United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.G., Appellant
and
DEPARTMENT OF THE ARMY, CIVILIAN
PERSONNEL ADVISORY CENTER,
Redstone Arsenal, AL, Employer
__________________________________________

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Appearances:
Sally F. LaMacchia, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0884
Issued: August 23, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 14, 2017 appellant, through counsel, filed a timely appeal from a February 13,
2017 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 OWCP met its burden of proof to terminate appellant’s entitlement
to compensation effective October 22, 2014 as the temporary aggravation of schizoaffective
disorder had resolved.
FACTUAL HISTORY
On April 2, 2015 appellant, then a 51-year-old program analyst, filed an occupational
disease claim (Form CA-2) alleging that she experienced stress and overwork causally related to
factors of her federal employment. She was last exposed to the conditions alleged to have
resulted in her illness on July 1, 2014.
On March 24, 2015 appellant, through counsel, described her employment duties when
she began work in 2006. She related that the employing establishment began assigning her
additional duties starting in 2007. Appellant described her work duties in detail, noting that an
August 30, 2010 Accretion of Duties form confirmed her added responsibilities. Counsel
advised that appellant became concerned that she could not meet her job requirements after she
began performing work formerly assigned to several people. The number of people using the
travel system grew from 12 to 60 people, but she received no assistance. Appellant stopped
work on October 22, 2014.
The employing establishment controverted the claim.
In an April 28, 2015
memorandum, J.D., a manager, noted that appellant was largely absent from work beginning
August 22, 2013 and was absent without leave beginning January 13, 2015. He submitted
disciplinary actions and described her work duties. J.D. related that appellant initially requested
full-time telework after her office relocated, which the employing establishment approved based
on the supporting medical evidence. Appellant subsequently requested relocation, which the
employing establishment granted after she agreed on August 21, 2013 to hold it harmless for any
deterioration in her health due to the move. J.D. advised that appellant was “precluded from
making any claims related to her health occurring after that date.” He noted that she filed her
claim only after receiving a proposed removal from service.
By decision dated May 28, 2015, OWCP denied appellant’s emotional condition claim.
It found that she had not established any compensable factors of employment.
Appellant, through counsel, on June 10, 2015 requested an oral hearing before an OWCP
hearing representative. On January 18, 2016 counsel requested reconsideration in lieu of an oral
hearing. In a decision dated January 22, 2016, OWCP denied appellant’s request for
reconsideration as she had not raised a new legal argument or submitted relevant evidence
sufficient to warrant reopening the case for further merit review under 5 U.S.C. § 8128(a).
On April 15, 2016 appellant, through counsel, again requested reconsideration. She
attributed her condition to stress trying to meet her position requirements and thus asserted that
she had established compensable work factors.

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OWCP accepted as compensable work factors that the individuals using the Defense
Travel System increased from 2008 to 2013. It further accepted that appellant assumed some
duties of her manager when he retired in 2007 and became the lead for budget execution, though
she received assistance from contractors in fulfilling her duties. In June 2011 appellant had to
approve last minute travel orders for four employees and subsequently for her manager without
time to allocate the budget. In July 2012 she had to redo a proposal using a different system.
Appellant’s responsibilities increased after a promotion in August 2010. OWCP noted that the
employing establishment indicated that she did not manage all programs herself and only
assumed some of the duties of a retiring manager. It prepared a statement of accepted facts
(SOAF) on August 17, 2016.
On August 22, 2016 OWCP referred appellant to Dr. Walker Lyerly, IV, a Boardcertified psychiatrist, for a second opinion examination. In a report dated September 6, 2016,
Dr. Lyerly reviewed appellant’s work history and found “prominent paranoid delusions” on
evaluation of her mental status. He diagnosed schizoaffective disorder and to rule out
personality disorder, and further noted that she had a history of fibromyalgia, and chronic fatigue
syndrome. Dr. Lyerly indicated that appellant received treatment for depression and experienced
difficulty with relationships prior to the factors set forth in the SOAF, but that the records did not
provide a history of the paranoid delusions found on examination. He related, “Despite her
psychiatric symptoms, medical records support that she was able to maintain employment until
the beginning of 2014. Given that she was able to maintain employment up to that time although
she had a preexisting condition, in my medical opinion the factors of employment described in
[the SOAF], aggravated and accelerated her psychiatric condition.” Dr. Lyerly noted that it was
difficult to understand what happened in the workplace as she now believed that her supervisor
and others were trying to kill her and were also rearranging items in her home. He advised that
appellant related that “her underlying chronic fatigue syndrome and fibromyalgia were
aggravated by stress that she encountered in the workplace.” Dr. Lyerly opined that appellant
was disabled from work due to her psychosis and paranoid delusions and found that she had not
received adequate psychiatric treatment. Regarding the question of whether any employmentrelated condition had resolved, he responded, “No, as evidenced by [appellant’s] paranoid
delusions at this time are centered around a supervisor who previously worked with her in her
last workplace.”
OWCP, on September 26, 2016, requested that Dr. Lyerly clarify whether the work
factors identified in the SOAF caused a psychiatric condition and, if so, whether it had resolved
at the time of his evaluation. It used bold text and underlining to highlight portions of the
questions.
In a supplemental report received October 24, 2016, Dr. Lyerly related that factors of
appellant’s federal employment as set forth in the SOAF aggravated her psychiatric condition
and that she was “not able to adequately tolerate the stress and responsibilities of her work duties
due to the nature of and severity of her psychiatric condition.” He advised that work factors did
not cause her condition, but that due to her condition she was unable to cope with its demands.
Dr. Lyerly related:
“At the time of my evaluation, [appellant] was not employed. Therefore there is
no work[-]related component of her psychiatric condition. [Appellant’s]

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psychiatric condition persists since she left her employment. Again it is my
medical opinion that [appellant’s] psychiatric condition was not caused by her
work situation. It is my medical opinion that her psychiatric condition was
present during her time of employment [and] was aggravated by her work stress
and responsibilities because the nature and severity of her psychiatric condition
was unable to tolerate and manage her work demands and responsibilities.”
Dr. Lyerly found that it was appropriate to remove appellant from work in October 2014. He
opined that her psychiatric condition continued and diagnosed schizoaffective disorder and a
possible personality disorder.
In a February 13, 2017 decision, OWCP modified in part and affirmed in part its May 28,
2015 decision. It found that Dr. Lyerly’s report was sufficient to show that she sustained an
aggravation of a preexisting mental condition due to employment factors, but that any
aggravation resolved around October 22, 2014, the approximate date that she stopped work.
OWCP accepted appellant’s claim for a temporary aggravation of schizoaffective disorder.
On appeal counsel argued that Dr. Lyerly’s opinion was insufficient to establish that her
aggravation of schizoaffective disorder was temporary or ceased by October 22, 2014. She notes
her objection to OWCP’s use of bold text in its request for clarification from the physician.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.3
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4
ANALYSIS
Appellant alleged that she sustained stress and overwork due to factors of her federal
employment. OWCP accepted as compensable that the number of people she assisted under a
travel system increased from 2008 to 2013, that she performed some managerial duties with
assistance from contractors beginning 2007, and that her responsibilities grew after she was
promoted in 2010. It further accepted that in 2011 appellant had to approve last minute travel
arrangements and had to redo a proposal using a different system in 2012.
OWCP referred appellant to Dr. Lyerly to evaluate if she sustained an emotional
condition due to employment factors.
On September 6, 2016 Dr. Lyerly diagnosed
schizoaffective disorder, possible personality disorder, fibromyalgia, and chronic fatigue
syndrome. On examination he found paranoid delusions and discussed her history of depression
prior to the events occurring in the SOAF. Dr. Lyerly determined that compensable work factors
3

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

4

Gewin C. Hawkins, 52 ECAB 242 (2001).

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aggravated appellant’s psychiatric condition, noting that she maintained employment before
those events. He also found that her preexisting fibromyalgia and chronic fatigue syndrome
contributed to her difficulty functioning. Dr. Lyerly opined that appellant’s work-related
condition had not resolved as shown by her paranoid delusions about her supervisor. In an
October 2016 supplemental report, he again opined that work factors as described in the SOAF
aggravated her psychiatric condition such that she was unable to “tolerate” the stress of her work
responsibilities. Dr. Lyerly clarified that work factors did not cause her condition, but that work
stress and responsibility aggravated her condition. He noted that as appellant was not employed
at the time of the evaluation, she had no current work-related aggravation. Dr. Lyerly found that
it was “appropriate” to remove appellant from employment in October 2014.
Based on Dr. Lyerly’s findings, OWCP accepted appellant’s claim for an aggravation of
schizoaffective disorder that ceased by October 22, 2014. The Board has held that, even when
OWCP accepts the claim for a specific period of disability, the burden of proof does not shift to
appellant to show that she is still disabled.5 The burden is on OWCP to demonstrate an absence
of employment-related disability in the period subsequent to the date when compensation is
terminated or modified.6 The issue, consequently, is whether it has met its burden of proof to
show that appellant had no residuals of the accepted condition after that date.
The Board finds that Dr. Lyerly’s opinion is insufficient to support terminating
appellant’s compensation effective October 22, 2014. In his October 24, 2016 report, Dr. Lyerly
noted that, at the time he evaluated her, she was no longer working for the employment
establishment and thus had no “work[-]related component of her psychiatric condition.” He,
however, did not specifically address when the employment-related aggravation due to
compensable work factors ceased. Further, Dr. Lyerly initially asserted in his September 6, 2016
report that appellant’s employment-related emotional condition had not resolved. He did not
explain his subsequent finding that she had no further work-related condition in a manner which
would resolve the apparent inconsistency in his findings. Without a reasoned medical opinion
addressing when any disability due to appellant’s accepted temporary aggravation of
schizoaffective disorder ended, OWCP has not met its burden of proof in finding that she had no
further disability or residual condition due to her accepted employment injury as of
October 22, 2014.7
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
entitlement to compensation effective October 22, 2014 as the temporary aggravation of
schizoaffective disorder had resolved.

5

See B.S., Docket No. 08-1869 (issued June 19, 2009); Elsie L. Price, 54 ECAB 734 (2003).

6

Id.

7

See C.C., Docket No. 08-2485 (issued September 15, 2009); Tara G. Deramu, Docket No. 94-1391 (issued
September 16, 1996).

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ORDER
IT IS HEREBY ORDERED THAT the February 13, 2017 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 23, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Taylor, MI, Employer
__________________________________________

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

Docket No. 11-1987
Issued: May 14, 2012

Case Submitted on the Record

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

JURISDICTION
On September 8, 2011 appellant filed a timely appeal from an April 5, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration. Because more than 180 days elapsed from the last merit decision dated
December 10, 2010 to the filing of this appeal, the Board lacks jurisdiction to review the merits
of appellant’s claim pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 28, 2010 appellant, then a 44-year-old distribution clerk, filed an occupational
disease claim alleging that her anxiety and major depression were caused by harassment and
discrimination due to her physical disability.2 She first became aware of her condition on
September 21, 2006, but did not realize that it was employment related until April 16, 2010.
Appellant attributed discrimination to the reduction of her work to four hours a day, changing her
starting time, changing her day off from fixed to rotation and paying overtime to other
employees for work within her restrictions that she could perform.
Appellant noted that she had previously sustained an employment injury which resulted
in work restrictions. She alleged harassment by her, supervisor and the postmaster and filed an
Equal Employment Opportunity (EEO) complaint. Appellant alleged that following surgery for
an accepted employment injury, which required work restrictions, her work schedule was
changed to 6:00 a.m. to 3:00 p.m. with an hour for lunch and from 2:00 a.m. to 10:30 a.m. with a
half-hour for lunch. On April 7, 2010 the employing establishment offered her a modified job
based on new restrictions working four hours a day from 10:00 a.m. to 2:00 p.m. with Tuesdays
and Sundays as her off days. Appellant did not object to the reduction in her hours as OWCP
paid her wage-loss compensation for the time lost. She alleged favoritism on the part of the
employing establishment in providing both overtime and eight hours of work to two other clerks
with work restrictions.
The record contains disability notes for the period May 11 to June 15, 2010 from
Dr. Junaid Mohammed Ghadai, a treating Board-certified psychiatrist. On May 12, 2010
appellant was hospitalized for a therapeutic treatment program averaging a two-week stay.
By letter dated June 21, 2010, OWCP informed appellant that the evidence of record was
insufficient to support her claim. Appellant was advised to submit additional medical and factual
evidence to support her claim and given 30 days to submit the requested information.
In an August 2, 2010 report, Dr. Ghadai diagnosed general anxiety disorder, recurrent
moderate major depression, chronic pain and obesity. Appellant attributed her condition to
verbal abuse and problems with her supervisor. She also alleged that she was being singled out
by her supervisor and was stressed by work. Dr. Ghadai opined that the aggravation of
appellant’s psychiatric conditions may be due to her work. He noted that she has been unable to
work since May 11, 2010 and that she filed for disability retirement. Appellant also submitted
statements from several coworkers.
By decision dated December 10, 2010, OWCP denied appellant’s claim on the ground
that she failed to establish any compensable factor of employment.
Appellant filed requests for reconsideration on January 8 and 10, 2011. In support of her
claim, she submitted the August 2, 2010 report from Dr. Ghadai, a September 9, 2010 letter from
the Office of Personnel Management (OPM) concerning her disability retirement, a
November 24, 2010 commendation for her years of service on her retirement and a December 3,
2

On November 24, 2010 appellant retired on disability from the employing establishment.

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2010 EEO decision. The EEO Commission found that her claims for disability discrimination
should be held in abeyance due to its being subsumed into the McConnell et al. class action suit.
On August 2, 2010 Dr. Ghadai diagnosed sleep problems, anxiety and depression which
had been exacerbated by her work. Appellant related being singled out and verbally abused by
her supervisor. Dr. Ghadai noted that she stopped work on May 11, 2010 when she was
hospitalized for her feelings of helplessness, hopelessness, depression, worthlessness and
deemed suicidal.
By decision dated April 5, 2011, OWCP denied reconsideration without further merit
review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.4 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.5 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.6
ANALYSIS
Appellant claimed that her depression and anxiety were caused by harassment and
discrimination by the employing establishment due to her physical disability. OWCP denied her
claim on the grounds that she failed to establish a compensable factor of harassment or
discrimination. The issue is whether appellant’s advanced relevant legal argument not
previously considered by OWCP, submitted relevant pertinent new evidence or showed that
OWCP erroneously applied or interpreted a point of law.
Appellant argued that OWCP erred in finding that the evidence she submitted was
insufficient to support her claim that her depression and anxiety were employment related. She
submitted an August 10, 2010 report from Dr. Ghadai, letters from the employing establishment
and OPM regarding her retirement and a December 3, 2010 EEO Commission decision.
3

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at anytime on her own motion or on application.
4

20 C.F.R. § 10.606(b)(2). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
5

Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

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Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).

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The Board finds that OWCP properly denied appellant’s request for a review of the
merits of its August 13, 2009 decision under section 8128(a) of FECA. The evidence and
argument appellant submitted do not establish that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
constitute relevant and pertinent new evidence not previously considered by OWCP.
The evidence from the EEO stated that appellant’s disability harassment claim was being
held in abeyance due to its being subsumed into the McConnell et al. class action suit. The
letters from OPM and the employing establishment addressed appellant’s disability retirement.
The evidence submitted by appellant does not address the incidents she alleged caused or
contributed to her medical condition. The Board has held that the submission of evidence which
does not address the particular issue involved in a case does not constitute a basis for reopening
the claim.7 As they do not address appellant’s allegations, they are insufficient to support her
claim.
Although the August 10, 2010 report from Dr. Ghadai is new, the underlying issue in the
case is not medical in nature. While Dr. Ghadai opined that appellant’s depression, sleep
problems, anxiety and depression had been exacerbated by her work, he provided no specifics as
to what incidents at work were involved beyond noting that she attributed her condition to verbal
harassment and being singled out by her supervisor. As appellant has failed to establish a
compensable employment factor, the medical reports are not relevant.8 Therefore, OWCP
properly determined that this evidence did not constitute a basis for reopening the case for a
merit review.
Appellant did not provide any relevant and pertinent new evidence with regards to
establishing a compensable employment factor. Consequently, the evidence submitted by her on
reconsideration does not satisfy the third criterion, noted above, for reopening a claim for merit
review. Furthermore, appellant also has not shown that OWCP erroneously applied or
interpreted a specific point of law or advanced a relevant new argument not previously
submitted. Therefore, OWCP properly denied her request for reconsideration
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

7

L.T., Docket No. 09-1798 (issued August 5, 2010); R.M., 59 ECAB 690 (2008); D’Wayne Avila, 57 ECAB
642 (2006).
8

See C.T., Docket No. 08-2160 (issued May 7, 2009); James W. Scott, 55 ECAB 606 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 5, 2011 is affirmed.
Issued: May 14, 2012
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Albany, NY, Employer
__________________________________________

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

Docket No. 21-1372
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On September 13, 2021 appellant filed a timely appeal from a May 28, 2021 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 has established right plantar fasciitis causally related to the
accepted factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 28, 2021 OWCP decision, appellant submitted additional evidence to
the Board. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the
evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will
not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded
from reviewing this additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On April 19, 2021 appellant, then a 52-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed plantar fasciitis due to factors of his federal
employment, including wearing ice grippers on his feet to deliver mail during two to three weeks
of icy conditions. He reported worsening pain and soreness in the sole of his right foot, near his
heel, which persisted even after he stopped wearing the ice grippers. Appellant reported that he
first became aware of his condition and its relation to his federal employment on
February 18, 2021. He explained that he delayed filing his claim because he hoped the pain would
go away after he stopped wearing the ice grippers. On the reverse side of the claim form,
appellant’s supervisor indicated that appellant first reported his condition on March 31, 2021 and
was last exposed to the conditions alleged to have caused his condition on April 1, 2021.
In support of his claim, appellant submitted a duty status report (Form CA-17) dated
March 30, 2021, bearing an illegible signature. The provider diagnosed plantar fasciitis and
recommended work restrictions limiting appellant’s standing, walking, climbing, kneeling,
bending, stooping, twisting, pulling, and pushing.
In a development letter dated April 27, 2021, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence needed and provided a
questionnaire for his completion. In a separate development letter of even date, OWCP requested
that the employing establishment provide comments from a knowledgeable supervisor regarding
the accuracy of appellant’s allegations. It afforded both parties 30 days to respond.
Appellant subsequently submitted an April 26, 2021 medical report from Dr. Steven Fish,
a Board-certified orthopedic surgeon, relating appellant’s history of injury and treatment. Dr. Fish
noted that appellant had been having difficulties with his right heel since February 18, 2021 as a
result of walking on ice with ice scrapers on his shoes. His examination revealed-moderate
bilateral pes planus, fullness along the medial aspect of the right plantar heel, tenderness along the
plantar aspect of the heel at the insertion of the plantar fascia, and occasional pain radiating distally
along the plantar fascia. Dr. Fish reviewed previous x-rays, which revealed-moderate mid-foot
arthritis and some degree of pes planus. He diagnosed plantar fascial fibromatosis and bilateral
pes planus and opined that the right plantar fasciitis was work related, stating that appellant “does
have some preexisting plantar fasciitis, which might predispose him to this, but this started while
[appellant] was at work.” Dr. Fish prescribed custom orthotics, recommended physical therapy,
and advised that appellant should be off work for one week to rest before returning with
restrictions. In a disability certificate of even date, he advised that appellant was 100 percent
disabled from work from April 27 through May 4, 2021, after which he could return to work with
restrictions. In a Form CA-17 of even date, Dr. Fish related appellant’s history of injury and
diagnosed plantar fasciitis. He advised that appellant could return to work on May 4, 2021 with
restrictions.
On May 12, 2021 appellant responded to OWCP’s development questionnaire, relating that
he had worked as a full-time mail carrier for 15 years, walking 8 to 10 miles each day, and that he
believed that walking on icy sidewalks using ice grippers caused his claimed condition. He
explained that it was icy for two to three weeks and he wore his ice grippers while delivering mail
during most of that time. Appellant began to feel pain while working on or around

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February 18, 2021. The pain was constant, but fluctuated in severity, worsening with walking and
improving with daily foot soaks and ice. Appellant clarified that he did not stop working on
April 1, 2021. He indicated that he did not have any exposure that could have caused the condition
outside of his federal employment and had no other conditions affecting his foot.
In a May 14, 2021 letter, an employing establishment human resource management (HRM)
specialist, noted that appellant did not stop working on March 30, 2021, but rather was working
with restrictions. The HRM specialist reported that appellant was out of work from April 27
through May 4, 2021 and returned to work on May 5, 2021 with restrictions.
Appellant submitted an additional statement, dated May 23, 2021, providing further
information about his employment duties, including walking 5 to 7 hours each day delivering mail
and parcels, totaling over 20,000 miles during his roughly 15 years of federal employment. He
explained that the employing establishment authorized and issued “ice grippers,” adaptive wear
worn over boots with screws on the bottom to provide traction and minimize slips and falls on icy
sidewalks. Appellant described how, during the two to three weeks of icy conditions, each time
he stepped out of his truck on the right side, his right foot/heel was the first thing that touched the
ground in order to secure good traction with the ice grippers while dismounting. He opined that
“[a]s the screws hit the ice and get traction, some reverse energy or force, I’m sure will go to your
feet and body.” Appellant’s pain began in the bottom of his right foot while wearing the ice
grippers and gradually worsened over time as he walked. On March 30, 2021 the pain was so
severe that he could not finish work and he sought treatment at an urgent care facility. The pain
did not improve when appellant stopped wearing the ice grippers. In the last five years, he had not
participated in any strenuous activities outside of his work, only household chores.
By decision dated May 28, 2021, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish that his medical condition was
causally related to the accepted factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 3 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 employment injury. 4 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. 5

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

To establish that an injury was sustained in the perf ormance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence o f the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors. 6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 7 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s). 9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish right plantar
fasciitis causally related to the accepted factors of his federal employment.
In his April 26, 2021 report, Dr. Fish noted that appellant began to experience plantar heel
pain as a result of walking on ice with ice scrapers on h is shoes. He diagnosed plantar fascial
fibromatosis and opined that the right plantar fasciitis was work related, stating that appellant “does
have some preexisting plantar fasciitis, which might predispose [appellant] to this, but this started
while [appellant] was at work.” While Dr. Fish provided an affirmative opinion suggestive of
causal relationship, he did not offer medical rationale sufficient to explain how appellant’s
employment duties resulted in or contributed to his diagnosed condition. Without explaining how

6

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018).

9

Id.; Victor J. Woodhams, supra note 6.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
G.T., Docket No. 21-0170 (issued September 29, 2021); D.W., Docket No. 20-0674 (issued September 29, 2020);
V.W., Docket No. 19-1537 (issued May 13, 2020); N.C., Docket No. 19-1191 (issued December 19, 2019); R.D.,
Docket No. 18-1551 (issued March 1, 2019).

4

appellant’s employment duties caused or aggravated his condition, Dr. Fish’s report is of limited
probative value and is insufficient to meet appellant’s burden of proof. 11
In a Form CA-17 dated April 26, 2021, Dr. Fish diagnosed plantar fasciitis and described
appellant’s work restrictions. Similarly, in a disability certificate of even date , he described
appellant’s disability status. However, neither the Form CA-17, nor the disability certificate
offered an opinion on causal relationship. The Board has held that medical evidence that does not
offer an opinion regarding the cause of an employee’s condition is of no probative value on the
issue of causal relationship. 12 For these reasons, Dr. Fish’s remaining evidence is insufficient to
meet appellant’s burden of proof.
Appellant submitted a Form CA-17, dated March 30, 2021, bearing an illegible signature.
The Board has held that reports that are unsigned or bear an illegible signature cannot be
considered probative medical evidence as the author cannot be identified as a physician. 13
Therefore, this report is also of no probative value and is insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence establishing that his right
plantar fasciitis is causally related to the accepted factors of his federal employment, the Board
finds that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request fo r reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish right plantar
fasciitis causally related to the accepted factors of his federal employment.

11

See A.P., Docket No. 19-0224 (issued July 11, 2019).

12

S.J., Docket No. 19-0696 (issued August 23, 2019); M.C., Docket No. 18-0951 (issued January 7, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
13

C.S., Docket No. 20-1354 (issued January 29, 2021); D.T., Docket No. 20-0685 (issued October 8, 2020);
Merton J. Sills, 39 ECAB 572, 575 (1988).

5

ORDER
IT IS HEREBY ORDERED THAT the May 28, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 15, 2022
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
RANDOLPH AIR FORCE BASE, TX, Employer
__________________________________________

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

Docket No. 15-0818
Issued: August 4, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On February 26, 2015 appellant, through counsel, filed a timely appeal from a
January 16, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a ratable
impairment caused by the accepted noise-induced hearing loss that would warrant a schedule
award; and (2) whether OWCP abused its discretion by denying authorization for hearing aids.
FACTUAL HISTORY
This case has previously been before the Board. In an August 1, 2014 decision, the
Board affirmed OWCP’s December 24, 2013 decision which found that appellant had not
1

5 U.S.C. § 8101 et seq.

established entitlement to a schedule award for his employment-related hearing loss, as his
hearing loss was not ratable. The Board also affirmed OWCP’s finding that appellant was not
entitled to a schedule award for tinnitus and that hearing aids were not indicated.2 The facts and
circumstances as set forth in the prior decision and order are hereby incorporated by reference.3
In a December 3, 2014 Form CA-7 claim for compensation, appellant again requested a
schedule award.
On December 11, 2014 a claims examiner advised appellant that, due to the prior
decisions in the case denying schedule award benefits and hearing aids, he needed to follow the
appeal instructions appended to the prior decisions.
On December 30, 2014 OWCP received appellant’s December 30, 2014 request for
reconsideration. Evidence received in support of the request included: duplicate copies of a
February 4, 2013 audiogram; audiograms and hearing evaluation reports dated January 16, 2014,
and an unsigned hearing loss rating worksheet using the January 16, 2014 audiogram results.
In the January 21, 2014 note, Dr. Edwin D. Meeks, II, a Board-certified otolaryngologist,
indicated that appellant has severe bilateral sensorineural hearing loss with 60 percent right
speech discrimination and 90 percent left speech discrimination. He indicated that appellant lost
at least 60 percent of his hearing and recommended that he be fitted with bilateral hearing aids.
In a December 30, 2014 letter, counsel argued that a new Form CA-7 may be filed at any
time to have a new consideration of a schedule award. He stated that a denial of a schedule
award at one time does not foreclose appellant from filing a new application with new medical
evidence.
By decision dated January 16, 2015, OWCP denied modification of its prior decision.
The claims examiner found that the submission of the Form CA-7 in this case appeared to be an
attempt to circumvent the appeals process. She noted that counsel had not identified any error in
the prior schedule award calculation, nor had he explained how appellant had additional
exposure to compensable workplace noise after his retirement from federal employment. The
claims examiner noted that the evidence suggested that appellant had a marked increase in the
degree of his hearing loss since August 21, 2012. However, since appellant retired from federal
service in 2010, that increase in hearing could not be the result of workplace noise exposure.
Regarding hearing aids, the decision found that appellant had not submitted sufficient evidence
to modify the denial of the request for hearing aids.
2

Docket No. 14-773 (issued August 1, 2014).

3

Appellant retired from his federal employment on March 1, 2012. On April 1, 2012 appellant, then a 57-yearold retired powered support systems mechanic, filed an occupational disease claim for hearing loss caused by his 35
years of exposure to noise from jet engines and aerospace ground support equipment. By decision dated
September 21, 2012, OWCP accepted that he sustained bilateral sensorineural hearing loss due to employmentrelated noise exposure but found he was not entitled to a schedule award as the hearing loss was not ratable. It
further found that the weight of the medical evidence established that he would not benefit from hearing aids. By
decision dated May 1, 2013, an OWCP hearing representative affirmed appellant’s September 21, 2012 decision.
By decision dated December 24, 2013, OWCP denied modification of its prior decision.

2

On appeal, counsel argues that the claims examiner’s conclusion, that the
postemployment hearing loss was not the result of the accepted claim, was improper. He further
claims that appellant has the right to file a new application for schedule award anytime there is
new evidence of increased impairment.
LEGAL PRECEDENT -- ISSUE 1
In schedule award cases, a distinction is made between an application for an additional
schedule award and a request for reconsideration of the existing schedule award. When a
claimant is asserting that the original award was erroneous based on his or her medical condition
at that time, this is a request for reconsideration.4
A claim for an increased schedule award may be based on new exposure.5 Absent any
new exposure to employment factors, a claim for an increased schedule award may be based on
medical evidence establishing the progression of an employment-related condition that has
resulted in a greater permanent impairment.6 The Board has recognized that, if a claimant’s
employment-related hearing loss worsens in the future, the employee may apply for an additional
schedule award for any increased impairment.7 The Board has also recognized that a claimant
may be entitled to an award for an increased hearing loss, even after exposure to hazardous noise
has ceased, if causal relationship is supported by the medical evidence of record.8
The schedule award provision of FECA9 and its implementing federal regulations10 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.11
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Payment of Schedule Awards, Chapter 2.809
(February 2013). If, on the other hand, the claimant sustains increased impairment at a later date which is due to
work-related factors, an additional award will be payable if supported by the medical evidence. In this case, the
original award is undisturbed and the new award has its own date of maximum medical improvement, percent, and
period.
5

A.A., 59 ECAB 726 (2008); Tommy R. Martin, 56 ECAB 273 (2005); Rose V. Ford, 55 ECAB 449 (2004).

6

James R. Hentz, 56 ECAB 573 (2005); Linda T. Brown, 51 ECAB 115 (1999).

7

Paul Fierstein, 51 ECAB 381 (2000); Paul R. Reedy, 45 ECAB 488 (1994).

8

Id.

9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

11

Id. at § 10.404(a).

3

losses at each frequency are added and averaged.12 The fence of 25 decibels is then deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.13 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.14 The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss.15 The Board has concurred in OWCP’s
adoption of this standard for evaluating hearing loss.16
ANALYSIS -- ISSUE 1
In this case, OWCP had previously accepted bilateral sensorineural hearing loss due to
employment-related noise exposure. The Board previously affirmed its finding, however, his
hearing loss was not severe enough to be ratable for a schedule award. Appellant filed a new
Form CA-7 compensation claim for a schedule award which OWCP denied following merit
review.17 The Board finds that appellant has not met his burden of proof to establish a ratable
hearing loss due to his employment.
Appellant submitted a copy of a February 4, 2013 audiogram, which was previously of
record and was already considered in OWCP’s December 24, 2013 decision, and affirmed by the
Board. Thus, this audiogram does not establish a basis for granting a schedule award.
Appellant also submitted audiograms and hearing evaluation reports dated January 16,
2014 and an unsigned hearing loss rating worksheet using the January 16, 2014 audiogram
results. However, these reports, contained no identification or certification of the examiner.
Audiologists are not included among the healthcare professionals recognized as physicians under
FECA.18 Further, none of the newly submitted audiograms, hearing evaluation reports, or
hearing loss rating worksheets were accompanied by a physician’s report addressing the causal
relationship of appellant’s hearing loss.19 A claimant may be entitled to an award for an
12

A.M.A., Guides 250 (6th ed. 2009).

13

Id.

14

Id.

15

Supra note 12 at 251.

16

Horace L. Fuller, 53 ECAB 775 (2002).

17

The Board finds in this case that appellant made a proper claim for an increased schedule award or a schedule
award as there was a prior denial of a schedule award.
18

Thomas O. Bouis, 57 ECAB 602 (2006). Section 8101(2) of FECA provides that physician includes 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). See Joshua A. Holmes, 42 ECAB 231 (1990)
(an audiogram prepared by an audiologist must be certified by a physician before it can be used to determine hearing
loss).
19

Id.

4

increased hearing loss, even after exposure to hazardous noise has ceased, if causal relationship
is supported by the medical evidence of record.20 This evidence does not establish appellant’s
claim.
While the January 21, 2014 letter from Dr. Meeks indicates that appellant has severe
bilateral sensorineural hearing loss, Dr. Meeks does not discuss the causal relationship of that
hearing loss. As noted, a claimant may be entitled to an award for an increased hearing loss,
even after exposure to hazardous noise has ceased, if causal relationship is supported by the
medical evidence of record.21 As such, Dr. Meeks’ letter does not establish appellant’s claim for
a schedule award.
On appeal, counsel argues that the claims examiner’s conclusion that the postemployment
hearing loss was not caused by the accepted injury was improper. The issue of whether an
increase in hearing loss after exposure to hazardous noise has ceased is a medical determination.
Appellant has provided no medical evidence to establish a ratable hearing loss. Counsel further
argues that appellant has the right to file a new application for schedule award anytime there is
new evidence of increased impairment. A claimant may request a schedule award or an
increased schedule award based on evidence of new exposure or medical evidence showing
progression of an employment-related condition resulting in permanent impairment or increased
impairment.22 Even if the term reconsideration is used, when a claimant is not attempting to
show error in the prior schedule award decision and submits medical evidence regarding a
permanent impairment at a date subsequent to the prior schedule award decision, it should be
considered a claim for an increased schedule award.23
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty, the services, appliances and supplies prescribed
or recommended by a qualified physician, which the Secretary of Labor considers likely to cure,
give relief, reduces the degree or the period of any disability or aid in lessening the amount of
any monthly compensation.24 OWCP must therefore exercise discretion in determining whether
the particular service, appliance or supply is likely to affect the purposes specified in FECA.25
Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
20

See supra note 7.

21

See id.

22

Paul R. Reedy, supra note 7.

23

B.K., 59 ECAB 228 (2007).

24

5 U.S.C. § 8103.

25

OWCP has broad discretionary authority in the administration of FECA and must exercise its discretion to
achieve the objectives of section 8103. Marjorie S. Greer, 39 ECAB 1099 (1988). See also M.M., Docket No. 131819 (issued February 19, 2014).

5

deductions from established facts. It is not enough to merely show that the evidence could be
construed so as to produce a contrary factual conclusion.26
ANALYSIS -- ISSUE 2
The Board has previously affirmed in its August 1, 2014 decision that OWCP had not
abused its discretion by denying appellant’s request for hearing aids. The Board noted that there
was no medical evidence of record to substantiate that appellant required hearing aids.
Following the Board’s decision, appellant submitted to OWCP a January 21, 2014 letter from
Dr. Meeks which recommended that appellant be fitted with bilateral hearing aids. This
recommendation was not supported by any further explanation. As Dr. Meeks offered no
medical rationale to explain why appellant needed hearing aids due to the accepted nonratable
hearing loss, OWCP did not abuse its discretion by denying appellant’s request for hearing aids.
There is no probative medical evidence of record that appellant should have hearing aids.27
CONCLUSION
The Board finds that appellant failed to establish an additional schedule award for his
employment-related hearing loss. The Board also finds that OWCP did not abuse its discretion
by denying appellant’s request for hearing aids.

26

J.C., Docket No. 13-1413 (issued October 22, 2013).

27

See J.M., Docket No. 14-982 (issued August 26, 2014).

6

ORDER
IT IS HEREBY ORDERED THAT the January 16, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 4, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
U.S. POSTAL SERVICE, NORTH SHEPARD
POST OFFICE, Houston, TX, Employer
__________________________________________

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

Docket No. 09-1532
Issued: February 22, 2010

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 May 12, 2009 appellant filed a timely appeal of a February 11, 2009 decision of the
Office of Workers’ Compensation Programs denying her claim for compensation. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury on August 18, 2008 in the performance of duty.
FACTUAL HISTORY
On January 2, 2009 appellant, then a 50-year-old distribution/window relief clerk, filed a
traumatic injury claim alleging that on August 18, 2008 she injured her right shoulder while
dropping tubs of flats. She did not stop work. The employing establishment controverted the
claim.
On January 12, 2009 the Office advised appellant of the factual and medical evidence
necessary to establish her claim and allowed her 30 days to submit such evidence. The Office

requested a physician’s report with an opinion explaining how the alleged work incident caused
or aggravated her claimed injury.
In a February 11, 2009 decision, the Office denied appellant’s claim finding that, the
August 18, 2008 incident occurred, there was no medical evidence, however, providing a
diagnosis, which could be connected to the accepted incident.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of 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; that an injury was sustained while 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 on a traumatic injury
or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
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. Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence, which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.5
1

On May 6, 2009 appellant requested a review of the written record. On May 19, 2009 the Office denied the
request for a review of the written record. As noted, appellant filed her appeal with the Board on May 12, 2009.
The Board notes that the May 19, 2009 Office decision is null and void as the Board and the Office may not
simultaneously have jurisdiction over the same case. The Office may not issue a decision granting or denying a
request for a hearing or review of the written record regarding the same issue on appeal before the Board. See
Arlonia B. Taylor, 44 ECAB 591 (1993).
2

5 U.S.C. §§ 8101-8193.

3

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007).

4

Id.

5

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

2

ANALYSIS
Appellant alleges that she injured her right shoulder on August 18, 2008 from dropping
tubs of flats. The Office accepted that she performed this activity on August 18, 2008.
However, appellant has not established an injury due to the incident as she has not submitted any
medical evidence to establish that the August 18, 2008 work incident caused or aggravated a
diagnosed medical condition.
On January 12, 2009 the Office advised appellant of the medical evidence necessary to
establish her claim and allowed her 30 days to submit such evidence. However, appellant did not
submit any medical evidence prior to the Office’s February 11, 2009 decision.6 The record does
not contain any medical report from a physician, received before the Office issued its
February 11, 2009 decision, explaining how dropping tubs of flats caused or aggravated her right
shoulder condition. Appellant has the burden of proof to submit rationalized medical evidence
addressing whether there is a causal relationship between her diagnosed condition and the
incident at work. Consequently, appellant did not provide the medical evidence required to
establish a prima facie claim for compensation.7
On appeal, appellant asserts that the reasons for her appeal had been submitted to the
employing establishment and that her physician provided a detailed response to the Office’s
request for information. However, none of these documents was of record prior to the issuance
of the Office’s February 11, 2009 merit decision. As noted, the Board may only consider
evidence that was in the record at the time the Office issued its final decision.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a traumatic injury on August 18, 2008 in the performance of duty.

6

The record on appeal contains evidence received after the Office issued the February 11, 2009 decision. The
Board may not consider evidence that was not before the Office at the time it rendered its final decision. 20 C.F.R.
§ 501.2(c).
7

See A.C., 60 ECAB ___ (Docket no. 08-1453, issued November 18, 2008); Donald W. Wenzel, 56 ECAB
390 (2005).

3

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated February 11, 2009 is affirmed.
Issued: February 22, 2010
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF LAND MANAGEMENT, Medford, OR,
Employer
__________________________________________

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

Docket No. 16-0211
Issued: March 17, 2016

Case Submitted on the Record

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

JURISDICTION
On November 16, 2015 appellant filed a timely appeal from an October 1, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a schedule award.
FACTUAL HISTORY
On August 27, 2013 appellant, then a 55-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that on August 24, 2013 she injured her left index finger in the
performance of duty. She alleged that she extended her finger to stop her vehicle door from
1

5 U.S.C. § 8101 et seq.

striking a nearby vehicle, and felt a tearing in her finger. The claim form does not indicate that
appellant stopped working.
Appellant received treatment from Dr. Paul Matz, a Board-certified family practitioner.
In an August 29, 2013 report, Dr. Matz provided a history of injury and diagnosed left hand joint
pain. He provided a March 3, 2014 report indicating that appellant had injured her left index
finger with some paresthesias about the metacarpophalangeal (MP) joint. Dr. Matz reported no
limits in range of motion or function and diagnosed a strain of muscle or tendon of the hand.
On April 1, 2014 OWCP accepted the claim for a left index MP joint sprain. Appellant
continued to receive treatment from Dr. Matz. In a report dated May 7, 2014, Dr. Matz noted
that appellant reported a worsening of her fine manipulation in her left index finger.
Appellant was seen by Dr. Zakir Ali, a Board-certified neurologist, on July 25, 2014. In
a report of that date, Dr. Ali provided a history of injury and results on examination. He reported
that there was no evidence of sensory or motor compromise, with localized tenderness at the base
of the index finger.
In a report dated September 5, 2014, Dr. Matthew Bengard, a Board-certified orthopedic
surgeon, reported that appellant continued to have left index finger symptoms. He provided
results on examination and indicated that an October 31, 2013 magnetic resonance imaging
(MRI) scan had shown a partial ulnar collateral ligament tear off the metacarpal head.
Dr. Bengard diagnosed left index ulnar collateral ligament injury with chronic synovitis, and
recommended appellant wear a protective splint.
Appellant submitted a report dated January 31, 2015 from Dr. Matz, indicating that she
was seen to discuss “claim closure” and reported that she continued to have shooting pain in her
right finger and hand. Dr. Matz reported that her condition should be considered permanent and
stationary.
On May 26, 2015 appellant filed a Form CA-7 claim for a schedule award. By letter
dated June 19, 2015, OWCP requested that she submit a report from a physician as to a
permanent impairment under the sixth edition of the American Medical Associations, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides). The letter indicated that the report
should include the date of maximum medical improvement (MMI), a description of any
restriction of motion, other objective findings, subjective complaints, and an opinion as to the
degree of permanent impairment under the A.M.A., Guides with an explanation as to how the
A.M.A., Guides were applied. No response was received.
By decision dated July 21, 2015, OWCP denied the claim for a schedule award. It found
that the medical evidence of record did not establish an employment-related permanent
impairment. No additional evidence was received by OWCP.
Appellant requested reconsideration on July 31, 2015. She indicated that she had seen
her physician and he would be submitting a report. On August 3, 2015 OWCP received a
July 25, 2015 report from Dr. Matz, who reported that appellant was seen to discuss closing her
workers’ compensation claim. Dr. Matz reported that she continued to have pain with typing
that worsened as the day progressed. He briefly reported results on examination, noting for
2

motor strength 4/5 pinch strength for left thumb/index fingers. Dr. Matz wrote, “20 percent loss
of function.” He also submitted handwritten responses to the June 19, 2015 developmental
letter. Dr. Matz indicated that appellant reached MMI on July 27, 2015. He further indicated
that there was 4/5 pinch strength of left thumb/index fingers, with occasional shooting pains, and
pain with excessive use. Dr. Matz again asserted that there was a 20 percent loss of function.
By decision dated October 1, 2015, OWCP noted that it had reviewed the merits of the
claim and denied modification. It found that the medical evidence did not contain a narrative
report showing a permanent impairment to the left index finger and how it was calculated under
the A.M.A., Guides.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.2 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.3 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.4
An employee seeking compensation for a permanent impairment under FECA has the
burden to establish the essential elements of the claim, including that an employment injury
contributed to a permanent impairment of a scheduled member of function of the body.5 The
medical evidence necessary to support a schedule award includes a physician’s detailed report
that provides a sufficient description of the impairment.6 Pursuant to OWCP procedures, a
medical report should show that the individual has reached MMI, describes the impairment in
sufficient detail for the evaluator to visualize the character and degree of disability, and gives a
percentage of impairment.7 In addition, the report should include a history of clinical
presentation, physical findings, functional history, clinical studies or objective tests, analysis of

2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
3

A. George Lampo, 45 ECAB 441 (1994).

4

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); see also Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a
(February 2013).
5

See A.B., Docket No. 12-1392 (issued January 24, 2013).

6

See James E. Jenkins, 39 ECAB 860 (1988).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(b) (February 2013).

3

findings, and the appropriate impairment based on the most significant diagnosis, as well as a
discussion of how the impairment rating was calculated under the A.M.A., Guides.8
ANALYSIS
In the present case, appellant has claimed a schedule award based on her accepted left
index finger injury on August 24, 2013. The accepted injury is a left index MP joint sprain. The
Board has reviewed the limited medical evidence of record and finds that it is not sufficient to
establish a permanent impairment or require further development.
Dr. Matz has briefly opined in his July 25, 2015 report, and in his handwritten response
received on August 3, 2015, that appellant had 20 percent loss of function. The record does not
contain a report with a complete history of clinical presentation, physical findings, functional
history, clinical studies, or objective tests. Dr. Matz refers to 4/5 in pinch strength, without
providing any explanation as to how any motor deficit was evaluated.9 Nor is there any
explanation as to how a 20 percent “loss of function” was calculated. It is unclear whether this is
referring to the hand, the left index finger, or how the percentage was determined.
The medical evidence of record does not provide a detailed description of a permanent
impairment that would enable the evaluator to make any accurate determination as to whether
appellant has an employment-related permanent impairment to a scheduled member under the
A.M.A., Guides. An employee has the burden to establish that an employment injury
contributed to a permanent impairment of a scheduled member or function of the body.10 In the
present case, the evidence of record is insufficient to establish permanent impairment or require
further development of the evidence.
On appeal, appellant asserts that her physician told her that OWCP had all of the
documentation of the specialists she had seen, and there was nothing else he could do. She also
indicates that she continues to have pain and weakness in her finger, but the issue in the case is a
permanent impairment under the A.M.A., Guides causally related to the employment injury.
There must be probative medical evidence, as discussed above, that provides a sufficiently
detailed description of a permanent impairment such that the degree of permanent impairment
under the A.M.A., Guides can properly be determined. The current evidence is of diminished
probative value in this regard. Appellant may submit new and relevant evidence to OWCP and
request a schedule award at any time.11

8

Id., Chapter 2.808.6. If the claimant does provide an appropriate report, the case is referred to an OWCP
medical adviser. Id.
9

Under the A.M.A., Guides, motor deficits are based on muscle strength testing, with both upper extremities
tested and compared. A.M.A., Guides 425.
10

See A.B., Docket No. 12-1392 (issued January 24, 2013).

11

A claim for an increased permanent impairment based on new evidence is not a request for reconsideration and
is not subject to reconsideration request time limitations or to the clear evidence of error standard. R.P., Docket No.
10-1123 (issued January 25, 2011).

4

The Board notes that appellant may request a schedule award or increased schedule
award at any time based on evidence of new exposure or medical evidence showing progression
on an employment-related condition resulting in permanent impairment or increased
impairment.12
CONCLUSION
The Board finds that appellant has not established a permanent impairment to a scheduled
member or function of the body under 5 U.S.C. § 8107.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 1, 2015 is affirmed.
Issued: March 17, 2016
Washington, DC

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

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

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

12

Paul R. Reedy, 45 ECAB 488, 490 (1994); A.A., 51 ECAB 115, 116 (1999).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, East Boston, MA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 14-1450
Issued: September 11, 2015

Case Submitted on the Record

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

JURISDICTION
On June 9, 2014 appellant, through counsel, filed a timely appeal from a May 20, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability on June 14, 2013
causally related to the accepted October 10, 2010 work injury.
FACTUAL HISTORY
On October 10, 2010 appellant, a 57-year-old transportation security officer (screener),
sustained a traumatic injury in the performance of duty while lifting a bag to be searched. The
1

5 U.S.C. § 8101 et seq.

bag shifted in his hands, causing him to jerk to the side to avoid dropping it. Appellant stopped
work and returned to limited duty later that month. OWCP assigned File No. xxxxxx049 and
accepted his claim for lumbar sprain.
On August 15, 2012 appellant filed a traumatic injury claim alleging that he experienced
pain in his lower back up to his neck, as well as a hernia in his chest, when he tried to grab a beer
keg that had fallen off a cart at work on August 14, 2012; OWCP File No. xxxxxx985.2 OWCP
denied this claim on May 30, 2013.
An OWCP hearing representative affirmed on
November 27, 2013. Appellant appealed to the Board on February 4, 2014. On appeal, the
Board found that, while there was no dispute that appellant tried to grab a falling beer keg at
work on August 14, 2012, the medical evidence was insufficient to establish that the incident had
caused a back injury.3
On June 17, 2013 appellant filed a claim for a recurrence of total disability beginning
June 14, 2013 due to his October 10, 2010 lumbar sprain. He explained that his condition
progressively worsened to the point that the employing establishment could no longer
accommodate his restrictions.
In May 2013 appellant was diagnosed with lumbar neuritis and lumbosacral disc
degeneration. In June 2013 he was diagnosed with depression, facet syndrome, lower back pain,
and lumbosacral disc degeneration. On August 26, 2013 Dr. Polly D. Fraga, the attending
Board-certified internist, noted that appellant had a number of bulging discs from L2-4 and
severe left-sided facet arthropathy at L5, mild at L4.
In a decision dated September 13, 2013, OWCP denied appellant’s recurrence claim
finding that the medical evidence failed to establish a worsening of the accepted medical
condition. It found that Dr. Fraga had not explained how appellant’s current disability was due
to the original injury, and failed to demonstrate with clinical findings that the accepted condition
had materially worsened/changed, without an intervening cause, to warrant total disability.
OWCP received additional medical evidence after its September 13, 2013 decision. The
submitted evidence included an October 19, 2010 note by Gail Spellman, a nurse practitioner,
describing the history of injury; a November 2, 2012 note by Ms. Spellman describing
appellant’s fall down a flight of stairs, causing his back to go out again for a couple of days; a
November 4, 2012 imaging study ordered by Ms. Spellman showing L5-S1 severe left-sided fact
arthropathy and other degenerative changes; and a December 3, 2012 note of Ms. Spellman
indicating that she provided appellant with a work note and advice on posture and body
mechanics.
A March 11, 2011 report by Dr. Sharon Bassi, a Board-certified physiatrist, noted the
history of the October 10, 2010 injury as well as a February 2011 slip and fall incident in which
appellant landed on his back. An October 2, 2013 treatment note of Dr. Bassi discussed
appellant’s back pain.
2

Seven kegs of beer were being moved on a cart through the exit lane for screening. When the cart hit the
threshold, one of the kegs fell off. Appellant reacted by attempting to grab it before it hit the floor. The case files
for OWCP File Nos. xxxxxx049 and No. xxxxxx985 were combined in 2013.
3

Docket No. 14-676 (issued July 16, 2014).

2

Philip Ruckel, a physician assistant, submitted an August 16, 2012 report, noting a new
onset of pain across appellant’s shoulders and neck following the beer keg incident at work.
A June 25, 2013 treatment note from Dr. Fraga noted bulging discs at L2-3, L3-4, and
L4-5, in addition to minimal canal stenosis at L4-5 with foraminal narrowing and severe leftsided facet arthropathy at L5-S1. An August 26, 2013 follow-up note from Dr. Fraga diagnosed
facet syndrome. His September 16, 2013 note discussed further management. A September 26,
2013 note from Dr. Fraga noted appellant’s difficulty getting his disability claim approved.
A July 25, 2013 note by Sarah Zappala, a nurse practitioner, followed appellant’s
progress. In a December 16, 2013 note she delineated restrictions for lower back pain resulting
from appellant having lifted a heavy suitcase over three years prior.
In a telephonic hearing held before an OWCP hearing representative on March 11, 2014,
counsel agreed that the disability claimed was not caused by the accepted lumbar sprain.
Instead, it was his view that the October 10, 2010 work injury resulted in a herniated disc at the
L4-5 level encroaching on the L4 nerve root and that this herniated disc appeared to have
progressively worsened over time.
In a decision dated May 20, 2014, an OWCP hearing representative affirmed the denial of
appellant’s recurrence claim. She found that the evidence failed to establish that his recurrent
disability beginning June 14, 2013 was causally related to the accepted work injury of
October 10, 2010.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.4 “Disability” means the incapacity, because
of an employment injury, to earn the wages the employee was receiving at the time of injury. It
may be partial or total.5
A “recurrence of disability” means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.6
When an employee who is disabled from the job he held when injured on account of
employment-related residuals returns to a light-duty position, or the medical evidence of record
establishes that he can perform the light-duty position, the employee has the burden of
establishing by the weight of the reliable, probative, and substantial evidence a recurrence of
total disability, and show that he cannot perform such light duty. As part of his burden, the

4

5 U.S.C. § 8102(a).

5

20 C.F.R. § 10.5(f).

6

Id. at § 10.5(x).

3

employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.7
ANALYSIS
OWCP accepts that appellant sustained a lumbar sprain in the performance of duty on
October 10, 2010 while lifting a bag to be searched. Appellant returned to limited duty later that
month. In 2013, he filed a claim alleging that his October 10, 2010 work injury caused total
disability for work beginning June 14, 2013. Appellant, therefore, has the burden to show a
change in the nature and extent of his accepted lumbar sprain such that he could no longer
perform his limited-duty assignment.8
Appellant has submitted a number of progress reports, but he has not submitted a
physician’s opinion on the issue of causal relationship. No physician has addressed his claim
that his total disability beginning June 14, 2013 was the result of a worsening of his October 10,
2010 lumbar sprain, without an intervening injury or new exposure to the work environment. In
fact, counsel concedes that the disability claimed was not caused by the accepted lumbar sprain.
Dr. Fraga, the attending internist, diagnosed a number of bulging discs from L2-4 and
severe left-sided facet arthropathy at L5, mild at L4. She did not attribute appellant’s total
disability beginning June 14, 2013 to the accepted lumbar sprain in 2010. Dr. Fraga only
addressed his difficulty getting approval of his disability claim.
Although Dr. Bassi noted a history of appellant having injured his back while lifting a
heavy suitcase over three years prior to her October 2, 2013 report, she did not address whether
appellant was disabled as a result of her employment injury during the period in question.
The treatment notes from Mr. Ruckel, the physician assistant, as well as those from Nurse
Practitioners Spellman and Zappala are of no probative value as they are not physicians as
defined under FECA.9
The diagnostic studies do not provide a physician’s opinion addressing the issue of
disability. Without more, these tests are insufficient to establish employment-related disability.
As the medical opinion evidence does not support that appellant sustained a recurrence of
disability on June 14, 2013 causally related to the accepted October 10, 2010 lumbar sprain, the
Board will affirm OWCP’s May 20, 2014 decision denying appellant’s recurrence claim.

7

Terry R. Hedman, 38 ECAB 222 (1986).

8

Appellant does not argue, and the record does not reflect, a change in the nature and extent of his limited-duty
job requirements.
9

See e.g., 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); 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).

4

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden to establish that he sustained a
recurrence of disability on June 14, 2013 causally related to the accepted October 10, 2010 work
injury.
ORDER
IT IS HEREBY ORDERED THAT the May 20, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 11, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5