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

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

Docket No. 11-1793
Issued: February 17, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 1, 2011 appellant filed a timely appeal from a May 25, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying her occupational disease
claim. 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 sustained an injury to her feet in the performance of duty.
FACTUAL HISTORY
On February 17, 2011 appellant, then a 54-year-old clerk, filed an occupational disease
claim alleging that she developed pain in the bottom of both feet as a result of employment
activities for the past 30 years, which required her to walk and stand on concrete. In a

1

5 U.S.C. § 8101 et seq.

February 12, 2011 statement, she indicated that she had unsuccessfully tried to alleviate the pain
herself by wearing different types of shoes.
The record contains an undated position description for a clerk-stenographer and a
November 30, 1997 position description for a data collection technologist.
On March 7, 2011 OWCP requested additional evidence, including a comprehensive
medical report containing a diagnosis, description of symptoms, the results of examinations and
tests and medical rationale explaining how her diagnosed condition was causally related to
specific factors of her employment.
On February 25, 2011 Tammie Turner, a health and resource management specialist for
the employing establishment, controverted appellant’s claim. She stated that appellant’s position
was sedentary, as indicated in her position description and that the clerk position did not require
a lot of walking. Ms. Turner contended that, as appellant had failed to submit any medical
evidence, she did not establish a causal relationship between factors of employment and her
claimed medical condition.
By decision dated May 25, 2011, OWCP denied appellant’s claim. It found that the
evidence supported that the incidents occurred as alleged, but denied the claim on the grounds
that there was no medical evidence establishing that she sustained a diagnosed condition as a
result of established employment activities.2
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.3 Causal relationship is a medical issue and the medical evidence
generally required to establish causal relationship is rationalized medical evidence.
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on whether there is a causal relationship between the employee’s diagnosed
condition and the compensable employment factors. The opinion of the physician must be based
on a complete factual and medical background of the employee, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the

2

Subsequent to the May 25, 2011 OWCP decision, additional documents were associated with the file. The
Board’s jurisdiction is limited to the evidence that was before OWCP at the time it issued its final decision. See 20
C.F.R. § 501.2(c). The Board may not consider this evidence for the first time on appeal.
3

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

2

relationship between the diagnosed condition and the specific employment factors identified by
the employee.4
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that her condition was aggravated by her employment is sufficient to
establish causal relationship.5
ANALYSIS
OWCP accepted that appellant was a federal employee, that she timely filed her claim for
compensation benefits and that the workplace events occurred as alleged. The issue, therefore, is
whether she has submitted sufficient medical evidence to establish that the employment activities
caused an injury. Appellant submitted no medical evidence in support of her claim prior to the
May 25, 2011 decision. Therefore, she failed to establish a prima facie claim for compensation.6
An award of compensation may not be based on surmise, conjecture, speculation, or upon
appellant’s own belief that there is a causal relationship between her claimed condition and her
employment.7 To establish causal relationship, appellant must submit a medical report in which
the physician reviews those factors of employment identified by her as causing her condition
and, taking into consideration findings upon examination and her medical history, explains how
these employment factors caused or aggravated any diagnosed condition.8 She failed to submit
such evidence and, therefore, failed to satisfy her burden of proof. The Board finds that OWCP
properly denied her claim for benefits under FECA.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained an injury in the performance of duty.

4

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

5

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

6

See Donald W. Wenzel, 56 ECAB 390 (2005).

7

Patricia J. Glenn, 53 ECAB 159 (2001).

8

Robert Broome, 55 ECAB 339 (2009).

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ORDER
IT IS HEREBY ORDERED THAT the May 25, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 17, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Warwick, RI, Employer
__________________________________________

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Appearances:
John L. Whitehouse, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-519
Issued: October 22, 2009

Case Submitted on the Record

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

JURISDICTION
On December 15, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated December 1, 2008. Pursuant to 20 C.F.R.
§§ 501.2 and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he was entitled to
wage-loss compensation beginning August 9, 1992.
FACTUAL HISTORY
This case was previously before the Board. On May 13, 2008 the Board issued an order
remanding the case to the Office for proper assemblage of the record and a de novo decision as
the case record was missing materials from August 4, 1995 through December 14, 2004.1 By
decision dated December 1, 2008, the Office again denied appellant’s claim for compensation
1

Docket No. 08-278 (issued May 13, 2008).

beginning August 9, 1992. It found that there were no missing documents during the period
August 4, 1995 through December 14, 2004.
On January 14, 1992 appellant, then a 49-year-old construction representative, sustained
injuries to his neck and back when he slipped on a wet dock at work. He stopped work on
January 16, 1992 and never returned. Appellant began leave without pay on August 9, 1992 and
retired on September 2, 1993. Effective August 9, 1992, he elected a disability retirement
annuity from the Office of Personnel Management (OPM).2 The Office accepted the claim for
cervical and lumbosacral sprains and paid compensation benefits until the election of OPM
benefits.3
On January 5, 2007 appellant elected to receive wage-loss compensation from the Office,
retroactive to August 9, 1992, in lieu of the OPM benefits. He asserted that his disability was
due to his accepted condition. Evidence received in support of appellant’s claim for
compensation commencing August 9, 1992 included physical therapy reports, magnetic
resonance imaging (MRI) scans dated November 18, 1992, May 5, 2005 and October 2, 2006.
The record contains medical records from Dr. Federico L. Catucci, a neurosurgeon. On
February 28, 1992 he noted that appellant was injured on June 6, 1991 and January 14, 1992
while at work. Dr. Catucci stated that appellant had difficulties since the June 6, 1991 injury,
which affected the cervical spine and disabled him intermittently. Appellant had not worked
since the January 14, 1992 injury. Dr. Catucci advised that 1991 cervical x-rays were reported as
showing extensive degenerative changes from C4-7. He noted examination findings and listed
an impression of cervical radiculitis secondary to trauma. Dr. Catucci advised that appellant had
preexisting degenerative changes with symptomatology that was greatly aggravated by the
January 14, 1992 injury. He opined that appellant’s symptoms were related to the described
injury and that appellant was disabled from any laboring activity. On December 23, 1992
Dr. Catucci noted MRI scan results for the cervical and lumbar spines. He advised that appellant
had trapezius muscle spasm on the right and paralumbar muscle spasm on the left with
tenderness present in both areas. Appellant was referred for physical therapy and remained
totally disabled. On February 22, 1993 Dr. Catucci noted that appellant’s status and findings
were unchanged from previous examinations. In a March 12, 1993 attending physician’s report,
he noted the history of the January 14, 1992 work injury and diagnosed multilevel disc pathology
at the lumbar and cervical spine. Dr. Catucci checked the box “yes” regarding whether he
believed that the condition was caused or aggravated by an employment activity. He advised
that appellant was totally disabled from May 14, 1992. In April 5 and June 7, 1993 reports,
Dr. Catucci reiterated his opinion that appellant was totally disabled
On October 5, 1992 Dr. Richard G. Bertini, a Board-certified orthopedic surgeon,
diagnosed cervical lumbosacral strain and herniated disc. He noted that appellant was injured on
2

A beneficiary may not receive wage-loss compensation concurrently with a federal retirement or survivor
annuity. The beneficiary must elect the benefit he or she wishes to receive and the election, once made, is
revocable. See 5 U.S.C. § 8116(a) (2006); 20 C.F.R. § 10.421(a) (2008).
3

OPM indicated that appellant was overpaid $7,597.83 for the period August 9, 1992 through March 29, 1993,
when he received both OPM disability annuity and compensation from the Office. OPM reached a settlement with
appellant and thereafter paid benefits beginning March 30, 1993.

2

January 14, 1992 and noted with a check mark “yes,” that his condition was caused or
aggravated by the employment activity. Dr. Bertini advised that appellant was totally disabled
from January 14 through May 16, 1992 and partially disabled from May 16, 1992 as he was able
to perform light duty. On January 28, 1993 he noted Dr. Catucci’s treatment and advised that
appellant’s lower back and left upper extremity symptoms persisted. Appellant was totally
disabled from performing his regular job but could work light-medium classification work. In a
March 18, 1993 attending physicians report (Form CA-20), Dr. Bertini noted the history of
injury and diagnosed cervical and lumbar radiculopathy and herniated discs at C3-4. He checked
the box “yes” indicating that the condition was caused or aggravated by work activity.
Dr. Bertini advised that appellant was totally disabled from January 14 through May 16, 1992
and partially disabled since May 16, 1992.
On October 26, 1994 an Office medical adviser noted that a November 18, 1992 MRI
scan of the cervical spine revealed a small central disc herniation at C3-4 without significant
impingement. An MRI scan of the lumbar spine showed multilevel disc bulges with osteophytes,
with no central or neural foraminal stenosis, with encroachment on the left L4-5 neural foramen
by an osteophyte. The Office medical adviser reviewed the history of the January 14, 1992
injury and treatment. When Dr. Catucci treated appellant in April and June 1993, there was no
mention of any neurologic impairment. The Office medical adviser stated that a causal
relationship between appellant’s current condition and the January 14, 1992 injury was difficult
to confirm. The symptoms of the accepted muscle strains should have resolved within six to
eight weeks of the injury as no more serious injury had been confirmed. Moreover, the MRI
scan failed to confirm any significant disc or other lesion and the degenerative changes found on
the skeletal spine and discs were not likely due to the January 14, 1992 work injury. The Office
medical adviser advised that appellant had preexisting degenerative arthritis of the cervical,
thoracic and lumbar spine and there was no firm evidence the January 14, 1992 injury
significantly affected those conditions. He noted that it was difficult to be certain of appellant’s
current status without more current medical evidence.
In a June 15, 2005 report, Dr. Albert A. Ackil, a neurologist, stated that appellant had low
back pain with numbness, paresthesias and weakness in both legs. Review of the MRI scans
showed left paracentral protrusion at L5-S1 with impingement at the L5 root. Dr. Ackil found
that appellant had positive straight leg raising and positive femoral stretch, but no difficulty to
suggest long track signs. He noted that appellant did not want surgery, but stated that it might be
needed if physical therapy and rehabilitation were unsuccessful. Dr. Ackil advised that appellant
was totally disabled. On October 26, 2006 he advised that the recent MRI scan showed
degenerative disc disease, moderate spondylosis and protrusions at L5-S1. Dr. Ackil reiterated
that appellant was totally disabled. He also diagnosed possible right hip trochanteric bursitis.
By letter dated April 12, 2007, the Office requested additional medical evidence from
appellant. It asked that the attending physician address his capacity to engage in gainful
employment, either full or part time, from August 9, 1992 to the present and whether his
disability for work was causally related to the accepted neck and lumbar sprains of
January 14, 1992. The physician was also asked to explain why the condition diagnosed was
believed to be caused or aggravated by the injury and whether there was a material change in
appellant’s condition. The Office requested appellant to submit the requested information within

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30 days. On May 4, 2007 appellant’s attorney requested a two-week extension to provide the
requested medical report. No additional information was received.
By decision dated June 1, 2007, the Office denied wage-loss compensation commencing
August 9, 1992. It found that the medical evidence failed to establish that the claimed medical
conditions were related to the accepted injury or work-related conditions.
On June 27, 2007 letter appellant requested reconsideration. In a May 31, 2007 report,
Dr. Ackil noted that appellant was first seen on April 28, 2005 for constant back pain. Appellant
provided a history of injury on January 14, 1992 as slipping and falling on a wet deck and
landing heavily with his arms outstretched to minimize the effects of the fall. Dr. Ackil noted
that appellant’s diagnosis was cervical radiculitis secondary to trauma with degenerative changes
which were aggravated by the trauma. He noted the November 1992 MRI scans were positive
for multilevel disc abnormalities with central disc herniation at C3-4 and positive for bulging
lumbar discs. The MRI scans of May 2005 again showed disc protrusion at L5-S1 with
impingement of the existing left S1 and intraforaminal left L5 nerve roots. A small protrusion
was also noted at L4-5. Dr. Ackil noted that appellant declined surgery and underwent physical
therapy and rehabilitation. He opined that appellant’s conditions were causally related to the
injuries sustained in January 1992 and that he was totally disabled from any gainful employment.
Dr. Ackil stated that appellant had significant trauma to the low back and cervical region from
the January 14, 1992 work injury and, other than the January 14, 1992 work injury, there had
been no traumatic event that would account for appellant’s diagnosis or the conditions shown on
diagnostic studies. Prior to his January 14, 1992 injury, appellant stated that he was healthy,
working full time and not under medical care for a back condition. Diagnostic testing shortly
after the injury was positive for disc herniations in both the upper and lower back and lumbar
disc disease and appellant’s complaints remained consistent through the present.
By decision dated September 25, 2007, the Office denied modification of its June 1, 2007
decision. Following the Board’s remand order, it issued a December 1, 2008 decision which
again denied modification of its previous decisions.
LEGAL PRECEDENT
As used in the Federal Employees’ Compensation Act, the term disability means
incapacity, because of an employment injury, to earn the wages the employee was receiving at
the time of injury.4 When the medical evidence establishes that the residuals of an employment
injury are such that, from a medical standpoint, they prevent the employee from continuing in his
employment, he is entitled to compensation for any loss of wage-earning capacity resulting from
such incapacity.5
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues, which must be proved by a preponderance of the
4

Richard T. DeVito, 39 ECAB 668 (1988); Frazier V. Nichol, 37 ECAB 528 (1986); Elden H. Tietze, 2 ECAB 38
(1948); 20 C.F.R. § 10.5(f).
5

Bobby W. Hornbuckle, 38 ECAB 626 (1987).

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reliable, probative and substantial medical evidence.6 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.7 The Board will not require the Office to pay compensation
for disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.8
ANALYSIS
The Office accepted appellant’s claim for cervical and lumbosacral sprains. The issue is
whether appellant was totally disabled beginning August 9, 1992, due to his accepted injury
Dr. Catucci, a neurosurgeon, first examined appellant on February 28, 1992. He opined
that appellant was totally disabled due to cervical radiculitis and aggravation of preexisting
degenerative conditions secondary to the January 14, 1992 trauma. However, the conditions
diagnosed were not those accepted as being employment related and Dr. Catucci failed to
provide a fully rationalized medical opinion describing how appellant’s cervical or lumber
conditions were related to the January 14, 1992 work injury.9 In subsequent reports through
June 1993, he reiterated that appellant was totally disabled. Dr. Catucci diagnosed paraspinal
spasm and multilevel disc pathology at the lumbar and cervical spine along with trapezius
muscle spasm; however, he did not offer any opinion regarding the cause of appellant’s
condition or address the January 14, 1992 work injury.10 In a March 12, 1993 attending
physician’s report, he checked a box “yes” on the form to indicate that appellant’s condition was
employment related. However, the Board has held that a check mark or affirmative notation in
response to a form question on causal relationship is not sufficient to establish a claim.11 Thus,
Dr. Catucci’s reports are insufficient to establish appellant’s claim.
Appellant submitted several reports and progress notes from Dr. Bertini. In his
October 5, 1992 report, Dr. Bertini diagnosed cervical lumbosacral strain and herniated disc and
opined that appellant was partially disabled since May 16, 1992. While he noted that appellant
6

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

7

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); see Huie Lee Goal, 1 ECAB 180, 182 (1948).

8

G.T., id.; Fereidoon Kharabi, supra note 6.

9

See T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009) (for conditions not accepted by the
Office, a claimant bears the burden of proof to establish that the condition is causally related to the employment
injury through the submission of rationalized medical evidence); see also George Randolph Taylor, 6 ECAB 986,
988 (1954) (a medical opinion not fortified by medical rationale is of little probative value).
10

Medical evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship. S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009).
11

See Cecelia M. Corley, 56 ECAB 662 (2005); Gary J. Watling, 52 ECAB 278 (2001).

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was injured on January 14, 1992, he did not provide a description of the work injury, explain the
nature of the relationship between the diagnosed conditions and the specific events of
January 14, 1992 or provide any reasons why appellant’s accepted strains continued to render
him partially disabled. Dr. Bertini indicated by checking a box “yes” that he believed appellant’s
condition was caused or aggravated by employment activities. However, as noted, such an
opinion on causal relationship is of diminished probative value in the absence of medical
rationale explaining the reasons for the conclusion. Similarly, Dr. Bertini’s March 18, 1993
attending physician’s report also supported causal relationship by checking a box “yes” on the
form report but he did not provide any medical rationale to explain why any continuing disability
or conditions not accepted by the Office, were causally related to the January 14, 1997 cervical
and lumbar sprains. In his January 28, 1993 report, he noted appellant’s symptoms persisted and
advised that appellant was totally disabled from his regular job but could perform light to
medium work. However, Dr. Bertini did not explain the reasons why any disability was caused
or contributed to by his January 14, 1992 work injury. Thus, Dr. Bertini’s reports are insufficient
to establish appellant’s claim.
Appellant also submitted reports from Dr. Ackil dated June 15, 2005, October 25, 2006
and May 31, 2007. In his June 15, 2005 and October 25, 2006 reports, Dr. Ackil indicated that
he reviewed appellant’s MRI scans of the cervical and lumbar spines and opined that the
degenerative disc disease, moderate spondylosis and disc protrusions at L5-S1 totally disabled
appellant. Dr. Ackil did not offer an opinion as to whether the claimed disability was causally
related to appellant’s accepted conditions or provide an explanation as to how the diagnosed
conditions were caused or aggravated by the January 14, 1992 work injury. In fact, Dr. Ackil
never mentioned the January 14, 1992 work injury in these reports. Thus, these reports are
insufficient to establish appellant’s claim.
In a May 31, 2007 report, Dr. Ackil opined that the conditions diagnosed on MRI scan
reports were causally related to the January 14, 1992 injuries and that appellant was totally
disabled from his 1992 injury since January 14, 1992. He noted that the November 1992 MRI
scan report showed disc herniations at C3-4 and the May 2005 MRI scan showed disc
protrusions at L5-S1 with impingement of the existing left S1 and intraforaminal left L5 nerve
roots and a small protrusion at L4-5. The Board finds Dr. Ackil’s opinion lacks sufficient
rationale to meet appellant’s burden of proof. While Dr. Ackil noted there was no other
traumatic event other than the January 14, 1992 work injury to account for appellant’s diagnosis
and the diagnostic testing shortly after the work injury was positive for disc herniations in both
the upper and lower back and lumbar disc disease, he did not provide medical rationale
explaining how appellant’s accepted cervical and lumbosacral sprains caused or aggravated the
disc herniations and protrusions noted on the MRI scan reports.12 The mere fact that a condition
manifests itself during a period of employment does not raise an inference of causal relation.13
Dr. Ackil also relied on a 2005 MRI scan to find that appellant was still disabled from his 1992
injury and unable to work. Generally, the greater the delay in testing the greater the likelihood
12

See John W. Montoya, 54 ECAB 306 (2003) (the physician must provide an opinion on whether the
employment incident described caused or contributed to the claimant’s diagnosed medical condition and support that
opinion with medical reasoning to demonstrate that the conclusion reached is sound, logical and rational).
13

A.C., 60 ECAB ___ (Docket No. 08-1453, issued November 18, 2008).

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that an event not related to employment has caused or worsened the condition for which the
employee seeks compensation.14 Dr. Ackil did not provide sufficient medical rationale
explaining why appellant’s current condition and disability would be caused or aggravated by the
January 14, 1992 injury that was accepted for lumbar and cervical sprains. He apparently based
his opinion on a history indicating that the fall suffered on January 14, 1992 marked the
beginning of appellant’s many complaints and conditions. The medical evidence from 1992 also
indicated that appellant had an injury in 1991 affecting the cervical spine and that he also had
preexisting degenerative changes in his spine. Medical opinion based on an incomplete or
inaccurate factual history is of little probative value.15 This report is insufficient to establish
appellant’s claim.
Other medical reports of record are insufficient to establish the claim as they do not
address whether the claimed disability was causally related to appellant’s accepted conditions.
The Office also received several physical therapy reports, but lay individuals, such as physical
therapists, are not competent to render a medical opinion under the Act.16
Appellant alleged that he was disabled beginning August 9, 1992 as a result of his
accepted employment injury. The medical evidence of record, however, does not establish that
his claimed disability was related to his accepted employment injuries. The Board thus finds that
appellant has not submitted sufficient medical evidence to establish that his disability
commencing August 9, 1992 is a result of the accepted employment injury.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he was
entitled to wage-loss compensation beginning August 9, 1992.

14

Mary A. Ceglia, 55 ECAB 626 (2004).

15

M.W., 57 ECAB 710 (2006); Beverly R. Jones, 55 ECAB 411 (2004).

16

David P. Sawchuk, 57 ECAB 316 (2006); see 5 U.S.C. § 8101(2).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
decision dated December 1, 2008 is affirmed.
Issued: October 22, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.E., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, Fort Bliss, TX,
Employer
__________________________________________

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

Docket No. 18-1395
Issued: January 8, 2019

Case Submitted on the Record

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

JURISDICTION
On July 9, 2018 appellant filed a timely appeal from a June 13, 2018 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of total
disability commencing January 31, 2016 due to her accepted December 11, 1991 employment
injury.
FACTUAL HISTORY
On December 11, 1991 appellant, then a 30-year-old cashier, filed a traumatic injury claim
(Form CA-1) alleging that she sustained an injury on December 11, 1991 when she twisted her
1

5 U.S.C. § 8101 et seq.

right knee while preventing a fall on a wet surface while in the performance of duty. She stopped
work on December 11, 1991 and returned to light-duty work at the employing establishment
without wage loss on December 17, 1991. OWCP initially accepted appellant’s claim for right
knee sprain, but later expanded the acceptance of her claim to include bilateral knee sprains of the
lateral/medial collateral ligaments, bilateral chondromalacia patellae, and other nonorganic sleep
disorder.2
On September 20, 1997 appellant returned to part-time work for the El Paso, TX public
school system as a case worker assistant. She stopped work on October 1, 1998 and, on the same
date, Dr. Andrew J. Palafox, an attending Board-certified orthopedic surgeon, performed OWCPapproved debridement of an osteochondral lesion and partial meniscus tear of the left knee and
debridement of a degenerative lateral/medial meniscus lesion of the right knee. Appellant returned
to full-time work for the El Paso, TX public school system on June 1, 1999.3
By decision dated May 6, 2005, OWCP granted appellant a schedule award for 10 percent
permanent impairment of each lower extremity.4
Appellant continued to receive periodic treatment from Dr. Palafox who indicated that she
complained of bilateral knee pain and swelling. On February 22, 2012 Dr. Palafox reported that,
upon physical examination, appellant’s knees exhibited crepitus and tenderness upon flexion
motion from 0 to 120 degrees. He diagnosed post-traumatic degenerative joint disease of both
knees.
On October 4, 2012 Dr. Palafox, assisted by Dr. Luis Urrea, a Board-certified orthopedic
surgeon, performed OWCP-approved total knee replacement surgeries (arthroplasties) on both
knees.
On December 3, 2012 appellant returned to light-duty work for the employing
establishment on a full-time basis.
In a June 12, 2013 work capacity evaluation (Form OWCP-5c), Dr. Palafox advised that
appellant was capable of performing her usual job.
In a November 13, 2015 report, Dr. Palafox reported the findings of the physical
examination he conducted on that date, noting that both of appellant’s knees had well-healed
surgical scars. The knees did not exhibit erythema, drainage, or swelling, but there was slight
limitation of range of motion given that the left knee had flexion from 0 to 95 degrees and the right
knee had flexion from 0 to 100 degrees. Dr. Palafox diagnosed status post bilateral total knee
arthroplasties.

2

Appellant had preexisting genu varum deformity of both knees and collagen disease.

3

After returning to private employment, appellant worked in several different positions for the El Paso, TX public
school system. She received FECA compensation due to loss of wage-earning capacity for periods of her private
employment.
4
On February 4, 2016 OWCP granted appellant a schedule award for an additional 15 percent permanent
impairment of each lower extremity.

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Appellant stopped work on January 31, 2016 and later filed a recurrence claim (Form CA2a) alleging a recurrence of disability commencing January 31, 2016 due to her accepted
December 11, 1991 employment injury.5 She asserted that her employment-related lower
extremity condition had worsened such that she was no longer capable of working.
In a February 19, 2016 report, Dr. Palafox indicated that appellant presented complaining
of knee pain/swelling and difficulties with activities, including walking and standing for prolonged
periods. He noted that the physical examination revealed well-healed surgical scars, painful range
of motion, and some mild effusion in both knees without erythema, drainage, or major crepitus.
Dr. Palafox diagnosed bilateral presence of artiﬁcial knee joints.
In a March 23, 2016 report, Dr. Palafox noted that, upon physical examination, appellant
had right knee swelling possibly consistent with deep vein thrombosis. There was no effusion in
either knee, but that there was limited motion of the right knee secondary to swelling. Dr. Palafox
ruled out diagnoses of deep vein thrombosis and presence of functional implants in the knees.6 On
April 21, 2016 appellant presented complaining of moderate right calf pain and difficulties with
standing/sitting/walking, including her right leg “giving out.” Dr. Palafox advised that her right
knee exhibited flexion from 0 to 120 degrees upon range-of-motion testing and that the
neurological and vascular examinations showed an intact right lower extremity. He recommended
additional diagnostic testing of appellant’s right knee.
In a September 27, 2017 report, Dr. Palafox indicated that the examination he conducted
on that date showed no major erythema or effusions of appellant’s knees. There was slight crepitus
and slight pain upon active/passive range of motion of the knees. In a February 22, 2018 work
capacity evaluation form, Dr. Palafox listed the date of injury as April 2, 1991 and indicated that
appellant was totally disabled from work.
In a March 28, 2018 development letter, OWCP requested that appellant submit additional
evidence, including an attending physician’s opinion supported by a medical explanation as to how
her claimed recurrence of disability was due to her original accepted injury/illness, without
intervening cause. It also requested that she complete an attached questionnaire which posed
various questions regarding why she believed that she sustained a recurrence of disability due to
her December 11, 1991 employment injury.
Appellant submitted her April 28, 2018 answers to the questionnaire, noting that she had
continuous lower extremity symptoms since December 11, 1991 which worsened in January 2016
to the point that she could no longer work.
Appellant submitted work capacity evaluation forms dated November 6, 2016 and May 3,
and September 27, 2017, in which Dr. Palafox indicated her total disability from work. In the
May 3, 2017 form, Dr. Palafox listed the date of injury as April 2, 1991.

5

Appellant did not file the notice of recurrence until February 28, 2018, a period more than two years after her
January 31, 2016 work stoppage.
6
In an addendum note added later on March 23, 2016, Dr. Palafox advised that a radiologist who obtained a right
knee ultrasound at his direction felt that there was no vascular involvement in appellant’s right knee. He indicated
that she might have a Baker’s cyst in the right knee.

3

In a February 22, 2018 report, Dr. Palafox indicated that his physical examination of
appellant showed minimal pain to palpation in both knees without redness, swelling, or
ecchymosis. Appellant was neurovascularly intact in her lower extremities. Dr. Palafox
recommended that she engage in physical therapy.
In an April 25, 2018 report, Dr. Palafox indicated that appellant had a history of a knee
injury on December 11, 1991 and that she later underwent bilateral total knee replacement surgery.
He noted that she suffered a “relapse” of her lower extremity symptoms in February 2018 and that
she “had stopped working as of [two] years ago because of [appellant’s] disabilities.” Dr. Palafox
indicated that it was “medically probable that [appellant] will have increased weakness to both
knees as she gets older, as she has degenerative changes in both knees from the injury suffered in
1991.” He indicated that appellant last worked on January 31, 2016 and that, up until
February 2018, she was able to manage her pain and symptoms with no significant issues.
Dr. Palafox diagnosed bilateral presence of artificial knee joints, bilateral primary knee
osteoarthritis, and bilateral internal knee derangement. In an April 25, 2018 work capacity
evaluation form, he indicated that appellant was totally disabled from work.
By decision dated June 13, 2018, OWCP denied appellant’s recurrence of disability claim,
finding that the medical evidence of record was insufficient to establish a recurrence of disability
commencing January 31, 2016 due to her accepted December 11, 1991 employment injury. It
determined that the reports she submitted in support of her claim did not establish an objective
worsening of her December 11, 1991 employment injury causing disability from work on or after
January 31, 2016.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused
the illness.7 Recurrence of disability also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his or her established physical limitations.8
Generally, a withdrawal of a light-duty assignment would constitute a recurrence of
disability where the evidence established continuing injury-related disability for regular duty.9 A
recurrence of disability does not apply when a light-duty assignment is withdrawn for reasons of
misconduct, nonperformance of job duties or other downsizing or where a loss of wage-earning
capacity determination is in place.10 Absent a change or withdrawal of a light-duty assignment, a
recurrence of disability following a return to light duty may be established by showing a change

7

20 C.F.R. § 10.5(x).

8

Id.

9

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4) (June 2013).

10

20 C.F.R. §§ 10.5(x), 10.104(c) and 10.509; see id., Chapter 2.1500.2b (June 2013).

4

in the nature and extent of the injury-related condition such that the employee could no longer
perform the light-duty assignment.11
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of proof to establish that the recurrence is causally related
to the original injury.12 This burden includes the necessity of furnishing evidence from a qualified
physician who concludes that the condition is causally related to the employment injury.13 The
physician’s opinion must be based on a complete and accurate factual and medical history and
supported by sound medical reasoning.14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability commencing January 31, 2016 due to her accepted December 11, 1991 employment
injury.
OWCP accepted appellant’s January 31, 2016 traumatic injury claim for right knee sprain,
bilateral knee sprains of the lateral/medial collateral ligaments, bilateral chondromalacia patellae,
and other nonorganic sleep disorder. On October 1, 1998 appellant underwent OWCP-approved
debridement of an osteochondral lesion and partial meniscus tear of the left knee and debridement
of a degenerative lateral/medial meniscus lesion of the right knee. On October 4, 2012 she
underwent OWCP-approved total knee replacement surgeries (arthroplasties) on both knees. On
December 3, 2012 appellant returned to light-duty work for the employing establishment on a fulltime basis. She stopped work on January 31, 2016 and later filed a recurrence alleging a recurrence
of total disability commencing January 31, 2016 due to her accepted December 11, 1991
employment injury.
Appellant submitted a number of reports dated between 2016 and 2018 from Dr. Palafox,
an attending physician, but none of these reports contain an opinion that she sustained a recurrence
of total disability commencing January 31, 2016 due to her accepted December 11, 1991
employment injury. In these reports, Dr. Palafox reported physical examination findings for her
knees/lower extremities such as pain upon range of bilateral knee motion and mild effusion of both
knees. For example, in a February 19, 2016 report, he indicated that appellant presented
complaining of knee pain/swelling and difficulties with activities, including walking and standing
for prolonged periods. Dr. Palafox noted that the physical examination revealed well-healed
surgical scars, painful range of knee motion, and some mild effusion in both knees without
erythema, drainage, or major crepitus. He noted similar examination findings in reports dated
March 23 and April 21, 2016, although the findings in these reports focused on appellant’s right
knee. The Board finds that these reports are of no probative value in establishing her claim for a
recurrence of total disability commencing January 31, 2016 due to her accepted December 11,
1991 employment injury because these reports do not contain a rationalized medical opinion on
11

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

12

20 C.F.R. § 10.104(b); see supra note 9 at Chapter 2.1500.5 and 2.1500.6 (June 2013).

13

See S.S., 59 ECAB 315, 318-19 (2008).

14

Id. at 319.

5

this matter. The Board has held that medical evidence which does not offer an opinion regarding
the cause of a given medical condition/disability is of no probative value on that matter.15
Similarly, additional reports of Dr. Palafox from 2017 and 2018 are of no probative value
on the relevant issue of this case due to that fact that they do not contain a rationalized medical
opinion that appellant sustained an employment-related recurrence of total disability.16 In reports
dated September 27, 2017 and February 22, 2018, he reported examination findings for the lower
extremities, but he provided no indication that she had disability due to her December 11, 1991
employment injury on or after January 31, 2016. Appellant also submitted work capacity
evaluation forms dated November 6, 2016 and May 3 and September 27, 2017, and February 22,
2018 in which Dr. Palafox indicated total disability from work. However, these forms do not
provide a clear indication that the disability was due to the December 11, 1991 employment injury
and are of no probative value on this matter due to their lack of a rationalized medical opinion on
the cause of the disability.17
In an April 25, 2018 report, Dr. Palafox indicated that appellant had a history of a knee
injury on December 11, 1991 and that she later underwent bilateral total knee replacement surgery.
He noted that she suffered a “relapse” of her lower extremity symptoms in February 2018 and that
she “had stopped working as of [two] years ago because of [appellant’s] disabilities.” Although
Dr. Palafox mentioned appellant’s work stoppage in early-2016, he only generally related the
stoppage to “[appellant’s] disabilities” and he did not provide a clear opinion that it was related to
her December 11, 1991 employment injury. This report also is of no probative value regarding
appellant’s disability claim due to its lack of a rationalized medical opinion on this matter.18
Dr. Palafox indicated that it was “medically probable that [appellant] will have increased weakness
to both knees as she gets older, as she has degenerative changes in both knees from the injury
suffered in 1991.” However, it is well established that the possibility of future injury constitutes no
basis for the payment of compensation.19
Appellant has not submitted medical evidence showing a change in the nature and extent
of her injury-related condition such that she could no longer perform the light-duty assignment to
which she returned prior to her January 2016 work stoppage.20 For the reasons explained above,
she has not provided medical evidence sufficient to establish an employment-related recurrence of
total disability on or after January 31, 2016.

15

T.H., Docket No. 18-0704 (issued September 6, 2018).

16

See D.R., Docket No. 16-0528 (issued August 24, 2016).

17

See supra notes 15 and 16.

18

See id.

19

Gaeten F. Valenza, 39 ECAB 1349, 1356 (1988). In an April 25, 2018 work capacity evaluation form, Dr. Palafox
indicated that appellant was totally disabled from work. However, he did not provide any opinion on the cause of the
disability and therefore this form is of no probative value on the relevant issue of this case. See supra notes 15 and 16.
20
In addition, there is no indication that appellant’s light-duty assignment was withdrawn by the employing
establishment. See supra notes 9 through 11.

6

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability commencing January 31, 2016 due to her accepted December 11, 1991 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the June 13, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 8, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Collins, CO, Employer
__________________________________________
Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 11-2046
Issued: May 9, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On September 2, 2011 appellant, through his representative, filed a timely appeal from
the March 101 and June 22, 2011 merit decisions of the Office of Workers’ Compensation
Programs (OWCP). OWCP found that the weight of the medical evidence, as represented by the
opinion of Dr. Stephen Dinenberg, a Board-certified orthopedic surgeon selected as an impartial
medical specialist under 5 U.S.C. § 8123(a), established that appellant’s total right knee
replacement and impairment were causally related to the natural progression of his preexisting
osteoarthritis and not to his federal employment.2 Appellant’s representative argues, among
other things, that OWCP did not properly select the impartial medical specialist.
1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s initial
merit decision was issued on March 10, 2011, the 180-day computation begins, to determine the timeliness of the
appeal from that decision, March 11, 2011. 180 days from March 11, 2011 was September 7, 2011. Since using
September 13, 2011, the date the appeal was received by the Clerk of the Board, would result in the loss of appeal
rights as to the appeal from the March 10, 2011 decision, the date of the postmark is considered the date of filing.
The date of the U.S. Postal Service postmark is September 2, 2011, which renders the appeal timely filed from both
the March 10 and June 22, 2011 decisions. See 20 C.F.R. § 501.3(f)(1).
2

Appellant, a letter carrier, sustained a temporary aggravation of preexisting right knee osteoarthritis in the
performance of duty. He later underwent a total knee replacement, which OWCP did not approve.

The Board finds that this case is not in posture for decision. OWCP has not established
that it properly selected the impartial medical specialist.
A physician selected by OWCP to serve as an impartial medical specialist should be one
wholly free to make a completely independent evaluation and judgment. In order to achieve this,
OWCP has developed specific procedures for the selection of the impartial medical specialist
designed to provide adequate safeguards against any possible appearance that the selected
physician’s opinion was biased or prejudiced. The procedures contemplate that the impartial
medical specialist will be selected on a strict rotating basis in order to negate any appearance that
preferential treatment exists between a particular physician and OWCP.3
OWCP has an obligation to verify that it selected the impartial medical specialist in a fair
and unbiased manner. It maintains records for this very purpose.4 The case file includes an
undated ME023 iFECS report, which indicates that appellant’s referee appointment was
scheduled with Dr. Dinenberg. The record, however, contains no screenshots that substantiate
the proper selection of Dr. Dinenberg. Thus, the Board cannot ascertain whether Dr. Dinenberg
was properly selected under OWCP selection procedures.
The Board has placed great importance on the appearance as well as the fact of
impartiality, and only if the selection procedures that were designed to achieve this result are
scrupulously followed, may the selected physician carry the special weight accorded to an
impartial specialist. OWCP has not met its affirmative obligation to establish that it properly
followed its selection procedures.5
The Board will remand the case to OWCP for selection of another impartial medical
specialist. After such further development as necessary, OWCP shall issue a de novo decision.6

3

Raymond J. Brown, 52 ECAB 192 (2001).

4

M.A., Docket No. 07-1344 (issued February 19, 2008).

5

H.W., Docket No. 10-404 (issued September 28, 2011).

6

Appellant has requested oral argument before the Board. Given the disposition of this appeal, however, oral
argument is unnecessary. 20 C.F.R. § 501.5(a) (oral argument may be held in the discretion of the Board).

2

IT IS HEREBY ORDERED THAT the June 22 and March 10, 2011 decisions of the
Office of Workers’ Compensation Programs are set aside and the case remanded for proceedings
consistent with this order of the Board.
Issued: May 9, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


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

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Appearances:
Steve Burt, for the appellant
Office of Solicitor, for the Director

Docket No. 08-1585
Issued: March 3, 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 May 15, 2008 appellant filed a timely appeal from the November 9, 2007 and
April 30, 2008 merit decisions of the Office of Workers’ Compensation Programs, denying his
claim for fact of injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant established that he sustained a left knee injury on
August 29, 2007 in the performance of duty, as alleged.
FACTUAL HISTORY
On August 3, 2004 appellant, then a 44-year-old city letter carrier, filed an occupational
disease claim for a left knee injury which he attributed to 23 years of performing his assigned
duties. The Office accepted the claim for aggravation of left knee chondromalacia under file
number xxxxxx714. On January 26, 2004 appellant underwent a primary patellofemoral left
knee arthroplasty. A second left knee surgery was performed on January 26, 2006. On

August 4, 2007 appellant was placed in a permanent rehabilitation job as a modified city mail
carrier.
On September 24, 2007 appellant filed a traumatic injury claim (Form CA-1) alleging
that while delivering mail on August 29, 2007 he turned to go down stairs and felt that something
“gave way” in his left knee. He claimed that plates surgically inserted into his left knee after his
August 3, 2003 claim came apart, requiring total knee replacement surgery. The employing
establishment controverted appellant’s claim, contending that it was not notified on the date of
injury.
Appellant was treated by Dr. Jeffrey D. Shapiro, a Board-certified orthopedic surgeon,
who diagnosed failed left patellofemoral arthroplasty, based on x-rays indicating that appellant’s
femoral component had become dislodged from his femur. On September 10, 2007 he
performed a revision of the femoral and tibial components of appellant’s left total knee
arthroplasty.
In an October 5, 2007 letter, the Office provided Dr. Shapiro with a statement of accepted
facts and requested a medical opinion discussing the cause of appellant’s current left knee
condition.
On October 24, 2007 appellant reported to Dr. Shapiro with considerable discomfort and
a limited range of motion in his left knee. Dr. Shapiro diagnosed appellant with arthrofibrosis
and ankylosis.
By decision dated November 9, 2007, the Office denied appellant’s claim, finding that he
did not establish his medical condition was related to accepted work events. It noted that it was
unclear whether the claimed injury was a consequential injury from appellant’s accepted left
knee conditions or a new injury.
In a November 7, 2007 medical report, Dr. Shapiro responded to the Office’s request for
information. He described appellant’s treatment for his prior left knee injury. Dr. Shapiro noted
that on August 29, 2007 appellant was injured while walking down stairs during work and
subsequently underwent surgical revision of patellofemoral arthroplasty and total knee
arthroplasty on September 10, 2007 to correct his displaced femoral component. He advised that
appellant was currently in physical therapy for joint arthrofibrosis and ankylosis due to
immobility of his joint following the injury and surgical procedure. Dr. Shapiro opined that both
the failed prosthetic implant and subsequent ankylosis of the joint were directly related to the
accepted employment injury.
On November 27, 2007 Dr. Shapiro detailed appellant’s treatment for his accepted 2003
injury. He opined that appellant sustained a failed patellofemoral arthroplasty after twisting his
knee at work on August 29, 2007, which he described as a new injury. Dr. Shapiro then
attributed the failure of appellant’s patellofemoral component to “the failure of the component
necessitating the need for total knee arthroplasty.”
On November 19, 2007 appellant requested a telephonic hearing before a hearing
representative, which took place on February 11, 2008. He testified that he pivoted on his left
knee while going down stairs at work on August 29, 2007. Appellant initially attributed the left
2

knee pain to arthritis from past surgeries, however, as the pain continued into the weekend, he
eventually went to the emergency room for medical treatment.
Appellant submitted emergency room records dated September 2, 2007, which diagnosed
a displaced left knee prosthesis. In a February 27, 2008 report, Dr. Shapiro stated that on
August 29, 2007, while at work, appellant twisted his knee and later presented with component
failure. Dr. Shapiro noted that the component failure required total knee arthroplasty and that
complications ensued following the surgery were “all as a direct result of this sequence of
events.”
In a statement dated March 19, 2008, appellant contended that he injured his knee on
August 29, 2007. He reported for work the next day, despite limping, after which he was off for
the Labor Day holiday weekend. Appellant took off work on Tuesday, September 4, 2007.
By decision dated April 30, 2008, the hearing representative affirmed the November 9,
2007 Office decision, as modified to find that appellant did not establish that he sustained an
injury at the time, place, or in the manner alleged.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,2 including that he is an “employee” within the meaning of
the Act3 and that he filed his claim within the applicable time limitation.4 The employee must
also establish that he sustained an injury in the performance of duty as alleged and that his
disability for work, if any, was causally related to the employment injury.5
An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury in the performance of duty, but the employee’s statements
must be consistent with the surrounding facts and circumstances and his or her subsequent course
of action.6 An employee has not met his or her burden of proof of establishing the occurrence of
an injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim.7 Such circumstances as late notification of injury, lack of confirmation of
1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
3

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
4

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

M.H., supra note 3; George W. Glavis, 5 ECAB 363, 365 (1953).

7

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Gus Mavroudis, 9 ECAB 31, 33 (1956).

3

injury, continuing to work without apparent difficulty following the alleged injury, and failure to
obtain medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established.8 However, an
employee’s statement alleging that an injury occurred at a given time and in a given manner is of
great probative value and will stand unless refuted by strong or persuasive evidence.9
ANALYSIS
The issue is whether appellant established that he sustained a left knee injury on
August 29, 2007 in the performance of duty. By decision dated November 9, 2007, the Office
accepted that the August 29, 2007 incident occurred as alleged, but found that the medical
evidence did not support that he sustained an employment-related injury. However, in the
April 30, 2008 decision, an Office hearing representative modified the decision to find that the
August 29, 2007 incident was not accepted. The Board does not find such inconsistencies as
determined by the hearing representative and accepts the August 29, 2007 incident occurred as
alleged.
Appellant claimed that he was injured on August 29, 2007 after turning to go down stairs
while delivering mail. He testified during a telephonic hearing that he initially believed his left
knee pain was related to his previous surgeries. However, during Labor Day weekend, he
continued to experience pain and eventually went to the emergency room. Appellant sought
medical treatment from Dr. Shapiro beginning September 5, 2007 for his left knee. Appellant
only worked one shift after the incident, during which he noted that he was limping, prior to
stopping work on September 5, 2007. He submitted a traumatic injury claim on September 5,
2007, which was later rescinded due to the fact that he mistakenly indicated that he was injured
in August 2003, and subsequently refiled the claim on September 24, 2007.
The Board finds that appellant’s statements are consistent with the surrounding facts and
circumstances and his subsequent course of action. Here, appellant only worked one shift, with
difficulty, after the August 29, 2007 incident. Emergency room medical records dated
September 2, 2007 support appellant’s claim that he timely sought medical treatment.
Additionally, appellant attempted to file a claim only a few days after the incident, which does
not constitute a significant delay.
Further, appellant’s claim is generally supported by Dr. Shapiro’s medical reports. The
Board notes that Dr. Shapiro initially reported that appellant injured his knee over the Labor Day
weekend. However, this inconsistency is not so great as to cast doubt onto the validity of
appellant’s claim. The misstatement was a reasonable mistake in light of the fact that appellant
was treated in the emergency room over the weekend. Further, Dr. Shapiro addressed
appellant’s work incident in subsequent medical reports, including those dated November 11 and
27, 2007 and February 2, 2008.

8

M.H., supra note 3; John D. Shreve, 6 ECAB 718, 719 (1954).

9

S.P., supra note 7; Wanda F. Davenport, 32 ECAB 552, 556 (1981).

4

A claimant’s relation of an employment incident carries great probative value and will
stand unless refuted by strong or persuasive evidence.10 The record does not contain such
inconsistencies, as cited by the hearing representative, as to refute appellant’s claim.
The Board further finds that appellant established that he sustained a left knee injury due
to the August 29, 2007 accepted incident.
In a medical report dated November 7, 2007, Dr. Shapiro stated that appellant was
injured while walking down stairs at work on August 29, 2007. He reported that on
September 10, 2007 he performed a surgical revision of a past patellofemoral and total knee
arthroplasty to correct a femoral component displaced during the work incident. Dr. Shapiro
followed up with a November 27, 2007 medical report, where he detailed appellant’s treatment
history. He opined that appellant twisted his knee on August 29, 2007, resulting in the
dislodging of the femoral component from the femur, requiring total knee arthroplasty.
Additionally, in a February 27, 2008 medical note, Dr. Shapiro reiterated that appellant twisted
his knee at work on August 29, 2007, resulting in component failure and requiring total knee
arthroplasty. He opined that the procedure and all ensuing complications were a direct result of
this sequence of events.
Dr. Shapiro consistently reported, with rationalized medical opinion, that appellant
twisted his knee while walking down stairs in the performance of duty, resulting in a displaced
femoral component requiring surgery.11 His opinion is uncontroverted by other medical
evidence and is sufficient to establish that appellant’s left knee condition and need for surgery
were a result of the accepted August 29, 2007 employment incident. The Board finds that
appellant sustained an injury in the performance of duty on that date.
CONCLUSION
The Board finds that appellant established that he sustained a left knee injury on
August 29, 2007 in the performance of duty.

10

S.P., supra note 7.

11

The Board notes that in a September 5, 2007 medical note Dr. Shapiro indicated that appellant was injured over
Labor Day weekend. This inconsistency is of little relevance, as discussed above.

5

ORDER
IT IS HEREBY ORDERED THAT the April 30, 2008 and November 9, 2007
decisions of the Office of Workers’ Compensation Programs are reversed.
Issued: March 3, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, VERNON HILLS
POST OFFICE, Vernon Hills, IL, Employer
__________________________________________

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Appearances:
Stephanie Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1209
Issued: March 24, 2022

Case Submitted on the Record

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

JURISDICTION
On August 5, 2021 appellant, through counsel, filed a timely appeal from a June 16, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than five
percent permanent impairment of the left lower extremity, for which he has received schedule
award compensation.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 17, 2017 appellant, then a 55-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date he sprained his left thigh and upper leg when he lost
his footing and slipped on mud and ice while in the performance of duty. He stopped work on
January 18, 2017. OWCP accepted the claim for a strain of the left thigh muscle. On June 30,
2017 appellant underwent an OWCP-authorized left L3-4 foraminotomy and microdiscectomy.
OWCP subsequently expanded acceptance of the claim to include L3-4 disc protrusion and lumbar
radiculopathy secondary to left L3-4 disc protrusion. It paid appellant wage-loss compensation on
the supplemental rolls from March 4 until May 26, 2017.
In an impairment evaluation report dated April 25, 2019, Dr. Neil Allen, a Board-certified
internist and neurologist, obtained a history of appellant’s January 17, 2017 employment injury
and discussed his continued complaints of back pain radiating into the left thigh. On examination
he found some thigh and calf atrophy, intact sensation, and full strength of the lumbar spine and
left hip. To ascertain the range of motion (ROM), Dr. Allen performed three measurements of the
left hip, with the highest measurement yielding 70 degrees flexion, plus 6 degrees extension, 45
degrees external rotation, 55 degrees internal rotation, 61 degrees abduction, and 24 degrees
adduction. Dr. Allen found 10 percent permanent impairment of the left lower extremity due to
loss of ROM. Referencing The Guides Newsletter, Rating Spinal Nerve Extremity Impairment
Using the Sixth Edition (July/August 2009) (The Guides Newsletter), which is a supplemental
publication of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides),4 Dr. Allen found no sensory or motor impairment of
either lower extremity due to a spinal condition. He determined that using the diagnosis-based
impairment (DBI) method for the diagnosis of hip strain yielded a lower extremity impairment
rating between five and seven percent. Dr. Allen reported that the ROM method resulted in a
greater impairment rating.
On May 22, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule
award.

3

Docket No. 20-1146 (issued December 18, 2020).

4

(6 th ed. 2009).

2

On October 8, 2019 5 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving
as a DMA, concurred with Dr. Allen’s finding that appellant had no impairment of either lower
extremity due to a spinal nerve impairment under The Guides Newsletter. He found that ROM
was not permitted as an alternative impairment rating for the applicable class of diagnosis (CDX)
of left hip strain. Dr. Katz found that a CDX of hip strain with mild motion deficits was a Class 1
impairment, which yielded a default value of two percent of the left lower extremity according to
Table 16-4 on page 512 of the A.M.A., Guides. He applied a grade modifier for functional history
(GMFH) and a grade modifier for physical examination (GMPE) of one each and indicated that a
grade modifier for clinical studies (GMCS) was inapplicable. Dr. Katz utilized the net adjustment
formula and found no change from the default value of two percent. He concluded that appellant
had two percent permanent impairment of the left lower extremity.
By decision dated October 22, 2019, OWCP granted appellant a schedule award for two
percent left lower extremity permanent impairment. The period of the award ran for 5.76 weeks
from April 25 to June 4, 2019.
On November 19, 2019 counsel requested a review of the written record before a
representative of OWCP’s Branch of Hearings and Review and submitted an addendum report
from Dr. Allen dated November 14, 2019, in which he opined that the ROM method yielded 10
percent permanent impairment due to loss of hip flexion, and thus was preferable to the DBI
method as it resulted in a higher impairment rating.
By decision dated March 23, 2020, an OWCP hearing representative affirmed the
October 22, 2019 schedule award decision.
On May 13, 2020 counsel filed an appeal with the Board. By decision dated December 18,
2020, the Board set aside the March 23, 2020 decision and remanded the case to OWCP for
clarification from the DMA as to whether the accepted conditions included a left hip strain and
whether appellant had a mild or moderate motion deficit of the left hip. 6
On January 6, 2021 OWCP requested clarification from the DMA, Dr. Katz, as to whether
the accepted conditions included a left hip strain. It also requested h e clarify his left lower
extremity impairment rating using Table 16-4 and to explain his finding that appellant had only
mild motion deficit given that Dr. Allen found he had moderately reduced hip ROM.
In an addendum dated January 7, 2021, Dr. Katz noted that appellant’s accepted left thigh
strain encompassed the left hip. He again found that ROM was not permitted as an alternative
impairment rating for the applicable CDX of left hip strain. Dr. Katz found that a CDX for hip
strain with moderate motion deficits, which is a Class 1 impairment, yielded a default value of five
percent of the left lower extremity according to Table 16-4 on page 512 of the A.M.A., Guides.
He applied a GMFH and a GMPE of one each and indicated that GMCS was inapplicable. Dr. Katz

The report notes the year as “2018” which appears to be a typographical error as OWCP referred the claim to the
DMA on September 26, 2019.
5

6

Supra note 3.

3

utilized the net adjustment formula and found no change from the default value of five percent.
He concluded that appellant had five percent permanent impairment of the left lower extremity.
By decision dated January 27, 2021, OWCP granted appellant an additional three percent
schedule award for left lower extremity permanent impairment, for a total five percent left lower
extremity permanent impairment. The period of the award ran for 8.64 weeks from June 5 to
August 4, 2019.
On February 25, 2021 counsel requested a review of the written record before a
representative of OWCP’s Branch of Hearings and Review.
By decision dated June 16, 2021, OWCP’s hearing representative affirmed the January 27,
2021 schedule award decision.
LEGAL PRECEDENT
The schedule award provisions of FECA 7 and its implementing regulations 8 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. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. OWCP
evaluates the degree of permanent impairment according to the standards set forth in the specified
edition of the A.M.A., Guides, published in 2009. 9 The Board has approved the use by OWCP of
the A.M.A., Guides for the purpose of determining the percentage loss of use of a member of the
body for schedule award purposes. 10
In determining permanent impairment of the lower extremities under the sixth edition of
the A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the
lower extremity to be rated. With respect to the hip, the relevant portion of the leg for the present
case, reference is made to Table 16-4 (Hip Regional Grid) beginning on page 512. 11 After the
CDX is determined from the Hip Regional Grid (including identification of a default grade value),
the net adjustment formula is applied using GMFH, GMPE, and GMCS. The net adjustment

7

Supra note 2.

8

20 C.F.R. § 10.404.

9

For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6 th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
10

L.E., Docket No.20-1505 (issued June 7, 2021); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro
Rivera, 12 ECAB 348 (1961).
11

A.M.A., Guides 512-15 (6 th ed. 2009).

4

formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12 Under Chapter 2.3, the
evaluators are directed to provide reasons for their impairment rating choices, including the
choices of diagnoses from regional grids and calculations of modifier scores. 13
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified. 14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than five
percent permanent impairment of his left lower extremity, for which he previously received
schedule award compensation.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s March 23, 2020 merit decision because the
Board considered that evidence in its December 18, 2020 decision. Findings made in prior Board
decisions are res judicata absent any further review by OWCP under section 8128 of FECA. 15
On prior appeal, the Board remanded the case to OWCP to request clarification from the
DMA as to whether the accepted conditions include a left hip strain, and whether appellant had a
mild or moderate motion deficit of the left hip. In a report dated January 18, 2021, Dr. Katz again
found that ROM was not permitted as an alternative impairment rating for the diagnosis of left hip
strain. Dr. Katz found that a CDX of hip strain with moderate motion deficits, which is a Class 1
impairment, yielded a default value of five percent of the left lower extremity according to Table
16-4 on page 512 of the A.M.A., Guides. He applied a GMFH and a GMPE of one each and
indicated that GMCS was inapplicable. Dr. Katz utilized the net adjustment formula and found no
change from the default value of five percent. He concluded that appellant had five percent
permanent impairment of the left lower extremity.
The Board finds that Dr. Katz adequately explained how he arrived at his rating of
permanent impairment by listing specific tables and pages in the A.M.A., Guides. The Board also
finds that Dr. Katz properly interpreted and applied the standards of the sixth edition of the
A.M.A., Guides to conclude that appellant qualified for five percent permanent impairment of the
left lower extremity. Dr. Katz’s opinion therefore represents the weight of the medical evidence
and supports that appellant has five percent permanent impairment of the left lower extremity.

12

Id. at 515-22.

13

Id. at 23-28.

14

See supra note 9 at Chapter 2.808.6(f) (March 2017).

15

T.R., Docket No. 20-0588 (issued June 25, 2021); A.G., Docket No. 18-0329 (issued July 26, 2018); Clinton E.
Anthony, Jr., 49 ECAB 476 (1998).

5

Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than five
percent permanent impairment of his left lower extremity, for which he previously received
schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT the June 16, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 24, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.L., Appellant
and
U.S. POSTAL SERVICE, RINGWOOD POST
OFFICE, Ringwood, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1478
Issued: February 10, 2011

Case Submitted on the Record

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

JURISDICTION
On May 5, 2010 appellant, through her attorney, filed a timely appeal from March 3
and 11, 2010 merit decisions of the Office of Workers’ Compensation Programs denying
modification of its loss of wage-earning capacity determination. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established the Office’s wage-earning capacity
determination should be modified.
FACTUAL HISTORY
On August 14, 2007 appellant, then a 43-year-old rural mail carrier, filed an occupational
disease claim alleging that she sustained herniated cervical discs and spinal cord decompression
due to factors of her federal employment. She stopped work on July 12, 2007. On July 26, 2007
appellant underwent a discectomy at C5-6 and C6-7. The Office accepted the claim for cervical
radiculopathy, herniated discs at C5-6 and C6-7 and cervical intervertebral disc disorder with

myelopathy and authorized the July 26, 2007 surgical procedure as necessary due to her work
injury.
On November 26, 2008 appellant accepted a position with the employing establishment
as a modified rural carrier. The position required sorting mail for 30 minutes, delivering small
parcels for 1 hour, general office work for 4.5 hours and forwarding work for 30 minutes. By
decision dated April 9, 2009, the Office reduced appellant’s compensation to zero based on its
finding that her actual earnings as a modified rural carrier effective November 26, 2008 fairly
and reasonably represented her wage-earning capacity. It determined that her actual earnings
met or exceeded her wages at the time of her injury.
On November 3, 2009 the employing establishment notified appellant that following
guidelines set forth by the National Reassessment Process it did not have full-time work within
her medical restrictions. On November 3, 2009 appellant accepted a part-time position as a
modified rural carrier.
In a January 4, 2010 duty status report, Dr. Antonio C. Yuk, a Board-certified
neurosurgeon, found that appellant could work with restrictions. In an accompanying progress
report, he indicated that she had returned for clarification of her work status and had no new
symptoms.
On November 20, 2009 appellant began filing claims for compensation (Forms CA-7) for
intermittent wage loss beginning November 9, 2009. On the reverse side of the claim forms, the
postmaster indicated that it did not have work available.
On January 6, 2010 the Office advised appellant of the evidence required to modify a loss
of wage-earning capacity determination. It noted that the employing establishment withdrew her
limited-duty assignment on November 4, 2009 as part of its National Reassessment Process. The
Office provided appellant 30 days to submit rationalized medical evidence showing that she
sustained a change in her injury-related condition.
In a statement dated January 6, 2010, appellant challenged the April 9, 2009 wageearning capacity determination. She related that beginning November 3, 2009 a representative of
the National Reassessment Process told her that her “present job offer was null and void.”
Appellant now worked only a few hours per day. She stated, “I strongly feel they have an
obligation to their employees, especially ones that were injured performing for them.” Appellant
asserted that she now had a loss of wage-earning capacity due to her employment injury.
On January 7, 2010 appellant requested reconsideration of the Office’s wage-earning
capacity determination.
By decision dated March 3, 2010, the Office denied appellant’s claim for intermittent
compensation beginning November 9, 2009 after finding that she had not submitted evidence
showing that the established wage-earning capacity determination should be modified. On
March 11, 2010 it denied modification of its April 9, 2009 wage-earning capacity decision.

2

LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.1 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.2
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.3 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.4
The Board has held that the Office may accept a limited period of disability without
modifying a standard wage-earning capacity determination.5 This occurs when there is a
demonstrated temporary worsening of a medical condition of insufficient duration and severity to
warrant modification of a wage-earning capacity determination.6 This narrow exception is only
applicable for brief periods of medical disability. It does not apply to situations where there is a
wage-earning capacity determination in place and the employee claims additional wage-loss
compensation due to the withdrawal of light-duty work.7
When a formal loss of wage-earning capacity determination is in place and light duty is
withdrawn, the proper standard of review is not whether appellant sustained a recurrence of
disability, but whether the Office should modify its decision according to the established criteria
for modifying a formal loss of wage-earning capacity determination.8 Office procedures provide
that when the employing establishment has withdrawn a light-duty assignment, which
accommodated the claimant’s work restrictions and a formal wage-earning capacity decision has
been issued, the decision will remain in place, unless one of the three accepted reasons for
modification applies.9

1

See 5 U.S.C. § 8115 (determination of wage-earning capacity).

2

Sharon C. Clement, 55 ECAB 552 (2004).

3

Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375, 377 (2000).

4

Id.

5

See Katherine T. Kreger, 55 ECAB 633 (2004).

6

Id.

7

K.R., 61 ECAB ___ (Docket No. 09-415, issued February 24, 2010).

8

Id.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.7(a)(5) (October 2005).

3

ANALYSIS
The Office accepted that appellant sustained employment-related herniated cervical discs
and spinal cord decompression. Following surgery, appellant returned to work as a modified
carrier with the employing establishment. By decision dated April 9, 2009, the Office
determined that she had no loss of wage-earning capacity as her actual earnings as a modified
rural carrier fairly and reasonably represented her wage-earning capacity.
On November 3, 2009 the employing establishment reduced appellant’s work hours as
part of a National Reassessment Process after determining that it did not have work available for
her position. Appellant filed claims requesting compensation for wage loss beginning
November 9, 2009. She further requested modification of the April 9, 2009 wage-earning
capacity decision.
Appellant did not submit any evidence to show that the Office’s original wage-earning
capacity decision was erroneous. The Office based its loss of wage-earning capacity
determination on her actual earnings that a modified rural carrier beginning November 26, 2008
fairly and reasonably represented her wage-earning capacity. Its determination was consistent
with section 8115(a) of the Act which provides that the wage-earning capacity of an employee is
determined by appellant’s actual earnings if her actual earnings fairly and reasonably represent
her wage-earning capacity.10 The Office properly noted that she had received actual earnings as
a modified rural carrier for more than 60 days at the time of its loss of wage-earning capacity
determination and there is no evidence that the position was make-shift, temporary, seasonal or
otherwise inappropriate for a wage-earning capacity determination.11
Appellant contended that she now has a loss of wage-earning capacity as she is no longer
working full time as a modified rural carrier. As a formal wage-earning capacity was in effect at
the time that the employing establishment took away her position, she must show a basis for
modification of that decision to be entitled to wage-loss compensation on or after
November 9, 2009.12
The Board finds that appellant has not met any of the requirements for modification of
the Office’s April 9, 2009 wage-earning capacity determination. Appellant did not allege that
she was retrained or otherwise vocationally rehabilitated and, as discussed, there is no evidence
that the original wage-earning capacity determination was erroneous. Furthermore, the evidence
does not establish a material change in her employment-related condition. The only
contemporaneous medical evidence is Dr. Yuk’s January 4, 2010 report, which finds that
appellant can work with restrictions. Compensation for loss of wage-earning capacity is based
upon loss of the capacity to earn and not on actual wages lost.13 Absent a showing that the wageearning capacity should be modified, appellant has no disability under the Act and is not entitled
10

A.P., 58 ECAB 198 (2006); David L. Scott, 55 ECAB 330 (2004).

11

D.S., 58 ECAB 392 (2007); Selden H. Swartz, 55 ECAB 272 (2004).

12

See D.S., id.

13

Marie A. Gonzales, 55 ECAB 395 (2004); Roy Matthew Lyon, 27 ECAB 186 (1975).

4

to compensation for wage loss based on the withdrawal of her limited-duty position.14
Accordingly, the Office properly denied her claim for wage-loss compensation as she had not
established modification of the established wage-earning capacity determination and properly
denied modification of its April 9, 2009 wage-earning capacity decision.
CONCLUSION
The Board finds that appellant has not established the Office’s wage-earning capacity
determination should be modified.
ORDER
IT IS HEREBY ORDERED THAT the March 11 and 3, 2010 decisions of the Office of
Workers’ Compensation Programs are affirmed.
Issued: February 10, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

K.R., 61 ECAB ___ (Docket No. 09-415, issued February 24, 2010).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF STATE, PASSPORT OFFICE, )
San Francisco, CA, Employer
)
__________________________________________ )
A.G., Appellant

Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 07-2383
Issued: June 19, 2008

Oral Argument March 18, 2008

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 17, 2007 appellant filed a timely appeal from a June 20, 2007 merit decision
of the Office of Workers’ Compensation Programs, which denied his claim for an emotional
condition. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
emotional condition causally related to factors of his federal employment.
FACTUAL HISTORY
On January 31, 2007 appellant, then a 52-year-old passport specialist, filed a Form CA-2,
occupational disease claim, alleging that he sustained an emotional condition causally related to
factors of his employment. He experienced depression, anxiety, fear and feelings of rejection
due to harassment at the employing establishment, which resulted in his hospitalization.

Appellant alleged that, although the hospital submitted workman’s compensation forms to the
Office, it never responded to him.
Appellant submitted a position description form and a Form SF-50 notice of promotion.
By letter dated May 4, 2007, the Office advised appellant that he needed to submit
additional information in support of his claim. It asked appellant to describe in detail the
employment-related conditions or incidents, which he believed contributed to his emotional
condition, and to provide specific descriptions of all incidents, which he believed affected his
condition. The letter noted that it was appellant’s responsibility to provide the requested
information to the Office within 30 days. Appellant did not submit any additional information.
By decision dated June 20, 2007, the Office denied appellant’s claim on the basis that he
failed to establish any compensable factor of employment and thus fact of injury was not
established.
LEGAL PRECEDENT
To establish that an emotional condition was sustained in the performance of duty there
must be factual evidence identifying and corroborating employment factors or incidents alleged
to have caused or contributed to the condition, medical evidence establishing that the employee
has an emotional condition and rationalized medical opinion establishing that compensable
employment factors are causally related to the claimed emotional condition.1 There must be
evidence that implicated acts of harassment or discrimination did, in fact, occur supported by
specific, substantive, reliable and probative evidence.2
The first issue to be addressed is whether appellant has established factors of employment
that contributed to his alleged emotional condition or disability. Where the disability results
from an emotional reaction to regular or specially assigned work duties or a requirement imposed
by the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.3 On the other hand, disability is not covered where it results from an
employee’s fear of a reduction-in-force, frustration from not being permitted to work in a
particular environment or to hold a particular position, or to secure a promotion. Disabling
conditions resulting from an employee’s feeling of job insecurity or the desire for a different job
do not constitute a personal injury sustained while in the performance of duty within the meaning
of the Act.4

1

See Debbie J. Hobbs, 43 ECAB 135 (1991).

2

See Ruth C. Borden, 43 ECAB 146 (1991).

3

Lillian Cutler, 28 ECAB 125 (1976).

4

Id.

2

ANALYSIS
The Board finds that appellant has failed to submit factual evidence in support of his
claim for an emotional condition. Appellant indicated that he experienced harassment at the
employing establishment which resulted in his hospitalization. However, he did not provide any
evidence to establish that he was harassed or treated in a discriminatory manner.5 Mere
perceptions of harassment or discrimination are not compensable; a claimant must establish a
basis in fact for the claim by supporting his allegations with probative and reliable evidence.6
Appellant provided no corroborating evidence, such as witness statements, to establish that the
harassment and mistreatment actually occurred.7 He failed to provide any description of the
incidents or the identity of the individuals he believed had harassed him.
An employee’s emotional reaction to an administrative or personnel matter is not covered
under the Act unless there is evidence that the employing establishment acted unreasonably.8
Appellant has not presented any evidence that any individuals or supervisors acted unreasonably
or committed error with regard to actions involving personnel matters on the part of the
employing establishment.
Appellant has not described the alleged incidents of harassment and discrimination with
details of individuals involved, time and place of the incidents or any factual evidence in support
of his allegations. The Board finds that appellant has not established a compensable work factor.
For this reason, the medical evidence will not be considered.9 The Board will affirm the June 20,
2007 decision, denying compensation for an alleged emotional condition.10
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained an emotional condition in the performance of duty.

5

See Joel Parker, Sr., 43 ECAB 220 (1991). (The Board held that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence.)
6

Curtis Hall, 45 ECAB 316 (1994); Margaret S. Krzycki, 43 ECAB 496 (1992).

7

See William P. George, 43 ECAB 1159, 1167 (1992).

8

See Alfred Arts, 45 ECAB 530, 543-44 (1994).

9

See Margaret S. Krzycki, supra note 6.

10

With his appeal to the Board, appellant submitted medical and factual evidence which was not previously
provided to the Office. The Board cannot consider this evidence for the first time on appeal, as its review is limited
to the evidence of record which was before the Office at the time of its final merit decision. 20 C.F.R. § 501.2(c).
Appellant may submit this evidence to the Office with a request for reconsideration.

3

ORDER
IT IS HEREBY ORDERED THAT the June 20, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: June 19, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4