United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, FRANKLIN BRANCH,
Franklin, WI, Employer
__________________________________________

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

Docket No. 18-0461
Issued: October 2, 2018

Case Submitted on the Record

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

JURISDICTION
On January 4, 2018 appellant, through counsel, filed a timely appeal from an October 26,
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 to consider the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish right upper
extremity conditions causally related to the accepted factors of her federal employment.

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.

FACTUAL HISTORY
On July 8, 2016 appellant, then a 50-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed a right bicep/upper arm and elbow condition as
the result of her repetitive work duties.3 She stated that she first became aware of her claimed
condition on July 5, 2016, and realized its relation to her federal employment on July 8, 2016.
Appellant did not stop work.
On July 8, 2016 appellant was seen by Dr. Rita E. Schulz, a Board-certified family
practitioner, for complaints of right arm pain, which appellant attributed to her work duties. She
related that she first noticed her arm pain on July 5, 2016 and that her job entailed lots of repetitive
activity. Shortly thereafter, appellant noticed that the pain radiated into her right shoulder.
Physical examination findings included tenderness along the right elbow medial epicondyles up to
the triceps and biceps muscles, right shoulder and scapular area tenderness, and decreased right
shoulder range of motion. Dr. Schulz diagnosed right arm sprain and referred appellant to a
chiropractor. On July 8, 2016 she reported that appellant was disabled from work as of that day.
On July 15, 2016 Dr. Schult released appellant to return to desk work with restrictions.
In a July 11, 2016 report, Dr. Michelle Jermier, a chiropractor, noted that appellant was
seen for elbow pain. Appellant related striking her elbow while loading a truck at work and that
the pain worsened as the day progressed. Examination findings were provided to include right
lateral elbow edema and right elbow and forearm tenderness. Dr. Jermier diagnosed right elbow
acute tendinosis/tendinitis.
On July 20, 2016 OWCP received an undated report from Dr. Jermier diagnosing right
elbow acute tendinosis/tendinitis and right radial head subluxation. Dr. Jermier reported that
appellant developed symptoms after hitting her right elbow while loading a truck on July 5, 2016.
Examination findings were detailed. Dr. Jermier noted that anteroposterior (AP) and lateral elbow
x-rays had essentially negative findings.
By development letter dated July 26, 2016, OWCP informed appellant that the evidence of
record was insufficient to support her claim. It advised her regarding the necessary medical and
factual evidence needed to establish her claim. OWCP afforded appellant 30 days to submit the
necessary evidence.
On August 10, 2016 Dr. Jermier listed dates of treatment and noted a date of injury of
July 5, 2016, when appellant hit her right elbow loading a truck at work. Examination findings
included right wrist positive Phalen’s, Finkelstein’s, and Tinel’s signs, right elbow positive valgus
stress, extension, and flexion tests, and right shoulder positive Dawburns and Apleys Scratch tests.
Dr. Jermier diagnosed right elbow lateral epicondylitis, right shoulder pain, other synovium and
tendon specified disorders, and upper extremity segmental and somatic dysfunction. She opined
3

OWCP assigned the present claim File No. xxxxxx000. Appellant also noted on her claim form that she bumped
her elbow on a truck on July 2, 2016 while loading it. She then filed a separate claim for the July 2, 2016 injury,
assigned OWCP File No. xxxxxx501, which OWCP denied on September 16, 2016. Appellant also subsequently filed
other claims alleging injury to her right elbow/arm. On November 29, 2016 she filed a claim for a traumatic injury to
her right arm on November 28, 2016, assigned OWCP File No. xxxxxx177. On December 23, 2016 appellant filed a
claim for a traumatic injury to her right arm on December 22, 2016, assigned OWCP File No. xxxxxx871.

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that the diagnosed conditions were caused by appellant’s repetitive work duties and bumping her
elbow on July 5, 2016.
On August 26, 2016 OWCP received a July 27, 2016 report from Dr. Darin A. Maccoux,
Board-certified in family and sports medicine. Dr. Maccoux diagnosed appellant’s condition as
right elbow ulnar nerve contusion. He noted that she was disabled from work until August 18,
2016 and that her symptoms should resolve within two to three months.
By decision dated October 13, 2016, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish the factual portion of her claim.
In a letter dated October 24, 2016, counsel requested a telephonic hearing before an OWCP
hearing representative. The hearing was held on April 25, 2017.
In an operative report dated March 7, 2017, Dr. Rick F. Papandrea, a treating physician
Board-certified in hand surgery, orthopedic surgery, and orthopedic sports medicine, performed
right elbow cubital tunnel release, right percutaneous medial epicondyle flexor/pronator release,
and right ECRB percutaneous release. Appellant’s diagnoses were listed as right lateral
epicondylitis, right medial epicondylitis, and right cubital tunnel syndrome.
By decision dated June 16, 2017, the hearing representative found that appellant had
established the factual portion of her claim. However, the claim remained denied as appellant had
not provided a rationalized medical opinion explaining how the diagnosed conditions were
causally related to the accepted employment factors. Thus, appellant affirmed the October 13,
2016 decision, as modified.
On July 28, 2017 appellant, through counsel, requested reconsideration.
In a July 7, 2017 report, Dr. Papandrea diagnosed right cubital tunnel syndrome or right
elbow lateral epicondylitis and ulnar neuropathy. He noted that appellant stated that she developed
medial and lateral elbow pain after hitting her elbow. Physical examination findings were
provided. Dr. Papandrea attributed the diagnosed condition to the hitting of her elbow due to the
lack of symptoms prior to the injury. In support of this conclusion, he explained that the direct
trauma aggravated a preexisting condition causing it to become symptomatic.
By decision dated October 26, 2017, OWCP denied modification of its prior decision. It
found the evidence submitted by appellant was insufficient to establish causal relationship between
the diagnosed medical conditions and the accepted factors of appellant’s federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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 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
4

Supra note 3.

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employment injury.5 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.6
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of 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 employment factors identified by the employee.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is causal relationship between the employee’s diagnosed condition and the
compensable employment factors.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 the specific employment factors identified by the employee.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that the accepted
factors of her federal employment caused or aggravated her diagnosed medical conditions.
Dr. Schulz diagnosed right arm sprain in a July 8, 2016 report. In the work certificates
dated July 8 and 15, 2016, she noted appellant’s ability to work status. Dr. Maccoux diagnosed a
right elbow ulnar nerve contusion in a July 27, 2016 report. However these physicians did not
provide an opinion regarding the cause of appellant’s diagnosed conditions.11 The Board has held
that medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.12

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

6

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

7

D.U., Docket No. 10-0144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238
(2005); Donald W. Wenzel, 56 ECAB 390 (2005).
8

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
9

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

D.H., Docket No. 11-1739 (issued April 18, 2012).

12
See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009); Jaja K.
Asaramo, 55 ECAB 200 (2004).

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Dr. Papandrea’s July 7, 2017 report did not attribute appellant’s diagnosed conditions to
her repetitive work duties over a period longer than a single shift. Rather he attributed her
diagnoses to a prior traumatic incident when appellant allegedly struck her elbow.13 As appellant’s
claim is for an occupational disease, and as Dr. Papandrea’s opinion on causal relationship related
her diagnoses to a single traumatic incident, his July 7, 2017 report is of diminished probative
value on the issue of causal relationship. His report was not based on an accurate factual
background. Medical opinions based on an incomplete or inaccurate history are of
diminished probative value.14
Appellant also submitted reports from Dr. Jermier, a chiropractor. However, her reports
are of no probative value because she did not diagnose a subluxation of the spine based upon x-ray
evidence, and, therefore, she is not considered a “physician” under FECA.15
On appeal counsel contends that the report from Dr. Papandrea established causal
relationship. As explained above, appellant has not provided rationalized medical evidence
sufficient to establish causal relationship between the accepted employment factors and the
diagnosed conditions. The Board thus finds that she failed to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that right upper
extremity conditions were causally related to the accepted factors of her employment.

13

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events or incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). The regulations define an
occupational disease or illness as a condition produced by the work environment over a period longer than a single
workday or shift. 20 C.F.R. § 10.5(q).
14

L.G., Docket No. 09-1692 (issued August 11, 2010).

15
A.O., Docket No. 08-580 (issued January 28, 2009). Under section 8101(2) of FECA, the term physician includes
chiropractors only to the extent that their reimbursable services are limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist and subject to regulation by the
Secretary. 5 U.S.C. § 8101(2); see D.S., Docket No. 09-860 (issued November 2, 2009).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated October 26, 2017 is affirmed.
Issued: October 2, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Syracuse, NY, Employer
__________________________________________

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

Docket No. 19-0832
Issued: September 24, 2019

Case Submitted on the Record

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

JURISDICTION
On March 11, 2019 appellant, through counsel, filed a timely appeal from a January 17,
2019 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 that her June 6,
2018 schedule award should have been paid at an augmented compensation rate.
FACTUAL HISTORY
On August 7, 2014 appellant, then a 31-year-old casual mail handler, filed a traumatic
injury claim (Form CA-1) alleging when processing mail she fractured her right ring finger while
in the performance of duty. She stopped work that day. Appellant listed no dependents on her
claim form. On August 12, 2014 Dr. Daniel J. Murphy, a Board-certified orthopedic surgeon,
diagnosed proximal phalanx fracture of the right fourth finger. He performed closed reduction of
the fracture and applied splints and taping. Appellant returned to work on August 14, 2014.
OWCP accepted the claim for closed fracture of ring finger, right.
On March 6, 2017 appellant filed a schedule award claim (Form CA-7). She listed no
dependents on her claim form. The employing establishment indicated that she had resigned on
February 2, 2015.
In support of her schedule award claim, appellant submitted a March 16, 2017 report in
which Dr. Kevin Scott, a Board-certified orthopedic surgeon, noted full range of motion (ROM)
of all finger joints. He diagnosed status post pathological fracture of the proximal phalanx of the
right fourth finger and advised that she had reached maximum medical improvement (MMI).
Dr. Scott advised that, in accordance with the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),3 appellant had a Class 1
impairment under Table 15-2, Digit Regional Grid. He applied grade modifiers and concluded
that she had six percent permanent impairment due to her right finger fracture.
OWCP referred the record, including Dr. Scott’s report, to Dr. Michael M. Katz, a Boardcertified orthopedic surgeon, acting as OWCP’s district medical adviser (DMA). In an August 5,
2017 report, Dr. Katz agreed with Dr. Scott’s application of the A.M.A., Guides, concluding that
appellant had six percent right ring finger impairment, and that the date of MMI was March 16,
2017, the date of Dr. Scott’s examination on which the impairment rating was based.4
By decision dated June 6, 2018, OWCP granted appellant a schedule award for six percent
impairment of the right ring finger, fourth digit. The date of MMI was noted as March 16, 2017.
The award ran for 0.9 weeks, from March 16, to 22, 2017 and appellant was compensated at the
662⁄3 basic rate, based on her date-of-injury pay rate.
On June 12, 2018 appellant, through counsel, requested a hearing before an OWCP hearing
representative. She submitted a New York State certificate of marriage registration, noting that
she was married on September 3, 2017.

3

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

4

The DMA noted that Dr. Scott described full ROM of all finger joints.

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At the hearing, held on November 14, 2018, counsel advised that appellant was not
objecting to the percentage of the schedule award, but that she should have been compensated at
the augmented, 75 percent, rate. He maintained that, since appellant married in 2017 and the
schedule award was issued in 2018, the augmented rate should apply.
By decision dated January 17, 2019, an OWCP hearing representative noted that appellant
did not disagree with the percentage of the schedule award, but asserted that she was entitled to be
compensated at the augmented rate. The hearing representative noted that the period of the
schedule award was March 16 to 22, 2017 and appellant married on September 3, 2017. The
hearing representative therefore affirmed the June 6, 2018 decision as appellant was not entitled
to augmented compensation during the period of the schedule award.
LEGAL PRECEDENT
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from personal injury sustained while in the performance of his duty.5 If the
disability is total, the United States shall pay the employee during the disability monthly monetary
compensation equal to 662⁄3 percent of his or her monthly pay, which is known as basic
compensation for total disability.6 Under section 8110 of FECA, an employee is entitled to
compensation at the augmented rate of three-quarters of his or her weekly pay if he or she has one
or more dependents.7 Section 10.405 of OWCP’s regulations provides that dependents include a
wife or husband.8
OWCP’s regulations at 20 C.F.R. § 10.404(c) provide that compensation for schedule
awards is payable at 662⁄3 percent of the employee’s pay, or 75 percent of the pay when the
employee has at least one dependent.9 It is well established that the period during which a schedule
award is payable commences on the date that the employee reaches MMI from the residuals of the
accepted employment injury.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her June 6,
2018 schedule award should have been paid at an augmented compensation rate.
Appellant did not challenge OWCP’s finding of six percent permanent impairment of the
right ring finger. Rather, she disagreed with the compensation rate, asserting that she was entitled
5

5 U.S.C. § 8102(a).

6

Id. at § 8105(a).

7

Id. at § 8110.

8

20 C.F.R. § 10.405.

9

Id. at § 10.404(c).

10
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.100(2)(c) (January 2010); see
also R.M., Docket No. 18-1313 (issued April 11, 2019); C.J., Docket No. 08-2429 (issued August 3, 2009).

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to an augmented compensation rate based on a qualified dependent because she was married at the
time the schedule award was issued on June 6, 2018.
The record indicates that appellant married on September 3, 2017. However, the schedule
award was payable as of the date of MMI. The date of MMI was March 16, 2017 and the period
of the award ran from March 16 to 22, 2017. OWCP’s hearing representative correctly concluded
that compensation rate for augmented compensation was determined as of the date of MMI.11
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 that her June 6,
2018 schedule award should have been paid at an augmented compensation rate.
ORDER
IT IS HEREBY ORDERED THAT the January 17, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 24, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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Id.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.P., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Knox, KY, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 10-1593
Issued: June 8, 2011

Oral Argument May 10, 2011

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On May 27, 2010 appellant filed a timely appeal from an April 23, 2010 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 arthritis or other conditions causally
related to factors of his federal employment.
FACTUAL HISTORY
On June 16, 2009 appellant, then a 48-year-old materials handler, filed an occupational
disease claim (Form CA-2) alleging that he sustained “arthritis in neck, shoulders, hands, knees,
constant pain, loss of strength, constant pain in feet.”2 He noted currently working in a light1

5 U.S.C. § 8101 et seq.

2

Appellant also noted hearing loss, which was developed separately and is not before the Board on this appeal.

duty position.3 Appellant submitted a September 24, 2009 statement identifying “heavy lifting,
pushing, bending, kneeling, squatting to fix all different types of vehicles” as employment
factors contributing to his condition. He noticed back and neck pain approximately five years
earlier, with his shoulders, feet, knees and hands slowly getting worse over the last two years.
In a report dated May 17, 2006, Dr. Ajith Nair, a pain specialist, provided a history of an
undated incident where appellant was lifting a box weighing 150 pounds and heard his back
“popped.” Appellant stated that his back pain was aggravated by bending, climbing stairs,
coughing, lying down and with prolonged sitting or standing. Dr. Nair provided results on
examination and diagnosed internal disruption of L4-5 and L5-S1 discs, lumbar facet syndrome,
cervicalgia and cervical facet syndrome. In a report dated October 11, 2007, he noted that
appellant received a lumbar epidural steroid injection and a right knee joint injection.
The record contains a February 12, 2009 report from Dr. Russell McKinley, a podiatrist,
who provided a history of plantar fascia pain for approximately one and one half years.
Dr. McKinley provided results on examination and diagnosed plantar fasciitis. Appellant also
received treatment on March 5 and April 2, 2009 from Dr. McKinley for plantar fasciitis.
In a report dated April 28, 2009, Dr. Mladen Djurasovic, an orthopedic surgeon, noted in
his history a lumbar work-related injury in 2003.4 He provided results on examination and
diagnosed lumbar degenerative disc disease with right radiculopathy. In a May 29, 2009 fitnessfor-duty report, the employing establishment physician, Dr. Robert Pero, found appellant could
work in a sedentary position.
The record contains medical form reports, SF 600, chronological record of medical care,
from the employing establishment health unit for the period 2007 to 2009, many prepared by a
nurse or nurse practitioner. In a report dated October 24, 2008, Dr. Martin Setter diagnosed
plantar fasciitis. By report dated October 22, 2008, Dr. Robert Egbert diagnosed cervicalgia and
intervertebral disc degeneration. In a report dated September 26, 2008, a Dr. Tammy Ray noted
shoulder joint pain and knee osteoarthritis.
In a decision dated January 11, 2010, OWCP denied the claim for compensation. It
found the medical evidence was insufficient to establish the claim.
On February 24, 2010 appellant requested reconsideration of his claim. He submitted a
February 18, 2010 report signed by Dr. William Welch, an employing establishment physician.5
Appellant had multiple medical problems, including chronic low back pain, neck, shoulder,
bilateral hand and foot pain. Dr. Welch stated that appellant had worked on track vehicles since
1978 in military and civilian jobs performing heavy lifting with hand pain since a 1995 work3

In a September 24, 2009 statement, received by OWCP on September 28, 2009, appellant indicated that he was
currently on leave “pending a medical disability decision.”
4

OWCP indicated that it had no record of a claim for a 2003 back injury. Appellant’s September 24, 2009
statement reported that he worked in private employment as a truck driver from 2002 to 2004.
5

The report was prepared and signed by a nurse practitioner, and Dr. Welch stated that he had read and agreed
with the statements.

2

related crush injury, and noted a 2003 compression fracture in the low back. The report
concluded that while the exact cause of appellant’s pain could not be determined “heavy lifting
and multiple injuries” had contributed to his conditions.
By decision dated April 23, 2010, OWCP reviewed the case on its merits. It denied
modification, finding the medical evidence was insufficient to establish the claim.
LEGAL PRECEDENT
A claimant seeking benefits under FECA6 has the burden of establishing the essential
elements of his claim by the weight of the reliable, probative and substantial evidence, including
that an injury was sustained in the performance of duty as alleged and that any specific condition
or disability claimed is causally related to the employment injury.7
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.8
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.9 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.10
Additionally, in order to be considered rationalized, the 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 factors.11
ANALYSIS
Appellant identified employment factors he believed contributed to his condition. He
noted heavy lifting, pushing, bending, kneeling and squatting in his federal employment. With
respect to the diagnosed conditions, the medical evidence plantar fasciitis, a degenerative lumbar
disc disease, cervicalgia and knee osteoarthritis.

6

5 U.S.C. §§ 8101-8193.

7

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

8

Ruby I. Fish, 46 ECAB 276, 279 (1994).

9

See Robert G. Morris, 48 ECAB 238 (1996).

10

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

Id.

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It is appellant’s burden of proof to submit medical evidence that establishes the causal
relationship between a diagnosed condition and the identified employment factors. The medical
opinion on causal relationship does not have to be one of absolute certainty, but it must be one of
reasonable medical certainty and not speculative or equivocal in nature.12 As noted, the opinion
of the physician must be based on a complete and accurate factual and medical background and
accompanied by medical rationale that explains the nature of the relationship between a
diagnosed condition and the employment factors. The Board reviews a medical report for “its
reliability, its convincing quality, the care of analysis manifested and the medical rationale
expressed.”13
The medical evidence of record is not of sufficient probative value to meet appellant’s
burden of proof on the issue of causal relationship between any diagnosed condition and the
identified employment factors. A report from a nurse or nurse practitioner is of no probative
value, as they are not physicians as defined under FECA.14 The form reports from the employing
establishment health unit that were prepared by physicians do not provide a complete factual and
medical history, or an opinion on causal relationship between any diagnosed condition and
appellant’s employment.
Appellant has worked in military, private and federal civilian employment. It is
particularly important in this case to have an accurate factual and medical history, discussing the
identified employment duties as well as prior injuries. Dr. McKinley treated appellant for plantar
fasciitis, but did not provide a complete history or discuss the employment factors implicated in
this case as a materials handler. Dr. Nair, who treated appellant for low back and knee pain,
referred to an undated lifting incident without further explanation. Neither of the physicians
provided any opinion on causal relationship between the diagnosed conditions and appellant’s
federal employment factors.
In a February 18, 2010 report, Dr. Welch briefly referred to “heavy lifting” as a cause of
pain in appellant’s multiple medical problems.15 He did not provide a complete history or any
additional detail regarding the lifting incident. The report referred to a 2003 back injury, which
apparently occurred in private employment. There is also little detail regarding the specific
diagnosed conditions, other than a general reference to pain and multiple medical problems.
Dr. Welch’s opinion on causal relationship is not supported by medical rationale or any
explanation regarding the employment factors.
The Board finds that the medical evidence of record is of diminished probative value to
the issue presented. Appellant did not meet his burden of proof in this case. It is noted that
appellant may submit new evidence or argument with a written request for reconsideration to the
12

W.W., Docket No. 09-1619 (issued June 2, 2010).

13

C.M., Docket No. 10-1700 (issued April 22, 2011).

14

Nurses and nurse practitioners are not physicians under FECA and are not competent to render a medical
opinion. See Vincent Holmes, 53 ECAB 468 (2002); F.H., Docket No. 10-1359 (issued April 18, 2011).
15

Although this report was prepared by a nurse practitioner, it was signed by Dr. Welch and as such is considered
medical evidence from a physician under FECA. See L.B., Docket No. 09-1989 (issued April 9, 2010).

4

Office 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 the evidence is not sufficient to establish an injury causally related
to the identified employment factors.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 23 and January 11, 2010 are affirmed.
Issued: June 8, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1230
Issued: May 3, 2018

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 May 15, 2017 appellant, through counsel, filed a timely appeal from an April 6, 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.
ISSUE
The issue is whether appellant met his burden of proof to establish cervical spondylosis
with myelopathy causally related to the accepted November 16, 2015 employment injury.

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.

FACTUAL HISTORY
On November 19, 2015 appellant, then a 61-year-old letter carrier, filed a traumatic injury
claim (Form CA-1), alleging that, on November 16, 2015, he was carrying two bundles of mail,
tripped on a step, and fell, injuring his forehead and head. He claimed a closed head injury and a
traumatic hematoma of the forehead. Appellant stopped work on November 16, 2015. The initial
medical record provided was a November 16, 2015 physician assistant’s note indicating that
appellant would be off work until his condition improved.
By letter dated December 3, 2015, OWCP advised appellant that his claim was originally
received as a simple, uncontroverted case which resulted in minimal or no time lost from work.
The claim was administratively handled to allow payment for limited medical expenses, but the
merits of the claim had not been formally adjudicated. OWCP advised that, because he had not
returned to full-time work, his claim would be formally adjudicated. It requested that appellant
submit additional factual and medical information including a comprehensive medical report from
his physician regarding how specific work incidents contributed to his claimed injury.
Appellant provided a December 3, 2015 report from Dr. Stephen A. Kulick, a Boardcertified neurologist, who first saw appellant in 2011 for neck pain and hand numbness which he
was noted to have had for years. A cervical spine magnetic resonance imaging (MRI) scan
revealed cervical spondylitic spurring and spinal cord compression with myelomalacia. Dr. Kulick
indicated that a neurosurgeon had recommended a cervical fusion and anterior discectomy, but
appellant did not have the surgery. He indicated that appellant had several falls in 2013 and 2015.
Appellant related that, while working as a letter carrier on November 16, 2015, he struck his right
frontal region and sustained a right periorbital hematoma and a right scalp hematoma. He reported
headaches, dizziness, some depression, insomnia, and loss of appetite. Dr. Kulick noted findings
of a healing right supraorbital hematoma, right infraorbital periorbital hematoma, ecchymosis, an
old scar over the left frontal region, normal motor examination in the arms and legs, brisk reflexes,
positive Hoffmann’s bilaterally, hyperactive knee jerks, and defective vibratory perception in both
legs below the knees. He diagnosed cervical spinal cord compression secondary to cervical
spondylitic disease. Dr. Kulick recommended further testing and evaluation. He advised that
appellant should not work as a letter carrier.
On December 30, 2015 appellant was treated by Dr. Philip W. Kramer, a Board-certified
ophthalmologist, for a right eye injury. He reported that while delivering mail he tripped and fell
hitting a step and sustaining head trauma, hematoma, and a right eye injury. Dr. Kramer diagnosed
ptosis of the right eye.
In a January 5, 2016 attending physician’s report (Form CA-20), Dr. Kulick noted a history
of progressively worsening falls. On November 16, 2015 while working as a letter carrier,
appellant fell striking his head. Dr. Kulick diagnosed cervical spondylosis with myelopathy and
intracranial injury. He checked a box marked “yes” indicating that appellant’s condition was
caused or aggravated by his work. Dr. Kulick noted that appellant was totally disabled for work
commencing November 16, 2015. A January 2, 2016 MRI scan of his brain revealed ventricular,
sulcal, and cisternal dilatation of a mild-to-moderate degree at the upper limits of normal, no
intracranial hemorrhage or susceptibility signal intracranially, and a susceptibility signal within
the scalp overlying the left frontal bone of uncertain etiology.

2

By decision dated January 15, 2016, OWCP accepted appellant’s claim for laceration
above the right eye and forehead hematoma.3 By separate January 15, 2016 decision, it denied
appellant’s claim for cervical spondylosis with myelopathy.
Appellant continued to submit evidence in support of his traumatic injury claim. On
November 16, 2015 he was seen in an emergency room by Dr. Aleksandr Ilyayev, Board-certified
in emergency medicine, for a head injury. Appellant reported that he tripped and fell at work and
hit his forehead on concrete. Dr. Ilyayev noted findings of superficial abrasion, hematoma to the
right periorbital area with no focal neurological deficits. A November 16, 2015 computerized
tomography (CT) scan of the head revealed a large scalp hematoma overlying the right forehead,
no fracture, intracranial hemorrhage, or acute infarction, and age-related parenchymal volume loss.
Dr. Ilyayev diagnosed closed head injury without concussion and discharged appellant.
A December 19, 2015 cervical spine MRI scan revealed a diffuse annular bulge slightly
flattening the thecal sac at C2-3, diffuse osteophyte ridge associated with the degenerative
retrolisthesis of C3 on C4 that compressed the thecal sac and spinal cord, possible myelomalacia,
an osteophyte ridge compressing the spinal cord in the midline to a severe degree at C4-5, and a
diffuse osteophyte ridge transversed the interspinous space encroaching the intervertebral
foramina bilaterally at C5-6. All findings were unchanged from a prior study.
Appellant submitted a January 6, 2016 report from Dr. Kulick who treated him for
symptoms related to cervical spinal cord compression secondary to cervical spondylitic disease
and several traumatic brain injuries from falling. Dr. Kulick summarized the diagnostic testing.
He noted findings on examination of deep tendon reflexes were brisk in the arms, positive
Hoffmann’s bilaterally in the legs, hyperactive knee jerks, and defective vibratory perception in
the legs. Dr. Kulick diagnosed cervical spinal cord compression secondary to cervical spondylitic
disease and several traumatic brain injuries precipitated by multiple falls. He recommended that
appellant follow-up with neurosurgery.4
Appellant was treated by Dr. John Shiau, a Board-certified neurosurgeon, on January 11,
2016 for headaches, dizziness, unsteady gait, memory loss, weakness, and radiating pain from the
cervical spine to the left arm. Dr. Shiau reported two major falls resulting in genetic brain injuries
and experiencing progressive decline in gait and arm strength. He noted findings on examination
of an unsteady gait, positive Hoffmann’s sign bilaterally, generalized weakness in the upper
extremities, and positive Tinel’s sign on the right. Dr. Shiau diagnosed spinal stenosis of the
cervical region, disease of the spinal cord, unspecified and unsteadiness on the feet. He
recommended posterior cervical decompression surgery at C3-4, C4-5, and C5-6.
In January 16 to December 12, 2016 reports, Dr. Reuven Weiss, a clinical psychologist,
saw appellant for memory problems after 2013 and 2015 head traumas. On November 16, 2015
while working, appellant fell and struck his right frontal region sustaining a right periorbital
hematoma and a right scalp hematoma. Dr. Weiss diagnosed unspecified mental disorder due to
3

Appellant received continuation of pay from November 17 to December 31, 2015.

4
A January 5, 2016 electromyogram (EMG) revealed evidence of neuropathic dysfunction in the left C5-7 and
right C5-6 nerve root distributions and bilateral carpal tunnel syndrome. An electroencephalography (EEG) report
dated January 5, 2016 revealed an abnormal awake and drowsy EEG because of mild diffuse background slowing,
indicative of mild diffuse cerebral dysfunction of nonspecific etiology.

3

physiological condition, and intracranial injury with loss of consciousness of unspecified duration.
Neurocognitive evaluation revealed cognitive impairments related to memory and processing
speed. Findings included a notable decline in overall intellectual functioning, auditory and visual
attention span deficits, and a high level of mood symptoms.
In a report dated February 10, 2016, Dr. Kulick treated appellant for continuing dementia
which developed since his head injuries, traumatic brain injury, and cerebral concussion secondary
to falling related to his cervical myelopathy. He noted that appellant was undergoing testing by a
neuropsychologist to see the nature and extent of the dementia.
In an undated statement, appellant’s spouse indicated that due to appellant’s cervical spine
injury he was unable to work as a letter carrier after 36 years of service. She noted that appellant
had two traumatic head injuries in two years that caused his inability to function normally.
Appellant also submitted physical therapy reports.
On January 5, 2017 appellant, through counsel, requested reconsideration and submitted
reports from Drs. Kulick and Shiau. Counsel asserted that the medical reports contained a
complete description of the work incident and a detailed description of findings along with positive
results of objective diagnostic testing. He further asserted that the reports contain unequivocal
opinions with rationale supporting that the conditions described were causally related to the work
incident and requested that the claim be expanded to include all medical conditions.
In a September 8, 2016 report, Dr. Kulick noted treating appellant on February 28, 2011
for neck pain, numbness in his arms and hands, and weakness. X-rays showed severe cervical
spondylitic changes at multiple levels with neuroforaminal encroachment at multiple levels.
Dr. Kulick diagnosed cervical radiculopathy secondary to cervical spondylitic spurring and disc
protrusion. He noted that appellant was seen by Dr. Shiau on March 21, 2011 for neurosurgical
consultation who recommended a C4 corpectomy and anterior cervical discectomy and fusion at
C3-4, C4-5, and C5-6. Dr. Kulick noted that appellant was treated on December 3, 2015 and
reported that he had had several falls in 2013 and 2015. Appellant reported falling on
November 16, 2015, and striking his right frontal region and sustained a right periorbital
hematoma and a right scalp hematoma. Dr. Kulick diagnosed cervical spinal cord compression
secondary to cervical spondylitic disease and several traumatic brain injuries due to falling. He
noted that appellant underwent a C4-5 and C5-6 decompressive laminectomy on February 24,
2016 performed by Dr. Shiau and did well postoperatively.
Appellant underwent
neuropsychological testing which showed extensive cognitive weaknesses. Dr. Kulick indicated
that appellant’s falling, weakness in his extremities, and instability were related to moderate-tosevere cervical spinal cord compression secondary to cervical spondylosis. He opined that each
of the falls produced traumatic brain injury in 2013 and 2015 which accentuated the
neuropsychological abnormalities. Dr. Kulick advised that, based on his examination and the
abnormalities noted on the EMG, EEG, the neuropsychological testing and the MRI scans,
appellant was totally disabled and incapacitated from any work.
Appellant submitted a September 29, 2016 report from Dr. Shiau who saw appellant for
memory loss, difficulty with concentration, and unsteady gait. Dr. Shiau noted a history of
treatment beginning on March 21, 2011 for left arm weakness, left leg give away, and chronic neck
pain. He noted diffuse degenerative changes and spondylotic disease at C3-6, spinal stenosis,
spondylolisthesis, and myelomalacia. Appellant declined surgery. He presented on January 11,
4

2016 and reported having several falls in 2013 and 2015. Appellant noted findings of
myeloradiculopathy, generalized weakness in the arms, unsteady gait, inability to heel-to-toe walk
without falling, hyperreflexivity, and positive Hoffmann’s signs bilaterally. Dr. Shiau diagnosed
spinal stenosis, cervical region, and unspecified disease of the spinal cord. On February 2, 2016
he performed a posterior C3-6 decompressive laminectomies with posterior fixation and fusion.
On May 2, 2016 appellant has improved gait, minimal back pain, and no radiculopathy. Dr. Shiau
opined that appellant had a baseline cervical spondylosis that resulted in progressive
myeloradiculopathy and gait imbalance. He further opined that appellant’s most recent workrelated fall in November 16, 2015 resulted in post-traumatic brain injury and accelerated his
myelopathic dysfunction. Dr. Shiau noted that appellant was completely disabled from work
because of residual myelopathy and post-traumatic brain injury.
On January 11, 2017 counsel submitted a supplement to the reconsideration request and
provided a report from Dr. Rosemarie Basile, a clinical neuropsychologist. In a December 12,
2016 report, Dr. Basile noted that appellant had two traumatic brain injuries in the past three years,
in 2013 and November 2015. Appellant reported that his second traumatic head injury occurred
in November 2015 when he was delivering mail. He indicated that he was climbing steps when
his foot hit a step and he fell striking his head on the step. Since that time appellant exhibited
symptoms of global decline. Dr. Basile advised that individuals with moderate-to-severe brain
injuries exhibit overall cognitive impairment. She performed neuropsychological evaluation
which indicated that appellant’s overall intellectual functioning resulted in a notable decline as
compared to his estimated premorbid functioning. Dr. Basile noted that he had a lower threshold
for cognitively taxing tasks, his verbal reasoning skills were relatively intact, and he experienced
mild anomic aphasia. She also advised that appellant displayed deficits in auditory and visual
attention span, he had significant decline in overall auditory and visual memory recall, deficits in
safety awareness and judgement skills, and a high level of mood symptoms.
By decision dated April 6, 2017, OWCP denied modification of its January 15, 2016
decision regarding cervical spondylosis with myelopathy.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 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 filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that
any disability or specific condition for which compensation is claimed is causally related to the
employment injury. 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.6
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
5

Supra note 2.

6

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

5

time, place, and in the manner alleged. Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.7
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, 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.8
ANALYSIS
Appellant alleged that he sustained an injury on November 16, 2015 when he tripped on a
step and fell while carrying two bundles of mail. OWCP found that the incident occurred on
November 16, 2015 as alleged and that it resulted in the accepted laceration above the right eye
and forehead hematoma. However, it also found that appellant had not established that the
employment incident caused cervical spondylosis with myelopathy causally related to the
November 16, 2015 employment injury.
The Board finds that the medical evidence of record is insufficient to establish additional
conditions causally related to the November 16, 2015 employment incident. Appellant submitted
December 3, 2015 to February 10, 2016 reports from Dr. Kulick who noted originally treating
appellant in 2011 for chronic neck pain with arm numbness. He noted that a 2011 cervical spine
MRI scan showed spondylitic spurring and spinal cord compression with myelomalacia. Appellant
presented on December 3, 2015 after falls in 2013 and 2015. He reported the November 16, 2015
work fall where appellant struck his right frontal region and sustained a right periorbital hematoma
and a right scalp hematoma. Dr. Kulick diagnosed cervical spinal cord compression secondary to
cervical spondylitic disease and indicated that appellant had several traumatic brain injuries due to
falling secondary to cervical myelopathy. Although he supported causal relationship, he did not
provide sufficient medical rationale explaining the basis of his conclusory opinion that appellant’s
additional conditions were due to the November 16, 2015 incident.9 Dr. Kulick did not explain
the process by which the November 16, 2015 fall would have caused or aggravated the diagnosed
condition and why such condition would not have been due to any nonwork factors.10 Medical
rationale was particularly necessary given that appellant has a preexisting cervical spondylitic
spurring and spinal cord compression as noted in the 2011 MRI scan. As the opinion of appellant’s

7

T.H., 59 ECAB 388 (2008).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

9

See T.M., Docket No. 08-0975 (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).
10

Id.

6

physician regarding causal relationship was not sufficiently explained, it was insufficient to meet
appellant’s burden of proof.11
In a September 8, 2016 report, Dr. Kulick noted appellant’s history including his falls in
2013 and 2015, most recently on November 16, 2015, in which he struck his right frontal region
and sustained a right periorbital hematoma. He diagnosed cervical spinal cord compression
secondary to cervical spondylitic disease and several traumatic brain injuries due to falling.
Dr. Kulick indicated that appellant’s falling and weakness in his extremities and instability were
related to moderate-to-severe cervical spinal cord compression secondary to cervical spondylosis.
He opined that each of the falls produced traumatic brain injury in 2013 and 2015 which
accentuated the neuropsychological abnormalities. Dr. Kulick advised that based on his
examination and the abnormalities noted on diagnostic and neuropsychological testing that
appellant was totally disabled and incapacitated for any work. As noted above, although
Dr. Kulick supported causal relationship, he did not provide sufficient medical rationale explaining
the basis of his conclusory opinion that appellant’s cervical spondylosis with myelopathy were due
to the November 16, 2015 accepted work injury.12 Medical rationale was particularly necessary
given that appellant has a preexisting cervical spondylitic spurring and spinal cord compression.13
Appellant also submitted a January 5, 2016 attending physician’s report from Dr. Kulick
which noted appellant’s history and diagnosed cervical spondylosis with myelopathy and
intracranial injury. Dr. Kulick checked a box marked “yes” indicating that appellant’s condition
was caused or aggravated by an employment activity, noting appellant fell due to poor lighting.
The Board has held that when a physician’s opinion on causal relationship which consists only of
checking “yes” to a form question, without explanation or rationale, is of diminished probative
value and is insufficient to establish a claim.14
Appellant submitted January 11 and September 29, 2016 reports from Dr. Shiau in which
he reviewed appellant’s history and noted findings. Dr. Shiau diagnosed spinal stenosis, cervical
region and unspecified disease of the spinal cord. On February 2, 2016 he performed a posterior
C3-6 decompressive laminectomies with posterior fixation and fusion. On May 2, 2016 Dr. Shiau
opined that appellant had a baseline cervical spondylosis that resulted in progressive
myeloradiculopathy and gait imbalance. He further opined that appellant’s most recent workrelated fall in November 16, 2015 resulted in post-traumatic brain injury and accelerated his
myelopathic dysfunction. Dr. Shiau noted that appellant was completely disabled. The Board
finds that, although Dr. Shiau supported causal relationship, he did not provide medical rationale
explaining the basis of his opinion that appellant’s cervical spondylosis with myelopathy were due
to the November 16, 2015 accepted work incident.15 Dr. Shiau did not explain the process by
11

J.M., 58 ECAB 478 (2007) (the Board found that appellant had not met his burden of proof to establish a workrelated right wrist condition where his physician provided only conclusory support for causal relationship; medical
rationale was particularly necessary as appellant had a preexisting wrist injury).
12

See T.M., supra note 9.

13

See J.M., supra note 11.

14

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

15

See T.M., supra note 9.

7

which the November 16, 2015 fall would have caused or aggravated the diagnosed condition and
why such condition would not have been due to any nonwork factors. As noted, the need for
medical rationale is particularly important in view of appellant’s preexisting cervical
spondylosis.16 Consequently, Dr. Shiau’s opinion is insufficient to meet appellant’s burden of
proof.
In a December 12, 2016 report, Dr. Basile noted that appellant had two traumatic brain
injuries in the past three years and had since exhibited symptoms of global decline. She noted that
he had a lower threshold for cognitively taxing tasks, he experienced mild anomic aphasia, he
displayed deficits in auditory and visual attention span, he had significant decline in overall
auditory and visual memory recall, and deficits in safety awareness and judgement skills.
However, Dr. Basile’s opinion is of limited probative values as she did not provide a rationalized
opinion explaining how or why the November 16, 2015 work injury caused or contributed to a
diagnosed condition.17
Appellant submitted emergency room notes from Dr. Ilyayev dated November 16, 2015
who treated him for a head injury. Dr. Ilyayev reported that appellant accidentally tripped and fell
at work, hitting his forehead on the concrete. He noted findings of superficial abrasion and
hematoma to the right periorbital area. Dr. Ilyayev diagnosed closed head injury without
concussion. These notes are insufficient to establish appellant’s claim as Dr. Ilyayev did not
address whether the November 16, 2015 employment-related fall had caused or aggravated the
diagnosed cervical spondylosis with myelopathy.18 Likewise, reports from other physicians are of
limited probative value as they did not specifically address whether the November 16, 2015
employment-related fall had caused or aggravated the claimed condition.19
Also of record are physical therapy and physician assistant notes. The Board has held that
document notes signed by a physician assistant or a physical therapist lack probative value as
physician assistants and a physical therapists are not considered physicians under FECA.20 These
records are, therefore, insufficient to establish appellant’s claim.
On appeal counsel asserts that OWCP erred in its April 6, 2017 merit decision. He argued
that appellant submitted sufficient evidence to establish additional conditions related to the
November 16, 2015 employment injury. As found above, the medical evidence of record does not
establish additional medical conditions causally related to the November 16, 2015 employment
16

See J.M., supra note 11.

17

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not fortified
by medical rationale is of little probative value).
18

A.D., 58 ECAB 149 (2006); 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).
19

Id.

20
See 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).

8

injury. Appellant has not submitted a physician’s opinion which sufficiently describes how the
November 16, 2015 employment injury caused or aggravated additional conditions.
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 of proof to establish cervical
spondylosis with myelopathy causally related to the accepted November 16, 2015 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the April 6, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 3, 2018
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Norwalk, CT, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-2073
Issued: May 5, 2011

Case Submitted on the Record

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

JURISDICTION
On August 3, 2010 appellant filed a timely appeal from the July 14, 2010 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 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 greater than one percent impairment of the left upper
extremity.
FACTUAL HISTORY
Appellant, then a 39-year-old letter carrier, has an accepted occupational disease claim
for left radial styloid tenosynovitis (de Quervain’s disease), which arose on or about

1

5 U.S.C. §§ 8101-8193.

June 1, 2006.2 He underwent surgical release of the left first dorsal compartment on
February 7, 2007.3 Approximately one year following surgery, appellant filed a claim for a
schedule award. He submitted a March 18, 2008 impairment rating from Dr. Edward M. Staub,
a Board-certified orthopedic surgeon, who found five percent impairment of the left wrist.4
However, other than noting some residual soreness in appellant’s wrist, Dr. Staub did not clearly
identify the basis for his impairment rating. After several unsuccessful attempts to obtain
clarification, the Office referred appellant to Dr. Ira L. Spar, a Board-certified orthopedic
surgeon. In an October 21, 2008 report, Dr. Spar indicated that “one cannot award any
permanency on the basis of objective findings.”5 Upon reviewing Dr. Spar’s report, the district
medical adviser found there was no ratable impairment.
By decision dated October 8, 2009, the Office denied appellant’s claim for a schedule
award. However, the Branch of Hearings and Review subsequently set aside the October 8, 2009
decision, and remanded the case for further medical development. In a decision dated April 14,
2010, the hearing representative noted, inter alia, that Dr. Spar relied on the fifth edition of the
A.M.A., Guides (2001), which was no longer in effect at the time the Office issued its October 8,
2009 decision.6 Appellant had also submitted a recent impairment rating from Dr. Thomas P.
Moran, a Board-certified orthopedic surgeon, who found three percent impairment of the left
upper extremity under the sixth edition of the A.M.A., Guides (6th ed. 2008). Dr. Moran’s
January 15, 2010 report did not include a clear explanation of how he arrived at his three percent
rating under the A.M.A., Guides.7 Consequently, the hearing representative remanded the case
for further medical development.
On remand, the Office referred appellant to Dr. Balazs B. Somogyi, a Board-certified
orthopedic surgeon, who examined appellant on June 21, 2010. In a report dated June 23, 2010,
Dr. Somogyi found one percent impairment of left upper extremity due to left wrist tendinitis.
He applied the sixth edition of the A.M.A., Guides and noted that appellant reached MMI on
April 6, 2007. Appellant’s subjective complaints included persistent pain in the left wrist region
and difficulty with range of motion of the thumb, including “locking of the thumb.” On physical
examination, the left wrist revealed full range of motion. There was no limitation of flexion or
extension and no indication of radial or ulnar deviation. Appellant’s left thumb revealed full
2

Appellant also filed an occupational disease claim for bilateral carpal tunnel syndrome that allegedly arose on or
about December 15, 2008. The Office has denied the claim and it is currently pending review by the Board (Docket
No. 10-2011).
3

Appellant resumed his regular duties on April 10, 2007.

4

Dr. Staub indicated that appellant reached maximum medical improvement (MMI) on April 6, 2007.

5

Dr. Staub referenced the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (2001).
6

As of May 1, 2009, schedule awards are determined in accordance with the A.M.A., Guides (6th ed. 2008).
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Example 1 (January 2010).
7

When he examined appellant on January 15, 2010, Dr. Moran diagnosed advanced cubital tunnel syndrome and
mild carpal tunnel syndrome. In a supplemental report dated April 21, 2010, he indicated that appellant had three
percent left upper extremity impairment due to peripheral nerve impairment involving the ulnar nerve (above midforearm). Dr. Moran referenced Table 15-21, A.M.A., Guides 443 (6th ed. 2008).

2

extension with limitation of flexion. Dr. Somogyi indicated that it was difficult to determine if
appellant provided optimal effort during the evaluation. Tinel’s sign and Phalen’s test revealed
no evidence of abnormalities. Finkelstein’s sign was negative. Dr. Somogyi also noted there
was no instability of the wrist or left thumb. Neurological examination revealed normal motor,
sensory and deep tendon reflexes. Lastly, Dr. Somogyi noted that appellant’s left wrist was
negative, and a December 23, 2009 electromyography and nerve conduction study revealed
moderate to severe left cubital tunnel syndrome and mild bilateral carpal tunnel syndrome.
On July 5, 2010 the district medical adviser, Dr. David I. Krohn, reviewed Dr. Somogyi’s
report and concurred with the finding of one percent impairment of the left upper extremity.8
By decision dated July 14, 2010, the Office granted a schedule award for one percent
impairment of the left upper extremity. The award covered a period of 3.12 weeks from April 10
to May 1, 2007.
LEGAL PRECEDENT
Section 8107 of the Act sets forth the number of weeks of compensation to be paid for
the permanent loss of use of specified members, functions and organs of the body.9 The Act,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.10 Effective May 1, 2009, schedule awards are determined in
accordance with the A.M.A., Guides (6th ed. 2008).11
ANALYSIS
Under the sixth edition of the A.M.A., Guides, impairments of the upper extremities are
covered by Chapter 15. Section 15-2, entitled Diagnosis-Based Impairment, indicates that
“diagnosis-based impairment is the primary method of evaluation of the upper limb.”12 The
initial step in the evaluation process is to identify the impairment class by using the
corresponding diagnosis-based regional grid. Dr. Somogyi utilized the “Wrist Regional Grid,”
Table 15-3, A.M.A., Guides 395, and identified a class 1 impairment based on “wrist
sprain/strain,” which includes de Quervain’s disease. Once the impairment class has been
determined based on the diagnosis, the grade is initially assigned the default value, “C.” Under

8

Dr. Krohn is a Board-certified internist.

9

For a total loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

10

20 C.F.R. § 10.404.

11

Supra note 6.

12

Section 15.2, A.M.A., Guides 387.

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Table 15-3, the default grade, C, for a class 1 wrist sprain/strain is one percent upper extremity
impairment.13 Dr. Somogyi appropriately identified one percent impairment as the default value.
After determining the impairment class and default grade, the next step in the process is
to determine if there are any applicable grade adjustments for so-called “nonkey” factors or
modifiers. These include adjustments for functional history (GMFH), physical examination
(GMPE) and clinical studies (GMCS). The grade modifiers are used in the Net Adjustment
Formula to calculate a net adjustment.14 The final impairment grade is determined by adjusting
the grade up or down from the default value C by the calculated net adjustment.
Dr. Somogyi identified two modifiers: one based on GMFH and the other based on
GMPE. He assigned a grade modifier of one for both functional history and physical
examination.15 Applying the net adjustment formula resulted in no adjustment from the default
grade of C or one percent impairment of the upper extremity.16
The Board finds that Dr. Somogyi’s June 23, 2010 impairment rating conforms to the
A.M.A., Guides (6th ed. 2008), and thus, represents the weight of the medical evidence regarding
the extent of appellant’s left upper extremity impairment. Appellant has not submitted any
credible medical evidence indicating he has greater than one percent impairment of the left upper
extremity. Although Dr. Moran provided a three percent rating for peripheral nerve impairment,
the current claim has not been accepted for an entrapment neuropathy such as cubital tunnel
syndrome or carpal tunnel syndrome. Moreover, he did not indicate that appellant’s impairment
of the ulnar nerve was causally related to his preexisting radial styloid tenosynovitis
(de Quervain’s disease).
CONCLUSION
Appellant has not established that he has greater than one percent impairment of the left
upper extremity.

13

The grades range from A to E, with A representing zero percent upper extremity impairment, B and C
representing one percent and D and E representing two percent upper extremity impairment. Table 15-3, A.M.A.,
Guides 395.
14

Net Adjustment = (GMFH – CDX) + (GMPE – CDX) + (GMCS – CDX). Section 15.3d, A.M.A., Guides 411.

15

Table 15-7, A.M.A., Guides 406; Table 15-8, A.M.A., Guides 408.

16

Table 15-3, A.M.A., Guides 395.

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ORDER
IT IS HEREBY ORDERED THAT the July 14, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 5, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
McLouth, KS, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1047
Issued: November 13, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 10, 2019 appellant filed a timely appeal from an April 2, 2019 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 met her burden of proof to establish an emotional
condition in the performance of duty on January 29, 2019 as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 2, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On February 14, 2019 appellant, then a 50-year-old sales services distribution associate,
filed a traumatic injury claim (Form CA-1) alleging that on January 29, 2019 she developed
anxiety after receiving a telephone call regarding the return of a postmaster, who she alleged had
assaulted a letter carrier. She stated that she was afraid to go to work as she would be required to
work alone with this postmaster. A witness, K.K., indicated on the claim form that she had made
the telephone call to appellant. Appellant stopped work on January 30, 2019. On the reverse side
of the claim form, the employing establishment controverted the claim indicating that there was
no proof that she sustained an injury as a result of a telephone call.
In a report dated January 29, 2019, Dr. Darin Elo, a Board-certified emergency room
physician, related that appellant was seen that day for anxiety.
In a development letter dated March 4, 2019, OWCP advised appellant of the deficiencies
in her claim and explained the type of factual and medical evidence needed to establish her claim.
It requested additional factual and medical evidence and provided a questionnaire for her
completion. OWCP afforded appellant 30 days to submit the necessary evidence.
OWCP received additional evidence. In a January 29, 2019 narrative report, Dr. Elo
diagnosed anxiety/nerves and sweats as the reason for appellant’s visit. He noted that she had
explained that she became afraid after learning that she had to work with another employee who
had anger issues with fellow employees.
In a January 31, 2019 emergency room form, Kerry McClay, a licensed social worker,
diagnosed adjustment disorder with anxiety. She related that appellant had explained that an
employee she believed was dangerous had been assigned to work at her employing establishment.
Ms. McClay related that this individual had previous volatile incidents including a recent incident
during which he dislocated a fellow employee’s shoulder. Appellant had related being fearful of
this individual as he enjoyed talking about violence.
In an e-mail dated April 7, 2017, appellant informed her supervisor that she did not want
to be left alone with R.H. because she was afraid of him. She related that K.K. had informed her
of an incident during which R.H. appeared visibly upset. Appellant related that she was told by
K.K. that R.H. had “gotten into it” with one of the letter carriers. She alleged that R.H. enjoyed
harassing people and she indicated that she should not be required to work alone with R.H. as he
was angry with her because “he can’t have my job.”
In a March 22, 2019 report, Ms. McClay diagnosed adjustment disorder with anxiety due
to fears at being forced to work with a postmaster she considered abusive.
On March 22, 2019 appellant completed the questionnaire and noted that she had worked
for R.H. before, and his behavior was unprofessional. She noted that he returned to work at the
employing establishment on January 30, 2019. Appellant stated that she had been notified at
approximately 2:30 p.m. on January 29, 2019 by K.K. that she would be working with R.H. on his
return to the employing establishment.

2

In an April 1, 2019 statement, the employing establishment denied appellant’s allegations
that R.H. had assaulted an employee on August 9, 2018. It explained that two employees had
complained to R.H. that more staff was needed to get the work done. The employing establishment
denied that an assault had occurred. It explained that it had, by then, placed R.H. on a detail at
another location. The employing establishment noted that at no time did appellant allege that he
assaulted or threatened her.
By decision April 2, 2019, OWCP denied appellant’s claim as she had failed to establish
the factual element of fact of injury. It further found the medical evidence insufficient to meet the
burden of proof. OWCP concluded, therefore, that the requirements had not been met to establish
an injury as defined by FECA.
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
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.7 There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
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).
6

G.J., Docket No. 19-0801 (issued September 16, 2019); see S.K., Docket No. 18-1648 (issued March 14, 2019);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
7
T.G., Docket No. 19-0071 (issued May 28, 2019); L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB
622 (2006).

3

employment, the disability comes within the coverage of FECA.8 On the other hand, the disability
is not covered when it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment or to hold a
particular position.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty on January 29, 2019 as alleged.
Appellant has not related her anxiety and disability to the performance of her regular work
duties on January 29, 2019. She alleged that she learned by telephone call on January 29, 2019
that R.H. would be returning to her work location. Appellant explained that she was afraid of him
because he had previously dislocated a coworker’s shoulder. She has not asserted, and there is no
evidence of record, that R.H. had threatened or caused her physical harm. Appellant’s concern
that she would be working with him, which she asserted would be a dangerous work environment,
was based on her anticipation of danger after discovering that he would be returning to work. The
Board has held that fear-of-future injury is not compensable.10 This is true even if the employee
is found to be medically disqualified to continue employment because of the anticipated
employment factors. The fear that one might sustain further injury is self-generated and is not
compensable.11
As appellant has not established that she was actually threatened by R.H., the Board finds
that her fear-of-future injury does not constitute a compensable injury under FECA. Therefore,
she has not met her burden of proof to establish that she sustained an emotional condition in the
performance of duty on January 29, 2019, as alleged. As appellant did not establish
compensability, the Board need not consider the medical evidence of record.12
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty on January 29, 2019.

8

L.H., Docket No. 18-1217 (issued May 3, 2019); Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB
125 (1976).
9

A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

10

See R.L., Docket No. 18-1462 (issued May 9, 2019); R.H., Docket No. 13-1193 (issued May 29, 2014); B.R.,
Docket No. 12-1943 (issued July 24, 2013).
11

R.H., id.; Joseph G. Cutrufello, 46 ECAB 285 (1994).

12

See D.A., Docket No. 18-1715 (issued May 24, 2019); Katherine A. Berg, 54 ECAB 262 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the April 2, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 13, 2019
Washington, DC

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

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

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

5