United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.L., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Covington, KY, Employer
__________________________________________

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

Docket No. 15-1541
Issued: January 7, 2016

Case Submitted on the Record

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

JURISDICTION
On July 10, 2015 appellant filed a timely appeal from the April 27, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wageloss compensation and medical benefits for the April 3, 2013 accepted employment injury.

1
2

5 U.S.C. § 8101 et seq.

OWCP denied appellant’s request for oral hearing on June 25, 2015. While this decision is within the Board’s
jurisdiction, appellant did not appeal this decision.

FACTUAL HISTORY
On April 3, 2013 appellant, a 50-year-old mail classification clerk, sustained a traumatic
injury in the performance of duty when she walked into a room that had been sprayed for bed
bugs the night before and had an asthmatic reaction. OWCP accepted appellant’s claim for
aggravation of obstructive chronic bronchitis. Appellant received compensation for wage loss on
the periodic rolls beginning August 9, 2014.
Dr. Ralph F. Huller, Jr., Board-certified in pulmonary disease and an OWCP referral
physician, evaluated appellant on October 9, 2014. He reviewed OWCP’s statement of accepted
facts and appellant’s medical record. Dr. Huller noted that appellant was first diagnosed with
asthma in 2000. In 2005 appellant had a severe exacerbation that required a 28-day
hospitalization. From 2005 to 2012, she had three or four exacerbations of her asthma each year
that required either outpatient therapy with pulse steroid doses or, on several occasions, hospital
admission. Appellant was hospitalized in 2012, which was noted to be triggered by stress over
her son’s death. From 2012 to 2013, she had fewer instances of asthma episodes since it was
diagnosed in 2000.
Dr. Huller reviewed appellant’s history of injury in April 2013. He advised that her
physical examination on October 9, 2014 was entirely normal. Dr. Huller added that appellant
now felt her strength, endurance, and ventilator status had returned to her prior baseline.
Appellant was reluctant, however, to attempt a return to work, to an environment that she
considered threatening and a high risk which could result in a recurrence.
Responding to questions posed by OWCP, Dr. Huller advised that appellant was
currently suffering from chronic persistent asthma of moderate severity with fair control
unrelated to work. He noted that the asthma had been present since 2000 and had fluctuations in
activity and severity during this interval. Dr. Huller also noted that appellant was suffering from
reactive airways dysfunction due to the probable chemical exposure that occurred at work in
April 2013; however, there were no current objective findings to support any residuals of the
accepted aggravation of obstructive chronic bronchitis (reactive airways dysfunction). Appellant
admitted that she had returned to her prior level of activity and disease state. He noted that there
were no objective findings of a continued active presence of the condition. Dr. Huller therefore
opined: “The only way I know to see if it is still operative would be to reexpose her to that
irritant that triggered the condition.”
It was Dr. Huller’s opinion that appellant’s condition had returned to its preinjury status
and that the accepted aggravation had ceased, though her sensitivity to the implicated irritant
might be permanent. Other irritants continued to trigger appellant’s asthma, including exercise,
extremes of temperature, extremes of dust, chemical fumes, and odors. These nonspecific
irritants predated her pesticide exposure and would certainly continue.
On the issue of injury-related disability, Dr. Huller did not feel there were any residuals
of the work-related aggravation that would preclude her from performing her job. His only
concern was the risk of reexposure to the chemical irritant that triggered her initial reaction.

2

OWCP provided a copy of Dr. Huller’s report to Dr. Christopher E. Hayner, the attending
Board-certified specialist in pulmonary disease, and asked whether he concurred. However,
Dr. Hayner’s prior treatment note had indicated that appellant’s asthma remained under decent
control with no new symptoms and her symptoms waxed and waned. He noted that she was able
to stay off steroids and complete activities of daily living without significant limitation.
In December 2014 Dr. Hayner noted findings consistent with his prior evaluation and
reported that appellant denied disability. In February 2015 he noted that appellant was very
stable and that she was contemplating going back to work if the employing establishment could
get her into an environment that was less likely to exacerbate her asthma.
On March 20, 2015 OWCP notified appellant that it proposed to terminate her wage-loss
compensation and medical benefits as her disability had ceased. It found that the weight of the
medical evidence, represented by the opinion of Dr. Huller, established that she no longer had
any residuals or continuing disability for work stemming from the April 2013 exposure.
In response to the proposed termination of benefits, appellant submitted several brief
notes from Dr. Hayner from February and April 2015. The notes advised that appellant could
return to full duty on March 9, 2015, but that: “Patient needs to be placed in another building
with less exposure to chemicals.” Another note documented: “[Appellant] is trying to return
back to work into another building, but there is [a] procedure that she has to go through [with]
management, before she is able to return.”
In a decision dated April 27, 2015, OWCP finalized the termination of wage-loss
compensation and medical benefits.
On June 1, 2015 appellant requested a hearing before an OWCP hearing representative.
On June 25, 2015 OWCP denied appellant’s hearing request as untimely and explained that she
could address the issue in her case equally well by requesting reconsideration from OWCP.
On appeal, appellant argues that she lost significant income in April, May, and June 2015
while waiting for her manager to arrange her return to work.
LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.3 Once OWCP accepts a claim,
it has the burden of proof to justify termination or modification of compensation benefits.4 After
it has determined that an employee has disability causally related to federal employment, OWCP
may not terminate compensation without establishing that the disability has ceased or that it is no
longer related to the employment.5
3

5 U.S.C. § 8102(a).

4

Harold S. McGough, 36 ECAB 332 (1984).

5

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).

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When employment factors cause an aggravation of an underlying physical condition, the
employee is entitled to compensation for periods of disability related to the aggravation. However,
when the aggravation is temporary and leaves no permanent residuals, compensation is not payable
for periods after the aggravation has ceased. This is true even though the employee is found
medically disqualified to continue in such employment because of the effect that the employment
factors might have on the underlying condition. Under such circumstances, the employee’s
disqualification for continued employment is due to the underlying condition without any
contribution by the employment.6
ANALYSIS
Appellant suffered from an underlying asthma condition since she was first diagnosed in
2000. As Dr. Huller, the second opinion pulmonary disease specialist, explained that she had a
severe exacerbation in 2005, followed by three or four exacerbations each year thereafter until
2012.
On April 3, 2013 appellant suffered an exacerbation of her underlying condition when
she walked into a room at work that had been sprayed the night before with a pesticide.
Accepting that this single exposure caused an aggravation, OWCP paid compensation for the
disability resulting from that exposure.
Dr. Hayner, the attending specialist in pulmonary disease, saw appellant in
September 2014 and noted that appellant’s asthma remained under decent control with no new
symptoms. Her symptoms waxed and waned, but for the most part she was able to stay off
steroids and complete activities of daily living without much limitation.
Dr. Huller examined appellant one month later and found that her physical examination
was entirely normal. Indeed, appellant advised that her strength, endurance, and ventilator status
had returned to her prior baseline. Dr. Huller could find no current objective findings to support
any residuals of the accepted aggravation from April 2013. He concluded that appellant’s
sensitivity had returned to its preinjury status and that the accepted aggravation had ceased.
Dr. Hayner saw appellant in December 2014 and again found that her asthma remained
under decent control with no new symptoms. Further, Dr. Hayner noted that appellant denied
disability. In February 2015 he added that appellant was very stable.
The Board finds that the weight of the medical opinion evidence rests with Dr. Huller,
who directly addressed the issue of injury-related residuals. OWCP provided him with a
statement of accepted facts and appellant’s medical record so he could base his opinion on a
proper factual and medical history. Dr. Huller’s findings appear consistent with those of
Dr. Hayner as well as appellant’s own assessment of her status. Moreover, his conclusion is
sound, logical, and rational. Appellant had an underlying asthma condition that was aggravated
by a work exposure on April 3, 2013. This caused disability for work, but after a period of time
away from the irritant in question, appellant returned to her preinjury or preexposure baseline.

6

Gaeten F. Valenza, 39 ECAB 1349 (1988).

4

Accordingly, appellant is not entitled to compensation after the April 2013 aggravation of her
underlying condition ceased.
The Board finds that OWCP met its burden to terminate appellant’s wage-loss
compensation and medical benefits for the April 3, 2013 aggravation. The Board will affirm
OWCP’s April 27, 2015 decision.
Appellant argues that she should receive further compensation for her wage loss in April,
May, and June 2015, when her manager was attempting to arrange her return to work. However,
the record establishes that her wage loss for this period was not the result of any disability
attributable to the April 3, 2013 exposure. That aggravation had resolved. Rather, it appears that
she was not able to return to work promptly after the termination of her compensation because of
the effect employment factors might have on her underlying condition. The manager had to find
out when rooms would be sprayed and when appellant could return to her work environment.
Appellant told Dr. Huller that she was reluctant to attempt a return to work because she
considered the environment threatening and a high risk to result in recurrence disease. The
Board has held, however, that fear of future injury, or fear of a recurrence of disability if the
employee returns to work, is not compensable. There must be medical evidence showing that a
claimant is currently disabled for work due to an employment-related condition.7
Dr. Hayner also noted that appellant was contemplating going back to work if the
employing establishment could get her into an environment that was less likely to exacerbate her
asthma, but again, this was out of concern for the effect that the work environment might have
on appellant’s underlying condition. The wage loss in April, May, and June was not the result of
a continuing aggravation from the April 3, 2013 exposure. In the case of Gaeten F. Valenza,8 the
medical evidence indicated that the claimant would again have asthma attacks if he returned to
an environment involving exposure to tobacco smoke. The Board observed, however, that the
proscription against returning to such an environment was based on the effect the exposure might
have on the underlying condition, and the possibility of future injury did not constitute an injury
under FECA. Accordingly, no compensation could be paid for such possibility.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits for the April 3, 2013 aggravation of her obstructive chronic
bronchitis.

7

William A. Kandel, 43 ECAB 1011 (1992); Mary A. Geary, 43 ECAB 300 (1991).

8

Supra note 5.

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ORDER
IT IS HEREBY ORDERED THAT the April 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 7, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


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

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Appearances:
Raymond Bermudez, for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1373
Issued: February 12, 2019

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 July 5, 2018 appellant, through his representative, filed a timely appeal from an
April 25, 2018 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.3
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
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish that his right arm
and left leg conditions were causally related to the accepted August 29, 2017 employment incident.
FACTUAL HISTORY
On August 29, 2017 appellant, then a 52-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that, on that same date, while in the performance of duty, he was
trying to turn a sidewinder to move pallets when he fell off the sidewinder. He reported that the
fall caused him to twist his left leg and bruise his right arm. Appellant notified his supervisor,
stopped work, and sought emergency medical treatment on the date of the incident.
On the alleged date of injury the employing establishment issued appellant a properly
completed authorization for examination and/or treatment (Form CA-16), which indicated that he
was authorized to seek medical treatment at Brookdale Medical Center. An August 29, 2017
Brookdale Emergency Department note documents appellant’s treatment for contusion of the
lower leg. Appellant was released to return to work on September 2, 2017.
In a September 6, 2017 duty status report (Form CA-17), a physician medical provider
indicated that appellant was disabled and unable to resume work as a result of a left calf strain and
contusion.4
By development letter dated September 20, 2017, OWCP notified appellant that his claim
was initially administratively handled to allow medical payments, as it appeared to involve a minor
injury resulting in minimal or no lost time from work. However, the merits of his claim had not
been formally considered and his claim had been reopened for consideration of the merits because
he had not returned to work in a full-time capacity. OWCP informed appellant that the evidence
of record was insufficient to establish his traumatic injury claim. It advised appellant of the
medical and factual evidence needed and afforded 30 days to submit the additional evidence.
In a September 6, 2017 medical report, Dr. Todd Soifer, a Board-certified orthopedic
surgeon, reported that appellant injured his left calf region while at work on August 29, 2017. He
provided findings on physical examination and noted that an x-ray of the left leg revealed no
fracture. Dr. Soifer diagnosed left calf contusion and left calf strain/derangement. He further
recommended a walker and provided work restrictions.
In a September 20, 2017 addendum report, Dr. Soifer reported that appellant’s Doppler
lower extremity study of the left leg revealed “soleal DVT [deep vein thrombosis].” Appellant
was referred to a vascular specialist for treatment.
In a September 28, 2017 medical report, Dr. Soifer reported that appellant’s left calf
condition had improved. Appellant also reported a right forearm injury from the employment
incident which had yet to resolve. Dr. Soifer provided findings on physical examination and
diagnosed right forearm strain. He further recommended a Doppler study of the upper extremities.
4

The physician’s signature is illegible.

2

Dr. Soifer provided Form CA-17s dated September 25 and 28, 2017, which restricted appellant
from returning to work due to a torn calf muscle.
By decision dated October 25, 2017, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that his diagnosed medical conditions were
causally related to the accepted August 29, 2017 employment incident.
On November 16, 2017 appellant requested review of the written record by an OWCP
hearing representative.
In a September 22, 2017 diagnostic report, Dr. Gary Gwertzman, a Board-certified
vascular surgeon, reported that a lower limb venous duplex scan revealed left acute DVT of the
mid soleal vein. In a September 28, 2018 upper limb venous duplex scan, he reported that the right
arm revealed no evidence of upper extremity superficial phlebitis or DVT.
In an October 16, 2017 medical report, Dr. Scott Weiss, a Board-certified orthopedic
surgeon, reported that appellant presented for evaluation of left leg pain after he fell at work on
August 29, 2017. Appellant was using crutches and reported difficulty walking due to pain in the
left calf. He noted that the left calf was initially black and blue and swollen, but had improved
significantly since the injury. Dr. Weiss reported that appellant was unable to get a magnetic
resonance imaging (MRI) scan because of his cochlear implants. He noted that appellant also
scratched his right arm during his fall, which had resolved, other than some residual numbness on
the right fifth finger. Dr. Weiss diagnosed pain in left knee, paresthesia of skin, strain of
muscle/tendon of left lower leg, and sprain of medial collateral ligament of left knee. He also
noted a diagnosis of left calf strain/partial tear of the medial gastrocnemius muscle. With respect
to appellant’s right arm, Dr. Weiss diagnosed right fifth finger paresthesias, which he opined could
be a mild case of cubital tunnel syndrome.
In medical notes dated October 19 and November 16, 2017, Dr. Soifer noted appellant’s
treatment and progress for his left lower extremity conditions.
In a November 7, 2017 report, Dr. Soifer related that he first evaluated appellant on
September 6, 2017 as a result of an August 29, 2017 employment injury when he hurt his left calf
region. He reported that physical examination revealed moderate medial and lateral gastroc
tenderness, as well as local swelling and medial and lateral ecchymosis. The diagnosis at that time
was left calf strain derangement. While his condition had somewhat improved, appellant’s
September 20, 2017 evaluation revealed continued moderate medial gastroc tenderness. He was
referred for a Doppler study of his leg which revealed a clot, causing him to seek treatment with
Dr. Gwertzman for soleal DVT. Dr. Soifer reported that appellant’s left calf continued to improve
with just a trace of discomfort on the medial side and slight discomfort on the lateral side. He
diagnosed medial calf strain and subsequent DVT. Dr. Soifer opined that, based on the history,
there was a close relationship between the condition described and the employment incident. He
concluded that appellant had been disabled from his employment since the time of his last visit,
although his condition was improving.
In a March 20, 2018 narrative statement, appellant described the circumstances
surrounding the August 29, 2017 employment incident.

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By decision dated April 25, 2018, OWCP’s hearing representative affirmed the
October 25, 2017 decision, finding that the evidence of record was insufficient to establish that the
diagnosed medical conditions were causally related to the accepted August 29, 2017 employment
incident.
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, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.6 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.7
In order to determine whether an employee actually sustained an injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components, which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.8 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.9 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.
This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.10

5

Supra note 2.

6

Gary J. Watling, 52 ECAB 278 (2001).

7

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

8

Elaine Pendleton, 40 ECAB 1143 (1989).

9

J.P., Docket No. 18-1165 (issued January 15, 2019).

10

James Mack, 43 ECAB 321 (1991).

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ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his left calf
and right arm conditions were causally related to the accepted August 29, 2017 employment
incident.11
The record reflects that appellant sought immediate emergency medical treatment
following the August 29, 2017 employment incident. While the Brookdale Hospital Emergency
Department note documented treatment for a left lower leg contusion, this report lacked a history
of injury and opinion regarding the cause of the diagnosed condition. As this medical report lacked
both a proper history and a rationalized opinion regarding causal relationship, it is of limited
probative value.12
Appellant also submitted medical and form reports dated September 6 to November 7,
2017 from Dr. Soifer, his attending physician. The Board finds that the opinion of Dr. Soifer is
not well rationalized. While he provided a diagnosis of left medial calf strain and subsequent
DVT, Dr. Soifer failed to provide a fully rationalized opinion that appellant’s left lower extremity
conditions were causally related to the accepted August 29, 2017 employment incident. He opined
that, based on appellant’s history, there was a close relationship between the condition described
and the history of injury. The Board notes that Dr. Soifer did not definitively relate appellant’s
diagnosed medical conditions to the accepted August 29, 2017 employment incident. Dr. Soifer’s
opinion on causation is highly speculative and couched in equivocal terms. To be of probative
value, a physician’s opinion on causal relationship should be one of reasonable medical certainty.13
Moreover, Dr. Soifer failed to provide a detailed history of the employment incident, only
generally noting that appellant injured his left calf region at work on August 29, 2017. Without
an understanding of the employment incident, any opinion on causal relationship is of limited
probative value as the physician is unable to describe how the incident caused appellant’s injury.14
Dr. Soifer’s reports lack the specificity and detail needed to establish appellant’s claim.15
Dr. Soifer further failed to establish a work-related right arm injury. While he provided a
firm medical diagnosis of right forearm sprain, he did not provide an opinion on the cause of this
condition. As such, Dr. Soifer’s reports are of no probative value,16 and are thus insufficient to
meet appellant’s burden of proof.17

11

See Robert Broome, 55 ECAB 339 (2004).

12

See Z.D., Docket No. 16-0934 (issued November 8, 2016).

13

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

14

See L.M., Docket No. 14-0973 (issued August 25, 2014); R.G., Docket No. 14-0113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-0548 (issued November 16, 2012).
15

P.O., Docket No. 14-1675 (issued December 3, 2015); S.R., Docket No. 12-1098 (issued September 19, 2012).

16

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

17

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

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The Board finds that Dr. Weiss’ October 16, 2017 report is also insufficient to establish
appellant’s traumatic injury claim. While Dr. Weiss provided a diagnosis of strain of
muscle/tendon of left lower leg and sprain of medial collateral ligament of left knee, he failed to
provide any opinion regarding the cause of appellant’s conditions. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition is of no
probative value on the issue of causal relationship.18
The remaining medical evidence of record is also insufficient to establish appellant’s claim.
Dr. Gwertzman’s diagnostic reports of record dated September 22 and 28, 2017 simply interpret
imaging studies. The Board has held that reports of diagnostic tests lack probative value as they
do not provide an opinion on causal relationship between appellant’s employment and a diagnosed
condition.19 The Board finds, therefore, that this evidence is insufficient to establish appellant’s
claim.
The fact that a condition manifests itself during a period of employment is insufficient to
establish causal relationship.20 Temporal relationship alone will not suffice. Entitlement to FECA
benefits may not be based on surmise, conjecture, speculation, or on the employee’s own belief of
a causal relationship.21 In the instant case, the record lacks rationalized medical evidence
establishing causal relationship between the August 29, 2017 employment incident and his
diagnosed conditions.22 Thus, appellant has failed to meet his burden of proof.23
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s 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 that his right
arm and left leg conditions were causally related to the accepted August 29, 2017 employment
incident.

18

See supra note 16.

19

See P.Y., Docket No. 18-1136 (issued January 7, 2019).

20

Daniel O. Vasquez, 57 ECAB 559 (2006).

21

D.D., 57 ECAB 734 (2006).

22

See J.S., Docket No. 17-0507 (issued August 11, 2017).

23

The record contains a Form CA-16 signed by the employing establishment official on August 29, 2017 for
treatment pertaining to the employment injury. When the employing establishment properly executes a Form CA-16
which authorizes medical treatment as a result of an employee’s claim for an employment-related injury, the Form
CA-16 creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. The period for which treatment is authorized by
a Form CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R.
§ 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated April 25, 2018 is affirmed.
Issued: February 12, 2019
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, INTERNATIONAL
SERVICE CENTER, Chicago, IL, Employer
__________________________________________

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

Docket No. 16-0924
Issued: August 1, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 1, 2016 appellant filed a timely appeal from a February 4, 2016 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 her burden of proof to establish a bilateral hand
condition causally related to factors of her federal employment.
FACTUAL HISTORY
On April 8, 2015 appellant, then a 30-year-old clerk, filed an occupational disease claim
(Form CA-2) alleging that on April 7, 2015 she first became aware of her injury and realized that
it was caused by repetitive motion at work. In an accompanying “employee statement” dated
1

5 U.S.C. § 8101 et seq.

April 8, 2015, she claimed that her hand began to tingle and burn while she was keying at work.
Appellant informed her supervisor about her condition. She tried to continue to work, but her
pain persisted.
In an April 7, 2015 emergency room report and employee discharge summary report,
Dr. Christina B. Dorow, a physician Board-certified in emergency medicine, noted April 7, 2015
as the date of injury, diagnosed right carpal tunnel syndrome, and advised that appellant could
return to the next work shift with restrictions.
In a discharge summary report dated April 9, 2015, Dr. Halina Kalinowska, a family
practitioner, noted April 7, 2015 as the date of injury and appellant’s description of injury.
Appellant stated that she felt a burning, numbness, and tingling sensation in her right hand with
the use of a keyboard. Dr. Kalinowska diagnosed carpal tunnel syndrome and released her to
return to modified work with restrictions.
By letter dated May 7, 2015, OWCP advised appellant of the deficiencies of her claim
and afforded her 30 days to submit additional evidence and respond to its inquiries.
On May 15, 2015 appellant described her daily work duties, which included lifting boxes
and bags of mail (packages) weighing up to 70 pounds, scanning packages, keying in barcodes
and zip codes, pulling or pushing bags of mail off belts and onto scales and back onto the belts,
pulling and pushing metal cages, sorting piles of flats (letters) into bags and carts, and facing
mail which involved pulling and pushing boxes of mail. She performed these duties
approximately seven hours a day, five days a week. Appellant related that her right hand pain
had worsened since April 7, 2015. She had pain going up her right hand, wrist, arm, and
shoulder. Appellant had to use her left hand at work and she claimed to have also developed
pain in this hand and wrist. She stated that she had no previous injuries and had not been
diagnosed with any of these conditions.
An April 21, 2015 physician’s order form with an unknown signature stated that
appellant had tenosynovitis and peripheral neuropathy.
In a May 22, 2015 report of an electromyogram and nerve conduction velocity study
(EMG/NCV), Dr. Wayne R. Gavino, a Board-certified neurologist, provided an impression of
electrodiagnostic evidence of bilateral median entrapment neuropathy at the wrists compatible
with bilateral mild-to-moderate carpal tunnel syndrome, slightly worse on the right. Dr. Gavino
also provided an impression of electrodiagnostic evidence of a mild degree of bilateral ulnar
sensory neuropathy at the wrists and a mild left ulnar motor neuropathy across the elbow.
In a May 27, 2015 attending physician’s report (Form CA-20), Dr. Chiragi M. Shah, a
Board-certified family practitioner, provided a history of injury that appellant complained about
bilateral hand pain to the employing establishment on April 7, 2015. Dr. Shah diagnosed
bilateral carpal tunnel syndrome. He advised that the condition may have been aggravated by
repeated hand work. In a May 27, 2015 referral form, Dr. Shah referred appellant to a
neurologist to evaluate her bilateral carpal tunnel syndrome.
In an April 9, 2015 narrative report, Dr. Kalinowska related the history of appellant’s
injury and provided a history of her medical treatment. She complained about numbness and
2

tingling in her right wrist, especially with movement. Appellant denied any previous symptoms,
injuries, or other complaints. Dr. Kalinowska reported examination findings, reiterated her
diagnosis of right hand carpal tunnel syndrome, and provided work restrictions. In an April 9,
2015 employee status report, she again diagnosed carpal tunnel syndrome. Dr. Kalinowska
indicated with a checkmark that the condition was work related. She released appellant to return
to work with restrictions as of the date of her report.
A hospital report dated April 9, 2015 with an unknown signature provided a history of
injury that appellant was keying and scanning when she felt pain in her right hand and wrist.
The report provided examination findings and a diagnosis of carpal tunnel syndrome. In an
April 7, 2015 unsigned emergency room employee status report, appellant was diagnosed with
work-related right carpal tunnel syndrome. The report stated that she could return to the next
work shift with restrictions.
By decision dated July 23, 2015, OWCP denied appellant’s occupational disease claim.
It found that the medical evidence submitted did not contain a rationalized medical opinion to
establish a causal relationship between her diagnosed right wrist condition and the established
factors of employment.
On August 22, 2015 appellant requested an oral hearing before an OWCP hearing
representative, which was held on December 21, 2015.
In reports dated November 4 and December 18, 2015, Dr. Eugene P. Lopez, a Boardcertified orthopedic surgeon, indicated that appellant was under his care for a new injury that
occurred on April 7, 2015. Dr. Lopez noted that she was working as a mail processor on that
date and had numbness and tingling in her right hand while lifting up to 75 pounds and scanning
items. Appellant had continued sharp pain that went into her right hand and elbow. About a
month later, she had the same symptoms in her left hand and elbow due to overcompensating for
her right hand. Appellant’s symptoms had since worsened. She had moderate right side pain
which she rated as 5 out of 10. Appellant rated her mild left side pain as 2 out of 10. She had
flare-ups that included numbness, tingling, sharp pain, achiness, and weakness. Appellant had
difficulties performing her job duties, housework, and daily tasks due to numbness. Dr. Lopez
provided a history of her medical treatment and personal and social background. He reported
findings on examination and reviewed diagnostic test results, including the May 22, 2015
EMG/NCV results, which he found showed bilateral carpal tunnel syndrome and bilateral cubital
tunnel syndrome. Dr. Lopez diagnosed work-related bilateral cubital tunnel syndrome and
bilateral carpal tunnel syndrome. He believed that appellant’s injury was directly caused by an
aggravation that may be permanent while working as a mail processing clerk for the employing
establishment. Dr. Lopez noted that her job consisted of repetitive motion that involved heavy
lifting, pushing, pulling, grasping, twisting, turning, and constant use of her hands. He
maintained that the bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome were
due to appellant’s repetitive tasks. Dr. Lopez related that to his knowledge appellant never had
an injury to these areas. He concluded that she could return to work with no restrictions.
In a February 4, 2016 decision, an OWCP hearing representative affirmed the July 23,
2015 decision. The hearing representative found that the medical evidence submitted was

3

insufficiently rationalized to establish causal relationship between the accepted employment
factors and appellant’s upper extremity conditions.2
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
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) 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
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 the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
medial rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.5
ANALYSIS
OWCP accepted as factual that appellant performed the work duties of a clerk, which
involved keying, lifting, scanning, pushing, pulling, sorting, facing, grasping, twisting, and
turning. The Board finds, however, that the medical evidence of record is insufficient to
establish that she sustained a bilateral hand condition caused or aggravated by the accepted work
factors.
Dr. Lopez’s reports found that appellant had bilateral cubital tunnel syndrome and
bilateral carpal tunnel syndrome aggravated by her mail processing clerk work duties. He
reported that her work duties involved heavy lifting, pushing, pulling, grasping, twisting, turning,
2

The Board notes that after issuance of the OWCP hearing representative’s February 4, 2016 decision, appellant
submitted new medical evidence. The Board however is precluded from reviewing evidence which was not before
OWCP at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1).
3

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

4

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

5

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id.

4

and constant use of her hands. Dr. Lopez noted that appellant experienced numbness and
tingling in her right hand while performing her work duties and that she subsequently
experienced the same symptoms in her left hand and elbow due to overcompensating for her
right hand. The Board finds, however, that Dr. Lopez failed to explain the mechanism of injury
by detailing how the particular work factors would cause the diagnosed conditions. The Board
has consistently held that a medical opinion not fortified by rationale is of limited probative
value.6
Dr. Kalinowska’s April 9, 2015 employee status form report diagnosed appellant with
carpal tunnel syndrome. By checkmark she indicated that the 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.7
Dr. Kalinowska failed to provide any medical rationale supporting her opinion that appellant’s
carpal tunnel syndrome was due to the accepted work factors. Her remaining reports failed to
provide an opinion addressing whether appellant’s right carpal tunnel syndrome was caused by
the established employment factors. Medical evidence that does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value.8 For the reasons stated, the
Board finds that Dr. Kalinowska’s reports are of diminished probative value and are insufficient
to establish appellant’s claim.
Dr. Shah’s May 27, 2015 Form CA-20 report diagnosed bilateral carpal tunnel syndrome.
He opined that the condition “may” have been aggravated by repeated hand work. Dr. Shah’s
opinion was not expressed to a reasonable degree of medical certainty, but rather, is equivocal
and speculative in nature. His use of the term “may” renders his opinion speculative in nature.9
Further, Dr. Shah did not explain how the accepted employment factors aggravated appellant’s
condition.10 In a May 27, 2015 referral form, he referred appellant to a specialist for further
evaluation of her bilateral carpal tunnel syndrome. However, this evidence is of diminished
probative value as Dr. Shah did not provide an opinion addressing whether the diagnosed
condition was caused or aggravated by the accepted employment factors.11
Likewise, the April 7 and May 22, 2015 reports of Drs. Dorow and Gavino, respectively,
are of diminished probative value. The physicians diagnosed appellant with right carpal tunnel

6

M.H., Docket No. 12-733 (issued September 5, 2012).

7

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

8

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004);
Michael E. Smith, 50 ECAB 313 (1999).
9

L.R. (E.R.), 58 ECAB 369 (2007); D.D., 57 ECAB 734 (2006); M.W., 57 ECAB 710 (2006); Ceclia M. Corley,
56 ECAB 662 (2005).
10

Supra note 6.

11

Supra note 8.

5

syndrome and bilateral cubital tunnel syndrome, but failed to offer an opinion as to whether these
conditions were caused or aggravated by the accepted work factors.12
The April 7, 2015 emergency room employee status report, April 9, 2015 hospital report,
and April 21, 2015 physicians order form, which were not adequately signed, have no probative
medical value, as it cannot be established that the author is a physician.13
Appellant’s belief that factors of employment caused or aggravated her condition is
insufficient, by itself, to establish causal relationship.14 The issue of causal relationship is a
medical one and must be resolved by probative medical opinion from a physician. The Board
finds that there is insufficient medical evidence of record to establish that appellant’s bilateral
hand condition was caused or aggravated by the established employment factors. Appellant did
not meet her burden of proof.
On appeal, appellant contends that her bilateral hand condition was caused by her work
duties. For reasons stated above, the Board finds that the weight of the medical evidence does
not establish that appellant sustained a bilateral hand condition causally related to the accepted
employment duties.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish her
bilateral hand condition was causally related to factors of her federal employment.

12

Id.

13

See D.D., supra note 7; Merton J. Sills, 39 ECAB 572, 575 (1988).

14

20 C.F.R. § 10.115(e); Phillip L. Barnes, 55 ECAB 426, 440 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the February 4, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 1, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Laredo, TX, Employer
__________________________________________

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

Docket No. 12-1469
Issued: January 11, 2013

Case Submitted on the Record

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

JURISDICTION
On June 27, 2012 appellant filed a timely appeal from the January 26, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied his hearing
loss claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a hearing loss in the performance of duty.
FACTUAL HISTORY
On October 25, 2010 appellant, a 59-year-old chief customs and border protection
officer, filed an occupational disease claim alleging that his hearing loss was a result of his
federal employment. He explained that he worked at the employing establishment for about 38
1

5 U.S.C. § 8101 et seq.

years and had spent about 80 to 85 percent of that time in the cargo environment, working among
heavy-duty 18-wheel tractors. For years appellant was also in charge of the firing range.
On November 16, 2010 Dr. Enrique T. Garcia, a Board-certified otolaryngologist,
conducted an essentially normal examination of appellant and diagnosed, from an audiogram
obtained that day, a bilateral high-frequency sensorineural hearing loss “suspect acoustic trauma,
severe with good discrimination.” The tester judged the consistency good and reliability
acceptable.2
Dr. William Carl Smith, a Board-certified otolaryngologist and OWCP referral physician,
examined appellant on February 23, 2011. He found that the workplace exposures were
sufficient as to intensity and duration to cause a sensorineural hearing loss. However, appellant’s
responses on the audiogram obtained that date were unreliable:
“I cannot make a diagnosis today because during today’s audiological evaluation
the claimant had to be reinstructed several times due to the inconsistent responses.
The claimant was asked repeatedly to respond by pressing the button when he
heard the beeps even if the beeps were very soft, barely there or as if they were
very far away. Speech reception threshold testing was performed and the
claimant was able to respond to speech at a level well below the level that he
claimed to hear the tones. Correctly identifying speech is a much more
complicated task than responding to pure tones and thus the claimant should not
be able to respond to speech at a lower level. Further testing also revealed
hearing is better than reported.”
OWCP’s medical adviser reviewed the record and selected the audiogram obtained for
Dr. Smith, as it was the most recent reflection of appellant’s hearing, it met all of OWCP’s
standards,3 and it was an integral part of Dr. Smith’s evaluation. Dr. Smith, however, had found
the audiogram inconsistent and unreliable. The medical adviser noted that it was appellant’s
2

Neither Dr. Garcia nor the tester certified that at the time of examination the equipment used for testing met the
standards for accreditation of an audiological facility by the American Speech-Language-Hearing Association
(ASHA).
3

The audiological evaluation and the otological examination are to be performed by different individuals as a
method of evaluating the reliability of the findings through independent observations. If possible, the two
consultations should occur on the same day. The usual information sent to consultants should be forwarded to both
the audiologist and otolaryngologist. The audiological testing is to be performed by persons possessing certification
in audiology from ASHA or State licensure as an audiologist. The audiological testing should precede the visit to
the otolaryngologist since the latter should have the audiological findings at the time of the examination. The
audiological examination should be conducted in accordance with OWCP requirements. The medical examination
should be performed by an otolaryngologist certified (or eligible for certification) by the American Board of
Otolaryngology. The physician should be instructed to conduct additional tests or retests in those cases where the
initial tests were inadequate or there is reason to believe the claimant is malingering. Audiological equipment used
for testing must meet the calibration protocol embodied in the Professional Services Board Manual of ASHA. Each
audiologist or physician who conducts hearing tests must certify that at the time of examination the equipment used
for testing met the standards for accreditation of an audiological facility by ASHA (ANSI S 3.6 (1969) and 3.1
(1977), respectively). Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports,
Chapter 3.600.8.a (September 1994).

2

responsibility to present valid audiometry and a physician’s valid evaluation. “A probative
schedule award cannot be determined by an evaluation that is of questionable validity.”
Appellant returned to Dr. Smith on May 24, 2011 for retesting and further evaluation.
Dr. Smith’s audiometric responses continued to be unreliable. He refused to sit still to complete
auditory brainstem response (ABR) testing. Distortion-product otoacoustic emissions (DPOAEs)
were consistent with normal or near-normal cochlear function for the left ear. This was not
consistent with his behavioral audiogram. Dr. Smith concluded: “It is at least as likely as not
that the claimant has normal hearing.” He explained that speech reception thresholds and word
recognition scores were consistent with normal hearing. ABR testing was terminated because
appellant could not remain still to continue a latency intensity search. Further, appellant’s
behavioral audiogram improved each time he was tested.
A second OWCP medical adviser reviewed the record. He concluded that no schedule
award for binaural hearing loss could be made on the basis of the ABR testing. It could be made
only from the results of a valid behavioral audiogram endorsed as such by an otolaryngologist.
In a January 26, 2012 decision, OWCP denied appellant’s occupational disease claim. It
found that he had not met his burden to provide medical evidence establishing a diagnosed
condition causally related to the established work factors.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his duty.4 An employee seeking benefits under
FECA has the burden of proof to establish the essential elements of his or her claim. When an
employee claims that he or she sustained an injury in the performance of duty, he or she must
submit sufficient evidence to establish that he or she experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged. He or she must also establish
that such event, incident or exposure caused an injury.5
Causal relationship is a medical issue6 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,7 must be
one of reasonable medical certainty8 and must be supported by medical rationale explaining the

4

5 U.S.C. § 8102(a).

5

John J. Carlone, 41 ECAB 354 (1989).

6

Mary J. Briggs, 37 ECAB 578 (1986).

7

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

8

See Morris Scanlon, 11 ECAB 384, 385 (1960).

3

nature of the relationship between the diagnosed condition and the established incident or factor
of employment.9
ANALYSIS
To support his hearing loss claim, appellant submitted an evaluation by Dr. Garcia, an
otolaryngologist, who diagnosed a bilateral high-frequency sensorineural hearing loss. The
audiogram obtained that date gave no indication that it was performed by a certified
audiologist.10 The audiogram also lacked complete calibration data.11 OWCP referred appellant
to Dr. Smith, another otolaryngologist, for proper testing.
Appellant’s responses on the audiogram obtained for Dr. Smith were inconsistent and
unreliable. Dr. Smith explained that he could not make a diagnosis. When the reliability of
audiometric tests is poor, OWCP should instruct the referral physician to perform appropriate
tests to determine the reason for testing inconsistency.12
Appellant returned to Dr. Smith for retesting, but his responses on the audiogram
remained unreliable. ABR testing was attempted, but it was terminated because appellant could
not sit still. DPOAEs were nonetheless consistent with normal or near-normal cochlear function
in the left ear. Speech reception thresholds and word recognition scores were also consistent
with normal hearing. Dr. Smith concluded that it was at least as likely as not that appellant had
normal hearing.13
OWCP has fulfilled its obligation to develop the medical evidence.14 Appellant’s
inconsistent responses twice prevented a Board-certified otolaryngologist from diagnosing a
hearing loss. Indeed, some findings were judged consistent with normal hearing.
The Board therefore finds that appellant has not met his burden to establish that he
sustained a hearing loss in the performance of duty. Without a firm diagnosis based on a reliable
audiogram, there are no grounds for approving appellant’s occupational injury claim.15 The
Board will affirm OWCP’s January 26, 2012 decision.
9

See William E. Enright, 31 ECAB 426, 430 (1980).

10

Luther C. Boyce, Docket No. 93-2025 (issued January 19, 1995).

11

Neil M. Taylor, Docket No. 03-1671 (issued September 3, 2003).

12

M.S., Docket No. 07-1465 (issued November 20, 2007).

13

See Chester G. Christenson, 29 ECAB 35 (1977) (where an OWCP referral otolaryngologist could not
determined the extent of the claimant’s hearing loss because of inconsistent responses and lack of cooperation and
attention during testing, and where a second referral otolaryngologist questioned whether there was any hearing loss
because the audiogram he obtained was also not reliable, the Board found that the claimant had not met his burden
to establish that the condition upon which he predicated his claim was causally related to his federal employment).
14

Louise Ladnier, 37 ECAB 296 (1986).

15

See A.H., Docket No. 12-811 (issued August 13, 2012) (physician did not provide a firm diagnosis of the
claimant’s injury).

4

CONCLUSION
The Board finds that appellant has not met his burden to establish that he sustained a
hearing loss in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the January 26, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 11, 2013
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
U.S. POSTAL SERVICE, PROOTER STATION,
Tacoma, WA, Employer
__________________________________________

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

Docket No. 13-1182
Issued: September 26, 2013

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 April 17, 2013 appellant filed a timely appeal of a January 29, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying his emotional condition claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained
an emotional condition due to factors of his federal employment.
FACTUAL HISTORY
On August 1, 2012 appellant, then a 46-year-old letter carrier, filed an occupational
disease claim alleging that on July 10, 2012 he developed post-traumatic stress disorder due to
factors of his federal employment. He first attributed his condition to his employment on that
1

5 U.S.C. § 8101 et seq.

date. Appellant stopped work on June 29, 2012. He stated that since his absence from work on
June 30, 2012 his symptoms had decreased and stopped.
By letter dated August 9, 2012, OWCP requested additional factual and medical evidence
from appellant in support of his claim. It allowed 30 days for a response. On March 5, 2012 the
employing establishment informed appellant that the decision to make him a full-time regular
carrier had been rescinded and that he remained a part-time flexible carrier.
On March 17, 2012 appellant related that on March 16, 2012 at 10:00 a.m. he was given
four hours of work by Dan, the station manager, who informed appellant that the route should
take no more than five hours as appellant had not previously delivered the route. At 2:15 p.m.,
Pete Duban, his supervisor, approached him on the route to advise him that he was behind
schedule. He stated that another carrier was coming to take the remaining mail and that
appellant was to return to the employing establishment. Once there, Mr. Duban informed
appellant that as a part-time flexible carrier, he had worked his four hours and was done for the
day. Appellant asked about a “new route learning curve” and Mr. Duban stated that appellant
was too slow, inefficient and not meeting minimum expectations or standards. He protested that
he had never been taken off a route before and that he still had time to complete the route.
Mr. Duban stated, “You are done and goodbye.”
Appellant submitted a statement dated August 1, 2012 and detailed his work activities
beginning January 9, 2012. “Manager Brenda” criticized him for calling the automated call-in
system due to his absence from work as the result of a migraine. Appellant received a promotion
letter on March 2, 2012 which was rescinded on March 5, 2012. On March 5 and 10, 2012 Judy
Thompson, a supervisor, blamed appellant for a late return without factual justification. Also on
March 10, 2012 appellant alleged there was a “bullying incident with supervisor” and that he
filed a grievance. He was absent on March 31, April 25 and 26 and June 9 and 23, 2012 due to
migraines and stomach upsets. Appellant stated that on June 11, 2012 he received unwarranted
criticism from “Supervisor Dennis” regarding his leave usage on June 9, 2012. On June 29 2012
he was assigned an unrealistic amount of work with an unrealistic deadline. Beginning on
June 30, 2012 appellant was absent from work due to post-traumatic stress disorder.
On August 8, 2012 Dr. Walter Hollow, Board-certified in family practice, diagnosed
post-traumatic stress disorder and migraine headaches secondary to stress and overwork. He
opined that appellant’s condition was caused by work as his symptoms lessened after he removed
himself from the stressful environment.
Appellant submitted a grievance form dated April 26, 2012 filed against Mr. Duban
alleging a hostile work environment. The grievance was resolved through an agreement of
mutual cooperation and clear communications.
By decision dated January 29, 2013, OWCP denied appellant’s claim finding that he
failed to submit sufficient evidence to establish a compensable factor of employment.

2

LEGAL PRECEDENT
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,2 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.3 There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.4 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.5 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a
personal injury sustained in the performance of duty within the meaning of FECA. Thus
disability is not covered when it results from an employee’s fear of a reduction-in-force, nor is
disability covered when it results from such factors as an employee’s frustration in not being
permitted to work in a particular environment or to hold a particular position.6
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.7 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.8 A claimant must support his or her allegations with probative and reliable
evidence. Personal perceptions alone are insufficient to establish an employment-related
emotional condition.9
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did, in fact, occur. Mere perceptions of
harassment or discrimination are not compensable under FECA. Unsubstantiated allegations of
harassment or discrimination are not determinative of whether such harassment or discrimination
2

28 ECAB 125 (1976).

3

5 U.S.C. §§ 8101-8193.

4

See Robert W. Johns, 51 ECAB 136 (1999).

5

Lillian Cutler, supra note 2.

6

Id.

7

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

8

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
9

Roger Williams, 52 ECAB 468 (2001).

3

occurred. To establish entitlement to benefits, a claimant must establish a factual basis for the
claim by supporting his or her allegations with probative and reliable evidence.10
ANALYSIS
Appellant attributed his diagnosed post-traumatic stress disorder to his work duties. He
stated that on June 29, 2012 he was assigned an unrealistic amount of work with an unrealistic
deadline. The Board has held that emotional reactions to situations in which an employee is
trying to meet his or her position requirements are compensable under Cutler.11 While appellant
generally alleged that his specially assigned duties on June 29, 2012 caused or contributed to his
emotional condition, he did not submit sufficient evidence to establish that the employing
establishment required him to complete an unrealistic amount of work with an unrealistic
deadline.12 He did not provide an adequate description of either the specific work required or the
time period allotted. Without supporting evidence, this allegation is not a compensable
employment factor.
Appellant also attributed his emotional condition to administrative actions of his
supervisor, Mr. Duban, on March 16, 2012. An administrative or personnel matter will be
considered to be an employment factor only where the evidence discloses error or abuse on the
part of the employing establishment.13 Mr. Duban allegedly removed appellant from his
assigned route for the day because he had not completed the route in the allotted four hours.
Appellant alleged that Mr. Duban stated that he was too slow, inefficient and not meeting
minimum expectations and standards. On March 5 and 10, 2012 Judy Thompson, a supervisor,
blamed appellant for a late return without factual justification. Appellant has submitted no
witness statements or other corroborating evidence regarding Dr. Duban’s or Ms. Thompson’s
actions and statements. While appellant has alleged error or abuse in his supervisors’ actions,
the Board has frequently held that allegations alone by a claimant are insufficient to establish a
factual basis for an emotional condition claim, but rather must be corroborated by evidence.14
Without any substantiating evidence that the events described above occurred as alleged,
appellant has failed to establish compensable factors of employment in these events.
Appellant also attributed his emotional condition to his leave usage and the response to
this usage by the employing establishment. He alleged on January 9, 2012 “Manager Brenda”
criticized him for calling the automated call-in system due to his absence from work as the result
of a migraine. Appellant was absent on March 31, April 25 and 26 and June 9 and 23, 2012 due
to migraines and stomach upsets. He stated that on June 11, 2012 he received unwarranted
criticism from “Supervisor Dennis” regarding his leave usage on June 9, 2012. Although the
handling of leave requests is generally related to employment, this is an administrative function
10

Alice M. Washington, 46 ECAB 382 (1994).

11

Lillian Cutler, supra note 2.

12

D.L., 58 ECAB 217 (2006).

13

C.S., 58 ECAB 137 (2006).

14

J.F., 59 ECAB 331 (2008); M.D., 59 ECAB 211 (2007).

4

of the employer and not duties of the employee and subject to the standard discussed above.
Appellant alleged error or abuse by the employing establishment in response to his leave usage;
but did not submit adequate evidence to establish his alleged difficulties with supervisors
regarding his leave usage. Without corroborating evidence he has not established any error or
abuse on the part of the employing establishment.
Appellant received a promotion letter on March 2, 2012 which was rescinded on
March 5, 2012. The Board has held that disability is not covered where it results from an
employee’s frustration over not being able to secure a promotion.15 Assignment of work duties
is a management prerogative, so that appellant’s reaction to the withdrawal of his promotion
would be covered only if he could establish error or abuse by the employing establishment which
he has not done.16
On March 10, 2012 appellant alleged that there was a “bullying incident with supervisor”
and that he filed a grievance. The record contains a grievance form dated April 26, 2012 filed by
appellant against Mr. Duban alleging that he created a hostile work environment. The grievance
does not contain any specific details of the bullying. Without a clear and detailed account of the
events of March 10, 2012, the Board is unable to determine whether these events could rise to
the level of a compensable factor of employment if established. Furthermore, the grievance was
resolved through an agreement for mutual cooperation and clear communications. The grievance
settlement provided no indication of a finding of error by the employing establishment.17
The Board concludes that appellant did not meet his burden of proof to establish that he
sustained an emotional condition in the performance of duty causally related to factors of his
federal employment.
As appellant has not established any compensable employment factors, the Board need
not consider the medical evidence of record.18
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 established that he sustained an emotional
condition in the performance of duty.

15

R.F., Docket No. 12-1816 (issued May 21, 2013).

16

H.D., Docket No. 12-1246 (issued April 11, 2013).

17

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

18

A.K., 58 ECAB 119 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the January 29, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 26, 2013
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
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Flemington, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-2072
Issued: September 19, 2014

Case Submitted on the Record

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

JURISDICTION
On September 10, 2013 appellant, through counsel, filed a timely appeal from a June 12,
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 the decision.
ISSUE
The issue is whether appellant has greater than four percent impairment of the left lower
extremity and 20 percent impairment of the right lower extremity for which he received schedule
awards.
On appeal appellant’s attorney asserts that the referee physician, Dr. Barry J. Snyder, a
Board-certified orthopedic surgeon, was improperly selected and, thus, a conflict remains
regarding appellant’s lower extremity impairment. Counsel further asserts that the statement of
accepted facts provided to Dr. Snyder was incomplete, that he did not address polyneuropathy or
1

5 U.S.C. §§ 8101-8193.

preexisting conditions, that his report is not well reasoned, and that there was inappropriate
contact between Dr. Snyder and OWCP.
FACTUAL HISTORY
This case consists of two claim files, an October 2, 2004 traumatic injury accepted for
lumbar sprain and thoracic or lumbosacral neuritis or radiculitis and a 2007 occupational disease
claim accepted for aggravation of preexisting diabetic neuropathy, right; right flat foot;
arthropathies associated with neurological disorders, right; and tear of the medial meniscus of the
knee, right. The claims were adjudicated by OWCP under file numbers xxxxxx316 and
xxxxxx373, respectively.2
Claim number xxxxxx316 has previously been before the Board. In a January 14, 2009
decision, the Board affirmed July 26, 2007 and March 7, 2008 OWCP decisions, finding that
appellant had established four percent permanent impairment for each lower extremity due to
sensory deficits in both legs. The Board also found the evidence insufficient to establish diabetes
or the Charcot foot condition to preexist the employment injury of 2004.3 The law and facts of
the previous Board decision are incorporated herein by reference.
Regarding claim number xxxxxx373, following an initial denial on April 30, 2008, by
decision dated January 2, 2009, an OWCP hearing representative found that a medical conflict
had been created as to whether appellant had sustained additional work-related conditions, and
remanded the case for OWCP to obtain an impartial evaluation. Following evaluation by
Dr. Stanley R. Askin, a Board-certified orthopedic surgeon, on April 24, 2009 OWCP accepted
that appellant’s federal employment contributed to preexisting diabetic peripheral neuropathy
and flatfoot of the right foot. Appellant filed a schedule award claim for the additional
conditions.
On February 19, 2010 appellant was granted a schedule award for 13 percent impairment
of the right lower extremity. After subtracting the previous four percent of the right lower
extremity, he received an additional nine percent impairment of the right lower extremity. The
schedule award was increased due to the effects of weight-bearing on the arthritic condition of
the right foot. Appellant requested a hearing. On August 10, 2010 an OWCP hearing
representative found the conflict in medical evidence remained regarding appellant’s accepted
right knee condition and remanded the case to OWCP for a new referee examination with special
attention to whether the right knee condition was causally related to work and whether appellant
would be entitled to an increased schedule award due to the right knee condition.
OWCP referred appellant to Dr. David N. Bosacco, a Board-certified orthopedic surgeon,
along with an updated statement of accepted facts, for an impartial evaluation. Dr. Bosacco’s
report was forwarded to an OWCP medical adviser who found 10 percent impairment for the
right knee based on range of motion, 11 percent for the right foot and no rating for lumbar.
2

Appellant, then a 52-year-old distribution window clerk, filed claim number xxxxxx316 on October 4, 2004. He
filed claim number xxxxxx373 on March 12, 2007.
3

Docket No. 08-1744 (issued January 14, 2009).

2

Using the Combined Values Chart, the total impairment was 20 percent right lower extremity. In
a November 10, 2010 decision, OWCP credited Dr. Bosacco’s September 8, 2010 opinion and
granted appellant a schedule award for an additional seven percent right lower extremity
impairment, for a total of 20 percent.
Appellant disagreed and requested another hearing. In a June 28, 2011 decision, an
OWCP hearing representative again remanded the case to OWCP to combine file numbers
xxxxxx316 and xxxxxx373 and prepare a new statement of accepted facts for both files. OWCP
was to obtain a supplemental report from Dr. Bosacco, to be followed by a de novo decision
regarding appellant’s complete impairment of the right leg, including any lumbar-related nerve
root impairment and all preexisting conditions.
OWCP referred appellant to Dr. Snyder, a Board-certified orthopedic surgeon, for a new
impartial evaluation. Dr. Snyder was provided an updated statement of accepted facts. He was
asked to address accepted conditions on appellant’s right side and provide an impairment rating
in accordance with the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment4 (hereinafter A.M.A., Guides).
In a February 29, 2012 report, Dr. Snyder noted his review of an extensive medical
record. He provided physical examination findings including right pes planus; right bimalleolar
pain during plantar flexion; decreased right dorsalis pedis; normal deep tendon reflexes;
diminished protective sensation in the lateral forefoot and toes on the right and all toes on the
left; diminished light touch sensation of the medial foot bilaterally; and normal light touch and
protective sensation of the lateral hind foot bilaterally. Tinel’s sign was present bilaterally.
Dr. Snyder diagnosed Charcot arthropathy of the right foot; exogenous morbid obesity; insulindependent diabetes mellitus, complicated by diabetic polyneuropathy; peripheral vascular
disease, i.e., diabetic vasculopathy; and degenerative arthrosis with meniscal tear of the right
knee, and additional accepted conditions of lumbar sprain and thoracic or lumbosacral neuritis or
radiculitis. He opined that the diabetic polyneuropathy and meniscal degeneration were not
caused by appellant’s employment but noted that these conditions had been accepted and that the
sixth edition of the A.M.A., Guides emphasized diagnosis-based impairment. Dr. Snyder noted
that the more appropriate diagnoses for analyzing impairment were talonavicular arthritis,
calcaneal cuboid arthritis, meniscal injury and patellofemoral arthritis. He then stated that the
following impairment analysis was presented for appellant’s left lower extremity, based on his
diagnoses of the right foot and right knee.5
Dr. Snyder indicated that the impairing diagnoses were talonavicular arthritis, calcaneal
cuboid arthritis, meniscal injury and patellofemoral arthritis. He found that under Table 16-2,
Foot and Ankle Regional Grid,6 for the diagnosis of talonavicular arthritis, appellant had a class
1 impairment with a default value of one percent. Dr. Snyder found a grade modifier of 2 for
4

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

5

Dr. Snyder’s use of “left” appears to be a typographical error. The substance of the report clearly refers to the
right lower extremity.
6

Dr. Snyder’s report referenced Table “15-2,” an obvious typographical error since that table of the A.M.A.,
Guides is the Digit Regional Grid. A.M.A., Guides 391.

3

functional history, a modifier of 1 for physical examination and a modifier of 3 for clinical
studies. After applying the net adjustment formula, he concluded that appellant had two percent
right leg impairment for the diagnosis of talonavicular arthritis. Dr. Snyder found that, for
calcaneal cuboid arthritis, under Table 16-2 appellant had a class 1 impairment with a default
value of 5, with grade modifiers of 2 for functional history and physical examination, and a grade
modifier of 3 for clinical studies. After applying the net adjustment formula, he concluded that
appellant had seven percent leg impairment for the diagnosis of calcaneal cuboid arthritis.
Dr. Snyder then combined these values, indicating that, due to impairment of his right foot,
appellant had nine percent impairment of the left lower extremity for ankle arthritis.
Regarding the right meniscal injury, Dr. Snyder found a class 1 radial tear under Table
15-3, Knee Regional Grid, with a default value of two percent with grade modifiers of one each
for functional history, physical examination and clinical studies. After applying the net
adjustment formula, he concluded that appellant had two percent impairment for a right radial
tear.
Dr. Snyder also indicated that, for a diagnosis of chondromalacia patella, appellant had a
class 0 impairment. He then combined the 2 percent right knee impairment with the 9 percent
ankle impairment and concluded that appellant had 11 percent right lower leg impairment.
Dr. Snyder attached charts demonstrating his impairment analysis.
In a March 9, 2012 report, Dr. Morley Slutsky, an OWCP medical adviser who is Boardcertified in occupational medicine, noted his review of the record, including Dr. Snyder’s report.
OWCP’s medical adviser indicated that additional information was needed and found the report
flawed. He found that Dr. Snyder had failed to order x-rays to measure cartilage intervals in the
foot and ankle joints and right knee, a requirement of the A.M.A., Guides.
By decision dated March 16, 2012, OWCP found that the weight of the medical evidence
rested with the opinion of Dr. Snyder who concluded that appellant had 11 percent impairment of
the right lower extremity and, thus, was not entitled to a schedule award greater than the 20
percent previously granted. Appellant requested a hearing.
In a June 25, 2012 decision, an OWCP hearing representative noted that OWCP
procedures provide that, if the opinion of a referee physician is insufficient, OWCP should
request a supplemental report and that, in this case, instead of requesting a clarifying report from
the original independent medical specialist, Dr. Bosacco, OWCP improperly referred appellant to
Dr. Snyder for a new impartial evaluation. The hearing representative instructed that
Dr. Snyder’s report be excluded and that OWCP should request a supplemental opinion from
Dr. Bosacco. The hearing representative again instructed OWCP to combine file numbers
xxxxxx373 and xxxxxx316 and prepare a new statement of accepted facts and request a
supplemental report from Dr. Bosacco, and that, if he was unable or unwilling to provide the
requested supplementary report, OWCP should then arrange another impartial evaluation.
OWCP thereafter doubled the claim files and prepared a July 16, 2012 addendum to the
statement of accepted facts. An August 8, 2012 OWCP memorandum indicated that it was
unable to comply with the June 28, 2011 decision because Dr. Bosacco had passed away in early
2011. OWCP stated that it had therefore arranged a new “referee” with Dr. Snyder and would

4

provide him with the new statement of accepted facts and medical records as required. On
August 8, 2012 it asked Dr. Snyder for further clarification. OWCP noted that the claims had
been doubled and provided medical evidence regarding claim number xxxxxx316. It asked the
physician to determine if residuals of claim number xxxxxx316 were included in the 11 percent
right lower extremity impairment he previously found.
In an October 27, 2012 response, Dr. Snyder indicated that the 11 percent right lower
extremity impairment included all diagnoses accepted on the statement of accepted facts. He
indicated that he did not incorporate lumbar sprain and thoracic or lumbosacral neuritis or
radiculitis but stated that to the best of his knowledge the percentage he found was
comprehensive and accurate to include all applicable impairments.
In a November 19, 2012 decision, OWCP noted that appellant had been seen by
Dr. Snyder for an impartial evaluation on August 25, 2011 and found that the weight of the
medical evidence rested with his opinion that appellant had 11 percent impairment of the right
leg. Another hearing was requested by appellant. On June 12, 2013 an OWCP hearing
representative affirmed the November 29, 2012 decision. The hearing representative again noted
that Dr. Bosacco had died before OWCP had been able to obtain a clarifying report from him and
that OWCP, therefore, properly obtained a new impartial evaluation from Dr. Snyder, who
provided a thorough evaluation. The hearing representative concluded that there was no need to
disqualify Dr. Snyder, noting that he addressed all accepted conditions, and did not identify the
need for or request additional testing.
LEGAL PRECEDENT
The schedule award provision of FECA,7 and its implementing federal regulations,8 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.9 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides is to be used.10
Section 8123(a) of FECA provides that if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.11 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404 (2011).

9

Id.

10

FECA Bulletin No. 09-03 (issued March 15, 2009); supra note 4.

11

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

5

specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.12
OWCP procedures provide that a medical record must be excluded if a second referee
specialist’s report is requested before it has attempted to clarify the original referee specialist’s
report.13 Only if the selected physician fails to provide an adequate and clear response after a
specific request for clarification may OWCP seek a second referee specialist’s opinion.14
ANALYSIS
In the November 19, 2012 OWCP decision denying appellant’s request for an additional
schedule award, as affirmed by an OWCP hearing representative on June 12, 2013, OWCP relied
on the February 29, 2012 opinion of Dr. Snyder. In a decision dated June 25, 2012, an OWCP
hearing representative found that OWCP improperly referred appellant to Dr. Snyder for an
impartial evaluation instead of securing a supplemental report from Dr. Bosacco who provided
an impartial medical evaluation on September 9, 2010. However as noted by OWCP in the
November 19, 2012 and June 12, 2013 decisions, Dr. Bosacco died in 2011 and was thus
unavailable. It was therefore permissible for OWCP to select Dr. Snyder as an impartial
physician.
The Board also finds that the statement of accepted facts, dated May 11, 2007 with an
addendum dated October 25, 2010, provided Dr. Snyder was sufficient. In his initial report dated
February 29, 2012, Dr. Snyder’s discussion of accepted conditions and the medical record was
very extensive. He provided an impairment evaluation and concluded that appellant had 11
percent lower extremity impairment.15
The Board nonetheless finds that this case is not in posture for decision. As noted above,
OWCP’s medical adviser had found the impairment evaluation by Dr. Synder to be inadequate.
He noted that the A.M.A., Guides required x-rays to be taken to properly determine the cartilage
intervals.16

12

Manuel Gill, 52 ECAB 282 (2001).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.12.a(2) (September 2010).
14

Id.

15

As to inappropriate contact, the record indicates that Dr. Snyder called OWCP on December 9, 2011 asking
whether the back was to be included in the impairment rating and OWCP responded. There is no evidence of
inappropriate contact. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating
Medical Evidence, Chapter 2.810.12(a)(3) (September 2010).
16

Supra note 4 at 501, Table 16-2.

6

The Board finds that Dr. Snyder’s opinion is not consistent with the A.M.A., Guides and
cannot be entitled to the special weight accorded a referee physician.17 Thus, a conflict in
medical evidence remains.
The case must therefore be remanded to OWCP. On remand it should prepare a new
statement of accepted facts that clearly describes the accepted conditions in both cases, and
forward it to a new impartial medical specialist.18 After this and such further development
deemed necessary, OWCP shall issue an appropriate merit decision on the issue of appellant’s
entitlement to schedule awards for the accepted conditions under both claims.19
CONCLUSION
The Board finds that this case is not in posture for decision regarding appellant’s lower
extremity impairments.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 12, 2013 is set aside and the case is remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: September 19, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
17

Supra note 12.

18

Supra note 13 at 2.810.11(e).

19

See M.D., Docket No. 13-503 (issued September 19, 2013).

7