United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
U.S. POSTAL SERVICE, RUGBY POST
OFFICE, Brooklyn, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-685
Issued: August 2, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On February 6, 2012 appellant, through counsel, filed a timely appeal from a
November 1, 2011 decision of the Office of Workers’ Compensation Programs (OWCP)
regarding a schedule award. 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 established that he sustained more than a four percent
impairment of the right upper extremity, for which he received a schedule award.
On appeal, counsel asserts that appellant sustained a six percent impairment of the right
upper extremity based on the range of motion rating method. Alternatively, he contends that
there is a conflict of medical opinion between an attending second opinion physician requiring
resolution by an impartial medical examiner.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on October 5, 2005 appellant, then a 24-year-old city carrier,
sustained a right rotator cuff tear and right shoulder sprain when he lifted a container of mail.2
On February 26, 2007 Dr. Scott T. Gray, an attending Board-certified orthopedic surgeon,
performed arthroscopic repair of a torn right rotator cuff with subacromial decompression. He
held appellant off work through April 2007. Appellant received compensation for total
disability.3 He remained off work through April 20, 2008 and received compensation. Appellant
returned to limited-duty work on April 21, 2008. The employing establishment terminated him
in July 2008 due to a personnel issue.
On June 2, 2009 appellant claimed a schedule award. He submitted a July 10, 2008
impairment rating from Dr. David Weiss, an attending osteopathic physician, who found five
percent permanent impairment of the right upper extremity according to the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter,
“A.M.A., Guides”) then in effect.4
In an updated September 28, 2009 report, Dr. Weiss revised his July 10, 2008 opinion to
conform to the sixth edition of the A.M.A., Guides. He opined that appellant had reached
maximum medical improvement. Dr. Weiss noted a QuickDASH score of 25 percent for the
right arm. Right shoulder forward elevation was 160/180 degrees, abduction 116/180 degrees,
cross-over adduction 65/75 degrees, external rotation 80/90 degrees and internal rotation was to
T8. Dr. Weiss noted normal muscle strength throughout the right upper arm and a positive
impingement sign. He diagnosed post-traumatic impingement syndrome, status post right
shoulder arthroscopy and a partial thickness rotator cuff tear. Referring to Table 15-5, page 4035
of the sixth edition of the A.M.A., Guides, Dr. Weiss found a class 1 diagnosis-based impairment
(CDX) for a partial thickness rotator cuff tear with residual symptoms, entailing a default rating
of three percent. He noted a grade modifier for Functional History (GMFH) of 1 according to
Table 15-7, page 406,6 for pain with strenuous activity and a QuickDASH score of 25.
2

An October 10, 2005 magnetic resonance imaging (MRI) scan of the right shoulder showed acromioclavicular
impingement, fluid in the subdeltoid bursa and an intact rotator cuff.
3

On April 24, 2007 OWCP obtained a second opinion from Dr. Robert Israel, a Board-certified orthopedic
surgeon, who opined that appellant could work full-time limited duty. Dr. Gray submitted an April 16, 2007 report
finding appellant remained totally disabled. OWCP found a conflict of medical opinion between Drs. Israel and
Gray. To resolve the conflict, OWCP obtained an impartial opinion from Dr. Martin Wolpin, a Board-certified
orthopedic surgeon. In an October 31, 2007 report, Dr. Wolpin found appellant capable of full-time light-duty work
with lifting limited to five pounds. A December 4, 2007 investigative report indicated that appellant attended
college classes and participated in dance lessons while receiving compensation for total disability from January 9 to
October 23, 2007. In a January 16, 2008 addendum, Dr. Wolpin noted reviewing surveillance information from the
employer and stated that appellant’s academic and dance activities did not alter his opinion that appellant could
work full time with limited lifting.
4

In a July 28 and November 13, 2009 letters, OWCP advised appellant to submit an impairment rating from his
attending physician referring to the sixth edition of the A.M.A., Guides, in effect as of May 1, 2009.
5

Table 15-5, page 403 of the A.M.A., Guides is entitled “Shoulder Regional Grid.”

6

Table 15-7, page 406 of the A.M.A., Guides is entitled “Adjustment Grid Summary.”

2

Dr. Weiss determined a grade modifier for Physical Examination (GMPE) of 1 according to
Table 15-87 for “mild motion loss.” He noted a grade modifier for Clinical Studies (GMCS) of 2
according to Table 15-98 due to MRI scan evidence of a partial rotator cuff tear. Using the net
adjustment formula of (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), or (1-1) + (1-1) +
(2-1), Dr. Weiss calculated a grade adjustment of 1, raising the CDX default of three percent to a
four percent impairment of the right arm. Dr. Weiss explained that appellant’s impairment could
also be evaluated using the range of motion method. Referring generally to Table 15-34, page
475,9 he found three percent impairment for limited flexion and three percent impairment for
limited abduction, totaling six percent impairment of the right arm. Dr. Weiss opined that the
range of motion rating method should be used as it resulted in a higher calculated percentage of
impairment than the diagnosis-based method.
On February 20, 2010 an OWCP medical adviser concurred with Dr. Weiss’ calculation
of a diagnosis-based four percent impairment of the right arm. In an April 1, 2010 report, the
medical adviser explained that diagnosis-based assessment was the most appropriate to
appellant’s case as the range of motion method should not be used if other rating methods were
applicable. On May 18, 2010 OWCP requested that appellant submit a supplemental report from
Dr. Weiss explaining his reliance on the range of motion assessment method. As appellant did
not respond, OWCP referred appellant to Dr. Stanley Soren, a Board-certified orthopedic
surgeon, for a second opinion. In an August 3, 2010 report, Dr. Soren reviewed the medical
record and a statement of accepted facts. He found full abduction, adduction and internal
rotation of the right shoulder, with external rotation limited to 80/90 degrees. Dr. Soren
concurred with Dr. Weiss’ determination of four percent right upper extremity impairment using
the diagnosis-based method. On September 7, 2010 an OWCP medical adviser concurred with
Dr. Soren’s opinion.
By decision dated September 15, 2010, OWCP granted appellant a schedule award for
four percent permanent impairment of the right upper extremity.
In a September 21, 2010 letter, counsel requested a telephonic video hearing, held
January 25, 2011. At the hearing, he asserted that appellant had six percent impairment based on
restricted motion as it was greater than the four percent awarded for diagnosis-based impairment.
After the hearing, counsel submitted a February 11, 2011 report from Dr. Weiss contending that
a range of motion rating was more applicable to appellant’s case as he had limited motion after
subacromial decompression.
By decision dated and finalized April 26, 2011, an OWCP hearing representative
affirmed OWCP’s September 15, 2010 schedule award determination based on the opinions of
Dr. Soren and OWCP’s medical advisers who explained that the diagnosis-based rating method
was the most applicable to appellant’s situation.

7

Table 15-8, page 408 of the A.M.A., Guides is entitled “Physical Examination Adjustment: Upper Extremities.”

8

Table 15-9, page 410 of the A.M.A., Guides is entitled “Clinical Studies Adjustment: Upper Extremities.”

9

Table 15-34, page 475 of the A.M.A., Guides is entitled “Shoulder Range of Motion.”

3

In a July 27, 2011 letter, appellant requested reconsideration. He contended that he was
entitled to a schedule award based on loss of motion as it was higher than the diagnosis-based
impairment calculation. Alternatively, appellant asserted a conflict of medical opinion between
Dr. Weiss and Dr. Soren.
On August 10, 2011 OWCP asked an OWCP medical adviser to explain which rating
method was most appropriate to evaluate appellant’s right arm impairment. In an August 12,
2011 report, the medical adviser opined that Dr. Soren was justified in using the diagnosis-based
method. He also noted that, using Dr. Soren’s findings, appellant had no more than four percent
right arm impairment based on limited range of motion. The medical adviser noted that
appellant’s range of motion improved during the two years between Dr. Weiss’ July 10, 2008
examination and Dr. Soren’s August 3, 2010 examination. He explained that the diagnosis-based
method was more appropriate as appellant had essentially normal motion on Dr. Soren’s
examination.
By decision dated November 1, 2011, OWCP denied modification on the grounds that the
medical evidence did not demonstrate that appellant sustained more than a four percent
impairment of the right upper extremity for which he received the September 15, 2010 schedule
award. It found that Dr. Soren’s opinion continued to represent the weight of the medical
evidence.
LEGAL PRECEDENT
The schedule award provisions of FECA10 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a mater which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized 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 OWCP as a standard for evaluation of schedule losses and the Board
has concurred in such adoption.11 For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides, published in 2008.12
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).13 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on GMFH, GMPE
10

5 U.S.C. § 8107.

11

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
13

A.M.A., Guides (6th ed. 2008), page 3, Section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”

4

and GMCS.14 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
The A.M.A., Guides divides the upper extremity into regions for rating purposes. The hand is
one of the designated regions.15
ANALYSIS
OWCP accepted that appellant sustained a right shoulder sprain and right rotator cuff
tear, requiring a right rotator cuff repair with subacromial decompression on February 26, 2007.
Appellant claimed a schedule award on June 2, 2009. In support of his claim, he submitted the
July 10, 2008 and updated September 28, 2009 reports from Dr. Weiss, an attending physician.
In the September 28, 2009 report, Dr. Weiss noted using the sixth edition of the A.M.A., Guides
and found a class 1 diagnosis-based impairment for a partial thickness right rotator cuff tear with
residuals. He noted a grade 1 modifier for functional history for pain with vigorous activity and
a QuickDASH score of 25, a grade 1 modifier for physical examination for mild motion loss, and
a grade 2 modifier for clinical studies due to MRI scan evidence of a partial rotator cuff tear.
The net adjustment formula of (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX) resulted in a
grade adjustment of 1, raising the default three percent impairment to four percent. However,
Dr. Weiss contended that appellant had six percent impairment based on limited motion, but did
not clearly explain why the alternative rating method was the more appropriate.
Dr. Soren, a second opinion physician, submitted an August 3, 2010 report concurring
with Dr. Weiss’ four percent impairment rating, finding essentially normal motion in the right
shoulder. Based on Dr. Soren’s opinion, OWCP issued a schedule award on September 15, 2010
for a four percent impairment of the right upper extremity.
Pursuant to a hearing, Dr. Weiss asserted that the range of motion method was more
applicable to appellant’s case as he had residuals after subacromial decompression. However, an
OWCP medical adviser explained on August 12, 2011 that the diagnosis-based model was the
most appropriate rating method as appellant had essentially normal right shoulder motion as of
Dr. Soren’s August 3, 2010 examination, significantly improved from Dr. Weiss’ July 10, 2008
examination. OWCP affirmed the schedule award on November 1, 2011.
The Board finds that Dr. Soren applied the appropriate tables and grading schemes of the
A.M.A., Guides in determining four percent impairment using the diagnosis-based rating
method. Dr. Soren based his opinion on the medical record and a statement of accepted facts.
He performed a thorough clinical examination, noting normal findings with the exception of a
10-degree loss of external rotation. Dr. Soren used the A.M.A., Guides net adjustment formula
to calculate a four percent diagnosis-based impairment of the right upper extremity. An OWCP
medical adviser explained that it was inappropriate for Dr. Weiss to rely on a range of motion
based impairment as the diagnosis-based method was the preferred rating rubric. Additionally,
the medical adviser noted that a range of motion impairment would not yield any greater
impairment as appellant’s range of motion improved significantly between Dr. Weiss’ July 10,
2008 examination and Dr. Soren’s August 3, 2010 assessment.
Therefore, OWCP’s
14

A.M.A., Guides (6th ed. 2008), pp. 494-531.

15

A.M.A., Guides (6th ed. 2008), page 384, Figure 15-1, “Upper Extremity Regions.”

5

November 1, 2011 decision affirming the September 15, 2010 schedule award is appropriate
under the law and facts of this case.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
On appeal, counsel asserts that appellant sustained a six percent impairment of the right
upper extremity based on the range of motion rating method. As stated above, the medical
evidence supports that the diagnosis-based assessment method was appropriate for appellant’s
case. Alternatively, counsel contends that there is a conflict of medical opinion between
Dr. Weiss and Dr. Soren, requiring resolution by an impartial medical examiner. The Board
finds that there is no conflict of opinion as Dr. Weiss did not properly apply the A.M.A., Guides.
CONCLUSION
The Board finds that appellant has not established that he sustained more than a four
percent impairment of the right upper extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 1, 2011 is affirmed.
Issued: August 2, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
U.S. POSTAL SERVICE, WOODLAND HILLS
POST OFFICE, Santa Clarita, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 06-1966
Issued: January 23, 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 August 22, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 25, 2006 merit decision denying his claim for wage-loss benefits,
and its June 15, 2006 nonmerit decision denying his request for reconsideration. Under
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 properly denied appellant’s claim for wage-loss
compensation for the period March 7 through 15, 2006; and (2) whether the Office properly
refused to reopen his case for further review of the merits of his claim pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On June 6, 2005 appellant, a 53-year-old mail carrier, filed an occupational disease claim
alleging that he reinjured his lower back on May 26, 2005 in the performance of duty. His claim

was accepted for a lumbosacral strain.1
Appellant returned to limited duty on
September 15, 2005. On March 28, 2006 he filed a claim for wage-loss compensation alleging
that he was totally disabled due to his May 26, 2005 injury on March 7 through 15, 2006.
In support of his wage-loss claim, appellant submitted reports from his treating
physicians, Dr. Barbara Scott, a Board-certified internist, and Dr. Steven Grahek, Board-certified
in the field of emergency medicine. On March 6, 2006 Dr. Grahek diagnosed “lumbosacral
strain and pain with L5 radiculopathy/industrial, with recent flare-up.” He reported that
appellant walked with a mild limp and that his pain level was 10/10. Examination revealed that
appellant’s lumbar spine was nontender, but that there was tenderness over the right S1 area.
Dr. Grahek placed him on temporary total disability for March 7, 2006. In a March 9, 2006
report, Dr. Scott opined that appellant experienced a severe exacerbation of low back pain with
spasms, over a three-week period. Referencing the May 26, 2005 date of injury, she provided a
diagnosis of “lumbosacral strain with right L5 radiculopathy, occupational, flare-up.” Dr. Scott
noted that appellant returned to work on March 9, 2006 after having been on temporary total
disability for five days, but was unable to perform his work activities due to low back pain. She
recommended that he “be continued on seven calendar days of temporary total disability.” On
March 15, 2005 Dr. Scott opined that appellant could return to work provided that he be
restricted from bending, twisting, walking or lifting more than 20 pounds. In a documentation of
medical impairment form dated March 15, 2006, she indicated that he was disabled due to lower
back pain and lumbar radiculopathy. The dates of alleged disability were illegible. In a
March 15, 2006 report, Dr. Scott found that appellant had mild tenderness and spasm over his
right lumbar musculature and released him to return to work with restrictions. In a March 15,
2006 attending physician’s report, she noted a history of “severe worsening of low back pain”
and provided a diagnosis of “flare-up L5 strain at R L5 radiculopathy.” Dr. Scott indicated that
appellant’s period of total disability was from March 6 through 15, 2006. In response to the
question as to whether she believed his condition was caused or aggravated by his employment,
Dr. Scott placed a checkmark in the “yes” box and added the notation, “working excessive
hours.” An unsigned March 6, 2006 work excuse reflected that appellant would be unable to
work for two days due to low back pain and radiculopathy. A March 9, 2006 work excuse
reflected that he would be unable to work for seven days.
By letter dated April 11, 2006, the Office informed appellant that the information
submitted was insufficient to establish his claim and advised him to submit contemporaneous
medical evidence of the disability for the period claimed, supported by an increase in objective
findings and an explanation as to how this increase precluded him from performing his
employment duties. It provided him 30 days to submit the required evidence.
In a decision dated May 25, 2006, the Office denied appellant’s claim for compensation
for the period March 7 through 15, 2006, finding that the evidence did not support that he was
disabled during the claimed period as a result of his May 26, 2005 injury.
1

Other claims filed by appellant include: File No. 132003482 (for injuries sustained on May 17, 2000); File
No. 132067871 (for injuries sustained on December 5, 2002, accepted for lumbosacral strain with sciatica); File
No. 132110667 (for injuries sustained on February 28, 2004, accepted for lumbar strain with sciatica); File
No. 132131385 (for injuries sustained on May 26, 2005); and File No. 132156952 (for injuries sustained on
August 8, 2006, accepted for lumbosacral strain).

2

On June 6, 2006 appellant requested reconsideration of the Office’s May 25, 2006
decision. In support of his request, appellant submitted an April 13, 2006 work restriction
summary. In a May 31, 2006 narrative statement, he indicated that his doctor advised him to
stop working after he pulled his back out and contended that he should not be penalized for
following his doctor’s instructions. In a June 4, 2006 statement, appellant contended that his
injuries constituted “objective findings;” stated that his doctor wanted to know what information
the Office needed; and contended that denial of his claim for compensation constituted
harassment.
By decision dated June 15, 2006, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was immaterial and, therefore,
insufficient to warrant a review of its prior decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence.3
For each period of disability claimed, the employee has the burden of establishing that he was
disabled for work as a result of the accepted employment injury.4 Whether a particular injury
causes an employee to become disabled for work, and the duration of that disability, are medical
issues that must be proved by a preponderance of probative and reliable medical opinion
evidence.5 The Board will not require the Office 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
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence.7 Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The

2

U.S.C. §§ 8101-8193.

3

See Amelia S. Jefferson, 57 ECAB ___ (Docket No. 04-568, issued October 26, 2005); see also Nathaniel
Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968).
4

See Amelia S. Jefferson, supra note 3. See also David H. Goss, 32 ECAB 24 (1980).

5

See Edward H. Horton, 41 ECAB 301 (1989).

6

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

7

See Viola Stanko, claiming as widow of Charles Stanko, 56 ECAB ___ (Docket No. 05-53, issued April 12,
2005); see also Naomi A. Lilly, 10 ECAB 560, 572-573 (1959).

3

opinion of the physician must be based on a complete factual and medical background of the
claimant,8 must be one of reasonable medical certainty,9 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.10
Under the Act, 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.11 Disability is
thus not synonymous with physical impairment, which may or may not result in incapacity to
earn wages. An employee who has a physical impairment causally related to a federal
employment injury, but who nevertheless has the capacity to earn the wages he or she was
receiving at the time of injury, has no disability as that term is used in the Act.12
ANALYSIS -- ISSUE 1
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence a causal relationship between his claimed total disability for the period
March 7 through 15, 2006 and the accepted lumbosacral strain.13 The reports of his physicians
do not provide a rationalized medical opinion finding him disabled for work for the claimed
period due to his accepted condition. Therefore, the medical evidence submitted is insufficient
to meet appellant’s burden of proof.14
On March 6, 2006 Dr. Grahek diagnosed “lumbosacral strain and pain with L5
radiculopathy/industrial, with recent flare-up.” He reported that appellant walked with a mild
limp and that his pain level was reportedly 10/10. Dr. Grahek noted that his lumbar spine was
nontender, but that there was tenderness over the right S1 area. Appellant had no pain,
numbness or tingling radiating down his leg. Dr. Grahek placed him on temporary total
disability for one day. However, he provided no opinion as to how appellant’s alleged disability
was causally related to the accepted May 26, 2005 injury and his report is of diminished
probative value.15 Dr. Grahek also failed to discuss appellant’s employment duties or to discuss

8

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

9

See Morris Scanlon, 11 ECAB 384, 385 (1960).

10

See William E. Enright, 31 ECAB 426, 430 (1980).

11

20 C.F.R. § 10.5(f).

12

Cheryl L. Decavitch, 50 ECAB 397, 401 (1999).

13

See Amelia S. Jefferson, supra note 3.

14

Alfredo Rodriguez, 47 ECAB 437 (1996).

15

See Brenda L. DuBuque, 55 ECAB 212 (2004); see also David L. Scott, 55 ECAB 330 (2004); Willa M.
Frazier, 55 ECAB 379 (2004).

4

how his current physical condition rendered him unable to perform those duties. An
exacerbation of appellant’s symptoms does not automatically result in his inability to work.16
Dr. Scott’s March 9, 2006 report also fails to establish that appellant was disabled for the
periods in question. She provided a diagnosis of “lumbosacral strain with right L5
radiculopathy, occupational, flare-up.” Dr. Scott noted that appellant returned to work on
March 9, 2006 after having been on temporary total disability for five days, but was unable to
perform his work activities due to low back pain. Referencing the May 26, 2005 date-of-injury,
she opined that he had experienced a severe exacerbation of low back pain, with spasms, over a
three-week period and recommended that he “be continued on seven calendar days of temporary
total disability.” However, Dr. Scott provided no objective findings to support appellant’s
disability, nor did she address how his flare-up prevented him from performing the duties
associated with his job. Moreover, she failed to explain how his alleged disability was causally
related to the accepted May 26, 2005 injury. For all of these reasons, Dr. Scott’s report is of
diminished probative value.
Dr. Scott’s March 15, 2006 reports also fail to support appellant’s claim for lost wages.
In a work excuse form, she indicated that he was disabled due to lower back pain and lumbar
radiculopathy, but the dates of alleged disability were illegible. In a separate March 15, 2006
report, Dr. Scott found that appellant had mild tenderness and spasm over his right lumbar
musculature and released him to return to work with restrictions. This report did not address
disability during the periods in question and, therefore, lacks probative value. In a March 15,
2006 attending physician’s report, Dr. Scott noted a history of “severe worsening of low back
pain;” provided a diagnosis of “flare-up L5 strain at R L5 radiculopathy;” and indicated that
appellant’s period of total disability was March 6 through 15, 2006. In response to the question
as to whether she believed his condition was caused or aggravated by his employment, Dr. Scott
placed a checkmark in the “yes” box and added the notation, “working excessive hours.” Her
attending physician’s report failed to establish that appellant was disabled as a result of the
accepted employment incident for the period March 7 through 15, 2006. Dr. Scott has again
failed to provide objective findings or to explain how appellant’s condition was physiologically
related to the accepted injury. Although she used a check mark to indicate a belief that the injury
caused his current condition, Dr. Scott failed to explain her conclusion. A mere checkmark or
affirmative notation in response to a form question on causal relationship is not sufficient to
establish causal relationship.17 The Board notes that Dr. Scott opined on March 15, 2006 that
appellant was disabled from March 6 through 15, 2006. However, the evidence of record reflects
that she did not examine him until March 9, 2006 for complaints related to his alleged disability
on March 7 through 15, 2006. The record does not contain objective data and Dr. Scott has not
presented any other basis for her knowledge that appellant was disabled prior to March 9, 2006.
The Board further notes that, although Dr. Scott opined that appellant was disabled on March 15,
2006, she also released him to work with restrictions on that date. This inconsistency further
diminishes the probative value of Dr. Scott’s report.

16

See Cheryl L. Decavitch, supra note 12.

17

See Gary J. Watling, 52 ECAB 278 (2001).

5

The remaining medical evidence of record is insufficient to establish appellant’s claim.
He submitted several work excuses reflecting an opinion that he was disabled. However, the
Board has long held that an opinion without explanation lacks probative value.18
Because appellant has not submitted any reasoned medical opinion evidence to show that
he was disabled for the period March 7 through 15, 2006 as a result of his accepted employment
injury, the Board finds that the Office properly denied his claim for wage-loss compensation.
LEGAL PRECEDENT -- ISSUE 2
The Act19 provides that the Office may review an award for or against compensation
upon application by an employee (or his or her representative) who receives an adverse decision.
The employee may obtain this relief through a request to the district Office. The request, along
with the supporting statements and evidence, is called the “application for reconsideration.”20
The application for reconsideration must set forth arguments and contain evidence that
either: (1) shows that the Office erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by the Office; or (3) constitutes
relevant and pertinent new evidence not previously considered by the Office.21
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits.22 Where
the request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.23
ANALYSIS -- ISSUE 2
Appellant’s June 6, 2006 request for reconsideration neither alleged, nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, he did
not advance a relevant legal argument not previously considered by the Office. Consequently,
appellant is not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(2).
Appellant also failed to submit relevant and pertinent new evidence not previously
considered by the Office. The Office denied his claim on the grounds that the medical evidence
18

See Brenda L. DuBuque, supra note 15; George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board
found that a medical opinion not fortified by medical rationale is of little probative value).
19

5 U.S.C. §§ 8101 et seq.

20

20 C.F.R. § 10.605.

21

20 C.F.R. § 10.606.

22

Donna L. Shahin, 55 ECAB 192 (2003).

23

20 C.F.R. § 10.608.

6

failed to show that he was disabled for the period March 7 through 15, 2006, as a result of his
May 26, 2005 injury. Its May 25, 2006 merit decision, therefore, turned on a medical issue, but
when appellant requested reconsideration, he submitted no new medical opinion evidence
addressing the issue of his disability or causal relationship. Indeed, most of the evidence he
submitted was irrelevant to these issues. In support of his request for reconsideration, appellant
submitted an April 13, 2006 work restriction summary and statements dated May 31 and
June 6, 2006. As the April 13, 2006 summary does not address the period March 7 through 15,
2006, it is irrelevant. In his May 31, 2006 statement, appellant stated that his doctor advised him
to stop working after he pulled his back out and contended that he should not be penalized for
following his doctor’s instructions. In appellant’s June 4, 2006 statement, he contended that his
injuries constituted “objective findings;” stated that his doctor wanted to know what information
the Office needed; and contended that denial of his claim for compensation constituted
harassment. These statements made by him, a layperson, do not constitute competent medical
evidence on whether appellant was disabled during the period in question as a result of the
accepted employment injury and are irrelevant to the issue at hand.24 Therefore, the Office
properly determined that this evidence did not constitute a basis for reopening the case for a
merit review.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under
section 10.606(b)(2) and properly denied his June 6, 2006 request for reconsideration .
CONCLUSION
The Board finds that appellant has not established that he was disabled for work and
entitled to wage-loss compensation for the periods of March 7 through 15, 2006. It further finds
that the Office properly refused to reopen his case for further review of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).

24

D. Wayne Avila, 57 ECAB ___ (Docket No. 06-366; issued June 21, 2006). See James A. Long, 40 ECAB 538
(1989) (where the Board held that the statement of a layperson is not competent evidence on the issue of causal
relationship).

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 15 and May 25, 2006 are affirmed.
Issued: January 23, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, TUSTIN POST
OFFICE, Tustin, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1208
Issued: June 3, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 17, 2009 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ December 24, 2008 merit decision finding that he did not sustain an injury while in
the performance of duty and a February 17, 2009 nonmerit decision denying his request for
reconsideration. 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 appellant established that he sustained a right foot injury
while in the performance of duty; and (2) whether the Office properly denied his request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that he did not sustain a new right foot injury. Rather, he
sustained a recurrence of his 1982 employment-related bilateral foot condition in Office File
No. xxxxxx098. Therefore, the Office should have authorized his July 16, 2008 right foot
surgery.

FACTUAL HISTORY
On July 23, 2008 appellant, then a 55-year-old customer service supervisor, filed an
occupational disease claim alleging that in 2007 he first became aware of his right foot condition.
In 1982 he underwent bilateral foot surgery due to a prior work-related foot injury.
Subsequently, appellant experienced recurring foot complications secondary to diabetes mellitus,
which included infected ulcerations on the left foot for which he underwent surgery in 2007 and
significant peripheral polyneuropathy. He contended that, over the prior year, he developed
ulcerations on his right foot, some of which became infected. The ulcers were treated but did not
respond to multiple conservative measures. An attending physician advised appellant that
surgery was necessary to prevent complications such as possible amputation. Appellant stopped
work on July 16, 2008.
A May 21, 2008 medical report from Dr. Allan G. Weiss, an attending Board-certified
podiatrist, reviewed a history of appellant’s bilateral foot complaints and medical treatment
including his 1982 bilateral foot surgery and 2007 left foot surgery. Dr. Weiss stated that
appellant developed recurrent neuropathic diabetic foot ulcers on the right foot, some of which
became infected and were treated over the prior year. Appellant also developed insulindependent diabetes mellitus and significant peripheral polyneuropathy. Dr. Weiss advised that
appellant’s foot ulcerations were unresponsive to appropriate treatment. In a June 25, 2008
prescription, Dr. Weiss ordered Cephalexin. A consent form signed by appellant on July 2, 2008
authorized Dr. Weiss to perform surgery on July 16, 2008 to correct a recurrent infected diabetic
ulcer on his right foot.
On July 28, 2008 the employing establishment contended that appellant did not sustain a
right foot injury while in the performance of duty. It attributed his condition to his nonindustrial
preexisting diabetes mellitus.1
By letter dated August 8, 2008, the Office advised appellant that the evidence submitted
was insufficient to establish his claim. On August 25, 2008 appellant contended in a telephone
conference with the Office that his claimed right foot injury was caused by his 1982
employment-related foot surgery.
In an August 25, 2008 report, Dr. Weiss reviewed a history of appellant’s foot conditions
and medical treatment. He stated that appellant experienced complications since his 1982 workrelated foot surgery. Appellant underwent left foot surgery in 2007 secondary to complications
from a prior work-related injury, recurring foot complications due to diabetes mellitus, which
included peripheral polyneuropathy and his work duties. Dr. Weiss advised that appellant was
doing extremely well following the 2007 surgery but had developed right foot ulcers secondary
to insulin-dependent diabetes mellitus, significant peripheral polyneuropathy, unresponsiveness
to appropriate conservative measures, prior foot surgery with abnormal metatarsal parabolas,
work requirements which included extensive standing and walking and the prior work-related
injuries. Dr. Weiss performed surgery on July 16, 2008.
1

The employing establishment indicated that appellant filed a prior claim, Office File No. xxxxxx143, for a left
foot injury which was accepted by the Office for temporary aggravation of a preexisting injury.

2

By decision dated September 10, 2008, the Office denied appellant’s claim, finding the
medical evidence insufficient to establish that he sustained a right foot condition causally related
to the established work-related duties.
By letter dated September 29, 2008, appellant requested reconsideration of the Office’s
September 10, 2008 decision.
In a December 24, 2008 decision, the Office denied modification of the September 10,
2008 decision. It found that the evidence submitted by appellant was insufficient to establish
that he sustained a right foot injury causally related to the established work-related duties. On
February 4, 2009 appellant requested reconsideration.
By decision dated February 17, 2009, the Office denied appellant’s request for
reconsideration, finding that it neither raised substantive legal questions nor included new and
relevant evidence and, thus, it was insufficient to warrant further merit review of appellant’s
claim.2
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.4 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
2

On appeal, appellant submitted new evidence. However, the Board cannot consider evidence that was not
before the Office at the time of the final decision. See 20 C.F.R. § 501(c)(1); J.T., 59 ECAB ___ (Docket No. 071898, issued January 7, 2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A.
Kayes, 54 ECAB 373 (2003). Appellant may resubmit this evidence and legal contentions to the Office
accompanied by a formal written request for reconsideration. 5 U.S.C. § 8128; 20 C.F.R. § 10.606.
3

5 U.S.C. §§ 8101-8193.

4

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

5

See Delores C. Ellyett, 41 ECAB 992, 994 (1990); Ruthie M. Evans, 41 ECAB 416, 423-25 (1990).

3

evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized 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.6 Neither the fact that appellant’s condition became apparent during a
period of employment nor his belief that the condition was caused by his employment is
sufficient to establish a causal relationship.7
ANALYSIS -- ISSUE 1
The Office accepted that appellant performed the work duties of a customer service
supervisor as alleged. The Board finds that the medical evidence submitted is insufficient to
establish that his diagnosed foot conditions were caused or aggravated by his work-related
duties.
Appellant submitted medical records from Dr. Weiss, an attending podiatrist. In a
May 21, 2008 report, Dr. Weiss reviewed a history of appellant’s bilateral foot complaints and
medical treatment. He diagnosed recurrent neuropathic diabetic foot ulcers on the right foot,
some of which were infected and treated, insulin-dependent diabetes mellitus and significant
peripheral polyneuropathy. Dr. Weiss did not specifically attribute appellant’s right foot ulcers
to the established work-related duties of a customer service supervisor. Rather, he related them
to appellant’s diabetes. Dr. Weiss did not adequately address whether appellant’s peripheral
polyneuropathy condition was caused by the established work-related duties. On June 25, 2008
he prescribed medication but did not provide any additional medical opinion addressing whether
appellant sustained a right foot condition caused or aggravated by his work activities.
On August 25, 2008 Dr. Weiss reviewed a history of appellant’s foot condition and 1982
and 2007 employment-related surgeries. He opined that appellant’s right foot ulcers were
secondary to, among other things, his work duties which required extensive standing and
walking and to the prior work injuries. Again, Dr. Weiss failed to provide sufficient medical
opinion explaining how the diagnosed condition was caused or aggravated by appellant’s work
duties or injuries. The Board finds that his reports are insufficient to establish appellant’s claim.
The Board finds that there is insufficient rationalized medical evidence to establish that
appellant sustained a right foot condition causally related to the accepted factors of his federal
employment as a customer service supervisor. Appellant did not meet his burden of proof.
While appellant contends on appeal that his current right foot condition and surgery were
due to the 1982 work injury, causal relation is a medical question that can generally be resolved
only by probative opinion from a physician.8 Dr. Weiss did not adequately address how
6

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

7

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

8

Robert G. Morris, 48 ECAB 238 (1996).

4

appellant’s condition in 2007 or need for surgery related to his prior injury or surgery in 1982 or
how his current right foot condition was a natural progression of the accepted injury. Appellant
did not submit any additional medical evidence addressing the causal relationship between his
right foot condition and his accepted 1982 injury.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128 of the Act,9
the Office’s regulations provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.10 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.11 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review of the merits.
ANALYSIS -- ISSUE 2
Appellant’s February 4, 2009 request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law. He did
not advance a relevant legal argument not previously considered by the Office. Appellant did
not submit any additional medical evidence in connection with his February 4, 2009
reconsideration request. He submitted an appeal form indicating that he wanted reconsideration
without any explanation regarding the basis of his request. Therefore, appellant has not satisfied
any of the three regulatory requirements for obtaining a merit review of his claim. The Board
finds that the Office properly refused to reopen his claim for reconsideration of the merits.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a right foot injury
while in the performance of duty. The Board further finds that the Office properly denied his
request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

9

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
10

20 C.F.R. § 10.606(b)(1)-(2).

11

Id. at § 10.607(a).

5

ORDER
IT IS HEREBY ORDERED THAT the February 17, 2009 and December 24, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 3, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
U.S. POSTAL SERVICE, DISTRIBUTION
CENTER, Minneapolis, MN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-2091
Issued: August 6, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 22, 2008 appellant filed a timely appeal from schedule award decisions of the
Office of Workers’ Compensation Programs dated February 14 and June 24, 2008. Pursuant to
20 C.F.R. §§ 510.2(c) and 501.3, the Board has jurisdiction over the merits of the appeal.
ISSUE
The issue is whether appellant has more than 38 percent impairment of his left lower
extremity, for which he received a schedule award.
FACTUAL HISTORY
On January 31, 1991 appellant, then a 46-year-old clerk, fell while in the performance of
duty, sustaining injury to his left arm, head and shoulder. The Office accepted his claim for
contusions of the left elbow, forearm and shoulder, left hip and thigh, left shoulder epicondylitis
and impingement syndrome.1 On May 8, 1996 appellant injured his left knee while pushing a
1

Appellant received a schedule award for 12 percent impairment to his left arm. This claim was given Master
File No. xxxxxx793.

mail cart. The Office accepted his claim for a torn medial meniscus of the left knee, an
aggravation of osteoarthritis and bilateral enthesopathy of the hip region.2
Appellant submitted treatment notes from Dr. Christopher M. Larson, a Board-certified
orthopedic surgeon, who diagnosed osteoarthritis of the left knee medial compartment and noted
that appellant was recovering from a partial medial meniscectomy and debridement surgery. On
June 28, 2004 Dr. Larson noted that appellant has complaints of pain with stair climbing.
Physical examination findings included no laxity to varus or valgus stress with 10 degrees of
flexion contracture to 110 degrees of flexion. Dr. Larson noted that appellant would eventually
be a candidate for total knee arthroplasty. He continued appellant on light-duty work for six
hours a day.
On October 11, 2004 Dr. David H. Garelick, an Office medical adviser, reviewed the
history of appellant’s June 3, 2003 meniscectomy. Under Table 17-33 at page 546 of the
American Medical Association, Guides to the Evaluation of Permanent Impairment, he assigned
two percent impairment for the partial medial meniscectomy. Utilizing Table 17-31 at page 544,
the Office medical adviser noted that appellant had an additional 15 percent impairment for
isolated medial compartment arthritis.3 Combining these values resulted in a total 17 percent
impairment.4 Dr. Garelick advised that maximum medical improvement was on June 28, 2004
when appellant was released by Dr. Larson.
On December 27, 2005 the Office granted appellant a schedule award for 17 percent
impairment to his left leg.5
On October 26, 2006 appellant requested an additional schedule award. In an August 16,
2006 report, Dr. Larson reiterated that appellant had been treated for a degenerative medial
meniscus tear and for progressive osteoarthritis. He noted that x-rays obtained in June 2006
showed significant arthritic changes with minimal joint space remaining about the joint
compartments of both knees. Appellant was also treated by Dr. Phillip Hoversten, a Boardcertified internist. On May 14, 2007 Dr. Hoversten noted that appellant had moderate left hip
pain that was difficult to differentiate from his knee pain. On examination of the left knee, he
noted crepitus, moderately decreased flexion and extension and Grade 2 medial collateral laxity.
Range of motion of the left hip was described as 70 degrees forward flexion, 20 degrees
extension, 30 degrees abduction, 10 degrees adduction, 25 degrees internal rotation and 15
degrees external rotation. Dr. Hoversten stated that appellant had 14 percent whole man
impairment and had reached maximum medical improvement.
2

This was given File No. xxxxxx457. On April 7, 2005 the Office accepted that appellant sustained right hip
trochanteric bursitis as a result of his federal employment. This was given File No. xxxxxx134.
3

The Board notes that Dr. Garelick extrapolated this impairment rating as he did not identify any x-rays on which
the estimate was based.
4

Table 17-2, the cross usage chart, does not preclude combining impairment for arthritis with the diagnosis-based
impairment for the partial meniscectomy.
5

The schedule award also granted compensation for right leg impairment which is not an issue on appeal. On
September 8, 2006 the Office accepted that appellant sustained an aggravation of degenerative arthritis of the left
knee.

2

On May 20, 2007 Dr. Garelick evaluated the extent of left hip range of motion
impairment with reference to Table 17-9, page 537. He noted that 70 degrees of flexion was 10
percent impairment and 20 degrees of extension was 0 percent impairment; 30 degrees abduction
was 0 percent impairment and 10 degrees of adduction was 5 percent impairment; and internal
rotation of 25 degrees was 0 impairment and 15 degrees external rotation was 10 percent
impairment. Dr. Garelick added the loss of range of motion impairment to total 25 percent.
On July 9, 2007 Dr. Hoversten provided a left knee impairment evaluation, noting that
appellant has surgery for his meniscus and osteoarthritis of the knee. Appellant noted complaints
of pain with motion and tightness at night. On examination range of motion was listed as 75
degrees flexion; 45 degrees extension and 45 degrees of ankylosis. Dr. Hoversten noted mild
atrophy bilaterally and found no ligament instability with a mild valgus deformity. The left
lower extremity was described as two centimeter (cm) shorter than the right due to flexion
contracture. Dr. Hoversten advised that maximum medical improvement for the left knee was
reached on August 16, 2006, as reported by Dr. Larson. He found a total 19 percent whole man
impairment, rating 8 percent impairment for knee flexion at Table 17-10, page 537; 5 percent
impairment for loss of muscle strength at Table 17-8, page 532; 2 percent impairment under
Table 17-33 for leg length discrepancy and an additional 4 percent impairment for the medial
meniscectomy.6
On July 30, 2007 Dr. Garelick noted that his prior review in May 2007 had found 25
percent impairment for loss of range of hip motion due to residuals of the trochanteric bursitis.
He stated that he was not aware that appellant had already been awarded 17 percent lower
extremity impairment for his left knee. Dr. Garelick advised that, using the Combined Values
Chart, combining the 25 percent left hip impairment with the 17 percent left knee impairment
resulted in a total of 38 percent impairment of the left leg.
On October 4, 2007 the Office granted appellant an additional schedule award for 21
percent impairment of his left lower extremity.
Appellant requested a review of the written record before an Office hearing
representative on October 30, 2007. In a January 2, 2008 decision, the Office hearing
representative set aside the October 4, 2007 schedule award and remanded the case for further
development of the medical evidence.
On January 21, 2008 Dr. Garelick again reviewed the medical evidence of record, noting
that appellant has received ratings of impairment for residual medial compartment left knee
arthritis and a partial medial meniscectomy and for loss of range of left hip motion from
trochanteric bursitis. He noted that the whole person impairment rating provided by
Dr. Hoversten was not recognized and could not be compensated as described. Further,
Dr. Hoversten had rated impairment for weakness which, under Table 17-2, could not be
combined with the loss of range of motion findings. Dr. Garelick reiterated that appellant had 38
percent impairment to his left leg.

6

The Board notes that Dr. Hoversten did not address the cross-usage chart at Table 17-2.

3

In a February 14, 2008 decision, the Office found that the medical evidence of record did
not establish greater than 38 percent impairment to appellant’s left leg.
On February 29, 2008 appellant contended that he had greater impairment to his left leg.
On April 22, 2008 he requested reconsideration of the February 14, 2008 schedule award and
submitted the February 27, 2008 report of Dr. Hoversten who noted that appellant had moderate
aching and pain with activity. Dr. Hoversten rated impairment of the left knee under Table 1722, page 540, as 33 percent due to flexion contracture; 20 percent under Table 17-10 for knee
flexion to 75 degrees; and 5 percent under Table 17-4, page 528 for leg length discrepancy of 2
cm. He reiterated that appellant was at maximum medical improvement.
On June 2, 2008 Dr. Garelick noted that appellant was alleging greater loss of range of
motion to his left knee. He stated that Dr. Hoversten described appellant’s range of motion loss
to an extent that was not compatible with ambulation. Dr. Garelick did not have all his medical
records to review and noted that appellant could be referred for further examination. On June 10,
2008 he again reviewed the medical record and stated that appellant’s prior left leg impairment
rating was based on 15 percent for left knee medial compartment arthritis, 2 percent for left knee
meniscectomy and 25 percent for loss of range of motion of the left hip. Dr. Garelick reiterated
that Dr. Hoversten provided an impairment rating that combined values in rating the left knee
which were prohibited under the cross-usage chart. He noted that appellant was rated greater
impairment of 15 percent for arthritis than for loss of range of motion to the knee of 10 to 110
degrees, as arthritis could not be rated with loss of motion. Dr. Garelick found no greater than
38 percent impairment to appellant’s left leg.
In a June 24, 2008 decision, the Office denied modification of its February 14, 2008
decision. It found that appellant did not establish greater than 38 percent impairment to his left
leg.
LEGAL PRECEDENT
The schedule award provision of the Act7 and its implementing regulations 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.8 However, the Act 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 Office as the appropriate standard
for evaluating schedule losses.9
In rating lower extremity impairment under Chapter 17, the cross-usage chart provides
that not all impairment affecting the member may be combined together. For example, it
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id.; see Billy B. Scoles, 57 ECAB 258 (2005).

4

excludes combining loss of muscle strength with loss of range of motion or arthritis.10 Rather,
when more than one rating method may be used, the medical evaluator should address that
combination which is most clinically appropriate.11
ANALYSIS
The Board finds that the case is not in posture for decision.
The schedule award granted by the Office for impairment to appellant’s left leg was
based on the impairment contributed by his accepted left knee and hip conditions. In rating
impairment to the left hip, Dr. Garelick relied upon the range of motion loss recorded by
Dr. Hoversten on May 14, 2007, who listed 14 percent of the whole person.12 Flexion was to 70
degrees, which under Table 17-9, page 537, is 10 percent (moderate) impairment. Extension of
20 degrees was listed by Dr. Garelick as 0 percent impairment but Table 17-9 provides that this
is 10 percent (moderate) impairment. Internal rotation of 25 degrees is 0 percent impairment, as
noted by Dr. Garelick. External rotation of 15 degrees represents 10 percent (moderate)
impairment, as listed by the medical adviser. Abduction of 30 degrees is 0 percent impairment,
as noted by Dr. Garelick and 10 degrees adduction is 5 percent (mild) impairment. On May 29,
2007 Dr. Garelick added the impairment values to find a total of 25 percent impairment for loss
of left hip motion; however, Table 17-9 indicates that the impairment measured by Dr. Hoversten
would total 35 percent.
In assessing the impairment to appellant’s left knee, the Board notes that Table 17-2, the
cross-usage chart, precludes certain methods of evaluating impairment from being combined.
On June 9, 2007 Dr. Hoversten rated the extent of impairment as 19 percent of the whole person,
specifying 8 percent for knee flexion under Table 17-10; 5 percent for loss of muscle strength
under Table 17-8; 2 percent for leg length discrepancy and 4 percent for the medial
meniscectomy under Table 17-33. As noted, however, all these impairment values may not be
combined under Table 17-2. Impairment due to leg limb length discrepancy may be combined
with either loss of strength, loss of range of motion or the diagnosis-based impairment, but not
with each. Loss of range of motion may not be combined with weakness (loss of strength) or the
diagnosis-based estimate. By combining the noted impairment values, Dr. Hoversten artificially
inflated the extent of impairment to the left leg. Moreover, the Board notes that appellant
underwent a partial medial meniscectomy; a two percent impairment of the knee under Table 1733, not four percent whole person as was found. In addition, Table 17-33 does not provide the
basis for rating impairment due to limb length discrepancy; rather, it is rated under Table 17-4,
page 528. As noted by Dr. Garelick, the whole person impairment rating provided by
Dr. Hoversten for appellant’s left knee does not conform to the protocols of the Office and, it
appears, was based on a misapplication of the A.M.A., Guides.
10

See Laura Heyen, 57 ECAB 435 (2006).

11

A.M.A., Guides 526.

12

It is well established, however, that schedule awards are paid for the anatomical members defined at section
8107(c) of the Act and section 10.404(a) of the implementing regulations. See 5 U.S.C. § 8107(c) and 20 C.F.R.
§ 10.404 (c). See also Tania R. Keka, 55 ECAB 354 (2004); John Year, 48 ECAB 243 (1996). Schedule awards are
not payable in terms of whole person impairment ratings.

5

In rating impairment to appellant’s left knee, Dr. Garelick advised that the greatest extent
of impairment would be achieved by rating arthritis of 15 percent with the diagnosis-based
impairment of 2 percent for the partial medial meniscectomy. Combined, this resulted in a total
of 17 percent to the left leg. Dr. Garelick noted that rating impairment by loss of range of
motion, as reported by Dr. Larson, would not result in greater impairment. The Board notes that
110 degrees of flexion does not result in impairment under Table 17-10. However, 10 degrees of
extension (flexion contracture) represents 20 percent (moderate) impairment of the knee, which
is greater than the 15 percent arthritis rating on which Dr. Garelick relied. Moreover, on
October 11, 2004 Dr. Garelick stated that he extrapolated the 15 percent impairment estimate
from Table 17-31; he did not specify the x-rays relied upon in rating this impairment. The Board
notes that the A.M.A., Guides provide that the estimate for the patellofemoral joint should be
based on a sunrise view x-ray taken at 40 degrees or on a true lateral view.13 Further,
Dr. Hoversten reported range of motion losses which were dismissed by the medical adviser as
excessive.
As assembled, the medical evidence of record does not provide a sufficiently clear
depiction of the extent of permanent impairment to appellant’s left leg resulting from his
accepted knee and hip injuries. For this reason, the case will be remanded to the Office for
appropriate development of the medical evidence and a de novo decision on whether he sustained
greater than 38 percent impairment, as awarded.
CONCLUSION
The Board finds that the case is not in posture for decision as to whether appellant has
more than 38 percent impairment to his left leg.

13

A.M.A., Guides 544.

6

ORDER
IT IS HEREBY ORDERED THAT the June 24 and February 14, 2008 decisions of the
Office of Workers’ Compensation Programs be set aside. The case is remanded to the Office for
further action in conformance with this decision.
Issued: August 6, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.K., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES ENGINEERING COMMAND
PROGRAM, San Diego, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-0355
Issued: June 27, 2016

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 December 18, 2015 appellant filed a timely appeal from a June 25, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
have elapsed since the last merit decision dated June 12, 2014 and the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
On appeal appellant contends that the date of the letter requesting reconsideration rather
than the date it was received by OWCP should be the date used to determine timely filing of a
1

5 U.S.C. § 8101 et seq.

request for reconsideration. He also contends that the medical evidence demonstrated clear
evidence of error and that OWCP should consider the reports of nurse practitioners and physician
assistants as medical evidence.
FACTUAL HISTORY
On March 20, 2014 appellant, then a 62-year-old environmental protection specialist,
filed a traumatic injury claim (Form CA-1) alleging that on November 20, 2013 he was climbing
down a metal rung ladder that was welded to the end of a 40 cubic yard bin, that he had his right
foot on the bottom rung, but he mistakenly believed his left foot was on the ground, so when he
released his hold he fell to the ground.
By decision dated June 12, 2014, OWCP denied appellant’s claim. It determined that
appellant had established that the incident occurred as alleged and that the medical evidence
established medical diagnoses of bilateral L5-S1 facet arthropathy, bilateral carpal tunnel
syndrome, cervical radiculopathy and other disc disorder cervical region, and cervical
spondylosis with myelopathy. However, OWCP denied appellant’s claim as he failed to
establish that the diagnosed medical conditions were causally related to the accepted
employment incident of November 20, 2013.
By request dated June 9, 2015, but received by OWCP on June 16, 2015, appellant
requested reconsideration of the June 12, 2014 decision. Appellant submitted new evidence in
support of his reconsideration request.
In a September 29, 2014 progress report, Dr. Manprit K. Dhillon, appellant’s treating
Board-certified neurosurgeon, listed appellant’s diagnosis as cervical spondylosis with
myelopathy. He noted that appellant’s magnetic resonance imaging scan from August 1, 2014
revealed good decompression of the cord at C4-5 and C5-6. Dr. Dhillon noted that appellant had
a stable right C6-7 disc bulge with the canal diameter of 9 millimeter (mm). In an April 1, 2015
attending physician’s report, he diagnosed spondylosis with myelopathy, and indicated that it
was likely caused by the fall at work.
Appellant also submitted a note from a site safety manager at the employing
establishment indicating that appellant was no longer to take any more HAZWASTE samples
because he had not undergone a current HAZMAT physical, and that he also was precluded from
other positions including those which required that he operate a forklift or crane.
By decision dated June 25, 2015, OWCP denied reconsideration as appellant’s
reconsideration request was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant’s application for review must be received within one year of the date of that decision.2
The Board has found that the imposition of the one-year limitation does not constitute an abuse
2

20 C.F.R. § 10.607(a).

2

of the discretionary authority granted OWCP under section 8128(a) of FECA.3 The one-year
time limitation begins to run on the date following the date of the original decision.4
OWCP, however, may not deny an application for review solely because the application
was untimely filed. When an application for review is untimely filed, it must nevertheless
undertake a limited review to determine whether the application demonstrates clear evidence of
error.5 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for
merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if
the claimant’s application for review demonstrates clear evidence of error on the part of OWCP.6
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.7 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.8 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.9 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.10 This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP.11 To
demonstrate clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP decision.12
ANALYSIS
The Board finds that OWCP properly declined to reopen appellant’s claim for
reconsideration of the merits as the request for reconsideration was untimely filed and did not
demonstrate clear evidence of error. The only decision over which the Board has jurisdiction is
3

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

4

See S.T., Docket No. 15-382 (issued April 3, 2015); J.J., Docket No. 14-746 (issued October 17, 2014); C.B.,
Docket No. 13-1732 (issued January 28, 2014).
5

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

6

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d
(October 2011).
7

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

8

See Leona N. Travis, 43 ECAB 227, 240 (1991).

9

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

10

See Leona D. Travis, supra note 8.

11

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

12

Leon D. Faidley, Jr., supra note 3.

3

the June 25, 2015 nonmerit decision wherein OWCP denied reconsideration as appellant’s
request was untimely filed and failed to demonstrate clear evidence of error.
Appellant’s request for reconsideration was received by OWCP on June 16, 2015, more
than one year after the June 12, 2014 decision. Therefore, his reconsideration request was
untimely filed. Appellant argues on appeal that his letter was dated and mailed prior to the oneyear deadline. However, OWCP procedures were changed effective August 29, 2011. Section
10.607 of the new regulations provides that the date for timeliness of a reconsideration request is
no longer the date the request was mailed, but rather the date the request was received by
OWCP.13 Accordingly, appellant’s argument is without merit.
The Board further finds that appellant’s untimely request for reconsideration failed to
demonstrate clear evidence of error. The last merit decision denied appellant’s claim as he failed
to establish a causal relationship between the accepted employment incident of November 20,
2013 and his medical diagnoses of bilateral L5-S1 facet arthropathy, bilateral carpal tunnel
syndrome, cervical radiculopathy and other disc disorder cervical region, and cervical
spondylosis with myelopathy. Appellant has not submitted evidence demonstrating clear
evidence that this decision was in error.
The note from the site safety manager addressing appellant’s inability to perform certain
work assignments is irrelevant to the issue of causal relationship, which is medical in nature.
The only medical report submitted on reconsideration that addresses causal relationship is the
April 1, 2015 attending physician’s report wherein Dr. Dhillon indicated that appellant’s
spondylosis with myelopathy was likely caused by the fall at work. The Board notes that
Dr. Dhillon’s report provides speculative support for causal relationship as the physician
qualifies his support by noting that appellant’s employment “likely” caused the condition.14 The
Board notes that clear evidence of error is intended to represent a difficult standard. Even the
submission of a detailed well-rationalized report which, if submitted before the denial was
issued, would have created a conflict in medical opinion requiring further development, is not
clear evidence of error.15
The Board notes that appellant also argues on appeal that OWCP should consider the
reports of physician assistants and nurse practitioners to be medical evidence. This argument
appears to address evidence that was submitted before the initial decision. The Board has long
held that a probative medical report must be from a physician under FECA. FECA provides that
a physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the scope of their practice as defined by state
law.16 As to medical evidence from a physician assistant or nurse practitioner, this does not

13

20 C.F.R. § 10.607; see also A.T., Docket No. 15-1896 (issued April 25, 2016).

14

C.K., Docket No. 16-0291 (issued April 20, 2016).

15

B.W., Docket No. 15-0892 (issued August 26, 2015).

16

5 U.S.C. § 8101(2).

4

constitute competent medical evidence under FECA.17 Accordingly, appellant’s argument does
not demonstrate clear evidence of error.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 25, 2015 is affirmed.
Issued: June 27, 2016
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

17

See V.C., Docket No. 16-0642 (issued April 19, 2016).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
DEPARTMENT OF DEFENSE, Fort Bragg, NC,
Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1269
Issued: September 14, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 11, 2007 appellant filed a timely appeal of a January 3, 2007 merit decision of
the Office of Workers’ Compensation Programs, finding that he did not sustain an injury in the
performance of duty on May 16, 2006. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction of the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained an injury in the
performance of duty on May 16, 2006.
FACTUAL HISTORY
On May 17, 2006 appellant, then a 63-year-old custodial worker, filed a traumatic injury
claim alleging that on May 16, 2006 he experienced neck and back pain and numbness in his
right hand and fingers as a result of moving a buffer. He stopped work on May 16, 2006.
By letter dated February 2, 2007, the Office advised appellant that the evidence submitted
was insufficient to establish his claim. It addressed the medical evidence he needed to submit.

Appellant submitted discharge instructions signed by Cathy Jones, a licensed practical
nurse, on August 4, 2006. An October 18, 2006 medical report of Dr. Kim-Eng Koo, a Boardcertified neurosurgeon, found that appellant sustained large herniated discs of the cervical spine
with cord compression and os odontoideum. Dr. Koo stated that appellant was status post
cervical spine surgery with fusion. The physician released him to light-duty work with
restriction. In an August 6, 2006 prescription, Dr. Koo stated that appellant could not work until
his next evaluation on October 6, 2006.
By decision dated January 3, 2007, the Office denied appellant’s claim. The evidence of
record was found insufficient to establish that he sustained an injury causally related to the
accepted May 16, 2006 employment incident.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 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 the Act; that the claim was
filed within the applicable time limitation; that an injury was sustained while in the performance
of duty as alleged; and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.3 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.5
In order to meet his burden of proof to establish the fact that he sustained an injury in the
performance of duty, an employee must submit sufficient evidence to establish that he actually
experienced the employment injury or exposure at the time, place and in the manner alleged.6

1

On January 15, 2007 appellant requested an oral hearing before an Office hearing representative regarding the
Office’s January 3, 2007 decision and he submitted additional evidence. However, the case record does not contain
a final decision of a hearing representative. The Board may not consider evidence for the first time on appeal which
was not before the Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c). Appellant can
submit this evidence to the Office and request reconsideration. 5 U.S.C. § 8128; 20 C.F.R. § 10.606.
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 3.
5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

6

Linda S. Jackson, 49 ECAB 486 (1998).

2

The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon a complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.9
ANALYSIS
The record supports that on May 16, 2006 appellant moved a buffer at work. The Board
finds, however, that the medical evidence of record is insufficient to establish that the accepted
employment incident caused any employment injury.
The discharge instructions of Ms. Jones, a licensed practical nurse, are of no probative
value as a nurse is not a “physician” as defined under the Act.10
Dr. Koo’s October 18, 2006 report found that appellant had large herniated discs of the
cervical spine with cord compression and an os odontoideum. It was noted that he was status
post cervical spine surgery with fusion. Dr. Koo released appellant to light-duty work with
restriction. The physician did not provide any medical rationale explaining how or why
appellant’s cervical conditions and resultant surgery were causally related to the May 16, 2006
employment incident. Dr. Koo did not provide a history of the accepted incident or explain how
it would be competent to cause or contribute to the diagnosed cervical condition. The Board
finds that Dr. Koo’s report is not sufficient to establish that appellant’s cervical spine conditions
and surgery were caused or contributed to by the May 16, 2006 employment incident.
Dr. Koo’s August 6, 2006 prescription found that appellant was totally disabled for work
until his next evaluation on October 6, 2006. However, the physician did not provide a diagnosis
causally related to the May 16, 2006 employment incident. Moreover, Dr. Koo did not attribute
appellant’s disability to the accepted employment incident. The Board finds that this evidence is
insufficient to establish appellant’s claim.
Appellant did not submit any additional medical evidence addressing causal relationship.
The Board finds that there is insufficient rationalized medical evidence of record to establish that
appellant sustained any neck, back and right hand or finger injuries in the performance of duty
on May 16, 2006. He failed to meet his burden of proof.

7

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Charles E. Evans, 48 ECAB 692 (1997).

10

See 5 U.S.C. § 8101(2); Thomas Lee Cox, 54 ECAB 509 (2003); Janet L. Terry, 53 ECAB 570 (2002).

3

CONCLUSION
As appellant did not provide the necessary medical evidence to establish that he sustained
an injury caused by the May 16, 2006 employment incident, he has failed to meet his burden of
proof.
ORDER
IT IS HEREBY ORDERED THAT the January 3, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 14, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Tampa, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-0420
Issued: August 21, 2018

Case Submitted on the Record

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

JURISDICTION
On December 21, 2017 appellant filed a timely appeal from an August 4, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained an
injury on March 9, 2017 causally related to the accepted employment incident.
FACTUAL HISTORY
On March 9, 2017 appellant, then a 36-year-old air traffic control specialist, filed a
traumatic injury claim (Form CA-1) alleging that he injured his neck and back on that date when
he caught his right arm on a broken locker door. He alleged that his entire body was twisted as his
1

5 U.S.C. § 8101 et seq.

momentum carried the left side of his body forward while his right side remained caught on the
locker door.
Appellant provided a series of treatment notes from Dr. Charles W. Rice, Jr., a
chiropractor, from March 20 through June 6, 2017. Dr. Rice diagnosed spinal subluxations at C5,
C6, T2, T3, T7, T8, L3, and L4.
On March 20, 2017 the employing establishment provided appellant with an authorization
for examination and/or treatment (Form CA-16) which Dr. Rice completed on June 8, 2017.
By development letter dated June 27, 2017, OWCP requested additional factual and
medical evidence in support of appellant’s traumatic injury claim. It informed him of the
requirement that a chiropractor must diagnose a subluxation of the spine demonstrated by x-ray in
order to be considered a physician for the purposes of FECA.2 OWCP afforded appellant 30 days
to respond.
Appellant resubmitted Dr. Rice’s treatment notes from March 20 through June 6, 2017.
By decision dated August 4, 2017, OWCP denied appellant’s traumatic injury claim,
finding that he failed to provide medical evidence containing a diagnosis in connection with the
accepted employment incident.
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, that an injury was sustained in the performance of duty as alleged, and that
any disability or specific condition for which compensation is claimed is causally related to the
employment injury. 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.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.5

5 U.S.C. § 8101(2) of FECA provides that the term “physician” includes chiropractors only to the extent that their
reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation
demonstrated by x-ray to exist.
2

3

Supra note 1.

4

A.D., Docket No. 17-1855 (issued February 26, 2018); Gary J. Watling, 52 ECAB 357 (2001).

5

A.D., id.; T.H., 59 ECAB 388 (2008).

2

Chiropractors are considered physicians only to the extent that their reimbursable services
are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray.6 Consequently, their medical findings and/or opinions which are not based
on x-rays will not suffice for purposes of establishing entitlement to FECA benefits.7
ANALYSIS
The Board finds that appellant has not established that he sustained an injury causally
related to the accepted March 9, 2017 employment incident.
Appellant’s chiropractor, Dr. Rice, diagnosed spinal subluxations at C5, C6, T2, T3, T7,
T8, L3, and L4. The case record, however, does not contain any x-rays of appellant’s spine and
Dr. Rice did not indicate that he relied on x-rays to establish his diagnoses of spinal subluxations.
As such, the Board finds that Dr. Rice is not considered a physician within the meaning of FECA
and his reports therefore do not constitute probative medical evidence.8 Appellant, therefore, has
not met his burden of proof.9
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he sustained
an injury on March 9, 2017 causally related to the accepted employment incident.

6

5 U.S.C. § 8101(2); see T.W., Docket No. 17-1819 (issued March 14, 2018); Kathryn Haggerty, 45 ECAB 383,
389 (1994).
7
R.M., Docket No. 17-1656 (issued January 16, 2018); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). Federal
(FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
8

5 U.S.C. § 8101(2); see R.M., id.; Kathryn Haggerty, 45 ECAB 383, 389 (1994). 20 C.F.R. § 10.5(bb); see Bruce
Chameroy, 42 ECAB 121, 126 (1990).
9

On June 8, 2017 Dr. Rice completed the attending physician’s report portion of a form for authorization for
examination and/or treatment (Form CA-16). Where an employing establishment properly executes a Form CA-16
authorizing medical treatment related to a claim for a work injury, the form creates a contractual obligation, which
does not involve the employee directly, to pay for the cost of the examination/treatment regardless of the action taken
on the claim. See R.M., supra note 7; Tracy P. Spillane, 54 ECAB 608 (2003). The period for which treatment is
authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See
20 C.F.R. § 10.300(c)

3

ORDER
IT IS HEREBY ORDERED THAT the August 4, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 21, 2018
Washington, DC

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

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

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

4