United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Des Moines, IA, Employer
__________________________________________

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

Docket No. 14-1230
Issued: December 29, 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 May 6, 2014 appellant filed a timely appeal from March 13 and April 9, 2014 merit
decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s claim for intermittent
periods of recurrence of disability from April 20 through May 31, 2013; and (2) whether
appellant sustained a ratable impairment of her left lower extremity due to her accepted
metatarsal injury.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to the record following OWCP’s April 9, 2014
decision. The Board’s jurisdiction is limited to a review of evidence which was before OWCP at the time of its final
review. 20 C.F.R. § 501.3(c).

FACTUAL HISTORY
On April 6, 2012 appellant, then a 45-year-old general expeditor/clerk, filed a traumatic
injury claim (Form CA-1) alleging that on April 3, 2012, she sustained a fracture to her left foot
in the performance of duty when she fell forward while ascending stairs. She stopped work on
that date. Appellant underwent surgery for a left foot fracture on April 9, 2012. OWCP accepted
her claim for a closed fracture of the left metatarsal bones on May 21, 2012. Appellant first
returned to work with restrictions of working no more than four hours per day on
October 3, 2012. She stopped work again on October 4, 2012, but worked October 8
and 9, 2012. As of October 25, 2012, appellant was no longer working due to an inability to
accommodate her restriction of working without a shoe on the left foot.
On November 6, 2012 appellant requested a schedule award.
By letter dated November 21, 2012, OWCP requested that appellant’s physician respond
to inquiries regarding the date of maximum medical improvement, objective findings, subjective
complaints, and an impairment rating rendered according to the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
Appellant underwent a surgical procedure to remove hardware from her left foot on
January 9, 2013.
On January 17, 2013 OWCP informed appellant that it could take no additional action on
her claim for a schedule award as the medical evidence indicated that her condition had not yet
reached maximum medical improvement.
A field nurse noted that appellant’s treating physician had verbally stated that she was at
maximum medical improvement as of April 1, 2013.
Appellant returned to limited-duty full-time work on April 1, 2013. However, she
continued to experience pain and issues with being allowed to take her shoe off at work.
In a medical note dated April 4, 2013, Dr. David Yount, a podiatrist, stated that appellant
needed to be able to “leave work intermittently” due to her left foot condition.
On April 11, 2013 appellant refused a modified job offer from the employing
establishment, explaining that it did not met her medical restrictions. She later accepted a job
offer dated April 24, 2013. The physical requirements of this position included sorting mail in
manual casing while sitting for 6.5 hours per day; carrying trays for 15 minutes per day; walking
for 15 minutes per day; and going on breaks and lunch. The position description noted that
appellant had to wear a shoe during all activities other than sitting and sorting mail in a manual
case.
In a duty status report dated April 12, 2013, Dr. Yount stated that appellant could resume
limited duty full-time work with the restriction of being able to take her shoe off if she was in
pain, and the ability to leave if her pain was “too much.”

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On May 7, 2013 appellant filed a claim for wage-loss compensation due to her accepted
condition for intermittent periods of disability between April 20 and May 3, 2013. Her
supervisor indicated that work was available for appellant within her restrictions during this time
period, but that she elected not to report to work. In a time analysis form, appellant noted that on
April 22 and 23, she was sent home by her employer; and that she was unable to work on
April 26, 2013 and from May 1 through 3, 2013 due to pain. On May 21, 2013 appellant filed a
claim for wage-loss compensation for additional periods of intermittent disability between May 4
and 17, 2013. In another time analysis form, she noted that she did not work on May 9, 10, 16,
and, 17, 2013 due to recovering from her surgery.
By letters dated May 28 and 29, 2013, OWCP informed appellant that it had not received
sufficient evidence to establish disability for the period April 20 through May 17, 2013. It
authorized a payment for the dates of April 22 and 23, 2013.
In a medical note dated May 28, 2013, Dr. Yount stated that appellant could only work
three days per week until further notice due to her foot condition.
On June 6, 2013 appellant filed a further claim for intermittent wage-loss compensation
between May 18 and 31, 2013. In a time analysis form, appellant noted that she was unable to
work due to recovery from surgery for part of May 21, 2013 and for all of May 30 and 31, 2013.
By letter dated June 10, 2013, OWCP informed appellant that it had not received
sufficient evidence to establish disability for May 21, 30, and 31, 2013.
In a report dated June 13, 2013, Dr. Yount stated that appellant had obtained her
maximum medical benefit and would be discharged from his care.
On June 19, 2013 OWCP referred the case, together with a statement of accepted facts, to
Dr. Peter D. Wirtz, a Board-certified orthopedic surgeon, a second opinion physician, who was
asked to review the medical evidence and provide information regarding appellant’s current
restrictions and prognosis of returning to her prior position.
In a report dated July 9, 2013, Dr. Yount stated that appellant took some days off work in
May 2013 due to pain in her foot. He recommended she only work three days a week based
upon her pain. Dr. Yount noted that she had obtained maximum medical benefit and discharged
her from his care.
By decision dated July 30, 2013, OWCP denied appellant’s claim for compensation for
intermittent periods between April 20 and May 31, 2013. It found that the evidence of record did
not establish her inability to perform limited-duty work on those dates. OWCP noted that
appellant had been paid compensation for April 22 and 23, 2013 because she had not yet signed
her temporary light-duty job offer on these dates.
By letter dated August 5, 2013, appellant, through her attorney, requested a telephonic
hearing before an OWCP hearing representative.
In a report dated August 13, 2013, Dr. Wirtz stated that appellant’s date of maximum
medical benefit was April 1, 2013, when she returned to limited work activities. He diagnosed
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her with a healed left fifth metatarsal fracture and stated “rule out peroneal nerve injury left leg.”
Dr. Wirtz noted that appellant was unable to return to her date-of-injury position. He noted that
appellant was capable of working on a full-time basis as long as her restrictions reduced her pain
production, and that her current symptomology would relate to limiting her standing, walking,
and possible walking on soft surfaces to minimize pain.
On September 9, 2013 appellant again requested a schedule award. By letter dated
September 20, 2013, OWCP requested that appellant’s physician respond to inquiries regarding
the date of maximum medical improvement, objective findings, subjective complaints, and an
impairment rating rendered according to the sixth edition of the A.M.A., Guides.
In a note dated October 23, 2013, a district medical adviser stated that there were no
current medical reports containing information sufficient to calculate an impairment rating for
schedule award purposes.
In a report dated October 14, 2013, Dr. Robert D. Rondinelli, Board-certified in physical
medicine and rehabilitation, stated that appellant visited his office requesting an impairment
rating under the A.M.A., Guides. On examination of her left ankle, he noted dorsiflexion with
knee extended at 80 degrees and with knee flexed at 90 degrees. Plantar flexion with knee
extended was 35 degrees and with knee flexed was 50 degrees. Dr. Rondinelli stated that
appellant’s fracture of the left fifth metatarsal head had healed, and that she had “elements of
complex regional pain syndrome type 1 (RSD) including symptoms of pain disproportionate to
the inciting event, hyperalgesia, skin changes, temperature changes, discoloration, and periodic
swelling. Appellant has dystrophic changes with contractures of her toes, weakness of the toes,
and loss of motion of the ankle. There is no other diagnosis that better fits this situation.”
Dr. Rondinelli stated, “I have provided [appellant] with an overview of the diagnostic and
therapeutic clarification needed here prior to MMI. As she is insistent on a rating at this time, if
I were to rate her, I would use the [A.M.A., Guides, sixth edition] and rate her for complex
regional pain syndrome, which is necessarily incomplete as I have not had opportunity to clarify
the extent of pathology in this case. I would rate her at 11 percent whole person at this time due
to a class I rating for complex regional pain syndrome type 1 compounded by less than optimal
functional outcome.”
On December 11, 2013 OWCP referred the case, together with a statement of accepted
facts, to Dr. Daniel McGuire, a second opinion physician and Board-certified orthopedic
surgeon, who was asked to calculate appellant’s percentage of impairment based upon her
accepted diagnosis of a left metatarsal fracture in accordance with the A.M.A., Guides and
determine whether she had reached maximum medical improvement.
In a report dated January 8, 2014, Dr. McGuire stated that appellant had a fifth metatarsal
fracture that was corrected by surgery in April 2012; one year from removal of hardware with
minimal benefit; and a painful left fifth metatarsal of unclear etiology. He noted:
“[Appellant] essentially would not really let me examine her.[...] On the left
ankle, I was able to take the tibiotalar joint through good motion. As I began to
examine around the fibula distally, she became quite, quite guarded and basically
would not let me examine the lateral aspect of her foot. Medial aspect of the foot

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was unremarkable. Eventually, got the Lidoderm patch off. [Appellant] has a
scar. She has a bony prominence here, probably on the proximal end of the 5th
metatarsal. Exquisitely tender here. Conversely, I do not see any evidence of
reflex sympathetic dystrophy at this left foot.”
Dr. McGuire did not address percentage of impairment of the legs as related to the fracture of her
fifth metatarsal, and noted that he was not assigning maximum medical improvement as of
January 8, 2014.
On January 17, 2014 Dr. Paul L. Keller, a diagnostic radiologist, stated his impressions of
an x-ray of appellant’s left foot. He noted degenerative changes at the fifth tarsal-metatarsal
joint, with no evidence of acute fracture. Dr. Keller noted that the remainder of her foot was
remarkable only for degenerative changes of the interphalangeal joints. Dr. McGuire reviewed
Dr. Keller’s report on January 21, 2014. He stated that there was no evidence of fracture, but
there was a bit of density lateral to the fifth metatarsal that may represent a painful mass felt on
physical examination. However, Dr. McGuire noted that appellant did not really allow him to
examine her foot, as she would not allow him to touch it for more than one or two seconds. He
stated that she was not at maximum medical improvement, and as such he would not assign an
impairment rating. Dr. McGuire noted, “The symptom she relayed to me and her limitations that
she voiced to me do not fit with what I am seeing here on her clinical radiographs. I believe
further evaluation is warranted with the orthopedic surgeon that is board certified, then with
fellowship training in adult foot and ankle problems.”
A hearing was held on January 22, 2014 before an OWCP hearing representative. At the
hearing, appellant testified that the employing establishment would not allow her to be on the
workroom floor without footwear, and that she was required to be on the workroom floor all
night long. She stated that she was “pretty much forced” to sign the job offer even though she
disagreed with the restrictions listed. Appellant stated that she worked three days a week based
upon her physician’s recommendations and filed CA-7 forms for wage loss for the other two
days per week after April 24, 2013. She noted that her signed job offer stated that she could take
her shoes off, but that when she took her shoes off, her supervisors stated that she could not do
that for safety reasons. The hearing representative told appellant that he would look at her case
file and an upcoming second opinion report before issuing her decision.
In a report dated February 17, 2014, a district medical adviser reviewed Dr. McGuire’s
report and concurred that because appellant had not yet reached maximum medical
improvement, a schedule award could not be processed.
By decision dated March 13, 2014, OWCP denied appellant’s claim for a schedule award,
finding that the medical evidence failed to establish that she had reached maximum medical
improvement.
By decision dated April 9, 2014, the hearing representative affirmed OWCP’s July 30,
2013 decision denying appellant’s claim for intermittent recurrence of disability between
April 20 and May 31, 2013.

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LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.3 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.4
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty.5
OWCP’s procedures provide that if a claim of recurrence of disability is made within 90
days or less following the first return to duty, the focus is on disability, rather than causal
relationship.6
OWCP will not pay compensation for disability in the absence of medical evidence
directly addressing the specific dates of disability for which compensation is claimed. To do so,
would essentially allow an employee to self-certify her disability and entitlement to
compensation.7
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a left metatarsal fracture as a result of a
traumatic incident on April 3, 2012. Appellant claimed that she was totally disabled for
intermittent dates from April 20, 2013 through May 31, 2013. OWCP paid appellant for
April 22 and 23, 2013 and denied the remainder of her claim by decision dated July 30, 2013. A
hearing representative affirmed this decision on April 9, 2014. Appellant has the burden of

3

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

4

Id., see also E.B., Docket No. 13-2088 (issued February 21, 2014).

5

J.F., 58 ECAB 124 (2006); Carl C. Graci, 50 ECAB 557 (1999); see also Terry R. Hedman, 38 ECAB
222 (1986).
6

See Federal (FECA) Procedure Manual, Part 2 – Claims, Recurrences, Chapter 2.1500(5)(a) (June 2013).

7

See William A. Archer, 55 ECAB 674, 679 (2004); Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

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establishing by substantial, reliable, and probative evidence that she was totally disabled for
work for the claimed period.8
In a medical note dated April 4, 2013, Dr. David Yount, a podiatrist, stated that appellant
needed to be able to “leave work intermittently” due to her left foot condition. In a duty status
report dated April 12, 2013, he stated that appellant could resume limited-duty full-time work
with the restriction of being able to take her shoe off if she was in pain, and the ability to leave if
her pain was “too much.” Dr. Yount stated in a medical note dated May 28, 2013 that appellant
could only work three days per week until further notice due to her foot condition.
Dr. Yount did not address specific dates of disability in any of his reports. He advised
restrictions of appellant being able to take her shoes off at work and of leaving work
intermittently due to her pain. However, Dr. Yount did not state that she had been performing
duties in excess of her limitation of being able to take her shoes off at work, and he did not
explain, citing objective findings, why appellant was disabled on the dates claimed. Hence, his
notes and medical reports lack both rationale and particularity for the dates of disability claimed.
As such, Dr. Yount’s reports are of diminished probative value on the issue of whether appellant
was totally disabled intermittently between April 20 and May 31, 2013.9
OWCP advised appellant by letter dated June 10, 2013 of the evidence needed to
establish her claim, including a physician’s opinion as to why the accepted injuries would disable
her for work for the claimed intermittent dates from April 20 to May 31, 2013. At the telephonic
hearing held on January 22, 2014, the hearing representative advised appellant of the evidence
needed to establish her claim. Appellant did not submit such evidence. She provided no reports
addressing specific dates of disability between April 20 and May 31, 2013. While appellant
alleged at the hearing that the employing establishment did not allow her to work within the
restrictions of her accepted light-duty position, she provided no evidence of this assertion.
Therefore, OWCP’s April 9, 2014 decision denying appellant’s claim for wage-loss
compensation between April 20 and May 31, 2013 was proper under the law and facts of the
case.
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.
LEGAL PRECEDENT -- ISSUE 2
The schedule award provision of FECA10 and its implementing federal regulations11 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions, and organs of the body.
8

Alfredo Rodriguez, 47 ECAB 437 (1996).

9

See Deborah L. Beatty, 54 ECAB 340 (2003).

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

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FECA, however, does not specify the manner by which the percentage loss of a member,
function, or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.12 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.13 For decisions issued
after May 1, 2009, the sixth edition is used to calculate schedule awards.14
It is well established that the period covered by a schedule award commences on the date
that the employee reaches maximum medical improvement from the residuals of the accepted
employment injury. The Board has explained that maximum medical improvement means that
the physical condition of the injured member of the body has stabilized and will not improve
further. The determination of whether maximum medical improvement has been reached is
based on the probative medical evidence of record and is usually considered to be the date of the
evaluation by the attending physician which is accepted as definitive by OWCP.15
ANALYSIS -- ISSUE 2
On September 9, 2013 appellant filed a claim for a schedule award due to her workrelated injuries. In a report dated July 9, 2013, Dr. Yount noted that she had obtained maximum
medical benefit and discharged her from his care. In a report dated August 13, 2013, Dr. Wirtz
stated that appellant’s date of maximum medical benefit was April 1, 2013, when she returned to
limited work activities. In a report dated October 14, 2013, Dr. Rondinelli provided an
impairment rating of 11 percent of the whole person due to complex regional pain syndrome, but
stated that maximum medical improvement had not yet been reached. On December 11, 2013
OWCP referred the case, together with a statement of accepted facts, to Dr. McGuire, who was
asked to calculate appellant’s percentage of impairment based upon her accepted diagnosis of a
left metatarsal fracture in accordance with the A.M.A., Guides and determine whether she had
reached maximum medical improvement. In a report dated January 8, 2014, Dr. McGuire
declined to assign a date of maximum medical improvement. On January 21, 2014 he stated that
she was not at maximum medical improvement. In a report dated February 17, 2014, a district
medical adviser reviewed Dr. McGuire’s report and concurred that because appellant had not yet
reached maximum medical improvement, a schedule award could not be processed.
The Board finds that OWCP properly denied appellant’s claim for a schedule award
regarding the left metatarsal fracture as she had not yet reached maximum medical improvement.
The reports of Drs. Yount and Wirtz do not meet the requirements of the A.M.A., Guides in that
they do not provide findings sufficient to establish an impairment rating. Hence, their reports are
of diminished probative value on the issue of calculating appellant’s schedule award under the
A.M.A., Guides. Drs. Rondinelli and McGuire stated that appellant had not yet reached
maximum medical improvement with regard to her left foot condition. As noted, the period
12

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

13

Id.

14

FECA Bulletin No. 09-03 (issued March 15, 2009).

15

Mark A. Holloway, 55 ECAB 321, 325 (2004).

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covered by a schedule award commences on the date that the employee reaches maximum
medical improvement from the residuals of the employment injury and maximum medical
improvement means that the physical condition of the injured member of the body has stabilized
and will not improve further.16 Because appellant had not yet reached maximum medical
improvement, OWCP properly denied her claim for a schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that OWCP properly denied appellant’s claim for intermittent wage-loss
compensation for the period April 20 through May 31, 2013. The Board further finds that
appellant did not establish a ratable impairment of her left lower extremity due to her accepted
metatarsal injury.
ORDER
IT IS HEREBY ORDERED THAT the April 9 and March 13, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 29, 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

16

See supra note 18.

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Red Bank, TN, Employer
__________________________________________

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Appearances:
J. Shannon Garrison, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-102
Issued: March 13, 2009

Case Submitted on the Record

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

JURISDICTION
On January 15, 2008 appellant, through his attorney, filed a timely appeal from a
September 29, 2008 merit decision of the Office of Workers’ Compensation Programs denying
his claim. Pursuant to 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 appellant established that he sustained a right shoulder injury in the
performance of duty, as alleged.
FACTUAL HISTORY
On March 20, 2006 appellant, then a 48-year-old carrier, filed a traumatic injury claim
(Form CA-1) alleging that on February 2, 2006 he felt his right shoulder pull while lifting a
bucket of mail.
In a letter dated March 30, 2006, the Office notified appellant of the deficiencies in his
claim and that he was required to submit medical evidence supporting his claim.

On July 17, 2006 appellant submitted several progress notes dated February 21 through
June 5, 2006, signed by Dr. Neil H. Spitalny, a Board-certified orthopedic surgeon, addressing
the right shoulder injury. In a February 21, 2006 progress note, Dr. Spitalny reported that
appellant injured his shoulder two weeks ago at work, while lifting a bucket of magazines
weighing approximately 30 pounds. He noted a positive impingement sign. In progress notes
dated April 4 and May 18, 2006, Dr. Spitalny stated that appellant experienced continuing
trapezial discomfort and that he had difficulties playing golf.
By decision dated July 17, 2006, the Office denied appellant’s claim finding that he did
not submit any medical evidence supporting his claim.
On August 18, 2006 appellant filed a request for a review of the written record by a
hearing representative.
In a July 31, 2006 medical report, Dr. Spitalny stated that on February 21, 2006 appellant
presented with an injury to his right shoulder and alleged that two weeks prior he was at work
lifting a 30-pound bucket of magazines and felt a tearing-type sensation in his right shoulder. He
diagnosed rotator cuff strain with some impingement. Dr. Spitalny opined that the traumatic
exposure was related to the strain of the rotator cuff muscles.
In a decision dated November 27, 2006, a hearing representative denied modification of
the July 17, 2006 decision. The hearing representative determined that appellant established that
he lifted a bucket of mail on February 2, 2006 in the performance of duty and felt a pull in his
right shoulder. However, the evidence did not include rationalized medical opinion that the
lifting incident caused a rotator cuff strain with impingement.
In a June 20, 2007 medical report, Dr. Michael Tew stated that appellant first injured his
shoulder at work a year ago, but that his workers’ compensation claim was closed because
Dr. Spitalny did not feel that his problem was related to a work injury. He reported that
appellant injured himself while throwing objects back hand using abduction and external rotation
type movement and that he felt a sudden pain or ripping in his shoulder while at work. Dr. Tew
also noted that appellant makes a motion similar to throwing darts when inserting letters
presumably into pigeon holes or other places directly in front of his body. He diagnosed either
rotator cuff tear or superior labral anterior posterior (SLAP) lesion of the right shoulder.
On June 28, 2007 appellant underwent a magnetic resonance imaging (MRI) scan
revealing moderately severe right acromioclavicular joint arthritis, bursal surface thinning and
supraspinatus tendinopathy, with a small intrasubstance tear of the supraspinatus tendon,
consistent with impingement syndrome.
In an August 24, 2007 medical report, Dr. Tew stated that he recently received the details
regarding appellant’s February 2006 work injury. He relayed appellant’s claims that he was
lifting a bucket, weighing approximately 30 pounds, with his right arm off the floor and then
went to sling it to the right side, causing his shoulder to rapidly abduct and externally rotate.
Appellant then slung it back and developed a sharp pain and tearing sensation in his right
shoulder. Dr. Tew opined that this mechanism was probably the cause of his injury. He
diagnosed a SLAP lesion or labral tear. Dr. Tew addressed the prior treatment of appellant’s

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right shoulder, commenting that neither the MRI scan nor his physical examination demonstrated
a tear of the rotator cuff. He stated that appellant had a legitimate workers’ compensation claim
and that his current symptoms were related to the original injury.
On a September 20, 2007 medical opinion form, Dr. Spitalny indicated with a checkmark
that his diagnosis of rotator cuff strain with impingement was based on history taken from the
patient and a physical examination. He further indicated that the diagnosis was caused by a
February 2, 2006 lifting incident at appellant’s work. In a similar medical opinion form dated
October 3, 2007, Dr. Tew diagnosed appellant with a SLAP lesion on the right shoulder based on
history from the patient, review of medical records and other documents, physical examination
and medical tests. He indicated with a checkmark that the diagnosis was caused by a February 2,
2006 lifting incident at appellant’s work.
Appellant further submitted duplicate copies of progress notes dated February 21 through
May 18, 2006 signed by Dr. Spitalny, as well as two physical therapy reports dated July 20 and
August 23, 2007, signed by Dr. Tew. The July 20, 2007 physical therapy report included a
subjective notation that appellant’s symptoms began in February 2006 while transferring a
bucket of magazines at work.
On October 29, 2007 appellant, through his attorney, filed a request for reconsideration
on the merits.
By decision dated September 29, 2008, the Office denied modification of the
November 27, 2006 decision. It cited inconsistencies in the medical evidence, specifically that
the contemporaneous medical evidence did not connect appellant’s injury with his work incident
and that recent medical opinions of Drs. Tew and Spitalny were contradictory.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,2 including that he is an “employee” within the meaning of
the Act3 and that he filed his claim within the applicable time limitation.4 The employee must
also establish that he sustained an injury in the performance of duty as alleged and that his
disability for work, if any, was causally related to the employment injury.5

1

5 U.S.C. §§ 8101-8193.

2

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

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

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

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

3

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
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, in the form of medical evidence, to establish that the employment incident caused a
personal injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.8
ANALYSIS
The issue is whether appellant established that he sustained a right shoulder injury while
lifting a bucket of magazines at work, as alleged. The Board finds that he has not met his burden
of proof in establishing causation.
In progress notes dated February 21 through June 5, 2006, Dr. Spitalny reported that
appellant injured his right shoulder while lifting a bucket of magazines, weighing approximately
30 pounds, and that he continued to have trapezial discomfort. In a July 31, 2006 medical report,
he relayed appellant’s claims that he was injured at work and opined that appellant’s exposure to
trauma was related to his strained rotator cuff muscles. Further, on a September 20, 2007
medical opinion form, Dr. Spitalny indicated with a checkmark that appellant’s diagnosed rotator
cuff strain with impingement was caused by a February 2, 2006 lifting incident at work. This
evidence lacks medical rationale explaining how appellant’s injury was related to his February 2,
2006 employment incident. Dr. Spitalny failed to provide any detail to rationalize his opinion
that appellant strained his rotator cuff while lifting magazines at work, thus his medical opinions
are of diminished probative value.9
Further, Dr. Tew’s medical reports are similarly insufficient to establish causation. By
way of a checkmark, he indicated on an October 3, 2006 medical opinion form that appellant’s

6

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

7

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
8

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
9

See Robert Broome, 55 ECAB 339 (2004); Linda I. Sprague, 48 ECAB 386 (1997).

4

injury was caused by a February 2, 2006 lifting incident. As Dr. Tew did not include any
medical rationale to explain his opinion, this form is of diminished probative value.10
Further, in an August 24, 2007 medical report, Dr. Tew reported appellant’s claims that
he lifted a 30-pound bucket off the floor and when he slung the bucket to the right, his shoulder
rapidly abducted and externally rotated. He opined that this mechanism was probably the cause
of appellant’s injury. Here, Dr. Tew equivocally relates the shoulder injury to the employment
incident, as described by appellant. He appears to rely on appellant’s unsupported assertion of
an employment relationship, speculatively opining that appellant’s injury is probably related to
the reported work incident.11 Further, the probative value of Dr. Tew’s medical opinions is
questionable in light of the contradictory June 20, 2007 medical report, where he stated that
appellant’s injury was caused by throwing objects back hand at work and that appellant makes a
throwing darts motion at work. Because of the speculative and contradictory history of injury
contained in Dr. Tew’s reports, the Board finds that his medical opinion is insufficient to
establish causation.12
The Board, therefore, finds that the medical evidence is insufficient to support appellant’s
claims that he sustained an employment-related right shoulder injury.
CONCLUSION
The Board finds appellant did not establish that he sustained a right shoulder injury in the
performance of duty.

10

See id.

11

Appellant’s unsupported assertion of an employment relationship is not proof of the fact. Proof must include
supporting rationalized opinion of a physician. Margaret A. Donnelly, 15 ECAB 40 (1963).
12

See Jennifer L. Sharp, 48 ECAB 209 (1996); Arthur A. Knox, 31 ECAB 1495 (1980).

5

ORDER
IT IS HEREBY ORDERED THAT the September 29, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 13, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF INDIAN AFFAIRS, CROW CREEK
AGENCY, Fort Thompson, SD, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Madison Goodman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1963
Issued: July 1, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 25, 2019 appellant, through counsel, filed a timely appeal from a May 23,
2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed from the last merit decision dated May 4, 2018 to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 26, 2016 appellant, then a 53-year-old legal administrative specialist (probate),
filed an occupational disease claim (Form CA-2) alleging that she sustained a back condition
causally related to factors of her federal employment, including carrying copier paper and boxes
with probate information weighing up to 20 pounds, working without an ergonomic chair, and
repeated stair climbing. She indicated that she first became aware of her condition on August 6,
2014 and realized its relation to factors of her federal employment on June 11, 2015. Appellant
stopped work on June 11, 2015.
In a development letter dated February 4, 2016, OWCP advised appellant that additional
factual and medical evidence was necessary to establish her claim. It advised her of the type of
factual and medical evidence needed and provided a questionnaire for her completion regarding
the factual elements of her claim. OWCP also requested that appellant provide a narrative medical
report from her physician, which contained a detailed description of findings and diagnoses,
explaining how her work activities caused, contributed to, or aggravated her medical conditions.
It afforded her 30 days to submit the necessary evidence.
In a February 9, 2016 statement, appellant again described the duties she performed on a
daily basis, which she alleged aggravated her preexisting back condition.3
By decision dated March 8, 2016, OWCP denied her claim finding that she had not
established a medical diagnosis causally related to the accepted employment factors and she had
not submitted medical evidence with her claim. It concluded, therefore, that the requirements had
not been met to establish an injury as defined by FECA.
On August 30, 2016 appellant, through counsel, requested reconsideration and submitted
additional evidence.
In a May 19, 2016 report, Dr. Mitchell C. Johnson, an osteopath specializing in orthopedic
surgery, diagnosed back pain with lumbar facet arthropathy and lumbar disc degeneration, based
upon x-ray and magnetic resonance imaging (MRI) scan evidence. He noted that appellant related
back problems since a November 9, 1999 employment injury.4 Dr. Johnson summarized
appellant’s medical history, work duties, and noted appellant’s pain complaints. Physical
examination findings included low back tenderness on palpation, no identified tender focal points,
no somatic dysfunction findings, no paraspinal muscle spasms, and full bilateral hip range of

3

See note 4 infra.

4
The Board notes that under File No. xxxxxx472, OWCP accepted that appellant sustained an employment-related
back sprain on November 9, 1999.

2

motion. Dr. Johnson opined that her job duties in 2012 aggravated her chronic facet arthrosis. He
further opined that her pain complaints could be due to a 1999 employment injury.
By decision dated February 8, 2017, OWCP modified its prior decision, finding that
appellant had established a medical diagnosis, but denied the claim as modified finding that the
medical evidence of record was insufficient to establish causal relationship.
On February 5, 2018 appellant, through counsel, requested reconsideration and submitted
additional evidence.
In progress notes dated August 17 and 23, 2017, Dr. Daniel R. Rasmussen, an osteopath
and Board-certified physiatrist, noted that appellant was seen for right low back pain complaints
and provided examination findings. He diagnosed lumbar facet joint syndrome, lumbar
spondylosis, and chronic low back/lumbar pain.
In a February 5, 2018 report, Dr. Rasmussen noted that appellant was first seen on
October 31, 2012 for complaints of low back pain. Appellant related that approximately 13 years
prior she sustained an employment injury from lifting heavy boxes. A history of treatment and
examination findings were detailed. Dr. Rasmussen noted that, after discussing the results of a
November 6, 2012 MRI scan and recommending treatment, appellant did not contact him again
until January 20, 2016. He diagnosed lumbar facet syndrome based on examination findings, the
MRI scan, and her symptoms. Dr. Rasmussen indicated that he was unable to say “with confidence
that this [lumbar facet syndrome] is related specifically to a work-related injury and not simply a
degenerative change.” He explained that he had not seen appellant when the 1999 employment
injury occurred, nor did he have any of the medical records pertaining to the injury for review.
By decision dated May 4, 2018, OWCP denied modification.
On May 3, 2019 appellant, through counsel requested reconsideration. In support of her
request, appellant submitted additional medical evidence.
In progress notes dated April 23, 2019, Dr. John L. McFee, Jr., a physician specializing in
family and general medicine, diagnosed chronic low back pain and type 2 diabetes mellitus. Under
history of injury, he noted that appellant’s diabetes is poorly controlled at times, and that she has
had back pain since a November 9, 1999 employment injury. Appellant related having pain after
lifting something heavy at work. Dr. McFee opined that her complaints of leg pain and numbness
could be attributable to her diabetic neuropathy and that some of her pain complaints “may be
related” to an employment injury sustained approximately 20 years ago.
Dr. McFee, in an April 26, 2019 report, reviewed an MRI scan performed that day and
diagnosed lumbar intervertebral disc degeneration, lumbar spondylolisthesis, lumbar intervertebral
disc displacement, other chronic pain, and low back pain.
An April 26, 2019 MRI scan revealed lumbar scoliosis convex to the right, multilevel
lumbar spine degenerative disc disease, and L4-5 degenerative spondylolisthesis. The study noted
a mild progression in the multilevel lumbar degenerative disc disease since the last study.
By decision dated May 23, 2019, OWCP denied reconsideration of the merits of the claim.
3

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.5
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.6
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.7 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.8 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Counsel requested reconsideration, summarized the medical evidence of record, and
concluded that causal relationship had been established. Appellant’s request for reconsideration
did not show that OWCP erroneously applied or interpreted a specific point of law, or advance a
new and relevant legal argument not previously considered by OWCP. Consequently, the Board
finds that she was not entitled to a review of the merits based on the first and second above-noted
requirements under 20 C.F.R. § 10.606(b)(3).10

5
5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
6

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
7

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of the merit decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4(b).
8

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

9

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

10

M.O., Docket No. 19-1677 (issued February 25, 2020); C.B., Docket No. 18-1108 (issued January 22, 2019).

4

The Board further finds that appellant has not provided relevant and pertinent new evidence
in support of her request for reconsideration. The underlying issue in this case is the medical
question of whether the accepted employment factors caused or aggravated the diagnosed
conditions. That is a medical issue which must be addressed by relevant medical evidence.11
On reconsideration, appellant submitted April 23, 2019 progress notes from Dr. McFee
diagnosing chronic low back pain and type 2 diabetes mellitus. He opined that the chronic low
back pain could be attributable to her diabetic neuropathy or may be related to a 20-year-old
employment injury, which is not the subject of the current appeal. While this evidence is new, it
is not relevant as it attributed her pain to a traumatic injury sustained about 20 years ago and
possibly to underlying diabetic neuropathy. The Board has held that the submission of evidence
or argument which does not address the particular issue involved does not constitute a basis for
reopening a case.12 As such, this evidence is insufficient to warrant merit review.
OWCP also received an April 26, 2019 MRI scan of the lumbar spine and an April 26,
2019 report by Dr. McFee, who reviewed the scan. These reports noted diagnoses duplicative of
previous evidence of record.13 However, neither the MRI scan nor Dr. McFee’s April 26, 2019
report offered an opinion on whether appellant’s diagnosed lumbar conditions had been caused or
aggravated by the accepted employment factors. As noted, the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.14 Therefore, appellant also failed to satisfy the third requirement under 20 C.F.R.
§ 10.606(b)(3).
As appellant’s May 3, 2019 request for reconsideration does not meet any of the
requirements of 20 C.F.R. § 10.606(b)(3), the Board finds that OWCP properly denied merit
review, pursuant to 20 C.F.R. § 10.608.
On appeal counsel asserts that OWCP erred in denying a merit review as new medical
evidence and legal argument were provided. For the reasons stated above, the Board finds that
OWCP properly denied appellant’s request for reconsideration of the merits of her claim pursuant
to 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

11

See J.B., Docket No. 18-1531 (issued April 11, 2019); E.D., Docket No. 18-0138 (issued May 14, 2018);
Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).
12

See S.P., Docket No. 18-1711 (issued May 28, 2019); N.B., Docket No. 17-0927 (issued April 18, 2018); Edward
Matthew Diekemper, 31 ECAB 224, 225 (1979).
13

V.L., Docket No. 19-0069 (issued February 10, 2020); evidence which repeats or duplicates evidence already in
the case record has no evidentiary value and does not constitute a basis for reopening a case.
14

Supra note 12.

5

ORDER
IT IS HEREBY ORDERED THAT the May 23, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 1, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
M.M., Appellant
)
)
and
)
)
DEPARTMENT OF THE ARMY, U.S. ARMY
)
CORPS OF ENGINEERS, New Orleans, LA,
)
Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 08-473
Issued: June 19, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 5, 2007 appellant filed a timely appeal from a September 6, 2007 decision
of the Office of Workers’ Compensation Programs which denied his request for a hearing and a
May 31, 2007 schedule award decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over these issues.
ISSUES
The issues are: (1) whether appellant has more than five percent permanent impairment
of his right upper extremity for which he received a schedule award; and (2) whether the Office
properly denied appellant’s request for an oral hearing.
FACTUAL HISTORY
On July 31, 2006 appellant, then a 48-year-old rigging worker, sustained injury to the tip
of his right pinky finger in the performance of duty. On October 17, 2006 the Office accepted

his claim for a crushing injury of the right pinky finger, traumatic amputation,1 partial, without
complication of the right pinky. Appellant received appropriate compensation benefits. On
December 21, 2006 he requested a schedule award.
In a December 14, 2006 report, Dr. Eric R. George, a Board-certified hand surgeon, noted
that appellant was four weeks past an osteotomy of the finger and excision of the nail plate. He
opined that appellant’s amputation of the distal interphalangeal joint of the small finger would
entitle appellant to 45 percent impairment of the small finger, which translated to 5 percent
impairment of the upper extremity and 3 percent of the whole person.
In a January 9, 2007 report, the Office medical adviser noted appellant’s history of injury
and treatment and advised that he had utilized the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (5th ed. 2001) (A.M.A., Guides). He indicated that
appellant’s condition was accepted for a crushing injury to right little finger and amputation of
right little finger and that appellant achieved maximum medical improvement on
December 14, 2006. Regarding the amputation of the right little finger through the distal
phalanx, the Office medical adviser referred to Figure 16-32 and determined that this would
warrant 45 percent impairment of the finger. He noted that according to Table 16-1,3 45 percent
of the finger was equivalent to 5 percent of the hand. The Office medical adviser referred to
Table 16-24 and opined that it translated to five percent right upper extremity impairment.
On May 31, 2007 the Office granted appellant a schedule award for five percent
impairment of the right upper extremity. The award covered a period of 15.6 weeks from
December 15, 2006 to April 30, 2007.
On August 17, 2007 the Office received a request for hearing from appellant. The
request was postmarked August 7, 2007.
By decision dated September 6, 2007, the Office denied appellant’s request for a hearing
on the grounds that the request was untimely. It found that he did not submit his request for an
oral hearing within 30 days of the Office’s May 31, 2007 decision and, therefore, he was not
entitled to a hearing as a matter of right. Additionally, the Office considered the matter in
relation to the issue involved and denied appellant’s request on the basis that the issue could
equally well be addressed through the reconsideration process.

1
2

Dr. Eric George performed surgery on November 15, 2006.
A.M.A., Guides 442.

3

Id. at 438.

4

Id. at 439.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act5 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.6 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice for all claimants under the law, good administrative practice requires the use of
uniform standards applicable to all claimants.7 The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.8
ANALYSIS -- ISSUE 1
In the present case, appellant’s claim was accepted for crushing injury of the finger, right
pinky, traumatic amputation, partial without complication of the right pinky. The record
contains reports from appellant’s treating physician and the Office medical adviser. Both
physicians determined that appellant sustained five percent impairment of the right upper
extremity. In a December 14, 2006 report, Dr. George, appellant’s physician, opined that
appellant had five percent impairment of the arm due to his amputation of the distal
interphalangeal joint of the right little finger. He did not provide reference to the A.M.A.,
Guides in making his impairment rating.9 The Office medical adviser concurred with
Dr. George’s assessment of five percent impairment of the right arm.
The Board finds that the Office properly rated the impairment related to appellant’s right
pinky partial amputation. In a January 9, 2007 report, the Office medical adviser utilized the
A.M.A., Guides and referred to Figure 16-310 for the amputation of the right little finger through
the distal phalanx which provides 45 percent impairment. He referred to Table 16-1,11 and
advised that 45 percent of the finger was equal to 5 percent of the hand. The Office medical
adviser then referred to Table 16-212 and determined that this also represented five percent right
upper extremity impairment. The Board finds that the medical evidence establishes that
appellant has five percent permanent impairment of the right upper extremity.

5

5 U.S.C. §§ 8101-8193.

6

5 U.S.C. § 8107.

7

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

8

A.M.A., Guides (5th ed. 2001); 20 C.F.R. § 10.404.

9

Although Dr. George also expressed appellant’s impairment in terms of whole person impairment, schedule
awards are not payable for impairment of the whole person. See Tommy R. Martin, 56 ECAB 273 (2005).
10

A.M.A., Guides 442.

11

Id. at 438.

12

Id. at 439.

3

On appeal, appellant alleged that he had greater impairment and listed items that were
bothersome with regard to his injury. The medical record establishes that he has no more than
five percent permanent impairment of the right upper extremity.13
LEGAL PRECEDENT -- ISSUE 2
Section 8124 of the Act provides that a claimant is entitled to a hearing before an Office
representative when a request is made within 30 days after issuance of an Office final decision.14
Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: An oral hearing or a review of the written record.”15
Section 10.616(a) of Title 20 of the Code of Federal Regulations further provides, “A
claimant injured on or after July 4, 1966, who had received a final adverse decision by the
district Office may obtain a hearing by writing to the address specified in the decision. The
hearing request must be sent within 30 days (as determined by postmark or other carrier’s date
marking) of the date of the decision for which a hearing is sought.”16
The Office’s regulations provide that a request received more than 30 days after the
Office’s decision is subject to the Office’s discretion17 and the Board has held that the Office
must exercise this discretion when a hearing request is untimely.18
ANALYSIS -- ISSUE 2
Appellant’s request for a hearing was postmarked August 7, 2007. The Board notes that
the request for a hearing was more than 30 days after the Office issued its May 31, 2007
decision. Appellant was not entitled to a hearing as a matter of right.
The Office also properly exercised its discretion in denying a hearing upon appellant’s
untimely request by determining that the issues could be equally well addressed by requesting
reconsideration and submitting new evidence. The only limitation on the Office’s authority is
reasonableness. Abuse of discretion is generally shown through proof of manifest error, a clearly
unreasonable exercise of judgment or actions taken which are contrary to logic and deductions
13

A claimant may seek an increased schedule award if the evidence establishes that progression of an
employment-related condition, without new exposure to employment factors, has resulted in a greater permanent
impairment than previously calculated. Linda T. Brown, 51 ECAB 115 (1999).
14

5 U.S.C. § 8124(b)(1).

15

20 C.F.R. § 10.615.

16

20 C.F.R. § 10.616(a).

17

20 C.F.R. § 10.616(b).

18

Samuel R. Johnson, 51 ECAB 612 (2000).

4

from known facts. There is no evidence of record that the Office abused its discretion in denying
appellant’s request for a hearing under these circumstances.
CONCLUSION
The Board finds that appellant has no more than five percent permanent impairment of
the right upper extremity for which he received a schedule award. The Board also finds that the
Office properly denied appellant’s request for a hearing.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 6 and May 31, 2007 are affirmed.
Issued: June 19, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Charlotte, NC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-1733
Issued: March 9, 2011

Case Submitted on the Record

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

JURISDICTION
On June 17, 2010 appellant filed a timely appeal from a February 23, 2010 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established a left knee meniscus tear causally related to her
employment injury.
FACTUAL HISTORY
The case was before the Board on a prior appeal. By decision dated September 28, 2009,
the Board found the Office had improperly denied appellant’s request for a hearing.1 Since the

1

Docket No. 09-547 (issued September 28, 2009).

Board did not review the merits of the claim on the prior appeal, the Board will review the
factual history.
On June 30, 2008 appellant, then a 38-year-old clerk, filed a traumatic injury claim
alleging that she sustained a left knee injury in the performance of duty on June 17, 2008. She
hit her knee on “area of keyboard.” In a June 26, 2008 statement, a supervisor advised that on
June 17, 2008 appellant reported that she hit her knee on June 14, 2008 on a console key pad
mount. Appellant submitted a June 30, 2008 statement that she hit her left knee on June 14,
2008 on a key pad mount and on June 17, 2008 hit her knee again.
In a report dated July 16, 2008, Dr. Ranjan Maitra, an orthopedic surgeon, obtained a
history that four weeks earlier appellant had been scooting on a chair and hit her left knee on a
counter support. He noted that she apparently did this again. Dr. Maitra advised that a June 19,
2008 magnetic resonance imaging (MRI) scan showed a small joint effusion and a torn lateral
meniscus. He stated:
“I think it is a little but unusual to obtain a lateral meniscus tear from a direct
blow to the anterior aspect of the knee; however, the patient had absolutely no
symptoms or problems with the knee prior to this event and so I have [t]o assume
that her mechanism of injury as stated accounts for her symptoms and her
diagnostic findings. Having said that, I think most of the patients symptoms are
related to direct contusion to the patellofemoral joint and are probably unrelated
to her lateral meniscus tear given lack of effusion and lack of McMurray
examination.”
In a decision dated August 4, 2008, the Office accepted the claim for a left knee
contusion.2 It found that no benefits for a left lateral meniscus tear would be covered.
Appellant requested a hearing before an Office hearing representative on
August 23, 2008. By decision dated October 15, 2008, the Office found appellant was not
entitled to a hearing as no adverse decision had been issued. The Board found the August 4,
2008 decision was an adverse decision and remanded the case for a hearing before an Office
hearing representative.
The record indicates that appellant underwent left knee surgery on September 17, 2008,
performed by Dr. Jeffrey Mokris, an orthopedic surgeon. She returned to a light-duty position on
October 1, 2008. On December 17, 2008 appellant was treated for left leg pain. A Dr. Rollin
Fuller diagnosed sciatica.
A telephonic hearing before an Office hearing representative was held on
December 15, 2009. By decision dated February 23, 2010, the hearing representative found
appellant had not established a left knee meniscal tear as employment related. The hearing
representative found the medical evidence was insufficient to establish the claim.

2

Appellant received wage-loss compensation from August 2 to September 16, 2008.

2

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 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 the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.4
ANALYSIS
Appellant alleged that on June 14 and 17, 2008 she struck her left knee on a console key
pad mount. The Office accepted that she sustained a left knee contusion. In a February 23, 2010
decision, the hearing representative stated that appellant did not notify her supervisor of a
June 17, 2008 incident until June 30, 2008, and she noted that a June 18, 2008 report from a
Dr. Theresa Watts reported that appellant “denies any acute trauma.” She stated these
“discrepancies raise question” as to whether a June 17, 2008 incident occurred as alleged. The
Office has accepted the claim for a contusion in this case, based on a factual allegation of
incidents on June 14 and 17, 2008. The hearing representative did not rescind acceptance of the
claim or an accepted incident. The issue is whether appellant met her burden to establish causal
relationship between a diagnosed lateral meniscus tear and the employment injury.
With respect to the medical evidence, the record does not contain a rationalized medical
opinion regarding causal relationship of the meniscal tear. Dr. Maitra acknowledged that it was
“unusual” for a direct blow to the anterior aspect of the knee to cause a meniscus tear. He then
stated that, since appellant had no prior symptoms, he had to assume her mechanism of injury
caused the symptoms and diagnostic findings. The Board has held that an opinion that a
condition is causally related to an employment injury because the employee was asymptomatic
before the injury but symptomatic after it is not sufficient, without supporting rationale, to
establish causal relationship.5 Dr. Maitra did not provide supporting rationale in this case.
The remaining medical evidence of record does not provide an opinion as causal
relationship between employment and the diagnosed meniscal tear. Dr. Mokris, who performed
the September 17, 2008 left knee surgery, did not discuss causal relationship. It is, as noted
above, appellant’s burden of proof. The Board finds appellant did not meet her burden of proof
in this case.

3

5 U.S.C. §§ 8101-8193.

4

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

5

See Cleopatra McDougal-Saddler, 47 ECAB 480 (1996) (because the employee is symptomatic after an injury
is not sufficient to establish causal relationship without supporting rationale).

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CONCLUSION
The Board finds appellant did not establish a left torn meniscus as causally related to the
accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 23, 2010 is affirmed.
Issued: March 9, 2011
Washington, DC

Alec J. Koromilas, 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
__________________________________________
B.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
De Pere, WI, Employer
__________________________________________

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

Docket No. 18-1200
Issued: May 15, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 24, 2018 appellant filed a timely appeal from a February 5, 2018 merit decision
of the Office of Workers’ Compensation Programs. 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 has met her burden of proof to establish disability from work
for the period January 8 through 19, 2018 causally related to her accepted January 31, 2003
employment injury.

1

5 U.S.C. § 8101 et seq.

2
The Board notes that following the February 5, 2018 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.

FACTUAL HISTORY
On February 5, 2003 appellant, then a 46-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 31, 2003 she pulled her right shoulder opening a
mailbox while in the performance of duty. She stopped work on February 7, 2003 and returned
on February 10, 2003. Appellant was released to resume her usual employment on
February 19, 2003. On December 8, 2017 OWCP accepted the claim for a bicipital tendon strain
of the right shoulder.
On January 8, 2018 Dr. Metz performed a right shoulder synovectomy of the anterior
margin of the shoulder joint, a biceps tenotomy and labral debridement, arthroscopic subacromial
decompression, a distal clavicle excision, a mini rotator cuff incision, biceps tenodesis, and a
rotator cuff repair.
On January 31, 2018 appellant filed a claim for compensation (Form CA-7) for leave
without pay for disability from work for the period January 8 through 19, 2018.
By decision dated February 5, 2018, OWCP denied appellant’s claim for compensation for
disability from January 8 through 19, 2018 causally related to the February 6, 2003 accepted
employment injury.3
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim.5 Under FECA the term disability means incapacity, because
of an employment injury, to earn the wages that the employee was receiving at the time of injury.6
For each period of disability claimed, the employee has the burden of proof to establish that he or
she was disabled from work as a result of the accepted employment injury.7 Whether a particular
injury causes an employee to become disabled from work, and the duration of that disability, are
medical issues that must be proven by a preponderance of probative and reliable medical opinion
evidence.8
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is

3

On November 14, 2017 appellant filed a notice of recurrence (Form CA-2a) for medical treatment beginning
October 27, 2017 causally related to her January 31, 2003 employment injury. In its February 5, 2018 decision,
OWCP indicated that she had filed a notice of recurrence of disability claiming wage-loss compensation. As noted,
however, appellant filed a notice of recurrence of the need for medical treatment beginning October 27, 2017.
4

Supra note 1.

5

See L.S., Docket No. 18-0264 (issued January 28, 2020); B.O., Docket No. 19-0392 (issued July 12, 2019).

6

20 C.F.R. § 10.5(f); J.S., Docket No. 19-1035 (issued January 24, 2020).

7

T.W., Docket No. 19-1286 (issued January 13, 2020).

8

S.G., Docket No. 18-1076 (issued April 11, 2019); Fereidoon Kharabi, 52 ECAB 291 (2001).

2

claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.9
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP accepted that on January 31, 2003 appellant had sustained a bicipital tendon strain
of the right shoulder. Appellant underwent right shoulder surgery on January 8, 2018. On
January 31, 2018 she filed a Form CA-7 requesting wage-loss compensation from January 8
through 19, 2018, which OWCP denied by decision dated February 5, 2018.
OWCP’s procedures provide that it is responsible for requesting evidence necessary to
adjudicate the claim.10 Its procedures further indicate that it should contact a claimant, in writing,
to obtain evidence and should specifically request the information needed, tailored to the specifics
of the individual case.11
Compensation for wage loss due to disability, according to OWCP’s regulations, is
available only for periods during which an employee’s work-related medical condition prevents
him or her from earning the wages earned before the work-related injury. OWCP procedures
require that it properly develop the claim before payment of wage-loss compensation can be
considered, that development may also be needed to obtain the information necessary to make a
payment, and that this information should be requested simultaneously with the evidence needed
to support the claim so that payment can be made quickly if the compensation claim is ultimately
approved.12 It, however, failed to issue a development letter in response to appellant’s claim for
compensation from January 8 through 19, 2018.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter.
While the claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.13 As OWCP failed to
properly develop appellant’s claim for compensation in accordance with its procedures the Board
finds that the case must be remanded to OWCP to issue a development letter requesting pertinent
evidence necessary for the adjudication of the claim.14 Following this and such further
development as may be deemed necessary OWCP shall issue a de novo decision.

9

See M.J., Docket No. 19-1287 (issued January 13, 2020); William A. Archer, 55 ECAB 674 (2004).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.4.c(2)
(June 2011).
11

Id. at Chapter 2.800.5. See also V.R., Docket No. 16-1167 (issued December 22, 2016).

12

Id. at Chapter 2.901.5.a(4) (February 2013).

13

See D.B., Docket No. 19-0811 (issued March 9, 2020).

14

W.B., Docket No. 19-1775 (issued December 18, 2019).

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CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 5, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: May 15, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate 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
__________________________________________
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.

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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

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