United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Oklahoma City, OK,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Chris Kannady, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-1372
Issued: September 20, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 5, 2015 appellant, through counsel, filed a timely appeal from a December 17,
2014 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 OWCP met its burden of proof to rescind acceptance of appellant’s
traumatic injury claim.
FACTUAL HISTORY
On May 11, 2013 appellant, then a 51-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) for injuries to her left hand and wrist sustained when she fell
while walking to her employing establishment at 3:26 a.m. Her duty hours were listed as 3:30
a.m. to 12:00 p.m., Tuesday through Saturday. A coworker indicated that she was about 20 feet
ahead of appellant, when she heard appellant cry out and she turned around and saw appellant on
the pavement. On the claim form, the employing establishment controverted the claim noting
that appellant fell between the employee parking lot, which was not controlled or maintained by
the employing establishment, and the entrance to the airport terminal.
Appellant submitted a May 11, 2013 emergency department report and a May 22, 2013
report and authorization request from Dr. Robert S. Unsell, a hand surgeon.
In a May 28, 2013 letter, OWCP advised appellant of the deficiencies in her claim and
afforded her 30 days to submit the requested factual and medical information. In a separate
May 28, 2013 letter, it requested that the employing establishment respond to several questions
regarding such matters as the location of appellant’s claimed injury relative to her workstation,
the ownership of the parking lot facilities, whether parking spaces were assigned, and whether
appellant was engaged in official duties at the time of the injury.
In a June 12, 2013 letter, appellant indicated that the injury did not occur in the parking
lot. Rather, it occurred in the exit lane of the airport passenger pickup, between the employee
parking lot and the entrance to the airport entry terminal. The injury occurred at approximately
3:24 a.m. and her work shift began 3:30 a.m. Appellant indicated that the employing
establishment was located inside the airport terminal and, when the injury occurred, she was
reporting to work and was close to the entry of the airport terminal.
3

Appellant submitted several reports pertaining to the nature of her injury, which included
work limitation slips of May 24 and June 3, 2013, May 11, 2013 discharge instructions from
Health Care, a May 16, 2014 medical confirmation form which indicated that she received
medical care from May 11 through 23, 2013, a May 28, 2014 duty status report, a May 22, 2013
report from Dr. Unsell, a May 24, 2013 report from Dr. Joseph A. Blough, a family practitioner,
a June 10, 2013 physical therapy prescription, a May 22, 2013 physician prescription/patient
agreement, and a June 13, 2013 x-ray request.
In a June 2, 2013 letter, the employing establishment controverted the claim. It noted at
the time of the claimed incident, appellant was off duty and walking in a public area that was not
owned, operated, controlled, or managed by the employing establishment. The claimed incident
3

Appellant noted that while the employing establishment required her to park in the parking facilities and issues
scan/swipe card and decals for employee’s vehicles, it was her responsibility to pay for parking.

2

occurred at 3:26 a.m., at least four minutes before the beginning of her scheduled work shift of
3:30 a.m. and 10 minutes from her actual duty station. Further, appellant did not sustain the
claimed injury in the parking lot, rather she was walking from a parking lot, across a public road,
on a path determined by her, to her duty station. It advised that employees were not directed, or
required, to walk a certain route and there was no route or path specifically designated for
employees to travel. Attached was an aerial photograph of the airport which showed the location
of appellant’s accident and the location of her work area. The employing establishment noted it
controlled the TSA office. All other areas were controlled by the Airport Trust.
On July 1, 2013 OWCP accepted the claim for a left wrist sprain. It noted that the
employing establishment had controverted the claim because the injured worker “fell between
the parking lot and entering the building.” OWCP noted that she fell at approximately “3:24
a.m. while entering the building to report to work.” It also noted that appellant’s usual work shift
began at 3:30 a.m. so she was within 30 minutes of her usual work shift. OWCP concluded that
the evidence supported that this employee was a federal employee who sustained a disabling
traumatic injury in the performance of duty. It advised the employing establishment to continue
appellant’s regular pay for the period of disability not to exceed 45 days.
On July 15, 2013 OWCP received the employing establishment July 10, 2013 letter
further requesting that the acceptance of the claim be revisited on its merits as it contended that
appellant was not in the performance of duty when the injury occurred as she was off duty and
off-premises. The employing establishment maintained that appellant fell while walking on a
public road on her way to the airport terminal building from the parking lot. At the time of the
incident, appellant was walking on a road owned/leased, controlled, and maintained by the
Oklahoma City Airport Trust. It contendcd that OWCP had failed to give any weight to what the
employing establishment had raised in this claim.
Further medical evidence pertaining to appellant’s claim was submitted.
In a telephone conversation dated December 17, 2013, OWCP advised Randy Baker (a
Human Resources Specialist from the employing establishment) that OWCP had reviewed the
file again and noted that a statement from appellant indicated that employees were allowed to
park in the employee parking lot and given a swipe card and identification for the vehicles.
Appellant claimed that she was in the posture of crossing the walk toward the entry way of the
building to report for duty and pointed out that OWCP found that this case should be accepted.
The employing establishment, in its January 31, 2014 letter, reiterated that appellant was
off duty when the accident occurred, that her work hours were 3:30 a.m. to 12:00 p.m., that the
injury occurred at 3:26 a.m., that she was at least 10 minutes away from her assigned duty station
within the airport terminal, and that she was therefore late for work. It disputed the contention
that the employing establishment paid for appellant’s parking permit. It clarified that the
employing establishment had no control over the parking lots, roads, walkways, sidewalks, and
easements as they are owned/leased, controlled and maintained by the Oklahoma City Airport
Trust, that everyone including airport employees, airport contractors, airline carrier employees,
employing establishment employees, and airport police, fire and rescue professionals are all
equally subject to the ordinary nonemployment hazards of the journey. It cited to Bettie J.

3

Broadway, 44 ECAB 265 (1992), and Sallie B. Wynecoff, 39 ECAB 186 (1997) to support the
proposition that appellant was not in the performance of duty.
OWCP advised the employing establishment, by letter dated February 19, 2014, that it
apologized that its arguments had not previously been addressed and advised that the file would
be re-reviewed and a formal response would be issued.
By decision dated March 5, 2014, OWCP proposed to rescind the acceptance of the claim
as the issue of whether appellant was in the performance of duty at the time of the incident had
not been properly developed. Accordingly, it concluded that a notice to rescind acceptance of
the claim was to be issued to establish whether the wrist sprain arose in the course of
employment and whether the diagnosed condition was causally related to the May 11, 2013
incident.4
Following that decision, OWCP provided appellant, by letter dated March 7, 2015, a
copy of the information submitted by the employing establishment in support of its
challenge/controversion. It provided appellant 30 days within which to submit a detailed
statement in support of her claim or in response to the challenge.
In a letter dated March 28, 2014, addressed to OWCP’s Branch of Hearings and Review,
appellant stated: “Please accept the notices as a request for an appeal.” She provided OWCP
with additional supporting documentation refuting the employing establishment’s claims and
assumptions surrounding the incident and its decision to rescind acceptance of the claim. She
asserted that at the time of the incident, she was on premises and in uniform. Appellant was at
the airport to report to work and was less than two minutes from clocking in at the main office.
She indicated that she took an oath of commitment and, as a sworn officer for the employing
establishment, it was her responsibility to maintain and provide security for the traveling public
when she was on airport grounds regardless of her duty status. Appellant further indicated that
the employing establishment authorized the use of Operational Playbook applications, which
described additional duties of TSA officers during the advent of a potential breech in security,
and advised that playbook calls covered additional areas through the flight line, airport ramp
areas, pedestrian curb sides and crosswalks, public parking lots (hourly/extended), rental car
parking lot, all general airport grounds, and passenger gate areas for all airlines. She contended
that while none of those areas were owned, leased, operated or maintained by the employing
establishment, TSA officers were required to work in those various areas during a Playbook call.
Appellant contended that she was in uniform and in a designated work area at the time of the
incident. After her fall, she walked from the curbside area of the grounds and into the employing
establishment offices and clocked in within two minutes. Appellant stated that she was in the
performance of duty in all areas she walked as she patrolled those areas and answer questions
and assists the public on those same premises. Additional evidence submitted showed appellant
clocked in at 3:28 a.m. May 12, 2013. Additional maps of where the incident occurred was
submitted along with additional medical evidence.

4

Although this decision was set out as a “proposal” to rescind, appellant rights were attached to that decision and
no further decision rescinding the claim was issued.

4

A hearing was held telephonically before a hearing representative on October 14, 2014.
At the hearing, appellant testified that on May 11, 2013 she and a coworker left the parking lot
area and were walking toward the building. They were in the passenger pick-up lane, when she
fell at 3:26 a.m. Appellant came into work and clocked in at 3:28 a.m. and worked for
approximately six hours, with her hand swollen. She eventually reported the injury, filled out the
required paperwork, and went to the emergency room. Appellant indicated that she did not know
who owns the passenger pickup lane where the incident occurred, but stated she patrols that area
and it was incidental to her work duties when she does playbook duties, which involved
patrolling and determining whether any type of security breaches exist.
Following the hearing the employing establishment asserted, in a November 17, 2014
letter, that appellant was not in the performance of duty at the time of the incident. It noted that
contrary to appellant’s assertion she was “a few yards” away from the entrance, she was “1,350
feet or 45.3.33 yards” away from the entry to her duty station. The employing establishment
further rejected appellant’s assertion that the injury occurred in an area that was incidental to her
work area as the incident occurred on a public road and she was never tasked to perform
playbook activities on a public road. Further, at the time of injury, appellant was not clocked in
or performing her duties.
By decision dated December 17, 2014, an OWCP hearing representative affirmed
OWCP’s March 5, 2014 rescission decision, finding that appellant was not in the performance of
duty when injured. The hearing representative recounted the testimony at the hearing and the
argument from the employing establishment and found that “[t]o this reviewer, it was clear, even
to [appellant], that she was not on [the employing establishment] property when she was injured.
She thus encountered ‘the ordinary, nonemployment hazards of the journey itself … shared by
all travelers. Given this, [OWCP]’s March 5, 2014 rescission decision is AFFIRMED, as
[appellant] was not in the performance of duty when injured.” (Emphasis in the original.)

5

LEGAL PRECEDENT
The Board has upheld OWCP’s authority to reopen a claim at any time on its own motion
under 5 U.S.C. § 8128 and, where supported by the evidence, set aside or modify a prior decision
and issue a new decision.5 The Board has noted, however, that the power to annul an award is
not an arbitrary one and that an award for compensation can only be set aside in the manner
provided by the compensation statute.6 It is well established that once OWCP accepts a claim, it
has the burden of justifying termination or modification of compensation. This holds true where
OWCP later decides that it has erroneously accepted a claim for compensation. In establishing
that its prior acceptance was erroneous, OWCP is required to provide a clear explanation of its
rationale for rescission.7
OWCP’s procedures note that “a rescission decision should contain a brief background of
the claim, discuss the evidence on which the original decision was based, and explain why
[OWCP] finds that the decision should be rescinded. The evidence used to rescind the claim
should be thoroughly discussed so that it is clear to the reader how the case was incorrectly
adjudicated, and why the original decision is now being invalidated.”8
FECA provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.9 The phrase sustained
while in the performance of duty is regarded as the equivalent of the coverage formula
commonly found in workers’ compensation laws, namely, arising out of and in the course of
employment.10 In the course of employment relates to the elements of time, place, and work
activity. To arise in the course of employment, an injury must occur at a time when the
employee may reasonably be said to be engaged in her master’s business, at a place when she
may reasonably be expected to be in connection with her employment, and while she was
reasonably fulfilling the duties of her employment or engaged in doing something incidental
thereto. As to the phrase in the course of employment, the Board has accepted the general rule of
workers’ compensation law that, as to employees having fixed hours and places of work, injuries
occurring on the premises of the employing establishment, while the employees are going to or
from work, before or after working hours, or at lunch time, are compensable.11

5

Eli Jacobs, 32 ECAB 1147 (1981).

6

Doris J. Wright, 49 ECAB 230 (1997); Shelby J. Rycroft, 44 ECAB 795 (1993).

7

Alice M. Roberts, 42 ECAB 747 (1991). See also A.V., Docket No. 13-643 (issued January 14, 2014).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400(d) (February 2013).

9

5 U.S.C. § 8102(a).

10

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).
11

Narbik A. Karamian, 40 ECAB 617, 618 (1989). The Board has also applied this general rule of workers’
compensation law in circumstances where the employee was on an authorized break. See Eileen R. Gibbons, 52
ECAB 209 (2001).

6

Regarding what constitutes the premises of an employing establishment, the Board has
stated:
“The term ‘premises as it is generally used in workmen’s compensation law, is
not synonymous with’ property. The former does not depend on ownership, nor
is it necessarily coextensive with the latter. In some cases ‘premises may include
all the’ property owned by the employer; in other cases, even though the employer
does not have ownership and control of the place where the injury occurred, the
place is nevertheless considered part of the ‘premises.”12
Underlying the proximity exception to the premises rule is the principle that course of
employment should extend to any injury that occurred at a point where the employee was within
the range of dangers associated with the employment.13 The most common ground of extension
is that the off-premises point at which the injury occurred lies on the only route, or at least on the
normal route, which employees must traverse to reach the premises, and that therefore the special
hazards of that route become the hazards of the employment.14 Factors that generally determine
whether an off-premises point used by employees may be considered part of the premises include
whether the employing establishment has contracted for exclusive use of the area and whether
the area is maintained to see who may gain access to the premises.15
ANALYSIS
Once OWCP accepts a claim and pays compensation, it has the burden of justifying the
termination or modification of compensation. This holds true where, as here, OWCP later
decides that it has erroneously accepted a claim.16
The Board finds that OWCP did not meet its burden of proof to rescind acceptance of
appellant’s traumatic injury claim. On July 1, 2013 OWCP accepted the traumatic injury claim
for a left wrist sprain as the evidence of record supported that appellant was a federal employee
who sustained a disabling, traumatic injury in the performance of duty. In its March 5, 2014
decision, it rescinded acceptance of the claim finding that appellant had not met the fourth
element, performance of duty as defined by FECA, and that the claim should have been further
developed for this element of the claim. OWCP began the process of further developing the
12

Denise A. Curry, 51 ECAB 158 (1999).

13

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

14

A. Larson, The Law of Workers’ Compensation, Chapter 13.01(3) (December 2013) explains that the most
common ground of extension of the premises doctrine is that the off-premises point at which the injury occurred lies
on the only route, or at least on the normal route, which employees must traverse to reach the employing
establishment, and that therefore the special hazards of that route become the hazards of the employment. Larson
has also explained in § 13.02(2) (December 2013) that the zone of danger concept has been extended for slips and
falls on ice which occur to public sidewalks immediately in front of the employer’s place of business. Michael K.
Gallagher, 48 ECAB 610 (1997); J.D., Docket No. 16-0104 (issued April 5, 2016).
15

Linda D. Williams, 52 ECAB 300 (2001).

16

Walter Asberry, Jr., 36 ECAB 686 (1985).

7

claim, but prior to the completion of that process, appellant requested a hearing from the
March 5, 2014 decision.
In the December 17, 2014 decision, the hearing representative determined that the issue
before her was whether appellant had suffered a traumatic injury in the course of her
employment. She found that the traumatic injury occurred off-premises and that appellant
encountered “the ordinary, nonemployment hazards of the journey itself … shared by all
travelers” and was thus not in the performance of duty when injured. The issue before the
hearing representative, however, was whether OWCP had properly met its burden of proof to
rescind acceptance of the claim.
The Board finds that the March 5, 2014 decision rescinding acceptance of the claim
failed to provide a clear explanation or its rationale for rescission. Rather, this decision provided
only a conclusory finding citing to general legal precedent concerning the going and coming
rule. As noted above, a rescission decision should contain a brief background of the claim,
discuss the evidence on which the original decision was based, and explain why OWCP finds
that the decision should be rescinded. The evidence used to rescind the claim should be
thoroughly discussed so that it is clear to the reader how the case was incorrectly adjudicated,
and why the original decision is now being invalidated.17 OWCP has not complied with its own
procedures and, thus, has not met its burden of proof to rescind acceptance of appellant’s claim.
As the Board has determined that OWCP has not met its burden of proof to rescind
acceptance of the claim, it is unnecessary to adjudicate the issue of whether the injury occurred
in the performance of duty. The Board will therefore reverse the December 17, 2014 decision.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to rescind acceptance of
appellant’s traumatic injury claim.

17

Supra note 8.

8

ORDER
IT IS HEREBY ORDERED THAT the December 17, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 20, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


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

)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1960
Issued: August 25, 2010

Case Submitted on the Record

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

JURISDICTION
On July 27, 2009 appellant, through counsel, filed a timely appeal from a July 16, 2009
decision of the Office of Workers’ Compensation Programs denying his recurrence claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant sustained a recurrence of disability beginning January 20,
2006 causally related to his accepted January 15, 1999 employment injury.
FACTUAL HISTORY
On January 15, 1999 appellant, then a 61-year-old mechanic, filed a traumatic injury
claim alleging that on that date he injured his back while lifting a machine part in the
performance of duty. The Office accepted the claim for a lumbar strain which was subsequently
expanded to include L4-5 lumbar herniated disc. Appellant returned to light duty on
February 22, 1999 and stopped work on April 26, 1999. The Office accepted his claim for a
recurrence of disability beginning April 26, 1999. Appellant returned to light-duty work for four
hours a day on February 22, 2000.

In letters dated January 12 and 18, 2001, the employing establishment advised the Office
that appellant stopped working his light-duty job on October 29, 2000 due to a heart attack he
sustained at home. On March 2, 2001 appellant filed a claim for a recurrence of total disability
beginning November 3, 2000 due to his accepted 1999 employment injury and his October 30,
2000 heart attack
By decision dated April 16, 2001, the Office denied appellant’s recurrence claim for total
disability. It explained that there was no rationalized medical evidence establishing that his heart
attack was employment related. The record contains evidence that the Office continued to pay
appellant for four hours of partial disability.
In letters dated May 14 and September 20, 2001, appellant’s counsel requested an oral
hearing before an Office hearing representative. On December 18, 2001 the Office denied his
hearing request as being untimely.
On February 15, 2006 appellant filed a recurrence of total disability beginning
January 20, 2006.
In a February 1, 2006 duty status report (Form CA-17), Dr. Harry A. Frankel, a treating
Board-certified family practitioner, diagnosed neck and back pain and cervical and lumbar disc
disease. He indicated that appellant was capable of working three hours a day with restrictions.
Dr. Frankel, in a February 17, 2006 disability note, diagnosed lumbar and cervical disc
disease and released appellant to work for three hours a day beginning February 21, 2006.
On February 23, 2006 appellant accepted a modified job offer working three hours a day.
In a letter dated May 15, 2006, the Office noted receipt of appellant’s recurrence claim
and advised him as to the medical and factual evidence required to support his claim.
On June 12, 2006 Dr. Frankel opined that appellant was disabled and the disability will
not improve. He noted that he has treated appellant since 1998 for his lower back and neck
conditions. Diagnoses include lumbar and cervical disc disease, lumbar sprain with spasm and
cervical sprain with spasm. Dr. Frankel noted that appellant has had consistent cervical and
lumbar back pain complaints and that “he is unable to freely move his neck in either direction
without discomfort.” Appellant is also unable to bend or lift without discomfort. Dr. Frankel
stated that it was his opinion that, within a reasonable degree of medical certainty, appellant is
disabled at this point and that his disability, ongoing for many years, will not improve.
On June 20, 2006 the Office received a June 7, 2006 work capacity evaluation form with
an illegible physician’s signature, who diagnosed cervical back pain and stiffness. Dr. Frankel
indicated that appellant was unable to work an eight-hour day and provided restrictions which
included two hours of sitting, one hour of walking, no standing, no twisting, no repetitive
movements, no pushing or pulling, no lifting, no squatting, no climbing and no reaching or
reaching above the shoulder.
In a January 16, 2007 Form CA-17, Dr. Frankel diagnosed neck and lower back pain. He
checked that appellant was not capable of working an eight-hour day and provided work

2

restrictions. The restrictions included no sitting more than two hours, no standing more than one
hour and up to three hours of fine manipulation and simple grasping.
In a letter dated June 7, 2007, the employing establishment informed the Office that
appellant retired effective December 31, 2006.
By decision dated January 31, 2008, the Office denied appellant’s recurrence claim
beginning January 20, 2006.
On February 6, 2008 appellant’s counsel requested a review of the written record by an
Office hearing representative.
In a March 5, 2008 letter, appellant’s counsel stated that appellant’s recurrence claim was
based on his inability to work four hours a day and that he was currently totally disabled due to
his employment injury
By decision dated March 15, 2008, the Office hearing representative affirmed the denial
of appellant’s recurrence claim.
On January 15, 2009 the Board issued an order remanding the case to the Office.1 The
Board noted that, although the record did not contain an actual loss of wage-earning capacity
determination, there were references made to it by the Office throughout the case record.2 Thus,
the Board found that appellant’s claim for a recurrence of disability in January 2006 raised the
issue of modification of the wage-earning capacity decision.
By decision dated July 16, 2009, the Office denied appellant’s recurrence claim. It
conducted a review of the record and noted that it did not locate a January 2000 loss of wageearning capacity decision. As the Office found no loss of wage-earning capacity decision in the
record, the Office adjudicated the claim as a claim for a recurrence of disability.
LEGAL PRECEDENT
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he can perform the light-duty position, the employee has the burden to establish,
by the weight of the reliable, probative and substantial evidence, a recurrence of disability and to
show that he cannot perform such light duty.3 As part of this burden, the employee must show a
change in the nature and extent of the injury-related condition or a change in the nature and
extent of the light-duty requirements.4
1

Docket No. 08-1720 (issued January 15, 2009).

2

The record contains a May 15, 2006 letter from the Office referencing a January 2000 loss of wage-earning
capacity determination based on a wage-earning capacity of $363.76.
3

K.C., 60 ECAB ___ (Docket No. 08-2222, issued July 23, 2009); Richard A. Neidert, 57 ECAB 474
(March 10, 2006).
4

C.S., 60 ECAB ___ (Docket No. 08-2218, issued August 7, 2009); Joseph D. Duncan, 54 ECAB 471 (2003);
Roberta L. Kaaumoana, 54 ECAB 150 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

3

A recurrence of disability is defined as the inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition which had resulted
from a previous injury or illness without an intervening injury or new exposure to the work
environment that caused the illness.5 The Board has held that whether a particular injury causes
an employee to be disabled for work is a medical question that must be resolved by competent
and probative medical evidence.6 The weight of medical opinion is determined on the report of a
physician, who provides a complete and accurate factual and medical history, explains how the
claimed disability is related to the employee’s work and supports that conclusion with sound
medical reasoning.7
ANALYSIS
The Office accepted the claim for lumbar strain which was subsequently expanded to
include L4-5 lumbar herniated disc. Appellant returned to a light-duty job position on
February 22, 2000 working four hours a day. On January 20, 2006 he claimed that his condition
had worsened such that he was no longer able to work four hours a day and filed a recurrence
claim. In support of appellant’s claim that his condition had worsened, he submitted reports
from Dr. Frankel indicating that appellant’s condition had deteriorated such that he was unable to
work four hours a day and an accepted February 23, 2006 modified job offer from the employing
establishment working three hours a day. Appellant retired from the employing establishment
effective December 31, 2006.
The Board finds that the evidence of record insufficient to establish that appellant’s
recurrence was causally related to his accepted employment injury. In a February 1, 2006 duty
status report, Dr. Frankel, a treating Board-certified family practitioner, diagnosed neck and back
pain and cervical and lumbar disc disease and indicated that appellant was capable of working
three hours a day with restrictions. On June 12, 2006 he stated that appellant was totally
disabled as a result of his consistent cervical and lumbar pains. Dr. Frankel noted that appellant
had difficulty with moving his neck and was unable to bend or lift without discomfort. He, in a
January 16, 2007 CA-17 form, diagnosed neck and lower back pain. Dr. Frankel checked that
appellant was not capable of working an eight-hour day and provided work restrictions for a
three-hour day. He indicated that appellant was only capable of up to two hours of sitting, up to
one hour of standing and up to three hours of simple grasping and fine manipulation. Although
Dr. Frankel stated that appellant was only capable of working three hours a day instead of four
hours, he did not explain how any residuals of the January 15, 1999 injury prevented him from
performing four hours of light-duty work activities or caused a worsening of her back condition
as of January 20, 2006. A medical opinion unsupported by rationale explaining how appellant’s
recurrence of disability beginning January 20, 2006 was causally related to his accepted
January 15, 1999 employment injury is entitled to little probative value.8
5

20 C.F.R. § 10.5(x). See S.F., 59 ECAB ___ (Docket No. 07-2287, issued May 16, 2008).

6

See R.C., 59 ECAB ___ (Docket No. 07-2042, issued June 3, 2008); Carol A. Lyles, 57 ECAB 265 (2005);
Donald E. Ewals, 51 ECAB 428 (2000).
7

See C.S., supra note 4; Sandra D. Pruitt, 57 ECAB 126 (2005).

8

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005) (where the Board found that a medical opinion
not fortified by medical rationale is of little probative value).

4

On appeal, appellant contends that the Office ignored evidence that he suffered a
consequential injury in denying his recurrence claim. The record contains evidence that he
requested the acceptance of an emotional condition as a consequential injury. The Office,
though, has not issued a final decision adjudicating this issue. As it has not issued a final
decision addressing the acceptance of denial of a consequential injury, the Board lacks
jurisdiction to address this issue on appeal.9
CONCLUSION
The Board finds that appellant has not established that he sustained a recurrence of
disability on January 20, 2006 causally related to his January 15, 1999 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the July 16, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 25, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

20 C.F.R. § 501.2(c); see P.C., 59 ECAB ___ (Docket No. 07-1691, issued June 20, 2008).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Middletown, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1180
Issued: December 17, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 28, 2007 appellant filed an appeal of a February 14, 2007 decision of the
Office of Workers’ Compensation Programs denying her claim for wage-loss compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant established that her disability for the period September 16
to October 13, 2006 is causally related to her accepted neck sprain.
FACTUAL HISTORY
The Office accepted that on July 24, 2006 appellant, then a 27-year-old part-time flexible
clerk, sustained a neck sprain when pulling a tray of mail from a rack. Appellant stopped work
on July 24, 2006 and returned to full-time, full-duty work on October 16, 2006.
In July 24, 2006 reports, Dr. Todd R. Fisher, an attending Board-certified family
practitioner, opined that appellant sustained torticollis and a strain of the right superior and

inferior trapezial muscles that day when she lifted a heavy tray of mail at work. He referred her
for physical therapy at the Drayer Physical Therapy Institute three times a week for four weeks.
He held appellant off work from July 24 to August 6, 2006. In an undated slip, Dr. Fisher
released appellant to full duty as of August 7, 2006.
In an August 9, 2006 emergency room report, Dr. Robert Lasek, an attending physician
Board-certified in emergency medicine, noted a March 2006 occupational neck injury due to
heavy lifting. He stated that appellant underwent a chiropractic manipulation on August 8, 2006
and “experienced severe pain in the right aspect of her neck relating to her right shoulder.”
Dr. Lasek diagnosed an “[a]cute muscle spasm of the neck secondary to chiropractic
manipulation.” He held appellant off work for an unspecified period.
In an August 11, 2006 report, Dr. Fisher stated that appellant sustained an acute right
cervical sprain at work on July 24, 2006 and an exacerbation of that injury on August 7, 2006.
He held appellant off work indefinitely. Dr. Fisher opined that the original injury had not
resolved but should do so within two to four weeks. He referred appellant for physical therapy
three times a week for four weeks at the Drayer Physical Therapy Institute to address “reinjury
r[ight] cervical sprain.”
Appellant received physical therapy from August 16 to
September 13, 2006.
On September 25, 2006 appellant claimed compensation for total disability for the period
September 16 to October 13, 2006. She received continuation of pay from July 25 to
September 7, 2006 and used a combination of sick and annual leave and leave without pay from
September 9 to October 13, 2006.
In an October 19, 2006 letter, the Office advised appellant that the medical evidence
submitted was insufficient to establish that she was totally disabled for work from September 16
to October 13, 2006. The Office requested that appellant obtain a narrative report from
Dr. Fisher explaining why he referred her for chiropractic treatment and if such treatment
disabled her for any period.
In a November 2, 2006 letter, Dr. Fisher stated that he referred appellant for physical
therapy on July 24, 2006. He told appellant that it was “ok to see chiropractor” who worked in a
physical therapy facility. Dr. Fisher explained that the accepted “cervical sprain caused
[appellant’s] disability; the manipulation and subsequent pain may have prolonged the disability
but did not cause the disability.”
In a February 1, 2007 letter, the Office requested that Dr. Fisher specify the dates when
appellant was totally disabled for work due to the accepted cervical sprain. Dr. Fisher submitted
a February 12, 2007 response stating that appellant was totally disabled for work on
July 24, 2006. In a February 23, 2007 addendum, Dr. Fisher stated that appellant “was totally
disabled July 24 to October 14, 2006. The start date of disability was July 24, 2006. [Appellant]
RTW [returned to work] October 15, 2006.”
By decision dated February 14, 2007, the Office denied appellant’s claim for total
disability compensation for the period September 16 to October 13, 2006 on the grounds that the
medical evidence was insufficient to establish the claimed period of disability. The Office found

2

that, in his February 12, 2007 letter, Dr. Fisher “indicated that [appellant] was disabled on
July 24, 2006 only.”
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of her claim by the weight of the reliable,
probative and substantial evidence.2
To establish a causal relationship between a claimed period of disability and the accepted
employment injury, an employee must submit rationalized medical evidence based on a complete
medical and factual background, supporting such a causal relationship.3 Causal relationship is a
medical issue and the medical evidence required to establish a causal relationship is rationalized
medical evidence.4 Rationalized medical evidence is evidence which includes a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
ANALYSIS
The Office accepted that appellant sustained a neck strain on July 24, 2006 in the
performance of duty. On September 25, 2006 appellant claimed wage-loss compensation for the
period September 16 to October 13, 2006. The Office denied the claim by February 14, 2007
decision, finding that the medical evidence was insufficient to establish total disability for work
for the claimed period.
Appellant submitted reports from Dr. Fisher, an attending Board-certified family
practitioner, addressing the duration of the claimed disability. Initially, Dr. Fisher held appellant
off work from July 24 to August 6, 2006. He released her to full duty as of August 7, 2006.
Appellant then sought emergency room treatment on August 9, 2006 after experiencing neck
pain during an August 8, 2006 chiropractic manipulation. Dr. Fisher stated in a February 12,
2007 letter that appellant was totally disabled for work only on July 24, 2006. He submitted a
February 23, 2007 addendum stating that appellant was totally disabled for work from July 24
through October 14, 2006. This encompasses the period from September 16 to October 13, 2006
for which appellant claimed compensation. The Board finds, however, that Dr. Fisher’s opinion
1

5 U.S.C. §§ 8101-8193.

2

Donna L. Miller, 40 ECAB 492, 494 (1989); Nathaniel Milton, 37 ECAB 712, 722 (1986).

3

Manuel Gill, 52 ECAB 282 (2001).

4

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

5

Leslie C. Moore, 52 ECAB 132 (2000).

3

is insufficient to establish disability for the claimed period as he did not address the issue of
whether appellant sustained an intervening neck injury on August 8, 2006.
The Board has held that, if treatment is performed as a result of an employment injury
and it causes further impairment, this would constitute a consequential injury and would be
compensable.6
Also, the Office’s implementing regulations provide that reimbursable
chiropractic services7 include physical therapy provided by a chiropractor “under the direction of
a qualified physician.”8 It must therefore be determined if Dr. Fisher prescribed the chiropractic
treatment provided on August 8, 2006 as physical therapy to treat the accepted neck sprain. On
July 24, 2006 Dr. Fisher referred appellant for four weeks of physical therapy at the Drayer
Physical Therapy Institute. He did not prescribe or otherwise mention chiropractic treatment at
that time. In a November 2, 2006 letter, Dr. Fisher stated that he told appellant that it was “ok to
see chiropractor” who worked in an unspecified physical therapy facility. But he did not indicate
that he approved chiropractic treatment on or before August 8, 2006. The Board has held that
contemporaneous evidence is entitled to greater probative value than later evidence.9 Thus,
Dr. Fisher’s retroactive approval of chiropractic treatment is insufficient to establish that he
prescribed the August 8, 2006 manipulation as physical therapy to treat the accepted neck sprain.
The Board finds that the medical record demonstrates that the August 8, 2006
chiropractic manipulation caused a new neck injury. In an August 9, 2006 report, Dr. Lasek, an
attending physician Board-certified in emergency medicine, diagnosed an acute muscle spasm of
the neck due to chiropractic manipulation. Dr. Fisher opined on August 11, 2006 that the
August 8, 2006 chiropractic manipulation reinjured and exacerbated the accepted neck sprain.
He added in a November 2, 2006 letter that the August 8, 2006 manipulation “may have
prolonged [appellant’s] disability.” These medical opinions demonstrate that appellant sustained
a new injury on August 8, 2006 as a result of chiropractic treatment that was not authorized by
her attending physician as physical therapy to treat the accepted injury. The manipulation thus
constitutes an intervening cause, breaking the legal chain of causation from the accepted July 24,
2006 neck sprain.10 Therefore, appellant has failed to meet her burden of proof that her
condition from September 16 to October 13, 2006 was related to the accepted July 24, 2006 neck
sprain.
6

Gaare R. Davis, 48 ECAB 612 (1997).

7

Under section 8101(2) of the Federal Employees’ Compensation Act, chiropractors are only considered
physicians and their reports considered medical evidence, to the extent that they treat spinal subluxations as
demonstrated by x-ray to exist. 5 U.S.C. § 8101(2). Section 8101(3) of the Act limits the scope of reimbursable
services provided by chiropractors to manual manipulation to treat a spinal subluxation demonstrable by x-ray.
5 U.S.C. § 8101(3).
8

20 C.F.R. § 10.311(d).

9

Conard Hightower, 54 ECAB 796 (2003).

10

See Carlos A. Marrero, 50 ECAB 117, 119-20 (1998) (the Board found that the claimant’s use of an exercise
machine constituted an intervening cause of appellant’s disability and thus the Office properly denied appellant’s
claim for recurrence of disability); Clement Jay After Buffalo, 45 ECAB 707, 715 (1994) (the Board found that the
claimant’s knee injury sustained while playing basketball broke the legal chain of causation from an accepted knee
injury sustained in the performance of his duties as a firefighter).

4

CONCLUSION
The Board finds that appellant has not established that her disability for the period
September 16 to October 13, 2006 is causally related to her accepted neck sprain. The record
demonstrates that she sustained an intervening injury on August 8, 2006.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 14, 2007 is affirmed.
Issued: December 17, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.D., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Austin, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-174
Issued: July 26, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 27, 2010 appellant filed a timely appeal from a September 24, 2010 Office of
Workers’ Compensation Programs’ (OWCP) schedule award decision. Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she had a ratable
hearing loss entitling her to a schedule award.
On appeal appellant contends that her original audiological test revealed a hearing loss of
“35% in one ear and 30% in the other ear.”

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 3, 2010 appellant, then a 45-year-old revenue officer, filed a traumatic injury
claim (Form CA-1) alleging that she sustained cuts, bruises, whiplash, anxiety, neck and back
sprain after a small aircraft crashed into her work building on February 18, 2010.
By decision dated March 23, 2010, OWCP accepted appellant’s claim for acute reaction
to stress, predominant disturbance of emotions, sprain of back, lumbar region and neck sprain.
In March 8 and 9, 2010 medical reports, Dr. Jennifer Clark, a Board-certified internist,
diagnosed decreased hearing and referred appellant to an audiologist.
In an April 13, 2010 audiological report, Dr. Douglas W. Martin, an otolaryngologist,
indicated that an audiogram showed a bilateral middle high-frequency sensorineural hearing loss
compatible with acoustic injury.
By letter dated May 19, 2010, OWCP requested additional evidence from appellant in
order to expand her claim to include hearing loss.
On May 25, 2010 appellant filed a schedule award claim.
In a May 11, 2010 progress report, Dr. Martin reported that appellant’s audiogram was
unchanged.
On August 4, 2010 OWCP referred appellant, together with a statement of accepted facts,
to Dr. William Carl Smith, a Board-certified otolaryngologist, for a second opinion examination.
In an August 25, 2010 medical report, Dr. Smith diagnosed bilateral high-frequency
sensorineural hearing loss and attributed it to noise exposure at work. An August 25, 2010
audiogram performed on his behalf showed the following decibel losses at frequencies of 500,
1,000, 2,000 and 3,000 hertz (Hz): 10, 10, 20 and 30 for the right ear and 10, 10, 25 and 35 for
the left ear. Dr. Smith determined that appellant suffered from a bilateral high-frequency
sensorineural hearing loss in excess of what would be normally predicted with a presbycusis
hearing loss alone.
On September 21, 2010 OWCP’s medical adviser, Dr. H. Mobley, agreed with
Dr. Smith’s conclusion that appellant’s bilateral sensorineural hearing loss was caused by
occupational noise exposure and identified August 25, 2010 as the date of maximum medical
improvement. Applying the standard provided by the American Medical Association, Guides to
the Evaluation of Permanent Impairment2 (A.M.A., Guides) (hereinafter) to the August 25, 2010
audiometric findings, he found that appellant had no ratable monaural or binaural hearing loss
and authorized hearing aids.

2

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

2

By decisions dated September 24, 2010, OWCP expanded appellant’s claim to include
acoustic trauma hearing loss, but denied appellant’s schedule award claim, finding that her
hearing loss was not severe enough to be considered ratable. It authorized hearing aids.3
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. An employee is entitled to a
maximum award of 52 weeks of compensation for complete loss of hearing of one ear and 200
weeks of compensation for complete loss of hearing of both ears.6 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 dBA is deducted because, as the
A.M.A., Guides points out, losses below 25 dBA result in no impairment in the ability to hear
everyday speech under everyday conditions. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss: the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.8
ANALYSIS
OWCP has accepted that appellant sustained acoustic trauma hearing loss causally related
to her federal employment. In order to determine whether appellant was entitled to
compensation for that hearing loss through a schedule award, OWCP referred appellant to
Dr. Smith. On August 25, 2010 Dr. Smith examined appellant and reviewed an audiogram
3

Following appellant’s October 27, 2010 appeal to the Board, OWCP issued a December 9, 2010 decision
denying her a schedule award. As this decision was issued after the Board took jurisdiction of the case, it is null and
void. The Board and OWCP may not have simultaneous jurisdiction over the same issue. See Douglas E. Billings,
41 ECAB 880 (1990); see also 20 C.F.R. § 501.3(c)(3).
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

5 U.S.C. § 8107(c)(13).

7

20 C.F.R. § 10.404. See also Mark A. Holloway, 55 ECAB 321, 325 (2004).

8

W.S., Docket No. 10-2063 (issued May 10, 2011); J.Q., Docket No. 10-1660 (issued April 5, 2011).

3

conducted on his behalf. He diagnosed bilateral high-frequency sensorineural hearing loss and
opined that the hearing loss resulted from noise exposure at appellant’s work.
On September 21, 2010 OWCP’s medical adviser, Dr. Mobley, concurred with
Dr. Smith’s assessment and applied its standard procedures to the August 25, 2010 audiogram.
The audiogram recorded decibel losses at 500, 1,000, 2,000 and 3,000 cycles per second and
recorded decibel losses of 10, 10, 20 and 30 respectively in the right ear. The total decibel loss
in the right ear is 70 decibels. When divided by 4, the result is an average hearing loss of 17.5
decibels. The average loss of 17.5 decibels is reduced by the fence of 25 decibels to equal 0,
which when multiplied by the established factor of 1.5 resulted in 0 percent impairment of the
right ear. The audiogram tested decibel losses for the left ear at 500, 1,000, 2,000 and 3,000
cycles a second and recorded decibel losses of 10, 10, 25 and 35 respectively for a total decibel
loss of 80 decibels. When divided by 4, the result is an average of 20 decibels. The average loss
of 20 decibels is reduced by the fence of 25 to equal 0, which when multiplied by the established
factor of 1.5, resulted in 0 percent impairment of the left ear. The Board finds that OWCP’s
medical adviser properly applied the standards to the findings of Dr. Smith’s August 25, 2010
audiogram and concluded that appellant did not have a ratable hearing loss for schedule award
purposes.
On appeal appellant contends that her original audiological test revealed a 35 percent
hearing loss in one ear and 30 percent hearing loss in the other ear. As discussed above, medical
evidence in the record establishes that, although appellant has an employment-related hearing
loss, it is not significant enough to be ratable for schedule award purposes. The Board
recognizes the employment-related hearing loss, but there is a certain threshold which must be
reached before becoming eligible for compensation benefits through a schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure of medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant does not have a ratable hearing loss for schedule award
purposes.

4

ORDER
IT IS HEREBY ORDERED THAT the September 24, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 26, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
MINNEAPOLIS VETERANS MEDICAL
CENTER, Minneapolis, MN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 20-0650
Issued: October 16, 2020

Case Submitted on the Record

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

JURISDICTION
On February 3, 2020 appellant filed a timely appeal from a December 30, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a right shoulder
condition causally related to the accepted March 4, 2019 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 1, 2019 appellant, then a 53-year-old painter, filed a traumatic injury claim (Form
CA-1) alleging that on March 4, 2019, when painting door frames, he experienced pain in his right
shoulder and sustained a muscle strain from repetitive motion while in the performance of duty.
He did not immediately stop work.
In an April 12, 2019 medical report, Steven S. Williamson, a physician assistant, indicated
that appellant had right shoulder pain, which began gradually five weeks earlier. He attributed
appellant’s symptoms to multiple injuries, including overuse from his work as a painter.
Mr. Williamson noted that appellant had full active and passive range of motion, normal muscle
strength, and intact sensation. An x-ray of the right shoulder of even date, revealed intact
glenohumeral and acromioclavicular (AC) joint spaces, no fracture, and no dislocation.
Mr. Williamson diagnosed right shoulder pain.
An April 23, 2019 magnetic resonance imaging (MRI) scan of the right shoulder
demonstrated moderate severity supraspinatus tendon tendinopathy with a focal partial-thickness
intrasubstance and undersurface tear within the anterior third, mild subscapular tendinopathy
without tearing, tendinopathy and longitudinal partial-thickness split tearing within the biceps
tendon, mild hypertrophic change of the AC joint, and no evidence of fracture.
In a medical report dated April 26, 2019, Dr. Jack G. Skendzel, a Board-certified
orthopedist, indicated that appellant presented with a gradual onset of right shoulder pain that he
attributed to overuse from painting. He reported performing overhead lifting six to eight months
earlier and felt a tear in his right shoulder, but the pain resolved, only to return six weeks prior to
the current examination. Dr. Skendzel noted tenderness over the right biceps tendon and mild
muscle weakness of the supraspinatus. He reviewed the MRI scan findings and diagnosed right
shoulder pain, high-grade partial-thickness rotator cuff tear, and partial-thickness biceps tendon
tear. Dr. Skendzel recommended arthroscopic shoulder surgery with right rotator cuff repair.
In an employing establishment work capacity evaluation form dated May 8, 2019,
Dr. Skendzel noted that appellant required surgery for an injury he sustained six to eight months
prior. He returned appellant to full-time work without restrictions.
OWCP informed appellant in a May 21, 2019 development letter that, when his claim was
first received, it appeared to be a minor injury that resulted in minimal or no lost time from work,
and, therefore, payment of a limited amount of medical expenses was administratively approved
without formal consideration of the merits of his claim. It noted that it reopened his claim for
consideration of the merits. OWCP advised appellant of the deficiencies of his claim, requested
additional factual and medical evidence, and provided a questionnaire for his completion. It
afforded him 30 days to respond.
In response to OWCP’s questionnaire, appellant submitted a May 28, 2019 statement,
indicating his injury occurred while he was repetitively painting overhead doorframes, hall frames,
ceiling lines, bathroom entry frames, and bases for six hours a day. He reported the immediate
effect of the injury was pain and numbness when lifting his right arm over his head. Appellant

2

further reported that he did not have similar symptoms prior to the injury and he had not
participated in activities outside of his employment. He noted that he believed the injury would
heal by itself, but after six weeks he still had symptoms and sought medical attention.
In a letter dated May 31, 2019, Dr. Skendzel noted initially treating appellant on April 26,
2019, for shoulder pain that had been present for six weeks. Appellant noted that his symptoms
were the result of overuse while working as a painter. He also reported performing overhead lifting
six to eight months prior and felt a tear in his right shoulder, but the pain resolved. Dr. Skendzel
noted on examination that appellant had limited strength of the supraspinatus with pain. He
diagnosed high-grade partial-thickness rotator cuff tear with partial-thickness tear involving the
biceps tendon. Dr. Skendzel recommended a rotator cuff repair and biceps tenodesis. He opined
that the activity that caused this injury was repetitive in nature and a tear of the biceps tendon and
rotator cuff might be consistent with the tear he experienced six to eight months prior to his visit.
By decision dated June 27, 2019, OWCP denied appellant’s traumatic injury claim finding
that the medical evidence submitted was insufficient to establish causal relationship between his
diagnosed medical condition and the accepted March 4, 2019 employment incident.
OWCP continued to receive evidence. In an employing establishment work capacity
evaluation form dated July 15, 2019, Dr. Skendzel noted that appellant was injured in March 2019
while working as a painter. He recommended surgical intervention and returned appellant to fulltime work without restrictions.
Appellant submitted an August 12, 2019 report from Emily C. Petersen, a physician
assistant, who provided treatment for progressively worsening right shoulder pain, limited motion,
and weakness from overuse as a painter. Ms. Petersen noted the presence of a high-grade partialthickness rotator cuff tear and partial-thickness biceps tendon tearing on a right shoulder MRI scan.
Appellant reported that his pain began in March 2019 when he was working on a project, which
required painting 50 door frames. He believed the continuous back and forth motion of painting
caused the right shoulder pain. Ms. Petersen diagnosed tear of the right rotator cuff and provided
work restrictions.
On October 7, 2019 appellant requested reconsideration.
By decision dated December 30, 2019, OWCP modified the prior decision finding that the
evidence of record was insufficient to establish a diagnosed medical condition in connection with
the accepted employment incident. It found, therefore, that the claim remained denied because the
medical component of appellant’s claim was not established as he submitted a report from a
physician assistant who was not recognized as a physician under FECA.2 Consequently, OWCP
concluded that the requirements had not been met to establish an injury as defined by FECA.

2

Id.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.7 Fact
of injury consists of two components that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that
allegedly occurred.8 The second component is whether the employment incident caused a personal
injury.9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.10 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the accepted employment incident must be based on a
complete factual and medical background.11 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and the
specific employment incident.12

3

Id.

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016).

7

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

11

M.V., Docket No. 18-0884 (issued December 28, 2018).

12

Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

ANALYSIS
The Board finds that appellant has met his burden of proof to establish a diagnosed medical
condition.
Dr. Skendzel, in his report dated April 26, 2019, indicated that appellant presented with a
gradual onset of right shoulder pain that he attributed to overuse from painting. He diagnosed right
shoulder pain, high-grade partial-thickness rotator cuff tear, and partial-thickness biceps tendon
tear. Similarly, on May 31, 2019 Dr. Skendzel diagnosed high-grade partial-thickness rotator cuff
tear with partial-thickness tear involving the biceps tendon. Additionally, in a work capacity
evaluation dated July 15, 2019, he noted that appellant was injured in March 2019 while working
as a painter. Therefore, the Board finds that the evidence of record establishes diagnosed medical
conditions.
The Board further finds, however, that the case is not in posture for decision as to whether
appellant’s diagnosed medical condition is causally related to the accepted March 4, 2019
employment incident.
OWCP has not reviewed the medical evidence of record regarding the issue of whether the
established diagnoses are causally related to the accepted March 4, 2019 employment incident.
Therefore, the case will be remanded to OWCP for consideration of the medical evidence on the
issue of causal relationship. Following such further development as deemed necessary, OWCP
shall issue a de novo decision.
CONCLUSION
The Board finds that appellant has met his burden of proof to establish a diagnosed medical
condition. The Board also finds, however, that the case is not in posture for a decision as to
whether his diagnosed medical conditions are causally related to the accepted March 4, 2019
employment incident.

5

ORDER
IT IS HEREBY ORDERED THAT the December 30, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: October 16, 2020
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
DEPARTMENT OF THE AIR FORCE,
KIRKLAND AIR FORCE BASE, NM, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-210
Issued: April 22, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 4, 2013 appellant filed a timely appeal from an October 8, 2013 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 his burden of proof to establish disability for
intermittent periods from May 17 to August 9, 2013.
FACTUAL HISTORY
Appellant, a 48-year-old program analyst, injured his right wrist and right thumb when he
fell while ascending a flight of stairs on September 19, 2012. He filed a claim for benefits,

1

5 U.S.C. § 8101 et seq.

which OWCP accepted for right thumb strain, lumbar strain and tenosynovitis of the left thumb.
Appellant missed work for intermittent periods.
On January 30, 2013 appellant underwent surgery for a right thumb and right ring finger
trigger release. On May 2, 2013 he underwent a surgical release procedure to ameliorate the
condition of tenosynovitis of the left thumb.
Appellant returned to full duty on May 13, 2013.
Appellant submitted Forms CA-7 requesting compensation for wage loss for the
following periods: 8 hours on May 17, 2013; 17.5 hours between May 20 through 31, 2013; 19
hours between June 3 to 14, 2013; 36 hours between June 17 through 28, 2013; 8 hours between
July 1 through 12, 2013; and 40 hours between July 29 and August 9, 2013.
By letter to appellant dated August 27, 2013, OWCP requested additional factual and
medical evidence to establish disability for work during periods claimed, including medical
documentation to establish that he either had medical treatment or was unable to work as a result
of his work injury for all dates claimed. It noted that he was authorized to return to work on fullduty status on May 13, 2013 and that it had not received any medical documentation to support
the claimed periods of disability since that time. OWCP advised appellant that he had 30 days to
submit the requested information.
Appellant submitted several brief medical reports from March and April 2013. None of
these reports discussed whether he was disabled due to his accepted conditions for the periods
claimed.
In a September 30, 2013 report, Dr. Christopher P. Patton, an osteopath, stated that
appellant had undergone an electromyogram (EMG) on that date for evaluation of bilateral hand
pain and electrodiagnostic evaluation of the bilateral upper limbs. He discussed the history of
injury and indicated that appellant underwent surgical release in both hands but continued to
experience pain, mostly in the area where the trigger finger releases were performed. Appellant
also related having numbness and pain with activities. Dr. Patton diagnosed mononeuritis and
carpal tunnel syndrome. He advised that bilateral EMG tests of appellant’s hands showed
evidence of denervation with reinnervation but no ongoing denervation. Dr. Patton asserted that
all other muscles in the upper limbs were normal. He opined that there was electrodiagnostic
evidence of moderate to severe bilateral carpal tunnel syndrome, with no electrodiagnostic
evidence of cervical radiculopathy, plexopathy, peripheral polyneuropathy or myopathy.
By decision dated October 8, 2013, OWCP denied appellant’s claim for the periods of
wage-loss compensation.
LEGAL PRECEDENT
It is the employee’s burden of proof to establish disability during the period of time for
which wage-loss compensation is claimed. The term “disability” is defined by implementing
regulation as “the incapacity, because of an employment injury, to earn the wages the employee

2

was receiving at the time of injury. It may be partial or total.”2 The Board has long held that
whether a particular injury causes an employee disability for employment is a medical question
which must be resolved by competent medical evidence.3
ANALYSIS
OWCP accepted a claim for right thumb strain, lumbar strain and tenosynovitis of the left
thumb. It asked appellant to submit medical evidence to support the periods of disability
claimed. Appellant, however, did not provide a probative, rationalized medical opinion
establishing that he was disabled for work due to the accepted conditions for May 17, May 20
through 31, June 3 to 14; June 17 through 28; July 1 through 12; and July 29 to August 9, 2013.4
As noted above, to establish entitlement to compensation, an employee must establish
through competent medical evidence that disability from work resulted from the employment
injury.5 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 their disability and
entitlement to compensation.6 Appellant has the burden to demonstrate his disability for work
based on rationalized medical opinion evidence. The issue of whether a claimant’s disability is
related to an accepted condition is a medical question which must be established by a physician
who, on the basis of a complete and accurate factual and medical history, concludes that the
disability is causally related to employment factors and supports that conclusion with sound
medical reasoning.7 There is no such evidence in the case record. Appellant did not offer any
opinion or supporting medical rationale regarding the date that his disability began or his
disability for work for any additional periods. The only medical report which described his
conditions was the September 30, 2013 EMG report from Dr. Patton, who indicated that he still
had bilateral hand pain and numbness despite having undergone surgical release in both hands.
He diagnosed mononeuritis and carpal tunnel syndrome and stated that bilateral EMG tests of
appellant’s hands showed evidence of denervation with reinnervation. Dr. Patton, however, did
not provide a medical opinion containing medical rationale explaining how or why his right
thumb strain, lumbar strain and tenosynovitis of the left thumb conditions were affected by or
related to factors of employment during the periods claimed.8 Appellant has thus failed to
submit such evidence which would indicate that his accepted conditions caused any wage loss
for any periods.

2

20 C.F.R. § 10.5(f).

3

See Donald E. Ewals, 51 ECAB 428 (2000).

4

William C. Thomas, 45 ECAB 591 (1994).

5

Donald E. Ewals, supra note 3.

6

Paul E. Thams, 56 ECAB 503 (2005).

7

Howard A. Williams, 45 ECAB 853 (1994).

8

Id.

3

The Board also notes that there is no medical evidence of record that appellant obtained
medical treatment on any of the alleged dates of disability. Therefore he has also not established
that he sustained compensable wage loss due to time lost from work for medical treatment.
Because appellant has not provided evidence supporting his disability for work for the periods in
question, OWCP properly denied his claim for wage-loss compensation.
CONCLUSION
The Board finds that appellant has not met his burden to establish that he was entitled to
compensation for wage loss for intermittent periods from May 17; May 20 to 31; June 3 to 14;
June 17 to 28; July 1 to 12; and July 29 to August 9, 2013.
ORDER
IT IS HEREBY ORDERED THAT the October 8, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 22, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS CENTER, Bridgeport, CA, Employer
__________________________________________
Appearances:
Brook L. Beesley, for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 11-1524
Issued: September 27, 2011

Case Submitted on the Record

ORDER GRANTING REQUEST FOR ORAL ARGUMENT
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

By application dated June 9, 2011, appellant, through his representative, filed for review
of a December 15, 2010 decision of the Office of Workers’ Compensation Programs (OWCP)
denying his traumatic injury claim on the grounds of insufficient medical evidence establishing
fact of injury. The appeal was docketed as No. 11-1524. Appellant submitted a timely request
for oral argument, explaining the need to address the evidence of record before the Board. He
contends that the medical evidence of record established a prima facie claim and that OWCP
failed to meet its obligation to assist in the development of the claim pursuant to Federal (FECA)
Procedure Manual, Part 2 -- Claims, Development of Claims.
The Board has duly considered the matter and finds that appellant’s request for oral
argument should be granted. Pursuant to 20 C.F.R. § 501.5(a), oral argument may be held in the
discretion of the Board. In the present appeal, appellant’s request was timely filed and a need for
oral argument was advanced. The Board has jurisdiction over the merits of appellant’s claim.
The Board, in its discretion, grants oral argument.

IT IS HEREBY ORDERED THAT appellant’s request for oral argument in Docket
No. 11-1524 be granted.
Issued: September 27, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2