United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Memphis, TN, Employer
__________________________________________

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

Docket No. 14-149
Issued: April 10, 2014

Case Submitted on the Record

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

JURISDICTION
On October 28, 2013 appellant, through her attorney, filed a timely appeal from an
August 12, 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 to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant is entitled to continuation of pay for the period
August 23 through October 6, 2011; and (2) whether appellant established that she was disabled
for the periods January 4 through 13 and January 18 through 26, 2012.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 22, 2011 appellant, then a 47-year-old contact representative, sustained injury
when a cubicle slat fell on her head resulting in blurred vision. In a letter dated September 7,
2011, OWCP requested additional factual and medical evidence in support of her claim.
On August 22, 2011 Dr. Ravi K. Madasu, a Board-certified internist, diagnosed contusion
of face and neck sprain. Appellant underwent cervical magnetic resonance imaging (MRI) scan
on August 22, 2011 which demonstrated multilevel degenerative changes without fracture or
dislocation. The hospital records indicate that she sustained a contusion of her head on
August 22, 2011. Dr. Eric D. Blakney, a Board-certified internist, completed an undated work
capacity evaluation and diagnosed head injury. He stated that appellant had a severe headache
preventing work and could return to work eight hours a day on September 19, 2011. On
September 14, 2012 Dr. Blakney advised that she was partially disabled and could not work
eight hours until September 19, 2011.
On October 13, 2011 OWCP accepted appellant’s claim for sprain of the neck and
contusion of the face, scalp and neck. Appellant returned to work for four hours on October 12,
2011 and went home with a headache. She returned to work on October 17, 2011 for eight hours
and stopped work on October 18, 2011.
Dr. Blakney examined appellant on August 26, 2011 and diagnosed headache. He noted
that she was struck August 26, 2011 on the head by equipment and that she reported continued
headache and dizziness. On September 2, 2011 Dr. Blakney examined appellant due to shoulder
pain and upper back pain. He saw her on October 10, 2011 due to headaches. On October 19,
2011 appellant reported shoulder, neck and back pain due to her employment injury. On
October 25, 2011 Dr. Blakney noted that she reported that her neck and head hurt from her work
injury when a cubicle hit her on the head. He diagnosed allergic rhinitis and cervicalgia.
On November 4, 2011 the employing establishment requested that OWCP adjudicate
appellant’s entitlement to continuation of pay for 37 days from August 23 to October 6, 2011. It
advised that she had received continuation of pay from August 23 through October 6, 2011. In a
letter dated November 22, 2011, OWCP requested additional medical evidence from appellant
supporting her claimed periods of disability.
Dr. Blakney examined appellant on November 1, 2011. He diagnosed cervical disc
degeneration and cervalgia. On November 21, 2011 Dr. Blakney saw her for cervicalgia, neck
pain and blurred vision in the right eye. Appellant also submitted notes from a physical therapist
and a nurse practitioner.
In a letter dated December 9, 2011, appellant stated that her work activities consisted of
sitting at a desk all day. She noted that she tried to go to work several times but after sitting
down for hours at a time she developed sharp pain in her head and neck, migraine headaches and
blurred vision in her right eye. Appellant stated that she had trouble sleeping at night and
difficulty getting out of bed.

2

By decision dated January 6, 2012, OWCP denied appellant’s claim for compensation
from October 11 through December 20, 2011. It found that she failed to submit sufficient
medical evidence to establish that she was disabled due to her accepted employment-related
injuries. OWCP noted that appellant returned to work on December 21, 2011.
Appellant filed a claim for compensation requesting compensation for leave without pay
used from January 4 through 13, 2012. In letters dated January 25 and February 2, 2012, OWCP
requested that she provide medical evidence in support of her claimed periods of disability and
allowed 30 days for a response.
Dr. Blakney completed a work capacity evaluation on January 17, 2012. He indicated
that appellant was not capable of performing her date-of-injury position due to severe neck pain.
Dr. Blakney opined that she was totally disabled but could return to work for eight hours a day
on December 21, 2011.
On January 21, 2012 appellant filed a claim for compensation requesting compensation
for leave without pay from January 18 through 26, 2012.
By decision dated May 8, 2012, OWCP denied appellant’s claim for compensation for
the periods January 4 through 13 and January 18 through 26, 2012 due to wage loss while
attending physical therapy. It also denied her claim for continuation of pay for the period
August 23 through October 6, 2012.
Appellant requested reconsideration on June 1, 2012. She submitted documentation that
she underwent nerve conduction studies and an electromyogram (EMG) on December 20, 2011
which demonstrated mild bilateral carpal tunnel syndrome.
Appellant underwent a cervical MRI scan on November 14, 2011 which demonstrated
mild multilevel degenerative changes with no evidence of spinal stenosis or neural foraminal
stenosis at any cervical level.
Dr. Thirukandeeswaram R. Swaminathan, Board-certified in neurology and sleep
medicine, examined appellant on December 5, 2011. He noted history of injury and her
complaint of neck pain on the right, aggravated by prolonged sitting at work. Dr. Swaminathan
found that appellant had no focal neurological deficit and that her MRI scan did not show any
significant abnormalities of the cervical spine to account for her symptoms.
In a decision dated August 8, 2012, OWCP denied modification of its prior decisions. It
found that there was insufficient medical evidence to establish that appellant’s August 22, 2011
employment injury resulted in disability for work from August 23 through October 6, 2011
requiring continuation of pay or from January 4 through 26, 2012 requiring wage-loss
compensation.
On January 31, 2013 counsel requested that OWCP include a shoulder condition due to
appellant’s accepted injury.
Appellant requested reconsideration on July 9, 2013. On June 17, 2013 Dr. Blakney
noted that she sustained an on-the-job injury on August 22, 2011 resulting in neck pain and
3

headaches. He stated that appellant had underlying cervical disc disease, which was not a
problem until her employment injury. Dr. Blakney stated, “I feel that [appellant’s] complaints
and inability to work were possibly caused by a combination of the on-the-job injury and her
underlying disc disease, which kept her from working from August 22 through October 6, 2011.”
By decision dated August 12, 2013, OWCP denied modification, finding that the medical
evidence was not sufficient to establish that appellant was disabled due to her accepted
employment injuries from August 23 through October 6, 2011; January 4 through 13 or
January 18 through 26, 2012. It noted that counsel argued that she sustained an aggravation of a
preexisting cervical condition resulting in disability for the claimed periods.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.3 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.4 For each period of disability claimed, the employee has the burden of establishing that
he or she was disabled for work as a result of the accepted employment injury. Whether a
particular injury causes an employee to be disabled for employment and the duration of that
disability are medical issues which must be proved by a preponderance of the reliable, probative
and substantial medical evidence.5
Section 8118 of FECA6 provides for payment of continuation of pay, not to exceed 45
days, to an employee “who has filed a claim for a period of wage loss due to a traumatic injury
with his [or her] immediate superior on a form approved by the Secretary of Labor within the
time specified in section 8122(a)(2) of this title.”7 In order to establish entitlement to
continuation of pay, an employee must establish, on the basis of reliable, probative and
substantial evidence, that he or she was disabled as a result of a traumatic employment injury.
As part of this burden, he or she must furnish medical evidence from a qualified physician who,
based on a complete and accurate history, concludes that the employee’s disability for specific
periods was causally related to such injury.8

2

Id. at §§ 8101-8193.

3

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

4

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
5

See Fereidoon Kharabi, 52 ECAB 291 (2001).

6

5 U.S.C. § 8118.

7

Id. at § 8122(a)(2).

8

G.M., Docket No. 13-1538 (issued December 17, 2013); Carol A. Dixon, 43 ECAB 1065 (1992).

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ANALYSIS -- ISSUE 1
On August 22, 2011 appellant sustained a traumatic injury in the performance of duty
when a panel of a cubicle fell and struck her forehead. OWCP accepted her claim for contusion
to the face, head and neck and neck strain. Appellant claimed continuation of pay for the period
August 23 through October 6, 2011. As noted she has the burden of proof to establish that she
lost time from work due to her accepted employment injury.
Dr. Blakney completed work capacity evaluations and diagnosed a head injury. He
indicated that appellant could return to work eight hours a day on September 19, 2011. The
Board finds that the reports from Dr. Blakney are sufficient to establish that she was disabled
following her injury on an intermittent basis from August 23 to September 19, 2011. Appellant
did not submit any medical evidence to establish that she lost time from work due to the
August 22, 2011 injury on or after September 19, 2011. There is no contemporaneous medical
evidence to support her claim to continuation of pay from September 19 through
October 6, 2011. Dr. Blakney released her to full restricted duty as of September 19, 2011.
Dr. Blakney completed a note on June 17, 2013 and noted that appellant sustained an
on-the-job injury on August 22, 2011 resulting in neck pain and headaches. He noted that she
also had underlying cervical disc disease, which was not a problem until her employment injury.
Dr. Blakney stated, “I feel that [appellant’s] complaints and inability to work were possibly
caused by a combination of the on-the-job injury and her underlying disc disease which kept her
from working from August 22 through October 6, 2011.” This report is not contemporaneous to
appellant’s claimed period of disability. Dr. Blakney did explain why he originally advised that
she could return to work on September 19, 2011. Moreover, his opinion is speculative. Due to
these discrepancies, appellant has not established any additional period of disability for which
continuation of pay is warranted.
LEGAL PRECEDENT -- ISSUE 2
Findings on examination are generally needed to support a physician’s opinion that an
employee is disabled for work. When a physician’s statements regarding an employee’s ability
to work consist only of repetition of the employee’s complaints that he or she hurts too much to
work, without objective findings of disability being shown, the physician has not presented a
medical opinion on the issue of disability or a basis for payment of compensation.9 The Board
will not require OWCP to pay compensation for disability in the absence of any medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.10
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.11 Rationalized medical evidence is medical
9

Id.

10

Id.

11

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

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evidence which includes a physician’s rationalized medical 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.12 Neither the fact that
a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.13
ANALYSIS -- ISSUE 2
Appellant filed additional claims for compensation after October 6, 2011. She claimed
intermittent periods of total disability due to her August 22, 2011 employment injury. The Board
finds that appellant failed to submit detailed medical opinion supporting intermittent periods of
disability due to her accepted head contusion or neck sprain.
Dr. Blakney completed a work restriction evaluation on January 17, 2013. He indicated
that appellant experienced a period of disability, which ended on December 21, 2011 due to her
neck condition. Dr. Blakney did not specify when the period of disability began or explain how
her neck sprain rendered her totally disabled four months after the injury. The Board finds that
this report lacks the physical findings and medical reasoning necessary to meet appellant’s
burden of proof in establishing intermittent disability on or after September 19, 2011 due to her
accepted employment injuries.
Dr. Swaminathan’s December 5, 2011 report did not address any period of disability. He
did not attribute appellant’s current symptoms to her accepted employment injury. This report
does not provide medical support to establish her claim for periods of disability after
September 19, 2011 due to her accepted employment injury.
Appellant also submitted notes from physical therapists and nurse practitioners. These
professionals are not defined as physicians under FECA and they are not competent to render a
medical opinion.14 As the reports are not medical evidence, the reports cannot establish a period
of disability due to appellant’s accepted employment injuries.
The Board finds that appellant has no medical evidence to establish periods of disability
after September 19, 2011 due to her accepted employment 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.
12

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

13

Dennis M. Mascarenas, 49 ECAB 215 (1997).

14

G.G., 58 ECAB 389 (2007); 5 U.S.C. § 8101(2).

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CONCLUSION
The Board finds that the medical evidence supports that appellant was disabled due to her
employment injury from August 22 to September 19, 2011. The Board further finds that the
record does not contain in the necessary medical opinion evidence to establish any other periods
of disability due to appellant’s accepted employment injuries of neck sprain and head, face and
scalp contusion.
ORDER
IT IS HEREBY ORDERED THAT the August 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: April 10, 2014
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edison, NJ, Employer
__________________________________________

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Appearances:
Andrew M. Baron, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1365
Issued: May 8, 2019

Case Submitted on the Record

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

JURISDICTION
On June 2, 2017 appellant, through counsel, filed a timely appeal from a December 6, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

1

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

Appellant timely requested oral argument. By order dated October 12, 2017, the Board exercised its discretion
and denied her request as appellant’s arguments on appeal could be adequately addressed in a decision based on a
review of the case record. Order Denying Request for Oral Argument, Docket No. 17-1365 (issued October 12, 2017).

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.4
ISSUE
The issue is whether appellant has met her burden of proof to establish that the acceptance
of her claim should be expanded to include additional diagnosed conditions causally related to the
accepted May 24, 2011 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.5 The facts and circumstances set forth in
the prior Board decisions are incorporated herein by reference. The relevant facts are as follows.
On May 24, 2011 appellant, then a 38-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on that date, she fell on a wet dock while in the performance of duty,
landing on both knees and twisting her ankle. She stopped work on the date of injury and did not
return.
In support of her claim, appellant submitted medical evidence including a duty status report
(Form CA-17), dated May 24, 2011, which contained an illegible diagnosis due to the injury and
illegible signature.
A May 24, 2011 note from a nurse practitioner indicated that appellant complained of pain
in the left knee and medial aspect of the patella and left ankle. The nurse practitioner noted that
appellant slipped and fell at work, injuring her knees and her left ankle. She diagnosed a sprain
and strain of the medial collateral ligament (MCL) of the left knee, and sprain and strain of the left
tibiofibular.
In a May 25, 2011 report, Dr. Fauzia Hameed, a Board-certified internist, diagnosed left
knee pain and left knee sprain/strain, and placed appellant off work. She noted that appellant
presented with acute left knee pain of moderate-to-severe intensity and advised that appellant’s
symptoms started after she slipped on a piece of metal the prior day at work, causing her to fall
onto the floor and landing with her left knee bent under her ankle. Dr. Hameed noted that appellant
had twisted her ankle as well. She advised that appellant felt sharp pain in her left knee, but was
able to stand and walk. Dr. Hameed indicated that appellant was seen in the emergency room

3

5 U.S.C. § 8101 et seq.

4

The Board notes that following the December 6, 2016 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
5
Docket No. 13-0605 (issued October 21, 2013); Order Granting Remand and Cancelling Oral Argument, Docket
No. 14-2045 (issued April 22, 2015).

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where she was provided with an ankle brace and crutches. She diagnosed left knee effusion and
left knee sprain, and ruled out meniscal injury.
By development letter dated June 3, 2011, OWCP informed appellant that the evidence
received was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30
days to provide the requested information.
Appellant subsequently submitted additional medical evidence. A June 3, 2011 magnetic
resonance imaging (MRI) scan of the left knee, read by Dr. Michael Kessler, a radiologist, revealed
a highly suspicious tear of the anterior horn of the lateral meniscus, advanced chondromalacia of
the patella, and small joint effusion with a one centimeter Baker’s cyst.
In a June 22, 2011 report, Dr. Hameed diagnosed left knee meniscal injury/tear and knee
sprain and strain. She completed an attending physician’s report (Form CA-20) also dated
June 22, 2011. Dr. Hameed noted that appellant slipped and fell at work on May 24, 2011, landing
on her knees and hands. She indicated that the magnetic resonance imaging (MRI) scan revealed
a lateral meniscus tear and diagnosed a meniscal injury. Dr. Hameed indicated that she did not
believe the condition was caused or aggravated by an employment activity.
In reports dated June 14 and August 4, 2011, an individual with an illegible signature,
diagnosed vertebral subluxation, complex lumbar spine, lumbar disc displacement, and meniscal
injury and tear. Appellant was designated as totally incapacitated, and scheduled for a reevaluation
on July 14, 2011.
OWCP also received physical therapy notes dated June 6, 7, and 8, 2011, which diagnosed
left lateral meniscus tear, knee pain, and lumbar sprain/strain and noted treatment for right knee,
left knee, and back conditions.
On July 11, 2011 OWCP accepted the claim for left knee sprain and paid appellant
compensation benefits.
Appellant continued to submit additional medical evidence. In a July 25, 2011 attending
physician’s report (Form CA-20), Dr. Hameed noted that appellant slipped and fell at work and
landed on her knees and hands on May 24, 2011. She diagnosed a left lateral meniscus tear based
on an MRI scan. Dr. Hameed indicated that she did not believe the condition was caused or
aggravated by employment activity.
OWCP also received treatment notes from Dr. Mark Zientek, a chiropractor, dated June 8,
14, 15, and 16, 2011. Dr. Zientek diagnosed vertebral subluxation complex, lumbar spine; and
displacement of lumbar intervertebral disc without myelopathy. He, in notes dated June 29 to
October 6, 2011, diagnosed of vertebral subluxation complex, lumbar spine; and displacement of
lumbar intervertebral disc with myelopathy.
In July 27 and August 3, 2011 reports, Dr. Jeffrey M. Warshauer, a Board-certified
orthopedic surgeon and osteopath, noted appellant’s history of injury and treatment and examined
appellant’s left knee. He diagnosed torn left lateral meniscus with preexisting chondromalacia
patella. Dr. Warshauer recommended surgical arthroscopy. On August 10, 2011 he completed a
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work capacity evaluation (Form OWCP-5c) and indicated that appellant could return to her
regular, full-duty job.
Dr. Hameed, in reports dated August 1 and 29, and September 7, 2011, diagnosed left knee
meniscal injury, right ankle sprain, and right knee sprain.
OWCP also received physical therapy notes dated June 28 to October 3, 2011, regarding
treatment for left lateral meniscus tear, knee pain, and lumbar sprain/strain. The notes indicated
that the areas treated were appellant’s right knee, left knee, neck, and back.
On August 26, 2011 OWCP referred appellant to Dr. Jeffrey Lakin, a Board-certified
orthopedic surgeon, for a second opinion examination to determine the nature and extent of
appellant’s accepted left knee condition. Dr. Lakin, in a September 9, 2011 report, described
appellant’s history, noted his examination of appellant’s left hip and lower extremity, and provided
findings. He noted that appellant underwent an MRI scan of her left knee, which revealed minimal
chondromalacia to the patella, no meniscal tears, and intact ligaments. Dr. Lakin also advised that
June 3, 2011 x-rays revealed a highly suspicious tear of the anterior horn of the lateral meniscus,
advanced chondromalacia of the patella, and small joint effusion with a one centimeter Baker’s
cyst. He indicated that appellant sustained a sprain to the left knee and that, based upon his
evaluation, she had excellent strength and excellent motion to the knee with no disabling residuals.
Dr. Lakin advised that appellant needed no further treatment for her left knee sprain and had no
further disability. He also indicated that appellant did not have any concurrent nonwork-related
disability. Dr. Lakin advised that appellant did not suffer any other additional injuries on
May 24, 2011.6
OWCP subsequently received a September 28, 2011 report from Dr. Hameed, which
diagnosed left knee injury and knee pain. In a February 4, 2012 treatment note, Dr. Hameed noted
that appellant was diagnosed with knee pain, chondromalacia patella, and suprapatella bursitis.
She placed appellant off work until March 9, 2012.
OWCP also received a February 28, 2012 chiropractic treatment note, wherein Dr. Zientek
diagnosed exacerbation of spinal condition, lumbosacral muscle spasms, sacroiliac joint
dysfunction, and vertebral subluxation complex (VSC) of the lumbar spine.
By decision dated March 31, 2014, OWCP terminated appellant’s medical benefits for her
accepted left knee condition, effective that date.
Appellant appealed to the Board. By order dated April 22, 2015, the Board granted the
Director of OWCP’s motion to remand and cancel oral argument. The Board accordingly set aside
the July 25, 2012 decision and remanded the case so that OWCP could seek clarification from
By decision February 3, 2012, OWCP terminated appellant’s medical benefits, effective February 6, 2012, on the
grounds that she had no continuing residuals of her accepted left knee injury. By decision dated July 25, 2012, an
OWCP hearing representative affirmed the February 3, 2012 decision. Appellant appealed to the Board. By decision
dated October 21, 2013, the Board reversed the July 25, 2012 decision and remanded the case, finding that Dr. Lakin’s
second opinion was insufficiently rationalized. On remand OWCP further developed the claim by referring appellant
to Dr. William Oppenheim, a Board-certified orthopedic surgeon for a new second opinion examination.
Dr. Oppenheim issued a January 28, 2014 report opining that the employment-related injury had ceased.
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Dr. Oppenheim regarding appellant’s ability to work. The Board further ordered OWCP to allow
appellant an opportunity to submit relevant evidence if she claimed other conditions as causally
related to the accepted employment injury.7
On remand OWCP requested that appellant submit relevant evidence regarding any
additional conditions that she believed were causally related to the accepted employment injury of
May 24, 2011. It also requested a second opinion examination with Dr. Donald Heitman, a Boardcertified orthopedic surgeon to determine whether appellant continued to have residuals or
disability due to the accepted May 24, 2011 employment injury.
In a December 7, 2015 report, Dr. Heitman noted appellant’s history of injury and
treatment, and provided examination findings. He noted that appellant is status post left anterior
cruciate ligament reconstruction and that she has some subtle instability in the left knee and does
suffer from disabling residuals of the accepted left knee condition. Dr. Heitman recommended no
further treatment and determined that appellant could return to work eight hours per day with
limited standing. He further opined that the acceptance of the claim should not be expanded to
include any additional conditions.
Appellant subsequently submitted additional evidence. OWCP received an August 17,
2015 duty status report (Form CA-17) with an illegible signature and diagnoses.
In a series of reports dated August 4, 2014 through February 6, 2015, Dr. Jennifer Gyi,
Board-certified in physical medicine and rehabilitation, diagnosed multiple joint and muscle pains,
low back pain, right ankle and hand swelling, lumbar facet syndrome, possible myofascial pain,
and rheumatoid arthritis.
A December 13, 2013 MRI scan of the lumbar spine read by Dr. Specktor revealed:
anatomic alignment of the lumbar spine with no evidence of fracture or conus compression; mild
multilevel degenerative disc disease and mild bilateral facet joint hypertrophy at L3-4, L4-5, and
L5-Sl; and a small right paracentral disc herniation, protrusion type with annular fibrosis fissure,
without spinal canal stenosis or nerve compression.
In an August 17, 2015 report, Dr. Jackson Okoya, a Board-certified internist, opined that
appellant was disabled and restricted her to limited-duty work to include no more than one hour
of sitting or standing; and no walking, climbing, kneeling, bending, stooping, reaching above
shoulder, or driving a vehicle.
In May 2016, OWCP referred appellant for another second opinion examination with
Dr. Heitman, specifically to determine whether the acceptance of the claim should be expanded to
include right knee and back conditions.
In a June 6, 2016 report, Dr. Heitman advised that appellant’s chief complaint was left knee
pain. His findings included: that appellant walked without a limp; that she had medial and lateral
femoral tibial joint line tenderness; and lateral and medial patellofemoral joint line tenderness.
Dr. Heitman also found tenderness over the bursal region over the site of the tibial tunnel and full
7

Order Granting Remand and Cancelling Oral Argument, Docket No. 14-2045 (issued April 22, 2015).

5

range of motion of the knee. He opined that the clinical findings supported the accepted condition
of a sprained left knee and leg. Dr. Heitman explained that appellant had an element of posttraumatic arthrosis in the left knee, which was related to her employment-related injury and was
delaying her recovery. He opined that appellant’s post-traumatic arthrosis developed over time
due to the work-related conditions and was permanent. Dr. Heitman noted that she would not be
able to stand long enough to adequately perform her duties as a mail carrier. He opined that
appellant could perform sedentary positions and was not totally disabled from work.
With regard to the right knee and back, Dr. Heitman explained that appellant had no
complaints of pain in those parts of her body. He opined that there was no causal relationship
between the right knee or back and the employment injury; and the acceptance of the claim “should
not be expanded.”
By letter dated August 24, 2016, OWCP requested clarification from Dr. Heitman
regarding whether appellant was disabled from work since the May 24, 2011 injury due to the
accepted condition.
In a September 2, 2016 supplemental report, Dr. Heitman explained that appellant was not
disabled since May 24, 2011. Based upon the history provided and records reviewed, he found
that appellant was able to work full duty until her December 7, 2012 left knee surgery, and
following the surgery, she would have been able to return to work with restrictions. Dr. Heitman
explained that it was not uncommon to have subtle instability as seen on examination today, a few
years after that type of procedure. He noted that his restrictions would be from the December 7,
2012 until the present.
By decision dated December 6, 2016, OWCP denied expansion of the acceptance of
appellant’s claim to include the additional conditions of right knee sprain, lumbar facet syndrome,
vertebral subluxation complex lumbar spine, displacement of lumbar intervertebral disc without
myelopathy, and left or right ankle sprain. It found that the medical evidence of record was
insufficient to establish causal relationship between those diagnosed conditions and the accepted
employment injury.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.8 To establish causal relationship between the condition,
as well as any attendant disability claimed and the employment event or incident, the claimant
must submit rationalized medical opinion evidence based on a complete factual and medical
background, supporting such causal relationship.9 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

8

See V.B., Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200 (2004).

9

See M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

6

between the diagnosed condition and the specific employment factors identified by the claimant.10
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.11
ANALYSIS
The Board finds that appellant has not established that the acceptance of her claim should
be expanded to include the additional conditions of lumbar facet syndrome, vertebral subluxation
complex lumbar spine, displacement of lumbar intervertebral disc without myelopathy, right knee
sprain, and left or right ankle sprain.
In his second opinion reports, Dr. Heitman described the May 24, 2011 employment injury
and discussed his findings. In his reports, he was clear in concluding that appellant’s additional
conditions were not causally related to the accepted injury. Dr. Heitman explained that there was
no objective evidence to link appellant’s claimed right knee and back injuries to her accepted
May 24, 2011 employment injury. As his reports were sufficiently rationalized and based on an
accurate factual history, Dr. Heitman’s opinion constitutes the weight of the medical evidence.
Dr. Hameed initially diagnosed left knee pain, left knee sprain and strain and placed her
off work. In a May 25, 2011 report, she noted that appellant presented with acute knee pain of
moderate to severe intensity after a fall and diagnosed knee effusion, knee sprain. In a subsequent
attending physician’s report (Form CA-20), Dr. Hameed indicated that the MRI scan revealed a
lateral meniscus tear and diagnosed a meniscal injury. She indicated that she did not believe the
condition was caused or aggravated by an employment activity.
In reports dated August 1 and 29, and September 7, 2011, Dr. Hameed diagnosed right
ankle sprain, right knee sprain, and various pains. In a February 4, 2012 treatment note, she noted
that appellant was diagnosed with knee pain, chondromalacia patella and suprapatella bursitis.
However, Dr. Hameed did not explain how these diagnoses were causally related to the work injury
of May 24, 2011. While the medical opinion of a physician supporting causal relationship does
not have to reduce the cause or etiology of a disease or condition to an absolute certainty, neither
can such opinion be speculative or equivocal. The opinion of a physician supporting causal
relationship must be one of reasonable medical certainty that the condition for which compensation
is claimed is causally related to federal employment and such relationship must be supported with
affirmative evidence, explained by medical rationale and be based upon a complete and accurate
medical and factual background of the claimant.12 Without further explanation or rationale, these
reports are insufficient to establish that the additional conditions are causally related to the
accepted employment injury.

10

See John W. Montoya, 54 ECAB 306 (2003).

11

See H.H., Docket No. 16-0897 (issued September 21, 2016); James Mack, 43 ECAB 321 (1991).

12

Samuel Senkow, 50 ECAB 370 (1999); Thomas A. Faber, 50 ECAB 566 (1999).

7

The record contains physical therapy notes dated June 6, 7, 8, 28, and October 3, 2011.
Additionally, the record contains a May 24, 2011 note from a nurse practitioner, who indicated
that appellant complained of pain in the left knee and medical aspect of the patella and left ankle.
Physical therapists and nurse practitioners, however, are not considered physicians under FECA.
Thus, they are not competent to render a medical opinion and their reports are of no probative
value.13
OWCP also received diagnostic testing reports dated June 3, 2011, December 13, 2013,
and August 14, 2014. However, the Board has held that diagnostic studies lack probative value as
they do not address whether the employment injury caused any of the diagnosed conditions.14
Appellant submitted chiropractic reports from Dr. Zientek from June 8 to October 6, 2011
and February 28, 2012. Section 8101(2) of FECA provides that the term physician includes
chiropractors only to the extent that their reimbursable services are limited to treatment consisting
of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.15
Dr. Zientek did not diagnose a subluxation based on x-rays.16 In the absence of a diagnosis of
subluxation based on x-rays, he is not considered a physician under FECA. Therefore,
Dr. Zientek’s chiropractic reports are of no probative value.17
The record also contains reports from an individual with an illegible signature dated
June 14 and August 4, 2011, and August 17, 2015. It is unclear if they were from a physician.
The Board has held, a report that is unsigned or bears an illegible signature lacks proper
identification and cannot be considered probative medical evidence.18
OWCP also received a July 27 and August 3, 2011 report from Dr. Warshauer, who
diagnosed a torn lateral meniscus with preexisting chondromalacia patella and requested surgery.
The Board notes these reports merely contained a diagnosis. Medical evidence which does not

13

See 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by state law); see also 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); S.S., Docket No. 18-0950
(issued October 23, 2018) (physical therapists are not considered physicians under FECA); S.J., Docket No. 17-0783,
n.2 (issued April 9, 2018) (nurse practitioners are not considered physicians under FECA); Charley V.B. Harley, 2
ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of
probative medical evidence from a physician).
14

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

15

5 U.S.C. § 8101(2).

OWCP’s implementing federal regulations define subluxation to mean an incomplete dislocation, off-centering,
misalignment, fixation or abnormal spacing of the vertebrae which must be demonstrated on x-ray. See 20 C.F.R.
§ 10.5(bb).
16

17

Michelle Salazar, 54 ECAB 523 (2003).

18

See A.P., Docket No. 18-0238 (issued July 20, 2018).

8

offer an opinion regarding the cause of an employee’s condition is of no probative value on the
issue of causal relationship.19
Dr. Gyi provided a report dated October 27, 2014, in which she diagnosed “multiple joint
and muscle pains.” In a May 19, 2014 report, she diagnosed “lumbar facet syndrome” and
“possible myofascial pain” and in her August 4, 2014 report, she diagnosed “lumbar facet
syndrome” and “rheumatoid arthritis” in her August 4, 2014 report. Because Dr. Gyi did not offer
an opinion on causal relationship between these conditions and the accepted May 24, 2011
employment injury, her opinion is of no probative value.20 In her February 6, 2015 report, she
diagnosed “low back pain,” right ankle and right hand swelling. However, the Board has held pain
is a symptom, not a diagnosis and therefore does not constitute the basis for the payment of
compensation.21
In an August 17, 2015 report, Dr. Okoya merely opined that appellant was disabled and
restricted her to limited-duty work. He did not provide a diagnosis or offer an opinion as to
additional conditions that were related to the May 24, 2011 injury at work. Thus, Dr. Okoya’s
opinion is of no probative value on the issue of causal relationship.22
As Dr. Heitman’s opinion carries the weight of the medical evidence, the Board finds that
appellant has not met her burden of proof.
On appeal counsel argues that OWCP continued to stall and send appellant to physicians
who issued unilateral opinions contrary to her medical condition. However, as explained above,
the Board finds that Dr. Heitman’s opinion carries the weight of the medical evidence. Appellant
has not met 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 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 that the
acceptance of her claim should be expanded to include the additional diagnosed conditions of
lumbar facet syndrome, right knee sprain, and right ankle sprain were causally related to the
May 24, 2011 employment injury.

19

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

20

Id.

21

John L. Clark, 32 ECAB 1618 (1981).

22

L.B. supra note 19.

9

ORDER
IT IS HEREBY ORDERED THAT the December 6, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.23
Issued: May 8, 2019
Washington, DC

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

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

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

23

The Board notes that he employing establishment issued appellant a signed authorization for examination and/or
treatment (Form CA-16). The Board has held that where an employing establishment properly executes a Form CA16, which authorizes medical treatment as a result of an employee’s claim for an employment-related injury, it creates
a contractual obligation which does not involve the employee directly to pay the cost of the examination or treatment
regardless of the action taken on the claim. See 20 C.F.R. §§ 10.300, 10.304; R.W., Docket No. 18-0894 (issued
December 4, 2018).

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Raleigh, NC, Employer
__________________________________________

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

Docket No. 14-697
Issued: June 23, 2014

Case Submitted on the Record

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

JURISDICTION
On February 7, 2014 appellant filed a timely appeal from an August 14, 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 the case.
ISSUE
The issue is whether OWCP met its burden of proof to justify termination of appellant’s
wage-loss benefits for her accepted injury effective August 15, 2013.
FACTUAL HISTORY
On November 24, 2012 appellant, then a 48-year-old casual mail handler, was labeling a
postal container for dispatch when her right foot became tangled in the webbing of the container
and she tripped and injured her ankle. OWCP accepted her claim for closed fracture of the right
1

5 U.S.C. §§ 8101-8193.

tibia and fibula shaft and trimalleolar open fracture of the right ankle and authorized surgery
which was performed on December 7, 2012 and February 27, 2013. Appellant stopped work on
November 24, 2012. She was a casual employee with a one-time 90-day appointment which
ended on December 31, 2012.
Appellant was treated in an emergency room on November 24, 2012 for lateral pain and
swelling of the right ankle after a trip and fall at work. A right ankle x-ray revealed a bimalleolar
fracture with slightly displaced lateral malleolus fracture slightly above the level of the
syndesmosis and the medical malleolus fracture with a tiny avulsion. Appellant was seen by
Dr. Robert G. Howard, Jr., a Board-certified orthopedist, on December 3, 2012 for a right ankle
fracture which occurred at work. Dr. Howard diagnosed right trimalleolar ankle fracture, an
unstable injury and recommended surgery. On December 7, 2012 he performed an open
reduction and internal fixation of the right ankle and diagnosed right trimalleolar ankle fracture
and syndesmosis disruption. In a follow-up report of December 19, 2012, Dr. Howard noted that
appellant was progressing well. He diagnosed well-healed surgical incision following a right
trimalleolar ankle fracture with syndesmosis disruption, noted removing the sutures and placing
her in an ankle fracture boot. Dr. Howard advised that appellant would be nonweight bearing on
the right leg for 10 weeks. In reports dated January 23 and February 20, 2013, he further noted
that she was postsurgery, listed x-rays findings and diagnosed healing right trimalleolar ankle
fracture with syndesmosis disruption. In a February 20, 2013 report, Dr. Howard noted x-ray of
the right ankle revealed a lateral plate and screw fixation, distal fibular fracture with complete
consolidation at the fracture site with some bending, breakage or loosening of the syndesmosis
screw. He diagnosed healed right trimalleolar ankle fracture and syndesmosis disruption and
recommended removal of the right ankle screw. On February 27, 2013 Dr. Howard performed a
staged removal of deep orthopedic hardware from the right ankle, syndesmosis screw.
In an e-mail dated February 21, 2013, the employing establishment indicated that the
contract negotiations with the mail handler unions eliminated the position of casual mail handlers
but positions for noncareer mail handlers were available for applicants.
In a March 27, 2013 report, Dr. Howard noted that appellant was four weeks status post
staged removal of hardware from the right ankle. Appellant reported to be full weight bearing
with a shoe and walker boot and requested to return to work. Dr. Howard diagnosed a healed
right ankle fracture with syndesmosis disruption with excellent function. He opined that
appellant could return to work on April 8, 2013 without restriction with no further orthopedic
intervention. In an “essential job function” form dated March 27, 2013, Dr. Howard certified
that appellant was able to perform all the essential functions of the position of transfer
coordinator II.
On April 18, 2013 an OWCP field nurse advised that appellant was released to full duty
on April 8, 2013 but her position at the employing establishment had been terminated. However,

2

appellant returned to work full duty at her second job at the North Carolina Women’s Prison on
April 8, 2013.2
In a decision dated August 14, 2013, OWCP terminated appellant’s wage-loss
compensation effective August 15, 2013 finding that the medical evidence established that she
was no longer disabled from her November 24, 2012 work injury.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.3 After it has determined that an employee has disability causally
related to his or her federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.4
ANALYSIS
OWCP accepted appellant’s claim for closed fracture of the right tibia and fibula shaft
and trimalleolar open fracture of the right ankle and authorized an open reduction and internal
fixation of the right ankle surgery which was performed on December 7, 2012 and removal of
orthopedic hardware on February 27, 2013. Appellant stopped work on November 24, 2012.
She was released to work regular duty without restrictions on March 27, 2009 by her treating
physician, Dr. Howard.
In a March 27, 2013 report, Dr. Howard noted appellant’s history and reported
examination findings. He found that there were no clinical findings of any residuals or disability
causally related to the accepted employment injury. Dr. Howard noted that appellant was four
weeks status post staged removal of hardware from the right ankle. Appellant reported to be full
weight bearing with a shoe and walker boot and requested to return to work. Dr. Howard noted
an unremarkable examination of appellant’s right ankle revealed a well-healed surgical incision,
no swelling, no erythema or exudate, no instability, full active dorsiflexion, plantar flexion,
inversion and eversion and full ankle dorsiflexion and plantar flexion. He noted x-rays of the
right ankle dated March 27, 2013 revealed a healed lateral malleolar fracture, healed medial
malleolar avulsion fracture, symmetric ankle mortise and well-aligned distal tibiofibular joint.
Dr. Howard diagnosed a healed right ankle fracture with syndesmosis disruption with excellent
function. He opined that appellant could return to work on April 8, 2013 without restriction with
no further orthopedic intervention. In an “essential job function” form dated March 27, 2013,

2

In an Office of the Inspector General report dated May 8, 2013, it was alleged that appellant fraudulently
obtained workers’ compensation benefits by failing to report employment and earned income to OWCP. The
investigation revealed that appellant was a full-time employee for the North Carolina Department of Public Safety
and also worked part time as a casual clerk for the employing establishment. On July 18, 2013 OWCP indicated that
the evidence did not support a finding that appellant knowingly failed to report her sick leave income on the CA-7’s
and therefore forfeiture of compensation was not appropriate.
3

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

4

Mary A. Lowe, 52 ECAB 223 (2001).

3

Dr. Howard certified that appellant was able to perform all the essential functions of the position
of transfer coordinator II.
The Board finds that Dr. Howard’s reports represent the weight of the medical evidence
and establish that appellant had no further disability from work due to her accepted
November 24, 2012 work injury. OWCP properly relied on his reports in terminating appellant’s
wage-loss benefits effective August 15, 2013. Dr. Howard’s opinion is based on proper factual
and medical history as he was appellant’s treating physician and surgeon. He also related his
examination findings in support of his opinion that disabling residuals of the accepted condition
had resolved. There is no other contemporaneous medical evidence supporting that appellant
remained disabled as a result of the accepted injury. Thus, OWCP met its burden of proof to
terminate her wage-loss benefits.
On appeal, appellant questions whether she received appropriate wage-loss and medical
reimbursement benefits in the form of continuation of pay from November 24, 2012 to
January 8, 2013. The Board does not have jurisdiction over that issue as there has been no
formal decision denying continuation of pay.5
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate wage-loss benefits
effective August 15, 2013.

5

See 20 C.F.R. § 501.2(c).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 14, 2013 is affirmed.
Issued: June 23, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 13-1865
Issued: April 1, 2014

Case Submitted on the Record

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

JURISDICTION
On August 7, 2013 appellant, through her attorney, filed a timely appeal from a
March 22, 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.2
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty on November 27, 2012.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence on appeal. The Board lacks jurisdiction to review evidence for the first time
on appeal. 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On November 28, 2012 appellant, then a 53-year-old control clerk, filed a traumatic
injury claim (Form CA-1) alleging that on November 27, 2012 she sustained an injury to the left
arm when she tripped over her shoelaces. She notified her supervisor, on November 28, 2012,
who checked a box indicating that the injury had occurred in the performance of duty. However,
the employing establishment controverted appellant’s claim, stating that she was not in the
performance of duty at the time of her injury because she was performing Combined Federal
Campaign (CFC) funding and because she tripped over her own shoelaces.
By letter dated December 3, 2012, OWCP informed appellant that the evidence of record
was insufficient to support her claim. It afforded her 30 days to submit additional evidence and
respond to its inquiries.
In a witness statement dated November 28, 2012, appellant’s manager stated that
appellant was putting away signs and garland when she tripped over her shoelaces and landed
face down on her arms.
OWCP received a report, dated November 28, 2012, from Dr. James L. Schmitt, a Boardcertified radiologist, who noted mild degenerative changes with a small proximal ulnar spur of
the left elbow, along with evidence of a joint effusion with prominent anterior and posterior fat
pads. Dr. Schmitt stated that, while no fracture or dislocation could be identified, the history of
recent trauma concerned him that there may be an occult fracture of the radial head.
In reports dated November 28 and December 6, 2012, Dr. Viral V. Patel, a Boardcertified family physician, related appellant’s symptoms, and diagnosed olecranon bursitis, left
elbow pain and left shoulder strain. He noted that she fell at work. Dr. Patel advised appellant to
return to work on November 28, 2012.
By decision dated January 10, 2013, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that she was in the performance of duty at the time of the
November 27, 2012 incident. It stated that her injury occurred when she was engaged in CFC
activity and that she had not provided evidence that this activity was within the performance of
her duties. OWCP accepted that appellant was a federal civilian employee who filed a timely
claim, that the injury occurred and that a medical diagnosis had been given in connection with
the event.
Appellant submitted a position description for a customer service clerk at the employing
establishment. Her listed duties included: receiving, sorting and recording incoming work;
performing a variety of clerical duties; receiving telephone calls from taxpayers and performing
other duties as assigned.
By letter dated January 22, 2013, appellant requested reconsideration of the January 10,
2013 decision. She noted that the chairperson who had handled the CFC duties for many years
had been unavailable in 2012. Appellant’s manager and her team leader asked if she would do
CFC and she agreed. Appellant stated that the incident occurred in the cafeteria of a federal
building on a workday.

2

In an e-mail dated February 21, 2013, a case management specialist asked appellant’s
supervisor if she would like to comment on appellant’s statement accompanying her
reconsideration request. Appellant’s supervisor responded on February 25, 2013 stating that she
had nothing to add to appellant’s statement.
By decision dated March 22, 2013, OWCP affirmed its prior decision denying appellant’s
claim. It found that she had not established that she was in the performance of duty at the time
of the claimed incident, because she had not established that being the chairperson for CFC was
part of her duties.
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
FECA provides for the payment of compensation for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.6 The phrase
sustained while in the performance of duty has been interpreted by the Board to be the equivalent
of the commonly found prerequisite in workers’ compensation law of arising out of and in the
course of employment.7 The phrase in the course of employment is recognized as relating to the
work situation and more particularly, relating to elements of time, place and circumstance. To
arise in the course of employment, an injury must occur at a time when the employee may
reasonably be stated to be engaged in the employer’s business, at a place where he or she may
reasonably be expected to be in connection with the employment and while he or she was
reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.8

3

5 U.S.C. §§ 8101-8193.

4

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident
or series of events of 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

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
6

5 U.S.C. § 8102(a).

7

Charles Crawford, 40 ECAB 474, 476-77 (1989).

8

Mary Keszler, 38 ECAB 735, 739 (1987).

3

ANALYSIS
Appellant alleged receiving a traumatic injury on November 27, 2012 when she landed
on her left elbow after a fall. OWCP denied her claim, finding that she was not within the
performance of duty. The Board finds that appellant was in the performance of duty.
In the traumatic injury claim (Form CA-1) dated November 28, 2012, appellant’s
supervisor checked a box indicating that the injury had occurred in the performance of duty.
However, the supervisor later controverted her claim, stating that appellant was not in the
performance of duty at the time of her injury because she was performing CFC funding and
because she tripped over her own shoelaces. In a witness statement dated November 28, 2012,
appellant’s supervisor stated that appellant was putting away signs and garland when she tripped
over her shoelaces and landed face down on her arms. In appellant’s January 22, 2012 request
for reconsideration, she noted that the chairperson who had performed CFC duties for many
years had been unavailable in 2012. Her manager and her team leader asked if she would do
CFC and she agreed. Appellant noted that the incident occurred in the cafeteria of a federal
building on a workday.
OWCP accepted that the incident occurred as alleged but it did not find her in the
performance of duty because of her CFC duties.
The Board finds that appellant’s CFC duties were ancillary to her position and were in
the performance of duty.
To arise in the course of employment, an injury must occur at a time when the employee
may reasonably be stated to be engaged in the employer’s business, at a place where he or she
may reasonably be expected to be in connection with the employment and while he or she was
reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.9 The Board finds that appellant has established that she was acting in the
performance of duty.
Appellant has met her burden of proof to establish that she was in the performance of
duty on November 27, 2012 at the time of the accepted incident. The case is remanded to
OWCP for development of the medical evidence.
CONCLUSION
Appellant established that she was in the performance of duty at the time of her
November 27, 2012 incident.

9

Mary Keszler, supra note 8.

4

ORDER
IT IS HEREBY ORDERED THAT the March 22, 2013 decision is set aside and the
case remanded to the Office of Workers’ Compensation Programs for development of the
medical evidence.
Issued: April 1, 2014
Washington, DC

Colleen Duffy Kiko, 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
__________________________________________
S.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PATROL,
Buffalo, NY, Employer
__________________________________________

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Appearances:
Henry E. Leinen, for the appellant
Office of Solicitor, for the Director

Docket No. 14-23
Issued: April 16, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On October 9, 2013 appellant, through her attorney, filed a timely appeal from a June 18,
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 the case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
right foot injury on June 3, 2010.

1
2

5 U.S.C. §§ 8101-8193.

With her request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence on appeal; see 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
This case has previously been before the Board.3 In an April 4, 2012 decision, the Board
affirmed an OWCP April 14, 2011 decision that found appellant had failed to establish a right
foot injury due to a June 3, 2010 employment incident.4 The facts of the case as set forth in the
Board’s prior decision are incorporated by reference.
On April 20, 2012 appellant was treated by Dr. David Perelstein, a podiatrist, for right
foot pain around the tibial sesamoid, who noted weight bearing lateral oblique and sesamoid
axial x-ray views revealed radiolucency of the tibial sesamoid which suggested aseptic necrosis.
Examination of the other bones in the foot revealed no stress fractures in the fifth metatarsal.
Appellant was placed in a right side semi-weight bearing short leg cast. Dr. Perelstein returned
her to work full time with physical restrictions. Appellant was also treated by Dr. Kenneth T.
Goldstein, a podiatrist and associate of Dr. Perelstein. In reports dated April 30 to August 6,
2012, Dr. Goldstein noted that she was in a right foot cast for 10 days. There was no edema of
the lower limbs bilaterally, no varicosities or venous insufficiency and normal capillary refill.
Dr. Goldstein diagnosed aseptic necrosis of the bone and recommended surgical excision. In a
May 3, 2012 report, he noted that appellant’s symptoms began after repetitive use of the stairs at
work, which traumatized the area and radiograph confirmed aseptic necrosis of the medial
sesamoid bone. Dr. Goldstein noted that conservative therapy improved her condition but it was
exacerbated when she returned to weight bearing and repetitive trauma. He opined that
appellant’s condition was related to repetitive climbing and descending stairs which was a job
requirement. An August 13, 2012 magnetic resonance imaging (MRI) scan of the right foot
revealed tibial sesamoiditis with chronic stress fracture. An October 12, 2012 pathology report
noted that a portion of the excised right foot sesamoid bone had focal devitalization.5 Appellant
also submitted physical therapy reports.
On April 2, 2013 appellant requested reconsideration. She submitted a February 11, 2013
report from Dr. Frank A. Luzi, Jr., a Board-certified orthopedic surgeon, who treated her for
bilateral hip and knee pain. Appellant had a history of right foot problems since a June 3, 2010
work injury and a sesamoid excision in October 2012. Postoperatively she used a cam walker
and walked with a limp which caused hip and knee problems. Hip and pelvis x-rays revealed no
arthritic change, fracture or tumor. Knee x-rays showed narrowing of the medial compartments
bilaterally, minimal arthritic changes. Dr. Luzi opined that appellant’s hip symptoms were due
to a degenerative lumbar spine, which was aggravated from the limping due to the right foot
problem and use of the cam walker. He stated that her hip condition was consequential to the
right foot problem and not directly due to the June 3, 2010 injury. Dr. Luzi noted that
3

Docket No. 11-1885 (issued April 4, 2012). On June 4, 2010 appellant, a customs and border patrol officer,
filed a traumatic injury claim, alleging that on June 3, 2010 she developed a bump on the bottom of her right foot
and had pain when walking and when putting pressure on the big toe. She noted that the cause of the injury was
unknown but that she was working in the vehicle export office and was walking up and down stairs. Appellant did
not stop work.
4

In a January 24, 2013 order, the Board dismissed appellant’s appeal for lack of jurisdiction. Docket 12-1203
(issued January 24, 2013).
5

Appellant had surgery on October 5, 2012 to excise the right foot sesamoid bone.

2

appellant’s knee condition was neither consequential nor directly related to the June 3, 2010
injury.
On April 1, 2013 Dr. Goldstein treated appellant for right foot pain secondary to injuring
the area going up and down stairs at work. A right foot MRI scan confirmed a fracture of the
medial sesamoid bone. Dr. Goldstein opined that appellant’s symptoms progressed and x-rays
on July 8, 2010 revealed avascular necrosis of the medial sesamoid bone of the right foot. On
October 5, 2012 appellant underwent an excision of the fractured sesamoid bone. Dr. Goldstein
opined that her condition was causally related to the June 3, 2010 injury of the medial sesamoid,
which occurred while performing her work duties.
On April 30, 2013 appellant was treated by Dr. Christopher Ritter, a Board-certified
orthopedic surgeon, for right foot pain. Dr. Ritter had not treated her since June 29, 2010. Since
that time, appellant had a medial sesamoidectomy and a cyst removed from her foot. Dr. Ritter
noted that the right foot was normally aligned, normal skin and muscle tone, tender from the tip
of the great toe to the metatarsophalangeal joint and normal sensation. Diagnostic studies
revealed medial sesamoidectomy, minimal arthritic changes, stable alignment and mild hallux
valgus. Dr. Ritter opined that he could not be specific with regard to the cause of appellant’s
ongoing pain and noted that it was possible that after surgery she could have developed reflex
sympathetic dystrophy, chronic pain syndrome or scarring in the area of the surgery site. He
recommended an MRI scan. An April 30, 2013 right foot x-ray revealed no fracture, arthritis of
the first metatarsophalangeal joint, hallux vulgus deformity of the great toe, pes planus, calcaneal
spur and possible reflex sympathetic syndrome.
In a June 18, 2013 decision, OWCP denied modification of the April 4, 2012 decision.
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 filed within the applicable time limitation
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 is causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or occupational disease.6
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.7 The second component of fact of
injury 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,
6

Gary J. Watling, 52 ECAB 357 (2001).

7

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

3

as well as any attendant disability, claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.8
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. 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 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.10
ANALYSIS
The Board finds that the medical evidence is insufficient to establish that appellant
sustained a right foot injury due to the June 3, 2010 work incident.
Appellant was treated by Dr. Goldstein from April 30 to October 24, 2012 for right foot
pain. Dr. Goldstein noted that she was in a right foot cast for 10 days and diagnosed aseptic
necrosis bone and recommended surgical excision. He advised that appellant’s symptoms began
after repetitive use of the stairs during her work, which traumatized the area and radiograph
confirmed aseptic necrosis of the medial sesamoid bone. Dr. Goldstein did not specifically
address the June 3, 2010 incident. He noted that appellant’s condition was exacerbated when she
returned to weight bearing and repetitive trauma. Dr. Goldstein opined that her condition was
related to repetitive climbing and descending stairs, which was a requirement of her job
description. He stated that x-rays revealed avascular necrosis of the right medial sesamoid bone
for which appellant had surgery on October 5, 2012. Dr. Goldstein opined generally that her
condition was causally related to the medial sesamoid injury sustained on June 3, 2010 while
performing work duties. The Board finds that, although he generally supported causal
relationship, he did not provide sufficient medical rationale advising the causal relationship
between appellant’s right foot condition and the June 3, 2010 incident.11 Dr. Goldstein did not
adequately explain the reasons why walking on stairs on or about June 3, 2010 was a competent

8

Allen C. Hundley, 53 ECAB 551 (2002); Earl David Seal, 49 ECAB 152 (1997).

9

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

10

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
11

See T.M., Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).

4

cause or contributor to her diagnosed right foot conditions.12 Rather, he indicated that
appellant’s condition was due to work activities over more than one shift.
Appellant submitted a February 11, 2013 report from Dr. Luzi who treated her for a hip
condition and opined that her hip symptoms were caused by degenerative lumbar spine, which
was aggravated from the limping due to the right foot problem and use of the cam walker.
Dr. Luzi opined that the hip condition was consequential to the right foot problem and not
directly related to the June 3, 2010 injury. The Board finds that he did not sufficiently explain
how walking up and down steps on June 3, 2010 caused or contributed to the claimed right foot
injury. Dr. Luzi’s report is insufficiently rationalized to establish the claim.13
In an April 30, 2013 report, Dr. Ritter treated appellant for right foot pain. This report is
insufficient to establish that the claimed right foot condition was causally related to her
employment duties as he explained that he “could not be specific with regard to the cause of her
ongoing pain” and that it was “certainly possible” that after surgery she could have developed
reflex sympathetic dystrophy. This report is speculative with regard to causal relationship and
insufficient to meet appellant’s burden of proof.14
Appellant submitted April 20, 2012 reports from Dr. Perelstein, who did not specifically
address how the accepted incident caused or aggravated her diagnosed medical condition.15 The
other medical reports of record are insufficient to establish the claim as they do not address
whether the June 3, 2010 incident caused or contributed to a diagnosed medical condition.
As to the physical therapy records, the Board has held that treatment notes signed by a
physical therapist are not medical evidence. A physical therapist is not a “physician” under
FECA.16
On appeal, appellant asserts that she established fact of injury and noted that her
condition, specifically possible fracture, osteonecrosis, could be caused by the trauma reported
by appellant. As noted, she has not submitted sufficient medical evidence explaining how
walking on stairs on or about June 3, 2010 incident caused or aggravated a diagnosed right foot
condition.

12

Supra note 10.

13

Id.

14

Medical opinions that are speculative or equivocal in character are of diminished probative value.
D.D., 57 ECAB 734 (2006).
15

A.D., 58 ECAB 149 (2006) (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).
16

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and
osteopathic practitioners within the scope of their practice as defined by State law).

5

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 meet her burden of proof to establish that she
sustained a right foot injury causally related to her June 3, 2010 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 18, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 16, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 16-1185
Issued: November 17, 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 May 11, 2016 appellant filed a timely appeal from a March 28, 2016 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 a lumbar injury
causally related to an accepted January 21, 2016 employment incident.
FACTUAL HISTORY
On January 26, 2016 appellant, then a 64-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 21, 2016 he strained his back when a truck backed

1

5 U.S.C. § 8101 et seq.

into the driver’s side of his vehicle, shattered his window, and damaged the door. He stopped
work and returned on February 10, 2016.
By letter dated February 17, 2016, OWCP advised appellant that the evidence of record
was insufficient to establish his traumatic injury claim. It requested that he respond to a
questionnaire in order to substantiate that the January 21, 2016 incident occurred as alleged, and
that he provide medical evidence to demonstrate that he sustained a medical condition causally
related to the described event.
OWCP received appellant’s completed questionnaire on March 3, 2016. Appellant
explained that he was in his vehicle at a gas station when a truck backed into the driver’s side
door of his vehicle. He related that he was examined by emergency medical personnel.
Appellant stated that he did not feel soreness in his back until the morning of January 22, 2016,
at which time he went to the emergency room for treatment of his back injury. He indicated that
he did not have any similar disability or symptom before the injury.
Appellant submitted hospital records, which indicated that on January 22, 2016 he was
treated in the emergency room by Mary Andrews, a certified nurse practitioner. Ms. Andrews
noted that, on the previous day, appellant was involved in a motor vehicle collision while
working and that he woke up this morning with right lower lumbar pain. She reviewed
appellant’s history and conducted an examination. Ms. Andrews reported no tenderness in the
back, normal range of motion, and normal strength. Straight leg raise testing was negative.
Neurological examination showed no observed neurological deficit. Ms. Andrews diagnosed
muscle strain and noted that appellant had been involved in a motor vehicle collision.
A January 22, 2016 triage report by Annemarie Graham, a registered nurse, indicated that
appellant was examined for a back injury. Ms. Graham noted that appellant was involved in a
motor vehicle accident on the previous day and that appellant woke up this morning with right
lower back soreness.
OWCP denied appellant’s traumatic injury claim in a decision dated March 28, 2016. It
accepted that the January 21, 2016 incident occurred as alleged, but denied his claim finding that
the medical evidence of record failed to provide a firm medical diagnosis or medical explanation
regarding causal relationship. OWCP noted that the employing establishment would charge any
previously paid continuation of pay to sick or annual leave or declare an overpayment.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any

2

Supra note 1.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

2

specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged.6 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.7 An employee may establish that the
employment incident occurred as alleged, but fail to show that his or her disability or condition
relates to the employment incident.8
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.9 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.10 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested, and the medical rationale expressed
in support of the physician’s opinion.11
ANALYSIS
Appellant alleged that on January 21, 2016 he strained his lower back when he was
involved in motor vehicle accident at work. OWCP accepted that the January 21, 2016 incident
occurred as alleged but denied appellant’s claim finding that the medical evidence failed to
establish that he sustained a diagnosed condition as a result of the accepted incident.
The only medical evidence submitted consisted of hospital records dated January 22,
2016 from Ms. Andrews, a nurse practitioner, and Ms. Graham, a registered nurse. These
records, however, are of no probative value because nurses are not considered physicians as
defined under FECA. Section 8102(2) provides that the term “physician” includes surgeons,
4

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

5

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

6

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

7

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

8

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

9

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

10

11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).
James Mack, 43 ECAB 321 (1991).

3

podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law. As nurses and nurse
practitioners are not considered “physicians” as defined by FECA, their medical opinions
regarding diagnosis and causal relationship are of no probative medical value.12
On appeal appellant notes that the only medical documents he had were the emergency
room records. He explains that his doctor’s office did not handle workers’ compensation cases.
Appellant just wants to be reimbursed for the three days of sick leave and nine days of annual
leave that he used in order to recover from this accident. With his appeal, he resubmitted the
January 22, 2016 emergency room records.
Section 8118 of FECA13 provides for payment of continuation of pay, not to exceed 45
days, to an employee who has filed a claim for a period of wage loss due to a traumatic injury
with his or her immediate superior on a form approved by the Secretary of Labor within the time
specified in section 8122(a)(2) of this title.14 In order to establish entitlement to continuation of
pay, an employee must establish, on the basis of reliable, probative, and substantial evidence,
that he or she was disabled as a result of a traumatic employment injury. As part of this burden,
he or she must furnish medical evidence from a qualified physician who, based on a complete
and accurate history, concludes that the employee’s disability for specific periods was causally
related to such injury.15
As appellant has not submitted any medical reports from a physician to demonstrate that
he sustained a diagnosed medical condition as a result of the January 21, 2016 employment
incident, he has not met his burden of proof to establish his claim or his entitlement to
continuation of pay.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury causally related to a January 21, 2016 employment incident.

12

5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005) (registered nurses); Joseph N. Fassi, 42 ECAB
677 (1991) (nurse practitioners).
13

5 USC § 8118.

14

Id. at § 8122(a)(2).

15

See R.L., Docket No. 14-0149 (issued April 10, 2014).

4

ORDER
IT IS HEREBY ORDERED THAT the March 28, 2016 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 17, 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

5