United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.E., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Renton, WA, Employer
__________________________________________

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

Docket No. 14-1632
Issued: November 25, 2014

Case Submitted on the Record

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

JURISDICTION
On July 14, 2014 appellant, through counsel, filed a timely appeal from a May 21, 2014
decision of the Office of Workers’ Compensation Programs (OWCP) affirming the termination
of his compensation benefits. 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 OWCP properly terminated appellant’s compensation benefits
effective November 8, 2013 on the grounds that his accepted bilateral wrist contusion, right knee
contusion, bilateral shoulder sprains, chest wall contusion, lumbar sprain and cervical sprain had
resolved without residuals.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that appellant, then a 77-year-old airway transportation systems
specialist, sustained a bilateral wrist contusion, right knee contusion, bilateral shoulder sprains,
chest wall contusion, lumbar sprain and cervical sprain as a result of being rear-ended in a motor
vehicle accident on March 13, 2013. Appellant has not worked since the date of injury.2
Appellant submitted reports dated March 13 through July 29, 2013 from Dr. Usha
Raghavan, a Board-certified internist, who diagnosed lumbar strain, neck strain, shoulder strain,
knee contusion, wrist contusion, brain injury with concussion and contusion of sternum.
Dr. Raghavan opined that appellant was temporarily totally disabled.
OWCP referred appellant for a second opinion evaluation to determine the nature and
extent of his employment-related conditions. In a July 31, 2013 report, Dr. Steven M. Ma, a
Board-certified orthopedic surgeon, reviewed a statement of accepted facts, history of the injury
and medical treatment and conducted a physical examination. Upon examination of appellant’s
neck, Dr. Ma found no asymmetry, no scars, no spasm and no tenderness to palpation. Appellant
was able to bring his chin to his chest, as well as to his left and right shoulders. Examination of
both shoulders and upper extremities revealed no obvious atrophy, no swelling, no scars and a
negative impingement sign. There was no evidence of any subluxation or dislocation about his
shoulders. There was a negative apprehension sign. Appellant had a negative Tinel’s sign over
the elbows. He was able to go from full extension to making a full fist with all of his fingers.
Appellant’s Tinel’s sign, Phalen’s test, Finkelstein’s test and Allen’s test were all negative. He
was able to bend forward and come to within two feet of touching the ground with his fingertips.
Appellant’s sciatic tension test was negative bilaterally. The right knee lacked 10 degrees of full
extension and flexed to 110 degrees of flexion. Lachman’s and McMurray’s tests were negative.
Dr. Ma concluded that appellant’s employment-related conditions had resolved without
residuals. He opined that appellant had reached maximum medical improvement and released
him to sedentary work with restrictions. Dr. Ma noted that the work restrictions were based on
appellant’s underlying arthritic disease and not to the accepted motor vehicle accident.
By letter dated August 20, 2013, OWCP notified appellant that it proposed to terminate
his compensation benefits based on the weight of the medical evidence, as represented by
Dr. Ma. It afforded him 30 days to submit additional evidence or argument in disagreement with
the proposed action.
Appellant submitted reports dated August 14 through October 2, 2013 from
Dr. Raghavan who opined that appellant’s conditions were aggravated by the motor vehicle
accident.
By decision dated November 8, 2013, OWCP terminated appellant’s compensation
benefits effective that day. It found the weight of the evidence was represented by Dr. Ma.

2

Appellant also filed a claim for wage-loss compensation (Form CA-7) on June 14, 2013. By letter dated
June 17, 2013, OWCP notified him that it could not proceed with the claim because the form was incomplete.

2

On November 15, 2013 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative. He submitted a November 27, 2013 report from Dr. Raghavan
who reiterated her opinion that appellant was temporarily totally disabled.
In a February 4, 2014 report, Dr. David V. Anderson, a Board-certified orthopedic
surgeon, noted a history that appellant was in a motor vehicle accident on March 13, 2013 and
complained of bilateral shoulder pain. He diagnosed cervical disc disorder and bilateral shoulder
joint pain.
A telephonic hearing was held before an OWCP hearing representative on
February 13, 2014.
Appellant submitted a May 15, 2013 report from Dr. Michelle Levin, a clinical
neuropsychology, who found that a psychiatric evaluation of appellant did not indicate any
significant cognitive impairment. He also submitted work excuse notes from Dr. Raghavan
dated August 14 through November 27, 2013.
By decision dated May 21, 2014, the hearing representative affirmed the November 8,
2013 termination decision. She found that Dr. Ma represented the weight of the medical
evidence.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.3 After it has determined that an
employee has disability causally related to his or her federal employment, OWCP may not
terminate compensation without establishing that the disability has ceased or that it is no longer
related to the employment.4 OWCP’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.5 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability.6 To terminate authorization for medical treatment, OWCP must establish that
appellant no longer has residuals of an employment-related condition, which would require
further medical treatment.7
ANALYSIS
OWCP accepted appellant’s claims for bilateral wrist contusion, right knee contusion,
bilateral shoulder sprains, chest wall contusion, lumbar sprain and cervical sprain. It terminated
3

See S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

See I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

5

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

6

See T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

7

See James F. Weikel, 54 ECAB 660 (2003).

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his compensation benefits effective November 8, 2013 on the grounds that the accepted
employment-related conditions had resolved without residuals based on the opinion of the
second opinion examiner, Dr. Ma. The issue is whether OWCP met its burden to terminate
appellant’s compensation benefits.
OWCP referred appellant to Dr. Ma for a second opinion evaluation to determine the
nature and extent of his employment-related conditions. The Board finds that OWCP met its
burden of proof to terminate appellant’s compensation benefits based on the July 31, 2013 report
of Dr. Ma who reviewed appellant’s history of injury and medical treatment, examined him and
found no objective evidence of ongoing residuals or disability due to the accepted bilateral wrist,
right knee, bilateral shoulder, chest, lumbar, and cervical conditions. Dr. Ma reviewed the
statement of accepted facts and the medical record. Upon examination of appellant’s neck,
found no asymmetry, no scars, no spasm, and no tenderness to palpation. Appellant was able to
bring his chin to his chest, as well as to his left and right shoulders. Examination of both
shoulders and upper extremities revealed no obvious atrophy, no swelling, no scars and a
negative impingement sign. There was no evidence of any subluxation or dislocation about his
shoulders. There was a negative apprehension sign. Appellant had a negative Tinel’s sign over
the elbows. He was able to go from full extension to making a full fist with all of his fingers.
Appellant’s Tinel’s sign, Phalen’s test, Finkelstein’s test and Allen’s test were all negative. He
was able to bend forward and come to within two feet of touching the ground with his fingertips.
Appellant’s sciatic tension test was negative bilaterally. The right knee lacked 10 degrees of full
extension and flexed to 110 degrees of flexion. Lachman’s and McMurray’s tests were negative.
Dr. Ma concluded that appellant’s employment-related conditions had resolved without
residuals. He attributed appellant’s ongoing condition to degenerative arthritis that was not due
to the accepted motor vehicle accident. Dr. Ma opined that appellant had reached maximum
medical improvement and released him to sedentary work with restrictions.
The Board finds that Dr. Ma’s report represented the weight of the medical evidence.
OWCP terminated benefits and that OWCP properly relied on his report in terminating
appellant’s compensation benefits. The Board finds that he had full and accurate knowledge of
the relevant facts and evaluated the course of appellant’s condition. Dr. Ma is a specialist in the
appropriate field. His opinion is based on proper factual and medical history and his report
contained a detailed summary of appellant’s history. Dr. Ma addressed the medical records to
make his own examination findings to reach a reasoned conclusion regarding appellant’s
conditions.8 He addressed appellant’s preexisting degenerative disease and found no basis on
which to attribute any residuals or continued disability to appellant’s accepted conditions.
Dr. Ma’s opinion as set forth in his July 31, 2013 report is found to be probative evidence and
reliable. The Board finds that Dr. Ma’s opinion constitutes the weight of the medical evidence
and is sufficient to justify OWCP’s termination of benefits for the accepted conditions.
Dr. Raghavan diagnosed lumbar strain, neck strain, shoulder strain, knee contusion, wrist
contusion, brain injury with concussion and contusion of sternum and opined that appellant was
8

See Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of examination, the accuracy
and completeness of the physician’s knowledge of the facts and medical history, the care of analysis manifested and
the medical rationale expressed in support of the physician’s opinion are facts, which determine the weight to be
given to each individual report).

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disabled for work. She provided insufficient medical rationale explaining how these conditions
were causally related to appellant’s federal employment or why they rendered him totally
disabled. Dr. Raghavan’s reports are of diminished probative value and insufficient to overcome
the weight of Dr. Ma’s report or to create a medical conflict.
In a February 4, 2014 report, Dr. Anderson noted that appellant was in a motor vehicle
accident on March 13, 2013 and complained of bilateral shoulder pain. He diagnosed cervical
disc disorder and bilateral shoulder joint pain; however, Dr. Anderson did not provide any
medical rationale explaining how appellant’s condition was causally related to his federal
employment or his accepted conditions on why they rendered him disabled. His report is of
diminished probative value and insufficient to overcome the weight of Dr. Ma’s report or to
create a medical conflict.
The report from Dr. Levin contains no opinion as to whether appellant continues to have
residuals from the accepted bilateral wrist, right knee, bilateral shoulder, chest, lumbar and
cervical conditions. Thus, this report is insufficient to show that the termination was improper.
Accordingly, the Board finds that Dr. Ma’s opinion constitutes the weight of the medical
evidence and supports OWCP’s decision terminating appellant’s compensation benefits effective
November 8, 2013.
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 OWCP properly terminated appellant’s compensation benefits
effective November 8, 2013.

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ORDER
IT IS HEREBY ORDERED THAT the May 21, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 25, 2014
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbus, OH, Employer
__________________________________________

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

Docket No. 10-256
Issued: October 8, 2010

Case Submitted on the Record

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

JURISDICTION
On November 3, 2009 appellant filed a timely appeal from a September 21, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of the schedule award decision.
ISSUE
The issue is whether appellant met his burden of proof to establish that he is entitled to
schedule awards greater than the 6 percent previously awarded for his right lower extremity and
10 percent for his left lower extremity.
FACTUAL HISTORY
On June 8, 1996 appellant, then a 39-year-old mail handler, filed an occupational disease
claim, that was adjudicated under Office file number xxxxxx100 and accepted by the Office for
aggravation of Morton’s neuroma, bilateral feet. He underwent excision of the neuroma on the
left on May 9, 1996 and by decision dated February 10, 1997 was granted a schedule award for a

10 percent permanent impairment of the left leg.1 On April 23, 1997 appellant underwent the
same procedure on the right leg and by decision dated August 14, 1998, was granted a schedule
award for a five percent impairment of the right leg.2 He had a second surgical excision on the
right leg on November 10, 1999 and by decision dated October 23, 2000 the Office found that he
was not entitled to an increased schedule award. On April 29, 2003 appellant filed a claim for an
additional schedule award.3
In June 2003 the Office referred appellant to Dr. Oscar F. Sterle, a Board-certified
orthopedic surgeon, for a second opinion evaluation and in a July 18, 2003 report, he provided
physical examination findings and advised that maximum medical improvement had been
reached regarding appellant’s bilateral foot conditions. Dr. Sterle stated that, in accordance with
Tables 17-14 and 17-37 of the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),4 appellant had a five percent
impairment of each lower extremity. An Office medical adviser agreed with Dr. Sterle’s
conclusion and in a September 24, 2003 decision, the Office denied appellant’s claim for an
additional schedule award.
On July 6, 2005 appellant filed a claim that was adjudicated under Office file number
xxxxxx516, accepted for bilateral osteoarthritis of the knees. Dr. Gerald M. Rosenberg, Boardcertified in orthopedic surgery, performed extensive debridement and excision of plica band on
the left leg on April 26, 2006 and extensive debridement and chondroplasty on the right leg on
June 13, 2006. On June 30, 2007 appellant filed a schedule award claim and in August 2007 was
referred to Dr. Manhal A. Ghanma, a Board-certified orthopedist, for a second opinion
evaluation. On September 25, 2007 Dr. Ghanma reported that knee x-ray studies demonstrated
narrowing of the medial joint spaces in both knees with three millimeters cartilage intervals
bilaterally. He provided range of motion findings and noted no crepitation on range of motion
examination, no motor weakness or abnormality of gait, stance or balance. Dr. Ghanma advised
that appellant had reached maximum medical improvement and that, in accordance with Table
17-10 of the fifth edition of the A.M.A., Guides, he was not entitled to an impairment rating for
either knee due to loss of range of motion, but that he was entitled to a seven percent impairment
for each knee under Table 17-31, based on narrowing of the medial cartilage space as evidenced
by x-rays. By report dated October 17, 2007, an Office medical adviser stated that maximum
medical improvement was reached on July 26, 2006, that appellant was not entitled to a schedule

1

In a July 8, 1997 decision, an Office hearing representative affirmed the February 10, 1997 schedule award
determination.
2

In a November 21, 1997 decision, the Office denied appellant’s claim for a schedule award for the right lower
extremity. On April 8, 1998 an Office hearing representative set aside the November 21, 1997 decision and
remanded the case to the Office for further development of the medical evidence.
3

Appellant has a number of accepted claims for aggravation of lumbar disc disease, ganglion cyst and
tenosynovitis, lumbar sprain, aggravation of osteoarthritis of the knee, lumbosacral sprain and right knee sprain,
bilateral aggravation of joint disease of the hips, left ankle tenosynovitis, right shoulder arthroscopy and aggravation
of lumbar disc disease.
4

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

2

award based on bilateral range of motion findings and that, under Table 17-31, he was entitled to
a seven percent impairment for each lower extremity due to the cartilage interval finding.
In the interim, on April 25, 2007 under file number xxxxxx509, the Office accepted that
appellant sustained aggravation of Achilles tendinitis and aggravation calcaneal spur on the left.
On December 12, 2007 it combined the files for the three claims noted above, with file number
xxxxxx100 becoming the master. In February 2008, the Office referred appellant to Dr. Karl V.
Metz, a Board-certified orthopedic surgeon, for a second opinion evaluation for an assessment of
the accepted conditions in all three claims and an impairment evaluation. In a February 28, 2008
report, Dr. Metz provided lower extremity examination findings and noted that appellant’s right
thigh was three centimeters greater than the left. He concluded that, in accordance with the fifth
edition of the A.M.A., Guides appellant had a zero percent impairment for his knees, a zero
percent impairment for his feet and a 13 percent impairment for 3.0 centimeters of left thigh
atrophy.
On April 9, 2008 an Office medical adviser reviewed the medical record including
Dr. Metz’s report and advised that in accordance with Tables 17-10 and 17-14 of the fifth edition
of the A.M.A., Guides appellant had a zero percent impairment due to knee and toe range of
motion and that under Table 17-6, he was entitled to a 13 percent impairment for 3.0 centimeters
of left thigh atrophy.
In May 2009 the Office referred appellant to Dr. E. Gregory Fisher, a Board-certified
orthopedist, for a second opinion evaluation and impairment rating in accordance with the sixth
edition of the A.M.A., Guides.5 In a June 15, 2009 report, Dr. Fisher provided examination
findings for the lower extremities and advised that in regard to the bilateral Morton’s neuroma
with surgeries, appellant had a residual decreased sensation over the third and fourth toes
bilaterally with normal motion in the toes. In regards to the bilateral aggravation of osteoarthritis
of the knees with surgery, Dr. Fisher had decreased range of motion of flexion to 90 degrees
bilaterally, patellofemoral and medial crepitation on flexion and extension bilaterally and onehalf inch muscle atrophy of the right thigh when compared to the left thigh. He found no
objective findings over the left Achilles tendon or the left heel. Dr. Fisher advised that
maximum medical improvement for the right knee occurred by September 13, 2006 and July 26,
2006 on the left. In regards to the Morton’s neuroma, he advised that appellant reached
maximum medical improvement by January 1, 1998 on the right and January 1, 2002 on the left
and in regard to aggravation of the left Achilles tendinitis and the aggravation of the left heel
spur, maximum medical improvement was reached by June 2007. Dr. Fisher advised that, in
accordance with Chapter 16 of the sixth edition of the A.M.A., Guides for the left Achilles
tendinitis and the left heel spur, using Table 16-2, appellant would fit a Class 0 category,
yielding no impairment for these conditions. For the right and left Morton’s neuromas, he
advised that, based on decreased sensation to light touch over the third and fourth toes
bilaterally, under Tables 16-11 and 16-12, appellant had a Class 1 impairment and under the
adjustment grid, a functional history of one, physical examination of one and nonapplicable
clinical signs, for a two percent impairment of the lower extremity for the right foot and a two
percent impairment of the lower extremity for the left foot stemming from the aggravation of the
5

A.M.A., Guides (6th ed. 2008).

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Morton’s neuroma. For the osteoarthritis of the bilateral knees, Dr. Fisher advised that under
Table 16-3 appellant would fit Class 1 for a three millimeter cartilage interval and defects noted
surgically, with a grade modifier for functional history under Table 16-6 of zero percent, under
Table 16-7 for physical examination of one percent and under Table 16-8 for clinical finding of
one percent, yielding an adjusted impairment of four percent for each lower extremity based on
bilateral osteoarthrosis of the knees. He then combined the foot impairments of two percent with
the knee impairments of four percent, yielding a six percent impairment of each lower extremity.
By report dated July 2, 2009, Dr. Nabil F. Angley, an Office medical adviser who is
Board-certified in orthopedic surgery, reviewed Dr. Fisher’s report and agreed with his
conclusion that appellant had a total six percent left lower extremity impairment and a six
percent impairment on the right.
On September 21, 2009 appellant was granted a schedule award for an additional one
percent right lower extremity impairment. The Office noted that he had previously received a
schedule award for a 10 percent left lower extremity impairment, greater than the 6 percent
found by Dr. Fisher and was thus not entitled to an additional schedule award for a left lower
extremity impairment. The award was for 2.88 weeks, to run from September 13, 2006, the date
of maximum medical improvement for the right knee, to October 3, 2006.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act6 and its
implementing federal regulations,7 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.8 For decisions after February 1, 2001, the fifth edition of the A.M.A., Guides is used
to calculate schedule awards.9 For decisions issued after May 1, 2009, the sixth edition of the
A.M.A., Guides will be used.10
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).11 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

10

FECA Bulletin No. 09-03 (issued March 15, 2009).

11

Supra note 5 at 3, section 1.3, “The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement.”

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grade modifiers based on functional history (GMFH), physical examination (GMPE) and clinical
studies (GMCS).12 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX).13
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides with the Office medical
adviser providing rationale for the percentage of impairment specified.14
ANALYSIS
The sixth edition of the A.M.A., Guides provides that lower extremity impairments be
classified by diagnosis which is then adjusted by grade modifiers according to the formula noted
above.15 Appellant’s accepted diagnosed conditions are bilateral Morton’s neuromas, bilateral
osteoarthritis of the knees and aggravation of Achilles tendinitis and calcaneal spur on the left.
On February 10, 1997 he was granted a schedule award for a 10 percent permanent impairment
of the left leg and on August 14, 1998, a schedule award for a 5 percent impairment of the right
leg. On September 21, 2009 appellant was granted a schedule award for an additional one
percent on the right.
By report dated June 15, 2009, Dr. Fisher discussed the relevant tables in the sixth edition
of the A.M.A., Guides. He followed the assessment formula of the sixth edition of the A.M.A.,
Guides and advised that, in accordance with Chapter 16, for the left Achilles tendinitis and the
left heel spur, using Table 16-2, Foot and Ankle Regional Grid, appellant would fit a Class 0
category, yielding no impairment for these conditions.16 For the right and left Morton’s
neuromas, Dr. Fisher advised that, based on decreased sensation to light touch over the third and
fourth toes bilaterally, under Tables 16-11, Sensory and Motor Severity and 16-12, Peripheral
Nerve Impairment, appellant had a Class 1 impairment17 and under the adjustment modifiers
described in section 16.4, a functional history of one, physical examination of one and no clinical
signs,18 for a two percent impairment of the lower extremity for the right foot and two percent
impairment of the lower extremity for the left foot, stemming from the aggravation of the
Morton’s neuroma. For the osteoarthritis of the bilateral knees, he advised that under Table 163, Knee Regional Grid, appellant would fit a Class 1 with 3.0 millimeter cartilage interval and
defects noted surgically. Dr. Fisher then applied the grade modifiers described in Table 16-5
12

Id. at 494-531.

13

Id. at 521.

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
15

Id.

16

Supra note 5 at 501-08.

17

Id. at 533-35.

18

Id. at 531-33.

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with analysis provided in Tables 16-6 through 16-8 and the net adjustment formula19 and
determined that appellant was not entitled to an additional impairment for functional history
(GMFH) and an additional one percent for physical examination (GMPE) and an additional one
percent for clinical studies (GMCS), yielding an adjusted impairment of four percent for each
lower extremity based on bilateral osteoarthrosis of the knees.20 Dr. Fisher then combined the
impairments of two percent for each foot with the four percent impairments for each knee,
yielding a six percent impairment of each lower extremity. Dr. Angley, an Office medical
adviser reviewed Dr. Fisher’s report and agreed with his conclusion that appellant had a total six
percent left lower extremity impairment and a six percent impairment on the right.
The Board finds that Dr. Fisher’s medical report constitutes the weight of medical
opinion. The record does not contain any evidence to establish greater impairment to each lower
extremity in accordance with the sixth edition of the A.M.A., Guides. Appellant has not
established that he sustained more than a 6 percent right lower extremity impairment and 10
percent impairment on the left.
CONCLUSION
The Board finds that appellant has a 6 percent right lower extremity impairment and a 10
percent impairment on the left.

19

Id. at 515-21.

20

Id. at 517, 519.

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ORDER
IT IS HEREBY ORDERED THAT the September 21, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 8, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, DAYTON
INTERNATIONAL AIRPORT, Vandalia, OH,
Employer
__________________________________________

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

Docket No. 17-1243
Issued: November 6, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 16, 2017 appellant, through counsel, filed a timely appeal from a March 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 the 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 more than one percent permanent impairment of his
right upper extremity, for which he previously received a schedule award.
FACTUAL HISTORY
On May 5, 2007 appellant, then a 40-year-old transportation security screener, filed an
occupational disease claim (Form CA-2) alleging that factors of his federal employment,
including repetitively lifting luggage and heavy “wanding,” caused an injury to his right arm. He
did not stop work, but was placed on limited duty. OWCP accepted appellant’s claim for right
elbow and forearm strain, and the acceptance of the claim was later expanded to include right
lateral epicondylitis.3
On August 23, 2007 appellant filed a claim for recurrence of disability (Form CA-2a)
alleging that, while on limited duty on August 19, 2007, a passenger handed him a box to be
screened, that the box was not labeled as heavy, and that as he lifted the box he immediately felt
forearm muscle and elbow strain in the same area he had hurt before. OWCP considered his
claim as a claim for new traumatic injury.4 On September 28, 2007 it accepted this claim for
aggravation of a right forearm strain and right elbow strain. Appellant received intermittent
wage-loss compensation on the supplemental rolls commencing December 7, 2007.
OWCP again expanded acceptance of the claim to include a lesion of the right radial
nerve and a May 29, 2008 right radial tunnel release surgery. Appellant missed time from work
on an intermittent basis until May 30, 2008, when he stopped work due to his May 29, 2008 right
radial tunnel release surgery. He returned to full-time, limited-duty work on June 30, 2008.
Appellant continued working in that capacity until November 20, 2011, at which time the
employing establishment determined his restrictions could no longer be accommodated. He
received wage-loss compensation on the periodic rolls commencing January 15, 2012.
OWCP referred appellant to vocational rehabilitation services, which resulted in
placement as a security guard at the Great-Wolf Lodge in Mason, OH beginning July 2, 2014.
By decision dated March 3, 2015, OWCP found that appellant’s actual wages as a security guard
represented his wage-earning capacity, and reduced his compensation benefits effective
July 2, 2014.
By letter received on November 21, 2014, appellant, through counsel, filed a claim for a
schedule award. In a report dated November 5, 2014, Dr. Martin Fritzhand, appellant’s Boardcertified preventive medicine physician, listed appellant’s accepted conditions as sprain of right
elbow and forearm, unspecified site, right lateral epicondylitis, and right lesion of radial nerve.
He noted that appellant’s right elbow was normal. Dr. Fritzhand noted no tenderness on
palpation of the right epicondyle. He noted a 13 centimeter longitudinal surgical scar over the
radial aspect of the right forearm commencing 2 centimeters below the antecubital fossa, which
3

File No. xxxxxx111.

4

OWCP assigned File No. xxxxxx337.

2

was tender to palpation. Dr. Fritzhand noted muscle strength was well-preserved over the right
elbow flexors and extensors, and that there was no evidence of muscle atrophy. He noted
pinprick and light touch were diminished over the radial aspect of the right forearm.
Dr. Fritzhand utilized Table 15-23 of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (2009) (A.M.A., Guides) to
assess impairment. He noted that appellant’s test findings resulted in grade modifier of 0, history
grade modifier of 2, and physical examination grade modifier of 2. Dr. Fritzhand added these
together to equal 4 and then divided by 3 to equal 1.33, which he rounded down to 1, therefore,
he found that the grade modifier of 1 represented the final rating class. He noted that appellant’s
QuickDASH was 66, but that as this value was substantially higher than the rating category, it
was not used for rating. Dr. Fritzhand assigned the default value, and indicated that appellant
had sustained a permanent impairment of the right upper extremity of two percent.
On August 29, 2007 OWCP referred appellant’s case to Dr. Morley Slutsky, a Boardcertified occupational medicine physician serving as OWCP’s medical adviser, for a calculation
of permanent impairment of appellant’s right upper extremity. In a report dated September 27,
2015, Dr. Slutsky noted that appellant had both a negative right elbow magnetic resonance
imaging (MRI) scan and a negative electromyogram/nerve conduction velocity (EMG/NCV) test
regarding radial nerve involvement at the right elbow. On May 29, 2008 the right elbow area
was diagnosed with right radial tunnel syndrome and the claimant underwent right radial tunnel
release, entire radial tunnel. As appellant did not have EMG/NCV testing which met the criteria
as set forth in the A.M.A., Guides, Dr. Slutsky determined that the use of Table 15-23 for
compression neuropathy was inapplicable, and appellant could only be rated for nonspecific right
elbow pain. Accordingly, Dr. Slutsky applied the calculations as set forth in Table 15-4 of the
A.M.A., Guides. He noted that the diagnosis-based impairment (DBI) method was the preferred
rating method and would be used for final impairment calculations. Dr. Slutsky placed appellant
in class 1 for the most impairing diagnosis in the elbow region for nonspecific pain. He noted
that although Dr. Fritzhand found a grade modifier of 2 for functional history, he disagreed.
Dr. Slutsky noted that Dr. Fritzhand gave appellant a QuickDASH score of 66 percent, which
equaled a grade modifier of 3, which was 2 grade modifiers higher than the clinical studies
modifier, and therefore the grade modifier for functional history was unreliable. He noted that
he agreed with Dr. Fritzhand the grade modifier for physical examination was 2, noting
decreased sensation to light touch and pinprick. Dr. Slutsky also agreed with Dr. Fritzhand that
appellant had a grade modifier of 0 for clinical studies, noting negative EMG/NCV testing and a
negative MRI scan for radial nerve involvement. The Class of Diagnosis (CDX) was 1, the
Functional History (GMFH) modifier was unreliable, the Physical Examination (GMPE) was 2,
and the Clinical Studies (GMCS) grade modifier was 0. Using the net adjustment formula,
(GMPE–CDX) + (GMCS–CDX), or (2-1) + (0-1), he found the net adjustment was 0, and that
appellant had a permanent impairment of his right upper extremity of 1 percent.
By letter dated March 3, 2016, OWCP asked Dr. Fritzhand to comment on Dr. Slutsky’s
report, and afforded him 30 days to submit a response. Dr. Fritzhand did not respond.
By decision dated May 17, 2016, OWCP issued a schedule award for one percent
permanent impairment of the right upper extremity.

3

By letter from counsel received by OWCP on May 31, 2016, appellant requested a
telephonic hearing before an OWCP hearing representative.
At the hearing held on January 12, 2017, counsel asked that OWCP review appellant’s
case in light of the Board’s decision in T.H.,5 with regard to schedule awards for upper extremity
impairments. He argued that Dr. Slutsky utilized outdated A.M.A., Guides, and that
Dr. Slutsky’s reports had been criticized. Counsel further contended that in T.H, the Board had
found Dr. Slutsky unreliable and that a consistent method for rating upper extremity impairment
was required to ensure consistent results.
By decision dated March 13, 2017, OWCP’s hearing representative affirmed the May 17,
2016 decision, finding that the weight of the medical evidence rested with the opinion of
Dr. Slutsky. She rejected counsel’s argument that the Board’s decision in T.H. required a
different result, noting that the issue in that case discussed the use of DBI impairment method
versus the range of motion (ROM) method, which was not the issue in the instant case as neither
physician used the ROM method to reach an impairment rating.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.6 Section 8107
of FECA 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.7 FECA, 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. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.8
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.

5

Docket No. 14-0943 (issued November 25, 2016).

6

See 20 C.F.R. §§ 1.1-1.4.

7

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
8

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

4

5 U.S.C.

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).9 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.10
ANALYSIS
The issue is whether appellant has more than one percent permanent impairment of his
right upper extremity, for which he previously received a schedule award. The March 13, 2017
schedule award was based upon the one percent permanent impairment rating of Dr. Slutsky. In
his September 27, 2015 report, Dr. Slutsky relied upon Table 15-4 of the A.M.A., Guides using
the DBI rating method for the diagnosed condition of elbow region nonspecific pain. The Board
finds that this diagnosis as listed in Table 15-4 is one with an asterisk which alternatively allows
for consideration of the ROM method of assigning permanent impairment.
The Board finds this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.11
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.12 In T.H., the Board concluded that OWCP physicians
were at odds over the proper methodology for rating upper extremity impairment, having
observed attending physicians, evaluating physicians, second opinion physicians, impartial
medical examiners, and district medical advisers use both DBI and ROM methodologies
interchangeably without any consistent basis. Furthermore, the Board observed that physicians
interchangeably cited to language in the first printing or the second printing when justifying use
of either ROM or DBI methodology. Because OWCP’s own physicians had shown
inconsistency in the application of the A.M.A., Guides, the Board found that OWCP could no
longer ensure consistent results and equal justice under the law for all claimants.13
In order to ensure consistent results and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the March 13, 2017 decision. Utilizing a
consistent method for calculating permanent impairment for upper extremities applied uniformly,

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
10

Isidoro Rivera, 12 ECAB 348 (1961).

11

T.H., Docket No. 14-0943 (issued November 25, 2016).

12

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

13

Supra note 11.

5

and after such other development as may be deemed necessary, OWCP shall issue a de novo
decision on appellant’s claim for an upper extremity schedule award.14
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 13, 2017 is set aside, and the case is remanded for further
action consistent with this decision.
Issued: November 6, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

FECA Bulletin No. 17-06 (issued May 8, 2017).

6


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

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

Docket No. 14-238
Issued: May 6, 2014

Case Submitted on the Record

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

JURISDICTION
On November 6, 2013 appellant, through his attorney, filed a timely appeal from a
September 27, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an emotional
condition causally related to factors of federal employment.
On appeal, appellant’s attorney asserts that the medical evidence submitted is sufficient
to establish that appellant sustained an employment-related emotional condition.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 11, 2013 appellant, then a 52-year-old city carrier, filed an occupational
disease claim alleging that he sustained occupational stress caused by employing establishment
management and a hostile work environment. He indicated that he first became aware of the
condition on December 29, 2011 and its relationship to employment on September 4, 2012. In a
January 18, 2013 statement, appellant described events in which he maintained that he was
subjected to intimidation, extortion, bullying, manipulation, harassment, retaliation,
vindictiveness, lying, dereliction of duty and safety, incompetence, threats and discrimination by
employing establishment management from August 1, 2006 to December 27, 2012. He alleged
that he was not given overtime; that he was required to work overtime; that his work assignments
were improper; that his complaints of safety issues and postal policies were ignored; that leave
requests were mishandled; that he was improperly counseled by management regarding pay,
safety and leave issues, including when he was sent home because he was not fit for duty.
Appellant also generally took issue with the management style of several of his supervisors and
indicated that he was subjected to increased stress because he had a route inspection and because
there was gunshot activity along his carrier route.
In support of his claim, appellant submitted a list of mental health and stress management
appointments with the Employee Assistance Program (EAP) and Veterans Affairs (VA) mental
health clinics. In a January 18, 2013 progress note, Dr. Allyson E. Witters, a psychiatry resident
physician, and Dr. Dana Deaton Verner, a Board-certified staff psychiatrist with the VA, noted
that appellant discussed problems of extreme stress at work and admitted that he was concerned
that he could snap if he was forced to return to work. The physicians diagnosed mood disorder,
not otherwise specified and historical diagnosis of adjustment and general anxiety disorders.
Medication and continued therapy were prescribed. It was recommended that appellant not
return to work. The report indicated that appellant had a total 70 percent VA disability for
hypertensive vascular disease, residuals of a foot injury, tinnitus, limited ankle and knee motion
and traumatic arthritis.
Documentation submitted included a November 2006 timesheet; appellant’s report of an
unsafe condition on June 27, 2007 and an October 4, 2007 response; April 4, 2008 VA
emergency department discharge instructions signed by a registered nurse; May 20, 2008
correspondence from the employing establishment to a church regarding improper placement of
flyers; EAP documentation dated March 4, 2010 and January 6, 2012; and a September 4, 2012
memorandum placing him off duty for 14 days due to misconduct on the workroom floor.
In letters dated January 30, 2013, OWCP informed appellant of the evidence needed to
support his claim and asked that the employing establishment respond. The employing
establishment provided an on-site job analysis regarding the physical demands for a city mail
carrier, revised on June 4, 2002 and employing establishment e-mails dated February 4 and 5,
2013, in which Sherry Carr, a manager, acknowledged that there were times when appellant was
ordered to work overtime. She indicated that appellant did not like to be questioned about his
job performance and that he had made threatening comments about other workers and
supervisors in the past and was evaluated by the threat assessment team and sent home.

2

By decision dated March 1, 2013, OWCP denied the claim on the grounds that appellant
had not established a compensable factor of employment. Appellant’s attorney requested a
hearing and submitted statements dated February 28 and March 1, 2013.2 In the former
statement, appellant discussed problems with leave usage on July 19 and August 9, 2011 that
was not corrected immediately and leave taken when his wife was hospitalized in July 2012. In
the latter statement, he maintained that the employing establishment improperly ordered
overtime and he indicated that his route was in a crime-ridden and unsafe area. In a February 27,
2013 attending physician’s report, Dr. Witters noted a history of difficulties and extreme stress at
work. She diagnosed mood disorder; a historical diagnosis of adjustment and general anxiety
disorders; and possible bipolar disorder. Dr. Witters checked the form box “yes,” indicating that
appellant’s condition was caused or aggravated by work activity, stating that his condition
seemed mostly to be related to work. She advised that he was totally disabled since
September 4, 2012.
Further, documentation submitted included a July 20, 2012 notice that appellant was
placed in emergency off-duty status due to improper conduct on the workroom floor; a July 30,
2012 14-day suspension for improper conduct; a grievance resolution dated August 31, 2012
regarding the emergency off-duty placement indicated that he would receive a payment of
$640.56, less standard deductions; a September 4, 2012 request for a fitness-for-duty
examination because on September 1, 2012 appellant’s wife called the employing establishment
stating that appellant had threatened to kill her and a grandchild; a September 4, 2012 emergency
placement in off-duty status pending results of a fitness-for-duty examination; a grievance filed
on September 6, 2012 regarding the September 4, 2012 emergency placement; an October 18,
2012 memorandum regarding the fitness-for-duty examination stating that the physician
requested that appellant provide documentation from his treating psychiatrist but that appellant
had not complied; a November 2, 2012 grievance resolution indicating that appellant was 1 of 20
carriers in a class who were compensated for improper overtime status; December 12, 2012
correspondence from the employing establishment to appellant indicating that, to return to work,
he would have to present supporting medical evidence; and a January 11, 2013 grievance
resolution indicating that the July 30, 2013 14-day suspension was reduced to a letter of warning.
At the hearing, held on July1 5, 2013, appellant testified that he was retired military and
had worked for the employing establishment approximately eight years. He stated that his
delivery route was in a bad area and commented that there was no employing establishment
continuity because there had been approximately 13 managers in eight years and that
management did not care about the customer.
Subsequent to the hearing, appellant submitted a May 1, 2013 report, in which
Dr. Witters noted that he had been treated at the VA mental health clinic since
December 30, 2011. She reiterated his diagnoses and indicated that he spent a great deal of time
talking about work-related stress, which continued to be his focus and that he continued to
perseverate on what he perceived as a negative work environment that included manipulation,
harassment and intimidation. Dr. Witters concluded, “while I cannot say whether there is a
2

On February 28, 2013 appellant, through his attorney, requested a hearing from a January 30, 2013 decision. In
correspondence dated April 8, 2013, OWCP informed him that there was no adverse decision of record dated
January 30, 2013, but that the request for a hearing of the March 1, 2013 decision would go forward.

3

direct cause between [appellant’s] experience at the [employing establishment] and his mental
illness, his work stress does appear to have exacerbated his symptoms, which may have been
long-standing.” Appellant also submitted June 28, 2013 grievance resolution indicating that his
grievance regarding enforced leave was being held in abeyance pending his OWCP appeal and
that the parties agreed that postal and union policies would be followed.
In a September 27, 2013 decision, an OWCP hearing representative affirmed the
March 1, 2013 decision as modified. She found that appellant established one compensable
factor of employment, that he was overworked and forced to work overtime, but that the medical
evidence was insufficient to establish that his claimed emotional condition was caused by the
accepted employment factor.
LEGAL PRECEDENT
To establish his or her claim that he or she sustained an emotional condition in the
performance of duty, appellant must submit the following: (1) medical evidence establishing
that he or she has an emotional or stress-related disorder; (2) factual evidence identifying
employment factors or incidents alleged to have caused or contributed to his or her condition;
and (3) rationalized medical opinion evidence establishing that the identified compensable
employment factors are causally related to his or her stress-related condition.3 If a claimant does
implicate a factor of employment, OWCP should then determine whether the evidence of record
substantiates that factor.4 When the matter asserted is a compensable factor of employment and
the evidence of record establishes the truth of the matter asserted, it must base its decision on an
analysis of the medical evidence.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,6 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.7 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.8 Allegations alone by a claimant
3

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

4

Dennis J. Balogh, 52 ECAB 232 (2001).

5

Id.

6

28 ECAB 125 (1976).

7

See Robert W. Johns, 51 ECAB 137 (1999).

8

Lillian Cutler, supra note 6.

4

are insufficient to establish a factual basis for an emotional condition claim.9 Where the claimant
alleges compensable factors of employment, he or she must substantiate such allegations with
probative and reliable evidence.10 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.11
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.12 Where the
evidence demonstrates that the employing establishment either erred or acted abusively in
discharging its administrative or personnel responsibilities, such action will be considered a
compensable employment factor.13
For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.14
With regard to emotional claims arising under FECA, the term “harassment” as applied by the
Board is not the equivalent of “harassment” as defined or implemented by other agencies, such
as the equal employment opportunity commission, which is charged with statutory authority to
investigate and evaluate such matters in the workplace. Rather, in evaluating claims for workers’
compensation under FECA, the term “harassment” is synonymous, as generally defined, with a
persistent disturbance, torment or persecution, i.e., mistreatment by coemployees or workers.
Mere perceptions and feelings of harassment will not support an award of compensation.15
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.16 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.17 Neither the mere fact that a disease or condition manifests itself during a period

9

J.F., 59 ECAB 331 (2008).

10

M.D., 59 ECAB 211 (2007).

11

Roger Williams, 52 ECAB 468 (2001).

12

Charles D. Edwards, 55 ECAB 258 (2004).

13

Kim Nguyen, 53 ECAB 127 (2001).

14

James E. Norris, 52 ECAB 93 (2000).

15

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

16

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

17

Leslie C. Moore, supra note 3; Gary L. Fowler, 45 ECAB 365 (1994).

5

of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.18
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish an emotional
condition in the performance of duty causally related to factors of his federal employment.
The hearing representative found that appellant established overwork as a compensable
factor of employment.
Appellant’s remaining allegations pertain to administrative actions that began in 2006
and to allegations that he was harassed and treated in an abusive manner by employing
establishment management. Generally, actions of the employing establishment in administrative
or personnel matters, unrelated to the employee’s regular or specially assigned work duties, do
not fall within coverage of FECA.19 Absent evidence establishing error or abuse, a claimant’s
disagreement or dislike of such a managerial action is not a compensable factor of
employment.20 The Board finds that appellant’s allegations that his work assignments were
improper, that his complaints regarding safety issues and the employing establishment policies
were ignored and that his leave requests were mishandled pertain to administrative functions.
While the record contains extensive documentation, none of it indicates error or abuse in these
matters and they are therefore not compensable factors of employment.
Generally, complaints about the manner in which a supervisor performs his or her duties
or the manner in which a supervisor exercises his or her discretion fall, as a rule, outside the
scope of coverage provided by FECA. This principle recognizes that a supervisor or manager in
general must be allowed to perform his or her duties and employees will, at times, dislike the
actions taken. Mere disagreement or dislike of a supervisory or managerial action will not be
compensable, absent evidence of error or abuse.21 While appellant noted his dislike of
management at the employing establishment, the record contains no evidence that any employing
establishment supervisor or manager committed error or abuse in discharging management
duties, this allegation is not compensable.22
Regarding appellant’s contention that he was subjected to intimidation, extortion,
bullying, manipulation, retaliation, harassment, etc. by employing establishment management,
mere perceptions of harassment or discrimination are not compensable under FECA23 and
unsubstantiated allegations of harassment or discrimination are not determinative of whether
18

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

19

J.C., 58 ECAB 594 (2007).

20

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

21

Id.

22

See David C. Lindsey, Jr., 56 ECAB 263 (2005).

23

James E. Norris, supra note 14.

6

such harassment or discrimination occurred. A claimant must establish a factual basis for his or
her allegations with probative and reliable evidence.24 While appellant submitted several
grievance resolutions, none indicated that the employing establishment erred.25 He submitted
nothing to show a persistent disturbance, torment or persecution, i.e., mistreatment by employing
establishment management.26 Appellant has not established a factual basis for his claim of
harassment by probative and reliable evidence.27
Nonetheless, as the hearing representative accepted overwork as a compensable factor of
employment, the medical evidence must be addressed. On January 18, 2013 Dr. Verner and
Dr. Witters diagnosed mood disorder, not otherwise specified and historical diagnosis of
adjustment and general anxiety disorders and indicated that appellant reported severe stress at
work. Dr. Witters also completed an attending physician’s report on February 27, 2013 in which
she stated that his diagnosed condition was mostly related to work. On May 1, 2013 she
reiterated the diagnoses and indicated that appellant spent a great deal of time talking about
work-related stress, which had continued to be his focus and continued to persevere on what he
perceived as a negative work environment that included manipulation, harassment and
intimidation. Although Dr. Witters concluded that she could not say there was a direct cause
between his experience at the employing establishment and his mental illness and that his work
stress appeared to have exacerbated his symptoms, the Board finds that this conclusion is
couched in equivocal terms. While the opinion of a physician supporting causal relationship
need not be one of absolute medical certainty, the opinion must not be speculative or equivocal.
The opinion should be expressed in terms of a reasonable degree of medical certainty.28
Moreover, Dr. Witters merely alluded to stress at work and did not discuss any specific
employment factors, including the accepted factor of overwork. The opinion must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
employee.29
Appellant has the burden of proof to establish that the conditions for which he claims
compensation were caused or adversely affected by his federal employment.30 Part of this
burden includes the necessity of presenting rationalized medical evidence, based on a complete
factual and medical background, establishing a causal relationship. An award of compensation
may not be based upon surmise, conjecture or upon appellant’s belief that there is a relationship
between his medical conditions and his employment. Thus, contrary to appellant’s assertion on
24

Id.

25

See W.B., Docket No. 12-1369 (issued May 1, 2013).

26

Beverly R. Jones, supra note 15.

27

See Robert Breeden, 57 ECAB 622 (2006).

28

Ricky S. Storms, 52 ECAB 349 (2001).

29

Leslie C. Moore, supra note 3.

30

See Calvin E. King, 51 ECAB 394 (2000).

7

appeal, he has not submitted sufficient probative medical evidence to establish that his emotional
condition was caused by the accepted compensable factor of employment. He therefore failed to
discharge his 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 did not establish that he sustained an emotional condition
in the performance of duty causally related to the accepted employment factor.
ORDER
IT IS HEREBY ORDERED THAT the September 27, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 6, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
STATION NORTH ISLAND, San Diego, CA,
Employer
__________________________________________

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

Docket No. 07-790
Issued: July 11, 2007

Case Submitted on the Record

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

JURISDICTION
On January 30, 2007 appellant filed a timely appeal from a September 12, 2006 merit
decision of the Office of Workers’ Compensation Programs granting him a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant has more than a 10 percent permanent impairment
of the left upper extremity; and (2) whether he has any permanent impairment of the right upper
extremity.
FACTUAL HISTORY
On August 26, 2003 appellant, then a 52-year-old aircraft production controller, filed a
claim for a traumatic injury to his wrists, left elbow and knees which occurred on August 25,
2003 when his feet became tangled in an electrical cord and he fell on a concrete floor. The

Office accepted the claim for a closed fracture of the left radial head and bilateral wrist
contusions. Appellant worked limited duty from August 27, 2003 until February 16, 2004. He
resumed his regular employment on February 17, 2004.
On February 20, 2004 appellant filed a claim for a schedule award. He submitted an
impairment evaluation dated February 16, 2004 from Dr. Arnold Markman, Board-certified in
occupational medicine, who diagnosed a healed left radial fracture with residuals. Dr. Markman
opined that appellant had reached maximum medical improvement. He noted that appellant was
currently performing his regular employment duties and had “no problems with his left elbow.”
Dr. Markman listed appellant’s range of motion for the elbow on the “affected left” side as 135
degrees flexion, 180 degrees extension, 75 degrees supination and 75 degrees pronation. For the
right side, which he classified as “unaffected,” he measured flexion as 135 degrees, extension as
180 degrees, supination as 85 degrees and pronation as 75 degrees. Dr. Markman measured
biceps circumference as 14 inches bilaterally and forearm circumference as 11 inches bilaterally.
Appellant had 7 inches wrist circumference on the left and 8 inches on the right. Dr. Markman
obtained three grip strength measurements of 105 on the left and 120 on the right. He listed
objective factors of disability as the loss of 10 degrees elbow supination on the left and grip
strength of 105 on the left compared with 120 degrees on the right.
An Office medical adviser reviewed Dr. Markman’s report on March 25, 2004. He found
that appellant had no impairment due to loss of range of motion pursuant to the American
Medical Association, Guides to the Evaluation of Permanent Impairment, (5th ed. 2001)
(A.M.A., Guides). The Office medical adviser further found no impairment due to atrophy. He
stated, “Wrist strength on the left was diminished compared to the right with values averaging
105 compared to 120, and this would indicate an approximately 13 percent loss of anticipated
grip strength, and according to Table 16-34, this would be assessed a 10 percent upper extremity
impairment.” The Office medical adviser concluded that appellant had a 10 percent permanent
impairment of the left upper extremity and no impairment of the right upper extremity. He
opined that appellant reached maximum medical improvement on February 16, 2004.
By decision dated September 12, 2006, the Office granted appellant a schedule award for
a 10 percent permanent impairment of the left upper extremity. The Office noted that he had no
impairment of the right upper extremity. The period of the award ran for 31.20 weeks from
February 16 to September 21, 2004.
LEGAL PRECEDENT -- ISSUES 1 & 2
The schedule award provision of the Federal Employees’ Compensation Act,1 and its
implementing federal regulation,2 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

2

claimants.3 Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in
2001, for all decisions made after February 1, 2001.4
ANALYSIS -- ISSUES 1 & 2
The Office accepted that appellant sustained a closed fracture of the left radial head and
bilateral wrist contusions due to an August 25, 2003 employment injury. Appellant filed a claim
for a schedule award on February 20, 2004. In a report dated February 16, 2004, Dr. Markman
diagnosed a healed left radial fracture and opined that appellant had reached maximum medical
improvement. He measured range of motion of the left elbow as 135 degrees flexion, 180
degrees extension, 75 degrees supination and 75 degrees pronation. For the right elbow, which
Dr. Markman found “unaffected,” he measured range of motion of 135 degrees flexion, 180
degrees extension, 85 degrees supination and 75 degrees pronation. He listed bilateral biceps
circumference as 14 inches, bilateral forearm circumference as 11 inches, left wrist
circumference as 7 inches and right wrist circumference as 8 inches. Dr. Markman obtained
three grip strength measurements of 105 on the left and 120 on the right. He concluded that
appellant had an impairment on the left side due to the loss of 10 degrees elbow supination and
the loss of grip strength. Dr. Markman did not specify how he rated the extent of the impairment
under the A.M.A., Guides.
On March 25, 2004 an Office medical adviser reviewed Dr. Markman’s report and
applied the tables and pages of the A.M.A., Guides to his findings. He determined that appellant
had no impairment due to loss of range of motion. The Board notes that 135 degrees bilateral
flexion, 180 degrees bilateral extension,5 75 degrees bilateral pronation, 75 degrees supination on
the left and 85 degrees supination on the right yields no impairment under the A.M.A., Guides.6
The Office medical adviser further found no impairment due to atrophy but an impairment due to
decreased grip strength on the left compared to the right. Regarding grip strength, the A.M.A.,
Guides provides that in rare cases “if the examiner believes the individual’s loss of strength
represents an impairment factor that has not been considered adequately by other methods in the
[A.M.A.], Guides, the loss of strength may be rated separately.7 The Office medical adviser
applied Table 16-34 on page 509 of the A.M.A., Guides and determined that grip strength of 105
on the left and 120 on the right yielded a 13 percent loss of left grip strength, for a 10 percent left
upper extremity impairment.8 He concluded that appellant had a 10 percent permanent
impairment of the left upper extremity and no impairment of the right upper extremity. The
findings of the Office medical adviser, which are in accordance with the A.M.A., Guides,
3

20 C.F.R. § 10.404(a).

4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

5

Dr. Markman apparently means 0 degrees extension rather than 180 degrees extension.

6
7

A.M.A., Guides at 472, 474, Figures 16-34, 16-37.
Id. at 508.

8

Dr. Markman properly measured appellant’s grip strength three times as provided on page 508 of the A.M.A.,
Guides.

3

constitute the weight of the medical evidence and establish that appellant has no more than a 10
percent left upper extremity impairment and no impairment of the right upper extremity.
On appeal appellant contends that the schedule award is insufficient as he has to live and
work with pain and decreased range of motion of the left arm. The amount payable pursuant to a
schedule award does not take into account the effect that the impairment has on employment
opportunities, wage-earning capacity, sports, hobbies or other lifestyle activities.9 The number
of weeks of compensation for a schedule award is determined by the compensation schedule at
5 U.S.C. § 8107(c). For complete loss of use of the upper extremity, the maximum number of
weeks of compensation is 312 weeks. Since appellant’s permanent impairment of the left upper
extremity is 10 percent, he is entitled to 10 percent of 312 weeks, or 31.20 weeks of
compensation.10
CONCLUSION
The Board finds that appellant has no more than a 10 percent permanent impairment of
the left upper extremity for which he received a schedule award. The Board further finds that he
has no impairment of the right upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 12, 2006 is affirmed.
Issued: July 11, 2007
Washington, DC

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

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
9

Ruben Franco, 54 ECAB 496 (2003).

10

Appellant retains the right to file a claim for an increased schedule award before the Office based on new
exposure or on medical evidence indicating that the progression of an employment-related condition, without
exposure to new employment factors, has resulted in a greater permanent impairment than previously calculated.
Linda T. Brown, 51 ECAB 115 (1999).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES ENGINEERING COMMAND
SOUTHWEST, San Diego, CA, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 19-0340
Issued: October 22, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On December 3, 2018 appellant, through counsel, filed a timely appeal from an August 28,
2018 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards docketed the appeal as Docket No. 19-0340.
On August 28, 2017 appellant, then a 46-year-old air conditioning equipment mechanic,
filed a traumatic injury claim (Form CA-1) alleging that, as he was leaving the jobsite, he rolled
his right ankle on an uneven driveway and fell forward, reinjuring his neck and right shoulder
while in the performance of duty. OWCP assigned the case File No. xxxxxx721 and accepted
right ankle sprain.

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.

Appellant had previously filed a traumatic injury claim due to a May 25, 2017 employment
injury that OWCP accepted for right shoulder joint sprain and cervical disc displacement. OWCP
assigned this case File No. xxxxx230.
By decision dated January 30, 2018, OWCP denied appellant’s claim for compensation for
the period commencing November 24, 2017 and continuing. On February 12, 2018 appellant,
through counsel, requested a hearing before OWCP’s Branch of Hearings and Review. During the
hearing, he asserted that his right ankle condition had resolved, but that when he fell on August 22,
2017 he had aggravated his neck and right shoulder conditions which had been accepted under
OWCP File No. xxxxxx230. OWCP’s hearing representative indicated that he would review both
claim files before rendering his decision.
By decision dated August 28, 2018, OWCP’s hearing representative denied the claim for
disability compensation. He indicated that he had reviewed OWCP File Nos. xxxxxx721 and
xxxxxx230 in rendering his decision and concluded that the medical evidence he had reviewed
was insufficient to establish that the claimed disability was caused by the August 22, 2017
employment injury.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. In the August 28, 2018 decision, OWCP’s hearing representative referenced his review
of the May 25, 2017 claim adjudicated by OWCP under File No. xxxxxx230, specifically noting
that he had reviewed medical evidence found in the prior claim file.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files. 2 Appellant has
claimed an aggravation of his accepted neck and shoulder conditions when he fell on
August 22, 2017. OWCP only accepted an ankle sprain due to this injury. As noted, in the
August 28, 2018 decision, OWCP’s hearing representative referenced appellant’s May 2017
claim, adjudicated by OWCP File No. xxxxxx230, which was accepted for neck and shoulder
conditions.
As these files have not been administratively combined, the Board is unable to determine
whether all pertinent evidence had been reviewed by OWCP in the instant claim to determine
whether appellant established entitlement to the claimed period of disability.
The record before the Board does not contain the evidence from the May 25, 2017
traumatic injury claim, OWCP File No. xxxxxx230, thus precluding a full and proper adjudication
of the claim for disability. The Board thus finds that the case is not in posture for decision as the
record as provided by OWCP is incomplete and would not permit an informed adjudication of the
case. The case must therefore be remanded to OWCP to administratively combine the File Nos.

2
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).

2

xxxxxx230 and xxxxxx721 and for further reconstruction and development as it may deem
necessary, to be followed by an appropriate decision. 3
IT IS HEREBY ORDERED THAT the August 28, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: October 22, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

3

See T.M., Docket No. 18-0887 (issued February 21, 2019).

3


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Colorado Springs, CO, Employer
)
___________________________________________ )
C.H., Appellant

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

Docket No. 07-2075
Issued: February 14, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 6, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated July 17, 2007, which denied appellant’s claim for
an occupational disease. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
developed a left wrist and hand condition while in the performance of duty.
FACTUAL HISTORY
On April 17, 2007 appellant, then a 61-year-old rural carrier, filed an occupational
disease claim alleging that he developed left wrist and hand pain while in the performance of
duty. He became aware of his condition in August 2005. Appellant did not stop work.
In support of his claim appellant submitted a statement and indicated that he experienced
left wrist and hand pain when grasping bundles and trays of mail. In statements dated April 4

and 16, 2007, appellant noted that, on March 18, 2007, he grasped a strap on his shirt sleeve and
experienced sharp pain in his left hand. He noted that the hand pain was similar to the pain he
experienced at work while grasping and delivering mail. Appellant came under the treatment of
Dr. John Ogrodnick, a Board-certified family practitioner, who treated him from March 23 to
April 11, 2007 for left hand pain. In reports dated March 23 to April 11, 2007, Dr. Ogrodnick
diagnosed left hand sprain and strain and noted with a check mark that appellant’s condition was
work related. He opined that appellant reached maximum medical improvement on April 11,
2007 and did not sustain permanent impairment. Dr. Ogrodnick discharged appellant from his
care. In duty status reports dated March 23 and 30, 2007, he diagnosed left hand sprain and
advised that appellant could return to work with restrictions of no use of the left hand. In a duty
status report dated April 11, 2007, Dr. Ogrodnick returned appellant to work without restrictions.
In a letter dated April 19, 2007, the Office advised appellant of the type of factual and
medical evidence needed to establish his claim, particularly requesting that he submit a
physician’s reasoned opinion addressing the relationship of his claimed condition and specific
employment factors.
Appellant submitted a report from Dr. Ogrodnick dated April 11, 2007, who noted that
appellant’s left hand was fully functioning and markedly improved since his last visit.
Dr. Ogrodnick noted that appellant was tolerating his full work duties. He noted fullness in the
palmar aspect of the left third metacarpal region which was nontender and advised that appellant
demonstrated excellent finger flexion and extension. Dr. Ogrodnick diagnosed left hand strain
resolved and noted that appellant had reached maximum medical improvement and could return
to work without limitations.
In a decision dated July 17, 2007, the Office denied appellant’s claim on the grounds that
the medical evidence was not sufficient to establish that his condition was caused by the
employment duties as required by the Federal Employees’ Compensation Act.1
LEGAL PRECEDENT
An employee seeking benefits under the Act has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of the Act, that the claim was timely filed within the applicable time
limitation period of the Act, that the injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
1

5 U.S.C. §§ 8101-8193.

2

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

2

statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by claimant. The
medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.3
ANALYSIS
It is not disputed that appellant’s duties as a rural carrier included repeatedly grasping
bundles of mail and casing mail while performing his duties as a rural carrier. It is also not
disputed that he has been diagnosed with left hand strain. However, appellant has not submitted
sufficient medical evidence to support the left hand strain is causally related to specific
employment factors or conditions. On April 19, 2007 the Office advised appellant of the type of
medical evidence needed to establish his claim. Appellant did not submit a rationalized medical
report from an attending physician addressing how specific employment factors may have caused
or aggravated his claimed condition.
Appellant submitted treatment notes from Dr. Ogrodnick dated March 23 to April 11,
2007, who treated him for left hand pain. Dr. Ogrodnick diagnosed left hand sprain and strain
and noted with a check mark that appellant’s condition was work related. The Board has held
that an opinion on causal relationship which consists only of a physician checking “yes” to a
medical form report question on whether the claimant’s condition was related to the history
given is of little probative value. Without any explanation or rationale for the conclusion
reached, such report is insufficient to establish causal relationship.4
In another report dated April 11, 2007, Dr. Ogrodnick noted that appellant’s left hand
was fully functioning and markedly improved since his last visit. He noted an essentially normal
physical examination and diagnosed left hand strain resolved. Dr. Ogrodnick opined that
appellant had reached maximum medical improvement and could return to work without

3

Solomon Polen, 51 ECAB 341 (2000).

4

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

3

limitations. His report is insufficient to establish the claim as he did not provide a history of
injury or specifically address whether appellant’s employment activities had caused or
aggravated a diagnosed medical condition.5
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.6 Causal relationships must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence and the Office
therefore properly denied his claim for compensation.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
developed an employment-related injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the July 17, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 14, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
5

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
6

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

4