United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. SECRET SERVICE, Washington, DC,
Employer
__________________________________________

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

Docket No. 20-1475
Issued: October 4, 2021

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 August 3, 2020 appellant, through counsel, filed a timely appeal from a March 18, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

1

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

Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3
ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s entitlement
to wage-loss compensation and schedule award benefits, effective October 3, 2019, because he
refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On October 13, 2014 appellant, then a 39-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging that on that day he sustained a neck injury when participating in
control tactics training while in the performance of duty. OWCP initially accepted the claim for
neck strain. Appellant stopped work on October 27, 2014 and returned to limited-duty work on
December 10, 2014. On July 8, 2015 OWCP expanded acceptance of the claim to include C5 -6
disc herniation. On August 13, 2015 appellant stopped work and underwent authorized C5-6
anterior cervical discectomy and fusion surgery and prosthetic device implant. OWCP paid
appellant on the supplemental rolls effective August 13, 2015 and on the periodic rolls effective
December 13, 2015.
In a report dated November 17, 2014, Dr. Rupinder Singh, a physician Board-certified in
internal medicine, related that appellant had been under his care since February 2007. He noted
the history of appellant’s October 13 2014 employment injury, and related diagnoses of
cervical/neck strain, cervical radiculopathy/ radiculitis. Dr. Singh also explained that the blunt
force of the trauma caused significant muscle strain and injury to tissue in appellant’s neck, upper
back, and left shoulder, which caused irritation to the nerves innervating appellant’s shoulder.
Appellant came under the care of Dr. Joel Belzberg, a Board-certified neurosurgeon. In a
May 1, 2015 report, Dr. Belzberg noted that appellant was seen for neck and left shoulder pain,
following the October 13, 2014 employment injury. He noted that appellant had undergone
physical therapy and that his neck pain improved, but not his left shoulder pain. Dr. Belzberg
diagnosed cervical disc disease, and cervical radiculopathy radiating into the left shoulder. He
noted that appellant had a past history of a heart murmur. Dr. Belzberg advised on September 16,
2015 that appellant was status post cervical discectomy and fusion at C5-6 on August 13, 2015.
He related that, prior to the surgery, appellant had severe pain in his left shoulder, however, since
the surgery his left arm pain had resolved. Dr. Belzberg related that after confirmation of C5-6
fusion by x-ray that appellant would be released to full duty. In a December 16, 2015 work/school
excuse letter, he requested that appellant be excused from work until February 1, 2016.
2

5 U.S.C. § 8101 et seq.

3

The Board notes that appellant submitted additional evidence following the March 18, 2020 decision. 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.

2

In a report dated June 4, 2015, Dr. Akhil Chhatre, a Board-certified physiatrist, noted
diagnoses of cervical disc disease and left rotator cuff sprain and strain.
Appellant also came under the care of Dr. Levan Atanelov, a Board-certified physiatrist.
In a report dated June 27, 2015, Dr. Atanelov related diagnoses of left rotator cuff injury,
impingement, cervicalgia, chronic neck pain, and cervical neck pain, following the employment
injury.
On February 26, 2016 Dr. Chhatre diagnosed cervical disc disease and C5-6 cervical axial
pain anteroposterior cervical fusion and advised that appellant was unable to work. Subsequent
reports from Dr. Chhatre advised that appellant could not return to work.4 Dr. Chhatre, in an
undated note, recommended work-hardening physical therapy to ensure appellant’s capacity to
return to work. In reports dated November 16 and December 2, 2016, and January 3, February 28,
and May 23, 2017, he related that appellant was seen for follow up of neck pain, with intermittent
radiation to the shoulder blades and to the left hand. Dr. Chhatre noted a diagnosis of cervicalgia.
On March 9, 2017 OWCP referred appellant for a second opinion evaluation with
Dr. Stuart J. Gordon, a Board-certified orthopedic surgeon, 5 to determine whether appellant
continued to suffer from residuals of his accepted work injury. A March 8, 2017 statement of
accepted facts (SOAF) reported the accepted conditions as neck strain and C5-6 disc herniation
and that on August 13, 2015 appellant underwent an anterior cervical discectomy and fusion. It
also noted that under OWCP File No. xxxxxx193, date of injury February 12, 2003, a lumbar strain
had been accepted; under OWCP File No. xxxxx614, date of injury April 22, 2009, thoracic back
region sprain had been accepted, and under OWCP File No. xxxxxx530, date of injury
December 9, 2010, rib contusion had been accepted. 6 No other medical conditions, preexisting,
concurrent or nonwork related, were mentioned.
In a report dated April 4, 2017, Dr. Gordon reviewed the March 8, 2017 SOAF and the
medical record. He noted that he had previously examined appellant on June 25, 2015 and that he
was currently in pain management. Dr. Gordon diagnosed left C5-6 disc herniation and status post
anterior cervical discectomy and fusion with residual significant complaints. He opined that
appellant could perform sedentary work for eight hours per day. Work restrictions included no
reaching, above the shoulder, climbing, or operating a motor vehicle at work and u p to eight hours
of pushing, pulling, lifting, or pulling more than 10 pounds.

4

On June 27, 2016 appellant underwent right/left cervical medial branch blocks for diagnosis of cervical C3-5
zygapophyseal joint pain and third occipital nerve block.
5
OWCP, on May 20 and June 2, 2015, referred appellant for a second opinion evaluation with Dr. Gordon to clarify
the cause and extent of his injury-related impairment. In a June 25, 2015 report, Dr. Gordon agreed that the requested
surgery was necessary and opined that appellant was capable of working a sedentary job for four hours per day with
restrictions of no climbing and no lifting, pulling, or pushing more than 10 pounds for four hours a day.
6

The Board notes that these claims have not been administratively combined with the current claim, OWCP File
No. xxxxxx781.

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On October 3, 2017 appellant underwent a health and behavior assessment by Katherine
Streeter Wright, Ph.D. for an evaluation to assist appellant with pain management and identify
barriers to treatment response and subsequent rehabilitation.
In a letter dated February 7, 2018, OWCP informed the employing establishment that
appellant was capable of working with restrictions based on the report of OWCP’s referral
physician, Dr. Gordon, which it found constituted the weight of the evidence. It requested that the
establishment offer a written job offer to appellant with the restrictions noted by Dr. Gordon if
possible.
Appellant came under the care of Dr. Nishant Nannapeni, a Board-certified physiatrist,
who noted in a report dated June 21, 2018 that appellant was seen for neck pain. Dr. Nannapeni
observed that ablation had helped with appellant’s migraines, and noted that appellant was
currently off work. He related that appellant was currently being treated for neck pain and cervical
disease with cervical axial pain at C519-6 status post cervical fusion. Dr. Nannapeni advised that
appellant should continue off work and explained that appellant’s significant neck pain and limited
neck range of motion significantly impacted his functional limitation with regard to possible work
activities.
On October 2, 2018 the employing establishment offered appellant a position as a security
specialist (access control) in the Office of Protective Operations (OPO), Presidential Protection
Division (PPD) within the Department of Homeland Security. The position was noted to be
sedentary, but physical restrictions of the position required lifting moderately heavy equipment.
However, based on his work restrictions, the employing establishment would work with appellant
to accommodate the pushing/pulling/limiting restrictions applicable to the job ’s lifting
requirement. On October 10, 2018 appellant refused the offered job indicating that he believed
the position was outside of his current medical restrictions.
In a letter dated November 9, 2018, OWCP informed the employing establishment that the
offered position was not suitable as it did not include appellant’s work hours or the specific
physical requirements of the position.
On April 19, 2019 the employing establishment again offered appellant the position of
security specialist (access control) in the OPO, PPD. It advised that his shift would be one of the
following shifts: 6:00 a.m. to 2:00 p.m., or 9:00 a.m. to 5:00 p.m., or 2:00 p.m. to 10:00 p.m. The
employing establishment noted that the hours of the position would be subjected to revision, but
would be eight hours per day, five days per week. The position description noted that the
employing establishment would abide by appellant’s specific lifting, pushing, pulling restrictions
for work no more than eight hours per day. Appellant refused the position on April 24, 2019.
On May 21, 2019 OWCP referred appellant for a second opinion evaluation with
Dr. Rafael A. Lopez Steuart, a Board-certified orthopedic surgeon, to determine whether appellant
continued to suffer from residuals of his accepted work injury. An updated May 21, 2019 SOAF
included the information from the prior SOAF and added that appellant had bilateral
radiofrequency ablation performed on March 20, 2017 and had been seen by a licensed clinical
psychologist on October 3, 2017.

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In a June 19, 2019 report, Dr. Steuart reviewed the SOAF and the medical record and
provided examination findings. He noted the accepted conditions were neck sprain and C5 -6 disc
herniation. Dr. Steuart reported that appellant had migraines and chronic pain syndrome, and
treatment should continue for the chronic pain. He advised that the diagnosis of chronic pain and
any work restrictions due to these conditions, was outside his field of expertise. With respect to
his work capacity, Dr. Steuart opined that appellant was capable of full-duty work with no
restrictions from a musculoskeletal system and orthopedic standpoint. He reviewed the April 17,
2019 offered position and found it reasonable. In an attached work capacity evaluation form (Form
OWCP-5c), Dr. Steuart indicated that appellant had reached maximum medical improvement and
could return to the date-of-injury position with no restrictions.
On July 31, 2019 the employing establishment advised OWCP that the offere d position
remained available.
In a letter dated August 1, 2019, OWCP advised appellant that the position offered was
suitable in accordance with the medical limitations provided by Dr. Steuart on June 2, 2019. It
notified him that, if he failed to report to work or failed to demonstrate that the failure was justified,
pursuant to 5 U.S.C. § 8106(c)(2), his right to compensation for wage loss or a schedule award
would be terminated. OWCP afforded appellant 30 days to respond.
In a letter dated August 15, 2019, Dr. Ayesha Khan, a physiatrist, noted that appellant was
being treated for neck pain by Dr. Akhil Chhatre, a Board-certified physiatrist. She advised that
appellant was unable to sit for more than 30 minutes without a severe aggravation of his symptoms
and that he required frequent rest breaks every 30 minutes. Dr. Khan reported that appellant was
scheduled to have a repeat cervical radiofrequency ablation to treat his pain.
On August 15, 2019 appellant elected to receive retirement benefits from the Office of
Personnel Management in lieu of FECA benefits effective August 19, 2019.
OWCP ascertained that the position was still available and, by letter dated September 16,
2019, advised appellant that his reasons for refusing the offered position were not valid. It advised
him that his wage-loss compensation and entitlement to a schedule award would be terminated if
he did not accept the position and report to the position within 15 days of the date of the letter. No
further response was received by OWCP.
OWCP, on October 4, 2019, again ascertained that the offered position remained available.
By decision dated October 4, 2019, OWCP terminated appellant’s wage-loss compensation
and entitlement to schedule award benefits pursuant to 5 U.S.C. § 8106(c)(2), effective October 10,
2019 noting that this was the date he elected to receive retirement benefits from OPM in lieu of
FECA benefits. It accorded the weight of the medical evidence to Dr. Steuart’s June 19, 2019
opinion that appellant was capable of performing the duties of the offered position.
On October 16, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on February 4, 2020.
By decision dated March 18, 2020, OWCP’s hearing representative affirmed the
October 4, 2019 termination decision.
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LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s compensation benefits. 7 Section 8106(c)(2) of
FECA provides that a partially disabled employee who refuses or neglects to work after suitable
work is offered to, procured by, or secured for the employee is not entitled to compensation. 8
To justify termination of compensation, OWCP must show that the work offered was
suitable, that the employee was informed of the consequences of refusal to accept such
employment, and that he or she was allowed a reasonable period to accept or reject the position or
submit evidence to provide reasons why the position is not suitable. 9 Section 8106(c)(2) of FECA
will be narrowly construed as it serves as a penalty provision, which may bar an employee’s
entitlement to compensation based on a refusal to accept a suitable offer of employment.10
In determining what constitutes suitable work for a particular disabled employee, OWCP
considers the employee’s current physical limitations, whether the work was available within the
employee’s demonstrated commuting area, the employee’s qualifications to perform such work,
and other relevant factors. 11
The determination of whether an employee is capable of performing modified -duty
employment is a medical question that must be resolved by probative medical opinion evidence. 12
All medical conditions, whether work related or not, must be considered in assessing the suitability
of an offered position.13
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s
entitlement to wage-loss compensation and schedule award benefits, effective August 10, 2019,
for refusal of an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
OWCP accepted that appellant sustained a neck strain as a result of the October 13, 2014
employment injury. It subsequently expanded acceptance of the claim to include a C5 -6 disc
7

See S.W., Docket No. 20-0240 (issued January 26, 2021); R.P., Docket No. 17-1133 (issued January 18, 2018);
S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005).
8

Supra note 2 at § 8106(c)(2).

9

T.M., Docket No. 20-0401 (issued February 26, 2021); R.A., Docket No. 19-0065 (issued May 14, 2019);
Ronald M. Jones, 52 ECAB 190 (2000); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and
Return to Work, Chapter 2.814.4 (June 2013).
10

S.W., supra note 7; S.D., Docket No. 18-1641 (issued April 12, 2019); Joan F. Burke, 54 ECAB 406 (2003).

11

Supra note 9 at Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4(c) (June 2013).

12

P.C., Docket No. 20-0935 (issued February 19, 2021); C.M., Docket No. 19-1160 (issued January 10, 2020);
Gloria J. Godfrey, 52 ECAB 486 (2001).
13

Id.

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herniation and authorized C5-6 anterior cervical discectomy and fusion surgery and prosthetic
device implant, which occurred on August 13, 2015.
On April 19, 2019 the employing establishment offered appellant a revised security
specialist (access control) position, in the PPD within the Department of Homeland Security. On
May 21, 2019 OWCP requested that Dr. Steuart provide an opinion on appellant’s work capacity
and whether appellant was capable of performing the offered position. It found that Dr. Steuart’s
report represented the weight of the medical evidence and established that the modified -duty
position was suitable.
OWCP’s procedures dictate that, when an OWCP medical adviser, second opinion
specialist, or impartial medical examiner renders a medical opinion based on a SOAF, which is
incomplete or inaccurate, or does not use the SOAF as the framework in forming his or her opinion,
the probative value of the opinion is seriously diminished or negated altogether. 14
The Board finds that OWCP provided Dr. Steuart a deficient SOAF, which did not identify
the entirety of appellant’s diagnosed conditions.15
As previously noted, all conditions, whether work related or not, must be considered in
assessing the suitability of an offered position.16 OWCP did not update the May 21, 2019 SOAF
to include other preexisting or concurrent medical conditions that were not identified in the SOAF.
Appellant was initially treated by Dr. Singh who diagnosed cervical strain, contusion, cervical
radiculopathy, and C5-6 nerve impingement. Dr. Singh also related that the blunt force of the
trauma caused significant muscle strain and injury to tissue in appellant’s neck, upper back, and
left shoulder, which caused irritation to the nerves innervating appellant’s shoulder.
Subsequently, appellant received treatment from Dr. Belzberg who diagnosed cervical disc
disease, cervical radiculopathy radiating into the left shoulder, left shoulder rotator cuff sprain and
strain, and shoulder pain a past history of a heart murmur. The record also contains reports from
Drs. Atanelov, Chhatre, Khan, and Nannapeni who noted various diagnoses including diagnoses
of rotator cuff injury, neck pain, migraines, left shoulder impingement, and cervicalgia.
Based on the evidence of record, the Board finds that OWCP improperly determined that
the April 19, 2019 security specialist (access control) position offered to appellant constituted
suitable work within his limitations and capabilities. The record does not substantiate that OWCP
prepared a proper SOAF and properly considered the entirety of appellant’s medical conditions
before terminating his entitlement to wage-loss compensation and schedule award benefits.17

14

Supra note 9 at Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3 (October 1990); see S.C.,
Docket No. 18-1011 (issued March 23, 2020).
15

See P.C., supra note 12; see also N.W., Docket No. 16-1890 (issued June 5, 2017).

16

Supra note 13.

17

S.M., supra note 14.

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Consequently, OWCP did not meet its burden of proof to justify the termination of appellant’s
compensation benefits pursuant to 5 U.S.C. § 8106(c)(2).
CONCLUSION
The Board finds that OWCP has not met its burden of proof to term inate appellant’s
entitlement to wage-loss compensation and schedule award benefits, effective August 10, 2019, as
it improperly determined that he refused an offer of suitable work pursuant to 5 U.S.C.
§ 8106(c)(2).
ORDER
IT IS HEREBY ORDERED THAT the March 18, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 4, 2021
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
__________________________________________
C.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
New Orleans, LA, Employer
__________________________________________

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

Docket No. 14-05
Issued: May 5, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 3, 2013 appellant filed a timely appeal from a September 11, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on March 5, 2012.
FACTUAL HISTORY
This case was previously before the Board. By decision dated September 4, 2013, the
Board set aside OWCP’s September 17, 2012 decision to find that appellant established that the
1

5 U.S.C. § 8101 et seq.

March 5, 2012 incident occurred in time, place and manner alleged.2 It remanded the case for
OWCP to evaluate the medical evidence. The findings of fact and conclusions of law from the
prior decision are hereby incorporated by reference.
Appellant submitted a March 5, 2012 urgent care report from a nurse at the Veterans
Affairs (VA) Hospital who noted that he fell and suffered facial and oral trauma. The report
advised that he ambulated with a limp and his right foot stuck on the tile flooring.
In a March 5, 2012 diagnostic report, Dr. Gordon R. Schally, a Board-certified diagnostic
radiologist, reported that a computerized tomography (CT) scan of the brain revealed no acute
intracranial abnormalities and mild cerebral and cerebellar atrophy with findings most suggestive
of mild chronic microvascular ischemic change. X-rays of the face revealed no fracture or other
acute abnormalities with moderate amounts of dental work noted.
In a March 5, 2012 diagnostic report, Dr. Marna J. Eissa, a Board-certified diagnostic
radiologist, reported that a mandible report revealed no displaced mandible fracture. She
recommended a dedicated facial bone CT scan due to suspicion of small fracture. Dr. Eissa
noted no upper teeth were missing.
In a March 5, 2012 urgent care report, Dr. Vernon E. Chee, Board-certified in internal
medicine, reported that appellant presented to urgent care after he fell. Appellant recalled
walking in the hallway, then his left leg “gave out,” causing him to fall forward and strike his
face on the floor. He thought he lost consciousness, was dizzy and stayed on the floor for about
10 minutes. Appellant reported a history of muscle weakness and numbness in the left lower
extremity, which sometimes caused him to trip while walking. A CT scan of the brain showed
no acute intracranial abnormalities and x-rays revealed no fractures. Dr. Chee diagnosed trauma
to the face, mouth and teeth, noting that appellant had several loose teeth. After returning from
radiology, appellant was missing tooth 8 and part of 7 and 10. Dr. Chee reported that appellant
sneezed and the tooth flew out. He noted that the other teeth were loose but remained in place
and the bleeding had slowed. Dr. Chee reported that appellant could resume work on March 12,
2012 and referred him to VA Dental Clinic.
In a March 5, 2012 report, Dr. Georgia K. McDonald, a dentist, reported that appellant
presented to the dental clinic for an emergency visit after he fell on the job. Appellant was last
seen three years ago by another dentist for a dental extraction for decay. Recently, a tooth on the
upper right had “fallen out on its own” and the extraction socket was still healing in the position
of tooth 4. Dr. McDonald noted a medical history of osteoarthritis, particularly in the left leg.
Appellant stated that he sometimes had difficulty walking when his leg got stiff.
On clinical examination, Dr. McDonald a noted fracture of tooth 9 with partial
exfoliation, a crack on the root of tooth 10 probable and probable fracture of right porcelain
fused to metal bridge on the upper right. Examination and clinical evaluation of radiographs
demonstrated chronic generalized advanced periodontitis with poor demonstrated homecare of
2

Docket No. 13-917 (issued September 4, 2013). The Board notes that appellant established that he suffered a
fall on the morning of March 5, 2012. The Board found that the factual evidence of record was insufficient to
establish that his fall was idiopathic.

2

the teeth in need of restorative repair. Mobility of the upper and lower anterior teeth could not
be definitively determined to have been caused by the fall. Dr. McDonald noted that the
mobility could be anatomic and pathologic in nature due to the 80 to 90 present horizontal bone
loss and attachment loss on those teeth. She reported fractured facial aspects and a loose bridge
from number tooth 8 to 6. Dr. McDonald also noted a residual root tip on tooth 9, which was
probably a result of fracture from the fall. Appellant stated that he just “spit the tooth out” and
could not find it. Radiographs showed periapical infection on tooth 14 and 8, which would have
been there before today. Dr. McDonald also noted semilunar lip laceration approximately 3/4 of
an inch. She recommended that tooth 6, 8, 9 and the 10 residual root tip be removed for suture
of oral/facial wounds and lacerations.3
The employing establishment issued appellant a properly completed Form CA-16,
authorization for examination, dated March 6, 2012. Appellant was authorized to visit
Dr. James A. Campo, a dentist, at Campo Dentistry.
By decision dated September 11, 2013, OWCP denied appellant’s claim on the grounds
that the evidence was insufficient to establish that the March 5, 2012 employment incident
caused his injuries. It noted that the reports of Dr. McDonald and Dr. Chee failed to explain how
the conditions they diagnosed were caused by his fall on March 5, 2012.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.5
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.6 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
3

This report was also signed by Dr. Shemika L. Sample, a dentist.

4

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

5

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

6

Elaine Pendleton, supra note 4.

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medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.7 The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion.8
ANALYSIS
Appellant established that the March 5, 2012 incident occurred as alleged when he fell at
work. OWCP denied his claim on the grounds that it lacked sufficient medical evidence to
support that his injuries were medically related to the March 5, 2012 employment incident. The
Board finds that appellant did not submit sufficient medical evidence to support that he sustained
an injury causally related to the March 5, 2012 employment incident.9
In a March 5, 2012 diagnostic report, Dr. Schally reported that a CT scan of the brain
revealed no acute intracranial abnormalities and mild cerebral and cerebellar atrophy with
findings most suggestive of mild chronic microvascular ischemic change. X-rays of the face
revealed no fracture or other acute abnormalities. In a March 5, 2012 diagnostic report, Dr. Eissa
reported that a mandible report revealed no displaced mandible fracture. While the reports of
Dr. Schally and Dr. Eissa provide imaging results from diagnostic tests, the physicians did not
provide any opinion on causal relationship to the accepted incident. These diagnostic studies are
not sufficient to establish appellant’s claim.
In a March 5, 2012 report, Dr. Chee stated that appellant presented to urgent care after he
fell. Appellant was walking in a hallway when his left leg “gave out,” causing him to fall
forward and strike his face on the floor. A CT scan of the brain showed no acute intracranial
abnormalities and x-rays revealed no fractures. Dr. Chee diagnosed trauma to the face, mouth
and teeth, noting that appellant had several loose teeth. After returning from radiology, appellant
was missing tooth 8 and part of tooth 7 and 10. He reported that he sneezed and the tooth flew
out. Dr. Chee noted that the other teeth were loose but remained in place and the bleeding had
slowed. The Board finds that his report is not sufficient to establish appellant’s claim. Dr. Chee
failed to provide any opinion regarding the cause of appellant’s condition. This renders his
report of limited probative value.10
In a March 5, 2012 report, Dr. McDonald reported that appellant presented to the dental
clinic for an emergency visit after he fell on the job. Appellant was last seen three years prior by
7

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

8

James Mack, 43 ECAB 321 (1991).

9

See Robert Broome, 55 ECAB 339 (2004).

10

S.W., Docket No. 08-2538 (issued May 21, 2009).

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another dentist for a dental extraction for decay. On examination Dr. McDonald noted a fracture
of tooth 9 with partial exfoliation, crack on root of tooth 10 probable and probable fracture of
right porcelain fused to metal bridge on the upper right. Examination and clinical evaluation of
radiographs demonstrated chronic generalized advanced periodontitis with poor demonstrated
homecare of the teeth in need of restorative repair. Mobility of the upper and lower anterior
teeth could not be definitively determined to have been caused by the fall. Dr. McDonald noted
that the mobility could be anatomic and pathologic in nature due to the 80 to 90 present
horizontal bone loss and attachment loss on those teeth. She reported fractured facial aspects and
loose bridge from number tooth 8 to 6. Dr. McDonald also noted residual root tip on tooth 9,
which was probably a result of fracture from the fall. Appellant stated that he just “spit the tooth
out” and could not find it. Radiographs showed periapical infection on tooth 14 and 8, which
would have been there before today. Dr. McDonald also noted semilunar lip laceration
approximately 3/4 of an inch. She recommended that tooth 6, 8, 9 and 10 residual root tip be
removed and diagnosed suture of oral/facial wounds and lacerations.
The Board notes that, while Dr. McDonald diagnosed of oral/facial wounds, fractured
facial aspects, fracture of teeth, crack of teeth root, loose bridges, residual root tips, missing teeth
and a semilunar lip laceration approximately 3/4 of an inch, she did not adequately address how
the findings on examination were caused or contributed to by appellant’s fall at work.
Dr. McDonald noted advanced periodontitis with poor demonstrated homecare of the teeth in
need of restorative repair. Mobility of the upper and lower anterior teeth could not be
definitively determined to have been caused by the fall, which could be anatomic and pathologic
in nature due to the 80 to 90 present horizontal bone loss and attachment loss on those teeth.
Dr. McDonald’s opinion is whether appellant’s dental and facial injuries were caused or
aggravated by the March 5, 2012 work incident is therefore speculative in nature.11
To be of probative value, a physician’s opinion on causal relationship should be one of
reasonable medical certainty.12 Dr. McDonald’s statement fails to provide a definitive opinion
that the findings on examination were caused by the March 5, 2012 incident. Medical reports
without adequate rationale on causal relationship are of diminished probative value and do not
meet an employee’s burden of proof.13 The opinion of a physician supporting causal relationship
must rest on a complete factual and medical background supported by affirmative evidence,
address the specific factual and medical evidence of record and provide medical rationale
explaining the relationship between the diagnosed condition and the established incident or
factor of employment.14 Without medical reasoning explaining how March 5, 2012 employment
incident caused or contributed to his dental, facial and oral trauma, her report is insufficient to
meet his burden of proof.15

11

See Michael R. Shaffer, 55 ECAB 339 (2004).

12

See Beverly R. Jones, 55 ECAB 411 (2004).

13

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

14

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

15

C.B., Docket No. 08-1583 (issued December 9, 2008).

5

The March 5, 2012 urgent care reports from the VA Hospital nurses are also insufficient
to establish appellant’s claim. A nurse is not a physician as defined under FECA and their
reports are of no probative value.16
In the instant case, appellant has established that the March 5, 2012 incident occurred as
alleged. The record, however, is without rationalized medical evidence on the causal
relationship between the accepted March 5, 2012 employment incident and his diagnosed
conditions. Thus, appellant has failed to establish his claim.17
The Board 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 CA-16 form creates a contractual obligation, which does
not involve the employee directly, to pay for the cost of the examination or treatment regardless
of the action taken on the claim.18 The period for which treatment is authorized by a CA-16
form is limited to 60 days from the date of issuance, unless terminated earlier by OWCP.19
Although OWCP adjudicated appellant’s claim of injury, it did not address the issue of
reimbursement pursuant to this CA-16 form. The record is silent as to whether OWCP paid for
the cost of his examination or treatment for the period noted on the form.
The regulations provide that in unusual or emergency circumstances OWCP may approve
payment for medical expenses incurred otherwise than as authorized in section 10.303. It may
approve payment for medical expenses incurred even if a CA-16 form authorizing medical
treatment and expenses has not been issued and the claim is subsequently denied; payment in
such situations must be determined on a case-by-case basis.20 In this case, appellant was
transported to the emergency room for examination immediately after the employment incident.
The employing establishment provided appellant with a CA-16 form within a week of the
employment incident. In denying appellant’s claim for a traumatic injury, OWCP did not
address whether emergency circumstances or unusual circumstances were present or whether this
was a situation in which reimbursement of medical expenses was appropriate.21 It is required to
exercise its discretion to determine whether medical care has been authorized or whether
unauthorized medical care involved emergency or unusual circumstances.22 The circumstances
of the case warrant additional development of this issue. The case shall be remanded to OWCP

16

5 U.S.C. § 8102(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by State law.”
17

C.P., Docket No. 13-831 (issued July 12, 2013).

18

See Tracy P. Spillane, 54 ECAB 608 (2003).

19

See 20 C.F.R. § 10.300(c).

20

Id. at 10.304.

21

P.S., Docket No. 10-1560 (issued June 23, 2011).

22

Michael L. Malone, 46 ECAB 957 (1995). See Herbert J. Hazard, 40 ECAB 973 (1989).

6

for further development consistent with this decision of the Board, followed by an appropriate
decision.23
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
diagnosed facial and oral conditions are causally related to the March 5, 2012 employment
incident, as alleged. The case will be returned to OWCP for consideration of whether appellant’s
medical expenses related to his treatment from the March 5, 2012 incident should be reimbursed.
ORDER
IT IS HEREBY ORDERED THAT the September 11, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed. The case is remanded for further development
consistent with this decision of the Board.
Issued: May 5, 2014
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

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

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

23

A.F., Docket No. 13-520 (issued May 17, 2013).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Atlantic City, NJ, Employer
__________________________________________

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

Docket No. 09-1024
Issued: March 23, 2010

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 March 9, 2009 appellant, through his attorney, filed a timely appeal of the
December 17, 2008 schedule award 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 has more than 16 percent impairment of his right upper
extremity.
FACTUAL HISTORY
On November 9, 2004 appellant, then a 54-year-old dock worker, filed an occupational
disease claim alleging that on May 1, 2001 he became aware of torn rotator cuffs in both
shoulders which he attributed to lifting in the performance of duty. On November 4, 2004
appellant underwent a left upper extremity magnetic resonance imaging (MRI) scan which

demonstrated an extensive tear of the supraspinatus tendon with retraction and degenerative joint
disease of the acromioclavicular joint. His right upper extremity MRI scan on November 5,
2004 demonstrated degenerative joint disease of the acromioclavicular joint, articular tears of the
supraspinatus tendon and thinning of the biceps tendon. Appellant underwent a left open rotator
cuff repair on January 4, 2005. The Office accepted his claim for sprain/strain rotator cuff on
June 22, 2005.
The Office authorized right shoulder arthroscopy surgery on August 17, 2005.
Dr. Matthew Pepe, a Board-certified orthopedic surgeon, performed a surgical arthrocopic
subacromial decompression, arthroscopic distal clavical excision, arthroscopic superior labral
tear and arthroscopic rotator cuff repair on September 8, 2005. Appellant returned to light-duty
work on December 7, 2005.
In a note dated March 6, 2006, Dr. Pepe found that appellant had reached maximum
medical improvement regarding his right shoulder. He found that appellant had a full range of
motion, normal strength bilaterally, negative impingement signs and biceps maneuvers.
Dr. Nicholas Diamond, an osteopath, examined appellant on April 27, 2006 for schedule
award purposes. He noted appellant’s history of injury and medical treatment. On physical
examination, Dr. Diamond found loss of range of motion of the cervical spine. In regard to
appellant’s right shoulder, forward elevation was 160 degrees abduction of 160 degrees,
adduction of 60 degrees and internal rotation of 70 degrees. In appellant’s left shoulder,
Dr. Diamond found elevation of 150 degrees, abduction of 155 degrees and adduction of 65
degrees. On manual muscle testing, appellant demonstrated loss of strength in the supraspinatus,
deltoids and biceps. Dr. Diamond diagnosed post-traumatic C3-4 disc herniation and C6-7
spondylosis and herniated disc. He found bilateral C5-6 radiculopathy and right and left
shoulder cuff tears with surgical repairs. Dr. Diamond found 2 percent impairment of the left
shoulder due to loss of flexion, 1 percent impairment due to loss of abduction and total left upper
extremity impairment of 30 percent. Appellant’s right shoulder demonstrated one percent
impairment due to loss of flexion, one percent impairment due to loss of abduction and one
percent impairment due to loss of internal rotation. Dr. Diamond found 10 percent impairment
due to loss of grip strength, and 3 percent impairment due to pain for total right upper extremity
impairment of 16 percent.
In a report dated December 4, 2006, Dr. David Weiss, an osteopath, rated the permanent
impairment to appellant’s right shoulder. He found that appellant had one percent impairment
each due to loss of flexion, abduction and internal rotation. Dr. Weiss stated that appellant had
10 percent impairment due to the right shoulder resection arthroplasty and 20 percent impairment
due to grip strength deficit for a combined impairment of the right upper extremity of 21 percent.
He also found that appellant had 3 percent impairment due to pain in accordance with Chapter 18
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides) resulting in a 24 percent impairment of the right upper extremity.
The district medical adviser reviewed the medical records on March 20, 2007. He found
that appellant had three percent impairment of the left shoulder due to loss of range of motion
and 16 percent of the right upper extremity based on loss of range of motion and resection of the
clavicle as well as pain in accordance with Chapter 18 of the A.M.A., Guides. The district

2

medical adviser stated that Drs. Diamond and Weiss did not support the additional 30 percent
impairment of the left upper extremity and that grip strength should not be evaluated due to the
right shoulder condition.
The Office found a conflict of medical opinion evidence between Drs. Diamond and
Weiss and the district medical adviser regarding the extent of appellant’s permanent impairment.
The record contains screen printouts indicating that the Office bypassed Dr. Stanley Marczyk,
stating, “left a message” at 10:04 a.m. Dr. Joseph Salvatore, a Board-certified orthopedic
surgeon, was bypassed at 10:08 a.m. for the same reason as were Drs. John Baker at 10:09 a.m.;
Frederick Dalzell at 10:10 a.m.; and Daniel DeMeo at 10:12 a.m. By letter dated May 9, 2007,
the Office referred appellant to Dr. Jonathan Fox, a Board-certified orthopedic surgeon.
In a report dated May 22, 2007, Dr. Fox reviewed appellant’s history of injury and
medical treatment. On physical examination, he found no obvious muscle atrophy of the left
shoulder, with full range of motion, no muscle weakness in the deltoid, biceps, triceps or external
rotators. Dr. Fox found weakness to forward elevation and lateral abduction rated four and a half
on a scale of five. He noted flexion of 180 degrees, abduction of 180 degrees, adduction 75
degrees, external rotation, 90 degrees and internal rotation 90 degrees. In the right shoulder,
Dr. Fox found flexion of 160 degrees, abduction of 160 degrees, adduction 60 degrees, external
rotation of 90 degrees and internal rotation of 75 degrees. He stated that appellant sustained
tears of his rotator cuffs at the supraspinatus muscle in both shoulders as the result of repetitive
wear and tear related to his work. Dr. Fox concluded that appellant reached maximum medical
improvement in March 2006. He found that appellant had 16 percent impairment of the right
upper extremity and 3 percent of the left upper extremity stating that he agreed with the district
medical adviser.
The district medical adviser reviewed the report of Dr. Fox on June 6, 2007 and notes that
the physician advised that appellant’s left upper extremity had full range of motion, no weakness
and no pain which did not result in a ratable impairment. In regard to appellant’s right upper
extremity, he found 2 percent impairment due to loss of range of motion and 16 percent
impairment due to weakness. As the two assessments could not be combined, he found appellant
entitled to 16 percent impairment of his right upper extremity.
By decision dated June 21, 2007, the Office granted appellant a schedule award for 16
percent impairment of the right upper extremity and found no ratable impairment of the left
upper extremity.
Appellant, through his attorney, requested an oral hearing on June 27, 2007. By decision
dated September 6, 2007, the Branch of Hearings and Review set aside the June 21, 2007
decision and remanded the case to obtain a supplemental report from Dr. Fox addressing the
permanent impairment to each of appellant’s upper extremities with citation to the A.M.A.,
Guides and to consider whether Chapter 18 of the A.M.A., Guides was applicable. The hearing
representative also noted that the Office had accepted appellant’s claim for bilateral shoulder
cuff sprain and tears and directed the Office to obtain a copy of the January 4, 2005 surgical
report.

3

Appellant submitted a copy of the January 4, 2005 operative report on January 9, 2008.
Dr. Pepe performed a surgical arthroscopy of the left shoulder with open chronic supraspinatus
repair and subacromial decompression, biceps tenodesis and acromioclavical joint resection.
The Office requested a supplemental report from Dr. Fox on March 31, 2008 asking that
he provide the percentage of permanent impairment for each upper extremity based on the
A.M.A., Guides, citing to the appropriate pages and sections.
In a report dated May 6, 2008, Dr. Fox reviewed appellant’s record and the statement of
accepted facts. Based on his prior examination on the right, appellant had 160 degrees forward
flexion or 1 percent impairment; 160 degrees abduction or 1 percent impairment; 60 degrees
adduction which was not a ratable impairment; and 75 degrees internal rotation or 1 percent
impairment, for a total of 3 percent right upper extremity impairment for reduced range of
motion. Dr. Fox noted, “In addition, per [T]able 16-27, page 506, resection of the right clavicle
equals 10 percent PPI [permanent partial impairment], for a total of 13 percent on the right.” He
found that appellant had no ratable range of motion deficits in the left shoulder. Dr. Fox
concluded, “Moreover, I assigned an additional 3 percent for pain, weakness and decreased
endurance bilaterally, per [T]able 18-1, for a total of 16 percent PPI on the right, and 3 percent
PPI on the left. In my opinion, [C]hapter 18 should be used since PPI cannot be adequately rated
on the basis of body impairment systems given in other chapters of the [A.M.A., Guides].”
By decision dated June 6, 2008, the Office denied appellant’s claim for an additional
schedule award of the right upper extremity.1
The district medical adviser reviewed this report on June 8, 2008 and found that appellant
had 13 percent impairment of the right shoulder and 10 percent impairment of the left shoulder.
He disagreed with Dr. Fox’s assignment of an additional three percent impairment due to pain
asserting that this rating was already included in the loss of range of motion and diagnoses-based
impairment ratings and that assigning an additional pain rating would be duplicative. The
district medical adviser also found that as appellant underwent an acromial-clavical joint
resection along with subacromial decompression on the left this would “place the same
impairment upon his extremity as if he had undergone a distal clavicle [resection].” He found
that appellant was entitled to 10 percent impairment for the left upper extremity. The district
medical adviser discounted Dr. Fox’s three percent impairment rating for pain noting that,
although appellant complained of right shoulder pain, he did not have similar complaints on the
left.
Appellant, through his attorney, requested an oral hearing that was held on
October 27, 2008. Appellant noted that he had two additional accepted claims, a neck injury in
October 2002 and bilateral carpal tunnel on June 14, 2004. Following the oral hearing, appellant
contended that Dr. Fox did not adequately examine him, that he was always in discomfort and
that he had obvious atrophy of the left side of his chest.
1

The Office has not issued a final schedule award decision for 10 percent impairment of the left upper extremity
as found by the district medical adviser. Furthermore, the hearing representative did not review this aspect of
appellant’s claim. The Board may not address this aspect of appellant’s claim on appeal as it is in an interlocutory
position. See 20 C.F.R. § 501.2(c)(2).

4

On appeal, appellant’s attorney alleged that Dr. Fox was not properly selected under the
Physicians Directory System (PDS) as other physicians were bypassed without waiting for their
responses to messages. Further, the report of Dr. Fox was not sufficiently detailed or well
rationalized to constitute the weight of the medical opinion.
By decision dated December 17, 2008, the hearing representative found that appellant
had no more than 16 percent impairment of his right upper extremity for which he has received a
schedule award. The hearing representative found that Dr. Fox’s reports were entitled to the
special weight of the medical evidence.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.4 Effective
February 1, 2001, the Office adopted the fifth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.5
The fifth edition of the A.M.A., Guides allows for impairment percentage to be increased
by up to three percent for pain by using Chapter 18, which provides a qualitative method for
evaluating impairment due to chronic pain. If an individual appears to have a pain-related
impairment that has increased the burden on his or her condition slightly, the examiner may
increase the percentage up to three percent. However, examiners should not use Chapter 18 to
rate pain-related impairments for any condition that can be adequately rated on the basis of the
body and organ impairment systems given in other chapters of the A.M.A., Guides.6
The Act provides that if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.7 The implementing regulations regarding
impartial medical examinations states that if a conflict exists between the medical opinion of the
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

4

Id.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002).
6

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(June 2003); A.M.A., Guides, 571, 18.3(b); P.C., 58 ECAB 539 (2007); Frantz Ghassan, 57 ECAB 349 (2006).
7

5 U.S.C. §§ 8101-8193, 8123.

5

employee’s physician and the medical opinion of either a second opinion physician of an Office
medical adviser or consultant, the Office shall appoint a third physician to make an examination.
This is called a referee examination and the Office will select a physician who is qualified in the
appropriate specialty and who has had no prior connection with the case.8
A physician selected by the Office to serve as an impartial medical specialist should be
wholly free to make a completely independent evaluation and judgment. To achieve this, the
Office has developed specific procedures for the selection of impartial medical specialists
designed to provide safeguards against any possible appearance that the selected physician’s
opinion is biased or prejudiced. The procedures contemplate that impartial medical specialists
will be selected from Board-certified specialists in the appropriate geographical area on a strict
rotating basis in order to negate any appearance that preferential treatment exists between a
particular physician and the Office.9 The Federal (FECA) Procedure Manual (the procedure
manual) provides that the selection of referee physicians (impartial medical specialists) is made
through a strict rotational system using appropriate medical directories. The procedure manual
provides that the PDS should be used for this purpose wherever possible.10 The PDS is a set of
stand-alone software programs designed to support the scheduling of second opinion and referee
examinations.11 The PDS database of physicians is obtained from the American Board of
Medical Specialties (ABMS) which contains the names of physicians who are Board-certified in
certain specialties. The Board has held that an appropriate notation should be made in the
directory when a specialist indicates his or her unwillingness to accept a case or when, for other
valid reasons it is not advisable or practicable to use his or her services.12
It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on proper factual and medical background must be given special weight.13
ANALYSIS
Appellant received a schedule award for 16 percent impairment of his right upper
extremity. The Office found that there was a conflict of medical opinion evidence between
appellant’s physicians, Drs. Weiss and Diamond, osteopaths, who found that he had 24 percent
impairment of the right upper extremity. The district medical adviser found that appellant had 16
percent impairment of the right upper extremity. The Board finds that the Office properly
concluded that there was a conflict of medical opinion evidence requiring an impartial medical
evaluation.
8

20 C.F.R. § 10.321.

9

B.P., 60 ECAB ___ (Docket No. 08-1457, issued February 2, 2009).

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b (May 2003).

11

Id. at Chapter 3.500.7 (September 1995, May 2003).

12

David Peisner, 39 ECAB 1167 (1988).

13

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

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The Office selected Dr. Fox, a Board-certified orthopedic surgeon, through the PDS to
serve as the impartial medical examiner. On appeal, appellant’s attorney objected to Dr. Fox’s
selection on the grounds that several other physicians were bypassed before the claims examiner
scheduled examination by Dr. Fox. He noted that the claims examiner had left messages with
other physicians. Counsel noted that the claims examiner did not allow the physicians’ offices
any time to respond to the messages prior to moving to the next physician appearing in the PDS.
The Board finds that Dr. Fox was properly selected to serve as the impartial medical examiner.
The Office has an interest in the timely scheduling of appointments. The record reveals the
claims examiner was not able to contact the other physicians to schedule an appointment. There
is no evidence that the Office acted improperly in bypassing these physicians in order to make an
appointment with a physician who was available to schedule the examination.
Dr. Fox submitted two reports dated May 22, 2007 and May 6, 2008. In his initial report,
he provided his findings on physical examination, but apparently believed that he was to select
the physician whose rating he believe was most appropriate rather than provide an independent
opinion on the matter. Due to this error, the Office properly requested a supplemental report
from Dr. Fox. The Board finds that Dr. Fox’s reports are entitled to the weight of the medical
evidence and establish that appellant has 16 percent impairment of his right upper extremity for
which he has received a schedule award. In his initial report, Dr. Fox noted appellant’s history
of injury and medical history as well as providing findings on physical examination. In the right
shoulder, he found flexion of 160 degrees, abduction of 160 degrees, adduction 60 degrees,
external rotation of 90 degrees and internal rotation of 75 degrees. Dr. Fox stated that appellant
sustained tears of his rotator cuffs at the supraspinatus muscle in both shoulders as the result of
repetitive wear and tear related to his work. He concluded that appellant reached maximum
medical improvement in March 2006.
In a supplemental report, Dr. Fox applied the A.M.A., Guides to his previous findings. In
regard to appellant’s right upper extremity, he noted that 160 degrees forward flexion is 1
percent impairment,14 160 degrees abduction is 1 percent impairment, 60 degrees adduction is
not a ratable impairment15 and 75 degrees internal rotation is 1 percent impairment.16 This totals
three percent impairment of the right upper extremity for reduced range of motion. He also
found that appellant had 10 percent impairment of the right upper extremity due to resection of
the right clavicle.17 Dr. Fox also assigned an additional 3 percent for pain in accordance with
Chapter 18 of the A.M.A., Guides, for a total of 16 percent impairment the right. Dr. Fox stated,
“In my opinion, [C]hapter 18 should be used since PPI cannot be adequately rated on the basis of
body impairment systems given in other chapters of the [A.M.A., Guides].”
Dr. Fox provided his findings on physical examination and correlated these findings with
the A.M.A., Guides. He specifically noted the use of Chapter 18 for pain was appropriate as the
other chapters could not be used to adequately rate this impairment. The Board finds that this
14

A.M.A., Guides, 476, Figure 16-40.

15

Id. at 477, Figure 16-43.

16

Id. at 479, Figure 16-46.

17

Id. at 506, Figure 16-27.

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well-reasoned report of the impartial medical examiner constitutes the weight of the medical
evidence and establishes that appellant has 16 percent impairment of his right upper extremity
for which he has received a schedule award.
CONCLUSION
The Board finds that appellant has no more than 16 percent impairment of his right upper
extremity for which he has received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the December 17, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: March 23, 2010
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Waycross, GA, Employer
__________________________________________

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

Docket No. 11-1826
Issued: September 5, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 2, 2011 appellant, through his attorney, filed a timely appeal of a June 28,
2011 Office of Workers’ Compensation Programs’ (OWCP) merit decision denying that he was
injured in the performance of duty. 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.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he was
injured in the performance of duty on February 7, 2010.
FACTUAL HISTORY
On February 12, 2010 appellant, then a 38-year-old sales and systems distributor, filed a
traumatic injury claim alleging that on February 7, 2010 he “passed out and hit head on
1

5 U.S.C. § 8101 et seq.

equipment.” The claim form indicated that appellant’s incident occurred during his regular tour
of duty at his duty station. On the reverse of the form, appellant’s supervisor stated that the
medical documentation did not support a work-related injury as appellant had two other claims
for the same type of incident. Appellant submitted a report dated February 9, 2010 from
Dr. Michael Baker, a Board-certified neurologist, indicating that he passed out due to syncope or
dehydration.
In a letter dated February 24, 2010, OWCP requested additional factual and medical
information from appellant including what he believed to be the cause of his fall, whether he
struck an object during his fall and whether there were any witnesses to his fall.
Appellant responded and stated that he did not have a clear recollection of the duties that
he was performing at the time of his blackout. He stated that he was spreading mail. Appellant
noted, “Everyone at work says I get in a confused state minutes before I pass out and start staring
at things and acting like I’m lost or something.” He further stated that he never remembered
what happened right before or after he blacked out. Appellant stated that this was the third time
in a year that he passed out. He stated that his doctors attributed his faints to standing on his feet
for long periods at work and becoming overheated. Appellant noted that he had borderline high
blood pressure and had been taking medication for this condition for three years. He stated that
the “rumor” was that he hit a pull down rack during his faint, but that there was only one witness
and he requested that OWCP obtain a statement from his employing establishment.
Appellant submitted a computerized tomography (CT) scan dated February 8, 2010 due
to headaches which was read as no acute intracranial abnormalities.
By decision dated April 2, 2010, OWCP denied appellant’s claim. It found that appellant
had not submitted medical evidence establishing a causal relationship between his employment
and his alleged injury.
In a report dated March 24, 2010, Dr. Harsh Singh, a Board-certified neurologist, noted
that appellant had passed out three times in the last year. He noted that appellant had a history of
headaches. Dr. Singh provided his findings on physical examination and stated, “At this point,
his events are unclear and they do not appear to be epileptic in nature.”
Appellant requested a review of the written record by an OWCP hearing representative
on April 27, 2010. He submitted additional medical evidence including a note dated April 28,
2010 from Dr. Jonathan Constantin, an osteopath, indicating that appellant had another episode
of vasovagal syncope at work and referring to his October 28, 2009 report. In a report dated
October 28, 2009, Dr. Constantin stated that appellant experienced “fairly classical vasovagal
syncope which was likely related to prolonged standing.” He recommended that appellant avoid
prolonged standing.
On February 8, 2010 Chris Dryden, a coworker, stated that appellant collapsed on the
floor on that date. Brandon Gamadge reported appellant’s fall. Mr. Dryden then drove appellant
home. He noted that appellant had a large lump on the back of his head.

2

The employing establishment controverted appellant’s claim on June 22, 2010 alleging
that appellant had an underlying condition which was not job related and which resulted in his
fall at work.
By decision dated August 5, 2010, OWCP’s hearing representative denied appellant’s
claim finding that the medical evidence did not establish a causal relationship between a specific
injury and the employment. The hearing representative explained that the medical evidence did
not clearly establish a causal relationship between appellant’s employment duty of standing and
his vascular syncope.
Dr. Gerard M. Gerling, a Board-certified neurologist, examined appellant on
September 13, 2010 diagnosing carpal tunnel syndrome and migraine headaches. He noted that
appellant had lost consciousness four times in the past year as diagnosed as vasovagal syncope.
Dr. Gerling found that appellant had a normal neurological examination and reviewed the
medical evidence. He noted that appellant’s treating physician diagnosed vasovagal syncope
related to overheating and standing for too long at work. Dr. Gerling disagreed with this
assessment. He stated, “There is insufficient evidence provided to indicate what his condition is,
but there is no evidence provided that indicates that he suffered a work-related injury.”
Dr. Gerling noted that vasovagal syncope was medically considered as a functional disorder
rather than an organic illness.
By decision dated October 18, 2010, OWCP denied appellant’s claim finding that the
evidence was not sufficient to establish that he sustained a traumatic injury in the performance of
duty on February 7, 2010. It stated that the medical evidence was not sufficient to establish that
a medical condition was diagnosed in connection with the claimed event. This decision included
full appeal rights.
Appellant informed OWCP on October 27, 2010 that his teeth were dislodged during the
fall. Appellant, through his attorney, requested an oral hearing on October 29, 2010. He
testified at the oral hearing on March 21, 2011 alleging that he was working outside in 100
degree weather and as he was leaving work walked by a concrete picnic table and fainted.
Appellant alleged that he hit a concrete door and that his supervisors found him lying in a pool of
blood with his teeth knocked out.2
In a report dated August 11, 2010, Dr. Constantin stated that appellant sustained a
traumatic syncopal event while working outside in 104 degree weather. He noted that appellant
had a syncopal episode in which he lost several teeth and struck his head which he was
hospitalized and released. Dr. Constantin stated, “This is a 38-year-old with fairly classic
vasovagal syncope and it seems to be clearly exacerbated by prolonged standing at work. His
last episode was his most dramatic and traumatic and occurred in 104 degrees temperature with
profuse sweating.”
By decision dated June 28, 2011, the hearing representative reviewed the medical
evidence and noted that variances between appellant’s description of the employment events. He
2

In the event that appellant is alleging a separate employment incident in August 2010 which resulted in a fall, he
should file a separate notice of traumatic injury regarding that claim.

3

concluded that appellant had blacked out and fell at work on February 7, 2010, but that the
medical evidence was not sufficient to establish that appellant’s work affected an underlying
medical condition on February 7, 2010.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
of FECA, that an injury was sustained in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed is causally related to the
employment injury.”3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or occupational disease.4
Congress, in providing for a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness, or mishap that might befall
an employee contemporaneous or coincidental with her employment; liability does not attach
merely upon the existence of any employee/employer relation.5 FECA provides for the payment of
compensation for disability or death of an employee resulting from personal injury sustained while
in the performance of duty. The term “in the performance of duty” has been interpreted to be the
equivalent of the commonly found prerequisite in workers’ compensation law, “arising out of and
in the course of employment.”6 “In the course of employment” deals with the work setting, the
locale, and time of injury.7 In addressing this issue, the Board has stated:
“In the compensation field, to occur in the course of employment, in general, an
injury must occur: (1) at a time when the employee may reasonably be said to be
engaged in his master’s business; (2) at a place where he may reasonably be
expected to be in connection with the employment; and (3) while he was reasonably
fulfilling the duties of his employment or engaged in doing something incidental
thereto.”8
This alone is not sufficient to establish entitlement to benefits for compensability. The
concomitant requirement of an injury “arising out of the employment” must be shown, and this
encompasses not only the work setting but also a causal concept, the requirement being that the
employment caused the injury in order for an injury to be considered as arising out of the
3

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Daniel J. Overfield, 42 ECAB 718, 721 (1991).

5

Minnie N. Heubner (Robert A. Heubner), 2 ECAB 20, 24 (1948); Christine Lawrence, 36 ECAB 422, 42324 (1985).
6

James E. Chadden, Sr., 40 ECAB 312, 314 (1988).

7

Denis F. Rafferty, 16 ECAB 413, 414 (1965).

8

Carmen B. Gutierrez, 7 ECAB 58, 59 (1954).

4

employment, the facts of the case must show some substantial employer benefit is derived or an
employment requirement gave rise to the injury.9
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.10 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence. To establish a causal relationship between the condition, as well as any attendant
disability, claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence, based on a complete factual and medical background, supporting such
a causal relationship.11
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant. The weight of medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.12
ANALYSIS
Appellant, a federal employee, has alleged that he was injured at his regular work station
during his tour of duty or during his employment at the time and place his duties required. He
has established that his injury occurred in the course of employment, but must also show that his
injury arose out of his employment, that his employment caused the injury.
If appellant’s injury was due to an idiopathic condition, the injury would not arise out of
his employment. OWCP has the burden of proof to submit medical evidence showing the
existence of a personal, nonoccupational pathology if it chooses to make a finding that a given
fall is idiopathic in nature. The fact that the cause of a particular fall cannot be determined does
not establish that it was due to an idiopathic condition and if the record does not establish a
particular fall was due to an idiopathic condition, it must be considered as merely an unexplained
9

See Eugene G. Chin, 39 ECAB 598, 602 (1988).

10

Elaine Pendleton, supra note 3.

11

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

12

James Mack, 43 ECAB 321 (1991).

5

fall, which is covered under FECA.13 The Board finds that there is no rationalized medical
evidence in the record that appellant’s fall on February 7, 2010 was due to an idiopathic
condition.
Appellant has submitted a variety of medical reports addressing the cause of the fall,
however, due to the conflicting nature of the medical reports from Drs. Constantin, Singh and
Gerling, the Board is unable to determine the cause of appellant’s fall. Dr. Constantin attributed
appellant’s fall to classical vasovagal syncope which was likely related to prolonged standing.
Dr. Singh stated that the cause of appellant’s blackout was unclear and did not appear to be
epileptic in nature. Dr. Gerling found that there was insufficient evidence provided to diagnose
appellant’s condition, but did not believe that it was related to standing in the performance of
duty.
As an unexplained fall while appellant was engaged in activities incidental to his
employment duties, an injury resulting from this fall is compensable. The Board finds that
OWCP has properly accepted that appellant had an unexplained fall on February 7, 2010. The
Board further finds that OWCP properly concluded that appellant did not establish any medical
condition for which compensation is claimed as a result of the February 7, 2010 employment
incident.
Appellant alleged that he hit his head during the February 7, 2010 fall. Mr. Dryden stated
that appellant had a large lump on the back of his head after the February 7, 2010 fall. Both the
Board and OWCP’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection. In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.14 On February 8, 2010 Dr. Baker provided the initial medical examination following
the February 7, 2010 fall, but did not diagnose any head condition resulting from the fall. He
listed his diagnoses as passed out, syncope and dehydration only. Appellant also underwent a
CT scan on February 9, 2010 due to a headache. The CT scan was found to be normal. The
Board notes that Drs. Gerling and Singh indicated that appellant had a history of headaches or
migraines. Due to this aspect of appellant’s medical history and the lack of affirmed medical
evidence diagnosing any head condition as a result of the February 7, 2010 fall, the Board is
unable to establish a causal relationship between the accepted employment incident on
February 7, 2010 and his headache on February 8, 2010.15 The medical evidence is not therefore
sufficient to establish a causal relationship between appellant’s unexplained fall and a diagnosed
medical condition.

13

M.M., Docket No. 08-1510 (issued November 25, 2008); Jennifer Atkerson, 55 ECAB 317 (2004).

14

G.G., 58 ECAB 389 (2007).

15

See Atkerson, supra note 13, (the Board found that a skull fracture demonstrated by x-ray following an
unexplained fall was not a clear cut traumatic injury claim that could be accepted on the basis of the physician’s
opinion as there was medical evidence of previous head traumas and no evidence whether the accepted fall was
sufficient to cause the skull fracture).

6

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof in establishing that
he sustained an injury in the performance of duty on February 7, 2010.
ORDER
IT IS HEREBY ORDERED THAT the June 28, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 5, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF HOMELAND SECURITY,
)
IMMIGRATION & CUSTOMS
)
ENFORCEMENT, Falcon Heights, TX, Employer )
__________________________________________ )
M.S., Appellant

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

Docket No. 15-1771
Issued: December 23, 2015

Case Submitted on the Record

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

JURISDICTION
On August 24, 2015 appellant filed a timely appeal from a May 22, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant timely filed his claim within the provisions of 5 U.S.C.
§ 8122.
FACTUAL HISTORY
On May 15, 2014 appellant, then a 59-year-old former senior special agent, filed an
occupational disease claim (Form CA-2) alleging that he sustained right wrist and hand pain
1

5 U.S.C. § 8101 et seq.

causally related to factors of his federal employment. He indicated that he first became aware of
his condition and its relationship to his employment on March 1, 1989. Appellant advised that
while playing in a basketball game at a law enforcement training academy he experienced right
hand and wrist pain. He related, “My injury was misdiagnosed as a wrist tendon injury instead
of an actual wrist ligament tear that continued to worsen throughout my career. I did not know
my tendon was torn. My job position required lifting large heavy bundles of marijuana on a
continuous basis.” On the reverse side of the claim form, the employing establishment indicated
that appellant first reported the condition to a supervisor on April 29, 2014.
In a report dated April 21, 2014, Dr. Khaimchand Panday, a Board-certified orthopedic
surgeon, discussed his treatment of appellant beginning on September 4, 2013 for right wrist
primarily localized osteoarthritis. He related that appellant underwent an excision of the right
scaphoid and a four-corner mid-carpal arthrodesis on October 24, 2013. Appellant had
permanently reduced function of the right wrist.
By letter dated May 28, 2014, OWCP requested that appellant provide additional factual
and medical information in support of his claim. It advised him that it appeared that his claim
was untimely filed and asked that he submit evidence supporting that he timely filed his claim.
In a decision dated August 29, 2014, OWCP denied appellant’s claim as untimely. It
found that there was no evidence that he filed his claim within three years of March 1, 1989, the
date of injury, or that his supervisor had actual knowledge of his injury within 30 days of that
date.
On September 21, 2014 appellant requested a telephone hearing before an OWCP hearing
representative. In an accompanying statement, he related that on approximately March 1, 1989,
while at a training program, he hurt his right wrist playing in a basketball game. Appellant
received treatment at the emergency room and a physician diagnosed wrist tendinitis. He
reported the wrist injury and his medical bills were paid. Appellant continued working and in
the course of his career lifted and carried large bundles of marijuana. He related:
“During the last year of my career I started experiencing severe pain in my right
hand and wrist area. I did not know the cause of the pain and finished out my
career retiring on January 2010. During my retirement the pain in my hand
continued to worsen and I went to see a hand specialist. The specialist
determined I did not have tendinitis but advised me I had suffered a traumatic
injury to my hand and tore a ligament in the right wrist area. Since I did not have
surgery back in 1989 to repair the ligament, it had completely dissolved which
caused the hand bones to move around thus causing the severe pain in my hand
and wrist area.”
Appellant attributed his condition to being misdiagnosed in 1989 with tendinitis instead of a
ruptured wrist tendon which was aggravated by heavy lifting for 20 years. He maintained that he
filed his claim within three years of learning that it was related to his employment.

2

The record contains a description by the employing establishment of its law enforcement
training facility. It indicated that students were in travel status while at the facility and that its
student athletic programs, including basketball, were “strongly encouraged.”
Appellant submitted medical evidence from 1989, including a May 8, 1989 authorization
for examination and/or treatment (Form CA-16). The form provided that he sustained an injury
to his right wrist playing basketball. A physician diagnosed right wrist tendinitis.
On February 2, 2015 appellant requested reconsideration.
By letter dated March 3, 2015, OWCP requested that appellant clarify whether he wanted
to request reconsideration or an oral hearing. On March 11, 2015 appellant informed OWCP that
he wanted to pursue his reconsideration request. He submitted an emergency outpatient
treatment record from an area hospital dated May 6, 1989, indicating that he was experiencing
pain in his right wrist after playing basketball. The diagnosis was tendinitis and a splint was
applied.
In a decision dated May 22, 2015, OWCP denied modification of its August 29, 2014
decision. It determined that appellant had not submitted sufficient evidence to establish that he
timely filed his occupational disease claim. OWCP noted that he retired on January 2, 2010, but
did not file his claim until more than three years later.
On appeal appellant asserts that he submitted medical evidence sufficient to show that his
condition arose from his employment. He also contends that he timely filed his claim when he
became aware of its relationship to his employment.
LEGAL PRECEDENT
Section 8122(a) of FECA provides that an original claim for compensation for disability
or death must be filed within three years after the injury or death.2 Compensation for disability
or death, including medical care in disability cases, may not be allowed if a claim is not filed
within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 was given within
30 days.”3
The three-year time period begins to run from the time the employee is aware or by the
exercise of reasonable diligence should have been aware that his condition is causally related to
the employment. For actual knowledge of a supervisor to be regarded as timely filing, an
2

5 U.S.C. § 8122(a).

3

Id.

3

employee must show not only that the immediate superior knew that he or she was injured, but
also knew or reasonably should have known that it was an on-the-job injury.4
Section 8119 of FECA provides that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate supervisor of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day, and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the person giving the notice.5 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.6
For actual knowledge of a supervisor to be regarded as timely filed, an employee must show not
only that the immediate superior knew that he or she was injured, but also knew or reasonably
should have known that it was an on-the-job injury.7
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware or reasonably should have been aware, of a possible relationship
between his condition and his employment. When an employee becomes aware or reasonably
should have been aware that he or she has a condition which has been adversely affected by
factors of his or her federal employment, the limitation period begins to run even if the employee
does not know the precise nature of the impairment or whether the ultimate result of such affect
will be temporary or permanent.8 Where the employee continues in the same employment after
he reasonably should have been aware that he has a condition which has been adversely affected
by factors of the federal employment awareness, the time limitation begins to run on the date of
the last exposure to the implicated factors.9 The requirement to file a claim within three years is
the claimant’s burden and not that of the employing establishment.10
ANALYSIS
The Board finds that appellant’s occupational disease claim is barred by the applicable
time limitation provisions of FECA. Appellant alleged that he first became aware of the
relationship between his right wrist and hand condition and factors of his federal employment on
May 1, 1989, the date that he injured his hand playing basketball at the employing
establishment’s training facility. He continued to work lifting heavy bundles of marijuana as
part of his work duties until he retired in January 2010. Appellant filed an occupational disease
4

See Duet Brinson, 52 ECAB 168 (2000).

5

5 U.S.C. § 8119; Larry E. Young, 52 ECAB 264 (2001).

6

See Laura L. Harrison, 52 ECAB 515 (2001).

7

Delmont L. Thompson, 51 ECAB 155 (1999).

8

See Larry E. Young, supra note 5.

9

Id.

10

See Debra Young Bruce, 52 ECAB 315 (2001).

4

claim on May 15, 2014. He maintained that his May 1, 1989 injury was misdiagnosed as
tendinitis rather than a ligament tear. Appellant performed lifting over the course of his 20-year
career that aggravated the ligament tear.
As noted, if an employee continues to be exposed to injurious working conditions, the
time limitation begins to run on the date of the last exposure.11 Consequently, the time for filing
appellant’s claim began to run in January 2010, the date of his retirement. Appellant filed his
occupational disease claim on May 15, 2014, more than three years after the date of last
exposure. Consequently, he filed his claim outside the three-year time limitation period.12
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of FECA if
his immediate supervisor had actual knowledge of the injury within 30 days or if he provided
written notice within 30 days. There is no evidence, however, that a supervisor had knowledge
of his occupational disease claim within 30 days or that he provided written notice of injury
within 30 days. The employing establishment indicated that appellant first advised a supervisor
of his condition on April 29, 2014. While there is evidence that the employing establishment
knew that he sustained a right wrist injury at its training facility in May 1989, this does not
establish that it was aware of his claim for an occupational disease to his right wrist as a result of
heavy lifting over the course of his employment.
In cases of latent disability, the time limitation does not begin to run until the claimant is
aware, or by the exercise of reasonable diligence should have been aware, of the causal
relationship between the employment and the compensable disability.13 Appellant related that he
was not aware of his condition and its relationship to his employment until he was evaluated by a
hand specialist, which was within three years of the date that he filed his occupational disease
claim. He did not, however, provide the date of the examination of the hand specialist which led
to his awareness of the cause of his condition. Instead, appellant generally related that he sought
treatment from a hand specialist after his retirement, who told him that his original wrist injury
was improperly treated. The only medical evidence of record after 1989 is an April 21, 2014
report from Dr. Panday. Dr. Panday discussed his treatment of appellant for primary localized
osteoarthritis of the right wrist, including right wrist surgery performed on October 24, 2013. He
did not discuss either the cause of appellant’s condition or the implicated work factors.
Appellant has not submitted any medical evidence showing the date that he became aware of the
relationship between his condition and factors of his federal employment.
On appeal appellant argues that he submitted medical evidence addressing the cause of
his wrist condition. The issue of whether a claim was timely filed is a preliminary jurisdictional
issue that precedes any determination on the merits of the claim.14

11

See R.V., Docket No. 10-1776 (issued April 1, 2011).

12

Id.

13

5 U.S.C. § 8122(b).

14

See Charles Walker, 55 ECAB 238 (2004).

5

Appellant further contends that he filed his claim when he became aware of the
relationship between his condition and his employment. He did not, however, submit any factual
or medical evidence showing when he knew that his condition arose from his work duties.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant’s claim was untimely filed under the provisions of
5 U.S.C. § 8122.
ORDER
IT IS HEREBY ORDERED THAT the May 22, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 23, 2015
Washington, DC

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

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

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

6