United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
A.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Hampton, VA, Employer
_________________________________________

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

Docket No. 14-1970
Issued: February 24, 2015

Case Submitted on the Record

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

JURISDICTION
On September 11, 2014 appellant filed a timely appeal from an August 1, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a traumatic injury in
the performance of duty on March 27, 2014.
FACTUAL HISTORY
On April 2, 2014 appellant, then a 52-year-old health technician, filed a traumatic injury
claim alleging that on March 27, 2014 she injured her left shoulder and rotator cuff in the
1

5 U.S.C. § 8101 et seq.

performance of duty. She was lifting a patient to place him in the overhead lift for a shower.
The employing establishment checked the box “yes” in response to whether their knowledge of
the facts agreed with the statements of the employee and/or witnesses. It was noted that on
April 1, 2014 the employing establishment received a telephone call from appellant informing
that “she had a slip for light duty because she had hurt her arm. When questioned, [appellant]
stated that she did not know how or when she had hurt her arm.”
In an April 1, 2014 report, Dr. Anthony R. Russo, Board-certified in family medicine
noted that appellant complained of constant sharp pains in her left shoulder for a few days. He
related that appellant believed the pain was “related to moving a patient wrong,” and that it
radiated down her left arm and was worse with movement. Dr. Russo diagnosed left shoulder
pain.
By letter dated June 12, 2014, OWCP advised appellant that additional factual and
medical evidence was needed. It noted that a rotator cuff tear was a significant injury and she
was asked to explain why she did not immediately report it to her supervisor. OWCP allotted
appellant 30 days to submit the requested information.
In a memorandum of telephone call dated June 13, 2014, appellant notified OWCP that
the patient was on the gurney and she was trying to put his pajama top on and she put her
shoulder underneath him and pulled her shoulder. She indicated that she went to “Sentera Minor
emergency” afterwards and that she did not report the injury because it happened at four a.m. and
her supervisor was not there.
In a June 17, 2014 statement, appellant explained that her shift started at 4:00 a.m. and
ended at 12:30 p.m. She indicated her injury occurred at 5:00 a.m. on March 27, 2014.
Appellant noted that on that date there were no nurse care managers on the floor. She explained
that the other nurses were busy doing medications and nursing notes for the overnight shift.
Appellant stated that she had mentioned her injury to a coworker. She explained that she was
caring for a patient during his bowel care and shower that morning. While the patient was on the
gurney, appellant was preparing him to return to bed when she tried to lift his shoulder and held
it up with hers, so she could pull his pajama shirt down under his back. She explained that this
was how he wanted it to be done. Appellant noted that his right shoulder slipped off her left
shoulder and her shoulder went back. She explained that she heard a “pop” and she believed that
she had just pulled a muscle and felt it would work itself out, so she continued to work the rest of
her shift. However, when appellant went home, her shoulder was sore. It continued to bother
her as she worked on March 28 and 29, 2014. Appellant was not scheduled to work on
March 30, 2014, so she took it easy and rested her shoulder. She explained that she returned to
work on March 31, 2014 and it was still hurting. Appellant’s manager was not there on Monday
and appellant did not see her to report it to her. Appellant explained that by Tuesday morning,
April 1, 2014, her shoulder hurt such that she went to the Sentra Miner Emergency Clinic and
called the employing establishment to let them know that she could not come in to work. She
confirmed that she had no prior history of injury to her shoulder.
In a separate statement also dated June 17, 2014, appellant’s husband provided a
statement in which he indicated that appellant came home from work on March 27, 2014 and
informed him that she hurt her left shoulder at work. Additionally, he noted there was no one

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there to whom to report the incident. Appellant’s husband reiterated appellant’s description of
the incident and the events subsequent to the incident.
By decision dated August 1, 2014,2 OWCP denied appellant’s claim on the grounds that
she did not establish an injury as alleged. It found that the evidence did not demonstrate that a
specific event, incident or exposure occurred at the time, place, and in the manner alleged.3
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing 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 FECA4 and that an injury was sustained in the performance of duty.5 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether 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 she actually experienced the employment incident at
the time, place, and in the manner alleged.7 In some traumatic injury cases, this component can
be established by an employee’s uncontroverted statement on the Form CA-1.8 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.9
An alleged work incident does not have to be confirmed by eyewitnesses in order to
establish that an employee sustained an injury in the performance of duty, but the employee’s
statement must be consistent with the surrounding facts and circumstances and the subsequent
course of action.10 A consistent history of the injury as reported on medical reports to the
claimant’s supervisor and on the notice of injury can also be evidence of the occurrence of the

2

OWCP also issued a July 30, 2014 decision which appears to have been superceded by the August 1, 2014
decision.
3

OWCP initially dated the decision July 30, 2014; however, it reissued the decision on August 1, 2014.

4

Joe D. Cameron, 41 ECAB 153 (1989).

5

James E. Chadden, Sr., 40 ECAB 312 (1988).

6

Delores C. Ellyett, 41 ECAB 992 (1990).

7

Julie B. Hawkins, 38 ECAB 393, 396 (1987).

8

John J. Carlone, 41 ECAB 354 (1989).

9

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

10

Rex A. Lenk, 35 ECAB 253, 255 (1983).

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incident.11 Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established.12 Although an
employee’s statement alleging that an injury occurred at a given time and in a given manner is of
great probative value and will stand unless refuted by strong or persuasive evidence,13 an
employee has not met this burden when there are inconsistencies in the evidence such as to cast
serious doubt upon the validity of the claim.14
ANALYSIS
The Board finds that this case is not in posture for decision.
The Board finds that the evidence is sufficient to establish that appellant experienced the
March 27, 2014 work incident at the time, place, and in the manner alleged. Appellant explained
that her shift started at 4:00 a.m. and ended at 12:30 p.m. Additionally, she stated her injury
occurred at 5:00 a.m. on March 27, 2014. Appellant alleged that on that date, there were no
nurse care managers on the floor and that other nurses were busy doing medications and nursing
notes for the overnight shift, although she mentioned her injury to a coworker. Furthermore, she
explained in great detail how the incident occurred. Appellant was caring for a patient during his
bowel care and shower that morning. As the patient was on the gurney, she was preparing him to
return to bed when she tried to lift his shoulder and held it up with hers, so she could pull his
pajama shirt down under his back, as this was how he wanted it to be done. Appellant explained
that his right shoulder slipped off her left shoulder and her shoulder went back. She heard a
“pop” and she believed that she had just pulled a muscle and felt that it would work itself out, so
she continued to work the rest of her shift. However, when appellant went home, her shoulder
was sore. It continued to bother her as she worked on March 28 and 29, 2014. Appellant was
not scheduled to work on March 30, 2014, so she rested her shoulder. She explained that she
returned to work on March 31, 2014 and it was still hurting but her manager was not there and
she did not see her to talk to her. Appellant explained that by Tuesday morning, April 1, 2014,
her shoulder hurt such that she went to an emergency clinic and called the employing
establishment to let them know that she could not come in to work.
The Board notes that appellant filed her traumatic injury claim and sought medical
treatment within four days of the incident. Appellant also explained that her late notification was
because no one was there on the date of the incident, that she continued to work, and that she
also tried rest. Additionally, she noted that on March 31, 2014 her manager was not present.
The Board notes that the report from Dr. Russo dated April 1, 2014 also contains a history
related to an injury due to moving a patient. Appellant provided a sufficiently consistent history
11

Id. at 255-56.

12

Dorothy M. Kelsey, 32 ECAB 998 (1981).

13

Id.

14

Joseph A. Fournier, 35 ECAB 1175 (1984).

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of injury to her physicians and to OWCP. An employee’ s statement alleging that an injury
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong and persuasive evidence.15 Not only is there no strong evidence contradicting
appellant’s statement regarding how the incident occurred, there is considerable evidence
supporting her statement. The Board also notes that the employing establishment checked the
box “yes” in response to whether their knowledge of the facts agreed with the statements of the
employee and/or witnesses. Although the employing establishment noted that “when questioned,
employee stated that she did not know how or when she had hurt her arm,” the Board finds that
this statement is not supported by the record as appellant has explained exactly how her injury
occurred. The record also contains a statement from appellant’s husband, who corroborated
appellant’s account. This statement is of more limited value because of appellant’s husband’s
obvious interest in having his spouse’s claim accepted. The employing establishment did not
provide any other information to suggest that the incident did not occur. Under the
circumstances of this case, the Board finds that appellant’s allegations have not been refuted by
strong or persuasive evidence and that there are no inconsistencies which are sufficient to cast
serious doubt on her version of the employment incident.16 Consequently, appellant has
established the occurrence of the March 27, 2014 work incident.
As OWCP denied appellant’s claim for failure to establish the occurrence of an
employment incident on March 27, 2014, it had not considered the medical evidence with regard
to establishing causal relationship. The case will be remanded to OWCP for evaluation of the
medical evidence to determine whether she sustained a medical condition and disability due to
the accepted March 27, 2014 work incident. After such further development as it deems
necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds that this case is not in posture for decision. The weight of the factual
evidence establishes that the incident occurred as alleged. OWCP must now determine whether
the medical opinion evidence establishes that this incident caused an injury.

15

See Allen C. Hundley, 53 ECAB 551 (2002).

16

See M.H., 59 ECAB 461 (2008).

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ORDER
IT IS HEREBY ORDERED THAT the August 1, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: February 24, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF THE ARMY, FORT
LEONARD WOOD, MO, Employer
__________________________________________

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

Docket No. 16-1752
Issued: March 1, 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 August 30, 2016 appellant filed a timely appeal from a June 17, 2016 merit decision
and an August 12, 2016 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).1 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.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a traumatic
injury causally related to a February 27, 2015 employment incident; and (2) whether OWCP
properly denied appellant’s request for reconsideration of the merits under 5 U.S.C. § 8128(a).

1

The Board notes that appellant submitted new evidence on appeal. The Board, however, cannot consider this
evidence as its review of the case is limited to the evidence of the record which was before OWCP at the time of its
final decision. 20 C.F.R. § 501.2(c)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 27, 2015 appellant, then a 51-year-old materials handler, filed a traumatic
injury claim (Form CA-1) alleging that on February 27, 2015 he sprained his left foot and ankle
when small arms protective insert (SAPI) plates fell over and landed on his foot. On form
reports dated March 5, 2015 Dr. G. Ripoli, an employing establishment osteopath, diagnosed
ankle sprain and advised that appellant should not bear weight on the left lower extremity for one
week.
On May 11, 2016 appellant filed a recurrence of disability claim (Form CA-2a) indicating
that long periods of standing and twisting would cause sharp pain in the left ankle and foot which
had recently worsened such that by May 1, 2016 he was using crutches. He stated that the
recurrence began on May 2, 2016.
The employing establishment indicated that no
accommodations were made for appellant after the initial injury.
In support of his claim, appellant submitted a May 2, 2016 disability slip, signed by
Dr. Selina A. Jeanise, an employing establishment osteopath, who indicated that appellant should
not work for 72 hours and could then return with no weight bearing until he was cleared by his
private physician.
By letter dated May 17, 2016, OWCP noted that appellant’s initial claim was
administratively approved because it appeared to be a minor injury that resulted in minimal or no
lost time from work and was not challenged. It informed appellant that the claim had now been
reopened for formal adjudication because he had filed a claim for recurrence. OWCP notified
appellant that the medical evidence of record did not establish that the diagnosed left ankle
sprain was caused or aggravated by an employment injury. Appellant was asked to provide all
medical records of treatment relating to the February 27, 2015 employment incident and advised
to submit a medical report from an examining physician with an opinion explaining how the
reported work incident caused or aggravated the claimed injury. OWCP forwarded an attending
physician’s report (Form CA-20) for his convenience. The letter also informed appellant that
nurse practitioners and physician assistants were not considered qualified physicians under
FECA unless the medical report was countersigned by a physician. Appellant was afforded 30
days to respond.
In a May 2, 2016 report, Dr. Jeanise noted a diagnosis of left foot pain, degenerative
changes, and possible peroneus longus tendon damage. She recommended splinting, elevation,
and ice packs, and provided restrictions of nonweight bearing and crutches until a follow up with
his primary physician.
By decision dated June 17, 2016, OWCP denied the claim. It noted that, although
informed of the evidence needed to establish his claim, appellant had not submitted records of
medical treatment relating to the accepted February 27, 2015 employment incident or a medical
report from a physician explaining how the February 27, 2015 employment incident caused the
current condition.
Appellant requested reconsideration on July 19, 2016. This was accomplished by a check
mark on the form indicating said request. A June 20, 2016 magnetic resonance imaging (MRI)
scan of the left foot and ankle demonstrated a torn anterior talofibular ligament, a partial tear
2

versus sprain of the posterior talofibular ligament, moderate tendinopathy and mild
intrasubstance tearing of the peroneus long tendon with mild peroneus brevis and peroneus long
tenosynovitis, a small area of signal change that could be sequela of a mild osteochondral injury,
and mild degenerative formation of the cuboid calcaneus articulation and base of the fourth
metatarsal.
In a July 14, 2016 report, Marie Wright, a family nurse practitioner, advised that
appellant reported a history that SAPI plates fell on his left foot on February 27, 2015, and that
he had a similar injury on May 2, 2016. She indicated that appellant was evaluated on May 20,
2016, continued under her care, and was unable to bear weight on the left foot due to tears of the
peroneus longus tendon and anterior and posterior talofibular ligaments. Ms. Wright concluded
that appellant would be further evaluated by orthopedics on July 25, 2016 and recommended
evaluation by an occupational medicine physician. On July 19, 2016 she reiterated appellant’s
restrictions and advised that appellant could not work on July 18, 2016 due to left foot and ankle
pain.
In a nonmerit decision dated August 12, 2016, OWCP denied review of the merits of the
June 17, 2016 decision. It found that the evidence submitted was insufficient to warrant merit
review, noting that the MRI scan did not include an opinion on causal relationship, and that, as
Ms. Wright’s reports were not countersigned by a physician, her reports were not considered
medical opinion evidence under FECA.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,3 including that he or she is an “employee” within the meaning of FECA and that the
claim was within the applicable time limitation.4 The employee must also establish that he
sustained an injury in the performance of duty as alleged and that his disability for work, if any,
was causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.6
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.7 The opinion of the physician must be
3

J.P., 59 ECAB 178 (2007).

4

R.C., 59 ECAB 427 (2008).

5

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

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

7

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

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based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.8 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.9
ANALYSIS -- ISSUE 1
It is undisputed that, while at work on February 27, 2015, SAPI plates fell over and
landed on appellant’s left foot. The Board, however, finds that the medical evidence of record is
insufficient to establish that this accepted incident resulted in an employment injury.
Medical evidence submitted to support a claim for compensation should reflect a correct
history, and the physician should offer a medically-sound explanation of how the claimed work
event caused or aggravated the claimed condition.10 No physician did so in this case.
The medical evidence submitted which is relevant to the claimed injury consists of two
reports from Dr. Jeanise, an employing establishment osteopath. On a disability slip dated
May 2, 2016 Dr. Jeanise noted that appellant was excused from work for 72 hours and should not
bear weight until cleared by his private physician. This was supplemented by a May 2, 2016
treatment note in which she diagnosed left foot pain, degenerative changes, and possible
peroneus longus tendon damage. Dr. Jeanise recommended splinting, elevation, and ice packs,
and provided restrictions of no weight bearing and crutches until a follow up with his primary
physician. She did not, however, relate the diagnosed condition to the February 27, 2015
incident or to any employment event. The Board has held that medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on
the issue of causal relationship.11
Consequently, the medical evidence of record, at the time of the June 17, 2016 OWCP
decision, is insufficient to meet appellant’s burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on

8

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

9

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

10

D.D., Docket No. 13-1517 (issued April 14, 2014).

11

K.W., 59 ECAB 271 (2007).

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application by a claimant.12 Section 10.608(a) of OWCP’s regulations provides that a timely
request for reconsideration may be granted if OWCP determines that the employee has presented
evidence and/or argument that meet at least one of the standards enumerated in section
10.606(b)(3).13 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (i) shows that OWCP
erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal
argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new
evidence not previously considered by OWCP.14 Section 10.608(b) provides that when a request
for reconsideration is timely, but fails to meet at least one of these three requirements, OWCP
will deny the application for reconsideration without reopening the case for a review on the
merits.15
ANALYSIS -- ISSUE 2
With his July 19, 2016 reconsideration request, appellant merely indicated by a check on
an OWCP form that he was requesting reconsideration. He therefore did not show that OWCP
erroneously applied or interpreted a specific point of law or advance a relevant legal argument
not previously considered by OWCP. Consequently, appellant was not entitled to a review of the
merits of the claim based on the first and second above-noted requirements under section
10.606(b).16
As to the third above-noted requirement under section 10.606(b)(3), appellant submitted
a June 20, 2016 report of a left foot and ankle MRI scan. This evidence, however, did not
contain an opinion regarding a cause of any diagnosed condition. The merit issue in this case is
whether appellant established a traumatic injury causally related to the February 27, 2015
employment incident. The Board has long held that evidence which does not address the
particular issue involved in the case does not constitute a basis for reopening the claim.17
Appellant also submitted reports dated July 14 and 19, 2016 from Ms. Wright, a family
nurse practitioner. A nurse practitioner is not considered a physician under FECA.18 Thus, her
opinion is of no relevance to the issue of causal relationship and does not comprise a basis for
reopening the case for a merit review.19
12

5 U.S.C. § 8128(a).

13

20 C.F.R. § 10.608(a).

14

Id. at § 10.608(b)(3).

15

Id. at § 10.608(b).

16

Id. at § 10.606(b).

17

D’Wayne Avila, 57 ECAB 642 (2006).

18

Section 8101(2) of FECA provides that “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. Registered nurses, licensed practical nurses, and physician assistants are not “physicians” as defined
under FECA. Their opinions are of no probative value. Roy L. Humphrey, 57 ECAB 238 (2005).
19

See K.J., Docket No. 16-0611 (issued May 13, 2016).

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As appellant did not show that OWCP erred in applying a point of law, advancing a
relevant legal argument not previously considered, or submitting relevant and pertinent new
evidence not previously considered by OWCP, it properly denied his reconsideration request.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a traumatic
injury causally related to the February 27, 2015 employment incident, and that OWCP properly
denied appellant’s request for reconsideration of the merits under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 12 and June 17, 2016 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 1, 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
__________________________________________
B.W., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, Fort Hood, TX,
Employer
__________________________________________

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Appearances:
Michael C. Paul, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1529
Issued: December 3, 2007

Case Submitted on the Record

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

JURISDICTION
On June 11, 2007 appellant filed a timely appeal from the February 13, 2007 merit
decision of the Office of Workers’ Compensation Programs which terminated her compensation
as she refused to accept suitable employment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective October 30, 2005 on the grounds that she refused suitable
employment; and (2) whether appellant established that she was totally disabled after
October 30, 2005.
FACTUAL HISTORY
On November 7, 2002 appellant, then a 52-year-old sales store checker, filed a traumatic
injury claim alleging that she tripped over a bike rack that day and sustained an abrasion of her

left eye, left knee, front right leg and twisted her back. On February 14, 2003 the Office
accepted appellant’s claim for lumbar strain/sprain and left knee derangement. Appellant’s
claim was later accepted for a herniated disc at L3-4 level and an underlying deep venous
thrombosis of the left lower extremity.
Dr. William S. Marsh, III, appellant’s treating osteopath, released her to work part time
with restrictions on October 7, 2003. He indicated that appellant was limited to part-time work
four hours a day with lifting limited to 5 to 10 pounds, sitting, standing, walking and reaching
above shoulder limited to one hour; climbing, kneeling, bending/stooping, twisting and
pushing/pulling prohibited and driving limited to two hours.
In a January 26, 2004 report, Dr. Marsh listed his impressions as: (1) acute chronic low
back pain syndrome which is clearly multifactoral in nature and involves degenerative disc
disease, degenerate lumbar facet arthropathy as well as generalized spondylosis all of which are
exacerbated by the work-related injury; (2) several areas of herniated nucleus pulposus at L3-4
and L4-5 with some neural foraminal narrowing and displacement of the nerve roots at that level;
(3) ongoing sciatic component; (4) left shoulder impingement syndrome and/or possibly rotator
cuff tear; (5) degenerative changes in the left knee secondary to the work-related injury; and
(6) left lower extremity deep venous thrombosis following contusion to the left leg. He
prescribed physical therapy.
On February 9, 2004 appellant was reemployed as a modified clerk at the employing
establishment with wages of $233.20 per week. The Office reduced her wage-loss compensation
based upon her actual earnings. Appellant stopped work on July 12, 2004.
In a May 25, 2004 report, Dr. Marsh diagnosed low back pain with lumbar radiculopathy
secondary to herniated disc from work injury, left shoulder impingement and concommitant
blood clot in the left lower extremity. On June 18, 2004 he indicated that he was discontinuing
appellant’s work hardening program as he felt “this is not effective for her and actually causing
her worse pain despite the fact that she has reached maximum medical improvement and has
been rated for that.” Dr. Marsh noted that appellant’s magnetic resonance imaging (MRI) scan
showed an inferior labral lesion that was indeterminate in origin. In a July 20, 2004 report, he
listed his impression as “low back pain with knee pain with underlying herniated disc from a
work injury with left shoulder impingement that occurred at the same time with underlying
concommitant deep venous thrombosis in the left lower extremity.”1
By letter dated October 12, 2004, the Office referred appellant to Dr. Terry Beal, a
Board-certified orthopedic surgeon, for a second opinion. In a medical report dated November 9,
2004, Dr. Beal listed appellant’s diagnosis as low back pain and left knee pain with resulting
deep venous thrombosis and left shoulder pain from the fall at work. He reviewed a history of
the November 7, 2002 injury with contusion and strain to the left knee, lumbar strain, prolapsed
1

Although this report is signed by Dr. Marsh, it appears to be written by a nurse because he indicated that
appellant asked him for a CA-17 or CA-6 to meet the requirements for paid time off, but that he advised her that
Dr. Marsh would need to do this.

2

L3-4 intervertebral disc with intermittent lumbar radiculopathy, history of thrombophlebitis to
the left lower extremity first diagnosed in December 2002 and accepted as secondary to the
November 2, 2002 injury; and chronic venous insufficiency of the left lower extremity. Dr. Beal
listed secondary diagnoses as adhesive capsulitis of the left shoulder, diabetes mellitus, diabetic
peripheral neuropathy and essential hypertension. He stated that appellant’s problem with her
left knee had resolved. Dr. Beal noted that she had degenerative problems in the lumbar spine
and continued to have a multitude of lower back complaints or with limitations on sitting,
standing and ambulation. He did not find any recurrent deep venous thrombosis but did note that
appellant had developed chronic venous insufficiency to the left lower extremity and that this
would be an ongoing problem. Dr. Beal noted a prolapsed L3-4 intervertebral disc, intermittent
lumbar radiculopathy and chronic venous insufficiency of the lower extremity that was
consistent with the bulk of her complaints. He advised that appellant could not perform work as
a sales store checker as chronic venous insufficiency and swelling of her leg standing or
ambulating for extended periods of time, residuals of the November 7, 2002 injury. Dr. Beal
noted that part-time restricted work would be acceptable. He submitted work restrictions listing
that appellant could work 4 hours a day, with walking and standing limited to 1 hour, twisting
limited to a ¼ hour, bending/stooping limited to a ½ hour and squatting, kneeling and climbing
prohibited.
In a report dated February 1, 2005, Dr. Marsh’s nurse reiterated his impressions of low
back pain, lumbar radiculopathy and knee pain, deep venous thrombosis and left shoulder injury
all from work accident. Appellant was stable but could not work at a job. On March 8, 2005
Dr. Marsh’s nurse noted that he saw no essential improvement due to appellant’s underlying
medical conditions and concurred with her request for retirement.
The Office found that a conflict existed between the opinions of Drs. Beal, the second
opinion physician, and Dr. Marsh, appellant’s treating physician, with regard to her work
capabilities. By letter dated April 4, 2005, the Office referred appellant to Dr. J. Clark Race, a
Board-certified orthopedic surgeon, for an impartial medical examination. The Office sent
Dr. Race a statement of accepted facts, a list of questions to be answered and a copy of the case
file. In a medical report dated April 26, 2005, Dr. Race listed his impressions as chronic low
back pain with evidence of degenerative facet joint disease of L4-5 and disc protrusion at L3-4;
chronic left knee pain due to underlying mild tricompartmental osteoarthritis; and deep vein
thrombosis, left leg, with mild, chronic venous changes in the left lower extremity. He
responded to the Office’s questions, as follows:
“In answer to the questions posed, in my opinion, the effects of the derangement
in the lateral meniscus of the left knee have resolved. It appears to have
persistently limited left knee flexion with pain due to underlying degenerative
changes. I have reviewed her MRI [scan] which does not show any evidence, in
my opinion, of a significant meniscal tear or ligament injury. Regarding her
lower back injury, she has persistent lumbar pain and limited range of motion.
She also has evidence of persistent venostasis changes in the left lower extremity
due to the injury of [November 7, 2002]. The lower back and left leg symptoms
due to DVT [deep venous thrombosis] have not resolved. It is likely her back
pain is, in large part due to her degenerative changes which were aggravated by
the injury in question. Regarding her left shoulder, it appears that she may have

3

had an injury to that shoulder. However, the MRI [scan] does not show a rotator
cuff tear. In my opinion, the subjective complaints in the left knee outweigh the
objective findings. The lumbar spine findings showed deconditioning and limited
range of motion which would be compatible with her underlying MRI [scan]
findings. In my opinion, [appellant] is not capable of performing her date-ofinjury job due to her inability to stand for long periods of time due to swelling in
the left leg and pain in the lower back. Her inability to perform this job, in my
opinion, is related to the injury in question. The effects of the work injury do
persist in that [appellant] is unable to stand and walk for long periods of time.
She is unable to comfortably bend and lift, using her lower back. [Appellant] also
developed swelling in her left leg due to her venous thrombosis, causing
persistent problems with her left leg. She is not confined to bed rest and is able to
perform some activities of daily living. In my opinion, [appellant] is able to
travel. She is able to walk for 15 to 20 minutes at a time. [Appellant] is able to
feed herself and dress herself. She does have trouble getting out of the bathtub
due to her back and knee. [Appellant] is able to be out of bed at least 12 hours a
day and go outside and do some simple exercises such as walking. In my opinion,
she would be able to operate a computer for limited periods of up to three or [four
hours] per day. In my opinion, [appellant] could work a sedentary work four
hours per day. She is not able to reach overhead with her left arm or do repetitive
activities with her left arm due to her left shoulder problem. These work
restrictions would be considered permanent at this point. I believe [appellant] has
reached [m]aximum [m]edical [i]mprovement. In my opinion, no other
treatments at this time would be expected to significantly improve her condition
as she has already undergone physical therapy and conservative management.”
Dr. Race found that appellant could work four hours a day with walking, standing, reaching
above shoulder, operating a motor vehicle at work, operating a motor vehicle to and from work
and squatting all limited to one hour each. He prohibited appellant from bending/stooping,
twisting, pushing, pulling, kneeling, climbing and squatting. Appellant required 10-minute
breaks every 2 hours.
By letter dated July 25, 2005, the employing establishment offered appellant a modifiedduty position as a commissary clerk working 24 hours a week. It indicated that the position
would involve intermittent standing/walking (no more than one hour each), lifting of not more
than 10 pounds a hour a day and sitting no more than four hours with breaks every two hours.
The employing establishment submitted a position description.
By letter dated August 22, 2005, the Office informed appellant that it had reviewed the
job description and found that it was suitable with her medical limitations as provided by
Dr. Race. The Office confirmed that the position remained open to appellant and informed her
that she was expected to accept the position and report to duty. If she failed to accept this
position, she was asked to provide a written explanation of her reasons within 30 days. The
Office noted that, if appellant failed to report to the offered position and failed to demonstrate
that her reasons were justified, her right to compensation would be terminated.

4

In documents received by the Office on August 26, 2005, appellant declined the job offer.
She submitted a July 13, 2005 report from Dr. Marsh who advised that she was off work until an
orthopedic surgery evaluation of her left shoulder was complete. In a July 29, 2005 report,
Dr. James O. Morse, a Board-certified internist, indicated that appellant was being followed for
diabetes and residuals of deep venous thrombosis in the left lower extremity following an on-thejob injury. He noted that appellant damaged her left shoulder from the same incident. Dr. Morse
stated that previous attempts by appellant to return to work had resulted in exacerbations in
swelling and pain to her left leg. He noted that this situation appeared to be permanent and that
he did not expect it to improve. Dr. Morse stated “Therefore, I do not believe [appellant] will
ever be able to return to work.”
On September 18, 2005 appellant stated that since her accident of November 7, 2002 she
had experienced swelling and cramping in her left leg, left ankle, back, left shoulder and both
knees. She noted that she did not drive because her reaction time was slow due to her
medications.
By letter dated September 27, 2005, the Office advised appellant that she had not
provided a valid reason for refusing to accept the offered position. It notified her that she had 15
additional days to accept the position. If appellant did not accept the position or arrange for a
report date within 15 days of the date of the letter, her entitlement to wage loss and schedule
award benefits would be terminated.
By decision dated October 24, 2005, the Office terminated appellant’s wage-loss
compensation benefits effective October 30, 2005 as she failed to accept suitable employment.
The Office noted that the medical evidence established that she could work four hours a day with
restrictions based on the medical opinion of Dr. Race, the impartial medical examiner.
Appellant requested reconsideration on October 22, 2006 and submitted a September 21,
2006 medical report from Dr. Anthony Hicks, a specialist in occupational medicine, who
reviewed medical records and concluded that appellant sustained multiple injuries due to a workrelated fall and later developed a potentially life-threatening DVT for which her treating
physician removed her from work. Dr. Hicks indicated that the opinion of Dr. Marsh must be
respected when compared to a one-time evaluation. He found that appellant could not return to
work. Dr. Hicks opined that it was likely that her current left shoulder/trapezial and upper back
complaints were related to her work injury.”
Dr. DeGaetano, an ostepath, reviewed appellant’s record and Dr. Race’s assessment. He
agreed that she had chronic low back pain secondary to severe degenerative facet joint disease of
L4-5, chronic left knee pain due to underlying tricompartmental osteoarthritis and chronic deep
vein thrombosis of the left leg with chronic debilitating venous changes of the left lower
extremities. Due to these abnormalities, Dr. DeGaetano noted that appellant would not be able to
perform the position of commissary clerk.
On September 11, 2005 Dr. Mark Braun noted that appellant was his patient at the
Darnall Army Community Hospital. He described her multiple medical issues as chronic lower
extremity deep venous thrombosis related to her fall in 2002, diabetes mellitus, Type 2,
hypertension and hyperlipidemia. On May 30, 2006 Dr. Braun noted that appellant developed a

5

clot in her left lower extremity after her work-related fall in 2002. Appellant experienced
chronic pain and swelling in her left leg which limited her ability to walk and stand for
prolonged periods greater than 20 minutes. Dr. Braun recommended that appellant wear
compression stockings and keep her leg elevated when sitting. He concluded, “The integrity of
[appellant’s] veins will not improve, and her condition will persist indefinitely and will likely
worsen over time.”
In a medical opinion dated September 8, 2006, Dr. Marsh’s nurse advised that he was
following appellant and that her case was quite complicated as a result of the development of a
deep vein thrombosis, secondary to activity changes from the work injury. He noted that
appellant had pain in her back, left leg and left shoulder which has severe implications on
walking, sitting, lying, bending, twisting and lifting. Dr. Marsh foresaw no significant
improvement in her conditions.
By decision dated February 13, 2007, the Office denied modification of the October 24,
2005 decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.2 Section 8106(c)(2) of the Federal Employees’
Compensation Act3 provides that a partially disabled employee who refuses or neglects to work
after suitable work is offered to, procured by or secured for the employee is not entitled to
compensation.4 The Office may not terminate compensation without establishing that the
disability ceased or that it is no longer related to the employment.5
Section 10.517(a) of the Act’s implementing regulations provides that an employee who
refused to work after suitable work has been offered to or secured for the employee, has the
burden of showing that such refusal or failure to work was reasonable or justified.6 Pursuant to
section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.7
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving

2
3

Barry Neutach, 54 ECAB 313 (2003); Lawrence D. Price, 47 ECAB 120 (1995).
5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8106(c)(2); see also Linda D. Guerrero, 54 ECAB 556 (2003).

5

Ronald M. Jones, 52 ECAB 190 (2000); Arthur R. Reck, 47 ECAB 339 (1995).

6

20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 5.

7

20 C.F.R. § 10.516; see Kathy E. Murray, 55 ECAB 288 (2004).

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the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.8
ANALYSIS -- ISSUE 1
The Office properly found that a conflict arose between the opinions of Drs. Beal and
Marsh with regard to appellant’s work capabilities. Accordingly, the Office referred her to
Dr. Race for an impartial medical examination. Dr. Race opined that appellant’s subjective
complaints in her left knee outweigh the objective findings. He noted that, although appellant
was not capable of performing her date-of-injury job due to her inability to stand for long periods
of time, she could work sedentary duty for four hours a day. Dr. Race limited walking, standing,
reaching above her shoulder, operating a motor vehicle at work, operating a motor vehicle to and
from work and squatting to one hour each. He prohibited appellant from bending, stooping,
twisting, pushing, pulling, kneeling, climbing and squatting. Based on the opinion of Dr. Race,
the employing establishment offered appellant a modified-duty position as a commissary clerk.
The employing establishment noted that this position was within her physical restrictions. The
Office found that the job offer was suitable and in accordance with the restrictions as set forth by
Dr. Race, and gave appellant 30 days to accept the position. Appellant, in declining the job
offer, submitted a statement by Dr. Marsh that she was off work until an evaluation on her left
shoulder was complete. Dr. Marsh also stated that appellant would not be able to return to work.
The Office did not find appellant’s reasons for refusing suitable work valid and after proper
notice was given, terminated her benefits.
The Office properly terminated appellant’s benefits effective October 30, 2005. The
Office noted that the position of commissary clerk was within the restrictions set by the impartial
medical examiner, Dr. Race. As Dr. Race’s opinion was supported by rationalized evidence and
based on a proper factual background, it was entitled to special weight.9 Appellant’s allegations
that Dr. Race’s opinion was not entitled to any weight are without merit. The Board notes that
the statement of accepted facts did not violate any regulations, as contended by her attorney. The
statement of accepted facts is a written summary of the claims examiner’s findings and facts
pertinent to resolving a particular medical issue.10 The Board finds that the statement of
accepted facts in this case provided an accurate summary of the pertinent information. The
impartial medical examiner had a copy of the file to review and, from his report, it is apparent
that he reviewed the medical evidence of record. Although appellant’s attorney objects to the
description of the injury as not being complete, the Board notes that the description of
appellant’s injury as set forth in the statement of accepted facts is identical to the description that
appellant gave in her claim form. The Board does not find that the description of the offered job
was insufficient. It clearly indicated that appellant would be limited to intermittent
standing/walking of no more than one hour each, would not lift more than 10 pounds for one

8

Manuel Gill, 52 ECAB 282 (2001).

9

James F. Weikel, 54 ECAB 660 (2003).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.4
(June 1995).

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hour a day and could sit for four hours. The record contains a detailed description of the
modified position of commissary clerk.
The evidence submitted by appellant in response to the proposed termination of benefits
is not sufficient to overcome the special weight given to the opinion of the impartial medical
examiner. Dr. Morse’s conclusion that appellant would be unable to return to work as earlier
attempts to work exacerbated her condition was not sufficiently rationalized nor was his brief
note that appellant was off work until the shoulder evaluation was complete. Neither of these
documents is sufficient to outweigh the special weight accorded to Dr. Race’s opinion as the
impartial medical examiner.11
The Board finds that the Office followed its established procedures in notifying appellant
that the offered position was suitable12 based on the special weight of the medical evidence
attributable to Dr. Race, the impartial medical specialist. Thus, the Office properly terminated
appellant’s compensation benefits on the grounds that she refused an offer of suitable work
pursuant to 5 U.S.C. § 8106(c).
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to her to establish that she had any disability causally related to her accepted
injury after termination of compensation benefits.13 To establish a causal relationship between
the condition, as well as any attendant disability claimed and the employment injury, an
employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such a causal relationship.14
ANALYSIS -- ISSUE 2
In support of continuing employment-related disability, appellant submitted a medical
report by Dr. Hicks dated September 21, 2006. Dr. Hicks reviewed the medical records and
concluded that appellant sustained multiple injuries for which removed her from working. He
concurred that appellant could not work. The Board finds that Dr. Hicks did not provide
adequate medical rationale in support of his stated conclusion that appellant could not work at
the modified-duty position while he critiqued the opinion of Dr. Race, he did not specifically
address the modified-duty job. Dr. Hicks’ opinion is not sufficient to overcome the weight
accorded to the impartial medical specialist.
Dr. Braun noted that appellant was being treated for various conditions. He placed
restrictions on appellant. However, it is not contended by any physician or by the Office that
11

Jaja K. Asarmamo, 55 ECAB 200, 204 (2004).

12

See Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992); 20 C.F.R. §§ 10.51610.517
13

Manuel Gill, supra note 7.

14

Id.

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appellant has no restrictions; rather the issue was whether she could perform the limited duties of
the offered position. Dr. Braun did not address whether appellant could perform modified-duty
work.
The report of Dr. DeGaetano is also insufficient to overcome the weight of the impartial
medical specialist. Dr. DeGaetano indicated that appellant could not perform the duties of
commissary clerk but did not adequately explain the basis for his noted conclusion. Although
appellant may have limited mobility, the position is based on work restrictions addressing
walking, standing and sitting. Dr. DeGaetano did not explain why appellant could not perform
these limited duties.
Finally, appellant submitted notes by Dr. Marsh’s nurse with regard to her condition.
The Board has held that the reports of a physician’s assistant or a nurse are not considered
medical opinion because they are not physicians as defined by the Act.15 There is no evidence
that these reports were countersigned by Dr. Marsh and therefore these reports cannot be
considered medical evidence.
Appellant has not submitted rationalized medical evidence establishing that she was not
medically capable of performing the modified-duty position.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits
effective October 30, 2005 as appellant failed to accept suitable employment. The Board further
finds that appellant failed to establish that she was totally disabled after October 30, 2005.

15

5 U.S.C. § 8101(2); Lyle E. Dayberry, 49 ECAB 369 (1998); Vicki L. Hannis, 48 ECAB 538 (1997).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 13, 2007 is affirmed.
Issued: December 3, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Poplar Bluffs, MO, Employer
__________________________________________

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

Docket No. 07-249
Issued: June 12, 2007

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 November 6, 2006 appellant filed a timely appeal from the September 22, 2006
decision of the Office of Workers’ Compensation Programs determining his wage-earning
capacity. Pursuant to 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 the Office properly determined that appellant’s actual earnings as a
modified maintenance mechanic fairly and reasonably represented his wage-earning capacity.
FACTUAL HISTORY
On August 10, 2004 appellant, then a 54-year-old maintenance mechanic, filed a
traumatic injury claim, Form CA-1, alleging that he injured his lower back while climbing a
ladder. Dr. M.G. Michael, a chiropractor, diagnosed subluxation of the spine at L5-S1 and the
sacroiliac joint and removed him from work from August 10 to 15, 2004. He released appellant

to light-duty work on August 16, 2004 with the restrictions of limited bending and twisting and
10 pounds of lifting.
The Office accepted appellant’s claim for subluxation of the L5-S1 joint and the
sacroiliac joint.
On January 27, 2005 the Office referred appellant for a second opinion evaluation by
Dr. David A. West, a Board-certified osteopath in orthopedic surgery. Dr. West found that while
appellant showed signs of malingering he was physically unable to return to his regular-duty job.
He recommended permanent work restrictions against more than four hours of pushing, pulling
or lifting 20 pounds and all squatting, kneeling, climbing, twisting, bending or stooping.
Dr. West recommended a 20-minute break for each hour of work. He also recommended a
work-hardening program to allow appellant to perform sedentary or light-duty work.
On April 1, 2005 appellant was examined by Dr. Brian C. Schafer, a Board-certified
orthopedic surgeon, found that appellant had spinal stenosis, which put him at heightened risk for
back injury. Dr. Schafer placed appellant on a work-hardening physical therapy program five
days a week for three weeks and recommended lumbar epidural steroid injections. On April 19,
2005 he extended the work hardening for two weeks. On May 10, 2005 Dr. Schafer
discontinued physical therapy and recommended a functional capacity evaluation. He noted that
appellant reported no relief from the epidural shots and did not seem to have “much interest in
improvement beyond this point.” A functional capacity evaluation was conducted on
May 19, 2005. On review of the findings, Dr. Schafer found that appellant had some distinct
limitations in his range of motion and abilities in his lower back. He released appellant for fulltime light-duty work, with permanent limitations of occasional lifting of 30 to 40 pounds, no
frequent lifting from the floor, occasional low level positions such as squatting, bending and
kneeling and occasional climbing. Dr. Schafer stated that appellant would have a permanent
whole person impairment of eight percent for his low back injuries. He released appellant from
his care on June 7, 2005.
On June 23, 2005 the employing establishment offered appellant a permanent position as
a modified maintenance mechanic. The position was modified to meet Dr. Schafer’s work
restrictions and did not change his grade or salary. Appellant accepted the position on
June 24, 2005.1 The employing establishment informed the Office that appellant was at grade
WG-9, step five, on the date of injury and received a salary of $18.89 per hour. It stated that the
salary for that grade and step had since increased to $19.58 per hour. The employing
establishment reported that appellant’s current modified position was at the WG-9, step five level
and that he received $19.58 per hour.
In a progress report dated July 16, 2005, Kris Fricke, a nurse assigned to appellant’s case,
stated that appellant had returned to work and that the employing establishment was respecting
his work restrictions. On August 16, 2005 she reported that appellant had been working within
his new restrictions for approximately seven weeks with no change in status.

1

The Board notes that appellant dated the offer “June 24, 2006.” This is presumed to be a typo, as the document
was date stamped June 24, 2005 and received by the Office on June 28, 2005.

2

By decision dated September 22, 2006, the Office determined that appellant’s actual
wages as a modified maintenance mechanic fairly and reasonably represented his wage-earning
capacity. It found that the position was suitable to his partially disabled condition because he
had demonstrated his ability to perform the work for more than two months. The Office
terminated appellant’s entitlement to wage-loss benefits because his actual earnings, $785.84 per
week,2 met the wages of the job he held when he was injured and thus, he had no loss of wageearning capacity.
LEGAL PRECEDENT
Section 8115(a) of the Federal Employees’ Compensation Act3 provides that, in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by his actual earnings if they fairly and reasonably represent his wage-earning
capacity.4 Generally, wages actually earned are the best measure of a wage-earning capacity and
in the absence of showing that they do not fairly and reasonably represent the injured employee’s
wage-earning capacity, must be accepted as such a measure.5 The formula for determining loss
of wage-earning capacity based on actual earnings, developed in the Albert C. Shadrick
decision,6 has been codified at 20 C.F.R. § 10.403. The Office calculates an employee’s wageearning capacity in terms of percentage by dividing the employee’s earnings by the current pay
rate for the date-of-injury job.7 Office procedures provide that a determination regarding
whether actual earnings fairly and reasonably represent wage-earning capacity should be made
after an employee has been working in a given position for more than 60 days.8
ANALYSIS
The Board finds that appellant’s actual earnings as a modified maintenance mechanic
fairly and reasonably represent his wage-earning capacity. On June 23, 2005 the employing
establishment offered appellant a permanent position based on the restrictions set by his treating
physician, Dr. Schafer. Appellant accepted the position on June 24, 2005. In a report dated
August 16, 2005, Ms. Fricke, the assigned nurse, stated that the employing establishment was
respecting appellant’s work restrictions and that he had been working in the position for seven
weeks with no change in status. Appellant continued working in the position through
2

This figure may be a typo: The employing establishment reported that appellant was earning $19.58 per hour
(the same amount he would have earned under his date-of-injury position); however this amount equals $783.20
when multiplied by 40 hours per week.
3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

5

Lottie M. Williams, 56 ECAB ___ (Docket No. 04-1001, issued February 3, 2005).

6

Albert C. Shadrick, 5 ECAB 376 (1953).

7

20 C.F.R. § 10.403(c).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (July 1997).

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September 22, 2006, the date the Office issued its formal loss of wage-earning capacity
determination. The record establishes that he was in the modified maintenance mechanic
position for well over 60 days and does not indicate that the position was seasonal, temporary or
make-shift work designed for his particular needs.9
Finding that appellant’s actual earnings in his modified maintenance mechanic position
fairly and reasonably represent his wage-earning capacity, the Board must determine whether it
was properly calculated based on his actual earnings. The Board finds that the Office properly
determined that appellant had no loss of wage-earning capacity based on his actual earnings.
The grade, step level and salary of his current modified position were identical to those of his
date-of-injury position. Therefore, under the Shadrick formula, he had no loss of wage-earning
capacity. There is no evidence that appellant’s wages in his position does not fairly and
reasonably represent his wage-earning capacity and must be accepted as the best measure of his
wage-earning capacity.10
CONCLUSION
The Board finds that the Office properly determined that appellant’s actual earnings as a
maintenance mechanic fairly and reasonably represented his wage-earning capacity.

9

Elbert Hicks, 49 ECAB 283 (1998); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Determining Wage-Earning Capacity, Chapter 2.814.7(a) (July 1997).

10

Hayden C. Ross, 55 ECAB 455 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 22, 2006 is affirmed.
Issued: June 12, 2007
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF THE NAVY, AIR
SYSTEMS COMMAND CENTER,
China Lake, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 15-1959
Issued: February 11, 2016

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On September 28, 2015 appellant filed a timely appeal of a September 10, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his claim for
traumatic injury.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In the case of William A. Couch1 the Board held that
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by
the claimant and received by OWCP before a final decision is issued. In this case, OWCP
denied appellant’s claim for a traumatic injury by decision dated September 10, 2015. That
decision found that he had failed to provide any medical evidence to support his claim.
On September 8, 2015 however OWCP received an August 31, 2015 report from
Dr. Mehul Taylor, a Board-certified orthopedic surgeon. The Board finds that OWCP did not
review the medical evidence it received on September 8, 2015. The Board has held that OWCP
must review all evidence submitted by claimant prior to the issuance of a final decision.2 This
1

41 ECAB 548 (1990).

2

Linda Johnson, 45 ECAB 439 (1994).

case is remanded to OWCP to enable it to properly consider all the evidence submitted at the
time of its September 10, 2015 decision.
Following such further development as OWCP deems necessary, it shall issue an
appropriate decision on appellant’s claim.
IT IS HEREBY ORDERED THAT the September 15, 2015 Office of Workers’
Compensation Programs’ decision is set aside. The case is remanded for further proceedings
consistent with the order of the Board.
Issued: February 11, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE ARMY, FORWARD
OPERATING BASE HAMMER, Iraq, Employer
__________________________________________

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

Docket No. 17-0980
Issued: June 19, 2018

Case Submitted on the Record

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

JURISDICTION
On April 4, 2017 appellant, through counsel, filed a timely appeal from a January 30, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction 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 met his burden of proof to establish that his diagnosed
amyotrophic lateral sclerosis (ALS)/motor neuron disease (MND) was causally related to his
accepted employment exposure.
FACTUAL HISTORY
On May 14, 2015 appellant, then a 59-year-old human terrain analyst, filed an occupational
disease claim (Form CA-2) for a neurological condition ALS/MND, which he attributed to his
work exposure while stationed in Iraq. He indicated that he had been exposed to tons of hazardous
chemicals, weapons of mass destruction (WMD), explosives, improvised explosive devices (IED),
vehicle-borne improvised explosive devices (VBIED), sand/dust storms, and Army fire pits.
Appellant first became aware of his condition on March 1, 2010, and first realized it was
employment related on April 27, 2015.
In a May 19, 2015 development letter, OWCP acknowledged receipt of appellant’s claim,
but noted that it had not received any other documentation with his claim form. It advised appellant
of the need for medical evidence in support of his claim. OWCP also provided appellant a factual
questionnaire to complete and return. It specifically inquired about the details of appellant’s
employment-related exposure. Additionally, OWCP inquired about the delay in filing the claim,
given that appellant reported having been aware of his condition in March 2010. It afforded him
30 days to submit the requested medical evidence and factual information.
In a June 16, 2015 statement, appellant explained that he began to work for the employing
establishment on October 16, 2009 and was deployed to Iraq from November 2009 to June 2011
as an intelligence specialist where he traveled to various U.S. Army posts in Iraq. He related that
during this period he was exposed to open U.S. Army fire pits, agricultural farm pesticides,
sand/dust storms that were full of chemicals, war debris, particles, biological weapons such as
anthrax, chemical weapons such as sarin and nerve gas, other chemical agents, live vaccines such
as polio and yellow fever, and depleted uranium. Appellant alleged that all of the above caused or
accelerated his health problems. He related that after four months of being deployed in Iraq,
around March 2010, he noticed severe headaches, high blood pressure, allergies, skin irritation,
body, muscles, joints and nerve pain, numbness in his legs and left arm, and memory loss.
Appellant described a specific incident in December 2010 when a large VBIED exploded within
yards of him. He reported that, after a long investigation, his neurologist and internist informed
him in 2015 that he suffered from ALS/MND, muscle weakness in his arms and legs, and ongoing
pain in his neck and lower back, and persistent headaches.
OWCP received a field report about a Combined Medical Engagement (CME) mission that
occurred on December 12, 2010 in Al Waleed, Iraq when a VBIED detonated at a nearby school.
The report mentioned appellant having attended the event.
On June 22, 2015 OWCP received several diagnostic reports. An August 21, 2014 cervical
spine x-ray showed moderate multilevel degenerative changes.
A February 11, 2015
electromyography (EMG) and nerve conduction velocity (NCV) study revealed evidence of active
denervation in some of appellant’s left lower extremity muscles and evidence of chronic

2

denervation in many muscles of the upper and lower extremities. A June 10, 2015 brain magnetic
resonance imaging (MRI) scan showed volume loss advanced for age with minimal subcortical
disease.
In reports dated October 28, 2014 to May 19, 2015, Dr. Herbert Lubowitz, a Boardcertified internist, indicated that appellant’s complaints centered on pain and weakness in his
extremities, difficulty swallowing, and muscular movements in his legs, which may be
fasciculation. He related that appellant believed some of his abnormalities might be related to
toxic exposure while he worked for the Department of Defense five years ago in Iraq. Upon
neurological examination, Dr. Lubowitz reported increased fall risk with poor balance and some
weakness in hand grips. He reported that appellant had a very complex neurologic problem, which
appeared to look more and more like ALS or a similar motor neuron disease.
Dr. Lubowitz indicated in a June 15, 2015 narrative report that he had treated appellant for
the past year for various symptoms. He related that appellant developed a severe and debilitating
neuromuscular problem which had been progressing such that he continued to lose weight, had
symptoms of dysphonia and dysphagia, and experienced fasciculation about eight weeks ago.
Dr. Lubowitz indicated that diagnostic testing showed abnormalities. He opined that appellant’s
symptoms seemed to reflect ALS or a similar neurological problem. Dr. Lubowitz related that
appellant felt his neurological symptoms were related to exposure to various toxins during his
service in Iraq.
In May 22 and June 17, 2015 reports, Dr. Ksenija Kos, a Board-certified neurologist,
related that appellant complained of diffuse, neurogenic pains, diffuse muscle weakness and
atrophy, and difficulty swallowing. Upon neurological examination, he observed 4/5 motor
strength in the left upper extremity proximally and distally and decreased lower extremity strength
proximally bilaterally. Dr. Kos also reported decreased sensation to pinprick in the median nerve
distributions bilaterally and over the feet bilaterally. He reported that appellant had slowly
progressive diffuse muscle weakness and atrophy with fasciculation. Dr. Kos indicated that in
view of appellant’s neurogenic muscle biopsy and negative NCV study for a motor peripheral
neuropathy, he was concerned about ALS/MND.
By decision dated July 21, 2015, OWCP denied appellant’s occupational disease claim
because it was not timely filed within three years of the date of injury. It explained that appellant
reported a date of injury of March 1, 2010, but he did not file his occupational disease claim until
May 14, 2015.
On August 14, 2015 appellant, through counsel, requested a telephone hearing before a
hearing representative from OWCP’s Branch of Hearings and Review.
In a July 29, 2015 attending physician’s report (Form CA-20), Dr. Lubowitz noted a date
of injury of March 1, 2010. He described a history of neck injury, muscle, nerve, and joint pain,
numbness, weakness, and diabetes. Dr. Lubowitz indicated that appellant had preexisting cervical
radiculitis. He diagnosed ALS or similar MND, diabetes, and arthritis. In response to the question
regarding whether appellant’s condition was caused or aggravated by an employment activity,
Dr. Lubowitz reported: “unknown.”

3

By decision dated February 4, 2016, an OWCP hearing representative set aside the July 21,
2015 denial decision. She found that appellant had timely filed his occupational disease claim
within three years of April 27, 2015, the date that he first became aware that his condition resulted
from his federal employment. The hearing representative remanded appellant’s case for OWCP
to further develop appellant’s claim, make appropriate findings of fact, and issue a de novo
decision.
By letter dated February 24, 2016, OWCP requested additional evidence from the
employing establishment regarding appellant’s tour of duty (TDY) in Iraq from November 2009
to June 2011.
On March 15, 2016 OWCP received the employing establishment’s response to its
development letter. It explained that it could not provide additional information regarding
appellant’s TDY because his supervisor had retired and was unreachable. The employing
establishment also reported that the Training and Doctrine Command, Intelligence Support
Element (TRISA) no longer existed. OWCP received a position description for an intelligence
specialist.
By decision dated March 28, 2016, OWCP denied appellant’s occupational disease claim.
It accepted that appellant sustained work-related exposure while in Iraq and had a diagnosis of
ALS/MND, but denied his claim because the medical evidence submitted was insufficient to
establish that his ALS/MND condition was causally related to his federal employment exposure.
On April 5, 2016 appellant, through counsel, requested a telephone hearing before a
representative from OWCP’s Branch of Hearings and Review. On November 14, 2016 a telephone
hearing was held. Appellant was represented by counsel.
OWCP received a print-out of an article from the ALS Association titled “ALS Risk
Appears Increased in Veterans: New Government Report Agrees.” It also received an article titled
“Amyotrophic Lateral Sclerosis among 1991 Gulf War Veterans: Evidence for a Time-Limited
Outbreak.”
By decision dated January 30, 2017, an OWCP hearing representative affirmed the
March 28, 2016 denial decision. She found that the medical evidence of record was insufficient
to establish a causal relationship between appellant’s ALS/MND and exposure to chemicals during
his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty, and that any

3

Id.

4

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

4

specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5
In an occupational disease claim, appellant’s burden requires submission of the following:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.8
ANALYSIS
Appellant alleged that he developed ALS/MND as a result of exposure to tons of hazardous
chemicals, WMD, explosives, IED, VBIED, sand/dust storms, and Army fire pits. OWCP
accepted appellant’s reported occupational exposure, as well as a medical diagnosis. However, it
denied the claim because the medical evidence submitted failed to establish a causal relationship
between appellant’s diagnosed ALS/MND and the accepted employment exposure. The Board
finds that appellant has not met his burden of proof to establish causal relationship.
In reports dated October 28, 2014 to June 15, 2015, Dr. Lubowitz reviewed appellant’s
history and provided neurological examination findings. He reported that appellant had a very
complex neurologic problem that reflected ALS or a similar neurological problem. Dr. Lubowitz
related that appellant believed that his abnormalities were related to toxic exposure while he
worked for the employing establishment five years ago in Iraq. In a July 29, 2015 Form CA-20,
Dr. Lubowitz diagnosed ALS or similar MND. In response to the question regarding whether
appellant’s condition was caused or aggravated by an employment activity, Dr. Lubowitz reported:
“unknown.” The Board notes that Dr. Lubowitz discussed appellant’s toxic work exposure and
provided a diagnosed condition based on examination findings. Dr. Lubowitz did not, however,
provide an affirmative opinion relating appellant’s diagnosed neurological condition to his
workplace exposure. On the contrary, he specifically responded “unknown” regarding the cause

5

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB
1143, 1145 (1989).
6

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

7

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

8

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

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of appellant’s condition.9 The Board finds that his reports are insufficient to establish appellant’s
occupational disease claim.
Appellant was also treated by Dr. Kos. In May 22 and June 17, 2015 reports, Dr. Kos noted
appellant’s complaints of neurologic pains and muscle weakness. He provided examination
findings and indicated that he was concerned about ALS/MND. Dr. Kos, however, did not provide
any opinion regarding the cause of appellant’s ALS/MND. The Board has held that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.10 For this reason, these reports are
insufficient to establish appellant’s claim.
The remaining diagnostic reports, including the August 21, 2014 cervical spine x-ray
report, February 17, 2015 EMG/NCV study report, and June 11, 2015 brain MRI scan report, are
of limited probative value as diagnostic reports fail to provide an opinion on the causal relationship
between appellant’s workplace exposure and his diagnosed condition(s). For this reason, this
evidence is insufficient to meet his burden of proof.11
The evidence of record also contains submitted medical journal articles discussing
ALS/MND after working in the Middle East.12 None of the reports, however, contained an opinion
or explanation that appellant’s ALS/MND resulted from his federal work exposure in Iraq.13
On appeal counsel alleges that the January 30, 2017 decision is contrary to fact and law.
He has not, however, provided evidence to support his argument. Causal relationship is a medical
question that must be established by probative medical opinion from a physician.14 The mere fact
that work activities may produce symptoms revelatory of an underlying condition does not raise
an inference of an employment relation. Such a relationship must be shown by rationalized
medical evidence of a causal relation based upon a specific and accurate history of employment
conditions which are alleged to have caused or exacerbated a disabling condition.15 As appellant

9

The fact that the etiology of a disease or condition is unknown or obscure does not relieve an employee of the
burden of establishing a causal relationship by the weight of the medical evidence nor does it shift the burden of proof
to OWCP to disprove an employment relationship. Judith J. Montage, 48 ECAB 292, 294-95 (1997).
10

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
11

See A.B., Docket No. 17-0301 (issued May 19, 2017).

12

The medical articles referenced a relationship between an increased risk of ALS in Gulf War veterans.

13

William C. Bush, 40 ECAB 1064, 1075 (1989) (medical texts and excerpts from publications are of no evidentiary
value in establishing the necessary causal relationship between a claimed condition and employment factors because
such materials are of general application and are not determinative of whether the specifically claimed condition is
related to the particular employment factors alleged by the employee).
14

W.W., Docket No. 09-1619 (issued June 2010); David Apgar, 57 ECAB 137 (2005).

15

Patricia J. Bolleter, 40 ECAB 373 (1988).

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has not provided such rationalized medical evidence showing that his accepted work exposure
caused or aggravated his ALS/MND, he has not met his burden of proof to establish his 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 his burden of proof to establish ALS/MND
causally related to his accepted employment exposure.
ORDER
IT IS HEREBY ORDERED THAT the January 30, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 19, 2018
Washington, DC

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

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

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

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

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

Docket No. 19-1027
Issued: November 13, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On April 10, 2019 appellant, through counsel, filed a timely appeal from a March 13, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the March 13, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish total disability for
the period March 17, 2017 to August 26, 2018 causally related to the accepted factors of his federal
employment.
FACTUAL HISTORY
On August 29, 2017 appellant filed an occupational disease claim (Form CA-2) alleging
that he sustained a torn right rotator cuff due to factors of his federal employment.4 He attributed
his condition to the accepted January 16, 2016 employment injury, and a March 11, 2017 incident
in which he placed mail in a mailbox and experienced sharp pain in his right shoulder. Appellant
stopped work on March 11, 2017 and did not return. OWCP assigned that claim File No.
xxxxxx622. On October 16, 2017 it accepted that appellant sustained an incomplete right rotator
cuff tear.
Prior to filing his Form CA-2, on August 22, 2017, OWCP received in File No. xxxxxx022
appellant’s claim for wage-loss compensation (Form CA-7) for leave without pay for the period
March 11 to August 18, 2017.
In a compensation claim development letter dated August 23, 2017, OWCP advised
appellant of the deficiencies in the evidence of record and of the additional evidence needed to
establish his claim for total disability. It afforded him 30 days to submit the necessary evidence.
By decision dated November 21, 2017, OWCP denied appellant’s claim for wage-loss
compensation for the period March 11 to August 18, 2017 and continuing. It found that no medical
evidence was received to establish total disability for work for the claimed period.
In a letter dated November 28, 2017 and received by OWCP on December 4, 2017,
appellant, through counsel, requested a telephonic oral hearing before a representative of OWCP’s
Branch of Hearings and Review. During the hearing, held on May 22, 2018, counsel noted that he
would provide additional medical evidence.
In a May 25, 2018 report, Dr. Timothy Dickson, a Board-certified internist and
pediatrician, opined that appellant had attained maximum medical improvement as of
March 14, 2017.
By decision dated July 23, 2018, an OWCP hearing representative affirmed the
November 21, 2017 decision, finding that the medical evidence of record did not establish total
disability from work commencing March 11, 2017 and continuing.

4

On January 20, 2016 appellant, then a 53-year-old rural carrier, filed a traumatic injury claim (Form CA-1)
alleging that on January 16, 2016 at 11:30 a.m., he sustained a separated right shoulder, bruised hip, and dislocated
fingers when he slipped and fell on ice carrying packages while in the performance of duty. OWCP assigned the claim
File No. xxxxxx022. On August 22, 2017 it accepted that the January 16, 2016 employment incident caused a left
hand sprain, left wrist sprain, left hand contusion, right shoulder contusion, right shoulder sprain, right hip contusion,
right hip sprain, and dislocation of the left index finger. On November 16, 2017 OWCP administratively combined
File Nos. xxxxxx622 and xxxxxx022, with File No. xxxxxx022 designated as the master file number.

2

On August 27, 2018 Dr. Richard S. Bartholomew, an osteopathic physician Boardcertified in orthopedic surgery, performed an authorized arthroscopic right rotator cuff repair with
debridement and subacromial decompression. He submitted periodic progress notes and
prescriptions for physical therapy treatments through January 29, 2019.5 Dr. Bartholomew held
appellant off work.
On September 11, 2018 appellant filed additional claims for wage-loss compensation
(Form CA-7) for the periods April 22 to September 1, 2017, September 16 to October 27, 2017,
and November 4, 2017 to August 31, 2018. OWCP paid appellant wage-loss compensation
commencing August 27, 2018.
In a report dated January 29, 2019, Dr. Dickson noted treating appellant beginning on
August 3, 2016. He found appellant “unable to perform his job as a mail carrier since March 2017”
due to bilateral rotator cuff tears, left glenohumeral joint degeneration, right biceps tendon tear,
postsurgical status, liver disease, thyroid disease, pancreatitis, chronic vomiting, adrenal
dysfunction, and depression.
In a January 30, 2019 statement, appellant contended that he was medically unable to
continue working after March 11, 2017.
On February 20, 2019 appellant, through counsel, requested reconsideration.
By decision dated March 13, 2019, OWCP denied modification of its July 23, 2018
decision, finding that the additional evidence submitted failed to establish total disability for work
from March 17, 2017 to August 26, 2018 causally related to the accepted injuries.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.7
Under FECA the term disability means “the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.”8 The question of whether
an employee is disabled from work is an issue that must be resolved by competent medical
evidence.9 The employee is responsible for providing sufficient medical evidence to justify
payment of any compensation sought.10

5

Appellant participated in physical therapy treatments from September to December 2018.

6

Supra note 1.

7

A.T., Docket No. 19-0410 (issued August 13, 2019); see C.R., Docket No. 18-1805 (issued May 10, 2019);
Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).
8

20 C.F.R. § 10.5(f).

9

S.A., Docket No. 18-0399 (issued October 16, 2018); see also R.C., 59 ECAB 546, 551 (2008).

10

Id.; see T.A., Docket No. 18-0431 (issued November 7, 2018); see also Amelia S. Jefferson, 57 ECAB 183 (2005).

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For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.11 The Board
will not require OWCP to pay compensation for disability in the absence of medical evidence
directly addressing the specific dates of disability for which compensation is claimed. To do so,
would essentially allow an employee to self-certify his or her disability and entitlement to
compensation.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish total disability
for the period March 17, 2017 to August 26, 2018 causally related to his accepted March 11, 2017
employment injury.
In support of his claim for total disability, appellant submitted an August 27, 2018 report
from Dr. Bartholomew. Dr. Bartholomew found appellant disabled for work following authorized
August 27, 2018 right shoulder surgery. As OWCP paid appellant wage-loss compensation
commencing August 27, 2018, this period is not at issue. In the remainder of the reports from
Dr. Bartholomew, he did not explain how the accepted injury caused or contributed to the claimed
period of disability presently before the Board. These reports are therefore insufficient to establish
the claim for total disability.13
In his January 29, 2019 report, Dr. Dickson found appellant totally disabled from his mail
carrier position commencing in March 2017 due, in part, to the accepted bilateral shoulder
conditions. He did not explain, however, how and why the accepted injuries would continue to
disable appellant for work on and after March 17, 2017. The Board has held that a report is of
limited probative value if it does not contain medical rationale explaining how a given period of
disability was related to employment factors.14 Without a specific opinion as to how the accepted
employment incident had caused the claimed period of disability, the opinion expressed by
Dr. Dickson is insufficient to establish the claim for total disability.15
The issue of disability from work can only be resolved by competent medical evidence.16
Drs. Bartholomew and Dickson failed to provide a rationalized medical opinion that appellant’s
inability to work from March 17, 2017 to August 26, 2018 resulted from the accepted injury. As
none of the medical evidence of record provided a discussion of how appellant’s accepted injury
caused total disability during the period in question, he has not met his burden of proof.17

11

See S.M., Docket No. 17-1557 (issued September 4, 2018); William A. Archer, 55 ECAB 674, 679 (2004);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
12

A.T., supra note 7; T.L., Docket No. 18-0934 (issued May 8, 2019); Sandra D. Pruitt, 57 ECAB 126 (2005).

13

A.T., supra note 7; see Y.D., Docket No. 16-1896 (issued February 10, 2017).

14

A.T., supra note 7.

15

Id.

16

Id.; R.C., 59 ECAB 546 (2008).

17

A.T., supra note 7.

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On appeal counsel contends that OWCP’s March 13, 2019 decision is contrary to fact and
law. However, for the reasons noted above, appellant failed to meet his burden of proof to establish
that the March 11, 2017 employment injury disabled him from work for the claimed period.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish total disability
for the period March 17, 2017 to August 26, 2018 causally related to the accepted factors of his
federal employment.
ORDER
IT IS HEREBY ORDERED THAT the March 13, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 13, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

5