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

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

Docket No. 21-1196
Issued: March 16, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On August 2, 2021 appellant, through counsel, filed a timely appeal from a June 22, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted September 18, 2020 employment incident.
FACTUAL HISTORY
On November 23, 2020 appellant, then a 40-year-old assistant rural carrier, filed a
traumatic injury claim (Form CA-1) alleging that on September 18, 2020 she sustained a lower
back injury when a chair she was sitting in suddenly dropped down while in the performance of
duty.3
In a November 11, 2020 statement, appellant indicated that on September 18, 2020 she was
assigned to answer telephones. She explained that the chair that she initially sat on was very
uncomfortable and, as she was trying to get comfortable in it, the chair suddenly moved back and
she felt a disc in her back move. Appellant noted that she switched to sit in a different chair when
the chair slowly started dropping down and she felt a disc in her back move again. She indicated
that she stopped work and sought medical treatment on the alleged date of injury.
In a November 27, 2020 letter, the employing establishment controverted appellant’s
claim. It contended that the current claim was not a new injury, but was related to appellant’s
previous back injuries sustained on June 23, 2019 and April 19, 2020.
In a November 30, 2020 development letter, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the type of factual and medical
evidence necessary to establish her claim and provided a questionnaire for completion. OWCP
afforded appellant 30 days to respond.
OWCP subsequently received a September 18, 2020 emergency room report, Dr. Anitricia
Lumpkin, an osteopath, Board-certified in emergency and internal medicine, recounted that on
September 18, 2020 appellant “tweaked” her back when she sat on a low chair at work. She noted
that appellant had a history of back injury and described the June 23, 2019 and April 19, 2020
work incidents. Dr. Lumpkin reported physical examination findings of normal range of motion
and no tenderness. She indicated that a lumbar spine magnetic resonance imaging (MRI) scan
showed degenerative disc disease at L5-S1 and no suspicious osseous lesion. Dr. Lumpkin
assessed degenerative disc disease at L5-S1. Emergency room discharge instructions noted
diagnoses of back pain and lumbar degenerative disc disease.

3

OWCP assigned the present claim OWCP File No. xxxxxx425. Appellant has a previously accepted traumatic
injury claim related to a June 23, 2019 employment incident. OWCP assigned that claim OWCP File No. xxxxxx684
and accepted it for lumbar back strain. Appellant also previously filed a traumatic injury claim under OWCP File No.
xxxxxx088 for a back injury related to an April 19, 2020 employment incident. Appellant stopped work on that date
and accepted a full-time, limited-duty position on September 17, 2020. By decisions dated July 20 and November 24,
2020, and June 22, 2021, OWCP denied the claim.

2

In a September 21, 2020 after visit summary note, Dr. Shabnam Guard, Board-certified in
family medicine, noted the appellant was seen for back pain, unsteady gait, muscle weakness, and
numbness/tingling sensation of the skin.
In a September 21, 2020 return to work note, Dr. George Thomas, a family medicine
specialist, reported that appellant was seen in his office on that date and advised that she could
return to work on September 28, 2020.
OWCP also received a letter from Dr. Thomas dated July 2, 2020 who described
appellant’s June 23, 2019 and April 19, 2020 back injuries and the medical treatment that she had
received. He explained that a lumbar spine MRI scan demonstrated increased loss in disc height
in L5-S1, a mild broad-based disc bulge, and mild left foraminal narrowing. Dr. Thomas
recommended that appellant’s activities be limited to sitting and lifting up to 10 pounds.
In an epidural steroid injection procedure note dated October 1, 2020, Dr. Jacob Vella,
Board-certified in pain management and anesthesiology, noted a diagnosis of lumbar radiculitis.
An October 19, 2020 lumbar spine MRI scan report demonstrated minimal right and mild
left facet disease with minimal disc bulge at L4-5 and mild diffuse disc bulge and facet disease
without significant central foraminal canal stenosis or focal disc protrusion and a tiny old
Schmorl’s node inferior endplate of L5 with minimal diffuse posterior disc bulge at L5 -S1.
In a November 2, 2020 letter, Dr. Thomas recounted appellant’s April 19, 2020 back injury
and the medical treatment that she had received. He indicated that appellant was again seen on
September 18, 2020 and had informed him that she had injured her back again. Dr. Thomas
reported that appellant was referred to the hospital for evaluation and advised to follow-up with
physical therapy and pain management.
On December 15, 2020 OWCP received appellant’s completed development questionnaire.
Appellant indicated that she notified her supervisors, R.W. and G.T., of her injury that same day.
She also alleged that she had “agitated” her previous injury.
By decision dated January 5, 2021, OWCP accepted that the September 18, 2020 incident
occurred as alleged and that a medical condition was diagnosed ; however, it denied her claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between her diagnosed condition and the accepted employment incident.
On January 14, 2021 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review, which was held on April 12, 2021. She testified that
she had previous problems with her back, however, her symptoms were different after the
September 18, 2020 work incident. Appellant noted that she felt something in her lower back shift
and she was unable to walk due to pain.
Appellant submitted an emergency room registration form, a triage intake form, lab results,
and a healthcare consent transfer form dated September 18, 2020.
OWCP also received a lumber spine computerized tomography scan dated September 18,
2020, which noted findings of degenerative disc disease at L5-S1.
3

A duty status report (Form CA-17) dated January 12, 2021, containing an illegible
signature, indicated that appellant could work part-time, limited-duty for 4.75 hours per day. It
described the mechanism of injury as “uncomfortable chair injured employee’s back” and noted a
diagnosis of lumbar spondylosis.
In a report dated January 27, 2021, Dr. Timothy Holt, an orthopedic surgeon, indicated that
appellant was evaluated for low back pain that radiated down his bilateral legs. He reported that
appellant sustained back injuries on June 23, 2019 and April 19, 2020 and described how the
injuries had occurred. Dr. Holt also recounted that on September 18, 2020 appellant was
answering telephones and trying to get comfortable in a chair when she felt something move in
her back. Appellant noted that she changed chairs and the chair suddenly dropped do wn. On
physical examination of appellant’s back, Dr. Holt observed positive straight leg raise, cram, and
Laseague testing bilaterally. Sensory examination was intact. Dr. Holt reported that a lumbar
spine MRI scan demonstrated degenerative disc disease at L4-5 and L5-S1. He assessed lumbar
radiculopathy, cervicalgia, lumbar spine instabilities, and intervertebral disc displacement of the
lumbar region.
In a procedure note dated February 3, 2021, Dr. Vella noted that appellant underwent a
lumbar discogram, which showed findings of lumbar pain and degenerative disc disease.
Dr. Holt also provided examination notes dated February 4 through April 21, 2021. He
reported examination findings of limited range of motion and a shuffling gait. Dr. Holt assessed
lumbar radiculopathy and other intervertebral disc degeneration of the lumbar region.
In a February 10, 2021 addendum note, Dr. Thomas described the June 23, 2019 and
April 19, 2020 back injuries and the medical treatment that appellant had received. He noted that
appellant worked for the employing establishment as an assistant rural carrier and was diagnosed
with lumbar degenerative disc disease at L4-5 and L5-S1 according to an October 19, 2020 MRI
scan and February 3, 2021 lumbar discogram. Dr. Thomas reported that “the injuries suffered as
described in the note above can cause the disc disease diagnosed by the MRI and discogram. ”
A March 15, 2021 lumbar spine MRI scan demonstrated chronically degenerated discs at
L4-5 with minimal bulge, chronically degenerated disc protruding centrally at L5 -S1, and endplate
degeneration at L5-S1.
On April 21, 2021 appellant underwent anterior lumbar interbody fusio n at L5-S1 and
discectomy. OWCP received several documents related to the surgery, including lab results, preoperative test results, an operative report, and a hospital discharge instruction sheet.
In a May 26, 2021 letter, Dr. Holt recounted that appellant was originally diagnosed with
lumbar radiculopathy at L5-S1 with disc degeneration after a June 23, 2019 work injury. He also
described that appellant “felt something twist in her lower back” when she bent down to organize
packages and climbed three flights of stairs. Dr. Holt noted that a lumbar discogram reproduced
her typical pain level at the L5-S1 level. He reported that appellant tried all conservative measures
without success and eventually underwent an anterior interbody lumbar fusion. Dr. Holt opined:
“I think that her injury is related to the September 18 th incident.” He explained that appellant “may
have been at more risk secondary to the previous injuries, but the 20 th is the straw that broke the
4

camel’s back” after a sudden jolt from a chair. Dr. Holt reported that it was “most likely” an
aggravation of the preexisting injury. He noted diagnoses of lumbar radiculopathy, other spinal
instabilities of the lumbar region, other intervertebral disc displacement in the lumbar region, and
other disc degeneration in the lumbar spine.
In a May 27, 2021 report, Dr. Holt indicated that appellant was seen for post-operation
follow-up evaluation. He recounted that appellant was walking better since the surgery , but still
had some occasional burning sensation in her lower back. On physical examination, Dr. Holt
reported limited range of motion and no clonus. Neurological examination was positive for
numbness and weakness in the bilateral arms and legs. Dr. Holt diagnosed primary arthrodesis
and recommended that appellant remain off work for another six weeks.
In a June 22, 2021 decision, OWCP’s hearing representative affirmed the January 5, 2021
decision.4
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 6 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.9 There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the

The hearing representative noted that given the injury in the present claim appellant ’s claim should be
administratively combined. The Board notes that OWCP subsequently administratively combined OWCP File Nos.
xxxxxx088, xxxxxx425, and xxxxxx684, with the latter claim designated as the master file. The Board notes that
appellant has another appeal pending under OWCP File No. xxxxxx088. That appeal will proceed under Docket No.
21-1195.
4

5

Supra note 1.

6

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
7

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

5

time and place, and in the manner alleged. 10 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment incident
caused a personal injury. 11
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence. 12 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factor(s) identified by the employee. 13 The weight of the medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
analysis manifested, and the medical rationale expressed in support of the physician’s opinion.14
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 15
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted September 18, 2020 employment incident.
Appellant received medical treatment from Dr. Holt. In reports dated January 27 through
May 26, 2021, he described that on September 18, 2020 appellant felt something move in her back
when she tried to get comfortable in a chair at work. Dr. Holt discussed appellant’s previous back
injuries and provided current examination findings. In a May 26, 2021 letter, he indicated that he
thought appellant’s injury was related to the September 18, 2020 employment incident. Dr. Holt
explained that appellant “may have been at more risk” after the previous injuries. He noted
diagnoses of lumbar radiculopathy, other spinal instabilities of the lumbar region, other
intervertebral disc displacement in the lumbar region, and other disc degeneration in the lumbar
spine. Dr. Holt concluded that it was “most likely” an aggravation of the preexisting injury. The
Board has held, however, that medical opinions that are speculative or equivocal in character are

10

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

11

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

12

See S.A., Docket No. 18-0399 (issued October 16, 2018); see also Robert G. Morris, 48 ECAB 238 (1996).

13

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).
14

James Mack, 43 ECAB 321 (1991).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

6

of limited probative value. 16 Accordingly, these reports are insufficient to establish appellant’s
claim.
In a September 18, 2020 emergency room report, Dr. Lumpkin described that appellant
“tweaked” her back at work. She reviewed appellant’s history of back injuries and provided
examination findings. Dr. Lumpkin assessed degenerative disc disease. Likewise, the
examination notes by Dr. Vella and Dr. Guard reported diagnoses of lumbar radiculopathy and
low back pain. However, these physicians did not provide an opinion on causal relationship. The
Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition or disability is of no probative value on the issue of causal relationship. 17
These reports, therefore, are insufficient to establish appellant’s claim.
Appellant was also treated by Dr. Thomas. In a July 2, 2020 letter, Dr. Thomas described
appellant’s previous June 23, 2019 and April 19, 2020 back injuries and reviewed the medical
treatment that she had received. In a November 2, 2020 letter, he indicated that he treated appellant
on September 18, 2020 because she had injured her back again. In a February 10, 2021 addendum,
Dr. Thomas reported that “the injuries suffered as described in the note above can cause th e disc
disease diagnosed by the MRI and discogram.” While he provided an opinion on causal
relationship, Dr. Thomas did not definitively relate appellant’s current lumbar condition to the
September 18, 2020 employment incident. He did not describe the accepted September 18, 2020
employment incident, nor provide any explanation of how the specific incident caused or
contributed to appellant’s current lumbar condition. The Board has held that medical opinion
evidence should reflect a correct history and of fer a medically sound explanation of how the
specific employment incident or work factors, physiologically caused injury. 18 These reports,
therefore, are insufficient to establish appellant’s claim.
OWCP also received a series of diagnostic tests. The Board has held, however, that
diagnostic tests, standing alone, lack probative value on the issue of causal relationship as they do
not address whether the employment incident caused a diagnosed condition. 19

16

J.W., Docket No. 18-0678 (issued March 3, 2020); D.B., Docket No. 18-1359 (issued May 14, 2019); Ricky S.
Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not be one of
absolute medical certainty, the opinion must not be speculative or equivocal. The opinion sho uld be expressed in
terms of a reasonable degree of medical certainty).
17

V.L., Docket No. 20-0884 (issued February 12, 2021); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
18

K.J., Docket No. 21-0020 (issued October 22, 2021); L.R., Docket No. 16-0736 (issued September 2, 2016); J.R.,
Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).
19

V.Y., Docket No. 18-0610 (issued March 6, 2020); G.S., Docket No. 18-1696 (issued March 26, 2019); A.B.,
Docket No. 17-0301 (issued May 19, 2017).

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Appellant also submitted a Form CA-17 dated January 12, 2021 containing an illegible
signature. However, this report is of no probative value since reports lacking proper identification
do not constitute probative medical evidence.20
As there is no medical evidence of record establishing that appellant’s lumbar condition
was causally related to the accepted employment incident, the Board finds that appellant has not
met her burden of proof to establish a diagnosed medical condition causally related to the accepted
September 18, 2020 employment incident.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted September 18, 2020 employment incident.

20

A.W., Docket No. 21-0298 (issued August 26, 2021); C.B., Docket No. 09-2027 (issued May 12, 2010); Merton J.
Sills, 39 ECAB 572, 575 (1988).

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ORDER
IT IS HEREBY ORDERED THAT the June 22, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 16, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, SIGNATURE FLIGHT
SUPPORT, Indianapolis, IN, Employer
__________________________________________

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

Docket No. 09-326
Issued: July 23, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 17, 2008 appellant filed a timely appeal from September 18 and
October 15, 2008 merit decisions of the Office of Workers’ Compensation Programs granting
him a schedule award for hearing loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this schedule award.
ISSUE
The issue is whether the evidence of record established that appellant sustained greater
than a five percent binaural hearing loss in the performance of duty.
FACTUAL HISTORY
On January 23, 2008 appellant, a 54-year-old U.S. Customs special agent/criminal
investigator, filed an occupational disease claim (Form CA-2) for hearing loss. He alleged that
he first recognized his hearing loss and its relationship to his federal employment in June 1992.

Appellant attributed his hearing loss to exposure to loud noise produced by jet engines at the
Indianapolis airport as well as firearms at the shooting range where he performed quarterly
firearm proficiency tests and practice sessions.
Appellant submitted an August 23, 1989 audiogram, signed by Dr. C.H. Rushmore,
which reflected testing at 500, 1,000, 2,000 and 3,000 cycles per second (cps) levels and showed
the following decibel losses: 5, 5, 5 and 20 in the right ear and 5, 5, 10 and 10 in the left ear.
By letter dated February 6, 2008, the Office notified appellant that the evidence he
submitted in support of his claim was insufficient to establish entitlement to benefits under the
Federal Employees’ Compensation Act.
The Office referred appellant, together with a statement of accepted facts, to
Dr. William R. Pugh, a Board-certified otolaryngologist, for a second opinion evaluation. By
report dated May 6, 2008, Dr. Pugh reported that an audiogram conducted May 6, 2008 reflected
testing at 500, 1,000, 2,000 and 3,000 cps levels and showed the following decibel losses: 20,
25, 30 and 55 in the right ear and 20, 25, 25 and 40 in the left ear. He noted that the May 6, 2008
audiogram revealed mild to moderate sensorineural hearing loss. Dr. Pugh opined that
appellant’s hearing loss was due to workplace exposure.
By decision dated May 20, 2008, the Office accepted the condition.
Appellant submitted a claim (Form CA-7), dated May 28, 2008 for a schedule award.
By memorandum dated June 3, 2008, the Office requested the district medical adviser
review appellant’s file and, for purposes of the schedule award, determine the percentage of
impairment for bilateral sensorineural hearing loss, the need for hearing aids as well as the date
of maximum improvement.
By report dated July 12, 2008, the district medical adviser found that appellant had
11.25 percent monaural hearing loss in the right ear and 3.75 percent in the left ear, producing a
5 percent binaural hearing loss. The district medical adviser concluded that the date of
maximum improvement was May 6, 2008 and authorized hearing aids.
By decision dated September 18, 2008, the Office granted appellant a schedule award for
his five percent binaural hearing loss. By separate decision dated October 15, 2008, the Office
amended its September 18, 2008 decision, amending the rate of compensation from 66 2/3 to 75
percent because appellant produced evidence demonstrating that his son was a dependent.
LEGAL PRECEDENT
Section 8107 of the 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.1 The Act,
1

The Act provides that, for complete or 100 percent loss of hearing in one ear, an employee shall receive
52 weeks compensation. For complete loss of hearing of both ears, an employee shall receive 200 weeks
compensation. 5 U.S.C. § 8107(c)(13) (2000).

2

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 (A.M.A., Guides) (5th ed. 2001) as the appropriate standard
for evaluating schedule losses.2 Effective February 1, 2001, schedule awards are determined in
accordance with the A.M.A., Guides (5th ed. 2001).3
Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each frequency are
added up and averaged.4 Then, the fence of 25 decibels is deducted because, as the A.M.A.,
Guides points out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions.5 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.6 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five and then added to the greater loss and the total is divided by six to arrive at the amount of
the binaural hearing loss.7
ANALYSIS
The Office medical adviser properly applied the Office’s standardized procedures to the
May 6, 2008 audiogram obtained by Dr. Pugh. According to the Office’s standardized
procedures, testing at frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed hearing losses
in the right ear of 20, 25, 30 and 55 respectively. These totaled 130 decibels which, when
divided by 4, obtained an average hearing loss of 32.5 decibels. The average of 32.5 decibels,
when reduced by 25 decibels (the first 25 decibels are discounted as discussed above), equals
7.5 decibels, which, when multiplied by the established factor of 1.5 produces an 11.25 percent
hearing loss in the right ear.
Testing for the left ear at frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed
hearing losses in the left ear of 20, 25, 25 and 40 respectively. These totaled 110 decibels,
which, when divided by 4, obtains an average hearing loss of 27.5 decibels. The average of
27.5 decibels, reduced by 25 decibels (the first 25 decibels were discounted as discussed above),
equals 2.5 decibels, which, when multiplied by the established factor of 1.5 produces a
3.75 percent hearing loss in the left ear.
The district medical adviser then calculated appellant’s binaural hearing loss. The 3.75
percent hearing loss for the left ear, when multiplied by 5, yielded a product of 18.75. The 18.75
2

20 C.F.R. § 10.404 (2006).

3

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

4

A.M.A., Guides 250 (5th ed. 2001).

5

Id.

6

Id.

7

Id.

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was then added to the 11.25 percent hearing loss for the right ear to obtain a total of 30. The 30
was then divided by 6, in order to calculate a binaural hearing loss of five percent. The evidence
of record establishes that appellant has a five percent binaural hearing loss.
Therefore, the Office properly calculated appellant’s schedule award entitlement based
upon the medical evidence of record.
CONCLUSION
The Board finds that appellant has not established that he sustained greater than a five
percent binaural hearing loss in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the October 15 and September 18, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: July 23, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 10-1648
Issued: June 16, 2011

Case Submitted on the Record

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

JURISDICTION
On June 8, 2010 appellant, through his representative, filed a timely appeal from the
May 13, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP), which
affirmed the termination of her compensation benefits. Pursuant to the Federal Employees’
Compensation Act (FECA),1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of the case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation benefits under
5 U.S.C. § 8106(c)(2) for refusing suitable work.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 7, 2007 appellant, then a 51-year-old dietician, sustained an injury in the
performance of duty when she slipped and fell on a wet floor. OWCP accepted her claim for
displacement of lumbar intervertebral disc without myelopathy.
Appellant received
compensation for temporary total disability on the periodic rolls.
OWCP found a conflict in medical opinion on the extent of appellant’s injury-related
disability. Dr. Scott de la Garza, an orthopedic surgeon, found that appellant could return to
work eight hours a day with restrictions. Dr. Robert E. Holladay, IV, OWCP’s referral
orthopedic surgeon, found that the effects of the traumatic event had resolved but left appellant
deconditioned. He concluded that she could return to full and unrestricted duty after a period of
work hardening. Dr. C.L. Soo, a Board-certified orthopedic surgeon and the impartial medical
specialist selected to resolve the conflict, found that appellant still suffered from the effects of
the accepted work injury. He concluded that she could return to work as a dietician if she
worked less than three hours a day. Dr. de la Garza concurred.
On May 1, 2009 OWCP wrote a memorandum indicating that appellant’s work-related
disability was too severe for employment and was unlikely to improve. It added that Dr. Soo
indicated that appellant could work less than three hours a day “but does not indicate how much
less.” On May 12, 2009 OWCP agreed to change appellant’s case status code to PN: Entitled to
payment on periodic rolls; formally determined to have no wage-earning capacity or
reemployment potential for indefinite future.2
On May 20, 2009 the employing establishment offered appellant a permanent limitedduty position as a program support assistant. On June 22, 2009 OWCP reviewed the job offer
and found it to be suitable, in accordance with her medical limitations as provided by Dr. Soo.
Appellant gave reasons to the contrary, but OWCP did not find these reasons valid and provided
her an opportunity to accept the offered position within 15 days.
Appellant wrote to her employing establishment and stated that she was forced to accept
the position. She emphasized that the position was not consistent with her medical limitations,
but she asked the employing establishment to notify her of the report date. Appellant also wrote
OWCP to advise that she had accepted the position within the 15 days provided. She submitted a
copy of her acceptance letter to the employing establishment.
On October 19, 2009 OWCP terminated appellant’s compensation benefits under
5 U.S.C. § 8106(c)(2) for refusing an offer of suitable work. Appellant requested a review of the
written record by OWCP’s hearing representative. She advised that she did not refuse the offer.
Appellant provided OWCP with another copy of her letter of acceptance to the employing
establishment.
In a decision dated November 2, 2009, OWCP terminated appellant’s compensation
benefits effective November 22, 2009 for refusing an offer of suitable work.
2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Automated System Support for Case Actions, Chapter
2.401.6 (September 2009).

2

On November 9, 2009 the employing establishment acknowledged receipt of appellant’s
letter of acceptance and advised appellant that she was expected to report to Human Resources,
Room 1B104 at 9:30 a.m. on November 23, 2009. It further advised that her tour would last
until 12:30 a.m., which included a 15-minute break.
In a decision dated May 13, 2010, OWCP’s hearing representative affirmed the
October 19 and November 2, 2009 decisions terminating appellant’s compensation benefits.
LEGAL PRECEDENT
Section 8106(c)(2) of FECA states that a partially disabled employee who refuses to seek
suitable work, or refuses or neglects to work after suitable work is offered to, procured by or
secured for her is not entitled to compensation.3
Before compensation can be terminated, however, OWCP has the burden of
demonstrating that the employee can work, setting forth the specific restrictions, if any, on the
employee’s ability to work, and has the burden of establishing that a position has been offered
within the employee’s work restrictions, setting forth the specific job requirements of the
position.4 In other words, to justify termination of compensation under section 8106(c)(2),
which is a penalty provision, OWCP has the burden of showing that the work offered to and
refused or neglected by appellant was suitable.5
ANALYSIS
Dr. Soo, the impartial medical specialist selected to resolve the conflict regarding the
extent of appellant’s injury-related disability, concluded that appellant could return to work as a
dietician if she worked less than three hours a day. Based on this report, OWCP found that
appellant’s work-related disability was too severe for employment and was unlikely to improve.
It agreed to change her case status code to reflect that she was formally determined to have no
wage-earning capacity or reemployment potential for indefinite future.
The employing establishment offered appellant a permanent limited-duty position, which
OWCP found to be suitable. OWCP did not attempt to reconcile this suitability finding with its
very recent and seemingly inconsistent determination that appellant’s disability was too severe
for employment and that she had no wage-earning capacity or reemployment potential for the
indefinite future. In light of that determination, it needed to provide sound rationale for the
change of disposition.
Further, Dr. Soo did not conclude that appellant could work three hours a day; he found
that she could work less. As OWCP noted, he did not say how much less. So an offer to work
three hours a day was not in keeping with the opinion of the impartial medical specialist.
3

5 U.S.C. § 8106(c)(2).

4

Frank J. Sell, Jr., 34 ECAB 547 (1983).

5

Glen L. Sinclair, 36 ECAB 664 (1985).

3

Because OWCP recognized that Dr. Soo did not provide a definite number of hours that
appellant was permitted to work, it should have requested clarification before making a
suitability determination and subjecting appellant to the penalty provision of section 8106(c)(2).
The Board finds that OWCP has not met its burden of proof. It has not shown that the
work offered to and refused or neglected by appellant was medically suitable. The Board will
therefore reverse the hearing representative’s May 13, 2010 decision affirming the termination of
appellant’s compensation benefits.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s compensation benefits
under 5 U.S.C. § 8106(c)(2). The evidence does not establish that the offered position was
suitable.
ORDER
IT IS HEREBY ORDERED THAT the May 13, 2010 decision of the Office of
Workers’ Compensation Programs is reversed and the case remanded for reinstatement of
appellant’s compensation benefits.
Issued: June 16, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF THE ARMY, ENLISTED
RECORDS & EVALUATION CENTER,
Fort Benjamin Harris, IN, Employer
__________________________________________

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Appearances:
Brett E. Blumstein, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1619
Issued: October 4, 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 August 8, 2016 appellant, through counsel, filed a timely appeal from a July 21, 2016
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days elapsed from the last merit decision, dated June 3, 2015, 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 December 6, 1997 appellant, then a 38-year-old military personnel clerk, filed a
notice of occupational disease (Form CA-2), alleging that she developed tendinitis of the wrist
and tennis elbow as a result of gripping and pulling motions in the performance of duty. OWCP
accepted the claim for right medial epicondylitis, temporary aggravation of right carpal tunnel
syndrome and permanent aggravation of right medial epicondylitis and right trapezius
myofascial pain. Appellant was placed on the periodic rolls of compensation effective
September 9, 2001.
OWCP referred appellant to Dr. Norman Mindrebo, a Board-certified orthopedic
surgeon, for a second opinion examination to determine the nature and extent of her accepted
conditions. In an August 2, 2012 report, Dr. Mindrebo determined that appellant had reached
maximum medical improvement and opined that her employment-related conditions had ceased
without residuals.
By decision dated November 30, 2012, OWCP terminated appellant’s compensation
benefits as her accepted conditions had ceased without residuals. It found that the weight of the
evidence was represented by Dr. Mindrebo. Appellant requested a telephone hearing before a
representative of OWCP’s Branch of Hearings and Review.
In a July 22, 2013 decision, an OWCP hearing representative affirmed the termination
decision.
Appellant submitted reports dated October 14, 2013 through March 12, 2014 from
Dr. John T. Munshower, a Board-certified neurologist, who diagnosed chronic pain syndrome,
movement disorder, right shoulder pain, and neck pain. On December 16, 2013 Dr. Munshower
opined that appellant’s right posterior shoulder and arm pain radiating to the hand was causally
related to forceful and repetitive motions of removing heavy duty staples from packing materials.
He opined that appellant’s work-related injuries of permanent aggravation of right medial
epicondylitis, permanent aggravation of right trapezial myofascial pain, and aggravation of
carpal tunnel syndrome resulted in a persistent pain, which was still active at that time.
On November 18, 2014 OWCP found a conflict in the medical evidence and referred
appellant to Dr. Paul Ho, a Board-certified orthopedic hand surgeon, for an impartial medical
examination to resolve the conflict. In his December 19, 2014 report, Dr. Ho diagnosed cervical
degenerative joint disease with C5 radiculopathy with referred pain to the right trapezius and
right arm, including the shoulder and elbow, bilateral elbow pain, possibly from cervical
condition, right carpal tunnel syndrome, probable left carpal tunnel syndrome, and right cubital
tunnel syndrome by electromyography (EMG). He found that appellant had a complex problem
which was partially due to a neurological movement disorder that she had since childhood.
Dr. Ho opined that, based on the physical examination, appellant’s elbow medial epicondylitis

2

condition had resolved. He opined that appellant’s ongoing symptoms were related to her
cervical disc problem with radiculopathy and since a cervical condition had not been accepted,
then the pain in the trapezius area was more than likely not work related.
By decision dated June 3, 2015, OWCP denied modification of its prior decision.
On April 22, 2016 counsel requested reconsideration and submitted additional medical
evidence.
In an April 15, 2016 report, Dr. Paul F. Bustion, a neurologist, provided a list of
appellant’s work-related and nonwork-related conditions. His work-related diagnoses included
carpal and cubital tunnel syndromes, trapezius/myofascial pain, and right elbow epicondylitis.
Dr. Bustion asserted that appellant’s nonwork-related diagnoses were dystonia musculoram
deformans (DMD) and cervical spondylosis. He opined that her work-related disability was
permanently present and responsible for her problems. Dr. Bustion found that appellant’s carpal
and cubital tunnel syndromes were documented by neurophysiology tests and her
trapezius/myofascial pain and right elbow epicondylitis were documented by clinical evaluation.
He stated that her neurologists would have no difficulty recognizing that DMD does not cause
the repetitive use injuries that she experienced. Dr. Bustion asserted that Dr. Ho had no
difficulty identifying appellant’s work-related injuries but opined that, as a nontreating
orthopedic surgeon, Dr. Ho could not separate the work-related problems from appellant’s DMD
condition. He stated that he did not think that any physicians other than neurologists, and
probably even most neurologists, would be able to reliably make this distinction.
On reconsideration counsel argued that a nontreating orthopedic surgeon, such as Dr. Ho,
would not be able to separate work-related problems from a neurological issue. He further
argued that appellant’s nonwork-related diagnosis was a neurological issue and consequently
only a neurologist could determine whether her other injuries were related to her work-related
injuries and, therefore, OWCP should send the conflict in the medical evidence to be resolved by
a neurologist, not an orthopedic surgeon.
By decision dated July 21, 2016, OWCP denied appellant’s request for reconsideration.
It considered Dr. Bustion’s April 15, 2016 report cumulative, noting that he had not provided
new clinical or examination findings, but merely reiterated appellant’s various diagnoses.
OWCP further found that because appellant did not have any accepted neurological conditions,
Dr. Ho’s qualifications as an orthopedic hand surgeon was appropriate for resolving the conflict
in medical opinion.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.3 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.4 One such limitation is that the request for reconsideration
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
3

4

20 C.F.R. § 10.607.

3

must be received by OWCP within one year of the date of the decision for which review is
sought.5 A timely application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.6 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.7
ANALYSIS
In support of her April 22, 2016 reconsideration request, appellant submitted an April 15,
2016 report from Dr. Bustion who reiterated the accepted conditions. Dr. Bustion also noted
nonwork-related conditions of DMD and cervical spondylosis. He opined that appellant’s
neurologists would have no difficulty recognizing that DMD does not cause the repetitive use
injuries that she experienced. Dr. Bustion also asserted that Dr. Ho had no difficulty identifying
appellant’s work-related injuries, but opined that as a nontreating orthopedic surgeon, Dr. Ho
could not separate the work-related problems from appellant’s DMD condition. The Board finds
that Dr. Bustion’s April 22, 2016 report is irrelevant to the issue that was before OWCP as it was
focused on appellant’s nonwork-related conditions, not her accepted conditions. Additionally,
Dr. Bustion did not provide any new clinical or examination findings, but merely reiterated
previous findings and/or diagnoses of record. As OWCP terminated appellant’s FECA benefits
based on the lack of supportive medical evidence and this report repeats evidence already in the
case record, it is cumulative and does not constitute relevant and pertinent new evidence.
Therefore, it is not sufficient to require OWCP to reopen the claim for consideration of the
merits.8
Appellant did not submit any evidence to show that OWCP erroneously applied or
interpreted a specific point of law or advanced a relevant legal argument not previously
considered by OWCP. Because appellant only submitted cumulative evidence with her request
for reconsideration, the Board finds that she did not meet any of the necessary requirements and
she is not entitled to further merit review.9

5

Id. at § 10.607(a). 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). Id. at Chapter 2.1602.4b.
6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608(a), (b).

8

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).
9

See L.H., 59 ECAB 253 (2007).

4

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 July 21, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 4, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board

R.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SHERIDAN VETERANS AFFAIRS MEDICAL
CENTER, Sheridan WY, Employer
__________________________________________

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

Docket No. 21-1382
Issued: March 7, 2022

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 May 15, 2020 1 appellant filed a timely appeal from a February 5, 2020 merit decision
and an April 29, 2020 nonmerit decision of the Office of Workers’ Compensation Programs

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from February 5, 2020, the date of OWCP’s last decision, was
August 3, 2020. Because using September 9, 2021, the date the appeal was received by the Clerk of the Appellate
Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filin g. The date of
the U.S. Postal Service postmark is May 15, 2020, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

(OWCP).2 Pursuant to the Federal Employee’s Compensation Act3 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a diagnosed
medical condition causally related to the accepted August 28, 2019 employment incident; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 2, 2019 appellant, then a 54-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging on August 28, 2019 he injured his lower back and was exposed to
blood when escorting and controlling a patient while in the performance of duty. He stopped work
on August 30, 2019. On the reverse of the claim form, appellant’s supervisor acknowledged that
appellant was in the performance of duty.
On August 30, 2019 Melanie Kawalok, a family nurse practitioner, opined that appellant
was partially disabled from work and recommended light duty with lifting restrictions.
In a development letter dated September 18, 2019, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of additional factual and medical evidence
needed and provided a questionnaire for his completion. OWCP afforded appellant 30 days to
submit the necessary evidence. Appellant did not respond.
By decision dated October 21, 2019, OWCP accepted that the August 18, 2019 incident
occurred as alleged, but denied appellant’s traumatic injury claim, finding that he had not
submitted evidence containing a medical diagnosis in connection with the injury. Consequently,
it found that he had not met the requirements to establish an injury as defined by FECA.
On November 8, 2019 appellant requested reconsideration of the October 21, 2019
decision. He provided the completed September 18, 2019 development questionnaire and asserted
that he did not initially experience low back pain and was more concerned about the blood
exposure that had occurred on the date of injury. Appellant noted that he first sought medical
treatment on September 9, 2019.
Appellant resubmitted the August 30, 2019 note from Ms. Kawalok and provided an
additional September 7, 2019 note that she completed. On September 11, 2019 Sean Schoonover,

2
The Board notes that, following the April 29, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
3

5 U.S.C. § 8101et seq.

2

a physician assistant, completed a form report and a work release note. He also complete d form
reports on November 7, 2019.
On February 5, 2020 OWCP denied modification of its October 21, 2019 decision.
OWCP continued to receive evidence. Appellant submitted September 25 and October 28,
2019 notes from Mr. Schoonover who noted that he presented with continued complaints of low
back pain. He also resubmitted copies of Mr. Schoonover’s September 11 and November 7, 2019
notes.
On April 3, 2020 appellant requested reconsideration of OWCP’s February 5, 2020
decision.
By decision dated April 29, 2020, OWCP denied reconsideration of the merits of
appellant’s claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.8

4

Id.

5

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).

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The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted August 28, 2019 employment incident.
In support of his claim, appellant submitted an August 30, 2019 note from Ms. Kawalok,
a family nurse practitioner, as well as September 11 and November 7, 2019 notes from
Mr. Schoonover, a physician assistant. The Board has long held that certain healthcare providers
such as physician assistants and nurse practitioners are not considered qualified physicians as
defined under FECA. 11 Their medical findings, reports and/or opinions, unless cosigned by a
qualified physician, will not suffice for purposes of establishing entitlement to FECA benefits.12
Consequently, the notes from Ms. Kawalok and Mr. Schoonover are insufficient to meet his burden
of proof.13
As the evidence of record is insufficient to establish a diagnosed medical condition causally
related to the accepted August 28, 2019 employment incident, the Board finds that appellant has
not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

O.P., Docket No. 19-0445 (issued July 24, 2019); L.H., Docket No. 18-1217 (issued May 3, 2019); S.C., Docket
No. 16-0293 (issued May 10, 2016); A.C., Docket No. 08-1453 (issued November 18, 2008) (as there was no medical
evidence diagnosing an emotional condition, appellant failed to establish a prima facie claim).
Section 8102(2) of FECA provides as follows: “(2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as d efined
by State law.” 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion
under FECA); see also E.W., Docket No. 20-0338 (issued October 9, 2020).
11

12

Id.; K.A., Docket No. 18-0999 (issued October 4, 2019); K.W., 59 ECAB 271, 279 (2007).

13

S.E., Docket No. 21-0666 (issued December 28, 2021).

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LEGAL PRECEDENT -- ISSUE 2
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 own motion or on application. 14
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.15
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 16 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 17 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. 18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s timely request for reconsideration on November 8, 2019 neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law. Additionally,
the Board finds that he did not advance a relevant legal argument not previously considered by
OWCP. Consequently, appellant is not entitled to further review of the merits of his claim based
on either the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP. OWCP previously denied his claim because there was no
medical evidence of record establishing a diagnosed medical condition causally related to the
accepted August 28, 2019 employment incident. In support of his reconsideration request,
14

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
15

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).
16

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 the merit decision for which review is sought. Supra note 11 at 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). Id. at Chapter 2.1602.4b.
17

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

18

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

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appellant submitted September 25 and October 28, 2019 notes from Mr. Schoonover. The Board
finds that submission of these notes did not require reopening appellant’s case for merit review
because they have no probative value on the underlying issue on reconsideration. These reports
do not constitute competent medical evidence because physician assistants are not considered
physicians as defined under FECA. 19 Therefore, this evidence is not relevant and is insufficient to
require a merit review. 20
The Board, accordingly, finds that appellant did not meet any of the requireme nts of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 21
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted August 28, 2019 employment incident. The
Board further finds that OWCP properly denied his request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).

19

Supra note 11.

20

Id.; see R.G., Docket No. 19-1889 (issued April 14, 2021).

21

R.G., id.; D.G., Docket No. 19-1348 (issued December 2, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the February 5 and April 29, 2020 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 7, 2022
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MICHAEL E. DEBAKEY VETERANS
ADMINISTRATION MEDICAL CENTER,
Houston, TX, Employer
__________________________________________

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

Docket No. 19-0683
Issued: September 11, 2019

Case Submitted on the Record

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

JURISDICTION
On February 7, 2019 appellant filed a timely appeal from September 20, 2018 and
January 31, 2019 merit decisions 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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 31, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty on July 31, 2018, as alleged.
FACTUAL HISTORY
On August 3, 2018 appellant, then a 51-year-old lead medical supply technician, filed a
traumatic injury claim (Form CA-1) alleging that on July 31, 2018 he was cut on his right arm by
a coworker, following continuing harassment by this individual, while in the performance of duty.
He did not initially stop work. On the reverse side of the claim form, the employing establishment
indicated that appellant was not in the performance of duty when injured because he violated the
“stay away letter” in place against his coworker. It also referenced a stay away letter and pending
investigation.
The employing establishment issued an undated authorization for examination
and/treatment (Form CA-16) to an occupational health physician.
In a development letter dated August 13, 2018, OWCP advised appellant of the deficiencies
of his claim, and informed him of the factual and medical evidence needed to establish his claim.
It provided a questionnaire for his completion. Specifically, OWCP requested information
regarding the incident and the nature of appellant’s relationship with the assailant. It afforded him
30 days to submit the necessary evidence.
In a report dated July 31, 2018, Dr. Asmi Trivedi, an internal medicine specialist, related
that appellant had an altercation with an “ex significant other,” and she cut him on the right arm
with a box cutter. He indicated an impression of superficial cut.
In a report dated August 3, 2018, Dr. Hossam Safar, a Board-certified internist, diagnosed
laceration without foreign body of right forearm. He noted that the laceration was the result of an
assault by a coworker with a box cutter. Dr. Safar indicated that appellant could return to work on
August 3, 2018.
OWCP also received an August 10, 2018 duty status report (Form CA-17) from a physician
assistant which noted a date of injury as July 31, 2018 and described findings of a mild cut on the
right forearm.
In a narrative statement dated August 11, 2018, appellant indicated that on July 31, 2018
he was cut with a box cutter by a coworker while working and was “admitted to the emergency
room” at the employing establishment medical facility on that date. He noted that, since being
released from the hospital, he had not been able to sleep, had anxiety attacks, and had thoughts of
being attacked at any moment. Appellant related that he was diagnosed with post-traumatic stress
disorder (PTSD) and it seemed to have been aggravated because of the cut to his arm.
In a victim information sheet dated August 13, 2018, appellant noted that he scheduled a
mental health appointment, and, due to the incident, he experienced insomnia, anxiety,
embarrassment at work, PTSD, and fear that the perpetrator was stalking his home.

2

In an investigatory report dated August 13, 2018, appellant indicated that he was the
subject of an unprovoked attack at work and suffered two slashes to his right arm. In an employee
emergency treatment form of even date, Dr. Trivedi, an internal medicine specialist, indicated that
appellant sustained an “on-job-injury” when he was cut by a box cutter on his right arm.
By decision dated September 20, 2018, OWCP denied appellant’s claim finding that the
evidence of record was insufficient to establish that the injury arose during the course of
employment and “within the scope of compensable work factors.”
On October 10, 2018 appellant requested a review of the written record by OWCP’s Branch
of Hearings and Review.
In a report dated August 17, 2018, Rhonda London, a psychiatric nurse practitioner,
indicated that she examined appellant who complained of increased anxiety and stress secondary
to work. She noted an impression of PTSD.
By decision dated January 31, 2019, an OWCP hearing representative affirmed OWCP’s
initial September 20, 2018 decision finding that the evidence of record failed to establish that
appellant’s alleged injury occurred within the performance of duty.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
The phrase sustained while in the performance of duty is regarded as the equivalent of the
coverage formula commonly found in workers’ compensation laws, namely, arising out of and in
the course of employment.5 In the course of employment relates to the elements of time, place,
and work activity.6 To arise in the course of employment, an injury must occur at a time when the
employee may reasonably be stated to be engaged in his or her master’s business, at a place when
he or she may reasonably be expected to be in connection with his or her employment, and while
he or she was reasonably fulfilling the duties of the employment, or engaged in doing something
incidental thereto.7 As to the phrase in the course of employment, the Board has accepted the
3

Supra note 1.

4

J.W., Docket No. 18-0183 (issued January 4, 2019); L.R., Docket No. 17-0031 (issued July 11, 2017).

5

This construction makes the statute effective in those situations generally recognized as properly within the scope
of workers’ compensation law. J.W., id.; Bernard D. Blum, 1 ECAB 1 (1947).
6

J.G., Docket No. 17-0747 (issued May 14, 2018).

7

J.W., supra note 4; see J.B., Docket No. 17-0378 (issued December 22, 2017).

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general rule of workers’ compensation law that, as to employees having fixed hours and places of
work, injuries occurring on the premises of the employing establishment, while the employees are
going to and from work, before or after work hours or at lunch time, are compensable.8
Assaults arise out of the employment either if the risk of assault is increased because of the
nature or setting of the work or if the reason for the assault was a quarrel having its origin in the
work. Assaults for private reasons do not arise out of the employment unless, by facilitating
an assault that would not otherwise be made, the employment becomes a contributing factor.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury in the
performance of duty on July 31, 2018, as alleged.
In its August 13, 2018 development letter, OWCP requested further information regarding
the incident and the nature of appellant’s relationship with the assailant. However, appellant did
not respond to the specific inquiries regarding the factual circumstances surrounding the
employment incident.10 His failure to respond to these specific questions included on the
development letter prevented OWCP from determining whether the incident arose from his
employment or for a “private reason” a personal dispute imported into the work environment.
In his July 31, 2018 report, Dr. Trivedi noted that appellant reported an altercation with an
ex significant other while at work. However, as noted above, appellant did not respond to OWCP’s
August 13, 2018 development letter requesting additional information regarding the relationship
between appellant and assailant. Larson provides that assaults arise “out of the employment” either
if the risk of assault is increased because of the nature or setting of the work, or if the reason for
the assault was a quarrel having its origin in the work. Assaults for private reasons do not arise
out of the employment unless, by facilitating an assault that, would not otherwise be made, the
employment becomes a contributing factor.11 Because appellant failed to indicate the nature of
his relationship with the assailant as well as the reasons for the assault, the Board finds that his
injury did not occur within the performance of duty.12

8

T.H., Docket No. 17-0747 (issued May 14, 2018).

9

J.G., supra note 6; see also A. Larson, The Law of Workers’ Compensation § 8.00 (May 2004).

10

D.A., Docket No. 18-1715 (issued May 24, 2019); see David S. Lee, 56 ECAB 602 (2005).

11

A. Larson, The Law of Workers’ Compensation, supra note 9. See J.W., supra note 4; M.A., Docket No. 08-2510
(issued July 16, 2009).
12

The Board notes that the employing establishment issued a signed authorization for examination and/or treatment
(Form CA-16) authorizing medical treatment. The Board has held that where an employing establishment properly
executes a CA-16 form, which authorizes medical treatment as a result of an employee’s claim for an employmentrelated injury, it creates a contractual obligation which does not involve the employee directly to pay the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. §§ 10.300 and 10.304; see also
R.W., Docket No. 18-0894 (issued December 4, 2018).

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For the foregoing reasons, the Board finds that appellant has not met his burden of proof
to establish that the claimed incident occurred as alleged, nor has he met his burden of proof to
establish that he sustained a traumatic injury in the performance of duty. As appellant did not
establish that his alleged injury occurred in the performance of duty, the Board need not consider
the medical evidence of record.13
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this decision regarding the merits of appellant’s claim, pursuant to 5
U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury in the
performance of duty on July 31, 2018, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the January 31, 2019 and September 20, 2018
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 11, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

13

D.A., supra note 10; see Katherine A. Berg, 54 ECAB 262 (2002).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 15-251
Issued: April 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 12, 2014 appellant filed a timely appeal from an August 27, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established total disability from February 9 to
March 11, 2014 due to his September 18, 2013 employment injury.
On appeal, appellant contends that OWCP falsely stated that he had undergone left ankle
surgery. He further contends that his plantar fasciitis and tenosynovitis were caused by his
employment-related left ankle subtalar and calcaneal contusion.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on September 18, 2013 appellant, then a 53-year-old park ranger,
sustained a contusion of the left ankle when a metal gate hit his left ankle. Appellant stopped
work on September 29, 2013 and returned to modified-duty work at the employing establishment
on October 20, 2013.
On February 6, 2014 appellant filed a claim for compensation for leave without pay from
February 9 through March 11, 2014. On February 18, 2014 he advised OWCP that the
employing establishment could not provide him with light-duty work.
Medical records dated September 18, 2013 to January 28, 2014 addressed appellant’s left
ankle conditions, work restrictions, and medical treatment. A November 6, 2013 medical report
indicated that he received an injection on that day to treat his left ankle osteoarthritis and
chondromalacia. In work status reports dated October 15 and November 5, 2013, and
January 28, 2014, Dr. Aman Shabi Khan, an attending Board-certified orthopedic surgeon,
released appellant to return to modified-duty work. Appellant was restricted to seated work. In a
December 17, 2013 report, Dr. Khan provided examination findings and diagnostic test results
regarding the right and left lower extremities. He diagnosed subtalar and calcaneal contusion
with tenosynovitis. In a prescription also dated December 17, 2013, Dr. Khan ordered physical
therapy two times a week for six weeks to treat appellant’s contusion with Achilles
tendinitis/plantar fasciitis.
In reports dated January 30 and February 11, 2014, Ben Evans, a physical therapist,
addressed the treatment of appellant’s left ankle pain.
In a February 23, 2014 memorandum, the employing establishment stated that no lightduty work was available to accommodate appellant’s seated work restriction.
By letter dated February 25, 2014, OWCP requested that appellant submit rationalized
medical evidence to establish that his work restriction was medically necessary due to his
accepted employment injury. It noted that the medical record indicated that he received an
injection in the left ankle to treat osteoarthritis and chondromalacia. OWCP stated that
appellant’s claim had not been accepted for Achilles tendinitis, plantar fasciitis, or left ankle
osteoarthritis and chondromalacia.
Reports dated January 6 to March 4, 2014 from Mr. Evans and Kimberly Polishchuck, a
physical therapist, addressed the treatment of appellant’s left ankle pain.
In a January 28, 2014 report, Dr. Khan listed examination findings and diagnostic test
results regarding the right and left ankles. He reiterated his prior diagnosis of subtalar and
calcaneal contusion with tenosynovitis. Dr. Khan stated that appellant’s work restrictions
remained unchanged. In a March 11, 2014 letter, he related that appellant was being seen for a
subtalar and calcaneal contusion. Dr. Khan advised that he had compensatory issues with respect
to his plantar fasciitis and tenosynovitis, but his working diagnosis was subtalar and calcaneal
contusion. He stated that, prior to his return to full-duty work on March 16, 2014, appellant was

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unable to walk and stand after prolonged activities. Dr. Khan stated that this was the reason why
he was only available for seated work.
In an April 17, 2014 decision, OWCP denied appellant’s claim for compensation from
February 9 to March 11, 2014, finding that the medical evidence did not establish that he was
totally disabled during the claimed period due to his accepted September 18, 2013 employment
injury.
By letter dated May 27, 2014, appellant requested reconsideration.
In a May 8, 2014 letter, Dr. Khan stated that appellant had compensatory issues with
respect to his plantar fasciitis and tenosynovitis as a direct result of his work-related subtalar and
calcaneal contusion. There was a clear one-to-one ratio connection between this contusional
injury and subsequent plantar fasciitis and tenosynovitis. Dr. Khan opined that appellant
qualified for temporary total disability from February 9 to March 11, 2014. Objectively, he had
significant discomfort to the left ankle and heel, tenderness to palpation, antalgic gait, decreased
strength, range of motion and balance, gait disturbance, and obvious swelling and inflammatory
response. In a June 19, 2014 report, Dr. Khan provided examination findings and advised that
appellant would continue wearing a dorsal night splint and other conservative measures at home.
He stated that it was disheartening that full relief from pain had not yet been achieved. As such,
Dr. Khan planned to follow up with appellant in three weeks to update his care plan and discuss
further procedures to relieve his chronic pain. In a July 10, 2014 report, he reiterated that
appellant’s prior diagnosis of subtalar and calcaneal contusion with tenosynovitis.
A May 8, 2014 report signed by Sara Langley, a nurse practitioner in Dr. Khan’s office,
provided examination findings and recommended a dorsal night splint to assist with the
alleviation of appellant’s pain and possible surgery in the future.
Medical records from the employing establishment addressed appellant’s fitness for duty
from November 14, 2002 to September 28, 2010.
In an August 27, 2014 decision, OWCP denied modification of the April 17, 2014
decision. The medical evidence submitted was insufficient to establish that appellant was
disabled from February 9 through March 11, 2014 due to his accepted September 18, 2013
employment injury.
LEGAL PRECEDENT
With respect to a claimed period of disability, an employee has the burden of establishing
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury.2 The term disability is defined as the incapacity because of an

2

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

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employment injury to earn the wages the employee was receiving at the time of the injury, i.e., a
physical impairment resulting in loss of wage-earning capacity.3
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.4 The medical evidence required to
establish a period of employment-related disability is rationalized medical evidence.5
Rationalized medical evidence is medical evidence based on a complete factual and medical
background of the claimant, of reasonable medical certainty, with an opinion supported by
medical rationale.6 The Board, however, will not require OWCP to pay compensation for
disability in the absence of medical evidence directly addressing the specific dates of disability
for which compensation is claimed.7 To do so, would essentially allow an employee to selfcertify their disability and entitlement to compensation.8
ANALYSIS
OWCP accepted that appellant sustained a contusion of the left ankle while working as a
park ranger. Appellant claimed compensation for disability from February 9 to March 11, 2014.
OWCP denied his claimed compensation for disability on the grounds that the evidence was
insufficient to establish that the claimed disability was due to his accepted left ankle injury.
Appellant has the burden of establishing by the weight of the substantial, reliable, and probative
evidence, a causal relationship between his claimed disability and the accepted condition.9 The
Board finds that he did not submit sufficient medical evidence to establish employment-related
disability for the period claimed due to his accepted injury.
Dr. Khan’s May 8, 2014 report found that appellant had plantar fasciitis and
tenosynovitis as a direct result of his work-related subtalar and calcaneal contusion. He opined
that appellant was temporarily totally disabled from February 9 to March 11, 2014. Dr. Khan
stated that there was a clear one-to-one ratio connection between the accepted condition and the
consequential plantar fasciitis and tenosynovitis. He also stated that, prior to his return to
full-duty work on March 16, 2014, appellant could only perform seated work because he was
unable to walk and stand after prolonged activities. Dr. Khan did not sufficiently address how
the diagnosed conditions and work restriction were causally related to the September 18, 2013
work incident. His report did not explain how being hit on the left ankle by a gate on
3

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
4

See Fereidoon Kharabi, 52 ECAB 291 (2001).

5

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

6

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

7

Sandra D. Pruitt, 57 ECAB 126 (2005).

8

See William A. Archer, 55 ECAB 674 (2004); supra note 4.

9

Alfredo Rodriguez, 47 ECAB 437 (1996).

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September 18, 2013 caused appellant’s consequential conditions and medical restrictions.
Moreover, while Dr. Khan found that appellant was totally disabled during the claimed period,
he did not adequately explain how his disability was causally related to the accepted employment
injury. Thus, the Board finds that his opinion regarding causal relationship is of limited
probative value as he did not provide adequate medical rationale in support of his conclusions.10
Similarly, Dr. Khan’s March 11, 2014 report is of limited probative value because he failed to
explain how appellant’s plantar fasciitis and tenosynovitis, work restriction, and disability were
causally related to the accepted employment injury.11 His June 19 and July 10, 2014 reports
found that appellant had a subtalar and calcaneal contusion with tenosynovitis and plantar
fasciitis and addressed his medical treatment. Dr. Khan did not provide an opinion addressing
whether the diagnosed conditions and any resultant disability during the claimed period were
caused by the accepted work injury.12 The remaining reports from him predate the claimed
period of disability and fail to provide an opinion stating that appellant was totally disabled from
February 9 to March 11, 2014 due to the accepted employment injury.13 Therefore, these reports
do not establish appellant’s disability claim for this period.
The medical records from the employing establishment dated November 14, 2002 to
September 28, 2010 also predate the claimed period of disability and fail to provide an opinion
stating that appellant was totally disabled from February 9 to March 11, 2014 due to the accepted
employment injury.14
The reports from Mr. Evans and Ms. Polishchuck, physical therapists, and Ms. Langley, a
nurse practitioner, have no probative medical value. Neither a physical therapist nor a nurse
practitioner is a physician as defined under FECA.15
Appellant failed to submit rationalized medical evidence establishing that his disability
from February 9 through March 11, 2014 resulted from residuals of his accepted employmentrelated left ankle condition.
On appeal, appellant contended that OWCP falsely stated that he had undergone left
ankle surgery. Contrary to appellant’s contention, OWCP did not state that he had undergone
10

C.A., Docket No. 14-1123 (issued August 21, 2014); S.S., 59 ECAB 315 (2008); William C. Thomas, 45 ECAB
591 (1994).
11

Id.

12

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004);
Michael E. Smith, 50 ECAB 313 (1999).
13

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

14

Id.

15

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8102(2); A.C.,
Docket No. 08-1453 (issued November 18, 2008) (records from a physical therapist do not constitute competent
medical opinion in support of causal relation, as physical therapists are not physicians as defined under FECA);
L.D., 59 ECAB 648 (2008) (a nurse practitioner is not a physician as defined under FECA); Roy L. Humphrey, 57
ECAB 238 (2005).

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left ankle surgery. In its February 24, 2014 developmental letter, it stated that appellant had
received an injection on November 6, 2013 to treat left ankle conditions that had not been
accepted as work related.
Appellant further contended on appeal that his plantar fasciitis and tenosynovitis were
caused by his employment-related left ankle subtalar and calcaneal contusion. As discussed,
however, he has the burden to submit rationalized medical evidence supporting his allegation.
Appellant’s lay opinion on the cause of his conditions is insufficient to discharge his burden of
proof as lay individuals are not competent to render a medical opinion.16 The issue of causal
relationship is a medical one and must be resolved by probative medical evidence.17
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that he was totally disabled from
February 9 to March 11, 2014 due to his September 18, 2013 employment injury.

16

Gloria J. McPherson, 51 ECAB 441 (2000).

17

Luis M. Villanueva, 54 ECAB 666 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the August 27, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 13, 2015
Washington, DC

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

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

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

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