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

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

Docket No. 13-462
Issued: June 6, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 28, 2012 appellant, through her attorney, filed a timely appeal from an
Office of Workers’ Compensation Programs’ (OWCP) decision dated November 19, 2012,
which denied her reconsideration request on the grounds that it was untimely filed and failed to
establish clear evidence of error. Because more than 180 days have elapsed between the last
merit decision dated July 18, 2011 and the filing of this appeal, the Board lacks jurisdiction to
review the merits of her claim pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This is the second appeal before the Board.2 Appellant injured her lower back on
May 31, 2008 while lifting a tray of mail. OWCP accepted the claim for right lumbar sprain and
displacement of a lumbar intervertebral disc without myelopathy. Appellant has not returned to
work since September 24, 2008.
In a report dated March 20, 2009, Dr. Stephen J. Thomas, Board-certified in orthopedic
surgery, restricted appellant from doing heavy physical work but found that she could work light
duty with no lifting over 20 pounds and no standing for more than 10 minutes at a time; she
would need to sit or stand as necessary. Appellant was referred for vocational rehabilitation
services and on December 7, 2010 a vocational rehabilitation counselor issued a report
summarizing his efforts to find vocational training or suitable alternate employment for her
within her physical restrictions. The vocational counselor found that the position of general
office clerk was within her restrictions and reasonably reflected her ability to earn wages. He
found that appellant had the education, skills and training to qualify for job openings in this
occupation. Appellant had worked for two months as a mail sorter with the employing
establishment and had completed three months of computer and keyboarding courses at
Chemeketa Community College in the fall of 2009. The vocational counselor stated that there
were a number of clerk jobs within a reasonable commuting distance of her home and concluded
that there was a positive labor market for the office clerk job. While appellant was provided with
academic training and completed a term of computer/keyboarding classes, she did not obtain a
position.
By decision dated February 9, 2011, OWCP reduced appellant’s wage-loss compensation
finding that the position of office clerk reasonably represented her wage-earning capacity. By
decision dated July 18, 2011, an OWCP hearing representative affirmed the February 9, 2011
decision. By nonmerit decision dated October 27, 2011, OWCP denied reconsideration of the
February 9 and July 18, 2011 decisions. By nonmerit decision dated August 21, 2012,3 the
Board affirmed the October 27, 2011 OWCP decision. The complete facts of this case are set
forth in the Board’s August 21, 2012 decision and herein incorporated by reference.
On November 1, 2012 appellant’s attorney requested reconsideration. Counsel argued
that OWCP’s loss of wage-earning capacity determination was erroneous because it incorrectly
stated that appellant had earned a bachelor’s degree, when in fact she had not earned a higher
educational degree. Accompanying his letter was an October 18, 2012 e-mail from appellant to
counsel which included this assertion.
By decision dated November 19, 2012, OWCP denied appellant’s request for
reconsideration without a merit review, finding that the request was untimely and that she had
not established clear evidence of error.

2

Docket No. 12-795 (issued August 21, 2012).

3

Id.

2

LEGAL PRECEDENT
Section 8128(a) of FECA4 does not entitle an employee to a review of an OWCP decision
as a matter of right.5 This section, vesting OWCP with discretionary authority to determine
whether it will review an award for or against compensation, provides:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may-(1) end, decrease, or increase the compensation previously awarded; or
(2) award compensation previously refused or discontinued.”
OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a). As one such limitation, it has stated that it will
not review a decision denying or terminating a benefit unless the application for review is filed
within one year of the date of that decision.6 The Board has found that the imposition of this
one-year time limitation does not constitute an abuse of the discretionary authority granted by
OWCP under 5 U.S.C. § 8128(a).7
In those cases where a request for reconsideration is not timely filed, the Board had held
however that OWCP must nevertheless undertake a limited review of the case to determine
whether there is clear evidence of error pursuant to the untimely request.8 OWCP’s procedures
state that it will reopen an appellant’s case for merit review, notwithstanding the one-year filing
limitation set forth in 20 C.F.R. § 10.607(b), if her application for review shows “clear evidence
of error” on the part of OWCP.9
To establish clear evidence of error, an appellant must submit evidence relevant to the
issue which was decided by OWCP.10 The evidence must be positive, precise and explicit and
must be manifested on its face that it committed an error.11 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.12 It is not enough merely to show that the evidence could be construed
4

5 U.S.C. § 8128(a).

5

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989), petition for recon. denied,
41 ECAB 458 (1990).
6

20 C.F.R. § 10.607(b).

7

See cases cited supra note 3.

8

Rex L. Weaver, 44 ECAB 535 (1993).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (May 1991).

10

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

11

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

12

See Jesus D. Sanchez, supra note 5.

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so as to produce a contrary conclusion.13 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.14 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.15 The Board makes an
independent determination of whether an appellant has submitted clear evidence of error on the
part of OWCP such that it abused its discretion in denying merit review in the face of such
evidence.16
ANALYSIS
OWCP properly determined that appellant’s November 1, 2012 request for
reconsideration was untimely. It issued its most recent merit decision in this case on July 18,
2011, wherein an OWCP hearing representative affirmed the February 9, 2011 wage-earning
capacity determination. OWCP received appellant’s request for reconsideration on November 1,
2012; thus, the request is untimely as it was outside the one-year time limit.17
The Board finds that appellant’s November 1, 2012 request for reconsideration failed to
establish clear evidence of error. Appellant’s attorney contended that OWCP had incorrect
information regarding appellant’s educational background because she did not have a bachelor’s
degree. This assertion is not correct. The February 9, 2011 wage-earning capacity determination
was based on a proper evaluation of appellant’s educational background. The vocational
counselor’s December 7, 2010 report stated that she had two months of experience at the
employing establishment as a mail sorter, had completed three months of computer/keyboarding
courses at Chemeketa Community College in the fall of 2009 and had completed a community
college class during 2007 in keyboarding skill building.18 OWCP did not base the February 8,
2011 wage-earning capacity determination upon a finding that appellant had vocational
qualifications which included a bachelor degree. Thus, appellant has failed to present any
evidence sufficient to raise a substantial question as to the correctness of OWCP’s decision. She

13

See Leona N. Travis, supra note 11.

14

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

15

Faidley, supra note 5.

16

Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

17

A request for modification of a wage-earning capacity determination must be distinguished from a request for
reconsideration of a prior decision. A request for modification of a wage-earning capacity determination, supported
by new and relevant evidence requires a merit review and is not subject to a time limitation. See Emmit Taylor,
Docket No. 03-1178 (issued July 21, 2004).
18

The only reference to a bachelor degree was made in the Board’s August 21, 2012 decision, summarizing the
hearing representative’s July 18, 2011 decision. This reference is harmless error as OWCP’s decisions were not
predicated on a finding that appellant had a bachelor’s degree.

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has failed to demonstrate clear evidence of error on the part of OWCP such that it abused its
discretion in denying merit review.
CONCLUSION
The Board finds that appellant has failed to submit evidence establishing clear error on
the part of OWCP in her reconsideration request dated November 1, 2012. Inasmuch as
appellant’s reconsideration request was untimely filed and failed to establish clear evidence of
error, OWCP properly denied further review on November 19, 2012.
ORDER
IT IS HEREBY ORDERED THAT the November 19, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 6, 2013
Washington, DC

Patricia Howard Fitzgerald, 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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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 15-1870
Issued: January 11, 2016

Case Submitted on the Record

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

JURISDICTION
On September 14, 2015 appellant filed a timely appeal from an August 11, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish an injury causally
related to a June 29, 2015 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the August 11, 2015 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1). Appellant may resubmit this evidence, together with a formal request
for reconsideration to OWCP pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.

FACTUAL HISTORY
On July 6, 2015 appellant, then a 59-year-old housekeeping aid, filed a traumatic injury
claim (Form CA-1) alleging that she sustained an injury to both knees, lower back, and left arm
on June 29, 2015 while in the performance of duty. She stated that she was injured by elevator
doors repeatedly shutting on her while she was attempting to clean the elevator.
Appellant submitted a June 29, 2015 partially legible emergency room report which
reflects a diagnosis of back pain. A June 30, 2015 occupational health report from a nurse
practitioner restricted appellant from lifting more than 15 pounds. On July 6, 2015 a nurse
practitioner of the employing establishment medical center advised that appellant’s condition
was severe enough to warrant her to remain off duty from July 6 to 21, 2015 and advised that she
would be able to return to full-time, light-duty work on July 21, 2015.
In a July 9, 2015 letter, OWCP notified appellant of the deficiencies of her claim and
afforded her 30 days to submit additional evidence and respond to its inquiries. Appellant did
not respond within the time allotted.
By decision dated August 11, 2015, OWCP denied appellant’s claim as the medical
evidence submitted failed to establish a diagnosis causally related to the employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury4 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment

3

Supra note 1.

4

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).

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incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. 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 factors
identified by the employee.7
ANALYSIS
OWCP has accepted that the employment incident of June 29, 2015 occurred at the time,
place, and in the manner alleged. The issue is whether appellant sustained an injury as a result.
The Board finds that appellant did not meet her burden of proof to establish an injury related to
the June 29, 2015 employment incident. Appellant has submitted no medical evidence
supporting that the June 29, 2015 work incident caused or contributed to a diagnosed medical
condition.
Appellant submitted a June 29, 2015 emergency room report diagnosing back pain.
However, the emergency room records are only partially legible and are from a healthcare
provider whose identity cannot be discerned from the record. Because it cannot be determined
whether these records are from a physician as defined in 5 U.S.C. § 8101(2), they do not
constitute competent medical evidence.8
Appellant also submitted a June 30, 2015 occupational health report from a nurse
practitioner restricting her from lifting more than 15 pounds and a July 6, 2015 letter from the
employing establishment. This also does not constitute competent medical evidence as a nurse
practitioner is not a physician as defined under FECA.9 As noted, causal relationship is a
medical issue that must be addressed by medical evidence.10
Consequently, the Board finds that appellant has not met her burden of proof as she has
not submitted competent medical evidence addressing how the June 29, 2015 work incident
caused or contributed to a diagnosed medical condition.

6

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

7

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

8

R.M., 59 ECAB 690, 693 (2008). See C.B., Docket No. 09-2027 (issued May 12, 2010) (a medical report may
not be considered as probative medical evidence if there is no indication that the person completing the report
qualifies as a physician as defined in 5 U.S.C. § 8101(2) and reports lacking proper identification do not constitute
probative medical evidence).
9

5 U.S.C. § 8101(2). See Sean O’Connell, 56 ECAB 195 (2004) (reports by nurse practitioners and physician
assistants are not considered medical evidence as these persons are not considered physicians under FECA).
10

See supra note 7.

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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 an injury
causally related to a June 29, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 11, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 11, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Salinas, CA, Employer
__________________________________________

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

Docket No. 16-0293
Issued: May 10, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 1, 2015 appellant filed a timely appeal of an August 24, 2015 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)(1) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant established neck, shoulder, or wrist conditions
causally related to factors of her federal employment; and (2) whether appellant established an
emotional condition causally related to factors of her federal employment.
FACTUAL HISTORY
On April 3, 2015 appellant, then a 38-year-old teleservice representative, filed an
occupational disease claim (Form CA-2) alleging that on March 30, 2015 she developed
dizziness as well as pain and swelling in her neck and shoulder. She alleged that she had
1

5 U.S.C. § 8101 et seq.

experienced these conditions for a long time. Appellant attributed her conditions to constant
typing and sitting at the computer all day, as well as to stress regarding an ongoing union issue
and a prior supervisor. She also alleged carpal tunnel syndrome in both wrists due to her
employment activities.
Dr. Yvonne Torrez, an internist, completed reports on April 29 and May 5, 2015
diagnosing neck pain. She stated that appellant’s condition was work related. In notes dated
April 29 and May 5, 2015, Dr. Torrez listed appellant’s complaints of left neck pain radiating
into both arms as well as dizziness. She opined that the precipitating event was typing.
Dr. Torrez diagnosed neck pain and trapezius strain. She completed a form report repeating
these findings and conclusions. Dr. Torrez found that appellant was totally disabled from April 5
through 29, 2015. On May 19, 2015 she opined that appellant could return to full duty.
In a letter dated June 12, 2015, OWCP requested that appellant provide additional factual
and medical evidence supporting her claims.
Appellant’s former supervisor, G.G. completed a statement and noted that he supervised
appellant from October 2014 through mid-November 2014. He asserted that during that time he
had several discussions regarding failures to adhere to policy, service observation errors,
extended lunch breaks, leave usage, and family events. G.G. denied that appellant was subject to
work-related stress and opined that her performance issues were due to stressful family events.
Appellant’s supervisor, D.A. completed a statement dated July 1, 2015 and noted that she
supervised appellant from November 3, 2014 through March 1, 2015. She indicated that there
was a grievance in process against G.G. regarding a performance rating. D.A. also detailed
difficulties that appellant was having with her teenage son.
In an e-mail dated November 14, 2014, appellant denied violating company policies and
procedures. She alleged that she was denied leave and researched policy regarding this denial
and on paid breaks. Appellant noted that she had four supervisors within the performance review
period and asked that all four contribute to her evaluation. She alleged that her rating was
decreased due to retaliation because she sought union assistance to remedy her denied leave
request. Appellant submitted a statement dated July 8, 2015 from her husband regarding his
perception of her work stress.
In an e-mail dated September 19, 2014, the union clarified that appellant would be given
nine hours of advance leave and credited nine hours of annual leave. Appellant alleged in an
e-mail dated April 21, 2015 that she was denied the opportunity to function as a mentor because
she sought union assistance with her denied leave request.
On July 7, 2015 Dr. Joanna Oppenheim, a Board-certified family practitioner, provided
work restrictions of no use of the right arm or hand.
Appellant, in a July 8, 2015 statement, alleged that G.G. improperly denied advanced sick
leave using an incorrect leave policy. She contacted the union regarding this leave denial.
Appellant also asserted that G.G. reduced her performance appraisal and that he attributed this to
the amount of time that she was off the telephone. She contended that she was denied a
promotion due to her negative appraisal. Appellant also attributed her emotional condition to the
workers’ compensation process and the lack of knowledge of this process by the employing
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establishment. She noted that on July 8, 2015 Dr. Oppenheim restricted appellant’s right arm
usage and alleged that the employing establishment informed her that there was nothing else for
her to do. The employing establishment allegedly indicated that appellant could use her left hand
or use leave. Appellant attributed her orthopedic conditions to constantly sitting and typing for
eight hours a day while looking at dual computer screens. She alleged that her conditions were
related to repetitive motion.
A coworker completed a statement dated July 10, 2015 and asserted that appellant
frequently complained of hand and neck pain.
Dr. Torrez completed a note dated July 13, 2015 and diagnosed trapezius strain on the
left as well as carpal tunnel syndrome and cervical strain. She concluded, “The precipitating
event seems to have been typing.” Dr. Torrez indicated that the conditions were work related.
She indicated that appellant should perform modified work from July 13 through August 3, 2015
with minimal use of the right hand and wrist. Dr. Torrez repeated her findings on August 5,
2015 and indicated that appellant was partially disabled from August 5 through 18, 2015. She
completed a similar note on August 19, 2015 and provided work restrictions from August 19
through September 9, 2015.
By decision dated August 24, 2015, OWCP denied appellant’s claim, finding that the
medical evidence of record did not establish that she developed neck or shoulder conditions due
to her employment, or a diagnosed emotional condition, causally related to factors of her federal
employment.
LEGAL PRECEDENT -- ISSUE 1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The evidence required to establish causal relationship is rationalized medical opinion evidence,
based upon a complete factual and medical background, showing a causal relationship between
the claimed condition and identified factors. The belief of a claimant that a condition was caused
or aggravated by the employment is not sufficient to establish causal relation.2
A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.3 Medical rationale includes a physician’s detailed opinion on
the issue of whether these is a causal relationship between the claimant’s diagnosed condition
and the implicated employment activity. The opinion of the physician must be based on a
complete factual and medical background of the claim, must be one of reasonable medical
2

Lourdes Harris, 45 ECAB 545, 547 (1994).

3

T.F., 58 ECAB 128 (2006).

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certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and specific employment activity or factors identified by the
claimant.4
ANALYSIS -- ISSUE 1
The Board finds that appellant has not submitted the necessary medical opinion evidence
to establish causal relationship between her diagnosed physical conditions and factors of federal
employment.
Appellant has submitted medical evidence providing diagnosed conditions including
cervical strain, trapezius strain and carpal tunnel syndrome. She also provided a narrative
statement describing the employment duties which she felt contributed to these conditions
including sitting and typing while looking at dual computer screens for eight hours a day.
Appellant submitted a series of reports and notes from Dr. Torrez addressing her physical
conditions. Beginning on April 29 through July 13, 2015 Dr. Torrez diagnosed trapezius strain
on the left as well as carpal tunnel syndrome and cervical strain. She concluded, “The
precipitating event seems to have been typing.” Dr. Torrez opined that the conditions were work
related. The Board finds that she has failed to provide sufficient detail or medical reasoning to
establish a causing relationship between appellant’s diagnosed conditions and her implicated
employment duty. Dr. Torrez did not explain how or why she believed that appellant’s typing at
work would have resulted in cervical and trapezius strain or in carpal tunnel syndrome. She did
not provide any medical rationale supporting her opinion that appellant’s conditions were work
related. Without a well-reasoned report explaining the process by which appellant’s implicated
employment duties of typing at two computer screens resulted in her various diagnoses,
Dr. Torrez’ reports are not sufficient to meet appellant’s burden of proof in establishing an
occupational disease.
LEGAL PRECEDENT -- ISSUE 2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim for an emotional condition, a claimant must submit the following: (1) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; (2) a factual statement identifying employment factors alleged to have
caused or contributed to the presence or occurrence of the disease or condition; and (3) medical
evidence establishing that the employment factors identified by the claimant were the proximate
cause of the condition for which compensation is claimed or, stated differently, medical evidence
establishing that the diagnosed condition is causally related to the employment factors identified
by the claimant.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,6 the Board
4

A.D., 58 ECAB 149 (2006).

5

See M.C., Docket No. 14-1456 (issued December 24, 2014); Debbie J. Hobbs, 43 ECAB 135 (1991).

6

28 ECAB 125 (1976).

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explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.7 There are situations where an injury or
illness has some connection with the employment, but nevertheless does not come within
coverage under FECA.8 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.9 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a
personal injury sustained in the performance of duty within the meaning of FECA. Thus
disability is not covered when it results from an employee’s fear of a reduction-in-force, nor is
disability covered when it results from such factors as an employee’s frustration in not being
permitted to work in a particular environment or to hold a particular position.10
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.11 Where the
evidence demonstrates that the employing establishment either erred or acted abusively in
discharging its administrative or personnel responsibilities, such action will be considered a
compensable employment factor.12 A claimant must support his or her allegations with probative
and reliable evidence. Personal perceptions alone are insufficient to establish an employmentrelated emotional condition.13
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish an emotional
condition, causally related to factors of her federal employment.
The first element required for any occupational disease claim is medical evidence of a
diagnosed condition for which compensation is claimed. Appellant has alleged an emotional
condition, stress, as the result of actions by her supervisors. OWCP reviewed these allegations
and found that she had not substantiated a compensable factor of employment and had not
submitted medical evidence diagnosing an emotional condition. The Board finds that, as
appellant has submitted no medical evidence diagnosing an emotional condition, she has failed to
7

Supra note 1.

8

See Robert W. Johns, 51 ECAB 136 (1999).

9

Supra note 6.

10

Id.

11

Charles D. Edwards, 55 ECAB 258 (2004).

12

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
13

Roger Williams, 52 ECAB 468 (2001).

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establish the first element of her emotional condition claim.14 Without a medical diagnosis,
appellant has not presented prima facie evidence of an emotional condition. Due to this
deficiency, the Board will affirm the denial of her claim.
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 failed to establish an occupational disease claim for
injuries to her neck, shoulder, or wrist causally related to factors of her federal employment. The
Board further finds that, as she failed to establish an emotional condition, causally related to
factors of her federal employment she has failed to establish a prima facie claim for such a
condition.
ORDER
IT IS HEREBY ORDERED THAT the August 24, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 10, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

See M.M., Docket No. 09-1347 (issued December 18, 2009) (finding that as there was no medical evidence
diagnosing an emotional condition, appellant failed to establish a prima facie claim); A.C., Docket No. 08-1453
(issued November 18, 2008).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, HARVEST POST
OFFICE, Harvest, AL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0585
Issued: March 11, 2022

Case Submitted on the Record

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

On March 5, 2021 appellant filed a timely appeal from a November 13, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 21-0585.
On May 7, 2018 appellant, then a 58-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 4, 2018,1 at approximately 8:30 a.m., he strained his back when
picking up a delivery point sequence (DPS) tray while in the performance of duty. He stopped
work on the alleged date of injury. OWCP assigned the claim OWCP File No. xxxxxx463.2

1

Appellant indicated on his claim form that the injury occurred on May 5, 2018. In a June 11, 2018 letter, however,
appellant clarified that the correct date of injury was May 4, 2018. In a June 13, 2018 letter, the employing
establishment notified OWCP that the correct date of injury was May 4, 2018. In a June 19, 2018 letter, OWCP
notified appellant that his date of injury was changed to May 4, 2018.
2

The record reflects that appellant has a prior cla im for a February 4, 2009 traumatic injury, that was accepted for
lumbar sprain under OWCP File No. xxxxxx873. Appellant also has a prior claim for a June 7, 2011 traumatic injury
accepted for shoulder and upper arm sprains; abrasions/friction burn; contusion; face, neck, and scalp
abrasions/friction; neck sprain; lumbar sprain; and concussion under OWCP File No. xxxxxx378. Additionally, he
filed a Form CA-1 on September 29, 2017 alleging that he sustained a work-related back and neck injury on that date
under OWCP File No. xxxxxx574. Appellant subsequently filed a nother Form CA-1 alleging that on November 16,
2017 he strained his mid-back under OWCP File No. xxxxxx665.

By decision dated January 14, 2019, OWCP accepted that the May 4, 2018 incident
occurred as alleged, but denied appellant’s claim as the medical evidence of record was insufficient
to establish causal relationship between a diagnosed medical condition and the accepted
employment incident.
OWCP received additional medical evidence.
On September 21, 2019 appellant requested reconsideration.
By decision dated November 8, 2019, OWCP modified the January 14, 2019 decision to
find that appellant had not established the factual component of his claim.
On February 4, 2020 appellant requested reconsideration and submitted additional medical
evidence.
By decision dated March 23, 2020, OWCP denied modification.
On June 19, 2020 appellant requested reconsideration. By decision dated September 11,
2020, OWCP denied modification of the March 23, 2020 decision.
On October 1, 2020 appellant requested reconsideration and submitted additional evidence.
By decision dated November 13, 2020, OWCP denied modification.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files. 3 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition or the same part of the body, doubling is required. 4 In the present claim,
appellant alleged injuries to his back, shoulders, and neck. He has prior claims before OWCP
alleging neck, shoulder, and back injuries, including previously accepted claims under OWCP File
Nos. xxxxxx873 and xxxxxx378. However, OWCP has not administratively combined appellant’s
claims.
For a full and fair adjudication of appellant’s current claim, the case must be remanded to
OWCP to administratively combine the current case record with OWCP File Nos. xxxxxx873,
xxxxxx378, xxxxxx574, and xxxxxx665.5 Following this and other such further development as
OWCP deems necessary, it shall issue a de novo decision.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
4

Id.; L.M., Docket No. 19-1490 (issued January 29, 2020); L.H., Docket No 18-1777 (issued July 2, 2019).

5

Id.

2

IT IS HEREBY ORDERED THAT the November 13, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 11, 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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Drexel Hill, PA, Employer
__________________________________________

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

Docket No. 14-333
Issued: June 25, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 20, 2013 appellant, through his representative, filed a timely appeal from
the November 18, 2013 merit decision of the Office of Workers’ Compensation Programs
(OWCP), which denied an additional schedule award. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has more than 18 percent impairment of his right lower
extremity or more than 20 percent impairment of his left lower extremity, for which he has
received schedule awards.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On the prior appeal,2 the Board found that the case was not in posture for decision
because it appeared that neither the second opinion physician nor an OWCP medical adviser had
evaluated impairment due to vascular conditions under Chapter 4 of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides).
The Board remanded the case for further development and a de novo decision.3
On November 4, 2013 Dr. Robert A. Smith, the Board-certified orthopedic surgeon and
second opinion physician, advised that he had reviewed his May 24, 2012 evaluation4 and noted
that the analysis of appellant’s impairment was taken from Table 4-12 on page 69 of the A.M.A.,
Guides. “Other than this addition, there are no other required corrections for this report.”
An OWCP medical adviser reviewed Dr. Smith’s reports and agreed with his
determination that appellant had 17 percent impairment of his right lower extremity and 20
percent impairment of his left lower extremity. The medical adviser indicated that the diagnosis
used for the diagnosis-based method of evaluation was bilateral lower extremity DVT with
marked edema. He placed appellant’s diagnosis in class 2. As appellant had bilateral marked
edema, he found that functional history was also class 2 bilaterally. On physical examination,
both legs demonstrated chronic venous insufficiency, but there was significantly more swelling
on the left. He therefore graded the physical examination as class 2 on the right and class 3 on
the left. Clinical studies were not applicable, as there were no objective studies at the time of
maximum medical improvement.
Referencing Table 14-12, page 69 of the A.M.A., Guides, OWCP’s medical adviser
concluded that appellant had 17 percent impairment of his right lower extremity, which did not
warrant adjustment from functional history or physical examination. He also concluded that
appellant had 20 percent impairment of his left lower extremity, which was adjusted up from 17
percent due to severe physical examination findings.
2

Docket No. 12-1625 (issued September 12, 2013).

3

On September 8, 1998 appellant, a 46-year-old letter carrier, sustained an injury in the performance of duty
when he lifted his mail satchel. OWCP accepted his claim for lumbosacral strain, displacement of an intervertebral
disc, aggravation of lumbar degenerative disc disease, phlebitis and thrombophlebitis. Appellant received a
schedule award for 18 percent impairment of his right lower extremity and for 10 percent impairment of his left
lower extremity. On July 17, 2012 OWCP issued a schedule award for an additional 10 percent impairment of the
left lower extremity, for a total rating of 20 percent on that side. The facts of this case, as set forth in prior Board
decisions, are hereby incorporated by reference.
4

As the Board discussed on prior appeal, Dr. Smith’s May 24, 2012 report appeared to be based on Table 9-12,
page 208, of the A.M.A., Guides. He reported that appellant’s deep vein thrombophlebitis (DVT) yielded 2 percent
impairment with a default rating of 17 percent for the right lower extremity. Dr. Smith explained that appellant has
functional history and physical examination modifiers of 0 percent resulting in 17 percent right lower extremity
impairment. He also rated appellant’s DVT of the left lower extremity as a class 2 impairment with a default rating
of 17 percent impairment. Dr. Smith found physical examination modifier of three and a functional history modifier
of two due to additional swelling on the left. This resulted in a +1 net modifier resulting in 20 percent impairment
of the left lower extremity after moving to the right of the column.

2

In a decision dated November 18, 2013, OWCP denied an additional schedule award.
Noting that appellant had already received schedule awards for 18 percent impairment of his
right lower extremity and 20 percent impairment of his left, OWCP found that the reports of
Dr. Smith and OWCP’s medical adviser showed that no additional impairment was warranted.
Appellant’s representative argues that OWCP did not fully comply with the Board’s
previous decision.
LEGAL PRECEDENT
The schedule award provision of FECA5 and the implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.7
For consistent results and to ensure equal justice under the law to all claimants, good
administrative practice necessitates the use of a single set of tables so that there may be uniform
standards applicable to all claimants. OWCP has adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.8 As of May 1, 2009, the sixth edition of the A.M.A.,
Guides is used to calculate schedule awards.9
ANALYSIS
As the Board indicated on the prior appeal, Dr. Smith, the orthopedic surgeon and second
opinion physician, did not identify which table in the sixth edition of the A.M.A., Guides he was
using to evaluate appellant’s lower extremity impairment due to chronic DVT. The medical
adviser indicated that he was applying Table 9-12, page 208, relating to thrombotic disorders.
The Board remanded the case for an evaluation of impairment due to vascular conditions under
Chapter 4.
In his supplemental report, Dr. Smith clarified that his previous evaluation was indeed
carried out using Table 4-12, page 69, relating to lower extremity peripheral vascular disease.
He did not fully explain how he used the criteria in this table to determine appellant’s
impairment.
Table 4-12 uses objective test results as the key factor for determining the appropriate
impairment class for the condition being rated. Although Dr. Smith placed appellant’s
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

8

20 C.F.R. § 10.404; Ronald R. Kraynak, 53 ECAB 130 (2001).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010).

3

impairment in class 2 (mild problem), he did not explain how appellant met the criteria:
“Abnormal ABI’s [ankle-brachial indices] (0.71-0.90) or mildly abnormal arterial or venous
duplex ultrasound or peripheral angiograms documenting mild PAD [peripheral arterial
disease].”
Dr. Smith correctly noted that the default rating for a class 2 impairment was 17 percent
of the lower extremity, but he did not explain how appellant’s functional history met the criteria
for mild. Nor did he explain how appellant’s physical findings met the criteria for mild on right
and moderate on the left. Dr. Smith noted additional swelling on the left, but the criteria for
moderate physical findings is given as follows: “Vascular damage such as amputation at or
above ankle or amputation of two or more digits with evidence of persistent vascular disease or
persistent widespread or deep ulceration involving one extremity.”
The medical adviser indicated that he was using the diagnosis-based method of
evaluating impairment, and the diagnosis used for his rating was deep vein thrombosis with
marked edema. He, too, placed appellant’s impairment in class 2 without explaining how
appellant’s objective test results met the criteria. The medical adviser found that appellant’s
functional history was class 2 for marked edema, but marked edema may indicate class 2 or
class 3 under Table 4-12. He judged appellant’s physical examination to be class 2 on the right
for evidence of chronic venous insufficiency (persisting vascular disease), but he did not explain
how significantly more swelling on the right met the criterion for class 3. The medical adviser
also indicated that clinical studies were not applicable, notwithstanding that objective test results
are the key factor for determining the appropriate impairment class.
The Board finds that this case is not in posture for decision. Neither Dr. Smith nor
OWCP’s medical adviser sufficiently explained how appellant’s impairment was determined
under the criteria of Table 4-12, page 69 of the A.M.A., Guides. In this regard, appellant’s
representative correctly observes that OWCP did not fully comply with the Board’s prior
decision and order. Accordingly, the Board will set aside OWCP’s November 18, 2013 decision
and will remand the case for further development and a de novo decision on the extent of
appellant’s bilateral lower extremity impairment under Table 4-12.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development is
warranted.

4

ORDER
IT IS HEREBY ORDERED THAT the November 18, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: June 25, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 16-1121
Issued: September 16, 2016

Case Submitted on the Record

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

JURISDICTION
On May 5, 2016 appellant filed a timely appeal from a December 14, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish disability on or after
November 7, 2014 due to his October 24, 2014 work injury.
FACTUAL HISTORY
On October 24, 2014 appellant, then a 30-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging a back injury on October 24, 2014 due to lifting heavy tubs of mail at

1

5 U.S.C. § 8101 et seq.

work. OWCP accepted a lumbar sprain. Appellant stopped work on October 24, 2014, but
returned to work shortly thereafter in a light-duty position without wage loss.2
Appellant stopped work on November 7, 2014 and was terminated for cause effective
November 20, 2014.3 He filed claims for compensation (Form CA-7) claiming ongoing
disability commencing November 7, 2014 due to his October 24, 2014 work injury.
In a report dated November 7, 2014, Dr. John P. Fletcher, an attending osteopath and
Board-certified family practitioner, diagnosed lumbar strain and indicated that appellant’s
activity status was “no work” for two weeks.4 On December 5, 2014 Dr. Fletcher noted that
appellant could return to modified duty with restrictions including no lifting, pushing, or pulling
more than 10 pounds. On January 6, 2015 he indicated that appellant could return to modified
work with the same work restrictions.
In a February 17, 2015 decision, OWCP determined that appellant had not met his burden
of proof to establish disability on or after November 7, 2014 due to his October 24, 2014 work
injury because he failed to submit sufficient medical evidence in support of his claim. It noted
that none of the medical evidence contained an opinion that appellant had disability due to his
October 24, 2014 work injury.5
In an April 16, 2015 report, Dr. Fletcher indicated that appellant could return to regular
duty on April 16, 2015.
In a report dated May 12, 2015, Dr. Francis P. Lagattuta, an attending Board-certified
physical medicine and rehabilitation physician, diagnosed lumbar spondylosis. On June 9, 2015
he noted that appellant’s restrictions were “per PCP” without providing further elaboration. In a
report dated July 14, 2015, Dr. Lagattuta again indicated that appellant’s restrictions were “per
PCP.”
In a report dated August 10, 2015, Dr. John Janda, an attending Board-certified
orthopedic surgeon, diagnosed chronic lumbosacral strain, right L5 Pars defect, and ligamentum
flavum hypertrophy at L2-3 through L5-S1.
Appellant requested a telephonic hearing with an OWCP hearing representative. During
the hearing held on September 24, 2015, he argued that he continued to have disabling residuals
of his October 24, 2014 work injury on and after November 7, 2014. Appellant asserted that he
was wrongly denied light-duty work after November 7, 2014.

2

Appellant did not receive any disability compensation on the daily or periodic rolls. Appellant’s light-duty
position restricted him from lifting, pushing, or pulling more than 10 pounds.
3

The employing establishment determined that appellant failed to meet his performance standards.

4

Appellant submitted reports of physician assistants, including a November 21, 2014 report.

5

After the issuance of OWCP’s February 17, 2015 decision, appellant continued to file claims for compensation
alleging continuing disability due to his October 24, 2014 work injury.

2

After the hearing, appellant submitted an October 26, 2015 report in which Dr. Janda
indicated that he complained of back pain which was worsened by prolonged standing. Dr Janda
noted that appellant was disabled from performing his regular job duties.
By decision dated December 14, 2015, an OWCP hearing representative affirmed
OWCP’s February 17, 2015 decision finding that appellant had not established disability on or
after November 7, 2014 due to his October 24, 2014 work injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.6 In general, the term disability under FECA means
incapacity because of injury in employment to earn the wages which the employee was receiving
at the time of such injury.7 This meaning, for brevity, is expressed as disability for work.8
The medical evidence required to establish a causal relationship between a claimed
period of disability and an employment injury is rationalized medical opinion evidence. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.9
ANALYSIS
OWCP accepted that on October 24, 2014 appellant sustained a lumbar sprain due to
lifting heavy tubs of mail at work. Appellant stopped work on November 7, 2014 and claimed
that he had ongoing disability commencing November 7, 2014 due to his October 24, 2014 work
injury.
The Board finds that appellant had not met his burden of proof to establish disability on
or after November 7, 2014 due to his October 24, 2014 work injury because he failed to submit
sufficient medical evidence in support of his claim.
Appellant submitted a November 7, 2014 report in which Dr. Fletcher diagnosed lumbar
strain and indicated that his activity status was “no work” for two weeks. On December 5, 2014
and January 6, 2015 Dr. Fletcher noted that appellant could return to modified duty with
6

J.F., Docket No. 09-1061 (issued November 17, 2009).

7

See 20 C.F.R. § 10.5(f).

8

Roberta L. Kaaumoana, 54 ECAB 150 (2002); see also A.M., Docket No. 09-1895 (issued April 23, 2010).

9

See E.J., Docket No. 09-1481 (issued February 19, 2010).

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restrictions including no lifting, pushing, or pulling more than 10 pounds. In Dr. Lagattuta’s
May 12, 2015 report, he diagnosed lumbar spondylosis and on June 9 and July 14, 2015 he noted
that appellant’s restrictions were “per PCP” without providing further elaboration. In his
August 10, 2015 report, Dr. Janda diagnosed chronic lumbosacral strain, right L5 Pars defect,
and ligamentum flavum hypertrophy at L2-3 through L5-S1 and on October 26, 2015 he noted
that appellant was disabled from performing his regular job duties.
The Board finds that the submission of these reports fails to establish appellant’s claim
because the reports are of limited probative value regarding the relevant issue of this case, i.e.,
whether appellant established disability on or after November 7, 2014 due to his October 24,
2014 work injury. Although the physicians recommended varying degrees of disability, none of
the physicians provided an opinion that their disability recommendations were due to the
October 24, 2014 work injury. The Board has held that medical evidence which does not offer a
clear opinion regarding the cause of an employee’s disability/condition is of limited probative
value on the issue of causal relationship.10 Moreover, the Board notes that several of the reports
provide diagnoses of medical condition which have not been accepted by OWCP. As noted,
appellant’s case has only been accepted for the soft-tissue injury of lumbar sprain.
Appellant submitted reports of physician assistants, including a November 21, 2014
report. However, these reports are of no probative value as none of these care providers is a
physician as defined under FECA and, therefore, they are not competent to provide a medical
opinion.11
On appeal appellant argues that he continues to have disabling residuals of his
October 24, 2014 work injury on and after November 7, 2014, but the Board has explained that
he has not established such work-related disability.12 For these reasons, he has failed to meet his
burden of proof to establish disability on or after November 7, 2014 due to his October 24, 2014
work injury.
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.

10

See Charles H. Tomaszewski, 39 ECAB 461 (1988). In addition, none of the reports clearly shows that appellant
was disabled from the light-duty work he was performing at the time he stopped work on November 7, 2014. With
respect to the opinion of Dr. Fletcher, the Board notes that, in an April 16, 2015 report, Dr. Fletcher indicated that
appellant could return to regular duty on April 16, 2015.
11

See 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); Charley V.B. Harley, 2 ECAB
208 (1949) (the Board held that medical opinion, in general, can only be given by a qualified physician). See also 5
U.S.C § 8101(2).
12

Appellant also asserted that he was wrongly denied light-duty work after stopping work in November 2014, but
it is noted that he was terminated for cause around that time.

4

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish disability on
or after November 7, 2014 due to his October 24, 2014 work injury.
ORDER
IT IS HEREBY ORDERED THAT the December 14, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 16, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 16-0368
Issued: May 11, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 22, 2015 appellant, through counsel, filed a timely appeal from a
September 29, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a lumbar injury
causally related to her accepted October 29, 2014 employment incident.
FACTUAL HISTORY
On November 1, 2014 appellant, then a 42-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 29, 2014 she sustained a strain of her right lower
back when she was delivering a heavy package weighing 30 to 40 pounds and a customer’s dog
brushed by her causing her to lose her balance. She noted a burning feeling and pain on her right
1

5 U.S.C. § 8101 et seq.

lower back, but she continued with her deliveries. Appellant stopped work on October 29, 2014
and first received medical care on November 2, 2014.
In a November 1, 2014 narrative statement, appellant’s supervisor reported that on
October 29, 2014 appellant called the office informing her that she had just delivered a package
and her back was hurting. Appellant thought she may have pulled a muscle but wanted to wait
and see if it would heal on its own.
The employing establishment issued appellant a properly completed Form CA-16,
authorization for examination, dated November 1, 2014, which indicated that appellant was
authorized to seek medical treatment with Lee Convenient Care related to the alleged
October 29, 2014 injury. The employing establishment noted that there was doubt regarding
whether the employee’s condition was caused by an injury sustained in the performance of duty
or otherwise related to employment.
In a November 2, 2014 diagnostic report, Dr. David S. Gerson, a Board-certified
diagnostic radiologist, reported that an x-ray of the lumbar spine revealed moderate loss of disc
space height L3-4 with no definite evidence of fracture or dislocation.
By letter dated December 1, 2014, OWCP notified appellant that her claim was initially
administratively handled to allow medical payments, as her claim appeared to involve a minor
injury resulting in minimal or no lost time from work. The merits of her claim had not been
formally considered. Her claim was reopened because she had not returned to work in a fulltime capacity. OWCP notified appellant that the evidence of record was insufficient to support
her claim. Appellant was advised of the medical and factual evidence needed and was asked to
provide such evidence within 30 days.
In a November 2, 2014 medical report, Dr. Gustavo Prada, Board-certified in family
medicine, reported that four days ago while working, appellant was picking up a package and a
dog crossed her way causing her to become unstable. Appellant immediately felt low back pain
radiating to the right leg with associated numbness and tingling in the right leg. She continued to
work throughout the day, but the pain progressively worsened. The physician provided findings
on physical examination and diagnosed backache and radiculopathy.
In a December 4, 2014 report, Carolyn Hoffman, a registered nurse (RN), reported that
appellant sustained a low back injury on October 29, 2014 when she tripped over a client’s dog.
She noted a history of low back problems with surgery in 2004 for L3-4 fusion. Appellant also
had residual numbness in the right leg that had resolved. She stated that she had not had
problems with her back until this injury.
In a December 8, 2014 medical report, Dr. Paul Fortier, Board-certified in internal
medicine, reported that appellant sustained an injury on October 29, 2014 when she was carrying
a 40-pound package and stumbled over a dog as she was delivering the package to a home.
When she stumbled, the package and her arms were flung forward away from her body, and the
cantilevered weight of the package multiplied the force on her back as she awkwardly regained
her footing, causing immediate pain in the right lower back radiating down her right buttock,
thigh, and lower leg. Appellant complained of continued pain in the right low back radiating
down the right buttock and thigh. A November 2, 2014 lumbar x-ray showed loss of disc space
at L3. Dr. Fortier noted a history of lumbar fusion at L3-4 in 2003. Appellant reported that after
2

the lumbar fusion she had occasional self-limited back pain, but no pain radiating to her leg until
this injury. Dr. Fortier reported that objective signs included lumbar soft tissue swelling,
positive straight leg raise test, and loss of patellar reflex. He noted that additional objective
testing, specifically a magnetic resonance imaging (MRI) scan of the lumbar spine, was
necessary to treat her condition. Dr. Fortier diagnosed acute lumbar radiculopathy which started
at the time of the injury and could be explained by mechanism of injury as noted in the history of
his report.
In a December 17, 2014 narrative statement, appellant reported that, during the
October 29, 2014 incident, she stumbled and fell to the ground. She further stated that she had
no similar symptoms or disability prior to the injury.
By decision dated January 5, 2015, OWCP accepted the October 29, 2014 employment
incident, but denied appellant’s claim finding that the medical evidence of record failed to
establish that her lumbar radiculopathy was causally related to the accepted incident.
On January 22, 2015 appellant, through counsel, requested a hearing before a hearing
representative with the Branch of Hearings and Review.
In support of her claim, appellant submitted a January 28, 2015 medical report from
Dr. Jaime Alvarez, Board-certified in neurological surgery. Dr. Alvarez reported that he had
operated on appellant 10 years prior for a right L3-4 microdiscectomy. He provided treatment
the prior spring for recurrent back pain radiating into the right lower extremity. At that time,
appellant was found to have a right L4-5 disc herniation and a left L5-S1 disc herniation.
Appellant improved on her own and was doing well until October 2014 when she fell forward
while carrying a package at work. She complained of moderate central low back pain radiating
across the lower back and pain radiating to the right buttock and anterolateral thigh and shin.
Dr. Alvarez noted that her right leg pain was worse than her low back pain. He further noted that
appellant was a rural carrier and had not worked since the October 2014 injury. Dr. Alvarez
provided findings on physical examination and reviewed the results of a January 28, 2015 MRI
scan of the lumbar spine. He diagnosed bilateral low back pain, noting that appellant continued
to have neurocompression on the right side at L4-5 with a far lateral disc herniation compressing
the right L4 nerve root. Dr. Alvarez further noted degenerative changes at L3-4.
A hearing was held on July 13, 2015. At the hearing, appellant testified that she
sustained a work-related injury in 2003 when her postal truck was rear ended. The injury
required back surgery at L3-4 and after two years of treatment, she had returned to work full duty
without any problems until the most recent work incident in October 2014. Appellant was
advised of the medical evidence needed in support of her claim and the record was held open for
30 days.
By decision dated September 29, 2015, OWCP’s hearing representative affirmed the
January 5, 2015 decision, finding that the medical evidence of record failed to establish that her
current lumbar radiculopathy was causally related to the accepted October 29, 2014 employment
incident.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA 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 are causally related to the
employment injury.2 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.3
To determine whether an employee actually sustained an injury in the performance of
duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.4 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.
To establish a 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 supporting such a causal relationship.5 The opinion of the physician
must be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant. This medical opinion must include an accurate history of the
employee’s employment incident and must explain how the condition is related to the incident.
The weight of 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.6
ANALYSIS
OWCP accepted that the October 29, 2014 employment incident occurred as alleged. The
issue is whether appellant established that the incident caused a lumbar injury. The Board finds
that she failed to submit sufficient medical evidence to support that her current lumbar condition
was causally related to the October 29, 2014 employment incident.7

2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Elaine Pendleton, supra note 2.

5

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

6

James Mack, 43 ECAB 321 (1991).

7

See Robert Broome, 55 ECAB 339 (2004).

4

In a December 8, 2014 medical report, Dr. Fortier reported that appellant sustained an
injury on October 29, 2014 when she was carrying a 40-pound package and stumbled over a dog
while delivering the package to a home. He explained that, when she stumbled, the package and
her arms were flung forward away from her body, and the cantilevered weight of the package
multiplied the force on her back as she awkwardly regained her footing, causing immediate pain
in the right lower back radiating down her right buttock, thigh, and lower leg. Dr. Fortier
diagnosed acute lumbar radiculopathy which started at the time of the injury and could be
explained by the mechanism of injury noted in the history of his report.
The Board finds that the opinion of Dr. Fortier is not sufficiently rationalized. Dr. Fortier
noted a history of lumbar fusion at L3-4 in 2003. Appellant reported that after the lumbar fusion
she had occasional self-limited back pain, but no pain radiating to her leg until this injury. The
Board notes that Dr. Fortier based his report on an inaccurate medical history as Dr. Alvarez’
report claimed that appellant had continued complaints of right leg pain stemming back as early
as spring 2014. The Board further notes that appellant has alleged that she had no prior right leg
pain, but this allegation is inconsistent with the medical evidence of record.
Dr. Fortier did not address how appellant’s current complaints could not have been
caused by her preexisting injury nor did he discuss whether her preexisting injury had progressed
beyond what might be expected from the natural progression of that condition.8 A wellrationalized opinion is particularly warranted when there is a history of preexisting condition.9
Moreover, while Dr. Fortier diagnosed acute lumbar radiculopathy, he indicated that a lumbar
MRI would have been necessary to accurately assess appellant’s injury. Thus, Dr. Fortier did not
have a complete medical history to provide an opinion on appellant’s injury and the cause of her
condition. Medical reports without adequate rationale on causal relationship are of diminished
probative value and do not meet an employee’s burden of proof.10 The opinion of a physician
supporting causal relationship must rest on a complete factual and medical background supported
by affirmative evidence, address the specific factual and medical evidence of record, and provide
medical rationale explaining the relationship between the diagnosed condition and the
established incident or factor of employment.11 Given this assessment, Dr. Fortier has failed to
establish that appellant’s symptoms and injury are causally related to the October 29, 2014
employment incident.12
Dr. Alvarez’s January 28, 2015 medical report is also insufficient to establish appellant’s
claim. Dr. Alvarez reported performing the right L3-4 microdiscectomy 10 years prior. He
further noted treating appellant in spring 2014 for recurrent back pain radiating into the right
lower extremity where she was found to have a right L4-5 disc herniation and a left L5-S1 disc
herniation. Dr. Alvarez’ interpretation of the January 28, 2015 lumbar MRI scan indicated
neurocompression on the right side at L4-5 with a far lateral disc herniation compressing the
8

R.E., Docket No. 14-868 (issued September 24, 2014).

9

T.M., Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

10

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

11

See Lee R. Haywood, 48 ECAB 145 (1996).

12

The Board has held that an opinion that a condition is causally related because the employee was asymptomatic
before the injury is insufficient, without adequate rationale, to establish causal relationship. Supra note 9.

5

right L4 nerve root and degenerative changes at L3-4. Any medical opinion evidence appellant
may submit to support her claim should reflect a correct history and offer a medically-sound
explanation by the physician of how the specific employment incident, in particular
physiologically, caused or aggravated her lumbar injury.13 Dr. Alvarez’ report supports that the
current symptoms are related to appellant’s preexisting condition and not the October 29, 2014
incident.14
The remaining medical evidence of record is also insufficient to establish causal
relationship between appellant’s lumbar injury and the October 29, 2014 employment incident.
Dr. Prada’s November 2, 2014 report provided a diagnosis of radiculopathy but failed to provide
any opinion regarding the cause of appellant’s injury. Dr. Gerson’s November 2, 2014 report
interpreted diagnostic imaging studies and provided no opinion on the cause of appellant’s
injury. The Board has held that medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value.15
The December 4, 2014 nursing notes are also insufficient to establish appellant’s claim.
Registered nurses, physical therapists, and physician assistants, are not considered physicians as
defined under FECA. Their opinions are of no probative value regarding the medical issue of
causal relationship.16 Any medical opinion evidence appellant may submit to support her claim
should reflect a correct history and offer a medically sound explanation by the physician of how
the specific employment incident, in particular physiologically, caused or aggravated her lumbar
condition.17
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.18 An award of compensation may not
be based on surmise, conjecture, speculation, or on the employee’s own belief of causal
relation.19 Appellant’s honest belief that the October 29, 2014 employment incident caused her
medical injury is not in question, but that does not constitute the medical evidence necessary to
establish causal relationship.20

13

T.G., Docket No. 14-751 (issued October 20, 2014).

14

See L.M., Docket No. 14-973 (issued August 25, 2014); R.G., Docket No. 14-113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-548 (issued November 16, 2012).
15

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

16

5 U.S.C. § 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
defined by State law. FECA provides that 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. See also Roy L. Humphrey, 57 ECAB 238 (2005).
17

Supra note 15.

18

Daniel O. Vasquez, 57 ECAB 559 (2006).

19

D.D., 57 ECAB 734 (2006).

20

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

6

In the instant case, the record lacks rationalized medical evidence establishing causal
relationship between the October 29, 2014 employment incident and appellant’s lumbar
radiculopathy. Thus, appellant has failed to meet her 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 10.607.21
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a lumbar
condition causally related to the October 29, 2014 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated September 29, 2015 is affirmed.
Issued: May 11, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

21

The record contains a Form CA-16 signed by the employing establishment official on November 1, 2014.
When the employing establishment properly executes a Form CA-16 which authorizes medical treatment as a result
of an employee’s claim for an employment-related injury, the CA-16 form creates a contractual obligation, which
does not involve the employee directly, to pay for the cost of the examination or treatment regardless of the action
taken on the claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days from the
date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB
608 (2003). The record is silent as to whether OWCP paid for the cost of appellant’s examination or treatment for
the period noted on the form.

7


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Brooklyn, NY, Employer
)
___________________________________________ )
D.R., Appellant

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

Docket No. 13-1496
Issued: December 23, 2013

Case Submitted on the Record

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

JURISDICTION
On June 11, 2013 appellant filed a timely appeal from the May 31, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on April 12, 2013.
FACTUAL HISTORY
On April 15, 2013 appellant, then a 41-year-old mail carrier, filed a traumatic injury
claim alleging that on April 12, 2013 she felt pain in her right shoulder and down her back, hip,
thigh and knee while in the performance of duty. She stated that heavy mail placed a strain on
1

5 U.S.C. § 8101 et seq.

her body. The employing establishment controverted the claim. Appellant stopped work on
April 13, 2013.
In an April 12, 2013 statement, appellant related that she hurt her back and right knee but
did not see a physician or go to the emergency room. She walked up and down stairs while
carrying heavy mail which caused pain in her back, shoulder and right knee.
In an April 18, 2013 statement, Elizabeth Chan, a human resources specialist with the
employing establishment, controverted the claim. She noted that appellant had a foot route
delivery and used a carrier cart on her route. The satchel was part of a carrier cart and it carried
the mail and it was not feasible to detach it or place it on the shoulder to deliver mail up and
down stairs. Carriers were taught to use a cradle position when delivering the mail, with flats
placed on the forearm and the letter size mail on the hand. The other hand was free to use the
handrail and the weight of the bundle was no greater than five pounds. Kenneth Mui, a
supervisor, questioned how appellant could have injured herself carrying mail up and down
stairs. He also stated that the mail weighed no greater than five pounds.
In reports dated April 15, 2013, Dr. Leon M. Bernstein, a Board-certified orthopedic
surgeon, diagnosed a strain, sprain of the right knee, sprain of the right shoulder and strain/sprain
of the lumbar and cervical spine. He advised that appellant was totally disabled from work and
would be reexamined on April 29, 2013. OWCP also received an April 15, 2013 physical
therapy prescription. In an April 17, 2013 attending physician’s report, Dr. Bernstein noted that
appellant starting using a push cart for three weeks and checked the box “yes” in response to
whether he believed that her condition was caused or aggravated by an employment activity. He
continued to treat her and place her off work.
By letter dated April 29, 2013, OWCP advised appellant that additional factual and
medical evidence was needed. It requested a physician’s opinion on the issue of causal relation
and allotted her 30 days to submit additional information.
OWCP received an April 29, 2013 progress note from Dr. Bernstein addressing
appellant’s complaints of right shoulder and right knee pain. Dr. Bernstein noted findings and
advised her to return in two to three weeks.2 In an accompanying April 29, 2013 duty status
report, he diagnosed a sprain/strain of the cervical spine, right shoulder and right knee.
Dr. Bernstein advised that appellant could not perform her regular duties and had been disabled
since the April 12, 2013 injury. OWCP received physical therapy notes dated April 17 to
May 7, 2013.
On May 24, 2013 OWCP received an undated response from appellant, who described
her injury. Appellant explained that she was walking in front of 45-80 157 Street on April 12,
2013 around 3:00 p.m. when she experienced pain in her right shoulder, back, hip, thigh and
knee. She had been working the same route since March 11, 2013. Appellant explained that the
mail was always heavy on her route and that the first relay on the push cart was always heavily
loaded with heavy flats. The journey from the first house was 25 to 30 minutes one way on foot
loaded with heavy mail and the roads were steep. Appellant alleged that pushing the heavy carts
2

Portions of the note are not legible.

2

for 30 minutes everyday for five weeks made her right shoulder, back, hip, thigh and knee
painful. She also explained that 50 percent of the houses had 12 to 15 steps and that even with
five pounds of mail to carry, 12 to 15 steps for almost two hours a day contributed to her
condition. Appellant denied any prior history of injury.
By decision dated May 31, 2013, OWCP denied appellant’s claim. It accepted that the
April 12, 2013 incident occurred but denied the claim on the grounds that the medical evidence
was insufficient to establish causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA3 and that an injury was sustained in the performance of duty.4 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.6 The second
component is whether the employment incident caused a personal injury and generally this can
be established only by medical evidence.7 The employee must submit medical evidence to
establish that the employment incident caused a personal injury.8 The medical evidence required
to establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.9

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

James E. Chadden, Sr., 40 ECAB 312 (1988).

5

Delores C. Ellyett, 41 ECAB 992 (1990).

6

Charles B. Ward, 38 ECAB 667 (1987).

7

See John J. Carlone, 41 ECAB 354, 357 (1989).

8

Id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

9

Id.

3

ANALYSIS
Appellant alleged that on April 12, 2013 she walked up and down stairs carrying mail and
felt pain in her right shoulder down her back, hip, thigh and knee. OWCP accepted the incident
as alleged.
The Board finds that the medical evidence is insufficient to establish that the employment
incident caused an injury. The medical reports of record do not adequately address how walking
on her postal route caused a personal injury on April 12, 2013. The medical evidence contains
insufficient explanation of how the accepted employment incident caused or aggravated an
injury.10
Dr. Bernstein diagnosed a strain, sprain of the right knee, sprain of the right shoulder and
strain/sprain of the lumbar and cervical spine. He advised that appellant was totally disabled
from work since the date of injury, but Dr. Bernstein did not offer a specific opinion as to how
the April 12, 2013 work incident caused or contributed to her diagnosed conditions.11
In the April 17, 2013 attending physician’s report, Dr. Bernstein noted that appellant
starting using a push cart for three weeks and checked the box “yes” in response to whether he
believed that her condition was caused or aggravated by an employment activity. However, this
was insufficient to establish fact of injury. The Board has held that an opinion on causal
relationship which consists only of a physician checking “yes” to a medical form report question
on whether the claimant’s condition was related to the history given is of little probative value.
Without any explanation or rationale for the conclusion reached, such report is insufficient to
establish causal relationship.12
Appellant also submitted copies of physical therapy notes dating from April 17 to
May 7, 2013. Section 8101(2) of FECA provides that the term physician includes surgeons,
podiatrist, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law.13 Physical therapists are
not considered physicians as defined under FECA and thus their reports do not constitute
competent medical evidence.14
Because the medical reports submitted by appellant do not address how the April 12,
2013 activities at work caused or aggravated a condition in the shoulder, back, hip, thigh or knee,
10

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
11

See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding that medical evidence which does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
12

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

13

5 U.S.C. § 8101(2).

14

Id; J.M., 58 ECAB 448 (2007); G.G., 58 ECAB 389 (2007); David P. Sawchuk, 57 ECAB 316 (2006); Allen C.
Hundley, 53 ECAB 551 (2002).

4

these reports are of limited probative value15 and are insufficient to establish that the April 12,
2013 employment incident caused or aggravated a specific injury.
Appellant may submit evidence or argument with a written request for reconsideration
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 in establishing that she
sustained an injury in the performance of duty on April 12, 2013.
ORDER
IT IS HEREBY ORDERED THAT the May 31, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 23, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

15

See Linda I. Sprague, 48 ECAB 386, 389-90 (1997).

5