United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Broken Arrow, OK, Employer
__________________________________________

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

Docket No. 11-1694
Issued: February 22, 2012

Case Submitted on the Record

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

JURISDICTION
On July 15, 2011 appellant, through his attorney, filed an appeal from a June 3, 2011
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he was disabled
for the period May 20 to October 1, 2010
1
2

5 U.S.C. §§ 8101-8193.

The Board notes that appellant requested reconsideration with OWCP concurrently with his appeal to the Board.
The Board and OWCP may not have simultaneous jurisdiction over the same issues. Following the docketing of an
appeal before the Board, OWCP does not retain jurisdiction to render a further decision regarding the issue on
appeal until after the Board relinquishes jurisdiction. A.J., Docket No. 10-619 (issued June 29, 2010). Thus, the
July 22, 2011 merit decision rendered by OWCP is null and void. See R.M., Docket No. 09-1231 (issued
July 27, 2010).

On appeal, appellant’s attorney asserts that the decision is contrary to fact and law.
FACTUAL HISTORY
On May 24, 2010 appellant, then a 44-year-old distribution clerk, filed a traumatic injury
claim alleging that on May 20, 2010 he injured his back and neck when the postmaster, Glenn
Harvey, placed a large amount of mail flats onto his arm and pushed down on it. He stopped
work that day and did not return. In a May 21, 2010 statement, appellant noted that he had a
weight restriction and alleged that he was assaulted by Mr. Harvey on May 20, 2010 when
intentionally thrust with a large amount of mail flats onto one arm.3
Appellant submitted a June 10, 2010 report from Dr. Donald R. Barney, an osteopath,
who advised that he examined appellant on June 7 and 10, 2010 and reported a history that he
had a 20-pound weight restriction. Mr. Harvey pushed a large quantity of mail onto appellant’s
left arm that weighed at least that much, causing pain in his left arm and shoulder, left scapula
cervical and lumbar spine. On examination, appellant had muscle spasm and tenderness in the
left shoulder with decreased range of motion, tenderness along the superior border of the scapula,
and spinal tenderness at C7 to T1 with muscle spasms of the cervical spine and upper one-third
of the thorax and muscle spasm and pain in the lumbar region. Dr. Barney advised that appellant
could not work due to the severity of pain from the May 20, 2010 injury and to increased
anxiety.
The employing establishment controverted the claim. In a May 21, 2010 statement,
Curtis Knipe, supervisor of customer services, advised that he was speaking with Mr. Harvey
around 7:30 a.m. on May 20, 2010 when they noticed appellant picking up flats (magazines) one
at a time and sorting them into the flat case. He saw Mr. Harvey speak to appellant, and saw
Mr. Harvey pick up a small handful of approximately three inches of mail and directed appellant
to pick up that much when he was sorting flats. Mr. Knipe stated that Mr. Harvey then placed
three stacks of flats onto a ledge in front of appellant. After he was done talking with appellant,
he saw appellant fill out a leave slip which he handed to Mr. Harvey. In a May 24, 2010
statement, Mr. Harvey advised that at approximately 7:15 a.m. on May 20, 2010 he witnessed
appellant picking up flats one at a time. He approached appellant and picked up four or five flats
and extended his arms as if to hand it to appellant, who told him that he could not because it
would hurt his back. Mr. Harvey told appellant that he was fully aware of the 20-pound weight
restriction, and that he could hold the amount of mail being given to him. He stated that he
loaded appellant’s flat ledge for him, but as he was doing this, appellant left and filled out a leave
slip and then clocked out. Mr. Harvey called appellant to speak with him about the leave slip
and the requirement for medical documentation. He was told by appellant that he would not talk
with him, and that he walked away stating that he would furnish documentation.
On July 12, 2010 OWCP accepted that appellant sustained employment-related sprains to
the lumbar region of the back, neck, shoulder and rotator cuff of the left upper arm. Appellant

3

Appellant referenced two additional OWCP claims with File Nos. xxxxxx366 and xxxxxx742. The instant
claim is adjudicated under File No. xxxxxx969. The record indicates that appellant had an employment injury in
August 2009 and returned to modified duty on May 14, 2010.

2

filed claims for disability compensation on July 25, August 15 and October 4, 2010, for the
period May 20 to October 1, 2010.
A May 25, 2010 magnetic resonance imaging (MRI) scan of the lumbar spine
demonstrated modest degenerative changes and normal alignment. Bilateral testing for thoracic
outlet syndrome on July 28, 2010 was within normal limits. Venous Doppler studies of both legs
on July 28, 2010 were interpreted as normal. In a number of reports dated from July 10 to
October 28, 2010, Dr. Barney reported a history that Mr. Harvey placed a stack of letters 12
inches tall on appellant’s arm and pushed down on the stack and that this hurt appellant’s arm,
hand, shoulder and neck. He stated that Mr. Harvey then followed appellant out the door to his
car, and he felt incapacitated and terrified to return to work. On examination, Dr. Barney noted
muscle spasm and tenderness in the left shoulder and surrounding areas, and in the cervical and
lumbar spine with restricted range of motion. He diagnosed left shoulder derangement, left
shoulder rotator cuff tear, acute lumbar strain, acute cervicodorsal strain and severe
stress/anxiety syndrome. Dr. Barney reported that appellant had physical and occupational
therapy three times a week and advised that he could not return to work due to pain from the
injuries and increased stress caused by Mr. Harvey, stating that the stress caused increased pain.
He opined that appellant would be off work for more than one year and would need
psychological and occupational therapy.
In an October 26, 2010 report, Dr. Harvey A. Drapkin, a Board-certified osteopath
specializing in neurology, noted that appellant had a history of numbness in all extremities and
neck pain, with upper extremity numbness present for approximately eight years. He reported
that on May 20, 2010 Mr. Harvey shoved mail into appellant’s left upper extremity, and that his
left shoulder had bothered him since that time. Dr. Drapkin provided physical examination
findings and advised that appellant’s clinical presentation revealed evidence of left shoulder
strain and bicipital tendinitis, significant cervical myofasciitis and somatic dysfunction, bilateral
carpal tunnel syndrome and significant anxiety. An upper extremity nerve conduction study was
compatible with bilateral carpal tunnel syndrome. An October 28, 2010 MRI scan of the left
shoulder demonstrated tendinosis of the supra and infraspinatus and mild subacromial/subdeltoid
bursitis.
Dr. Alan W. Holderness, a Board-certified orthopedic surgeon, performed a fitness-forduty examination on September 7, 2010. He reported an August 2009 history of a mail case
weighing about 200 pounds falling against appellant’s back and pushing him to the floor.
Appellant subsequently had pain in the neck and upper and lower back, and had a 20-pound
lifting restriction at work. He reported that he sustained injury on May 20, 2010, when a
supervisor instructed him to pick up a 25-pound tray of mail. Dr. Holderness noted that on
examination appellant was hesitant to attempt full motion of the neck and dorsal spine, feet,
ankle and quads. He reviewed an August 30, 2010 functional capacity evaluation, noting the
opinion that appellant’s performance on the test was significantly influenced by self-limiting
behavior. Dr. Holderness reviewed Dr. Barney’s record from September 10, 2009, noting that
appellant had physical and occupational therapy two or three times a week. He indicated that
appellant had been treated for a very long time with physical and occupational therapy and time
off work with very little significant clinical gains or the ability to return to work, despite
diagnoses of soft tissue sprains which should heal within three to four months. Dr. Holderness
opined that the injuries from the August 2009 incident should have resolved many months prior

3

and that appellant should have been able to return to full duty in April or May 2010. He
indicated that the May 2010 injury seemed to be minor but it was difficult to determine if
appellant had a new sprain or injury to his left shoulder, because appellant did not voluntarily
demonstrate his ability to move his joints or activate muscle strength in his extremities.
Dr. Holderness concluded that there was no objective evidence to indicate that appellant had a
permanent impairment and could return to full-time work with a 25-pound weight restriction.
On September 10, 2010 Dr. Patricia J. Allison, an osteopath who practices psychiatry,
evaluated appellant for the employing establishment. She noted a history that he accepted a
modified position on May 14, 2010 following an August 2009 employment injury, and that six
days later, on May 20, 2010, he was reinjured and had not returned to work. Dr. Allison advised
that appellant reported that the initial onset of anxiety occurred in 2000 and that it had increased
since August 2009 due to harassment by Mr. Harvey. She referenced an August 30, 2010
functional capacity evaluation that demonstrated self-limiting behavior. Dr. Allison described
her evaluation and advised that appellant’s reported symptoms were inconsistent with an anxiety
condition related to either the August 28, 2009 or May 20, 2010 work incidents. Appellant’s
current condition appeared to be characterized by the intentional presentation of grossly
exaggerated symptoms from both physical and psychological standpoints, due to strong
motivation by external incentives including avoiding work, obtaining financial gain and
retaliating against his employing establishment. Dr. Allison concluded that she could not
diagnose a panic disorder due to vagueness and inconsistencies.
By decision dated November 24, 2010, OWCP denied appellant’s claim for disability
compensation for the period May 20 to October 1, 2010 on the grounds that the medical evidence
was insufficient to establish that he was disabled for work due to the May 20, 2010 employment
injury.
On April 18, 2011 appellant requested reconsideration and submitted reports from
Dr. Barney dated November 29, 2010 to May 14, 2011. Dr. Barney reiterated his findings and
conclusions. On December 28, 2010 he noted that appellant was fitted with a lumbar back brace,
and on March 28, 2011 noted that appellant was getting more stressed due to dealings with the
employing establishment.
In a merit decision dated June 3, 2011, OWCP denied modification of the November 24,
2010 decision.
LEGAL PRECEDENT
Under FECA, the term “disability” is defined as incapacity, because of employment
injury, to earn the wages that the employee was receiving at the time of injury.4 Disability is
thus not synonymous with physical impairment which may or may not result in an incapacity to
earn the wages. An employee who has a physical impairment causally related to a federal
employment injury but who nonetheless has the capacity to earn wages he or she was receiving
at the time of injury has no disability as that term is used in FECA,5 and whether a particular
4

See Prince E. Wallace, 52 ECAB 357 (2001).

5

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

4

injury causes an employee disability for employment is a medical issue which must be resolved
by competent medical evidence.6 Whether a particular injury causes an employee to be disabled
for work and the duration of that disability, are medical issues that must be proved by a
preponderance of the reliable, probative and substantial medical evidence.7
The Board will not require OWCP to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.8 Furthermore, it is well established that medical conclusions
unsupported by rationale are of diminished probative value.9
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.10 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.11 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.12
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that he was
totally disabled for the period May 20 to October 1, 2010 due to the accepted May 20, 2010
employment injury. When appellant stopped work on May 20, 2010, he was performing a
modified position with a 20-pound weight restriction.13 The accepted conditions in this case are
sprains to the lumbar region of the back, the neck and shoulder and rotator cuff of the left arm.
Dr. Barney submitted reports dated June 20, 2010 to May 14, 2011. He generally advised
that appellant was totally disabled from all work due to pain from the accepted conditions and
increased stress. Dr. Barney obtained a history of injury that Mr. Harvey thrust a stack of letters
6

Donald E. Ewals, 51 ECAB 428 (2000).

7

Tammy L. Medley, 55 ECAB 182 (2003); see Donald E. Ewals, id.

8

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

9

Jacquelyn L. Oliver, 48 ECAB 232 (1996).

10

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

11

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

12

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

13

Supra note 2.

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12 inches tall into appellant’s arm and pushed down on it, causing the injuries. However,
Mr. Knipe, who witnessed the May 20, 2010 incident, observed Mr. Harvey pick up about three
inches of mail that were placed on a ledge in front of appellant. Mr. Harvey provided a
statement in which he described the incident, stating that he was instructing appellant in the
proper procedure and only picked up four or five magazines. Dr. Barney did not address any
specific knowledge of the requirements of the modified position appellant was performing at the
time of the May 20, 2010 injury or provide a rationalized explanation as to why he could not
perform limited-duty work. He also diagnosed a severe stress/anxiety syndrome but an
emotional condition has not been accepted as employment related under the instant claim.14
Moreover, Dr. Barney did not explain how the May 20, 2010 incident caused appellant’s
physical findings several months after he stopped work. When a physician’s statements
regarding an employee’s ability to work consist only of repetition of the employee’s complaints
that he or she hurt too much to work, without objective findings of disability being shown, the
physician has not presented a medical opinion on the issue of disability or a basis for payment of
compensation.15 The Board has long held that medical conclusions unsupported by rationale are
of diminished probative value and insufficient to establish causal relationship.16 Dr. Barney’s
opinion is therefore insufficient to establish that appellant was totally disabled for the claimed
period.
The reports of Dr. Holderness and Dr. Allison are not supportive of appellant’s disability
claim, and Dr. Drapkin did not provide an opinion regarding appellant’s ability to work. There is
insufficient rationalized medical evidence contemporaneous with the period of claimed
disability. Appellant failed to establish his disability for the period December 17, 2008 to
March 11, 2009.
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 10.607.17
CONCLUSION
The Board finds that appellant did not establish that he was entitled to monetary
compensation for the period May 20 to October 1, 2010 due to the May 20, 2010 employment
injury.

14

Supra note 3.

15

G.T., 59 ECAB 447 (2008).

16

See Albert C. Brown, 52 ECAB 152 (2000).

17

See Tammy L. Medley, supra note 7.

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ORDER
IT IS HEREBY ORDERED THAT the June 3, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 22, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.G., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Bragg, NC, Employer
__________________________________________

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

Docket No. 12-1513
Issued: February 1, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 5, 2012 appellant filed a timely appeal of the May 1, 2012 decision of the Office
of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she developed
an occupational disease in the performance of duty.
FACTUAL HISTORY
On March 21, 2012 appellant, then a 61-year-old cashier, filed an occupational disease
claim, alleging that she developed tendinitis as a result of repetitively scanning items. She

1

5 U.S.C. §§ 8101-8193.

became aware of her condition on June 30, 2010 and realized it was causally related to her
employment on December 15, 2010.
On March 27, 2012 OWCP advised appellant of the type of evidence needed to establish
her claim. It particularly requested that she submit a reasoned physician’s opinion addressing the
relationship of her claimed condition and specific work factors. OWCP advised that medical
evidence must be submitted by a qualified physician and that nurse practitioners and physician’s
assistants do not qualify as a physician under FECA.
In an undated statement, appellant indicated that she experienced right arm and wrist pain
beginning two years earlier after working on a cash register for five to six hours a day and
repetitively scanning groceries with her right arm. She was treated by Dr. Renan Pierre-Louis, a
Board-certified internist, who noted in a December 15, 2009 certificate that appellant was treated
and was disabled from work until December 19, 2009. Dr. Pierre-Louis noted that her pain was
aggravated by her work duties and her medication caused dizziness and difficulty driving. On
March 10, 2011 he treated appellant for right neck pain radiating into the shoulder. Appellant
reported pain over the right supraspinatus area exacerbated by abduction and rotation of right
arm and pain in the right pectoral area and the adjacent chest wall in the axilla. She reported
working as a checker for 14 years where she used her right hand to scan merchandise.
Dr. Pierre-Louis noted examination findings of tenderness over the right supraspinatus and the
cervical spine, normal range of motion of the cervical spine, no sensory abnormalities and
normal deep tendon reflexes. He diagnosed tendinitis of the right rotator cuff. On March 10,
2011 Dr. Pierre-Louis treated appellant and returned her to work with restrictions. He noted that
she experienced overuse of the right hand when scanning merchandise and required rest from
this particular job requirement for two weeks.
Appellant submitted March 3 and May 18, 2011 certificates from a physician’s assistant
who advised that her shoulder injury was healing and she could return to work with restrictions
for one week. On November 29, 2011 the physician’s assistant treated her and advised that she
was disabled until December 2, 2011. Also submitted was a March 16, 2011 certificate from
Dr. Laurence W. Gebler, a Board-certified internist, who treated appellant and advised that she
was disabled for one day and could return to work on March 18, 2011. On January 24, 2012
appellant was treated by Juanita Perkins, a nurse practitioner, for right wrist and elbow burning
and pain radiating from the elbow to the wrist, beginning three months prior. Ms. Perkins noted
findings, set forth diagnoses and released appellant to work with restrictions. In a February 23,
2012 report, she treated appellant for recurrent right wrist pain and recommended continued light
duty for another week. Also submitted were referrals for occupational therapy, dated January 24
and February 23, 2012, prepared by Ms. Perkins.
Appellant submitted occupational therapy notes dated January 28 to February 21, 2012
for right shoulder, elbow and wrist pain. She reported working as a checker at the commissary
and using her right hand to pull items across the scanner. Appellant was diagnosed with
enthesopathy of the wrist and carpus, pain in the joint of the upper arm and hand.
In a decision dated May 1, 2012, OWCP denied appellant’s claim for compensation on
the grounds that the medical evidence was insufficient to establish that a medical condition was
diagnosed in connection with the claimed work factors.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim. When an employee claims that he or she sustained an
injury in the performance of duty, he or she must submit sufficient evidence to establish that he
or she experienced a specific event, incident or exposure occurring at the time, place and in the
manner alleged. Appellant must also establish that such event, incident or exposure caused an
injury.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by claimant. The
medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.3
ANALYSIS
It is not disputed that appellant’s duties as checkout cashier included repetitive scanning
of items using her hands while performing her duties. It is also not disputed that she has been
diagnosed with tendinitis of the right rotator cuff. However, appellant has not submitted
sufficient medical evidence to establish that her tendinitis of the right rotator cuff is causally
related to specific employment factors or conditions.
Appellant submitted a certificate from Dr. Pierre-Louis, dated December 15, 2009, who
noted that appellant’s pain was aggravated by her duties at work. Dr. Pierre-Louis advised that
she was disabled from work until December 19, 2009. On March 10, 2011 he treated appellant
for right neck pain radiating into the shoulder and down the right arm and diagnosed tendinitis of
the right rotator cuff. Appellant reported that she worked for 14 years at a checkout counter
where she used her right hand to scan merchandise. Similarly, in a March 10, 2011 certificate,
Dr. Pierre-Louis noted that she experienced overuse of the right hand when scanning
2

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
3

Solomon Polen, 51 ECAB 341 (2000).

3

merchandise and required rest from her job for two weeks. The Board finds that, although he
supported causal relationship, he did not provide medical rationale explaining the basis of his
conclusory opinion regarding the causal relationship between appellant’s tendinitis of the right
rotator cuff and the factors of employment.4 For example, Dr. Pierre-Louis did not explain the
process by which scanning an item would cause the diagnosed condition or why such condition
would not be due to any nonwork factors. Therefore, these reports are insufficient to meet
appellant’s burden of proof.
Appellant submitted a March 16, 2011 certificate from Dr. Gebler who treated appellant
and advised that she was disabled for one day and could return to work on March 18, 2011.
However, Dr. Gebler’s report is insufficient to establish the claim as the physician did not
provide a history of injury5 or specifically address whether appellant’s employment activities had
caused or aggravated a diagnosed medical condition.6
Appellant submitted certificates from physicians’ assistants and documents from
Ms. Perkins, a nurse practitioner. However, this evidence is of no probative medical value as the
Board has held that physicians’ assistants and nurses are not competent to render a medical
opinion under FECA.7 Likewise, evidence submitted from an occupational therapist is of no
probative medical value in establishing appellant’s claim.8 Therefore, these reports are
insufficient to meet appellant’s burden of proof.
The Board finds that the medical evidence does not establish that appellant has a right
shoulder condition causally related to her employment. An award of compensation may not be
based on surmise, conjecture or speculation. Neither the fact that appellant’s condition became
apparent during a period of employment nor the belief that her condition was caused,
precipitated or aggravated by her employment is sufficient to establish causal relationship.9
Causal relationships must be established by rationalized medical opinion evidence. As noted, the
medical evidence is insufficient to establish appellant’s claim. Consequently, OWCP therefore
properly found that she did not meet her burden of proof in establishing her claim.

4

See T.M., Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).
5

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
6

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
7

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physicians’ assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
‘‘physician’’ as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law).
8

See id.; Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held that a medical opinion, in
general, can only be given by a qualified physician).
9

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

4

On appeal, appellant asserts that her right arm, shoulder, elbow and wrist condition was
caused by her repetitive work duties as a cashier and Dr. Pierre-Louis’ reports support her claim.
As noted above, the medical evidence does not establish that her right shoulder tendinitis was
causally related to her employment. Reports from appellant’s physicians failed to provide
sufficient medical rationale explaining how her tendinitis was causally related to particular
employment factors.
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 did not meet her burden of proof to establish that her
claimed conditions were causally related to her employment.
ORDER
IT IS HEREBY ORDERED THAT the May 1, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 1, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS MEDICAL CENTER,
Martinsburg, WV, Employer
__________________________________________

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

Docket No. 21-0023
Issued: May 7, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On October 7, 2020 appellant, through counsel, filed a timely appeal from an August 24,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of her right lower extremity, warranting a schedule award.
FACTUAL HISTORY
On March 29, 2018 appellant, then a 62-year-old nursing assistant, filed a traumatic injury
claim (Form CA-1) alleging that on March 20, 2018 she sprained her right knee when she slipped
in snow and felt a “pop” in her knee while in the performance of duty. On December 18, 2018
OWCP accepted the claim for a right knee sprain.
In a report dated May 14, 2018, Dr. Troy D. Foster, an osteopath, obtained a history of
appellant experiencing immediate knee pain after she fell on snow in a parking lot. He advised
that an x-ray showed narrowing of the joint space at the patellofemoral joint and a magnetic
resonance imaging scan showed a degenerative medial meniscal tear with a loose body and
degenerative joint disease. Dr. Foster diagnosed degenerative joint disease of the right knee and a
loose body.
By decision dated June 28, 2018, OWCP denied appellant’s traumatic injury claim. It
found that the evidence of record was insufficient to establish that she sustained degenerative joint
disease of the right knee causally related to the accepted March 20, 2018 employment injury.
In a report dated September 4, 2018, Dr. John C. Veltman, who specializes in family
medicine, related that appellant had informed him of her right knee injury on May 2, 2018. He
noted that her injury was not preexisting as afterward she was in too much pain to walk.
Dr. Veltman diagnosed derangement of the posterior horn of the medial meniscus due to an old
tear or injury of the right knee and a tear of the medial meniscus due to a current injury of the right
knee. He attributed the injury to the employment incident.
On September 19, 2018 appellant, through counsel, requested reconsideration.
By decision dated December 18, 2018, OWCP vacated its June 28, 2018 decision and
accepted appellant’s claim for a lateral collateral ligament sprain of the right knee. It noted,
however, that the evidence was insufficient to establish that she was disabled due to her accepted
employment injury or that she had sustained a degenerative medial meniscal tear of the right knee
as a result of her employment injury.
On March 19, 2019 appellant filed a claim for a schedule award (Form CA-7).
In an impairment evaluation dated May 2, 2019, Dr. Joshua B. Macht, a Board-certified
internist, obtained a history of appellant’s slip and fall trying to clear snow from her car. He noted
that she had been treated with arthroscopic surgery. On examination Dr. Macht found moderate
right knee crepitation with no effusion or instability and grade IV weakness. He measured range
of motion (ROM) of the knees and found seven degrees of flexion contracture of the right knee
joint. Dr. Macht diagnosed postoperative state of right knee, degenerative medial meniscal tear
and advised that right knee x-rays showed 2.4 millimeters of medial joint space narrowing. He
diagnosed status post-surgery right knee surgery, noting that the operative report was not available
2

for review. Dr. Macht determined that appellant had 22 percent permanent impairment of the right
lower extremity using Table 16-3 on page 511 of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3 He further
noted 10 percent permanent impairment due to flexion contracture of the right lower extremity
using Table 16-23 on page 549, which he increased to 11 percent permanent impairment after
adjusting for functional history. Dr. Macht advised that appellant had reached maximum medical
improvement (MMI) on April 22, 2019.
In a development letter dated October 4, 2019, OWCP requested that appellant submit an
impairment evaluation from her physician addressing whether she had reached MMI and rating
any permanent impairment in accordance with the sixth edition of the A.M.A., Guides.
On January 23, 2020 Dr. David I. Krohn, a Board-certified internist serving as a district
medical adviser (DMA), noted that Dr. Macht indicated that appellant had undergone surgery, but
had failed to describe the procedures. He opined that the record did not contain an x-ray report
from a radiologist addressing the cartilage interval of the right knee and that he was, thus, unable
to provide an impairment rating due to joint arthritis. Dr. Krohn further noted that ROM could not
be used as an alternate method of assessment for primary joint arthritis under Table 16-3 of the
A.M.A., Guides.
By decision dated February 19, 2020, OWCP denied appellant’s schedule award claim.
On February 27, 2020 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
A telephonic hearing was held on June 9, 2020. Counsel contended that Dr. Macht had
described the cartilage interval loss in his report and asserted that OWCP should have requested
the information necessary to complete the impairment rating
By decision dated August 24, 2020, OWCP’s hearing representative affirmed the
February 19, 2020 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA,4 and its implementing federal regulation,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
3

A.M.A., Guides (6th ed. 2009).

4

Supra note 2.

5

20 C.F.R. § 10.404.

3

specified edition of the A.M.A., Guides, published in 2009.6 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.7
A schedule award can only be paid for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
and Health (ICF).9 Under the sixth edition, the evaluator identifies the impairment class of
diagnosis (CDX), which is then adjusted by a grade modifiers for functional history (GMFH), a
grade modifier for physical examination (GMPE), and a grade modifier for clinical studies
(GMCS).10 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11
Evaluators are directed to provide reasons for their impairment choices, including the choices of
diagnoses from regional grids and calculations of modifier scores.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of the right lower extremity, warranting a schedule award.
Appellant submitted a May 2, 2019 impairment evaluation from Dr. Macht. Dr. Macht
diagnosed status post right knee surgery, but noted that he did not have the operative report to
review. He found that appellant had 22 percent permanent impairment of the right lower extremity
due to arthritis of the right knee. Alternatively, Dr. Macht found 10 percent permanent impairment
due to flexion contracture. The Board notes, however, that OWCP has only accepted right knee
strain as employment related. A claimant has the burden of proof to establish that the condition
for which a schedule award is sought is causally related to his or her employment.13 Preexisting,
underlying conditions should be considered only for rating impairment to the extent that the work6

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
7

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

8

See P.H., Docket No. 20-0108 (issued December 18, 2020); Veronica Williams, 56 ECAB 357 (2005).

9

A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
10

Id. at 494-531.

11

Id. at 411.

12

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

13

See S.M., Docket No. 20-0469 (issued September 3, 2020); G.S., Docket No. 18-0827 (issued May 1, 2019);

4

related injury has affected any residual usefulness in whole or in part of the scheduled member. 14
Since appellant has not met her burden of proof to show any permanent impairment causally
related to her accepted right knee strain, she is not entitled to a schedule award.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of the right lower extremity, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the August 24, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 7, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

14
Supra note 6 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5. See F.T.,
Docket No. 16-1326 (issued March 12, 2018).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Apple Valley, CA, Employer
__________________________________________

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

Docket No. 09-663
Issued: October 16, 2009

Case Submitted on the Record

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

JURISDICTION
On January 8, 2009 appellant filed a timely appeal from the December 8, 2008 merit
decision of the Office of Workers’ Compensation Programs denying her traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
a right forearm, hand or shoulder injury on April 21, 2008.
FACTUAL HISTORY
On April 21, 2008 appellant, then a 47-year-old distribution clerk, filed a traumatic injury
claim alleging that a coworker placed a tub of flats on her right forearm on that date causing
injury to her forearm, hand and shoulder. She did not stop work.

On May 1, 2008 the Office advised appellant of the factual and medical evidence needed
to establish her claim. It requested that she submit a physician’s reasoned opinion addressing the
relationship of her claimed condition and the employment incident.
Appellant submitted a report dated April 21, 2008 from a physician’s assistant who
diagnosed contusion of the right forearm, wrist and hand and returned her to regular duty on
April 23, 2008. She underwent an x-ray of the right wrist on April 21, 2008 which revealed a
questionable sclerotic line in the scaphoid bone and an x-ray of the right elbow which was
unremarkable. Appellant was treated by Dr. Joseph Rodriguez, a Board-certified family
practitioner, from April 23 to May 21, 2008. She reported being assaulted by a coworker who
threw two tubs of mail on her right arm. On physical examination, Dr. Rodriguez noted grip
weakness, limited flexion of the elbow and pain along the medial forearm. He diagnosed arm
injury and recommended appellant stay off work for two weeks. On May 7, 2008 Dr. Rodriguez
noted appellant’s complaints of right arm pain, mild swelling and decreased grip strength and
diagnosed right hand pain. Appellant underwent an x-ray of the right wrist on April 28, 2008
and an x-ray of the right hand dated May 7, 2008 which revealed no abnormalities.
In a decision dated June 23, 2008, the Office denied appellant’s claim, finding that the
medical evidence was not sufficient to establish that she sustained injury to her right arm caused
by the April 21, 2008 work incident.
On July 1, 2008 appellant, through her attorney, requested an oral hearing which was
held on October 6, 2008. She submitted a April 21, 2008 police report pertaining to an injury at
work when a coworker placed two bins full of magazines on a cart she was pushing. Appellant
sought treatment on May 28, 2008 from Dr. Rodriguez, who referred her for physical therapy. In
return to work slips dated June 18 and July 2, 2008, Dr. Rodriguez advised that appellant was
totally disabled from June 18 to July 16, 2008. Appellant submitted physical therapy notes dated
June 2, 2008 for treatment of inflammation over the right forearm.
On July 14, 2008 appellant was treated by Dr. Rajiv Puri, a Board-certified orthopedic
surgeon, who diagnosed crush injury to the right forearm with resolution of some symptoms.
She reported a history of her right arm being crushed under a mail tub along with the weight of
another worker. Dr. Puri noted no obvious swelling or bruising over the right forearm, no
tenderness, normal reflexes with slight weakness of the grip strength of the right hand. He
recommended a wrist brace, physical therapy and returned appellant to modified duty. On
October 2, 2008 Dr. Puri noted treating her for right forearm pain which she attributed to another
employee slamming a tub of mail onto her right forearm. He advised that appellant developed
symptoms of nerve pain over the ulnar distribution of the right forearm due to the crush injury.
Dr. Puri opined that she sustained a work-related injury to the right forearm from the mail tub
incident that occurred at work.
In a decision dated December 8, 2008, an Office hearing representative affirmed the
June 23, 2008 decision.

2

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
filed within the applicable time limitation of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office 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.3 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.4
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.5 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.6
ANALYSIS
Appellant alleged that she sustained a right forearm injury when trays of mail were
placed on top of her right forearm. The Board notes that the evidence supports that the incident
1

5 U.S.C. §§ 8101-8193.

2

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

3

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

4

Id.

5

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

6

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

3

occurred on April 21, 2008, as alleged. The Board finds, however, that the medical evidence is
insufficient to establish that appellant sustained a right forearm injury causally related to the
April 21, 2008 work incident.
On May 1, 2008 the Office advised appellant of the medical evidence needed to establish
her claim. Appellant did not submit a rationalized medical report from an attending physician
addressing how the April 21, 2008 work incident caused or aggravated her claimed condition.
On April 21, 2008 a physician’s assistant treated appellant for a contusion of the right
forearm, wrist and hand. Appellant also submitted physical therapy notes for treatment of
inflammation over the right forearm. The Board has noted that physical therapists and
physician’s assistants are not physicians as defined under the Act and not competent to render a
medical opinion.7 Therefore, these reports are insufficient to establish appellant’s claim of
injury.
From April 23 to May 7, 2008, Dr. Rodriguez treated appellant for right arm pain.
Appellant reported being assaulted on the job when a coworker threw two tubs of mail on her
right arm. Dr. Rodriguez noted findings on examination and made a diagnosis of arm injury, the
nature of which was not specified. He did not provide an opinion addressing whether appellant’s
condition was work related. Dr. Rodriguez failed to provide a rationalized opinion explaining
how appellant’s right arm condition was caused or aggravated by the accepted incident.8
Appellant also submitted return to work slips dated April 23 to July 2, 2008 from Dr. Rodriguez;
however, these notes do not provide any firm medical diagnoses,9 provide a history of injury,10
or offer any opinion on how the accepted employment incident could have caused or aggravated
her condition.11 Consequently these reports are of diminished value and do not establish her
traumatic injury claim.
On July 14, 2008 Dr. Puri diagnosed a crush injury to the right forearm with resolution of
some symptoms. He noted that appellant apparently presented with a history of her right arm
being crushed under a mail tub. On October 2, 2008 Dr. Puri treated her for right arm pain and
she again reported it was caused by another employee who willfully slammed down a tub of mail
onto her right forearm. He opined that appellant developed symptoms of nerve pain over the
7

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical
therapists are not competent to render a medical opinion under the Act); 5 U.S.C. § 8101(2) (this subsection defines
a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law).
8

See Jimmie H. Duckett, supra note 6.

9

See Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that in the absence of a medical report
providing a diagnosed condition and a reasoned opinion on causal relationship with the employment incident,
appellant did not meet her burden of proof).
10

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little
probative value).
11

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).

4

right forearm due to the work-related crush injury to the right forearm. However Dr. Puri merely
repeated the history of injury obtained from appellant without providing his own opinion
regarding how her condition was work related. To the extent that the doctor is providing his own
opinion, Dr. Puri failed to explain why any diagnosed conditions were caused or aggravated by
particular factors of employment.12
The diagnostic tests of record, the x-rays and MRI scan reports, are insufficient to
establish appellant’s claim as they do not provide a physician’s opinion on the causal relationship
between her job factors and a diagnosed medical condition.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.13 Causal relationship must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence, and the Office
therefore properly denied her claim for compensation.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained a right forearm, hand and shoulder injury causally related to her April 21, 2008
employment incident.

12

See supra note 6.

13

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

5

ORDER
IT IS HEREBY ORDERED THAT the December 8, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 16, 2009
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Long Beach, CA, Employer
__________________________________________

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

Docket No. 07-2216
Issued: February 27, 2008

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 August 29, 2007 appellant filed a timely appeal of the August 15, 2007 merit decision
of the Office of Workers’ Compensation Programs, which denied her claim for an employmentrelated emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On May 11, 2005 appellant, then a 54-year-old distribution clerk, filed an occupational
disease claim (Form CA-2) for stress, anxiety and depression. She identified December 1, 1997
as the date she first realized her condition was caused or aggravated by her employment. On
April 6, 2004 appellant’s supervisor, Janie Avery, informed appellant that she was likely to be
relocated to a different postal facility. Appellant reacted adversely to Ms. Avery’s disclosure.

She stopped working that day and later filed a traumatic injury claim, file number 13-2106920,
regarding the April 6, 2004 incident.1 The Office denied the claim by decision dated
September 27, 2004. Appellant subsequently requested an oral hearing.
During the June 29, 2005 hearing, appellant testified to several employment incidents that
caused or contributed to her claimed emotional condition. The incidents occurred over a period
of years and involved customer service manager, Edward E. Hamm. Because appellant
originally filed a traumatic injury claim focusing exclusively on the April 6, 2004 employment
incident, the hearing representative limited his analysis to that particular incident. In a decision
dated September 26, 2005, the hearing representative affirmed the September 27, 2004 denial of
appellant’s claim. As appellant filed a CA-2 form on May 11, 2005, the hearing representative
instructed the Office to adjudicate the occupational disease claim.
On December 21, 2006 the Office wrote to appellant explaining that it overlooked the
hearing representative’s directive to open a new occupational disease claim, file number
13-2161860. The Office asked appellant to submit additional medical and factual information to
support her emotional condition claim. Appellant replied on January 5, 2007 stating that her
June 29, 2005 hearing testimony and the exhibits she previously submitted should suffice.
By decision dated February 6, 2007, the Office denied appellant’s emotional condition
claim. The Office addressed a dozen alleged incidents involving Mr. Hamm and found that only
one of the incidents was factually established. However, it was found noncompensable.
The February 6, 2007 decision was subsequently appealed to the Board. On August 2,
2007 the Board issued an order remanding case.2 The Board noted that the case record did not
include the June 29, 2005 hearing transcript or any of the exhibits appellant submitted at her
hearing. The Board instructed the Office to obtain the missing transcript and exhibits and issue
an appropriate final decision.
In her hearing testimony and prior written statement, appellant alleged that Mr. Hamm
engaged in a year-long pattern of harassment and humiliation. Because of an earlier
occupational injury, appellant had limited use of both hands.3 She was given a limited-duty
assignment and wore thumb braces at work for a period of time. Appellant alleged that
Mr. Hamm made snide remarks about her medical condition since 1997 and had called her a
“‘cripple’” in the presence of another employee, Robert. Between July and December 2003,
Mr. Hamm occasionally referred to her and another injured coworker as the “‘[h]andicapped
[s]isters or [t]wins.’” Lisa Kashinsky, the other injured coworker, provided a June 28, 2005
statement in which she claimed to have heard Mr. Hamm refer to appellant and herself as “‘the
crippled [s]isters’” and “‘the walking wounded.’” Mr. Hamm provided a June 29, 2005
statement in which he denied ever mocking appellant for wearing braces. He did not recall
referring to appellant as a wounded warrior. Mr. Hamm noted that he always treated appellant
1

Appellant remained off work approximately five months following the April 6, 2004 incident.

2

Docket No. 07-991 (issued August 2, 2007).

3

Appellant has an accepted claim, file number 13-1188691, for bilateral thumb tendinitis, which arose on or
about December 20, 1997.

2

with respect and, because she was known to be a sensitive person, he was cautious about what he
said to her. He said that she had a tendency to twist things around and exaggerate issues. In a
subsequent statement dated December 12, 2006, he again denied having referred to appellant as a
“‘cripple.’”
Appellant also alleged that Mr. Hamm did not properly respond to her concerns about
workplace safety. She claimed that Mr. Hamm refused to correct problems. On at least three
occasions, appellant was stuck by a U-cart or buggy operated by her coworker, Yong Sherman.
The first reported incident occurred on November 21, 2002 and was witnessed by Victoria Lam.4
Ms. Sherman reportedly struck appellant again on January 25, 2005 and she was struck a third
time on January 27, 2005. Appellant believed that the most recent incident was deliberate. She
filed safety reports concerning both January 2005 incidents. Mr. Hamm’s signature appeared on
these reports. He spoke with Ms. Sherman regarding safety and the need to exercise extreme
care when pushing equipment through the work area. On February 25, 2005 appellant and two
employing establishment safety officials met with Mr. Hamm to discuss the concerns she raised.
After the meeting concluded, Mr. Hamm and a plant safety committee member toured the area
where the incidents occurred to see if it was possible to relieve some congestion. A decision was
made to relocate appellant to a different work space. After consulting with both appellant and
Ms. Sherman individually, an agreement was reached regarding the proposed changes.
Appellant identified another incident involving her and Ms. Sherman.
In
November 2002, appellant was accused of stealing Ms. Sherman’s driver’s license. She claimed
that Ms. Sherman lost her own license, but blamed appellant for the missing license. In a
December 12, 2006 statement, Mr. Hamm indicated that he had no recollection of any such
incident. Appellant also alleged that Mr. Hamm blamed her every time something was not done
or when it was done incorrectly. She claimed that this occurred even when other employees said
Ms. Sherman was responsible.
Appellant also claimed that Mr. Hamm routinely harassed her on payday. He allegedly
made appellant come to his office to pick up her pay stub. While she was there, Mr. Hamm
would wave the pay stub in her face and then pull it away playing tug-of-war with it. According
to appellant, Mr. Hamm always did this in front of her coworkers to embarrass her. She filed a
formal equal employment opportunity (EEO) complaint in January 2000 and a settlement was
reached on March 8, 2000. Mr. Hamm agreed to treat appellant with respect and dignity.5 In an
August 8, 2005 statement, James R. Griego, a coworker, indicated that appellant asked him to
accompany her to Mr. Hamm’s office to pick up her pay stub. While standing by the door
outside Mr. Hamm’s office, Mr. Griego heard Mr. Hamm raise his voice. However, Mr. Griego
did not recall what was said. In response to appellant’s allegations, Mr. Hamm stated that he did
not make demeaning comments to her. As far as he could recall, appellant was paid through
4

Ms. Lam also claimed to have been struck by Ms. Sherman’s cart earlier that day.

5

Appellant also submitted a copy of the March 8, 2000 EEO settlement agreement. The document, however,
does not identify the subject matter of the complaint. According to the agreement, she was required to “be included
in activities that place (sic) after she is off duty.” Another provision obligated appellant to advise Mr. Hamm if
there was work she had not completed during her shift. The third and final item of the agreement indicated that it
was Mr. Hamm’s intention to treat appellant with “dignity, respect and good humor.”

3

direct deposit. There were only three employees who received paper checks and appellant was
not one of them. Mr. Hamm explained that, if an employee was not present when he passed out
pay checks, he would place the check in his office for safekeeping. When the employee returned
to work, he or she would go to Mr. Hamm’s office to pick up the check.
Another incident involved Mr. Hamm’s alleged comments about a doctor’s note.
Appellant stated that when she brought Mr. Hamm a note from her gynecologist, he belittled the
doctor’s name and wanted to know his medical specialty. Mr. Hamm also wanted details of
appellant’s particular medical condition, including a diagnosis and prognosis. Appellant stated
that the incident occurred in front of several coworkers who were on a break.
On another occasion, Mr. Hamm allegedly told appellant that she could not have any
coffee until she finished her work. Appellant stated that she had been late arriving to work on
December 21, 2006 and, while she was taking a minute to get coffee, Mr. Hamm told her to
finish all her work before having coffee. According to appellant, it was routine for the
employees to drink coffee while doing paperwork. But on this particular day, Mr. Hamm singled
out appellant in front of other employees. Mr. Hamm stated that he never told appellant that she
had to finish her work before she could drink a cup of coffee.
On December 9, 2003 Mr. Hamm reportedly assigned appellant a utility cart full of mail
that needed processing. He ordered her to stop what she was doing and immediately work on the
mail cart. She was reluctant to perform the requested task because she related her prior left
thumb pain to throwing mail. Appellant wanted to obtain approval from her physician before
throwing any mail. She asked Mr. Hamm for a form to take to her physician to determine if her
problem was job related. Mr. Hamm allegedly became upset and started yelling and screaming.
Appellant claimed that he said that her clumsiness and poor performance was not the fault of the
work he wanted done. Mr. Hamm accused her of faking an injury and trying to get the
employing establishment to pay. He then walked away without giving her the form she
requested. Appellant claimed that on at least four subsequent occasions she asked Mr. Hamm for
the necessary form to submit to her doctor, but he again refused her requests. In a December 12,
2006 statement, Mr. Hamm denied the remarks attributed to him. He recalled an incident when
appellant requested a specific workers’ compensation form and, based on advice received from
the injury compensation office, he did not provide the requested form because it was not
appropriate for the situation.
On January 12, 2004 Mr. Hamm allegedly left appellant a note stating that she had done
some things wrong. Appellant said that Mr. Hamm neglected to confirm who was actually
responsible for the mistakes. She claimed that, on many occasions including March 16, 2004,
Mr. Hamm would get in her face, point his finger and yell. Mr. Hamm denied making
embarrassing comments or wagging his finger at appellant. He also denied yelling at her in front
of other employees. Mr. Hamm indicated that he may have stated his intentions in a stern
fashion, which appellant interpreted as yelling. He explained that a noisy work environment may
have caused him to raise his voice so that appellant could hear him.
Another incident allegedly occurred March 18, 2004, when appellant wanted to file an
EEO complaint, but decided not to proceed with the filing because she would have been
expected to participate in the redress program. Based on prior experience, appellant believed

4

that the redress program was ineffective. She noted that the last time she participated in the
program, Mr. Hamm did not live up to his written agreement to treat her with dignity and
respect.
By decision dated August 15, 2007, the Office denied appellant’s claim. It found that she
did not establish her allegations of harassment or administrative error as factual.
LEGAL PRECEDENT
To establish that she sustained an emotional condition causally related to factors of her
federal employment, appellant must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to her condition;
(2) rationalized medical evidence establishing that she has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that her emotional condition is
causally related to the identified compensable employment factors.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless, does not come within the purview of
workers’ compensation. When disability results from an emotional reaction to regular or
specially assigned work duties or a requirement imposed by the employment, the disability is
deemed compensable. Disability is not compensable, however, when it results from factors such
as an employee’s fear of a reduction-in-force or frustration from not being permitted to work in a
particular environment or hold a particular position.7 Perceptions and feelings alone are not
compensable. To establish entitlement to benefits, a claimant must establish a basis in fact for
the claim by supporting her allegations with probative and reliable evidence.8 When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, the Office must base its decision on an analysis of the medical evidence.9
ANALYSIS
Appellant alleged that numerous interactions with Mr. Hamm caused or contributed to
her psychiatric condition. However, she did not submit sufficient evidence to establish her
allegations as factual. Appellant’s allegations of harassment, disrespect, belittlement and
humiliation are far too vague to determine their validity. Another allegation that is vague and
unsubstantiated was appellant’s claim that Mr. Hamm blamed her every time something went
wrong. There is a lack of specificity as to what was said and when any remarks were made. The
evidence of record is not sufficient to establish this allegation. The Board is also unable to
decipher the alleged incident of March 18, 2004. Appellant claimed that she wanted to file an
6

See Kathleen D. Walker, 42 ECAB 603 (1991).

7

Lillian Cutler, 28 ECAB 125 (1976).

8

See Kathleen D. Walker, supra note 6. Unless a claimant establishes a compensable factor of employment, it is
unnecessary to address the medical evidence of record. Garry M. Carlo, 47 ECAB 299, 305 (1996).
9

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

5

EEO complaint that day, but decided against it. However, her decision not to act because of
what she perceived to be an ineffective dispute-resolution process does not establish a
compensable employment factor. There is no evidence to establish administrative error or abuse
related to her EEO complaints or dispute resolution.
For appellant to prevail on her claim, she must support her allegations with probative and
reliable evidence.10 She provided nothing in support of her allegation that Mr. Hamm left a note
on January 12, 2004 accusing her of doing her work incorrectly. Appellant did not submit a
copy of the alleged note or otherwise describe the particular mistakes she claimed to have been
wrongly accused of making. She provided no support for her allegation that she was wrongly
accused of stealing Ms. Sherman’s driver’s license. Appellant did not specifically implicate
Mr. Hamm in this particular incident and he did not have any recollection of the event. She also
failed to provide any support for her allegation that Mr. Hamm belittled her gynecologist’s name
or harassed her concerning her particular medical condition. This incident reportedly occurred in
front of several employees on break. However, no witness statements were provided to
corroborate appellant’s allegation.
There are other incidents of alleged wrongdoing which Mr. Hamm denied. Again,
appellant provided no reliable evidence to support her version of events. On December 21, 2006,
when appellant arrived late, Mr. Hamm allegedly told her she could not have any coffee until she
finished all her work. Mr. Hamm said he never told appellant that she had to finish her work
before she could drink a cup of coffee. None of appellant’s coworkers that purportedly
witnessed the alleged incident provided a statement in support of her allegation. She also
provided no support for her allegation that on more than one occasion Mr. Hamm got in her face,
pointed his finger and yelled. Mr. Hamm specifically denied making embarrassing comments,
wagging his finger at appellant or yelling at her.
Appellant stated that Mr. Hamm refused to correct a problem regarding Ms. Sherman and
her unsafe U-cart. The safety report appellant filed on January 25, 2005 indicated that
Mr. Hamm spoke with Ms. Sherman about the U-cart incident that same day. The record further
indicates that Mr. Hamm addressed the issue in a February 25, 2005 meeting, which appellant
attended. Following the meeting, a decision was made to relocate appellant’s work space. Both
appellant and Ms. Sherman were later consulted and an agreement was reached regarding the
proposed changes. Thus, the record does not support appellant’s claim that Mr. Hamm refused
to correct this particular safety issue.11

10

See Kathleen D. Walker, supra note 6.

11

If appellant took exception to the manner in which Mr. Hamm resolved the safety issue, her emotional reaction
would be noncompensable. Complaints about the manner in which a supervisor performs his duties or exercises his
discretion fall, as a rule, outside the scope of coverage provided by the Federal Employees’ Compensation Act. This
principle recognizes that a supervisor or manager must be allowed to perform his duties and employees will, at
times, dislike the actions taken, but mere disagreement or dislike of a supervisory or managerial action will not be
actionable, absent evidence of error or abuse. Marguerite J. Toland, 52 ECAB 294, 298 (2001). Appellant has not
identified any error or abuse on the part of the employing establishment in handling the safety issue she raised
in January 2005.

6

The record also does not support appellant’s allegation that Mr. Hamm called her a
cripple in front of coworkers. Mr. Hamm specifically denied calling appellant a cripple and she
failed to present any evidence, such as a statement from any coworkers, to corroborate her
allegation. Appellant also accused Mr. Hamm of referring to her and Ms. Kashinsky as the
“‘[h]andicapped [s]isters or [t]wins.’” This reportedly occurred on several occasions during the
last six months of 2003. Appellant, however, did not specify whether she heard these remarks or
was told about them. But regardless of whether she had first hand knowledge, appellant did not
submit any probative evidence to corroborate this particular allegation. In a June 28, 2005
statement, Ms. Kashinsky stated that she heard Mr. Hamm refer to her and appellant as “‘the
crippled [s]isters’” and “‘the walking wounded.’” In a December 12, 2006 statement, Mr. Hamm
denied ever referring to appellant as a cripple and, in his prior statement dated June 29, 2005, he
indicated that he did not recall referring to appellant as a “wounded warrior.” Ms. Kashinsky’s
statement is general in nature and fails to specify the dates or times that any such communicate
were made. Given Mr. Hamm’s denial of the allegation, Ms. Kashinsky’s June 28, 2005
statement is not sufficient to establish the allegation as factual in the absence of additional
corroborative evidence.
Appellant also accused Mr. Hamm of playing tug-of-war with her pay stubs. Mr. Hamm
reportedly made her come to his office to retrieve her pay stub and, while she was there, he
would wave the pay stub in her face and then pull it away. Appellant claimed that he did this in
front of her coworkers. Mr. Hamm denied the allegation, and none of appellant’s coworkers
provided a statement corroborating her allegation. On one occasion Mr. Griego accompanied
appellant to Mr. Hamm’s office to retrieve her pay stub. However, Mr. Griego was positioned
outside Mr. Hamm’s office door and did not observe the alleged tug-of-war.12 Appellant also
claimed to have filed a formal EEO complaint regarding the alleged payday harassment.
Although the record includes a March 8, 2000 EEO settlement agreement signed by both
appellant and Mr. Hamm, this document does not specify the basis for the settlement. Therefore,
it does not lend support to appellant’s allegation that Mr. Hamm harassed her on payday.13
Of the numerous incidents alleged by appellant, only one is supported by the record. She
claimed that on December 9, 2003 she asked Mr. Hamm for a workers’ compensation form that
she could take to her physician so he could determine if appellant’s left thumb condition was
employment related. Appellant alleged that Mr. Hamm became upset, accused her of faking an
injury and then walked away without providing the requested form. She also claimed to have
asked Mr. Hamm for the form on at least four subsequent occasions, but he repeatedly refused
her request. Mr. Hamm denied the specific remarks appellant attributed to him, but
acknowledged that on at least one occasion he did not provide her with a workers’ compensation
form she requested. According to him, appellant requested a Form CA-1. However, he was
advised by the injury compensation office, that the situation called for a CA-2 form instead of
the form appellant requested. For this reason, Mr. Hamm did not provide appellant with the
12

Mr. Griego stated that he heard Mr. Hamm raise his voice, but he did not recall exactly what was said. The
mere fact that a supervisor may raise his voice during the course of a conversation does not warrant a finding of
verbal abuse. Joe M. Hagewood, 56 ECAB 479, 492 (2005).
13

Absent an admission of fault, a settlement agreement does not establish error or abuse on the part of the
employing establishment. Kim Nguyen, 53 ECAB 127, 128 (2001).

7

form she requested. While the record supports appellant’s allegation that Mr. Hamm refused to
provide her with a requested workers’ compensation form, this incident is noncompensable. The
evidence does not establish administrative error by the supervisor. Moreover, an employee’s
emotional reaction from pursuing a workers’ compensation claim is not compensable.14
Despite the numerous allegations of misconduct on the part of Mr. Hamm, appellant
failed to establish a compensable employment factor as the cause of her diagnosed psychiatric
condition. Therefore, the Office properly denied her May 11, 2005 claim.
CONCLUSION
The Board finds that appellant did not establish that she sustained an emotional condition
in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the August 15, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 27, 2008
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

14

John D. Jackson, 55 ECAB 465, 474 n.19 (2004).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, CURSEEN-MORRIS
MAIL PROCESSING & DISTRIBUTION
CENTER, Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-1510
Issued: April 23, 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 10, 2020 appellant filed a timely1 appeal from a February 11, 2020 merit
decision and a July 29, 2020 nonmerit decision of the Office of Workers’ Compensation Programs

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from OWCP’s February 11, 2020 decision was Sunday, August 9, 2020.
Because the last day of the 180-day filing period fell on a Sunday, the filing period is extended until the close of the
next business day, which was Monday, August 10, 2020. Accordingly, the appeal is timely filed pursuant to 20 C.F.R.
§ 501.3(f)(2).

(OWCP).2 Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a diagnosed
medical condition causally related to the accepted December 24, 2019 employment incident; and
(2) whether OWCP properly determined that appellant abandoned her request for an oral hearing
before an OWCP hearing representative.
FACTUAL HISTORY
On December 27, 2019 appellant, then a 54-year-old sales and service distribution
associate, filed a traumatic injury claim (Form CA-1) alleging that on December 24, 2019 she
injured her right hip when she pulled and pushed over-the-road (OTR) containers while performing
mail distribution in the performance of duty. She did not stop work.
In a December 26, 2019 medical report, Dr. Mubarik Shah, a Board-certified general
surgeon, noted that appellant injured her right hip on December 24, 2019 while lifting and moving
heavy equipment at work. He indicated that appellant had a history of right hip arthritic workrelated changes since 2016. Dr. Shah conducted a physical examination and assessed a right hip
injury.
In a December 31, 2019 medical report, Dr. Eileen Greenwald, an occupational medicine
specialist, noted that appellant’s right hip pain was worsened with prolonged standing or walking.
She conducted a physical examination and assessed a right hip injury. Appellant also submitted
physical therapy reports of even date.
In an undated attending physician’s report (Form CA-20), Dr. Shah diagnosed right hip
injury due to appellant lifting heavy equipment at work. He checked a box marked “Yes,”
indicating that appellant’s right hip condition was caused or aggravated by an employment activity.
In a January 10, 2020 development letter, OWCP informed appellant of the deficiencies of
her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and provided a questionnaire for completion. OWCP afforded appellant 30 days to respond.
Tara Jernejcic, a physician assistant, diagnosed right hip pain in a January 7, 2020 medical
report.
2

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, she asserted that oral argument should be granted because OWCP never
contacted her on the date and at the time scheduled for the oral hearing. The Board, in exercising its discretion, denies
appellant’s request for oral argument because this matter requires an evaluation of the medical evidence presented.
As such, the arguments on appeal can adequately be addressed in a decision based on a review of the case record.
Oral argument in this appeal would further delay issuance of a Board decision and not serve a useful purpose. As
such, the oral argument request is denied and this decision is based on the case record as submitted to the Board.
3

5 U.S.C. § 8101 et seq.

2

In a January 23, 2020 medical report, Dr. Shah diagnosed right hip pain.
Appellant, in a January 30, 2020 response to OWCP’s development questionnaire,
indicated that she sustained her injury while moving heavy equipment across the workroom floor,
when one of the OTR containers got caught underneath a metal bumper of the double doors. She
alleged that on December 25, 2019 she struggled to support her full weight onto her right hip and
leg after getting out of bed and could not walk without using a cane. Appellant asserted that she
sustained no other injury outside of work.
In a February 3, 2020 work status report, Hope A. Pennestri, a certified registered nurse
practitioner, diagnosed right hip pain and provided work restrictions.
By decision dated February 11, 2020, OWCP accepted that the December 24, 2019
employment incident occurred, as alleged. However, it denied appellant’s traumatic injury claim,
finding that she had not submitted evidence containing a medical diagnosis in connection with the
injury and/or events. Consequently, OWCP found that appellant had not met the requirements to
establish an injury as defined by FECA.
On March 9, 2020 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
In a May 14, 2020 letter, OWCP informed appellant that an oral hearing would take place
on July 17, 2020 at 10:30 a.m., Eastern Standard Time (EST). It provided a toll-free number and
a passcode to access the hearing by telephone. OWCP requested that appellant dial the toll-free
number “a few minutes” before the commencement of the scheduled hearing. It mailed the letter
to appellant’s last known address of record.
By decision dated July 29, 2020, OWCP determined that appellant had abandoned her
request for an oral hearing as she failed to make an appearance. It further noted that there was no
indication in the record that appellant had contacted the Branch of Hearings and Review either
before or after the scheduled hearing to explain her failure to appear.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the

4

Supra note 2.

5
F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

3

employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury.8
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment incident
identified by the employee.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted December 24, 2019 employment incident.
In a December 26, 2019 medical report and an undated Form CA-20, Dr. Shah noted that
appellant injured her right hip at work on December 24, 2019 and assessed a right hip injury.
Dr. Greenwald, in her December 31, 2019 medical report, also noted a right hip injury. Drs. Shah
and Greenwald, however, did not provide a specific diagnosis. The Board has held that a medical
report lacking a firm diagnosis and a rationalized medical opinion regarding causal relationship is
of no probative value.11 Thus, their reports are insufficient to establish appellant’s claim.
In a January 23, 2020 medical report, Dr. Shah diagnosed right hip pain. The Board has
consistently held, however, that pain is a description of a symptom and not, in itself, considered a

6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8
T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
11

J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

4

firm medical diagnosis.12 Thus, his January 23, 2020 report is also insufficient to establish
appellant’s claim.
Appellant also submitted reports dated from December 31, 2019 to February 3, 2020 from
a physician assistant, a nurse practitioner, and a physical therapist. The Board has held, however,
that certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered physicians as defined under FECA.13
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.14
As there is no evidence of record that establishes a medical diagnosis in connection with
the accepted December 24, 2019 employment incident, the Board finds that appellant has not met
her burden of proof.15
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.
LEGAL PRECEDENT -- ISSUE 2
A claimant who has received a final adverse decision by OWCP may obtain a hearing by
writing to the address specified in the decision within 30 days of the date of the decision for which
a hearing is sought.16 Unless otherwise directed in writing by the claimant, OWCP’s hearing
representative will mail a notice of the time and place of the hearing to the claimant and any
representative at least 30 days before the scheduled date.17 OWCP has the burden of proving that
it properly mailed to a claimant and any representative of record a notice of a scheduled hearing.18

12

See C.H., Docket No. 20-0228 (issued October 7, 2020); T.G., Docket No. 19-0904 (issued November 25, 2019).

13

Section 8101(2) of FECA provides that medical opinions can only be given by a qualified physician. This section
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law. 5 U.S.C. § 8101(2); 20 C.F.R.
§ 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013); M.M., Docket No. 20-0019 (issued May 6, 2020); K.W., 59 ECAB 271, 279 (2007); David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists
are not competent to render a medical opinion under FECA); see also C.S., Docket No. 20-1354 (issued January 29,
2021); C.P., Docket No. 19-1716 (issued March 11, 2020) (physician assistants are not considered physicians as
defined under FECA); S.L., Docket No. 19-0603 (issued January 28, 2020) (nurse practitioners are not considered
physicians as defined under FECA).
14

See O.R., Docket No. 20-0743 (issued January 28, 2021).

15

J.L., Docket No. 18-1804 (issued April 12, 2019); M.H., Docket No. 18-1737 (issued March 13, 2019); John J.
Carlone, 41 ECAB 354 (1989).
16

20 C.F.R. § 10.616(a).

17

Id. at § 10.617(b).

18
A.R., Docket No. 19-1691 (issued February 24, 2020); M.R., Docket No. 18-1643 (issued March 1, 2019);
Michelle R. Littlejohn, 42 ECAB 463(1991).

5

A claimant who fails to appear at a scheduled hearing may request in writing, within 10
days after the date set for the hearing, that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference.19
The failure of the claimant to request another hearing within 10 days, or the failure of the claimant
to appear at the second scheduled hearing without good cause shown, shall constitute abandonment
of the request for a hearing.20
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant abandoned her request for
an oral hearing before an OWCP hearing representative.
Following OWCP’s February 11, 2020 decision, appellant filed a timely request for an oral
hearing before a representative of OWCP’s Branch of Hearings and Review. In a May 14, 2020
letter, OWCP’s hearing representative notified her that OWCP’s Branch of Hearings and Review
had scheduled a telephonic hearing for July 17, 2020 at 10:30 a.m. EST. The hearing
representative properly mailed the hearing notice to appellant’s last known address of record21 and
provided instructions on how to participate, including that she was to call-in “a few minutes”
before the hearing was scheduled to begin. Appellant failed to call-in for the scheduled hearing
using the provided telephone number and passcode. She did not request a postponement or provide
an explanation to OWCP for her failure to attend the hearing within 10 days of the scheduled
hearing.22 The Board, thus, finds that OWCP properly determined that appellant abandoned her
request for a telephonic hearing.23
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted December 24, 2019 employment incident. The
Board further finds that OWCP properly determined that appellant abandoned her request for an
oral hearing before an OWCP hearing representative.

19

Supra note 16 at § 10.622(f).

20

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (October 2011); see also E.M., Docket No. 20-0837 (issued January 27, 2021); A.J., Docket No. 18-0830
(issued January 10, 2019).
21

Absent evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business is
presumed to have been received. This is called the mailbox rule. See C.Y., Docket No. 18-0263 (issued
September 14, 2018). Appellant did not submit evidence of nondelivery of OWCP’s May 14, 2020 hearing notice
such that the presumption of receipt would be rebutted.
22

E.S., Docket No. 19-0567 (issued August 5, 2019).

23

A.J., supra note 20.

6

ORDER
IT IS HEREBY ORDERED THAT the July 29 and February 11, 2020 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 23, 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

7