United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.R., Appellant
and
INDEPENDENT AGENCIES, U.S. SENATE,
CAPITAL POLICE DEPARTMENT,
Washington, DC, Employer
__________________________________________

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

Docket No. 14-552
Issued: October 29, 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 January 13, 2014 appellant filed a timely appeal of a September 20, 2013 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying her traumatic injury claim
and a November 27, 2013 nonmerit decision denying her request for an oral hearing. 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 met her burden of proof to establish that she
sustained a traumatic injury in the performance of duty on June 13, 2013, as alleged; and
(2) whether OWCP’s Branch of Hearings and Review properly denied appellant’s request for an
oral hearing under 5 U.S.C. § 8124(b)(1).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 14, 2013 appellant, then a 58-year-old vehicle and materials screener, filed a
traumatic injury claim alleging that she fell on her left knee on June 13, 2013 after opening the
door to walk up the steps at the employing establishment. She stated that the injury occurred at
4:48 a.m.2 On the reverse of the form, appellant’s supervisor, Tasheka Westbury stated that
appellant informed her that she injured her foot on the steps. A witness saw appellant fall.
In a statement dated June 14, 2013, Ms. Westbury asserted that appellant told her that she
had hurt her foot on the steps at the employing establishment on June 13, 2013. Charmaine L.
Harris, a coworker, completed a June 18, 2013 statement. On June 13, 2013 she saw appellant
laying on the steps “as if she had tripped over something and was having a difficult time to get
up.” Appellant stated that she slipped and fell on the steps.
Sergeant Kendrick A. Young, appellant’s supervisor, completed a statement on
June 18, 2013. On June 13, 2013 appellant notified Ms. Westbury that she injured her foot while
walking up the steps. She later notified Sergeant Young that she was losing feeling in her right
leg because her already sore knee was injured while walking up the steps and that she required
medical treatment. Appellant informed him that her previous injury was to the right side of her
body not her right knee.
Joe Palmer, a coworker, completed a statement on June 20, 2013. Appellant returned to
the employing establishment on June 19, 2013 with her medical paperwork without crutches, an
immobilizer or a limp.
The employing establishment provided appellant with an Authorization for Examination
and/or Treatment, Form CA-16, on June 13, 2013. Appellant sought treatment at the Fort
Washington Medical Center on June 13, 2013 due to left knee pain. Dr. Karlene Ross, a Boardcertified family practitioner, examined appellant on June 27, 2013 due to pain and swelling in
her left knee following a fall. Appellant underwent a left knee magnetic resonance imaging
(MRI) scan on June 30, 2013. It demonstrated a high-grade medial compartment articular
surface degenerative joint disease chondromalacia with near complete meniscus body
degenerative tearing and marked subluxation extrusion of the meniscus. Dr. Ross noted a history
of a left knee arthroscopy surgery in 1999 and compared the 2013 MRI scan to a left knee MRI
scan in July 2004. Dr. Ross completed the Form CA-16 on July 10, 2013 and listed appellant’s
history as “fell while walking up the stairs and landed on the left knee.” She indicated with a
checkmark “yes” that appellant’s condition was caused or aggravated by her employment
activity. Dr. Ross listed the findings as degenerative joint disease and chondromalacia with
degenerative tearing of the medial meniscus.
On July 26, 2013 Dr. Shaheer Yousaf, a Board-certified orthopedic surgeon, examined
appellant and diagnosed a left knee contusion, internal derangement of the left knee, sprain of the
medial collateral ligament, chondromalacia, tendinitis, patellofemoral syndrome and meniscal
pathology. He listed the history of appellant’s onset as “Impact as she fell on the step going up.”
Dr. Yousaf recommended a knee brace.
2

Appellant’s tour of duty was listed as from 4:30 a.m. to 2:30 p.m.

2

In a letter dated August 12, 2013, OWCP requested additional factual and medical
information in support of appellant’s claim. It stated that the evidence was not sufficient to
establish that she experienced the June 13, 2013 incident as alleged and that the medical
evidence was not sufficient. OWCP directed appellant to respond to several questions as to the
incident and obtain a detailed report from her physician explaining how the work incident caused
or aggravated her medical condition. It allowed 30 days for a response.
Dr. Yousaf examined her on August 6, 2013 for left knee pain and strain, medial cruciate
ligament sprain and subluxed meniscal tear. He stated that appellant’s right knee was normal
and released her to sedentary work on August 16, 2013. On August 19, 2013 Dr. Yousaf signed
a form report noting her history of falling while climbing steps and indicating with a checkmark
“yes” that her condition was caused by her employment activity. He recommended left knee
arthroscopic surgery.
By decision dated September 20, 2013, OWCP denied appellant’s traumatic injury claim.
It found that she had not submitted sufficient factual evidence to establish the June 13, 2013
incident as alleged.
Appellant requested an oral hearing before the Branch of Hearings and Review through a
form dated October 23, 2013 and postmarked October 22, 2013. She also requested a review of
the written record regarding the September 20, 2013 decision from the Branch of Hearings and
Review through a form dated November 18, 2013 and received on November 20, 2013.
By decision dated November 27, 2013, the Branch of Hearings and Review denied
appellant’s request for an oral hearing or review of the written record. It found that her request
was not made within 30 days of OWCP’s September 20, 2013 decision. Further the issue could
equally well be addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”3 In order to
determine whether an employee actually sustained an injury in the performance of duty, OWCP
begins with an analysis of whether fact of injury has been established. Generally, fact of injury
consists of two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred.4 The second component is whether the employment incident
caused a personal injury and generally can be established only by medical evidence.
With respect to the first component of fact of injury, the employee has the burden of
establishing the occurrence of an injury at the time, place and in the manner alleged, by a
3

20 C.F.R. § 10.5(ee).

4

Elaine Pendleton, 40 ECAB 1143 (1989).

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preponderance of the reliable, probative and substantial evidence. An injury does not have to be
confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury in
the performance of duty, but the employee’s statements must be consistent with the surrounding
facts and circumstances and his subsequent course of action. An employee has not met his
burden of proof in establishing the occurrence of an injury when there are such inconsistencies in
the evidence as to cast serious doubt upon the validity of the claim. Such circumstances as late
notification of injury, lack of confirmation of injury, continuing to work without apparent
difficulty following the alleged injury and failure to obtain medical treatment may, if otherwise
unexplained, cast sufficient doubt on an employee’s statements in determining whether a prima
facie case has been established. However, an employee’s statement alleging that an injury
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong or persuasive evidence.5
Second, the employee must submit sufficient evidence, generally only in the form a
medical evidence, to establish that the employment incident caused a personal injury.6 When
determining whether the implicated employment incident caused a diagnosed condition, OWCP
generally relies on the rationalized medical opinion of a physician. It recognizes, however, that a
case may be accepted without a medical report if: (1) the condition reported is a minor one that
can be identified on visual inspection by a lay person (e.g., burn, laceration, insect sting or
animal bite); (2) the injury was witnessed or reported promptly and no dispute exists as to the
fact of injury; and (3) no time was lost from work due to disability.7
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on June 13, 2013, as alleged.
The Board finds that appellant has submitted factual evidence to establish that the
June 13, 2013 traumatic incident occurred. Appellant provided consistent statements on her
claim form and to her physicians that she tripped on steps and fell on her left knee at the
employing establishment on June 13, 2013. The record contains a witness’ statement supporting
that appellant fell on steps on June 13, 2013. Appellant consistently reported that she landed on
her left knee. The employing establishment submitted statements that she initially reported a
foot and right knee injury, but these statements do not conform to the history of injury as claimed
or the reports given by appellant to her physicians. This evidence does not cast sufficient doubt
as to the validity of her claim. The Board finds that appellant fell on steps at the employing
establishment on June 13, 2013.
The Board finds, however, that appellant has not submitted sufficient medical opinion
evidence to establish that this incident resulted in her left knee condition. Dr. Yousaf initially
diagnosed a left knee contusion as a result of appellant’s employment incident. Dr. Ross
5

D.B., 58 ECAB 464, 466-67 (2007).

6

J.Z., 58 ECAB 529 (2007).

7

A.S., 59 ECAB 246 (2007).

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examined appellant on June 27, 2013 for pain and swelling in her left knee following a fall. The
Board has held that the diagnosis of pain does not constitute a firm medical diagnosis.8 Dr. Ross
did not list other diagnosed conditions as resulting from appellant’s fall. Her report is not
sufficiently detailed to meet appellant’s burden of proof in establishing a traumatic injury as a
result of her June 13, 2013 employment incident.
The form reports of Dr. Ross and Dr. Yousaf listed that appellant’s diagnosed left knee
condition was causally related to the employment incident. The Board has held that an opinion
on causal relationship which consists only of a physician checking “yes” to a medical form report
question on whether the claimant’s condition is related to the history given is of diminished
probative value. Without any explanation or rationale for the conclusion reached, such reports are
insufficient to establish causal relationship.9 Neither Dr. Ross nor Dr. Yousaf provided a narrative
medical opinion evidence addressing a full or accurate history of appellant’s left knee condition,
prior treatment or exploring how the internal derangement, sprain of the medial collateral
ligament, chondromalacia, tendinitis, patellofemoral syndrome or meniscal pathology were
caused or aggravated by the June 13, 2013 fall. Without detailed medical opinion evidence
explaining how appellant’s fall caused or aggravated her underlying degenerative condition,
these reports are not sufficient to meet appellant’s burden of establishing a traumatic injury
claim.10
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
Section 8124(b) of FECA,11 concerning a claimant’s entitlement to a hearing before an
OWCP representative, states: “Before review under section 8128(a) of this title, a claimant ...
not satisfied with a decision of the Secretary ... is entitled, on request made within 30 days after
the date of issuance of the decision, to a hearing on his claim before a representative of the
Secretary.”12

8

Robert Broome, 55 ECAB 339 (2004).

9

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

10

The Board, however, notes that where, as in this case, an employing establishment properly executes a Form
CA-16 which authorizes medical treatment as a result of an employee’s claim for an employment-related injury, the
Form CA-16 creates a contractual obligation, which does not involve the employee directly, to pay for the cost of
the examination or treatment regardless of the action taken on the claim. See Tracy P. Spillane, 54 ECAB
608 (2003). The period for which treatment is authorized by a Form CA-16 is limited to 60 days from the date of
issuance, unless terminated earlier by OWCP. 20 C.F.R. § 10.300(c). The record in this case indicates that
appellant underwent treatment as a covered expense.
11

5 U.S.C. §§ 8101-8193.

12

Id. at § 8124(b)(1).

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The Board has held that section 8124(b)(1) is “unequivocal” in setting forth the time
limitation for requesting hearings and reviews of the written record. A claimant is entitled to a
hearing or review of the written record as a matter of right only if the request is filed within the
requisite 30 days.13 Even where the hearing or review of the written record request is not timely
filed, OWCP may within its discretion, grant a hearing, and must exercise this discretion.14
ANALYSIS -- ISSUE 2
Following the September 20, 2013 decision by OWCP, appellant requested an oral
hearing before the Branch of Hearings and Review through a form dated October 23, 2013 and
postmarked October 22, 2013. The time limit of 30 days for requesting an oral hearing after the
September 20, 2013 decision expired on October 21, 2013. As appellant’s request for an oral
hearing was 31 days after the September 20, 2013 OWCP decision it was untimely. She also
requested a review of the written record from the Branch of Hearings and Review regarding the
September 20, 2013 decision through a form dated November 18, 2013 and received on
November 20, 2013. This request was made more than 30 days after the September 20, 2013
decision and was also untimely. OWCP therefore, properly denied appellant’s requests for
review as a matter of right.
OWCP then proceeded to exercise its discretion, in accordance with Board precedent, to
determine whether to grant further review in this case. It determined that a hearing or review of
the written record was not necessary as the issue in the case was medical in nature and could be
resolved through the submission of medical evidence in the reconsideration process. Therefore,
OWCP properly denied appellant’s request for a hearing and her request for a review of the
written record as untimely and properly exercised its discretion in determining to deny her
requests as she had other appeal options available.
CONCLUSION
The Board finds that appellant has established that the June 13, 2013 employment
incident occurred as alleged, but that she failed to submit sufficient medical evidence to establish
her claim. The Board further finds that OWCP properly declined her request for an oral hearing
as untimely.

13

Tammy J. Kenow, 44 ECAB 619 (1993).

14

Id.

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ORDER
IT IS HEREBY ORDERED THAT the September 20, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed as modified and that the November 27, 2013
decision is affirmed.
Issued: October 29, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
M.O., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
San Antonio, TX, Employer
__________________________________________

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

Docket No. 07-1699
Issued: December 11, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 11, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 20, 2006 merit decision concerning her wage-earning
capacity and the Office’s March 16, 2007 nonmerit decision denying her request for a hearing.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of
this case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant’s actual wages
in her licensed vocational nurse position fairly and reasonably reflected her wage-earning
capacity effective September 11, 2006, the date that it adjusted her compensation to zero; and
(2) the Office properly denied appellant’s request for a hearing under section 8124 of the Federal
Employees’ Compensation Act.

FACTUAL HISTORY
In January 2004, the Office accepted that appellant, then a 60-year-old licensed
vocational nurse, sustained subacromial impingement syndrome, subacromial bursitis and
degenerative joint disease of the acromioclavicular (ACV) joint of her right shoulder due to the
repetitive lifting, pushing and pulling of patients and equipment required by her job.1 The Office
paid appellant appropriate compensation for periods of disability.2 On February 24, 2004
Dr. David M. Gonzalez, an attending Board-certified orthopedic surgeon, performed right
shoulder surgery, including a rotator cuff repair, subacromial decompression and distal clavicle
resection. The surgery was authorized by the Office. On February 15, 2005 appellant received a
schedule award for a 14 percent permanent impairment of her right arm.
On February 21, 2006 Dr. Gonzalez performed left shoulder surgery, including a rotator
cuff repair, subacromial decompression and distal clavicle resection. The surgery was authorized
by the Office. Appellant stopped work at the time of her February 21, 2006 surgery and received
compensation for total disability. She began to work towards a return to work with a field nurse
assigned by the Office and participated in regular physical rehabilitation sessions.
On August 28, 2006 Dr. Gonzalez determined that appellant could return to work for
eight hours per day without restrictions except for no lifting, pushing and pulling more than five
pounds, avoidance of reaching above her shoulders and no driving beyond driving back and forth
from work.3 Appellant returned to work on September 11, 2006 as a licensed vocational nurse
for the employing establishment. The position involved handling triage telephone calls and
watching the vital signs of patients.4 Appellant continued to work in this position.
In a December 20, 2006 decision, the Office determined that the position of licensed
vocational nurse fairly and reasonably reflected appellant’s wage-earning capacity effective
September 11, 2006 and adjusted her compensation to zero effective that date. The Office noted
that this determination was justified by the fact that appellant had received actual earnings as a
licensed vocational nurse for more than 60 days in that she had been working in the position
since September 11, 2006. It determined that it was appropriate to reduce appellant’s
compensation to zero because her actual earnings in the current licensed vocational nurse
position were greater than the current pay rate of the job she held on September 29, 2003, i.e.,
the date of injury.5

1

Appellant indicated that she first became aware of her employment-related condition on September 29, 2003.

2

The Office also accepted that on December 22, 2003 appellant sustained a sprain/strain of her left knee and leg
and a sprain/strain of her left elbow and forearm. It does not appear that appellant lost time from work due to this
injury.
3

On October 9, 2006 Dr. Gonzalez indicated that appellant could lift, push and pull up to 10 pounds.

4

The position contained the same restrictions as those recommended by Dr. Gonzales.

5

The record contains documents which show that, at the time of the Office’s December 20, 2006 decision, the
current pay rate of the job appellant held on September 29, 2003 was $774.10 per week and that she earned $792.10
per week in the licensed vocational nurse position she returned to on September 11, 2006.

2

In a January 31, 2007 letter, appellant indicated that she performed her work duties with a
great deal of pain.6 In a February 2, 2007 form, she requested a hearing before an Office hearing
representative. The form was sent in an envelope postmarked on February 2, 2007.
In a March 16, 2007 decision, the Office denied appellant’s request for a hearing. The
Office found that her February 2, 2007 hearing request was made more than 30 days after the date
of issuance of its prior decision dated December 20, 2006 and, thus, she was not entitled to a
hearing as a matter of right. The Office indicated that it was exercising its discretion and denying
appellant’s hearing request on the basis that the issue in the case could equally well be addressed
by requesting reconsideration and submitting additional evidence showing that the Office’s
wage-earning capacity determination was improper.7
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.8 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.9
Section 8115(a) of the Act provides that the “wage-earning capacity of an employee is
determined by his actual earnings if his actual earnings fairly and reasonably represent his wageearning capacity.”10 The Board has stated, “Generally, wages actually earned are the best
measure of a wage-earning capacity and in the absence of evidence showing that they do not
fairly and reasonably represent the injured employee’s wage-earning capacity, must be accepted
as such measure.”11 Office procedures direct that a wage-earning capacity determination based
on actual wages be made following 60 days of employment.12 The procedures provide for a
retroactive determination where an employee has worked for at least 60 days, the employment
fairly and reasonably represents the claimant’s wage-earning capacity, and work stoppage did
not occur due to any change in the claimant’s injury-related condition.13
For actual wages to fairly and reasonably represent wage-earning capacity, the position in
which the wages are earned should not involve part-time, sporadic, seasonal or temporary
6

Appellant also submitted additional medical evidence.

7

Appellant submitted additional evidence after the Office’s decision, but the Board cannot consider such evidence
for the first time on appeal. See 20 C.F.R. § 501.2(c).
8

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

9

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

10

5 U.S.C. § 8115(a).

11

Floyd A. Gervais, 40 ECAB 1045, 1048 (1989); Clyde Price, 32 ECAB 1932, 1934 (1981).

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Capacity, Chapter 2.814.7c (December 1993).
13

Id. at Chapter 2.814.7e (December 1993).

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Determining Wage-Earning

work,14 nor may the position be a make-shift position designed for a claimant’s particular
needs.15
ANALYSIS -- ISSUE 1
In January 2004, the Office accepted that appellant sustained subacromial impingement
syndrome, subacromial bursitis and degenerative joint disease of the ACV joint of her right
shoulder due to the repetitive lifting, pushing and pulling of patients and equipment required by
her job.16 Appellant returned to work on September 11, 2006 as a licensed vocational nurse for
the employing establishment.
The Board finds that the Office properly determined that appellant’s actual wages in her
licensed vocational nurse position fairly and reasonably reflected her wage-earning capacity
effective September 11, 2006, the date that it adjusted her compensation to zero. In reaching its
determination of appellant’s wage-earning capacity, the Office properly noted that appellant
received actual earnings as a licensed vocational nurse for more than 60 days in that she had
been working in the position since September 11, 2006 when the Office issued its December 20,
2006 decision.17 The Office properly found that such wages fairly and reasonably represented
appellant’s wage-earning capacity. The record does not contain any evidence showing that the
licensed vocational nurse position constitutes part-time, sporadic, seasonal or temporary work.
Moreover, the record does not reveal that the position is a make-shift position designed for a
claimant’s particular needs.18 The Office also properly determined that it was appropriate to
reduce appellant’s compensation to zero because her actual earnings in the current licensed
vocational nurse position were greater than the current pay rate of the job she held on
September 29, 2003, i.e., the date of injury.19
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act, concerning a claimant’s entitlement to a hearing before an
Office representative, provides in pertinent part: “Before review under section 8128(a) of this title,
a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on request
made within 30 days after the date of the issuance of the decision, to a hearing on his claim before
14

Id. at Chapter 2.814.7a (December 1993). Wage-earning capacity may be based on actual wages in a part-time
position if the employee was a part-time worker at the time of the injury. Id.
15

See William D. Emory, 47 ECAB 365, 372 (1996).

16

Appellant indicated that she first became aware of her employment-related condition on September 29, 2003.

17

See supra note 12 and accompanying text.

18

See supra notes 14 and 15 and accompanying text. The Board further notes that the duties of the licensed
vocational nurse position were within the August 2006 work restrictions recommended by Dr. Gonzalez, an
attending Board-certified orthopedic surgeon. It was appropriate for the wage-earning determination to be
retroactive because appellant worked for at least 60 days, the employment fairly and reasonably represented her
wage-earning capacity and she did not stop work due to any change in her injury-related condition. See supra note
13 and accompanying text.
19

The record contains pay rate documents which support this determination.

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a representative of the Secretary.”20 As section 8124(b)(1) is unequivocal in setting forth the time
limitation for requesting a hearing, a claimant is not entitled to a hearing as a matter of right unless
the request is made with in the requisite 30 days.21 The date of filing of a hearing request is fixed
by postmark or other carrier’s date marking.22
The Board has held that the Office, in its broad discretionary authority in the
administration of the Act, has the power to hold hearings in certain circumstances where no legal
provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing.23 Specifically, the Board has held that the
Office has the discretion to grant or deny a hearing request on a claim involving an injury
sustained prior to the enactment of the 1966 amendments to the Act which provided the right to a
hearing,24 when the request is made after the 30-day period for requesting a hearing,25 and when
the request is for a second hearing on the same issue.26
ANALYSIS -- ISSUE 2
Appellant requested a hearing before an Office representative in a form dated
February 2, 2007 and sent in an envelope postmarked February 2, 2007. The date of filing for
appellant’s hearing request was fixed by the date of the postmark, i.e., February 2, 2007.27
Appellant’s February 2, 2007 hearing request was made more than 30 days after the date of
issuance of the Office’s prior decision dated December 20, 2006 and, thus, appellant was not
entitled to a hearing as a matter of right. Hence, the Office was correct in stating in its March 16,
2007 decision that appellant was not entitled to a hearing as a matter of right because her
February 2, 2007 hearing request was not made within 30 days of the Office’s December 20, 2006
decision.
While the Office also has the discretionary power to grant a hearing when a claimant is
not entitled to a hearing as a matter of right, the Office, in its March 16, 2007 decision, properly
exercised its discretion by stating that it had denied appellant’s hearing request on the basis that
the issue in the case could equally well be addressed by requesting reconsideration and
submitting additional evidence showing that the Office’s wage-earning capacity determination
was improper. The Board has held that as the only limitation on the Office’s authority is
20

5 U.S.C. § 8124(b)(1).

21

Ella M. Garner, 36 ECAB 238, 241-42 (1984).

22

See 20 C.F.R. § 10.616(a).

23

Henry Moreno, 39 ECAB 475, 482 (1988).

24

Rudolph Bermann, 26 ECAB 354, 360 (1975).

25

Herbert C. Holley, 33 ECAB 140, 142 (1981).

26

Johnny S. Henderson, 34 ECAB 216, 219 (1982).

27

See supra note 22 and accompanying text.

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reasonableness, abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
deduction from established facts.28 In the present case, the evidence of record does not indicate
that the Office committed any act in connection with its denial of appellant’s hearing request
which could be found to be an abuse of discretion.
CONCLUSION
The Board finds that the Office properly determined that appellant’s actual wages in her
licensed vocational nurse position fairly and reasonably reflected her wage-earning capacity
effective September 11, 2006, the date that it adjusted her compensation to zero. The Board
further finds that the Office properly denied appellant’s request for a hearing under section 8124
of the Act.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
Office’s March 16, 2007 and December 20, 2006 decisions are affirmed.
Issued: December 11, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

28

Daniel J. Perea, 42 ECAB 214, 221 (1990).

6


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

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

Docket No. 10-198
Issued: September 13, 2010

Case Submitted on the Record

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

JURISDICTION
On October 26, 2009 appellant filed a timely appeal of an October 8, 2009 decision of the
Office of Workers’ Compensation Programs concerning his claim for erectile dysfunction.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
appeal.
ISSUE
The issue is whether appellant established that he sustained impairment of the penis
causally related to his accepted employment injury.
FACTUAL HISTORY
This is the third time this case has been before the Board. In a decision dated May 16,
2006, the Board set aside the Office’s January 4, 2005 decision granting a schedule award for a
16 percent permanent impairment of the right and left lower extremities and remanded the case

for further development.1 The Board directed further explanation from an Office medical adviser
regarding appellant’s impairment. The Board also noted that, although Dr. George L. Rodriguez,
a Board-certified physiatrist, had opined that appellant’s erectile dysfunction was work related
and assigned a 10 percent permanent impairment due to such a condition, the Office had not
issued a decision as to whether such condition was consequential to the accepted injury. In a
decision dated August 20, 2007, the Board affirmed the Office’s September 13, 2006 decision.2
The Board found that appellant had no more than 16 percent right leg impairment and 16 percent
left leg impairment, for which he received a schedule award. The Board also found that
appellant was not entitled to a schedule award based on erectile dysfunction and that a referral to
a urologist was not appropriate. The Board noted that Dr. Rodriguez did not provide medical
reasoning to support his opinion that appellant had any condition affecting the penis causally
related to the accepted employment injury and the Office properly relied on the Office medical
adviser’s opinion to find that appellant had no work-related condition of the penis. The findings
of fact and conclusions of law as set forth in the Board’s prior decisions are hereby incorporated
by reference.
The relevant facts indicate that the Office accepted appellant’s claim for an acute lumbar
strain with radiculopathy and approved subsequent surgical procedures of August 13, 1991,
March 29, 1994, May 29, 1996, September 9, 1999 and May 2, 2001. The question of whether
the work injury caused or affected appellant’s erectile dysfunction and penile impairment was
first raised in Dr. Rodriguez’s July 9, 2004 report. Dr. Rodriguez recommended 10 percent
impairment rating for erectile dysfunction, which he opined was employment related. In
reviewing the medical record, the Office medical adviser, in an August 30, 2006 report, rejected
Dr. Rodriquez’s recommendation of an erectile dysfunction impairment on the basis of the
second opinion report of Dr. Robert F. Draper, Jr., a Board-certified orthopedic surgeon, dated
May 10, 2004, who examined appellant and found a normal stance and gait and no motor or
sensory deficits of the lower extremities based on the L1, L2, L3, L4, L5 and S1 nerve roots.
The Office medical adviser found that Dr. Draper had carried out appropriate testing on the nerve
roots while Dr. Rodriguez had incorrectly referenced actual nerves. On that basis, he found
Dr. Draper’s report to be more detailed and credible than Dr. Rodriguez’s report. As Dr. Draper
found no evidence of neurologic abnormalities, the Office medical adviser opined that it would
be highly unlikely that appellant would have an erectile dysfunction as a result of his workrelated injury.
In an April 8, 2008 letter, appellant, through his attorney, requested reconsideration of the
denial of his claim for erectile dysfunction. In support of his request, he submitted a
February 14, 2008 report from Dr. Michael R. Lobis, a Board-certified urologist, who noted
seeing appellant on February 5, 2008. Dr. Lobis noted the history of injury as set forth in an
amended statement of accepted facts and that appellant had an ongoing problem with erectile
dysfunction for the past 9 or 10 years that started after one of his back surgeries. He explained
that erectile function was dependant on the proper neurologic pathway from the sacral spinal
1

Docket No. 06-240 (issued May 16, 2006). Appellant’s claim was accepted for an acute lumbar strain with
radiculopathy. He underwent lumbar discectomy at L4-5 with facetectomy at L5-S1, discectomy at L5-S1 and
lumbar decompressive surgeries.
2

Docket No. 06-2147 (issued August 20, 2007).

2

cord to the penile tissues and, when there was a disruption of this normal neurologic function, the
penile tissues lose the ability to get the proper neurologic input that increases the blood flow
which causes the patient to have an erection. Dr. Lobis stated that appellant’s chronic back pain
with compression of the lumbosacral nerves as well as his other risk factors of age, hypertension
and a history of smoking could give erectile dysfunction. He opined that, while there may be a
multifactorial source for appellant’s erectile dysfunction, given his known back disease, he
suspected that his back condition represented 50 plus percent of the causation of his erectile
dysfunction. Dr. Lobis discounted appellant’s other risk factors of hypertension, age and prior
smoking as appellant had no problems with his erections prior to the beginning of his injury.
By decision dated October 8, 2009, the Office denied modification of its prior decisions.
LEGAL PRECEDENT
An employee seeking compensation under the Act has the burden of establishing the
essential elements of his claim by the weight of the reliable, probative and substantial evidence.3
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.4 Rationalized medical evidence is medical
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.5 Neither the mere 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.6
ANALYSIS
The Board finds that appellant has not established that he has an erectile dysfunction
condition causally related to the work injury or that he is entitled to a schedule award for erectile
dysfunction secondary to his accepted work-related injury.7 It is a claimant’s burden to submit

3

Michael S. Mina, 57 ECAB 379 (2006); Gary J. Watling, 52 ECAB 278 (2001).

4

Frankie A. Farinacci, 56 ECAB 723 (2005); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

5

Kathryn E. Demarsh, 56 ECAB 677 (2005); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB
365 (1994).
6

Daniel O. Vasquez, 57 ECAB 559 (2006); Dennis M. Mascarenas, 49 ECAB 215 (1997).

7

Appellant has not submitted any new evidence or argument pertaining to the schedule award decision for the
right and left lower extremities. Thus, the issue adjudicated in the Board’s August 20, 2007 decision is res judicata
and not subject to further consideration by the Board in this appeal. 5 U.S.C. § 8128; Clinton E. Anthony, Jr., 49
ECAB 476 (1998).

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sufficient evidence to establish entitlement to a schedule award.8 In this case, the Office has not
accepted an erectile dysfunction as related to the employment-related back injury.9
The Board, in its August 20, 2007 decision, found that Dr. Rodriquez’s report was
insufficient to establish that appellant’s erectile dysfunction was related to the accepted
employment injury as the physician did not explain how any impairment for loss of sexual
function was due to the accepted back condition.10 The Board found that the Office properly
relied on the Office medical adviser’s rationalized opinion that the absence of neurologic
abnormality would render it highly unlikely that appellant would have an erectile dysfunction as
a result of his work-related injury.
The February 14, 2008 report of Dr. Lobis is insufficient to establish that appellant’s
erectile dysfunction is related to the accepted employment injury as he did not provide a fullyrationalized explanation as to how appellant’s condition was employment related. To be of
probative value, the physician must provide rationale for the opinion reached.11 Dr. Lobis’
opinion that appellant’s erectile dysfunction resulted from his chronic back pain with
compression of the lumbosacral nerves is at best speculative in nature. He advised that appellant
had several risk factors for erectile dysfunction and suspected that appellant’s back condition
was a cause. Dr. Lobis did not provide any reasoning referencing findings of appellant’s
attending neurosurgeons in addressing the cause of appellant’s erectile dysfunction. This is
especially important given that Dr. Draper, the second opinion physician, found no neurologic
abnormalities in his May 10, 2004 report. Although Dr. Lobis noted seeing appellant, he did not
report any examination findings or indicate that he reviewed any diagnostic testing in diagnosing
erectile dysfunction in arriving at his opinion on causal relationship. It is well established that
medical opinions based on an incomplete history or which are speculative or equivocal are of
diminished probative value.12 Furthermore, the Board has held that a temporal relationship alone
is insufficient to establish causal relationship.13 The mere assertion that appellant had no
problems with his erections prior to the beginning of his injury is insufficient to show that his
erectile condition is caused or aggravated by his employment injury.
Appellant has not submitted sufficient medical evidence to establish that his erectile
dysfunction condition is a consequence of his accepted employment injury. Consequently, there
is no basis for payment of a schedule award for permanent impairment of the penis.

8

Tammy L. Meehan, 53 ECAB 229 (2001).

9

Where an employee claims that a condition not accepted or approved by the Office 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. Jaja K. Asaramo, 55 ECAB 200 (2004).
10

See 20 C.F.R. § 10.404(a); Wade Baker, 54 ECAB 198 (2002).

11

Jean Culliton, 47 ECAB 728 (1996).

12

Cecelia M. Corley, 56 ECAB 662 (2005).

13

Louis R. Blair, Jr., 54 ECAB 348, 350 (2003).

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On appeal, appellant’s attorney asserts that the evidence is sufficient to accept that
appellant’s claimed erectile dysfunction is employment related or that the evidence is sufficient
to require further medical development. As noted, the Board previously found that appellant had
not shown that his erectile dysfunction was employment related and that further medical referral
was not appropriate. Although appellant subsequently submitted Dr. Lobis’ report, this report, as
discussed, is of insufficient probative value to establish appellant’s claim or to require further
medical development.
CONCLUSION
The Board finds that appellant has not established that he has an erectile dysfunction
condition causally related to the work injury or that he is entitled to a schedule award for erectile
dysfunction secondary to his accepted work-related injury.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated October 8, 2009 is affirmed.
Issued: September 13, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 14-1608
Issued: November 19, 2014

Case Submitted on the Record

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

JURISDICTION
On July 15, 2014 appellant filed a timely appeal from a May 15, 2014 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the nonmerit decision by OWCP.
The last merit decision of record was OWCP’s July 11, 2013 decision. Because more than 180
days elapsed between the last merit decision to the filing of this appeal, the Board lacks
jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for further review of the
merits pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

An appeal of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the
decision. 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On May 7, 2013 appellant, then a 39-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that he sustained a lower back injury on that same date when he was
off-loading mail from a container. He notified his supervisor and stopped work that same date.
Appellant first sought medical treatment on May 8, 2013.
An OWCP Form CA-16, authorization for examination, dated May 8, 2013, indicated
that appellant was authorized to visit Dr. Todd Goldman, a treating chiropractor.3 On the second
page of the form, Dr. Goldman reported that on May 7, 2013 appellant felt a pull in his lower
back when he was carrying mail out of a container. He noted review of x-rays and diagnosed
subluxation and contusion of back. Dr. Goldman checked the box marked “yes” when asked if
he believed the condition was caused or aggravated by the employment injury.
Appellant submitted a May 8, 2013 duty status report (Form CA-17) which provided a
diagnosis of lumbar sprain and an undated attending physician’s report (Form CA-20) from
Dr. Goldman.
By letter dated June 4, 2013, OWCP informed appellant that the evidence of record was
insufficient to support his claim and requested additional factual and medical evidence.
In a May 8, 2013 medical report, Dr. Goldman provided a history of the May 7, 2013
injury noting that appellant was off-loading mail from a container and felt pain in his lower back.
He provided findings on physical examination and reviewed a May 8, 2013 x-ray of the lumbar
spine which revealed subluxation at L4-5. Dr. Goldman diagnosed lumbar subluxation and
opined that appellant’s injury was causally related to the May 7, 2013 accident.
By decision dated July 11, 2013, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that his diagnosed conditions were causally related to the
accepted May 7, 2013 employment incident.
By letter dated February 10, 2014, appellant requested reconsideration of OWCP’s
decision. He argued that his injury was employment related and his assignment for the last six
years was very physically demanding.
A May 30, 2013 Family and Medical Leave Act (FMLA) Certification of Health Care
Provider Form was provided by Dr. Goldman which noted a diagnosis of lumbar subluxation and
severe lumbar spine pain. Appellant was provided with work restrictions.
In an undated letter of medical necessity, Dr. Goldman reported that appellant was being
treated for spinal pain due to an auto or work-related injury. As a result of appellant’s injury, he

3

A properly completed Form CA-16 authorization may constitute a contract for payment of medical expense to a
medical facility or physician, when properly executed. The form creates a contractual obligation, which does not
involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on
the claim. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003).

2

argued that it was medically necessary to obtain computerized physical performance and neuro
muscular testing.
In a May 22, 2013 neuromuscular diagnostic procedure, Dr. S. Matrangolo, a treating
chiropractor, provided examination findings.
By decision dated May 15, 2014, OWCP denied appellant’s request for reconsideration
finding that he neither raised substantive legal questions nor included new and relevant
evidence.4
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.5 Section 10.608(b) of OWCP regulations
provides that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.6
ANALYSIS
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the
claim. In his February 10, 2014 application for reconsideration, appellant did not show that
OWCP erroneously applied or interpreted a specific point of law. He did not advance a new and
relevant legal argument. Appellant’s sole argument is that his injury was employment-related to
the May 7, 2013 employment incident. That is a medical issue which must be addressed by
relevant medical evidence.7
While appellant submitted new reports from Dr. Goldman and Dr. Matrangolo, these
reports are not relevant to establishing a causal relationship between appellant’s lumbar
condition and the May 7, 2013 employment incident. Dr. Goldman’s undated letter of medical
4

The Board notes that appellant submitted additional evidence after OWCP rendered its May 15, 2014 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1); Dennis E. Maddy,
47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).
5

D.K., 59 ECAB 141 (2007).

6

K.H., 59 ECAB 495 (2008).

7

See Bobbie F. Cowart, 55 ECAB 746 (2004).

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necessity argued the need for computerized physical performance and neuro muscular testing.
His letter failed to provide a subluxation diagnosis or any opinion on causation. While
Dr. Goldman’s May 30, 2013 FMLA form noted a subluxation diagnosis, he failed to provide
any medical rationale that the diagnosed condition was caused by the May 7, 2013 employment
incident.8 Dr. Matrangolo’s May 22, 2013 neuromuscular diagnostic report is also insufficient to
reopen the case for review of the merits of appellant’s claim. There is no indication that
Dr. Matrangolo, a chiropractor, diagnosed subluxation based on the results of an x-ray.9 As
Dr. Matrangolo does not meet the statutory definition of a physician, his reports lacks probative
value.10
While these reports were not previously of record, they are irrelevant to the grounds upon
which OWCP denied appellant’s claim. Appellant’s claim was denied because the medical
evidence lacked a rationalized opinion from a physician, with a physiological description of how
his claimed injury resulted from the May 7, 2013 employment incident and a full and accurate
factual and medical history, on the issue of causal relationship. As the reports of Dr. Goldman
and Dr. Matrangolo do not contain such an opinion, they are not relevant and are therefore
insufficient to require a merit review of appellant’s claim.11
The Board has held that the submission of evidence which does not address the particular
issue involved does not constitute a basis for reopening a case.12 Claimant may obtain a merit
review of an OWCP decision by submitting new and relevant evidence. In this case, while
appellant submitted new evidence, it was not relevant in the issue in this case.
The Board notes that the employing establishment properly issued a Form CA-16 which
authorized medical treatment as a result of the employee’s claim for an employment-related
injury. The Form CA-16 creates a contractual obligation, which does not involve the employee
directly, to pay for the cost of the examination or treatment regardless of the action taken on the
claim.13 The period for which treatment is authorized by a Form CA-16 is limited to 60 days
from the date of issuance, unless terminated earlier by OWCP. On return of the record, OWCP
should adjudicate whether appellant’s examination or treatment is reimbursable under the form.

8

A chiropractor is not considered a physician under FECA unless it is established that there is a spinal
subluxation as demonstrated by x-ray to exist. 5 U.S.C. § 8101(2). As Dr. Goldman diagnosed lumbar subluxation
confirmed by x-ray, he is considered to be a “physician” under FECA with this specific diagnosis only. See Kathryn
Haggerty, 45 ECAB 383 (1994).8
9

5 U.S.C. § 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. 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 and subject to regulation by the secretary. See Merton J. Sills, 39 ECAB 572, 575 (1988).
10

T.G., Docket No. 13-76 (issued March 22, 2013).

11

M.N., Docket No. 14-245 (issued May 2, 2014).

12

Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew Diekemper, 31 ECAB 224 (1979).

13

L.E., Docket No. 14-684 (issued July 29, 2014); see Tracy P. Spillane, supra note 3.

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The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP
or submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 15, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 19, 2014
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Cleveland, OH, Employer
__________________________________________

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

Docket No. 07-1150
Issued: September 21, 2007

Case Submitted on the Record

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

JURISDICTION
On March 16, 2007 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated August 16, 2006 and from an Office hearing
representative’s decision of March 1, 2007, denying her claim for compensation for an
employment-related injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the claim.
ISSUE
The issue is whether appellant established that she sustained an injury in the performance
of duty.
FACTUAL HISTORY
On May 12, 2006 appellant, then a 60-year-old administrative support clerk, filed a
recurrence claim alleging that she sustained a disability due to a February 5, 2004 injury on
April 25, 2006. She alleged that her trigger thumbs were caused by highly repetitive force in the
use of the digits of her hands. Appellant noted that this caused swelling around the tendons and

increased her pain. The tendons on both her thumbs became inflamed and swollen. The
employing establishment noted that, after the original injury, appellant was placed in transitional
assignments not requiring her to use a keyboard or type. It noted that she was returned to dental
service but did not type or use a keyboard in her light-duty dental assignment. On May 19, 2006
the employing establishment stated that bilateral trigger thumbs were never accepted in
appellant’s original claim and that there were new work factors involved. It converted her claim.
Appellant submitted an April 4, 2005 progress note from a physician’s assistant at the
employing establishment. She complained on that date of right hand pain in the region of the
thenar eminence which had been ongoing since February 15, 2006. The physician’s assistant
noted that appellant indicated that the pain was primarily caused when she is writing with a pen
or pencil.” He listed his impression as sprain of the right thumb.
In a May 26, 2005 letter to appellant, the employing establishment confirmed that she
was placed in a new transitional assignment with the patient escort program. In an April 12,
2006 letter to appellant, the employing establishment noted that she was unable to meet the
physical requirements of her current secretarial position in dental service. Appellant was being
transferred to in patient care administrative service where she would perform clerical duties in
support of patients at the clinic. Her position title would be administrative support clerk. On
April 20, 2006 appellant accepted the position.
On May 11, 2006 appellant was seen by Dr. Patrick Convery, a Board-certified
orthopedic surgeon. He indicated that she had been using a keyboard at work and that this has
caused her right thumb pain to recur. Dr. Convery noted that appellant had left and right radial
trigger tendinitis and left and right hand thumb pain. He made a permanent restriction of no
typing or keyboard use. In response to an inquiry from the employing establishment,
Dr. Convery completed a work restriction evaluation. He noted that he had reviewed the job
description for administrative support clerk and that appellant could perform the duties of this
job.
By letter dated May 31, 2006, the Office requested that appellant submit further
information. On June 16, 2006 appellant noted that she had been having problems with both her
thumbs since October 2004 and that recent job assignments caused inflammation and swelling
around the tendons in both hands. From February 6 to April 20, 2006 she was reassigned to her
former position as secretary for dental services and the job involved filing and longhand writing.
At that time, appellant was on permanent restrictions for no keyboard and no computer duties so
she did the work, other staff members did on the computer by longhand. She also noted that
filing was painful. This dental work assignment ended in April 2006 and appellant was placed in
patient administration care services. She was required to do keyboarding and typing despite her
restrictions and this has caused her thumbs to swell.
By letter dated June 20, 2006, the employing establishment noted that appellant had been
returned to her nontyping position in dental service because her inability to walk prevented her
from continuing in a patient escort position. It noted that appellant did no typing in her dental
service position and did very little writing. The employing establishment indicated that she was
not doing anything remotely connected to highly repetitive force on the keyboard or writing in
February 2006. It submitted a note from the chief of dental services dated June 19, 2006. He

2

indicated that, when appellant returned to her dental assignment, she only answered telephones
and provided liaison with other services. Appellant had others do typing for her. The chief of
dental services also indicated that the only writing appellant did was telephone messages or short
one or two line notations on forms.
By decision dated August 16, 2006, the Office denied appellant’s claim finding that the
evidence was insufficient to establish that the work event occurred as alleged. It noted that
appellant had failed to establish the work conditions that could have caused an injury.
By letter dated August 21, 2006, appellant requested an oral hearing.
At the hearing held on January 23, 2007, appellant stated that she worked for the
employing establishment for 28 years before retiring and that she spent most of her career at the
employing establishment as a secretary. Following surgery, she was off work from May 25 to
July 9, 2004 and went back out on November 9, 2004 and came back to work on
January 31, 2005. Appellant was put in a reception job from February 8 to June 2005, which
involved no typing. She was then reassigned to a job as reception to a courier in the hospital
where she ran errands such as picking up blood samples and running specimens. Appellant
noted that this job involved little hand work. While on this job, she injured her calf muscle and
was off work for about a week. After she returned in June 2005, she was placed back in the
secretary position. Appellant noted that there was paperwork in this position but that she was
unable to do typing and or use the keyboard so she sought assistance from other employees. Her
supervisor told her to handwrite evaluations and this activity caused stress on her hand.
Appellant noted that her right hand began to hurt so she used her left hand. She indicated that
she wrote about three to four hours a day. Appellant wrote travel vouchers and papers, invoices,
telephone messages, memos and evaluations. She also stated that it was difficult to dial the
telephone, which was part of her job duties. Appellant noted that the job to which she was
assigned in May 2006 involved typing which she could not do, so she retired on June 30, 2006.
In a November 6, 2006 report, Dr. Timothy Morley, an osteopath, indicated that appellant
had an 11 percent impairment of her right upper extremity pursuant to the American Medical
Association, Guides to the Evaluation of Permanent Impairment (5th edition).
By letter dated February 22, 2007, the employing establishment submitted comments on
the hearing and contended that the factual assertions of appellant at the hearing did not establish
her claim.
In a February 22, 2007 note, the chief of dental service indicated that the evaluations that
appellant had to write were minimal. He noted that her physician stated that she could handwrite
no longer than 15 minutes at a time, that he adhered to those restrictions and that he told her to
stop if she was having any ill effects. The chief noted that, as far as travel documents, these were
very few and that they were submitted by the individual traveling. He denied that appellant
performed handwriting for three to four hours; and noted that her hand writing was limited and
episodic. The chief denied that he assigned handwritten reports. He noted that appellant did use
the telephone a lot, mostly for incoming calls. The chief noted that, although her physician
restricted keyboarding, she was allowed to use the telephone.

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By decision dated March 1, 2007, the hearing representative affirmed the denial of
appellant’s claim. He found that she had not met her burden of proof as the factual and medical
evidence of record failed to establish that she sustained an injury causally related to her federal
employment duties. The medical evidence failed to establish that appellant sustained an injury
causally related to her employment duties, the Office denied the claim.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 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 Sates 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 and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.4
ANALYSIS
In the instant case, appellant alleged that she sustained an injury to her thumbs as a result
of the duties of her federal employment. The Board finds that she has failed to establish the
employment factors. Appellant alleged that, during her work from February 5 to April 25, 2006,
she was required to do extensive handwriting for approximately three to four hours a day, writing
such things as travel vouchers, papers and invoices. However, the Board is persuaded that
appellant’s recitation of the duties of her job duties is not accurate. Appellant’s allegations were
contradicted by the statement of the chief of the dental services when he indicated that appellant
did minimal, limited and episodic handwriting. The chief also noted that he adhered to
appellant’s physician’s instructions that she do no more than 15 minutes of handwriting at a time
and that he told her to stop if she was in pain. Appellant agrees with the employing
establishment that keyboarding was not a part of this job. Accordingly she has not established
that the employment factors occurred which she alleged contributed to her condition.
1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3
4

Victor J. Woodhams, 41 ECAB 345 (1989).
Daniel O. Vasquez, 57 ECAB __ (Docket No. 06-568, issued May 5, 2006).

4

As appellant has not shown that the employment factors occurred as alleged, it is not
necessary to address the medical evidence.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury in the
performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs’ hearing representative dated March 1, 2007 and the decision of the
Office dated August 16, 2006 are affirmed.
Issued: September 21, 2007
Washington, DC

Michael E. Groom, 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
__________________________________________
J.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Eatontown, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-220
Issued: December 2, 2008

Case Submitted on the Record

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

JURISDICTION
On October 30, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated June 5, 2007 denying her wage-loss claim.
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 is entitled to wage-loss benefits for intermittent disability
from February 6 to August 21, 2001.
FACTUAL HISTORY
On April 21, 2000 appellant, then a 48-year-old table clerk, injury to her right knee after
she bent down to pick up a tray of letters which had fallen. The Office accepted that she
sustained a right knee sprain on April 21, 2000. In a letter dated July 16, 2001, it authorized

right knee arthroscopic surgery, which appellant underwent July 2002. 1 Appellant received
appropriate compensation. She returned to work and sustained a recurrence of disability on
July 15, 2002, which the Office accepted.
On August 20, 2001 appellant filed a CA-7 claim for compensation for intermittent
disability from February 6 to August 21, 2001. She worked intermittently as a real estate agent.
In a time analysis (Form CA-7A) of September 13, 2001, the employing establishment indicated
that appellant was claiming 56 hours of leave without pay (LWOP) for work-related knee pain.
This was comprised of eight hours LWOP for dates February 6, 7, 22, July 23 through 25 and
August 21, 2001. As appellant indicated that she earned real estate commissions, on
September 26, 2001 the Office requested specific information from her private employment
concerning the wages earned since 1999, hours worked and length of employment.
Medical evidence pertaining to the period of compensation claimed from February 6 to
August 21, 2001 consists of medical excuses, by a physician with an illegible signature, from
Sports Medicine New Jersey. In an undated medical excuse, the physician from Sports Medicine
New Jersey indicated that appellant was under his care for “knee injury from [February 6 and 7,
2001].” A February 22, 2001 medical excuse advised that appellant was out of work that day. In
a July 25, 2001 prescription slip, Dr. Helen A. Atienza, a family practitioner, released appellant
from work from July 23 to July 25, 2001. In an August 21, 2001 note, she released appellant
from work on August 21, 2001
By decision dated June 28, 2003, the Office denied compensation from February 6 to
August 21, 2001 on the basis she did not provide sufficient proof of her outside earnings.
Appellant subsequently provided evidence as to her real estate commission earnings. By
decision dated June 14, 2004, an Office hearing representative denied appellant’s claim as the
additional evidence failed to establish appellant’s actual earnings during the period claimed. By
decisions dated November 16 and 18, 2005 and September 1, 2006, the Office denied
modification of its previous decision.
On March 2, 2007 appellant again requested reconsideration and submitted additional
evidence pertaining to her real estate commissions during the relevant period. By decision dated
June 5, 2007, the Office affirmed, as modified, the denial of appellant’s claim for compensation
for the above period. It found that, while appellant submitted sufficient evidence to show that
she earned $9,817.00 in real estate commissions during the period claimed, the medical evidence
was not sufficient to establish that her intermittent disability was due to her accepted right knee
condition.

1

Appellant has an approved claim for contusion of the right shoulder, cervical strain, lumbar strain and
supraspinatus tendinopathy of the right shoulder under claim number xxxxxx608. On March 5, 2007 the Office
combined the current claim, claim number xxxxxx478, with claim number xxxxxx608 and made claim number
xxxxxx608 the master file.

2

LEGAL PRECEDENT
For each period of disability claimed, the employee has the burden of proving that he or
she was disabled for work as a result of the accepted employment injury.2 As used in the Federal
Employees’ Compensation Act, the term “disability” means incapacity, because of an
employment injury, to earn the wages that the employee was receiving at the time of injury.3
Disability is thus, not synonymous with physical impairment, which may or may not result in an
incapacity to earn wages.4 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 The Board will not
require the Office to pay compensation in the absence of medical evidence directly addressing
the particular period of disability for which compensation is sought. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.6
With respect to claimed disability for medical treatment, section 8103 of the Act provides
for medical expenses, along with transportation and other expenses incidental to securing
medical care for injuries.7 Appellant would be entitled to compensation for any time missed
from work due to medical treatment for an employment-related condition. 8 However, the
Office’s obligation to pay for medical expenses and expenses incidental to obtaining medical
care, such as loss of wages extends only to expenses incurred for treatment of the effects of any
employment-related condition. Appellant has the burden of proof which includes the necessity
to submit supporting rationalized medical evidence.9
ANALYSIS
Appellant filed claims for wage-loss compensation alleging intermittent disability for
work from February 6 through August 21, 2001. However, she did not submit sufficient
probative medical evidence to establish her total disability was due to her accepted right knee
condition.
The record contains notes from appellant’s physician excusing her from work February 6,
7 and 22, 2001, July 23 through July 25, 2001 and August 21, 2001. However, neither physician
addressed whether appellant’s disability was due to her accepted right knee condition or what
2

William A. Archer, 55 ECAB 674 (2004).

3

Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.5(f).

4

See Fred Foster, 1 ECAB 21 (1947).

5

Fereidoon Kharabi, 52 ECAB 291 (2001); see also Edward H. Horton, 41 ECAB 301 (1989).

6

Sandra D. Pruitt, 57 ECAB 126 (2005); William A. Archer, supra note 2.

7

5 U.S.C. § 8103(a).

8

Vincent E. Washington, 40 ECAB 1242 (1989).

9

Dorothy J. Bell, 47 ECAB 624 (1996); Zane H. Cassell, 32 ECAB 1537 (1981).

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medical services were rendered on such dates. As the physician fails to offer any opinion on
whether appellant was disabled on those dates, the medical excuse forms are of diminished
probative value. 10 There also is no clear indication if any time was lost from work due to
treatment for accepted conditions and the record does not contain progress reports from
examinations on those dates. There is no other probative medical evidence of record which
addresses her disability on the dates claimed or whether she lost any time from work due to
treatment for accepted conditions.
The Board finds that appellant has failed to submit sufficient rationalized medical
evidence to establish that she was unable to work on intermittent days she used one way.
Appellant has failed to establish that she was disabled and thus is not entitled to wage-loss
compensation for the days claimed. She has not established intermittent disability from
February 6 to August 21, 2001.
CONCLUSION
The Board finds that appellant has not established entitlement to wage-loss benefits for
intermittent periods of disability from February 6 to August 21, 2001.
ORDER
IT IS HEREBY ORDERED THAT the June 5, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 2, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
10

See Sandra D. Pruitt, supra note 6.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
WEST PALM BEACH VETERANS
ADMINISTRATION MEDICAL CENTER,
West Palm Beach, FL, Employer
__________________________________________

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

Docket No. 15-747
Issued: May 18, 2015

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 February 12, 2015 appellant filed a timely appeal from a September 3, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a back injury on
July 9, 2014 while in the performance of duty.
On appeal, appellant contends that she sustained a work-related back injury that required
surgery performed on October 1, 2014.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 16, 2014 appellant, then a 67-year-old ophthalmology health technician, filed a
traumatic injury claim alleging that on July 9, 2014 she strained her lower back while trying to
move equipment that had locked in place. She stopped work on the date of injury and returned
to limited-duty work on July 14, 2014.
A May 28, 2014 lumbar magnetic resonance imaging (MRI) scan report showed the
printed name of Dr. Vincent J. Turiano, a Board-certified radiologist. The report diagnosed
generalized mild-to-moderate spondylitic changes most marked at L2-3, endplate irregularities,
encroachment and narrowing of select neural foramina, and degenerate facet changes. The
report also revealed severe spinal stenosis on a multifactorial basis at L4-5, moderate functional
stenosis at L5-S1, moderate-to-severe spinal stenosis at L3-4, mild spinal stenosis at L2-3, a left
paracentral disc bulging at L1-2, and no spinal stenosis.
A July 9, 2014 medical report prepared by an employing establishment physician, whose
signature is illegible, stated that appellant sustained a work-related injury and she could return to
work with restrictions on July 14, 2014. In a prescription dated July 9, 2014, the same physician
requested that appellant be excused from work on July 10 and 11, 2014.
In a July 16, 2014 lumbar MRI scan report, Dr. Roger Ramos, a Board-certified
radiologist, found an L1-2 disc bulge, and an L2-3 disc bulge with associated posterior
spondylosis and spinal stenosis and bilateral neural foraminal narrowing. He further found a disc
bulge at L3-4 associated with posterior central herniation and annular tear, and mild-to-moderate
narrowing of the spinal canal. There was a disc bulge at L4-5 and posterior central herniation,
mild-to-moderate narrowing of the spinal canal, an associated right lateral annular tear, and mild
narrowing of the neural foramina bilaterally. A disc bulge was found at L5-S1.
In a July 22, 2014 progress note, Dr. David R. Campbell, a Board-certified orthopedic
surgeon, provided a history of injury that on July 19, 2014 appellant tried to pull open an eye
machine, but she could not do so. He noted her complaints, which included sharp low back pain
and spasms that radiated into her left groin, and her medical treatment. Dr. Campbell also noted
that appellant had filed a claim for an October 2013 injury that was denied. He provided
findings on physical examination and reviewed diagnostic test results. Dr. Campbell assessed
appellant as having lumbago, muscle spasm, degeneration of the lumbar or lumbosacral
intervertebral disc, displacement of the lumbar intervertebral disc without myelopathy, spinal
stenosis of the lumbar region, unspecified thoracic or lumbosacral neuritis or radiculitis, and an
abnormal gait. He advised her that surgery was indicated. On July 24, 2014 Dr. Campbell
requested authorization for surgery.
By letter dated July 29, 2014, OWCP advised appellant that, although it had initially
handled the claim administratively because the injury appeared to be minor and resulted in
minimal or no time lost from work, it had now reopened the claim for consideration of the merits
because she had requested authorization for surgery. It notified her of the deficiencies of her
claim and afforded her 30 days to submit additional factual and medical evidence, including a
physician’s opinion as to how her injury resulted in the diagnosed condition, supported by a
medical explanation as to how the reported work incident caused or aggravated a medical

2

condition. OWCP also requested that the employing establishment submit medical evidence, if
appellant had been treated at its medical facility.
On August 26, 2014 appellant described her claimed injury. She had tried to adjust a
broken eye machine several times and developed severe pain in her lower back, and severe
nausea and dizziness. Appellant felt like she was going to faint. She called for assistance after
she put her patient into a room. Appellant stated that on November 24, 2013 she sustained a
back injury which she reported to a nurse manager. She missed work earlier in 2014, received
epidurals, and underwent diagnostic testing on her back. Appellant stated that her back was
feeling better.
In a July 22, 2014 Florida State Workers’ Compensation medical treatment form,
Dr. Campbell diagnosed lumbar stenosis and radiculopathy. He stated that the diagnosed
conditions were work related. He also stated that appellant had a preexisting condition which
was aggravated by the diagnosed conditions that she had not reached maximum medical
improvement and was still unable to work.
In an undated authorization for examination and/or medical treatment (Form CA-16),
Dr. Campbell provided a history of injury that on July 9, 2014 appellant injured her back while
moving equipment. He diagnosed a herniated lumbar disc. Dr. Campbell indicated with an
affirmative mark that the diagnosed condition was caused or aggravated by an employment
activity, and added the notation, “as above and please see copy of history and physical.” He
advised that appellant continued to be totally disabled from July 9, 2014.
By letter dated July 30, 2014, the employing establishment controverted appellant’s
claim, contending that Dr. Campbell’s opinion was not rationalized.
In a September 3, 2014 decision, OWCP accepted that the July 9, 2014 incident occurred
as alleged. It denied appellant’s claim, however, finding that the medical evidence failed to
establish that her back condition was causally related to the accepted employment incident.
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
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
2

Id. at §§ 8101-8193.

3

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

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).

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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
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.9
ANALYSIS
OWCP accepted that on July 9, 2014 appellant moved broken equipment while in the
performance of duty. It found that the medical evidence failed to establish that she sustained a
back injury as a result of the accepted incident.
The Board finds that appellant failed to provide sufficient medical evidence to establish a
back injury causally related to the accepted July 9, 2014 employment incident.
Dr. Campbell’s Form CA-16 diagnosed appellant as having herniated lumbar disc and
reported that she was totally disabled from July 9, 2014 to a present unknown date. He provided
a history of the accepted July 9, 2014 employment incident and indicated with an affirmative
mark that the diagnosed condition was caused or aggravated by the work incident, adding the
notation, “as above and please see copy of history and physical.” The Board has held that an
opinion consisting of a physician’s checkmark is of diminished probative value without any
explanation or rationale for the conclusion reached.10 While Dr. Campbell referenced the history
of injury and his physical examination findings as the basis for his conclusion, he did not clearly
explain how the mechanism of injury on July 9, 2014 caused or aggravated appellant’s back
condition. The Board finds that Dr. Campbell’s July 22, 2014 Florida State Workers’
Compensation form is also of diminished probative value because although he found workrelated lumbar stenosis and radiculopathy, he stated that a preexisting condition had been
aggravated too. However, he did not identify the preexisting condition or provide any opinion
explaining how the accepted work injury caused or aggravated the preexisting condition,
diagnosed conditions, and resultant disability. The Board has held that a medical opinion not
fortified by rationale is of diminished probative value.11
6

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

7

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

10

D.D., 57 ECAB 734 (2006); Sedi L. Graham, 57 ECAB 494 (2006).

11

Cecilia M. Corley, 56 ECAB 662 (2005).

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The Board notes that, in his July 22, 2014 progress note, Dr. Campbell diagnosed
lumbago, muscle spasm, degeneration of the lumbar or lumbosacral intervertebral disc,
displacement of the lumbar intervertebral disc without myelopathy, spinal stenosis of the lumbar
region, unspecified thoracic or lumbosacral neuritis or radiculitis, and an abnormal gait. He
provided examination findings and recommended surgery. Dr. Campbell, in the same report,
indicated that the date of injury was July 19, 2014 and not July 9, 2014 and provided no opinion
on whether the accepted July 9, 2014 employment incident caused or aggravated her diagnosed
conditions. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value.12
Dr. Ramos’ diagnostic test results addressed appellant’s lumbar conditions, but failed to
provide a rationalized opinion regarding the causal relationship between the diagnosed
conditions and the accepted employment incident.13
The May 28, 2014 report which contained the printed name of Dr. Turiano, and July 9,
2014 report and prescription which contained an unknown signature are insufficient to establish
appellant’s claim. A report that is unsigned or bears an illegible signature lacks proper
identification as a physician and cannot be considered probative medical evidence.14
Therefore, the Board finds that there is insufficient medical evidence to establish that
appellant sustained a back injury causally related to the accepted July 9, 2014 employment
incident.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a back injury
on July 9, 2014 while in the performance of duty.

12

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

Id.

14

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the September 3, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 18, 2015
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

6