United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, TOWNE WEST POST
OFFICE, Mobile, AL, Employer
__________________________________________

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Appearances:
Gerald Hughes, for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0035
Issued: May 13, 2021

Case Submitted on the Record

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

JURISDICTION
On October 9, 2020 appellant, through her representative, filed a timely appeal from an
April 10, 2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As
more than 180 days have elapsed from OWCP’s last merit decision, dated September 24, 2019, to
the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 28, 2019 appellant, then a 52-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on January 17, 2019 she sustained left carpal tunnel syndrome while in
the performance of duty. She related that the cause of injury was unknown. On the reverse side
of the claim form appellant’s supervisor indicated that appellant had not reported her injury to
management.
In support of her claim, appellant submitted a report dated January 17, 2019 from an urgent
care facility, authored by an attending physician and nurse practitioner whose signatures are
illegible. The report indicated that appellant experienced intermittent, fluctuating moderate pain
in her left shoulder. It also noted that she worked at the employing establishment and lifted heavy
objects. A clinical impression of trapezius spasm on the left was listed.
OWCP also received a report dated January 18, 2019 from the same urgent care facility,
authored by an attending physician whose signature is illegible. The physician indicated that
appellant was seen for pain in her left shoulder and left bicep. Appellant also related that her left
upper extremity strength had decreased, she experienced pain down to her left hand, and she was
unable to externally rotate her left shoulder. A clinical impression was noted of bilateral carpal
tunnel syndrome, acute trapezius spasm and acute left bicep pain.
Appellant submitted an electromyography (EMG) report dated March 12, 2019 from Quinn
Millington, a physical therapist. Mr. Millington related that appellant experienced bilateral
shoulder pain as well as pain between the neck and the shoulder and along the base of the neck.
He diagnosed moderate-to-severe compromise of the bilateral median nerves at the wrists.
Appellant also submitted a magnetic resonance imaging (MRI) report, dated March 13,
2019, from Dr. Stephen C. Ashe, an osteopathic physician specializing in diagnostic radiology.
Dr. Ashe related findings and diagnosed broad-based herniation at C6-7 with severe central canal
narrowing and moderate-to-severe stenosis bilaterally, as well as a small focus of myelomalacia at
the cord at C6-7, small annular bulge at C3-4 with mild central canal narrowing and moderate
foraminal stenosis on the left due to spondylitic changes, and small central protrusion at C4-5 with
mild-to-moderate central canal narrowing and mild foraminal stenosis bilaterally.
In a form report dated March 19, 2019, Dr. David K. Donahoe, a Board-certified
orthopedic surgeon, related that appellant should remain off work from March 18 through
23, 2019.
In a letter dated March 28, 2019, an employing establishment manager, related that on
March 19, 2019 appellant informed him that she wanted to file a Form CA-1 and a Form CA-2a
(notice of recurrence) for injuries that occurred on January 17 and 18, 2019. He related that

2

appellant indicated that she did not report her injury because she was just having muscle spasms.
Appellant related that she had been receiving physical therapy for six weeks.
Appellant provided a statement on April 3, 2019, explaining that on January 17, 2019 she
was moving trays and felt a sensation from her shoulder descending to her fingers. She later leaned
over to retrieve a parcel and felt spasms from the base of her neck down her arm and to her fingers.
Appellant also related that on January 18, 2019 while delivering mail she reached out with her left
arm she felt a similar pain from the base of her neck to her fingers. She went to urgent care after
both incidents.
In a development letter dated April 22, 2019, OWCP advised appellant that, although she
submitted a claim for a traumatic injury, she described conditions which occurred over a period
longer than one workday or shift and, thus, her claim had been converted to an occupational disease
claim. It advised her that additional factual and medical evidence was necessary to establish her
claim. Specifically, OWCP noted that appellant’s evidence was insufficient to establish that she
actually experienced employment factor(s) alleged to have caused injury and that she had not
provided a physician’s opinion explaining how her employment activities caused, contributed to,
or aggravated her medical condition. It requested that she submit a comprehensive narrative
medical report and provided a questionnaire for her completion. OWCP afforded appellant 30
days to submit the necessary evidence.
In response, appellant submitted a report dated May 1, 2019 from Dr. Charles M. Gordon,
a specialist in orthopedic surgery. Dr. Gordon noted that appellant related that she had been lifting
a box from a truck and felt a pop or pull on the left side of her neck that radiated down her left arm
into her long finger. He noted that appellant had undergone six weeks of physical therapy, which
aggravated her symptoms. Dr. Gordon diagnosed cervical myelopathy and cervical radiculopathy.
He recommended that appellant undergo an anterior cervical discectomy and fusion C4 to C7
based on the progressive nature of her neurologic issues.
OWCP also received a duty status report (Form CA-17) dated May 1, 2019 from
Dr. Gordon wherein he noted appellant’s date of injury as January 17, 2019, listed diagnoses of
carpal tunnel and herniated disc, and indicated that appellant could not return to work.
Appellant submitted a response to OWCP’s development questionnaire on May 3, 2019,
describing her job duties and the history of her alleged injuries.
OWCP received a form report dated May 9, 2019 from Dr. Gordon indicating that
appellant was diagnosed with a herniated cervical disc, cervical myelopathy, and cervical
radiculopathy. Dr. Gordon indicated that appellant had undergone anterior cervical discectomy
and fusion C4 to C7.
By decision dated June 12, 2019, OWCP accepted that the employment factors had
occurred as alleged and that a medical condition had been diagnosed. However, it denied
appellant’s claim as causal relationship has not been established.
Appellant resubmitted Dr. Ashe’s March 13, 2019 MRI scan report and Dr. Gordon’s
May 1, 2019 narrative report.

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On July7, 2019 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review. She submitted additional evidence with her request.
In a letter dated June 26, 2019, Dr. Gordon noted that he felt appellant’s cervical
radiculopathy and cervical myelopathy was the result of her repetitive work environment. He
noted that appellant was responsible for casing mail, delivering mail, picking up packages, and
lifting trays, which weighed between 5 and 25 pounds. Dr. Gordon concluded that “I do feel like”
appellant’s cervical myelopathy and spinal cord compression was the result of her work
environment. He indicated that he planned to perform an anterior cervical discectomy and fusion
with decompression of the nerve roots to relieve her symptoms.
By decision dated September 24, 2019, OWCP’s hearing representative affirmed the
June 12 2019 decision, finding that appellant had failed to establish that her diagnosed conditions
were causally related to the accepted factors of her employment.
On January 13, 2020 appellant requested reconsideration of OWCP’s September 24, 2019
decision. She argued that OWCP’s decision should be reversed because she had evidence that she
did report her injury to her supervisor. Appellant enclosed a duplicate copy of Dr. Gordon’s letter
dated June 26, 2019, a duplicate copy of her Form CA-17 dated May 1, 2019, and copies of her
text messages to her supervisor informing him that she went to urgent care.
By decision dated April 10 2020, OWCP denied appellant’s request for reconsideration.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.3
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.4

3

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
4
20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).

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A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.5 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.6 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
On reconsideration appellant asserted that Dr. Gordon’s letter dated June 26, 2019 was
sufficient to vacate OWCP’s prior decision. Causal relationship is a medical issue that must be
addressed by relevant medical evidence.8 Appellant’s opinion is not relevant to the underlying
issue in this case, which is whether the medical evidence establishes that she sustained cervical
radiculopathy and cervical myelopathy causally related to the accepted factors of her federal
employment. She also alleged that she had timely reported her injury. However, appellant’s timely
report of injury is not in question. As the Board has held, the submission of evidence or argument
which does not address the particular issue involved does not constitute a basis for reopening a
case.9 Consequently, appellant is not entitled to a review of the merits of her claim based on the
first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).10
The Board further finds that appellant has not provided any relevant and pertinent new
evidence not previously considered. Appellant submitted duplicate reports from Dr. Gordon dated
May 1 and June 26, 2019. She also submitted cumulative evidence regarding her medical
appointments at an urgent care facility. Evidence which repeats or duplicates evidence already of
record has no evidentiary value and does not constitute a basis for reopening a case.11 As appellant

5

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Chapter 2.1602.4b.
6

Id. at § 10.608(a); see also A.F., Docket No. 19-1832 (issued July 21, 2020); M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); J.B., Docket No. 20-0145 (issued September 8, 2020); Y.K., Docket No. 18-1167 (issued
April 2, 2020); E.R., Docket No. 09-1655 (issued March 18, 2010).
8

A.G., Docket No. 20-0290 (issued June 24, 2020).

9

I.M., Docket No. 20-0980 (February 2, 2021); M.K., Docket No. 18-1623 (issued April 10, 2019);
Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).
10

A.G., supra note 8; C.B., Docket No. 18-1108 (issued January 22, 2019).

11
V.L., Docket No. 19-0069 (issued February 10, 2020); A.K., Docket No. 19-1210 (issued November 20, 2019);
R.S., Docket No. 19-0312 (issued June 18, 2019); Richard Yadron, 57 ECAB 207 (2005).

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did not provide relevant and pertinent new evidence, she is not entitled to a merit review based on
the third requirement under 20 C.F.R. § 10.606(b)(3).12
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 10, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 13, 2021
Washington, DC

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

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

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

12

See T.W., Docket No. 18-0821 (issued January 13, 2020).

13

J.B., supra note 7; D.G., Docket No. 19-1348 (issued December 2, 2019).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jacksonville, FL, Employer
__________________________________________

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

Docket No. 10-382
Issued: October 18, 2010

Case Submitted on the Record

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

JURISDICTION
On November 25, 2009 appellant, through his attorney, filed a timely appeal from July 24
and October 19, 2009 merit decisions of the Office of Workers’ Compensation Programs
denying his claim for wage-loss compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant was disabled beginning July 5, 2008 causally related to his
May 14, 2008 employment injury.
FACTUAL HISTORY
On May 28, 2008 appellant, then a 46-year-old mail handler, filed a claim alleging that he
sustained an injury to his back on May 14, 2008 when he was struck from behind by a general
purpose container. The Office accepted the claim for a low back contusion. Appellant received
continuation of pay from May 21 through July 4, 2008. On July 25, 2008 he filed a claim for
compensation beginning July 5, 2008.

By letter dated July 30, 2008, the Office requested that Dr. John E. Carey, an attending
Board-certified anesthesiologist, provide an estimate of appellant’s return to work date and any
continued work restrictions. On August 11, 2008 Dr. Carey advised that he should remain off
work pending the results of a magnetic resonance imaging (MRI) scan study of the cervical
spine.
On October 3, 2008 the Office informed appellant that he should submit medical
evidence supporting that he was disabled beginning July 5, 2008. It also requested medical
records addressing his prior nonemployment-related motor vehicle accident.
In a narrative report dated August 11, 2008, received by the Office on November 7, 2008,
Dr. Carey evaluated appellant for low back pain radiating into the left posterior calf. He noted
that the most recent MRI scan study showed multilevel spondylosis and an L4-5 disc protrusion.
Dr. Carey also diagnosed persistent paresthesias of the upper extremity. In a state workers’
compensation form dated September 25, 2008, he indicated that he was treating appellant for a
work-related condition and referred him to a neurosurgeon for a consultation.
In a work restriction evaluation dated October 29, 2008, Dr. Carey found that appellant
could not perform his usual employment due to limitations from a herniated nucleus pulposus
(HNP) of the cervical spine and an HNP at L4/5. He opined that he was unable to work until
examined by a surgeon.
On February 10, 2009 Dr. Eric W. Scott, a Board-certified neurosurgeon, described
appellant’s injury as occurring when he was struck from behind by a heavy mail cart resulting in
a whiplash injury to his low back and neck. He stated:
“Since that time he has had pain radiating from the back of his neck across the
scapular border and down the left arm. He also has frontal headaches. He notes
diminished grip strength on the left as well as triceps weakness. He has had
numbness and paresthesias in the left hand, particularly the middle finger. He has
had exacerbation of a preexisting lumbar injury as well. Notably [appellant] has
been involved in three motor vehicle accidents, 1995 and 1997, as well as 2005.
He did have an MRI [scan] study of the cervical spine four months ago which
indicates some aggravation of a previous disc bulge and spondylostenosis at the
C4-5 level, which is now progressed.”
Dr. Scott related that the September 17, 2008 MRI scan study showed a C4-5 disc bulge
with a more prominent protrusion upon the spinal cord than in a 2005 MRI scan study. He
diagnosed preexisting cervical spondylosis mildly aggravated by his work injury, chronic low
back pain and left cervical brachial pain of uncertain origin.
By decision dated February 26, 2009, the Office denied appellant’s claim for
compensation beginning July 5, 2008. It found that the medical evidence was insufficient to
show that he was disabled from work due to his accepted employment injury. The Office
further indicated that the factual evidence conflicted as appellant initially stated that he was
struck from behind by a mail cart but later stated that he was hit from behind by a postcon.
On March 6, 2008 appellant, through his attorney, requested a telephone hearing.
2

In a report dated September 25, 2008, received by the Office on April 10, 2009,
Dr. Carey discussed appellant’s complaints of low back pain which radiated into his left lower
extremity into the calf. He found that a September 17, 2008 MRI scan study showed progression
of a central disc protrusion at C4-5. Dr. Carey provided similar findings in an October 6, 2008
report. On January 29, 2009 he found that appellant could not work until an evaluation of his
cervical cord.1
In a March 24, 2009 progress report, Dr. Scott related that an electromyogram revealed
findings consistent with a mild brachial plexus injury. He diagnosed a cervical disc bulge at C45 and C5-6 spondylosis and mild left brachial plexitis following a probable stretch-type injury.
Dr. Scott recommended against surgery.
By letter dated March 25, 2009, Dr. Scott informed the Office that he had evaluated
appellant regarding treatment for a May 14, 2008 employment injury. He related that, while the
initial diagnosis due to the injury was a back contusion, diagnostic studies revealed cervical disc
protrusions and cervicobrachial pain. Dr. Scott related, “These are the conditions for which I
was evaluating and treating him. I request that you review and update the file to include these
diagnoses. This is directly related to the May 14, 2008 injury.”
On April 20, 2009 Dr. Carey diagnosed a displacement of lumbar and cervical
intervertebral discs without the need for surgery. He recommended lumbar epidural injections.
A telephone hearing was held on March 29, 2009.2 At the hearing, appellant explained
that his statements differed because a general purpose container was also called a postcon by
some employees.
By decision dated July 24, 2009, the Office hearing representative affirmed the
February 26, 2009 decision. He found that appellant had explained any factual discrepancies and
thus accepted that he was struck with a loaded mail container on May 14, 2008. The hearing
representative determined, however, that the medical evidence was insufficient to establish that
he was disabled beginning July 5, 2008 due to the work incident or establish that it caused or
contributed to cervical disc disease or a lumbar disc protrusion.
In a report dated July 29, 2009, Dr. Carey provided a detailed history of his treatment of
appellant for motor vehicle accidents in 1995, 1999 and August 2004 and for a work injury on
May 14, 2008. When he began treating appellant in 2005 diagnostic studies showed a C4-5 disc
extrusion and degenerative changes of the cervical spine and some annular bulging in his lumbar
discs. By 2006, following treatment, appellant had minimal symptoms and was managing well.

1

Dr. Carey continued to submit state workers’ compensation forms.

2

In a June 9, 2009 progress report, Dr. Carey noted that appellant experienced improvement following lumbar
epidurals.

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Dr. Carey related that he evaluated appellant on June 4, 2008 for radicular symptoms into the left
lower extremity and left upper extremity. He stated:
“[We] found him to have significant muscle spasms and limited range of motion
in the lumbar and cervical spine regions with a positive straight leg raise on the
left being his only neurologic abnormality. We gave him a diagnosis of
lumbosacral sprain/strain with left lower extremity L5 radiculitis and neck pain
with sprain/strain injury with left upper extremity radiculitis in the C6-7
distribution…. We took him off work until he was reevaluated again and the MRI
scans were reviewed.”
A repeat MRI scan study of the lumbar spine dated July 31, 2008 showed a new L4-5
“posterior central herniation causing effacement of the thecal sac which was a new injury finding
on the MRI scan which correlated with the left L5 radicular symptoms in the left lower
extremity.” A September 17, 2008 cervical MRI scan study showed a “acute progression of the
C4-5 central disc protrusion without any acute impingement….” Dr. Carey stated, “Overall,
[appellant] has sustained new injuries related to the accident which occurred on May 14, 2008.
He clearly has new MRI [scan] study findings in the lumbar area. At the L4-5 segment, there is
a new disc herniation that correlates with left lumbosacral radicular features which are partially
improved with epidural therapy.” Dr. Carey advised that appellant should minimize his time
operating machinery. He assigned an additional impairment rating for the neck and back due to
his May 14, 2008 work injury.
On September 2, 2009 appellant, through his attorney, requested reconsideration. By
decision dated October 19, 2009, the Office denied modification of the prior decision. It found
that there were inconsistencies in the factual evidence and that Dr. Carey did not explain how the
container bumping into appellant’s back caused a disc herniation.
LEGAL PRECEDENT
The term disability as used in the Federal Employees’ Compensation Act3 means the
incapacity because of an employment injury to earn the wages that the employee was receiving
at the time of injury.4 Whether a particular injury caused an employee disability for employment
is a medical issue which must be resolved by competent medical evidence.5 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 the employment held when injured, the
employee is entitled to compensation for any loss of wage-earning capacity resulting from such
incapacity.6 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

3

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

4

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

5

Id.

6

Id.

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compensation is claimed. To do so would essentially allow employee’s to self-certify their
disability and entitlement to compensation.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence, which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors.9 The opinion of the physician must be based on a complete
factual and medical background of the claimant,10 must be one of reasonable medical certainty11
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.12
Proceedings under the Act are not adversarial in nature and the Office is not a
disinterested arbiter. While the claimant has the burden to establish entitlement to compensation,
the Office shares responsibility in the development of the evidence to see that justice is done.13
ANALYSIS
The Office accepted that appellant sustained a low back contusion when he was struck
from behind on May 14, 2008 by a general purpose container. The Board notes that, while the
Office indicated that he had submitted conflicting statements regarding whether he was struck by
a general purpose container or a postcon, he explained at the hearing that both terms were used to
describe the same container. The Board found that appellant had explained any factual
inconsistencies. He received continuation of pay until July 4, 2008. On July 25, 2008 appellant
filed a claim for compensation beginning July 5, 2008.
On August 11, 2008 Dr. Carey discussed appellant’s complaints of low back pain
radiating into his left lower extremity and paresthesias of the upper extremity. He advised that
appellant should remain off work pending diagnostic testing. In an October 29, 2008 work
restriction evaluation, Dr. Carey found that he was disabled from employment due to an HNP of
the cervical spine and an HNP at L4-5.
On February 10, 2009 Dr. Scott discussed appellant’s history of a whiplash injury to his
lower back and neck after he was struck from behind by a heavy mail cart. He diagnosed a mild
7

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

8

John J. Montoya, 54 ECAB 306 (2003).

9

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

10

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

11

John W. Montoya, supra note 8.

12

Judy C. Rogers, 54 ECAB 693 (2003).

13

J.B., 60 ECAB ___ (Docket NO. 08-1735, issued January 27, 2009); Jimmy A. Hammons, 51 ECAB
219 (1999).

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aggravation of preexisting cervical spondylosis due to appellant’s employment injury, chronic
low back pain and left cervical brachial pain of unknown etiology. On March 25, 2009 Dr. Scott
requested that the Office update the claimed conditions to include cervical disc protrusions and
cervicobrachial pain.
In a report dated July 29, 2009, Dr. Carey discussed his treatment of appellant in 2005 for
the effects of motor vehicle accidents in 1995, 1999 and 2004 and noted that he also treated him
for a May 14, 2008 employment injury. He advised that at the end of treatment in 2006 appellant
had few symptoms. Dr. Carey examined him on June 4, 2008 and found muscle spasms, a
positive straight leg raise and limited cervical and lumbar range of motion. He obtained repeat
cervical and lumbar MRI scan studies which he advised showed a new central disc herniaton at
L4-5 effacing the thecal sac and corresponding to appellant’s complaints of left lower
radiculopathy. Dr. Carey also found an acute progression of a preexisting disc herniation at
C4-5 without acute impingement. He concluded that appellant had sustained new injuries due to
his May 14, 2008 employment injury based on the results of MRI scan studies and the physical
findings on examination.
Proceedings under the Act are not adversarial in nature, nor is the Office a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence to see that justice is done.14 The Board
has reviewed Dr. Carey’s reports and notes that he provided a clear opinion that appellant had a
new lumbar disc hernation and an aggravation of a preexisting cervical disc hernaiton due to his
May 14, 2008 work injury. He based his diagnosis on the objective findings on the new cervical
and lumbar MRI scan studies, obtained shortly after appellant’s work injury and the
corresponding findings on examination and subjective complaints. Dr. Carey had treated
appellant since 2005 and was aware of his history of prior nonemployment-related motor vehicle
accidents. His opinion is supportive, unequivocal, bolstered by objective findings and based on a
firm diagnosis and an accurate history.
Dr. Carey’s findings regarding appellant’s cervical condition is also supported by
Dr. Scott, who determined that the work injury mildly aggravated preexisting spondylosis.
Dr. Carey’s opinion lacks only an explanation of why appellant being struck on the back by a
general purpose container resulted in a herniated lumbar disc and an aggravation of a preexisting
cervical disc herniation. Consequently, while the medical evidence is insufficiently rationalized
to meet his burden of proof to establish that he sustained these conditions and resulting disability
due to his May 14, 2008 work injury, it raises an undisputed inference of causal relationship
sufficient to require further development by the Office.15 Accordingly, the Board will remand
the case to the Office. On remand, the Office should further develop the medical record to
determine whether appellant sustained a herniated lumbar disc and an aggravation of a
preexisting cervical disc herniation due to his May 14, 2008 employment injury and, if so, any
resulting periods of disability. Following this and such further development as the Office deems
necessary, it shall issue a de novo decision.

14

A.A., 59 ECAB 726 (2008); Phillip L. Barnes, 55 ECAB 426 (2004).

15

Id.

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CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 19 and July 24, 2009 are set aside and the case is
remanded for further proceedings consistent with this decision of the Board.
Issued: October 18, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
U.S. POSTAL SERVICE, NORTHWESTERN
STATION, Detroit, MI, Employer
__________________________________________

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

Docket No. 13-676
Issued: June 11, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 30, 2013 appellant, through her representative, filed a timely appeal from the
December 28, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied her claim for disability compensation. 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’s occupational left hip injury caused disability for work
beginning October 2, 2010.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
In a prior appeal,2 the Board noted that on August 7, 1996 appellant, a 35-year-old letter
carrier, sustained a traumatic injury in the performance of duty when she stepped down onto a
loose step and felt sharp pain in her left leg. OWCP accepted her claim for left ankle tendinitis.
In 2010 it terminated appellant’s compensation benefits. The Board affirmed, finding that the
weight of the medical evidence was represented by the opinion of Dr. Emmanuel N. Obianwu, a
Board-certified orthopedic surgeon and impartial medical specialist. His opinion established that
appellant’s 1996 left ankle tendinitis had resolved on a clinical basis. The Board also found that
the weight of the medical evidence, again represented by the opinion of Dr. Obianwu,
established that appellant’s low back and left hip pathology were unrelated to the August 7, 1996
work injury. The facts of this case as set forth in the Board’s prior opinion are hereby
incorporated by reference.
On May 12, 2011 appellant filed an occupational disease claim alleging that the severe
arthritic changes in her left hip were a result of her federal employment. She noted that walking
at work aggravated her left hip. “Trying to work at all with an altered gait [from the left ankle
injury] is the primary problem.”
On February 1, 2012 shortly before the Board issued its decision on the 1996 traumatic
injury claim, OWCP accepted appellant’s occupational disease claim for aggravation of
unspecified osteoarthritis of the left pelvis/thigh. It noted that the medical evidence supported
that work factors of walking, standing and climbing stairs had aggravated appellant’s preexisting
degenerative left hip condition.
Appellant then filed a claim for wage-loss compensation beginning October 2, 2010.
OWCP referred her, together with the medical record and a statement of accepted facts, to
Dr. Michael E. Holda, a Board-certified orthopedic surgeon, for a second opinion.3
Dr. Holda examined appellant on May 9, 2012. He related her complaints of daily,
continuous left hip pain aggravated by repetitive movement, sitting and walking too long, and
going up and down the stairs. Dr. Holda related her history and described his findings on
physical examination. He also reviewed appellant’s medical record. Dr. Holda diagnosed
bilateral moderate degenerative hip arthritis. He explained that this bilateral arthritis was due to
the aging process and was consistent with appellant’s age. It was Dr. Holda’s opinion that work
factors, such as walking and delivering mail, symptomatically would exacerbate her degenerative
disease, but it was difficult to say whether these factors would have aggravated the pathology,
that is, would have increased the arthritis. He noted that people have similar arthritic hip
conditions without a history of constant walking or constant activity, such as appellant performed
delivering mail. Dr. Holda concluded that appellant’s bilateral degenerative hip disease was
2

Docket No. 11-1439 (issued February 15, 2012).

3

As the Board noted in the prior appeal, Dr. Holda provided a second opinion in April 2010 finding no evidence
of ongoing tendinitis in the left ankle. Appellant’s examination was normal. Dr. Holda also found that the
degenerative condition of her left hip was unrelated to the 1996 work injury. The statement of accepted facts
advised that appellant’s occupational disease claim relating to the severe arthritic changes in her left hip “has been
denied at this time.”

2

preexisting due to the aging process and was symptomatically exacerbated only by her work
condition. He found no objective evidence of ongoing injury or disability to her hip as a result of
her hip injury in 1992.4 Based on the work injury only, appellant required no restrictions as a
result of her hip condition.
On June 14, 2012 OWCP denied appellant’s claim for wage-loss compensation beginning
October 2, 2010. On December 28, 2012 its hearing representative affirmed, finding that
Dr. Holda’s opinion established that the claimed disability for work was due to the aging process
and not to the resolved ankle injury or to employment factors. Further, appellant had submitted
no reasoned medical evidence to support that her disability for work was due to a condition
caused or aggravated by factors of employment.
Appellant’s representative argues that Dr. Holda could not produce an independent
finding because he had previously examined appellant and already offered an opinion that her
left hip arthritis was unrelated to her 1996 left ankle injury. The representative notes that the
statement of accepted facts included the following statement in bold print: “The claimant has a
preexisting degenerative condition to her left hip which is not work related.” He argues that this
is a highly leading statement. Finally, the representative argues that Dr. Holda reached two
unfair conclusions. Just because other people of appellant’s age who do not deliver mail can
develop hip arthritis in no way addresses whether appellant’s arthritis was not at least somewhat
worse because she delivered mail. Also, Dr. Holda engaged in speculation when he stated that it
was difficult to say whether the employment factors would have aggravated appellant’s hip
pathology. Finally, appellant’s representative argues that Dr. Holda did not clearly resolve the
issue of contribution.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.5 A claimant seeking benefits under FECA has
the burden of proof to establish the essential elements of his or her claim by the weight of the
evidence,6 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.7
It is not sufficient for the claimant to establish merely that he or she has disability for
work. He or she must establish that his or her disability is causally related to the accepted
employment injury. The claimant must submit a rationalized medical opinion that supports a
causal connection between his or her current disabling condition and the employment injury.
The medical opinion must be based on a complete factual and medical background with an
4

OWCP accepted that appellant sustained a left hip and left shoulder strain in 1992. She returned to regular duty
within a week of filing her claim. OWCP File No. xxxxxx859.
5

5 U.S.C. § 8102(a).

6

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

7

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

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accurate history of the employment injury, and must explain from a medical perspective how the
current disabling condition is related to the injury.8
OWCP is not a disinterested arbiter but rather performs the role of adjudicator on the one
hand and gatherer of the relevant facts and protector of the compensation fund on the other, a
role that imposes an obligation on it to see that its administrative processes are impartially and
fairly conducted.9 Although the claimant has the burden of establishing entitlement to
compensation, it shares responsibility in the development of the evidence.10 Once OWCP starts to
procure medical opinion, it must do a complete job.11 It has the responsibility to obtain from its
referral physician an evaluation that will resolve the issue involved in the case.12
ANALYSIS
Appellant filed a claim for wage-loss compensation beginning October 2, 2010. She
therefore has the burden to establish that the disability for which she claims compensation was
causally related to the accepted aggravation of her left hip osteoarthritis.
Appellant submitted no medical opinion directly addressing her disability being
October 2, 2010. OWCP referred her to Dr. Holda for a second opinion. It was Dr. Holda’s
opinion that occupational factors such as walking and delivering mail exacerbated appellant’s
left hip symptoms but did not actually increase or worsen the underlying pathology.
Dr. Holda did not directly address the issue of disability for work beginning
October 2, 2010. He did not explain whether the exacerbation of appellant’s left hip symptoms
disabled her at any time, or whether the exacerbation ceased before the period of disability for
which she claims compensation.
Further, the statement of accepted facts, upon which Dr. Holda was to base his opinion,
incorrectly noted that appellant’s occupational disease claim involving severe arthritic changes to
her left hip “has been denied at this time.” In fact, OWCP accepted this claim several months
earlier for aggravation of unspecified osteoarthritis of the left pelvis/thigh.
The Board finds that further development of the medical evidence is warranted. Having
undertaken development of the medical opinion evidence by referring appellant to a secondopinion physician, OWCP had an obligation to do a complete job and obtain an evaluation that
would resolve the issue involved in this case. The Board will set aside OWCP’s December 28,
2012 decision and remand the case for a proper statement of accepted facts and a second opinion
8

John A. Ceresoli, Sr., 40 ECAB 305 (1988).

9

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

10

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

11

William N. Saathoff, 8 ECAB 769 (1956).

12

Mae Z. Hackett, 34 ECAB 1421, 1426 (1983); Richard W. Kinder, 32 ECAB 863, 866 (1981) (noting that the
report of OWCP referral physician did not resolve the issue in the case).

4

that will resolve whether appellant’s occupational left hip injury caused disability for work
beginning October 2, 2010. After such further development as may become necessary, OWCP
shall issue a de novo decision on appellant’s claim for wage-loss compensation.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of the
medical opinion evidence is warranted.
ORDER
IT IS HEREBY ORDERED THAT the December 28, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: June 11, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 17-0482
Issued: June 7, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 3, 2017 appellant, through counsel, filed a timely appeal from a
November 14, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of this case.
ISSUE
The issue is whether OWCP properly exercised its discretion in denying appellant’s
requests for travel reimbursement for a hotel stay and meals on October 26, 2015.
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.

On appeal counsel argues that the hearing representative ignored appellant’s testimony
when affirming the denial of his request for reimbursement.
FACTUAL HISTORY
On April 6, 1986 appellant, then a 37-year-old postal clerk, filed an occupational disease
claim (Form CA-2) alleging that on March 10, 1986 he first realized that his respiratory
condition was due to exposure to toxic paint fumes at work. OWCP accepted the claim for
respiratory distress and allergic pneumonitis due to paint fume exposure, which was
subsequently expanded to include right leg deep venous thrombosis, low back pain, and rectal
bleeding due to treatment for his respiratory distress. It paid compensation for accepted periods
of disability. Appellant accepted the employing establishment’s January 25, 2011 limited-duty
offer on February 3, 2011.
Appellant filed a schedule award claim (Form CA-7) on October 24, 2014.
On December 15, 2014 OWCP informed appellant that a second opinion examination
was necessary to address the issue of permanent impairment. It advised that it would pay for the
examination and would reimburse appellant “for any reasonable and necessary expense incurred
in obtaining this examination.”
On October 15, 2015 OWCP referred appellant for a second opinion evaluation with
Dr. Richard B. Fries, a Board-certified vascular and general surgeon. The appointment was
scheduled for 9:30 a.m. on October 26, 2015 in Cincinnati, Ohio.
In a letter dated December 10, 2015, OWCP advised counsel that it had not received
Dr. Fries’ report from the October 26, 2015 examination as the report was found to be
incomplete and an addendum report had been requested from the physician.
On December 29, 2015 appellant’s spouse contacted OWCP via telephone inquiring
about reimbursement for travel-related expenses to the second opinion examination.
Appellant stated that the appointment with Dr. Fries was scheduled for 9:30 a.m. He
noted that he had been informed that the appointment was at no cost to him and that reasonable
and necessary costs incurred from the examination would be reimbursed. Due to the early
appointment time, traffic congestion, and unfamiliarity with the area, appellant made a
reservation to stay overnight at a hotel close to Dr. Fries’ office. In a letter dated December 30,
2015, he provided an explanation for the reimbursement request for lodging and meals and
requested that they be approved.
By decision dated January 11, 2016, OWCP denied appellant’s request for
reimbursement for an overnight hotel stay and meals resulting from the overnight stay. It found
that its procedures did not provide for reimbursement for lodging and meals when travel time
required was under 12 hours total, less than 500 miles round trip. Also reimbursement for
lodging required prior authorization.
In a letter dated January 19, 2016, counsel requested a telephonic hearing before an
OWCP hearing representative, which was held on September 13, 2016. During the hearing
2

appellant testified that Dr. Fries’ office was approximately 130 miles from his home or 260 miles
round trip. He testified that by traveling the day before, he was able to avoid rush hour traffic
and could be near the doctor’s office, so that he could arrive on time for the appointment.
By decision dated November 14, 2016, OWCP’s hearing representative affirmed the
January 11, 2016 decision denying reimbursement for appellant’s lodging and meal expenses.
She noted appellant’s hearing testimony as to why he believed he was entitled to reimbursement
for lodging and meals and that he had been reimbursed for mileage for travel from his home and
back from the examination. However, the hearing representative found OWCP’s procedures did
not provide for reimbursement for lodging and meal expenses when travel time required was
under 12 hours total, less than 500 miles round trip, and without prior authorization.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree of the period of disability, or aid in lessening the amount of monthly compensation.3
Section 10.322 of title 20 of the Code of Federal Regulations provide in pertinent part:
“OWCP will pay second opinion and referee medical specialist directly. OWCP will reimburse
the employee all necessary and reasonable expenses incident to such an examination, including
transportation, costs….”4
OWCP’s FECA Procedure Manual states that “[t]here will be no reimbursement for
meals or lodging when travel is for less than 12 hours in total or fewer than 500 miles round
trip.” It also requires appellant to seek prior authorization for lodging.5
ANALYSIS
OWCP accepted appellant’s claim for respiratory distress and allergic pneumonitis due to
paint fume exposure and right leg deep venous thrombosis, low back pain, and rectal bleeding
due to treatment for his respiratory condition. On October 15, 2015 it referred appellant for a
second opinion evaluation with Dr. Fries scheduled for October 26, 2015 at 9:30 a.m. Appellant
was examined by Dr. Fries on October 26, 2015 at the scheduled time. OWCP denied
appellant’s request for reimbursement for lodging and meals by decision dated January 11, 2016.
That decision was affirmed by an OWCP hearing representative in a November 14, 2016
decision. The issue on appeal is whether OWCP properly exercised its discretion in denying
appellant’s claim for reimbursement.

3

Id. at § 8103.

4

20 C.F.R. § 10.322

5

Federal (FECA) Procedure Manual, Part 5 -- Overview of the BPS, Unique Bills, Chapter 5.200.9(i)
(April 2005).

3

The Board finds that OWCP acted within its discretion in denying appellant’s claim for
reimbursement for lodging and meals to attend an OWCP-directed medical examination.
Appellant argued that he was entitled to reimbursement for his lodging and meals
because of his concern about traffic as the appointment was early in the morning. He also noted
that he was unfamiliar with the area where the doctor’s office was located.
The Board finds that OWCP’s procedures provide that reimbursement will not be made
for lodging when travel was less than 12 hours total or less than 500 miles round trip.6 Further,
such requests must be made in advance.7 Appellant testified at the hearing that the distance from
his home to the appointment was 260 miles round trip and less than 12 hours in total.8 The
hearing representative further noted that appellant had not requested authorization for lodging in
advance. Consequently, OWCP properly denied appellant’s request for reimbursement for
lodging and meal expenses.9
On appeal counsel argues that the hearing representative ignored appellant’s testimony in
affirming the denial of his claim for reimbursement. To the contrary, the hearing representative
did consider appellant’s testimony, but found the requirements of the FECA Procedure Manual
determinative with respect to determining whether appellant was entitled to reimbursement for
the cost of a hotel stay and meals.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reimbursement of an
overnight hotel stay and meals incurred on October 26, 2015.

6

Id.

7

Supra note 5.

8

Id.

9

T.M., Docket No. 11-449 (issued September 20, 2011).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 14, 2016 is affirmed.
Issued: June 7, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Grand Island, NE, Employer
__________________________________________

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

Docket No. 16-1299
Issued: May 5, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 30, 2016 appellant filed a timely appeal from the December 3, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. § 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of OWCP’s
decision. An appeal is considered filed upon receipt by the Clerk of the Appellant Boards. See 20 C.F.R.
§ 501.3(e)-(f). The 180th day from OWCP’s December 3, 2015 decision was May 31, 2016. Because using June 6,
2016, the date the appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date
of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark is May 30, 2016,
which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met her burden of proof to establish more than 11 percent
permanent impairment of her left lower extremity, for which she previously received a schedule
award.
FACTUAL HISTORY
This case has previously been on appeal before the Board.3 On February 9, 2011
appellant, then a 49-year-old registered nurse, filed a traumatic injury claim (Form CA-1)
alleging an injury in the lower back in the performance of duty. OWCP accepted L3-4 disc
herniation and lumbar radiculopathy. On June 9, 2011 appellant underwent OWCP-approved
lumbar surgery for a left leg hemilaminectomy. She received wage-loss compensation and was
released to resume regular duty effective July 5, 2011.
By decision dated October 19, 2012, OWCP granted appellant a schedule award for 15
percent permanent impairment for her left leg. The period of the award was from September 22
to October 20, 2012, a period of 43.2 weeks. OWCP explained that the schedule award began to
run on September 22, 2012 because she was in receipt of wage-loss compensation through
September 21, 2012 because a schedule award is not paid concurrently with wage-loss
compensation for the same injury.
In an August 15, 2013 decision, the Board set aside the October 19, 2012 schedule award,
finding that the case was not in posture for decision. The Board determined that none of the
physicians had properly explained how they arrived at their respective impairment ratings. The
Board noted that FECA precluded impairment ratings for the spine, but referred to The Guides
Newsletter, which offered an approach to rating spinal nerve extremity impairment consistent
with sixth edition methodology. The Board further explained that OWCP has adopted this
approach for rating impairment to the upper or lower extremities caused by a spinal injury. The
Board remanded the case for a proper application of the American Medical Association, Guides
to the Evaluation of Permanent Impairment, (A.M.A., Guides) (6th ed. 2009) regarding the extent
of impairment of the left lower extremity. The facts contained in the Board’s August 15, 2013
decision are incorporated herein by reference.
On remand, OWCP referred appellant for a second opinion evaluation, to Dr. Morgan
LaHolt, a Board-certified orthopedic surgeon, along with a statement of accepted facts, a set of
questions, and the medical record.
In a report dated November 6, 2013, Dr. LaHolt, described appellant’s history of injury
and provided results on examination. He referenced the A.M.A., Guides and The Guides
Newsletter, and explained that, pursuant to Table 16-11,4 he rated the residual sensory deficits
due to L4 radiculopathy as grade 3 or six percent permanent impairment, given her
impaired/sharp/dull recognition with retrained protective sensibility. Dr. LaHolt rated the motor
3

Docket No. 13-0928 (issued August 15, 2013).

4

A.M.A., Guides 533.

2

deficits as grade 1, or five percent permanent impairment given appellant’s weakness with
dorsiflexion. He referred to Table 16-65 for functional history adjustment of the lower
extremities and found a grade modifier of 1, as she had some difficulties with ambulating longer
distances, but she was able to perform activities of daily living without difficulty. Dr. LaHolt
explained that, although appellant did not complete the American Academy of Orthopedic
Surgeons lower limb instrument, her social history was consistent with the medical records and
he recommended a grade modifier of 1. He referred to Table 16-76 and found no adjustment due
to physical examination. Dr. LaHolt also referred to Table 16-87 and found a grade modifier of 1
for clinical studies. He explained the net adjustment formula (GMFH - CDX) + (GMPE - CDX)
+ (GMCS - CDX) warranted no adjustments due to grade modifiers.8
Dr. LaHolt concluded that appellant had reached maximum medical improvement (MMI)
on December 6, 2011 and had 11 percent permanent impairment of the left lower extremity.
In a November 29, 2013 report, OWCP’s medical adviser reviewed the findings of
Dr. LaHolt and concurred that the 11 percent permanent impairment finding was correct.
Accordingly, on December 4, 2013, OWCP determined that there was no increase in
permanent impairment as appellant had previously been awarded 15 percent permanent
impairment to the right leg and the medical evidence of record reflects only 11 percent
impairment.
On January 2, 2014 appellant requested a hearing before an OWCP hearing
representative, which was held on July 15, 2014. In a separate letter of the same date, she also
disputed the amount of compensation she received and argued that she had been incorrectly paid.
On January 29, 2014 OWCP found preliminary overpayment of schedule award
compensation in the amount of $7,721.28 due to the reduction in the schedule award.
On March 5, 2014 OWCP finalized an overpayment of compensation in the amount of
$7,721.28, which represented the difference between the previously paid 15 percent left lower
extremity schedule award and the latest award for 11 percent.
In a June 4, 2014 report, Dr. Frederick Catlett, a Board-certified family practitioner,
indicated that appellant’s rating had been reduced from 15 percent to 11 percent. He explained
in his examination that there was obvious flattening of the shin muscles on the left leg compared
to the right, as well as decreased sharp and dull differentiation and reduced dorsiflexion of the
foot. Dr. Catlett explained that appellant had a noticeable slap sound from the left foot when she
walked and it was unlikely that a determination of disability could be reduced from 15 percent to
11 percent, due to the way she walks.
5

Id. at 516.

6

Id. at 517.

7

Id. at 519. (1-1) + (NA) + (1-1) = 0.

8

Id. at 521.

3

By decision dated September 24, 2014, OWCP’s hearing representative remanded the
case to Dr. LaHolt to clarify the rating regarding new evidence of either a foot slap or foot drop.
Furthermore, the hearing representative requested clarification from the employing establishment
of whether appellant’s pay rate was fixed or fluctuated.
In a report dated November 12, 2014, Dr. LaHolt explained that he was providing
clarification with regard to his impairment rating, in which he determined that appellant had an
11 percent permanent impairment of the left lower extremity. He explained that the presence of
foot drop or foot slap would not alter his opinion. Dr. LaHolt explained that he rated appellant as
if the symptom was present. He referenced the A.M.A., Guides and The Guides Newsletter, and
explained that, pursuant to Table 16-11,9 motor deficit severity was determined based upon
strength against gravity. Dr. LaHolt explained that, in appellant’s case, she was given a motor
deficit rating of 1 given her 4/5 strength on examination. He confirmed that he did not notice a
foot slap or foot drop on examination. However, Dr. LaHolt explained that the impairment
rating would not change as appellant had not exhibited 3/5 strength. He explained that even if
she experienced a decline in motor strength, this would not be expected after an appropriately
treated lumbar radiculopathy, which was not a progressive condition. Dr. LaHolt indicated that
4/5 strength in dorsiflexion could lead to intermittent foot slap as the leg fatigued. He referred to
Table 16-1110 and explained that appellant had been rated a severe, class 3, for sensory deficit
due to the examination findings of impaired sharp/dull recognition. Dr. LaHolt explained that,
due to the lack of the cutaneous findings, it was his opinion that she was most appropriately rated
at a severity level of 3. He further indicated that a severe sensory deficit was equivalent to a six
percent lower extremity impairment rating maximum. Dr. LaHolt explained that, as no
adjustments were made for the grade modifiers, the deficits of sensory and motor were combined
to yield a total lower extremity impairment rating of 11 percent.
In a January 6, 2015 report, OWCP’s medical adviser, verified the findings and
calculations provided by Dr. LaHolt. He explained that he agreed with the 11 percent
impairment of the left lower extremity of Dr. LaHolt. The medical adviser reiterated that the
foot slap was “subsumed” in the weakness rating process, i.e., the 4/5 strength on the left leg.
By decision dated January 21, 2015, OWCP determined that appellant had no more than
an 11 percent permanent impairment of the left leg.
On February 16, 2015 appellant requested a telephonic hearing, which was held on
September 10, 2015. She confirmed that she was not appealing the pay rate, but rather she was
appealing the reduction of her schedule award. Appellant argued that she was not properly
examined by Dr. LaHolt. She indicated that it was obvious that she had a foot drop and he did
not see her walk and the examination was “so brief it was ridiculous.” Appellant argued that the
other physicians noticed her foot drop.
By decision dated December 3, 2015, OWCP’s hearing representative affirmed the
January 21, 2015 decision.
9

Id. at 533.

10

Id.

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LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions, and organs of the body.11 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.12 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).13
Neither FECA nor the regulations provide for the payment of a schedule award for the
permanent loss of use of the back/spine or the body as a whole.14 However, a schedule award is
permissible where the employment-related spinal condition affects the upper and/or lower
extremities.15 The sixth edition of the A.M.A., Guides (2009) provides a specific methodology
for rating spinal nerve extremity impairment.16 It was designed for situations where a particular
jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the spine.
FECA-approved methodology is premised on evidence of radiculopathy affecting the upper
and/or lower extremities. The appropriate tables for rating spinal nerve extremity impairment are
incorporated in the procedure manual.17
ANALYSIS
In this case, OWCP accepted appellant’s traumatic injury claim for L3-4 disc herniation
and lumbar radiculopathy. It also authorized a June 9, 2011 left L3-4 hemilaminectomy on
June 9, 2011. Appellant filed a claim for a schedule award on April 16, 2012. On October 19,
2012 OWCP granted a schedule award for 15 percent permanent impairment to the left leg. The
Board remanded the claim for a proper application of the A.M.A., Guides.
In a November 6, 2013 report, Dr. LaHolt provided results on examination. He utilized
the A.M.A., Guides and The Guides Newsletter. Dr. LaHolt referred to Table 16-11,18 regarding
11

5 U.S.C. § 8107(c). For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks’
compensation. 5 U.S.C. § 8107(c)(2).
12

20 C.F.R. § 10.404.

13

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
14

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

15

Supra note 13 at Chapter 2.808.5c(3).

16

The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009). Id.
17

See supra note 13 at Chapter 3.700, Exhibit 4.

18

A.M.A., Guides 533.

5

sensory deficits and placed appellant in grade 3 due to her impaired/sharp/dull recognition with
retrained protective sensibility. As to motor deficits, he placed her in grade 1 given her
weakness with dorsiflexion which was not consistent during his examination. Dr. LaHolt found
a grade modifier of 1 for functional history, no adjustment due to the physical examination grade
modifier, and a grade modifier of 1 for clinical studies. He explained that the net adjustment
formula (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) rendered no adjustment.19
Dr. LaHolt found six percent lower extremity rating for sensory deficits and five percent for
appellant’s motor deficits. He concluded that she reached MMI on December 6, 2011 and that
she had an 11 percent permanent impairment of the left lower extremity.
On November 12, 2014 Dr. LaHolt clarified that the presence of foot drop would not alter
his opinion. He indicated that he rated appellant as if the symptom was present and explained his
opinion utilizing the A.M.A., Guides and The Guides Newsletter. Dr. LaHolt explained that,
once adjustments were made using the modifiers, the deficits of sensory and motor were
combined to yield a total lower extremity impairment rating of 11 percent. He advised that there
was no mathematical way to combine the numbers from a mild motor deficit with a severe
sensory deficit to obtain a 15 percent rating.
In a January 6, 2015 report, OWCP’s medical adviser, he concurred with the report of the
second opinion physician, Dr. LaHolt, regarding the 11 percent impairment to the left leg. He
explained that the foot slap was “subsumed” in the weakness rating process, i.e., the 4/5 strength
on the left leg. The Board finds that Dr. LaHolt properly explained his findings as noted above,
under the A.M.A., Guides and The Guides Newsletter. OWCP’s medical adviser concurred that
the rating was proper pursuant to The Guides Newsletter.
On appeal, appellant argued that she never appealed the amount of her award, but rather
the date of September 21, 2012. She also argued that Dr. LaHolt was “incompetent” as he did
not see her foot slap or atrophy in her left leg and no one could explain why she was sent to him.
Furthermore, Dr. LaHolt did not make appellant walk, which was necessary to evaluate her. The
Board notes that OWCP’s medical adviser and Dr. LaHolt properly explained how they arrived
at an 11 percent left leg permanent impairment utilizing The Guides Newsletter. The date of
MMI was December 6, 2011.20 Furthermore, appellant also argued that she was not fully
compensated from her initial claim for compensation dated June 19, 2012 according to the ¾
rate. However, the only issue before the Board is whether she met her burden of proof to
establish more than an 11 percent permanent impairment of her left leg, for which she already
received a schedule award.
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 employmentrelated condition resulting in permanent impairment or increased impairment.
19

Id. at 521.

20

As noted above, the schedule award began to run on September 22, 2012 because appellant was in receipt of
wage-loss compensation through September 21, 2012 and a schedule award is not paid concurrently with wage-loss
compensation for the same injury. See S.W., Docket No. 10-2071 (issued July 11, 2011); J.B., Docket No. 08-1178
(issued December 22, 2008). See also supra note 13 at Part 2 -- Claims, Entitlement to Schedule Awards, Chapter
2.808.4a(3) (issued February 2013).

6

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she has
more than 11 percent permanent impairment of her left lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the December 3, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 5, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate 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
__________________________________________
E.Q., Appellant
and
DEPARTMENT OF THE AIR FORCE,
TYNDALL AIR FORCE BASE, FL, Employer
__________________________________________

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

Docket No. 09-2155
Issued: May 12, 2010

Case Submitted on the Record

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

JURISDICTION
On August 26, 2009 appellant timely appealed the October 23, 2008 merit decision of the
Office of Workers’ Compensation Programs, which denied an additional schedule award and its
July 23, 2009 nonmerit decision denying her request for a review of the written record.1
Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of the
schedule award claim.
ISSUES
The issues are: (1) whether appellant has greater than 25 percent impairment of the right
upper extremity; and (2) whether the Branch of Hearings & Review properly denied his
March 16, 2009 request for a review of the written record.

1

The record on appeal contains evidence received after the Office issued its October 23, 2008 merit decision.
The Board may not consider evidence that was not in the case record when the Office rendered its merit review. 20
C.F.R. § 501.2(c) (2008).

FACTUAL HISTORY
Appellant, an 80-year-old retired aircraft environmental systems mechanic, has an
accepted traumatic injury claim for right shoulder strain and disc herniations at C4-5 and C5-6,
which arose on October 9, 1992. He underwent an April 9, 1993 anterior cervical discectomy at
C4-5 and C5-6 with interbody fusion. On October 4, 1995 the Office granted appellant a
schedule award for 25 percent impairment of the right upper extremity. The impairment was
based on motor and sensory deficits involving the C5-6 nerves.
Appellant underwent a second surgical procedure on March 14, 2003 for an anterior
cervical discectomy and interbody fusion at the C6-7 level. The procedure also involved the
removal of instrumentation from the previous surgery at C5-6 with exploration and fusion.
On May 3, 2006 appellant filed a claim (Form CA-7) for an additional schedule award.
Dr. Maria Parris, a family practitioner, provided a September 8, 2006 impairment rating.
Her diagnoses included bilateral carpal tunnel syndrome, right greater than left, and right rotator
cuff tendinitis. Dr. Parris also noted radicular symptoms related to appellant’s cervical spine
injury. She advised that appellant’s right rotator cuff tendinitis was unrelated to his employment
injury.2 Dr. Parris found 14 percent impairment of the right upper extremity due to motor (7.5
percent) and sensory (8.75 percent) deficits involving the C5-6 nerves. As to the left upper
extremity, she found no motor deficit, but she did identify a sensory deficit involving the C5-6
nerves, which corresponded to 6.5 percent impairment of the left upper extremity.
In a report dated November 2, 2006, Dr. James W. Dyer, a Board-certified orthopedic
surgeon and district medical adviser, found a combined 18 percent right upper extremity
impairment. The overall rating included impairment for motor (seven percent) and sensory
(three percent) deficits involving the C5-6 nerves. Dr. Dyer also provided an impairment rating
for right shoulder loss of motion (nine percent). Based on Dr. Parris’ examination findings, the
medical adviser concluded that appellant reached maximum medical improvement on
September 8, 2006. The Office subsequently asked Dr. Dyer to address whether the left upper
extremity impairment (6.5 percent) noted by Dr. Parris was causally related to the October 9,
1992 employment injury. In a January 19, 2007 report, Dr. Dyer found that there was no
impairment to the left upper extremity causally related to the accepted employment injury. He
reviewed medical records dating back to 1993 and cited several references to right-side cervical
involvement but no prior evidence of left-side involvement. Dr. Dyer reiterated that appellant
had 18 percent impairment of the right upper extremity.
In a decision dated October 23, 2008, the Office denied an additional schedule award for
the right upper extremity.
Appellant subsequently requested a review of the written record. He utilized the appeal
request form that accompanied the October 23, 2008 decision. Appellant signed, dated and
mailed the form on March 16, 2009.
2

Although she provided range of motion measurements (ROM) for the shoulders, Dr. Parris did not rate
appellant’s right shoulder.

2

By decision dated July 23, 2009, the Branch of Hearings & Review denied appellant’s
request for a review of the written record. Appellant’s March 16, 2009 request was untimely,
and therefore, he was not entitled to a hearing as a matter of right. Furthermore, in denying a
discretionary hearing, the Branch of Hearings & Review advised appellant that he could pursue
the issue by requesting reconsideration before the district Office.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.3 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.4 Effective February 1, 2001, schedule awards are
determined in accordance with the A.M.A., Guides (5th ed. 2001).5
The Act and implementing regulations provide for the reduction of compensation for
subsequent injury to the same scheduled member.6 Benefits payable under 5 U.S.C. § 8107(c)
shall be reduced by the period of compensation paid under the schedule for an earlier injury if:
(1) compensation in both cases is for impairment of the same member or function or different
parts of the same member or function; and (2) the latter impairment in whole or in part would
duplicate the compensation payable for the preexisting impairment.7
ANALYSIS -- ISSUE 1
Appellant previously received a schedule award for 25 percent impairment of the right
upper extremity. This award was based on medical evidence from 1995 that demonstrated a
combination of motor and sensory deficit involving the C5-6 nerves. More than a decade later,
appellant filed a claim for an additional schedule award. In the interim period, he had a second
anterior cervical discectomy and interbody fusion. The medical evidence submitted in support of

3

For a total loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1) (2006).
4

5 U.S.C.

20 C.F.R. § 10.404.

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003). While
the fifth edition of the A.M.A., Guides was in effect when the Office issued the October 23, 2008 decision, the
Office has since adopted the sixth edition of the A.M.A., Guides (6th ed. 2008) for all schedule award determinations
issued on or after May 1, 2009. Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700, Example 1 (January 2010).
6

5 U.S.C. § 8108; 20 C.F.R. § 10.404(c).

7

20 C.F.R. § 10.404(c)(1), (c)(2).

3

his recent claim for a schedule award does not establish any greater permanent impairment.8
Dr. Parris’ September 8, 2006 impairment rating of the right upper extremity was less than the 25
percent rating appellant previously received. Both the 1995 rating and Dr. Parris’ right upper
extremity rating were based on motor and sensory deficit involving the C5-6 nerves. Dr. Parris
did not rate loss of right shoulder motion, presumably because she did not find that this
impairment was employment related. Even after Dr. Dyer took the right shoulder loss of motion
measurements into account (9 percent), the right upper extremity rating still did not exceed the
25 percent rating previously awarded on October 4, 1995.9 Consequently, appellant has not
established that he has greater than 25 percent impairment of the right upper extremity.10
LEGAL PRECEDENT -- ISSUE 2
Any claimant dissatisfied with a decision of the Office shall be afforded an opportunity
for an oral hearing or, in lieu thereof, a review of the written record.11 A request for either an
oral hearing or a review of the written record must be submitted in writing within 30 days of the
date of the decision for which a hearing is sought.12 If the request is not made within 30 days, a
claimant is not entitled to a hearing or a review of the written record as a matter of right. Office
regulations further provide that the “claimant must not have previously submitted a
reconsideration request (whether or not it was granted) on the same decision.”13 Although a
claimant may not be entitled to a hearing as a matter of right, the Office has discretionary
authority with respect to granting a hearing, and the Office must exercise such discretion.14
ANALYSIS -- ISSUE 2
Appellant’s request for a review of the written record was dated and postmarked
March 16, 2009, which is more than 30 days after the Office issued its October 23, 2008
decision. The Office’s implementing regulations clearly specify that “[t]he hearing request must
be sent within 30 days (as determined by postmark or other carrier’s date marking) of the date of
the decision for which a hearing is sought.”15 Appellant’s request was untimely by more than
8

An employee seeking benefits under the Act has the burden of proof to establish the essential elements of his
claim. Amelia S. Jefferson, 57 ECAB 183, 187 (2005).
9

Dr. Parris calculated appellant’s C5-6 sensory (8.75 percent) and motor (7.5 percent) deficits. These figures are
rounded-up to 9 percent and 8 percent, respectively, and then combined with Dr. Dyer’s 9 percent right shoulder
ROM deficit. The overall rating is 24 percent of the right upper extremity. See Combined Values Chart, A.M.A.,
Guides 604-05.
10

Because the October 23, 2008 decision did not make specific findings with respect to appellant’s left upper
extremity, the issue of whether he has an employment-related impairment of the left upper extremity is not before
the Board.
11

20 C.F.R. § 10.615.

12

Id. at § 10.616(a).

13

Id.

14

See Herbert C. Holley, 33 ECAB 140 (1981).

15

20 C.F.R. § 10.616(a).

4

three months. Therefore, he was not entitled to a review of the written record as a matter of
right. The Branch of Hearings & Review also denied appellant’s request on the basis that his
claim for an increased schedule award could be addressed by requesting reconsideration before
the district Office. The Board finds that the hearing representative properly exercised his
discretionary authority in denying appellant’s request for a review of the written record.16
CONCLUSION
The Office properly denied appellant’s claim for an additional schedule award for the
right upper extremity. The Board further finds that the Branch of Hearings & Review properly
denied appellant’s March 16, 2009 request for a review of the written record.
ORDER
IT IS HEREBY ORDERED THAT the July 23, 2009 and October 23, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 12, 2010
Washington, DC

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

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

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

16

Mary B. Moss, 40 ECAB 640, 647 (1989).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, CENTERS FOR MEDICARE &
MEDICAID SERVICES, Rockville, MD,
Employer
__________________________________________

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

Docket No. 15-255
Issued: April 1, 2015

Case Submitted on the Record

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

JURISDICTION
On November 13, 2014 appellant, through her attorney, filed a timely appeal from a
May 29, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty on June 25, 2013.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the May 29, 2014 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal counsel contends that there is clearly no idiopathic cause for appellant’s fall as
she was not aware of any personal, nonoccupational pathology which caused her to collapse. He
further contends that appellant’s doctors diagnosed syncope of unknown cause and, as such, her
fall must be considered as merely an unexplained fall while she was engaged in activities related
to her employment duties.
FACTUAL HISTORY
On September 10, 2013 appellant, a 41-year-old information technology specialist, filed a
traumatic injury claim (Form CA-1) alleging that she sustained injuries to her head, neck, knees,
and left ankle on June 25, 2013 when she fell as she was walking to her vehicle. She indicated
that she crossed a road, walked down a hill, and fell. Appellant was temporarily unconscious
and had difficulty recalling what happened. The record establishes that her tour of duty was
Monday through Friday from 7:00 a.m. to 3:30 p.m.
In an e-mail message dated September 17, 2013, appellant notified the employing
establishment that she was back in the office and had gone past the parking area where she fell
and “saw that there [was] a hump in the grass where [she] was parked.”
On September 30, 2013 the employing establishment controverted appellant’s claim
because she had failed to explain how or why she fell and she did not recall tripping over or
stepping down into or off of anything.
In an October 2, 2013 letter, OWCP notified appellant of the deficiencies of her claim
and afforded her 30 days to submit additional evidence and respond to its inquiries.
In a narrative statement, appellant reported that the injury occurred while she was
walking to her vehicle at the end of her work shift on the premises of the employing
establishment. She stated that she was wearing flat shoes while walking down a hill to her
vehicle and “tripped on the grassy area on the hill then fell face forward to the ground.”
Appellant stated that she was temporarily unconscious for a few minutes, and when she awoke
she did not see any witnesses around her. She attempted to get up, but was too weak. After
sitting for a few minutes, appellant tried again and noticed that she could not walk. She fell next
to her vehicle and dragged herself to the car door and pulled herself up. Appellant then sat in the
car for a few minutes, and then drove home, which was approximately 15 minutes away. She
had no symptoms prior to the fall, did not suffer from any heart conditions or epileptic seizures,
and was “fine all day.” Appellant stated that she parked in “handicap parking Lot A.” She stated
that the parking facilities were owned by the employing establishment, the parking lot was open
for employees and visitors. Furthermore, appellant was assigned handicap parking for which she
did not pay.
Appellant submitted hospital records dated June 25, 2013. Dr. Tzvi Robbins, appellant’s
attending physician, diagnosed “syncope, unknown cause,” ankle sprain, concussion, and knee
contusion. He indicated that appellant’s “legs gave out and [she] fell” and hit her head at
approximately 3:30 p.m. on June 25, 2013. Dr. Robbins noted that her medical history included
anemia and hypertension. He noted that the results of a computerized tomography (CT) scan of
the brain, electrocardiogram (EKG), and complete blood count (CBC) were within normal limits.

2

On June 27, 2013 appellant returned to the hospital and Dr. Douglas Gilbert, a Boardcertified internist, diagnosed left ankle fracture and neck sprain. Dr. Gilbert noted that appellant
was seen in the emergency department on June 25, 2013 after “syncope with fall” and had a
history of anemia and hypertension. A CT scan of the cervical spine demonstrated a loss of the
normal cervical lordosis which could have been related to muscle spasm.
In reports dated July 1 through September 11, 2013, Dr. Rishi Bhatnagar, a Boardcertified family practitioner, indicated that appellant fell while she was leaving work and
diagnosed left ankle sprain and bilateral meniscal tear.
By decision dated November 14, 2013, OWCP denied the claim as appellant’s injury on
June 25, 2013 did not arise in the performance of duty. It found that her fall on June 25, 2013
was idiopathic, noting that the fall was due to syncope, and that the evidence did not establish
that she struck an intervening object prior to landing on the ground. OWCP noted that appellant
also claimed that she believed that it was a hump or patch of grass that caused her fall and
injuries; however, it found that this was merely conjectural in nature.
On November 19, 2013 appellant, through counsel, requested a review of the written
record by an OWCP hearing representative and submitted a November 19, 2013 statement
reiterating that she was injured after she fell on the employing establishment’s premises. She
indicated that the hospital “erred in judgment when stating [she] was dizzy and fell [as this] was
not an issue on the day of the fall, nor [did she] have issues with dizzy spells or a heart
condition.” Appellant stated that all she knew was that she fell coming down the hill and given
her concussion and memory issues from the fall, she should be given some leniency. The
concussion affected her level of understanding and the various details specifically as to what
happened given the impact of the fall. Appellant further indicated that the parking lot had
ongoing construction issues and that “the inability to get to parking spaces via a ramp or stairwell
in the middle of the lot could have prevented [her] from having to walk down the hill to get to
[her] vehicle.”
In a narrative statement dated December 4, 2013, appellant indicated that she did not
have any injury other than arthritis prior to the incident.
On February 28, 2014 appellant, through counsel, requested reconsideration.
On March 20, 2014 appellant submitted a petition to withdraw her request for a review of
the written record. By decision dated March 27, 2014, OWCP accepted appellant’s request for
withdrawal of the record review.
By decision dated May 29, 2014, OWCP denied modification of its November 14, 2013
decision.

3

LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.3 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his or her claim.4
It is a general rule of workers’ compensation law that an injury occurring on the
industrial premises during working hours is compensable unless the injury is established to be
within an exception to the general rule.5
One exception applies to falls in the workplace: When a personal, nonoccupational
pathology causes an employee to collapse and to suffer injury upon striking the immediate
supporting surface, and there is no intervention or contribution by any hazard or special
condition of the employment, the injury is not a personal injury while in the performance of duty
as it does not arise out of a risk connected with the employment.6 When the fall is unexplained
and, therefore, attributable neither to the employment nor to the claimant personally, the risk is
neutral, and an injury arising in the course of employment from a neutral risk is compensable.7
ANALYSIS
The Board finds that this case is not in posture for decision.
In A.F.,8 the employee fell on the employing establishment’s premises at approximately
8:30 a.m. on September 3, 2009. In a September 4, 2009 hospital discharge form, an attending
physician noted that appellant presented on September 3, 2009 and diagnosed syncope and
hypertension. OWCP denied the claim on the basis that the hospital discharge record established
that the fall was related to the employee’s preexisting hypertension and was, therefore,
idiopathic. It also found that even if he had an intervening impact, the medical evidence was
insufficient to show that the impact caused an injury. The Board found that OWCP’s decision
did not contain adequate facts and findings or clear reasoning to allow the claimant to understand
the precise defects of his claim and how to overcome them.
In the present case, OWCP accepted that appellant fell at the premises of the employing
establishment at approximately 3:30 p.m. on June 25, 2013. In a June 25, 2013 hospital report,
Dr. Robbins indicated that appellant’s “legs gave out and [she] fell.” He diagnosed “syncope,
unknown cause” and noted that her medical history included anemia and hypertension. In a
June 27, 2013 hospital report, Dr. Gilbert diagnosed left ankle fracture and neck sprain. He
3

5 U.S.C. § 8102(a).

4

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

5

See Martha G. List, 26 ECAB 200 (1974).

6

See Edward V. Juare, 41 ECAB 126 (1989).

7

See Martha G. List, supra note 5.

8

Docket No. 10-1344 (issued February 11, 2011).

4

indicated that appellant was seen in the emergency department on June 25, 2013 after “syncope
with fall” and had a history of anemia and hypertension.
In its November 14, 2013 decision, OWCP denied appellant’s claim in reliance upon
Dr. Robbins’ and Dr. Gilbert’s reports, finding that her fall on June 25, 2013 was idiopathic. It
further found that the evidence did not establish that she had struck an intervening object prior to
hitting the ground. OWCP noted that appellant believed that it was a hump or patch of grass that
caused her fall and subsequent injuries; however, it found that this was merely conjectural in
nature. The Board finds that OWCP’s decision does not contain adequate facts and findings or
clear reasoning to allow appellant to understand the precise defects of her claim and how to
overcome them.
To properly apply the idiopathic fall exception to the premises rule, there must be two
elements present: a fall resulting from a personal, nonoccupational pathology and no
contribution from the employment.9 The Board has held that OWCP has the burden to present
medical evidence showing the existence of a personal, nonoccupational pathology if it chooses to
make a finding that a given fall is idiopathic in nature.10 In his June 25, 2013 hospital report,
Dr. Robbins diagnosed “syncope, unknown cause” and noted that appellant’s medical history
included anemia and hypertension. However, he offered no opinion explaining how appellant’s
blood pressure or sugar levels, or any other personal, nonoccupational pathology, led to her fall
on the premises. The mere fact that an employee has a preexisting medical condition, without
supporting medical rationale, is not sufficient to establish that a fall is idiopathic.11 If the cause
of the fall cannot be determined or the reason it occurred cannot be explained, then it is an
unexplained fall and any resulting injury would be compensable. Thus, the Board finds that
OWCP did not make a proper determination that appellant’s June 25, 2013 fall was idiopathic in
nature due to her anemia, hypertension, or other nonoccupational condition.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.12
Accordingly, the case will be remanded to further develop the evidence and make appropriate
fact findings with regards to the location, time, and circumstances surrounding appellant’s fall on
June 25, 2013 to determine whether it occurred within the performance of duty and, if so, the
nature and extent of any injury or disability that resulted. Following this and such further
development as is deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

9

Id.

10

See Jennifer Atkerson, 55 ECAB 317 (2004).

11

See Steven S. Saleh, 55 ECAB 169, 173 (2003).

12

See K.C., Docket No. 08-2355 (issued May 15, 2009).

5

ORDER
IT IS HEREBY ORDERED THAT the May 29, 2014 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: April 1, 2015
Washington, DC

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

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

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

6