ECAB 349 (2001)
(While the opinion of a physician supporting causal relationship need not be one of absolute medical certainty, the
opinion must not be speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty).
12

Supra note 8.

13

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

14

T.C., Docket No. 18-1498 (issued February 13, 2019).

5

establish entitlement under FECA.15 Accordingly, appellant has not met her burden of proof to
establish a traumatic injury claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to the accepted May 3, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the October 16, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 23, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

15

D.H., Docket No. 17-1913 (issued December 13, 2018); see Linda I. Sprague, 48 ECAB 386 (1997).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Orange, CA, Employer
__________________________________________

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Appearances:
Linda Temple, for the appellant
Office of Solicitor, for the Director

Docket No. 07-1684
Issued: May 2, 2008

Case Submitted on the Record

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

JURISDICTION
On May 22, 2007 appellant filed a timely appeal of a February 16, 2007 merit decision of
the Office of Workers’ Compensation Programs denying his claim for a September 11, 2004
injury to his low back and right wrist. Pursuant to 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 sustained an injury in the performance of duty on
September 11, 2004.
FACTUAL HISTORY
On September 11, 2004 appellant, then a 45-year-old letter carrier, filed a claim for a
traumatic injury to his low back and right wrist when he slipped and fell on water that
overflowed from a urinal. He received medical care the same day and returned to modified work
on September 15, 2004. The employing establishment noted that appellant was in the
performance of duty but disputed that the floor was wet.

In a September 22, 2004 letter, the Office advised appellant that additional factual and
medical evidence was needed. The Office asked that he address the factual circumstances of the
incident and submit a physician’s opinion on causal relationship.
In response, appellant disagreed with his employer’s statement that there was no water on
the floor of the men’s restroom which caused him to fall. He stated that, after he fell, he stayed
on the floor for a bit while trying to get up. When appellant found he could not get up off the
floor, he used his cellular telephone to call for help. While he was making the call, Craig Follett,
an employee, came into the restroom and told appellant to stay down until a supervisor came.
Appellant advised that water was going down a drain beneath the urinal and that it took several
minutes for the paramedics to arrive. Mr. Follett gave him paper towels to wipe the water and
soot that was on his shoes. He noted that the urinal in question leaked periodically. A copy of a
September 30, 2004 Safety and Health Deficiency Report noted that the men’s restroom in
question had plumbing connection leaks at Faucet Number 2 and Flush Value Number 3.
In an October 6, 2004 statement, Mr. Follett stated that, just before 1:00 p.m. on
September 11, 2004, he entered the men’s restroom and found appellant on the floor, in
considerable pain and unable to get to his feet. Appellant told him of attempting to stop a
defective urinal from overflowing and that he slipped and fell on the wet floor. Mr. Follett stated
that the floor was very wet in the area of the urinals and he had assisted appellant by giving him
some dry paper towels to dry off his shoes. He stated that appellant was unable to get up by
himself and required assistance from the paramedics.
A copy of the Orange County Emergency Medical Service report indicated that an alarm
was sounded at 12:49 p.m. for a slip and fall in a restroom. They arrived at 12:55 p.m.
Conditions of right wrist, tailbone and lower back pain were reported.
In a September 20, 2004 Form CA-16, Dr. Aaron Gloskowski, a family practitioner,
noted that appellant was in a restroom at work, where he slipped and fell on water, landing on his
buttocks and right hand. He diagnosed lumbosacral joint disorder, lumbar radiculitis, wrist
sprain/strain and right wrist tenosynovitis. Dr. Gloskowski noted, with a checkmark “yes,” that
the conditions were caused or aggravated by the employment activity described. He opined that
appellant was able to perform modified work with restrictions. In a September 20, 2004 duty
status report, Dr. Gloskowski noted that appellant’s left foot slipped on a wet floor in a men’s
restroom. Appellant fell backwards while doing the splits and braced himself with his right hand
while landing on the floor with his right wrist and buttocks. Dr. Gloskowski provided findings
on examination. He opined that appellant’s injuries were caused or aggravated by his
employment as there clearly was a fall at work and appellant’s injuries were consistent with the
mechanism of injury. Dr. Gloskowski stated that appellant sustained an acute traumatic
contusion to the right wrist which hyperextended and the dorsal compartment and the tendons in
that area became inflamed. With regard to the lumbar spine, he noted that appellant landed on
his tailbone, which generated a vertical force vector and created compression to the entire spine,
most severe in the lumbar area as that was the area of contact with the floor. Dr. Gloskowski
also opined that appellant sustained a cervical sprain as it incorporated some of the horizontal
force vectors. He noted that appellant’s complaints were common to this mechanism of annulartype injury. Dr. Gloskowski provided additional duty status reports of September 30, October 1
and November 2, 2004, noting appellant’s restrictions.

2

The employing establishment controverted the claim. On October 8, 2004 Jon Brennan,
supervisor of customer service, stated that on September 11, 2004 at approximately 1:15 p.m. he
received a call from appellant advising that he was in the men’s restroom and could not get up.
He immediately went to the restroom and observed appellant lying on the floor. Mr. Brennan
called “911.” When he asked appellant what happened, appellant stated that he slipped and fell
on some water. Mr. Brennan looked around, but could not see any dampness. He stated that the
urinal was not overflowing, the floor was not wet and appellant’s clothing was not wet. After the
paramedics left with appellant, Mr. Brennan took pictures showing that there was no water on
the floor. Pictures to support his statement were submitted into the record.
In an October 6, 2004 statement, Victoria I. Lopez, the postmaster’s secretary, stated that
on September 11, 2004 at approximately 1:15 p.m. paramedics were called. She went back to
the restroom to see what happened. Ms. Lopez stated that appellant called Mr. Brennan from the
men’s restroom stating that he was lying on the restroom floor and could not move. She stated
that she saw appellant lying on the floor and, when she asked the paramedics what happened, she
was told that appellant slipped on the floor and they were going to take him to the hospital.
When the paramedics picked appellant up, she did not see anything wet on his shorts. After the
paramedics left, she and Mr. Brennan looked at the floor, which was not wet, but the urinal was.
She stated that Mr. Brennan took pictures of the floor.
By decision dated December 2, 2004, the Office denied appellant’s claim on the grounds
that fact of injury was not established. It stated that the evidence submitted was insufficient to
establish that he slipped on a wet floor, as alleged.
On November 21, 2005 appellant requested reconsideration. He stated that Mr. Brennan
came to the restroom but never went to the area in question to see if it was wet. Appellant
denied seeing Ms. Lopez in the restroom. He stated that Jose Santa Maria, a coworker, came
into the restroom while the paramedics were working on him and later told him that the floor was
wet around the urinal. In describing the incident, appellant had jiggled the handle of the urinal to
stop it from overflowing and his feet slipped when he stepped back from it. He noted that his
shorts would not have been wet as the water did not reach where he landed. Pictures of the
urinal area were provided together with a copy of appellant’s cellular telephone record of
September 11, 2004, which indicated a 12:43 p.m. call to the employee call line.
Mr. Maria advised that on September 11, 2004 he went into the restroom and saw
paramedics working on appellant. He noticed that the floor was damp around the next urinal like
it had just been mopped. Mr. Maria stated that the urinal would overflow at times after flushing
as it had not been “fixed.”
In an undated statement, Mr. Follett advised that appellant was on his cellular telephone
when he found him in the restroom. Mr. Brennan came into the restroom approximately one
minute later. He stated that Mr. Brennan insisted on calling an ambulance and asked that he stay
with appellant until help arrived. Mr. Follett stated that Mr. Brennan never came back into the
restroom or viewed the area where the water would overflow from the urinal. He noted that
Ms. Lopez never entered the restroom while he was there.

3

In a September 15, 2004 report, Dr. Dennis N. Phan, an employing establishment
physician, noted that appellant stated that he fell at work on Saturday, landing on his right
buttock/lower lumbar area and broke his fall with his right hand/wrist. He provided findings on
examination and diagnosed contusion of the buttocks and lumbar strain. Dr. Phan indicated that
appellant should be on modified activity. In form reports dated December 5 and 28, 2004 and
January 6, 2005, he attached a copy of his September 15, 2004 report and opined, with a
checkmark yes, that the findings and diagnosis were consistent with appellant’s account of
injury.
By decision dated January 23, 2006, the Office denied modification of its December 2,
2004 decision. It found that appellant had not established that he was injured in the manner
alleged as the statements of Mr. Brennan and Ms. Lopez negated his version of how the incident
occurred.
On November 22, 2006 appellant requested reconsideration. His representative argued
that appellant’s evidence was more persuasive than the conflicting negative statements. In an
undated statement, Mr. Follett stated that he wiped water and wet pieces of paper towels from
appellant’s shoes on September 11, 2004.
In a November 4, 2006 statement, Kevin McMillan, a union safety officer, advised that
on November 1, 2006 he went with appellant and Supervisor Brennan to the restroom and had
appellant recount how he fell. He stated that appellant approached the first urinal and was
attempting to hit the flush value because it was running and leaking on the ground.
Mr. McMillan also asked Mr. Brennan to explain why appellant stated he slipped on a wet floor
if he did not see any water. Mr. Brennan stated that his focus was not on any water on the
ground but in getting appellant medical help. He also stated that there was a drain right next to
where appellant claimed to have slipped and acknowledged that maybe the water went down the
drain. Mr. Brennan acknowledged that he was aware of urinals leaking, but not the one in
question.
By decision dated February 16, 2007, the Office denied modification of its January 23,
2006 decision. It found that the evidence provided failed to establish that appellant was injured
in the manner alleged. The Office noted that there was conflicting statements regarding what in
fact happened, including negative statements from appellant’s supervisor and a witness which it
considered to be strong and persuasive evidence.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act1 provides for the payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.2 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
“arising out of and in the course of employment.” “In the course of employment” relates to the
1

5 U.S.C. §§ 8101-8193.

2

5 U.S.C. § 8102(a).

4

elements of time, place and circumstance. To arise in the course of employment, an injury must
occur at a time when the employee may be reasonably said to be engaged in the master’s
business, at a place where he may reasonably be expected to be in connection with the
employment and while he was reasonably fulfilling the duties of his employment or engaged in
doing something incidental thereto.3 The employee must also establish an injury “arising out of
the employment.” To arise out of employment, the injury must have a causal connection to the
employment, either by precipitation, aggravation or acceleration.4
It is well settled that an employee who within the time and space limits of employment
engages in an act that ministers to personal comfort, health, or necessity does not leave the
course of employment. An injury sustained on the employee’s way to, from, or during a period
of ministering to such needs is compensable as arising out of and in the course of employment,
unless there is a departure so great that an intent to abandon the job temporarily may be inferred,
or unless the conduct cannot be considered an incident of the employment.5 Accidents occurring
while an employee is going to or from toilet facilities, or during the use of toilet facilities, are
generally recognized as arising within the course of employment, subject only to the possible
question of reasonableness of the means or the place chosen.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he 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
ANALYSIS
In the instant case, appellant fell in a bathroom at the employing establishment on
September 11, 2004. His supervisor acknowledged that this incident occurred but disputed
whether the bathroom floor was wet. The Office denied the claim on the grounds that fact of
injury was not established, noting statements from the supervisor and Ms. Lopez.

3

Timothy K. Burns, 44 ECAB 125 (1992).

4

John B. Shutack, 54 ECAB 336 (2003); see also Bettina M. Graf, 47 ECAB 687 (1996).

5

See, e.g., Dorothy F. Huber, 19 ECAB 147 (1967) (the Board found that a mail carrier who was injured in an
automobile accident while driving home to change her wet uniform before resuming duties at the employing
establishment was in the performance of duty at the time of injury because the purpose of her travel home was not
purely personal in nature, but inured to the benefit of the employing establishment).
6

Sari A. Shapiroholland, 47 ECAB 682 (1996).

7

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
8

See id. For a definition of the term injury, see 20 C.F.R. § 10.5(ee).

5

The Board finds that the weight of the probative evidence of record establishes that the
September 11, 2004 fall occurred in the course of appellant’s employment under the personal
comfort doctrine. At the time of his fall, appellant was ministering to his personal comfort by
using a urinal. There is no evidence of an idiopathic condition or anything to take the activity
outside of employment.9 There is no evidence that appellant was engaged in any activity that
could be deemed an abandonment of his employment at the time he fell. The personal comfort
doctrine evolved to provide coverage to employees while injured on the employing establishment
premises when ministering to their personal comfort.10 The issue of whether or not the bathroom
floor was wet is not dispositive of appellant’s claim. The Board finds that the personal comfort
doctrine applies and appellant was in the performance of duty when he fell at work.
The Board notes that the medical evidence of record establishes that the September 11,
2004 employment incident caused an injury. Dr. Gloskowski explained how appellant’s fall at
work caused injury and he diagnosed lumbosacral joint disorder, lumbar radiculitis, wrist
sprain/strain and right wrist tenosynovitis. Dr. Phan diagnosed a contusion of the buttocks and
lumbar strain as a result of appellant’s slip and fall. The Board finds that the medical evidence
establishes that the September 11, 2004 employment incident caused a personal injury. Since the
Office did not evaluate the medical evidence of record, the case will be remanded for
development as to the nature and extent of appellant’s injuries and any resulting periods of
disability.
CONCLUSION
The Board finds that appellant has established that he sustained an injury in the
performance of duty on September 11, 2004.

9

See Maria G. Marello, 52 ECAB 363 (2001).

10

See supra notes 5 and 6.

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ORDER
IT IS HEREBY ORDERED THAT the February 16, 2007 decision of the Office of
Workers’ Compensation Programs be reversed. The case is remanded to the Office for a de novo
decision on the extent of any disability and medical conditions causally related to the injury.
Issued: May 2, 2008
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ROYAL C. JOHNSON VETERANS
MEMORIAL HOSPITAL, Sioux Falls, SD,
Employer
__________________________________________

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

Docket No. 20-0338
Issued: October 9, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On December 2, 2019 appellant filed a timely appeal from a September 18, 2019 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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 18, 2019 decision, OWCP received additional evidence. However,
the Boards 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 appellant has met her burden of proof to establish that the acceptance
of her claim should be expanded to include tendinitis of flexor and extensor tendons of the thumb
as causally related to her accepted January 8, 2019 employment injury.
FACTUAL HISTORY
On January 8, 2019 appellant, then a 52-year-old registered nurse, filed a traumatic injury
claim (Form CA-1) alleging that on that day she was involved in a motor vehicle accident and
sustained a concussion and injured her right hip, bilateral knees, and right shoulder while in the
performance of duty. OWCP accepted her claim for concussion without loss of consciousness and
later expanded her claim to include aggravation of acromioclavicular (AC) joint, arthropathy of
the right shoulder, rotator cuff tendinopathy of the right shoulder, contusion of the right shoulder,
strain of the right shoulder, contusion of the right hip, contusion of the right knee, and contusion
of the right wrist.3 Appellant stopped work on January 8, 2019 and returned to work full-time light
duty on January 14, 2019. She was paid on the supplemental rolls for the periods April 17 to 22,
2019, April 28 to May 25, 2019 and June 9 to June 22, 2019.
Appellant submitted emergency room notes from Dr. Glen Harden, Board-certified in
emergency medicine, dated January 8, 2019. She reported driving through an intersection when
she was “T-boned” on the passenger side by another vehicle. Dr. Harden reported that she had
some discomfort in the distal right thumb and there was a little bit of blood. He observed that it
looked like her fingernail might have been distracted slightly, but there was no deformity.
Dr. Harden also observed tenderness about the right hip and both knees. He diagnosed grade two
concussion and various aches, strains, and muscle pains secondary to motor vehicle accident.
In a statement dated May 1, 2019, appellant provided a summary of her injuries sustained
during the January 8, 2019 accident. She reported persistent abdomen pain that necessitated an
emergency room visit on January 11, 2019 and submitted a computerized tomography scan which
revealed an unresolved contusion consistent with a seatbelt injury. Appellant noted that she
continued to have residuals of her concussion in the form of difficulty with emotional
dysregulation, headaches, dizziness, and tinnitus. She noted left posterior shoulder pain where the
seatbelt was secured, right shoulder bicep pain, and left knee pain which was slowly resolving.
Appellant complained of bilateral thumb pain which was not improving.
Appellant attended physical therapy treatment from May 23 to July 25, 2019.

3

On March 8, 2019 OWCP further developed appellant’s claim which included referring her to Dr. Paul Cederberg,
a Board-certified orthopedic surgeon, for a second opinion examination and opinion on appellant’s employmentrelated conditions and disability. In a May 9, 2019 medical report, Dr. Cederberg diagnosed contusion and strain of
the right shoulder, contusion of the right hip and knee, contusion of the right wrist, and grade II concussion, resolved.
In an addendum report dated June 19, 2019, he opined that the aggravation of the right shoulder ceased as of
June 10, 2019. On July 2, 2019 Dr. Cederberg opined that the right shoulder injury had not resolved as of June 10,
2019 and additional treatment was needed for the temporary aggravation of the right shoulder. He did not evaluate
appellant’s complaints of tenderness in the right anterior biceps of the shoulder and her thumbs.

2

On July 12, 2019 Dr. Mathew A. Shehan, a Board-certified internist, treated appellant for
injuries sustained in a motor vehicle accident that occurred on January 8, 2019. Appellant reported
persistent discomfort in her left thumb. Dr. Shehan opined that it was “probably” related to
tendinitis of flexors and extensor tendons of her thumb. He noted that appellant did not have these
symptoms prior to the accident and opined that they were directly related to the injury sustained
in the motor vehicle accident.
In a development letter dated August 16, 2019, OWCP advised appellant that Dr. Shehan’s
report was insufficient and informed her of the type of evidence required to support that the
acceptance of her claim should be expanded to include her recent diagnosis of tendinitis of the
flexor and extensor tendons of her thumb, including a rationalized medical report explaining how
the diagnosed condition was caused or aggravated by her accepted employment injury. It afforded
her 30 days to submit the necessary evidence.
On August 20, 2019 Dr. David B. Jones, a Board-certified orthopedist, evaluated appellant
for bilateral thumb injuries. Appellant reported being involved in a motor vehicle accident on
January 8, 2019 in which she had her hands on the steering wheel and sustained a significant
impact with the immediate onset of pain. Appellant reported improvement with the right thumb,
but persistent pain of the left thumb localized about the metacarpophalangeal (MCP) joint. His
physical examination revealed tenderness about the MCP joint and the radial and ulnar collateral
ligament. Dr. Jones noted that x-rays of the left thumb were negative for fracture or subluxation.
He diagnosed left thumb MCP joint injury with “possible volar plate versus ulnar collateral
ligament avulsion” and recommended a magnetic resonance imaging scan. In a return to work
form of even date, Dr. Jones advised that appellant could return to work without limitations on
August 20, 2019.
In a statement dated August 26, 2019, appellant reported continued complaints of bilateral
thumb pain since her January 8, 2019 employment injury. She indicated that her left thumb injury
was not a new complaint, as she first reported pain in her left thumb when she visited the
emergency department immediately following her accident. Appellant noted that it was her belief
that the bilateral thumb injuries were a result of the manner in which her thumbs rested on the
steering wheel at the time of the accident.
By decision dated September 18, 2019, OWCP denied expansion of the acceptance of
appellant’s claim, finding that the medical evidence of record was insufficient to establish that the
additional condition of tendinitis of flexor and extensor tendons of the thumb is causally related to
the accepted January 8, 2019 employment injury.
LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.4

4

See T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).

3

To establish causal relationship, the employee must submit rationalized medical opinion
evidence.5 The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the accepted employment injury.6 The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested, and the medical
rationale expressed in support of the physician’s opinion.7
ANALYSIS
The Board finds that appellant has not established that the acceptance of her claim should
be expanded to include tendinitis of the flexor and extensor tendons of her thumb as causally
related to her accepted January 8, 2019 employment injury.
OWCP accepted that appellant sustained a concussion without loss of consciousness,
aggravation of AC joint, arthropathy of the right shoulder, rotator cuff tendinopathy of the right
shoulder, contusion of the right shoulder, strain of the right shoulder, contusion of the right hip,
contusion of the right knee, and contusion of the right wrist while in the performance of duty. By
decision dated September 18, 2019, it denied her request to expand the acceptance of her claim to
include tendinitis of the flexor and extensor tendons of her thumb.
In support of her request for claim expansion, appellant submitted a July 12, 2019 report
from Dr. Shehan who treated her for persistent discomfort in her left thumb following a motor
vehicle accident that occurred on January 8, 2019. Dr. Shehan opined that it was “probably”
related to tendinitis of flexors and extensor tendons of her thumb. He noted that appellant was
asymptomatic prior to the accident and therefore he concluded that these symptoms were directly
related to the motor vehicle accident. The Board has held that the mere fact that symptoms arise
during a period of employment or produce symptoms revelatory of an underlying condition does
not establish a causal relationship between a diagnosed condition and employment factors.8 A
medical opinion must provide an explanation of how the specific employment incident or
employment factors physiologically caused or aggravated the diagnosed conditions.9 Further, the
Board has held that medical opinions that suggest that a condition was “probably” caused by work
activities are speculative or equivocal in character and have limited probative value.10 As such,
this report from Dr. Shehan did not offer a rationalized medical opinion explaining causal
relationship and is insufficient to establish appellant’s claim to expand the accepted conditions.

5

See S.A., Docket No. 18-0399 (issued October 16, 2018).

6

See P.M., Docket No. 18-0287 (issued October 11, 2018).

7

Id.

8

A.S., Docket No. 19-1955 (issued April 9, 2020).

9

G.L., Docket No. 18-1057 (issued April 14, 2020).

10

J.W., Docket No. 18-0678 (issued March 3, 2020).

4

On August 20, 2019 Dr. Jones discussed appellant’s motor vehicle accident of January 8,
2019 in which she sustained a significant impact to her hands and an immediate onset of pain. He
diagnosed left thumb MCP joint injury with “possible” volar plate versus ulnar collateral ligament
avulsion. However, Dr. Jones’ opinion that appellant sustained a “possible” volar plate versus
ulnar collateral ligament avulsion is not a definitive opinion, but rather, speculative in nature and
thus of diminished probative value.11 In a return to work form of even date, Dr. Jones advised that
appellant could return to work without limitations on August 20, 2019. This report is of no
probative value as to whether acceptance of the claim should be expanded as it does not address
the additional diagnosed conditions. The Board has held that medical evidence that does not offer
an opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.12 Thus, Dr. Jones’ evidence is insufficient to meet appellant’s burden of proof.
The record contained reports from a physical therapist. This evidence has no probative
value, however, because physical therapists are not considered physicians as defined under
FECA.13
Appellant also submitted diagnostic testing reports. The Board has held that diagnostic
studies, standing alone, lack probative value as they do not address whether the employment
incident caused any of the diagnosed conditions.14
The Board thus finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include tendinitis of flexor and extensor tendons of
the thumb as causally related to the accepted January 8, 2019 employment injury.
On appeal appellant asserts that she submitted sufficient evidence to support expansion of
her claim to include her left thumb. As explained above, the evidence of record does not contain
sufficient medical rationale to expand appellant’s claim to include additional diagnosed conditions.
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.

11

D.C., Docket No. 18-1358 (issued June 13, 2019).

12

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

13

5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also Roy L. Humphrey, 57 ECAB 238 (2005). David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006)
(lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical
opinion under FECA); 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). Jane A. White, 34 ECAB 515, 518 (1983) (physical
therapists are not considered physicians under FECA).
14
J.P., Docket No. 19-0216 (issued December 13, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017)
(diagnostic tests, lack probative value as they fail to provide an opinion on the causal relationship).

5

CONCLUSION
The Board finds that appellant has not established that the acceptance of her claim should
be expanded to include additional conditions as causally related to the accepted January 8, 2019
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the September 18, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 9, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6